Congressional Record: May 8, 2003 (Senate)
Page S5899-S5907                       



 
                 FOREIGN INTELLIGENCE SURVEILLANCE ACT

  The PRESIDING OFFICER. Under the previous order, the hour of 11:30 
having arrived, S. 113 is referred to the Committee on Intelligence, 
and the committee is discharged from further consideration of the 
measure, and the Senate will now proceed to consider the measure, which 
the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 113) to exclude United States persons from the 
     definition of foreign power under the Foreign Intelligence 
     Surveillance Act of 1978 relating to international terrorism.

  The Senate proceeded to consider the bill, which had been reported 
from the Committee on the Judiciary, with an amendment to the title and 
an amendment to strike all after the enacting clause and inserting in 
lieu thereof the following:
  [Strike the part shown in black brackets and insert the part shown in 
italic.]

                                 S. 113

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     [SECTION 1. EXCLUSION OF UNITED STATES PERSONS FROM 
                   DEFINITION OF FOREIGN POWER IN FOREIGN 
                   INTELLIGENCE SURVEILLANCE ACT OF 1978 RELATING 
                   TO INTERNATIONAL TERRORISM.

       [Paragraph (4) of section 101(a) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a)) is 
     amended to read as follows:
       [``(4) a person, other than a United States person, or 
     group that is engaged in international terrorism or 
     activities in preparation therefor;''].

     SECTION 1. TREATMENT AS AGENT OF A FOREIGN POWER UNDER 
                   FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 
                   OF NON-UNITED STATES PERSONS WHO ENGAGE IN 
                   INTERNATIONAL TERRORISM WITHOUT AFFILIATION 
                   WITH INTERNATIONAL TERRORIST GROUPS.

       (a) In General.--Section 101(b)(1) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(b)(1)) 
     is amended by adding at the end the following new 
     subparagraph:
       ``(C) engages in international terrorism or activities in 
     preparation therefor; or''.
       (b) Sunset.--The amendment made by subsection (a) shall be 
     subject to the sunset provision in section 224 of the USA 
     PATRIOT Act of 2001 (Public Law 107-56; 115 Stat. 295), 
     including the exception provided in subsection (b) of such 
     section 224.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. KYL. Mr. President, I appreciate the opportunity to take up this 
bill. It is under a unanimous consent agreement. Pursuant to that 
agreement, we are going to have some opening statements. I will take 
about 15 minutes and then Senator Schumer, the cosponsor of the 
amendment, will be presenting his remarks. After that, anyone who would 
like to speak for or against this bill can do so.
  There will be two amendments in order. One will be an accepted 
amendment offered by the Senator from Wisconsin, Mr. Feingold, and 
another will be offered by Senator Feinstein of California on which 
there is, I believe, a total of 4 hours authorized for debate. I do not 
think we will need that much time, but when the time comes, I urge my 
colleagues to oppose and defeat the Feinstein amendment so we can go to 
final passage of this legislation.
  I will briefly describe what the bill does and why we need it. Then I 
will get into some of the procedure involved. It is actually very 
simple. It involves an existing law that we passed in 1978 called the 
Foreign Intelligence Surveillance Act, known by the acronym FISA. FISA 
allows us to get warrants, among other things, and allows us to surveil 
people we suspect of committing acts of terrorism against us; for 
example, to get a warrant to search their computer or their home.
  There are two instances where the law currently applies. The 
underlying predicate is that there has to be probable cause that 
somebody is committing, about to commit, or planning to commit some 
kind of criminal act, a terrorism kind of act. It applies to two kinds 
of people: somebody who is either working for a foreign government or 
somebody who is working for a foreign terrorist organization.
  That leaves a little loophole because there are some terrorists who 
are not on the membership list, shall we say, or who are not card-
carrying members of a foreign terrorist organization or a foreign 
government; people such as Zacarias Moussaoui, for example, whom we now 
believe to have been loosely involved in the al-Qaida attack of 
September 11.
  At the time, it was not possible to prove that he was involved with a 
foreign intelligence organization. It may

[[Page S5900]]

well be that at the end of the day he was, in fact, a lone wolf, 
operating on his own, but very loosely affiliated with the radical 
Islamic movement which has underpinned a lot of the terrorism which 
threatens the United States and the rest of the world today.
  The law as written in 1978 was intended to apply to a very specific 
group of people, the Soviet spies, for example, or the Baader-Meinhof 
gang or the Red Brigade or the Red Army. There were a lot of these 
organizations back then, and they were very tightly knit organizations. 
If somebody was involved in one of these groups, they were involved. 
But today's radical Islamic movement around the world that associates 
itself with terrorism is much more amorphous. As I factitiously said, 
these people do not have cards identifying themselves as members of 
these organizations. They are people who hate the West and the United 
States. They move in and out of the different countries of the world. 
They will take training in a certain place. They will affiliate a 
little while with a group and then move on to support some other group.
  The bottom line is that it is very difficult, sometimes impossible, 
to prove that they are affiliated with a specific group. In some cases, 
they are not. They are simply acting on their own. But they are still 
terrorists. They are still foreign terrorists. They still mean to do us 
harm on the international stage and should be covered by the Foreign 
Intelligence Surveillance Act.

  We close this loophole by providing that not only does it cover the 
person working for a foreign government, or who we can prove at that 
point is working for a foreign terrorist organization, it also includes 
the so-called lone wolf terrorist, or the individual we cannot yet 
prove is directly affiliated with one of these amorphous groups. That 
is really all the bill does.
  I will give a specific example. I mentioned Zacarias Moussaoui. 
Remember all of the criticism. He was a person who was taking flying 
lessons. It was under very suspicious circumstances. We understood this 
prior to September 11. There were people who wanted to get a Foreign 
Intelligence Surveillance Act warrant to search his computer. It went 
to the FBI, and somebody in the FBI concluded that, yes, all of this 
information looked good in the warrant except that they could not 
specifically tie him to a specific international group. Quite a bit of 
time was used following up leads that led to some group of Chechen 
rebels, but that ended up to be kind of a dry hole. Meanwhile, the 
attack of September 11 occurred.
  Immediately after that attack, we were able to get the warrant. His 
case is pending in Northern Virginia at this time. He was not able to 
hook up with the attackers of September 11, but clearly his is an 
example of a case to which this kind of provision should apply.
  I will quote something from some of the testimony that we had with 
regard to the need for this legislation. Spike Bowman, who is the 
Deputy General Counsel of the FBI, testified at a Senate Select 
Committee on Intelligence hearing on the predecessor bill to the one 
that is before us right now. I will quote at length from his testimony. 
He said:

       When FISA was enacted, terrorism was very different from 
     what we see today. In the 1970s, terrorism more often 
     targeted individuals, often carefully selected. This was the 
     usual pattern of the Japanese Red Army, the Red Brigades and 
     similar organizations listed by name in the legislative 
     history of FISA. Today we see terrorism far more lethal and 
     far more indiscriminate than could have been imagined in 
     1978. It takes only the events of the September 11, 2001, to 
     fully comprehend the difference of a couple of decades. But 
     there is another difference as well. Where we once saw 
     terrorism formed solely around organized groups, today we 
     often see individuals willing to commit indiscriminate acts 
     of terror. It may be that these individuals are affiliated 
     with groups that we do not see, but it may be that they are 
     simply radicals who desire to bring about destruction.
       We are increasingly seeing terrorist suspects who appear to 
     operate at a distance from these organizations. In perhaps an 
     oversimplification, but illustrative nevertheless, what we 
     see today are (1) agents of foreign powers in the traditional 
     sense who are associated with some organization or 
     discernible group, (2) individuals who appear to have 
     connections with multiple terrorist organizations but who do 
     not appear to owe any allegiance to any one of them, but 
     rather owe allegiance to the International Jihad movement, 
     and (3) individuals who appear to be personally oriented 
     toward terrorism but with whom there is no known connection 
     to a foreign power.
       This phenomenon which we have seen . . . growing for the 
     past two or three years, appears to stem from a social 
     movement that began some imprecise time, but certainly more 
     than a decade ago. It is a global phenomenon which the FBI 
     refers to as the International Jihad Movement. By way of 
     background we believe we can see the contemporary development 
     of this movement, and its focus on terrorism, rooted in the 
     Soviet invasion of Afghanistan.
       During the decade-long Soviet/Afghan conflict, anywhere 
     from 10,000 to 25,000 Muslim fighters representing some 
     forty-three countries put aside substantial cultural 
     differences to fight alongside each other in Afghanistan. The 
     force drawing them together was the Islamic concept of 
     ``umma'' or Muslim community. In this concept, nationalism is 
     secondary to the Muslim community as a whole. As a result, 
     Muslims from disparate cultures trained together, formed 
     relationships, sometimes assembled in groups and otherwise 
     would have been at odds with one another[,] and acquired 
     common ideologies. . . .
       Following the withdrawal of the Soviet forces in 
     Afghanistan, many of these fighters returned to their 
     homelands, but they returned with new skills and dangerous 
     ideas. They now had newly acquired terrorist training as 
     guerilla warfare [had been] the only way they could combat 
     the more advanced Soviet forces.
       Information from a variety of sources repeatedly carries 
     the theme from Islamic radicals that expresses the opinion 
     that we just don't get it. Terrorists world-wide speak of 
     jihad and wonder why the western world is focused on groups 
     rather than on concepts that make them a community.
       The lesson to be taken from how [Islamic terrorists share 
     information] is that al-Qaida is far less a large 
     organization than a facilitator, sometimes orchestrator of 
     Islamic militants around the globe. These militants are 
     linked by ideas and goals, not by organizational structure.
       The United States and its allies, to include law 
     enforcement and intelligence components worldwide[,] have had 
     an impact on the terrorists, but [the terrorists] are 
     adapting to changing circumstances. Speaking solely from an 
     operational perspective, investigation of these individuals 
     who have no clear connection to organized terrorism, or 
     tenuous ties to multiple organizations, is becoming 
     increasingly difficult. The current FISA statute has served 
     the Nation well, but the international Jihad movement 
     demonstrates the need to consider whether a different 
     formulation is needed to address the contemporary 
     terrorist problem.
  Of course, the different way we are approaching it is by adding a 
third element to the FISA statute. If you are a non-United States 
person and otherwise we have probable cause to believe you are planning 
an act of or executing an act of terrorism, we have the right to seek a 
warrant in the FISA court to search you, surveil you, whatever the 
warrant might request.
  That is the essence of this legislation. As I said, when FISA was 
enacted in 1978, this international movement around an idea had not yet 
evolved and we were focused on organizations. Now we need to add to the 
statute, in addition to nations and specific organizations, non-United 
States persons--in other words, foreign persons--who we believe are 
carrying out some terrorist plan with international roots, directed at 
the United States, sufficient to bring it under the aegis of the FISA 
statute.
  It is the responsibility of Congress to adapt our laws to these 
changes. It is this challenge that Senator Schumer and I are attempting 
to address by this amendment.
  I introduced this bill with Senator Schumer in the 107th Congress on 
June 5, 2002, so it has been around almost a full year. The current 
bill is the identical bill introduced in the previous Congress. We held 
a Select Committee on Interrogation hearing July 2002, the testimony 
from which I just quoted, and we heard testimony from six witnesses.
  There was no Judiciary markup in the previous Congress, but in the 
108th Congress, when we reintroduced the bill January 9, the Senate 
Judiciary Committee held a markup. This bill, by the way, was 
cosponsored by Chairman Hatch, Senators DeWine, Schumer, myself, 
Chambliss, Sessions, and there may be others of whom I am not aware.
  March 6, the Judiciary Committee marked up the bill at an executive 
session and adopted a substitute amendment, which is the bill we have 
before the Senate now, rejected a Feingold amendment by a vote of 11 to 
4, and voted to report the bill unanimously by a vote of 19 to 0 to the 
Senate. That is where we are today.
  We hope to call anyone who has an interest in this to the floor to 
express their ideas. As I say, we are going to

[[Page S5901]]

accept one amendment and we will be debating a second amendment, which 
I hope we defeat. There will be a break in our consideration here for 
some other business in the middle of the day. We will return in 
midafternoon to complete the work on the bill. It should be done by the 
late afternoon.
  Until Senator Schumer arrives, I make another point. There has been a 
worry on the part of some that this expands the Foreign Intelligence 
Surveillance Act to private American citizens. I make it crystal clear 
that is not true.
  By definition, we could not do that. This is a law that is only 
justified because it relates to international terrorism. So if you come 
here from a foreign country, you are a non-U.S. person, you come from a 
foreign country, intending to do harm to Americans, as part of this 
international movement, whether you are a member of some specific 
organization or not, the act will be allowed to be used to determine 
whether we should take further action against you. It is not pertaining 
to U.S. citizens; it is only to non-U.S. citizens and only in this 
particular context.
  Second, you cannot just do this willy-nilly, like every other 
warrant. Whether under FISA or not, we have to have probable cause. 
That requirement is not changed one iota. If anyone suggests there is 
anything improper, certainly it is not unconstitutional, but to the 
extent anyone suggests that we are ready to recite the reasons why, 
that is not true.
  I note the Department of Justice has sent a letter announcing its 
support for this legislation. Among those testifying in favor of it, 
the U.S. Attorney General, the Director of the Bureau of Investigation, 
former CIA Director, and any number of officials in our intelligence 
and law enforcement community have endorsed the bill.
  I direct Members' attention to a letter I will later put into the 
Record, dated July 31, 2002, which presented the Department of 
Justice's views on the bill and announced its support for the 
legislation. It provides a detailed analysis of this question about the 
fourth amendment and whether or not there would be any constitutional 
issues.
  The Department concluded that the bill would satisfy constitutional 
requirements specifically related to the fourth amendment. In 
particular, the Department emphasized that anyone monitored pursuant to 
the bill would be someone who had at the very least been involved in 
terrorist acts that transcends national boundaries in term of the means 
they are accomplished, the persons they appear intended to coerce or 
intimidate, or the locale in which the perpetrators operate or seek 
asylum.
  As a result, it would still be limited to collecting foreign 
intelligence for the international responsibilities of the United 
States and the duties of the Federal Government to the States in 
matters involving foreign terrorism, to wit, protecting the American 
citizens from people who come here to do us harm.
  Let me conclude these remarks by noting that I have enjoyed the 
cooperation, as usual, of my colleague who serves on the Judiciary 
Committee, the Senator from New York, Mr. Schumer, who has been a 
strong advocate of this kind of provision for a long time and whose 
assistance in this matter has been extraordinarily helpful.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, first, I thank my colleague, Senator Kyl 
from Arizona, for his great work on this and many other issues.
  We live in a new world. It is a post-September 11 world. We have to 
adjust to those realities. I believe we can do both, have security and 
liberty, the great concern of our Founding Fathers. I think this bill, 
in a careful and thoughtful way, readjusts that balance.
  My colleague from Arizona has been a leader on these issues. We do 
not always agree, but we often do. It is a pleasure to work with him. 
His persistence and dedication to making this country secure and 
maintaining its freedom at the same time is something I share and I 
respect.
  As I mentioned, the age-old debate between security and freedom is at 
the nub of the Constitution. It was probably debated more by the 
Founding Fathers than any other issue. They realized that in times of 
crisis, in times of war, in times of attack, the pendulum could swing 
more to the security side and at other times to the freedom side. They 
realized, as Benjamin Franklin said, that giving up even an ounce of 
precious freedom is a very serious thing to do.
  FISA is a debate about that. While I certainly believe, as I think 
most of my colleagues do, given the fact that what we have learned 
since September 11, that terrorists can strike in our heartland, that 
small groups of people empowered by technology can do the kind of 
damage we have never seen before, which my city suffered on September 
11. We remember the losses every day. We do have to reexamine this, 
particularly when there has been one law for people overseas and one 
law for people in this country because the walls have changed.
  That is a general debate on FISA. I know some of my colleagues have 
wanted to do that today. My colleague from Wisconsin says the law has 
shifted too far one way. My colleague from Utah thinks it has shifted 
the other way. Senator Kyl and I are not debating that. We do not give 
up any liberty in this bill. The very standards that are now in the law 
with FISA remain, standards of what must be done to get a FISA warrant. 
Those do not change. The only change is our recognition that in these 
new post-9/11 years, technology has allowed small groups unknown 
before, or even lone wolf individuals, to commit terrorism, and if they 
are doing the same thing as established terrorist groups or established 
terrorist nations, there seems to be no reason why they shouldn't be 
susceptible to the same type of surveillance of other groups. That is 
at the nub of this issue.

  We are informed by history. Again, those who say don't do anything to 
change don't look at history, in my judgment. We learned from the 
disclosures regarding Zacarias Moussaoui, the so-called 20th hijacker, 
that the FBI had abundant reason to be suspicious of him before 9/11, 
but they did not act, they did not do what Agent Rowley wanted them to 
do. She, of course, has been heralded as a great leader and a great 
American for what she has done, and I join in that. But they didn't 
want to do what she wanted, which was pursue a warrant to dig up 
evidence that may have been the thread which, if pulled, would have 
unraveled the terrorists' plans.
  The anguish she felt then, and so many of us feel afterwards, that 
this might have been stopped but wasn't because of a provision in the 
FISA law that quickly became archaic as terrorists advanced and we 
learned that small groups could do such damage, is what motivates this 
legislation.
  One reason we have been given--and Agent Rowley agrees with this, I 
believe--why the FBI did not seek the warrant is the bar for getting 
those warrants when it came to those not affiliated with known 
terrorist groups or known terrorist countries was set too high.
  That is why Senator Kyl and I introduced this amendment to FISA. We 
intend to make it easier for law enforcement to get warrants against 
non-U.S. citizens--this does not affect a single U.S. citizen--who are 
suspected of preparing to commit acts of terrorism.
  As I mentioned, we leave two of the standards in place, the ones that 
measure the bar. Right now, the FBI is required to show three things 
before they can get a warrant: They must show the target is engaging in 
or preparing to engage in international terrorism. We keep that 
requirement. It does not change. They must show a significant purpose 
of the surveillance is foreign-intelligence gathering. We are keeping 
that requirement, too, that foreign-intelligence gathering is a 
significant purpose.
  Here is the problem. They also must show under present law that the 
target is an agent of a foreign power, such as Iraq, or a known foreign 
terrorist group, such as Hamas or al-Qaida. That is the hurdle we are 
removing. If that requirement had not been in place, there is no 
question the FBI could have gotten a warrant to do electronic 
surveillance on Zacarias Moussaoui and, who knows, not certainly but 
perhaps, 9/11 might not have occurred.
  That is the anguish we all face. Right now we know there may be 
terrorists plotting on American soil. We may have all kinds of reasons 
to believe

[[Page S5902]]

they are preparing to commit acts of terrorism. But we cannot do the 
surveillance we need if we cannot tie them to a foreign power or an 
international terrorist group. It is a catch-22. We need the 
surveillance to get the information we need to be able to do the 
surveillance. It makes no sense. The simple fact is, it should not 
matter whether we can tie someone to a foreign power. Whether our 
intelligence is just not good enough or whether the terrorist is acting 
as a lone wolf or it is a new group of 10 people who have not been 
affiliated with any known terrorist group, should not affect whether we 
can do surveillance, should not affect whether they are a danger to the 
United States, should not affect whether they are preparing to do 
terrorism. Engaging in international terrorism should be enough for our 
intelligence experts to start surveillance.
  It is important to note if we remove this last requirement now it 
will immeasurably aid law enforcement without exposing American 
citizens or those who hold green cards to the slightest additional 
surveillance. Let me repeat, because I know we get some who write that 
this is the unraveling of the Constitution and it befuddles me because 
it is not, it does not affect a single American citizen or those who 
have green cards.

