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The PRESIDING OFFICER. The clerk will report the bill by title.

The legislative clerk read as follows:

A bill (S. 1510) to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.

Mr. LEAHY. Mr. President, what is the time agreement that we are now operating under?

The PRESIDING OFFICER. There are 4 hours equally divided. In addition, there are 40 minutes on each of the four amendments to be offered by the Senator from Wisconsin, Mr. Feingold.

Mr. LEAHY. I thank the distinguished Presiding Officer.

I cannot help but think in looking at our distinguished Presiding Officer, the senior Senator from New York, how much his State has suffered. Both he and his distinguished colleague, Senator Clinton, have spoken so eloquently, both on the floor and elsewhere, about that. I know in my own private conversations with the distinguished Presiding Officer I felt the depth of his grief and emotion for a city that he obviously and unabashedly loves. His references to New York City over the years are almost similar to the kind of comments I make about Vermont. But I do note the accent is somewhat different. I assume it is because of the Vermont accent.

But I think the Senators from New York, and the Senators from New Jersey and Connecticut have especially spoken of the effect on families and loved ones in the New York City area. People who work there are from New York, New Jersey, and Connecticut. I know how sad they feel.

I think of the people who died in Pennsylvania in an airplane that was probably planning to strike the very building we are in--this symbol of democracy. Only with a great loss of life did it not happen. But there would be an enormous disruption in our Government. The next day, the view that most people around the world have--our symbol of democracy--would be gone.

I think of the brave men and women who died, as the President and others have said, doing their duty at the Pentagon, and the hundreds--even thousands--of children who went to school happily in the morning and came home to find that they were orphans.

It was a terrible, terrible day.

I think back to what happened in Oklahoma City in 1995 and the actions we took then. We are moving, of course, much faster now than we did at that time, and I hope perhaps with more care on legislation.

We have before us the USA Act of 2001. I worked with Chairman Sensenbrenner and Congressman Conyers

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and Republican and Democratic leaders in the House because I hope Congress can act swiftly to enact this measure.

Some may be concerned if we have a conference--because the House is somewhat different than the Senate--that we could take a year or more to resolve these issues. That happened after Oklahoma City. That legislation took nearly a year to reconcile.

I believe the American people and my fellow Senators, both Republican and Democratic, deserve faster final action.

I assure the Senate, when we go to conference, we will complete that conference very quickly. We have demonstrated the ability in this body--and also Senators who have worked with me on both sides of the aisle and our staff--that we can work around the clock.

The distinguished senior Senator from Utah, Mr. Hatch, and I have been working together in constant communication with our staffs.

Last Thursday, October 4, I was pleased to introduce, along with the majority leader, Senator Daschle, and the Republican leader, Senator Lott, also the chairmen of the Banking and Intelligence Committees, Senator Sarbanes, Senator Graham of Florida, Senator Hatch, and Senator Shelby, the USA Act.

I must say this bill is not the bill I would have written if I were the only one writing it. I daresay it is not the bill the distinguished Presiding Officer, one of the brightest and most accomplished people I know, would have written, if he were writing it. It is not the bill the distinguished chairman of the Banking Committee would have written if he were writing it. It is not the bill the distinguished ranking member, Mr. Hatch, would have written when he was chairman, if he was solely writing the bill. It is really not the bill that any one of the other Members would have written. We can't pass 100 bills.

We have tried to put together the best possible bill. Of course, Republican and Democratic colleagues must come together, and that is what we did.

I should point out that this is not the bill the administration, through the Attorney General, delivered to us and asked for immediate passage. We actually did the administration a favor because rather than take the bill they dropped in our laps and said pass immediately, we did something that apparently they had not done. We read it and were able to refine and supplement their proposal in a number of ways. We were able to remove a number of unconstitutional parts. The administration accepted a number of practical steps that I proposed to improve our security on the Northern Border to assist our State, Federal, and local law enforcement officers and provide compensation to the victims of terrorist acts and to the public safety officers that gave their lives to protect us.

It also provides proposed checks on Government powers--checks that were not contained in the Attorney General's initial proposal.

In negotiations with the administration, I have done my best to strike a reasonable balance between the need to address the threat of terrorism, which we all keenly feel at the present time, and the need to protect our constitutional freedoms. Despite my misgivings, I have acquiesced in some of the administration's proposals because it is important to preserve national unity in this time of national crisis and to move the legislative process forward.

We still have room for improvement. Even after the Senate passes judgment on this bill--I believe it will tonight--the debate is not going to be finished because we have to consider those important things done in the other body.

What I have done throughout this time is to remember the words of Benjamin Franklin--when he literally had his neck on the line because if the Revolution had failed, he and the others would have been hanged--when he said: A people who would trade their liberty for security deserve neither.

We protected our security, but I am not going to give up the liberties that Americans have spent 220 years to obtain.

Moreover, our ability to make rapid progress was impeded because the negotiations with the Administration did not progress in a straight line. On several key issues that are of particular concern to me, we had reached an agreement with the Administration on Sunday, September 30. Unfortunately, within two days, the Administration announced that it was reneging on the deal. I appreciate the complex task of considering the concerns and missions of multiple federal agencies, and that sometimes agreements must be modified as their implications are scrutinized by affected agencies. When agreements made by the Administration must be withdrawn and negotiations on resolved issues reopened, those in the Administration who blame the Congress for delay with what the New York Times described last week as ``scurrilous remarks,'' do not help the process move forward.

Hearings. We have expedited the legislative process in the Judiciary Committee to consider the Administration's proposals. In daily news conferences, the Attorney General has referred to the need for such prompt consideration. I commend him for making the time to appear before the Judiciary Committee at a hearing September 25 to respond to questions that Members from both parties have about the Administration's initial proposals. I also thank the Attorney General for extending the hour and a half he was able to make in his schedule for the hearing for another fifteen minutes so that Senator FEINSTEIN and Senator SPECTER were able to ask questions before his departure. I regret that the Attorney General did not have the time to respond to questions from all the Members of the committee either on September 25 or last week, but again thank him for the attention he promised to give to written questions Members submitted about the legislation. We have not received answers to those written questions yet, but I will make them a part of the hearing whenever they are sent.

The Chairman of the Constitution Subcommittee, Senator FEINGOLD, also held an important hearing on October 3 on the civil liberties ramifications of the expanded surveillance powers requested by the Administration. I thank him for his assistance in illuminating these critical issues for the Senate.

Rule 14. To accede to the Administration's request for prompt consideration of this legislation, the Leaders decided to hold the USA Act at the desk rather than refer the bill to the Committee for mark-up, as is regular practice. Senator HATCH specifically urged that this occur and I support this decision. Indeed, when the Senate considered the anti-terrorism act in 1995 after the Oklahoma City bombing, we bypassed Committee in order to deal with the legislation more promptly on the floor.

Given the expedited process that we have used to move this bill, I will take more time than usual to detail its provisions.

Victims. The heart of every American aches for those who died or have been injured because of the tragic terrorist attacks in New York, Virginia, and Pennsylvania on September 11th. Even now, we cannot assess the full measure of this attack in terms of human lives, but we know that the number of casualties is extraordinarily high.

Congress acted swiftly to help the victims of September 11th. Within 10 days, we passed legislation to establish a Victims Compensation Program, which will provide fair compensation to those most affected by this national tragedy. I am proud of our work on that legislation, which will expedite payments to thousands of Americans whose lives were so suddenly shattered.

But now more than ever, we should remember the tens of thousands of Americans whose needs are not being met--the victims of crimes that have not made the national headlines. Just one day before the events that have so transformed our nation, I came before this body to express my concern that we were not doing more for crime victims. I noted that the pace of victims legislation has slowed, and that many opportunities for progress had been squandered. I suggested that this year, we had a golden opportunity to make significant progress in this area by passing S. 783, the Leahy-Kennedy Crime Victims Assistance Act of 2001.

I am pleased, therefore, that the antiterrorism package now before the Senate contains substantial portions of S. 783 aimed at refining the Victims of Crime Act of 1984 (VOCA), and improving the manner in which the Crime Victims Fund is managed and preserved. Most significantly, section 621

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of the USA Act will eliminate the cap on VOCA spending, which has prevented more than $700 million in Fund deposits from reaching victims and supporting essential services.

Congress has capped spending from the Fund for the last two fiscal year, and President Bush has proposed a third cap for fiscal year 2002. These limits on VOCA spending have created a growing sense of confusion and unease by many of those concerned about the future of the Fund.

We should not be imposing artificial caps on VOCA spending while substantial unmet needs continue to exist. Section 621 of the USA Act replaces the cap with a self-regulating system that will ensure stability and protection of Fund assets, while allowing more money to be distributed to the States for victim compensation and assistance.

Other provisions included from S. 783 will also make an immediate difference in the lives of victims, including victims of terrorism. Shortly after the Oklahoma City bombing, I proposed and the Congress adopted the Victims of Terrorism Act of 1995. This legislation authorized the Office for Victims of Crime (OVC) to set aside an emergency reserve of up to $50 million as part of the Crime Victims Fund. The emergency reserve was intended to serve as a ``rainy day'' fund to supplement compensation and assistance grants to States to provide emergency relief in the wake of an act of terrorism or mass violence that might otherwise overwhelm the resources of a State's crime victim compensation program and crime victim assistance services. Last month's disaster created vast needs that have all but depleted the reserve. Section 621 of the USA Act authorizes OVC to replenish the reserve with up to $50 million, and streamlines the mechanism for replenishment in future years.

Another critical provision of the USA Act will enable OVC to provide more immediate and effective assistance to victims of terrorism and mass violence occurring within the United States. I proposed this measure last year as an amendment to the Justice for Victims of Terrorism Act, but was compelled to drop it to achieve bipartisan consensus. I am pleased that we are finally getting it done this year.

These and other VOCA reforms in the USA Act are long overdue. Yet, I regret that we are not doing more. In my view, we should pass the Crime Victims Assistance Act in its entirety. In addition to the provisions that are included in today's antiterrorism package, this legislation provides for comprehensive reform of Federal law to establish enhanced rights and protections for victims of Federal crime. It also proposes several programs to help States provide better assistance for victims of State crimes.

I also regret that we have not done more for other victims of recent terrorist attacks. While all Americans are numbed by the heinous acts of September 11th, we should not forget the victims of the 1998 embassy bombings in East Africa. Eleven Americans and many Kenyan and Tanzanian nationals employed by the United States lost their lives in that tragic incident. It is my understanding that compensation to the families of these victims has in many instances fallen short. It is my hope that OVC will use a portion of the newly replenished reserve fund to remedy any inequity in the way that these individuals have been treated.

Hate crimes. We cannot speak of the victims of the September 11 without also noting that Arab-Americans and Muslims in this country have become the targets of hate crimes, harassment, and intimidation. I applaud the President for speaking out against and condemning such acts, and visiting a mosque to demonstrate by action that all religions are embraced in this country. I also commend the FBI Director for his periodic reports on the number of hate crime incidents against Arab-American and Muslims that the FBI is aggressively investigating and making clear that this conduct is taken seriously and will be punished.

The USA Act contains, in section 102, a sense of the Congress that crimes and discrimination against Arab and Muslim Americans are condemned. Many of us would like to do more, and finally enact effective hate crimes legislation, but the Administration has asked that the debate on that legislation be postponed. One of my greatest regrets regarding the negotiations in this bill was the objections that prevented the Local Law Enforcement Enhancement Act, S. 625, from being included in the USA Act.

State and local law enforcement. The Administration's initial proposal was entirely focused on Federal law enforcement. Yet, we must remember that state and local law enforcement officers have critical roles to play in preventing and investigating terrorist acts. I am pleased that the USA Act we consider today recognizes this fact.

As a former State prosecutor, I know that State and local law enforcement officers are often the first responders to a crime. On September 11th, the nation saw that the first on the scene were the heroic firefighters, police officers and emergency personnel in New York City. These New York public safety officers, many of whom gave the ultimate sacrifice, remind us of how important it is to support our State and local law enforcement partners. The USA Act provides three critical measures of Federal support for our State and local law enforcement officers in the war against terrorism.

First, we streamline and expedite the Public Safety Officers' Benefits application process for family members of fire fighters, police officers and rescue workers who perish or suffer a disabling injury in connection with prevention, investigation, rescue or recovery efforts related to a future terrorist attack.

The Public Safety Officers' Benefits Program provides benefits for each of the families of law enforcement officers, firefighters, and emergency response crew members who are killed or disabled in the line of duty. Current regulations, however, require the families of public safety officers who have fallen in the line of duty to go through a cumbersome and time-consuming application process. In the face of our national fight against terrorism, it is important that we provide a quick process to support the families of brave Americans who selflessly give their lives so that others might live before, during and after a terrorist attack.

This provision builds on the new law championed by Senator CLINTON, Senator SCHUMER and Congressman NADLER to speed the benefit payment process for families of public safety officers killed in the line of duty in New York City, Virginia, and Western Pennsylvania, on September 11.

Second, we have raised the total amount of Public Safety Officers' Benefit Program payments from approximately $150,000 to $250,000. This provision retroactively goes into effort to provide much-needed relief for the families of the brave men and women who sacrificed their own lives for their fellow Americans during the year. Although this increase in benefits can never replace a family's tragic loss, it is the right thing to do for the families of our fallen heroes. I want to thank Senator BIDEN and Senator HATCH for their bipartisan leadership on this provision.

Third, we expand the Department of Justice Regional Information Sharing Systems Program to promote information sharing among Federal, State and local law enforcement agencies to investigate and prosecute terrorist conspiracies and activities and authorize a doubling of funding for this year and next year. The RISS Secure Intranet is a nationwide law enforcement network that already allows secure communications among the more than 5,700 Federal, State and local law enforcement agencies. Effective communication is key to effective law enforcement efforts and will be essential in our national fight against terrorism.

The RISS program enables its member agencies to send secure, encrypted communications--whether within just one agency or from one agency to another. Federal agencies, such as the FBI, do not have this capability, but recognize the need for it. Indeed, on September 11, 2001, immediately after the terrorist attacks, FBI Headquarters called RISS officials to request ``Smartgate'' cards and readers to secure their communications systems. The FBI agency in Philadelphia called soon after to request more Smartgate cards and readers as well.

The Regional Information sharing Systems Program is a proven success that we need to expand to improve secure information sharing among Federal, State and local law enforcement

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agencies to coordinate their counter-terrorism efforts.

Our State and local law enforcement partners welcome the challenge to join in our national mission to combat terrorism. We cannot ask State and local law enforcement officers to assume these new national responsibilities without also providing new Federal support. The USA Act provides the necessary Federal support for our State and local law enforcement officers to serve as full partners in our fight against terrorism.

I am deeply troubled by continuing reports that information is not being shared with state local law enforcement. In particular, the testimony of Baltimore Police Chief Ed Norris before the House Government Reform Committee last week highlighted the current problem.

Northern borders. The unfolding facts about how the terrorists who committed the September 11 attack were able to enter this country without difficulty are chilling. Since the attacks many have pointed to our northern border as vulnerable to the entry of future terrorists. This is not surprising when a simple review of the numbers shows that the northern border has been routinely short-changed in personnel. While the number of border patrol agents along the southern border has increased over the last few years to over 8,000, the number at the northern border has remained the same as a decade ago at 300. This remains true despite the fact that Admad Ressam, the Algerian who planned to blow up the Los Angeles International Airport in 1999, and who has been linked to those involved in the September 11 attacks, chose to enter the United States at our northern border. It will remain an inviting target until we dramatically improve our security.

The USA Act includes my proposals to provide the substantial and long overdue assistance for our law enforcement and border control efforts along the Northern Border. My home state of Vermont has seen huge increases in customs and INS activity since the signing of NAFTA. The number of people coming through our borders has risen steeply over the years, but our staff and our resources have not.

I proposed--and this legislation authorizes in section 402--tripling the number of Border Patrol, INS inspectors, and customs Service employees in each of the States along the 4,000-mile Northern Border. I was gratified when 22 Senators--Democrats and Republicans--wrote to the President supporting such an increase, and I am pleased that the Administration agreed that this critical law enforcement improvement should be included in the bill. Senators CANTWELL and SCHUMER in the Committee and Senators MURRAY and DORGAN have been especially strong advocates of these provisions and I thank them for their leadership. In addition, the USA Act, in section 401, authorizes the Attorney General to waive the FTE cap on INS personnel in order to address the national security needs of the United States on the northern border. Now more than ever, we must patrol our border vigilantly and prevent those who wish America harm from gaining entry. At the same time, we must work with the Canadians to allow speedy crossing to legitimate visitors and foster the continued growth of trade which is beneficial to both countries.

In addition to providing for more personnel, this bill also includes, in section 402(4), my proposal to provide $100 million in funding for both the INS and the Customs Service to

improve the technology used to monitor the Northern Border and to purchase additional equipment. The bill also includes, in section 403(c), an important provisions from Senator CANTWELL directing the Attorney General, in consultation with other agencies, to develop a technical standard for identifying electronically the identity of persons applying for visas or seeking to enter the United States. In short, this bill provides a comprehensive high-tech boost for the security of our nation.

This bill also includes important proposals to enhance data sharing. The bill, in section 403, directs the Attorney General and the FBI Director to give the State Department and INS access to the criminal history information in the FBI's National Crime Information Center (NCIC) database, as the Administration and I both proposed. The Attorney General is directed to report back to the Congress in two years on progress in implementing this requirement. We have also adopted the Administration's language, in section 413, to make it easier for the State Department to share information with foreign governments for aid in terrorist investigations.

Criminal justice improvements. The USA Act contains a number of provisions intended to improve and update the federal criminal code to address better the nature of terrorist activity, assist the FBI in translating foreign language information collected, and ensure that federal prosecutors are unhindered by conflicting local rules of conduct to get the job done. I will mention just a few of these provisions.

FBI translators. The truth certainly seems self-evident that all the best surveillance techniques in the world will not help this country defend itself from terrorist attack if the information cannot be understood in a timely fashion. Indeed, within days of the September 11, the FBI Director issued an employment ad on national TV by calling upon those who speak Arabic to apply for a job as an FBI translator. This is a dire situation that needs attention. I am therefore gratified that the Administration accepted by proposal, in section 205, to waive any federal personnel requirements and limitations imposed by any other law in order to expedite the hiring of translators at the FBI.

This bill also directs the FBI Director to establish such security requirements as are necessary for the personnel employed as translators. We know the effort to recruit translators has a high priority, and the Congress should provide all possible support. Therefore, the bill calls on the Attorney General to report to the Judiciary Committees on the number of translators employed by the Justice Department, any legal or practical impediments to using translators employed by other Federal, State, or local agencies, on a full, part-time, or shared basis; and the needs of the FBI for specific translation services in certain languages, and recommendations for meeting those needs.

Federal crime of terrorism. The Administration's initial proposal assembled a laundry list of more than 40 Federal crimes ranging from computer hacking to malicious mischief to the use of weapons of mass destruction, and designated them as ``Federal terrorism offenses,'' regardless of the circumstances under which they were committed. For example, a teenager who spammed the NASA website and, as a result, recklessly caused damage, would be deemed to have committed this new ``terrorism'' offense. Under the Administration's proposal, the consequences of this designation were severe. Crimes on the list would carry no statute of limitations. The maximum penalties would shoot up to life imprisonment, and those released earlier would be subject to a lifetime of supervised release. Moreover, anyone who harbored a person whom he had ``reasonable grounds to suspect'' had committed, or was about to commit, a ``Federal terrorism offense''--whether it was the Taliban or the mother of my hypothetical teenage computer hacker--would be subject to stiff criminal penalties. I worked closely with the Administration to ensure that the definition of ``terrorism'' in the USA Act fit the crime.

First, we have trimmed the list of crimes that may be considered as terrorism predicates in section 808 of the bill. This shorter, more focused list, to be codified at 18 U.S.C. §2332(g)(5)(B), more closely reflects the sorts of offenses committed by terrorists.

Second, we have provided, in section 810, that the current 8-year limitations period for this new set of offenses will remain in place, except where the commission of the offense resulted in, or created a risk of, death or serious bodily injury.

Third, rather than make an across-the-board, one-size-fits-all increase of the penalties for every offense on the list, without regard to the severity of the offense, we have made, in section 811, more measured increases in maximum penalties where appropriate, including life imprisonment or lifetime supervised release in cases in which the offense resulted in death. We have also added, in section 812, conspiracy provisions to a few criminal statutes where appropriate, with penalties equal to the penalties for the object offense, up to life imprisonment.

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Finally, we have more carefully defined the new crime of harboring terrorists in section 804, so that it applies only to those harboring people who have committed, or are about to commit, the most serious of federal terrorism-related crimes, such as the use of weapons of mass destruction. Moreover, it is not enough that the defendant had ``reasonable grounds to suspect'' that the person he was harboring had committed, or was about to commit, such a crime; the government must prove that the defendant knew or had ``reasonable grounds to believe'' that this was so.

McDade fix. The massive investigation underway into who was responsible for and assisted in carrying out the September 11 attacks stretches across state and national boundaries. While the scope of the tragedy is unsurpassed, the disregard for state and national borders of this criminal conspiracy is not unusual. Federal investigative officers and prosecutors often must follow leads and conduct investigations outside their assigned jurisdictions. At the end of the 105th Congress, a legal impediment to such multi-jurisdiction investigations was slipped into the omnibus appropriations bill, over the objection at the time of every member of the Senate Judiciary Committee.

I have spoken many times over the past two years of the problems caused by the so-called McDade law, 28 U.S.C. §530B. According to the Justice Department, the McDade law has delayed important criminal investigations, prevented the use of effective and traditionally-accepted investigative techniques, and served as the basis of litigation to interfere with legitimate federal prosecutions. At a time when we need federal law enforcement authorities to move quickly to catch those responsible for the September 11th attacks, and to prevent further attacks on our country, we can no longer tolerate the drag on federal investigations and prosecutions caused by this ill-considered legislation.

On September 19th, I introduced S. 1437, the Professional Standards for Government Attorneys Act of 2001, along with Senators HATCH and WYDEN. This bill proposes to modify the McDade law by establishing a set of rules that clarify the professional standards applicable to government attorneys. I am delighted that the Administration recognized the importance of S. 1437 for improving federal law enforcement and combating terrorism, and agreed to its inclusion as section 501 of the USA Act.

The first part of section 501 embodies the traditional understanding that when lawyers handle cases before a Federal court, they should be subject to the Federal court's standards of professional responsibility, and not to the possibly inconsistent standards of other jurisdictions. By incorporating this ordinary choice-of-law principle, the bill preserves the Federal courts' traditional authority to oversee the professional conduct of Federal trial lawyers, including Federal prosecutors. It thus avoids the uncertainties presented by the McDade law, which potentially subjects Federal prosecutors to State laws, rules of criminal procedure, and judicial decisions which differ from existing Federal law.

Another part of section 501 specifically addresses the situation in Oregon, where a state court ruling has seriously impeded the ability of Federal agents to engage in undercover operations and other covert activities. See In re Gatti, 330 Or. 517 (2000). Such activities are legitimate and essential crime-fighting tools. The Professional Standards for Government Attorneys Act ensures that these tools will be available to combat terrorism.

Finally, section 501 addresses the most pressing contemporary question of government attorney ethics--namely, the question of which rule should govern government attorneys' communications with represented persons. It asks the Judicial Conference of the United States to submit to the Supreme Court a proposed uniform national rule to govern this area of professional conduct, and to study the need for additional national rules to govern other areas in which the proliferation of local rules may interfere with effective Federal law enforcement. The Rules Enabling Act process is the ideal one for developing such rules, both because the Federal judiciary traditionally is responsible for overseeing the conduct of lawyers in Federal court proceedings, and because this process would best provide the Supreme Court an opportunity fully to consider and objectively to weigh all relevant considerations.

The problems posed to Federal law enforcement investigations and prosecutions by the McDade law are real and urgent. The Professional Standards for Government Attorneys Act provides a reasonable and measured alternative: It preserves the traditional role of the State courts in regulating the conduct of attorneys licensed to practice before them, while ensuring that Federal

prosecutors and law enforcement agents will be able to use traditional Federal investigative techniques. We need to pass this corrective legislation before more cases are compromised.

Terrorist attacks against mass transportation systems. Another provision of the USA Act that was not included in the Administration's initial proposal is section 801, which targets acts of terrorism and other violence against mass transportation systems. Just last week, a Greyhound bus crashed in Tennessee after a deranged passenger slit the driver's throat and then grabbed the steering wheel, force the bus into the oncoming traffic. Six people were killed in the crash. Because there are currently no federal law addressing terrorism of mass transportation systems, however, there may be no federal jurisdiction over such as case, even if it were committed by suspected terrorists. Clearly, there is an urgent need for strong criminal legislation to deter attacks against mass transportation systems. Section 801 will fill this gap.

Cybercrime. The Computer Fraud and Abuse Act, 18 U.S.C. §1030, is the primary federal criminal statue prohibiting computer frauds and hacking. I worked with Senator HATCH in the last Congress to make improvements to this law in the Internet Security Act, which passed the Senate as part of another bill. Our work is included in section 815 of the USA Act. This section would amend the statute to clarify the appropriate scope of federal jurisdiction. First, the bill adds a definition of ``loss'' to cover any reasonable cost to the victim in responding to a computer hacker. Calculation of loss is important both in determining whether the $5,000 jurisdictional hurdle in the statute is met, and, at sentencing, in calculating the appropriate guideline range and restitution amount.

Second, the bill amends the definitions of ``protected computer'' to include qualified computers even when they are physically located outside of the United States. This clarification will preserve the ability of the United States to assist in internal hacking cases.

Finally, this section eliminates the current directive to the Sentencing Commission requiring that all violations, including misdemeanor violations, of certain provisions of the Computer Fraud and Abuse Act be punished with a term of imprisonment of at least six months.

Biological weapons. Borrowing from a bill introduced in the last Congress By Senator BIDEN, the USA Act contains a provision in section 802 to strengthen our federal laws relating to the threat of biological weapons. Current law prohibits the possession, development, or acquisition of biological agents or toxins ``for use as a weapon.'' This section amends the definition of ``for use as a weapon'' to include all situations in which it can be proven that the defendant had any purpose other than a peaceful purpose. This will enhance the government's ability to prosecute suspected terrorists in possession of biological agents or toxins, and conform the scope of the criminal offense in 18 U.S.C. §175 more closely to the related forfeiture provision in 18 U.S.C. §176. This section also contains a new statute, 18 U.S.C. §175b, which generally makes it an offense for certain restricted persons, including non-resident aliens from countries that support international terrorism, to possess a listed biological agent or toxin.

Of greater consequence, section 802 defines another additional offense, punishable by up to 10 years in prison, of possessing a biological agent, toxin, or delivery system ``of a type or in a

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quantity that, under the circumstances,'' is not reasonably justified by a peaceful purpose. As originally proposed by the Administration, this provision specifically stated that knowledge of whether the type or quantity of the agent or toxin was reasonably justified was not an element of the offense. Thus, although the burden of proof is always on the government, every person who possesses a biological agent, toxin, or delivery system was at some level of risk. I am pleased that the Administration agreed to drop this portion of the provision.

Nevertheless, I remain troubled by the subjectivity of the substantive standard for violation of this new criminal prohibition, and question whether it provides sufficient notice under the Constitution. I also share the concerns of the American Society for Microbiology and the Association of American Universities that this provision will have a chilling effect upon legitimate scientific inquiry that offsets any benefit in protecting against terrorism. While we have tried to prevent against this by creating an explicit exclusion for ``bona fide research,'' this provision may yet prove unworkable, unconstitutional, or both. I urge the Justice Department and the research community to work together on substitute language that would provide prosecutors with a more workable tool.

Secret Service jurisdiction. Two sections of the USA Act were added at the request of the United States Secret Service, with the support of the Administration. I was pleased to accommodate the Secret Service by including these provisions in the bill to expand Electronic Crimes Task Force and to clarify the authority of the Secret Service to investigator computer crimes.

The Secret Service is committed to the development of new tools to combat the growing areas of financial crime, computer fraud, and cyberterrorism. Recognizing a need for law enforcement, private industry and academia to pool their resources, skills and revision to combat criminal elements in cyberspace, the Secret Service created the New York Electronic Crimes Task Force (NYECTF). This highly successful model is comprised of over 250 individual members, including 50 different Federal, State and local enforcement agencies, 100 private companies, and 9 universities. Since its inception in 1995, the NYECTF has successfully investigated a range of financial and electronic crimes, including credit card fraud, identify theft, bank fraud, computer systems intrusions, and e-mail threats against protectees of the Secret Service. Section 105 of the USA Act authorizes the Secret Service to develop similar task forces in cities and regions across the country where critical infrastructure may be vulnerable to attacks from terrorists or other cyber-criminals.

Section 507 of the USA Act gives the Secret Service concurrent jurisdiction to investigate offenses under 18 U.S.C. §1030. relating to fraud and related activity in connection with computers. Prior to the 1996 amendments to the Computer Fraud and Abuse Act, the Secret Service was authorized to investigate any an all violations of section 1030, pursuant to an agreement between the Secretary of Treasury and the Attorney General. The 1996 amendments, however, concentrated Secret Service jurisdiction on certain specified subsections of section 1030. The current amendment would return full jurisdiction to the Secret Service and would allow the Justice and Treasury Departments to decide on the appropriate work-sharing balance between the two. This will enable the Secret Service to investigate a wide range of potential White House network intrusions, as well as intrusions into remote sites (outside of the White House) that could impact the safety and security of its protectees, and to continue its mission to protect the nation's critical infrastructure and financial payment systems.

Counter-terrorism Fund. The USA Act also authorizes, for the first time, a counter-terrorism fund in the Treasury of the United States to reimburse Justice Department for any costs incurred in connection with the fight against terrorism.

Specifically, this counter-terrorism fund will: (1) reestablish an office or facility that has been damaged as the result of any domestic or international terrorism incident; (2) provide support to counter, investigate, or prosecute domestic or international terrorism, including paying rewards in connection with these activities; (3) conduct terrorism threat assessments of Federal agencies; and (4) for costs incurred in connection with detaining individuals in foreign countries who are accused of acts of terrorism in violation of United States law.

I first authored this counter-terrorism fund in the S. 1319, the 21st Century Department of Justice Appropriations Authorization Act, which Senator HATCH and I introduced in August.

Enhanced surveillance procedures. The USA Act provides enhanced surveillance procedures for the investigation of terrorism and other crimes. The challenge before us has been to strike a reasonable balance to protect both security and the liberties of our people. In some respects, the changes made are appropriate and important ones to update surveillance and investigative procedures in light of new technology and experience with current law. Yet, in other respects, I have deep concerns that we may be increasing surveillance powers and the sharing of criminal justice information without adequate checks on how information may be handled and without adequate accountability in the form of judicial review.

The bill contains a number of sensible proposals that should not be controversial.

Wiretap predicates. For example, sections 201 and 202 of the USA Act would add to the list of crimes that may be used as predicates for wiretaps certain offenses which are specifically tailored to the terrorist threat. In addition to crimes that relate directly to terrorism, the list would include crimes of computer fraud and abuse which are committed by terrorists to support and advance their illegal objectives.

FISA roving wiretraps. The bill, in section 206, would authorize the use of roving wiretaps in the course of a foreign intelligence investigation and brings FISA into line with criminal procedures that allow surveillance to follow a person, rather than requiring a separate court order identifying each telephone company or other communication common carrier whose

assistance is needed. This is a matter on which the Attorney General and I reached early agreement. This is the kind of change that has a compelling justification, because it recognizes the ease with which targets of investigations can evade surveillance by changing phones. In fact, the original roving wiretap authority for use in criminal investigations was enacted as part of the Electronic Communications Privacy Act (ECPA) in 1986. I was proud to be the primary Senate sponsor of that earlier law.

Paralleling the statutory rules applicable to criminal investigations, the formulation I originally proposed made clear that this roving wiretap authority must be requested in the application before the FISA court was authorized to order such roving surveillance authority. Indeed, the Administration agrees that the FISA court may not grant such authority sua sponte. Nevertheless, we have accepted the Administration's formulation of the new roving wiretap authority, which requires the FISA court to make a finding that the actions of the person whose communications are to be intercepted could have the effect of thwarting the identification of a specified facility or place. While no amendment is made to the statutory directions for what must be included in the application for a FISA electronic surveillance order, these applications should include the necessary information to support the FISA court's finding that roving wiretap authority is warranted.

Search warrants. The USA Act, in section 219, authorizes nationwide service of search warrants in terrorism investigations. This will allow the judge who is most familiar with the developments in a fast-breaking and complex terrorism investigation to make determinations of probable cause, no matter where the property to be searched is located. This will not only save time by avoiding having to bring up-to-speed another judge in another jurisdiction where the property is located, but also serves privacy and Fourth Amendment interests in ensuring that the most knowledgeable judge makes the determination of probable cause. The bill, in section 209, also authorizes voice mail messages to be seized on the authority

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of a probable cause search warrant rather than through the more burdensome and time-consuming process of a wiretap.

Electronic records. The bill updates the laws pertaining to electronic records in three primary ways. First, in section 210, the bill authorizes the nationwide service of subpoenas for subscriber information and expands the list of items subject to subpoena to include the means and source of payment for the service.

Second, in section 211, the bill equalizes the standard for law enforcement access to cable subscriber records on the same basis as other electronic records. The Cable Communications Policy Act, passed in 1984 to regulate various aspects of the cable television industry, did not take into account the changes in technology that have occurred over the last fifteen years. Cable television companies now often provide Internet access and telephone service in addition to television programming. This amendment clarifies that a cable company must comply with the laws governing the interception and disclosure of wire and electronic communications just like any other telephone company or Internet service provider. The amendments would retain current standards that govern the release of customer records for television programming.

Finally, the bill, in section 212, permits, but does not require, an electronic communications service to disclose the contents of and subscriber information about communications in emergencies involving the immediate danger of death or serious physical injury. Under current law, if an ISP's customer receives an e-mail death threat from another customer of the same ISP, and the victim provides a copy of the communication to the ISP, the ISP is limited in what actions it may take. On one hand, the ISP may disclose the contents of the forwarded communication to law enforcement (or to any other third party as it sees fit). See 18 U.S.C. §2702(b)(3). On the other hand, current law does not expressly authorize the ISP to voluntarily provide law enforcement with the identity, home address, and other subscriber information of the user making the threat. See 18 U.S.C. §2703(c)(1)(B),(C) (permitting disclosure to government entities only in response to legal process). In those cases where the risk of death or injury is imminent, the law should not require providers to sit idly by. This voluntary disclosure, however, in no way creates an affirmative obligation to review customer communications in search of such imminent dangers.

Also, under existing law, a provider (even one providing services to the public) may disclose the contents of a customer's communications--to law enforcement or anyone else--in order to protect its rights or property. See 18 U.S.C. §2702(b)(5). However, the current statute does not expressly permit a provider voluntarily to disclose non-content records (such as a subscriber's login records) to law enforcement for purposes of self-protection. See 18 U.S.C. §2703(c)(1)(B). Yet the right to disclose the content of communications necessarily implies the less intrusive ability to disclose non-content records. Cf. United States v. Auler, 539 F.2d 642, 646 n.9 (7th Cir. 1976) (phone company's authority to monitor and disclose conversations to protect against fraud necessarily implies right to commit lesser invasion of using, and disclosing fruits of, pen register device) (citing United States v. Freeman, 524 F.2d 337, 341 (7th Cir. 1975)). Moreover, as a practical matter providers must have the right to disclose the facts surrounding attacks on their systems. When a telephone carrier is defrauded by a subscriber, or when an ISP's authorized user launches a network intrusion against his own ISP, the provider must have the legal ability to report the complete details of the crime to law enforcement. The bill clarifies that service providers have the statutory authority to make such disclosures.

Pen registers. There is consensus that the existing legal procedures for pen register and trap-and-trace authority are antiquated and need to be updated. I have been proposing ways to update the pen register and trap and trace statutes for several years, but not necessarily in the same ways as the Administration initially proposed. In fact, in 1998, I introduced with then-Senator Ashcroft, the E-PRIVACY Act, S. 2067, which proposed changes in the pen register laws. In 1999, I introduced the E-RIGHTS Act, S. 934, also with proposals to update the pen register laws.

Again, in the last Congress, I introduced the Internet Security Act, S. 2430, on April 13, 2000, that proposed (1) changing the pen register and trap and trace device law to give nationwide effect to pen register and trap and trace orders obtained by Government attorneys and obviate the need to obtain identical orders in multiple federal jurisdictions; (2) clarifying that such devices can be used for computer transmissions to obtain electronic addresses, not just on telephone lines; and (3) as a guard against abuse, providing for meaningful judicial review of government attorney applications for pen registers and trap and trace devices.

As the outline of my earlier legislation suggests, I have long supported modernizing the pen register and trap and trace device laws by modifying the statutory language to cover the use of these orders on computer transmissions; to remove the jurisdictional limits on service of these orders; and to update the judicial review procedure, which, unlike any other area in criminal procedure, bars the exercise of judicial discretion in reviewing the justification for the order. The USA Act, in section 216, updates the pen register and trap and trace laws only in two out of three respects I believe are important, and without allowing meaningful judicial review. Yet, we were able to improve the Administration's initial proposal, which suffered from the same problem as the provision that was hastily taken up and passed by the Senate, by voice vote, on September, 13, 2001, as an amendment to the Commerce Justice State Appropriations Act.

Nationwide service. The existing legal procedures for pen register and trap-and-trace authority require service of individual orders for installation of pen register or trap and trace device on the service providers that carried the targeted communications. Deregulation of the telecommunications industry has had the consequence that one communication may be carried by multiple providers. For example, a telephone call may be carried by a competitive local exchange carrier, which passes it at a switch to a local Bell Operating Company, which passes it to a long distance carrier, which hands it to an incumbent local exchange carrier elsewhere in the U.S., which in turn may finally hand it to a cellular carrier. If these carriers do not pass source information with each call, identifying that source may require compelling information from a host of providers located throughout the country.

Under present law, a court may only authorize the installation of a pen register or trap device ``within the jurisdiction of the court.'' As a result, when one provider indicates that the source of a communication is a carrier in another district, a second order may be necessary. The Department of Justice has advised, for example, that in 1996, a hacker (who later turned out to be launching his attacks from a foreign country) extensively penetrated computers belonging to the Department of Defense. This hacker was dialing into a computer at Harvard University and used this computer as an intermediate staging point in an effort to conceal his location and identity. Investigators obtained a trap and trace order instructing the phone company, Nynex, to trace these calls, but Nynex could only report that the communications were coming to it from a long-distance carrier, MCI. Investigators then applied for a court order to obtain the connection information from MCI, but since the hacker was no longer actually using the connection, MCI could not identify its source. Only if the investigators could have served MCI with a trap and trace order while the hacker was actively on-line could they have successfully traced back and located him.

In another example provided by the Department of Justice, investigators encountered similar difficulties in attempting to track Kevin Mitnick, a criminal who continued to hack into computers attached to the Internet despite the fact that he was on supervised release for a prior computer crime conviction. The FBI attempted to trace

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these electronic communications while they were in progress. In order to evade arrest, however, Mitnick moved around the country and used cloned cellular phones and other evasive techniques. His hacking attacks would often pass through one of two cellular carriers, a local phone company, and then two Internet service providers. In this situation, where investigators and service providers had to act quickly to trace Mitnick in the act of hacking, only many repeated attempts--accompanied by an order to each service provider--finally produced success. Fortunately, Mitnick was such a persistent hacker that he gave law enforcement many chances to complete the trace.

This duplicative process of obtaining a separate order for each link in the communications chain can be quite time-consuming, and it serves no useful purpose since the original court has already authorized the trace. Moreover, a second or third order addressed to a particular carrier that carried part of a prior communication may prove useless during the next attack: in computer intrusion cases, for example, the target may use an entirely different path (i.e., utilize a different set of intermediate providers) for his or her subsequent activity.

The bill would modify the pen register and trap and trace statutes to allow for nationwide service of a single order for installation of these devices, without the necessity of returning to court for each new carrier. I support this change.

Second, the language of the existing statute is hopelessly out of date and speaks of a pen register or trap and trace ``device'' being ``attached'' to a telephone ``line.'' However, the rapid computerization of the telephone system has changed the tracing process. No longer are such functions normally accomplished by physical hardware components attached to telephone lines. Instead, these functions are typically performed by computerized collection and retention of call routing information passing through a communications system.

The statute's definition of a ``pen register'' as a ``device'' that is ``attached'' to a particular ``telephone line'' is particularly obsolete when applied to the wireless portion of a cellular phone call, which has no line to which anything can be attached. While courts have authorized pen register orders for wireless phones based on the notion of obtaining access to a ``virtual line,'' updating the law to keep pace with current technology is a better course.

Moreover, the statute is ill-equipped to facilitate the tracing of communications that take place over the Internet. For example, the pen register definition refers to telephone ``numbers'' rather than the broader concept of a user's communications account. Although pen register and trap orders have been obtained for activity on computer networks, Internet service providers have challenged the application of the statute to electronic communications, frustrating legitimate investigations. I have long supported updating the statute by removing words such as ``numbers ..... dialed'' that do not apply to the way that pen/trap devices are used and to clarify the statute's proper application to tracing communications in an electronic environment, but in a manner that is technology neutral and does not capture the content of communications. That being said, I have been concerned about the FBI and Justice Department's insistence over the past few years that the pen/trap devices statutes be updated with broad, undefined terms that continue to flame concerns that these laws will be used to intercept private communications content.

The Administration's initial pen/trap device proposal added the terms ``routing'' and ``addressing'' to the definitions describing the information that was authorized for interception on the low relevance standard under these laws. The Administration and the Department of Justice flatly rejected my suggestion that these terms be defined to respond to concerns that the new terms might encompass matter considered content, which may be captured only upon a showing of probable cause, not the mere relevancy of the pen/trap statute. Instead, the Administration agreed that the definition should expressly exclude the use of pen/trap devices to intercept ``content,'' which is broadly defined in 18 U.S.C. 2510(8).

While this is an improvement, the FBI and Justice Department are short-sighted in their refusal to define these terms. We should be clear about the consequence of not providing definitions for these new terms in the pen/trap device statutes. These terms will be defined, if not by the Congress, then by the courts in the context of criminal cases where pen/trap devices have been used and challenged by defendants. If a court determines that a pen register has captured ``content,'' which the FBI admits such devices do, in violation of the Fourth Amendment, suppression may be ordered, not only of the pen register evidence but any other evidence derived from it. We are leaving the courts with little or no guidance of what is covered by ``addressing'' or ``routing.''

The USA Act also requires the government to use reasonably available technology that limits the interceptions under the pen/trap device laws ``so as not to include the contents of any wire or electronic communications.'' This limitation on the technology used by the government to execute pen/trap orders is important since, as the FBI advised me June, 2000, pen register devices ``do capture all electronic impulses transmitted by the facility on which they are attached, including such impulses transmitted after a phone call is connected to the called party.'' The impulses made after the call is connected could reflect the electronic banking transactions a caller makes, or the electronic ordering from a catalogue that a customer makes over the telephone, or the electronic ordering of a prescription drug.

This transactional data intercepted after the call is connected is ``content.'' As the Justice Department explained in May, 1998 in a letter to House Judiciary Committee Chairman Henry Hyde, ``the retrieval of the electronic impulses that a caller necessarily generated in attempting to direct the phone call'' does not constitute a ``search'' requiring probable cause since ``no part of the substantive information transmitted after the caller had reached the called party'' is obtained. But the Justice Department made clear that ``all of the information transmitted after a phone call is connected to the called party ..... is substantive in nature. These electronic impulses are the `contents' of the call: They are not used to direct or process the call, but instead convey certain messages to the recipient.''

When I added the direction on use of reasonably available technology (codified as 18 U.S.C. 3121(c)) to the pen register statute as part of the Communications Assistance for Law Enforcement Act (CALEA) in 1994, I recognized that these devices collected content and that such collection was unconstitutional on the mere relevance standard. Nevertheless, the FBI advised me in June, 2000, that pen register devices for telephone services ``continue to operate as they have for decades'' and that ``there had been no change ..... that would better restrict the recording or decoding of electronic or other impulses to the dialing and signaling information utilized in call processing.'' Perhaps, if there were meaningful judicial review and accountability, the FBI would take the statutory direction more seriously and actually implement it.

Judicial review. Due in significant part to the fact that pen/trap devices in use today collect ``content,'' I have sought in legislation introduced over the past few years to update and modify the judicial review procedure for pen register and trap and trace devices. Existing law requires an attorney for the government to certify that the information likely to be obtained by the installation of a pen register or trap and trace device will be relevant to an ongoing criminal investigation. The court is required to issue an order upon seeing the prosecutor's certification. The court is not authorized to look behind the certification to evaluate the judgment of the prosecutor.

I have urged that government attorneys be required to include facts about their investigations in their applications for pen/trap orders and allow courts to grant such orders only where the facts support the relevancy of the information likely to be obtained by the orders. This is not a change in the applicable standard, which would remain the very low relevancy standard.

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Instead, this change would simply allow the court to evaluate the facts presented by a prosecutor, and, if it finds that the facts support the government's assertion that the information to be collected will be relevant, issue the order. Although this change will place an additional burden on law enforcement, it will allow the courts a greater ability to assure that government attorneys are using such orders properly.

Some have called this change a ``roll-back'' in the statute, as if the concept of allowing meaningful judicial review was an extreme position. To the contrary, this is a change that the Clinton Administration supported in legislation transmitted to the Congress last year. This is a change that the House Judiciary Committee also supported last year. In the Electronic Communications Privacy Act, H.R. 5018, that Committee proposed that before a pen/trap device ``could be ordered installed, the government must first demonstrate to an independent judge that `specific and articulable facts reasonably indicate that a crime has been, is being, or will be committed, and information likely to be obtained by such installation and use ..... is relevant to an investigation of that crime.'' (Report 106-932, 106th Cong. 2d Sess., Oct. 4, 2000, p. 13). Unfortunately, the Bush Administration has taken a contrary position and has rejected this change in the judicial review process.

Computer trespasser. Currently, an owner or operator of a computer that is accessed by a hacker as a means for the hacker to reach a third computer, cannot simply consent to law enforcement monitoring of the computer. Instead, because the owner or operator is not technically a party to the communication, law enforcement needs wiretap authorization under Title III to conduct such monitoring. I have long been interested in closing this loophole. Indeed, when I asked about this problem, the FBI explained to me in June, 2000, that:

This anomaly in the law creates an untenable situation whereby providers are sometimes forced to sit idly by as they witness hackers enter and, in some situations, destroy or damage their systems and networks while law enforcement begins the detailed process of seeking court authorization to assist them. In the real world, the situation is akin to a homeowner being forced to helplessly watch a burglar or vandal while police seek a search warrant to enter the dwelling.

I therefore introduced as part of the Internet Security Act, S. 2430, in 2000, an exception to the wiretap statute that would explicitly permit such monitoring without a wiretap if prior consent is obtained from the person whose computer is being hacked through and used to send ``harmful interference to a lawfully operating computer system.''

The Administration initially proposed a different formulation of the exception that would have allowed an owner/operator of any computer connected to the Internet to consent to FBI wiretapping of any user who violated a workplace computer use policy or online service term of service and was thereby an ``unauthorized'' user. The Administration's proposal was not limited to computer hacking offenses under 18 U.S.C. 1030 or to conduct that caused harm to a computer or computer system. The Administration rejected these refinements to their proposed wiretap exception, but did agree, in section 217 of the USA Act, to limit the authority for wiretapping with the consent of the owner/operator to communications of unauthorized users without an existing subscriber or other contractual relationship with the owner/operator.

Sharing criminal justice information. The USA Act will make significant changes in the sharing of confidential criminal justice information with various Federal agencies. For those of us who have been concerned about the leaks from the FBI that can irreparably damage reputations of innocent people and frustrate investigations by alerting suspects to flee or destroy material evidence, the Administration's insistence on the broadest authority to disseminate such information, without any judicial check, is disturbing. Nonetheless, I believe we have improved the Administration's initial proposal in responsible ways. Only time will tell whether the improvements we were able to reach agreement on are sufficient.

At the outset, we should be clear that current law allows the sharing of confidential criminal justice information, but with close court supervision. Federal Rule of Criminal Procedure 6(e) provides that matters occurring before a grand jury may be disclosed only to an attorney for the government, such other government personnel as are necessary to assist the attorney and another grand jury. Further disclosure is also allowed as specifically authorized by a court.

Similarly, section 2517 of title 18, United States Code provides that wiretap evidence may be disclosed in testimony during official proceedings and to investigative or law enforcement officers to the extent appropriate to the proper performance of their official duties. In addition, the wiretap law allows disclosure of wiretap evidence ``relating to offenses other than specified in the order'' when authorized or approved by a judge. Indeed, just last year, the Justice Department assured us that ``law enforcement agencies have authority under current law to share title III information regarding terrorism with intelligence agencies when the information is of overriding importance to the national security.'' (Letter from Robert Raben, Assistant Attorney General, September 28, 2000).

For this reason, and others, the Justice Department at the time opposed an amendment proposed by Senators KYL and FEINSTEIN to S. 2507, the ``Intelligence Authorization Act for FY 2001 that would have allowed the sharing of foreign intelligence and counterintelligence information collected from wiretaps with the intelligence community. I deferred to the Justice Department on this issue and sought changes in the proposed amendment to address the Department's concern that this provision was not only unnecessary but also ``could have significant implications for prosecutions and the discovery process in litigation'', ``raises significant issues regarding the sharing with intelligence agencies of information collected about United States persons'' and jeopardized ``the need to protect equities relating to ongoing criminal investigations.'' In the end, the amendment was revised to address the Justice Department's concerns and passed the Senate as a free-standing bill, S. 3205, the Counterterrorism Act of 2000. The House took no action on this legislation.

Disclosure of wiretap information. The Administration initially proposed adding a sweeping provision to the wiretap statute that broadened the definition of an ``investigative or law enforcement officer'' who may receive disclosures of information obtained through wiretaps to include federal law enforcement, intelligence, national security, national defense, protective and immigration personnel and the President and Vice President. This proposal troubled me because information intercepted by a wiretap has enormous potential to infringe upon the privacy rights of innocent people, including people who are not even suspected of a crime and merely happen to speak on the telephone with the targets of an investigation. For this reason, the authority to disclose information obtained through a wiretap has always been carefully circumscribed in law.

While I recognize that appropriate officials in the executive branch of government should have access to wiretap information that is important to combating terrorism or protecting the national security, I proposed allowing such disclosures where specifically authorized by a court order. Further, with respect to information relating to terrorism, I proposed allowing the disclosure without a court order as long as the judge who authorized the wiretap was notified as soon as practicable after the fact. This would have provided a check against abuses of the disclosure authority by providing for review by a neutral judicial official. At the same time, there was a little likelihood that a judge would deny any requests for disclosure in cases where it was warranted.

On Sunday, September 30, the Administration agreed to my proposal, but within two days, it backed away from its agreement. I remain concerned that the resulting provision will allow the unprecedented, widespread disclosure of this highly sensitive information without any notification to or review by the court that authorizes and supervises the wiretap. This is clearly an area where our Committee will have to exercise close oversight to

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make sure that the newly-minted disclosure authority is not being abused.

The Administration offered three reasons for reneging on the original deal. First, they claimed that the involvement of the court would inhibit Federal investigators and attorneys from disclosing information needed by intelligence and national security officials. Second, they said the courts might not have adequate security and therefore should not be told that information was disclosed for intelligence or national security purposes. And third, they said the President's constitutional powers under Article II give him authority to get whatever foreign intelligence he needs to exercise his national security responsibilities.

I believe these concerns are unfounded. Federal investigators and attorneys will recognize the need to disclose information relevant to terrorism investigations. Courts can be trusted to keep secrets and recognize the needs of the President.

Current law requires that such information be used only for law enforcement purpose. This provides an assurance that highly intrusive invasions of privacy are confined to the purpose for which they have been approved by a court, based on probable cause, as required by the Fourth Amendment. Current law calls for minimization procedures to ensure that the surveillance does not gather information about private and personal conduct and conversations that are not relevant to the criminal investigation.

When the Administration reneged on the agreement regarding court supervision, we turned to other safeguards and were more successful in changing other questionable features of the Administration's bill. The Administration accepted my proposal to strike the term ``national security'' from the description of wiretap information that may be shared throughout the executive branch and replace it with ``foreign intelligence'' information. This change is important in clarifying what information may be disclosed because the term ``foreign intelligence'' is specifically defined by statute whereas ``national security'' is not.

Moreoever, the rubric of ``national security'' has been used to justify some particularly unsavory activities by the government in the past. We must have at least some assurance that we are not embarked on a course that will lead to a repetition of these abuses because the statute will now more clearly define what type of information is subject to disclosure. In addition, Federal officials who receive the information may use it only as necessary to the conduct of their official duties. Therefore, any disclosure or use outside the conduct of their official duties remains subject to all limitations applicable to their retention and dissemination of information of the type of information received. This includes the Privacy Act, the criminal penalties for unauthorized disclosure of electronic surveillance information under chapter 119 of title 18, and the contempt penalties for unauthorized disclosure of grand jury information. In addition, the Attorney General must establish procedures for the handling of information that identifies a United States person, such as the restrictions on retention and dissemination of foreign intelligence and counterintelligence information pertaining to United States persons currently in effect under Executive Order 12333.

While these safeguards do not fully substitute for court supervision, they can provide some assurance against misuse of the private, personal, and business information about Americans, that is acquired in the course of criminal investigations and that may flow more widely in the intelligence, defense, and national security worlds.

Disclosure of grand jury information. The wiretap statute was not the only provision in which the Administration sought broader authority to disclose highly sensitive investigative information. It also proposed broadening Rule 6(e) of the Federal Rules of Criminal Procedure to allow the disclosure of information relating to terrorism and national security obtained from grand jury proceedings to a broad range of officials in the executive branch of government. As with wiretaps, few would disagree that information learned in a criminal investigation that is necessary to combating terrorism or protecting the national security ought to be shared with the appropriate intelligence and national security officials. The question is how best to regulate and limit such disclosures so as not to compromise the important policies of secrecy and confidentiality that have long applied to grand jury proceedings.

I proposed that we require judicial review of requests to disclose terrorism and foreign intelligence information to officials in the executive branch beyond those already authorized to receive such disclosures. Once again, the Administration agreed to my proposal on Sunday, September 30, but reneged within two days. As a result, the bill does not provide for any judicial supervision of the new authorization for dissemination of grand jury information throughout the executive branch. The bill does contain the safeguards that I have discussed with respect to law enforcement wiretap information. However, as with the new wiretap disclosure authority, I am troubled by this issue and plan to exercise the close oversight of the Judiciary Committee to make sure it is not being abused.

Foreign intelligence information sharing. The Administration also sought a provision that would allow the sharing of foreign intelligence information throughout the executive branch of the government notwithstanding any current legal prohibition that may prevent or limit its disclosure. I have resisted this proposal more strongly than anything else that still remains in the bill. What concerns me is that it is not clear what existing prohibitions this provision would affect beyond the grand jury secrecy rule and the wiretap statute, which are already covered by other provisions in the bill. Even the Administration, which wrote this provision, has not been able to provide a fully satisfactory explanation of its scope.

If there are specific laws that the Administration believes impede the necessary sharing of information on terrorism and foreign intelligence within the executive branch, we should address

those problems through legislation that is narrowly targeted to those statutes. Tacking on a blunderbuss provision whose scope we do not fully understand can only lead to consequences that we cannot foresee. Further, I am concerned that such legislation, broadly authorizing the secret sharing of intelligence information throughout the executive branch, will fuel the unwarranted fears and dark conspiracy theories of Americans who do not trust their government. This was another provision of which the Administration reneged on its agreement with me; it agreed to drop it on September 30, but resurrected it within two days, insisting that it remain in the bill. I have been able to mitigate its potential for abuse somewhat by adding the same safeguards that apply to disclosure of law enforcement wiretap and grand jury information.

``Sneak and peek'' search warrants. Another issue that has caused me serious concern relates to the Administration's proposal for so-called ``sneak and peek'' search warrants. The House Judiciary Committee dropped this proposal entirely from its version of the legislation. Normally, when law enforcement officers execute a search warrant, they must leave a copy of the warrant and a receipt for all property seized at the premises searched. Thus, even if the search occurs when the owner of the premises is not present, the owner will receive notice that the premises have been lawfully searched pursuant to a warrant rather than, for example, burglarized.

Two circuit courts of appeal, the Second and the Ninth Circuits, have recognized a limited exception to this requirement. When specifically authorized by the issuing judge or magistrate, the officers may delay providing notice of the search to avoid compromising an ongoing investigation or for some other good reason. However, this authority has been carefully circumscribed.

First, the Second and Ninth Circuit cases have dealt only with situations where the officers search a premises without seizing any tangible property. As the Second Circuit explained, such searches are ``less intrusive than a conventional search with physical seizure because the latter deprives the owner not only of privacy but also of the use of his property.'' United States v. Villegas, 899 F.2d 1324, 899 F.2d 1324, 1337 (2d Cir. 1990).

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Second, the cases have required that the officers seeking the warrant must show good reason for the delay. Finally, while the courts have allowed notice of the search may be delayed, it must be provided within a reasonable period thereafter, which should generally be no more than seven days. The reasons for these careful limitations were spelled out succinctly by Judge Sneed of the Ninth Circuit: ``The mere thought of strangers walking through and visually examining the center of our privacy interest, our home, arouses our passion for freedom as does nothing else. That passion, the true source of the Fourth Amendment, demands that surreptitious entries be closely circumscribed.'' United States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986).

The Administration's original proposal would have ignored some of the key limitations created by the caselaw for sneak and peek search warrants. First, it would have broadly authorized officers not only to conduct surreptitious searches, but also to secretly seize any type of property without any additional showing of necessity. This type of warrant, which has never been addressed by a published decision of a federal appellate court, has been referred to in a law review article written by an FBI agent as a ``sneak and steal'' warrant. See K. Corr, ``Sneaky But Lawful: The Use of Sneak and Peek Search Warrants,'' 43 U. Kan. L. Rev. 1103, 1113 (1995). Second, the proposal would simply have adopted the procedural requirements of 18 U.S.C. §2705 for providing delayed notice of a wiretap. Among other things, this would have extended the permissible period of delay to a maximum of 90 days, instead of the presumptive seven-day period provided by the caselaw on sneak and peek warrants.

I was able to make significant improvements in the Administration's original proposal that will help to ensure that the government's authority to obtain sneak and peek warrants is not abused. First, the provision that is now in section 213 of the bill prohibits the government from seizing any tangible property or any wire or electronic communication or stored electronic information unless it makes a showing of reasonable necessity for the seizure. Thus, in contrast to the Administration's original proposal, the presumption is that the warrant will authorize only a search unless the government can make a specific showing of additional need for a seizure. Second, the provision now requires that notice be given within a reasonable time of the execution of the warrant rather than giving a blanket authorization for up to a 90-day delay. What constitutes a reasonable time, of course, will depend upon the circumstances of the particular case. But I would expect courts to be guided by the teachings of the Second and the Ninth Circuits that, in the ordinary case, a reasonable time is no more than seven days.

FISA. Several changes in the Foreign Intelligence Surveillance Act (FISA) are designed to clarify technical aspects of the statutory framework and take account of experience in practical implementation. These changes are not controversial, and they will facilitate the collection of intelligence for counterterrorism and counterintelligence purposes. Other changes are more significant and required careful evaluation and revision of the Administration's proposals.

Duration of surveillance. The USA Act, in section 297, changes the duration of electronic surveillance under FISA in cases of an agent of a foreign power, other than a United States persons, who acts in the United States as an officer or employee of a foreign power or as a member of an international terrorist group. Current law limits court orders in these cases to 90 days, the same duration as for United States persons. Experience indicates, however, that after the initial period has confirmed probable cause that the foreign national meets the statutory standard, court orders are renewed repeatedly and the 90-day renewal becomes an unnecessary procedural for investigators taxed with far more pressing duties.

The Administration proposed that the period of electronic surveillance be changed from 90 days to one year in these cases. This proposal did not ensure adequate review after the initial stage to ensure that the probable cause determination remained justified over time. Therefore, the bill changes the initial period of the surveillance 90 to 120 days and changes the period for extensions from 90 days to one year. The initial 120-day period provides for a review of the

results of the surveillance or search directed at an individual before one-year extensions are requested. These changes do not affect surveillance of a United States person.

The bill also changes the period for execution of an order for physical search under FISA from 45 to 90 days. This change applies to United States persons as well as foreign nationals. Experience since physical search authority was added to FISA in 1994 indicates that 45 days is frequently not long enough to plan and carry out a covert physical search. There is no change in the restrictions which provide that United States persons may not be the targets of search or surveillance under FISA unless a judge finds probable cause to believe that they are agents of foreign powers who engage in specified international terrorist, sabotage, or clandestine intelligence activities that may involve a violation of the criminal statutes of the United States.

FISA judges. The bill, in section 208, seeks to ensure that the special court established under FISA has sufficient judges to handle the workload. While changing the duration of orders and extensions will reduce the number of cases in some categories, the bill retains the court's role in pen register and trap and trace cases and expands the court's responsibility for issuing orders for records and other tangible items needed for counterintelligence and counter terrorism investigations. Upon reviewing the court's requirements, the Administration requested an increase in the number of federal district judges designated for the court from seven to 11 of whom no less than 3 shall reside within 20 miles of the District of Columbia. The latter provision ensures that more than one judge is available to handle cases on short notice and reduces the need to invoke the alternative of Attorney General approval under the emergency authorities in FISA.

Agent of a foreign power standard. Other changes in FISA and related national security laws are more controversial. In several areas, the bill reflects a serious effort to accommodate the requests for expanded surveillance authority with the need for safeguards against misuse, especially the gathering of intelligence about the lawful political or commercial activities of Americans. One of the most difficult issues was whether to eliminate the existing statutory ``agent of a foreign power'' standards for surveillance and investigative techniques that raise important privacy concerns, but not at the level that the supreme Court has held to require a court order and a probable cause finding under the Fourth Amendment. These include pen register and trap and trace devices, access to business records and other tangible items held by third parties, and access to records that have statutory privacy protection. The latter include telephone, bank, and credit records.

The ``agent of a foreign power'' standard in existing law was designed to ensure that the FBI and other intelligence agencies do not use these surveillance and investigative methods to investigate the lawful activities of Americans in the name of an undefined authority to collect foreign intelligence or counterintelligence information. The law has required a showing of reasonable suspicion, less than probable cause, to believe that a United States person is an ``agent of a foreign power'' engaged in international terrorism or clandestine intelligence activities.

However, the ``agent of a foreign power'' standard is more stringent than the standard under comparable criminal law enforcement procedures which require only a showing of relevance to a criminal investigation. The FBI's experience under existing laws since they were enacted at various time over the past 15 years has been that, in practice, the requirement to show reasonable suspicion that a person is an ``agent of a foreign power'' has been almost as burdensome as the requirement to show probable cause required by the Fourth Amendment for more intrusive techniques. The FBI has made a clear case that a relevance standard is appropriate for counterintelligence and counterterrorism investigations, as well as for criminal investigations.

