Floor Statement by Senator Dianne Feinstein in Support of S.1510, the Anti-Terrorism Bill

Floor Statement by Senator Dianne Feinstein
- In Support of S.1510, the Anti-Terrorism Bill -
October 11, 2001

"Mr. President, I rise in strong support of the consensus terrorism bill now on the floor of the United States Senate. The people of the United States awoke on September 12 to a whole new world, one in which we can no longer feel safe within our borders. We awoke to a world in which our very way of life is under attack, and we have since resolved to fight back with every tool at our disposal.

This is an unprecedented state of affairs, and it demands unprecedented action. We must seek out and defeat individuals and groups who would build upon the September 11^th attacks with more of their own. We simply must give law enforcement officials the tools they need to track, to hunt down, and to capture terrorists - both in this country, and around the world as well. And that is what this bill would do.

KEY PROVISIONS:

Let me just describe some of the key provisions of this legislation, and how those provisions will make an impact, even in the current investigation into the September 11 attacks.

Section 153:

First, this bill makes it easier to collect foreign intelligence information under the Foreign Intelligence Surveillance Act (FISA). Under current law, authorities can proceed with surveillance under FISA only if the primary purpose of the investigation is to collect foreign intelligence.

But in today's world things are not so simple. In many cases, surveillance will have two key goals - the gathering of foreign intelligence, and the gathering of evidence for a criminal prosecution. Determining which purpose is the "primary" purpose of the investigation can be difficult, and will only become more so as we coordinate our intelligence and law enforcement efforts in the war against terror.

Rather than forcing law enforcement to decide which purpose is primary - law enforcement or foreign intelligence gathering - this bill strikes a new balance. It will now require that a "significant" purpose of the investigation must be foreign intelligence gathering to proceed with surveillance under FISA.

The effect of this provision will be to make it easier for law enforcement to obtain a FISA search or surveillance warrant for those cases where the subject of the surveillance is both a potential source of valuable intelligence and the potential target of a criminal prosecution. Many of the individuals involved in supporting the September 11 attacks may well fall into both of these categories.

This language is a negotiated compromise between those who wished the law to stay the same, and those who wished to virtually eliminate the foreign intelligence standard entirely.

The Administration originally proposed changing "primary purpose" to "a purpose," but when I questioned Attorney General Ashcroft at our Judiciary Committee hearing, he agreed that "significant purpose" would represent a good compromise.

Section 152:

Second, this legislation will provide multi-point authority, or so-called "roving wiretap authority" in foreign intelligence investigations. This provision is designed to defeat attempts to evade law enforcement by simply switching cell phones or moving locations.

Under current law, law enforcement must get a wiretap order for each individual phone line. Criminals and terrorists know this, so they often manage to defeat surveillance by simply moving locations or exchanging countless disposable or even stolen cell phones.

This legislation will now allow the surveillance to follow the person, wherever or however that person is communicating. So, no longer will duplicative wiretap orders be necessary simply to listen to the same, single target of an investigation. This is a powerful change to the law that does not put innocent conversations in danger, but stops the evasion of surveillance now possible under the law.

Section 101:

Third, this legislation allows nationwide service of so-called "pen register" and "trap and trace" orders. Those orders allow law enforcement to track incoming and outgoing phone calls, and now Internet addressing, so that the authorities can make connections between various criminals or terrorists.

The problem with current law is that it has not kept up with technology. Modern communications travel through many jurisdictions before reaching their final destinations, and current law requires court orders from every jurisdiction through which the communication travels.

Under this new legislation, only one court order will be necessary, eliminating the time-consuming and burdensome requirements now placed on law enforcement simply because technology has changed the way communications travel from one place to the other. Law enforcement resources should be spent in the field, not filing unnecessarily burdensome motions in courtroom after courtroom.

I should also mention one important point about this provision. The standard necessary to get a court-ordered pen register or trap and trace is lower than the standard necessary to get a wiretap, so it was very important to make sure that this legislation makes it clear that these orders do not allow law enforcement to eavesdrop on or read the content of communication. Only the origin and destination of the messages will be intercepted.

Section 102:

Mr. President, this legislation also authorizes the seizure of voice-mail messages pursuant to a probable cause warrant, which is an easier standard for law enforcement to meet than the standard required for a wiretap.