  It is fair. It is reasonable. It is a smart fix to a serious problem. 
It passed out of the Judiciary Committee with unanimous support. It is 
supported by the administration as well.
  One final word. This is about an amendment from my good friend, a 
colleague from California, Senator Feinstein, which we will debate. She 
is introducing an amendment that would allow some gray into the law, 
rather than making it black or white. Her amendment would leave the 
decision whether or not to grant the FBI a FISA warrant against a lone 
wolf, she would leave that up to a particular judge.
  I do not believe we can afford any more uncertainty. We saw what 
uncertainty did when the Zacarias Moussaoui case occurred. The FBI, so 
worried that they might overstep, said no. We need clarity in the law 
when it comes to fighting terrorism.
  Therefore, I urge my colleagues to oppose the Feinstein amendment and 
support the bipartisan bill which is before us today.
  Mr. President, I yield the floor and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER (Mr. Fitzgerald). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INHOFE. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Order of Procedure

  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I ask unanimous consent that Senator DeWine 
be recognized at 1 p.m. for 15 minutes of morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, I ask unanimous consent that in the debate on 
the pending business involving the Foreign Intelligence Surveillance 
Act, a letter from the Department of Justice dated July 31, 2002, be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                    Washington, DC, July 31, 2002.
     Hon. Bob Graham,
     Chairman, Select Committee on Intelligence, U.S. Senate, 
         Washington, DC.
     Hon. Richard C. Shelby,
     Vice-Chairman, Select Committee on Intelligence, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman and Mr. Vice Chairman: The letter 
     presents the views of the Justice Department on S. 2586, a 
     bill ``[t]o exclude United States persons from the definition 
     of `foreign power' under the Foreign Intelligence 
     Surveillance Act of 1978 relating to international 
     terrorism.'' The bill would extend the coverage of the 
     Foreign Intelligence Surveillence Act (``FISA'') to 
     individuals who engage in international terrorism or 
     activities in preparation therefor without a showing of 
     membership in or affiliation with an international terrorist 
     group. The bill would limit this type of coverage to non-
     United States persons. The Department of Justice supports S. 
     2586.
       We note that the proposed title of the bill is potentially 
     misleading. The current title is ``To exclude United States 
     persons from the definition of `foreign power' under the 
     Foreign Intelligence Surveillance Act of 1978 relating to 
     international terrorism.'' A better title, in keeping with 
     the function of the bill, would be something along the 
     following lines: ``To expand the Foreign Intelligence 
     Surveillance Act of 1978 (`FISA') to reach individuals other 
     than United States persons who engage in international 
     terrorism without affiliation with an international terrorist 
     group.''
       Additionally, we understand that a question has risen as to 
     whether S. 2586 would satisfy constitutional requirements. We 
     believe that it would.
       FISA allows a specially designated court to issue an order 
     appoving an electronic surveillance or physical search, where 
     a significant purpose of the surveillance or search is ``to 
     obtain foreign intelligence information.'' Id. 
     Sec. Sec. 1804(a)(7)(B), 1805(a). Given this purpose, the 
     court makes a determination about probable cause that differs 
     in some respects from the determination ordinarily underlying 
     a search warrant. The court need not find that there is 
     probable cause to believe that the surveillance or search, in 
     fact, will lead to foreign intelligence information, let 
     alone evidence of a crime, and in many instances need not 
     find probable cause to believe that the target has committed 
     a criminal act. The court instead determines, in the cause of 
     electronic surveillance, whether there is probable cause to 
     believe that ``the target of the electronic surveillance is a 
     foreign power or an agent of a foreign power,'' id 
     Sec. 1805(a)(3)(A), and that each of the places at which the 
     surveillance is directed ``is being used, or about to be 
     used, by a foreign power or an agent of a foreign power,'' 
     id. Sec. 1805(a)(3)(B). The court makes parallel 
     determinations in the case of a physical search. Id. 
     Sec. 1824(a)(3)(A). (B).
       The terms ``foreign power'' and ``agent of a foreign 
     power'' are defined at some length, Id. Sec. 1801(a), (b), 
     and specific parts of the definitions are especially 
     applicable to surveillances or searches aimed at collecting 
     intelligence about terrorism. As currently defined, ``foreign 
     power'' includes ``a group engaged in international terrorism 
     or activities in preparation therefor,'' Id. Sec. 1801(a)(4) 
     (emphasis added), and an ``agent of a foreign power'' 
     includes any person who ``knowingly engages in sabotage or 
     international terrorism or activities that are in preparation 
     therefor, for or on behalf of a foreign power,'' Id. 
     Sec. 1801(b)(2)(C). ``International terrorism'' is defined to 
     mean activities that: (1) involve violent acts or acts 
     dangerous to human life that are a violation of the criminal 
     laws of the United States or of any State, or that would be a 
     criminal violation if committed within the jurisdiction of 
     the United States or any State; (2) appear to be intended--
     (A) to intimidate or coerce a civilian population; (B) to 
     influence the policy of a government by intimidation or 
     coercion, or (C) to affect the conduct of a government by 
     assassination or kidnapping; and (3) occurs totally outside 
     the United States, or transcend national boundaries in terms 
     of the means by which they are accomplished, the persons they 
     appear intended to coerce of intimidate, or the locale in 
     which their perpetrators operate or seek asylum.
       S. 2586 would expand the definition of ``foreign power'' to 
     reach persons who are involved in activities defined as 
     ``international terrorism,'' even if these persons cannot be 
     shown to be agents of a ``group'' engaged in international 
     terrorism. To achieve this expansion, the bill would add the 
     following italicized words to the current definition of 
     ``foreign power'': ``any person other than a United States 
     person who is, or a group that is, engaged in international 
     terrorism or activities in preparation therefor.''
       The courts repeatedly have upheld the constitutionality, 
     under the Fourth Amendment, of the FISA provisions that 
     permit issuance of an order based on probable cause to 
     believe that the target of a surveillance or search is a 
     foreign power or agent of a foreign power. The question posed 
     by S. 2586 would be whether the reasoning of those cases 
     precludes expansion of the term ``foreign power'' to include 
     individual international terrorists who are unconnected to a 
     terrorist group.
       The Second Circuit's decision in United States versus 
     Duggan, 743 F.2d 59 (2d Cir. 1984), sets out the fullest 
     explanation of the ``governmental concerns'' that had led to 
     the enactment of the procedures in FISA. To identify these 
     concerns, the court first quoted from the Supreme Court's 
     decision in United States versus United States District 
     Court, 407 U.S. 297, 308 (1972) (``Keith''), which addressed 
     ``domestic national security surveillance'' rather than 
     surveillance of foreign powers and their agents, but which 
     specified the particular difficulties in gathering ``security 
     intelligence'' that might justify departures from the usual 
     standards for warrants: ``[Such intelligence gathering] is 
     often long range and involves the interrelation of various 
     sources and types of information. The exact targets of such 
     surveillance may be more difficult to identify than in 
     surveillance operations against many types of crime specified 
     in Title III [dealing with electronic surveillance in 
     ordinary criminal cases]. Often, too, the emphasis of 
     domestic intelligence gathering is on the prevention of 
     unlawful activity or the enhancement of the government's 
     preparedness for some possible future crisis or emergency. 
     Thus the focus of domestic surveillance may be less precise 
     than that directed against more conventional types of 
     crime.'' Duggan, 743 F.2d

[[Page S5903]]

     at 72 (quoting Keith, 407 U.S. at 322). The Second Circuit 
     then quoted a portion of the Senate Committee Report on FISA: 
     ``[The] reasonableness [of FISA procedures] depends, in part, 
     upon an assessment of the difficulties of investigating 
     activities planned, directed, and supported from abroad by 
     foreign intelligence services and foreign-based terrorist 
     groups. . . . Other factors include the international 
     responsibilities of the United States, the duties of the 
     Federal Government to the States in matters involving foreign 
     terrorism, and the need to maintain the secrecy of lawful 
     counterintelligence sources and methods.'' Id. at 73 (quoting 
     S. Rep. No. 95-701, at 14-15, reprinted in 1978 U.S.C.C.A.N. 
     3973, 3983) (``Senate Report''). The court concluded:
       Against this background, [FISA] requires that the FISA 
     Judge find probable cause to believe that the target is a 
     foreign power or an agent of a foreign power, and that the 
     place at which the surveillance is to be directed is being 
     used or is about to be used by a foreign power or an agent of 
     a foreign power; and it requires him to find that the 
     application meets the requirements of [FISA]. These 
     requirements make it reasonable to dispense with a 
     requirement that the FISA Judge find probable cause to 
     believe that surveillance will in fact lead to the 
     gathering of foreign intelligence information.
       Id. at 73. The court added that, a fortiori, it 
     ``reject[ed] defendants' argument that a FISA order may not 
     be issued consistent with the requirements of the Fourth 
     Amendment unless there is a showing of probable cause to 
     believe the target has committed a crime.'' Id. at n.5. See 
     also, e.g., United States versus Pelton, 835 F.2d 1067, 1075 
     (4th Cir. 1987); United States versus Cavanagh, 807 F.2d 787, 
     790-91 (9th Cir. 1987) (per then-Circuit Judge Kennedy); 
     United States versus Nicholson, 955 F. Supp. 588, 590-91 
     (E.D. Va. 1997).
       We can conceive of a possible argument for distinguishing, 
     under the Fourth Amendment, the proposed definition of 
     ``foreign power'' from the definition approved by the courts 
     as the basis for a determination of probable cause under FISA 
     as now written. According to this argument, because the 
     proposed definition would require no tie to a terrorist 
     group, it would improperly allow the use of FISA where an 
     ordinary probable cause determination would be feasible and 
     appropriate--where a court could look at the activities of a 
     single individual without having to access ``the 
     interrelation of various sources and types of information,'' 
     see Keith, 407 U.S. at 322, or relationships with foreign-
     based groups, see Daggan, 743 F.2d at 73; where there need be 
     no inexactitude in the target or focus of the surveillance, 
     see Keigh, 407 U.S. at 322; and where the international 
     activities of the United States are less likely to be 
     implicated, see Duggan, 743 F.2d at 73. However, we believe 
     that this argument would not be well-founded.
       The expanded definition still would be limited to 
     collecting foreign intelligence for the ``international 
     responsibilities of the United States, [and] the duties of 
     the Federal Government to the States in matters involving 
     foreign terrorism.'' Id. at 73 (quoting Senate Report at 14). 
     The individuals covered by S. 2586 would not be United States 
     persons, and the ``international terrorism'' in which they 
     would be involved would continue to ``occur totally outside 
     the United States, or transcend national boundaries in terms 
     of the means by which they are accomplished, the persons they 
     appear intended to coerce or intimidate, or the locale in 
     which their perpetrators operate or seek asylum.'' 50 U.S.C. 
     Sec. 1801(c)(3). These circumstances would implicate the 
     ``difficulties of investigating activities planned, directed, 
     and supported from abroad,'' just as current law implicates 
     such difficulties in the case of foreign intelligence 
     services and foreign-based terrorist groups. Duggan, 743 F.2d 
     at 73 (quoting Senate Report at 14). To overcome those 
     difficulties, a foreign intelligence investigation ``often 
     [will be] long range and involve[] the interrelation of 
     various sources and types of information.'' Id. at 72 
     (quoting Keith, 407 U.S. at 322). This information frequently 
     will require special handling, as under the procedures of the 
     FISA court, because of ``the need to maintain the secrecy of 
     lawful counterintelligence sources and methods.'' Id. at 73 
     (quoting Keith, 407 U.S. at 322). Furthermore, because in 
     foreign intelligence investigations under the expanded 
     definition ``[o]ften . . . the emphasis . . . [will be] on 
     the prevention of unlawful activity or the enhancement of the 
     government's preparedness for some possible future crisis or 
     emergency,'' the ``focus of . . . surveillance may be less 
     precise than that directed against more conventional types of 
     crime.'' Id at 73 (quoting Keith, 407 U.S. at 322). 
     Therefore, the same interests and considerations that support 
     the constitutionality of FISA as it now stands would provide 
     the constitutional justification for the S. 2586.
       Indeed, S. 2586 would add only a modest increment to the 
     existing coverage of the statute. As the House Committee 
     Report on FISA suggested, a ``group'' of terrorists covered 
     by current law might be as small as two or three persons. 
     H.R. Rep. No. 95-1283, at pt. 1, 74 and n.38 (1978). The 
     interests that the courts have found to justify the 
     procedures of FISA are not likely to differ appreciably as 
     between a case involving such a group of two or three persons 
     and a case involving a single terrorist.
       The events of the past few months point to one other 
     consideration on which courts have not relied previously in 
     upholding FISA procedures--the extraordinary level of harm 
     that an international terrorist can do to our Nation. The 
     touchstone for the constitutionality of searches under the 
     Fourth Amendment is whether they are ``reasonable.'' As the 
     Supreme Court has discussed in the context of ``special needs 
     cases,'' whether a search is reasonable depends on whether 
     the government's interests outweigh any intrusion into 
     individual privacy interests. In light of the efforts of 
     international terrorists to obtain weapons of mass 
     destruction, it does not seem debatable that we could suffer 
     terrible injury at the hands of a terrorist whose ties to an 
     identified ``group'' remained obscure. Even in the criminal 
     context, the Court has recognized the need for flexibility in 
     cases of terrorism. See Indianapolis v. Edmond, 531 U.S. 32, 
     44 (2000) (``the Fourth Amendment would almost certainly 
     permit an appropriately tailored roadblock set up to thwart 
     an imminent terrorist attack''). Congress could legitimately 
     judge that even a single international terrorist, who intends 
     ``to intimidate or coerce a civilian population'' or ``to 
     influence the policy of a government by intimidation or 
     coercion'' or ``to affect the conduct of a government by 
     assassination or kidnapping,'' 50 U.S.C. Sec. 1801(c)(2), 
     acts with the power of a full terrorist group or foreign 
     nation and should be treated as a ``foreign power'' subject 
     to the procedures of FISA rather than those applicable to 
     warrants in criminal cases.
       Thank you for the opportunity to present our views. Please 
     do not hesitate to call upon us if we may be of additional 
     assistance. The Office of Management and Budget has advised 
     us that from the perspective of the Administration's program, 
     there is no objection to submission of this letter.
           Sincerely,
                                                 Daniel J. Bryant,
                                       Assistant Attorney General.

  Mr. KYL. Mr. President, I would like to advise Members that under the 
unanimous consent agreement for the consideration of this bill there is 
a period of 2 hours general debate and 4 hours equally divided on the 
Feinstein amendment. We would like to ask Members who have comments to 
make about this legislation to come to the floor and express themselves 
so that we can conclude this bill today under the unanimous consent. I 
will continue to discuss the bill. But if other Members would like to 
come, I will yield the floor to them. I would ask that those who have 
amendments that are authorized by the unanimous consent agreement to 
lay those amendments down so Members who wish to speak to those 
amendments could also address that.
  In the meantime, let me continue some of the conversation Senator 
Schumer and I had before. We are talking about a bill which would plug 
a loophole in the existing law--the Foreign Intelligence Surveillance 
Act--which currently authorizes warrants to be obtained in two specific 
situations. We make it clear that there is a third situation as well. 
The two specific situations are where you either have somebody you 
suspect is involved in international terrorism because they work for a 
foreign government--that is a situation like the old Soviet spy--or 
they work for some international terrorist organization. Remember that 
this law was created at the time when we had organized groups such as 
the Red Brigade and the Meinhof gang, and those types of groups. That 
is why those two definitions in the statute were included in the way 
they were. What was not anticipated is that we would also have people 
coming from abroad to the United States to commit acts of terrorism 
against American citizens as part of this rather amorphus Islamic Jihad 
movement rather than an organization of people affiliated around a 
culture or an idea or a movement.
  As a result, the statute needs to include that third group of people, 
as we know, after September 11. We have specific cases of people in 
which warrants were sought but were not obtained because we couldn't 
make that connection to either a specific country or a very specific 
terrorist organization. Instead, the individual had relationships with 
various people and organizations involved in terrorism but certainly we 
couldn't say he was a card-carrying member in the sense that the 
statute was originally drafted. So the same requirements, as Senator 
Schumer said, would pertain. It doesn't apply to U.S. citizens. It only 
applies to foreign terrorism. But it would include a person coming here 
from another country--not a U.S. citizen--and we have probable cause to 
believe is engaged in or about to engage in an act of terrorism.
  In that case, the law enforcement authorities can go to the court and 
seek a warrant just as they do in any other criminal court. But the 
difference here is the Foreign Intelligence Surveillance Act. One of 
the reasons a special

[[Page S5904]]

court is set up for that is because the information which the Justice 
Department frequently presents is highly classified. Clearly, here you 
are dealing with foreign threats--either an international spy spying on 
us from another country or some kind of terrorist like Zacarias 
Moussaoui, and the information you have that enables the warrant to be 
sought was obtained obviously through intelligence work. You don't want 
to compromise either the sources or the methods of intelligence. As a 
result, you can't just file publicly in the regular court system for a 
warrant.
  That is why the Foreign Intelligence Surveillance Act court was 
established. These are judges just like any other judge, but they have 
special intelligence clearances. They have been cleared to handle 
classified material. By the rules of the court, that material is kept 
in the court. Once allegations have been filed against people, then the 
matter can be debated in camera, which is to say in private--not in 
public hearings. Proceedings remain classified, at least until the 
matter is included; perhaps thereafter as well.

  This is the way in which these highly sensitive intelligence matters 
are handled. It takes a special procedure and a special court to do 
that. But there is nothing antithetical to a constitutional right 
simply because we have to handle it that way.
  There are other situations, as well, in which in our court system can 
handle things nonpublicly. There are sometimes sensitive matters 
between litigants that have to be handled in camera; that is to say, in 
effect in the judge's chambers and not out in public. Certainly, I 
think everybody can recognize that in some of the big spy cases and 
international terrorism cases you just can't take the evidence you 
gathered by the intelligence mechanism which we have and produce all of 
that information in open court. That is why you have these special 
procedures. But the underlying legal requirements to obtain the warrant 
remain essentially the same. They are slightly different in the 
classified court than in a regular court.
  In all candor, they are a little bit easier to obtain. But the basic 
element of probable cause and belief that a crime is being committed or 
is about to be committed or is planned remains. Nothing is changed.
  As Senator Schumer pointed out, our legislation doesn't change 
anything relating to the standard of proof, the burden of proof, or 
anything of that sort in the existing law that works so well. What we 
do is ensure that the warrant can be obtained not just against the spy 
for a specific country, or the terrorist whom you can identify as a 
member of a particular terrorist organization--sort of an anachronistic 
concept in today's terrorist situation--but also pertains to the non-
U.S. citizen, a foreign person who comes here from abroad with the 
intent to commit some act of terrorism against U.S. citizens.