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The challenge, then, was to define those investigations. The alternative proposed by the Administration was to cover any investigation to obtain foreign intelligence information. This was extremely broad, because the definition includes any information with respect to a foreign power that relates to, and if concerning a United States person is necessary to, the national defense or the security of the United States or the conduct of the foreign affairs of the United States. This goes far beyond FBI counterintelligence and counterterrorism requirements. Instead, the bill requires that use of the surveillance technique or access to the records concerning a United States person be relevant to an investigation to protect against international terrorism or clandestine intelligence activities.

In addition, an investigation of a United States person may not be based solely on activities protected by the First Amendment. This framework applies to pen registers and trap and trace under section 215, access to records and other items under section 215, and the national security authorities for access to telephone, bank, and credit records under section 506. Lawful political dissent and protest by American citizens against the government may not be the basis for FBI counterintelligence and counterterrorism investigations under these provisions.

A separate issue for pen registers and trap and trace under FISA is whether the court should have the discretion to make the decision on relevance. The Administration has insisted on a certification process. I discussed this issue as it comes up in the criminal procedures for pen registers and trap and trace under title 18, and my concerns apply to the FISA procedures as well.

The purpose of FISA. The most controversial change in FISA requested by the Administration was the proposal to allow surveillance and search when ``a purpose'' is to obtain foreign intelligence information. Current law requires that the secret procedures and different probable cause standards under FISA be used only if a high-level executive official certifies that ``the purpose'' is to obtain foreign intelligence formation. The Administration's aim was to allow FISA surveillance and search for law enforcement purposes, so long as there was at least some element of a foreign intelligence purpose. This proposal raised constitutional concerns, which were addressed in a legal opinion provided by the Justice Department, which I insert in the record at the end of my statement.

The Justice Department opinion did not defend the constitutionality of the original proposal. Instead, it addressed a suggestion made by Senator Feinstein to the Attorney General at the

Judiciary Committee hearing to change ``the purpose'' to ``a significant purpose.'' No matter what statutory change is made even the Department concedes that the court's may impose a constitutional requirement of ``primary purpose'' based on the appellate court decisions upholding FISA against constitutional challenges over the past 20 years.

Section 218 of the bill adopts ``significant purpose,'' and it will be up to the courts to determine how far law enforcement agencies may use FISA for criminal investigation and prosecution beyond the scope of the statutory definition of ``foreign intelligence information.''

In addition, I proposed and the Administration agreed to an additional provision in Section 505 that clarifies the boundaries for consultation and coordination between officials who conduct FISA search and surveillance and Federal law enforcement officials including prosecutors. Such consultation and coordination is authorized for the enforcement of laws that protect against international terrorism, clandestine intelligence activities of foreign agents, and other grave foreign threats to the nation. Protection against these foreign-based threats by any lawful means is within the scope of the definition of ``foreign intelligence information,'' and the use of FISA to gather evidence for the enforcement of these laws was contemplated in the enactment of FISA. The Justice Department's opinion cites relevant legislative history from the Senate Intelligence Committee's report in 1978, and there is comparable language in the House report.

Immigration. The Administration initially proposed that the Attorney General be authorized to detain any alien indefinitely upon certification of suspicion to links to terrorist activities or organizations. Under close questioning by both Senator KENNEDY and Senator SPECTER at the Committee hearing on September 25, the Attorney General said that his proposal was intended only to allow the government to hold an alien suspected of terrorist activity while deportation proceedings were ongoing. In response to a question by Senator SPECTER, the Attorney General said: ``Our intention is to be able to detain individuals who are the subject of deportation proceedings on other grounds, to detain them as if they were the subject of deportation proceedings on terrorism.'' The Justice Department, however, continued to insist on broader authority, including the power to detain even if the alien was found not to be deportable.

I remain concerned about the provision, in section 412, but I believe that it has been improved from the original proposal offered by the Administration. First, the Justice Department must now charge an alien with an immigration or criminal violation within seven days of taking custody, and the Attorney General's certification of an alien under this section is subject to judicial review. Second, if an alien is found not to be removable, he must be released from custody. Third, the Attorney General can only delegate the power to certify an alien to the Deputy Attorney General, ensuring greater accountability and preventing the certification decision from being made by low-level officials. Despite these improvements, I would have preferred that this provision not be included, and I would urge the Attorney General and his successors to employ great discretion in using this new power.

In addition, the Administration initially proposed a sweeping definition of terrorist activity and new powers for the Secretary of State to designate an organization as a terrorist organization for purposes of immigration law. We were able to work with the Administration to refine this definition to limit its application to individuals who had innocent contacts with non-designated organizations. We also limited the retroactive effect of these new definitions. If an alien solicited funds or membership, or provided material support for an organization that was not designated at that time by the Secretary of State, the alien will have the opportunity to show that he did not know and should have known that his acts would further the organization's terrorist activity. This is substantially better than the administration's proposal, which by its terms, would have empowered the INS to deport someone who raised money for the African National Congress in the 1980s.

Throughout our negotiations on these issues, Senator KENNEDY provided steadfast leadership. Although neither of us are pleased with the final product, it is far better than it would have been without his active involvement.

Trade Sanctions. I was disappointed that the Administration's initial proposal authorizing the President to impose unilateral food and medical sanctions would have undermined a law we passed last year with overwhelming bipartisan support.

Under that law, the President already has full authority to impose unilateral food and medicine sanctions during this crisis because of two exceptions built into the law that apply to our current situation. Nevertheless, the Administration sought to undo this law and obtain virtually unlimited authority in the future to impose food and medicine embargoes, without making any effort for a multi-lateral approach in cooperation with other nations. Absent such a multi-lateral approach, other nations would be free to step in immediately and take over business from American firms and farmers that they are unilaterally barred from pursuing.

Over 30 farm and export groups, including the American Farm Bureau Federation, the Grocery Manufacturers of America, the National Farmers Union, and the U.S. Dairy Export Council, wrote to me and explained that the Administration proposal would ``not achieve its intended policy goal.''

I worked with Senator ENZI, and other Senators, on substitute language

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to give the Administration the tools it needs in this crisis. This substitute has been carefully crafted to avoid needlessly hurting American farmers in the future, yet it will assure that the U.S. can engage in effective multilateral sanctions.

This bipartisan agreement limits the authority in the bill to existing laws and executive orders, which give the President full authority regarding this conflict, and grants authority for the President to restrict exports of agricultural products, medicine or medical devices. I continue to agree with then-Senator Ashcroft who argued in 1999 that unilateral U.S. food and medicine sanctions simply do not work when he introduced the ``Food and Medicine for the World Act.''

As recently as October 2000, then-Senator Ashcroft pointed out how broad, unilateral embargoes of food or medicine are often counterproductive. Many Republican and Democratic Senators made it clear just last year that the U.S. should work with other countries on food and medical sanctions so that the sanctions will be effective in hurting our enemies, instead of just hurting the U.S. I am glad that with Senator ENZI's help, we were able to make changes in the trade sanctions provision to both protect our farmers and help the President during this crisis.

Money Laundering. Title III of the USA Act consists of a bipartisan bill that was reported out of the Banking Committee on October 4, 2001. I commend the Chairman and Ranking Member of that Committee, Senators SARBANES and GRAMM, for working together to produce a balanced and effective package of measures to combat international money laundering and the financing of terrorism.

I am pleased that the Chairman and Ranking Member of the Banking Committee agreed to our inclusion in the managers' amendment of a small change to a provision of title III, section 319, relating to forfeiture of funds in United States interbank accounts. As reported by the Banking Committee, this provision included language suggesting that in a criminal case, the government may have authority to seek a pretrial restraining order of substitute assets. In fact, as all but one of the circuit courts to consider the issue have held, the government has no such authority. The managers' amendment strikes the offending language from section 319.

Another provision added as part of the Banking Committee title--section 351--is far more troubling. Section 351 creates a new Bank Secrecy Act offense involving the bulk smuggling of more than $10,000 in currency in any conveyance, article of luggage or merchandise or container, either into or out of the United States. The obvious purpose of this section is to circumvent the Supreme Court's decision in United States v. Bajakajian, 118 S. Ct. 2029 (1998), which held that a ``punitive'' forfeiture violates the Excessive Fines Clause of the Eighth Amendment if it is grossly disproportional to the gravity of the offense it is designed to punish.

In fact, the crime created in section 351--willfully evading a currency reporting requirement by ``concealing'' and transporting more than $10,000 across a U.S. border--is no different than the crime at issue in Bajakajian--willfully evading a currency reporting requirement by transporting more than $10,000 across a U.S. border. A forfeiture that is ``grossly disproportional'' with respect to the latter will inevitably be found ``grossly disproportional'' with respect to the former. The new element of ``concealment'' does little or nothing to bolster the government's claim to forfeiture of the unreported currency, since this element is already implicit in the current crime of evasion: It is hardly likely that a person who is in the process of willfully evading the currency reporting requirement will be waiving his currency around for all the world to see.

Conclusion. I have done my best under the circumstances and want to thank especially Senator KENNEDY for his leadership on the Immigration parts of the bill. My efforts have not been completely successful and there are a number of provisions on which the Administration has insisted with which I disagree. Frankly, the agreement of September 30, 2001 would have led to a better balanced bill. I could not stop the Administration from reneging on the agreement any more than I could have sped the process to reconstitute this bill in the aftermath of those breaches. In these times we need to work together to face the challenges of international terrorism. I have sought to do so in good faith.

Mr. President, I reserve the remainder of my time and yield the floor.

The PRESIDING OFFICER. Who yields time?

The Senator from Utah.

Mr. HATCH. Mr. President, I enjoyed the remarks of my distinguished colleague from Vermont. I compliment him for the work he has done on this bill and for the hard work, over the last 3 weeks, that he and his staff have put into this bill, as well as other members of the Judiciary Committee as a whole, and, of course, people on my side as well.

Mr. President, I do not intend to take very long. I know our colleagues are tired, and I know they would like to go home. I also know that we have a distinguished colleague in the Chamber who has some amendments on which we may have to vote.

Four weeks ago we were a relatively tranquil nation, but on September 11, in what amounted to a dastardly attack, an unprovoked attack of war, the World Trade Center was destroyed, along with almost 6,000 people, or maybe more. Our Pentagon was struck by a volitionary act of terrorism.

As a result of the acts of heroes, one of the planes was downed in Pennsylvania, killing all aboard, including those heroes who made sure that that plane did not strike either the Capitol or the White House. I want to pay special tribute to those people who were so heroic as to give up their own lives to protect the lives of so many others.

There have been so many acts of heroism and self-sacrifice--the firefighters who gave their lives, the firefighters who worked day and night, the volunteers who have gone in there, the mayor of New York City, the Governor, and so many others who deserve mention.

This bill, hopefully, will help to at least rectify and redeem some of the problems, problems that have existed ever since September 11.

We did not seek this war; it was thrust upon us. It was an unprovoked attack by people who claim that they represent a religious point of view when, in fact, what they represent is a complete distortion of the religion of Islam.

Islamic people do not believe in murder, murdering innocent civilians. The Koran does not teach that. They do not believe in suicide. The Koran does not teach that.

This is not a war against Islam; this is a war against terrorism and people who have so little regard for human life that they would do something against innocent civilians that was unthinkable before September 11.

Therefore, we live in a dangerous and difficult world today. It is a different world. And we are going to have to wake up and do the things we have to do to protect our citizenry and, of course, to protect the rest of the world to the extent this great Nation can, with the help of other nations, a number of which have become supportive of our efforts. We are very grateful to them.

But a lot of people do not realize we have terror cells in this country--that has been in the media even--and there are people in this country who are dedicated to the overthrow of America. There are people who are dedicated to terrorism right here within our Nation. And some of these people who have participated in this matter may very well be people who were rightfully in our Nation--or at least we thought were rightfully in our Nation.

The responsibility of redeeming and rectifying this situation is the responsibility of the Congress, the Justice Department, the FBI, the INS, and the Border Patrol. It is our

job to provide the tools, and for them to first identify and then eradicate terrorist activity within our borders. And our President has taken the extraordinary step of saying we are going to go after terrorists worldwide and those who harbor them.

I agree with the President. I think it is time to do it. It is time to hit them where it hurts. It is time to let them know we are not going to put up with this type of activity.

A few weeks ago, the Justice Department sent up its legislative proposal. It

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was a good legislative proposal. They had a lot of ideas in there that literally we have been trying to get through for years. When we passed the 1996 antiterrorism, effective death penalty act, a number of us tried to get some of these provisions in at that time, but we were unsuccessful for a variety of reasons, some very sincere.

The fact is, a lot of the provisions we have in the bill are not brand new; a lot of them have been requested for years. And had they been in play, who knows but we might have been able to interdict these terrorists and have stopped what happened and have stopped the loss of civil liberties for approximately 6,000 or more people.

In the past several weeks, after the Justice Department sent up its bill, Senator Leahy and I, Justice Department officials, White House officials, staff members from both of our staffs, and staff members from other members of the committee have worked day and night to come up with this particular bill.

I congratulate my partner and my colleague, Senator Leahy, for his hard work on this bill, and his staffers' for the work they have done on this bill, and, of course, my own staffers, and, of course, those others I have named.

This has been a very difficult bill to put forward because there are all kinds of cross-pressures, all kinds of ideas, all kinds of different thoughts, all kinds of differing philosophies. We believe, with all kinds of deliberation and work, we have been able to put together a bill that really makes sense, that will give the Justice Department the tools it needs to be able to work and stamp out terrorist activity within our country. At least we want to give them the very best tools we possibly can.

We have tried to accommodate the concerns of Senators on both sides of the aisle. We have worked very hard to do so. We cannot accommodate everybody's concerns. As Senator Leahy has said, this is not a perfect bill. Nothing ever seems to be perfect around here. But this is as good a bill as can be put together, in a bipartisan way, in this area in the history of the Senate. I really feel good about it, that we have done this type of a job.

As I say, a lot of these provisions have been requested by the Justice Department and both Democrat and Republican White Houses for years. We took into consideration civil liberties throughout our discussions on this bill. I think we got it just right. We are protective of civil liberties while at the same time giving the tools to the law enforcement agencies to be able to do their jobs in this country.

I might mention that this bill encourages information sharing, that would be absolutely prohibited under current law, among various agencies of Government, information sharing that should have been allowed a long time ago, at least in my view.

It updates the laws with regard to electronic surveillance and brings those laws into the digital age, and brings them into an effective way so that we can, in a modernized way, protect our society, at least to the extent we can, from these types of terrorist activities.

Of course, little things, such as pen registers, trap-and-trace authority--we have been able to resolve these problems after years of problems.

I would like to make a few comments regarding the process for this legislation. Although we have considered this in a more expedited manner than other legislation, my colleagues can be assured that this bill has received thorough consideration. First, the fact is that the bulk of these proposals have been requested by the Department of Justice for years, and have languished in Congress for years because we have been unable to muster the collective political will to enact them into law.

No one can say whether these tools could have prevented the attacks of September 11. But, as the Attorney General has said, it is certain that without these tools, we did not stop the vicious acts of last month. I say to my colleagues, Mr. President, that if these tools could help us now to track down the perpetrators--if they will help us in our continued pursuit of terrorist activities within our national borders then we should not hesitate any further to pass these reforms into law. As long as these reforms are consistent with our--Constitution and they are--it is difficult to see why anyone would oppose their passage.

Furthermore, I would like to clearly dispel the myth that the reforms in this legislation somehow abridge the Constitutional freedoms enjoyed by law-abiding American citizens. Some press reports have portrayed this issue as a choice between individual liberties on the one hand, and on the other hand, enhanced powers for our law enforcement institutions. This is a false dichotomy. We should all take comfort that the reforms in this bill are primarily directed at allowing law enforcement agents to work smarter and more efficiently--in no case do they curtail the precious civil liberties protected by our Constitution. I want to assure my colleagues that we worked very hard over the past several weeks to ensure that this legislation upholds all of the constitutional freedoms our citizens cherish. It does.

Mr. President, I will submit for the Record my extended remarks describing this legislation, but I would like to take a minute to explain briefly a few of the most important provisions of this critical legislation.

First, the legislation encourages information-sharing between various arms of the federal government. I believe most of our citizens would be shocked to learn that, even if certain government agents had prior knowledge of the September 11 attacks, under many circumstances they would have been prohibited by law from sharing that information with the appropriate intelligence or national security authorities.

This legislation makes sure that, in the future, such information flows freely within the Federal government, so that it will be received by those responsible for protecting against terrorist attacks.

By making these reforms, we are rejecting the outdated Cold War paradigm that has prevented cooperation between our intelligence community and our law enforcement agents. Current law does not adequately allow for such cooperation, artificially hampering our government's ability to identify and prevent acts of terrorism against our citizens.

In this new war, terrorists are a hybrid between domestic criminals and international agents. We must lower the barriers that discourage our law enforcement and intelligence agencies from working together to stop these terrorists. These hybrid criminals call for new, hybrid tools.

Second, this bill updates the laws relating to electronic surveillance. Electronic surveillance, conducted under the supervision of a federal judge, is one of the most powerful tools at the disposal of our law enforcement community. It is simply a disgrace that we have not acted to modernize the laws currently on the books which govern such surveillance, laws that were enacted before the fax machine came into common usage, and well before the advent of cellular telephones, e-mail, and instant messaging. The Department of Justice has asked us for years to update these laws to reflect the new technologies, but there has always been a call to go slow, to seek more information, to order further studies.

This is no hypothetical problem. We now know that e-mail, cellular telephones, and the Internet have been principal tools used by the terrorists to coordinate their atrocious activities. We need to pursue all solid investigatory leads that exist right now that our law enforcement agents would be unable to pursue because they must continue to work within these outdated laws. It is high time that we update our laws so that our law enforcement agencies can deal with the world as it is, rather than the world as it existed 20 years ago.

A good example of way we our handicapping our law enforcement agencies relates to devices called ``pen registers.'' Pen registers may be employed by the FBI, after obtaining a court order, to determine what telephone numbers are being dialed from a particular telephone. These devices are essential investigatory tools, which allow law enforcement agents to determine who is speaking to whom, within a criminal conspiracy.

The Supreme Court has held, in Smith v. Maryland, that the information obtained by pen register devices is not information that is subject to any constitutional protection. Unlike the content of your telephone conversation

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once your call is connected, the numbers you dial into your telephone are not private. Because you have no reasonable expectation that such numbers will be kept private, they are not protected under the Constitution. The Smith holding was cited with approval by the Supreme Court just earlier this year.

The legislation under consideration today would make clear what the Federal courts have already ruled--that Federal judges may grant pen register authority to the FBI to cover, not just telephones, but other more modern modes of communication such as e-mail or instant messaging. Let me make clear that the bill does not allow law enforcement to receive the content of the communication, but they can receive the addressing information to identify the computer or computers a suspect is using to further his criminal activity.

Importantly, reform of the pen register law does not allow--as has sometimes been misreported in the press--for law enforcement agents to view the content of any e-mail messages--not even the subject line of e-mails. In addition, this legislation we are considering today makes it explicit that content can not be collected through such pen register orders.

This legislation also allows judges to enter pen register orders with nationwide scope. Nationwide jurisdiction for pen register orders makes common sense. It helps law enforcement agents efficiently identify communications facilities throughout the country, which greatly enhances the ability of law enforcement to identify quickly other members of a criminal organization, such as a terrorist cell.

Moreover, this legislation provides our intelligence community with the same authority to use pen register devices, under the auspices of the Foreign Intelligence Surveillance Act, that our law enforcement agents have when investigating criminal offenses. It simply makes sense to provide law enforcement with the same tools to catch terrorists that they already possess in connection with other criminal investigations, such as drug crimes or illegal gambling.

In addition to the pen register statute, this legislation updates other aspects of our wiretapping statutes. It is amazing that law enforcement agents do not currently have authority to seek wiretapping authority from a Federal judge when investigating a terrorist offense. This legislation fixes that problem.

Moving on, I note that much has been made of the complex immigration provisions of this bill. I know Senators SPECTER, KOHL and KENNEDY had questions about earlier provisions, particularly the detention provision for suspected alien terrorists.

I want to assure my colleagues that we have worked hard to address your concerns, and the concerns of the public. As with the other immigration provisions of this bill, we have made painstaking efforts to achieve this workable compromise.

Let me address some of the specific concerns. In response to the concern that the INS might detain a suspected terrorist indefinitely, the Senator Kennedy, Senator Kyl, and I worked out a compromise that limits the provision. It provides that the alien must be charged with an immigration or criminal violation within seven days after the commencement of detention or be released. In addition, contrary to what has been alleged, the certification itself is subject to judicial review. The Attorney General's power to detain a suspected terrorist under this bill is, then, not unfettered.

Moreover, Senator Leahy and I have also worked diligently to craft necessary language that provides for the deportation of those aliens who are representatives of organizations that endorse terrorist activity, those who use a position of prominence to endorse terrorist activity or persuade others to support terrorist activity, or those who provide material support to terrorist organizations. If we are to fight terrorism, we can not allow those who support terrorists to remain in our country. Also, I should note that we have worked hard to provide the State Department and the INS the tools they need to ensure that no applicant for admission who is a terrorist is able to secure entry into the United States through legal channels.

Finally, the bill gives law enforcement agencies powerful tools to attack the financial infrastructure of terrorism giving our Government the ability to choke off the financing that these dangerous terrorist organizations need to survive. It criminalizes the practice of harboring terrorists, and puts teeth in the laws against providing material support to terrorists and terrorist organizations. It gives the President expanded authority to freeze the assets of terrorists and terrorist organizations, and provides for the eventual seizure of such assets. These tools are vital to our ability to effectively wage the war against terrorism, and ultimately to win it.

There have been few, if any, times in our nation's great history where an event has brought home to so many of our citizens, so quickly, and in such a graphic fashion, a sense of our vulnerability to unexpected attack.

I believe we all took some comfort when President Bush promised us that our law enforcement institutions would have the tools necessary to protect us from the danger that we are only just beginning to perceive.

The Attorney General has told us what tools he needs. We have taken the time to review the problems with our current laws, and to reflect on their solutions. The time to act is now. Let us please move forward expeditiously, and give those who are in the business of protecting us the tools that they need to do the job.

Mr. President, I think most people understand this is an important bill. All of us understand it needs to be done. All of us understand that these are tools our law enforcement people deserve and need to have. And, frankly, it is a bill that I think can make a real difference with regard to the interdiction of future acts of terrorism in our society.

Nobody can guarantee, when you have people willing to commit suicide in the perpetration of these awful acts, at all times that we can absolutely protect our Nation. But this bill will provide the tools whereby we might be able--and in most cases should be able--to resolve even those types of problems.

So with that, I am happy to yield the floor.

The PRESIDING OFFICER (Mr. Durbin). Who yields time?

The Senator from Maryland.

Mr. SARBANES. Mr. President, I yield myself 10 minutes.

The PRESIDING OFFICER. The Senator from Maryland is recognized for 10 minutes.

Mr. SARBANES. Mr. President, I rise in very strong support of S. 1510, the Uniting and Strengthening America Act of 2001, and in particular, Title III of S. 1510, the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001.

Title III was reported out of the Committee on Banking, Housing, and Urban Affairs, which I am privileged to chair, a week ago today by a unanimous vote of 21 to 0.

President Bush said on September 24: ``We have launched a strike on the financial foundation of the global terror network.''

Title III of our comprehensive anti-terrorism package supplies the armament for that strike. Osama bin Laden may have boasted that ``al-Qaeda [includes] modern, educated youth who are aware of the cracks inside the western financial system, as they are aware of the lines in their hands.'' With Title III, we are sealing up those cracks.

Title III contains, among other things, authority to take targeted action against countries, institutions, transactions, or types of accounts the Secretary of the Treasury finds to be of ``primary money-laundering concern.'' It also contains requirements for due diligence standards directed at corresponding accounts opened at U.S. banks by foreign offshore banks and banks in jurisdictions that have been found to fall significantly below international anti-money laundering standards.

It contains a bar on the maintenance of U.S. correspondent accounts for offshore shell banks--those banks that have no physical presence or employees anywhere, and that are not part of a regulated and recognized banking company. There is also a requirement that all financial institutions establish anti-money laundering programs.

Title III also contains several provisions that should enhance the ability

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of the Government to share more specific information with banks, and the ability of banks to share information with one another relating to potential terrorist or money-laundering activities, and a large number of important technical improvements in anti-money laundering statutes, as well as, mandates to the Department of the Treasury to act or formulate recommendations to improve our anti-money laundering programs.

The problem of money laundering is not a new one. There have been significant efforts for some time in Congress to cut the financial lifelines on which criminal operations depend. Senator JOHN KERRY'S exhaustive investigation nearly a decade ago into the collapse of a shady institution called BCCI, which he found was established with ``the specific purpose of evading regulation or control by governments,'' led him to introduce anti-money laundering legislation. A bill similar to his was approved last year by the Banking Committee of the House of Representatives on a 31 to 1 vote.

Recent investigations by Senator CARL LEVIN'S Permanent Subcommittee on Investigations produced two excellent reports on the ways criminals use financial institutions to launder funds and how we can counter these activities. Senator Levin's reports demonstrated dramatically how correspondent banking facilities and private banking services impede financial transparency and hide foreign client identity and activity, thereby contributing to international money laundering.

Senator CHARLES GRASSLEY has also advocated for stronger money laundering legislation, and sponsored the Money Laundering and Financial Crimes Strategy Act of 1998, which mandates the development of an annual national money laundering strategy.

Two weeks ago we held our own hearings in the Banking Committee. We heard from a number of expert witnesses and from Under Secretary of the Treasury Gurule; Assistant Attorney General Chertoff; and Ambassador Stuart Eizenstat, the former Deputy Secretary of the Treasury.

On October 4, the Banking Committee marked-up and reported out our own bill. The committee print was built, in a sense, on the foundation given to us by Senators KERRY, LEVIN, GRASSLEY, and by others in this institution.

Before describing the provisions of Title III in greater detail, I want to thank all members of the Banking Committee for their contributions to this legislation. As I indicated, it came out of the committee on a vote of 21 to 0. The Ranking Member, Senator Gramm, provided crucial support. He raised certain issues which were addressed in the course of the mark-up involving, among other things, important due process protections. Senators STABENOW and JOHNSON were instrumental in producing a compromise to resolve a dispute over one of the package's most important provisions. Senator Enzi contributed his experience as an accountant in refining another critical provision.

Senator Schumer, who has been involved in past efforts to address money laundering activities, played an important role, as did Senators ALLARD, BAYH, CORZINE, and CRAPO, who offered amendments and contributed important improvements to various parts of the subtitle.

I am deeply grateful to all of the members of the committee for their strong, positive, and constructive contributions and for their willingness to work day and night. It is my understanding that the committee staff went three consecutive nights without any sleep in order to prepare this legislation. This is carefully considered legislation because it reflects and builds upon efforts which have been made over a number of years.

Earlier today, our colleagues on the Financial Services Committee in the House of Representatives marked-up a bill, many of the provisions of which are identical or virtually identical to those contained in Title III of the package now before us.

Public support across the country for anti-money laundering legislation is extremely strong. Jim Hoagland put it plainly in the Washington Post:

This crisis offers Washington an opportunity to force American and international banks to clean up concealment and laundering practices they now tolerate or encourage and which terrorism can exploit.

Terrorist attacks require major investments of time, planning, training, practice, and financial resources to pay the bills. Money laundering is the transmission belt that gives terrorists the resources to carry out their campaigns of carnage. We intend, with Title III of this legislation, to end that transmission belt and its ability to bring resources to the networks that enable terrorists to carry out their campaigns of violence.

Title III addresses all aspects of our defenses against money laundering. Those defenses generally fall into three parts. The first is the Bank Secrecy Act, ``BSA'', passed in 1970. It requires financial institutions to keep standardized transaction records and report large currency transactions and suspicious transactions and mandates reporting of the movement of more than $10,000 in currency into or out of the country. The statute is called the ``bank secrecy act,'' because it bars bank secrecy in America, by preventing financial institutions from maintaining opaque records, or discarding their records altogether. Secrecy is the hiding place for crime, and Congress has barred our institutions from allowing those hiding places. The financial institutions covered by that act include banks, broker-dealers, casinos, and non-bank transmitters of funds, currency exchangers, and check cashers--all financial services businesses through which our citizens--and criminals hiding as legitimate citizens--can move funds into and through our economy. Unfortunately, reporting regulations covering some of these institutions have not yet been promulgated.

The second part of our money laundering defenses are the criminal statutes first enacted in 1986 that make it a crime to launder money and allow criminal and civil forfeiture of the proceeds of crime. The third part is the statutory framework that allows information to be communicated to and between law enforcement officials. Our goal must be to assure--to the greatest extent consistent with reasonable privacy protections--that the necessary information can be used by the right persons in ``real time'' to cut off terrorism and crime.

Title III modernizes provisions in all three areas to meet today's threats in a global economy. Its provisions are divided into five subtitles, dealing, respectively, with ``international counter-money laundering measures''--sections 311-328--``Bank Secrecy Act improvements''--sections 331-342--bulk cash smuggling--section 351 and anti-corruption measures--sections 361-363.

There are 39 provisions in Title III. At this time, I want to summarize some of the bill's most important provisions.

Section 311 gives the Secretary of the Treasury, in consultation with other senior government officials, authority to impose one or more of five new ``special measures'' against foreign jurisdictions, entities, transactions or accounts that the Secretary, after consultation with other senior federal officials, determines to pose a ``primary money laundering concern'' to the United States. The special measures all involve special recordkeeping and reporting measures--to eliminate the curtains behind which launderers hide. In extreme cases the Secretary is permitted to bar certain kinds of inter-bank accounts from especially problematic jurisdictions. The statute specifies the considerations the Secretary must take into account in using the new authority and contains provisions to supplement the Administrative Procedure Act to assure that any remedies--except certain short-term measures--are subject to full comment from all affected persons.

This new provision gives the Secretary real authority to act to close overseas loopholes through which U.S. financial institutions are abused. At present the Secretary has no weapons except Treasury Advisories--which don't impose specific requirements--or full economic sanctions that suspend financial and trade relations with offending targets. President Bush's invocation of the International Economic Emergency Powers Act (IEEPA) several weeks ago was obviously appropriate. But there are many other situations in which we will not want to

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block all transactions, but in which we will want to do more than simply advise financial institutions about under-regulated foreign financial institutions or holes in foreign counter-money laundering efforts. Former Deputy Secretary Eizenstat testified before the Committee that adding this tool to the Secretary's arsenal was essential.

Section 312 focuses on another aspect of the fight against money laundering, the financial institutions that are on the front lines making the initial decisions about what foreign banks to allow inside the United States. It requires U.S. financial institutions to exercise appropriate due diligence when dealing with private banking accounts and interbank correspondent relationships with foreign banks. With respect to foreign banks, the section requires U.S. financial institutions to apply appropriate due diligence to all correspondent accounts with foreign banks, and enhanced due diligence for accounts sought by offshore banks or banks in jurisdictions found to have substandard money laundering controls or which the Secretary determines to be of primary money laundering concern under the new authority given him by section 311.

The section also specifies certain minimum standards for the enhanced due diligence that U.S. financial institutions are required to apply to accounts opened for two categories of foreign banks with high money laundering risks--offshore banks and banks in jurisdictions with weak anti-money laundering and banking controls. These minimum standards were developed from, and are based upon, the factual record and analysis contained in the Levin staff report on correspondent banking and money laundering.

Section 312 is essential to Title III. It addresses, with appropriate flexibility, mechanisms whose very importance for the conduct of commercial banking makes them special targets of money launderers, as illustrated in Senator Levin's extensive reports and hearings. A related provision, in section 319, requires foreign banks that maintain correspondent accounts in the United States to appoint agents for service of process within the United States and authorizes the Attorney General and the Secretary of the Treasury to issue a summons or subpoena to any such foreign bank seeking records, wherever located, relating to such a correspondent account. U.S. banks must sever correspondent arrangements with foreign

banks that do not either comply with or contest any such summons or subpoena, and if the Attorney General or the Secretary of the Treasury asks them to sever the arrangements.

These provisions send a simple message to foreign banks doing business through U.S. correspondent accounts: be prepared, if you want to use our banking facilities, to operate in accordance with U.S. law.

Section 313 also builds on the factual record before the Banking Committee to bar from the United States financial system pure ``brass-plate'' shell banks created outside the U.S. that have no physical presence anywhere and are not affiliated with recognized banking institutions. These shell banks carry the highest money laundering risks in the banking world because they are inherently unavailable for effective oversight--there is no office where a bank regulator or law enforcement official can go to observe bank operations, review documents or freeze funds.

Section 327 permits the Secretary to deal with abuse of another recognized commercial banking mechanism--concentration accounts that are used to commingle related funds in one place temporarily pending disbursement or the transfer of funds into individual client accounts. Concentration accounts have been used to launder funds, and the bill permits the Secretary to issue rules to bar the use of concentration accounts to move client funds anonymously, without documentation linking particular funds to their true owners.

Section 332 requires financial institutions to establish minimum anti-money laundering programs that include appropriate internal policies, management, employee training, and audit features. This is not a ``one size fits all'' requirement; in fact its very generality recognizes that different types of programs will be appropriate for different types and sizes of institutions.

A number of improvements are made to the suspicious activity reporting rules. First, technical changes strengthen the safe harbor from civil liability for institutions that report suspicious activity to the Treasury. The provisions not only add to the protection for reporting institutions; they also address individual privacy concerns by making it clear that government officers may not disclose suspicious transaction reports information except in the conduct of their official duties. The Act also requires the issuance of suspicious transaction reporting rules applicable to brokers and dealers in securities within 270 days of the date of enactment.

Sections 341 and 342 of the Title deal with underground banking systems such as the Hawala, which is suspected of being a channel used to finance the al Qaeda network. Section 341 makes it clear that underground money transmitters are subject to the same recordkeeping rules--and the same penalties for violating those rules--as above-ground, recognized, money transmitters. It also directs the Secretary of the Treasury to report to Congress, within one year, on the need for additional legislation or regulatory controls relating to underground banking systems. Section 342 authorizes the Secretary of the Treasury to instruct the United States Executive Director of each of the international financial institutions to use such Director's ``voice and vote'' to support loans and other use of resources to benefit nations that the President determines to be contributing to efforts to combat international terrorism, and to require the auditing of each international financial institution to ensure that funds are not paid to persons engaged in or supporting terrorism.

Section 351 creates a new Bank Secrecy Act offense involving the bulk smuggling of more than $10,000 in currency in any conveyance, article of luggage or merchandise or container, either into or out of the United States, and related forfeiture provisions. This provision has been sought for several years by both the Departments of Justice and Treasury.

Other provisions of the bill address relevant provisions of the Criminal Code. These provisions were worked out with the Judiciary Committee and are included in Title III because of their close relationship to the provisions of Title 31 added or modified by Title III.

The most important is section 315, which expands the list of specified unlawful activities under 18 U.S.C. 1956 and 1957 to include foreign corruption offenses, certain U.S. export control violations, offenses subject to U.S. extradition obligations under multilateral treaties, and misuse of funds of international financial institutions.

Section 316 establishes procedures to protect the rights of persons whose property may be subject to confiscation in the exercise of the government's anti-terrorism authority.

Section 319 treats amounts deposited by foreign banks in interbank accounts with U.S. banks as having been deposited in the United States for purposes of the forfeiture rules, but grants the Attorney General authority, in the interest of fairness and consistent with the United States' national interest, to suspend a forfeiture proceeding based on that presumption. This closes an important forfeiture loophole.

Section 321 allows the United States to exclude any alien that the Attorney General knows or has reason to believe is or has engaged in or abetted certain money laundering offenses.

A third important set of provisions modernize information sharing rules to reflect the reality of the fight against money laundering and terrorism.

Section 314 requires the Secretary of the Treasury to issue regulations to encourage cooperation among financial institutions, financial regulators and law enforcement officials and to permit the sharing of information by law enforcement and regulatory authorities with such institutions regarding persons reasonably suspected, based on credible evidence, of engaging in terrorist acts or money laundering activities. The section also allows banks to share information involving possible money laundering or terrorist activity among themselves--with notice to the Secretary of the Treasury.

Section 335 permits, but does not require, a bank to include information,

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in a response to a request for an employment reference by a second bank, about the possible involvement of a former institution-affiliated party in potentially unlawful activity, and creates a

safe harbor from civil liability for the bank that includes such information in response to an employment reference request, except in the case of malicious intent. Given its different focus, it is not my intention to similarly limit a bank's safe harbor from civil liability for the filing of suspicious activity reports under the Bank Secrecy Act.

Section 340 contains amendments to various provisions of the Bank Secrecy Act, the Right to Financial Privacy Act, and the Fair Credit Reporting Act, to permit information subject to those statutes to be used in the conduct of United States intelligence or counterintelligence activities to protect against international terrorism.

The modernization of our money laundering laws represented by Subtitle III is long overdue. It is not the work of one week or one weekend, but represents years of careful study and a bipartisan effort to produce a piece of prudent legislation. The care taken in producing the legislation extends to several provisions calling for reporting on the legislation's effect and a provision for a three-year review of the legislation's effectiveness.

Title III responds, as I've indicated, to the statement of Assistant Attorney General Chertoff, the head of the Department of Justice's Criminal Division, at the Banking Committee's September 26 hearing that ``[w]e are fighting with outdated weapons in the money laundering arena today.'' Without this legislation, the cracks in the system of which bin Laden boasted will remain open. We should not, indeed we can not, allow that to happen, any more than we can delay dealing with the financial aspects of the terrorist threat.

Title III is a balanced effort to address a complex area of national concern. I strongly urge my colleagues to follow the unanimous recommendation of the Banking Committee and support this important component of the anti-terrorism package.

I ask unanimous consent that a section-by-section summary of Title III be included in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Title III--International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001--Section-by-Section Summary

Sec. 301. Short title and table of contents.

Sec. 302. Findings and purposes.

Sec. 303. Provides that the provisions added and amendments made by Title III will terminate after September 30, 2004, if the Congress enacts a joint resolution to that effect, and that such joint resolution will be given expedited consideration in each Houses of Congress.

SUBTITLE A. INTERNATIONAL COUNTER-MONEY LAUNDERING AND RELATED MEASURES

Sec. 311. Gives the Secretary of the Treasury, in consultation with other senior government officials, authority (in the Secretary's discretion) to impose one or more of five new ``special measures'' against foreign jurisdictions, entities, transactions and accounts that the Secretary, after consultation with other senior federal officials, determines to pose a ``primary money laundering concern'' to the United States. The special measures include: (1) requiring additional recordkeeping or reporting for particular transactions, (2) requiring the identification of the foreign beneficial owners of certain accounts at a U.S. financial institution, (3) requiring the identification of customers of a foreign bank who use an interbank payable-through account opened by that foreign bank at a U.S. bank, (4) requiring the identification of customers of a foreign bank who use an interbank correspondent account opened by that foreign bank at a U.S. bank, and (5) after consultation with the Secretary of State, the Attorney General, and the Chairman of the Federal Reserve Board, restricting or prohibiting the opening or maintaining of certain interbank correspondent or payable-through accounts. Measures 1-4 may not be imposed, other than by regulation, for a period in excess of 120 days; measure 5 may only be imposed by regulation. Also requires the Secretary of the Treasury, in consultation with the appropriate Federal banking agencies, to submit to Congress, within 180 days of the date of enactment, recommendations for the most effective way to require foreign nationals opening a U.S. bank account to provide identification comparable to that required when U.S. citizens open a bank account.

Sec. 312. Requires a U.S. financial institution that maintains a correspondent account or private banking account for a non-United States person to establish appropriate and, if necessary, enhanced due diligence procedures to detect and report instances of money laundering. Creates a minimum anti-money laundering due diligence standards for U.S. financial institutions that enter into correspondent banking relationships with banks that operate under offshore banking licenses or under banking licenses issued by countries that (a) have been found noncooperative with international counter money laundering principles, or (b) have been the subject of special measures authorized by Sec. 311. Creates minimum anti-money laundering due diligence standards for maintenance of private banking accounts by U.S. financial institutions.

Sec. 313. Bars depository institutions and broker-dealers operating in the United States from establishing, maintaining, administering, or managing correspondent accounts for foreign shell banks, other than shell bank vehicles affiliated with recognized and regulated depository institutions.

Sec. 314. Requires the Secretary of the Treasury to issue regulations to encourage cooperation among financial institutions, financial regulators and law enforcement officials and to permit the sharing of information by law enforcement and regulatory authorities with such institutions regarding persons reasonably suspected, based on credible evidence, of engaging in terrorist acts or money laundering activities. Allows (with notice to the Secretary of the Treasury) the sharing of information among banks involving possible terrorist or money laundering activity.

Sec. 315. Expands the list of specified unlawful activities under 18 U.S.C. 1956 and 1957 to include foreign corruption offenses, certain U.S. export control violations, and misuse of funds of the IMF.

Sec. 316. Establishes procedures to protect the rights of persons whose property may be subject to confiscation in the exercise of the government's anti-terrorism authority.

Sec. 317. Gives United States courts ``long-arm'' jurisdiction over foreign persons committing money laundering offenses in the United States, over foreign banks opening United States bank accounts, and over foreign persons seizing assets ordered forfeited by a U.S. court.

Sec. 318. Expands the definition of financial institution for purposes of 18 U.S.C. 1956 and 1957 to include banks operating outside the United States.

Sec. 319. Treats amounts deposited by foreign banks in interbank accounts with U.S. banks as having been deposited in the United States for purposes of the forfeiture rules, but grants the Attorney General authority, in the interest of justice and consistent with the United States' national interest, to suspend a forfeiture proceeding based on that presumption. Requires U.S. financial institutions to reply to a request for information from a U.S. regulator relating to anti-money laundering compliance within 120 hours of receipt of such a request. Requires foreign banks that maintain correspondent accounts in the United States to appoint agents for service of process within the United States and authorizes the Attorney General and the Secretary of the Treasury to issue a summons or subpoena to any such foreign bank seeking records, wherever located, relating to such a correspondent account. Requires U.S. banks to sever correspondent arrangements with foreign banks that do not either comply with or contest any such summons or subpoena. Authorizes United States courts to order a convicted criminal to return property located abroad and to order a civil forfeiture defendant to return property located abroad pending trial on the merits. Authorizes United States prosecutors to use a court-appointed Federal receiver to find a criminal defendant's assets, wherever located.

Sec. 320. Permits the United States to institute forfeiture proceedings against the proceeds of foreign criminal offenses found in the United States.

Sec. 321. Allows the United States to exclude any alien that the Attorney General knows or has reason to believe is or has engaged in or abetted certain money laundering offenses.

Sec. 322. Extends the prohibition against the maintenance of a forfeiture proceedings on behalf of a fugitive to include a proceeding by a corporation whose majority shareholder is a fugitive and a proceeding in which the corporation's claim is instituted by a fugitive.

Sec. 323. Permits the government to seek a restraining order to preserve the availability of property subject to a foreign forfeiture or confiscation judgment.

Sec. 324. Increases from $100,000 to $1,000,000 the maximum civil and criminal penalties for a violation of provisions added to the Bank Secrecy Act by sections 311 and 312 of the Act.

Sec. 325. Directs the Secretary of the Treasury, in consultation with the Attorney General, the Federal banking agencies, the SEC, the CFTC and other appropriate agencies to evaluate operation of the provisions of Subtitle A of Title III of the Act and recommend to Congress any relevant legislative action, within 30 months of the date of enactment.

Sec. 326. Directs the Secretary of the Treasury to report annually to the Senate Banking Committee and House Financial Services Committee on measures taken pursuant to Subtitle A of Title III of the Act.

Sec. 327. Authorizes the Secretary of the Treasury to issue regulations concerning the

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maintenance of concentration accounts by U.S. depository institutions to prevent an institution's customers from anonymously directing funds into or through such accounts.

Sec. 328. Provides criminal penalties for officials who violate their trust in connection with the administration of Title III.

SUBTITLE B. CURRENCY TRANSACTION REPORTING AMENDMENTS AND RELATED IMPROVEMENTS

Sec. 331. Clarifies the terms of the safe harbor from civil liability for financial institutions filing suspicious activity reports pursuant to 31 U.S.C. 5318(g).

Sec. 332. Requires financial institutions to establish anti-money laundering programs and grants the Secretary of the Treasury authority to set minimum standards for such programs.

Sec. 333. Clarifies that penalties for violation of the Bank Secrecy Act and its implementing regulations also apply to violation of Geographic Targeting Orders issued under 31 U.S.C. 3526, and to certain recordkeeping requirements relating to funds transfers. Otherwise clarifies and updates certain provisions of 31 U.S.C. 5326 relating to Geographic Targeting Orders.

Sec. 334. Adds ``money laundering related to terrorist funding'' to the list of subjects to be dealt with in the annual National Money Laundering Strategy prepared by the Secretary of the Treasury pursuant to the ``Money Laundering and Financial Crimes Strategy Act of 1998.''

Sec. 335. Permits (but does not require) a bank to include information, in a response to a request for an employment reference by a second bank, about the possible involvement of a former institution-affiliated party in potentially unlawful activity, and creates a safe harbor from civil liability for the bank that includes such information in response to an employment reference request, except in the case of malicious intent.

Sec. 336. requires the Bank Secrecy Act Advisory Group to include a privacy advocate among its membership and to operate under certain of the ``sunshine'' provisions of the Federal Advisory Committee Act.

Sec. 337. Directs the Secretary of the Treasury and the Federal bank regulatory agencies to submit reports to Congress, one year after the date of enactment, containing recommendations on possible legislation to conform the penalties imposed on depository institutions for violations of the Bank Secrecy Act with penalties imposed on such institutions under section 8 of the Federal Deposit Insurance Act.

Sec. 338. Directs the Secretary of the Treasury, after consultation with the Securities and Exchange Commission and the Federal Reserve Board, to promulgate regulations, within 270 days of the date of enactment, requiring broker-dealers to file suspicious activity reports. Also requires the Secretary of the Treasury, the SEC, Federal Reserve Board, and the CFTC to submit jointly to Congress, within one year of the date of enactment, recommendations for effective application of the provisions of 31 U.S.C. 5311-30 to both registered and unregistered investment companies.

Sec. 339. Directs the Secretary of the Treasury to submit a report to Congress, six months after the date of enactment, on the role of the Internal Revenue Service in the administration of the Bank Secrecy Act, with emphasis on whether IRS Bank Secrecy Act information processing responsibility (for reports filed by all financial institutions) or Bank Secrecy Act audit and examination responsibility (for certain non-bank financial institutions) should be retained or transferred.

Sec. 340. Contains amendments to various provisions of the Bank Secrecy Act, the Right to Financial Privacy Act, and the Fair Credit Reporting Act, to permit information to be used in the conduct of United States intelligence or counterintelligence activities to protect against international terrorism.

Sec. 341. Clarifies that the Bank Secrecy Act treats certain underground banking systems as financial institutions, and that the funds transfer recordkeeping rules applicable to licensed money transmitters also apply to such underground systems. Directs the Secretary of the Treasury to report to Congress, within one year of the date of enactment, on the need for additional legislation or regulatory controls relating to underground banking systems.

Sec. 342. Authorizes the Secretary of the Treasury to instruct the United States Executive Director of each of the international financial institutions (for example, the IMF and the World Bank) to use such Director's ``voice and vote'' to support loans and other use of resources to benefit nations that the President determines to be contributing to United States efforts to combat international terrorism, and to require the auditing of each international financial institution to ensure that funds are not paid to persons engaged in or supporting terrorism.

SUBTITLE C. CURRENCY CRIMES

Sec. 351. Creates a new Bank Secrecy Act offense involving the bulk smuggling of more than $10,000 in currency in any conveyance, article of luggage or merchandise or container, either into or out of the United States, and related forfeiture provisions.

SUBTITLE D. ANTI-CORRUPTION MEASURES

Sec. 361. Expresses the sense of Congress that the United States should take all steps necessary to identify the proceeds of foreign government corruption that have been deposited in United States financial institutions and return such proceeds to the citizens of the country to whom such assets belong.

Sec. 362. Expresses the sense of Congress that the United States must continue actively and publicly to support the objectives of the 29-country Financial Action Task Force Against Money Laundering.

Sec. 363. Expresses the sense of Congress that the United States, in its deliberations and negotiations with other countries, should promote international efforts to identify and prevent the transmittal of funds to and from terrorist organizations.

SUBTITLE E. MISCELLANEOUS

Sec. 371. Expands the SEC's emergency order authority.

Sec. 372. Creates uniform protection standards for Federal Reserve facilities.

Mr. LEAHY. Mr. President, I thank the distinguished chairman of the Banking Committee, the senior Senator from Maryland, Mr. Sarbanes. He did unbelievable work in this committee to pass out a money-laundering bill--a very complex and difficult subject. He did it unanimously, I believe, in a committee that probably has as diverse a membership--that is an understatement--as one might find. I compliment him and thank him for his kind words.

I reserve the remainder of my time. I see the chairman of the Senate Intelligence Committee here, who wishes to give his opening statement.

The PRESIDING OFFICER. The Senator from Nevada is recognized.

Mr. REID. Mr. President, I conferred with Senator Daschle a few minutes ago. It is his desire--so there is no misunderstanding of the Members--that a number of opening statements be given: The Senator from Florida, the chairman of the Intelligence Committee, and we understand Senator Stabenow wishes to speak, and there may be a couple of other opening statements.

As soon as that is done, we are going to turn to Senator FEINGOLD to offer the first of his amendments. After that, there will be a vote on the first Feingold amendment.

Mr. LEAHY. Mr. President, I yield 10 minutes to the senior Senator from Florida.

The PRESIDING OFFICER. The Senator from Florida is recognized for 10 minutes.

Mr. GRAHAM. Mr. President, I wish to commend Senators DASCHLE and LOTT for their leadership in bringing this critical piece of legislation to the Senate just 1 month after the horrific events of September 11. Senators LEAHY and HATCH also deserve credit for moving quickly to shape the judiciary components of this bill and choreograph other provisions, including those affecting the intelligence agencies.

My remarks will focus on title IX of this legislation, which is entitled ``Improved Intelligence,'' as well as the other provisions in the bill that directly affect the mission of the agencies of the intelligence community.

Title IX is derived from S. 1448, legislation which was developed within the intelligence community, entitled ``Intelligence to Prevent Terrorism Act of 2001.''

Since long before September 11, I have been working with members of the committee, particularly Senators FEINSTEIN and KYL, on comprehensive counterterrorism legislation. Most of the provisions of our bill, with some changes requested by the administration, have now become title IX of S. 1510.

The provisions in title IX, as well as other provisions in the bill, are designed to accomplish a daunting but not impossible task. That task is to change the cultures within the Federal law enforcement and intelligence agencies--primarily the FBI and the CIA--so they work seamlessly together for the good of the American people.

Both the FBI and the CIA are very good. They are the standards of the world in their own missions. But those missions are very different. The Federal Bureau of Investigation is goal oriented. A criminal case has a beginning, a middle, and an end. In a case that has developed the guilty party, the end is a conviction for the crime committed. The information collected during a criminal case is very closely held. It is held closely because its purpose is to result in the successful prosecution of an event that occurred in the past--not to inform thinking about what may happen now or in the future.

The Central Intelligence Agency, on the other hand, as well as its other companions in the intelligence community, has a global approach, literally

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and figuratively. The CIA is restricted to activities outside the United States of America. The CIA collects information on a worldwide basis, and it processes that information, analyzes that information, and it places it in the hands of its customers. Its customers are other Federal agencies and senior policymakers, including the President of the United States. The purpose of that information is to allow those senior policymakers to make more informed decisions.

Given the threats we now face, the cultures growing out of these different missions must be melded. We cannot fight terrorism by putting yellow tape around a bomb site, calling it a crime scene, collecting evidence, and proceeding to trial frequently years later. We must put the evidence collected after such an event to work for us in real time so we can predict and prevent the next attack. If there is a single goal of the intelligence components of this antiterrorism bill, it is to change the focus from responding to acts that have already occurred to preventing the acts which threaten the lives of American citizens in this country and abroad.

It is critical that all information lawfully available to the Federal Government be used efficiently and effectively to fight terrorism. We cannot continue to use critical information only in a criminal trial. Any information

collected must be available to intelligence officials to inform their operational initiatives so as to prevent the next attack.

Along these lines, several provisions of S. 1510 are designed to change the way information is handled within the Federal Government. For example, section 203 permits law enforcement to share information collected in grand jury proceedings and from title III criminal wiretaps with intelligence agencies. Current law, as it has been interpreted, prevents that sharing, except in very limited circumstances.

Section 905 then complements section 203 in that it requires law enforcement officers, FBI agents, and the Justice Department prosecutors to provide foreign intelligence derived in the course of a criminal investigation, including grand juries, criminal wiretaps, FBI interviews, and the like, to the Central Intelligence Agency and to other intelligence agencies.

A ``permissive'' approach is not good enough under current circumstances. Too many lives have been lost, too many lives are at risk. Law enforcement sharing of information with the intelligence agencies must be mandatory.

Section 908 further complements this legislation by providing the training of law enforcement officers at the Federal, State, and local agencies so they will be better equipped to recognize foreign intelligence information when they see it, and to get it to the right place on a timely basis.

Let me give a couple of hypothetical but eerily-close-to-reality examples. It is likely that there are, tonight, grand juries meeting at various places in the United States to deal with issues related to the events of September 11. Witnesses may be providing information--information about training camps in Afghanistan, ground warfare techniques used by al-Qaida and the Taliban, the types and quantity of weapons available. This type of information will be critical for the military--critical for the military now, not 2 years from now when these cases might go to trial.

Another example is in the area of wiretaps. Let me just take two wiretaps. One has been issued under the Foreign Intelligence Surveillance Act because there was a finding by a Federal judge that there was credible evidence that the telephone was being used by an agent of a foreign power.

In the course of listening to the wiretap, this conversation comes across: I am planning to fly from a specifically designated site in Central America to a city in Texas. I am going to take my flight a week from Monday. My intention is, once I arrive over that city, to distribute chemical or biological materials that will terrorize the people of that city by creating havoc due to the illnesses that will be provoked.

But how are you going to pay for this? You don't have the money to buy a plane, chemicals, or get the expertise necessary to do that?

I am going to do that because I am going to rob a bank next Monday in order to get the money that I need to pay for this operation. The bank is going to be located at the corner of First and Main, and I am going to do it 3 hours after the bank closes next Monday.

The person listening to that conversation with a foreign intelligence wiretap is under a legal obligation to make known to the appropriate law enforcement officials that there is about to be a bank robbery at a specific location on a specific date and time in a certain Texas city.

Conversely, if that exact conversation had taken place under a criminal wiretap under title 3, the person listening to that conversation would be prohibited from telling the foreign intelligence agencies that there was about to be a terrorist attack on a date certain against a specific Texas city originating at a specific site in Central America.

Try to convince the American people that makes sense. It clearly does not in today's reality. This legislation is going to make the same requirement of mandatory sharing when the information is gathered under a criminal wiretap that involves foreign intelligence information, as is the case today when information gathered under a Foreign Intelligence Surveillance Act wiretap must be made available to appropriate law enforcement officials.

Another provision of title 9 addresses the role of the Director of Central Intelligence in the process of collecting foreign intelligence under the Foreign Intelligence Surveillance Act. It recognizes the need to target limited resources, including personnel and translators against the highest priority targets.

I ask if I can have an additional 5 minutes.

The PRESIDING OFFICER. The Senator from Vermont.

Mr. LEAHY. I have about 11 minutes left that has not been committed which I thought I might use to answer some questions. I give the Senator 2 of my 11 minutes.

Mr. GRAHAM. I appreciate the Senator's limitations.

Mr. LEAHY. We just had one Senator ask me for 30 minutes. I am looking at my 11. How can I give him 30? But I will give you 2 of the 11.

Mr. GRAHAM. Mr. President, I thank the Senator from Vermont.

We have a provision that the Director of Central Intelligence, the DCI, will set the overall strategic goals for the collection of foreign intelligence so that we can use our limited resources as effectively as possible.

In order to complement that, we also have a provision that will establish a national virtual translation center as a means of increasing our woefully limited linguistic capabilities to translate the material which we are gathering.

We will also provide for additional capability with human intelligence. We have become very reliant on technology--eavesdropping, satellite imagery, to the exclusion of the use of human beings. If we want to gain information about the bin Ladens of the world, we cannot just take a picture of bin Laden.

Today it is increasingly difficult to eavesdrop on bin Laden. What we need to do is get a human being who is able to get close enough to bin Laden to learn his intentions and capabilities. This gets to the difficult issue of what kind of assets, human beings, we hire to work for us to gather such information?

We would all like to employ the purist of people, all choir boys to do this type of work. Unfortunately, they are not the type of people who are likely to be able to get close to the bin Ladens of the world. Thus, we have a provision in this legislation in the nature of a sense of Congress which we hope will send a strong message to the intelligence community that we are encouraging them to overcome some previous messages from Congress and to proceed to recruit the persons who they find to be necessary to gain access to terrorists so that we can have the best opportunity of protecting ourselves.

With the adoption of this legislation, we have not reached the end of our task or responsibilities to protect the American people. We are taking a substantial step in that direction.

To reiterate, another provision of title 9 addresses the role of the Director of Central Intelligence in the process of collecting foreign intelligence

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under the Foreign Intelligence Surveillance Act. It recognizes the need to target limited resources--e.g. translators--against the highest priority targets.

In order to ensure that scarce resources are effectively used, the DCI--in his role as head of the Intelligence community, not as CIA Director--will set overall strategic goals for FISA collection.

He will work with the Attorney General to ensure that FISA information is distributed to the intelligence operators and analysts who need it government-wide.

Of course, the operational targeting and collection using wiretaps will be conducted by the FBI, as it has in the past; the DCI will perform no role in those decisions.

One of the scarce resources that has plagued the Intelligence Community, as well as law enforcement, is translation capability.

Section 907 of this bill requires the FBI and CIA to work together to create a ``National Virtual Translation Center.''

Such a center would seek to remedy the chronic problem of developing critical language abilities, and matching those resources to intelligence collected by the wide range of techniques available.

It is not enough to be able to listen to the conversations of terrorists and their supporters.

Those conversations must be translated, often from difficult languages such as Urdu, and analyzed, all in a timely fashion.

Our intelligence services collect vast amounts of data every day. It is possible that we may find that a critical clue to the September 11 attacks may have been available, but untranslated, days, weeks, or even months before the hijackings.

We must address this problem before another specific threat is overlooked.

Finally, I would like to mention a problem that has received a great deal of attention in recent weeks. There has been criticism of the intelligence agencies for placing too great a reliance on technical intelligence collection--laws dropping, satelite photograph--in recent years at the expense of human sources, or spies.

A corollary of this criticism is that CIA officers are to risk-averse and that they do not aggressively recruit sources overseas that may have access to terrorist groups because the sources may have engaged in human rights violations or violent crimes.

As to the first problem, the Intelligence authorization bill for fiscal year 2002, which may come to the floor next week, provides greater resources for human source recruitment--and it is part of a 5-year plan to beef up this method of collection.

With respect to the second problem, we in the Congress simply must accept some of the responsibility for creating a risk-averse reaction at CIA, if needed there is one.

The internal CIA regulations addressing the so-called ``dirty asset'' problem grew out of the criticisms by Congress in the mid-1990s about the recruitment of sources in Guatemala with sordid pasts.

We address this issue in S. 1510, section 903, by sending a strong message to CIA Headquarters and CIA officers overseas that recruitment of any person who has access to terrorists or terrorist groups should be of the highest priority.

There is no place in times like these for timidity in seeking every method available to learn the capabilities, plans, and intentions of terrorists.

Congress needs to send a strong message that we value such efforts to recruit sources on terrorism, even those with pasts we would not applaud.

Section 903 sends that message.

I urge passage of S. 1510.

I again commend the Members of the Senate who have played such an effective role.

I also thank the staff: Al Cumming, Bob Filippone, Vicki Divoll, Steven Cash, Bill Duhnke, Paula DeSutter, Jim Hensler, and Jim Barnett.

They have been working for the past many months to bring us to the point of this legislation being available for adoption by the Senate tonight and for the safety of the American people.

The PRESIDING OFFICER. The time of the Senator has expired. The Senator from Vermont.

Mr. LEAHY. I ask the distinguished Senator from Utah--I see the distinguished senior Senator from Pennsylvania is here--perhaps after the senior Senator from Utah, and then after the senior Senator from Pennsylvania speaks, whether it might be possible to go to the Senator from Wisconsin for the purpose of bringing up his amendments, and we can then debate and vote on them. Will that be agreeable to everybody?

Mr. HATCH. It is agreeable.

Mr. LEAHY. I ask unanimous consent that after the Senator from Utah, and the Senator from Pennsylvania, we go to the Senator from Wisconsin for the purpose of bringing up his amendments.

The PRESIDING OFFICER. Without objection, it is so ordered.

The Senator from Utah.

Mr. HATCH. Mr. President, in my opening remarks, I was remiss in not mentioning the tremendous work of the distinguished chairman and vice chairman of the Intelligence Committee. They have done a tremendous amount of work on the intelligence aspect of this bill. As a member of the Intelligence Committee, I express my high regard for the both of them and the work they have done.

I also express my regard for my friend from Maryland, Senator Sarbanes, who came to the Senate with me, for the work he has done on the money-laundering section of this bill. He and Senator Gramm and the Banking Committee have done yeoman's service on this, and I hope we are able to have that as part of the final bill.

I would be remiss if I did not acknowledge the great work that has been done--also, Senator Kyl and so many others. I felt I needed to say that. I thank the Chair.

The PRESIDING OFFICER. Who yields time?

Mr. SPECTER. Mr. President, parliamentary inquiry, that I have 30 minutes under the unanimous consent request?

The PRESIDING OFFICER. The Senator is correct.

Mr. SPECTER. I yield myself 15 minutes.

The PRESIDING OFFICER. The Senator from Pennsylvania.

Mr. SPECTER. Mr. President, I have sought recognition and asked for this reservation of time to express my concerns about the record which the Senate is creating so that whatever legislation we pass will pass constitutional muster.

The Supreme Court of the United States has handed down a series of decisions in the past decade which question the constitutionality and, in fact, invalidate acts of Congress because there has been an insufficient record compiled. So I make these statements and review the record so far with a view to urging my colleagues to create a record in this Chamber, in conference, or wherever that opportunity may present itself.

In 1989, in the case of Sable v. FCC, the Supreme Court of the United States struck down an act of Congress saying, ``no Congressman or Senator purported to present a considered judgment.'' I thought it was a remarkable statement by the Supreme Court since Congressman Tom Bliley in the House of Representatives had established a very comprehensive record.

The Supreme Court in 1997, in a case captioned Reno v. ACLU, again invalidated an act of Congress noting, ``the lack of legislative attention to the statute at issue in Sable suggests another parallel with this case.''

It was surprising to me that the Supreme Court of the United States would invalidate an act of Congress on the ground that no Senator or Congressman had purported to present a considered judgment, when that is the view of the Supreme Court which is contrary to Congress.