Current law treats a voice-mail like an ongoing oral communication, and requires law enforcement to obtain a wiretap order to seize and listen to those saved messages. E-mails, however, receive no similar protection. In my opinion, if law enforcement can access e-mail communications with probable cause, the same should be the case with voice-mails. And so it will be once this legislation passes.

Section 353:

This legislation will also now allow for limited sharing of grand jury and other criminal investigation information with the intelligence community, to assist in the prevention of terrorist acts and the apprehension of the terrorists themselves.

Under current law, law enforcement officials involved in a grand jury investigation cannot share information gathered in the grand jury with the intelligence community, even if that information would prevent a future terrorist act.

Under this legislation, grand jury and other criminal investigative information can be shared if (1) the information can is foreign intelligence and counterintelligence information, as defined by statute; (2) the information is given to an official with a need to know in the performance of his or her official duties; and (3) limitations on public or other unauthorized disclosure would remain in force.

This balance makes sense - I feel very strongly that grand jury information should not be leaked to the public or disclosed haphazardly to anyone. But at the same time, it makes perfect sense to allow our own law enforcement officials to talk to each other about ongoing investigations, and to coordinate their efforts to capture terrorists wherever they may be.

Section 203:

This legislation also contains a heavily negotiated provision regarding the detention of aliens suspected of links to terrorism without charging them. Agreement was reached to (1) limit to 7 days the length of time an alien may be held before being charged with criminal or immigration violations, (2) allow the Attorney General to delegate the certification power only to the INS Commissioner, and (3) specify that the merits of the certification is subject to judicial review.

Intelligence Provisions:

This legislation also contains several key provisions from a bill I introduced last month with the Chairman of the Intelligence Committee, Senator Graham. For instance, the bill:

Clarifies the role of the CIA director as the coordinator of strategies and priorities for how the government uses its limited surveillance resources;
Requires that law enforcement officers who discover foreign intelligence information in the course of a criminal investigation share that information with the intelligence community;
Includes "international terrorist activities" in the definition of "foreign intelligence" to clarify the authorities of the CIA;
Includes a sense of Congress that the CIA should make efforts to recruit informants in the fight against terrorism, even if some of those informants may, as is likely the case, not be ideal citizens;
Requires a report from the CIA on the feasibility of establishing a virtual translation center for use by the intelligence community, so that translators around the country can assist in investigations taking place far, far away. For instance, this center would allow a translator living in Los Angeles to assist law enforcement in New York without ever leaving California;
And finally, agreement was reached to require the Attorney General, in consultation with the CIA Director, to provide training to federal, state and local government officials to identify foreign intelligence information obtained in the course of their duties.
Additional Provisions:

In addition, this bill also:
Triples the number of Border Patrol, Customs Service, and INS inspectors at the northern border;
Authorizes $50 million to improve INS and Customs technology for monitoring the northern border and to add equipment on the border;
Lifts the statute of limitations on terrorist acts as defined by law where those crimes resulted in, or created a risk of, death or serious bodily injury. These crimes include bio-terrorism, attacks against airports or airplanes, arson or bombings of U.S. facilities, and other terrorist acts;
Adds this same list of terrorist crimes certain as predicates for RICO and money laundering;
Creates two new bio-terrorism crimes (The first prohibits certain restricted persons, including non-resident aliens from countries that support terrorism, from possessing a listed biological agent or toxin; and the second prohibits any person from possessing a biological agent, toxin, or delivery system of a type or in a quantity that, under the circumstances, is not reasonably justified by a peaceful purpose).
CONCLUSION:

Mr. President, the Attorney General and the President of the United States have asked this Congress to give them legislation that will assist in the war against terrorism, and I am one who believes very strongly that we should do so, and we should do so quickly.

This bill is a product of intense negotiations, and I believe that a good balance has been struck here. Compromises have been reached on the most controversial provisions - roving wiretap authority; trap and trace of computer routing information; sharing of grand jury information; and mandatory detention of aliens suspected of terrorism.

Although I no longer believe it to be necessary now that these compromises have been reached, I would support a five-year sunset on the provisions I just mentioned as a valuable check on the potential abuse of the new powers granted in the bill.

But a two-year sunset, such as the one contained in the House bill, is simply too short to allow law enforcement to accomplish what it needs to do to rout terrorists from this country.

Mr. President, the legislation before us contains provisions that could actually help in the current investigation into Osama bin Laden and his network in the United States and abroad.

I urge this Senate to pass this legislation and get it to the President for his signature. We are in a sustained war against terror, and we have waited long enough. I yield the floor."