  When you have those elements, you have the same foreign terrorist 
nexus to the law that our Constitution permits included within the 
Foreign Intelligence Surveillance Act for purposes of obtaining 
warrants or obtaining other surveillance of the individuals. That is 
all we do. That is all that is done by this legislation.
  So those of us--including I think every one of us on the Judiciary 
Committee--who consider ourselves civil libertarians need not be 
concerned that this statute or that this legislation, in any way, would 
impact on our constitutional rights, nor that it would diminish the 
constitutional rights of non-U.S. persons who are not engaged in 
terrorism. But if we have probable cause to believe you are engaged in 
an act of terrorism, then, yes, you would be subject to provisions of 
this law.
  This legislation has an interesting history, as I alluded to earlier, 
because it was assigned to the Intelligence Committee, and it was 
almost included as a part of the Intelligence Authorization Act of last 
year. And the chairman of the Intelligence Committee this year was kind 
enough to offer to include it in this year's legislation as well.
  Since we were able to also have the bill marked up in the Judiciary 
Committee and brought to the floor as a result of that markup, that was 
not deemed necessary. That is why the bill is here--actually as a 
result of action by the Judiciary Committee.
  So both the Intelligence Committee and the Judiciary Committee have 
been involved in this legislation, the former having a hearing and the 
latter having marked up the bill. Having been a member of the 
Intelligence Committee and sitting, as I do, on the Judiciary 
Committee, I can tell you it was also the subject of additional 
comments and hearings that were held for broader purposes of examining 
the terrorism issue. That is why I mentioned the fact that the 
legislation had actually been supported publicly by various Government 
officials who testified before either the full Judiciary Committee or 
the subcommittee I chair on terrorism and technology. They had 
testified before our committee on terrorism issues generally, and I 
specifically asked whether they supported the legislation in question; 
the response to the questions, of course, was that they did.
  Another interesting hearing, which was a joint hearing, as I recall, 
between the Judiciary and the Intelligence Committees had testimony 
from Coleen Rowley, referred to by Senator Schumer earlier. You will 
recall, she was the agent from Indianapolis who was very exercised 
about the fact that she could not get a warrant against Zacarias 
Moussaoui and complained bitterly that the FBI headquarters had 
prevented her from doing that. She thought the conditions warranted the 
issuance of the warrant.
  It is a debatable point. But it would not have been debatable if our 
proposal had been law. It would have been very clear. We had the 
probable cause. The only question was, Can we tie this person to some 
international terrorist organization? As I said before, we spent a lot 
of time and a lot of effort trying to run around tracing his contacts 
with Chechen rebels, and at the end of the day it just was not specific 
enough to be able to use the statute to get the warrant against him.

  Right after 9/11, when essentially the same warrant was sent forward, 
then we had additional information of contacts this individual had, as 
a result of which the warrant was obtained. But that would not have 
occurred had September 11 not occurred--or at least it is doubtful it 
would have occurred. Let me put it that way.
  Would that have prevented the September 11 attacks? No one knows for 
sure. I suspect not, but at least a plausible case can be made that we 
would have known a lot more about the planning of September 11 had we 
been able to get into Moussaoui's computers and questioned him and 
ascertained what he was up to and, furthermore, traced the contacts we 
were later able to trace from Moussaoui to others involved in the al-
Qaida movement that would have painted a much clearer picture of what 
was being planned prior to September 11 than the information that we 
had.
  The point is, we do not want to be in that position again. So whether 
it would have prevented 9/11 is really beside the point. We had the 
ability to get information which can protect the American people 
against acts of international terrorism. Why wouldn't we want to take 
advantage of that opportunity?
  As I said, the Judiciary Committee unanimously voted this bill out of 
committee to send it to the floor so we could deal with that precise 
issue. I am certain my colleagues will agree that this is important to 
do and that we will do it a little bit later on this day. When we do, I 
think we can be very proud of the fact that this is another in a series 
of things we will have done to help prepare our country against the 
international terrorist threat.
  We know that in the whole matter of homeland security you can only 
provide so much defense, that it really is about taking the fight to 
the enemy. Because our country is so big, it is so open, we have such 
broad freedoms in this country--and thankfully so--it is virtually 
impossible to absolutely protect us from a terrorist who would come 
here to do us harm. One of the ways we can help to protect against that 
is by getting good intelligence on people who come here from abroad and 
who we find out mean us ill. This provision today is a way to help us 
do that.
  So this is a tool in the war on terror that will really help us 
ensure that we deal with as many of these threats as we possibly can. 
Are we always going to find out enough to even get a warrant? Not 
necessarily so. That is why

[[Page S5905]]

the efforts of the administration to go after these terrorists all 
around the world are so important.
  But what has helped us in that regard is that we have had cooperation 
from other governments. And as much as we have been critical of some of 
our allies for not supporting us as we would like to have had them do--
such as the situation in Iraq--I will tell you, virtually every country 
in the world has been supportive in one way or another in supplying us 
with information about terrorists in their countries or terrorists of 
whom they are aware who might be affiliated in some way in this 
international movement that threatens us all.
  One of the things we discovered, however, in talking to legislators 
and parliamentarians from these other countries, and intelligence 
officials, and law enforcement officials, is that they have legal 
inhibitions just like the United States does. Their laws only permit 
them to go so far in tracking down these terrorists in their country.

  In the case of Germany, for example, which has been very helpful to 
the United States, they were able to change one of their laws to make 
it easier for them to go after these terrorists. There was another law 
they also needed to change, and at last count I do not recall whether 
they were able to get that done.
  But the point is, if we are able to change our law, as we did with 
the Border Security Act and the USA Patriot Act, we can demonstrate a 
seriousness of purpose to these other countries to convince them that 
all of us need to make these kinds of changes in our laws so that we 
can go after these terrorists.
  The analogy is, we won the war in Iraq in a most amazing way. We sent 
our troops with the best equipment and the best training ever in the 
history of the world. And I wish I could share some of that, the 
information about that equipment publicly. But I think we have all, 
through the embedded reporters, come to appreciate how just one 
American soldier, with all of the technology at his disposal, can make 
a tremendous difference.
  We also have helped protect them. They have special flak vests, 
bulletproof vests that protect them against a lot of incoming. We try 
to protect them with the special chemical gear in the event of a 
chemical attack, and so on.
  We want to send our troops into battle protected in the very best way 
and with the very best means of accomplishing their mission. Why would 
we deny our law enforcement and intelligence officials the very same 
kinds of weapons in the battle that we send them out to win?
  I guarantee you that the next time there is a case like Zacarias 
Moussaoui or some other terrorist about whom we have some information 
but we don't go after strongly enough, and he does something to us, the 
recrimination will be great. Oh, the accusations will fly: Why didn't 
we do something about that when we could have?
  So our response today is going to be: We did. We came together as a 
Senate and we enacted another law, another piece--it is a small piece, 
but it is an important piece--to help us fight this war on terror. We 
did not shirk our responsibility. When we became aware of the loophole 
in the law, we acted to fill it.
  Now, we have to do that in order to be able to take this credit, 
obviously, but I believe strongly that the House of Representatives 
will act similarly and that we will be able to get this to the 
President's desk in very short order, so at the end of the day today we 
can say we have done something very important to advance our ability to 
fight the war on terror and protect the American people.
  Again, I urge my colleagues, if there is no opposition--and I hope 
there isn't--that is fine. But anybody, either in opposition or in 
favor of the legislation, come forward so that we can have whatever 
debate is necessary. And I especially ask the proponents of amendments 
to come forward so that we can begin to debate them.
  I will take this moment to press some of the comments that will be 
made about the two amendments.
  Senator Feingold has proposed an amendment that we will accept and 
the Senate should accept which requires that the warrants obtained 
under this law generally--not just the provision we are talking about 
today, but if we obtain a warrant under either of the other provisions 
as well, that the information be compiled and shared with the Senate; 
specifically, that the information be sent to the Intelligence 
Committee--it is classified information, obviously--and that the 
cleared people on the Judiciary Committee who are appropriate to view 
the information have full access to that so we can evaluate whether 
these provisions are being used, abused, how often they are being used, 
how effectively, and so on. I believe his amendment calls for an annual 
report which we could examine. That is very useful information for us 
to have.
  One thing we found was that prior to 9/11, this statute had not been 
used very often. It is not a particularly easy statute with which to 
comply. You do really have to have your information together before you 
seek the warrant because you don't ever want to be turned down. I don't 
believe the Justice Department ever was turned down. That is evidence 
of the fact that they were careful. Since 9/11, there have been a lot 
more cases in which this has been used. That information will be 
available to us, and therefore I will support Senator Feingold in 
offering the amendment.
  The other amendment that is in order under the unanimous consent 
agreement, with all due respect to my great friend and colleague 
Senator Feinstein, would gut the bill and would be bad. It would really 
undermine the whole FISA process. We should reject it. I know she 
offers this amendment not for that purpose. Of all the people in the 
Senate with whom I have worked who share my strong conviction that we 
need to do everything we can to support our intelligence and law 
enforcement communities, Senator Feinstein is equaled by none. She is 
the ranking member of the Terrorism Subcommittee, and she and I have 
cosponsored numerous bills or amendments designed to enhance law 
enforcement and intelligence capabilities. She is a very strong 
advocate of giving our intelligence and law enforcement communities the 
very best tools possible.
  She just has a different point of view about how this FISA warrant 
process should work. I will let her describe it. I will offer my view 
that it has no place in the FISA situation. What her amendment purports 
to do really might have some applicability in a court setting because 
it talks about a presumption. As lawyers know, presumptions arise when 
you have two parties to litigation and one party comes forward with a 
particular piece of evidence or allegation which then changes the 
burden of going forward with the evidence or the burden of proof in the 
case. A presumption is established, and then the other side has to 
overcome it. That has no place in an ex parte hearing where the 
Government is seeking a warrant against a party who is not even aware 
that the warrant is being sought. Obviously, you don't get a search 
warrant by notifying him that you are about to do that.

  What her amendment pertains to does not really have application to 
the situation presented in an application for a FISA warrant and would 
seriously undermine the Government's ability to obtain it. You could 
either read it one of two ways. Either it would be totally 
meaningless--and I know that that is not intended--or else it would be 
very pernicious because it would create the suggestion in court that 
the material presented to it is not, is no more than a presumption, 
that it is not to be accepted on its face.
  Specifically, the Government would be asserting that the person 
against whom the warrant is sought is a non-U.S. citizen, a foreign 
person under the definition of the statute. If that information is 
presented in sufficient form for a court to issue the warrant, it makes 
no sense at all to have the information merely a presumption that the 
individual is a foreign person. How does that advance the ball? How 
does it help the court? How does it protect anybody? The court is still 
going to have to answer the very same question: Do I believe the 
information the Government is presenting to me that this is a non-U.S. 
citizen? Either he is or he isn't. It is not a matter of a presumption.
  If the court is not convinced that the Government's information is 
correct,

[[Page S5906]]

then the court is not going to issue the warrant. It would be improper 
to do so. If the court is convinced that the person is a non-U.S. 
citizen, then the court can issue the warrant if the other requirements 
are met. I don't believe Senator Feinstein attacks the other 
requirements.
  Either you are a foreign-born person, or a non-U.S. person, or you 
are not. The court has to make that decision. And creating a 
presumption about it is really irrelevant to this particular process. 
If it is more than irrelevant, there is some kind of a problem. 
Obviously, you don't want the court to have to somehow independently 
verify the information that is presented to it by the Justice 
Department. That is not a part of; that is not the way the court works. 
The court does not do this sua sponte, or on its own. The court has the 
information before it, and it either has to accept the information or 
not. It doesn't have to accept the Justice Department's word for it. 
The Justice Department cannot simply make the assertion. It has to 
offer the proof. If the proof is not satisfactory, the warrant will not 
issue. Later, if it is found that the evidence was not satisfactory, 
then there is always some question about whether the evidence obtained, 
of course, could be used, say, in a later prosecution.
  The bottom line is that that amendment does not help. It could 
seriously hurt the application of the entire FISA statute. It is not 
just limited to the amendment we are offering today. I urge my 
colleagues, when the time comes, to reject the Feinstein amendment, not 
because it is not well intended--I am confident that it is--but, 
rather, that its effects are ill understood at best and, at worst, 
would be pernicious to the application of the statute.
  I have said all I need to say at this point on the legislation. I 
would note that time will run against the time allotted under the bill. 
Since both Senator Schumer and I control the time, anyone who wishes to 
come to speak to the legislation either for or against, I ask unanimous 
consent that if neither Senator Schumer nor I are here, they should be 
permitted to do so without specific acquiescence by Senator Schumer or 
myself.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Unless there is someone else who wishes to speak at this 
time, I ask unanimous consent that the time consumed in the quorum call 
be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.



[Congressional Record: May 8, 2003 (Senate)]
[Page S5913-S5914]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr08my03-102]                         



 
            FOREIGN INTELLIGENCE SURVEILLANCE ACT--Continued


                           Amendment No. 536

  (Purpose: To establish additional annual reporting requirements on 
  activities under the Foreign Intelligence Surveillance Act of 1978)

  Mr. FEINGOLD. Mr. President, I call up amendment No. 536.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Wisconsin [Mr. Feingold] proposes an 
     amendment numbered 536.

  Mr. FEINGOLD. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

  (Purpose: To establish additional annual reporting requirements on 
  activities under the Foreign Intelligence Surveillance Act of 1978)

       At the end, add the following:

     SEC. 2. ADDITIONAL ANNUAL REPORTING REQUIREMENTS UNDER THE 
                   FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

       (a) Additional Reporting Requirements.--The Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.) is amended--
       (1) by redesignating--
       (A) title VI as title VII; and
       (B) section 601 as section 701; and
       (2) by inserting after title V the following new title VI:

                   ``TITLE VI--REPORTING REQUIREMENT


                ``annual report of the attorney general

       ``Sec. 601. (a) In addition to the reports required by 
     sections 107, 108, 306, 406, and 502 in April each year, the 
     Attorney General shall submit to the appropriate committees 
     of Congress each year a report setting forth with respect to 
     the one-year period ending on the date of such report--
       ``(1) the aggregate number of non-United States persons 
     targeted for orders issued under this Act, including a break-
     down of those targeted for--
       ``(A) electronic surveillance under section 105;
       ``(B) physical searches under section 304;
       ``(C) pen registers under section 402; and
       ``(D) access to records under section 501;
       ``(2) the number of individuals covered by an order issued 
     under this Act who were determined pursuant to activities 
     authorized by this Act to have acted wholly alone in the 
     activities covered by such order;
       ``(3) the number of times that the Attorney General has 
     authorized that information obtained under this Act may be 
     used in a criminal proceeding or any information derived 
     therefrom may be used in a criminal proceeding; and
       ``(4) in a manner consistent with the protection of the 
     national security of the United States--
       ``(A) the portions of the documents and applications filed 
     with the courts established under section 103 that include 
     significant construction or interpretation of the provisions 
     of this Act, not including the facts of any particular 
     matter, which may be redacted;
       ``(B) the portions of the opinions and orders of the courts 
     established under section 103 that include significant 
     construction or interpretation of the provisions of this Act, 
     not including the facts of any particular matter, which may 
     be redacted.
       ``(b) The first report under this section shall be 
     submitted not later than six months after the date of the 
     enactment of this Act. Subsequent reports under this section 
     shall be submitted annually thereafter.
       ``(c) In this section, the term `appropriate committees of 
     Congress' means--
       ``(1) the Select Committee on Intelligence and the 
     Committee on the Judiciary of the Senate; and
       ``(2) the Permanent Select Committee on Intelligence and 
     the Committee on the Judiciary of the House of 
     Representatives.''.
       (b) Clerical Amendment.--The table of contents for that Act 
     is amended by striking the items relating to title VI and 
     inserting the following new items:


[[Page S5914]]



                   ``TITLE VI--REPORTING REQUIREMENT

``Sec. 601.  Annual report of the Attorney General.

                      ``TITLE VII--EFFECTIVE DATE

``Sec. 701.  Effective date.''.

  Mr. FEINGOLD. Mr. President, this amendment would simply require the 
Department of Justice to report to the Intelligence Committee and the 
Judiciary Committee about the use of this new lone-wolf exception to 
FISA. With this information, Congress will be better able to assess the 
need for reauthorization as the sunset provision in the bill 
approaches. I am pleased that the amendment has been agreed to by the 
sponsors of the bill.
  I ask unanimous consent that this amendment be agreed to under the 
previous order.
  The PRESIDING OFFICER. Under the previous order, the amendment is 
agreed to.
  The amendment (No. 536) was agreed to.
  Mr. FEINGOLD. Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, this morning I noted in detail the provisions 
of this amendment, why I supported the amendment and why I thought it 
was a good thing, and therefore any reference to further discussion on 
it can be made to the comments I made on it this morning.
  Mr. FEINGOLD. Mr. President, I thank the Senator from Arizona for his 
cooperation in working together to provide this measure of 
accountability to this important piece of legislation.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


[Congressional Record: May 8, 2003 (Senate)]
[Page S5914-S5928]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr08my03-103]                         




 
                           amendment no. 537

                   (Purpose: To propose a substitute)

  Mrs. FEINSTEIN. Mr. President, I call up amendment No. 537.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from California [Mrs. Feinstein], for herself 
     and Mr. Rockefeller, Mr. Leahy, Mr. Edwards, Mr. Feingold, 
     Mr. Dodd, Mr. Wyden, and Mrs. Boxer, proposes an amendment 
     numbered 537.

  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:
       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. PRESUMPTION THAT CERTAIN NON-UNITED STATES PERSONS 
                   ENGAGING IN INTERNATIONAL TERRORISM ARE AGENTS 
                   OF FOREIGN POWERS FOR PURPOSES OF THE FOREIGN 
                   INTELLIGENCE SURVEILLANCE ACT OF 1978.

       (a) Presumption.--(1) The Foreign Intelligence Surveillance 
     Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting 
     after section 101 the following new section:


``Presumption of treatment of certain non-united states persons engaged 
         in international terrorism as agents of foreign powers

       ``Sec. 101A. Upon application by the Federal official 
     applying for an order under this Act, the court may presume 
     that a non-United States person who is knowingly engaged in 
     sabotage or international terrorism, or activities that are 
     in preparation therefor, is an agent of a foreign power under 
     section 101(b)(2)(C).''.
       (2) The table of contents for that Act is amended by 
     inserting after the item relating to section 101 the 
     following new item:

``Sec. 101A. Presumption of treatment of certain non-United States 
              persons engaged in international terrorism as agents of 
              foreign powers.''.
       (b) Sunset.--The amendments made by subsection (a) shall be 
     subject to the sunset provision in section 224 of the USA 
     PATRIOT Act of 2001 (Public Law 107-56; 115 Stat. 295), 
     including the exception provided in subsection (b) of such 
     section 224.