Under our doctrine of separation of powers, it seemed to me an act of Congress should stand unless there is some specific provision in the Constitution which warrants invalidating it or for vagueness under the due process clause of the fifth amendment.

The Supreme Court of the United States, in January of last year, did it again in a case captioned Kimel v. Florida Board of Regents, a case which involved the Age Discrimination in Employment Act. There the Court said, ``our examination of the act's legislative record confirms that Congress' 1974 extension of the Act to the States

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was an unwarranted response to a perhaps inconsequential problem.'' Again, a remarkable holding that the Congress had an unwarranted response and that it was an inconsequential problem, totally contradicting the judgment of the Congress of the United States.

Then the Court went on in the Kimel case to say, ``Congress had no reason to believe that broad prophylactic legislation was necessary in this field.''

Those are only a few of the cases where the Supreme Court of the United States has invalidated acts of Congress. There is no doubt there is a need for legislation to expand the powers of law enforcement to enable us to act against terrorists. My own experience in 8 years on the Intelligence Committee, 2 years of which was as chairman, and my work as chairman of the Judiciary Subcommittee on Terrorism have convinced me without a doubt of the scourge of terrorism which we have seen many times but never with the intensity which we observed on September 11 of this year.

The act of Congress in expanding law enforcement has to be very carefully calibrated to protect civil liberties and be in

accordance with the Constitution of the United States. Attorney General Ashcroft met with a number of us on Wednesday, September 19, just 8 days after the incident of September 11, and asked that we enact legislation by the end of the week. My response at that time was I thought it could not be done in that time frame, but I thought we could hold hearings in the remainder of that week, perhaps on Thursday the 20th, or Friday the 21st, or Saturday the 22nd, to move ahead, understanding the import of the administration's bill, and legislate to give them what they needed, consistent with civil rights.

The Judiciary Committee then held a hearing on September 25 where the Attorney General testified for about an hour and 20 minutes. At that time, as that record will show, only a few Senators were able to ask questions. In fact, the questioning ended after my turn came, and most of the Judiciary Committee did not have a chance to raise questions.

On September 26, the following day, I wrote to the chairman of the committee saying:

I write to urge that our Judiciary Committee proceed promptly with the Attorney General's terrorism package with a view to mark up the bill early next week so the full Senate can consider it and hopefully act upon it by the end of the week. I am concerned that some further act of terrorism may occur which could be attributed to our failure to act promptly.

I then found out on October 3 that the Subcommittee on the Constitution was having a hearing. By chance, I heard about it in the corridors. Although we were having a hearing with Health and Human Services Secretary Thompson on bioterrorism, I absented myself from the bioterrorism hearing and went down the hall to the Judiciary subcommittee hearing and participated there and expressed many of the reservations and concerns I am commenting about today.

On that date, I again wrote to Senator Leahy. I ask unanimous consent that the full text of my letter to him and the full text of his reply to me of October 9 be printed in the RECORD at the conclusion of these remarks.

The PRESIDING OFFICER. Without objection, it is so ordered.

(See exhibit 1.)

Mr. SPECTER. I quote only from the first sentence of Senator Leahy's response to me:

I thank you for your letters of September 26 and October 3 and for your participation in the September 25 hearing regarding antiterrorism legislation. On October 3, you wrote that you were concerned about the lack of hearings. I share that concern and have tried to notice prompt hearings on a number of aspects of the legislative proposals at the earliest possible time.

On this state of the record, which I hope can yet be perfected, I am concerned about our meeting the standards of the Supreme Court of the United States for a sufficient deliberative process.

When Attorney General Ashcroft appeared before the Judiciary Committee on September 25, he said the only detention he wanted on aliens was those who were subject to deportation proceedings. I then pointed out, as the record will show, that the legislation submitted by the Attorney General was much broader and did not limit detention simply or exclusively to those who were subject to deportation proceedings. So my comment was that it was necessary to analyze the bill very carefully, not do it hurriedly, and give the Attorney General of the Department of Justice what he needed, consistent with constitutional rights.

The other issue which I had an opportunity to raise in the very brief period of time I had--some 5 minutes--involved modifications to the Foreign Intelligence Surveillance Act, where the issue was to change the law from ``the purpose,'' being the gathering of intelligence, to ``a purpose.'' Ultimately the legislation has been modified to read ``a significant purpose.''

At that hearing, the Attorney General said he did not look to obtain content from electronic surveillance unless probable cause was established. But in the draft bill, which the Department of Justice had submitted at that time, that was not what the bill provided. So that on this state of the record, I think the Congress has some work to do, tonight in conference or perhaps by other means, to see to it we have a record which will withstand constitutional scrutiny.

On our Judiciary Committee, we have many Members who have expertise in this field. This bill, as the RECORD will show, was negotiated by the chairman and ranking member with the Department of Justice, with the participation of the committee only to the extent of the hearing of the full committee on September 25 and the subcommittee on October 3.

We have on our Judiciary Committee a number of Members who have had experience as prosecuting attorneys. We have a number of lawyers who are learned in law. We have other Members who have extensive experience on the Judiciary Committee and a great deal of common sense which may top some of us who have prosecutorial experience or extended experience with probable cause and search warrants or surveillance of some sort or another.

I express these concerns so whatever can be done by the Congress will be done to meet the constitutional standards.

How much of the 15 minutes have I used?

The PRESIDING OFFICER. The Senator has 3 minutes 37 seconds remaining.

Mr. SPECTER. I reserve the remainder of my time, and I yield the floor.

Exhibit 1

U.S. SENATE,

Washington, DC, September 26, 2001.

Hon. PATRICK J. LEAHY,

Chairman, Senate Judiciary Committee, Washington, DC.

DEAR PAT: I write to urge that our Judiciary Committee proceed promptly with the Attorney General's terrorism package with the view to mark up the bill early next week so the full Senate can consider it and hopefully act upon it by the end of next week.

I am concerned that some further act of terrorism may occur which could be attributed to our failure to act promptly.

Sincerely,

ARLEN SPECTER.

--

U.S. SENATE,

Washington, DC, October 3, 2001.

Hon. PATRICK J. LEAHY,

Chairman, Senate Judiciary Committee, Washington, DC.

DEAR SENATOR LEAHY: I am very much concerned about the delay in acting on the anti-terrorism legislation and also about the absence of hearings to establish a record for the legislative package.

In recent decisions, the Supreme Court of the United States has declared acts of Congress unconstitutional when there has been an insufficient record or deliberative process to justify the legislation.

On the anti-terrorism legislation, perhaps more than any other, the Court engages in balancing the needs of law enforcement with the civil rights issues so that it is necessary to have the specification of the problems to warrant broadening police power.

In my judgment, there is no substitute for the hearings, perhaps in closed session, to deal with these issues.

As you know, I have been pressing for hearings. I am now informed that Senator Hatch has convened a meeting of all Republican senators to, in effect, tell us what is in a proposed bill where Judiciary Committee members have had no input.

We could still have meaningful hearings this week and get this bill ready for prompt floor action.

Sincerely,

ARLEN SPECTER.

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--

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC, October 9, 2001.

Hon. ARLEN SPECTER,

711 Hart Senate Office Building, Washington, DC.

DEAR ARLEN, I thank you for your letters of September 26, 2001 and October 3, 2001 and for your participation in the September 25, 2001 hearing regarding anti-terrorism legislation. On October 3, 2001, you wrote that you were concerned about the lack of hearings. I share that concern and have tried to notice prompt hearings on a number of aspects of the legislation proposals at the earliest possible time.

As you know, the Attorney General consented to appear at our September 25, 2001 hearing for only an hour and we had to prevail upon him to stay a few extra minutes so that Senator Feinstein and you could have a brief opportunity to ask the Attorney General a single question. I invited him to rejoin us the following Tuesday to complete the hearing and I continue to extend such invitations, but he has not accepted any of my follow up invitations. In addition, although Members of the Committee submitted questions in writing to the Attorney General following the September 25, 2001 hearing, they have yet to be answered. I agree with you that these are important matters that justify a more thorough record than we have been able to establish.

Last week, Senator Feingold chaired an important hearing on civil liberties concerns before the Constitution Subcommittee. This week Senators Schumer, Feinstein and Durbin each are working to organize hearings on these matters and Senators Kennedy and Biden are working on possible hearings next week.

At the same time, we have continued to work nonstop to prepare for Senate action on legislative proposals. We suffered a setback last week when after weeks of intensive negotiations the White House reneged on agreements reached on Sunday, September 30, 2001, and we had to spend much of last week renegotiating a legislative package. Finally, last Thursday S. 1510 was introduced by the Majority Leader, the Republican Leader, the Chairmen of the Judiciary, Banking and Select Intelligence Committees and by Senators Hatch and Shelby as Ranking Members. I am seeking to work closely with the Senate leadership to be prepared to proceed to that legislation at the earliest opportunity. The House is on a similar track and may well consider its version of legislation later this week, as well.

You and I both know that no legislation can guarantee against future terrorist attacks. Nonetheless, I have expedited work on anti-terrorism legislation, within which the Administration has insisted on including general criminal law measures not limited to terrorism, in order to allow the Senate to act promptly in response to the unprecedented attacks of September 11, 2001.

Sincerely,

Patrick Leahy,

Chairman.

Mr. LEAHY. I understand the distinguished Senator from Wisconsin is willing to have the distinguished Senator from Michigan recognized for 5 minutes. I ask unanimous consent she be allowed to proceed preceding the Senator from Wisconsin.

The PRESIDING OFFICER. Without objection, it is so ordered.

The Senator from Michigan is recognized for 5 minutes.

Ms. STABENOW. I thank our distinguished chairman and my friend from Wisconsin for allowing me to proceed before he presents his amendments.

I rise this evening to congratulate all involved in this effort. As has been said on so many occasions, it is not perfect but we have come together with a very positive, important step forward that we can all celebrate this evening on a bipartisan basis.

As the Senator from Michigan, along with my colleague, Senator Levin, we certainly celebrate the efforts along the northern border and the important authorizations for dollars that allow us to continue to protect and strengthen the efforts at the border. I thank my chairman of the Banking Committee, Senator SARBANES, for his efforts to put into this important bill language dealing with the critical issue of money laundering which essentially allows us to follow the money.

My colleague, Senator Levin, has been extremely involved in helping to lead efforts to lay out the case for this. Senator KERRY and Senator Grassley have been involved in important work. I thank them.

The antiterrorism bill before the Senate takes a significant step forward in cutting the flow of terrorist money. As the President has repeatedly said, stopping the flow of money is key to stopping terrorism. That is what we are doing this evening. In particular, we are establishing important new responsibilities, both for our Government and for our financial institutions. The bill authorizes the Treasury Secretary to take special measures to stop suspected money-laundering activities. This anti-money-laundering language is significant because it requires financial institutions to set up their own due diligence to combat money

laundering, particularly for private and corresponding banking situations. This is a key provision of which I was proud to be a part. I am pleased we were able to come up with language that allows that.

Another important provision I was pleased to offer in the Banking Committee, which is now part of the bill, was clear authority for the Treasury Secretary to issue regulations to crack down on abuses related to concentration accounts. These accounts are administrative accounts used by financial institutions to combine funds from multiple customers, various transactions. They do not require any identification or accountability of who is involved or how much money we are talking about.

The amendment I advocated urges the Treasury Secretary to issue regulations ensuring these concentration accounts identify by client name all of the client funds moving through the account to prevent anonymous movement of the funds that might facilitate money laundering. This is a classic case of why this is so important: Raul Salinas, brother of former Mexican President Carlos Salinas, transferred almost $100 million to Citibank administrative accounts in New York and London without any documentation indicating the ownership of these funds. The wire transfers sent the funds to Citibank and asked each transfer be brought to the attention of a specific private banker. Later, the private banker transferred the funds to private accounts controlled by Mr. Salinas. The origin of this money--$100 million--was never satisfactorily identified.

Allegations of drug money or other corporate sources persist to this day. We know, through Senator Levin's exhaustive documentation at his hearings, that other private banks use this practice as well. Although financial regulators have cautioned against this practice over and over again, they have not yet issued regulations to stop this loophole. That is why the language in this bill is so important.

The use of these anonymous concentration accounts breaks the audit trail associating specific funds with specific clients. Again, the goal, as the President said, is to follow the money. We have to have information if we are going to follow the money.

It should now be abundantly clear to Treasury that they have the authority to stop this practice. I hope it is also abundantly clear it is a serious problem. I am very concerned that the administration act quickly on these anonymous accounts.

I congratulate everyone involved in this effort. I think the effort regarding the anti-money-laundering language is a critical part of making sure we have an effective antiterrorism bill. I thank my colleagues for their work.

The PRESIDING OFFICER. The time of the Senator from Michigan has expired. Who yields time?

The Senator from Wisconsin.

Mr. FEINGOLD. Mr. President, I will give a brief statement before I start my amendments, and I ask unanimous consent the time be equally divided amongst the time I have on each of my four amendments.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. FEINGOLD. Mr. President, 1 month ago, we all were viciously attacked. I am pleased and grateful that both the domestic and international effort to respond to these attacks is fully underway. As we recall, almost as soon as the attacks of September 11 ended, our public discussion turned to two issues: how the United States will respond to these terrorist acts and how we can protect ourselves against future attacks.

Almost immediately, discussion of that second issue raised the question of how our efforts to prevent terrorism will affect the civil liberties enjoyed by all Americans as part of our constitutional birthright.

I was encouraged by many of the reactions that our leaders and Members of this body had, but especially encouraged by the words of our colleague, Senator GEORGE ALLEN of Virginia who represents one of the States struck by

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terrorism. On the day after the attacks he said:

We must make sure that as we learn the facts, we do not allow these attacks to succeed in tempting us in any way to diminish what makes us a great nation. And what makes us a great nation is that this is a country that understands that people have God-given rights and liberties. And we cannot--in our efforts to bring justice--diminish those liberties.

I agree with Senator Allen. I believe that one of the most important duties of this Congress is in responding to the terrible events of September 11, in order to protect our civil liberties, which, of course, derive from our Constitution.

That is why I am pleased that we did not take the Attorney General's advice to enact an anti-terrorism bill immediately without any deliberation or negotiation. I commend Senator LEAHY for all his efforts to improve this bill. It is certainly a better and more comprehensive bill than the one the administration originally proposed. I think even the administration recognizes that.

But I still believe we needed a more deliberative process on this bill, and more careful consideration of the civil liberties implication of it. I held a hearing in the Constitution Subcommittee at which many serious and substantive concerns about the bill were raised by commentators and experts from both sides of the political spectrum.

As the chairman of the subcommittee, I took many of those concerns very seriously. That is why I would not consent on Tuesday night to bringing up this bill and passing it without any amendments being considered. I am pleased that we were able to reach agreement on a process that will allow some of my concerns with this bill to be debated and voted on through the amendment process.

That is not to say that no measures to strengthen law enforcement should be enacted. They should be. We need to do it. We need to do some very serious updating of a number of these laws. This bill does many things to assist the Department of Justice in its mission to catch those who helped the terrorists and prevent future attacks. We can and we will give the FBI new and better tools. But we must also make sure that the new tools don't become instruments of abuse.

There is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country where the police were allowed to search your home at any time for any reason; if we lived in a country where the government was entitled to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country where people could be held in jail indefinitely based on what they write or think, or based on mere suspicion that they were up to no good, the government would probably discover and arrest more terrorists, or would be terrorists, just as it would find more lawbreakers generally. But that would not be a country in which we would want to live, and it would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that country would not be America.

I think it is important to remember that the Constitution was written in 1789 by men who had recently won the Revolutionary War. They did not live in comfortable and easy times of hypothetical enemies. They wrote the Constitution and the Bill of Rights to protect individual liberties in times of war as well as in times of peace.

There have been periods in our nation's history when civil liberties have taken a back seat to what appeared at the time to be the legitimate exigencies of war. Our national consciousness still bears the stain and the scars of those events: The Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans during World War II and the injustices perpetrated against German-Americans and Italian-Americans, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King, Jr., during the Vietnam war. We must not allow this piece of our past to become prologue.

Preserving our freedom is the reason we are now engaged in this new war on terrorism. We will lose that war without a shot being fired if we sacrifice the liberties of the American people in the belief that by doing so we will stop the terrorists.

That is why this exercise of considering the administration's proposed legislation and fine tuning it to minimize the infringement of civil liberties is so necessary and so important. And this is a job that only the Congress can do. We cannot simply rely on the Supreme Court to protect us from laws that sacrifice our freedoms. We took an oath to support and defend the Constitution of the United States. In these difficult times that oath becomes all the more significant.

There are quite a number of things in this bill that I am concerned about, but my amendments focus on a small discreet number of items.

At this point, I would like to turn to one of the amendments.

The PRESIDING OFFICER. The Senator is recognized.

AMENDMENT NO. 1899

Mr. FEINGOLD. I send an amendment to the desk and ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will report.

The assistant legislative clerk read as follows:

The Senator from Wisconsin [Mr. FEINGOLD] proposes an amendment numbered 1899.

Mr. FEINGOLD. I ask unanimous consent the reading of the amendment be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered.

The amendment is as follows:

(Purpose: To make amendments to the provisions relating to interception of computer trespasser communications)

On page 42, line 25, insert ``or other'' after ``contractual''.

On page 43, line 2, strike ``for'' and insert ``permitting''.

On page 43, line 8, insert ``transmitted to, through, or from the protected computer'' after ``computer trespasser''.

On page 43, line 20, insert ``does not last for more than 96 hours and'' after ``such interception''.

Mr. FEINGOLD. I ask this time now be charged to the first amendment.

The PRESIDING OFFICER (Ms. STABENOW). The time will be charged.

Mr. FEINGOLD. Madam President, this amendment simply clarifies the provision in the bill dealing with computer trespass, section 217, so that it more accurately reflects the intent of the provision, as frequently expressed by the administration. Section 217 is designed, we have been told, to permit law enforcement to assist computer owners who are subject to denial of service attacks or other episodes of hacking. As currently drafted, however, this provision could allow universities, libraries, and employers to permit government surveillance of people who are permitted to use the computer facilities of those entities. Such surveillance would take place without a judicial order or probable cause to believe that a crime is being committed. Under the bill, anyone accessing a computer ``without authorization'' is deemed to have no privacy rights whatsoever, with no time limit, for as long as they are accessing the computer at issue. Basically, the way I read this, this provision completely eliminates fourth amendment protection for a potentially very large set of electronic communications.

The danger that this amendment tries to address is that ``accessing a computer without authorization'' could be interpreted to mean a minor transgression of an office or library computer use policy. Let's take an example. A working mom uses an office computer to purchase Christmas presents on the Internet. Company policy prohibits personal use of office computers. This person has potentially accessed a computer without authorization and her company could give permission to law enforcement to review all of the e-mails that she sends or receives at work, monitor all the instant messages she sends, and record every website she visits: No warrant, no probable cause, no fourth amendment rights at all. My amendment makes clear that a computer trespasser is not someone who is permitted to use a computer by the owner or operator of that computer.

This amendment also limits the length of this unreviewed surveillance to 96 hours, which is a longer time frame than that placed on other emergency wiretap authorities. Again, if

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this provision is aimed solely at responding to cyber-attacks, there is no need to continue such

surveillance beyond 96 hours--which is the time we put in our amendment--because that time is sufficient to allow the government to obtain a warrant to continue the surveillance. It is not as if they cannot continue it, they simply have to get a warrant after 4 days. Warrants based on probable cause are still the constitutionally preferred method for conducting surveillance in America. The need for immediate and emergency assistance during a denial of service attack or hacking episode, which I certainly think is a legitimate concern, cannot justify continued surveillance without judicial supervision.

Finally, this amendment prevents law enforcement from abusing this authority in investigations unrelated to the actual computer trespass. The current provision potentially allows law enforcement to intercept wire and electronic communications in many investigations where they may not want, or be able, to secure a court order. If the government suspects a person of committing a crime but does not have probable cause to justify monitoring of the suspect's work computer, it could pressure the owner or operator of the computer to find some transgression in the suspect's computer use, allowing the government carte blanche access to email and internet activity of the suspect. I suspect that few small business owners will be anxious to stand up to federal law enforcement requests for this information.

Now the administration was apparently willing to add language to deal with employees using office computers, but it refused to recognize that in our society many people use computers that they do not own, with permission, but without a contractual relationship. People who don't own their own home computers use computers at libraries. Students use computers at school in computer labs or student centers. Without my amendment, these innocent users could become subject to intrusive government surveillance merely because they disobeyed a rule of the owner of the computer concerning its use. I have been told that this is not the administration's intent, but they would not fix this provision. So I think it is fair to ask why. Why does the administration insist on leaving open the possibility that this provision will be abused to entirely eliminate the privacy of students' and library patrons' computer communications? Is there a hidden agenda here? I sincerely hope not, but I was very disappointed in the administration's unwillingness to address this concern. I remain willing to negotiate on this amendment, but if there is no further movement on it, I hope my colleagues will recognize that this amendment will leave the publicly expressed purpose of the computer trespass provision untouched and fix a potentially disastrous case of overbreadth.

I reserve the remainder of my time.

I ask for the yeas and nays on the amendment.

The PRESIDING OFFICER. Is there a sufficient second?

There is a sufficient second.

The yeas and nays were ordered.

Mr. FEINGOLD. Madam President, how much time do I have remaining on my side?

The PRESIDING OFFICER. Eighteen and one-half minutes on this amendment.

Mr. FEINGOLD. Madam President, I yield 5 minutes to the Senator from Washington.

The PRESIDING OFFICER. The Senator from Washington is recognized.

Ms. CANTWELL. Madam President, I rise to support my colleague, Senator Feingold, and his amendment to section 217. I think the Senator has done a tremendous job in outlining the issues related to this bill and the fact that haste can sometimes make waste. Haste in some instances on very well crafted language to uphold our rights under the Constitution can be infringed upon.

Section 217 is intended to allow computer system owners and operators to fully engage Federal law enforcement where someone hacks or intrudes into their system. As Senator Feingold mentioned, that could be a business owner, or it could be a library system, or it could be a university system.

Unfortunately, as drafted, there are few limits on what communications the Government could intercept without showing probable cause that a crime has been committed and without having the opportunity for judicial review of those intercepts.

The provisions do not even limit the scope of the surveillance. Once authorized, the Government could intercept all communications of a person who is allegedly a trespasser. Again, let me be clear: Without meeting the fourth amendment requirement to show probable cause.

Further, there is no time limit on the surveillance under the provision of this legislation. For those who may be reviewing this legislation for the first time, and understanding that as they go to their workplace, or as they go to their educational institution, or as they go to their library to enhance their education, they could be under surveillance for a very long and indefinite period of time without their knowledge.

Thus, once authorized by a computer system operator, the Government could intercept all communications of a person

forever without a proper search warrant. Even a court order wiretap expires after 30 days.

This amendment would remedy some of the defects in this bill. It would do that by requiring that the surveillance be only of communications associated with the trespass and that the length of the surveillance be limited to 96 hours, which, by the way, is twice as long as the time limit placed on emergency wiretap authority. If the problem continues, investigators could easily obtain additional warrant time for the surveillance to continue.

This is a very important time in our country's history. It is a time in which we want to act in unity and support the administration. It is a time in which we want to act to give law enforcement the tools they need to apprehend those who have been responsible and may be responsible for future acts of terrorism. But we also must preserve the right of citizens of this country when it comes to the fourth amendment.

I encourage my colleagues to support the Feingold amendment. I yield the floor.

The PRESIDING OFFICER. Who yields time?

Mr. FEINGOLD. Madam President, first, I want to say how important it is to have on the committee the Senator with expertise in this area as well as her own background. I appreciate very much her help on this matter.

Madam President, how much time do I have remaining on my side?

The PRESIDING OFFICER. The Senator has 14 1/2 minutes.

Mr. FEINGOLD. I am happy to yield 5 minutes to the Senator from Minnesota.

The PRESIDING OFFICER. The Senator from Minnesota.

Mr. WELLSTONE. Madam President, my colleague from Washington I think speaks within a framework of expertise that she brings to this particular amendment. I speak from the framework of a layperson who has been trying to understand this bill's pluses and minuses.

I say to Senator Feingold and all colleagues, since I think there is kind of a rush to table all of the Feingold amendments, that this amendment is eminently reasonable. The Senator from Wisconsin is saying: Let's put a time limit on this. That is good. Let's have some judicial oversight. That is good as well.

There are international terrorists who have killed many Americans and want to kill more Americans. There are a lot of provisions in this bill which I think are right on the money, including northern border protection which is relevant to the Chair, relevant to the Senator from Washington, and certainly relevant to the people I represent. But I also think there is no reason, in this rush to pass the bill, that we can't make some changes. These are minor changes the Senator wants to make. This just gives this piece of legislation more balance.

I will say this: There is a lot that is good in this bill and a lot that is attractive to me as a Senator. When you add some of the additional security provisions that help all the people we are asked to represent in addition to the benefits--the financial help to all of the rescue workers and all of the innocent people's families, people have been murdered--there is much in this

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bill that is commendable. The Senator from Wisconsin is just trying to give it more balance.

I say to my colleagues that I hope you will support this amendment. I want to say one other thing as well. I really believe what is good about this bill is the provisions that focus on the people whom the terrorists are basically trying to kill--Americans. What is not as good is when the reach of the bill goes too far beyond that and is too broad.

The sunset provision that passed in the House is so important, so that we can continue to monitor this legislation as we move forward.

I think this amendment that the Senator from Wisconsin has submitted is a step to give this piece of legislation a little more balance, and it will be more vigilant of people's civil liberties. I think it is the right step.

I thank the Senator for his amendment.

Mr. FEINGOLD. I thank the Senator from Minnesota for his help, especially for making this point: All this amendment is about is making sure that it is about the problem we face with the terrorism that is threatening our country and our freedoms. That is all we are trying to do--make sure it doesn't go broadly into people's rights, and into their privacy, and into their own lives.

At this point, I am simply going to reserve the remainder of my time.

The PRESIDING OFFICER. Who yields time?

Mr. HATCH. Madam President, let me talk a little bit about the provision of today's legislation that has been referred to as the ``computer trespasser'' exception.

This provision is a perfect example of how our laws dealing with electronic surveillance have become outdated, and nonsensical as applied to modern technology.

Imagine the following scenario. A terrorist decides to wreak havoc in a major U.S. city by shutting down an electrical power grid. He uses a computer to hack into the mainframe computer of a regional utility company, which he plans to use to bring down the power grid. Before the terrorist can accomplish his goal, the utility company recognizes that an intruder is attempting to access their computer. The company quickly calls the FBI for assistance in repelling the intruder.

Guess what? Under current law, even with the permission from the utility company, the FBI is not permitted to monitor the terrorist's activity on the utility company's computer, because current law perversely grants the terrorist privacy rights with respect to his communications on the computer he has invaded.

It is as if police could not investigate a burglary, even when invited into the house by the victim of the burglary, because the burglar had established privacy rights inside the home he has invaded.

It is anomalies such as this, in our current laws regarding electronic surveillance, that today's legislation is designed to fix.

As it stands, the computer trespasser provision is defined in such a way that the owner or operator of a computer network cannot arbitrarily declare the user of the network at trespasser, and then invite law enforcement in to monitor that user's communications.

The provision, as written, provides that a person is not considered a computer trespasser if the person has an ``existing contractual'' relationship for access to all or part of the computer network.

Senator FEINGOLD's amendment would broadly amend the negotiated exception, including within its scope anyone with a contractual or ``other'' relationship to the owner or operator of a computer network. What is meant by ``other'' relationship? Any hacker could make the argument that they have a relationship with a computer operator. Indeed, were I a defense counsel, I would argue that the mere fact that the hacker has accessed the computer has created some form of relationship. Clearly, the proposed amendment would broadly and unwisely give immunity from our cyber-crime laws. This amendment creates an exception to the criminal laws and puts law enforcement back in the same position they currently are--that is, powerless to investigate hacking incidents where the owner of the computer network wants the assistance of law enforcement.

Madam President, we should not tie the hands of our law enforcement to assist the owners of our computer networks. We should not help hackers and cyberterrorists to get away.

If you are a victim of a burglary, shouldn't you have the right to ask the police to investigate your house, to come to your house and investigate?

Why should the owners of the computer not have the right to ask the police to investigate a commuter-hacking incident, especially where it appears it is terrorist oriented?

This act applies, as written, only to people without authorization to be on the computer. Why should the law protect people who have invaded a computer they have no right to be on?

Let me say one last comment about this. The proponents of this amendment argue it will apply to students using a university computer. That is true, but only if such students use that university computer to hack into a place where they do not belong.

Either we have to get serious in this modern society, with these modern computers, about terrorism or we have to ignore it. I, for one, am not for ignoring it. I believe we need to have this language in here--so does the Justice Department; so does the White House and the White House Counsel's Office--in order to do what cannot be done today to protect people in our society, and to protect our powerplants, our dams, and so many important facilities in our society that are vulnerable to cyber-terrorists. This law, the way it is currently written, will help to do that.

That is all I care to say about it. But I believe we should vote down the Senator's amendment. I know it is well intentioned. I have great respect for the Senator from Wisconsin. He is one of the very diligent members of our committee, and I appreciate him very much, but on this amendment I believe we have to keep the language of the bill the way it is written in order to give our law enforcement people the tools to be able to stop terrorist hacking into computers.

The PRESIDING OFFICER. The Senator from Wisconsin.

Mr. FEINGOLD. I thank my friend for his kind words.

Madam President, in response to the points he made, first, let me respond that I accept the premise of this basic provision in terms of updating the ability to get at computer hackers. That is an update. We did not know what this was a few years ago. We did not know what risks it posed. Nobody opposes that very important part of this bill.

But what the Senator claims is that the phrase ``contractual relationship'' somehow makes sure that people are protected from being subject to this who really should not be subject to this; but it does it.

I can think of at least three categories of people who do not come within the category of ``contractual relationship.'' One is in the context employment. It is nice if you have a contract, but a lot of employees do not. They do not fall within the protection of a contractual relationship.

The same goes for people who would go and use a computer at a library. They do not have a contractual relationship to protect them in this situation.

And finally, as the Senator conceded here, in his last example, that certainly students, students at all our universities across the country, are not protected by that language. And that is all we want to do, to make it clear that this amendment is related to the problem of computer hackers, not moms who might be buying Christmas presents on a computer at work, even though they are not supposed to, or students who maybe are gambling on a university computer. Of course they should not do that, but should that subject them to extraordinary, unprecedented intrusion by Government law enforcement authority? Of course not.

The Senator attempts to suggest that the provision in here having to do with our desire to have the language say ``contractual'' or ``other'' relationship would somehow allow a hacker to claim that he is protected. The notion that a hacker would be considered as somebody who has a relationship with the company under this amendment is an absurd interpretation of the amendment's intent, so that clearly is not what this amendment would do.

And finally, let me get back to the students, the example the Senator

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from Utah mentioned. It is simply an unprecedented intrusion into individual rights for a university to be able to allow--because of a minor use that is not within university rules--that person to be completely subject to this kind of intrusion.

Mr. DURBIN. Will the Senator yield for a question?

Mr. FEINGOLD. Yes.

Mr. DURBIN. I have followed this debate closely. I commend the Senator for the hearing he had on the constitutional rights part of this debate. But I want to make sure I understand exactly what his amendment sets out to do.

Is my understanding correct that under the Feingold amendment there could be surveillance of a computer for 96 hours before there is any court approval, so that in the example given by the Senator from Utah, the law enforcement authorities could, in fact, monitor the communications of someone using this computer for 96 hours before ever going to a court and asking for a warrant for that search?

Mr. FEINGOLD. That is correct. And that even troubles me for the length of time that it is allowed--but it is far better than an infinite position. Law Enforcement should be required to seek a warrant as soon as possible, within reason, given the fact that what the amendment tries to get at is emergency situations involving hackers. As soon as possible, they should have to meet the standards that are normally met.

But, yes, the amendment does permit that, in my view, rather extraordinary period of time before the requirement would have to be made.

Mr. DURBIN. And that period of time, I ask the Senator from Wisconsin, is roughly twice the amount currently given under emergency wiretap authority; is that correct?

Mr. FEINGOLD. That is correct.

Mr. DURBIN. One last question. I want to try to understand. I ask the Senator do you not say, in your amendment, that a trespasser does not include someone who is permitted to use a computer by the owner or operator of the computer?

Mr. FEINGOLD. Correct.

Mr. DURBIN. And the difference, of course, is whether it is a contractual relationship or just a permission to use; you are including permission to use as well as contractual relationship?

Mr. FEINGOLD. That is correct.

Mr. DURBIN. The examples you have given are of people going to a library, who may not have a contractual relationship with the library but use the computer, who would be subjected to this warrantless search of their computer communications for an indefinite period of time.

Mr. FEINGOLD. That is right, exactly. This is exactly the problem. All we asked of the committee and of the administration yesterday was to make it clear that they did not want to reach these people. That is what we have been told. The purpose of this is to get at the threat of computer hackers.

The Senator from Illinois has just illustrated, with those examples--and he is, of course, correct--that this could be interpreted and could be understood to include situations that not only have nothing to do with the problem but represent a very serious departure from the individual rights people should have in our country.

Mr. DURBIN. I thank the Senator from Wisconsin.

Mr. FEINGOLD. I thank the Senator from Illinois and reserve the remainder of my time.

Mr. LEAHY. Madam President, I have been concerned about the scope of the amendment carving an exception to the wiretap statute for so-called ``computer trespassers.'' This covers anyone who accesses a computer ``without authorization'' and could allow government eavesdropping, without a court order or other safeguards in the wiretap statute, or Internet users who violate workplace computer use rules or online service rules.

I was unable to reach agreement with the administration on limiting the scope of this amendment, and the Feingold amendment makes further refinements. It is unfortunate that the administration did not accept this amendment.

The PRESIDING OFFICER. Who yields time?

Mr. HATCH. Madam President, how much time remains?

The PRESIDING OFFICER. The Senator from Wisconsin has 4 minutes 47 seconds; the managers have 9 minutes 14 seconds.

Mr. HATCH. I am prepared to yield back whatever time we have, if it is all right with the distinguished Senator from Vermont, with the understanding that we are just trying to stop unauthorized hacking that could be done by terrorists and others who are criminals that currently cannot be stopped. I am prepared to yield back the time, if the distinguished Senator from Vermont is.

The PRESIDING OFFICER. The Senator from Pennsylvania.

Mr. SPECTER. Madam President, I ask the chairman of the committee, after listening to the presentation by the Senator from Wisconsin, what is the chairman's view of the incursion on law enforcement by the limitation of 96 hours?

Mr. LEAHY. The incursion of law enforcement by the 96 hours?

Mr. SPECTER. The principal thrust of what the Senator from Wisconsin seeks to do is to broaden the definition of a contractual relationship to someone who may otherwise have permission. What I am trying to do is to understand the administration's position, the law enforcement position as to how law enforcement is adversely impacted by what the Senator from Wisconsin seeks to do.

My concern, as expressed earlier, is that, especially in the face of the challenge by the amendment, this is a complicated bill.

The reality is, it is hard to know all of it without the normal hearing process. Now we have a specific challenge. What I would like to know is, how does it inhibit law enforcement? What about the broader definition gives problems to law enforcement? And then, what is the difficulty in having 96 hours, which is 4 days, to see what is going on to find some basis for seeking a warrant with probable cause?

Mr. LEAHY. Frankly, I don't have a problem with the Feingold amendment as it is written. I do have a problem, however, with keeping a bill together. The initial administration request had no limitations whatsoever. It was so wide open we were concerned that someone who might be using a computer at work to add up their accounts for the month would be trapped by this because the company said you couldn't use the

computer to add up your checking account, for example, to use a farfetched example, because they would be accessing the computer without authorization and the Government could just step in and go forward.

The administration moved partly our way. We actually ended up with a compromise on this. I suspect what they would say to the Senator from Pennsylvania is that these attacks last more than 96 hours and that they would be unable to go after them if they were limited to the 96 hours.

We saw this recently 2 or 3 weeks ago where we had a continuous roving attack on a number of Government computers. As I recall--I didn't pay that much attention at the time--they were attacking them one week and when we came back the following week, they were still attacking them. So you had more than 96 hours.

Frankly, it is a case where we have reached a compromise. The distinguished ranking member, speaking on behalf of the administration, said this is not acceptable to them. Had this been part of the original package, I wouldn't have found it acceptable.

Mr. HATCH. Will the Senator yield?

Mr. SPECTER. Yes.

Mr. HATCH. Basically, what the administration is after here is that if a burglar is coming into your home and the police come to investigate, they don't have to report to a judge within 96 hours. The police have to act on these terrorist matters. If they find that a terrorist has infiltrated a computer controlling an electrical grid system, they want to get right on the ball and do something about it. That is what they are trying to do with this provision.

There are no fourth amendment rights implicated because you have people who have hacked into a computer that they don't have any right to be in.

We want to give law enforcement the power to stop that. This provision upsets that power and basically puts us back where we are when we can't do

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anything in a modern digital age to stop terrorists from stopping power grids and damaging dams and a whole raft of other things.

Mr. SPECTER. Madam President, if the Senator from Utah will yield for a question?

Mr. HATCH. Surely.

Mr. SPECTER. The Senator from Wisconsin makes the point that people may have standing to use a computer even without a contractual relationship. He uses the example of a student. Does the Senator from Utah believe or does the administration represent that there are no relationships other than contractual which give a person the legitimate standing to use the computer?

Mr. HATCH. Under this provision, you do not have a right to hack into another private computer, whether you are a university student or anybody else. It only applies, the law we have written, to unauthorized access. It does not apply to authorized access. But unauthorized access, yes, it applies to that. If we don't put it in there, we will be leaving a glaring error that currently exists in our laws that prohibit us from solving some of these problems. It would be a terrible thing to not correct at this particular time, knowing what we know about how these terrorists are operating right now.

Mr. SPECTER. So is the Senator from Utah saying that if you have permission, that is a form of a contractual relationship?

Mr. HATCH. I am saying that if you have permission, you are not covered by this provision as written. In other words, you would not be considered a hacker.

Mr. SPECTER. On its face you would seem to, unless there is a contractual relationship?

Mr. HATCH. It comes down to authorized or unauthorized access. If it is authorized, it is not covered under the computer trespasser provision.

Mr. SPECTER. I thank the Senator.

The PRESIDING OFFICER. The Senator from Wisconsin.

Mr. FEINGOLD. Madam President, did the Senator yield back his remaining time?

Mr. HATCH. Yes, we are prepared to yield.

Mr. LEAHY. We are prepared if the Senator from Wisconsin is.

Mr. FEINGOLD. I want to clarify a couple points, then I will be prepared to yield the remaining time.

These were helpful exchanges on a couple of points. First of all, it became very clear from Senator Specter's excellent questioning that, of course, there is no guarantee, under the way this language is set up, under the words ``contractual relationship,'' that the provision would not apply to students or to people who would use a computer at a library. I can't understand why, if that is the intent of the administration, the intent of the legislation, why they don't just agree to language that would say so. That is all we asked for yesterday. It could have resolved the problem. For some reason, they won't agree to it.

Second, is this notion that a hacker could somehow get in under our language. There is no way that a hacker has a relationship with the computer owner that permits the use of the computer. The hacker is, obviously, the antithesis, the opposite of an individual with a relationship that permits use of the computer.

Finally, I am amazed at this notion that this amendment, even under our version of it, would allow only 96 hours for surveillance when under the example of the Senator from Utah, an ongoing hacker attack is occurring.

Is it the Senator's contention that at the end of 96 hours, the FBI would not have probable cause to get a warrant, when all it has been dealing with for 4 days is this hacking of the computer? Of course, it would. It would be the easiest thing in the world.

Section 217 is a very dramatic exception to the usual rule as derived under our system, and expressed in the fourth amendment. Normally, you have to come up with probable cause and a warrant. There are exceptions because we have difficult problems sometimes. But 96 hours? At the end of that time, with clear evidence of a hacking attempt, a warrant could easily be obtained. Obviously, our amendment takes care of the need for emergency authorization. In fact, I think it is too generous. I am trying to put some kind of a time limit on this so we can have some semblance of the normal rules that protect our citizens.

If the other side yields their time, I will yield my remaining time as well.

The PRESIDING OFFICER. The majority leader is recognized.

Mr. DASCHLE. Madam President, I have listened to this debate with great interest, and I appreciate very much the arguments made by the Senator from Wisconsin. As the Senator from Vermont and, I believe, the Senator from Pennsylvania, have noted, there are circumstances where I can easily see that we could be sympathetic to his amendment. He makes an argument.

My difficulty tonight is not substantive as much as it is procedural. There is no question, all 100 of us could go through this bill with a fine-tooth comb and pinpoint those things which we could improve. There is no doubt about that. I have looked at this bill, and there are a lot of things, were I to write it alone, upon which I could improve. I know the chairman of the committee believes that too.

I think we also have to recognize that this is the product of a lot of work in concert with our Republican colleagues, in concert with the administration, in concert with civil liberties groups, and in concert with law enforcement. We have come up with what I would view as a delicate but, yes, successful compromise.

Now, if we had opened the bill to amendment, I have no doubt there are many colleagues who would offer amendments with which I would vehemently disagree--in fact, so much so that I might want to filibuster the bill. I would probably lose. I think there is a realistic expectation that on a lot of these issues, my side would lose. I think you could make the same case for the other side. So, we made the best judgment we could, taking into account the very delicate balance between civil liberties and law enforcement that we had to achieve in bringing a bill of this complexity to the floor.

I have to say, I think our chair and ranking member and all

of those involved did a terrific job under the most difficult of circumstances. What we did was to say: Let's take this product and work with it; let's review it; if we have to make some changes, let's consider them; but let's recognize that if we were to take this bill open-ended, there would be no end to the amendments--that is the result that would most likely occur in such a circumstance.

While I may be sympathetic to some amendments offered tonight, had it been an open debate, there would have been a lot of amendments for which I would not have been sympathetic.

Given those circumstances, my argument is not substantive, it is procedural. We have a job to do. The clock is ticking. The work needs to get done. We have to make our best judgment about what is possible, and that process goes on.

I hope my colleagues will join me tonight in tabling this amendment and tabling every other amendment that is offered, should he choose to offer them tonight. Let's move on and finish this bill. Let's work with the House and come up with the best product between the Houses. Then, let's let law enforcement do its job, and let's use our power of oversight to ensure that civil liberties are protected.

I make a motion to table.

Mr. LEAHY. Will the Senator withhold that motion to table for a moment?

Mr. DASCHLE. Yes.

Mr. LEAHY. Madam President, I have served with over 250 Senators here, and I have been proud to serve with all of them. I know of no Senator who has a stronger commitment to our individual rights and personal liberties than the senior Senator from South Dakota, our majority leader. But I also know that were it not for his commitment and efforts, we would not be here with a far better bill than the one originally proposed by the administration. It has been because of his willingness to back us up as we try to improve that bill, to remove unconstitutional aspects of it, because of his willingness, we were able to get here.

As the Senator from South Dakota, the dearest friend I have in this body, has said, he could find parts he would do differently, and he knows there are parts I would do differently--even on this one. I have high regard for the

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Senator from Wisconsin, and I would have loved to have had his amendment. Actually, I would have done it probably differently than that. But we had a whole lot of places where we won and some where we lost.

I can tell you right now, if we start unraveling this bill, we are going to lose all the parts we won and we will be back to a proposal that was blatantly unconstitutional in many parts. So I join, with no reluctance whatsoever, in the leader's motion.

Mr. DASCHLE. Madam President, I move to table.

The PRESIDING OFFICER. The Senator from Wisconsin.

Mr. FEINGOLD. Madam President, on this bill there was not a single moment of markup or vote in the Judiciary Committee. I accepted that because of the crisis our Nation faces. This is the first substantive amendment in the Senate on this entire issue, one of the most important civil liberties bills of our time, and the majority leader has asked Senators to not vote on the merits of the issue. I understand the difficult task he has, but I must object to the idea that not one single amendment on this issue will be voted on the merits on the floor of the Senate.

What have we come to when we don't have either committee or Senate deliberation on amendments on an issue of this importance?

I yield the floor, and I yield back the remainder of my time.

The PRESIDING OFFICER. All time is yielded back.

Mr. DASCHLE. Madam President, I move to table the amendment.

Mr. LEAHY. I ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second?

There is a sufficient second.

The question is on agreeing to the motion.

The clerk will call the roll.

The legislative clerk called the roll.

Mr. NICKLES. I announce that the Senator from North Carolina (Mr. HELMS), the Senator from New Mexico (Mr. DOMENICI), the Senator from South Carolina (Mr. THURMOND), and the Senator from Mississippi (Mr. LOTT) are necessary absent.

I further announce that if present and voting the Senator from North Carolina (Mr. HELMS) would vote ``yea.''

The PRESIDING OFFICER. Are there any other Senators in the Chamber desiring to vote?

The result was announced--yeas 83, nays 13, as follows:

[Rollcall Vote No. 299 Leg.]

YEAS--83

Akaka

Allard

Allen

Baucus

Bayh

Bennett

Biden

Bond

Breaux

Brownback

Bunning

Burns

Byrd

Campbell

Carnahan

Carper

Chafee

Cleland

Clinton

Cochran

Conrad

Craig

Crapo

Daschle

DeWine

Dodd

Dorgan

Edwards

Ensign

Enzi

Feinstein

Fitzgerald

Frist

Graham

Gramm

Grassley

Gregg

Hagel

Hatch

Hollings

Hutchinson

Hutchison

Inhofe

Inouye

Jeffords

Johnson

Kennedy

Kerry

Kohl

Kyl

Landrieu

Leahy

Lieberman

Lincoln

Lugar

McCain

McConnell

Mikulski

Miller

Murkowski

Murray

Nelson (FL)

Nelson (NE)

Nickles

Reed

Reid

Roberts

Rockefeller

Santorum

Sarbanes

Schumer

Sessions

Shelby

Smith (NH)

Smith (OR)

Snowe

Stevens

Thomas

Thompson

Torricelli

Voinovich

Warner

Wyden

NAYS--13

Bingaman

Boxer

Cantwell

Collins

Corzine

Dayton

Durbin

Feingold

Harkin

Levin

Specter

Stabenow

Wellstone

NOT VOTING--4

Domenici

Helms

Lott

Thurmond

The motion was agreed to.

Mr. LEAHY. I move to reconsider the vote.

Mr. DASCHLE. I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. LEAHY. Madam President, so we understand where we are, there is still a fair amount of time on the bill that the Senator from Utah and I have and we have committed to Senators on both sides of the aisle who need time. The remaining time is for the Senator from Wisconsin who has three more amendments with the same time as he had in the last amendment.

The Senator from Massachusetts has asked for 5 minutes. I understand we have three more amendments that would take probably an hour or so per amendment with the vote if the Senator from Wisconsin wishes to use all his time, and he has a right to do that.

Once those are disposed of, the Senator from Utah and I are probably prepared to yield back our time.

I yield 5 minutes to the Senator from Massachusetts.

Mr. KERRY. Madam President, it was depending entirely on what the Senator from Wisconsin was doing. I reserve that now and see where we are heading.

Mr. LEAHY. I yield the floor.

Mr. FEINGOLD. Madam President, it is my intention to offer two more amendments, not the third amendment. I believe the time for each of these amendments could be less than the full time allotted. We have a fair amount of interest, but I didn't expect as much debate. I think the last two could be expedited, and I am prepared to proceed, if that is what my colleagues desire.

AMENDMENT NO. 1900

I send an amendment to the desk and ask for its immediate consideration.

The PRESIDING OFFICER. The clerk will report.

The legislative clerk read as follows:

The Senator from Wisconsin [Mr. FEINGOLD] proposes an amendment numbered 1900.

Mr. FEINGOLD. I ask unanimous consent reading of the amendment be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered.

The amendment is as follows:

On page 21, line 14, insert ``except that, in such circumstances, the order shall direct that the surveillance shall be conducted only when the target's presence at the place where, or use of the facility at which, the electronic surveillance is to be directed has been ascertained by the person implementing the order and that the electronic surveillance must be directed only at the communication of the target,'' after ``such other persons''.

Mr. KERRY. For the purpose of planning, could the Senator give us a sense of both amendments and how long he thinks he will talk.

Mr. FEINGOLD. I have about 12 minutes on this amendment subject to any response to that and approximately the same on the second amendment.

Mr. KERRY. I thank the Chair.

Mr. FEINGOLD. Madam President, this amendment has to do with what is called roving wiretap, or multipoint surveillance authority. This is one of the first things Attorney General Ashcroft asked for in the first days after the September 11 attack and gave the example of a terrorist using throwaway cell phones and the need for continued roaming wiretap authority to allow the FBI to keep up with the ready availability of this new technology.

First, let me say I have a lot of sympathy for the idea of updating this area of the law. Obviously, it is needed in light of changes in technology. It is vitally important for Members of the Senate to understand that roving wiretap authority is already available for criminal investigations under title III. It is in title 18, section 2518(11) and (12). The Attorney General doesn't need nor has he asked for any new roving wiretap authority for criminal investigations. He already has it.

What the bill does in Section 206 is provide similar authority in investigations under the Foreign Intelligence Surveillance Act, known as FISA. I am not opposed to expanding existing roving wiretap authority to include FISA investigations, but I am very concerned that Section 206 does not include a key safeguard that was part of the roving wiretap authority when it was added to title III in 1986. That protection minimizes the possible misuse of the authority, whether intentional or unintentional, to eavesdrop on the conversations of individuals who are not the subject of the investigation.

Let me read from the Senate Judiciary Committee's report on the legislation that granted roving wiretap authority:

Proposed subsection 2518(12) of title 18 provides, with respect to both ``wire'' and ``oral'' communications, that where the federal government has been successful in obtaining a relaxed specificity order, it cannot begin the interception until the facilities or place from which the communication is to be intercepted is ascertained by the person implementing the interception order.

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In other words, the actual interception could not begin until the suspect begins or evidences an intention to begin a conversation.

It further reads:

It would be improper to use this expanded specificity order to tap a series of telephones, intercept all conversations over such phones and then minimize the conversations collected as a result. This provision puts the burden on the investigation agency to ascertain when the interception is to take place.

It seems to me that Congress struck the right balance in that provision. It recognized the needs of law enforcement, but also recognized that rights of innocent people were implicated and designed a safeguard to protect them.

When Congress passed FISA in 1978 it granted to the executive branch the power to conduct surveillance in certain types of investigations without meeting the rigorous probable cause standard under the Fourth Amendment that is required for criminal investigations. Investigations of agents of foreign powers were different. There is a lower threshold for obtaining an order from the FISA court. But I don't think that roving wiretap authority under FISA should be less protective of the constitutional rights of innocent people who are not the subject of the investigation than the authority that Congress intended to grant in a standard criminal investigation.

My amendment takes the safeguard from Title III--from current law--and includes it in the FISA roving wiretap authority provision. The amendment simply provides that before conducting surveillance, the person implementing the order must ascertain that the target of the surveillance is actually in the house that has been bugged, or using the phone that has been tapped.

Let me give a few examples of how this would work, which should also show why it is necessary. Indeed, it may be constitutionally required. If the government receives information that the target of the FISA investigation is making phone calls from a particular bank of pay phones in a train station, it may set up wiretaps at all the phones in that bank, but may only listen in on a particular phone that the subject is using. Before beginning the actual surveillance it must know that the suspect is using a particular phone. Otherwise, on the basis of a report that a terrorist has been using a particular bank of pay phones, the private conversations of innumerable innocent Americans with absolutely no connection to the investigation would be subject to government scrutiny. That violates their Fourth Amendment rights. Similarly, the Government should not be able to conduct surveillance on all payphones in a neighborhood frequented by a suspected terrorist or on a particular payphone all day long while innocent people use it.

Another example. Suppose a target of a FISA investigation has the practice of using a neighbor's or relative's phone. Under my amendment, the Government would not be able to listen in on all calls from that phone, but only those taking place when the target is in that person's home. Likewise, if the government believes that the target uses computers in a library, it can only monitor the one that the terrorist is actually using, not all the computers in that facility even when the terrorist is not there.

I don't believe this amendment should affect the Government's authorization to monitor a new cell phone obtained by the target. If the phone is in the possession of the target or is registered to the target, then the person implementing the surveillance has ascertained that the facility is being used by the target. They could do it, and I support that.

Now, it has been pointed out to me that in 1999 this safeguard was removed from Title III with respect to wiretaps but left in place with respect to bugs. The change was made in the conference report of an intelligence authorization bill, without consideration by the Senate Judiciary Committee.

I remind my colleagues again that my amendment was part of the roving wiretap authority that Congress granted federal law enforcement in criminal investigations in 1986. It contains a standard that as far as we know served law enforcement adequately in conducting effective surveillance on very sophisticated criminal organizations, including the mafia and drug importation and distribution organizations. I submit that if this standard is not sufficient, we would have seen an open effort to change it, but we didn't. Even after the change made in 1999 without discussion or debate, the standard remains in effect for bugs placed in homes or businesses. Without this protection, Section 206 threatens the rights of innocent people.

If law enforcement has been significantly impaired in conducting effective surveillance in criminal investigations under the roving wiretap provision in current law, we should be shown specific evidence of its shortcomings. But if it has not been impaired, then there is no reason not to include a similar safeguard in the roving wiretap authority under FISA.

I urge my colleagues to take a close look at this amendment. It is reasonable, it appropriately reflects current law, but it also allows for updating to face the reality of new technology and all the technologies that are implicated here. And it protects the constitutional rights of people who are not the subjects of an investigation.

Mr. WELLSTONE. Will the Senator yield for a question?

Mr. FEINGOLD. Yes.

Mr. WELLSTONE. Again, I am not a lawyer. I do not think I understood exactly all the argument you were making.

Are you saying there has to be some standard of proof? That before conducting surveillance, law enforcement has to make sure? In other words, before you actually wiretap a phone or bug a house or a home, the target of the surveillance has to be in that home you are bugging?

Mr. FEINGOLD. No. Let's say somebody goes to their neighbor's house to use their phone. They do that once or twice or whatever it might be. Our amendment makes sure this new provision doesn't open up that house and everybody in it and every phone call they have in the house to unlimited Government surveillance. It requires what has been normally required under the law, that the law enforcement people ascertain that the person is in the house at the time so it is credible that they would be using that phone again.

Mr. WELLSTONE. In other words, other people who are in the house who have nothing to do with the target of surveillance, their conversations could be--

Mr. FEINGOLD. Their conversations could and undoubtedly would be, without some protection.

Mr. WELLSTONE. And the same thing for the bugging?

Mr. FEINGOLD. Exactly.

Mr. WELLSTONE. So you are trying to minimize the misuse of authority. It might be unintentional?

Mr. FEINGOLD. Absolutely. There are standards, as I indicated in my statement. There have been rules about how law enforcement has to ascertain, whether it be at a phone bank or in somebody else's home, that there is a reasonable belief that the individual is actually there. Without that kind of rule, what we are doing is not just extending this authority to the reality that people have cell phones and move around and use different phones of their own, but it takes us into an area that, frankly, prior to September 11 we would never have dreamed of allowing.

Mr. WELLSTONE. Madam President, if I could take 2 minutes --I ask the Senator from Wisconsin, might I have 2 minutes?

Mr. FEINGOLD. Yes. Madam President, I ask for the yeas and nays on the amendment.

The PRESIDING OFFICER. Is there a sufficient second? There appears to be.

The yeas and nays were ordered.

Mr. FEINGOLD. I yield 2 minutes.

Mr. WELLSTONE. My colleague is saying we have to be very careful about not eavesdropping on the conversations of innocent individuals.

Again, we all are painfully aware of September 11. I personally think there is much in this bill that is good, that we need to do. But I think all the Senator from Wisconsin is trying to do is achieve some balance and make sure we do not go above and beyond going after terrorists who are trying to kill Americans and instead end up eavesdropping on innocent people in our country.

I think the vast majority of the people in the country, if they understood what this amendment was about, would support this amendment. I do not think passing this amendment does

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any damage whatsoever to much of what is in this bill, which is so important.

So, again, I hope Senators will support this amendment on the merits. I think it is a very important amendment. I thank the Senator from Wisconsin.

Mr. FEINGOLD. I thank the Senator from Minnesota very much for his help, and I reserve the remainder of my time.

The PRESIDING OFFICER. Who yields time? The Senator from Utah.

Mr. HATCH. Madam President, under current law, law enforcement has so-called-roving or multi-point surveillance authority for criminal investigations under title III, but FISA does not have comparable provisions for agents investigating foreign intelligence. Roving interceptions are tied to a named person rather than to any particular communications facility or place. Today's bill adds this vital authority to FISA.

This authority is critical for tracking suspected spies and terrorists who are experts in counter-surveillance methods such as frequently changing locations and communications devices such as phones and computer accounts.

It simply makes no sense that our wire-tapping statute recognizes this problem, and provides roving wiretap authority for surveillance of common criminals, but makes no provision for roving authority to monitor terrorists under the FISA statute.

The proposed amendment would not succeed in its stated goal of harmonizing the standard between title III wiretaps and FISA wiretaps. The proposed amendment would put a requirement on the interception of wire or electronic communications under a FISA warrant that does not exist in the title III context--a requirement that the law enforcement officer implementing the wiretapping order personally ascertain that the target of the order is using a telephone or computer, before the monitoring could begin.

This requirement is operationally unworkable. The way that roving orders are implemented, requires that law enforcement officers have the ability to spot check several different telephones in order to determine which one is being used by the target of the order. The language proposed in this amendment does not give law enforcement officers the ability to do so. In fact, they would be worse off under this proposal than they are under current law.

The goal of the roving wiretap provision is to give counter-terrorism investigators as much authority to conduct wiretaps as their counterparts have in conducting criminal investigations. This amendment defeats that goal by putting new, significant obstacles in the path of investigators attempting to investigate and prevent terrorist activities.

Mr. LEAHY. Madam President, Senator Feingold provided invaluable assistance to the committee during our consideration of this legislation. He also held a hearing in his Constitution Subcommittee last week on the critical civil liberties issues raised by the Administration's anti-terrorism bill. I fully appreciate the depth of his concern and his desire to improve this bill.

The Attorney General and I agreed in principal that the roving, or multipoint, wiretap authority for criminal cases should be available under FISA for foreign intelligence cases. The need for such authority is especially acute to conduct surveillance of foreign spies trained in the art of avoiding surveillance and detection.

Senator Feingold's amendment simply assures that when roving surveillance is conducted, the Government makes efforts to ascertain that the target is actually at the place or using the phone, being tapped. This is required in the criminal context. It is unfortunate that the Administration did not accept this amendment.

I hope all time could be yielded back on both sides.

Mr. FEINGOLD. It is my understanding the opponents have yielded all time.

The PRESIDING OFFICER. The Senator is correct.

Mr. LEAHY. If the Senator is going to yield his.

Mr. FEINGOLD. I yield my time.

The PRESIDING OFFICER. The majority leader.

Mr. DASCHLE. Madam President, I will just use a minute of my leader time to respond.

I have already made my argument on the first amendment. I, in the interest of time, am not going to repeat it. As I said before, I am sympathetic to many of these ideas, but I am much more sympathetic to arriving at a product that will bring us to a point where we can pass something into law. The record reflects the compromises that have been put in place, the very delicate balance that we have achieved. It is too late to open up the amendment process in a way that might destroy that delicate balance. For that reason, I move to table this amendment.

I ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.

The question is on agreeing to the motion. The clerk will call the roll.

The assistant legislative clerk called the roll.

Mr. NICKLES. I announce that the Senator from North Carolina (Mr. HELMS), the Senator from South Carolina (Mr. THURMOND), and the Senator from New Mexico (Mr. DOMENICI) are necessarily absent.

I further announce that if present and voting the Senator from North Carolina (Mr. HELMS) would vote ``yea.''

The result was announced--yeas 90, nays 7, as follows:

[Rollcall Vote No. 300 Leg.]

YEAS--90

Akaka

Allard

Allen

Baucus

Bayh

Bennett

Biden

Bingaman

Bond

Boxer

Breaux

Brownback

Bunning

Burns

Byrd

Campbell

Carnahan

Carper

Chafee

Cleland

Clinton

Cochran

Collins

Conrad

Craig

Crapo

Daschle

Dayton

DeWine

Dodd

Dorgan

Durbin

Edwards

Ensign

Enzi

Feinstein

Fitzgerald

Frist

Graham

Gramm

Grassley

Gregg

Hagel

Harkin

Hatch

Hollings

Hutchinson

Hutchison

Inhofe

Inouye

Jeffords

Johnson

Kennedy

Kerry

Kohl

Kyl

Landrieu

Leahy

Lieberman

Lincoln

Lott

Lugar

McCain

McConnell

Mikulski

Miller

Murkowski

Murray

Nelson (FL)

Nelson (NE)

Nickles

Reed

Reid

Roberts

Rockefeller

Santorum

Sarbanes

Schumer

Sessions

Shelby

Smith (NH)

Smith (OR)

Snowe

Stabenow

Stevens

Thomas

Torricelli

Voinovich

Warner

Wyden

NAYS--7

Cantwell

Corzine

Feingold

Levin

Specter

Thompson

Wellstone

NOT VOTING--3

Domenici

Helms

Thurmond

The motion was agreed to.

Mr. LEAHY. I move to reconsider the vote.

Mr. HATCH. I move to lay that motion on the table.

The motion to lay on the table was agreed to.

The PRESIDING OFFICER. The Senator from Vermont.

Mr. LEAHY. Madam President, I ask unanimous consent to have printed in the RECORD a Statement of Administration Policy on the USA Act.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Statement of Administration Policy

(This statement has been coordinated by OMB with the concerned agencies)

S. 1510--UNITING AND STRENGTHENING AMERICA (USA) ACT OF 2001

The Administration commends the Senate leadership and the Chairman and Ranking Member of the Senate Judiciary Committee on reaching agreement on S. 1510. This bill contains, in some form, virtually all of the proposals made by the Administration in the wake of the terrorist attacks perpetrated against the United States on September 11th. The Administration strongly supports passage of this bill.

The Administration's initial proposals, on which S. 1510 is based, were designed to provide Federal law enforcement and national security officials with the tools and resources necessary to disrupt, weaken, and counter the infrastructure of terrorist organizations, to prevent terrorist attacks, and to punish and defeat terrorists and those who harbor them. S. 1510 includes the provisions proposed by the Administration in three main areas: (1) information gathering and sharing; (2) substantive criminal law and criminal procedure; and (3) immigration procedures. The Administration strongly supports passage of these provisions. The Administration also supports valuable provisions, introduced by the Chairman of the

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Senate Judiciary Committee, aimed at improving the Nation's border protection.

Information Gathering and Sharing

Existing laws fail to provide national security authorities and law enforcement authorities with certain critical tools they need to fight and win the war against terrorism. For example, technology has dramatically outpaced the Nation's statutes. Many of the most important intelligence gathering laws were enacted decades ago, in and for an era of rotary telephones. Meanwhile, the Nation's enemies use e-mail, the Internet, mobile communications and voice mail.

S. 1510 contains numerous provisions that address this problem by helping to make the intelligence gathering and surveillance statutes more ``technology-neutral.'' Specifically, the bill updates the pen-register, trap-and-trace, and Title III-wiretap statutes to cover computer and mobile communications more effectively, while ensuring that the scope of the authority remains the same.

The bill also provides for nationwide scope of orders and search warrants, and other practical changes that will enable law enforcement to work more efficiently and effectively. In addition, the bill contains important updates of foreign intelligence gathering-statutes, with the identical goal of making the statutes technology-neutral. Even more important, the bill contains provisions to reduce existing barriers to the sharing of information among Federal agencies where necessary to identify and respond to terrorist threats. The ability of law enforcement and national security personnel to share this type of information is a critical tool for pursuing the war against terrorism on all fronts.

Substantive Criminal Law and Criminal Procedure

S. 1510 contains important reforms to the criminal statutes designed to strengthen law enforcement's ability to investigate, prosecute, prevent, and punish terrorism crimes. The bill would remove existing barriers to effective prosecution by extending the statute of limitations for terrorist crimes that risk or result in death or serious injury. The bill also creates and strengthens criminal statutes, including a prohibition on harboring terrorists and on providing material support to terrorists, and provides for tougher penalties, including longer prison terms and higher conspiracy penalties for those who commit terrorist acts. These provisions will help to ensure that the fight against terrorism is a national priority in our criminal justice system.

Border Protection and Immigration Procedures

S. 1510 also contains a number of provisions that would enhance the ability of immigration officials to exclude or deport aliens who engage in terrorist activity and improve the Federal government's ability to share information about suspected terrorists. Under the bill, those who contribute to or otherwise support terrorist organizations and terrorist activities would be denied admission to or deported from this country, and the Attorney General would be authorized to detain deportable persons who are suspected of terrorist activities pending their removal from the United States. In addition, the bill provides for access by the Department of State and the Immigration and Naturalization Service to criminal history records and related information maintained by the Federal Bureau of Investigation.

Money Laundering

Title III of S. 1510 includes money laundering and other financial infrastructure provisions, arising from a separate legislative proposal from the Administration. These provisions were added to this bill after unanimous approval was reached on these provisions in the Senate Banking Committee. The Administration supports the effort to strengthen the money laundering statutes to help combat terrorism, and supports virtually all of the proposals that are now included in S. 1510.

Pay-As-You-Go Scoring

Any law that would increase direct spending is subject to the pay-as-you-go requirements of the Balanced Budget and Emergency Deficit Control Act. Accordingly, S. 1510, or any substitute amendment in lieu thereof that would also increase direct spending, will be subject to the pay-as-you-go requirement. OMB's scoring estimates are under development. The Administration will work with Congress to ensure that any unintended sequester of spending does not occur under current law or the enactment of any other proposals that meet the President's objectives to reduce the debt, fund priority initiatives, and grant tax relief to all income tax paying Americans.

The PRESIDING OFFICER. The Senator from Vermont.

Mr. LEAHY. Madam President, I know the Senator from Wisconsin has another amendment. I have had requests for time on our side of the aisle from the distinguished Senator from Washington State, Ms. Cantwell, for 7 minutes; the distinguished Senator from Massachusetts, Mr. Kerry, for 5 minutes; the distinguished Senator from Minnesota, Mr. Wellstone, for 5 minutes; the distinguished Senator from Michigan, Mr. Levin, for 2 minutes.

I mention that, not to lock that in, because the time is there, but just to give people an idea of where we are.

The PRESIDING OFFICER. The Senator from Wisconsin.

Mr. FEINGOLD. Madam President, is the Senator from Vermont proposing a time agreement?

Mr. LEAHY. No. I am just saying what people are requesting for time. I am trying to get some idea. A number of Senators have asked the distinguished leader and myself how much longer we are going to be here tonight.

The PRESIDING OFFICER. The majority leader.

Mr. DASCHLE. Madam President, let me just say, anybody who wishes to speak on this bill is certainly welcome to do so, but we will be here after the vote for anybody who wishes to accommodate any other Senator who would like to go home.

The hour is late. We have one more amendment, and then we have final passage. It is my hope that we can complete our work on the bill and certainly leave open the opportunity for Senators to express themselves. We will stay just as long as that is required. I hope, though, we can accommodate other Senators who may not feel the need to participate in further debate.

I yield the floor.

The PRESIDING OFFICER. The Senator from Pennsylvania.

Mr. SPECTER. Madam President, I had spoken earlier this evening at some length about my concerns as to the procedures on the bill. I want to make a very few brief comments at this time.

I am concerned about the procedures on establishing a record which will withstand constitutional scrutiny. I shall not repeat the citations from decisions of the Supreme Court of the United States which I cited earlier, except to say that the Supreme Court has invalidated acts of Congress where there is not a considered judgment.

I understand the position of the majority leader in wanting to get this bill finished. Earlier this evening, I went through an elaborate chronology as to what has happened here. Nine days after September 11, the Attorney General submitted a bill. I had suggested hearings that week. The bill was submitted on September 20. We could have had hearings on September 21 and even on September 22, a Saturday. The Judiciary Committee had one hearing, a very brief one, on September 25.

I wrote the chairman of the committee two letters urging hearings, and there was ample time to have hearings to find out about the details of this bill. There was a Judiciary subcommittee hearing on October 3.

This bill was negotiated between the chairman and ranking member and the White House. The Judiciary Committee did not take up the bill. We have had ample time. This bill should have been before the Senate 2 weeks ago. If we had moved on it promptly after it was submitted on the 20th, we could have had hearings, perhaps some in closed session. We could have had a markup. We could have had an understanding of the bill.

When the Senator from Wisconsin has offered two amendments, which I have supported, I am inquiring as to what is the specific concern about law enforcement to preclude the adoption of the amendments of the Senator from Wisconsin and on the possible invasions of privacy that may result from the amendments not being adopted.

This is a very important bill. I intend to vote for it. I served 8 years on the Intelligence Committee, 2 years as chairman. I chaired the Subcommittee of Judiciary on Terrorism. I have been through detailed hearings and understand the problem we face, especially in light of the warning which was put out today, and I understand, with the approval of the President, that a terrorist act may happen in the United States or overseas in the next several days.

We do need adequate law enforcement powers. We should have finished this bill some time ago. But when the majority leader says he is concerned about procedure and not about substance, we are regrettably establishing a record where we have not only not shown the deliberative process to uphold constitutionality, but we are putting on the record a disregard for constitutionality and elevating procedure over substance, which is not the way you legislate in a constitutional area

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S10579]

where the Supreme Court of the United States balances law enforcement's needs with the incursion on privacy.

I feel constrained to make these comments. I hope yet that we can create a record which will withstand constitutional scrutiny.

Again, I intend to vote for the bill, but say again that this body ought to be proceeding in a way to establish the record. The worst thing that would happen is if we try terrorists, having used these procedures, and have the convictions invalidated. I have had experiences as a prosecuting attorney and know exactly what that means.

I want my concerns noted for the record. I thank the Chair and yield the floor.

The PRESIDING OFFICER. The Senator from Massachusetts.

Mr. KERRY. Madam President, I have 5 minutes, but I will not use it. I want to make two very quick points.

One, as a former prosecutor, I am sympathetic to the comments of the Senator from Pennsylvania. I think all of us ought to be respectful of what the Senator from Wisconsin has been talking about this evening.

I will vote for the bill. I am particularly sensitive to what the majority leader has said about the delicacy and the balance. Even within that delicacy, there are some very legitimate concerns.

It is my hope that when this goes to conference, some of the positions of the House will be thought about carefully and respected and that the Senate may even be able to improve what we have by taking those into account.

The second point is that there is within this legislation for the first time a very significant effort on money laundering. I will say to my colleagues that of all the weapons in this war and for all of our might militarily, the most significant efforts to ferret out and stop terrorists are going to come from the combination of information, intelligence that we gather and process, and from our ability to take unconventional steps, particularly those such as the money-laundering measures.

Senator Levin has done an outstanding job of helping to frame that, as has Senator Sarbanes. The truth is, there are banking interests that even to this moment still resist living up to the standards of the Basel convention and the international standards about knowing your customer and being part of the law enforcement effort rather than a blockade to it.

We are told there may be some effort through the House to try to strip this out. It is my hope that the Senate will stand firm and hold to the full measure of what President Bush has asked us to do.

This will be a long effort, a painstaking effort. If we are serious about it, we have to have the law enforcement tools to make this happen.

One of the most critical ones is empowering the Secretary of the Treasury to do a reasonable, ratcheted, sort of geared process of addressing the concerns of ferreting out money laundering and taking the money away from these illicit interests around the globe. They are not just in terrorism. They are linked to money laundering, to illegal alien trafficking. They are all part of the same network which also funds the terrorists themselves.

We recognize that three-quarters of the heroin that reaches the United States comes from Afghanistan. The Taliban and al-Qaida were both trafficking in that heroin. These networks and the interconnectedness of them to the banking institutions, the financial marketplace, are absolutely essential for us as we fight a war on terrorism.

I hope this money-laundering component will be part of the final terrorism bill.

I yield whatever remaining time I have.

The PRESIDING OFFICER. The Senator from Michigan.

Mr. LEVIN. Madam President, I thank Chairman LEAHY, Chairman SARBANES, and members of their committees, for including our very strong anti-money-laundering provisions in the antiterrorism bill. The antiterrorism bill is simply incomplete unless it has anti-money-laundering provisions. Our provisions are strong provisions. They will help prevent terrorists and other criminals from using our banks to get their money into this country to fund their activities which are terrorizing this country.

There apparently is going to be a continuing effort in the House of Representatives to strip the anti-money-laundering provisions, which we have worked so hard on, from the antiterrorism bill. It is my understanding the White House will support keeping those provisions in the bill. Our committees have worked very hard to keep our anti-money-laundering provisions in the antiterrorism bill. Unless these provisions are in there, we are providing the executive branch with only half a tool box in the fight against terrorism.

Three years ago, the minority staff of the Permanent Subcommittee on Investigations which I now chair, began its investigation into money laundering using U.S. banks. Three years, three sets of hearings, two reports and a five-volume record on correspondent banking and money laundering was the result.

We found, not surprisingly, that U.S. banks have accounts for foreign banks and that the customers of those foreign banks can then use the U.S. banks to move their money. But if foreign banks do a poor job of screening their customers, criminals and terrorists can end up using U.S. banks for their criminal purposes.

We found that U.S. banks do a poor job in screening the foreign banks they accept as correspondent customers. Banks told us ``a bank is a bank is a bank'' but that's not true. There are good banks and bad banks. We found numerous banks where the bank was engaged in criminal activity or had such poor banking practices any criminal could be a customer. If a bad bank has a correspondent account with a U.S. bank, customers of that bad bank have access to U.S. financial system. Then criminals, including drug traffickers and terrorists, are able to use our financial systems to carry out their crimes.

In response to what we learned, we developed a bill--S. 1371, the Money Laundering Abatement Act introduced in early August.

It's a bipartisan bill, and I would like to recognize my cosponsors--in particular, Senator CHUCK GRASSLEY who has helped to lead the fight for including this money laundering legislation on this anti-terrorism bill. The cosponsors in addition to Senator GRASSLEY are: Senators SARBANES, KYL, DEWINE, BILL NELSON, DURBIN, KERRY and Stabenow. The provisions of this bill have been included in the legislation we are now considering.

We now know that the September 11 terrorists used our financial institutions and systems to help accomplish their ends. They used checks, credit cards, and wire transfers involving U.S. banks in Florida, New York, Pennsylvania. We've seen the photos of two of the terrorists using an ATM machine. Osama bin Laden has bragged about it. There are reports of large, unpaid credit card bills.

We know that current law is not tough enough in area of correspondent banking--the mechanism used to transfer money around the globe. There are too many holes that let in bad banks and bad actors, and we need to close them.

Look at what we've learned just in the last few days about bin Laden and al-Qaida. Several U.S. banks have had correspondent accounts for a Sundanese bank called the al Shamal Islamic Bank.

A 1996 State Department fact sheet states that bin Laden helped finance the bank in the amount of $50 million. A respected international newsletter on intelligence matters, Indigo Publications in March 16, 2000, said bin Laden remains a leading shareholder, although the al Shamal Bank apparently denies that.

Testimony in the February 2001 criminal trial of the 1998 terrorist bombings of U.S. embassies in Kenya and Tanzania, revealed that a bin Laden associate who handled financial transactions for al-Qaida testified al-Qaida had a half dozen accounts at al Shamal bank, one of

which was in bin Laden's name. The witness at that trial said in 1994 a bin Laden associate took $100,000--in cash, U.S. Dollars--out of the Shamal Bank gave it to the witness and told him to deliver it to an individual in Jordan, which he did.

Another bin Ladin associate testified at the same trial that he received $250,000 by a wire transfer from the

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Shamal Bank to his account in a U.S. bank in Arlington, Texas, to purchase a plane in the United States for bin Laden. He said he personally delivered the plane to bin Laden.

Why did this bank have a correspondent account with a U.S. bank? Why should we allow that to happen?

Even today, when you look at the al Shamal bank website, the bank is still active and advertises an extensive correspondent bank network. Three U.S. banks are listed. One of those banks has closed its account, but the two other banks continue to have accounts, although the accounts are frozen. Those accounts are now inactive because Sudan, home country of al Shamal, is on the list of terrorist countries and any business with the government of those countries has to be approved. But the accounts were operational at one point in time. Moreover, al Shamal bank has correspondent accounts with other foreign banks which have accounts with U.S. banks.

That means al Shamal bank can still be using the U.S. financial system through an account with a foreign bank that has a correspondent account with a U.S. bank. We call this nesting and it's a serious problem. It means the al Shamal bank and its customers can still use the U.S. banking system.

The bill before us would require U.S. banks to do a lot more homework on the banks they allow to have correspondent accounts. Under the anti-terrorism bill, it is my belief and my hope that a bank like al Shamal would never be granted a correspondent account at a U.S. bank.

The bill would also allow U.S. law enforcement to capture any illicit funds in a U.S. correspondent account. Now, if a criminal or terrorist has money in a foreign bank that has an account at U.S. bank and illicit money is being held in a U.S. account, law enforcement can't freeze that money unless the person is on the terrorist list or can prove that the foreign bank with the correspondent account is part of a criminal or terrorist act. That's an excessively hard threshold. This legislation would allow law enforcement to freeze money in correspondent accounts to the same extent they can freeze money in regular, individual accounts.

We need all the tools possible in our arsenal to fight the financial network of terrorism. The money laundering provisions in this bill close the loopholes in existing law and provide additional tools for law enforcement to use.

I thank Chairman Sarbanes and the other members of the Banking Committee for including so much of the Levin-Grassley anti-money laundering bill, S. 1371, in the Committee's bill. I also thank Chairman Leahy and the other Judiciary Committee members for including anti-money laundering provisions in title 3 of S. 1510, the anti-terrorism bill. Strengthening our anti-money laundering laws will strike a blow against terrorism by making it harder for terrorists to get the funds they need into United States; an anti-terrorism bill without these anti-money laundering provisions would be providing U.S. law enforcement with only half a toolbox against terrorism.

I would like to take a few minutes to discuss a few key provisions from the Levin-Grassley bill that have been incorporated into S. 1510. These provisions are based on an extensive record of hearings and reports issued in connection with investigations conducted over the past few years by the Permanent Subcommittee on Investigations, which I chair, into money laundering in

the correspondent and private banking fields.

The four provisions I want to focus on are provisions that would ban foreign shell banks from the U.S. financial system; require U.S. financial institutions to exercise due diligence; add foreign corruption offenses to the crimes that can trigger a U.S. money laundering prosecution; and close a major forfeiture loophole involving foreign banks.

First is the shell bank ban in Section 313 of S. 1510. This provision is a very important one, because it attempts to eliminate from the U.S. financial system one category of foreign banks that carry the highest money laundering risks in the banking world today. Those are foreign offshore shell banks which, as defined in the bill, are banks that have no physical presence anywhere and no affiliation with any bank that has a physical presence. Our Subcommittee investigation found that these shell banks carry the highest money laundering risks in the banking world, because they are inherently unavailable for effective oversight. There is no office where a bank regulator or law enforcement official can go to observe bank operations, review documents, talk to bank officials, or freeze funds. Only a few countries now issue licenses for unaffiliated shall banks; they include Nauru, Vanuatu, and Montenegro. Nauru alone is believed to maintain licenses for somewhere between 400 and 3,000 offshore shell banks, none of which are being actively supervised, and some of which are suspected of laundering funds for Russian organized crime. A staff report that we issued in February of this year includes four detailed case histories of offshore shell banks that were able to open correspondent accounts at U.S. banks and used them to move funds related to drug trafficking, bribe money and financial fraud money. The possibility that terrorists are also using shell banks to conduct their operations is real and cannot be ignored. That is why this provision seeks to exclude shell banks from the U.S. financial system.

The provision flat-out prohibits U.S. financial institutions from opening accounts for shell banks. Period. It also requires U.S. financial institutions to take reasonable steps to make sure that other foreign banks are not allowing shell banks to use their U.S. accounts to gain entry to the U.S. financial system. The point is to prevent shell banks from getting direct or indirect access to U.S. financial accounts. The shell bank ban applies to both banks and securities firms operating in the United States, so that it is as broad and as effective as possible.

The provision directs the Treasury Secretary to provide regulatory guidance to U.S. financial institutions on the reasonable steps they have to take to guard against shell banks using accounts opened for other foreign banks. One possible approach would be for U.S. financial institutions to include a new section in the standard language they use to open accounts for foreign banks asking the foreign bank to certify that it will not allow any shell bank to use its U.S. accounts. The U.S. financial institution could then rely on that certification, unless it encountered evidence to the contrary indicating that a shell bank was actually using the account, in which case the financial institution would have to take reasonable steps to evaluate that evidence and determine whether a shell bank was, in fact, using the U.S. account.

The provision contains one exception to the shell bank ban, which should be narrowly

construed to protect the U.S. financial system to the greatest extent possible. This exception allows U.S. financial institutions to open an account for a shell bank that is both affiliated with another bank that maintains a physical presence, and subject to supervision by the banking regulatory of that affiliated bank. This exception is intended to allow U.S. financial institutions to do business with shell branches of large, established banks on the ground that the regulator of the established bank can and does oversee all of that bank's branches, including any shell branch.

This exception could, of course, be abused. It is possible that an established bank in a jurisdiction with weak banking and anti-money laundering controls could open a shell branch in another country with equally weak controls and try to use that shell branch to launder funds in ways that are unlikely to be detected or stopped by the bank regulator in its home jurisdiction. In that case, while the shell bank ban exception would not flat-out bar U.S. financial institutions from opening an account for the shell branch, another provision would come into play and require the U.S. financial institution to exercise enhanced due diligence before opening an account for this shell bank. I would hope that U.S. financial institutions would not open such an account--that they would exercise common sense and restraint and refrain from doing business with a shell operation that is affiliated with a poorly regulated bank and inherently resistant to effective oversight.

Many U.S. financial institutions already have a policy against doing business with shell banks, but at least one

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major U.S. bank, Citibank, has a history of taking on shell banks as clients. In order to keep those clients, Citibank tried very hard to expand the exception in this section to also allow U.S. accounts for shell banks affiliated with financial service companies other than banks, such as securities firms or financial holding companies. The broad exception was firmly and explicitly rejected by both the Senate Banking Committee and the House Financial Services Committee, because it would have opened a gaping loophole in the shell bank ban and rendered the ban largely ineffective. All a shell bank would have had to do to evade the ban was establish an affiliated shell corporation and call it a financial services company in order to be eligible to open a U.S. bank account. The Citibank approach would, for example, have allowed a shell bank established by bin Laden's financial holding company, Taba Investments, to open accounts at U.S. banks and securities firms. That would perpetuate the very problem that the Senate investigation identified in two of its shell bank case histories involving M.A. Bank and Federal Bank, each of which opened Citibank accounts in New York and used those accounts to deposit suspect funds associated with drug trafficking and bribery.

The exception to the shell bank ban is intended to be narrowly construed, and U.S. financial institutions will hopefully use great restraint in doing business with any shell bank that is not affiliated with a well known, well regulated bank. The shell bank ban is intended to close the U.S. financial marketplace to the money laundering risks posed by these banks, and it is my hope that other countries and the Financial Action Task Force on Money Laundering will follow the U.S. lead and take the same action in other jurisdictions.

The next provision is the due diligence requirement in Section 312 of S. 1510. This is another critical provision that tightens up U.S. anti-money laundering controls by requiring U.S.

financial institutions to exercise due diligence when opening and managing correspondent and private banking accounts for foreign banks and wealthy foreign individuals.

The provision targets correspondent and private banking accounts, because these two areas have been identified by U.S. bank regulators as high risk areas for money laundering, and because Congressional investigations have documented money laundering abuses through them. For example, two weeks ago, I testified before the Banking Committee about a high risk foreign bank in Sudan that was able to open accounts at major banks around the world, including in the United States and, in 1994, used these accounts to funnel money to a bin Laden operative then living in Texas. On one occasion, he used a $250,000 wire transfer from the Sudanese bank to buy an airplane capable of transporting Stinger missiles, fly it to Sudan and deliver the keys to bin Laden. Six months earlier, we released a staff report with ten case histories of high risk foreign banks that used their U.S. accounts to transfer illicit proceeds associated with drug trafficking, financial fraud and other crimes. A year earlier, another staff report presented four case histories of senior foreign government officials or their relatives opening U.S. private banking accounts and using them to deposit millions of dollars in suspect funds. The bottom line is that U.S. banks need to do a much better job in screening the foreign banks and wealthy foreign individuals they allow to open accounts in the United States.

The due diligence provision would address that problem. It would impose an ongoing, industry-wide legal obligation on all types of financial institutions operating in the United States to exercise greater care when opening accounts for foreign banks and wealthy foreign individuals. Its due diligence requirements are intended to function as preventative measures to stop dubious banks and as well as terrorists or other criminals from using foreign banks' U.S. accounts to gain access to the U.S. financial system.

The general obligation to exercise due diligence with respect to all correspondent and private banking accounts is contained in paragraph (1). Paragraphs (2) and (3) then provide minimum standards for the enhanced due diligence that U.S. banks must exercise with respect to certain correspondent and private banking accounts. Paragraph (4)(B) gives the Treasury Secretary discretionary authority to issue regulatory guidance to further clarify the due diligence policies, procedures and controls required by paragraph (1).

The regulatory authority granted in this section is intended to help financial institutions understand what is expected of them. The Secretary may want to issue regulations that help different types of financial institutions to understand their obligations under the due diligence provision. However, one caveat needs to be made with respect to the Secretary's exercise of this regulatory authority, and that involves how it is to be coordinated with Section 5318(a)(6), which authorizes the Secretary to grant ``appropriate exemptions'' from any particular money laundering requirement. There are going to be many efforts made by various groups of financial institutions to win an exemption from the due diligence requirements in this section--from insurance companies, to money transmitters, to offshore affiliates of large foreign banks. But the Committee's and the Senate's clear intention is to cover all major financial institutions operating in the United States. That is why Chairman SARBANES changed the language in my bill, S. 1371,

so that the due diligence requirement did not apply just to banks, but to all financial institutions as that term is defined in Section 5312(a)(2) of title 31. That broad coverage is exactly what is contemplated by this statute. The bottom line, then, is that the Secretary is intended to apply the due diligence requirements broadly to U.S. financial institutions, and not to grant an exemption without a very compelling justification.

This same reasoning also applies to the shell bank ban. There will be some that will seek one exemption or another from the ban, asking the Treasury Secretary to use the authority available under Section 5318(a)(6). Again, the intent of the Committee and this Senate is to enact as comprehensive a shell bank ban as possible to protect the United States from the money laundering threat posed by shell banks. That means that the Secretary should refrain from granting any exemption to the shell bank ban without a very compelling justification.

The third provision I want to discuss is the provision in Section 315 adding new foreign corruption offenses to the list of crimes that can trigger a U.S. money laundering prosecution. This is another important advance in U.S. anti-money laundering law. Right now, because foreign corruption offenses are not currently on the list of crimes that can trigger a U.S. money laundering prosecution, corrupt foreign leaders may be targeting U.S. financial institutions as a safe haven for their funds. This provision will make it clear to those who loot their countries, or accept bribes, or steal from their people, that their illicit money is not welcome here. Our banks do not want that money, and if it is deposited in U.S. banks, it is subject to seizure and the depositor may become subject to a money laundering prosecution.

The fourth provision would close a major forfeiture loophole in U.S. law involving foreign banks. This provision is in Section 319(a) of S. 1510. It would make a depositor's funds in a foreign bank's U.S. correspondent account subject to the same civil forfeiture rules that apply to depositors funds in other U.S. bank accounts. Right now, due to a quirk in the law, U.S. law enforcement faces a significant and unusual legal barrier to seizing funds from a correspondent account. Unlike a regular U.S. bank account, it is not enough for U.S. law enforcement to show that criminal proceeds were deposited into the correspondent account; instead, because funds in a correspondent account are considered to be the funds of the foreign bank itself, the government must also show that the foreign bank was somehow part of the wrongdoing.

That's not only a tough job, that can be an impossible job. In many cases, the foreign bank will not have been part of the wrongdoing, but that's a strange reason for letting the foreign depositor who was engaged in a wrongdoing escape forfeiture. And in those cases where the foreign bank may have

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been involved, no prosecutor will be able to allege it in a complaint without first getting the resources needed to chase the foreign bank abroad.

Take, for example, the case of Barclays Bank which has frozen an account because of suspicious activity suggesting it may be associated with terrorism. If that account had been a correspondent account in the United States opened for Barclays Bank, U.S. law enforcement could have been unable to freeze the particular deposits suspected of being associated with terrorism, because the funds were in the Barclays correspondent account and Barclays itself was

apparently unaware of any wrongdoing. That doesn't make sense. U.S. law enforcement should be able to freeze the funds.

Section 319(a) would eliminate that quirk by placing civil forfeitures of funds in correspondent accounts on the same footing as forfeitures of funds in all other U.S. accounts. There is just no reason foreign banks should be shielded from forfeitures when U.S. banks would not be.

Section 319 has many other important provisions as well, including provisions dealing with Federal Receivers, legal service on foreign banks and more.

I want to again thank Senator SARBANES and Senator LEAHY and their staffs for their hard work and cooperative spirit in bringing this bill to the floor and including the provisions of our bill in it.

I need to add that the hard work in passing this bill will be for naught if some of the banks have their way in the House and in Conference Committee. I'm very concerned with reports that there is an effort in the House to separate the money laundering and anti-terrorism bills, so money laundering will be considered separately. The banks should be working with us to figure out even more ways in which the money flow of terrorists can be shut down.

Madam President, I ask unanimous consent to print letters of support for this legislation and testimony from the FBI in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Statement of Dennis M. Lormel, Chief, Financial Crimes Section, Federal Bureau of Investigation, Before the House Committee on Financial Services, Washington, DC, October 3, 2001

Correspondent banking is another potential vulnerability in the financial services sector that can offer terrorist organizations a gateway into U.S. banks just as it does for money launderers. As this Committee well knows, the problem stems from the relationships many U.S. Banks have with high risk foreign banks. These foreign banks may be shell banks with no physical presence in any country, offshore banks with licenses limited to transacting business with persons outside the licensing jurisdiction, or banks licensed and regulated by jurisdictions with weak regulatory controls that invite banking abuses and criminal misconduct. Attempts to trace funds through these banks are met with overwhelming obstacles. The problem is exacerbated by the fact that once a correspondent account is opened in a U.S. Bank, not only the foreign bank but its clients can transact business through the U.S. bank. As Congress has noted in the past, requiring U.S. banks to more thoroughly screen and monitor foreign banks as clients could help prevent much of the abuse in correspondent bank relationships.

--

U.S. DEPARTMENT OF JUSTICE,

OFFICE OF LEGISLATIVE AFFAIRS,

Washington, DC, September 18, 2001.

Hon. CARL LEVIN,

Chairman, Permanent Subcommittee on Investigations, Committee on Governmental Affairs, U.S. Senate, Washington, DC.

Hon. CHARLES GRASSLEY,

Co-Chairman, Senate Drug Caucus, U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN AND MR. CO-CHAIRMAN: We are writing in response to your recent letter to Attorney General Ashcroft concerning S. 1371, the Money Laundering Abatement Act. We appreciate your continued commitment to addressing the serious problem of money laundering in this country and abroad, as demonstrated by your introduction of S. 1371. As you indicated in your letter, the Attorney General has expressed the need to strengthen our money laundering laws. In his August 7th speech, the Attorney General stated: ``The Department of Justice has identified several areas in which our money laundering laws need to be updated to more effectively combat organized crime and to better serve the cause of justice.''

We were very pleased to see that one of the areas highlighted in the Attorney General's speech--the need to add to the list of foreign offenses that constitute predicate crimes for money laundering prosecutions--is included in S. 1371. This and other provisions in your bill would greatly improve our money laundering laws.

As the Attorney General also indicated in his speech, the Department of Justice has been developing its own proposal to update our money laundering laws and we hope to provide Congress with our own recommendations in the near future. We look forward to working with you in pursuing our mutual goal of strengthening and modernizing our money laundering laws to meet the challenges of this new century.

Thank you for your attention to this matter. If we may be of additional assistance, we trust that you will not hesitate to call upon us. The Office of Management and Budget has advised that there is no objection from the standpoint of the Administration's program to the presentation of this report.

Sincerely,

Daniel J. Bryant,

Assistant Attorney General.

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U.S. DEPARTMENT OF JUSTICE,

DRUG ENFORCEMENT ADMINISTRATION,

Washington, DC, September 20, 2001.

Hon. CARL LEVIN,

Chairman, Permanent Subcommittee on Investigations, Committee on Governmental Affairs, U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: Thank you for requesting our views on S. 1371, the ``Money Laundering Abatement Act,'' which is designed to combat money laundering and protect the United States financial system by strengthening safeguards in private and correspondent banking.

We greatly appreciate your initiative in this important area and believe that several provisions of S. 1371 would be of particular benefit to DEA's efforts to combat money laundering. In addition, as Assistant Attorney General Bryant recently indicated in his letter to you, the Administration has been working for some time on a package of additional suggested money laundering amendments, which we hope to be able to share with you shortly.

We look forward to working with you to strengthen and improve the Nation's money laundering laws. If I can be of any further assistance, please do not hesitate to contact me. The Office of Management and Budget has advised that there is no objection to the presentation of this report from the standpoint of the Administration's program.

Sincerely,

Asa Hutchinson,

Administrator.

--

FEDERAL DEPOSIT

INSURANCE CORPORATION,

Washington, DC, September 7, 2001.

Hon. CARL LEVIN,

Chairman, Permanent Subcommittee on Investigations, U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: Thank you for the opportunity to comment on S. 1371, the Money Laundering Abatement Act. The Federal Deposit Insurance Corporation shares your concern about the damage to the U.S. financial system that may result from money laundering activities and we congratulate you for your leadership in this area.

As deposit insurer, the FDIC is vitally interested in preventing insured depository institutions from being used as conduits for funds derived from illegal activity. As you may know, in January of this year, the FDIC, together with the Department of the Treasury, the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency, the Office of Thrift Supervision, and the Department of State, issued Guidance On Enhanced Scrutiny For Transactions That May Involve The Proceeds Of Official Corruption. The FDIC is also an active participant in other working groups that seek more effective ways to combat money laundering.

S. 1371 is an important step in trying to preclude foreign entities from laundering money through U.S. financial institutions. S. 1371 would, in several ways, require U.S. financial institutions to identify foreign parties who open or maintain accounts with U.S. banks, such as through correspondent accounts or private banking accounts. The bill would also prohibit customers from having direct access to concentration accounts, and make it a crime to falsify the identity of a participant in a transaction with or through U.S. financial institutions. Correspondent and concentration accounts have the potential to be misused so as to facilitate money laundering, and the bill appropriately addresses these concerns.

One point we would like to raise is in relation to Section 3 of the bill. Section 3 provides for consultation between the Board of Governors of the Federal Reserve System and the Secretary of the Treasury, both in regard to devising measures to combat money laundering and defining terms relating to anti-money laundering measures. The FDIC believes that such consultation requirements should include the FDIC as well as the other Federal banking agencies.

Thank you again for the opportunity to provide our views on S. 1371. Please do not hesitate to contact Alice Goodman, Director of our Office of Legislative Affairs, at (202) 898-8730 if we can be of any further assistance.

Sincerely,

Donald E. Powell,

Chairman.

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STATE OF MICHIGAN,

DEPARTMENT OF ATTORNEY GENERAL,

Lansing MI, September 25, 2001.

Hon: CARL LEVIN,

U.S. Senator, Russell Senate Office Bldg.,

Washington, DC.

Hon. CHUCK GRASSLEY,

U.S. Senator,

Hart Senate Office Bldg., Washington, DC.

DEAR SENATORS LEVIN AND GRASSLEY: I write to express my strong support for S1371, the Money Laundering Abatement Act. This is a prevalent problem that has allowed the criminal element to secrete the proceeds of criminal activity and to generate funds needed to facilitate and underwrite organized crime.

The bill will make it harder for foreign criminals to use United States banks to launder the proceeds of their illegal activity and allow investigators to detect, prevent, and prosecute money laundering. In particular, the bill strengthens existing anti-money laundering laws by adding foreign corruption offenses, barring U.S. banks from providing banking services to foreign shell banks, requiring U.S. banks to conduct enhanced due diligence, and making foreign bank depositors' funds in U.S. correspondence banks subject to the same forfeiture rules that apply to funds in other U.S. bank accounts.

Recent events highlighting the activities of foreign terrorists have demonstrated the necessity for his law. My colleagues in the U.S. Justice Department indicate that this and similar laws are essential if we are to succeed in our fight against organized crime, drug dealers, and terrorism. This bill is the result of lengthy hearings and congressional fact-finding that concluded that the regulations set forth in the bill are needed. The bill has my support, and I would urge its passage as soon as possible.

Sincerely yours,

Jennifer M. Granholm,

Attorney General.

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STATE OF ARIZONA,

OFFICE OF THE ATTORNEY GENERAL,

Phoenix, AZ, August 2, 2001.

Hon. CARL LEVIN,

Russell Senate Office Building,

U.S. Senate, Washington, DC.

Hon. CHUCK GRASSLEY,

Hart Senate Office Building,

U.S. Senate, Washington, DC.

DEAR SENATORS LEVIN AND GRASSLEY: I write to express my views on the Money Laundering Abatement Act you are planning to introduce soon. This bill would provide much needed relief from some of the most pressing problems in money laundering enforcement in the international arena. The burdens it places on the financial institutions are well considered, closely tailored to the problems, and reasonable in light of the public benefits involved.

The bill focuses on the structural arrangements that allow major money launderers to operate. These include the use of shell banks and foreign accounts, abuse of private banking, evasion of law enforcement efforts to acquire necessary records, and of safe foreign havens for criminal proceeds. The approach is very encouraging, because efforts to limit the abuse of these international money laundering tools and techniques must come from Congress rather than the state legislatures, and because such measures attack money laundering at a deeper and more lasting level than simpler measures.

The focus on structural matters means that this bill's effects on cases actually prosecuted by state attorneys general are a relatively small part of the substantial effects its passage would have on money laundering as a whole. Nevertheless, its effects on money laundering affecting victims of crime and illegal drug trafficking would be dramatic. I will use two examples from my Office's present money laundering efforts.

My Office initiated a program to combat so-called ``prime bank fraud'' in 1996, and continues to focus on these cases. Some years ago, the International Chamber of Commerce estimated that over $10 million per day is invested in this wholly fraudulent investment scam. The ``PBI'' business has grown substantially since then. To date, my Office has recovered over $46 million in these cases, directly and in concert with U.S. Attorneys and SEC. Prime bank fraudsters rely heavily on the money movement and concealment techniques that this bill would address, particularly foreign bank accounts, shell banks, accounts in false identities, movement of funds through ``concentration'' accounts, and impunity from efforts to repatriate stolen funds. One of our targets was sentenced recently in federal court to over eight years in prison and ordered to make restitution of over $9 million, but without the tools provided in this bill, there is little hope that the victims will even see anything that was not seized for forfeiture in the early stages of the investigation.

My Office is now engaged in a program to control the laundering of funds through the money transmitters in Arizona, as part of the much larger problem of illegal money movement to and through the Southwest border region. This mechanism is a major facilitator of the drug smuggling operations. Foreign bank accounts and correspondence accounts, immunity from U.S. forfeitures, and false ownerships are significant barriers to successful control of money laundering in the Southwest.

Your bill is an example of the immense value of institutions like the Permanent Subcommittee of Investigations, because this type of bill requires a deeper understanding of the issues that comes from long term inquiries by professional staff. We who are involved in state level money laundering control efforts should be particularly supportive of such long term strategies because they are most important to the quality of life of our citizens.

I commend your efforts for introducing this important legislation and will assist you in anyway I can to gain its passage.

Yours very truly,

Janet Napolitano,

Attorney General.

The PRESIDING OFFICER. The Senator from Vermont.

Mr. LEAHY. Madam President, I tell the distinguished Senator from Michigan and the distinguished Senator from Massachusetts, who made such strong and valid points on money laundering, we just received from the administration their statement of policy saying: This includes money laundering, other financial infrastructure provisions arising from separate legislative proposals.

These provisions were added to this bill after unanimous approval to have these provisions in the Senate Banking Committee. The administration supports the effort to strengthen this--

And so on. They are extremely important, and I can assure both Senators that I will strongly support retention of this in conference.

The PRESIDING OFFICER. The Senator from Wisconsin.

AMENDMENT NO. 1901

Mr. FEINGOLD. Mr. President, I call up amendment No. 1901, which is at the desk.

The PRESIDING OFFICER (Mr. MILLER). The clerk will report.

The legislative clerk read as follows:

The Senator from Wisconsin [Mr. FEINGOLD] proposes an amendment numbered 1901.

Mr. FEINGOLD. I ask unanimous consent that further reading of the amendment be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered.

The amendment is as follows:

(Purpose: To modify the provisions relating to access to business records under the Foreign Intelligence Surveillance Act of 1978)

Strike section 215 and insert the following:

SEC. 215. ACCESS TO BUSINESS RECORD UNDER FOREIGN INTELLIGENCE SURVEIL-ÐLANCE ACT OF 1978.

(A) IN GENERAL.--Section 502 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1862) is amended--

(1) in subsection (a), by striking ``authorizing a common carrier'' and all that follows through ``to release records'' and inserting ``requiring a business to produce any tangible things (including books, records, papers, documents, and other items)'';

(2) in subsection (b)(2)--

(A) in subparagraph (A), by striking ``and'' at the end;

(B) in subparagraph (B), by striking the period at the end and inserting: ``; and''; and

(C) by adding at the end the following new subparagraph:

``(C) the records concerned are not protected by any Federal or State law governing access to the records for intelligence or law enforcement purposes.''; and

(3) in subsection (d), by striking ``common carrier, public accommodation facility, physical storage facility, or vehicle rental facility'' each place it appears and inserting ``business''.

(b) CONFORMING AMENDMENT.--The text of section 501 of that Act (50 U.S.C. 1861) is amended to read as follows:

``SEC. 501. In this title, the terms `agent of a foreign power', `foreign intelligence information', `international terrorism', and `Attorney General' have the meanings given such terms in section 101.''.

Mr. FEINGOLD. Mr. President, this amendment has to do with section 215 in the bill. It allows the Government, under FISA, to compel businesses to turn over records to assist in an investigation of terrorism or espionage. The provision makes two significant changes from current law. Under current law, the FBI can seek records from only a limited set of businesses--from public accommodations, such as hotels and motels, car rental companies, storage facilities, and travel records, such as those from airlines.

Current law also requires the FBI to demonstrate to the FISA court that the records pertain to an agent of a foreign power. The FBI cannot go on a fishing expedition of records of citizens of this country who might have had incidental contact with a target of an investigation. But under section 215 of this bill, all business records can be compelled to be produced, including those containing sensitive personal information such as medical records

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from hospitals or doctors, or educational records, or records of what books someone has taken out of the library.

This is an enormous expansion of authority, compounded by the elimination of the requirement that the records have to pertain to an agent of a foreign power. Under this provision, the Government can apparently go on a fishing expedition and collect information on anyone--perhaps someone who has worked with, or lived next door to, or has been seen in the company of, or went to school with, or whose phone number was called by the target of an investigation.

So we are not talking here only about the targets of the investigation; we are talking about people who have simply had some incidental contact with the target. All the FBI has to do is to allege in order to get the order that the information is sought for an investigation of international terrorism or clandestine intelligence gathering. That is all they have to do, assert that--not to just get at the targets, but at people who have had any contact whatsoever with them.

On that minimal showing in an ex parte application in a secret court, the Government can lawfully compel a doctor or a hospital to release medical records or a library to release circulation records. This is truly a breathtaking expansion of the police power, one that I do not think is warranted.

My amendment does not completely strike the provision. There are elements of it that I think have legitimacy. First, my amendment maintains the requirement that the records pertain to a target alleged to be an agent of a foreign power. This provides some protection for American citizens who might otherwise become the subject of investigations for having some innocent contact with a suspected terrorist.

Second, while the amendment maintains the expansion of the FISA authority to all business records, it also requires the FBI to comply with State and Federal laws that contain a higher standard for the disclosure of certain private information. The amendment makes it clear that existing Federal and State statutory protections for the privacy of certain information are not diminished or superseded by section 215.

There are certain categories of records, such as medical records or educational records, that Congress and State legislatures have deemed worthy of a higher level of privacy protection. Let me quickly give you a couple of examples. In California, there is a very detailed statutory provision governing disclosure of medical information to law enforcement authorities. Generally, the law requires either patient consent, or a court order, or a subpoena. Before issuing an order for the records to be produced, the court must, among other things, find good cause based on a determination that there is a reasonable likelihood that the records in question will disclose material information or evidence of substantial value in connection with the investigation or prosecution.

Montana is another State with strong statutory, and indeed constitutional, protections for medical records. It provides that medical records can only be obtained with an investigative subpoena signed by a judge, and that subpoena may be issued only when it appears upon the affidavit of the prosecutor that a compelling State interest requires it to be issued. In order to establish a compelling State interest, the prosecutor must state facts and circumstances sufficient to support probable cause to believe that an offense has been committed, and that the information relative to the commission of that offense is in the possession of the person or institution to whom the subpoena is directed.

My State of Wisconsin, along with many other States, has very strong library confidentiality laws which requires a court order for disclosure of public library system records.

Texas, for example, permits disclosure of library records ``to a law enforcement agency or prosecutor under a court order or subpoena obtained after a showing to a court that: (A) disclosure of the record is necessary to protect the public safety; (B) the record is evidence of an offense or constitutes evidence that a particular person committed an offense.''

Missouri and Nevada library records confidentiality laws both require that a court find ``that the disclosure of such record is necessary to protect the public safety or to prosecute a crime.''

South Carolina's library records confidentiality law permits disclosure ``in accordance with a proper judicial order upon finding that disclosure of the records is necessary to protect public safety, to prosecute a crime, or upon showing of good cause before a presiding judge in a civil matter.''

In short, our States have made policy judgments about the protection to which certain kinds of records are justified. We have Federal laws that express similar judgments--Federal Educational Records Privacy Act. Indeed, as I will mention, this bill provides new standards for the production of educational records in connection with terrorism investigations.

So my fear is that what section 215 does is effectively trump any and all of these State and Federal privacy protections. I think that is a result that most of our citizens and their State representatives would not countenance. So my amendment simply provides that this new authority to compel the production of business records through an order of a FISA court does not apply if another State or Federal law governs the law enforcement or intelligence access to the records.

To the extent that the records sought have no such statutory protection, the only effect this amendment would have is to ensure that the records actually pertain to the target. But I strongly believe that merely alleging that the records are needed for an intelligence investigation should not override other protections provided by State and Federal law.

I will quickly highlight the problem by referring to section 508 of this bill. That section, I think, would be rendered meaningless if section 215 is not amended as I propose.

The original version of section 508 proposed by the administration would have given the Attorney General the right to obtain the educational records of virtually any student without a court order. I and many other Senators had serious problems with that provision, and it was significantly changed before S. 1510 was introduced. Section 508 now does require a court order and does provide a specific showing that the Attorney General must make to obtain the order to get at these educational records. But if section 215 is enacted without my amendment a university could be ordered to turn over such records as ``tangible things'' on a much lower showing.

The administration asserts that it is too great a burden for the Government to abide by existing privacy protections and seek court orders to obtain certain sensitive information specifically identified by Congress and State legislators. I remind my colleagues that the protections I seek to preserve were carefully drafted and debated and enacted at a time when legislators could thoughtfully consider the full weight of granting such protections. We are now asked to set these protections aside with scant discussion of either the merits or the consequences of such a proposal, during a time of incredible strain on our democratic principles, and for an indeterminate length of time.

If my amendment is adopted, law enforcement will still have access to all of the information it seeks. But my amendment simply maintains the integrity of protections enacted by Congress and State legislatures for certain kinds of sensitive information to ensure that access to this information is given only where it is necessary. It makes sure that this provision does not become the platform or an excuse for a fishing expedition for damaging information on American citizens who are not the subjects of FISA surveillance.

I reserve the remainder of my time.

The PRESIDING OFFICER. The Senator from Minnesota is recognized.

Mr. FEINGOLD. I yield 5 minutes to the Senator.

Mr. WELLSTONE. Mr. President, I say, again, to colleagues that this amendment the Senator from Wisconsin introduced makes sure that our Federal and State laws regarding certain sensitive privacy areas are not diminished or superseded by this provision.

The amendment of the Senator from Wisconsin goes to the heart of the concerns that a lot of the people we represent have. I imagine that the vote may be overwhelmingly in opposition to this amendment. That has been the pattern.

Again, I thank the Senator from Wisconsin for raising these questions. This is what we should be doing.

I conclude this way: I really think, in part, because of the kind of questions the Senator from Wisconsin has raised--again, I am not a lawyer--in looking at this bill, Mr. President, I say to Senator Leahy, it seems to me he and others have done a great job and are doing everything possible to make this more balanced. There are so many good provisions in this bill that we need. I believe that.

I hope we can keep the sunset provision, which is so essential to oversight, because I think what is good is the provisions of this legislation that focus on combating terrorism and what is not quite so good is the parts of this bill that reach way beyond that.

Yes, there is a lot of good. I will support it. I will reserve final judgment of what comes out of the conference committee. I think we can make it better.

I thank my colleagues, Senator Hatch included, for their work. Sometimes people can honestly disagree. I know this is important. I know where we are as a nation, but the Senator from Wisconsin has raised important concerns tonight, and others as well. I hope we do better in conference.

I yield the floor.

The PRESIDING OFFICER. The Senator from Wisconsin.

Mr. FEINGOLD. Mr. President, I thank the Senator from Minnesota. He said it exactly right. Each of us who spoke on these amendments tonight cares just as much as everybody in this room about the fight against terrorism and stopping it. We just want to make sure we do not go beyond that goal with unnecessary language that intrudes on our civil liberties. That is it. That is all we are trying to do.

I am pleased to yield 5 minutes to the Senator from Washington.

The PRESIDING OFFICER. The Senator from Washington.

Ms. CANTWELL. Mr. President, I thank the Senator from Wisconsin for the time and his energies this evening. We all know that the hour is late and that there are many things we must accomplish in our acts to fight terrorism. This is probably one of the most significant pieces of legislation that affects our home-front activities in fighting that battle.

There are many good things in this bill. I am very proud of the authorizing language to triple the resources for our northern borders. I am very proud of the language in the bill that basically will set a new technology standard for our visa program so we can better identify people coming into this country. I am very proud of the many tools in the bill for law enforcement. I ask unanimous consent that the column in the Washington Post be printed in the RECORD.

There being no objection, the material was ordered to be printed in the Record, as follows:

[From the Washington Post, Oct. 10, 2001]

When Care Beats Haste

The complex antiterrorism legislation that the administration sent Congress less than a month ago could reach the floors of both houses this week. The original proposal has been considerably improved since its hasty submission, but civil liberties groups continue to warn with cause that some of the detention and surveillance provisions would give the government more power than is either necessary or healthy.

Some of the members of both parties who helped construct the current compromises are likewise uneasy about their own handiwork, but reluctant to be seen as holding up a bill the administration insists it needs right away. The reluctance will be the greater now that the country is engaged in military action in Afghanistan; there is fear--we have no doubt well-founded--of retaliation. But dangerous moments are precisely the ones when it is most important that civil liberties be protected.

The House Judiciary Committee has dealt with the conflicting pressures in part by putting a kind of asterisk after the surveillance sections of the bill. It has ``sunset'' them, meaning the powers they confer will expire after two years unless a subsequent Congress, having seen how the powers work out, votes to extend them. The administration opposes the sunset provision and succeeded in keeping it out of the Senate version. But it's a reasonable compromise. A bill such as this is a balancing of risks--the risk of further attack versus the risk to civil liberties in seeking to forestall the attack. If the bill is as benign as the administration insists, it has nothing to fear from a sunset provision, which ought to be retained.

Parts of the administration proposal were sensible and are not in dispute: allowing the government in an age of cell phones to seek court approval for placing a wiretap on a person rather than a particular phone, for example. Others were drawn too loosely, and some still need work. The administration had sought authority to detain indefinitely non-citizens whom the attorney general thought even might be engaged in terrorism or other activities that endangered national security. That power has been greatly circumscribed. A person not charged with a crime after seven days can be held only if the government is moving to deport him. The question, which the bills don't clearly answer, is how long, without judicial determination, can it hold him then?

Wiretap authority now is easier to get for foreign intelligence than for law enforcement purposes. The legislation would make it easier still. The question then becomes how to make sure that the new authority isn't abused--in fact used for law enforcement purposes or fishing expeditions--in such a way as to make such surveillance far more commonplace than now. Related issues have to do with the sharing of law enforcement and intelligence information among government officials. There are ways to provide the broader authority the government says it needs while hedging against its abuse; in our view, not all of those have been fully explored.

So too with the power the bill would give law enforcement officials to obtain records of an individual's Internet use, including addresses of e-mail sent and received. Phone records are now available to law enforcement agencies more or less on request--when were calls made from phone A to phone B? what should be the Internet analogy?

The administration was said yesterday to be pressing for quick passage by both houses of the Senate measure; the more careful work of the House Judiciary Committee would be set aside. That's wrong, and an acquiescent step that in the long run Congress likely would regret.

Ms. CANTWELL. This article said it best with the headline: ``When Care Beats Haste'':

The question then becomes how to make sure that the new authority isn't abused--in fact used for law enforcement purposes or fishing expeditions--

Later it says that it would be wrong for us to take an acquiescent step that in the long run would really hurt our country.

What Senator Feingold is simply trying to say is that we have already painstakingly over many years crafted a careful balance in protecting personal privacy. This language in section 215 changes that. It basically says that the FBI can have access to other things, including business records from U.S. citizens who may have had incidental contact with someone who is defined as a terrorist.

Think about that for a second. If you are an employer and someone in your company has now been accused of these terrorists acts and is under investigation, your business records can also be attained if, as Senator Feingold said, it was deemed part of this investigation, with very minimal judicial review.

Take for another example, you happen to live across the hall from someone who now has become a suspect. Maybe you have been over to their house for dinner several times. Now, all of a sudden, you may be part of that investigation, and your financial records, your medical records, your personal records can now be part of that investigation, again, with very minimal judicial review.

I have heard from many in my State, including my State librarian, consumers, and businesses that are concerned, that this provision is far too broad.

It takes little imagination, as I said, to think of all the tangible items this would give the FBI carte blanche to examine some people's most private and personal papers.

The bottom line is this legislation could circumvent or supersede Federal and State privacy laws that protect student records, library records, and health records not previously admissible under FISA.

What we are talking about in the Feingold amendment is trying to preserve those State and Federal laws that already specify protection. The amendment simply states where Congress or a State legislature has enacted a law which requires an order to obtain records, that Federal or State law stands.

That seems pretty simple. We have worked on these issues. We should not work on them in haste.

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This is a very complex time. It is no ordinary time for our country. This process has to remember those fourth amendment rights that we have so diligently fought for in the past. I urge my colleagues to support this amendment.

The PRESIDING OFFICER. The Senator from Wisconsin.

Mr. FEINGOLD. Mr. President, I am grateful for the remarks of the Senator from Washington. I am afraid we are going to read them in a few years and wish maybe we listened more closely to what we are doing on this particular provision.

I reserve the remainder of my time.

The PRESIDING OFFICER. Who yields time?

The Senator from Vermont.

Mr. LEAHY. Mr. President, the Senator from Utah wanted to say something for the record.

Mr. HATCH. Mr. President, I thank my colleagues.

I oppose Senator FEINGOLD's amendment to Section 215 of the bill. Section 215 allows federal law enforcement to apply for a court order to obtain records and other evidence in the course of an investigation to protect against international terrorism or clandestine intelligence activities. This provision has many safeguards built in to prevent its misuse.

For instance, the application must be made by the Director of the FBI or his designee, whose rank cannot be lower than an Assistant Special Agent in Charge, and specify that the records concerned are sought for an authorized investigation to protect against international terrorism or clandestine intelligence activities. Additionally, the investigation must be conducted pursuant to approved Attorney General guidelines and may not be conducted on a United States person solely upon the basis of activities protected by the first amendment to the Constitution.

As written, the provision balances the investigatory needs of the FBI with privacy concerns and provides adequate protection, while not allowing a host of state-law provisions to stand in the way of national security needs. Senator FEINGOLD's amendment would condition the issuance of the court order on a myriad of federal and state-law provisions. Such conditioning will have the effect of making investigations to protect against international terrorism more difficult than investigations of certain domestic criminal violations.

Senator FEINGOLD's amendment purports to preserve privacy protections in place for certain records. The amendment's effect, however, will be to place foreign international and intelligence investigations at a disadvantage to criminal investigations. For example, this amendment would make it more

difficult for the government to obtain business records in a foreign-intelligence or foreign counter-intelligence investigation through a court order than it is to obtain the same records in a criminal health-care fraud or child pornography investigation through a grand jury subpoena or administrative subpoena. (see 18 U.S.C. 3486).

Federal law enforcement officers investigating the activities of a terrorist organization or foreign intelligence target should not face a greater burden than that imposed on investigators of health-care fraud or child pornography.

I urge my colleagues to vote against this amendment.

Mr. LEAHY. Madam President, the administration originally wanted administrative subpoena authority in foreign intelligence cases for government access to any business record. I was able to reach agreement with the administration to subject this authority to judicial review and to bar investigations based on the basis of activities protected by the First Amendment.

The Feingold amendment would ensure that current laws providing safeguards for certain types of records, such as medical and educational records, be maintained. Again, it is unfortunate that the administration did not accept this amendment.

Mr. President, we are prepared to yield back the remainder of our time if the Senator from Wisconsin is prepared to yield back the remainder of his time.

Mr. FEINGOLD. If the majority leader is going to speak, I would like to respond. If not, I will simply yield back the remainder of my time.

Mr. LEAHY. I yield back the remainder of our time.

Mr. DASCHLE. Mr. President, I move to table the amendment and ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second?

There is a sufficient second.

The question is on agreeing to the motion. The clerk will call the roll.

The assistant legislative clerk called the roll.

Mr. NICKLES. I announce that the Senator from North Carolina (Mr. HELMS), the Senator from South Carolina (Mr. THURMOND), and the Senator from New Mexico (Mr. DOMENICI), are necessarily absent.

I further announce that if present and voting the Senator from North Carolina (Mr. HELMS) would vote ``yea.''

The PRESIDING OFFICER. Are there any other Senators in the Chamber desiring to vote?

The result was announced--yeas 89, nays 8, as follows:

[Rollcall Vote No. 301 Leg.]

YEAS--89

Akaka

Allard

Allen

Baucus

Bayh

Bennett

Biden

Bingaman

Bond

Boxer

Breaux

Brownback

Bunning

Burns

Byrd

Campbell

Carnahan

Carper

Chafee

Cleland

Clinton

Cochran

Collins

Conrad

Craig

Crapo

Daschle

DeWine

Dorgan

Durbin

Edwards

Ensign

Enzi

Feinstein

Fitzgerald

Frist

Graham

Gramm

Grassley

Gregg

Hagel

Hatch

Hollings

Hutchinson

Hutchison

Inhofe

Inouye

Jeffords

Johnson

Kennedy

Kerry

Kohl

Kyl

Landrieu

Leahy

Lieberman

Lincoln

Lott

Lugar

McCain

McConnell

Mikulski

Miller

Murkowski

Murray

Nelson (FL)

Nelson (NE)

Nickles

Reed

Reid

Roberts

Rockefeller

Santorum

Sarbanes

Schumer

Sessions

Shelby

Smith (NH)

Smith (OR)

Snowe

Specter

Stabenow

Stevens

Thomas

Thompson

Torricelli

Voinovich

Warner

Wyden

NAYS--8

Cantwell

Corzine

Dayton

Dodd

Feingold

Harkin

Levin

Wellstone

NOT VOTING--3

Domenici

Helms

Thurmond

Mr. LEAHY. I move to reconsider the vote.

Mr. DASCHLE. I move to lay that motion on the table.

The motion to lay on the table was agreed to.

NORTHERN BORDER SECURITY

Mr. STEVENS. Mr. President, I thank the members of the Judiciary Committee, especially Chairman LEAHY and Senator Hatch for their hard work on this important legislation. This bill will give the administration an increased ability to fight terrorism on many fronts. One section of the bill that is extremely important to my state addresses Northern Border Security. This bill will triple the number of Border Patrol, Customs Service, and INS inspectors along America's northern borders. It also authorizes $100 million to improve INS and Customs technology and for additional equipment for monitoring the northern borders. Alaska and Alaskans are in a unique position. One section of our northern boarder stretches from Maine through, my good friend's home state of, Vermont all the way to Washington State. A second section is that of my home State. As you know we are the largest State in the Nation with an enormous border with Canada that runs over 1,538 miles. We have one of the busiest international cargo airports in the world, which has lost a number of carriers since the September 11 attacks due to grossly inadequate staffing at our secure, sterile customs facility. We also have several major international ports scattered throughout Alaska including the Port of Anchorage, which handles the most container traffic in Alaska; Dutch Harbor, which is America's busiest commercial fishing port; and Valdez, where millions of barrels of North Slope crude oil are sent by pipeline to the ``South 48.'' The sections of the bill that address the Northern Border Security do not mention Alaska specifically. I intended to offer an amendment to insure that we are part of the definition. But as my good friend the Senator from Vermont pointed out to me, other northern border States are not mentioned specifically either. I understand that it is the intent of this legislation that Alaska and all other states that border Canada

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are ``Northern Border'' States and that INS, Border Patrol, U.S. Customs service and others should look at all of these states when addressing security issues. I would ask the manager of this bill if my understanding is correct?

Mr. LEAHY. Mr. President, the Senator from Alaska is correct. Alaska is definitely part of America's Northern Border and it was the intent of the committee and the Senate that it be part of that definition.

The unfolding facts about how the terrorists who committed the September 11 attack were able to enter this country without difficulty are chilling. Since the attacks many have pointed to our northern border as vulnerable to the entry of future terrorists. This is not surprising when a simple review of the numbers shows that the northern border has been routinely short-changed in personnel. While the number of border patrol agents along the southern border has increased over the last few years to over 8,000, the number at the northern border has remained the same as a decade ago at 300. This remains true despite the fact that Admad Ressam, the Algerian who planned to blow up the Los Angeles International Airport in 1999, and who has been linked to those involved in the September 11 attacks, chose to enter the United States at our northern border. It will remain an inviting target until we dramatically improve our security.

The USA Act includes my proposals to provide the substantial and long overdue assistance for our law enforcement and border control efforts along the Northern Border. My home State of Vermont has seen huge increases in Customs and INS activity since the signing of NAFTA. The number of people coming through our borders has risen steeply over the years, but our staff and our resources have not.

I proposed--and this legislation authorizes in section 402--tripling the number of Border Patrol, INS inspectors, and Customs Service employees in each of the States along the Northern Border. Alaska is certainly one of those States. I was gratified when 22 Senators--Democrats and Republicans--wrote to the President supporting such an increase, and I am pleased that the administration agreed that this critical law enforcement improvement should be included in the bill.

Mr. STEVENS. Mr. President, I thank the Senator from Vermont. With this clear statement of of the legislation I will not offer an amendment to specifically name Alaska as a Northern Border State.

ALIEN TERRORIST REMOVAL COURT

Mr. SMITH of New Hampshire. Mr. President, it had been my intention to offer an amendment which would strengthen provisions in the bill to deal with known terrorist aliens. As Senator LOTT well remembers, we worked in 1996, created the Alien Terrorist Removal Court, to hear cases against aliens who were known terrorist and to allow the Justice Department to deport these aliens without divulging classified information to the terrorist organization.

Mr. LOTT. I know the Senator from New Hampshire has been working a long time on this issue. In fact, when he sponsored this legislation back in 1995, I was a cosponsor of his bill. He has been a leader on this issue, he passed his legislation, and the Court was created.

Mr. SMITH of New Hampshire. That is correct. As the leader knows, there are some changes that are needed to improve the law, which is what my amendment was going to be about.

Mr. LOTT. I understand, and I agree that the law needs to be strengthened.

Mr. SMITH of New Hampshire. Mr. President, I would say to my colleagues, all the tools we are giving to the Justice Department in this bill are irrelevant if we cannot deport these terrorist who are living in our country preparing to terrorize American citizens. Page 162 of the bill says the Attorney General shall place an alien in removal proceedings within 7 days of catching him, or charge him with a criminal act, or else the bill says ``the Attorney General shall release the alien.'' Mr. President, the problem is that most of these terrorist have not committed criminal acts until they are ready to attack. Therefore, in most of these cases, the only option is to deport them.

Mr. LOTT. It is my opinion, that if we can deport known terrorist, we should do it. We cannot let the Justice Department be barred because the evidence was too sensitive to use in Court.

Mr. SMITH of New Hampshire. That is exactly the problem. Under current law, the Justice Department would have to give a declassified summary of all the secret evidence used in the deportation proceedings to the terrorist. Now, why would we compromise our intelligence sources and methods by revealing sensitive intelligence information to a known terrorist? The intelligence community would never allow it, and with good reason. But as a result, the Justice Department has never once used the alien terrorist removal court to deport anyone.

Mr. LOTT. That is my understanding, and it is a serious problem. I am in complete agreement with the Senator.

Mr. SMITH of New Hampshire. Mr. President, I thank the Leader. As I said, it had been my intention to offer an amendment to resolve this problem by eliminating the requirement for the Attorney General to give this sensitive information to the alien terrorist before deporting him. However, upon discussions with the Attorney General, who indicated to me that he supports this provision, and after discussions with the Leader, I have decided in the interest of moving this legislation to withhold my amendment at this time, with the assurance of the Leader and the Administration that we will work to solve this problem in conference.

Mr. LOTT. Let me say to the Senator that he can count me as a cosponsor of this amendment. It is an excellent amendment, it is needed, and I commit to the Senator that I will do my best to see that it is added in conference. I would further say to the Senator that I have also talked about this issue with the Attorney General, and he indicated to me that the Administration supports your amendment and that he will also work to support it in conference when we get to that point. So, I appreciate his withholding at this time so we can get this bill to conference where we can work to get the Smith amendment added to greatly improve this bill.