  Mrs. FEINSTEIN. Mr. President, I rise to offer a substitute amendment 
to S. 113, the Kyl-Schumer FISA bill. I ask you to bear with me because 
the explanation goes on for a while.
  I am also pleased that Senator Rockefeller, the ranking member on the 
Intelligence Committee, and Senator Leahy, the ranking member of the 
Judiciary Committee, are cosponsors of this amendment. I am pleased to 
also acknowledge that Senators Dodd, Edwards, Feingold, Boxer, and 
Wyden are also cosponsors of the amendment.
  Let me try to briefly describe the difference between current law, S. 
113, and my amendment.
  S. 113 is the Kyl-Schumer FISA amendment. First, the Kyl-Schumer 
amendment only applies to non-U.S. persons. I want to make clear that 
it does not cover green card holders under that amendment.
  Under current law, the FISA court may only grant a FISA application 
against a non-U.S. person if the Government can show probable cause 
that the target is working on behalf of a foreign power or a terrorist 
group. The Government also has to certify that it is seeking foreign 
intelligence information that can't be obtained by any other means.
  As I understand the Kyl-Schumer bill, it drops a primary requirement 
for FISA warrants; that is, the individual or the target be agents of a 
foreign power. Under Kyl-Schumer, this prerequisite is gone. That is 
what the so-called lone wolf deals with.
  This would then give the FISA court no discretion to deny 
applications for FISA orders against a true so-called lone wolf. These 
are alleged international terrorists operating completely on their own. 
This is confusing. In other words, current law gives the FISA court no 
discretion to grant FISA orders in closed cases. But S. 113--Kyl-
Schumer--gives judges no discretion to deny FISA the FISA court 
application in closed cases. Both of these circumstances raise certain 
problems.
  My amendment is essentially a compromise. It grants the court a 
presumption. So the FISA court may presume that a target is an agent of 
a foreign power, or the court may choose not to invoke that 
presumption. The bottom line is the court is given some discretion.
  In other words, the court may choose to grant a FISA order despite a 
lack of evidence that a target is working on behalf of a foreign power. 
Similarly, the court may choose to deny an order against a true lone 
wolf. It is up to the court.Federal judges in title III criminal cases 
have similar discretion. Although the standard there is about whether 
the Government can show probable cause that a person has committed a 
crime or will commit a crime, that is a very different standard than 
under FISA. Federal judges have not abused that discretion and, in 
fact, in rare cases have been able to act as a check on the Government 
to prevent overreaching and abuse.
  Why do the sponsors of S. 113 show less trust for FISA judges in the 
FISA content? In fact, such trust is even more warranted in the FISA 
content. Not only is the FISA process secret and hard to keep 
accountable, but the FISA court has only denied one FISA application in 
its 25-year history.
  Such a lack of trust is even less necessary given the fact that even 
if the Government is unable to get a FISA order against a target, it 
remains completely free to use all the tools of the criminal process 
under title III to get search and wiretap orders against the target.
  The bottom line is, our amendment preserves FISA's agent-of-a-
foreign-power requirement without jeopardizing our security. Our 
amendment allows the Government to get FISA orders against suspected 
international terrorists even in close cases where the Government 
cannot show the target is working on behalf of a foreign power or 
terrorist group. However, unlike S. 113, the amendment also ensures the 
FISA court is more than a rubberstamp and has discretion to deny a FISA 
application if the Government overreaches by attempting to use FISA 
authority.
  I now would like to discuss the issue in somewhat greater detail.
  Mr. President, at times of crisis, it is possible the Government can 
overreach in both legislative and executive decisionmaking with respect 
to our criminal and intelligence laws. That can have unfortunate 
consequences for both our security and individual rights.
  The Foreign Intelligence Surveillance Act, or FISA, was passed in 
1978. It was the first statute ever passed in

[[Page S5915]]

the United States to provide a statutory procedure for the 
authorization of clandestine activities of our Government to obtain 
foreign intelligence.
  Before it passed, then-Attorney General Griffin Bell testified in 
favor of the bill before Congress. He noted the ``delicate balance'' 
that needed to be struck between ``adequate intelligence to guarantee 
our Nation's security on the one hand and preservation of basic human 
rights on the other.''
  He stated:

       In my view this bill strikes the balance, sacrifices 
     neither our security nor our civil liberties, and assures 
     that the abuses of the past will remain in the past. . . .

  Now, what does he mean by ``abuses of the past''? Decades earlier, 
America saw what happened in World War II with Japanese Americans who 
were removed from their homes, their businesses, and their schools, and 
placed in interment camps in violation of their rights. We do not want 
that to happen ever again in this country.
  I am not saying this is an identically similar situation. I am 
concerned, however, about zealousness and overreach because now we are 
engaged in a global war on terror. In conducting this war, we must be 
careful that we not overreach when the temptations are so great.
  This kind of war is unprecedented for the United States. It is 
unprecedented and unbelievable that anybody could fly four big planes, 
three into buildings, and kill 3,000 people. This is beyond our ken. 
America and Americans want to protect our homeland and our individuals, 
notwithstanding this is an entirely secret process and, as such, the 
laws that govern it must be balanced, must be carefully crafted, and 
must prevent it, lest someone use them to overreach. It has happened in 
the past, so you can assume it could well happen in the future. This is 
especially true, as I said, with FISA.
  I supported reporting S. 113, the Kyl-Schumer FISA bill we are 
debating, in the Judiciary Committee. I agree with my colleagues--there 
is a clear problem here, needing a solution; namely, the potential 
difficulty the Government may have in obtaining FISA orders against 
certain international terrorist so-called ``lone wolves.'' These are 
people who have no affiliation with a terrorist group, no affiliation 
as an agent of a foreign power.

  Under FISA, a ``foreign power'' is simply defined as ``two people 
conspiring,'' so it is a very easy goal and target. A problem arises in 
cases where the Government knows of a foreign individual who may be 
involved in terrorism but cannot yet prove a connection to foreign 
groups or governments. This problem stems from the proof requirement 
under FISA in current law.
  To get a FISA order against a foreign visitor to the United States 
under current law, the Government needs to show two key things:
  First, that the individual is a foreign power or an agent of a 
foreign power. Again, that is defined as two people working together. A 
foreign power could be a foreign government or an international 
terrorist group as defined.
  And second, that it is seeking ``foreign intelligence information'' 
that cannot be obtained by other means.
  This symbolizes the very purpose of FISA: to gather foreign 
intelligence. Criminal courts are for criminal cases, and the FISA 
court was set up specially to deal with cases where the Government 
wishes to obtain information or intelligence about the activities of 
foreign powers.
  The problem is this: Under this current standard, it may well be 
difficult for the Government to meet the foreign power requirement if 
the Government does not yet have enough evidence of a connection to a 
foreign group, entity, or power. Some have described this problem as 
the ``false lone wolf'' problem, where you have an individual who may 
appear at first to be operating as a ``lone wolf,'' even though that 
individual is really an agent of a larger group.
  That was one of the alleged problems with the pre-September 11 
investigation into Zacarias Moussaoui. The FBI did not learn until 
after September 11 that Moussaoui had links to al-Qaida and may have 
been the intended 20th hijacker.
  As a result, the Government may have been reluctant to request a FISA 
warrant because they did not think the intelligence they had could 
connect Moussaoui to an international group or government.
  So there is no question in my mind that we need to amend FISA to fix 
this problem. And I applaud my colleagues, Senators Kyl and Schumer, 
for working so diligently to solve it. But the Kyl-Schumer bill also 
redefines ``agent of a foreign power'' to include any non-U.S. 
individual preparing to engage in international terrorism. In other 
words, it essentially eliminates the foreign power requirement 
altogether.
  This change would allow the Government to get a FISA search or 
wiretap order against any foreign individual in the United States who 
is preparing to engage in international terrorism, regardless of 
whether the person is really an agent of a foreign government or terror 
group, and regardless of whether there is any potential to gather 
foreign intelligence.
  Again, it is this foreign intelligence component that defines the 
very purpose of FISA. As a result, I believe this change goes too far.
  Under S. 113, for the first time ever, the Government will be able to 
use FISA against any non-U.S. citizen preparing to engage in 
international terrorism--even individuals whom the Government knows 
have no connection at all to anyone else engaged in international 
terrorism.
  There would be no check at all on the Government's use of FISA 
against many common criminals who just happen to be noncitizens and, 
therefore, the Government might be able to use this secret FISA court 
to obtain warrants that: (A) are easier to get; (B) last longer; and 
(C) are less subject to normal judicial scrutiny than criminal warrants 
under title III or regular criminal statutes.
  FISA wiretap orders, for instance, are good for 4 times longer than 
normal criminal warrants--120 days versus 30 days--giving the 
Government a clear incentive to use this process even against common 
criminals. These orders can be reauthorized indefinitely each year for 
1-year periods. The same is true for physical search orders under FISA, 
although these are good for 90 days, and 1-year extensions are subject 
to the requirement in current law that the judge find ``probable cause 
to believe that no property of any United States person will be 
acquired during the period.''

  Under FISA, as modified by S. 113, the Government must show by 
probable cause only that a foreign national is engaged in international 
terrorism or preparation thereof. You might listen to that and you 
might think: What is wrong with that? We all want that. I want it, too. 
But in many instances, this probable cause standard will be easier to 
meet than the traditional criminal probable cause standard.
  For example, for a title III wiretap, the Government must show that 
there is probable cause to believe an individual is about to commit or 
has committed an enumerated crime. To get a search order, the 
Government must show probable cause that the search will result in the 
discovery of offending items connected with the criminal activity. 
However, under S. 113, the Government need only show probable cause 
that the person is engaging in ``activities in preparation'' for 
international terrorism. Many ``activities in preparation'' for 
international terrorism are not crimes.
  For example, a foreign visitor who bought a one-way airline ticket 
and a box cutter would arguably qualify as a person engaging in 
activities in preparation for international terrorism, even in the 
absence of other evidence that he or she might be an international 
terrorist.
  However, these two activities, taken alone, would clearly not 
demonstrate probable cause that the person would commit a crime. These 
activities may be entirely innocent. As a result--and I don't believe 
this is anyone's intent--S. 113 could easily serve as a clarion call to 
all aggressive prosecutors who want to listen in on or search the homes 
of targets of investigation without ever having to prove that any crime 
may be committed or that foreign intelligence may be gathered.
  By allowing FISA to be used against all solo suspected international 
terrorists, S. 113 runs counter to the whole purpose of FISA, which is 
to allow the Government to get foreign intelligence by searching and 
wiretapping people

[[Page S5916]]

working for other countries and groups against U.S. interests.
  S. 113 essentially eliminates any discretion the FISA court has to 
turn down a case--this is my big problem with it--thus enabling the 
Government to overreach. I am not saying that it will overreach. But 
because it is a secret process, the laws we pass have to prevent that 
overreach.
  By nullifying the requirement that the target of an investigation has 
some connection, any connection, to a foreign entity or government, 
this legislation essentially makes the FISA court a rubberstamp. The 
court will be required to grant a FISA order, even if there is no 
probable cause to indicate a connection to a foreign power; indeed, 
even if there is clear evidence that the individual is operating 
completely on their own. In fact, even if the Government admits that 
the terrorist is operating alone and that there is no foreign 
intelligence to be gathered, the FISA court must still grant the order 
under S. 113.
  That is not what FISA is meant to be. Put simply: The 
legislation goes too far.

  Let me be clear: We who are sponsoring this amendment are not trying 
to protect international terrorists, and our amendment does nothing to 
protect them. The vast resources of the Federal Government and the 
powerful tools of the criminal process remain available to target and 
investigate any terrorist against whom the Government is unable to get 
a FISA order.
  What our amendment will do is retain the original purpose of FISA--
the seeking of foreign intelligence. S. 113 would not.
  Our amendment is simple. Rather than simply eliminating the foreign 
power requirement altogether, our amendment would allow the FISA court 
judge to presume that a foreign terrorist is also an agent of a foreign 
power, even if there is no evidence supporting that presumption. On the 
other hand, under our amendment, the FISA court could also refuse to 
presume this connection in troubling cases of Government overreach. 
Thus, a FISA court judge would have some discretion.
  What does this mean? In the Moussaoui case, for instance, even though 
the Government did not yet have evidence that Moussaoui was acting as 
an agent of a foreign power, both our amendment and S. 113 would allow 
the Government to get a warrant. The only difference is that our 
amendment would allow the judge to carefully look at the case and, if 
the court determined Moussaoui was clearly acting alone, the warrant 
could be denied.
  I know some will argue that this casts too much doubt upon the 
outcome of cases and that, as a result, FISA orders will be too hard to 
obtain. But in most cases, if you think about it, the outcome will be 
exactly the same, whether under our amendment or the underlying bill.
  Others may argue that this amendment might give liberal judges too 
much power to deny FISA orders in every case or, as Senator Schumer put 
it today, ``inject gray into the statute.'' But in reality, I believe 
these judges should have some discretion. This is an entirely secret 
process. By providing this presumption, we give judges that discretion. 
That is, in fact, a good thing.
  Liberal judges can always find ways to deny a FISA order, even under 
S. 113, if they are determined to do so. For instance, a judge could 
simply decide there is no probable cause showing that an individual is 
engaged in international terrorism. That is a requirement in both S. 
113 and our amendment.
  The bottom line is that we can and should preserve the foreign power 
requirement of FISA without jeopardizing our security. Under either 
approach, the Government will be able to get FISA orders against 
international terrorists, even if the Government cannot meet the 
foreign power requirement.
  Bottom line, again: The only difference between the two approaches is 
that our amendment preserves some limited discretion so the FISA court 
could stop the Government from overreaching against those individuals 
who have no connection to a foreign conspiracy. Let me say, if they 
have no connection to a foreign conspiracy, you can get the title III 
criminal warrant.
  I urge my colleagues to support the amendment and, therefore, support 
the underlying purposes of FISA.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mrs. FEINSTEIN. I yield such time as the Senator from Vermont, the 
ranking member of the Judiciary Committee, requires.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I thank the distinguished Senator. I will 
not speak long.
  In times of national stress there is an understandable impulse for 
the government to ask for more power. Sometimes more power is needed, 
but sometimes it is not.
  After the September 11 attacks, we worked together in a bipartisan 
fashion and with unprecedented speed to craft and enact the USA PATRIOT 
Act, which enhanced the government's surveillance powers.
  Now, as we consider S. 113--and we anticipate a possible sequel to 
the USA PATRIOT Act--it is vital for us first to examine and understand 
how Federal agencies are using the power that they already have. We 
must answer two questions: First, is that power being used effectively? 
Our citizens want not only to feel safer, but to be safer. They need 
results, not rhetoric.
  Second, is that power being used appropriately, so that our liberties 
are not sacrificed, the openness of our society and our government are 
preserved, and our tax dollars are not squandered?
  Unfortunately, the FBI and the Department of Justice have either been 
unwilling or unable to help us to answer these basic questions. 
Moreover, the information that we have gleaned on our own through our 
bipartisan oversight efforts has not inspired confidence.
  In February, Chairman Grassley, Chairman Specter and I released a 
detailed report based on the oversight that the Judiciary Committee 
conducted in the 107th Congress. That report distilled our bipartisan 
findings and conclusions from numerous hearings, classified briefings 
and other oversight activities. Our oversight demonstrated the pressing 
need for reform of the FBI. In particular, it focused on the FBI's 
failures in implementing what is already in FISA.
  The administration's response to our bipartisan oversight report has 
been to dismiss it as ``old news'' relating to problems that are all 
already fixed. In short, ``everything is fine'' at the FBI and they 
plan to do nothing to respond to the systemic criticisms in the 
Specter, Grassley, Leahy report. Predictably, however, Congress is 
asked yet again to expand the FISA statute.
  The bill that we are considering, S.113, adopts a ``quick fix'' 
approach. With slick names like the ``Moussaoui fix,'' and the ``lone 
wolf'' bill, it is aimed at making Americans feel safer, but it does 
nothing to address the problems that actually plague our intelligence 
gatherers. It does nothing to fix the real problems that plagued the 
FBI before 9/11 and that continue at the FBI.
  In private briefings, even FBI representatives have stated that they 
do not need this change in the law in order to protect against 
terrorism. They are getting all the warrants they want under the 
current law.
  Sunset provisions, such as the one I helped add during the Judiciary 
Committee markup, allow us to adopt such measures as S. 113 on a 
temporary basis. The reporting requirement that is being added to the 
bill on the floor is another welcome improvement, which will help us to 
ascertain whether this surveillance tool is working properly or not. 
The reporting requirement is similar to those proposed in a bill I 
introduced with Senators Grassley and Specter--S. 436, the Domestic 
Surveillance Oversight Act.
  While there is little evidence that this bill is necessary, it does 
create significant problems. First, it tears FISA from one of its most 
basic moorings. FISA was intended to assist in gathering intelligence 
about foreign powers and their agents. The Kyl-Schumer proposal would 
simply read that requirement out of the law for a whole class of FISA 
cases.

  As introduced, the bill essentially said that a ``person'' is now a 
``foreign power,'' which makes little sense as a matter of logic or 
policy. As reported by the Judiciary Committee, the bill's wording 
makes more sense, but the fundamental policy problem remains.

[[Page S5917]]

  Second, in the rare case of a true ``lone wolf,'' our federal law 
enforcement agents already have potent tools at their disposal, 
including the title III wiretap, the rule 41 search warrant, and the 
grand jury subpoena. These provide ample means to combat isolated 
criminal acts, but with more accountability and judicial supervision 
than the FISA surveillance authorities.
  Far from addressing a true problem, then, all that S.113 would do is 
encourage the use of the secret, unchecked FISA process for an entire 
class of cases that are more appropriately handled as criminal matters.
  To the extent that some believe that there is a problem that needs to 
be addressed, I support the more measured and practical approach that 
Senator Feinstein developed, and that I was pleased to cosponsor. The 
Feinstein approach is to create a statutory presumption to assist the 
FBI in terrorism cases.
  Using this approach, when the government shows probable cause to 
believe that a non-U.S. person is engaging in international terrorism, 
the FISA Court may presume that the person is also an agent of a 
foreign power. This permissive presumption would allow law enforcement 
some extra leeway in international terrorism cases, but without simply 
removing the foreign power nexus from a huge class of FISA matters 
altogether.
  I commend Senator Feinstein for her work on this amendment. I believe 
it is a constructive and reasonable compromise. It would give the FBI 
what it claims to need as a practical matter, to ensure that it can use 
FISA against individuals like Zacarias Moussaoui, whose ties to a 
foreign power may be difficult to prove.
  At the same time, the amendment would preserve some discretion on the 
part of the FISA court to determine that an individual should not be 
subject to surveillance because he is not, in fact, an agent of a 
foreign power. The FISA court should not become an automatic adjunct of 
the executive branch. That would destroy the checks and balances that 
keep us all free. Let's make sure they have the ability to act as a 
court.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. FEINGOLD. Mr. President, I ask the Senator from California to 
yield me some time so I can speak in support of the amendment.
  Mrs. FEINSTEIN. I am happy to yield as much time as the Senator 
requires.
  The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
  Mr. FEINGOLD. Mr. President, I agree with the Senator from California 
that S. 113 is the wrong way to fix the Foreign Intelligence 
Surveillance Act. The approach taken in S. 113 would eliminate the 
current requirement in FISA that the individual who is the target of a 
warrant must be an agent of a foreign power. This means that S. 113 may 
very well result in FISA serving as a substitute for some of the most 
important criminal laws we have in this country. Senator Feinstein's 
permissive presumption amendment would allow the Government to obtain 
FISA warrants against suspected lone wolf international terrorists 
without unnecessarily eliminating an essential element of FISA, and 
that is the agent of a foreign power requirement.
  FISA, as the Senator from California has very carefully and 
effectively pointed out, represents an important exception to 
traditional constitutional restraints on criminal investigations, 
allowing the Government to gather foreign intelligence information 
without having probable cause that a crime has been or is going to be 
committed. I will repeat that. This is something the Government can do 
without having probable cause that a crime has been or is going to be 
committed. That is a major exception to our normal understanding about 
how criminal proceedings should be conducted under our Constitution. 
The courts have permitted the Government to proceed with surveillance 
in this country under FISA's lesser standard of suspicion because the 
power is limited to investigations of foreign powers and their agents.
  Senator Feinstein ably pointed out the history behind this and the 
careful balance that Attorney General Griffin Bell discussed at the 
time, and how important that balance was for such an unusual exception 
to be made to our rules about criminal proceedings.
  S. 113 writes out of the statute a key requirement necessary to the 
lawfulness of intrusive surveillance powers that would otherwise simply 
be unconstitutional.
  FISA's own appellate court, the Foreign Intelligence Surveillance 
Court of Review, discussed in a November 2002 decision why a FISA 
warrant does not require a showing of probable cause of criminal 
activity. The court stated that FISA is constitutional in part because 
it provides ``another safeguard . . . that is, the requirement that 
there be probable cause to believe the target is acting `for or on 
behalf of a foreign power.' '' So this is supposed to be about people 
acting in connection with a foreign power. S. 113, as currently 
drafted, simply eliminates that safeguard.
  Even if S. 113 survived constitutional challenge, it would mean that 
non-U.S. persons could have either electronic surveillance and searches 
authorized against them using the lesser standards of FISA, even though 
there is no conceivable foreign intelligence aspect to their case. S. 
113 will then likely result in a dramatic increase in the use of FISA 
warrants in situations that do not justify such extraordinary 
Government power.
  I think Senator Feinstein's amendment is a thoughtful and reasonable 
alternative to make sure that FISA can be used against a lone wolf 
terrorist, which I commend the Senator from Arizona and the Senator 
from New York for trying to address. But at the same time her amendment 
means we can do this without eliminating the important agent of a 
foreign power requirement. The amendment would create a permissive 
presumption that if there is probable cause to believe a non-U.S. 
person is engaged in or preparing to engage in international terrorism, 
the individual can be considered to be an agent of a foreign power even 
if the evidence of a connection to a foreign power is not clear. The 
use of a permissive presumption, rather than eliminating the foreign 
power requirement, maintains judicial oversight and review on a case-
by-case basis on the question of whether the target of the surveillance 
is an agent of a foreign power. The permissive presumption would permit 
the FISA judge to decide, in a given case, if the Government has gone 
too far in requesting a FISA warrant.
  I want to be clear about one point that apparently came up this 
morning. I understand the Senator from Arizona argued this morning that 
this amendment would weaken or impact on the FISA law as a whole. That 
is just not true. This amendment applies only to the changes made in 
the bill to address the lone wolf problem. It is a narrow, carefully 
drafted, very important amendment to this bill.
  Any concern that the FISA judges would not use their discretion 
wisely is, I think--as the Senator from California pointed out--
misplaced. What is the reason for any concern whatsoever about the 
proper use of this provision by judges? In the 23 years that the FISA 
court has been reviewing FISA applications, they have only declined to 
issue the warrant on one occasion. In that case, the decision of the 
court was reversed on appeal. The FISA judges clearly take their 
responsibility seriously and execute it carefully. The experience of 
the last two decades shows we can trust them not to the deny FISA 
applications too hastily. We should also be able to trust them enough 
to maintain their power to serve as a reasonable check on Government 
overreaching.
  We are told that one of the inspirations for this bill was the case 
of Zacarias Moussaoui, the alleged 20th hijacker. One of the FBI's 
excuses for not seeking a warrant to search Mr. Moussaoui's computer 
prior to September 11 was that they could not identify a foreign power 
or group with which Moussaoui was associated. In other words, they 
could not meet the agent of a foreign power requirement to get a FISA 
warrant. In the case of Moussaoui, a warrant application was never even 
submitted to the FISA court.