Mr. SMITH of New Hampshire. I thank the Leader for his strong support, and I am pleased that the administration is also supportive. I know how many long hours the Attorney General is putting in on this issue, and how committed he is to winning this war on terrorism. I look forward to passing this important provision which will be an invaluable tool for the Attorney General and the President in this war.

DETERRING MONEY LAUNDERING

Mr. SCHUMER. Mr. President, I would like to clarify with Chairman SARBANES my understanding of the provision in Title III, the anti-money laundering provisions in the antiterrorism package, entitled ``Section 314. Cooperative Efforts to Deter Money Laundering''.

As the Chairman is well aware, Section 314(b) is intended to address concerns about regulatory barriers that stand in the way of developing efficient mechanisms and services that financial institutions can use to fulfill their regulatory compliance obligations. The regulations to be issued by the Secretary, and potentially by bank and thrift regulators as well, could further this purpose by reconciling rules that could be interpreted in a way that places conflicting burdens on financial institutions.

Does that comport with the Chairman's understanding of the intent of the provision and how that intent could best be carried out by the regulators?

Mr. SARBANES. I thank the Senator for his question. Yes, that is also my understanding of Section 314.

Mr. CORZINE. Mr. President, I am going to support this legislation, and I want to commend the leadership--Senators DASCHLE and LOTT--and Senators LEAHY and HATCH, for their efforts in developing the bill. Clearly, there is no higher priority than combating terrorism and protecting our national security. At the same time, I do have real concerns about the process by which this legislation has come to the floor, and about the implications of some provisions for fundamental civil liberties.

There are several provisions in this legislation that make a real, positive contribution to the fight against terrorism. Other senators have discussed

[Page: S10588]

some of the highlights in more depth, so let me just focus on a few.

First, this bill includes legislation approved by the Senate Committee on Banking, Housing, and Urban Affairs, on which I sit, that will help authorities crack down on money laundering. This is essential if we are to deprive terrorists of resources. The bill will require additional reporting of suspicious transactions, require identification of the foreign owners of certain U.S. accounts, and impose other requirements on financial institutions to give authorities a greater ability to identify and prosecute money launderers. I also note that the bill includes a provision I authored that calls for a study into the possibility of expanding the legislation to include hedge funds and other investment services that also can be used by terrorists to launder money.

Beyond the money laundering provisions, I also am pleased that this bill provides additional funding for the victims of terrorism. Coming from New Jersey, where thousands of our residents have been victimized by the tragedy at the World Trade Center, this is especially important to me. In my view, we as a nation have a responsibility to ensure that terrorism victims and their families are not left alone and uncompensated. That is why I am pleased that the bill would replenish the antiterrorism emergency reserve, replace the annual cap on the Crime Victim Fund, authorize private contributions to the fund, and strengthen services for victims in other ways. While this is not all that we should be doing for victims and their families, I appreciate the work of the leaders in focusing on their needs.

I also pleased that the bill would triple the number of Border Patrol, Customs Service and immigration inspectors at our northern border. This would significantly enhance security over an area that, until now, has been seriously understaffed. The bill also authorizes $100 million to improve INS and Customs technology and additional equipment for monitoring the U.S.-Canada border.

In addition, I want to highlight language in this bill that would establish two new crimes related to bioterrorism, including provisions to prohibit certain people from possessing a listed biological agent or toxin. There are many other things we need to do to prepare for the threat of a biological or chemical attack, and I have introduced related legislation, S. 1508, that would require states to develop coordinated plans, and that would provide additional resources for hospitals and other health care providers. The threat of

bioterrorism is real, and I would hope that our leaders will bring related legislation to the Senate floor as soon as possible.

While I support the provisions in this bill on money laundering, victim services, border enforcement, and bioterrorism, I do have serious concerns about the way this bill was put together, and about other provisions that raise serious questions about the protection of civil liberties.

It is deeply troubling to me that we would be taking up a bill that deals with such sensitive civil liberties matters without comprehensive hearings, and without even consideration by the relevant committee. We are talking about a 243-page bill that was developed behind closed doors by a handful of people operating under enormous time pressure. This is a bill that raises fundamental questions that go to the very essence of our democracy, and our freedoms. It's not something that should be done in haste, with so little opportunity for input from outside experts, the public, and all senators.

Perhaps because the legislation was developed so quickly, and in an environment so dominated by great public anxiety about security, there is a real risk that we will make serious mistakes.

I am especially concerned about the provisions in this bill that require the detention of immigrants who are not terrorists, who are not criminals, but are merely suspected of future wrongdoing. In fact, these provisions go further than that. Lawful permanent residents who are charged with being deportable on terrorism grounds could be held indefinitely even if an immigration judge determines that the terrorism charges are false.

I understand that we need to give the government sufficient authority to protect Americans from those who pose a real threat to public safety. But this provision goes too far. And I hope it can be corrected in conference.

Similarly, there are other provisions of this legislation that seem very loosely drafted, and that could, perhaps unintentionally, lead to infringement on important civil liberties. For example, many have raised serious questions about provisions relating to law enforcement surveillance of Internet and telephone use, and about other provisions that give the government extensive new powers to conduct secret searches. These and other provisions do not seem to have received adequate scrutiny. I am hopeful that they can be examined more closely in conference, and any needed improvements can be made before the legislation is sent to the President.

I also would urge our conferees to accept a provision, like one included in the House version of this legislation, that would set a time limit on the application of certain provisions that pose the greatest threats to civil liberties. In my view, that's especially important since we have rushed this legislation through the Senate so quickly. As I said, I am hopeful that we can identify and correct any mistakes in conference. But we still seem to be operating on a rush basis, and I suspect that some mistakes are inevitable. Given the stakes involved, I think it would be better to make many of these provisions temporary, and then revisit these issues when we have more time to thoroughly consider all their implications.

In the end, while I do have serious concerns about certain aspects of this legislation, I have decided to support the effort to move it to conference. Our nation has just suffered the most horrendous act of terrorism in our history, and we are facing serious threats of other terrorist attacks. A vast, well-organized and well-funded terrorist network has gone to war against our nation. And while we should not overreact, or erode basic freedoms, we do have to defend ourselves.

We must give our law enforcement officials the tools they need to find and destroy these terrorist networks. And this legislation should help. But we need to continue to review and improve its provision as we go to conference. And we will need to continue to closely review the implementation of the legislation after it is enacted.

I yield the floor.

Ms. CANTWELL. Mr. President, I support this bill, but I do so only with some reservations.

We are giving broad new powers to our law enforcement and intelligence communities--without the traditional safeguards of judicial review and congressional oversight.

I believe that many provisions of the bill, particularly those sections dealing with electronic eavesdropping and computer trespass, remain seriously flawed and may infringe on civil liberties.

I am voting for this bill today with the strong hope that it will be improved in a conference with the House. As it currently stands, the Senate bill breaks down the traditional separation of domestic criminal matters governed by the fourth amendment right against unjustified search and seizure--from the gathering of international intelligence information traditionally gathered without the same concern for constitutional rights.

I strongly believe that we should have included in this bill a sunset provision that would give Congress the opportunity to reassess whether these new tools are yielding the intended results in the war on terror, and I am hopeful that the final bill will emerge with this and other improvements.

If this bill is not improved through a conference process or other negotiation, I reserve the right to vote against a conference report.

However, I also believe this bill contains many provisions that will significantly advance our battle against terrorism. I thank the Chairman for his hard work on these provisions and appreciate his efforts particularly to strengthen security on our northern border.

Among the most important provisions in this bill is the authorization to triple staffing across our northern border.

These increases in manpower are desperately needed. The northern border is

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patrolled by only 300 border patrol agents in contrast to the 9,000 on the southern border. More critically, at points of entry where suspect persons have repeatedly tried to enter or have entered, we currently lack sufficient staffing to allow Customs and INS inspectors and INS agents to do their job well. We place a tremendous responsibility on the individuals charged with deciding whom to admit and whom to turn away.

One additional new tool this bill provides is the establishment of a visa technology standard to help secure our border. I personally worked to get language included in this bill that requires the State Department and the Department of Justice to develop a shared technology standard--so that we can be certain each individual who seeks entry into our country on a visa--is the person he or she claims to be.

American citizenship comes with deeply valued privileges and rights. One of the

most basic of those rights is privacy. To require a fingerprint or a digital photograph of an alien seeking to enter our country is a reasonable and effective way to improve our ability to keep terrorists out of this country while still welcoming a vibrant flow of legal immigrants.

Unfortunately, aspects of this bill that impose unreasonable and unwarranted requirements on legal immigrants, greatly expand electronic eavesdropping, and potentially provide law enforcement easy access to some types of email communications--remain troubling.

I would like to believe that the expansion of the ability of the government to place wiretaps on the lines of American citizens--done in secret with insignificant reporting or opportunity for oversight by the Congress--will not be abused.

I would like to believe that technologies like that technologies like Carnivore will not be used to derive content from email communications.

But I am skeptical.

Several other aspects of this bill, when taken together, also have the potential to interfere with Americans' enjoyment of their right to privacy without providing value in the fight against terrorists.

Those of us who feel strongly about how new powers might chip away at traditional privacy rights will closely watch how law enforcement uses these tools.

The events of September 11 have changed us as a country forever. We have been attacked on our own soil. Thousands have died, thousands more have been injured. Very simply, we must do all that we can to stop terrorism by finding and disrupting terrorist activities here and abroad. The challenge we face is to do this without compromising the value that make Americans unique and have allowed us to become great: respect for personal autonomy and the rights of the individual; and tolerance of all regardless of race or religion.

While I will vote for this bill, I also promise to engage in vigilant oversight of these new powers, and I urge those in the law enforcement and intelligence communities to use these powers wisely and with great deliberation.

Mr. EDWARDS. Mr. President, I rise in support of S. 1510, the Uniting and Strengthening America Act.

In the aftermath of September 11, we face two difficult and delicate tasks: to strengthen our security in order to prevent future terrorist attacks, and at the same time, to safeguard the individual liberties that make America a beacon of freedom to all the world.

I believe that when the President signs this anti-terrorism legislation into law, we will have achieved those two goals as best we now can.

The act is a far-reaching bill. I will mention just a few key aspects of that bill.

First, the legislation brings our surveillance laws into the 21st century. Here are two of many examples. Under current law, the FBI can use a basic search warrant to access answering machine messages, but the FBI needs a different kind of warrant to get to voice mail. This law says the FBI can use a traditional warrant for both. Another example: Under current law, a Federal court can authorize many electronic surveillance warrants only within the court's limited jurisdiction. If the target of the investigation is in the judge's jurisdiction, but the subject of the warrant is technically an internet service provider located elsewhere, the warrant is no good as to that ISP. This bill allows the court overseeing an investigation to issue valid warrants nationwide.

Second, the act gives law enforcement officers and the foreign intelligence community the ability to share intelligence information with each other in defined contexts. For example, the act says that under specified conditions, the FBI may share wiretap and grand jury information related to foreign- and counter-intelligence. I appreciate concerns that this information-sharing authority could be abused. Like Chairman LEAHY, I would have preferred to see greater judicial oversight of these data exchanges. But I also believe we simply cannot prevail in the battle against terrorism if the right hand of our government has no idea what the left hand is doing.

Third, the act enhances intelligence authorities under the Foreign Intelligence Surveillance Act (FISA). When I met with FBI agents in North Carolina shortly after September 11, they told me their number one priority was to streamline the FISA process. We've done that. We've said, for example, that the renewal periods of certain key FISA orders may be longer than the initial periods. This makes sure the FBI can focus on investigations, not duplicative court applications.

A more controversial change concerns the purpose of FISA surveillance. Under current law, a FISA wiretap order may only enter if the primary purpose of the surveillance is foreign intelligence gathering. The administration initially proposed changing the ``primary purpose'' requirement to a requirement of ``a purpose,'' any foreign intelligence purpose. At a recent Intelligence Committee hearing, I was one of several Senators to raise constitutional questions about the Administration's initial proposal. The last thing we want is to see FISA investigations lost, and convictions overturned, because the surveillance is not constitutional. S. 1510 says that FISA surveillance requires not just ``a purpose,'' but ``a significant purpose,'' of foreign intelligence gathering. That new language is a substantial improvement that I support. In applying this ``significant purpose'' requirement, the FISA court will still need to be careful to enter FISA orders only when the requirements of the Constitution as well as the statute are satisfied. As the Department of Justice has stated in its letter regarding the proposed FISA change, the FISA court has ``an obligation,'' whatever the statutory standard, ``to reject FISA applications that do not truly qualify'' as constitutional. I anticipate continued close congressional oversight and inquiry in this area.

A forth step taken by this legislation is to triple the number of Border Patrol, INS inspectors, and Customs Service agents along our 4,000-mile northern border. Today there are just 300 border patrol agents to guard those 4,000 miles. Orange cones are too often our only defenses against illegal entries. This bill will change that.

Fifth, the bill expedites the hiring of translators by the FBI. It is unthinkable that our law enforcement agents could have critical raw intelligence that they simply cannot understand because they do not know the relevant language. This statute will help to change that state of affairs.

Finally, the bill makes the criminal law tougher on terrorists. We make it a crime to possess a biological agent or toxin in an amount with no reasonable, peaceful purpose, a crime to harbor a terrorist, a crime to provide material support to terrorism. And we say that when you commit a crime of terrorism, you can be prosecuted for that crime for the rest of your life, with no limitations period. Statutes of limitations guarantee what lawyers call ``repose.'' Terrorists deserve no repose.

As Chairman LEAHY and Senator HATCH have both said, this legislation is not perfect, and the House-Senate Conference may yet make improvements. For example, the Conference might clarify that, as to aliens detained as national security threats, the law will secure the due process protections and judicial review required by the Constitution and by the Supreme Court's recent decisions in Zadvydas v. Davis and INS v. St. Cyr. The Conference might also sensibly include a

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sunset of the new surveillance authorities, ensuring that Congress will reconsider this bill's provisions, which touch such cherished liberties, in light of further experience and reflection.

The bill is not perfect, but it is a good bill, it is important for the Nation, and I am pleased to support it.

Mr. KYL. Mr. President, I rise in strong support of the antiterrorism bill, S. 1510. The bill would provide our nation's law enforcement with important tools to more effectively investigate and prevent further attacks against the people of the United States.

At the outset, in response to concerns that some have raised, I want to make clear that we are not rushing to pass ill-conceived legislation.

During the past two Congresses, when I chaired the Judiciary Committee's Subcommittee on Technology and Terrorism, the Subcommittee held 19 hearings on terrorism. I want to repeat that: 19. The witnesses who appeared before the Subcommittee included the then-Director of the FBI Louis Freeh and representatives of all three of the congressionally-mandated commissions on terrorism that have issued reports over the last two years. Additional hearings on terrorism were held by the full Judiciary Committee and by other committees.

Many of the provisions contained in the Attorney General's proposed legislation mirror the recommendations of one or more of the major terrorism commissions and have already been examined by the committee of jurisdiction. In fact, some of these provisions have already been voted on and passed by the Senate.

Indeed, as I will discuss more fully in a minute, the language sent forward by the Attorney General to establish nationwide trap and trace authority was included in the Hatch-Feinstein-Kyl Amendment to the recently passed Commerce, Justice, State Appropriations bill. Much of the remaining language in that amendment was included in the Counterterrorism Act of 2000, which the Senate passed last fall, after a terrorist attack on the U.S.S. Cole killed 17 American sailors and injured another 39. That bill was based on recommendations of the bipartisan, congressionally-mandated National Commission on Terrorism, known as the Bremmer Commission, which was established in 1998 in response to the embassy bombings in Tanzania and Kenya.

One particularly important provision, which was included in the both the CJS bill and the current bill, updates the law to keep pace with technology. The provision on pen register and trap and trace devices 1. Would allow judges to enter pen/trap orders with

nationwide scope and 2. Would codify current caselaw that holds that pen/trap orders apply to modern communication technologies such as e-mail and the Internet, in addition to traditional phone lines.

Nationwide jurisdiction for a court order will help law enforcement to quickly identify other members of a criminal organization such as a terrorist cell. Indeed, last year Director Freeh testified before the Terrorism Subcommittee that one of the problems law enforcement faces is ``the jurisdictional limitation of pen registers and trap-and-trace orders issued by federal courts.'' [Source: Hearing before the Subcommittee on Technology, Terrorism, and Government Information of the Senate Committee on the Judiciary, 106th Cong, 2nd Sess. (March 28, 2000), at 31.]

He continued: ``Today's electronic crimes, which occur at the speed of light, cannot be effectively investigated with procedural devices forged in the last millennium during the infancy of the information technology age.'' [Source: Id. at 32.]

Currently, to track a communication that is purposely routed through Internet Service Providers located in different states, law enforcement must obtain multiple court orders. This is because, under current law, a Federal court can order only those communications carriers within its district to provide tracing information to law enforcement.

According to Director Freeh's testimony before the Terrorism Subcommittee, ``As a result of the fact that investigators typically have to apply for numerous court orders to trace a single communication, there is a needless waste of time and resources, and a number of important investigations are either hampered or derailed entirely in those instances where law enforcement gets to a communications carrier after that carrier has already discarded the necessary information.'' [Source: Id. at 31.]

Section 216 of the Senate bill solves this problem.

I would also like to address another important provision.

Section 802 is intended more clearly to criminalize the possession of biological and toxin agents by those who should not possess them. This section amends the implementing legislation for the 1972 ``Convention on the Prohibition of the Development, Production, and Stockpiling of Bactiological, Biological, and Toxin Weapons and on their Destruction'', BWC. Article I of the BWC prohibits the development, production, stockpiling, acquisition, or retention of Microbial or other biological agents, or toxins,

whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective, or other peaceful purposes. It is not the intent of the BWC, nor is it the intent of Section 802, to prevent the legitimate application of biological agents or toxins for prophylactic, protective, bona fide research, or other peaceful purposes. These purposes include, inter alia, medical and national health activities, and such national security activities as may include the confiscation, securing, and/or destruction of possible illegal biological substances.

Finally, let me address briefly the concern voiced by some that we are in danger of ``trampling civil liberties.'' I reiterate that we are not rushing, that we have had thorough, deliberative hearings, and that many of the proposals have already been passed by the Senate. Nothing in the current bill impinges on civil liberties. The bill would give Federal agencies fighting terrorism the same tools we have given those fighting illicit drugs, or even postal fraud. Many of the tools in the bill are modernizations of the criminal laws, necessitated by the advent of the Internet.

While some of these tools are extremely helpful in terrorism investigations, it makes no sense to refuse to apply these common sense changes to other crimes that are committed, like kidnapping, drug dealing, and child pornography. It is unwise to limit these tools to only terrorism offenses because often, at the outset of an investigation of a particular person or crime, law enforcement does not know what you are dealing with. A credit-card fraud case or a false immigration documents case may turn out to be connected to funding or facilitating the operations of a terrorist group. We should give law enforcement the tools it needs to have the best chance of discovering and disrupting these activities.

We have a responsibility to the people of this nation to ensure that those who are charged with protecting us from future terrorist attacks are empowered to do so. This is not a zero sum game. We can both ensure our security and protect our liberties.

We cannot afford to lose this race against terror, and we cannot afford to give the enemy in this war a full lap head-start. I support this bill. I commend President Bush and General Ashcroft for submitting a sound proposal to the Senate, and for their tremendous efforts during the past month.

Mr. President, in addition to the all of the other provisions in this antiterrorism legislation that will provide our law enforcement communities with the tools to weed out and stop terrorism, I want to express my support for the immigration provisions upon which the administration, Senators HATCH, KENNEDY, LEAHY and I have reached agreement, and which are included in this bill.

Even with the passage of these provisions, however, the United States will continue to face overwhelming infrastructure and personnel needs at our consular offices abroad, along both the southern and northern border, and in our immigration offices throughout the United States. In conjunction with increasing personnel and infrastructure, the U.S. must deprive terrorists of the ability to present altered international documents, and improve the dissemination of information about suspected

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terrorists to all appropriate agencies. Senator FEINSTEIN and I, in a hearing of the Terrorism Subcommittee of the Judiciary Committee this Friday, will continue to assess these needs by hearing from Justice and State Department officials.

So, our actions on immigration reform as it is relates to terrorism must go beyond the scope of this anti-terrorism package. With that said, this bill will certainly provide a better legal framework for keeping foreign terrorists out of the United States, and detaining them should they enter.

First, this antiterrorism bill clarifies that the Federal Bureau of Investigation is authorized to share data from its ``most wanted list,'' and any other information contained in its national crime-information system, with the Immigration and Naturalization Service and the State Department. This will help the INS and State Department identify suspected terrorists before they come to the United States, and should they gain entry, will help track them down on our soil. It also allows the State Department, during a U.S. criminal investigation, to give foreign governments information on a case-by-case basis about the issuance or refusal to issue a U.S. visa.

The bill will also clarify U.S. law prohibiting the entry of, and requiring the removal of, individual alien terrorists. It will probably surprise the Members of this body a great deal to know that, under current law, a terrorist alien is not considered either inadmissible to, or deportable from, the United States even if he or she has ``endorsed or

espoused terrorist activity that undermines the efforts of the United States to fight terrorism,'' or has provided ``material support to a terrorist organization.'' Nor is an individual deportable for being a ``representative of a terrorist organization.'' The anti-terrorism bill makes it clear to U.S. officials considering whether to allow someone to come to the country, that a person meeting any one of these criteria is not welcome here.

In addition, the anti-terrorism package that we are debating today further defines what is considered by the United States to be a terrorist organization. Under current law, a terrorist organization must be designated by the Secretary of State under Section 219 of the Immigration and Nationality Act. This process can take several months, and has been criticized by some experts as potentially politically corruptible. Under this Senate anti-terrorism package, Section 219 remains in effect. A separate designation process is added, whereby an organization can be designated by the Secretary of State or the Attorney General, in consultation with each other, with seven days' notice to the leadership of the House and Senate and the congressional committees of jurisdiction. Additionally, an organization, whether or not it is formally designated by the Secretary of State or the Attorney General, can be considered to be terrorist if it is made up of two or more individuals who commit or plan to commit terrorist activities.

The Senate's antiterrorism package also has provisions regarding temporary detention. It allows for the temporary detention of aliens who the Attorney General certifies that he has ``reasonable grounds to believe is inadmissible or deportable under the terrorism grounds.'' This compromise represents a bipartisan understanding that the Attorney General of the United States needs the flexibility to detain suspected terrorists. Under the compromise that Members have reached, the Attorney General must charge an alien with a deportable violation or he must release the alien. The underlying certification, and all collateral matters, can be reviewed by the U.S. District Court of the District of Columbia, and the Attorney General is required to report to Congress every six months on the use of this detention provision.

Finally, the Senate package, as a result of amendments added by Senator BYRD, will determine whether ``consular shopping''--i.e., someone has a visa application pending from his or her home country, but goes to another country for adjudication--is a problem. If so, the Secretary of State must recommend ways to remedy it. Another authorizes $36.8 million for quick implementation of the INS foreign student tracking system, a program that I have repeatedly urged be implemented.

As former chairman and now ranking Republican of the Judiciary Committee's Terrorism Subcommittee, I have long suggested, and strongly supported, many of the anti-terrorism and immigration initiatives now being advocated by Republicans and Democrats alike. In my sadness about the overwhelming and tragic events that took thousands of precious lives, I am resolved to push forward on all fronts to fight against terrorism. That means delivering justice to those who are responsible for the lives lost on September 11, and reorganizing the institutions of government so that the law-abiding can continue to live their lives in freedom.

Mrs. FEINSTEIN. Mr. President, I rise in strong support of the consensus terrorism bill now on the floor of the U.S. 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 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.

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.

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.

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 individuals 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

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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.

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.

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.

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 one, the information can is foreign intelligence and counterintelligence information, as defined by statute; two, the information is given to an official with a need to know in the performance of his or her official duties; and three, limitations on public or other unauthorized disclosure would remain in force.

This balance makes sense, I believe 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.

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 one, limit to 7 days the length of time an alien may be held before being charged with criminal or immigration violations, two, allow the Attorney General to delegate the certification power only to the INS Commissioner, and three, specify that the merits of the certification is subject to judicial review.

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 even 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.

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 nonresident 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.

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.

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

FISA AND PEN REGISTER/TRAP AND TRACE

Ms. CANTWELL. Mr. President, I would like to raise several concerns regarding the provisions of this legislation, the USA Act of 2001, that expand wiretapping authority under the Foreign Intelligence Surveillance Act of 1978, and amend Federal pen register and trap and trace authorities.

Both of these changes purport to improve communication between law enforcement and intelligence operatives. There is a difference, however, between facilitating the sharing of information between the law enforcement and intelligence communities, and blurring the

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line between the missions of the two communities. Where information is sought for the purpose of law enforcement, we must ensure that fourth amendment protections apply. Much of the fear about the legislation is based on legitimate concern that information gathered ostensibly for intelligence and defense purposes could be used for law enforcement purposes. The intelligence community does not prosecute and lock up its targets; it uses information to intervene against foreign nationals seeking to harm America. But the law enforcement community has a different mission, to catch and prosecute criminals in our courts of law. Because law enforcement acts upon U.S. citizens, it must do so within the bounds of the Constitution. The differences in these missions must be acknowledged, and we must be vigilant to maintain the distinctions.

We can all agree that the events on September 11 have focused America on the fight against terrorism, and we applaud the efforts of the administration in the weeks since that tragic day. Clearly, there were failures in our investigative network, and this legislation will address some of those failures, allowing greater sharing of information that could foil terrorists before they carry out their brutal schemes against innocent civilians.

I appreciate Chairman LEAHY's tireless efforts to facilitate our intelligence gathering authorities while preserving our constitutional rights. The negotiations have been intense, but these are difficult and divisive issues. Given the time frame, Chairman LEAHY's charge has not been an easy one, but I appreciate the substantial progress he has made.

I remain concerned that some of the legislative changes fail to balance the increased powers to law enforcement against the need to protect the civil liberties of Americans. With these changes to FISA, it will be much more likely that the FBI will be able to obtain secret FISA wiretaps on American citizens. That information may not only be used for intelligence purposes, but also in a criminal prosecution, without complying with the normal requirements of a title III wiretap and the safeguards it provides to adhere to the fourth amendment. Some have warned that this language leaves room for ``fishing expeditions'' rather than properly authorized law enforcement activities. I would hope that this is not the case.

Although the language has been improved from the administration's original proposal and now would require that ``a significant,'' rather than simply ``a,'' purpose for the wiretap must be the gathering of foreign intelligence, the possibility remains that the primary purpose of the wiretap would be a criminal investigation, without the safeguards of the title III wiretap law and the protections under the fourth amendment that those fulfill.

I would like to ask the Chairman of the Judiciary Committee whether he interprets this language in this same way.

Mr. LEAHY. Yes, the Senator from Washington is correct. While improved, the USA Act would make it easier for the FBI to use a FISA wiretap to obtain information where the Government's most important motivation for the wiretap is for use in a criminal prosecution. This is a disturbing and dangerous change in the law. The Justice Department concedes that ``the few courts that have addressed the issue have followed a primary purpose test'', October 1, 2001 Letter from Daniel J. Bryant, Assistant Attorney General, p. 13.

I appreciate the administration's agreement to move off its original position of changing the law to only require the FISA surveillance to ``a'' purpose of collecting foreign intelligence information. Indeed, the Justice Department's own constitutional analysis provided to the Committee at the request of our Members does not even attempt to justify the original proposal, but instead presents argument for why a change to ``a significant" purpose would be constitutional.

I remain disappointed with the administration's insistence on forcing any change on this important statutory requirement. FISA was enacted for the express purpose of clarifying that different legal standards apply to those gathering foreign intelligence than to those seeking criminal evidence. This new provision will blur that distinction, and it is indeed very problematic in my mind.

Federal courts have upheld FISA on the basis that what is reasonable under the fourth amendment may vary when national security is at risk. Thus, a FISA wiretap does not have to be based on probable cause to believe a crime has been or is about to be committed, and no notice is given unless the person is prosecuted. Further, while judges review warrants on the merits when targets are U.S. persons, the primary purpose for the wiretap must be the protection of our national security. Upon satisfaction of that critical condition, the statute authorized the use of evidence obtained under a FISA wiretap for criminal prosecution.

Ms. CANTWELL. Mr. President, although much effort has gone into narrowing this provision to fit within the bounds of the Constitution, it would seem to me that this legislation may not stand up to this test, and thus may fail judicial scrutiny. Regardless, we cannot await court review. I believe Congress must keep watch over the use of this provision. May I ask the Chairman, do you agree that, under these circumstances, it is incumbent

upon the committee, which has jurisdiction over the Department of Justice, to maintain vigilant oversight of the Department in its use of FISA authorities after enactment of this legislation?

Mr. LEAHY. I agree with you completely, and you can rest assured that the Judiciary Committee under my chairmanship will conduct meaningful oversight, as we already have begun to do over the summer.

Although FISA requires oversight reporting to the Intelligence Committees, the law makes clear that other Committees may also have oversight jurisdiction. Section 108 of FISA, 50 U.S.C. 1808, states, ``Nothing in this title shall be deemed to limit the authority and responsibility of the appropriate committees of each House of Congress to obtain such information as they may need to carry out their respective functions and duties.'' Section 306 of FISA, 50 U.S.C. 1826, provides for semiannual reports from the Attorney General to the Intelligence and Judiciary Committees on the number of applications for physical search orders made, granted, modified, or denied, and the number of physical searches which involved the property of United States persons. The Judiciary Committee's responsibility will be greater under the amendment to FISA, because of the greater authority to use FISA for law enforcement purposes.

Ms. CANTWELL. Mr. President, similarly, I am concerned that revisions to the laws regarding pen registers and trap and trace devices may have fourth amendment implications. Although modified since we received the original language from the Administration, the new language could encourage greater use of technologies such as the FBI's ``Carnivore'' to access information that is protected by the fourth amendment.

The failure to properly define the term ``address'' in the e-mail context to exclude information protected by the Fourth Amendment will haunt us for a long time. And I regret this. Although it certainly can be said that new technologies are emerging and the definition may need be flexible, the term ``address'' presently is undefined and new in the context of our Federal criminal statutes. Because of this ambiguity, we may see law enforcement authorities take inconsistent approaches to filtering information pursuant to this new law. There is risk that some will obtain information, such as ``subject line'' information or URL codes, that may otherwise be protected by the fourth amendment. There is certain to be judicial scrutiny of this provision.

Mr. LEAHY. I agree with Senator Cantwell and thank her for bringing these concerns to the attention of this body. I share these concerns.

Ms. CANTWELL. I would like to suggest to the chairman, and I would be happy to work closely with the Chairman on this, that the General Accounting Office provide to the Senate Judiciary Committee every six months a report on the use of the FISA wiretap authorities, and the expanded pen register and trap and trace authorities, by the Federal Bureau of Investigation or other agencies within the Department of Justice. I would certainly not suggest compromising the security of our

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nation with such a report, so I would be content with closed-session hearings on the findings of such reports. But only with such oversight can we reasonably assure our constituents that the use of these new authorities is not impinging on our fourth amendment rights.

Mr. LEAHY. I agree with Senator Cantwell and I appreciate her efforts to suggest restraint at the Department of Justice to avoid misusing the new authorities we are contemplating using to address terrorism. I share her view that the GAO should undertake this important assignment and will work with her and other Senators to see it accomplished. We all need to make certain that these new authorities are not abused.

Ms. CANTWELL. I thank the chairman for his diligence in working to preserve our fundamental rights.

Mr. ENZI. Mr. President, I am proud to be a co-sponsor of S. 1510, the ``Uniting and Strengthening America Act'' or ``USA Act.'' This bill reflects a bipartisan effort to aid law enforcement, immigration, and the intelligence community in investigating, detaining, and apprehending suspected terrorists. This legislation follows lengthy committee inquiry, debate, and revision of legislation Attorney General Ashcroft proposed a few weeks ago and which sparked national debate over whether civil rights would be violated.

During the past few weeks, Senate leaders have been working tirelessly with Attorney General Ashcroft in order to create a bill that strengthens our existing laws with respect to apprehending terrorists, but still protects the civil rights of our citizens. This is an important mission for Congress. Everyone in America understands the need for enforcement, immigration and the intelligence community to have the tools necessary to find terrorists, cut-off their financial support, and bring them to Justice.

While I am committed to routing out terrorists here and abroad, I am equally committed to making sure the rights of innocent U.S. citizens are not violated. This includes the privacy and property rights our constitution affords and that make this country so great. I believe this bipartisan bill does both. This legislation strikes a balance between protecting our civil rights and assisting Attorney General Ashcroft and others to do their jobs. While the Senate and House may later debate some of the provisions in this legislation, be assured that every member of Congress is united in this mission. We are totally committed to passing anti-terrorism legislation and apprehending the bin Ladens of this world.

Mr. WELLSTONE. Mr. President, this is one of the most important pieces of legislation we will consider during this Congress. The horrific loss of life and destruction that occurred on September 11, the crime against humanity, changed us as a country. The Uniting and Strengthening America Act is an opportunity to help ensure that such terrorist attacks do not occur again. We need to improve all aspects of our domestic security, including by enhancing our intelligence capacities so that we can identify possible future attacks in their planning stages and prevent them from happening. We must be vigilant and willing to invest the resources and time required to gather the information that we need to protect ourselves and our way of life.

I appreciate the enormous amount of time and energy that my colleague from Vermont and others have put into this legislation. They have done their best to balance the risk of further terrorist attacks with possible risks to civil liberties. The bill updates and improves a number of existing laws, it creates important new security statutes, and it authorizes new money for programs that will bring much needed relief to victims of terrorist attacks. I have reservations about certain provisions of the bill as they might affect civil liberties. I wish that it were more tightly targeted to address only actions directly related to terrorism or suspected terrorism. And I hope that by the time it passes as a conference report the bill will contain a sunset provision. But I support the bill today as a step toward conference, and as an important and needed strengthening of our security from horrific attacks such as that of September 11.

The bill expands the Regional Information Sharing Systems Program to promote information sharing among Federal, State and local law enforcement agencies in their anti-terrorism efforts. State and local law enforcement have a critical role to play in preventing and investigating terrorism, and this bill provides them benefits appropriate to such duty. The bill streamlines and expedites the Public Safety Officers' Benefits application process for family members of fire-fighters, police officers and other emergency personnel who are killed or suffer a disabling injury in connection with a future terrorist attack. And it raises the total amount of the Public Safety Officers' Benefit Program payments from approximately $150,000 to $250,000.

This bill will also make an immediate difference in the lives of victims of terrorism and their families. It refines the Victims of Crime Act and by doing so improves the way in which its crime fund is managed and preserved. It replenishes the emergency reserve of the Crime Victims Fund with up to $50 million and improves the mechanism to replenish the fund in future years. The USA Act also increases security on our Northern Border, including the border between Canada and my State of Minnesota. It triples the number of Border Patrol, Customs Service and INS inspectors at the Northern Border and authorizes $100 million to improve old equipment and provide new technology to INS and the Customs Service at that border.

On the criminal justice side, the bill clarifies existing ``cybercrime'' law to cover computers outside the United States that affect communications in this country and changes sentencing guidelines in some of these cases. It provides prosecutors betters tools to go after those involved in money-laundering schemes that are linked to terrorism, and it adds certain terrorism-related crimes as predicates for RICO and money-laundering. It creates a new criminal

statute targeting acts of terrorism on mass transportation systems, and it strengthens our Federal laws relating to the threat of biological weapons. The bill will enhance the Government's ability to prosecute suspected terrorists in possession of biological agents. It will prohibit certain persons, particularly those from countries that support terrorism, from possessing biological agents. And it will prohibit any person from possessing a biological agent of a type or quantity that is not reasonably justified by a peaceful purpose.

The bill also broadens the authority of the President to impose sanctions on the Taliban regime. Regarding criminal penalties for those convicted of terrorist acts, it provides a fair definition of what constitutes ``terrorism'' and ensures that penalties more closely reflect the offenses committed by terrorists. Again, I'd like to thank my colleague from Vermont and others who worked on these penalty provisions. The administration's initial proposal was too broad in this area, and the current bill provides a fair alternative.

I strongly support these needed provisions. Still, I do have concerns about the possible effect on civil liberties of the bill's measures to enhance electronic surveillance and information sharing of criminal justice information, while at the same time reducing judicial review of those actions. I also hope that the bill's provisions to expand the Government's ability to conduct secret searches, as well as searches under the Foreign Intelligence Surveillance Act, will not be abused.

I believe we will need to monitor the use of new authorities provided to law enforcement agents to conduct surveillance of internet communications. The same is true of the bill's changes to laws allowing the sharing of confidential criminal justice information with various Federal agencies. I would prefer the requirement of judicial review before disclosure, which is contained in the House version of this bill. Likewise, I believe the House of Representatives' decision not to include this bill's expansion of the Government's ability to conduct secret, or so-called ``Sneak-n-Peek,'' searches, was correct. I hope the safeguards against abuse we have added in our bill--such as the prohibition against the Government seizing any tangible property or stored electronic information unless it makes a showing of reasonable necessity, as well as the requirement that notice be given within a reasonable time of the

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execution of a sneak-n-peak warrant--will prove sufficient.

The bill broadens the Foreign Intelligence Surveillance Act, FISA, by extending FISA surveillance authority to criminal investigations, even when the primary purpose is not intelligence gathering. The bill limits this ability by authorizing surveillance only if a significant purpose of it is to gather intelligence information. I hope this new FISA authority will be used for the purpose of investigating and preventing terrorism or suspected terrorism, and not for other domestic purposes.

Mr. President, we have done our best in this bill to maximize our security while minimizing the impact some of these changes may have on our civil liberties. Nearly all of us have probably said since September 11 that if that day's terror is allowed to undermine our democratic principles and practices, then the terrorists will have won a victory. We should pass this bill today. And we should also commit ourselves to monitoring its impact on civil liberties in the coming months and years.

I believe a sunset provision that ensures that review is essential. The bill before us today is good, but there are provisions that are too broad. There are parts that should be more narrowly focused on combating terrorism. I hope these are the concerns that will be addressed in conference. Mr. President, our challenge is to balance our security with our liberties. While it is not perfect, I believe we are doing that in this bill.

Mr. KOHL. Mr. President, I rise today to support S. 1510, the anti-terrorism bill.

To more effectively fight terrorism and those who perpetrate it, we need to improve law enforcement's intelligence gathering capability and enhance their ability to investigate and prosecute suspected terrorists. This measure does both. But let's also be realistic about the act. It will not solve all of law enforcement's problems in combating terrorism nor will it severely compromise our civil liberties. The truth lies somewhere in between.

The strongest proponents of the legislation argue that the bill primarily consists of long overdue updates of current laws, updates necessary because technology advances have allowed criminals and terrorists to stay a step, or two, ahead of law enforcement. Updates are necessary because the inability of Federal authorities to share information on suspected terrorists hampers criminal investigations. Updates are necessary because the penalties and limitations periods governing many terrorist crimes have been woefully inadequate. All of this is true. And for these reasons, I support the bill.

But, we shouldn't be lulled into thinking that this measure will solve our problems. Indeed, I asked the Attorney General whether the new powers granted in this bill could have prevented the events of September 11. He answered me honestly, saying that he could not make that guarantee. Yet, he added that these new tools would make it less likely that terrorism could strike in the same way again.

Tougher laws and penalties are an important part of our strategy to combat terrorism. That plan must also include more and better agents dedicated to gathering intelligence, an aggressive approach to preventing attacks, and patience from all Americans. Patience is essential because we will need to understand that we might have to temper our freedoms slightly in an effort to guarantee them.

Critics of this legislation caution us to be wary of compromising our liberties in an effort to make our Nation safer. They comment that sacrificing freedom gives the terrorists a victory. Those warnings do have merit.

Some of this bill's provisions do risk our civil liberties and ask Americans to sacrifice some privacy. This bill grants our prosecutors a great deal of discretion in enforcing the law and asks Americans to have faith that this power will not be abused. Most of us would rather not have our civil liberties depend on someone else's discretion.

That's why I believe many of this bill's provisions should lapse in two years and then be reconsidered by Congress. The House version of this bill reconciles the need for tough law enforcement with the concern for our civil liberties by sunsetting some of the most objectionable portions of the bill in two years. That is a good idea. Two years from now, we can take stock of where we are, how this bill has affected us, and whether the trust we show in law enforcement is warranted. I hope that the final version of this bill will adopt such a sensible approach.

I have never doubted that our country's law enforcement is the best in the world. They are dedicated, creative, committed, and decent. From local beat officers to the Director of the FBI, every one of them has a vital role to play in combating terrorism. We believe this bill will help them prevent terrorism when possible. It will help them catch wrongdoers. It will cut wrongdoers off from their support networks. It will guarantee stiff punishment for their criminal acts. It will deter others from following in the terrorists' footsteps. It is our responsibility to give law enforcement the tools they need in an increasingly complex world. It is their responsibility to use them wisely.

Ms. SNOWE. Mr. President, I rise today in support of the antiterrorism legislation we have before us.

First, let me say I am pleased to have also worked in conjunction with Senator Bond and Senator Conrad in supporting their legislation entitled ``The Visa Integrity and Security Act.'' This bill addresses many of the concerns I have, such as the importance of information sharing among Government law enforcement and intelligence agencies with the State Department and tightening tracking controls on those entering the United States on student visas, including those attending flight schools. These are critical issues, and I commend both Senators for their efforts.

Today, our men and women in uniform are on the frontlines in the war against terrorism. We salute their willingness to put themselves in harm's way in defense of freedom, and we pray for their safety and well-being. Here at home, we are working to secure our nation, and that is why I am pleased that we will pass this legislation in the Senate that will take strong measures to help prevent further terrorist attacks on American soil.

With this legislation, we will take reasonable, constitutional steps to enhance electronic and other forms of surveillance, without trampling on the rights of Americans. We will also institute critical measures to increase information sharing by mandating access to the FBI's National Crime Information Center, or NCIC, by the State Department and INS.

In our war against terrorism, Americans stand as one behind our President. It is equally critical that, in the all-out effort to protect our homeland, Federal agencies be united in securing American soil.

In that light, President Bush made exactly the right decision when he created the Office of Homeland Security, a national imperative in the wake of the horrific tragedies of September 11, and I commend him for appointing my former colleague, Pennsylvania Governor Tom Ridge, as its Director.

With a seat at the Cabinet table, Governor Ridge will literally be at the President's side, giving him the standing that will be required to remove jurisdictional hurdles among the 40-plus agencies he will be responsible for coordinating. Now, we will assist in that coordination by allowing INS and the State Department access to the information they need to make informed decisions about who we will grant entrance into this country.

I saw firsthand the consequences of serious inadequacies in coordination and communication during my 12 years as ranking member of the House Foreign Affairs International Operations Subcommittee and Chair of the subcommittee's Senate counterpart. In fact, I recently wrote an op-ed piece concerning my findings during that time and I would like to submit the entire text of that piece for the RECORD.

In conducting oversight of Embassy security as well as visa and consular operations, I became extensively involved with the issue of terrorism, co-drafting antiterrorism legislation with former Representative Dan Mica in the wake of 1983 and 1984 terrorist attacks against the U.S. Embassy and Marine barracks in Lebanon--traveling to Belgrade, Warsaw, and East Berlin to press government officials into helping

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stem the flow of money to the terrorist Abu Nidal and his organization--and investigating entry into the United States by radical Egyptian cleric Sheikh Omar Abdel Rahman, mastermind of the 1993 World Trade Center bombing.

As far back as our hearings on the 1985 Inman Report, commissioned by then-Secretary of State George Shultz in response to the attacks in Lebanon, it was abundantly clear that improved coordination and consolidation of information from agencies such as the FBI, CIA, DEA, Customs, INS and the State Department would be an essential step toward removing a vulnerability in our national security. That point was tragically underscored by our discovery that, astoundingly, in the period since 1987 when Sheikh Rahman was placed on the State Department lookout list, the Sheikh entered and exited the United States five times totally unimpeded.

But it got even worse. Even after the State Department formally issued a certification of visa revocation, he was granted permanent residence status by the INS. When he was finally caught on July 31, 1991, reentering the United States, he was immediately released back into U.S. society to allow him to pursue a multi-year appeal process.

As unbelievable as that may sound, just as unfathomable is the fact that, even after the 1993 attack on the World Trade Center, membership in a terrorist organization in and of itself--with the exception of the PLO--was not sufficient grounds for visa denial. Rather, the Immigration Act of 1990 required the Government to prove that an individual either was personally involved in a terrorist act, or planning one.

This absurd threshold made it almost impossible to block individuals, such as Sheikh Rahman, from entering the country legally. Legislation I introduced in 1993 removed that bureaucratic and legal obstacle--yet it took nearly 3 more years to enact it as part of the Anti-Terrorism and Effective Death Penalty Act of 1996.

However, provisions from my bill were enacted in 1994 to respond to the trail of errors we uncovered requiring modernization in the State Department's antiquated microfiche ``lookout'' system to keep dangerous aliens from entering the United States.

This system required manual searches, was difficult to use, and was subject to error. The language I crafted required the State Department to replace the old systems with one of two forms of state-of-the-art computerized systems. Visa fees were even increased for non-immigrants to pay for the upgrades.

Recognizing the need to mate these new technologies with the need for the most comprehensive, current and reliable information, we also attempted to address the issue of access. This was all the more pressing because, in 1990, the Justice Department had ruled that because the State Department was not a ``law enforcement agency,'' it no longer had free access to the FBI's National Crime Information Center, NCIC.

This system, which maintains arrest and criminal information from a wide variety of Federal, State, and local sources as well as from Canada, was used by the State Department to deny visas. Tellingly, after it lost access to the NCIC, the visa denial rate for past criminal activities plunged a remarkable 45 percent--stark evidence that we can't afford to tie the hands of America's overseas line of defense against terrorism.

Incredibly, while intelligence is frequently exchanged, no law requires agencies like the FBI and CIA to share information on dangerous aliens with the State Department. To address this, my 1993 bill also designated the State Department a ``law enforcement agency'' for purposes of accessing the NCIC as well as other FBI criminal records when processing any visa application, whether immigrant or non-immigrant.

Unfortunately, a revised provision also enacted in 1994 only provided the State Department with free access to these FBI resources for purposes of processing immigrant visas--dropping my requirement for non-immigrant visas eventually used by all 19 suspected hijackers.

Also of note, we discovered later in trying to understand some of what's gone wrong that even that limited law was sunsetted in 1997 due to a provision added by the House-Senate conference on the Foreign Relations Authorization Act for FY 1994-1995--a conference of which I was not a member. Subsequently, that law was extended to 1998 in the Commerce-Justice-State Appropriations bill for fiscal year 1998, and then was allowed to expire. This happened despite my legislation enacted in 1996 repealing the requirement that visa applicants be informed of the reason for a denial--a provision that law enforcement agencies legitimately believed could impede ongoing investigations, or reveal sources and methods. Thus, today, information sharing remains optional and ad hoc.

Currently, U.S. posts check the lookout database called the ``Consular Lookout and Support System--Enhanced,'' or CLASS-E, prior to issuing any visa. CLASS-E contains approximately 5.7 million records, most of which originate with U.S. Embassies and consulates abroad through the visa application process. The INS, DEA, Department of Justice, and other Federal agencies also contribute lookouts to the system, however, this is voluntary.

To further fortify our front-line defenses against terrorism--to turn back terrorists at their point of origin--information sharing should be mandatory, not voluntary. That is why I introduced a bill that would require that law enforcement and the intelligence community share information with the State Department and INS for the purpose of issuing visas and permitting entry into the United States. And while my bill would have gone farther than the legislation before us--by including the DEA, CIA, Customs and the Department of Defense in the mandated information-sharing network--I am pleased that this bill we are considering does mandate access to the NCIC by INS and the State Department.

Clearly, the catastrophic events of September 11 have catapulted us into a different era, and everything is forever changed. We must move heaven and earth to remove the impediments that keep us from maximizing our defense against terrorism. The bottom line is, if knowledge is power, we are only as strong as the weakest link in our information network--therefore, we must ensure that the only ``turf war'' will be the one to protect American turf.

That is why we need a singular, Cabinet-level authority that can help change the prevailing system and culture, and why we need legislation to help them do it. Ironically, the most compelling reason for an Office of Homeland Security is also its greatest challenge--the need to focus on the ``three C's'' of coordination, communication and cooperation so that all our resources are brought to bear in securing our Nation.

Winston Churchill, in a 1941 radio broadcast, sent a message to President Roosevelt saying, ``Give us the tools and we will finish the job.'' I have no doubt that, given the tools, the men and women of our Embassies throughout the world will get the job done and help us build a more secure American homeland.

Finally, once a visa is issued at the point of origin, we should be ensuring that it's the same person who shows up at the point of entry. The fact is, we don't know how many--if any--of the 19 terrorists implicated in the September 11 attacks entered the United States on visas that were actually issued to someone else.

Currently, once a visa is issued by the State Department, it then falls to INS officials at a port-of-entry to determine whether to grant entry. The problem is, no automated system is utilized to ensure that the person holding the visa is actually the person who was issued the visa. In other words, the INS official has to rely solely on the identification documents the person seeking entry is carrying--making that officials job that much more difficult.

There is a better way, and legislation I introduced would require the establishment of a fingerprint-based check system to be used by State and INS to verify that the person who received the visa is the same person at the border crossing station trying to enter the country.

Simply put, it requires the State Department and INS to jointly create an electronic database which stores fingerprints--and that other agencies may use as well. When a foreign national receives a visa, a fingerprint is taken, which then is matched against the fingerprint taken by INS upon entry to

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the United States. This is a common sense approach that would take us one step closer to minimizing the threat and maximizing our national security.

The fact of the matter is, fingerprint technology--one part of the larger category of biological factors that can be used for identification known as biometrics--is not new. In fact, the U.S. Government has already employed biometrics to verify identities at military and secret facilities, at ports-of-entry, and for airport security, among many others.

The INS has already announced it was beginning to implement the new biometric Mexican border crossing cards as required by 1996 Illegal Immigrations Reform and Immigrant Responsibility Act. These cards have the individual's fingerprint encoded on them and are matched to the fingerprint of the person possessing the card at a U.S. port-of-entry.

This surely does not sound all that much different than the legislation I have proposed. I am pleased the bill before us at least starts us down the road toward implementing biometric technologies by requiring a review of the feasibility of instituting such technologies, and I hope this can be achieved as soon as possible.

Despite areas where I might have wished to strengthen this bill even further, this legislation is vital to our national security, and I will be proud to support it. The war on terrorism is a war on myriad fronts. Some of the battles will be great in scale, many will be notable by what is not seen and by what doesn't happen--namely, that individuals who pose a serious threat to this Nation never see these shores and never set foot on our soil.

Many of our greatest victories will be measured by the attacks that never happen--in battles we win before they ever have a name--in conflicts we prevent before they ever claim one American life. I hope we will pass and enact legislation that will help make that possible. I thank the Chair.

Mr. KENNEDY. Mr. President, a month ago today, America was attacked by vicious terrorists bent on doing all they can to undermine our Nation, our freedoms, and our way of life. But they have failed. Our country has never been more united behind the ideals that make us strong, or more committed to protecting our security.

In recent weeks, we have sought international cooperation and received it. We have asked our men and women in uniform to protect and defend our Nation, and they are doing it superbly. We are equally committed to preserving our freedoms and our democracy.

The goal of this antiterrorism legislation is to achieve greater coordination between the law enforcement and intelligence communities, while protecting the civil liberties of American citizens. We must give the Secretary of State and the Attorney General the tools to stop terrorists from entering our country, while guaranteeing America's proud tradition of welcoming immigrants from around the world.

The terrorist attacks of September 11 make it an urgent priority to act as soon as possible. The INS and the State Department must have the technology and intelligence information they need to make quick and accurate decisions on whether to admit anyone to the United States.

We must also take urgent steps to improve security at our borders with Canada and Mexico, to keep terrorists from entering the country illegally.

These improvements in the immigration laws can make a huge and immediate difference. Immigration security is an indispensable part of our national security.

As we protect our country, we must also protect the founding principles that have made our nation great. We must respond to the current crisis in ways that protect the basic rights and liberties of our citizens and others residing legally in the United States.

Currently, the INS has broad authority to act against any foreign national who supports terrorism. With respect to visitors, foreign students, and other non-immigrants, as well as immigrants already in this country, the Federal Government has a broad range of enforcement tools. The INS may detain certain non-citizens if they pose a threat to national security or are a flight risk, and they may do so on the basis of secret evidence. The INS may also deport any alien who has engaged in terrorist activity, or supported terrorist activity in any way. If the INS has the resources to use its existing authority fully and fairly, we will be far closer to ensuring our national security.

Nonetheless, loopholes may exist in our current laws, and we should close them. In recent weeks, many of us in Congress have worked closely with the administration to strengthen the law without creating serious civil liberties concerns. Although we have made progress, more remains to be done. I continue to be concerned that the Attorney General has the authority to detain even permanent residents without adequate cause, and with very few due process protections.

We must be cautious that new measures are not enacted in haste, undermining current law in critical and constitutionally troubling respects. We must avoid enacting legislation with vague and overly broad definitions or legislation that punishes individuals exercising constitutionally protected rights.

Consistent with these basic principles, it is essential for Congress to strengthen the criminal code in response to the September 11 attacks. We must increase penalties for terrorists and those who support terrorist activity. We must punish those who possess biological weapons and commit acts of violence against mass transportation systems. We must also ensure that victim assistance and victim compensation programs are able to help all the victims of the September 11 attacks. In fact, the current bill makes several important reforms to the Victim of Crimes Act to achieve that goal.

I am concerned, however, that by authorizing foreign-intelligence searches where foreign-intelligence gathering is only ``a significant purpose''--not the sole or primary purpose--of the search, the bill may well make the Foreign Intelligence Surveillance Act unconstitutional under the fourth amendment.

We must also ensure that, in acting to expand the powers of law enforcement to obtain student educational records for the investigation and prosecution of terrorism, we adequately safeguard the interests of innocent students. We should not permit schools and colleges to transfer student records to law enforcement agencies indiscriminately. We have worked closely with the administration to develop measures that strike a balance between the legitimate interests of law enforcement and the privacy of students.

In the wake of the September 11 attacks, we have also seen a disturbing increase in hate-motivated violence directed at Arab Americans and Muslim Americans. The Department of Justice is currently investigating over 90 such incidents, including several murders.

We need to do more to combat the acts of hate that cause many Arab and Muslim Americans to live in fear. Under current law, the Department of Justice cannot prosecute such cases as hate crimes unless it can prove that the victim was engaged in one of six ``federally protected activities''--such as voting or attending a public university--when the crime occurred. This requirement is an unwise and unnecessary constraint on effective law enforcement and may hamper the Department's ability to prosecute some of the cases it is now investigating.

The bipartisan hate crimes bill passed by the Senate last year and approved again by the Judiciary Committee in July would remove the ``federally protected activity'' requirement from the law--making it easier for the Justice Department to prosecute hate crimes--while still ensuring that the Federal Government is only involved when necessary and appropriate.

Congress and the President must send a strong and unequivocal message to the American people that hate-motivated violence in any form will not be tolerated in our nation.

There are provisions in the Uniting and Strengthening America Act that do not strike the correct balance between law enforcement authority and civil liberties protection. However, I am confident that working with the House of Representatives and the administration, we can enact a final bill that meets these important concerns.

We can send the President a tough, comprehensive, and balanced anti-Ðterrorism bill. The important work we do in the coming days will strengthen

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America, and make America proud of its ideals as well.

Mr. KERRY. Mr. President, I am very pleased to have the opportunity to speak for a few minutes about the Uniting and Strengthening America, USA, Act that is before the Senate today. This legislation reflects the hard work of the Senate Banking Committee and the Senate Judiciary Committee, and I want to thank them for their commitment to ensuring that Congress address this legislation as quickly as possible and for paying great attention to the civil rights and liberties of the American people.

Right now our Nation is strongly united. We are bound together by, among other things, a desire to see justice brought to those who planned the terrorist attacks and those who aided and abetted the terrorists. And Americans are united by our desire to prevent future terrorist attacks. At this time, more so than at any time in the past 40 years, the American people are standing firmly behind the Federal Government and they trust government to do the right thing. The American people support the idea that we must provide the FBI and the Department of Justice will the tools necessary to punish the perpetrators of the terrorist attacks and to prevent future attacks.

But as much as the American people seek a just resolution to the acts of terror, they are adamant about protecting their rights and liberties. We have heard it time and again since September 11: our Nation must be secure, but must not become so at the expense of our freedoms, our rights, and our liberties. We must not let the American people down.

I want to thank Senator Leahy for his leadership on this legislation and his concern with important Constitutional principles, such as due process and unreasonable search and seizure. At Senator Leahy's urging, the administration's anti-terrorism proposal was carefully and closely analyzed and Senator Leahy did not yield to the political pressures that threatened to push this legislation through the Congress without its careful consideration. I believe that the bill before the Senate is vastly improved from the proposal that the administration sent up, and I appreciate that important changes were made.

Though I am grateful that important changes have been made to the Senate bill, I am still troubled by certain provisions in the legislation which fail to strike the proper balance between the need for security and the need for civil liberties. Moving an anti-terrorism bill through the Congress in a timely fashion is critically important, particularly in light of the ongoing air strikes in Afghanistan. We all know that a real threat exists for future terrorist attacks in this country and passing legislation that helps the Federal Government prevent those attacks is crucial. I support the process, I support moving this legislation forward, and I will vote for it. But I also believe that the bill that passed the House better balances our civil liberties and the Federal Government's need for greater surveillance powers, and I am hopeful that the bill that emerges from the conference committee retains some of these provisions. I am disturbed by comments made yesterday by the administration in which swift consideration by both houses of Congress of the Senate bill was urged. This legislation deserves the full measure of our attention and should not be hastily dispensed with when the threat to our most cherished civil liberties is so great.

The wide-ranging legislation before us would enhance domestic surveillance powers, stiffen penalties for terrorism, increase the penalties for money-laundering, and make it easier for law enforcement and intelligence agencies to share information. There was broad agreement on some elements of the administration's anti-terrorism package, such as the need to update our anti-terrorism laws to take account of new technologies--such as cell phones--and to ensure that counter-terrorism investigators wield the same powers that apply to drug trafficking and organized crime. But agreement was more difficult to reach on other issues, like detaining foreign nationals, and I am pleased that we are in a position to move forward on the legislation.

I am also pleased that this package includes a bill, which I sponsored, that will provide the tools the U.S. needs to crack down on international money laundering havens and protect the integrity of the U.S. financial system from the influx of tainted money from abroad. This legislation was part of a package of anti-money laundering provisions that unanimously passed the Senate Banking Committee last week.

Today, the global volume of laundered money is estimated to be 2 to 5 percent of global Gross Domestic Product, between $600 billion and $1.5 trillion. The effects of money laundering extend far beyond the parameters of law enforcement, creating international political issues and generating domestic political crises.

It is becoming more and more apparent that Osama bin Laden's terrorist network, known as al Qaida, provided assistance to the hijackers who attacked the World Trade Center and the Pentagon with funding that was transported from the Middle East to the United States through the global financial system. Al-Qaida has, for years, developed a worldwide terrorist network by taking advantage of an open system of international financial transactions.

The United States has declared a war on terrorism. This new war is going to be unlike anything that we have ever engaged in previously. If we are to lead the world in the fight against terror, we must insure that our own laws are worthy of the difficult task ahead.

The International Counter-Money Laundering and Foreign Anti-corruption Act of 2001, which I sponsored and which has been included in this legislation, will stop the flow of assets through the international financial system that have been used by bin Laden, the al Qaeda terrorist network and other terrorist groups.

The United States has the largest and most accessible economic marketplace in the world. Foreign financial institutions and jurisdictions must have unfettered access to markets to effectively work within the international economic system. The goal of this legislation is to give the Treasury Secretary, in conjunction with our allies in the European Union and the Financial Action Task Force, the authority to leverage the power of our markets to force countries or financial institutions with lax money laundering laws or standards to reform them. If they refuse,

the Secretary will have the authority to deny foreign financial institutions or jurisdictions access to the United States marketplace. This will help stop international criminals from laundering the proceeds of their crimes into the United States financial system or using the proceeds to commit terrorist acts.

Specifically, the bill will give the Secretary of the Treasury--acting in consultation with other senior government officials--the authority to designate a specific foreign jurisdiction, foreign financial institution, or class of international transactions as being of ``primary money laundering concern.'' Then, on a case-by-case basis, the Secretary will have the option to use a series of new tools to combat the specific type of foreign money laundering threat we face. In some cases, the Secretary will have the option to require banks to pierce the veil of secrecy behind which foreign criminals hide. In other cases, the Secretary will have the option to require the identification of those using a foreign bank's correspondent or payable-through accounts. If these transparency provisions were deemed to be inadequate to address the specific problem identified, the Secretary will have the option to restrict or prohibit U.S. banks from continuing correspondent or payable-through banking relationships with money laundering havens and rogue foreign banks. Through these steps, the Secretary will help prevent laundered money from slipping undetected into the U.S. financial system and, as a result, increase the pressure on foreign money laundering havens to bring their laws and practices into line with international anti-money laundering standards.

The bill provides for actions that will be graduated, discretionary, and targeted, in order to focus actions on international transactions involving criminal proceeds, while allowing legitimate international commerce to continue to flow unimpeded.

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It provides a clear warning to those who have assisted or unwittingly assisted those involved in the al Qaeda network or other terrorist organizations in laundering money. The United States will take whatever actions are necessary, including denying foreign banks and jurisdictions access to the United States economy, in order to stop terrorists and international criminal networks from continuing to launder money through the international financial system.

Passage of this legislation will make it much more difficult for new terrorist organizations to develop. During the 1980s, as Chairman of the Senate Permanent Subcommittee on Investigations, I began an investigation of the Bank of Credit and Commerce International (BCCI), and uncovered a complex money laundering scheme involving billions of dollars. Fortunately, BCCI was forced to close and we were able to bring many of those involved in to justice. However, as we have learned since the closing of BCCI, Osama bin Laden had a number of accounts at BCCI and we had dealt him a very serious economic blow. So as we consider this bill as a response to recent attacks, we must not lose sight of the potential this legislation will have to stop the development of terrorist organizations in the future.

With the support of the United States and the European Union, the Organization of Economic Cooperation and Development has begun a crackdown on tax havens by targeting 36 jurisdictions which it said participate in unfair tax competition and undermine other nations' tax bases. The OECD approach does not punish countries just for having low tax rates, instead, it looks for tax systems that have a lack of transparency, a lack of effective exchange of information and those countries that have different tax rules for foreign customers than for its own citizens. Countries with these types of tax systems assist terrorists and international criminal organizations looking to hide money that was derived from the sale of drugs, weapons and other criminal enterprises that have already been laundered in the international financial system.

Mr. President, earlier this evening my colleague Senator FEINGOLD offered an amendment to the section of the USA Act that deals with the interception of computer trespass communications. This amendment, at its core, was intended to prevent law enforcement from abusing their authority to monitor computer activity. The Senator from Wisconsin's amendment would have limited the amount of time that law enforcement could monitor suspicious activity without a court order to 96 hours, after which time investigators would have to obtain a warrant for continued surveillance. I support the intent of this amendment, and regret that I felt compelled vote to table the amendment. I voted to table the amendment for two reasons: First, I was concerned that the amendment was overly restrictive because it prevented law enforcement from investigations unrelated to the computer trespass. My concern is that law enforcement authorities would, for example, be able to monitor activity which permitted a computer hacker to establish a ``dead drop'' zone for terrorists to post messages, but would not be able to monitor the content of those messages.

I also voted to table Senator Feingold's amendment because I strongly believe that we must move forward with this anti-terrorism legislation. Just today the FBI issued a statement warning of terrorist attacks and put law enforcement on the highest alert. I believe these serious threats to our security justify our this legislation swiftly. But I sincerely hope that an acceptable compromise can be reached--on this and on other issues--in the final legislation.

This legislation is a crucial step toward limiting the scourge of money laundering and to stop the development of international criminal organizations. It is my hope that the Congress will be able to develop anti-terrorism legislation that will provide needed protections of our citizens without eliminating any of our cherished individual liberties.

Ms. SNOWE. Mr. President, in the war against terrorism, Americans stand as one behind our President. Now, in the all-out effort to protect our homeland, Federal agencies must be united in securing American soil.

In that light, President Bush made exactly the right decision when he created the Office of Homeland Security--a national imperative in the wake of the horrific tragedies of September 11--and I commend him for appointing my former colleague, Pennsylvania Governor Tom Ridge, as its director. With a seat at the Cabinet table, Governor Ridge will literally be at the President's side, giving him the standing that will be required to remove jurisdictional hurdles among the forty-plus agencies he will be responsible for coordinating.

I saw firsthand the consequences of serious inadequacies in coordination and communication during my twelve years as ranking member of the House Foreign Affairs International Operations Subcommittee and Chair of the subcommittee's Senate counterpart. In conducting oversight of embassy security as well as visa and consular operations, I became extensively involved with the issue of terrorism, co-drafting anti-terrorism legislation with former Representative Dan Mica, Florida, in the wake of 1983 and 1984 terrorist attacks against the U.S. embassy and Marine barracks in Lebanon; traveling to Belgrade, Warsaw, and East Berlin to press government officials into helping stem the flow of money to the terrorist Abu Nidal and his organization; and investigating entry into the United States by radical Egyptian cleric Sheikh Omar Abdel Rahman, mastermind of the World Trade Center bombing in 1993.

As far back as our hearings on the 1985 Inman Report, commissioned in response to the attacks in Lebanon, it was abundantly clear that improved coordination and consolidation of information from agencies such as the FBI, CIA, DEA, Customs, INS and the State Department would be an essential step toward removing a vulnerability in our national security. That point was tragically underscored by our discovery that, astoundingly, in the period since 1987 when Sheikh Rahman was placed on the State Department lookout list, the Sheikh entered and exited the U.S. five times totally unimpeded. Even after the State Department formally issued a certification of visa revocation, he was granted permanent residence status by the INS. When he was finally caught on July 31, 1991, reentering the United States, he was immediately released back into U.S. society to allow him to pursue a multi-year appeal process.

Just as unbelievable is the fact that, even after the 1993 attack on the World Trade Center, membership in a terrorist organization in and of itself--with the exception of the PLO--was not sufficient grounds for visa denial. Rather, the Immigration Act of 1990 required the Government to prove that an individual either was personally involved in a terrorist act, or planning one. This absurd threshold made it almost impossible to block individuals, such as Sheikh Rahman, from entering the country legally. Legislation I introduced in 1993 removed that bureaucratic and legal obstacle--yet it took nearly 3 more years to enact it as part of the Anti-Terrorism and Effective Death Penalty Act of 1996.

Further, to respond to the trail of errors we uncovered, provisions from my bill were enacted in 1994 requiring modernization in the State Department's antiquated microfiche ``lookout'' system to keep dangerous aliens from entering the United States. This system required manual searches, was difficult to use, and was subject to error. The language I crafted required State to replace the old systems with one of two forms of state-of-the-art computerized systems. Visa fees were even increased for non-immigrants to pay for the upgrades.

Recognizing the need to mate these new technologies with the need for the most comprehensive, current and reliable information, we also attempted to address the issue of access. This was all the more pressing because, in 1990, the Justice Department had ruled that because the State Department was not a ``law enforcement agency'', it no longer had free access to the FBI's National Crime Information Center. This system, which maintains arrest and criminal information from a wide variety of federal, state, and local sources as well as from Canada, is used by the State Department to deny visas. Tellingly,

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after it lost access to the NCIC, the visa denial rate for past criminal activities plunged a remarkable 45 percent--stark evidence that we can't afford to tie the hands of America's overseas line of defense against terrorism.

Incredibly, while intelligence is frequently exchanged, no law requires agencies like the FBI and CIA to share information on dangerous aliens with the State Department. To address this, my 1993 bill also designated the State Department a ``law enforcement agency'' for purposes of accessing the NCIC as well as other FBI criminal records when processing any visa application, whether immigrant or non-immigrant.

Unfortunately, a revised provision also enacted in 1994 only provided the State Department with free access to these FBI resources for purposes of processing immigrant visas--dropping my requirement for non-immigrant visas eventually used by at least 16 of the 19 suspected hijackers. Even that limited law was allowed to expire, despite my legislation enacted in 1996 repealing the requirement that visa applicants be informed of the reason for a denial--a provision that law enforcement agencies legitimately believed could impede ongoing investigations, or reveal sources and methods. Thus, today, information sharing remains optional and ad hoc.

To further fortify our front-line defenses against terrorism, I also propose to assist our embassies in turning-back terrorists at their point of origin by establishing Terrorist Lookout Committees, comprised of the head of the political section of each embassy and senior representatives of all U.S. law enforcement and intelligence agencies. The committees would be required to meet on a monthly basis to review and submit names to the State Department for inclusion in the visa lookout system.

Clearly, the catastrophic events of September 11 have catapulted us into a different era, and everything is forever changed. We must move heaven and earth to remove the impediments that keep us from maximizing our defense against terrorism, and that is why we need a singular, Cabinet-level authority that can change the prevailing system and culture. Ironically, the most compelling reason for an Office of Homeland Security is also its greatest challenge: the need to focus on the ``three C's'' of coordination, communication and cooperation so that all our resources are brought to bear in securing our nation. The bottom line is, if knowledge is power, we are only as strong as the weakest link in our information network therefore, we must ensure that the only ``turf war'' will be the one to protect American turf. In our fight against terrorism, we can do no less.

Mr. BYRD. Mr. President, in the aftermath of the terrorist attacks on the World Trade Center and the Pentagon, the attention of the American people has turned to the security of our national border system and how these attackers were able to exploit that system to plot these dastardly acts.

The September 11 attacks have highlighted numerous loopholes in our immigration laws that have allowed terrorists to enter the United Stats posing as students and tourists, and, in some cases, by simply walking across an unpatrolled border. In reviewing our counter-terrorism efforts within our intelligence community, it is also appropriate that we look at the numerous immigration loopholes these terrorists were able to slip through.

There are currently between 7 million and 13 million illegal aliens living in the United States. Six out of 10 of these aliens crossed a U.S. border illegally, and therefore were not subject to background checks by the INS or the State Department to determine if they had a terrorist or criminal history. In fact, exit/entry records are so incomplete that the Immigration and Naturalization Service, INS, has no record of 6 of the 19 suspected hijackers entering the United States.

Of the roughly 10,000 INS agents guarding our borders, only 3 percent are stationed on our northern border with Canada. That's 334 agents protecting a 4,000 mile border, or one agent for every 12 miles. According to media reports, a number of the September 11 terrorists crossed this border to enter the United States.

Of those foreign nationals who have legally entered the United States, more than a half-a-million of them are registered as international students at 15,000 universities, colleges, and vocational schools across the United States. These are nuclear engineering scholars, biochemistry students, and even pilot trainees who have access to dangerous technology, training, and information.

The Congress passed legislation in 1996 requiring the INS to create a database for tracking these students. The purpose was to more efficiently monitor the immigration/visa status and whereabouts of students from abroad. After 5 years, there is still no system in place to monitor these 500,000 students. The current pilot program operating at 21 schools is not expected to be fully operational for five more years, and even that date could slip.

Without a monitoring system in place to audit schools that sponsor these foreign students, there is nothing to prevent an alien from entering the United States on a student visa and then just disappearing. Consequently, one of the September 11 hijackers was able to enter the United States on a student visa, dropped out, and remained illegally thereafter.

Abuses of the visa system can also be found in the application process overseas at our U.S. consulates. Foreign nationals must apply for a visa at a U.S. consulate abroad and go through a series of security checks before they can enter the United States. Some media reports have raised the issue of consulate shopping, that is, foreign nationals choosing to apply at a U.S. consulate that they believe is most likely to grant them a visa. The ``New York Times'' reported in September that Chinese nationals applying for visas at a U.S. consulate in Beijing compare their experiences over the Internet--and even post tips on how to act and what to say, to boost their chances of receiving a visa.

Such an article raises the question of whether a terrorist could travel from country to country in hopes of finding a U.S. consulate which would be less familiar with his background and more likely to award him a visa. One terrorist who was involved in the 1993 World Trade Center bombing was denied a visa at the U.S. consulate in Egypt, only to be awarded a visa by the U.S. consulate in Sudan.

And these are loopholes that exist only for those terrorists who would risk a background check by seeking a visa at a U.S. consulate. The United States allows 29 countries to participate in a visa-waiver program, which effectively allows the citizens of many European countries to bypass the initial screening process at a U.S. consulate abroad by waiving the visa requirement. The Inspectors General for both the State and Justice Departments have raised the possibility that a foreign national could steal and counterfeit a visa-free passport to bypass the visa background check altogether.

The October 8 Wall Street Journal reported that some 1,067 visa-free passports have been stolen in recent months, presumably to be used for entry into the United States. In fact, one of the terrorists who plotted the bombing of the 1993 World Trade Center bombing was caught trying to slip through this loophole in 1992 when he tried to enter the United States using a visa-free Swedish passport.

These are just some of the loopholes that terrorists are trying to exploit. To its credit, the Senate Judiciary Committee recognizes this fact.

The legislation drafted by the committee would triple the number of INS agents on our northern border. This is a worthwhile investment, and one that should be made. However, the security of our borders depends on more than just INS agents. The first line of defense against terrorists are our U.S. consulates abroad.

We must address the loopholes in the visa-waiver program that would allow a potential terrorist to enter the United States on a stolen passport. We must prevent consulate shopping. And, we must fully implement a system that can monitor foreign students.

The State and Justice Departments confirm that these are real security threats that must be addressed if we are to protect our borders from terrorists.

I have offered three amendments to address these concerns, which were accepted by the Judiciary Committee chairman and ranking member into the manager's package.

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My first amendment would authorize the necessary funding so that the Justice Department could immediately put into place a tracking system that would require every university, college, and vocational school to submit a name, an address, an enrollment status, and disciplinary action taken on each of the international students that these educational institutions sponsor. Such a database would be invaluable to law enforcement officials who may need to identify and locate a potential terrorist immediately.

My second amendment would tighten the visa-waiver program by requiring that any country that participates in that program issue to its citizens within 2 years machine-readable passports that U.S. officials could scan into a ``look out'' system. This moves forward the original statutory deadline Congress agreed to last year by 4 years.

This amendment would also require the State Department to regularly audit the passports of these visa-free countries to ensure that countries that participate in this program have implemented sufficient safety precautions to prevent the counterfeiting and the theft of their passports.

My third amendment would require the State Department to review how it issues its visas to determine if consulate shopping is a problem, and then require the Secretary of State to take the necessary steps to correct the problem. The State Department has the legislative authority it needs to fix this problem. It is now imperative that it use that authority.

My amendments are important steps toward closing down the loopholes in our immigration laws, and I look forward to working with my colleagues so that we may continue to tighten the security of national borders.

Mr. HATCH. Mr. President, three weeks ago, the President of the United States--with the undivided support of this Congress and the American people--announced a war on terrorism. In that address, he asked Congress to provide our law enforcement community with the tools that they need to wage that war effectively.

After several weeks of negotiations with the Chairman and the Administration, I am pleased we have come to the point where we can pass a bipartisan, measured bill that does just that.

Mr. President, each of us has, in different ways, had our lives touched by the awful events of September 11th. Each of us has, in the days since the attack, been shocked and appalled by the terrible images of destruction that have reached us, by television, by newspaper--and in many cases by our own eyes--from the sites of the attacks in Pennsylvania, at the World Trade Center, and at the Pentagon.

Paradoxically, each of us has also been uplifted by the stories of heroism and self-sacrifice that have emerged from around the country in the wake of these terrible events.

As the President made clear in his address to the nation, we did not seek this war. This war was thrust upon us--thrust upon us by an unprovoked attack upon our civilian population in the very midst of our greatest cities.

Just one month ago, we could not have contemplated that today, October 11th, 2001, we would be at war. It is true that, for years, some of us in this Congress, and around the country, have warned that there were powerful, well-financed individuals located throughout the world who were dedicated to the destruction of our way of life. But, few of us could predict the horrific methods that these men would employ in an effort to destroy us and our democratic institutions.

On September 11th, all that changed.

In the last few weeks, we have all come to acknowledge that we live in a different and more dangerous

world than the world we thought we knew when we woke up on the morning of September 11th .....

..... A different world--not only because thousands of our countrymen are dead as a result of the September 11th attacks .....

..... A different world--not only because many of our neighbors now hesitate to get on an airplane, or ride in an elevator, or engage in any one of a number of activities that we took for granted before the attacks......

..... But a different world, also, because we must acknowledge that there remains an ongoing and serious threat to our way of life and, in fact, to our health and well-being as a society.

As has been reported in the national media, the investigation into the September 11th attacks has revealed there are terrorist cells that continue to operate actively among us. It is a chilling thought, but it is true.

The war to which we have collectively committed is a war unlike any war in the history of this country. It is different because a substantial part of this war must be fought on our own soil. This is not a circumstance of our choosing. The enemy has brought the war to us.

But we must not flinch from acknowledging the fact that, because this is a different kind of war, it is a war that will require different kinds of weapons, and different kinds of tactics.

The Department of Justice, and its investigatory components including the FBI, the INS, and the Border Patrol, will continue to have the principal responsibility for identifying and eradicating terrorist activity within our national borders. Our intelligence community must have access to critical information available to our law enforcement community.

Over the last several weeks, the Attorney General has made clear to us, in no uncertain terms, that he does not currently have adequate weapons to fight this war. Weeks ago, the Administration sent to Congress a legislative proposal that would give the Department of Justice and others in law enforcement the tools they need to be effective in tracking down and eliminating terrorist activity in this country.

Over the last several weeks, Senator LEAHY, other members of the Judiciary Committee, and I have undertaken a painstaking review of the anti-terrorism proposal submitted by the Administration. There have been several hearings on this legislation in the Senate, and many briefings by experts and advocates.

The legislation that we are about to vote upon is a product of intense bipartisan negotiations. It is a proposal I am proud to cosponsor with my other colleagues in the Senate and particularly the distinguished Chairman of the Judiciary Committee, Senator LEAHY.

I would like to congratulate Senator LEAHY, in particular, for his thoroughness in reviewing this legislation and his many thoughtful comments and suggestions in our joint effort to ensure that the proposals adequately protect the constitutional liberties of all Americans.

Now, after weeks of fine-tuning, we have reached a final product that accommodates the concerns of each of the Senators who has examined this bill. The bipartisan bill that we vote on today respects the constitutional liberties of the American people and, at the same time, does what people around America have been calling upon us in Congress to do--that is, give our law enforcement community the tools they need to keep us safe in our homes, in our travels, and in our places of business.

I would like to make a few comments regarding the process for this legislation. Although we have considered this in a more expedited manner than other legislation, my colleagues can be assured that this bill has received thorough consideration. First, the fact is that the bulk of these proposals have been requested by the Department of Justice for years, and have languished in Congress for years because we have been unable to muster the collective political will to enact them into law.

No one can say whether these tools could have prevented the attacks of September 11th. But, as the Attorney General has said, it is certain that without these tools, we did not stop the vicious acts of last month. I say to my colleagues, Mr. President, that if these tools could help us now to track down the perpetrators--if they will help us in our continued pursuit of terrorist activities within our national borders--then we should not hesitate any further to pass these reforms into law. As long as these reforms are consistent with our Constitution--and they are--it is difficult to see why anyone would oppose their passage.

Furthermore, I would like to clearly dispel the myth that the reforms in this legislation somehow abridge the Constitutional freedoms enjoyed by law-abiding American citizens. Some press reports have portrayed this issue

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as a choice between individual liberties on the one hand, and on the other hand, enhanced powers for our law enforcement institutions. This is a false

dichotomy. We should all take comfort that the reforms in this bill are primarily directed at allowing law enforcement agents to work smarter and more efficiently--in no case do they curtail the precious civil liberties protected by our Constitution. I want to assure my colleagues that we worked very hard over the past several weeks to ensure that this legislation upholds all of the constitutional freedoms our citizens cherish. It does.

I would like to take a minute to explain briefly a few of the most important provisions of this critical legislation.

First, the legislation encourages information-sharing between various arms of the federal government. I believe most of our citizens would be shocked to learn that, even if certain government agents had prior knowledge of the September 11th attacks, under many circumstances they would have been prohibited by law from sharing that information with the appropriate intelligence or national security authorities.

This legislation makes sure that, in the future, such information flows freely within the Federal government, so tat it will be received by those responsible for protecting against terrorist attacks.

By making these reforms, we are rejecting the outdated Cold War paradigm that has prevented cooperation between our intelligence community and our law enforcement agents. Current law does not adequately allow for such cooperation, artificially hampering our government's ability to identify and prevent acts of terrorism against our citizens.

In this new war, Mr. President, terrorists are a hybrid between domestic criminals and international agents. We must lower the barriers that discourage our law enforcement and intelligence agencies from working together to stop these terrorists. These hybrid criminals call for new, hybrid tools.

Second, this bill updates the laws relating to electronic surveillance. Electronic surveillance, conducted under the supervision of a federal judge, is one of the most powerful tools at the disposal of our law enforcement community. It is simply a disgrace that we have not acted to modernize the laws currently on the books which govern such surveillance, laws that were enacted before the fax machine came into common usage, and well before the advent of cellular telephones, e-mail, and instant messaging. The Department of Justice has asked us for years to

update these laws to reflect the new technologies, but there has always been a call to go slow, to seek more information, to order further studies.

This is no hypothetical problem. We now know that e-mail, cellular telephones, and the Internet have been principal tools used by the terrorists to coordinate their atrocious activities. We need to pursue all solid investigatory leads that exist right now that our law enforcement agents would be unable to pursue because they must continue to work within these outdated laws. It is high time that we update our laws so that our law enforcement agencies can deal with the world as it is, rather than the world as it existed 20 years ago.

A good example of the way we are handicapping our law enforcement agencies relates to devices called ``pen registers.'' Pen registers may be employed by the FBI, after obtaining a court order, to determine what telephone numbers are being dialed from a particular telephone. These devices are essential investigatory tools, which allow law enforcement agents to determine who is speaking to whom, within a criminal conspiracy.

The Supreme Court has held, in Smith v. Maryland, that the information obtained by pen register devices is not information that is subject to ANY constitutional protection. Unlike the content of your telephone conversation once your call is connected, the numbers you dial into your telephone are not private. Because you have no reasonable expectation that such numbers will be kept private, they are not protected under the Constitution. The Smith holding was cited with approval by the Supreme Court just earlier this year.

The legislation under consideration today would make clear what the federal courts have already ruled--that federal judges may grant pen register authority to the FBI to cover, not just telephones, but other more modern modes of communication such as e-mail or instant messaging. Let me make clear that the bill does not allow law enforcement to receive the content of the communication, but they can receive the addressing information to identify the computer or computers a suspect is using to further his criminal activity.

Importantly, reform of the pen register law does not allow--as has sometimes been misreported in the press--for law enforcement agents to view the content of any e-mail messages--not even the subject line of e-mails. In addition, this legislation we are about to vote upon makes it explicit that content can not be collected through such pen register orders.

This legislation also allows judges to enter pen register orders with nationwide scope. Nationwide jurisdiction for pen register orders makes common sense. It helps law enforcement agents efficiently identify communications facilities throughout the country, which greatly enhances the ability of law enforcement to identify quickly other members of a criminal organization, such as a terrorist cell.

Moreover, this legislation provides our intelligence community with the same authority to use pen register devices, under the auspices of the Foreign Intelligence Surveillance Act, that our law enforcement agents have when investigating criminal offenses. It simply makes sense to provide law enforcement with the same tools to catch terrorists that they already possess in connection with other criminal investigations, such as drug crimes or illegal gambling.

In addition to the pen register statute, this legislation updates other aspects of our wiretapping statutes. It is amazing that law enforcement agents do not currently have authority to seek wiretapping authority from a federal judge when investigating a terrorist offense. This legislation fixes that problem.

Moving on, I note that much has been made of the complex immigration provisions of this bill. I know Senators SPECTER, KOHL and KENNEDY had questions about earlier provisions, particularly the detention provision for suspected alien terrorists.

I want to assure my colleagues that we have worked hard to address your concerns, and the concerns of the public. As with the other immigration provisions of this bill, we have made painstaking efforts to achieve this workable compromise.

Let me address some of the specific concerns. In response to the concern that the INS might detain a suspected terrorist indefinitely, Senator KENNEDY, Senator KYL, and I worked out a compromise that limits the provision. It provides that the alien must be charged with an immigration or criminal violation within seven days after the commencement of detention or be released. In addition, contrary to what has been alleged, the certification itself is subject to judicial review. The Attorney General's power to detain a suspected terrorist under this bill is, then, not unfettered.

Moreover, Senator LEAHY and I have also worked diligently to craft necessary language that provides for the deportation of those aliens who are representatives of organizations that endorse terrorist activity, those who use a position of prominence to endorse terrorist activity or persuade others to support terrorist activity, or those who provide material support to

terrorist organizations. If we are to fight terrorism, we can not allow those who support terrorists to remain in our country. Also, I should note that we have worked hard to provide the State Department and the INS the tools they need to ensure that no applicant for admission who is a terrorist is able to secure entry into the United States through legal channels.

Finally, the bill gives law enforcement agencies powerful tools to attack the financial infrastructure of terrorism--giving our government the ability to choke off the financing that these dangerous terrorist organizations need to survive. It criminalizes the practice of harboring terrorists, and puts teeth in the laws against providing material support to terrorists

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and terrorist organizations. It gives the President expanded authority to freeze the assets of terrorists and terrorist organizations, and provides for the eventual seizure of such assets. These tools are vital to our ability to effectively wage the war against terrorism, and ultimately to win it.

Mr. President, before this debate comes to an end, I would be remiss if I did not acknowledge the hard work put in by my staff, the staff of Senator LEAHY, and the representatives of the Administration who were involved in the negotiation of this bill. These people have engaged in discussions, literally around the clock over the last 3 weeks to produce this excellent bill, that now enjoys such widespread bipartisan support.

I would like to thank my Chief Counsel, Makim Delrahim, who has been instrumental in putting this bill together. I also would like to thank my criminal counsel, Jeff Taylor, Stuart Nash, and Leah Belaire, who have brought invaluable expertise to this process. My immigration counsel, Dustin Pead and my legislative assistant Brigham Cannon have provided invaluable assistance.

I would like to thank the staff of Senator LEAHY--his chief counsel Bruce Cohen, and other members of his staff--Beryl Howell, Julie Katzman, Ed Pagano, David James, and John Eliff.

The Department of Justice has been of great assistance to us in putting this bill together. I would like to thank Attorney General Ashcroft and his Deputy Larry Thompson for their wise counsel, and for their quick response to our many questions and concerns. Michael Chertoff, the Assistant Attorney General for the Criminal Division was a frequent participant in our meetings, as well as Assistant Attorneys General Dan Bryant and Viet Dinh. Jennifer Newstead, John Yew, John Elwood and Pat O'Brien were all important participants in this process.

Finally, the White House staff provided essential contributions at all stages of this process. Judge Al Gonzales, the White House counsel provided key guidance, with the help of his wonderful staff, including Tim Flanagan, Courtney Elwood, and Porad Berensen.

In addition, members of the White House Congressional Liaison Office kept this process moving forward. I would like to thank Heather Wingate, Candy Wolff and Nancy Dorn for all the assistance they have given us.

There have been few, if any, times in our nation's great history where an event has brought home to so many of our citizens, so quickly, and in such a graphic fashion, a sense of our vulnerability to unexpected attack.

I believe we all took some comfort when President Bush promised us that our law enforcement institutions would have the tools necessary to protect us from the danger that we are only just beginning to perceive.

The Attorney General has told us what tools he needs. We have taken the time to review the problems with our current laws, and to reflect on their solutions. The time to act is now. Let us please move forward expeditiously, and give those who are in the business of protecting us the tools that they need to do the job.

Mr. President, I urge my colleagues' support for this important legislation and yield the floor.

Mr. DASCHLE. Mr. President, 4 days ago, our military began strikes against terrorist training camps and the Taliban's military installations in Afghanistan. They are intended to disrupt the network of terror that spreads across Afghanistan.

But these strikes are one part of a much larger battle. The network that we seek to disrupt and ultimately destroy often operates without borders or boundaries. Its tools are not simply the weapons it chooses to employ. And its trails are more often electronic than physical.

This is a new kind of battle. Winning it will require a new set of tools ..... And winning is the only acceptable outcome.

Just as we are committed to giving our men and women in uniform the tools and training they need to do what is asked of them, we must now make that same commitment to our justice and law enforcement officials.

After all, we are now asking them to do nothing less than protect the American people by finding, tracking, monitoring--and ultimately stopping--any terrorist elements that threaten our nation or our citizens.

I believe that by passing this measure today, we are taking a swift and significant step toward doing just that. We are also demonstrating, once again, that the Senate can work both quickly and effectively when we work cooperatively.

I want to thank Senator Lott, Chairmen Leahy, Graham and Sarbanes, as well as Senators Hatch, Shelby, and Gramm for their leadership on this bill.

I especially appreciate Chairman Leahy's management and handling of this important and delicate process.

I also want to thank the many other Democratic and Republican Senators whose insights and suggestions improved this legislation.

For example, Senator Kennedy's input on provisions regarding immigration addressed concerns a number of us had about the detention of legal permanent residents with only few due process protections.

And Senators Enzi, Leahy and Dorgan were able to improve a provision regarding unilateral food and medical sanctions in a way that avoids needlessly hurting American farmers.

I'll be honest, this bill is not perfect, and I hope that we will be able to work with our House colleagues in the days ahead in order to improve it.

Whenever we weigh civil liberties against national security, we need to do so with the utmost care.

Among other things, I am concerned about the provisions within this bill that allow the sharing of information gathered in grand juries and through wiretaps without judicial check. And, as we give the administration new legitimate powers to wiretap under the Foreign Intelligence Surveillance Act, I believe we should do more to protect the rights of Americans who are not suspects or targets of investigations.

These flaws are not insubstantial, but ultimately the need for this bill outweighs them. When it comes to an issue as central to our democracy as the protection of our people, we must act.

This bill does several important things:

First, it will enhance the ability of law enforcement and intelligence agencies to conduct electronic surveillance and execute searches in order to gather critical information to fight terrorism.

Second, it will permit broader information sharing between traditional law enforcement and foreign intelligence officers.

Third, it will increase the Attorney General's ability to deport and detain individuals who support terrorist activity. I should note, though, that the Senate bill requires the Attorney General either to bring criminal or immigration charges within seven days after taking custody of an alien or relinquish custody.

Fourth, this bill also takes significant steps to increase law enforcement personnel on our northern border. For example, it would triple the number of Border Patrol, Customs Service, and INS inspectors at the northern border, who would work in concert with their Canadian counterparts in order to enhance security in this previously understaffed area.

Fifth, thanks in large part to Senator Leahy's hard work, this bill makes major revisions to the Victims of Crime Act--by strengthening the Crime Victim Fund and expediting assistance to victims of domestic terrorism.

Sixth and finally, the Banking Committee was able to agree on, and add to this bill, several significant counter money laundering measures. If we are to truly fight terrorism on all fronts, we must fight it on the financial front as well.

As you can see, this is a complex piece of legislation. But its aim is simple: to give law enforcement the tools it needs to fight terrorism.

It was a month ago on this day that we suffered the worst terrorist attack in our Nation's history. In the days since, we have honored the memories of the more than 6,000 innocent men and women who lost their lives on that terrible day.

Hours ago, for example, we passed a resolution that designates September 11 as a national day of remembrance.

But I believe that to truly honor those whose lives were lost, we must match our words with action, and do all that we can in order to prevent future attacks.

[Page: S10604]

This bill is a significant step towards keeping that commitment, and keeping Americans safe.

Mr. DASCHLE. It is my understanding that the managers intend now to yield back the remainder of the time on the bill and we will go straight to final passage.

First, I thank all Senators for their cooperation tonight. This was a very good day. We got a lot of work done, and I appreciate the work of all Members. There will not be rollcall votes tomorrow. In fact, we will not be in session. We will come in on Monday, midafternoon. There will be a vote on the motion to proceed to the foreign operations bill and a vote on the conference report on the Interior appropriations bill at approximately 5:30 Monday afternoon. I thank all Senators.

I yield the floor.

Mr. LEAHY. Mr. President, we are about to go to final passage. We thought there would be a managers' package. We signed off on this side, and apparently the other side has not, which is their right.

Mr. HATCH. We have a managers' package. It is done. It is just being assembled and put together and will be here.

I yield the floor.

Mr. LEAHY. I am glad there will be a managers' package. We cannot vote on final passage until the managers' package is here. I thank the majority leader for his help. As I said before, I don't think the bill could have gotten as far as it did without that help. I wish the administration had kept to the agreement they made September 30. We would have a more balanced bill. I still am not sure why the administration backed away from their agreement.

I am the old style Vermonter: When you make an agreement, you stick with it. But they decided not to, and it slowed us up a bit.

The PRESIDING OFFICER. Let's have order in the Senate Chamber so the Senator can be heard.

Mr. LEAHY. I yield the floor.

Mr. DASCHLE. Mr. President, I ask unanimous consent that notwithstanding the passage of the amendment, the managers' amendment be considered subject to approval by both managers and both leaders.

The PRESIDING OFFICER. Is there objection?

Mr. BYRD. What is the request?

Mr. DASCHLE. Mr. President, I will repeat the request. There is a technical amendment having to do with some of the issues that have been worked out, that have no substantive consequence. I ask unanimous consent that this managers' amendment be approved, notwithstanding passage of the bill, subject to approval by the two managers and the two leaders.

Mr. BYRD. Mr. President, I object to that.

The PRESIDING OFFICER. Objection is heard.

Mr. BYRD. Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. LEAHY. Mr. President, I ask unanimous consent the order for the quorum call be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. LEAHY. I yield all time. I ask for the yeas and nays on final passage.

The PRESIDING OFFICER. The Senator from Vermont is recognized.

Mr. LEAHY. I ask for the yeas and nays on final passage.

The PRESIDING OFFICER. Is there a sufficient second?

There is a sufficient second.

The yeas and nays were ordered.

The PRESIDING OFFICER. The clerk will read the bill for the third time.

Mr. FEINGOLD. Mr. President, what is the status?

The PRESIDING OFFICER. The bill is ready for third reading.

Mr. FEINGOLD. I ask the Chair if the managers' amendment has been adopted.

The PRESIDING OFFICER. It has not.

Mr. FEINGOLD. I thank the Chair.

The PRESIDING OFFICER. There has been none submitted.

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.

The PRESIDING OFFICER. The bill having been read the third time, the question is, Shall the bill pass?

The yeas and nays have been ordered. The clerk will call the roll.

The legislative clerk called the roll.

Mr. NICKLES. I announce that the Senator from North Carolina (Mr. HELMS), the Senator from South Carolina (Mr. THURMOND), and the Senator from New Mexico (Mr. DOMENICI) are necessarily absent.

I further announce that if present and voting the Senator from North Carolina (Mr. HELMS) would vote ``yea.''

The PRESIDING OFFICER. Are there any other Senators in the Chamber desiring to vote?

The result was announced--yeas 96, nays 1, as follows:

[Rollcall Vote No. 302 Leg.]

YEAS--96

Akaka

Allard

Allen

Baucus

Bayh

Bennett

Biden

Bingaman

Bond

Boxer

Breaux

Brownback

Bunning

Burns

Byrd

Campbell

Cantwell

Carnahan

Carper

Chafee

Cleland

Clinton

Cochran

Collins

Conrad

Corzine

Craig

Crapo

Daschle

Dayton

DeWine

Dodd

Dorgan

Durbin

Edwards

Ensign

Enzi

Feinstein

Fitzgerald

Frist

Graham

Gramm

Grassley

Gregg

Hagel

Harkin

Hatch

Hollings

Hutchinson

Hutchison

Inhofe

Inouye

Jeffords

Johnson

Kennedy

Kerry

Kohl

Kyl

Landrieu

Leahy

Levin

Lieberman

Lincoln

Lott

Lugar

McCain

McConnell

Mikulski

Miller

Murkowski

Murray

Nelson (FL)

Nelson (NE)

Nickles

Reed

Reid

Roberts

Rockefeller

Santorum

Sarbanes

Schumer

Sessions

Shelby

Smith (NH)

Smith (OR)

Snowe

Specter

Stabenow

Stevens

Thomas

Thompson

Torricelli

Voinovich

Warner

Wellstone

Wyden

NAYS--1

Feingold

NOT VOTING --- 3

Domenici

Helms

Thurmond

The bill (S. 1510) as passed as follows:

S. 1510

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

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

(a) SHORT TITLE.--This Act may be cited as the ``Uniting and Strengthening America Act'' or the ``USA Act of 2001''.

(b) TABLE OF CONTENTS.-- The table of contents for this Act is as follows:

Sec..1..Short title and table of contents.

Sec..2..Construction; severability.

TITLE I--ENHANCING DOMESTIC SECURITY AGAINST TERRORISM

Sec..101..Counterterrorism fund.

Sec..102..Sense of Congress condemning discrimination against Arab and Muslim Americans.

Sec..103..Increased funding for the technical support center at the Federal Bureau of Investigation.

Sec..104..Requests for military assistance to enforce prohibition in certain emergencies.

Sec..105..Expansion of national electronic crime task force initiative.

Sec..106..Presidential authority.

TITLE II--ENHANCED SURVEILLANCE PROCEDURES

Sec..201..Authority to intercept wire, oral, and electronic communications relating to terrorism.

Sec..202..Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses.

Sec..203..Authority to share criminal investigative information.

Sec..204..Clarification of intelligence exceptions from limitations on interception and disclosure of wire, oral, and electronic communications.

Sec..205..Employment of translators by the Federal Bureau of Investigation.

Sec..206..Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978.

Sec..207..Duration of FISA surveillance of non-United States persons who are agents of a foreign power.

Sec..208..Designation of judges.

Sec..209..Seizure of voice-mail messages pursuant to warrants.

Sec..210..Scope of subpoenas for records of electronic communications.

Sec..211..Clarification of scope.

Sec..212..Emergency disclosure of electronic communications to protect life and limb.

Sec..213..Authority for delaying notice of the execution of a warrant.

Sec..214..Pen register and trap and trace authority under FISA.

Sec..215..Access to records and other items under the Foreign Intelligence Surveillance Act.

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Sec..216..Modification of authorities relating to use of pen registers and trap and trace devices.

Sec..217..Interception of computer trespasser communications.

Sec..218..Foreign intelligence information.

Sec..219..Single-jurisdiction search warrants for terrorism.

Sec..220..Nationwide service of search warrants for electronic evidence.

Sec..221..Trade sanctions.

Sec..222..Assistance to law enforcement agencies.

TITLE III--INTERNATIONAL MONEY LAUNDERING ABATEMENT AND ANTI-TERRORIST FINANCING ACT OF 2001

Sec..301..Short title.

Sec..302..Findings and purposes.

Sec..303..4-Year congressional review-expedited consideration.

Subtitle A--International Counter Money Laundering and Related Measures

Sec..311..Special measures for jurisdictions, financial institutions, or international transactions of primary money laundering concern.

Sec..312..Special due diligence for correspondent accounts and private banking accounts.

Sec..313..Prohibition on United States correspondent accounts with foreign shell banks.

Sec..314..Cooperative efforts to deter money laundering.

Sec..315..Inclusion of foreign corruption offenses as money laundering crimes.

Sec..316..Anti-terrorist forfeiture protection.

Sec..317..Long-arm jurisdiction over foreign money launderers.

Sec..318..Laundering money through a foreign bank.

Sec..319..Forfeiture of funds in United States interbank accounts.

Sec..320..Proceeds of foreign crimes.

Sec..321..Exclusion of aliens involved in money laundering.

Sec..322..Corporation represented by a fugitive.

Sec..323..Enforcement of foreign judgments.

Sec..324..Increase in civil and criminal penalties for money laundering.

Sec..325..Report and recommendation.

Sec..326..Report on effectiveness.

Sec..327..Concentration accounts at financial institutions.

Subtitle B--Currency Transaction Reporting Amendments and Related Improvements

Sec..331..Amendments relating to reporting of suspicious activities.

Sec..332..Anti-money laundering programs.

Sec..333..Penalties for violations of geographic targeting orders and certain recordkeeping requirements, and lengthening effective period of geographic targeting orders.

Sec..334..Anti-money laundering strategy.

Sec..335..Authorization to include suspicions of illegal activity in written employment references.

Sec..336..Bank Secrecy Act advisory group.

Sec..337..Agency reports on reconciling penalty amounts.

Sec..338..Reporting of suspicious activities by securities brokers and dealers.

Sec..339..Special report on administration of Bank Secrecy provisions.

Sec..340..Bank Secrecy provisions and anti-terrorist activities of United States intelligence agencies.

Sec..341..Reporting of suspicious activities by hawala and other underground banking systems.

Sec..342..Use of Authority of the United States Executive Directors.

Subtitle D--Currency Crimes

Sec..351..Bulk cash smuggling.

Subtitle E--Anticorruption Measures

Sec..361..Corruption of foreign governments and ruling elites.

Sec..362..Support for the financial action task force on money laundering.

Sec..363..Terrorist funding through money laundering.

TITLE IV--PROTECTING THE BORDER

Subtitle A--Protecting the Northern Border

Sec..401..Ensuring adequate personnel on the northern border.

Sec..402..Northern border personnel.

Sec..403..Access by the Department of State and the INS to certain identifying information in the criminal history records of visa applicants and applicants for admission to the United States.

Sec..404..Limited authority to pay overtime.

Sec..405..Report on the integrated automated fingerprint identification system for points of entry and overseas consular posts.

Subtitle B--Enhanced Immigration Provisions

Sec..411..Definitions relating to terrorism.

Sec..412..Mandatory detention of suspected terrorists; habeas corpus; judicial review.

Sec..413..Multilateral cooperation against terrorists.

TITLE V--REMOVING OBSTACLES TO INVESTIGATING TERRORISM

Sec..501..Professional Standards for Government Attorneys Act of 2001.

Sec..502..Attorney General's authority to pay rewards to combat terrorism.

Sec..503..Secretary of State's authority to pay rewards.

Sec..504..DNA identification of terrorists and other violent offenders.

Sec..505..Coordination with law enforcement.

Sec..506..Miscellaneous national security authorities.

Sec..507..Extension of Secret Service jurisdiction.

Sec..508..Disclosure of educational records.

Sec..509..Disclosure of information from NCES surveys.

TITLE VI--PROVIDING FOR VICTIMS OF TERRORISM, PUBLIC SAFETY OFFICERS, AND THEIR FAMILIES

Subtitle A--Aid to Families of Public Safety Officers

Sec..611..Expedited payment for public safety officers involved in the prevention, investigation, rescue, or recovery efforts related to a terrorist attack.

Sec..612..Technical correction with respect to expedited payments for heroic public safety officers.

Sec..613..Public Safety Officers Benefit Program payment increase.

Sec..614..Office of justice programs.

Subtitle B--Amendments to the Victims of Crime Act of 1984

Sec..621..Crime Victims Fund.

Sec..622..Crime victim compensation.

Sec..623..Crime victim assistance.

Sec..624..Victims of terrorism.

TITLE VII--INCREASED INFORMATION SHARING FOR CRITICAL INFRASTRUCTURE PROTECTION

Sec..711..Expansion of regional information sharing system to facilitate Federal-State-local law enforcement response related to terrorist attacks.

TITLE VIII--STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM

Sec..801..Terrorist attacks and other acts of violence against mass transportation systems.

Sec..802..Expansion of the biological weapons statute.

Sec..803..Definition of domestic terrorism.

Sec..804..Prohibition against harboring terrorists.

Sec..805..Jurisdiction over crimes committed at U.S. facilities abroad.

Sec..806..Material support for terrorism.

Sec..807..Assets of terrorist organizations.

Sec..808..Technical clarification relating to provision of material support to terrorism.

Sec..809..Definition of Federal crime of terrorism.

Sec..810..No statute of limitation for certain terrorism offenses.

Sec..811..Alternate maximum penalties for terrorism offenses.

Sec..812..Penalties for terrorist conspiracies.

Sec..813..Post-release supervision of terrorists.

Sec..814..Inclusion of acts of terrorism as racketeering activity.

Sec..815..Deterrence and prevention of cyberterrorism.

Sec..816..Additional defense to civil actions relating to preserving records in response to government requests.

Sec..817..Development and support of cybersecurity forensic capabilities.

TITLE IX--IMPROVED INTELLIGENCE

Sec..901..Responsibilities of Director of Central Intelligence regarding foreign intelligence collected under Foreign Intelligence Surveillance Act of 1978.

Sec..902..Inclusion of international terrorist activities within scope of foreign intelligence under National Security Act of 1947.

Sec..903..Sense of Congress on the establishment and maintenance of intelligence relationships to acquire information on terrorists and terrorist organizations.

Sec..904..Temporary authority to defer submittal to Congress of reports on intelligence and intelligence-related matters.

Sec..905..Disclosure to director of central intelligence of foreign intelligence-related information with respect to criminal investigations.

Sec..906..Foreign terrorist asset tracking center.

Sec..907..National virtual translation center.

Sec..908..Training of government officials regarding identification and use of foreign intelligence.

SEC. 2. CONSTRUCTION; SEVERABILITY.

Any provision of this Act held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to give it the maximum effect permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be deemed severable from this Act and shall not affect the remainder thereof or the application of such provision to other persons not similarly situated or to other, dissimilar circumstances.

TITLE I--ENHANCING DOMESTIC SECURITY AGAINST TERRORISM

SEC. 101. COUNTERTERRORISM FUND.

(a) ESTABLISHMENT; AVAILABILITY.--There is hereby established in the Treasury of the United States a separate fund to be known as

[Page: S10606]

the ``Counterterrorism Fund'', amounts in which shall remain available without fiscal year limitation--

(1) to reimburse any Department of Justice component for any costs incurred in connection with--

(A) reestablishing the operational capability of an office or facility that has been damaged or destroyed as the result of any domestic or international terrorism incident;

(B) providing support to counter, investigate, or prosecute domestic or international terrorism, including, without limitation, paying rewards in connection with these activities; and

(C) conducting terrorism threat assessments of Federal agencies and their facilities; and

(2) to reimburse any department or agency of the Federal Government for any costs incurred in connection with detaining in foreign countries individuals accused of acts of terrorism that violate the laws of the United States.

(b) NO EFFECT ON PRIOR APPROPRIATIONS.--Subsection (a) shall not be construed to affect the amount or availability of any appropriation to the Counterterrorism Fund made before the date of enactment of this Act.

SEC. 102. SENSE OF CONGRESS CONDEMNING DISCRIMINATION AGAINST ARAB AND MUSLIM AMERICANS.

(a) FINDINGS.--Congress makes the following findings:

(1) Arab Americans, Muslim Americans, and Americans from South Asia play a vital role in our Nation and are entitled to nothing less than the full rights of every American.

(2) The acts of violence that have been taken against Arab and Muslim Americans since the September 11, 2001, attacks against the United States should be and are condemned by all Americans who value freedom.

(3) The concept of individual responsibility for wrongdoing is sacrosanct in American society, and applies equally to all religious, racial, and ethnic groups.

(4) When American citizens commit acts of violence against those who are, or are perceived to be, of Arab or Muslim descent, they should be punished to the full extent of the law.

(5) Muslim Americans have become so fearful of harassment that many Muslim women are changing the way they dress to avoid becoming targets.

(6) Many Arab Americans and Muslim Americans have acted heroically during the attacks on the United States, including Mohammed Salman Hamdani, a 23-year-old New Yorker of Pakistani descent, who is believed to have gone to the World Trade Center to offer rescue assistance and is now missing.

(b) SENSE OF CONGRESS.--It is the sense of Congress that--

(1) the civil rights and civil liberties of all Americans, including Arab Americans, Muslim Americans, and Americans from South Asia, must be protected, and that every effort must be taken to preserve their safety;

(2) any acts of violence or discrimination against any Americans be condemned; and

(3) the Nation is called upon to recognize the patriotism of fellow citizens from all ethnic, racial, and religious backgrounds.

SEC. 103. INCREASED FUNDING FOR THE TECHNICAL SUPPORT CENTER AT THE FEDERAL BUREAU OF INVESTIGATION.

There are authorized to be appropriated for the Technical Support Center established in section 811 of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132) to help meet the demands for activities to combat terrorism and support and enhance the technical support and tactical operations of the FBI, $200,000,000 for each of the fiscal years 2002, 2003, and 2004.

SEC. 104. REQUESTS FOR MILITARY ASSISTANCE TO ENFORCE PROHIBITION IN CERTAIN EMERGENCIES.

Section 2332e of title 18, United States Code, is amended--

(1) by striking ``2332c'' and inserting ``2332a''; and

(2) by striking ``chemical''.

SEC. 105. EXPANSION OF NATIONAL ELECTRONIC CRIME TASK FORCE INITIATIVE.

The Director of the United States Secret Service shall take appropriate actions to develop a national network of electronic crime task forces, based on the New York Electronic Crimes Task Force model, throughout the United States, for the purpose of preventing, detecting, and investigating various forms of electronic crimes, including potential terrorist attacks against critical infrastructure and financial payment systems.

SEC. 106. PRESIDENTIAL AUTHORITY.

Section 203 of the International Emergency Powers Act (50 U.S.C. 1702) is amended--

(1) in subsection (a)(1)--

(A) at the end of subparagraph (A) (flush to that subparagraph), by striking ``; and'' and inserting a comma and the following:

``by any person, or with respect to any property, subject to the jurisdiction of the United States;'';

(B) in subparagraph (B)--

(i) by inserting ``, block during the pendency of an investigation'' after ``investigate''; and

(ii) by striking ``interest;'' and inserting ``interest by any person, or with respect to any property, subject to the jurisdiction of the United States; and''; and

(C) by inserting at the end the following:

``(C) when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals, confiscate any property, subject to the jurisdiction of the United States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized, aided, or engaged in such hostilities or attacks against the United States; and all right, title, and interest in any property so confiscated shall vest, when, as, and upon the terms directed by the President, in such agency or person as the President may designate from time to time, and upon such terms and conditions as the President may prescribe, such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes.''; and

(2) by inserting at the end the following:

``(c) CLASSIFIED INFORMATION.--In any judicial review of a determination made under this section, if the determination was based on classified information (as defined in section 1(a) of the Classified Information Procedures Act) such information may be submitted to the reviewing court ex parte and in camera. This subsection does not confer or imply any right to judicial review.''.

TITLE II--ENHANCED SURVEILLANCE PROCEDURES

SEC. 201. AUTHORITY TO INTERCEPT WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS RELATING TO TERRORISM.

Section 2516(1) of title 18, United States Code, is amended--

(1) by redesignating paragraph (p), as so redesignated by section 434(2) of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132; 110 Stat. 1274), as paragraph (r); and

(2) by inserting after paragraph (p), as so redesignated by section 201(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104-208; 110 Stat. 3009-565), the following new paragraph:

``(q) any criminal violation of section 229 (relating to chemical weapons); or sections 2332, 2332a, 2332b, 2332d, 2339A, or 2339B of this title (relating to terrorism); or''.

SEC. 202. AUTHORITY TO INTERCEPT WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS RELATING TO COMPUTER FRAUD AND ABUSE OFFENSES.

Section 2516(1)(c) of title 18, United States Code, is amended by striking ``and section 1341 (relating to mail fraud),'' and inserting ``section 1341 (relating to mail fraud), a felony violation of section 1030 (relating to computer fraud and abuse),''.

SEC. 203. AUTHORITY TO SHARE CRIMINAL INVESTIGATIVE INFORMATION.

(a) AUTHORITY TO SHARE GRAND JURY INFORMATION.--

(1) IN GENERAL.--Rule 6(e)(3)(C) of the Federal Rules of Criminal Procedure is amended--

(A) in clause (iii), by striking ``or'' at the end;

(B) in clause (iv), by striking the period at the end and inserting ``; or''; and

(C) by inserting at the end the following:

``(v) when the matters involve foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in Rule 6(e)(3)(C)(ii)) to any other Federal law enforcement, intelligence, protective, immigration, national defense, or national security official in order to assist the official receiving that information in the performance of his official duties.

Any Federal official who receives information pursuant to clause (v) may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information.''.

(2) DEFINITION.--Rule 6(e)(3)(C) of the Federal Rules of Criminal Procedure, as amended by paragraph (1), is amended by--

(A) inserting ``(i)'' after ``(C)'';

(B) redesignating clauses (i) through (v) as subclauses (I) through (IV), respectively; and

(C) inserting at the end the following:

``(ii) In this subparagraph, the term `foreign intelligence information' means--

``(I) information, whether or not concerning a United States person, that relates to the ability of the United States to protect against--

``(aa) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

``(bb) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

``(cc) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or

``(II) information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to--

``(aa) the national defense or the security of the United States; or

``(bb) the conduct of the foreign affairs of the United States.''.

(b) AUTHORITY TO SHARE ELECTRONIC, WIRE, AND ORAL INTERCEPTION INFORMATION.--

(1) LAW ENFORCEMENT.--Section 2517 of title 18, United States Code, is amended by inserting at the end the following:

``(6) Any investigative or law enforcement officer, or attorney for the Government, who by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or

[Page: S10607]

evidence derived therefrom, may disclose such contents to any other Federal law enforcement, intelligence, protective, immigration, national defense, or national security official to the extent that such contents include foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), or foreign intelligence information (as defined in subsection (19) of section 2510 of this title), to assist the official who is to receive that information in the performance of his official duties. Any Federal official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information.''.

(2) DEFINITION.--Section 2510 of title 18, United States Code, is amended by--

(A) in paragraph (17), by striking ``and'' after the semicolon;

(B) in paragraph (18), by striking the period and inserting ``; and''; and

(C) by inserting at the end the following:

``(19) `foreign intelligence information' means--

``(A) information, whether or not concerning a United States person, that relates to the ability of the United States to protect against--

``(i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

``(ii) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

``(iii) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or

``(B) information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to--

``(i) the national defense or the security of the United States; or

``(ii) the conduct of the foreign affairs of the United States.''.

(c) PROCEDURES.--The Attorney General shall establish procedures for the disclosure of information pursuant to section 2517(6) and Rule 6(e)(3)(C)(v) of the Federal Rules of Criminal Procedure that identifies a United States person, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801)).

(d) FOREIGN INTELLIGENCE INFORMATION.--

(1) IN GENERAL.--Notwithstanding any other provision of law, it shall be lawful for foreign intelligence or counterintelligence (as defined section 3 of the National Security Act of 1947 (50 U.S.C. 401a)) or foreign intelligence information obtained as part of a criminal investigation to be disclosed to any Federal law enforcement, intelligence, protective, immigration, national defense, or national security official in order to assist the official receiving that information in the performance of his official duties. Any Federal official who receives information pursuant to this provision may use that information only as necessary in the conduct of that person's official duties subject to any limitations on the unauthorized disclosure of such information.

(2) DEFINITION.--In this subsection, the term ``foreign intelligence information'' means--

(A) information, whether or not concerning a United States person, that relates to the ability of the United States to protect against--

(i) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

(ii) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

(iii) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or

(B) information, whether or not concerning a United States person, with respect to a foreign power or foreign territory that relates to--

(i) the national defense or the security of the United States; or

(ii) the conduct of the foreign affairs of the United States.

SEC. 204. CLARIFICATION OF INTELLIGENCE EXCEPTIONS FROM LIMITATIONS ON INTERCEPTION AND DISCLOSURE OF WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS.

Section 2511(2)(f) of title 18, United States Code, is amended--

(1) by striking ``this chapter or chapter 121'' and inserting ``this chapter or chapter 121 or 206 of this title''; and

(2) by striking ``wire and oral'' and inserting ``wire, oral, and electronic''.

SEC. 205. EMPLOYMENT OF TRANSLATORS BY THE FEDERAL BUREAU OF INVESTIGATION.

(a) AUTHORITY.--The Director of the Federal Bureau of Investigation is authorized to expedite the employment of personnel as translators to support counterterrorism investigations and operations without regard to applicable Federal personnel requirements and limitations.

(b) SECURITY REQUIREMENTS.--The Director of the Federal Bureau of Investigation shall establish such security requirements as are necessary for the personnel employed as translators under subsection (a).

(c) REPORT.--The Attorney General shall report to the Committees on the Judiciary of the House of Representatives and the Senate on--

(1) the number of translators employed by the FBI and other components of the Department of Justice;

(2) any legal or practical impediments to using translators employed by other Federal, State, or local agencies, on a full, part-time, or shared basis; and

(3) the needs of the FBI for specific translation services in certain languages, and recommendations for meeting those needs.

SEC. 206. ROVING SURVEILLANCE AUTHORITY UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

Section 105(c)(2)(B) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(c)(2)(B)) is amended by inserting ``, or in circumstances where the Court finds that the actions of the target of the application may have the effect of thwarting the identification of a specified person, such other persons,'' after ``specified person''.

SEC. 207. DURATION OF FISA SURVEILLANCE OF NON-UNITED STATES PERSONS WHO ARE AGENTS OF A FOREIGN POWER.

(a) DURATION .--

(1) SURVEILLANCE.--Section 105(d)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(d)(1)) is amended by--

(A) inserting ``(A)'' after ``except that''; and

(B) inserting before the period the following: ``, and (B) an order under this Act for a surveillance targeted against an agent of a foreign power, as defined in section 101(b)(A) may be for the period specified in the application or for 120 days, whichever is less''.

(2) PHYSICAL SEARCH.--Section 304(d)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1824(d)(1)) is amended by--

(A) striking ``forty-five'' and inserting ``90'';

(B) inserting ``(A)'' after ``except that''; and

(C) inserting before the period the following: ``, and (B) an order under this section for a physical search targeted against an agent of a foreign power as defined in section 101(b)(A) may be for the period specified in the application or for 120 days, whichever is less''.

(b) EXTENSION.--

(1) IN GENERAL.--Section 105(d)(2) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(d)(2)) is amended by--

(A) inserting ``(A)'' after ``except that''; and

(B) inserting before the period the following: ``, and (B) an extension of an order under this Act for a surveillance targeted against an agent of a foreign power as defined in section 101(b)(1)(A) may be for a period not to exceed 1 year''.

(2) DEFINED TERM.--Section 304(d)(2) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1824(d)(2) is amended by inserting after ``not a United States person,'' the following: ``or against an agent of a foreign power as defined in section 101(b)(1)(A)''.

SEC. 208. DESIGNATION OF JUDGES.

Section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) is amended by--

(1) striking ``seven district court judges'' and inserting ``11 district court judges''; and

(2) inserting ``of whom no less than 3 shall reside within 20 miles of the District of Columbia'' after ``circuits''.

SEC. 209. SEIZURE OF VOICE-MAIL MESSAGES PURSUANT TO WARRANTS.

Title 18, United States Code, is amended--

(1) in section 2510--

(A) in paragraph (1), by striking beginning with ``and such'' and all that follows through ``communication''; and

(B) in paragraph (14), by inserting ``wire or'' after ``transmission of''; and

(2) in subsections (a) and (b) of section 2703--

(A) by striking ``CONTENTS OF ELECTRONIC'' and inserting ``CONTENTS OF WIRE OR ELECTRONIC'' each place it appears;

(B) by striking ``contents of an electronic'' and inserting ``contents of a wire or electronic'' each place it appears; and

(C) by striking ``any electronic'' and inserting ``any wire or electronic'' each place it appears.

SEC. 210. SCOPE OF SUBPOENAS FOR RECORDS OF ELECTRONIC COMMUNICATIONS.

Section 2703(c)(2) of title 18, United States Code, as redesignated by section 212, is amended--

(1) by striking ``entity the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of the subscriber'' and inserting the following: ``entity the--

``(A) name;

``(B) address;

``(C) local and long distance telephone connection records, or records of session times and durations;

``(D) length of service (including start date) and types of service utilized;

``(E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and

``(F) means and source of payment (including any credit card or bank account number),

of a subscriber''; and

(2) by striking ``and the types of services the subscriber or customer utilized,''.

SEC. 211. CLARIFICATION OF SCOPE.

Section 631 of the Communications Act of 1934 (47 U.S.C. 551) is amended--

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(1) in subsection (c)(2)--

(A) in subparagraph (B), by striking ``or'';

(B) in subparagraph (C), by striking the period at the end and inserting''; or''; and

(C) by inserting at the end the following:

``(D) authorized under chapters 119, 121, or 206 of title 18, United States Code, except that such disclosure shall not include records revealing customer cable television viewing activity.''; and

(2) in subsection (h) by striking ``A governmental entity'' and inserting ``Except as provided in subsection (c)(2)(D), a governmental entity''.

SEC. 212. EMERGENCY DISCLOSURE OF ELECTRONIC COMMUNICATIONS TO PROTECT LIFE AND LIMB.

(a) DISCLOSURE OF CONTENTS.--

(1) IN GENERAL.--Section 2702 of title 18, United States Code, is amended--

(A) by striking the section heading and inserting the following:``§2702. Voluntary disclosure of customer communications or records'';

(B) in subsection (a)--

(i) in paragraph (2)(A), by striking ``and'' at the end;

(ii) in paragraph (2)(B), by striking the period and inserting ``; and''; and

(iii) by inserting after paragraph (2) the following:

``(3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.'';

(C) in subsection (b), by striking ``EXCEPTIONS.--A person or entity'' and inserting ``EXCEPTIONS FOR DISCLOSURE OF COMMUNICATIONS.-- A provider described in subsection (a)'';

(D) in subsection (b)(6)--

(i) in subparagraph (A)(ii), by striking ``or'';

(ii) in subparagraph (B), by striking the period and inserting ``; or''; and

(iii) by adding after subparagraph (B) the following:

``(C) if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure of the information without delay.''; and

(E) by inserting after subsection (b) the following:

``(c) EXCEPTIONS FOR DISCLOSURE OF CUSTOMER RECORDS.--A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))--

``(1) as otherwise authorized in section 2703;

``(2) with the lawful consent of the customer or subscriber;

``(3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;

``(4) to a governmental entity, if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information; or

``(5) to any person other than a governmental entity.''.

(2) TECHNICAL AND CONFORMING AMENDMENT.--The table of sections for chapter 121 of title 18, United States Code, is amended by striking the item relating to section 2702 and inserting the following:

``2702. Voluntary disclosure of customer communications or records.''.

(b) REQUIREMENTS FOR GOVERNMENT ACCESS.--

(1) IN GENERAL.--Section 2703 of title 18, United States Code, is amended--

(A) by striking the section heading and inserting the following:``§2703. Required disclosure of customer communications or records'';

(B) in subsection (c) by redesignating paragraph (2) as paragraph (3);

(C) in subsection (c)(1)--

(i) by striking ``(A) Except as provided in subparagraph (B), a provider of electronic communication service or remote computing service may'' and inserting ``A governmental entity may require a provider of electronic communication service or remote computing service to'';

(ii) by striking ``covered by subsection (a) or (b) of this section) to any person other than a governmental entity.

``(B) A provider of electronic communication service or remote computing service shall disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a) or (b) of this section) to a governmental entity'' and inserting ``)'';

(iii) by redesignating subparagraph (C) as paragraph (2);

(iv) by redesignating clauses (i), (ii), (iii), and (iv) as subparagraphs (A), (B), (C), and (D), respectively;

(v) in subparagraph (D) (as redesignated) by striking the period and inserting ``; or''; and

(vi) by inserting after subparagraph (D) (as redesignated) the following:

``(E) seeks information under paragraph (2).''; and

(D) in paragraph (2) (as redesignated) by striking ``subparagraph (B)'' and insert ``paragraph (1)''.

(2) TECHNICAL AND CONFORMING AMENDMENT.--The table of sections for chapter 121 of title 18, United States Code, is amended by striking the item relating to section 2703 and inserting the following:

``2703. Required disclosure of customer communications or records.''.

SEC. 213. AUTHORITY FOR DELAYING NOTICE OF THE EXECUTION OF A WARRANT.

Section 3103a of title 18, United States Code, is amended--

(1) by inserting ``(a) IN GENERAL.--'' before ``In addition''; and

(2) by adding at the end the following:

``(b) DELAY.--With respect to the issuance of any warrant or court order under this section, or any other rule of law, to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if--

``(1) the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result (as defined in section 2705);

``(2) the warrant prohibits the seizure of any tangible property, any wire or electronic communication (as defined in section 2510), or, except as expressly provided in chapter 121, any stored wire or electronic information, except where the court finds reasonable necessity for the seizure; and

``(3) the warrant provides for the giving of such notice within a reasonable period of its execution, which period may thereafter be extended by the court for good cause shown.''.

SEC. 214. PEN REGISTER AND TRAP AND TRACE AUTHORITY UNDER FISA.

(a) APPLICATIONS AND ORDERS.--Section 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842) is amended--

(1) in subsection (a)(1), by striking ``for any investigation to gather foreign intelligence information or information concerning international terrorism'' and inserting ``for any investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution'';

(2) by amending subsection (c)(2) to read as follows:

``(2) a certification by the applicant that the information likely to be obtained is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.'';

(3) by striking subsection (c)(3); and

(4) by amending subsection (d)(2)(A) to read as follows:

``(A) shall specify--

``(i) the identity, if known, of the person who is the subject of the investigation;

``(ii) the identity, if known, of the person to whom is leased or in whose name is listed the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied;

``(iii) the attributes of the communications to which the order applies, such as the number or other identifier, and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied and, in the case of a trap and trace device, the geographic limits of the trap and trace order.''.

(b) AUTHORIZATION DURING EMERGENCIES.--Section 403 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1843) is amended--

(1) in subsection (a), by striking ``foreign intelligence information or information concerning international terrorism'' and inserting ``information to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution''; and

(2) in subsection (b)(1), by striking ``foreign intelligence information or information concerning international terrorism'' and inserting ``information to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution''.

SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.

Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following:

``SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS.