  As Senator Specter pointed out, many legal observers think the FBI 
simply misread the law, and it could and should have obtained a FISA 
warrant against Mr. Moussaoui if it had tried.

[[Page S5918]]

  No matter, in any event, Senator Feinstein's amendment would fix the 
so-called Moussaoui problem just as well as the current bill. The 
permissive presumption would still ensure that future investigators do 
not need to show specific evidence of a particular foreign power or 
group for which the individual was an agent if they have other good 
evidence that the subject is preparing to engage in international 
terrorism, as they did in Moussaoui's case, but have not been able to 
identify the specific agent of a foreign power.
  At the same time, Senator Feinstein's formulation would put some 
limit on the Government's ability to use this new power to dramatically 
extend FISA's reach. If the Government comes to a conclusion that an 
individual is truly acting on his or her own, then our criminal laws 
concerning when electronic surveillance and searches can be used, in my 
view, and I think in the view of many, are more than sufficient. True 
lone wolves can and should be investigated and prosecuted in our 
criminal justice system.
  Under this amendment, the FISA court could presume that any non-U.S. 
person preparing to engage in international terrorism is an agent of a 
foreign power. At the time of the initial warrant application, and 
perhaps even later, this presumption makes sense. It is somewhat 
difficult to envision a foreigner in the United States planning an 
international terrorist attack who is not an agent of a foreign power, 
which includes a terrorist organization. But one can envision a 
situation where, at the time of a request for a reauthorization, a FISA 
warrant is made, the Government has now determined that the suspect is 
truly a lone wolf.
  In those situations where the person is simply a lone wolf in every 
sense of the word and is not connected with a foreign power or 
terrorist organization, FISA should not apply. The Government should 
then use all the tools of the criminal process because--and this is the 
key issue--in that circumstance, the foreign intelligence rationale, 
the entire basis for the creation of a FISA law, that entire rationale 
for FISA's lesser standard no longer exists.
  Senator Feinstein's amendment retains FISA's agent of a foreign power 
requirement, maintains the independence of the FISA court, and 
preserves judicial oversight of the abuse of the new power. It protects 
national security by addressing the lone wolf problem, and it does not 
threaten the constitutional freedoms we cherish.
  I am grateful to the Senator from California for her leadership role 
on this important amendment. I strongly urge my colleagues to support 
this reasonable amendment that will simply make this a much better bill 
and, frankly, a bill that would cause many of us to feel comfortable 
supporting the bill.
  I urge my colleagues who are proponents of this bill to consider how 
important it is that we have as many Senators as possible support such 
a bill. This goes right to the heart of the question of whether in 
times of crisis this Nation is going to get the balance right between 
civil liberties and our Constitution and the important paramount issue 
of fighting terrorism. We need as many people supporting this to send a 
message to the American people that we are getting this right. The 
Feinstein amendment is a reasonable, modest attempt to achieve that 
kind of consensus. I urge my colleagues to support it.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from New York.
  Mr. SCHUMER. I thank the Chair.
  Mr. President, I rise in reluctant, but considered, opposition to the 
amendment of my good friend from California. I thank her and the 
Senator from Wisconsin for their roles in this area. My colleague from 
California and I usually share many of the same views on law 
enforcement issues, and we work closely together. I say usually, it is 
the other way around. I am on one side, and she is trying to put 
together the compromise. Now she is trying to put another compromise 
together. I respect her for that.
  I say to the Senator from California and the Senator from Wisconsin, 
who is a devout believer in the freedom and liberty this country 
cherishes and a constant watchdog on our committee, I have great 
respect for both of them. This is a good debate because in our brave 
new post-9/11 world, we have to balance liberty and security and, 
obviously, some adjustments have to be made.
  The Founding Fathers knew that in times of war, in times of crisis, 
security might gain a little. I do not think this is an issue of 
security versus liberty, though. I do think it is an issue of the new 
technologies that are available and allows individuals or small groups 
of individuals unknown before to do real damage to America. Then 10 
years ago, you knew who was going to hurt you. It would be a nation. It 
would be an established group of terrorists. But today, any small group 
can pop up, even individuals, and do such damage. That is what has 
caused the Senator from Arizona and I to change the law.
  I think the Feinstein amendment is well-intentioned, and honestly it 
recalibrates the balance in a little different way than I would. This 
is what the debate is about. My guess is, if Washington, Jefferson, or 
Madison were looking down on the Senate Chamber, they would want us to 
have this debate. It is a good thing we are having this debate. I 
appreciate it.
  I am going to be brief. I know we want to deal with this amendment.
  My objection to the amendment of the Senator from California is that 
it does leave discretion in the hands of the judge--the very purpose of 
the amendment. I do not think there ought to be discretion when there 
is probable cause that some individual or small group, whether they can 
be connected to a terrorist group, a known terrorist group, a terrorist 
organization or not--I do not think there should be discretion in 
getting that FISA warrant. Obviously, the judge will have discretion, 
so to speak, in determining if probable cause is there. So this is 
hardly a straitjacket, even the amendment we have proposed.
  If the judge does not find probable cause to engage or prepare to 
engage in terrorist activity, there is not going to be a warrant.
  The other point I want to stress, of course, and this matters to me--
I know some in the civil liberties community say everyone who is 
dealing with American law should have the same rights. This does not 
affect citizens or those who hold green cards. I think it strikes a 
fair balance. The idea of giving the judge discretion, the so-called 
permissive presumption, in my judgment, goes too far.
  One of the problems we had with the Moussaoui case was that the FBI 
was unsure that they could seek a warrant. They did not think the law 
allowed them to seek a warrant. That is what brought up our amendment.

  With the Feinstein amendment, they would still not have that 
certainty. You also might get in the very same case a judge in 
California ruling one way and a judge in New York ruling another way. I 
do not think we want confusion, differing opinions, judicial discretion 
when clearly probable cause is met.
  I realize that my good friend from California seeks an ability to 
check on the abuse of FISA. I agree with her. I argue this is the wrong 
way to do it. Again, if probable cause is established, it should not 
matter if it is a lone wolf or a known terrorist group or a known 
terrorist organization. To have different judges come to different 
conclusions about that I do not think helps move our law, move our 
safety, or, for that matter, further protect our liberties.
  I urge my colleagues to vote against this amendment. It is well 
intentioned. It does seek to understand the balance between liberty and 
security, but it would do it in a way that I think is not advised, 
particularly in our post-9/11 world. I urge my colleagues to vote down 
the amendment.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, first let me address Senator Feingold. He is 
correct about the misstatement I made this morning. I do recall making 
this statement that the Feinstein amendment would apply generally to 
the section of law rather than just S. 113. The Senator from Wisconsin 
is correct. What I said was in error. It does not detract from my 
primary argument, but that is correct, and I appreciate him pointing 
that out.
  I wish to respond to the three primary arguments we have heard. First

[[Page S5919]]

of all, Senator Leahy primarily was making the point that we should see 
if the Patriot Act is working before we make the changes that Senator 
Schumer and I and others are trying to make.
  First, I note that the vote in the Judiciary Committee was 16 to 0. 
It was unanimous. I appreciate the bipartisan support from people such 
as Senator Leahy and would note that we have had that kind of 
bipartisan support from the very day that Senator--in fact, 2 years ago 
it was Schumer-Kyl, now it is Kyl-Schumer, for obvious reasons.
  Secondly, this has nothing to do with the PATRIOT Act. The FISA law 
was put into effect in 1978, I believe it was. So this is a law that 
has been in effect for a long time. The problem with it is that a 
significant change has occurred on the international stage. As has been 
pointed out, the law was originally intended to deal with Soviet spies, 
foreign powers, or international terrorist organizations such as the 
Red Brigade, the Baader-Meinhof gang and people like that.
  In that day, it was a tight-knit group of people who actually worked 
as a terrorist organization. But today, as the testimony before the 
Intelligence Committee went into in detail, it is now a worldwide 
Islamic jihadist movement. It is about a cause rather than an 
organization.
  The FBI Director, whose testimony I read this morning, went into a 
great deal about how, therefore, the people who work in this 
international cause are very different from the old members of the 
gangs or the Soviet spy network, and to try to pigeon hole a FISA 
warrant against these individual people into the provisions of the law 
as it was originally drafted is really not possible. That is why the 
FBI would not go after a warrant for Zacarias Moussaoui. It is why 
Agent Rowley was very upset about it. But at the end of the day, 
headquarters was probably right not to try to make out the case that 
Zacarias Moussaoui was somehow connected to an international terrorist 
organization. They found some tenuous connections with some Chechen 
rebels but at the stage that the warrant was corrected they could never 
tie it into an international terrorist organization. We now know 
subsequent to the issuance of the warrant that there were some ties to 
al-Qaida, but he may be a good example of the lone-wolf terrorist.
  So that is why times have changed. The law has to change to keep up 
with this. Otherwise, we would not be suggesting this rather modest 
change in the law.
  The people against whom we are now directing our surveillance with 
respect to international terrorism are a very different group of 
people. Much of the time they do not act in concert and sometimes they 
enact as lone wolves.
  That gets me to the next point. As I understand it, Senator 
Feingold's primary argument is that we should have this kind of 
surveillance against agents of foreign powers, but that we should not 
have it against lone wolves. Of course, the Feinstein amendment 
provides a presumption that the lone wolf is an agent of a foreign 
power.
  That is not our point. We are not trying to prove the lone wolf is an 
agent of a foreign power. I do not want to have a presumption in there 
that presumes something that we are not even alleging. Sometimes our 
U.S. Government is going to say, we do not have any reason to believe 
this person is connected to an international terrorist organization or 
a foreign power, country. We are not alleging that. We are alleging 
that he is a person engaged in or about to engage in a terrorist 
action, we have probable cause to believe that. That standard remains 
the same and, therefore, we want to, what, prosecute him? No, get a 
warrant to see what else he is doing.
  So this amendment does not match up with what we are trying to do. We 
are not trying to prove that they are agents of a foreign power. We are 
providing the court with evidence that a non-U.S. person is engaging in 
or about to engage in activities involving terrorism against the United 
States and, therefore, the court is warranted in allowing us to 
investigate it further. We do not want the presumption because in many 
cases that is not what we are trying to prove.
  The important point is a point I would like to make in response to 
Senator Feingold and that is that there still has to be international 
terrorism involved. It is not as if we are going after people because 
we do not like their nationality or something of that sort. We are 
dealing with a very sophisticated court that is not a kangaroo court; 
it is the FISA court, and they have not turned down warrants because 
the Justice Department has been very careful to make sure they have all 
the evidence that is needed.
  I will tell my great friend Senator Feinstein and just make a 
footnote--I said it this morning but I will say it again--I cannot 
remember a time that she and I disagreed on a matter involving 
intelligence or law enforcement activities. It just does not happen 
except this one time. I guess the exception proves the rule. There is 
nobody in the Senate with whom I have enjoyed working more on these 
matters. Witness the fact that Senator Feinstein and I have been the 
chairman and ranking member alternately of the Terrorism, Technology, 
and Homeland Security Subcommittee of the Judiciary Committee ever 
since I came to the Senate. It has been a wonderful relationship, and 
there is nobody in this body that I admire more.
  So I want to answer this question very specifically, because if I 
understood one of her arguments, it was that we have changed the 
probable cause standard, and we have absolutely not done that. In fact, 
in response, I think to a suggestion of one of our Democratic 
colleagues, we had the language exactly tracked in the statute, and I 
will read it precisely. This is in 50 United States Code, section 1801, 
the definitions section under foreign power. I will not read the whole 
thing, but No. 4 is ``a group engaged in international terrorism or 
activities in preparation therefor.''
  Then, under ``agent of foreign power''--and, remember, this is where 
we have the definition of a non-U.S. person. We had the third category. 
We tracked the language precisely--``engages in international terrorism 
or activities in preparation therefor.'' It is the exact same language.
  So the probable cause standard remains identical. In very simple 
terms, this is what the U.S. attorney would have to say: Judge, here is 
my affidavit and what it says is that Joe Blow is a non-U.S. citizen. 
Here is the documentation for that, and here are the activities that we 
have probable cause to believe he is engaging in.
  So it is the probable cause standard. What would satisfy that test? 
Let me be very precise in the order that I present this.
  Under this section of definitions--and our bill is the same as S. 
2568, which the Justice Department was referring to when it made this 
comment, someone who is involved in terrorist acts:

       That transcend national boundaries in terms of the means by 
     which they are accomplished, the persons they appear intended 
     to coerce or intimidate, or the locale in which their 
     perpetrators operate or seek asylum.

  This is quoting from 50 United States Code, section 1801(c)(3):

       As a result, a FISA warrant would still be limited to 
     collecting foreign intelligence for the international 
     responsibilities of the United States, and the duties of the 
     Federal Government to the States in matters involving foreign 
     terrorism.

  That is quoting from a court case that interpreted the provision.
  Therefore, according to the Justice Department, the same interests 
and considerations that support the constitutionality of FISA as it now 
stands would provide the constitutional justification for S. 2568, 
which is the predecessor to S. 113, which is the bill before us.
  So the definition is the same, the probable cause standard is the 
same, and the nexus to international terrorism is the same. None of 
that changes. The only thing that changes is that we add non-U.S. 
person so you can get to the lone wolf and do not have to either assert 
that the person is involved with an international terrorist 
organization or foreign power or presume that the individual is, 
because that person may well not be.
  Finally, Senator Feinstein made the point that under proper 
circumstances, S. 113 would allow the search of a solo international 
terrorist and the answer is, yes, that is exactly what it would allow. 
And especially with today's

[[Page S5920]]

weapons, which allow even a solo terrorist to be able to cause enormous 
destruction, the FBI should be able to monitor such a terrorist if it 
can convince the court that probable cause exists that would otherwise 
be the standard in any kind of FISA warrant request.
  I think those are the answers to the allegations that have been made 
in support of the Feinstein amendment. I think it gets right down to 
what Senator Feingold said, which is that there is simply disagreement 
about whether the lone wolf should be the subject of this 
statute. Obviously, if the amendment were to be adopted, we have our 
purpose, which is to add the third category.

  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from 
Arizona for his personal comments. He knows I have thoroughly enjoyed 
working with him. It is unusual--as a matter of fact, I cannot remember 
in all these years when we have ever been on opposite sides of one of 
these questions.
  Let me state to the Senator my great fear. We all forget beneath the 
surface this Government has tremendous power. When that power is 
exercised against a person in this country, alone as a visitor, has no 
rights, it is enormous what can happen. What my deep concern is that 
overzealous prosecutors will use this where they should use title III 
and get a criminal warrant instead of a FISA warrant because of the 
removal of the agent of the foreign power. We keep the connection with 
the basics of the FISA statute which is surveillance related to an 
agent of the foreign power. We keep that. That is the justification for 
FISA. We give the judge the ability to make that as a presumption--
ergo, giving the judge some discretion not to make it, and therefore 
the individual seeks the warrant--an FBI agent or whoever it is--goes 
to title III and gets a criminal warrant.
  Once you get a FISA warrant, the benefits from the law enforcement 
side of the FISA warrant are much greater than the title III warrant.
  It is a small protection. I don't believe, in my heart of hearts--and 
if this were to pass and the Senator from Arizona showed me that it did 
in any way prevent the FISA court from exercising its discretion just 
as you want it to, I will change it. I would be the first one to come 
back.
  It prevents this misuse of a prosecutor who should be getting a title 
III warrant, who will come to the FISA court instead because the FISA 
court will be a rubberstamp, and because myself, a visiting Indian, 
Pakistani, Muslim, Frenchman, Italian, anybody in Los Angeles who 
happens to have in their pocket a one-way ticket and maybe a pocket 
knife--a box cutter may be out of date--and somebody has a suspicion, 
they do not have to prove anything. And they can surveil me, they can 
wiretap me, they can exert all of the surveillance powers that are used 
under FISA. They do not know whether I am going to commit a criminal 
act and they have no evidence of anything else. That is what title III 
is for. Title III has a little heavier cause burden, but as the Senator 
said, there is probable cause in both.
  But the benefits of the FISA warrant are superior to the benefits of 
the title III warrant in their duration. So you can do all this to 
somebody for 90 days instead of 30 days and you do not have to come 
back and renew the warrant once every year. That is my concern.
  As I read your legislation, there is no discretion. That is the 
problem I have with it. This is such a slight change, it is kind of a 
little tweak that a judge can say, hey, now, let's wait and see what 
you are doing here.
  If the Senator would like to respond, I am happy to yield.
  Mr. KYL. If I could, the Senator from California has been talking 
about discretion, and I guess I begin by asking a question.
  Does the Senator intend the presumption language would apply both to 
the definition of the individual as an agent of a foreign power and 
relative to the activities in which the individual is allegedly 
engaging?