``(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities

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protected by the first amendment to the Constitution.

``(2) An investigation conducted under this section shall--

``(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and

``(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

``(b) Each application under this section--

``(1) shall be made to--

``(A) a judge of the court established by section 103(a); or

``(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and

``(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities.

``(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.

``(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).

``(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

``(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.

``SEC. 502. CONGRESSIONAL OVERSIGHT.

``(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for the production of tangible things under section 402.

``(b) On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period--

``(1) the total number of applications made for orders approving requests for the production of tangible things under section 402; and

``(2) the total number of such orders either granted, modified, or denied.''.

SEC. 216. MODIFICATION OF AUTHORITIES RELATING TO USE OF PEN REGISTERS AND TRAP AND TRACE DEVICES.

(a) GENERAL LIMITATIONS.--Section 3121(c) of title 18, United States Code, is amended--

(1) by inserting ``or trap and trace device'' after ``pen register'';

(2) by inserting ``, routing, addressing,'' after ``dialing''; and

(3) by striking ``call processing'' and inserting ``the processing and transmitting of wire or electronic communications so as not to include the contents of any wire or electronic communications''.

(b) ISSUANCE OF ORDERS.--

(1) IN GENERAL.--Section 3123(a) of title 18, United States Code, is amended to read as follows:

``(a) IN GENERAL.--

``(1) ATTORNEY FOR THE GOVERNMENT.--Upon an application made under section 3122(a)(1), the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device anywhere within the United States, if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation. The order, upon service of that order, shall apply to any person or entity providing wire or electronic communication service in the United States whose assistance may facilitate the execution of the order. Whenever such an order is served on any person or entity not specifically named in the order, upon request of such person or entity, the attorney for the Government or law enforcement or investigative officer that is serving the order shall provide written or electronic certification that the order applies to the person or entity being served.

``(2) STATE INVESTIGATIVE OR LAW ENFORCEMENT OFFICER.--Upon an application made under section 3122(a)(2), the court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device within the jurisdiction of the court, if the court finds that the State law enforcement or investigative officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.''.

(2) CONTENTS OF ORDER.--Section 3123(b)(1) of title 18, United States Code, is amended--

(A) in subparagraph (A)--

(i) by inserting ``or other facility'' after ``telephone line''; and

(ii) by inserting before the semicolon at the end ``or applied''; and

(B) by striking subparagraph (C) and inserting the following:

``(C) the attributes of the communications to which the order applies, including the number or other identifier and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied, and, in the case of an order authorizing installation and use of a trap and trace device under subsection (a)(2), the geographic limits of the order; and''.

(3) NONDISCLOSURE REQUIREMENTS.--Section 3123(d)(2) of title 18, United States Code, is amended--

(A) by inserting ``or other facility'' after ``the line''; and

(B) by striking ``, or who has been ordered by the court'' and inserting ``or applied, or who is obligated by the order''.

(c) DEFINITIONS.--

(1) COURT OF COMPETENT JURISDICTION.--Section 3127(2) of title 18, United States Code, is amended by striking subparagraph (A) and inserting the following:

``(A) any district court of the United States (including a magistrate judge of such a court) or any United States court of appeals having jurisdiction over the offense being investigated; or''.

(2) PEN REGISTER.--Section 3127(3) of title 18, United States Code, is amended--

(A) by striking ``electronic or other impulses'' and all that follows through ``is attached'' and inserting ``dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication''; and

(B) by inserting ``or process'' after ``device'' each place it appears.

(3) TRAP AND TRACE DEVICE.--Section 3127(4) of title 18, United States Code, is amended--

(A) by striking ``of an instrument'' and all that follows through the semicolon and inserting ``or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication, provided, however, that such information shall not include the contents of any communication;''; and

(B) by inserting ``or process'' after ``a device''.

(4) CONFORMING AMENDMENT.--Section 3127(1) of title 18, United States Code, is amended--

(A) by striking ``and''; and

(B) by inserting ``, and `contents' '' after ``electronic communication service''.

(5) TECHNICAL AMENDMENT.--Section 3124(d) of title 18, United States Code, is amended by striking ``the terms of''.

SEC. 217. INTERCEPTION OF COMPUTER TRESPASSER COMMUNICATIONS.

Chapter 119 of title 18, United States Code, is amended--

(1) in section 2510--

(A) in paragraph (17), by striking ``and'' at the end;

(B) in paragraph (18), by striking the period and inserting a semicolon; and

(C) by inserting after paragraph (18) the following:

``(19) `protected computer' has the meaning set forth in section 1030; and

``(20) `computer trespasser'--

``(A) means a person who accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and

``(B) does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer.''; and

(2) in section 2511(2), by inserting at the end the following:

``(i) It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser, if--

``(i) the owner or operator of the protected computer authorizes the interception of the computer trespasser's communications on the protected computer;

``(ii) the person acting under color of law is lawfully engaged in an investigation;

``(iii) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation; and

``(iv) such interception does not acquire communications other than those transmitted to or from the computer trespasser.''.

SEC. 218. FOREIGN INTELLIGENCE INFORMATION.

Sections 104(a)(7)(B) and section 303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign Intelligence Surveillance Act of 1978 are each amended by striking ``the purpose'' and inserting ``a significant purpose''.

SEC. 219. SINGLE-JURISDICTION SEARCH WARRANTS FOR TERRORISM.

Rule 41(a) of the Federal Rules of Criminal Procedure is amended by inserting after ``executed'' the following: ``and (3) in an investigation of domestic terrorism or international terrorism (as defined in section 2331 of title 18, United States Code), by a Federal magistrate judge in any district in which activities related to the terrorism may have occurred, for a search of property or for a person within or outside the district''.

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SEC. 220. NATIONWIDE SERVICE OF SEARCH WARRANTS FOR ELECTRONIC EVIDENCE.

Chapter 121 of title 18, United States Code, is amended--

(1) in section 2703, by striking ``under the Federal Rules of Criminal Procedure'' every place it appears and inserting ``using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation''; and

(2) in section 2711--

(A) in paragraph (1), by striking ``and'';

(B) in paragraph (2), by striking the period and inserting ``; and''; and

(C) by inserting at the end the following:

``(3) the term `court of competent jurisdiction' has the meaning assigned by section 3127, and includes any Federal court within that definition, without geographic limitation.''.

SEC. 221. TRADE SANCTIONS.

(a) IN GENERAL.--The Trade Sanctions Reform and Export Enhancement Act of 2000 (Public Law 106-387; 114 Stat. 1549A-67) is amended--

(1) by amending section 904(2)(C) to read as follows:

``(C) used to facilitate the design, development, or production of chemical or biological weapons, missiles, or weapons of mass destruction.'';

(2) in section 906(a)(1)--

(A) by inserting ``, the Taliban or the territory of Afghanistan controlled by the Taliban,'' after ``Cuba''; and

(B) by inserting ``, or in the territory of Afghanistan controlled by the Taliban,'' after ``within such country''; and

(3) in section 906(a)(2), by inserting ``, or to any other entity in Syria or North Korea'' after ``Korea''.

(b) APPLICATION OF THE TRADE SANCTIONS REFORM AND EXPORT ENHANCEMENT ACT.--Nothing in the Trade Sanctions Reform and Export Enhancement Act of 2000 shall limit the application or scope of any law establishing criminal or civil penalties, including any executive order or regulation promulgated pursuant to such laws (or similar or successor laws), for the unlawful export of any agricultural commodity, medicine, or medical device to--

(1) a foreign organization, group, or person designated pursuant to Executive Order 12947 of June 25, 1995;

(2) a Foreign Terrorist Organization pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132);

(3) a foreign organization, group, or person designated pursuant to Executive Order 13224 (September 23, 2001);

(4) any narcotics trafficking entity designated pursuant to Executive Order 12978 (October 21, 1995) or the Foreign Narcotics Kingpin Designation Act (Public Law 106-120); or

(5) any foreign organization, group, or persons subject to any restriction for its involvement in weapons of mass destruction or missile proliferation.

SEC. 222. ASSISTANCE TO LAW ENFORCEMENT AGENCIES.

Nothing in this Act shall impose any additional technical obligation or requirement on a provider of wire or electronic communication service or other person to furnish facilities or technical assistance. A provider of a wire or electronic communication service, landlord, custodian, or other person who furnishes facilities or technical assistance pursuant to section 216 shall be reasonably compensated for such reasonable expenditures incurred in providing such facilities or assistance.

TITLE III--INTERNATIONAL MONEY LAUNDERING ABATEMENT AND ANTI-TERRORIST FINANCING ACT OF 2001.

SEC. 301. SHORT TITLE.

This title may be cited as the ``International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001''.

SEC. 302. FINDINGS AND PURPOSES.

(a) FINDINGS.--The Congress finds that--

(1) money laundering, estimated by the International Monetary Fund to amount to between 2 and 5 percent of global gross domestic product, which is at least $600,000,000,000 annually, provides the financial fuel that permits transnational criminal enterprises to conduct and expand their operations to the detriment of the safety and security of American citizens;

(2) money laundering, and the defects in financial transparency on which money launderers rely, are critical to the financing of global terrorism and the provision of funds for terrorist attacks;

(3) money launderers subvert legitimate financial mechanisms and banking relationships by using them as protective covering for the movement of criminal proceeds and the financing of crime and terrorism, and, by so doing, can threaten the safety of United States citizens and undermine the integrity of United States financial institutions and of the global financial and trading systems upon which prosperity and growth depend;

(4) certain jurisdictions outside of the United States that offer ``offshore'' banking and related facilities designed to provide anonymity, coupled with special tax advantages and weak financial supervisory and enforcement regimes, provide essential tools to disguise ownership and movement of criminal funds, derived from, or used to commit, offenses ranging from narcotics trafficking, terrorism, arms smuggling, and trafficking in human beings, to financial frauds that prey on law-abiding citizens;

(5) transactions involving such offshore jurisdictions make it difficult for law enforcement officials and regulators to follow the trail of money earned by criminals, organized international criminal enterprises, and global terrorist organizations;

(6) correspondent banking facilities are one of the banking mechanisms susceptible in some circumstances to manipulation by foreign banks to permit the laundering of funds by hiding the identity of real parties in interest to financial transactions;

(7) private banking services can be susceptible to manipulation by money launderers, for example corrupt foreign government officials, particularly if those services include the creation of offshore accounts and facilities for large personal funds transfers to channel funds into accounts around the globe;

(8) United States anti-money laundering efforts are impeded by outmoded and inadequate statutory provisions that make investigations, prosecutions, and forfeitures more difficult, particularly in cases in which money laundering involves foreign persons, foreign banks, or foreign countries;

(9) the ability to mount effective counter-measures to international money launderers requires national, as well as bilateral and multilateral action, using tools specially designed for that effort; and

(10) the Basle Committee on Banking Regulation and Supervisory Practices and the Financial Action Task Force on Money Laundering, of both of which the United States is a member, have each adopted international anti-money laundering principles and recommendations.

(b) PURPOSES.--The purposes of this title are--

(1) to increase the strength of United States measures to prevent, detect, and prosecute international money laundering and the financing of terrorism;

(2) to ensure that--

(A) banking transactions and financial relationships and the conduct of such transactions and relationships, do not contravene the purposes of subchapter II of chapter 53 of title 31, United States Code, section 21 of the Federal Deposit Insurance Act, or chapter 2 of title I of Public Law 91-508 (84 Stat. 1116), or facilitate the evasion of any such provision; and

(B) the purposes of such provisions of law continue to be fulfilled, and that such provisions of law are effectively and efficiently administered;

(3) to strengthen the provisions put into place by the Money Laundering Control Act of 1986 (18 U.S.C. 981 note), especially with respect to crimes by non-United States nationals and foreign financial institutions;

(4) to provide a clear national mandate for subjecting to special scrutiny those foreign jurisdictions, financial institutions operating outside of the United States, and classes of international transactions that pose particular, identifiable opportunities for criminal abuse;

(5) to provide the Secretary of the Treasury (in this title referred to as the ``Secretary'') with broad discretion, subject to the safeguards provided by the Administrative Procedures Act under title 5, United States Code, to take measures tailored to the particular money laundering problems presented by specific foreign jurisdictions, financial institutions operating outside of the United States, and classes of international transactions;

(6) to ensure that the employment of such measures by the Secretary permits appropriate opportunity for comment by affected financial institutions;

(7) to provide guidance to domestic financial institutions on particular foreign jurisdictions, financial institutions operating outside of the United States, and classes of international transactions that are of primary money laundering concern to the United States Government;

(8) to ensure that the forfeiture of any assets in connection with the anti-terrorist efforts of the United States permits for adequate challenge consistent with providing due process rights;

(9) to clarify the terms of the safe harbor from civil liability for filing suspicious activity reports;

(10) to strengthen the authority of the Secretary to issue and administer geographic targeting orders, and to clarify that violations of such orders or any other requirement imposed under the authority contained in chapter 2 of title I of Public Law 91-508 and subchapters II and III of chapter 53 of title 31, United States Code, may result in criminal and civil penalties;

(11) to ensure that all appropriate elements of the financial services industry are subject to appropriate requirements to report potential money laundering transactions to proper authorities, and that jurisdictional disputes do not hinder examination of compliance by financial institutions with relevant reporting requirements;

(12) to fix responsibility for high level coordination of the anti-money laundering efforts of the Department of the Treasury;

(13) to strengthen the ability of financial institutions to maintain the integrity of their employee population; and

(14) to strengthen measures to prevent the use of the United States financial system for personal gain by corrupt foreign officials and to facilitate the repatriation of any stolen assets to the citizens of countries to whom such assets belong.

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SEC. 303. 4-YEAR CONGRESSIONAL REVIEW-EXPEDITED CONSIDERATION.

(a) IN GENERAL.--Effective on and after the first day of fiscal year 2005, the provisions of this title and the amendments made by this title shall terminate if the Congress enacts a joint resolution, the text after the resolving clause of which is as follows: ``That provisions of the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, and the amendments made thereby, shall no longer have the force of law.''.

(b) EXPEDITED CONSIDERATION.--Any joint resolution submitted pursuant to this section shall be considered in the Senate in accordance with the provisions of section 601(b) of the International Security Assistance and Arms Control Act of 1976. For the purpose of expediting the consideration and enactment of a joint resolution under this section, a motion to proceed to the consideration of any such joint resolution after it has been reported by the appropriate committee, shall be treated as highly privileged in the House of Representatives.

Subtitle A--International Counter Money Laundering and Related Measures

SEC. 311. SPECIAL MEASURES FOR JURISDICTIONS, FINANCIAL INSTITUTIONS, OR INTERNATIONAL TRANSACTIONS OF PRIMARY MONEY LAUNDERING CONCERN.

(a) IN GENERAL.--Subchapter II of chapter 53 of title 31, United States Code, is amended by inserting after section 5318 the following new section:

``SEC. 5318A. SPECIAL MEASURES FOR JURISDICTIONS, FINANCIAL INSTITUTIONS, OR INTERNATIONAL TRANSACTIONS OF PRIMARY MONEY LAUNDERING CONCERN.

``(a) INTERNATIONAL COUNTER-MONEY LAUNDERING REQUIREMENTS.--

``(1) IN GENERAL.--The Secretary may require domestic financial institutions and domestic financial agencies to take 1 or more of the special measures described in subsection (b) if the Secretary finds that reasonable grounds exist for concluding that a jurisdiction outside of the United States, 1 or more financial institutions operating outside of the United States, 1 or more classes of transactions within, or involving, a jurisdiction outside of the United States, or 1 or more types of accounts is of primary money laundering concern, in accordance with subsection (c).

``(2) FORM OF REQUIREMENT.--The special measures described in--

``(A) subsection (b) may be imposed in such sequence or combination as the Secretary shall determine;

``(B) paragraphs (1) through (4) of subsection (b) may be imposed by regulation, order, or otherwise as permitted by law; and

``(C) subsection (b)(5) may be imposed only by regulation.

``(3) DURATION OF ORDERS; RULEMAKING.--Any order by which a special measure described in paragraphs (1) through (4) of subsection (b) is imposed (other than an order described in section 5326)--

``(A) shall be issued together with a notice of proposed rulemaking relating to the imposition of such special measure; and

``(B) may not remain in effect for more than 120 days, except pursuant to a rule promulgated on or before the end of the 120-day period beginning on the date of issuance of such order.

``(4) PROCESS FOR SELECTING SPECIAL MEASURES.--In selecting which special measure or measures to take under this subsection, the Secretary--

``(A) shall consult with the Chairman of the Board of Governors of the Federal Reserve System, any other appropriate Federal banking agency, as defined in section 3 of the Federal Deposit Insurance Act, the Securities and Exchange Commission, the National Credit Union Administration Board, and in the sole discretion of the Secretary such other agencies and interested parties as the Secretary may find to be appropriate; and

``(B) shall consider--

``(i) whether similar action has been or is being taken by other nations or multilateral groups;

``(ii) whether the imposition of any particular special measure would create a significant competitive disadvantage, including any undue cost or burden associated with compliance, for financial institutions organized or licensed in the United States; and

``(iii) the extent to which the action or the timing of the action would have a significant adverse systemic impact on the international payment, clearance, and settlement system, or on legitimate business activities involving the particular jurisdiction, institution, or class of transactions.

``(5) NO LIMITATION ON OTHER AUTHORITY.--This section shall not be construed as superseding or otherwise restricting any other authority granted to the Secretary, or to any other agency, by this subchapter or otherwise.

``(b) SPECIAL MEASURES.--The special measures referred to in subsection (a), with respect to a jurisdiction outside of the United States, financial institution operating outside of the United States, class of transaction within, or involving, a jurisdiction outside of the United States, or 1 or more types of accounts are as follows:

``(1) RECORDKEEPING AND REPORTING OF CERTAIN FINANCIAL TRANSACTIONS.--

``(A) IN GENERAL.--The Secretary may require any domestic financial institution or domestic financial agency to maintain records, file reports, or both, concerning the aggregate amount of transactions, or concerning each transaction, with respect to a jurisdiction outside of the United States, 1 or more financial institutions operating outside of the United States, 1 or more classes of transactions within, or involving, a jurisdiction outside of the United States, or 1 or more types of accounts if the Secretary finds any such jurisdiction, institution, or class of transactions to be of primary money laundering concern.

``(B) FORM OF RECORDS AND REPORTS.--Such records and reports shall be made and retained at such time, in such manner, and for such period of time, as the Secretary shall determine, and shall include such information as the Secretary may determine, including--

``(i) the identity and address of the participants in a transaction or relationship, including the identity of the originator of any funds transfer;

``(ii) the legal capacity in which a participant in any transaction is acting;

``(iii) the identity of the beneficial owner of the funds involved in any transaction, in accordance with such procedures as the Secretary determines to be reasonable and practicable to obtain and retain the information; and

``(iv) a description of any transaction.

``(2) INFORMATION RELATING TO BENEFICIAL OWNERSHIP.--In addition to any other requirement under any other provision of law, the Secretary may require any domestic financial institution or domestic financial agency to take such steps as the Secretary may determine to be reasonable and practicable to obtain and retain information concerning the beneficial ownership of any account opened or maintained in the United States by a foreign person (other than a foreign entity whose shares are subject to public reporting requirements or are listed and traded on a regulated exchange or trading market), or a representative of such a foreign person, that involves a jurisdiction outside of the United States, 1 or more financial institutions operating outside of the United States, 1 or more classes of transactions within, or involving, a jurisdiction outside of the United States, or 1 or more types of accounts if the Secretary finds any such jurisdiction, institution, or transaction to be of primary money laundering concern.

``(3) INFORMATION RELATING TO CERTAIN PAYABLE-THROUGH ACCOUNTS.--If the Secretary finds a jurisdiction outside of the United States, 1 or more financial institutions operating outside of the United States, or 1 or more classes of transactions within, or involving, a jurisdiction outside of the United States to be of primary money laundering concern, the Secretary may require any domestic financial institution or domestic financial agency that opens or maintains a payable-through account in the United States for a foreign financial institution involving any such jurisdiction or any such financial institution operating outside of the United States, or a payable through account through which any such transaction may be conducted, as a condition of opening or maintaining such account--

``(A) to identify each customer (and representative of such customer) of such financial institution who is permitted to use, or whose transactions are routed through, such payable-through account; and

``(B) to obtain, with respect to each such customer (and each such representative), information that is substantially comparable to that which the depository institution obtains in the ordinary course of business with respect to its customers residing in the United States.

``(4) INFORMATION RELATING TO CERTAIN CORRESPONDENT ACCOUNTS.--If the Secretary finds a jurisdiction outside of the United States, 1 or more financial institutions operating outside of the United States, or 1 or more classes of transactions within, or involving, a jurisdiction outside of the United States to be of primary money laundering concern, the Secretary may require any domestic financial institution or domestic financial agency that opens or maintains a correspondent account in the United States for a foreign financial institution involving any such jurisdiction or any such financial institution operating outside of the United States, or a correspondent account through which any such transaction may be conducted, as a condition of opening or maintaining such account--

``(A) to identify each customer (and representative of such customer) of any such financial institution who is permitted to use, or whose transactions are routed through, such correspondent account; and

``(B) to obtain, with respect to each such customer (and each such representative), information that is substantially comparable to that which the depository institution obtains in the ordinary course of business with respect to its customers residing in the United States.

``(5) PROHIBITIONS OR CONDITIONS ON OPENING OR MAINTAINING CERTAIN CORRESPONDENT OR PAYABLE-THROUGH ACCOUNTS.--If the Secretary finds a jurisdiction outside of the United States, 1 or more financial institutions operating outside of the United States, or 1 or more classes of transactions within, or involving, a jurisdiction outside of the United States to be of primary money laundering concern, the Secretary, in consultation with the Secretary of State, the Attorney General, and the Chairman of the Board of Governors of the Federal Reserve System, may prohibit, or impose conditions upon, the opening or maintaining in the United States of a correspondent account or payable-

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through account by any domestic financial institution or domestic financial agency for or on behalf of a foreign banking institution, if such correspondent account or payable-through account involves any such jurisdiction or institution, or if any such transaction may be conducted through such correspondent account or payable-through account.

``(c) CONSULTATIONS AND INFORMATION TO BE CONSIDERED IN FINDING JURISDICTIONS, INSTITUTIONS, TYPES OF ACCOUNTS, OR TRANSACTIONS TO BE OF PRIMARY MONEY LAUNDERING CONCERN.--

``(1) IN GENERAL.--In making a finding that reasonable grounds exist for concluding that a jurisdiction outside of the United States, 1 or more financial institutions operating outside of the United States, 1 or more classes of transactions within, or involving, a jurisdiction outside of the United States, or 1 or more types of accounts is of primary money laundering concern so as to authorize the Secretary to take 1 or more of the special measures described in subsection (b), the Secretary shall consult with the Secretary of State, and the Attorney General.

``(2) ADDITIONAL CONSIDERATIONS.--In making a finding described in paragraph (1), the Secretary shall consider in addition such information as the Secretary determines to be relevant, including the following potentially relevant factors:

``(A) JURISDICTIONAL FACTORS.--In the case of a particular jurisdiction--

``(i) evidence that organized criminal groups, international terrorists, or both, have transacted business in that jurisdiction;

(ii) the extent to which that jurisdiction or financial institutions operating in that jurisdiction offer bank secrecy or special tax or regulatory advantages to nonresidents or nondomiciliaries of that jurisdiction;

``(iii) the substance and quality of administration of the bank supervisory and counter-money laundering laws of that jurisdiction;

``(iv) the relationship between the volume of financial transactions occurring in that jurisdiction and the size of the economy of the jurisdiction;

``(v) the extent to which that jurisdiction is characterized as a tax haven or offshore banking or secrecy haven by credible international organizations or multilateral expert groups;

``(vi) whether the United States has a mutual legal assistance treaty with that jurisdiction, and the experience of United States law enforcement officials, regulatory officials, and tax administrators in obtaining information about transactions originating in or routed through or to such jurisdiction; and

``(vii) the extent to which that jurisdiction is characterized by high levels of official or institutional corruption.

``(B) INSTITUTIONAL FACTORS.--In the case of a decision to apply 1 or more of the special measures described in subsection (b) only to a financial institution or institutions, or to a transaction or class of transactions, or to a type of account, or to all 3, within or involving a particular jurisdiction--

``(i) the extent to which such financial institutions, transactions, or types of accounts are used to facilitate or promote money laundering in or through the jurisdiction;

``(ii) the extent to which such institutions, transactions, or types of accounts are used for legitimate business purposes in the jurisdiction; and

``(iii) the extent to which such action is sufficient to ensure, with respect to transactions involving the jurisdiction and institutions operating in the jurisdiction, that the purposes of this subchapter continue to be fulfilled, and to guard against international money laundering and other financial crimes.

``(d) NOTIFICATION OF SPECIAL MEASURES INVOKED BY THE SECRETARY.--Not later than 10 days after the date of any action taken by the Secretary under subsection (a)(1), the Secretary shall notify, in writing, the Committee on Financial Services of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate of any such action.

``(e) STUDY AND REPORT ON FOREIGN NATIONALS.--

``(1) STUDY.--The Secretary, in consultation with the appropriate Federal agencies, including the Federal banking agencies (as defined in section 3 of the Federal Deposit Insurance Act), shall conduct a study to--

``(A) determine the most timely and effective way to require foreign nationals to provide domestic financial institutions and agencies with appropriate and accurate information, comparable to that which is required of United States nationals, concerning their identity, address, and other related information necessary to enable such institutions and agencies to comply with the reporting, information gathering, and other requirements of this section; and

``(B) consider the need for requiring foreign nationals to apply for and obtain an identification number, similar to what is required for United States citizens through a social security number or tax identification number, prior to opening an account with a domestic financial institution.

``(2) REPORT.--The Secretary shall report to Congress not later than 180 days after the date of enactment of this section with recommendations for implementing such action referred to in paragraph (1) in a timely and effective manner.

``(f) DEFINITIONS.--Notwithstanding any other provision of this subchapter, for purposes of this section, the following definitions shall apply:

``(1) BANK DEFINITIONS.--The following definitions shall apply with respect to a bank:

``(A) ACCOUNT.--The term `account'--

``(i) means a formal banking or business relationship established to provide regular services, dealings, and other financial transactions; and

``(ii) includes a demand deposit, savings deposit, or other transaction or asset account and a credit account or other extension of credit.

``(B) CORRESPONDENT ACCOUNT.--The term `correspondent account' means an account established to receive deposits from, make payments on behalf of a foreign financial institution, or handle other financial transactions related to such institution.

``(C) PAYABLE-THROUGH ACCOUNT.--The term `payable-through account' means an account, including a transaction account (as defined in section 19(b)(1)(C) of the Federal Reserve Act), opened at a depository institution by a foreign financial institution by means of which the foreign financial institution permits its customers to engage, either directly or through a subaccount, in banking activities usual in connection with the business of banking in the United States.

``(2) DEFINITIONS APPLICABLE TO INSTITUTIONS OTHER THAN BANKS.--With respect to any financial institution other than a bank, the Secretary shall, after consultation with the Securities and Exchange Commission, define by regulation the term `account', and shall include within the meaning of that term, to the extent, if any, that the Secretary deems appropriate, arrangements similar to payable-through and correspondent accounts.

``(3) REGULATORY DEFINITION.--The Secretary shall promulgate regulations defining beneficial ownership of an account for purposes of this section. Such regulations shall address issues related to an individual's authority to fund, direct, or manage the account (including, without limitation, the power to direct payments into or out of the account), and an individual's material interest in the income or corpus of the account, and shall ensure that the identification of individuals under this section does not extend to any individual whose beneficial interest in the income or corpus of the account is immaterial.''.

``(4) OTHER TERMS.--The Secretary may, by regulation, further define the terms in paragraphs (1) and (2) and define other terms for the purposes of this section, as the Secretary deems appropriate.''.

(b) CLERICAL AMENDMENT.--The table of sections for subchapter II of chapter 53 of title 31, United States Code, is amended by inserting after the item relating to section 5318 the following new item:

``5318A. Special measures for jurisdictions, financial institutions, or international transactions of primary money laundering concern.''.

SEC. 312. SPECIAL DUE DILIGENCE FOR CORRESPONDENT ACCOUNTS AND PRIVATE BANKING ACCOUNTS.

(a) IN GENERAL.--Section 5318 of title 31, United States Code, is amended by adding at the end the following:

``(i) DUE DILIGENCE FOR UNITED STATES PRIVATE BANKING AND CORRESPONDENT BANK ACCOUNTS INVOLVING FOREIGN PERSONS.--

``(1) IN GENERAL.--Each financial institution that establishes, maintains, administers, or manages a private banking account or a correspondent account in the United States for a non-United States person, including a foreign individual visiting the United States, or a representative of a non-United States person shall establish appropriate, specific, and, where necessary, enhanced, due diligence policies, procedures, and controls to detect and report instances of money laundering through those accounts.

``(2) MINIMUM STANDARDS FOR CORRESPONDENT ACCOUNTS.--

``(A) IN GENERAL.--Subparagraph (B) shall apply if a correspondent account is requested or maintained by, or on behalf of, a foreign bank operating--

``(i) under an offshore banking license; or

``(ii) under a banking license issued by a foreign country that has been designated--

``(I) as noncooperative with international anti-money laundering principles or procedures by an intergovernmental group or organization of which the United States is a member; or

``(II) by the Secretary as warranting special measures due to money laundering concerns.

``(B) POLICIES, PROCEDURES, AND CONTROLS.--The enhanced due diligence policies, procedures, and controls required under paragraph (1) shall, at a minimum, ensure that the financial institution in the United States takes reasonable steps--

``(i) to ascertain for any such foreign bank, the shares of which are not publicly traded, the identity of each of the owners of the foreign bank, and the nature and extent of the ownership interest of each such owner;

``(ii) to conduct enhanced scrutiny of such account to guard against money laundering and report any suspicious transactions under section 5318(g); and

``(iii) to ascertain whether such foreign bank provides correspondent accounts to other foreign banks and, if so, the identity of those foreign banks and related due diligence information, as appropriate under paragraph (1).

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``(3) MINIMUM STANDARDS FOR PRIVATE BANKING ACCOUNTS.--If a private banking account is requested or maintained by, or on behalf of, a non-United States person, then the due diligence policies, procedures, and controls required under paragraph (1) shall, at a minimum, ensure that the financial institution takes reasonable steps--

``(A) to ascertain the identity of the nominal and beneficial owners of, and the source of funds deposited into, such account as needed to guard against money laundering and report any suspicious transactions under section 5318(g); and

``(B) to conduct enhanced scrutiny of any such account that is requested or maintained by, or on behalf of, a senior foreign political figure, or any immediate family member or close associate of a senior foreign political figure, to prevent, detect, and report transactions that may involve the proceeds of foreign corruption.

``(4) DEFINITIONS AND REGULATORY AUTHORITY.--

``(A) OFFSHORE BANKING LICENSE.--For purposes of this subsection, the term `offshore banking license' means a license to conduct banking activities which, as a condition of the license, prohibits the licensed entity from conducting banking activities with the citizens of, or with the local currency of, the country which issued the license.

``(B) REGULATORY AUTHORITY.--The Secretary, in consultation with the appropriate functional regulators of the affected financial institutions, may further delineate, by regulation the due diligence policies, procedures, and controls required under paragraph (1).''.

(b) EFFECTIVE DATE.--The amendments made by this section shall take effect beginning 180 days after the date of enactment of this Act with respect to accounts covered by section 5318(i) of title 31, United States Code, as added by this section, that are opened before, on, or after the date of enactment of this Act.

SEC. 313. PROHIBITION ON UNITED STATES CORRESPONDENT ACCOUNTS WITH FOREIGN SHELL BANKS.

(a) IN GENERAL.--Section 5318 of title 31, United States Code, is amended by inserting after section 5318(i), as added by section 312 of this title, the following:

``(j) PROHIBITION ON UNITED STATES CORRESPONDENT ACCOUNTS WITH FOREIGN SHELL BANKS.--

``(1) IN GENERAL.--A financial institution described in subparagraphs (A) through (F) of section 5312(a)(2) (in this subsection referred to as a `covered financial institution') shall not establish, maintain, administer, or manage a correspondent account in the United States for, or on behalf of, a foreign bank that does not have a physical presence in any country.

``(2) PREVENTION OF INDIRECT SERVICE TO FOREIGN SHELL BANKS.--A covered financial institution shall take reasonable steps to ensure that any correspondent account established, maintained, administered, or managed by that covered financial institution in the United States for a foreign bank is not being used by that foreign bank to indirectly provide banking services to another foreign bank that does not have a physical presence in any country. The Secretary shall, by regulation, delineate the reasonable steps necessary to comply with this paragraph.

``(3) EXCEPTION.--Paragraphs (1) and (2) do not prohibit a covered financial institution from providing a correspondent account to a foreign bank, if the foreign bank--

``(A) is an affiliate of a depository institution, credit union, or foreign bank that maintains a physical presence in the United States or a foreign country, as applicable; and

``(B) is subject to supervision by a banking authority in the country regulating the affiliated depository institution, credit union, or foreign bank described in subparagraph (A), as applicable.

``(4) DEFINITIONS.--For purposes of this subsection--

``(A) the term `affiliate' means a foreign bank that is controlled by or is under common control with a depository institution, credit union, or foreign bank; and

``(B) the term `physical presence' means a place of business that--

``(i) is maintained by a foreign bank;

``(ii) is located at a fixed address (other than solely an electronic address) in a country in which the foreign bank is authorized to conduct banking activities, at which location the foreign bank--

``(I) employs 1 or more individuals on a full-time basis; and

``(II) maintains operating records related to its banking activities; and

``(iii) is subject to inspection by the banking authority which licensed the foreign bank to conduct banking activities.''.

SEC. 314. COOPERATIVE EFFORTS TO DETER MONEY LAUNDERING.

(a) COOPERATION AMONG FINANCIAL INSTITUTIONS, REGULATORY AUTHORITIES, AND LAW ENFORCEMENT AUTHORITIES.--

(1) REGULATIONS.--The Secretary shall, within 120 days after the date of enactment of this Act, adopt regulations to encourage further cooperation among financial institutions, their regulatory authorities, and law enforcement authorities, with the specific purpose of encouraging regulatory authorities and law enforcement authorities to share with financial institutions information regarding individuals, entities, and organizations engaged in or reasonably suspected based on credible evidence of engaging in terrorist acts or money laundering activities.

(2) CONTENTS.--The regulations promulgated pursuant to paragraph (1) may--

(A) require that each financial institution designate 1 or more persons to receive information concerning, and to monitor accounts of individuals, entities, and organizations identified, pursuant to paragraph (1); and

(B) further establish procedures for the protection of the shared information, consistent with the capacity, size, and nature of the institution to which the particular procedures apply.

(3) RULE OF CONSTRUCTION.--The receipt of information by a financial institution pursuant to this section shall not relieve or otherwise modify the obligations of the financial institution with respect to any other person or account.

(4) USE OF INFORMATION.--Information received by a financial institution pursuant to this section shall not be used for any purpose other than identifying and reporting on activities that may involve terrorist acts or money laundering activities.

(b) COOPERATION AMONG FINANCIAL INSTITUTIONS.--Upon notice provided to the Secretary, 2 or more financial institutions and any association of financial institutions may share information with one another regarding individuals, entities, organizations, and countries suspected of possible terrorist or money laundering activities. A financial institution or association that transmits, receives, or shares such information for the purposes of identifying and reporting activities that may involve terrorist acts or money laundering activities shall not be liable to any person under any law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision thereof, or under any contract or other legally enforceable agreement (including any arbitration agreement), for such disclosure or for any failure to provide notice of such disclosure to the person who is the subject of such disclosure, or any other person identified in the disclosure, except where such transmission, receipt, or sharing violates this section or regulations promulgated pursuant to this section.

(c) RULE OF CONSTRUCTION.--Compliance with the provisions of this title requiring or allowing financial institutions and any association of financial institutions to disclose or share information regarding individuals, entities, and organizations engaged in or suspected of engaging in terrorist acts or money laundering activities shall not constitute a violation of the provisions of title V of the Gramm-Leach-Bliley Act (Public Law 106-102).

SEC. 315. INCLUSION OF FOREIGN CORRUPTION OFFENSES AS MONEY LAUNDERING CRIMES.

Section 1956(c)(7)(B) of title 18, United States Code, is amended--

(1) in clause (ii), by striking ``or destruction of property by means of explosive or fire'' and inserting ``destruction of property by means of explosive or fire, or a crime of violence (as defined in section 16)'';

(2) in clause (iii), by striking ``1978'' and inserting ``1978)''; and

(3) by adding at the end the following:

``(iv) bribery of a public official, or the misappropriation, theft, or embezzlement of public funds by or for the benefit of a public official;

``(v) smuggling or export control violations involving--

``(I) an item controlled on the United States Munitions List established under section 38 of the Arms Export Control Act (22 U.S.C. 2778); or

``(II) an item controlled under regulations under the Export Administration Act of 1977 (15 C.F.R. Parts 730-774);

``(vi) an offense with respect to which the United States would be obligated by a multilateral treaty, either to extradite the alleged offender or to submit the case for prosecution, if the offender were found within the territory of the United States; or

``(vii) the misuse of funds of, or provided by, the International Monetary Fund in contravention of the Articles of Agreement of the Fund or the misuse of funds of, or provided by, any other international financial institution (as defined in section 1701(c)(2) of the International Financial Institutions Act (22 U.S.C. 262r(c)(2)) in contravention of any treaty or other international agreement to which the United States is a party, including any articles of agreement of the members of the international financial institution;''.

SEC. 316. ANTI-TERRORIST FORFEITURE PROTECTION.

(a) RIGHT TO CONTEST.--An owner of property that is confiscated under any provision of law relating to the confiscation of assets of suspected international terrorists, may contest that confiscation by filing a claim in the manner set forth in the Federal Rules of Civil Procedure (Supplemental Rules for Certain Admiralty and Maritime Claims), and asserting as an affirmative defense that--

(1) the property is not subject to confiscation under such provision of law; or

(2) the innocent owner provisions of section 983(d) of title 18, United States Code, apply to the case.

(b) EVIDENCE.--In considering a claim filed under this section, the Government may rely on evidence that is otherwise inadmissible under the Federal Rules of Evidence, if a court determines that such reliance is necessary to protect the national security interests of the United States.

(c) OTHER REMEDIES.--Nothing in this section shall limit or otherwise affect any other remedies that may be available to an owner

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of property under section 983 of title 18, United States Code, or any other provision of law.

SEC. 317. LONG-ARM JURISDICTION OVER FOREIGN MONEY LAUNDERERS.

Section 1956(b) of title 18, United States Code, is amended--

(1) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively, and moving the margins 2 ems to the right;

(2) by inserting after ``(b)'' the following: ``PENALTIES.--

``(1) IN GENERAL.--'';

(3) by inserting ``, or section 1957'' after ``or (a)(3)''; and

(4) by adding at the end the following:

``(2) JURISDICTION OVER FOREIGN PERSONS.--For purposes of adjudicating an action filed or enforcing a penalty ordered under this section, the district courts shall have jurisdiction over any foreign person, including any financial institution authorized under the laws of a foreign country, against whom the action is brought, if service of process upon the foreign person is made under the Federal Rules of Civil Procedure or the laws of the country in which the foreign person is found, and--

``(A) the foreign person commits an offense under subsection (a) involving a financial transaction that occurs in whole or in part in the United States;

``(B) the foreign person converts, to his or her own use, property in which the United States has an ownership interest by virtue of the entry of an order of forfeiture by a court of the United States; or

``(C) the foreign person is a financial institution that maintains a bank account at a financial institution in the United States.

``(3) COURT AUTHORITY OVER ASSETS.--A court described in paragraph (2) may issue a pretrial restraining order or take any other action necessary to ensure that any bank account or other property held by the defendant in the United States is available to satisfy a judgment under this section.

``(4) FEDERAL RECEIVER.--

``(A) IN GENERAL.--A court described in paragraph (2) may appoint a Federal Receiver, in accordance with subparagraph (B) of this paragraph, to collect, marshal, and take custody, control, and possession of all assets of the defendant, wherever located, to satisfy a judgment under this section or section 981, 982, or 1957, including an order of restitution to any victim of a specified unlawful activity.

``(B) APPOINTMENT AND AUTHORITY.--A Federal Receiver described in subparagraph (A)--

``(i) may be appointed upon application of a Federal prosecutor or a Federal or State regulator, by the court having jurisdiction over the defendant in the case;

``(ii) shall be an officer of the court, and the powers of the Federal Receiver shall include the powers set out in section 754 of title 28, United States Code; and

``(iii) shall have standing equivalent to that of a Federal prosecutor for the purpose of submitting requests to obtain information regarding the assets of the defendant--

``(I) from the Financial Crimes Enforcement Network of the Department of the Treasury; or

``(II) from a foreign country pursuant to a mutual legal assistance treaty, multilateral agreement, or other arrangement for international law enforcement assistance, provided that such requests are in accordance with the policies and procedures of the Attorney General.''.

SEC. 318. LAUNDERING MONEY THROUGH A FOREIGN BANK.

Section 1956(c) of title 18, United States Code, is amended by striking paragraph (6) and inserting the following:

``(6) the term `financial institution' includes--

``(A) any financial institution, as defined in section 5312(a)(2) of title 31, United States Code, or the regulations promulgated thereunder; and

``(B) any foreign bank, as defined in section 1 of the International Banking Act of 1978 (12 U.S.C. 3101).''.

SEC. 319. FORFEITURE OF FUNDS IN UNITED STATES INTERBANK ACCOUNTS.

(a) FORFEITURE FROM UNITED STATES INTERBANK ACCOUNT.--Section 981 of title 18, United States Code, is amended by adding at the end the following:

``(k) INTERBANK ACCOUNTS.--

``(1) IN GENERAL.--

``(A) IN GENERAL.--For the purpose of a forfeiture under this section or under the Controlled Substances Act (21 U.S.C. 801 et seq.), if funds are deposited into an account at a foreign bank, and that foreign bank has an interbank account in the United States with a covered financial institution (as defined in section 5318A of title 31), the funds shall be deemed to have been deposited into the interbank account in the United States, and any restraining order, seizure warrant, or arrest warrant in rem regarding the funds may be served on the covered financial institution, and funds in the interbank account, up to the value of the funds deposited into the account at the foreign bank, may be restrained, seized, or arrested.

``(B) AUTHORITY TO SUSPEND.--The Attorney General, in consultation with the Secretary, may suspend or terminate a forfeiture under this section if the Attorney General determines that a conflict of law exists between the laws of the jurisdiction in which the foreign bank is located and the laws of the United States with respect to liabilities arising from the restraint, seizure, or arrest of such funds, and that such suspension or termination would be in the interest of justice and would not harm the national interests of the United States.

``(2) NO REQUIREMENT FOR GOVERNMENT TO TRACE FUNDS.--If a forfeiture action is brought against funds that are restrained, seized, or arrested under paragraph (1), it shall not be necessary for the Government to establish that the funds are directly traceable to the funds that were deposited into the foreign bank, nor shall it be necessary for the Government to rely on the application of section 984.

``(3) CLAIMS BROUGHT BY OWNER OF THE FUNDS.--If a forfeiture action is instituted against funds restrained, seized, or arrested under paragraph (1), the owner of the funds deposited into the account at the foreign bank may contest the forfeiture by filing a claim under section 983.

``(4) DEFINITIONS.--For purposes of this subsection, the following definitions shall apply:

``(A) INTERBANK ACCOUNT.--The term `interbank account' has the same meaning as in section 984(c)(2)(B).

``(B) OWNER.--

``(i) IN GENERAL.--Except as provided in clause (ii), the term `owner'--

``(I) means the person who was the owner, as that term is defined in section 983(d)(6), of the funds that were deposited into the foreign bank at the time such funds were deposited; and

``(II) does not include either the foreign bank or any financial institution acting as an intermediary in the transfer of the funds into the interbank account.

``(ii) EXCEPTION.--The foreign bank may be considered the `owner' of the funds (and no other person shall qualify as the owner of such funds) only if--

``(I) the basis for the forfeiture action is wrongdoing committed by the foreign bank; or

``(II) the foreign bank establishes, by a preponderance of the evidence, that prior to the restraint, seizure, or arrest of the funds, the foreign bank had discharged all or part of its obligation to the prior owner of the funds, in which case the foreign bank shall be deemed the owner of the funds to the extent of such discharged obligation.''.

(b) BANK RECORDS.--Section 5318 of title 31, United States Code, is amended by adding at the end the following:

``(k) BANK RECORDS RELATED TO ANTI-MONEY LAUNDERING PROGRAMS.--

``(1) DEFINITIONS.--For purposes of this subsection, the following definitions shall apply:

``(A) APPROPRIATE FEDERAL BANKING AGENCY.--The term `appropriate Federal banking agency' has the same meaning as in section 3 of the Federal Deposit Insurance Act (12 U.S.C. 1813).

``(B) INCORPORATED TERMS.--The terms `correspondent account', `covered financial institution', and `foreign bank' have the same meanings as in section 5318A.

``(2) 120-HOUR RULE.--Not later than 120 hours after receiving a request by an appropriate Federal banking agency for information related to anti-money laundering compliance by a covered financial institution or a customer of such institution, a covered financial institution shall provide to the appropriate Federal banking agency, or make available at a location specified by the representative of the appropriate Federal banking agency, information and account documentation for any account opened, maintained, administered or managed in the United States by the covered financial institution.

``(3) FOREIGN BANK RECORDS.--

``(A) SUMMONS OR SUBPOENA OF RECORDS.--

``(i) IN GENERAL.--The Secretary or the Attorney General may issue a summons or subpoena to any foreign bank that maintains a correspondent account in the United States and request records related to such correspondent account, including records maintained outside of the United States relating to the deposit of funds into the foreign bank.

``(ii) SERVICE OF SUMMONS OR SUBPOENA.--A summons or subpoena referred to in clause (i) may be served on the foreign bank in the United States if the foreign bank has a representative in the United States, or in a foreign country pursuant to any mutual legal assistance treaty, multilateral agreement, or other request for international law enforcement assistance.

``(B) ACCEPTANCE OF SERVICE.--

``(i) MAINTAINING RECORDS IN THE UNITED STATES.--Any covered financial institution which maintains a correspondent account in the United States for a foreign bank shall maintain records in the United States identifying the owners of such foreign bank and the name and address of a person who resides in the United States and is authorized to accept service of legal process for records regarding the correspondent account.

``(ii) LAW ENFORCEMENT REQUEST.--Upon receipt of a written request from a Federal law enforcement officer for information required to be maintained under this paragraph, the covered financial institution shall provide the information to the requesting officer not later than 7 days after receipt of the request.

``(C) TERMINATION OF CORRESPONDENT RELATIONSHIP.--

``(i) TERMINATION UPON RECEIPT OF NOTICE.--A covered financial institution shall terminate any correspondent relationship with a foreign bank not later than 10 business days after receipt of written notice from the Secretary or the Attorney General that the foreign bank has failed--

``(I) to comply with a summons or subpoena issued under subparagraph (A); or

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``(II) to initiate proceedings in a United States court contesting such summons or subpoena.

``(ii) LIMITATION ON LIABILITY.--A covered financial institution shall not be liable to any person in any court or arbitration proceeding for terminating a correspondent relationship in accordance with this subsection.

``(iii) FAILURE TO TERMINATE RELATIONSHIP.--Failure to terminate a correspondent relationship in accordance with this subsection shall render the covered financial institution liable for a civil penalty of up to $10,000 per day until the correspondent relationship is so terminated.''.

(c) GRACE PERIOD.--Financial institutions affected by section 5333 of title 31 United States Code, as amended by this title, shall have 60 days from the date of enactment of this Act to comply with the provisions of that section.

(d) REQUESTS FOR RECORDS.--Section 3486(a)(1) of title 18, United States Code, is amended by striking ``, or (II) a Federal offense involving the sexual exploitation or abuse of children'' and inserting ``, (II) a Federal offense involving the sexual exploitation or abuse of children, or (III) money laundering, in violation of section 1956, 1957, or 1960 of this title''.

(e) AUTHORITY TO ORDER CONVICTED CRIMINAL TO RETURN PROPERTY LOCATED ABROAD.--

(1) FORFEITURE OF SUBSTITUTE PROPERTY.--Section 413(p) of the Controlled Substances Act (21 U.S.C. 853) is amended to read as follows:

``(p) FORFEITURE OF SUBSTITUTE PROPERTY.--

``(1) IN GENERAL.--Paragraph (2) of this subsection shall apply, if any property described in subsection (a), as a result of any act or omission of the defendant--

``(A) cannot be located upon the exercise of due diligence;

``(B) has been transferred or sold to, or deposited with, a third party;

``(C) has been placed beyond the jurisdiction of the court;

``(D) has been substantially diminished in value; or

``(E) has been commingled with other property which cannot be divided without difficulty.

``(2) SUBSTITUTE PROPERTY.--In any case described in any of subparagraphs (A) through (E) of paragraph (1), the court shall order the forfeiture of any other property of the defendant, up to the value of any property described in subparagraphs (A) through (E) of paragraph (1), as applicable.

``(3) RETURN OF PROPERTY TO JURISDICTION.--In the case of property described in paragraph (1)(C), the court may, in addition to any other action authorized by this subsection, order the defendant to return the property to the jurisdiction of the court so that the property may be seized and forfeited.''.

(2) PROTECTIVE ORDERS.--Section 413(e) of the Controlled Substances Act (21 U.S.C. 853(e)) is amended by adding at the end the following:

``(4) ORDER TO REPATRIATE AND DEPOSIT.--

``(A) IN GENERAL.--Pursuant to its authority to enter a pretrial restraining order under this section, including its authority to restrain any property forfeitable as substitute assets, the court may order a defendant to repatriate any property that may be seized and forfeited, and to deposit that property pending trial in the registry of the court, or with the United States Marshals Service or the Secretary of the Treasury, in an interest-bearing account, if appropriate.

``(B) FAILURE TO COMPLY.--Failure to comply with an order under this subsection, or an order to repatriate property under subsection (p), shall be punishable as a civil or criminal contempt of court, and may also result in an enhancement of the sentence of the defendant under the obstruction of justice provision of the Federal Sentencing Guidelines.''.

SEC. 320. PROCEEDS OF FOREIGN CRIMES.

Section 981(a)(1)(B) of title 18, United States Code, is amended to read as follows:

``(B) Any property, real or personal, within the jurisdiction of the United States, constituting, derived from, or traceable to, any proceeds obtained directly or indirectly from an offense against a foreign nation, or any property used to facilitate such an offense, if the offense--

``(i) involves the manufacture, importation, sale, or distribution of a controlled substance (as that term is defined for purposes of the Controlled Substances Act), or any other conduct described in section 1956(c)(7)(B);

``(ii) would be punishable within the jurisdiction of the foreign nation by death or imprisonment for a term exceeding 1 year; and

``(iii) would be punishable under the laws of the United States by imprisonment for a term exceeding 1 year, if the act or activity constituting the offense had occurred within the jurisdiction of the United States.''.

SEC. 321. EXCLUSION OF ALIENS INVOLVED IN MONEY LAUNDERING.

Section 212(a)(2) of the Immigration and Nationality Act of 1952 (8 U.S.C. 1182(a)(2)) is amended by adding at the end the following:

``(I) MONEY LAUNDERING ACTIVITIES.--Any alien who the consular officer or the Attorney General knows or has reason to believe is or has been engaged in activities which, if engaged in within the United States would constitute a violation of section 1956 or 1957 of title 18, United States Code, or has been a knowing assister, abettor, conspirator, or colluder with others in any such illicit activity is inadmissible.''.

SEC. 322. CORPORATION REPRESENTED BY A FUGITIVE.

Section 2466 of title 18, United States Code, is amended by designating the present matter as subsection (a), and adding at the end the following:

``(b) Subsection (a) may be applied to a claim filed by a corporation if any majority shareholder, or individual filing the claim on behalf of the corporation is a person to whom subsection (a) applies.''.

SEC. 323. ENFORCEMENT OF FOREIGN JUDGMENTS.

Section 2467 of title 28, United States Code, is amended--

(1) in subsection (d), by adding the following after paragraph (2):

``(3) PRESERVATION OF PROPERTY.--To preserve the availability of property subject to a foreign forfeiture or confiscation judgment, the Government may apply for, and the court may issue, a restraining order pursuant to section 983(j) of title 18, United States Code, at any time before or after an application is filed pursuant to subsection (c)(1). The court, in issuing the restraining order--

``(A) may rely on information set forth in an affidavit describing the nature of the proceeding investigation underway in the foreign country, and setting forth a reasonable basis to believe that the property to be restrained will be named in a judgment of forfeiture at the conclusion of such proceeding; or

``(B) may register and enforce a restraining order has been issued by a court of competent jurisdiction in the foreign country and certified by the Attorney General pursuant to subsection (b)(2).

No person may object to the restraining order on any ground that is the subject to parallel litigation involving the same property that is pending in a foreign court.'';

(2) in subsection (b)(1)(C), by striking ``establishing that the defendant received notice of the proceedings in sufficient time to enable the defendant'' and inserting ``establishing that the foreign nation took steps, in accordance with the principles of due process, to give notice of the proceedings to all persons with an interest in the property in sufficient time to enable such persons'';

(3) in subsection (d)(1)(D), by striking ``the defendant in the proceedings in the foreign court did not receive notice'' and inserting ``the foreign nation did not take steps, in accordance with the principles of due process, to give notice of the proceedings to a person with an interest in the property''; and

(4) in subsection (a)(2)(A), by inserting ``, any violation of foreign law that would constitute a violation of an offense for which property could be forfeited under Federal law if the offense were committed in the United States'' after ``United Nations Convention''.

SEC. 324. INCREASE IN CIVIL AND CRIMINAL PENALTIES FOR MONEY LAUNDERING.

(a) CIVIL PENALTIES.--Section 5321(a) of title 31, United States Code, is amended by adding at the end the following:

``(7) PENALTIES FOR INTERNATIONAL COUNTER MONEY LAUNDERING VIOLATIONS.--The Secretary may impose a civil money penalty in an amount equal to not less than 2 times the amount of the transaction, but not more than $1,000,000, on any financial institution or agency that violates any provision of subsection (i) or (j) of section 5318 or any special measures imposed under section 5318A.''.

(b) CRIMINAL PENALTIES.--Section 5322 of title 31, United States Code, is amended by adding at the end the following:

``(d) A financial institution or agency that violates any provision of subsection (i) or (j) of section 5318, or any special measures imposed under section 5318A, or any regulation prescribed under subsection (i) or (j) of section 5318 or section 5318A, shall be fined in an amount equal to not less than 2 times the amount of the transaction, but not more than $1,000,000.''.

SEC. 325. REPORT AND RECOMMENDATION.

Not later than 30 months after the date of enactment of this Act, the Secretary, in consultation with the Attorney General, the Federal banking agencies (as defined at section 3 of the Federal Deposit Insurance Act), the Securities and Exchange Commission, and such other agencies as the Secretary may determine, at the discretion of the Secretary, shall evaluate the operations of the provisions of this subtitle and make recommendations to Congress as to any legislative action with respect to this subtitle as the Secretary may determine to be necessary or advisable.

SEC. 326. REPORT ON EFFECTIVENESS.

The Secretary shall report annually on measures taken pursuant to this subtitle, and shall submit the report to the Committee on Banking, Housing, and Urban Affairs of the Senate and to the Committee on Financial Services of the House of Representatives.

SEC. 327. CONCENTRATION ACCOUNTS AT FINANCIAL INSTITUTIONS.

Section 5318(h) of title 31, United States Code, as amended by section 202 of this title, is amended by adding at the end the following:

``(3) CONCENTRATION ACCOUNTS.--The Secretary may issue regulations under this subsection that govern maintenance of concentration accounts by financial institutions, in order to ensure that such accounts are not used to prevent association of the

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identity of an individual customer with the movement of funds of which the customer is the direct or beneficial owner, which regulations shall, at a minimum--

``(A) prohibit financial institutions from allowing clients to direct transactions that move their funds into, out of, or through the concentration accounts of the financial institution;

``(B) prohibit financial institutions and their employees from informing customers of the existence of, or the means of identifying, the concentration accounts of the institution; and

``(C) require each financial institution to establish written procedures governing the documentation of all transactions involving a concentration account, which procedures shall ensure that, any time a transaction involving a concentration account commingles funds belonging to 1 or more customers, the identity of, and specific amount belonging to, each customer is documented.''.

Subtitle B--Currency Transaction Reporting Amendments and Related Improvements

SEC. 331. AMENDMENTS RELATING TO REPORTING OF SUSPICIOUS ACTIVITIES.

(a) AMENDMENT RELATING TO CIVIL LIABILITY IMMUNITY FOR DISCLOSURES.--Section 5318(g)(3) of title 31, United States Code, is amended to read as follows:

``(3) LIABILITY FOR DISCLOSURES.--

``(A) IN GENERAL.--Any financial institution that makes a voluntary disclosure of any possible violation of law or regulation to a government agency or makes a disclosure pursuant to this subsection or any other authority, and any director, officer, employee, or agent of such institution who makes, or requires another to make any such disclosure, shall not be liable to any person under any law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision of any State, or under any contract or other legally enforceable agreement (including any arbitration agreement), for such disclosure or for any failure to provide notice of such disclosure to the person who is the subject of such disclosure or any other person identified in the disclosure.

``(B) RULE OF CONSTRUCTION.--Subparagraph (A) shall not be construed as creating--

``(i) any inference that the term `person', as used in such subparagraph, may be construed more broadly than its ordinary usage so as to include any government or agency of government; or

``(ii) any immunity against, or otherwise affecting, any civil or criminal action brought by any government or agency of government to enforce any constitution, law, or regulation of such government or agency.''.

(b) PROHIBITION ON NOTIFICATION OF DISCLOSURES.--Section 5318(g)(2) of title 31, United States Code, is amended to read as follows:

``(2) NOTIFICATION PROHIBITED.--

``(A) IN GENERAL.--If a financial institution or any director, officer, employee, or agent of any financial institution, voluntarily or pursuant to this section or any other authority, reports a suspicious transaction to a government agency--

``(i) the financial institution, director, officer, employee, or agent may not notify any person involved in the transaction that the transaction has been reported; and

``(ii) no officer or employee of the Federal Government or of any State, local, tribal, or territorial government within the United States, who has any knowledge that such report was made may disclose to any person involved in the transaction that the transaction has been reported, other than as necessary to fulfill the official duties of such officer or employee.

``(B) DISCLOSURES IN CERTAIN EMPLOYMENT REFERENCES.--

``(i) RULE OF CONSTRUCTION.--Notwithstanding the application of subparagraph (A) in any other context, subparagraph (A) shall not be construed as prohibiting any financial institution, or any director, officer, employee, or agent of such institution, from including information that was included in a report to which subparagraph (A) applies--

``(I) in a written employment reference that is provided in accordance with section 18(v) of the Federal Deposit Insurance Act in response to a request from another financial institution, except that such written reference may not disclose that such information was also included in any such report or that such report was made; or

``(II) in a written termination notice or employment reference that is provided in accordance with the rules of the self-regulatory organizations registered with the Securities and Exchange Commission, except that such written notice or reference may not disclose that such information was also included in any such report or that such report was made.

``(ii) INFORMATION NOT REQUIRED.--Clause (i) shall not be construed, by itself, to create any affirmative duty to include any information described in clause (i) in any employment reference or termination notice referred to in clause (i).''.

SEC. 332. ANTI-MONEY LAUNDERING PROGRAMS.

Section 5318(h) of title 31, United States Code, is amended to read as follows:

``(h) ANTI-MONEY LAUNDERING PROGRAMS.--

``(1) IN GENERAL.--In order to guard against money laundering through financial institutions, each financial institution shall establish anti-money laundering programs, including, at a minimum--

``(A) the development of internal policies, procedures, and controls;

``(B) the designation of a compliance officer;

``(C) an ongoing employee training program; and

``(D) an independent audit function to test programs.

``(2) REGULATIONS.--The Secretary may prescribe minimum standards for programs established under paragraph (1), and may exempt from the application of those standards any financial institution that is not subject to the provisions of the rules contained in part 103 of title 31, of the Code of Federal Regulations, or any successor rule thereto, for so long as such financial institution is not subject to the provisions of such rules.''.

SEC. 333. PENALTIES FOR VIOLATIONS OF GEOGRAPHIC TARGETING ORDERS AND CERTAIN RECORDKEEPING REQUIREMENTS, AND LENGTHENING EFFECTIVE PERIOD OF GEOGRAPHIC TARGETING ORDERS.

(a) CIVIL PENALTY FOR VIOLATION OF TARGETING ORDER.--Section 5321(a)(1) of title 31, United States Code, is amended--

(1) by inserting ``or order issued'' after ``subchapter or a regulation prescribed''; and

(2) by inserting ``, or willfully violating a regulation prescribed under section 21 of the Federal Deposit Insurance Act or section 123 of Public Law 91-508,'' after ``sections 5314 and 5315)''.

(b) CRIMINAL PENALTIES FOR VIOLATION OF TARGETING ORDER.--Section 5322 of title 31, United States Code, is amended--

(1) in subsection (a)--

(A) by inserting ``or order issued'' after ``willfully violating this subchapter or a regulation prescribed''; and

(B) by inserting ``, or willfully violating a regulation prescribed under section 21 of the Federal Deposit Insurance Act or section 123 of Public Law 91-508,'' after ``under section 5315 or 5324)''; and

(2) in subsection (b)--

(A) by inserting ``or order issued'' after ``willfully violating this subchapter or a regulation prescribed''; and

(B) by inserting ``or willfully violating a regulation prescribed under section 21 of the Federal Deposit Insurance Act or section 123 of Public Law 91-508,'' after ``under section 5315 or 5324),''.

(c) STRUCTURING TRANSACTIONS TO EVADE TARGETING ORDER OR CERTAIN RECORDKEEPING REQUIREMENTS.--Section 5324(a) of title 31, United States Code, is amended--

(1) by inserting a comma after ``shall'';

(2) by striking ``section--'' and inserting ``section, the reporting or recordkeeping requirements imposed by any order issued under section 5326, or the recordkeeping requirements imposed by any regulation prescribed under section 21 of the Federal Deposit Insurance Act or section 123 of Public Law 91-508--'';

(3) in paragraph (1), by inserting ``, to file a report or to maintain a record required by an order issued under section 5326, or to maintain a record required pursuant to any regulation prescribed under section 21 of the Federal Deposit Insurance Act or section 123 of Public Law 91-508'' after ``regulation prescribed under any such section''; and

(4) in paragraph (2), by inserting ``, to file a report or to maintain a record required by any order issued under section 5326, or to maintain a record required pursuant to any regulation prescribed under section 5326, or to maintain a record required pursuant to any regulation prescribed under section 21 of the Federal Deposit Insurance Act or section 123 of Public Law 91-508,'' after ``regulation prescribed under any such section''.

(d) LENGTHENING EFFECTIVE PERIOD OF GEOGRAPHIC TARGETING ORDERS.--Section 5326(d) of title 31, United States Code, is amended by striking ``more than 60'' and inserting ``more than 180''.