  Mrs. FEINSTEIN. The presumption would be that the target or the 
individual would be an agent of a foreign power. Otherwise, you could 
have this against the Unabomber, Oklahoma City. Of course, they are 
American citizens, so I understand that does not apply, but that same 
kind of situation.
  Mr. KYL. There are two things the court will have to determine. 
First, that this is a warrant that should be issued, that there is 
probable cause the underlying crime is being committed or activities 
engaged in for the preparation of a crime. And second, it lies against 
a particular kind of person we are talking about. In regular title III 
court you do not have the second requirement, but in FISA court you 
have to prove the person is either an agent of a foreign power or 
foreign intelligence organization, and we are adding this third 
criteria.
  So the court has to make a 100 percent determination in both of those 
matters. If the court cannot find any evidence in the affidavit that 
the individual is not a United States citizen, for example, the court 
would have no discretion and have to deny the warrant. But if the court 
found part of the warrant was satisfied, this person is clearly a non-
United States citizen, then, number two is satisfied; go back to number 
one, which is the question, Do we have probable cause to believe the 
person is engaging in the kind of activities that the statute discusses 
here.
  That is not necessarily a matter of discretion so much as it is a 
matter of a court weighing the affidavit presentation and determining 
whether it is sufficient to meet the probable cause standard.
  Mrs. FEINSTEIN. What I don't understand is why you do not want to 
give the judge that small bit of discretion with a presumption. The 
judge can presume it. We both know the history and the history is 100 
percent if you include the appeal of FISA judges in granting warrants. 
So there will not be a problem there.
  I am concerned about the overreach. I am concerned about the misuse. 
And the only way we could figure to counter that was to keep the agent 
a foreign power, provide this presumption that a judge could use in 
that one case.
  Senator, neither you nor Senator Feingold nor I would ever know if 
there was an overreach. That is what makes this far more dangerous, the 
fact that it is so secret.
  Mr. KYL. If I could respond to the last point.
  The matter about which the court has some degree of discretion is in 
the way it weighs the affidavit presentation relative to the underlying 
predicate for the warrant, the activities that are being engaged in, 
the purchase of the ticket, the presence of box cutters, all that 
information. The court weighs all that. It is presented in the 
affidavit, and the court makes a decision. It is enough or it is not 
enough. To some extent, you can say that is discretion. It is really 
applying the evidence to the probable cause test, weighing it and 
determining whether the evidence meets the case. In any event, that is 
where the court has some leeway to decide.
  Where the court does not have any leeway is to something that is 
either a fact or it is not. That is, Does this person qualify or not? 
That is to say, is the person an appropriate subject for the warrant or 
not?
  If you were asserting, for example, that the individual was a member 
of the Baader-Meinhoff gang, there would have to be evidence in the 
affidavit that is clear enough for the court to reach that conclusion 
or the court would say, sorry, this person does not qualify for a FISA 
warrant. I cannot find enough evidence in here that he is a member of 
the Baader-Meinhoff gang or a spy for the Soviet Union.
  But with respect to whether this person is a non-United States 
person, that is something that will either be fairly true or not. It is 
either going to be true or not. The court is either going to be faced 
with a situation where the evidence is overwhelmingly clear in the 
affidavit and the United States attorney says it is very clear this 
person is not a United States citizen, here is the evidence we have, 
and the court will say, I agree. Or the court will say, all you have 
done is assert that the person is a non-United States citizen. I don't 
have any basis to know that or not. Where is your evidence to know that 
he is a non-U.S. citizen? So I am not going to grant the warrant. But 
that is the basis on which the court is going to make that judgment.

[[Page S5921]]

  The court is not going to say there is a provision here that says I 
can presume that this individual is an agent of a foreign power and 
therefore I can have some leeway here to decide whether or not the 
warrant lies against this individual. The Government is either going to 
assert that the person is an agent of a foreign power or not. If the 
Government is saying no, we don't think this person is working for some 
foreign power, we think he is working on his own or at least we don't 
have any evidence to suggest he is anything other than an international 
terrorist traveling all around the world training and picking up 
different things and so on, but he is a dangerous guy and here is the 
reason we believe he is dangerous, a presumption at this point doesn't 
get you anywhere.
  The court has no direction to go in. If you say there is a 
presumption that he is an agent of a foreign power and the Government 
is not trying to prove he is acting for a foreign power, what has this 
definition gained us? There are situations in which the Government 
simply isn't going to allege that the person is an agent of a foreign 
power; it is only going to allege that he is a lone wolf, but look at 
all the bad things he has done or is doing. If they are sufficient to 
grant a warrant, if there is probable cause there, the court can do it. 
If the court says it is not quite sufficient yet, get some more 
information, then he will deny the warrant.
  The PRESIDING OFFICER. Who yields time?
  Mrs. FEINSTEIN. I will yield time, Mr. President, and I will be very 
happy to have Senator Feingold in this.
  I think this is really the kind of discussion that we should be 
having. I welcome the free flow.
  If I knew a better way of solving the problem Senator Kyl mentioned, 
I would do it. But my view and what Intelligence staff and others have 
said to me is that the way it is worded creates a rubberstamp out of a 
FISA judge, once you take out that agent of a foreign power connection. 
I guess the reason they believe that is that it puts them into the 
other side, the title III side.
  If I could think of another way, I would. But it is one added 
guarantee against an overreach. You and I have both known zealous 
prosecutors. You and I have both known people who would misuse this. 
The question comes, How do we prevent misuse from happening?
  I am happy to yield to Senator Feingold.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I again thank the Senator from 
California for yielding time and for her leadership. I thank the 
Senator from Arizona. He is a person of great integrity, and the way he 
concedes if he didn't say something exactly perfectly this morning is 
an example of exactly the kind of relationship I have with him on these 
debates. They are good debates. I appreciate that.
  It is also true the Senator from California and the Senator from 
Arizona almost always agree on these kinds of issues. They are one of 
the most formidable combinations here in the Senate, in a bipartisan 
combination. I take great pride in the bipartisan work I have had a 
chance to do with people such as the other Senator from Arizona and the 
Senators from Maine.
  So I take my hat off to them for having done that. I have often been 
on the other side of their view, which is not easy because they are 
well prepared and they are very dedicated and they like to get things 
done.
  I guess that is why I think this is kind of a significant moment, 
when Senator Feinstein and I actually agree on a point, when the two of 
you so frequently agree. I think it is a sign that there is something 
that needs to be fixed in this bill.
  It is modest, but it is very important. I remind the Senator from 
Arizona that I think I essentially said this: I voted for this in 
committee in the hope it would be fixed on the floor.
  My goal here is not to kill this bill. I do know how to vote against 
bills I don't like. My goal is to fix it because I think there is a 
problem with this issue. That is where we are with this amendment. This 
is an attempt to fix this bill on a very important point without, in my 
view, doing any serious harm at all to the goal of the Senator from 
Arizona and the goal of the Senator from New York.
  The way I understand this operates is that in these cases the FISA 
court is going to grant this warrant upfront, essentially every time in 
the first request, because there will be the evidence or the 
presumption that there is a problem.
  Where this, the Feinstein amendment, has a real impact is where they 
come back later and they have to come back for a renewal. If after a 
couple of years there is just no evidence at all or virtually no sign 
at all that the original belief about what this guy was about to do 
isn't bearing any fruit at all, in that case, and only in that case, 
should this, in terms of our laws and our tradition, be returned to the 
regular criminal court--only in that circumstance.
  In other words, yes, the Government was trying to protect the 
American people, as they should. They had a person here who they 
believed might have a connection to a foreign power or be connected to 
a terrorist organization. But it turns out after some period of time 
that it just didn't happen to be one of those cases where that was 
true.
  It is still a person who intended, perhaps, to do something very 
wrong. It is still a person who should be prosecuted. But it is a 
person who deserves the protections of the laws of the United States--
because I am sure the Senator from Arizona agrees with me, barring this 
unusual kind of circumstance that is the basis for the FISA law, 
everyone who commits a crime on our soil, whether an American citizen 
or not, is entitled to the protections of our Constitution and the Bill 
of Rights in a criminal proceeding.

  The FISA law is only a narrow exception to that. So let's be very 
clear on the record. I do want to get at these lone wolves who may have 
some connection to international actors, such as foreign powers, or to 
terrorist organizations. As the Senator from California pointed out, if 
it is simply a person committing a bad act on our soil, a person who is 
not an American citizen, that is what our criminal courts are for. That 
is what title III is for. That is the foundation of our system.
  This is really an incredibly narrow exception, a backstop, a 
safeguard to make sure that the good intentions of what this bill is 
all about don't go too far. That is what the Senator from California 
said, so that there is not overreaching.
  I have just one other point about what the Senator from New York 
said. He seemed to be setting up a scenario where there might be a 
conflict between the FISA judges, almost as if there were different 
circuits like in the regular courts. That is not the way the FISA 
courts are set up. There are different FISA judges, but together they 
constitute the appeals courts. There would not be different areas of 
the country that would have different laws of this kind of thing that 
would present any kind of problem in terms of a conflict in the 
circuits. I don't think this argument holds up.
  Let me return to the point. The Senator from California has been so 
careful in making sure this is just a safeguard down the line, when 
somebody has been identified as a potential lone wolf and it does not 
really pan out, that there is some discretion rather than a permanent 
warrant into perpetuity for eavesdropping on somebody who certainly 
maybe needs to be evesdropped upon, but for whom that authority should 
be obtained through the normal criminal procedure, not on the basis of 
a law that was crafted under the assumption that this is a foreign 
threat to our Nation.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Arizona.
  Mr. KYL. Mr. President, first of all, I thank Senator Feingold for 
the kind words he had for me and my colleague from Arizona, Senator 
McCain. I just spoke with Senator Feinstein.
  I don't think either of us has a whole lot more to say here. I think 
Senator Rockefeller may wish to speak and there may be others.
  I urge anyone who would like to speak to this amendment to come to 
the floor and speak because otherwise I think we are getting close to 
the time when we could vote.
  I inquire of the Chair, how much time remains on both sides on this 
amendment?

[[Page S5922]]

  The PRESIDING OFFICER. The Senator from Arizona has 98 minutes 
remaining. The Senator from California has 68 minutes remaining.
  Mr. KYL. I think there is a little time left on the debate time as 
well, but I am prepared to yield that back when we are done with this 
amendment, as would Senator Schumer.
  We could either note the absence of a quorum and wait a few minutes 
for somebody else or I could yield the floor to someone?
  Mrs. FEINSTEIN. Mr. President, I suggest the absence of a quorum. I 
know Senator Rockefeller is on his way.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I thank the distinguished Presiding 
Officer. I thank the Senator from California whose amendment to S. 113 
I rise to support. I am a cosponsor of her amendment.
  We live in a time in which we can never feel completely safe. There 
are terrorists throughout the world and here at home who have sworn to 
kill Americans. That is what they are trained to do. That is what they 
want to do. That is what they plan to do. We fight a war knowing that 
it may increase the terrorist threat against us. We buy duct tape and 
plastic sheeting. We plan escape routes for our families. We make 
decisions about whether to go to public events or ride a subway, or do 
all kinds of things. Does it change our lives or not? We are not even 
sure of that yet.
  In times such as this, we in Congress have a special responsibility. 
We must be vigilant in our lawmaking and our oversight to make certain 
that the executive branch, our intelligence, and law enforcement 
agencies have all the legitimate tools to do their jobs in an efficient 
and effective way.
  But our responsibility does not end there. It is easy to write laws 
to remove obstacles to prevent the Government from obtaining 
information. We have done that. Our challenge is to write laws that 
strengthen our security without undermining privacy and liberty. This 
is something our Nation has never faced before in the way which it is 
now going to be facing for the next several years.
  It is our responsibility to look very closely at every piece of 
legislation related to fighting terrorism and ask: Do we need it? Does 
it make us feel safer? Yes. But do we really need it? Does it 
accomplish the goals we are seeking? And does it go too far?

  I have cosponsored the Feinstein substitute amendment to S. 113 
because I believe the language of the substitute is crafted carefully--
very carefully--to accomplish our goals in the fight against terrorism 
without going too far.
  Mr. President, I would like to explain why I believe that.
  The Foreign Intelligence Surveillance Act of 1978 was designed to 
regulate the collection of foreign intelligence inside the United 
States using electronic wiretaps. Later, physical searches were added 
to the law.
  Before FISA, the Foreign Intelligence Surveillance Act, the executive 
branch ran wiretaps for national security purposes without judicial 
review, without approval of any sort. Such wiretaps were potentially 
unconstitutional and, because of that, threatened the viability of 
espionage prosecutions and raised serious questions regarding civil 
liberties.
  The Congress enacted FISA with the recognition that our national 
security required the collection of foreign intelligence in the United 
States through intrusive means under different circumstances and using 
different standards than in the criminal warrant context, and the 
courts have upheld the constitutionality of FISA.
  The purpose of FISA is the collection of foreign intelligence. The 
standard used to distinguish between FISA collection and wiretaps 
related to criminal activity involves a determination that the target 
is a ``foreign power'' or linked to a ``foreign power.'' In the case of 
terrorists, the Government must show the target is an ``agent of a 
foreign power,'' a terrorist group operating overseas.
  Both S. 113 and the Feinstein substitute address and solve the 
following problem: What if you have a non-U.S. person in the United 
States who is engaging in or preparing to engage in international 
terrorist activities, but the Government does not have enough evidence 
to link him to an overseas group?
  Both S. 113 and the Feinstein substitute eliminate the requirement 
that the Government produce to the FISA court evidence showing a direct 
link between the target and a foreign terrorist group.
  So why is the Feinstein substitute better?
  Under S. 113, the Kyl-Schumer bill, a key principle of FISA is 
eliminated. Even if the Government has actual evidence that the target 
is not connected to a foreign terrorist group, under Kyl-Schumer, the 
Government can still get a FISA wiretap order. This simply goes too 
far, and it is not necessary, in the judgment of this Senator.
  If we know for certain a person really has no foreign connections, if 
he or she is a true ``lone wolf''--a foreign ``Unabomber,'' for 
example--then it is a straightforward criminal investigation. There is 
no foreign intelligence to be gotten at all, and that person is not a 
valid target under FISA.
  The Feinstein substitute gets the Government everything it wants 
without changing FISA in a way that damages its basic premise; to wit, 
FISA is for the collection of foreign intelligence and should not be 
used when the only objective at hand is the collection of criminal 
evidence.
  Mr. President, I commend the carefully crafted solution offered by 
the Senator from California to a very difficult problem. As the vice 
chairman of the Intelligence Committee, I am proud to cosponsor this 
amendment, and I urge my colleagues to vote for it.
  I thank the Presiding Officer and yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, first, I ask unanimous consent to have 
printed in the Record a letter dated April 30, 2003, to Chairman Orrin 
Hatch from the Department of Justice relative to this legislation, and 
specifically an analysis of the amendment proposed by Senator Feinstein 
on pages 5 and 6.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                            Department of Justice,


                                Office of Legislative Affairs,

                                   Washington, DC, April 30, 2003.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: This is in response to your request for 
     the Administration's views on various proposed amendments to 
     S. 113, a bill that would amend the Foreign Intelligence 
     Surveillance Act of 1978 to permit electronic surveillance 
     and physical searches of so-called ``lone wolf'' 
     international terrorists--i.e., non-United States persons who 
     engage in international terrorism or activities in 
     preparation therefor without any demonstrable affiliation 
     with an international terrorist group or other foreign power. 
     On March 5, 2003, the Administration sent a letter indicating 
     its support for S. 113 (copy attached). The Administration, 
     however, is greatly concerned that this important FISA 
     amendment would be subject to a sunset provision included in 
     the USA PATRIOT Act of 2001. The Administration opposes the 
     sunset language, and looks forward to working with Congress 
     to ensure that this FISA amendment and those other portions 
     of the USA PATRIOT Act subject to the sunset provision are 
     addressed at the appropriate time. For reasons set forth 
     below, we oppose the proposed amendments to S. 113. In 
     particular, the Administration is concerned that the proposed 
     amendments would weaken the FISA as an important instrument 
     in the arsenal of the United States Government in combating 
     terrorism and the espionage activities of foreign powers.
       Authority of the FISC and FISCR. The first proposed 
     amendment to S. 113, entitled ``Sec. 2. Additional 
     Improvements to Foreign Intelligence Surveillance Act of 
     1978,'' would add a provision to 50 U.S.C. Sec. 1803 to grant 
     the Foreign Intelligence Surveillance Court (``FISC'') 
     authority to ``establish such rules and procedures, and take 
     such actions, as are reasonably necessary to administer their 
     responsibilities under this Act.'' The Administration opposes 
     this grant of authority to a court that has an extremely 
     limited statutory function of approving or disapproving 
     applications made by the Government of orders with respect to 
     electronic surveillance and search. Granting rulemaking 
     authority by statute to the FISC and the FISCR--courts that 
     operate in secret and that are of

[[Page S5923]]

     very limited jurisdiction that is specified in detail in the 
     FISA--is inappropriate.
       Reporting Requirements. A second group of related 
     amendments would require additional reporting concerning the 
     use of FISA. Each is objectionable for reasons discussed 
     below.
       a. The first reporting amendment would require public 
     disclosure of the number of United States persons targeted 
     under various provisions of FISA. Under current law, the 
     Department publicly reports the annual aggregate number of 
     FISA searches and surveillances, but does not disclose 
     publicly how many of those searches and surveillances 
     involved United States persons. See 50 U.S.C. Sec. Sec. 1807, 
     1826. The proposal also would require public disclosure of 
     the number of times the Attorney General authorized the use 
     of FISA information in a criminal proceeding--a statistic 
     that currently is reported to the Intelligence Committees as 
     part of a longstanding, carefully constructed, and balanced 
     accommodation between the Executive and Legislative branches 
     and in accordance with the FISA itself. See 50 U.S.C. 
     Sec. 1808(a)(2)(A). Finally, the provision would require 
     disclosure of portions of FISA pleadings and orders that deal 
     with significant questions of law (not including discussion 
     of facts) ``in a manner consistent with the protection of the 
     national security of the United States.'' Each of these three 
     reporting requirements is addressed below.
       We oppose a requirement to disclose publicly the number of 
     FISA targets that are United States persons. Congress has in 
     the past considered and rejected proposals to require 
     disclosure of this information to the general public rather 
     than to the Intelligence Committees. In 1984, the Senate 
     Select Committee on Intelligence was ``asked by the American 
     Civil Liberties Union to consider making public the number of 
     U.S. persons who have been FISA surveillance targets.'' S. 
     Rep. No. 98-660, 98th Cong., 2d Sess. 25 (1984). The 
     Committee rejected that proposal because ``the benefits of 
     such disclosure for public understanding of FISA's impact 
     would [not] outweigh the damage to FBI foreign 
     counterintelligence capabilities that can reasonably by 
     expected to result.'' Ibid. As the Committee explained, 
     ``[a]ny specific or approximate figure would provide 
     significant information about the extent of the FBI's 
     knowledge of the existence of hostile foreign intelligence 
     agents in this country. As in other areas of intelligence 
     oversight, the Committee must attempt to strike a proper 
     balance between the need for public accountability and the 
     secrecy required for effective intelligence operations.'' 
     Ibid. This analysis is at least as applicable to foreign 
     terrorist organizations today as for foreign intelligence 
     organizations and the Administration continues to support the 
     balance that was struck in 1978 and reaffirmed in 1984.
       We also oppose a requirement to disclose publicly the 
     number of times the Attorney General has authorized the 
     disclosure of FISA information for law enforcement purposes. 
     This provision is problematic primarily because it is not 
     confined to cases in which FISA information is actually used 
     in a proceeding. Revealing the number of Attorney General 
     authorizations for such use--as opposed to the use itself--is 
     troubling because that information could involve 
     classified and non-public matters with ongoing operational 
     significance--e.g., an investigation that has not yet 
     resulted in a public indictment or trial, or in which no 
     indictment or trial ever will occur. Thus, these numbers 
     potentially could reveal information about the 
     Department's classified, operational efforts to protect 
     against the activities of foreign spies and terrorists.
       Finally, we believe that the disclosure of FISA pleadings 
     and orders that deal with significant questions of law is 
     inherently inconsistent with ``the protection of the national 
     security of the United States.'' Virtually the entirety of 
     each application to the FISC discusses the facts, techniques, 
     or pleading of highly classified FISA operations. As we noted 
     in our letter of August 6, 2002, on predecessor legislation 
     in the 107th Congress, ``[a]n interpretation by the FISC of 
     the applicability of FISA to a technique or circumstance, no 
     matter how conceptually drawn, could provide our adversaries 
     with clues to relative safe harbors from the reach of FISA.'' 
     A copy of our earlier letter is attached for your 
     convenience.
       b. A separate but similar proposal, entitled ``Sec. 2. 
     Public Reporting Requirements Under the Foreign Intelligence 
     Surveillance Act of 1978'' and proposed by Senator Feingold, 
     also would impose public reporting obligations. Instead of 
     requiring the Department to report the number of FISA targets 
     who are United States persons, it would require reporting of 
     the number who are not United States persons, broken out by 
     the type of FISA activity involved--e.g., electronic 
     surveillance and physical search. This proposal also would 
     require the Department to identify individuals who ``acted 
     wholly alone.'' Like the proposal discussed above, this 
     proposal would require the Department to report the number of 
     times the Attorney General authorized the use of FISA 
     information in a criminal proceeding, and portions of FISA 
     pleadings and orders that deal with significant questions of 
     law ``in a manner consistent with the protection of the 
     national security of the United States.'' The objections set 
     forth above apply equally to this proposal.
       c. Finally, a very recent reporting proposal, also proposed 
     by Senator Feingold, would require an annual report on FISA 
     to the Intelligence and Judiciary Committees. The report 
     would include the classified statistical information 
     described above--including numbers of non-U.S. persons 
     targeted under each major provision of FISA--and would also 
     require submission of portions of FISA pleadings and court 
     orders. For reasons stated above and in our letter of August 
     6, 2002, we continue to oppose any requirement to submit 
     portions of FISA pleadings and orders. More broadly, we 
     strongly oppose the amendment because it threatens to upset 
     the delicate balance between the Executive and Legislative 
     Branches of government in the area of intelligence and 
     intelligence-related oversight and reporting.
       The FISA statute prescribes the types of information that 
     must routinely be provided to the Judiciary Committees. Under 
     current law, the Department of Justice provides to the 
     Judiciary Committees and makes public ``the total number of 
     applications made for orders and extensions of orders'' 
     approving electronic surveillance and physical searches 
     under FISA, and ``the total number of such orders and 
     extensions either granted, modified, or denied.'' 50 
     U.S.C. Sec. 1807; see 50 U.S.C. Sec. 1826; 50 U.S.C. 
     Sec. 1846 (similar reporting requirement for numbers of 
     pen-trap applications and orders); 50 U.S.C. Sec. 1862 
     (similar reporting requirement for numbers of applications 
     and orders for tangible things). The Department has, of 
     course, consistently met these statutory requirements.
       The FISA reporting obligations concerning the Intelligence 
     Committees are much broader. Under 50 U.S.C. Sec. 1808, the 
     Attorney General must ``fully inform'' the House and Senate 
     Intelligence Committees ``concerning all electronic 
     surveillance'' conducted under FISA, and under 50 U.S.C. 
     Sec. 1826 he must do so ``concerning all physical searches'' 
     conducted under the statute. In keeping with this standard, 
     the Department submits extremely lengthy and detailed semi-
     annual reports to the Intelligence Committees, including 
     specific information on ``each criminal case in which 
     information acquired [from a FISA electronic surveillance] 
     has been authorized for use at trial,'' 50 U.S.C. 
     Sec. 1808(a)(2)(B), and ``the number of physical searches 
     which involved searches of the residences, offices, or 
     personal property of United States persons,'' 50 U.S.C. 
     Sec. 1826(3). The reports also review significant legal and 
     operational developments that have occurred during the 
     previous six months. These classified reports are 
     painstakingly prepared in the Justice Department and are 
     obviously, from the questions and comments they generate, 
     closely scrutinized by the Intelligence Committees. See 
     generally S. Res. No. 400, 94th Cong., 2d Sess. (1976); H.R. 
     Res. No. 658, 95th Cong., 1st Sess. (1977).
       The ``fully inform'' standard that governs Intelligence 
     Committee oversight of FISA is the same standard that governs 
     Congressional oversight of the Intelligence Community in 
     general. See S. Rep. No. 95-604, 95th Cong., 1st Sess. 60-61 
     (1977); S. Rep. No. 95-701, 95th Cong., 2d Sess. 67-68 
     (1978); see also H.R. Rep. No. 95-1283, Pt. 1, 95th Cong., 2d 
     Sess. 96 (1978). The requirement to ``fully inform'' the 
     Intelligence Committees, rather than Congress as a whole, is 
     consistent with the long-standing legal framework and 
     historical practice for Intelligence Community reporting to, 
     and oversight by, Congress on matters relating to 
     intelligence and intelligence-related activities of the 
     United States government. Consistent with the President's 
     constitutional authority to protect national security 
     information, Congress and the President established reporting 
     and oversight procedures that balance Congress' oversight 
     responsibility with the need to restrict access to sensitive 
     information regarding intelligence sources and methods. The 
     delicate compromise--embodied in FISA and more generally in 
     Title V of the National Security Act of 1947, 50 U.S.C. 
     Sec. Sec. 413-415, and based on the preexisting practice of 
     providing only the intelligence committees with sensitive 
     information regarding intelligence operations--established 
     procedures for keeping Congress ``fully and currently 
     informed'' of intelligence and intelligence-related 
     activities. Under these procedures, the Intelligence 
     Community provides general, substantive, and, often, 
     classified finished intelligence information to several 
     committees of Congress, but generally provides classified 
     operational information only to the Intelligence committees. 
     Even with regard to the Intelligence Committees, the Director 
     of Central Intelligence and the heads of other intelligence 
     agencies are, under Title V, to provide such information only 
     ``to the extent consistent with due regard for the protection 
     from unauthorized disclosure of classified information 
     relating to sensitive intelligence sources and methods or 
     other exceptionally sensitive matters. 50 U.S.C. 
     Sec. Sec. 413a(a), 413b(b).
       Senator Feingold's reporting proposals would, in sum, 
     distort and damage the effective, longstanding accommodation 
     between the President and Congress, and between the 
     Intelligence and Judiciary Committees, over the handling of 
     classified operational intelligence information within 
     Congress. It is noteworthy that the current leadership of 
     both the House and Senate Judiciary Committees have expressed 
     their approval of the existing accommodation. In a press 
     release dated October 17, 2002, the Chairman of the House 
     Judiciary Committee stated that the existing accommodation 
     provides for ``reasonable, limited access, subject to 
     appropriate security procedures, to FISA information through 
     [the House Intelligence Committee].'' In addition, your 
     letter of February 27, 2003, to Senators Leahy, Grassley

[[Page S5924]]

     and Specter on FISA matters stated that the existing 
     congressional oversight standards relating to FISA reflect a 
     ``careful balance between the need for meaningful oversight 
     and the need for secrecy and information security in the 
     government's efforts to protect this country from foreign 
     enemies.'' Moreover, you stated that your years of service on 
     both the Senate Judiciary Committee and the Senate Select 
     Committee on Intelligence have led you to conclude that the 
     existing accommodation allows Congress to exercise 
     ``appropriate, vigorous, robust and detailed oversight of the 
     FISA process.''
       Reporting on National Security Letters. The next proposed 
     amendment to S. 113, entitled ``Sec. 3. Improvement of 
     Congressional Oversight of Surveillance Activities,'' would 
     require additional reporting specifically addressing the use 
     of 18 U.S.C. Sec. 2709(e) in the context of requests made to 
     schools and public libraries. We are concerned that a 
     reporting requirement at this level of formality and 
     specificity would unduly increase the risk of public exposure 
     of the information, thereby jeopardizing our 
     counterintelligence and counterterrorism efforts.
       Presumption. Another proposal is presumably intended as a 
     substitute for S. 113 and would create a ``presumption that 
     certain non-United States persons engaging in international 
     terrorism are agents of foreign powers for purposes of the 
     Foreign Intelligence Surveillance Act of 1978.'' Under the 
     proposal, the FISC would be instructed that it ``may 
     presume'' that a non-United States person engaged in 
     international terrorism or activities in preparation therefor 
     ``is an agent of a foreign power'' as defined in FISA.
       By providing that the FISC ``may presume'' the target is 
     acting for or on behalf of an international terrorist group, 
     the proposal would confer discretion on the FISC without any 
     standards to guide the exercise of that discretion. 
     Accordingly, the effect of the proposal is uncertain. It is 
     conceivable that the FISC (or a reviewing court) would 
     indulge the presumption only where the Government had 
     established probable cause or something near to probable 
     cause that the target in fact was working for or on behalf of 
     a terrorist group. In that event, the proposal would be 
     useless or nearly useless. The unpredictability inherent in 
     the proposal also would significantly reduce its value even 
     if, in the end, the FISC and later courts interpreted it more 
     expansively in any particular case.
       Nor do we believe that there is a reason to use a 
     presumption--even a mandatory presumption--instead of the 
     straightforward approach of S. 113 itself. In particular, we 
     see no constitutional benefit likely to arise from the use of 
     a presumption. Our letter of July 31, 2002 (copy attached), 
     which explained the constitutionality of an earlier version 
     of S. 113 (which would have made a lone-wolf terrorist a 
     ``foreign power'' rather than an ``agent of a foreign 
     power'') applies equally to the current version of S. 113. We 
     do not believe that the use of a presumption significantly 
     changes the constitutional analysis, nor adds any significant 
     protection to civil liberties, except to the extent that the 
     presumption is read narrowly to mirror current law, in which 
     case the presumption is of little or no value for reasons 
     explained in the previous paragraph.
       Discovery. The next proposal would change the standards 
     governing discovery of FISA materials in suppression 
     litigation arising from the use of FISA information in a 
     legal proceeding such as a criminal trial. We strongly object 
     to this proposal. The proposal could harm the national 
     security by inhibiting cooperation between intelligence and 
     law enforcement efforts to stop foreign spies and terrorists. 
     It could deter the Government from using information obtained 
     or derived from FISA in any proceeding--civil, criminal, 
     immigration, administrative, or even internal Executive 
     branch proceedings. These overwhelming and potentially 
     catastrophic costs would be incurred for very little benefit, 
     because current law amply protects individual rights.
       It may be helpful to begin by reviewing current law in this 
     area and the ways in which it protects individual rights. 
     Currently, FISA requires high-level approval from the 
     Executive and Judicial branches before the Government 
     conducts a search or surveillance. Each FISA application must 
     contain a certification signed individually and personally by 
     the Director of the FBI (or another high-ranking official 
     accountable to the President) and must be individually and 
     personally approved by the Attorney General or the Deputy 
     Attorney General. 50 U.S.C. Sec. Sec. 1804(a), 1823(a), 
     1801(g). Under the statute, the Government must apply to a 
     judge of the FISC for approval before conducting electronic 
     surveillance or physical searches of foreign powers or agents 
     of foreign powers inside the United States. 50 U.S.C. 
     Sec. Sec. 1804-1805 (electronic surveillance), 1823-1824 
     (physical searches). Judges of the FISC are selected by the 
     Chief Justice from among the judges on United States District 
     Courts, who as United States district judges are protected 
     by Article III of the Constitution. 50 U.S.C. 
     Sec. Sec. 1803(a), 1822(c).
       A second round of judicial review occurs before the 
     Government may use FISA information in any proceeding. The 
     Government must provide notice to the FISA target or other 
     person whose communications were intercepted or whose 
     property was searched before using any information obtained 
     or derived from the surveillance or search in any proceeding 
     against that person ``before any court, department, officer, 
     agency, regulatory body, or other authority of the United 
     States.'' 50 U.S.C. Sec. Sec. 1806(c), 1825(d). After 
     receiving notice, the person may file a motion to suppress in 
     a United States District Court and may seek discovery of the 
     FISA applications filed by the Government and the 
     authorization orders issued by the FISC. 50 U.S.C. 
     Sec. Sec. 1806(e)-(f), 1825(f)(g). Discovery may be granted 
     freely unless the Attorney General personally files an 
     affidavit under oath asserting that discovery would harm the 
     national security. If the Attorney General files such an 
     affidavit, as he has in every case litigated to date, the 
     district judge must review the FISA application and order in 
     camera, without granting discovery, unless ``disclosure is 
     necessary to make an accurate determination of the legality'' 
     of the search or surveillance. 50 U.S.C. Sec. Sec. 1806(f), 
     1825(g). If discovery is granted, the court must impose 
     ``appropriate security procedures and protective orders.'' 
     Ibid. No court has ever ordered disclosure.
       Congress established this standard for discovery after 
     extensive and careful deliberation in 1978. See H.R. Rep. No. 
     1283, Part I, 95th Cong., 2d Sess. 90 (1978) (hereinafter 
     House Report); S. Rep. No. 604, 95th Cong., 1st Sess. 57-59 
     (1977) (hereinafter Senate Judiciary Report); S. Rep. No. 
     701, 95th Cong., 2d Sess. 62-65 (1978) (hereinafter Senate 
     Intelligence Report). As the 1978 conference report on FISA 
     explains, ``an in camera and ex parte proceeding is 
     appropriate for determining the lawfulness of electronic 
     surveillance in both criminal and civil cases . . . [and] the 
     standard for disclosure . . . adequately protects the rights 
     of the aggrieved person.'' H.R. Rep. No. 1720, 95th Cong., 2d 
     Sess. 32 (1978) (hereinafter Conference Report). As the 
     Senate Judiciary Committee explained in 1978: ``The Committee 
     views the procedures set forth in this subsection as striking 
     a reasonable balance between an entirely in camera proceeding 
     which might adversely affect the defendants's ability to 
     defend himself, and mandatory disclosure, which might 
     occasionally result in the wholesale revelation of sensitive 
     foreign intelligence information.'' Senate Judiciary Report 
     at 58.
       The proposal would replace FISA's current standard with a 
     new one under which discovery is required unless it ``would 
     not assist in determining any legal or factual issue'' in the 
     litigation. The ``would not assist'' standard is 
     inappropriate for use in FISA, in particular, because it is 
     lower than the standard for disclosure of informants' names 
     in ordinary criminal cases. That standard at least requires a 
     balancing of the public interest in confidentiality against 
     the individual defendant's interest in disclosure. As the 
     Supreme Court explained in McCray v. Illinois, 386 U.S. 300, 
     311 (1967), extending its earlier decision in Roviaro v. 
     United States, 353 U.S. 53, 60-61 (1957), ``this Court was 
     unwilling to impose any absolute rule requiring disclosure of 
     an informer's identity even in formulating evidentiary rules 
     for federal criminal trials [in Roviaro]. Much less has the 
     Court ever approached the formulation of a federal 
     evidentiary rule of compulsory disclosure where the issue 
     is the preliminary one of probable cause.'' Indeed, the 
     ``would not assist'' standard is lower even than the 
     standards that govem various civil privileges, all of 
     which require some kind of balancing of the interests in 
     disclosure against the interests in confidentiality. See, 
     e.g., In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 
     1997). In effect, the ``would not assist''' standard is 
     the appropriate standard for discovery of unclassified and 
     non-privileged information, because no discovery of any 
     kind is justified unless it would assist the litigation.
       The ``would not assist'' standard could have very dangerous 
     consequences for the national security. At the outset, we are 
     concerned that the standard could lead to discovery being 
     granted in nearly every case, because it is extremely hard to 
     prove the negative fact that disclosure ``would not assist'' 
     in any way. Such routine disclosure could be catastrophic: 
     FISC applications contain some of the Government's most 
     sensitive national security information, including 
     information concerning human intelligence sources, 
     sophisticated technical collection methods, and the details 
     of ongoing investigations. Given the enormous sensitivity of 
     that information and the details of ongoing investigations. 
     Given the enormous sensitivity of that information, when the 
     Attorney General personally files an affidavit under oath 
     asserting that disclosure would harm the national security, 
     ordering disclosure unless it ``would not assist'' in any way 
     is inappropriate. In view of the protections in FISC and the 
     requirement of an affidavit filed personally by the Attorney 
     General, the ``necessary'' standard of current law should be 
     retained.
       Indeed, precisely because it may lead to discovery in 
     virtually every case, the proposal would create an incentive 
     for the Government to withhold sensitive information from its 
     FISC applications. Under the ``would not assist'' standard, 
     the Government might have to choose between excluding 
     sensitive information from an application and risking a 
     denial of search and surveillance authority from the FISC, or 
     including the sensitive information and risking public 
     disclosure of that information. Thus, the proposal could 
     fundamentally alter the relationship between the Government 
     and the FISC and could eviscerate the significance of the 
     FISC's careful information security procedures, which are 
     designed to give the Government confidence that full 
     disclosure to the FISC will not result in a compromise of 
     sensitive information.

[[Page S5925]]

       Since the Government can never completely sanitize a FISC 
     application, the ``would not assist'' standard would also 
     create strong incentives to avoid suppression litigation and 
     the expanded risk of discovery. That means the Government 
     would lean away from prosecution of a FISC target, even where 
     that was the best way to protect the country. It would 
     thereby reduce the Government's ability to keep the country 
     safe, distorting the vital tactical judgments that must be 
     made. Indeed, the proposal would inhibit more than just 
     prosecutions. In keeping with the scope of FISC's suppression 
     remedy, the proposal would limit the use of FISC information 
     in any proceeding, including immigration proceedings, or even 
     in intemal adjudications of security clearances under 
     Executive Order 12968. Here again the Government would face a 
     difficult choice between using FISC information to protect 
     national security and risking disclosure of the information 
     as the cost of doing so.
       We appreciate your continuing leadership in ensuring that 
     the Department of Justice and other Federal agencies have the 
     authority they need to combat terrorism effectively. Please 
     do not hesitate to contact me if I can be of further 
     assistance. The Office of Management and Budget has advised 
     us that from the perspective of the Administration's program, 
     there is no objection to submission of this letter.
           Sincerely,
                                                   Jamie E. Brown,
                                Acting Assistant Attorney General.
  Mr. HATCH. Mr. President, I rise in opposition to Senator Feinstein's 
amendment. While I appreciate the efforts by Senator Feinstein to draft 
a fix to the lone wolf terrorist problem under the Foreign Intelligence 
Surveillance Act of 1978, referred to as ``FISA'', the amendment simply 
will not do the job and will continue to expose our country to great 
national security risks. I will not and cannot accept such risks.
  Let me be more specific as to my concerns. First, as drafted, the 
amendment would create only a permissive presumption to authorize a 
court to approve a Foreign Intelligence Surveillance Act, ``FISA'', 
application when presented with a lone wolf situation. As drafted, the 
proposal would provide only that the court ``may'' find the existence 
of a ``presumption'' that a non-U.S. person engaged in sabotage or 
international terrorism is an agent of a foreign power under FISA.
  A permissive presumption creates a significant risk that the FISA 
court may not be authorized--or may feel constrained to exercise its 
discretion--to approve a FISA application when presented with a lone 
wolf terrorist who would otherwise be covered by the Kyl-Schumer-Biden-
DeWine approach.
  Second, the amendment does not clearly delineate how a permissive 
presumption would be applied by the FISA court. Assuming that the FISA 
court exercises its discretion and makes a finding that the presumption 
applies, the FISA court would then have to consider additional evidence 
in order to grant the application.
  The amendment does not specify beyond the permissive presumption what 
specific evidence or what other findings would have to be made in order 
for the FISA court to approve the application.
  In sum, by injecting a significant level of uncertainty into the FISA 
process, the amendment simply creates or even exacerbates the problem 
which it is intended to fix. We simply cannot take such a risk given 
the potential devastating consequences posed by the lone wolf 
terrorist.
  I would note here that in a letter dated April 30, 2003, the 
administration opposed this proposal, citing the fact that the effect 
of the proposal was unclear and that the proposal did not provide any 
standards to the FISA court to guide the exercise or its discretion.
  In contrast, the Kyl-Schumer-Biden-DeWine proposal creates clear 
definitions and would minimize uncertainty in an area where ambiguity 
could have devastating consequences--that is, where we are in danger of 
a terrorist attack by a lone wolf.
  For these reasons, I oppose the Feinstein amendment and urge my 
colleagues to vote against the Feinstein amendment.
  I yield the floor.
  Mr. KYL. Mr. President, the proponents of the bill urge our 
colleagues to vote against the Feinstein amendment. And from our 
perspective, I think we are ready to have that vote.
  I ask Senator Feinstein if she is ready, as well?
  Mrs. FEINSTEIN. Through the Chair, I think we can yield back the 
remainder of our time, I say to the Senator, and hold the vote, if 
everybody so desires.
  Mr. KYL. Mr. President, I yield back the remainder of my time on both 
the amendment and on the bill itself.
  The PRESIDING OFFICER. All time has been yielded back.
  The question is on agreeing to amendment No. 537.
  Mr. REID. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Alaska, (Ms. 
Murkowski) is necessarily absent.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from Florida (Mr. Graham), the Senator from Massachusetts (Mr. 
Kennedy), the Senator from Massachusetts (Mr. Kerry) and the Senator 
from Connecticut (Mr. Lieberman) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Delaware (Mr. Biden) would vote ``no.''
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``aye.''
  The result was announced--yeas 35, nays 59, as follows:

                      [Rollcall Vote No. 145 Leg.]

                                YEAS--35

     Akaka
     Baucus
     Bayh
     Bingaman
     Boxer
     Byrd
     Cantwell
     Clinton
     Corzine
     Daschle
     Dayton
     Dodd
     Durbin
     Edwards
     Feingold
     Feinstein
     Harkin
     Hollings
     Jeffords
     Johnson
     Lautenberg
     Leahy
     Levin
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Stabenow
     Sununu
     Wyden

                                NAYS--59

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Carper
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Kohl
     Kyl
     Landrieu
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Nickles
     Roberts
     Santorum
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Talent
     Thomas
     Voinovich
     Warner

                             NOT VOTING--6

     Biden
     Graham (FL)
     Kennedy
     Kerry
     Lieberman
     Murkowski
  The amendment (No. 537) was rejected.
  Mr. BIDEN. Mr. President, I am pleased to support final passage of S. 
113, a bill to amend the Foreign Intelligence Surveillance Act, FISA, 
to provide needed tools to detect and combat terrorists bent on 
attacking this Nation and killing our citizens. First, let me commend 
my colleagues, Senators Kyl and Schumer, for their relentless efforts 
in bringing this important issue to the floor of the U.S. Senate. Since 
the tragic events of September 11, all of us have tried to turn a 
critical eye toward our laws and the workings of government to discern 
how we might avert such a dreadful attack in the future. That attempt 
to fix what may be wrong with our existing system of intelligence-
gathering and law enforcement is perhaps the greatest tribute we can 
offer to the victims of that fateful day and their families.
  This bill, as amended, is a good example of how we can make basic, 
common-sense changes to existing law that will have a tremendous impact 
on our fight against terrorism. I was proud to be one of the authors of 
FISA in 1978. We worked long and hard to strike the right balance 
between protecting civil liberties on the one hand and deterring 
terrorist acts on the other. Since FISA permits the physical and 
electronic surveillance of suspected foreign agents, in some instances 
under a more generous standard than that allowed in Title III 
surveillances, an amendment to FISA should be carefully tailored to 
maintain its careful balance. I do not take lightly amending FISA, but 
believe that this bill does so in a manner that is both constitutional 
and narrowly tailored.

[[Page S5926]]

  I want to thank the sponsors of this legislation for their 
willingness to work with me to improve their original bill. I proposed 
two amendments, both of which were accepted by Senators Kyl and 
Schumer--and which the Judiciary Committee adopted without a dissenting 
vote on April 29, 2003. I believe my amendments improve S. 113 in three 
ways:
  First, the original legislation--which would have amended FISA to 
expand the definition of ``foreign power'' under 50 U.S.C. 
Sec. 1801(a)(4) to include non-U.S. persons who are engaged in 
international terrorism--would have allowed the government to extend 
the initial surveillance order for a period up to 1 year. The 1-year 
period constitutes the maximum period allowed under the statute and is 
only invoked under certain circumstances typically limited to groups 
and entities. More commonly, an order to conduct surveillance of 
individuals is only extended for a period up to 90 days. Instead, the 
amendment we offered on April 29, 2003, amended the definition for 
``agent of a foreign power'' by creating a new 50 U.S.C. 
Sec. 1801(b)(1)(C). This amendment would apply the default 90-day 
period to this new category of surveillance targets, which is far more 
sensible and consistent with the way we treat other individual targets, 
as opposed to groups, under the statute.
  Second, by amending 50 U.S.C. Sec. 1801(a), the original legislation 
would have precluded individuals who are improperly subjected to 
surveillance or about whom surveillance information has been 
inappropriately disclosed from filing suit. My amendment, on the other 
hand, allowed aggrieved individuals who are improperly targeted under 
this new provision to seek redress in the courts and, where 
appropriate, recover damages. This modification to Senator Kyl's 
original bill is consistent with the typical and intended treatment of 
individuals under 18 U.S.C. Sec. 1801(b). See H.R. Rep. No. 95-1283, at 
pt. 1, 98 (1978) (noting that the only aggrieved persons ``barred from 
the civil remedy will be primarily those persons who are themselves 
immune from criminal or civil liability because of their diplomatic 
status'').
  Third, my amendment added a sunset provision to the legislation, 
forcing Congress to re-visit this issue no later than December 31, 
2005. The USA Patriot Act (which the Senate overwhelmingly passed a 
year and a half ago) includes a similar sunset provision for the FISA 
provisions contained therein. My amendment simply insures that this 
body will reevaluate the FISA measure on which we are voting today, in 
the context of its broader re-consideration of those other FISA 
provisions. Such a review is consistent with our oversight function 
and, plainly put, ensures that our actions are thoughtful and informed.
  Again, I am pleased that Senators Kyl and Schumer accepted these 
important revisions to the original text and, on that basis, am happy 
to support the amended bill that is before the Senate today.
  I also would like to commend my colleague, Senator Feinstein, for her 
efforts to engage this issue responsibly and thoughtfully. She has 
proposed an alternative, which makes an important contribution to the 
debate but with which I happen to disagree, for several reasons.
  First, my good friend from California asserts that criminal 
prosecutors will abuse the FISA process by securing FISA surveillance--
with its lower burdens of proof--against garden variety criminal 
targets, rather than pursuant to Title III. I am simply not persuaded 
that this will be the case. It should be noted that the new section 
created in this bill has a very high standard, higher indeed than that 
required by Title III. That is, the government must show probable cause 
that the FISA target has engaged in acts of ``international 
terrorism,'' which the statute defines as acts which (i) are a 
violation of the criminal law under the laws of the United States or 
any state; (ii) appear intended to influence our government or 
intimidate our citizens; and (iii) which occur outside the United 
States or transcend national boundaries. Thus, I doubt that a 
prosecutor would ever be able to seek a FISA warrant under this section 
where he would not also be able to obtain a Title III warrant. Morever, 
I am not convinced that a prosecutor would seek a FISA warrant where 
their real interest is, not obtaining foreign intelligence information, 
but rather the eventual prosecution of the FISA target. Given the 
strict exclusionary rules FISA imposes, prosecutors would be loathe to 
ever seek a FISA warrant for a target they seek to prosecute out of 
fear that the judge would suppress the surveillance in a criminal 
prosecution which was improperly ``boot-strapped'' from a FISA 
investigation.
  Second, the Feinstein amendment asserts that, under the Kyl-Schumer 
bill, a judge would be a mere ``rubber-stamp'' for a governmental 
request for a FISA warrant. The amendment presumes that judges do not 
now have discretion to refuse the government's request, which is not 
true. Under current law, the judge still must determine that probable 
cause exists that the individual is an agent of a foreign power engaged 
in, or in preparation for, acts of international terrorism. S. 113 does 
nothing to alter that existing requirement. Rather, it makes it clear 
that any non-U.S. citizen who engages in terrorism or is preparing to 
engage in terrorism would fall within the definition of an ``agent of a 
foreign power.'' Nothing in this bill would curtail a judge's ability 
to second-guess, or look behind, the assertions advanced by the 
government in its application for a warrant. If there is no basis to 
believe that probable cause exists, the application would be properly 
denied. Indeed, we rely on judges for this very purpose--namely, to 
ascertain the veracity of the facts presented by the government.
  As opposed to clarifying the definition of ``agent of a foreign 
power,'' as the Kyl-Schumer bill does, the Feinstein amendment would 
allow--but not require--a judge to ``presume'' that an individual is 
such an agent, which in my view creates a difference without a real 
distinction. Rather than afford individual targets any added 
protections, the Feinstein amendment would inject a considerable amount 
of murkiness into an otherwise certain process and may result in 
inconsistent rulings by different judges. Likewise, FISA judges may 
simply decline to apply the presumption in cases where the government 
cannot show much, if any, link between the non-U.S. citizen and a 
foreign power. There has been considerable disagreement over whether 
the Federal Bureau of Investigation had sufficient evidence to show 
that Zacarias Moussaoui, the so-called ``20th Hijacker,'' was an agent 
of a foreign power. Yet, I am concerned that a FISA judge might decline 
to exercise the ``permissive presumption'' in Senator Feinstein's 
amendment, and hence deny a FISA warrant, in the case of a true ``lone-
wolf'' terrorist who cannot be shown to have any links to a foreign 
power. As such, the FISA ``loophole'' S. 113 seeks to close would be 
left open. On that basis, I am forced to vote against the amendment.
  That is not to say, however, that there is not much more work to be 
done in this area. We must search for creative ways to give 
investigators the tools they need to gather information and seek out 
terrorists living among us, while at the same time vigilantly protect 
important civil rights and liberties. Toward that end, I welcome the 
oversight hearings that my friend Senator Hatch, chairman of the 
Judiciary Committee, has pledged to convene on the implementation of 
FISA and offer my continued service.
  It is my hope that the Senate's action today will assist our 
government in its effort to detect and root out foreign terrorists bent 
on violent acts against this great country. I support this bill and 
urge my colleagues to vote for it.
  Mr. HATCH. Mr. President, I commend Senators Kyl, Schumer, Biden and 
DeWine for their bipartisan cooperation in supporting S. 113. This bill 
will provide a critical tool needed by law enforcement and intelligence 
agencies to fight the war against terrorism. Specifically, S. 113 will 
address a glaring omission in the Foreign Intelligence Surveillance Act 
of 1978 referred to as FISA, to authorize the gathering of foreign 
intelligence information relating to a lone-wolf terrorist, that is, a 
non-U.S. person who is engaged in international terrorism or 
preparation thereof. In recognition of the critical need to support law 
enforcement and intelligence agencies in

[[Page S5927]]

the war against terrorism, the Judiciary Committee passed S. 113 by a 
bipartisan, unanimous vote of 19 to 0.
  This bipartisan proposal will enhance the ability of the FBI and 
intelligence agencies to investigate, detect, and prevent terrorists 
from carrying out devastating attacks on our country. Specifically, S. 
113 will amend the Foreign Intelligence Survelliance Act to include 
lone-wolf terrorists who engage in international terrorism or 
activities in preparation thereof without a showing of membership in or 
affiliation with an international terrorist group. A significant gap in 
the current statute exists with respect to application of the foreign 
power requirement to lone-wolf terrorists. S. 113 would authorize FISA 
surveillance or searches when law enforcement and intelligence agents 
identify an individual involved in international terrorism but cannot 
link the terrorist to a specific group.
  The administration strongly supports amending FISA to include non-
U.S. lone-wolf terrorists. On March 4, 2003, at a Judiciary Committee 
hearing examining the war on terrorism, both Attorney General Ashcroft 
and FBI Director Mueller indicated their strong support for fixing this 
glaring omission in the FISA statute. In fact, Director Mueller 
testified, both before the Judiciary Committee and previously before 
the Senate Select Committee on Intelligence, there is an increasing 
threat of lone extremists who have the motive and ability to carry out 
devastating attacks against our country.
  We need to provide law enforcement and intelligence agencies with the 
tools needed to protect our country from deadly terrorist attacks. With 
our recent success in the war against Iraq, the risk of terrorist 
attacks against our country may well rise. We need to ensure that our 
country has the ability to investigate and prevent such attacks if 
carried out by a lone extremist.
  While some interest groups that oppose this measure suggest that such 
a fix is not needed or claim that the FBI failed to properly apply the 
law in the Moussaoui investigation, that is simply beside the point: 
The September 11 attack against our country highlighted the need to 
fill in this gap in the FISA statute.
  FISA provides that electronic surveillance or physical searches may 
be authorized when there is probable cause to believe that the target 
is either an agent of, or is himself, a ``foreign power''--a term that 
is currently defined to include only foreign government or 
international terrorist organizations. Requiring a link to government 
or international terrorist organizations may have made sense when FISA 
was enacted in 1978; in that year, the typical FISA target was a Soviet 
spy or a member of one of the hierarchical, military-style terror 
groups of that era.
  Today the United States faces a much different threat. We are 
principally confronted not by specific groups or governments, but by a 
movement of Islamist extremists which does not maintain a fixed 
structure or membership list, and its adherents do not always advertise 
their affiliation with this cause. Moreover, in response to our 
country's efforts to fight terrorism worldwide, terrorists are 
increasingly operating in a more decentralized manner, far different 
from the terrorist threat that existed in 1978. The threat posed by a 
lone terrorist may be very real and may involve devastating 
consequences, even beyond those suffered by our country on September 
11. Given this increasing threat, we have to ensure that intelligence 
and law enforcement agencies have sufficient tools to meet this new--
and even more dangerous--challenge.
  While I support S. 113, as passed by the Judiciary Committee, I wish 
to note my concerns about the amendment offered by Senator Feingold, 
which has been agreed to, as part of consideration of this matter.
  The Feingold amendment would impose new FISA reporting requirements 
on the Justice Department, and require: (1) reports on the number of 
U.S. persons targeted by FISA order, by specific categories of 
surveillance, for example, electronic surveillance, physical searches, 
pen registers, and access to records; (2) identification of individuals 
who ``acted wholly alone;'' (3) disclosure of the number of times FISA 
material was used in a criminal proceeding; and (4) disclosure of 
portions of FISA pleadings and orders that deal with significant 
questions of law ``in a manner consistent with the protection of the 
national security of the United States.''
  As I have indicated on other occasions, I support reporting 
requirements when necessary for Congress to exercise responsible 
oversight. We have a duty to conduct meaningful oversight of the FISA 
process, and I am committed to such oversight and ensuring proper 
reporting requirements are imposed on the Justice Department.
  My concern with the Feingold amendment is that the operation of the 
amendment is unclear and may create confusion rather than bringing 
clarity to the issue. I would have preferred that we conduct a more 
deliberate examination of this issue to ensure that the reporting 
requirements are not harmful and will not create any significant risk 
of harm to sensitive law enforcement and intelligence operations 
against terrorists.
  More significantly, I am concerned that the Feingold amendment will 
alter well-established procedures for Congress's review and handling of 
classified operational intelligence information, in contrast to 
Congress's review and handling of ``finished'' intelligence 
information. For many years, and in fact the reason for the creation of 
the Senate Select Committee on Intelligence was to establish a 
professional, dedicated Intelligence Committee staff which would handle 
sensitive operational intelligence information. Congress did so to 
minimize the potential risk of harm to foreign counterintelligence 
operations. The accidental or inadvertent disclosure of such material 
could have a devastating impact on extremely sensitive CIA or FBI 
counterintelligence operations.
  Further, the Senate Select Committee on Intelligence rejected a 
similar reporting proposal in 1984 because ``the benefits of such 
disclosure for public understanding of FISA's impact would not outweigh 
the damage to FBI foreign counterintelligence capabilities that can be 
reasonably expected to result.''
  The FISA statute already sets forth detailed and specific 
requirements for the reporting of information to the Intelligence and 
Judiciary Committees, and there is simply no need to disrupt long-
established processes and procedures for FISA reporting between the 
executive branch and the Intelligence and Judiciary Committees relating 
to the handling of classified operations intelligence information.
  While I have these concerns about the Feingold amendment, on balance, 
I believe that fixing the FISA statue to address the long-wolf 
terrorist problem is more important than remedying the deficiencies in 
the Feingold amendment. The potential harm to our country from a lone-
wolf terrorist attack is significant and we must act--and act now by 
passing A. 113.
  Again, I commend Senators Kyl, Schumer, Biden, and DeWine for this 
important piece of legislation which reflects our bipartisan commitment 
to ensuring the safety of our country and the need to be vigilant in 
protecting our country from deadly and devastating terrorist attacks. I 
urge my colleagues to vote in favor of S. 113.
  The PRESIDING OFFICER (Mr. Enzi). Under the previous order, the 
committee amendment, as amended, is agreed to.
  The committee amendment, in the nature of a substitute, as amended, 
was agreed to.
  The PRESIDING OFFICER. Under the previous order, the question is on 
the engrossment and third reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  Mr. REID. Mr. President, I yield back all of our time.
  The PRESIDING OFFICER. All time has been yielded back.
  Mrs. FEINSTEIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The bill having been read the third time, the question is, Shall the 
bill, as amended, pass? The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Alaska (Ms. 
Murkowski) is necessarily absent.

[[Page S5928]]

  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from Florida (Mr. Graham), the Senator from Massachusetts (Mr. 
Kennedy), the Senator from Massachusetts (Mr. Kerry), and the Senator 
from Connecticut (Mr. Lieberman) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Delaware (Mr. Biden) and the Senator from Massachusetts (Mr. Kerry) 
would each vote ``Aye''.
  The result was announced--yeas 90, nays 4, as follows:

                      [Rollcall Vote No. 146 Leg.]

                                YEAS--90

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Edwards
     Ensign
     Enzi
     Feinstein
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                                NAYS--4

     Byrd
     Durbin
     Feingold
     Harkin

                             NOT VOTING--6

     Biden
     Graham (FL)
     Kennedy
     Kerry
     Lieberman
     Murkowski
  The bill (S. 113), as amended, was passed, as follows:
  The title was amended so as to read:

       To amend the Foreign Intelligence Surveillance Act of 1978 
     to cover individuals, other than United States persons, who 
     engage in international terrorism without affiliation with an 
     international terrorist group.

                          ____________________