SEC. 334. ANTI-MONEY LAUNDERING STRATEGY.

(b) STRATEGY.--Section 5341(b) of title 31, United States Code, is amended by adding at the end the following:

``(12) DATA REGARDING FUNDING OF TERRORISM.--Data concerning money laundering efforts related to the funding of acts of international terrorism, and efforts directed at the prevention, detection, and prosecution of such funding.''.

SEC. 335. AUTHORIZATION TO INCLUDE SUSPICIONS OF ILLEGAL ACTIVITY IN WRITTEN EMPLOYMENT REFERENCES.

Section 18 of the Federal Deposit Insurance Act (12 U.S.C. 1828) is amended by adding at the end the following:

``(v) WRITTEN EMPLOYMENT REFERENCES MAY CONTAIN SUSPICIONS OF INVOLVEMENT IN ILLEGAL ACTIVITY.--

``(1) AUTHORITY TO DISCLOSE INFORMATION.--Notwithstanding any other provision of law, any insured depository institution, and any director, officer, employee, or agent of such institution, may disclose in any written employment reference relating to a current or former institution-affiliated party of such institution which is provided to another insured depository institution in response to a request from such other institution, information concerning the possible involvement of such institution-affiliated party in potentially unlawful activity.

``(2) INFORMATION NOT REQUIRED.--Nothing in paragraph (1) shall be construed, by itself, to create any affirmative duty to include any information described in paragraph (1) in any employment reference referred to in paragraph (1).

``(3) MALICIOUS INTENT.--Notwithstanding any other provision of this subsection, voluntary disclosure made by an insured depository institution, and any director, officer,

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employee, or agent of such institution under this subsection concerning potentially unlawful activity that is made with malicious intent, shall not be shielded from liability from the person identified in the disclosure.

``(4) DEFINITION.--For purposes of this subsection, the term `insured depository institution' includes any uninsured branch or agency of a foreign bank.''.

SEC. 336. BANK SECRECY ACT ADVISORY GROUP.

Section 1564 of the Annunzio-Wylie Anti-Money Laundering Act (31 U.S.C. 5311 note) is amended--

(1) in subsection (a), by inserting ``, of nongovernmental organizations advocating financial privacy,'' after ``Drug Control Policy''; and

(2) in subsection (c), by inserting ``, other than subsections (a) and (d) of such Act which shall apply'' before the period at the end.

SEC. 337. AGENCY REPORTS ON RECONCILING PENALTY AMOUNTS.

Not later than 1 year after the date of enactment of this Act, the Secretary of the Treasury and the Federal banking agencies (as defined in section 3 of the Federal Deposit Insurance Act (12 U.S.C. 1813)) shall each submit their respective reports to the Congress containing recommendations on possible legislation to conform the penalties imposed on depository institutions (as defined in section 3 of the Federal Deposit Insurance Act) for violations of subchapter II of chapter 53 of title 31, United States Code, to the penalties imposed on such institutions under section 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818).

SEC. 338. REPORTING OF SUSPICIOUS ACTIVITIES BY SECURITIES BROKERS AND DEALERS; INVESTMENT COMPANY STUDY.

(a) 270-DAY REGULATION DEADLINE.--Not later than 270 days after the date of enactment of this Act, the Secretary of the Treasury, after consultation with the Securities and Exchange Commission and the Board of Governors of the Federal Reserve System, shall issue final regulations requiring registered brokers and dealers to file reports of suspicious financial transactions, consistent with the requirements applicable to financial institutions, and directors, officers, employees, and agents of financial institutions under section 5318(g) of title 31, United States Code.

(b) REPORT ON INVESTMENT COMPANIES.--

(1) IN GENERAL.--Not later than 1 year after the date of enactment of this Act, Secretary of the Treasury, the Board of Governors of the Federal Reserve System, and the Securities and Exchange Commission shall jointly submit a report to Congress on recommendations for effective regulations to apply the requirements of subchapter II of chapter 53 of title 31, United States Code, to investment companies, pursuant to section 5312(a)(2)(I) of title 31, United States Code.

(2) DEFINITION.--For purposes of this section, the term ``investment company''--

(A) has the same meaning as in section 3 of the Investment Company Act of 1940 (15 U.S.C. 80a-3); and

(B) any person that, but for the exceptions provided for in paragraph (1) or (7) of section 3(c) of the Investment Company Act of 1940 (15 U.S.C. 80a-3(c)), would be an investment company.

(3) ADDITIONAL RECOMMENDATIONS.--In its report, the Securities and Exchange Commission may make different recommendations for different types of entities covered by this section.

(4) BENEFICIAL OWNERSHIP OF PERSONAL HOLDING COMPANIES.--The report described in paragraph (1) shall also include recommendations as to whether the Secretary should promulgate regulations to treat any corporation or business or other grantor trust whose assets are predominantly securities, bank certificates of deposit, or other securities or investment instruments (other than such as relate to operating subsidiaries of such corporation or trust) and that has 5 or fewer common shareholders or holders of beneficial or other equity interest, as a financial institution within the meaning of that phrase in section 5312(a)(2)(I) and whether to require such corporations or trusts to disclose their beneficial owners when opening accounts or initiating funds transfers at any domestic financial institution.

SEC. 339. SPECIAL REPORT ON ADMINISTRATION OF BANK SECRECY PROVISIONS.

(a) REPORT REQUIRED.--Not later than 6 months after the date of enactment of this Act, the Secretary shall submit a report to the Congress relating to the role of the Internal Revenue Service in the administration of subchapter II of chapter 53 of title 31, United States Code (commonly known as the ``Bank Secrecy Act'').

(b) CONTENTS.--The report required by subsection (a)--

(1) shall specifically address, and contain recommendations concerning--

(A) whether it is advisable to shift the processing of information reporting to the Department of the Treasury under the Bank Secrecy Act provisions to facilities other than those managed by the Internal Revenue Service; and

(B) whether it remains reasonable and efficient, in light of the objective of both anti-money-laundering programs and Federal tax administration, for the Internal Revenue Service to retain authority and responsibility for audit and examination of the compliance of money services businesses and gaming institutions with those Bank Secrecy Act provisions; and

(2) shall, if the Secretary determines that the information processing responsibility or the audit and examination responsibility of the Internal Revenue Service, or both, with respect to those Bank Secrecy Act provisions should be transferred to other agencies, include the specific recommendations of the Secretary regarding the agency or agencies to which any such function should be transferred, complete with a budgetary and resources plan for expeditiously accomplishing the transfer.

SEC. 340. BANK SECRECY PROVISIONS AND ANTI-TERRORIST ACTIVITIES OF UNITED STATES INTELLIGENCE AGENCIES.

(a) AMENDMENT RELATING TO THE PURPOSES OF THE BANK SECRECY ACT.--Section 5311 of title 31, United States Code, is amended by inserting before the period at the end the following: ``, or in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism''.

(b) AMENDMENT RELATING TO REPORTING OF SUSPICIOUS ACTIVITIES.--Section 5318(g)(4)(B) of title 31, United States Code, is amended by striking ``or supervisory agency'' and inserting ``, supervisory agency, or United States intelligence agency for use in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism''.

(c) AMENDMENT RELATING TO AVAILABILITY OF REPORTS.--Section 5319 of title 31, United States Code, is amended to read as follows:``§5319. Availability of reports

``The Secretary of the Treasury shall make information in a report filed under this subchapter available to an agency, including any State financial institutions supervisory agency or United States intelligence agency, upon request of the head of the agency. The report shall be available for a purpose that is consistent with this subchapter. The Secretary may only require reports on the use of such information by any State financial institutions supervisory agency for other than supervisory purposes or by United States intelligence agencies. However, a report and records of reports are exempt from disclosure under section 552 of title 5.''.

(d) AMENDMENT RELATING TO THE PURPOSES OF THE BANK SECRECY ACT PROVISIONS.--Section 21(a) of the Federal Deposit Insurance Act (12 U.S.C. 1829b(a)) is amended to read as follows:

``(a) CONGRESSIONAL FINDINGS AND DECLARATION OF PURPOSE.--

``(1) FINDINGS.--Congress finds that--

``(A) adequate records maintained by insured depository institutions have a high degree of usefulness in criminal, tax, and regulatory investigations or proceedings, and that, given the threat posed to the security of the Nation on and after the terrorist attacks against the United States on September 11, 2001, such records may also have a high degree of usefulness in the conduct of intelligence or counterintelligence activities, including analysis, to protect against domestic and international terrorism; and

``(B) microfilm or other reproductions and other records made by insured depository institutions of checks, as well as records kept by such institutions, of the identity of persons maintaining or authorized to act with respect to accounts therein, have been of particular value in proceedings described in subparagraph (A).

``(2) PURPOSE.--It is the purpose of this section to require the maintenance of appropriate types of records by insured depository institutions in the United States where such records have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, recognizes that, given the threat posed to the security of the Nation on and after the terrorist attacks against the United States on September 11, 2001, such records may also have a high degree of usefulness in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism.''.

(e) AMENDMENT RELATING TO THE PURPOSES OF THE BANK SECRECY ACT.--Section 123(a) of Public Law 91-508 (12 U.S.C. 1953(a)) is amended to read as follows:

``(a) REGULATIONS.--If the Secretary determines that the maintenance of appropriate records and procedures by any uninsured bank or uninsured institution, or any person engaging in the business of carrying on in the United States any of the functions referred to in subsection (b), has a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, and that, given the threat posed to the security of the Nation on and after the terrorist attacks against the United States on September 11, 2001, such records may also have a high degree of usefulness in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism, he may by regulation require such bank, institution, or person.''.

(f) AMENDMENTS TO THE RIGHT TO FINANCIAL PRIVACY ACT.--The Right to Financial Privacy Act of 1978 is amended--

(1) in section 1112(a) (12 U.S.C. 3412(a)), by inserting ``, or intelligence or counterintelligence activity, investigation or analysis related to international terrorism'' after ``legitimate law enforcement inquiry''; and

(2) in section 1114(a)(1) (12 U.S.C. 3414(a)(1))--

(A) in subparagraph (A), by striking ``or'' at the end;

(B) in subparagraph (B), by striking the period at the end and inserting ``; or''; and

(C) by adding at the end the following:

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``(C) a Government authority authorized to conduct investigations of, or intelligence or counterintelligence analyses related to, international terrorism for the purpose of conducting such investigations or analyses.''.

(g) AMENDMENT TO THE FAIR CREDIT REPORTING ACT.--The Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) is amended by adding at the end the following new section:

``SEC. 626. DISCLOSURES TO GOVERNMENTAL AGENCIES FOR COUNTERTERRORISM PURPOSES.

``(a) DISCLOSURE.--Notwithstanding section 604 or any other provision of this title, a consumer reporting agency shall furnish a consumer report of a consumer and all other information in a consumer's file to a government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism when presented with a written certification by such government agency that such information is necessary for the agency's conduct or such investigation, activity or analysis.

``(b) FORM OF CERTIFICATION.--The certification described in subsection (a) shall be signed by the Secretary of the Treasury.

``(c) CONFIDENTIALITY.--No consumer reporting agency, or officer, employee, or agent of such consumer reporting agency, shall disclose to any person, or specify in any consumer report, that a government agency has sought or obtained access to information under subsection (a).

``(d) RULE OF CONSTRUCTION.--Nothing in section 625 shall be construed to limit the authority of the Director of the Federal Bureau of Investigation under this section.

``(e) SAFE HARBOR.--Notwithstanding any other provision of this subchapter, any consumer reporting agency or agent or employee thereof making disclosure of consumer reports or other information pursuant to this section in good-faith reliance upon a certification of a governmental agency pursuant to the provisions of this section shall not be liable to any person for such disclosure under this subchapter, the constitution of any State, or any law or regulation of any State or any political subdivision of any State.''.

SEC. 341. REPORTING OF SUSPICIOUS ACTIVITIES BY HAWALA AND OTHER UNDERGROUND BANKING SYSTEMS.

(a) DEFINITION FOR SUBCHAPTER.--Section 5312(a)(2)(R) of title 31, United States Code, is amended to read as follows:

``(R) a licensed sender of money or any other person who engages as a business in the transmission of funds, including through an informal value transfer banking system or network of people facilitating the transfer of value domestically or internationally outside of the conventional financial institutions system;''.

(b) MONEY TRANSMITTING BUSINESS.--Section 5330(d)(1)(A) of title 31, United States Code, is amended by inserting before the semicolon the following: ``or any other person who engages as a business in the transmission of funds, including through an informal value transfer banking system or network of people facilitating the transfer of value domestically or internationally outside of the conventional financial institutions system;''.

(d) APPLICABILITY OF RULES.--Section 5318 of title 31, United States Code, as amended by this title, is amended by adding at the end the following:

``(l) APPLICABILITY OF RULES.--Any rules promulgated pursuant to the authority contained in section 21 of the Federal Deposit Insurance Act (12 U.S.C. 1829b) shall apply, in addition to any other financial institution to which such rules apply, to any person that engages as a business in the transmission of funds, including through an informal value transfer banking system or network of people facilitating the transfer of value domestically or internationally outside of the conventional financial institutions system.''.

(e) REPORT.--Not later than 1 year after the date of enactment of this Act, the Secretary of the Treasury shall report to Congress on the need for any additional legislation relating to informal value transfer banking systems or networks of people facilitating the transfer of value domestically or internationally outside of the conventional financial institutions system, counter money laundering and regulatory controls relating to underground money movement and banking systems, such as the system referred to as `hawala', including whether the threshold for the filing of suspicious activity reports under section 5318(g) of title 31, United States Code should be lowered in the case of such systems.

SEC. 342. USE OF AUTHORITY OF UNITED STATES EXECUTIVE DIRECTORS.

(a) ACTION BY THE PRESIDENT.--If the President determines that a particular foreign country has taken or has committed to take actions that contribute to efforts of the United States to respond to, deter, or prevent acts of international terrorism, the Secretary of the Treasury may, consistent with other applicable provisions of law, instruct the United States Executive Director of each international financial institution to use the voice and vote of the Executive Director to support any loan or other utilization of the funds of respective institutions for such country, or any public or private entity within such country.

(b) USE OF VOICE AND VOTE.--The Secretary of the Treasury may instruct the United States Executive Director of each international financial institution to aggressively use the voice and vote of the Executive Director to require an auditing of disbursements at such institutions to ensure that no funds are paid to persons who commit, threaten to commit, or support terrorism.

(c) DEFINITION.--For purposes of this section, the term ``international financial institution'' means an institution described in section 1701(c)(2) of the International Financial Institutions Act (22 U.S.C. 262r(c)(2)).

Subtitle C--Currency Crimes

SEC. 351. BULK CASH SMUGGLING.

(a) FINDINGS.--Congress finds that--

(1) effective enforcement of the currency reporting requirements of chapter 53 of title 31, United States Code (commonly referred to as the Bank Secrecy Act), and the regulations promulgated thereunder, has forced drug dealers and other criminals engaged in cash-based businesses to avoid using traditional financial institutions;

(2) in their effort to avoid using traditional financial institutions, drug dealers, and other criminals are forced to move large quantities of currency in bulk form to and through the airports, border crossings, and other ports of entry where it can be smuggled out of the United States and placed in a foreign financial institution or sold on the black market;

(3) the transportation and smuggling of cash in bulk form may, at the time of enactment of this Act, be the most common form of money laundering, and the movement of large sums of cash is one of the most reliable warning signs of drug trafficking, terrorism, money laundering, racketeering, tax evasion, and similar crimes;

(4) the intentional transportation into or out of the United States of large amounts of currency or monetary instruments, in a manner designed to circumvent the mandatory reporting provisions of chapter 53 of title 31, United States Code, is the equivalent of, and creates the same harm as, the smuggling of goods;

(5) the arrest and prosecution of bulk cash smugglers is an important part of law enforcement's effort to stop the laundering of criminal proceeds, but the couriers who attempt to smuggle the cash out of the United States are typically low-level employees of large criminal organizations, and are easily replaced, and therefore only the confiscation of the smuggled bulk cash can effectively break the cycle of criminal activity of which the laundering of bulk cash is a critical part;

(6) the penalties for violations of the currency reporting requirements of the chapter 53 of title 31, United States Code, are insufficient to provide a deterrent to the laundering of criminal proceeds;

(7) because the only criminal violation under Federal law before the date of enactment of this Act was a reporting offense, the law does not adequately provide for the confiscation of smuggled currency; and

(8) if the smuggling of bulk cash were itself an offense, the cash could be confiscated as the corpus delicti of the smuggling offense.

(b) PURPOSES.--The purposes of this section are--

(1) to make the act of smuggling bulk cash itself a criminal offense;

(2) to authorize forfeiture of any cash or instruments of the smuggling offense;

(3) to emphasize the seriousness of the act of bulk cash smuggling; and

(4) to prescribe guidelines for determining the amount of property subject to such forfeiture in various situations.

(c) BULK CASH SMUGGLING OFFENSE.--

(1) IN GENERAL.--Subchapter II of chapter 53 of title 31, United States Code, is amended by adding at the end the following:``§5331. Bulk cash smuggling

``(a) CRIMINAL OFFENSE.--

``(1) IN GENERAL.--Whoever, with the intent to evade a currency reporting requirement under section 5316, knowingly conceals more than $10,000 in currency or other monetary instruments on his or her person or in any conveyance, article of luggage, merchandise, or other container, and transports or transfers or attempts to transport or transfer the currency or monetary instruments from a place within the United States to a place outside of the United States, or from a place outside of the United States to a place within the United States, shall be guilty of a currency smuggling offense and subject to punishment under subsection (b).

``(b) PENALTIES.--

``(1) PRISON TERM.--A person convicted of a currency smuggling offense under subsection (a), or a conspiracy to commit such an offense, shall be imprisoned for not more than 5 years.

``(2) FORFEITURE.--

``(A) IN GENERAL.--In addition to a prison term under paragraph (1), the court, in imposing sentence, shall order that the defendant forfeit to the United States any property, real or personal, involved in the offense, and any property traceable to such property, subject to subsection (d).

``(B) APPLICABILITY OF OTHER LAWS.--The seizure, restraint, and forfeiture of property under this section shall be governed by section 413 of the Controlled Substances Act (21 U.S.C. 853). If the property subject to forfeiture is unavailable, and the defendant has no substitute property that may be forfeited pursuant to section 413(p) of that Act, the court shall enter a personal money judgment against the defendant in an amount equal to the value of the unavailable property.

``(c) SEIZURE OF SMUGGLING CASH.--

``(1) IN GENERAL.--Any property involved in a violation of subsection (a), or a conspiracy

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to commit such violation, and any property traceable thereto, may be seized and, subject to subsection (d), forfeited to the United States.

``(2) APPLICABLE PROCEDURES.--A seizure and forfeiture under this subsection shall be governed by the procedures governing civil forfeitures under section 981(a)(1)(A) of title 18, United States Code.

``(d) PROPORTIONALITY OF FORFEITURE.--

``(1) MITIGATION.--Upon a showing by the property owner by a preponderance of the evidence that the currency or monetary instruments involved in the offense giving rise to the forfeiture were derived from a legitimate source and were intended for a lawful purpose, the court shall reduce the forfeiture to the maximum amount that is not grossly disproportional to the gravity of the offense.

``(2) CONSIDERATIONS.--In determining the amount of the forfeiture under paragraph (1), the court shall consider all aggravating and mitigating facts and circumstances that have a bearing on the gravity of the offense, including--

``(A) the value of the currency or other monetary instruments involved in the offense;

``(B) efforts by the person committing the offense to structure currency transactions, conceal property, or otherwise obstruct justice; and

``(C) whether the offense is part of a pattern of repeated violations of Federal law.

``(e) RULE OF CONSTRUCTION.--For purposes of subsections (b) and (c), any currency or other monetary instrument that is concealed or intended to be concealed in violation of subsection (a) or a conspiracy to commit such violation, any article, container, or conveyance used or intended to be used to conceal or transport the currency or other monetary instrument, and any other property used or intended to be used to facilitate the offense, shall be considered property involved in the offense.''.

(2) CLERICAL AMENDMENT.--The table of sections for chapter 53 of title 31, United States Code, is amended by inserting after the item relating to section 5330 the following new item:

``5331. Bulk cash smuggling.''.

(d) CURRENCY REPORTING VIOLATIONS.--Section 5317(c) of title 31, United States Code, is amended to read as follows:

``(c) FORFEITURE OF PROPERTY.--

``(1) IN GENERAL.--

``(A) CRIMINAL FORFEITURE.--The court, in imposing sentence for any violation of section 5313, 5316, or 5324, or any conspiracy to commit such violation, shall order the defendant to forfeit all property, real or personal, involved in the offense and any property traceable thereto.

``(B) APPLICABLE PROCEDURES.--Forfeitures under this paragraph shall be governed by the procedures set forth in section 413 of the Controlled Substances Act (21 U.S.C. 853), and the guidelines set forth in paragraph (3) of this subsection.

``(2) CIVIL FORFEITURE.--Any property involved in a violation of section 5313, 5316, or 5324, or any conspiracy to commit such violation, and any property traceable thereto, may be seized and, subject to paragraph (3), forfeited to the United States in accordance with the procedures governing civil forfeitures in money laundering cases pursuant to section 981(a)(1)(A) of title 18, United States Code.

``(3) MITIGATION.--In a forfeiture case under this subsection, upon a showing by the property owner by a preponderance of the evidence that any currency or monetary instruments involved in the offense giving rise to the forfeiture were derived from a legitimate source, and were intended for a lawful purpose, the court shall reduce the forfeiture to the maximum amount that is not grossly disproportional to the gravity of the offense. In determining the amount of the forfeiture, the court shall consider all aggravating and mitigating facts and circumstances that have a bearing on the gravity of the offense. Such circumstances include, but are not limited to, the following: the value of the currency or other monetary instruments involved in the offense; efforts by the person committing the offense to structure currency transactions, conceal property, or otherwise obstruct justice; and whether the offense is part of a pattern of repeated violations.

(e) CONFORMING AMENDMENTS.--Title 18, United States Code, is amended--

(1) in section 981(a)(1)(A) by striking ``of section 5313(a) or 5324(a) of title 31, or''; and

(2) in section 982(a)(1), striking ``of section 5313(a), 5316, or 5324 of title 31, or''.

Subtitle E--Anticorruption Measures

SEC. 361. CORRUPTION OF FOREIGN GOVERNMENTS AND RULING ELITES.

It is the sense of Congress that, in deliberations between the United States Government and any other country on money laundering and corruption issues, the United States Government should--

(1) emphasize an approach that addresses not only the laundering of the proceeds of traditional criminal activity but also the increasingly endemic problem of governmental corruption and the corruption of ruling elites;

(2) encourage the enactment and enforcement of laws in such country to prevent money laundering and systemic corruption;

(3) make clear that the United States will take all steps necessary to identify the proceeds of foreign government corruption which have been deposited in United States financial institutions and return such proceeds to the citizens of the country to whom such assets belong; and

(4) advance policies and measures to promote good government and to prevent and reduce corruption and money laundering, including through instructions to the United States Executive Director of each international financial institution (as defined in section 1701(c) of the International Financial Institutions Act) to advocate such policies as a systematic element of economic reform programs and advice to member governments.

SEC. 362. SUPPORT FOR THE FINANCIAL ACTION TASK FORCE ON MONEY LAUNDERING.

It is the sense of Congress that--

(1) the United States should continue to actively and publicly support the objectives of the Financial Action Task Force on Money Laundering (hereafter in this section referred to as the ``FATF'') with regard to combating international money laundering;

(2) the FATF should identify noncooperative jurisdictions in as expeditious a manner as possible and publicly release a list directly naming those jurisdictions identified;

(3) the United States should support the public release of the list naming noncooperative jurisdictions identified by the FATF;

(4) the United States should encourage the adoption of the necessary international action to encourage compliance by the identified noncooperative jurisdictions; and

(5) the United States should take the necessary countermeasures to protect the United States economy against money of unlawful origin and encourage other nations to do the same.

SEC. 363. TERRORIST FUNDING THROUGH MONEY LAUNDERING.

It is the sense of the Congress that, in deliberations and negotiations between the United States Government and any other country regarding financial, economic, assistance, or defense issues, the United States should encourage such other country--

(1) to take actions which would identify and prevent the transmittal of funds to and from terrorists and terrorist organizations; and

(2) to engage in bilateral and multilateral cooperation with the United States and other countries to identify suspected terrorists, terrorist organizations, and persons supplying funds to and receiving funds from terrorists and terrorist organizations.

TITLE IV--PROTECTING THE BORDER

Subtitle A--Protecting the Northern Border

SEC. 401. ENSURING ADEQUATE PERSONNEL ON THE NORTHERN BORDER.

The Attorney General is authorized to waive any FTE cap on personnel assigned to the Immigration and Naturalization Service to address the national security needs of the United States on the Northern border.

SEC. 402. NORTHERN BORDER PERSONNEL.

There are authorized to be appropriated--

(1) such sums as may be necessary to triple the number of Border Patrol personnel (from the number authorized under current law), and the necessary personnel and facilities to support such personnel, in each State along the Northern Border;

(2) such sums as may be necessary to triple the number of Customs Service personnel (from the number authorized under current law), and the necessary personnel and facilities to support such personnel, at ports of entry in each State along the Northern Border;

(3) such sums as may be necessary to triple the number of INS inspectors (from the number authorized on the date of enactment of this Act), and the necessary personnel and facilities to support such personnel, at ports of entry in each State along the Northern Border; and

(4) an additional $50,000,000 each to the Immigration and Naturalization Service and the United States Customs Service for purposes of making improvements in technology for monitoring the Northern Border and acquiring additional equipment at the Northern Border.

SEC. 403. ACCESS BY THE DEPARTMENT OF STATE AND THE INS TO CERTAIN IDENTIFYING INFORMATION IN THE CRIMINAL HISTORY RECORDS OF VISA APPLICANTS AND APPLICANTS FOR ADMISSION TO THE UNITED STATES.

(a) AMENDMENT OF THE IMMIGRATION AND NATIONALITY ACT.--Section 105 of the Immigration and Nationality Act (8 U.S.C. 1105) is amended--

(1) in the section heading, by inserting ``; DATA EXCHANGE'' after ``SECURITY OFFICERS'';

(2) by inserting ``(a)'' after ``SEC. 105.'';

(3) in subsection (a), by inserting ``and border'' after ``internal'' the second place it appears; and

(4) by adding at the end the following:

``(b)(1) The Attorney General and the Director of the Federal Bureau of Investigation shall provide the Department of State and the Service access to the criminal history record information contained in the National Crime Information Center's Interstate Identification Index (NCIC-III), Wanted Persons File, and to any other files maintained by the National Crime Information Center that may be mutually agreed upon by the Attorney General and the agency receiving the access, for the purpose of determining whether or not a visa applicant or applicant for admission has a criminal history record indexed in any such file.

``(2) Such access shall be provided by means of extracts of the records for placement in the automated visa lookout or other

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appropriate database, and shall be provided without any fee or charge.

``(3) The Federal Bureau of Investigation shall provide periodic updates of the extracts at intervals mutually agreed upon with the agency receiving the access. Upon receipt of such updated extracts, the receiving agency shall make corresponding updates to its database and destroy previously provided extracts.

``(4) Access to an extract does not entitle the Department of State to obtain the full content of the corresponding automated criminal history record. To obtain the full content of a criminal history record, the Department of State shall submit the applicant's fingerprints and any appropriate fingerprint processing fee authorized by law to the Criminal Justice Information Services Division of the Federal Bureau of Investigation.

``(c) The provision of the extracts described in subsection (b) may be reconsidered by the Attorney General and the receiving agency upon the development and deployment of a more cost-effective and efficient means of sharing the information.

``(d) For purposes of administering this section, the Department of State shall, prior to receiving access to NCIC data but not later than 4 months after the date of enactment of this subsection, promulgate final regulations--

``(1) to implement procedures for the taking of fingerprints; and

``(2) to establish the conditions for the use of the information received from the Federal Bureau of Investigation, in order--

``(A) to limit the redissemination of such information;

``(B) to ensure that such information is used solely to determine whether or not to issue a visa to an alien or to admit an alien to the United States;

``(C) to ensure the security, confidentiality, and destruction of such information; and

``(D) to protect any privacy rights of individuals who are subjects of such information.''.

(b) REPORTING REQUIREMENT.--Not later than 2 years after the date of enactment of this Act, the Attorney General and the Secretary of State jointly shall report to Congress on the implementation of the amendments made by this section.

(c) TECHNOLOGY STANDARD TO CONFIRM IDENTITY.--

(1) IN GENERAL.--The Attorney General and the Secretary of State jointly, through the National Institute of Standards and Technology (NIST), and in consultation with the Secretary of the Treasury and other Federal law enforcement and intelligence agencies the Attorney General or Secretary of State deems appropriate, shall within 2 years after the date of enactment of this section, develop and certify a technology standard that can confirm the identity of a person applying for a United States visa or such person seeking to enter the United States pursuant to a visa.

(2) INTEGRATED.--The technology standard developed pursuant to paragraph (1), shall be the technological basis for a cross-agency, cross-platform electronic system that is a cost-effective, efficient, fully integrated means to share law enforcement and intelligence information necessary to confirm the identity of such persons applying for a United States visa or such person seeking to enter the United States pursuant to a visa.

(3) ACCESSIBLE.--The electronic system described in paragraph (2), once implemented, shall be readily and easily accessible to--

(A) all consular officers responsible for the issuance of visas;

(B) all Federal inspection agents at all United States border inspection points; and

(C) all law enforcement and intelligence officers as determined by regulation to be responsible for investigation or identification of aliens admitted to the United States pursuant to a visa.

(4) REPORT.--Not later than 18 months after the date of enactment of this Act, and every 2 years thereafter, the Attorney General and the Secretary of State shall jointly, in consultation with the Secretary of Treasury, report to Congress describing the development, implementation and efficacy of the technology standard and electronic database system described in this subsection.

(d) STATUTORY CONSTRUCTION.--Nothing in this section, or in any other law, shall be construed to limit the authority of the Attorney General or the Director of the Federal Bureau of Investigation to provide access to the criminal history record information contained in the National Crime Information Center's (NCIC) Interstate Identification Index (NCIC-III), or to any other information maintained by the NCIC, to any Federal agency or officer authorized to enforce or administer the immigration laws of the United States, for the purpose of such enforcement or administration, upon terms that are consistent with the National Crime Prevention and Privacy Compact Act of 1998 (subtitle A of title II of Public Law 105-251; 42 U.S.C. 14611-16) and section 552a of title 5, United States Code.

SEC. 404. LIMITED AUTHORITY TO PAY OVERTIME.

The matter under the headings ``Immigration And Naturalization Service: Salaries and Expenses, Enforcement And Border Affairs'' and ``Immigration And Naturalization Service: Salaries and Expenses, Citizenship And Benefits, Immigration And Program Direction'' in the Department of Justice Appropriations Act, 2001 (as enacted into law by Appendix B (H.R. 5548) of Public Law 106-553 (114 Stat. 2762A-58 to 2762A-59)) is amended by striking the following each place it occurs: ``Provided, That none of the funds available to the Immigration and Naturalization Service shall be available to pay any employee overtime pay in an amount in excess of $30,000 during the calendar year beginning January 1, 2001:''.

SEC. 405. REPORT ON THE INTEGRATED AUTOMATED FINGERPRINT IDENTIFICATION SYSTEM FOR POINTS OF ENTRY AND OVERSEAS CONSULAR POSTS.

(a) IN GENERAL.--The Attorney General, in consultation with the appropriate heads of other Federal agencies, including the Secretary of State, Secretary of the Treasury, and the Secretary of Transportation, shall report to Congress on the feasibility of enhancing the Integrated Automated Fingerprint Identification System (IAFIS) of the Federal Bureau of Investigation and other identification systems in order to better identify a person who holds a foreign passport or a visa and may be wanted in connection with a criminal investigation in the United States or abroad, before the issuance of a visa to that person or the entry or exit by that person from the United States.

(b) AUTHORIZATION OF APPROPRIATIONS.--There is authorized to be appropriated not less than $2,000,000 to carry out this section.

Subtitle B--Enhanced Immigration Provisions

SEC. 411. DEFINITIONS RELATING TO TERRORISM.

(a) GROUNDS OF INADMISSIBILITY.--Section 212(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)) is amended--

(1) in subparagraph (B)--

(A) in clause (i)--

(i) by amending subclause (IV) to read as follows:

``(IV) is a representative (as defined in clause (v)) of--

``(aa) a foreign terrorist organization, as designated by the Secretary of State under section 219, or

``(bb) a political, social or other similar group whose public endorsement of acts of terrorist activity the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities,'';

(ii) in subclause (V), by inserting ``or'' after ``section 219,''; and

(iii) by adding at the end the following new subclauses:

``(VI) has used the alien's position of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist activity or a terrorist organization, in a way that the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities, or

``(VII) is the spouse or child of an alien who is inadmissible under this section, if the activity causing the alien to be found inadmissible occurred within the last 5 years,'';

(B) by redesignating clauses (ii), (iii), and (iv) as clauses (iii), (iv), and (v), respectively;

(C) in clause (i)(II), by striking ``clause (iii)'' and inserting ``clause (iv)'';

(D) by inserting after clause (i) the following:

``(ii) EXCEPTION.--Subclause (VII) of clause (i) does not apply to a spouse or child--

``(I) who did not know or should not reasonably have known of the activity causing the alien to be found inadmissible under this section; or

``(II) whom the consular officer or Attorney General has reasonable grounds to believe has renounced the activity causing the alien to be found inadmissible under this section.'';

(E) in clause (iii) (as redesignated by subparagraph (B))--

(i) by inserting ``it had been'' before ``committed in the United States''; and

(ii) in subclause (V)(b), by striking ``or firearm'' and inserting ``, firearm, or other weapon or dangerous device'';

(F) by amending clause (iv) (as redesignated by subparagraph (B)) to read as follows:

``(iv) ENGAGE IN TERRORIST ACTIVITY DEFINED.--As used in this chapter, the term `engage in terrorist activity' means, in an individual capacity or as a member of an organization--

``(I) to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;

``(II) to prepare or plan a terrorist activity;

``(III) to gather information on potential targets for terrorist activity;

``(IV) to solicit funds or other things of value for--

``(aa) a terrorist activity;

``(bb) a terrorist organization described in clauses (vi)(I) or (vi)(II); or

``(cc) a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization's terrorist activity;

``(V) to solicit any individual--

``(aa) to engage in conduct otherwise described in this clause;

``(bb) for membership in a terrorist organization described in clauses (vi)(I) or (vi)(II); or

``(cc) for membership in a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate that he did not know, and should not reasonably have known, that the solicitation would further the organization's terrorist activity; or

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``(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training--

``(aa) for the commission of a terrorist activity;

``(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;

``(cc) to a terrorist organization described in clauses (vi)(I) or (vi)(II); or

``(dd) to a terrorist organization described in clause (vi)(III), unless the actor can demonstrate that he did not know, and should not reasonably have known, that the act would further the organization's terrorist activity.

This clause shall not apply to any material support the alien afforded to an organization or individual that has committed terrorist activity, if the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, concludes in his sole unreviewable discretion, that this clause should not apply.''; and

(D) by adding at the end the following new clause:

``(vi) TERRORIST ORGANIZATION DEFINED.--As used in clause (i)(VI) and clause (iv), the term `terrorist organization' means an organization--

``(I) designated under section 219;

``(II) otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General, as a terrorist organization, after finding that it engages in the activities described in subclause (I), (II), or (III) of clause (iv), or that it provides material support to further terrorist activity; or

``(III) that is a group of two or more individuals, whether organized or not, which engages in the activities described in subclause (I), (II), or (III) of clause (iv).''; and

(2) by adding at the end the following new subparagraph:

``(F) ASSOCIATION WITH TERRORIST ORGANIZATIONS.--Any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the United States is inadmissible.''.

(b) CONFORMING AMENDMENT.--Section 237(a)(4)(B) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(4)(B)) is amended by striking ``section 212(a)(3)(B)(iii)'' and inserting ``section 212(a)(3)(B)(iv)''.

(c) RETROACTIVE APPLICATION OF AMENDMENTS.--

(1) IN GENERAL.--Except as otherwise provided in this subsection, the amendments made by this section shall take effect on the date of enactment of this Act and shall apply to--

(A) actions taken by an alien before, on, or after such date; and

(B) all aliens, without regard to the date of entry or attempted entry into the United States--

(i) in removal proceedings on or after such date (except for proceedings in which there has been a final administrative decision before such date); or

(ii) seeking admission to the United States on or after such date.

(2) SPECIAL RULE FOR ALIENS IN EXCLUSION OR DEPORTATION PROCEEDINGS.--Notwithstanding any other provision of law, the amendments made by this section shall apply to all aliens in exclusion or deportation proceedings on or after the date of enactment of this Act (except for proceedings in which there has been a final administrative decision before such date) as if such proceedings were removal proceedings.

(3) SPECIAL RULE FOR SECTION 219 ORGANIZATIONS AND ORGANIZATIONS DESIGNATED UNDER SECTION 212(a)(3)(B)(vi)(II).--

(A) IN GENERAL.--Notwithstanding paragraphs (1) and (2), no alien shall be considered inadmissible under section 212(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)), or deportable under section 237(a)(4)(B) of such Act (8 U.S.C. 1227(a)(4)(B)), by reason of the amendments made by subsection (a), on the ground that the alien engaged in a terrorist activity described in subclause (IV)(bb), (V)(bb), or (VI)(cc) of section 212(a)(3)(B)(iv) of such Act (as so amended) with respect to a group at any time when the group was not a terrorist organization designated by the Secretary of State under section 219 of such Act (8 U.S.C. 1189) or otherwise designated under section 212(a)(3)(B)(vi)(II).

(B) STATUTORY CONSTRUCTION.--Subparagraph (A) shall not be construed to prevent an alien from being considered inadmissible or deportable for having engaged in a terrorist activity--

(i) described in subclause (IV)(bb), (V)(bb), or (VI)(cc) of section 212(a)(3)(B)(iv) of such Act (as so amended) with respect to a terrorist organization at any time when such organization was designated by the Secretary of State under section 219 of such Act or otherwise designated under section 212(a)(3)(B)(vi)(II); or

(ii) described in subclause (IV)(cc), (V)(cc), or (VI)(dd) of section 212(a)(3)(B)(iv) of such Act (as so amended) with respect to a terrorist organization described in section 212(a)(3)(B)(vi)(III).

(4) EXCEPTION.--The Secretary of State, in consultation with the Attorney General, may determine that the amendments made by this section shall not apply with respect to actions by an alien taken outside the United States before the date of enactment of this Act upon the recommendation of a consular officer who has concluded that there is not reasonable ground to believe that the alien knew or reasonably should have known that the actions would further a terrorist activity.

(c) DESIGNATION OF FOREIGN TERRORIST ORGANIZATIONS.--Section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a)) is amended--

(1) in paragraph (1)(B), by inserting ``or terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (22 U.S.C. 2656f(d)(2)) or retains the capability and intent to engage in terrorist activity or terrorism)'' after ``212(a)(3)(B))'';

(2) in paragraph (1)(C), by inserting ``or terrorism'' after ``terrorist activity'';

(3) by amending paragraph (2)(A) to read as follows:

``(A) NOTICE.--

``(i) TO CONGRESSIONAL LEADERS.--Seven days before making a designation under this subsection, the Secretary shall, by classified communication, notify the Speaker and Minority Leader of the House of Representatives, the President pro tempore, Majority Leader, and Minority Leader of the Senate, and the members of the relevant committees, in writing, of the intent to designate an organization under this subsection, together with the findings made under paragraph (1) with respect to that organization, and the factual basis therefor.

``(ii) PUBLICATION IN FEDERAL REGISTER.--The Secretary shall publish the designation in the Federal Register seven days after providing the notification under clause (i).'';

(4) in paragraph (2)(B)(i), by striking ``subparagraph (A)'' and inserting ``subparagraph (A)(ii)'';

(5) in paragraph (2)(C), by striking ``paragraph (2)'' and inserting ``paragraph (2)(A)(i)'';

(6) in paragraph (3)(B), by striking ``subsection (c)'' and inserting ``subsection (b)'';

(7) in paragraph (4)(B), by inserting after the first sentence the following: ``The Secretary also may redesignate such organization at the end of any 2-year redesignation period (but not sooner than 60 days prior to the termination of such period) for an additional 2-year period upon a finding that the relevant circumstances described in paragraph (1) still exist. Any redesignation shall be effective immediately following the end of the prior 2-year designation or redesignation period unless a different effective date is provided in such redesignation.'';

(8) in paragraph (6)(A)--

(A) by inserting ``or a redesignation made under paragraph (4)(B)'' after ``paragraph (1)'';

(B) in clause (i)--

(i) by inserting ``or redesignation'' after ``designation'' the first place it appears; and

(ii) by striking ``of the designation''; and

(C) in clause (ii), by striking ``of the designation'';

(9) in paragraph (6)(B)--

(A) by striking ``through (4)'' and inserting ``and (3)''; and

(B) by inserting at the end the following new sentence: ``Any revocation shall take effect on the date specified in the revocation or upon publication in the Federal Register if no effective date is specified.'';

(10) in paragraph (7), by inserting ``, or the revocation of a redesignation under paragraph (6),'' after ``paragraph (5) or (6)''; and

(11) in paragraph (8)--

(A) by striking ``paragraph (1)(B)'' and inserting ``paragraph (2)(B), or if a redesignation under this subsection has become effective under paragraph (4)(B)'';

(B) by inserting ``or an alien in a removal proceeding'' after ``criminal action''; and

(C) by inserting ``or redesignation'' before ``as a defense''.

SEC. 412. MANDATORY DETENTION OF SUSPECTED TERRORISTS; HABEAS CORPUS; JUDICIAL REVIEW.

(a) IN GENERAL.--The Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after section 236 the following:

``MANDATORY DETENTION OF SUSPECTED TERRORISTS; HABEAS CORPUS; JUDICIAL REVIEW

``SEC. 236A. (a) DETENTION OF TERRORIST ALIENS.--

``(1) CUSTODY.--The Attorney General shall take into custody any alien who is certified under paragraph (3).

``(2) RELEASE.--Except as provided in paragraph (5), the Attorney General shall maintain custody of such an alien until the alien is removed from the United States. Such custody shall be maintained irrespective of any relief from removal for which the alien may be eligible, or any relief from removal granted the alien, until the Attorney General determines that the alien is no longer an alien who may be certified under paragraph (3).

``(3) CERTIFICATION.--The Attorney General may certify an alien under this paragraph if the Attorney General has reasonable grounds to believe that the alien--

``(A) is described in section 212(a)(3)(A)(i), 212(a)(3)(A)(iii), 212(a)(3)(B), 237(a)(4)(A)(i), 237(a)(4)(A)(iii), or 237(a)(4)(B); or

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``(B) is engaged in any other activity that endangers the national security of the United States.

``(4) NONDELEGATION.--The Attorney General may delegate the authority provided under paragraph (3) only to the Commissioner. The Commissioner may not delegate such authority.

``(5) COMMENCEMENT OF PROCEEDINGS.--The Attorney General shall place an alien detained under paragraph (1) in removal proceedings, or shall charge the alien with a criminal offense, not later than 7 days after the commencement of such detention. If the requirement of the preceding sentence is not satisfied, the Attorney General shall release the alien.

``(b) HABEAS CORPUS AND JUDICIAL REVIEW.--Judicial review of any action or decision relating to this section (including judicial review of the merits of a determination made under subsection (a)(3)) is available exclusively in habeas corpus proceedings in the United States District Court for the District of Columbia. Notwithstanding any other provision of law, including section 2241 of title 28, United States Code, except as provided in the preceding sentence, no court shall have jurisdiction to review, by habeas corpus petition or otherwise, any such action or decision.

``(c) STATUTORY CONSTRUCTION.--The provisions of this section shall not be applicable to any other provisions of the Immigration and Nationality Act.''.

(b) CLERICAL AMENDMENT.--The table of contents of the Immigration and Nationality Act is amended by inserting after the item relating to section 236 the following:

``Sec. 236A. Mandatory detention of suspected terrorist; habeas corpus; judicial review.''.

(c) REPORTS.--Not later than 6 months after the date of the enactment of this Act, and every 6 months thereafter, the Attorney General shall submit a report to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, with respect to the reporting period, on--

(1) the number of aliens certified under section 236A(a)(3) of the Immigration and Nationality Act, as added by subsection (a);

(2) the grounds for such certifications;

(3) the nationalities of the aliens so certified;

(4) the length of the detention for each alien so certified; and

(5) the number of aliens so certified who--

(A) were granted any form of relief from removal;

(B) were removed;

(C) the Attorney General has determined are no longer aliens who may be so certified; or

(D) were released from detention.

SEC. 413. MULTILATERAL COOPERATION AGAINST TERRORISTS.

Section 222(f) of the Immigration and Nationality Act (8 U.S.C. 1202(f)) is amended--

(1) by striking ``except that in the discretion of'' and inserting the following: ``except that--

``(1) in the discretion of''; and

(2) by adding at the end the following:

``(2) the Secretary of State, in the Secretary's discretion and on the basis of reciprocity, may provide to a foreign government information in the Department of State's computerized visa lookout database and, when necessary and appropriate, other records covered by this section related to information in the database--

``(A) with regard to individual aliens, at any time on a case-by-case basis for the purpose of preventing, investigating, or punishing acts that would constitute a crime in the United States, including, but not limited to, terrorism or trafficking in controlled substances, persons, or illicit weapons; or

``(B) with regard to any or all aliens in the database, pursuant to such conditions as the Secretary of State shall establish in an agreement with the foreign government in which that government agrees to use such information and records for the purposes described in subparagraph (A) or to deny visas to persons who would be inadmissible to the United States.''.

TITLE V--REMOVING OBSTACLES TO INVESTIGATING TERRORISM

SEC. 501. PROFESSIONAL STANDARDS FOR GOVERNMENT ATTORNEYS ACT OF 2001.

(a) SHORT TITLE.--This title may be cited as the ``Professional Standards for Government Attorneys Act of 2001''.

(b) PROFESSIONAL STANDARDS FOR GOVERNMENT ATTORNEYS.--Section 530B of title 28, United States Code, is amended to read as follows:``§530B. Professional Standards for Government Attorneys

``(a) DEFINITIONS.--In this section:

``(1) GOVERNMENT ATTORNEY.--The term `Government attorney'--

``(A) means the Attorney General; the Deputy Attorney General; the Solicitor General; the Associate Attorney General; the head of, and any attorney employed in, any division, office, board, bureau, component, or agency of the Department of Justice; any United States Attorney; any Assistant United States Attorney; any Special Assistant to the Attorney General or Special Attorney appointed under section 515; any Special Assistant United States Attorney appointed under section 543 who is authorized to conduct criminal or civil law enforcement investigations or proceedings on behalf of the United States; any other attorney employed by the Department of Justice who is authorized to conduct criminal or civil law enforcement proceedings on behalf of the United States; any independent counsel, or employee of such counsel, appointed under chapter 40; and any outside special counsel, or employee of such counsel, as may be duly appointed by the Attorney General; and

``(B) does not include any attorney employed as an investigator or other law enforcement agent by the Department of Justice who is not authorized to represent the United States in criminal or civil law enforcement litigation or to supervise such proceedings.

``(2) STATE.--The term `State' includes a Territory and the District of Columbia.

``(b) CHOICE OF LAW.--Subject to any uniform national rule prescribed by the Supreme Court under chapter 131, the standards of professional responsibility that apply to a Government attorney with respect to the attorney's work for the Government shall be--

``(1) for conduct in connection with a proceeding in or before a court, or conduct reasonably intended to lead to a proceeding in or before a court, the standards of professional responsibility established by the rules and decisions of the court in or before which the proceeding is brought or is intended to be brought;

``(2) for conduct in connection with a grand jury proceeding, or conduct reasonably intended to lead to a grand jury proceeding, the standards of professional responsibility established by the rules and decisions of the court under whose authority the grand jury was or will be impaneled; and

``(3) for all other conduct, the standards of professional responsibility established by the rules and decisions of the Federal district court for the judicial district in which the attorney principally performs his or her official duties.

``(c) LICENSURE.--A Government attorney (except foreign counsel employed in special cases)--

``(1) shall be duly licensed and authorized to practice as an attorney under the laws of a State; and

``(2) shall not be required to be a member of the bar of any particular State.

``(d) UNDERCOVER ACTIVITIES.--Notwithstanding any provision of State law, including disciplinary rules, statutes, regulations, constitutional provisions, or case law, a Government attorney may, for the purpose of enforcing Federal law, provide legal advice, authorization, concurrence, direction, or supervision on conducting undercover activities, and any attorney employed as an investigator or other law enforcement agent by the Department of Justice who is not authorized to represent the United States in criminal or civil law enforcement litigation or to supervise such proceedings may participate in such activities, even though such activities may require the use of deceit or misrepresentation, where such activities are consistent with Federal law.

``(e) ADMISSIBILITY OF EVIDENCE.--No violation of any disciplinary, ethical, or professional conduct rule shall be construed to permit the exclusion of otherwise admissible evidence in any Federal criminal proceedings.

``(f) RULEMAKING AUTHORITY.--The Attorney General shall make and amend rules of the Department of Justice to ensure compliance with this section.''.

(c) TECHNICAL AND CONFORMING AMENDMENT.--The analysis for chapter 31 of title 28, United States Code, is amended, in the item relating to section 530B, by striking ``Ethical standards for attorneys for the Government'' and inserting ``Professional standards for Government attorneys''.

(d) REPORTS.--

(1) UNIFORM RULE.--In order to encourage the Supreme Court to prescribe, under chapter 131 of title 28, United States Code, a uniform national rule for Government attorneys with respect to communications with represented persons and parties, not later than 1 year after the date of enactment of this Act, the Judicial Conference of the United States shall submit to the Chief Justice of the United States a report, which shall include recommendations with respect to amending the Federal Rules of Practice and Procedure to provide for such a uniform national rule.

(2) ACTUAL OR POTENTIAL CONFLICTS.--Not later than 2 years after the date of enactment of this Act, the Judicial Conference of the United States shall submit to the Chairmen and Ranking Members of the Committees on the Judiciary of the House of Representatives and the Senate a report, which shall include--

(A) a review of any areas of actual or potential conflict between specific Federal duties related to the investigation and prosecution of violations of Federal law and the regulation of Government attorneys (as that term is defined in section 530B of title 28, United States Code, as amended by this Act) by existing standards of professional responsibility; and

(B) recommendations with respect to amending the Federal Rules of Practice and Procedure to provide for additional rules governing attorney conduct to address any areas of actual or potential conflict identified pursuant to the review under subparagraph (A).

(3) REPORT CONSIDERATIONS.--In carrying out paragraphs (1) and (2), the Judicial Conference of the United States shall take into consideration--

(A) the needs and circumstances of multiforum and multijurisdictional litigation;

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(B) the special needs and interests of the United States in investigating and prosecuting violations of Federal criminal and civil law; and

(C) practices that are approved under Federal statutory or case law or that are otherwise consistent with traditional Federal law enforcement techniques.

SEC. 502. ATTORNEY GENERAL'S AUTHORITY TO PAY REWARDS TO COMBAT TERRORISM.

(a) PAYMENT OF REWARDS TO COMBAT TERRORISM.--Funds available to the Attorney General may be used for the payment of rewards pursuant to public advertisements for assistance to the Department of Justice to combat terrorism and defend the Nation against terrorist acts, in accordance with procedures and regulations established or issued by the Attorney General.

(b) CONDITIONS.--In making rewards under this section--

(1) no such reward of $250,000 or more may be made or offered without the personal approval of either the Attorney General or the President;

(2) the Attorney General shall give written notice to the Chairmen and ranking minority members of the Committees on Appropriations and the Judiciary of the Senate and of the House of Representatives not later than 30 days after the approval of a reward under paragraph (1);

(3) any executive agency or military department (as defined, respectively, in sections 105 and 102 of title 5, United States Code) may provide the Attorney General with funds for the payment of rewards;

(4) neither the failure of the Attorney General to authorize a payment nor the amount authorized shall be subject to judicial review; and

(5) no such reward shall be subject to any per- or aggregate reward spending limitation established by law, unless that law expressly refers to this section, and no reward paid pursuant to any such offer shall count toward any such aggregate reward spending limitation.

SEC. 503. SECRETARY OF STATE'S AUTHORITY TO PAY REWARDS.

Section 36 of the State Department Basic Authorities Act of 1956 (Public Law 885, August 1, 1956; 22 U.S.C. 2708) is amended--

(1) in subsection (b)--

(A) in paragraph (4), by striking ``or'' at the end;

(B) in paragraph (5), by striking the period at the end and inserting ``, including by dismantling an organization in whole or significant part; or''; and

(C) by adding at the end the following:

``(6) the identification or location of an individual who holds a key leadership position in a terrorist organization.'';

(2) in subsection (d), by striking paragraphs (2) and (3) and redesignating paragraph (4) as paragraph (2); and

(3) in subsection (e)(1), by inserting ``, except as personally authorized by the Secretary of State if he determines that offer or payment of an award of a larger amount is necessary to combat terrorism or defend the Nation against terrorist acts.'' after ``$5,000,000''.

SEC. 504. DNA IDENTIFICATION OF TERRORISTS AND OTHER VIOLENT OFFENDERS.

Section 3(d)(2) of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135a(d)(2)) is amended to read as follows:

``(2) In additional to the offenses described in paragraph (1), the following offenses shall be treated for purposes of this section as qualifying Federal offenses, as determined by the Attorney General:

``(A) Any offense listed in section 2332b(g)(5)(B) of title 18, United States Code.

``(B) Any crime of violence (as defined in section 16 of title 18, United States Code).

``(C) Any attempt or conspiracy to commit any of the above offenses.''.

SEC. 505. COORDINATION WITH LAW ENFORCEMENT.

(a) INFORMATION ACQUIRED FROM AN ELECTRONIC SURVEILLANCE.--Section 106 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1806), is amended by adding at the end the following:

``(k)(1) Federal officers who conduct electronic surveillance to acquire foreign intelligence information under this title may consult with Federal law enforcement officers to coordinate efforts to investigate or protect against--

``(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

``(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

``(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.

``(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section 104(a)(7)(B) or the entry of an order under section 105.''.

(b) INFORMATION ACQUIRED FROM A PHYSICAL SEARCH.--Section 305 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1825) is amended by adding at the end the following:

``(k)(1) Federal officers who conduct physical searches to acquire foreign intelligence information under this title may consult with Federal law enforcement officers to coordinate efforts to investigate or protect against--

``(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

``(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

``(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.

``(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section 303(a)(7) or the entry of an order under section 304.''.

SEC. 506. MISCELLANEOUS NATIONAL SECURITY AUTHORITIES.

(a) TELEPHONE TOLL AND TRANSACTIONAL RECORDS.--Section 2709(b) of title 18, United States Code, is amended--

(1) in the matter preceding paragraph (1), by inserting ``at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director'' after ``Assistant Director'';

(2) in paragraph (1)--

(A) by striking ``in a position not lower than Deputy Assistant Director''; and

(B) by striking ``made that'' and all that follows and inserting the following: ``made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and''; and

(3) in paragraph (2)--

(A) by striking ``in a position not lower than Deputy Assistant Director''; and

(B) by striking ``made that'' and all that follows and inserting the following: ``made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.''.

(b) FINANCIAL RECORDS.--Section 1114(a)(5)(A) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)(A)) is amended--

(1) by inserting ``in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director'' after ``designee''; and

(2) by striking ``sought'' and all that follows and inserting ``sought for foreign counter intelligence purposes to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.''.

(c) CONSUMER REPORTS.--Section 624 of the Fair Credit Reporting Act (15 U.S.C. 1681u) is amended--

(1) in subsection (a)--

(A) by inserting ``in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office designated by the Director'' after ``designee'' the first place it appears; and

(B) by striking ``in writing that'' and all that follows through the end and inserting the following: ``in writing, that such information is sought for the conduct of an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.'';

(2) in subsection (b)--

(A) by inserting ``in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office designated by the Director'' after ``designee'' the first place it appears; and

(B) by striking ``in writing that'' and all that follows through the end and inserting the following: ``in writing that such information is sought for the conduct of an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.''; and

(3) in subsection (c)--

(A) by inserting ``in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director'' after ``designee of the Director''; and

(B) by striking ``in camera that'' and all that follows through ``States.'' and inserting the following: ``in camera that the consumer report is sought for the conduct of an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.''.

SEC. 507. EXTENSION OF SECRET SERVICE JURISDICTION.

(a) Concurrent Jurisdiction Under 18 U.S.C. 1030.--Section 1030(d) of title 18, United States Code, is amended to read as follows:

``(d)(1) The United States Secret Service shall, in addition to any other agency having

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such authority, have the authority to investigate offenses under this section.

``(2) The Federal Bureau of Investigation shall have primary authority to investigate offenses under subsection (a)(1) for any cases involving espionage, foreign counterintelligence, information protected against unauthorized disclosure for reasons of national defense or foreign relations, or Restricted Data (as that term is defined in section 11y of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)), except for offenses affecting the duties of the United States Secret Service pursuant to section 3056(a) of this title.

``(3) Such authority shall be exercised in accordance with an agreement which shall be entered into by the Secretary of the Treasury and the Attorney General.''.

(b) Reauthorization of Jurisdiction under 18 U.S.C. 1344.--Section 3056(b)(3) of title 18, United States Code, is amended by striking ``credit and debit card frauds, and false identification documents or devices'' and inserting ``access device frauds, false identification documents or devices, and any fraud or other criminal or unlawful activity in or against any federally insured financial institution''.

SEC. 508. DISCLOSURE OF EDUCATIONAL RECORDS.

Section 444 of the General Education Provisions Act (20 U.S.C. 1232g), is amended by adding after subsection (i) a new subsection (j) to read as follows:

``(j) INVESTIGATION AND PROSECUTION OF TERRORISM.--

``(1) IN GENERAL.--Notwithstanding subsections (a) through (i) or any provision of State law, the Attorney General (or any Federal officer or employee, in a position not lower than an Assistant Attorney General, designated by the Attorney General) may submit a written application to a court of competent jurisdiction for an ex parte order requiring an educational agency or institution to permit the Attorney General (or his designee) to--

``(A) collect education records in the possession of the educational agency or institution that are relevant to an authorized investigation or prosecution of an offense listed in section 2332b(g)(5)(B) of title 18 United States Code, or an act of domestic or international terrorism as defined in section 2331 of that title; and

``(B) for official purposes related to the investigation or prosecution of an offense described in paragraph (1)(A), retain, disseminate, and use (including as evidence at trial or in other administrative or judicial proceedings) such records, consistent with such guidelines as the Attorney General, after consultation with the Secretary, shall issue to protect confidentiality.

``(2) APPLICATION AND APPROVAL.--

``(A) IN GENERAL.--An application under paragraph (1) shall certify that there are specific and articulable facts giving reason to believe that the education records are likely to contain information described in paragraph (1)(A).

``(B) The court shall issue an order described in paragraph (1) if the court finds that the application for the order includes the certification described in subparagraph (A).

``(3) PROTECTION OF EDUCATIONAL AGENCY OR INSTITUTION.--An educational agency or institution that, in good faith, produces education records in accordance with an order issued under this subsection shall not be liable to any person for that production.

``(4) RECORD-KEEPING.--Subsection (b)(4) does not apply to education records subject to a court order under this subsection.''.

SEC. 509. DISCLOSURE OF INFORMATION FROM NCES SURVEYS.

Section 408 of the National Education Statistics Act of 1994 (20 U.S.C. 9007), is amended by adding after subsection (b) a new subsection (c) to read as follows:

``(c) INVESTIGATION AND PROSECUTION OF TERRORISM.--

``(1) IN GENERAL.--Notwithstanding subsections (a) and (b), the Attorney General (or any Federal officer or employee, in a position not lower than an Assistant Attorney General, designated by the Attorney General) may submit a written application to a court of competent jurisdiction for an ex parte order requiring the Secretary to permit the Attorney General (or his designee) to--

``(A) collect reports, records, and information (including individually identifiable information) in the possession of the center that are relevant to an authorized investigation or prosecution of an offense listed in section 2332b(g)(5)(B) of title 18, United States Code, or an act of domestic or international terrorism as defined in section 2331 of that title; and

``(B) for official purposes related to the investigation or prosecution of an offense described in paragraph (1)(A), retain, disseminate, and use (including as evidence at trial or in other administrative or judicial proceedings) such information, consistent with such guidelines as the Attorney General, after consultation with the Secretary, shall issue to protect confidentiality.

``(2) APPLICATION AND APPROVAL.--

``(A) IN GENERAL.--An application under paragraph (1) shall certify that there are specific and articulable facts giving reason to believe that the information sought is described in paragraph (1)(A).

``(B) The court shall issue an order described in paragraph (1) if the court finds that the application for the order includes the certification described in subparagraph (A).

``(3) PROTECTION.--An officer or employee of the Department who, in good faith, produces information in accordance with an order issued under this subsection does not violate subsection (b)(2) and shall not be liable to any person for that production.''.

TITLE VI--PROVIDING FOR VICTIMS OF TERRORISM, PUBLIC SAFETY OFFICERS, AND THEIR FAMILIES

Subtitle A--Aid to Families of Public Safety Officers

SEC. 611. EXPEDITED PAYMENT FOR PUBLIC SAFETY OFFICERS INVOLVED IN THE PREVENTION, INVESTIGATION, RESCUE, OR RECOVERY EFFORTS RELATED TO A TERRORIST ATTACK.

(a) IN GENERAL.--Notwithstanding the limitations of subsection (b) of section 1201 or the provisions of subsections (c), (d), and (e) of such section or section 1202 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796, 3796a), upon certification (containing identification of all eligible payees of benefits pursuant to section 1201 of such Act) by a public agency that a public safety officer employed by such agency was killed or suffered a catastrophic injury producing permanent and total disability as a direct and proximate result of a personal injury sustained in the line of duty as described in section 1201 of such Act in connection with prevention, investigation, rescue, or recovery efforts related to a terrorist attack, the Director of the Bureau of Justice Assistance shall authorize payment to qualified beneficiaries, said payment to be made not later than 30 days after receipt of such certification, benefits described under subpart 1 of part L of such Act (42 U.S.C. 3796 et seq.).

(b) DEFINITIONS.--For purposes of this section, the terms ``catastrophic injury'', ``public agency'', and ``public safety officer'' have the same meanings given such terms in section 1204 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796b).

SEC. 612. TECHNICAL CORRECTION WITH RESPECT TO EXPEDITED PAYMENTS FOR HEROIC PUBLIC SAFETY OFFICERS.

Section 1 of Public Law 107-37 (an Act to provide for the expedited payment of certain benefits for a public safety officer who was killed or suffered a catastrophic injury as a direct and proximate result of a personal injury sustained in the line of duty in connection with the terrorist attacks of September 11, 2001) is amended by--

(1) inserting before ``by a'' the following: ``(containing identification of all eligible payees of benefits pursuant to section 1201)'';

(2) inserting ``producing permanent and total disability'' after ``suffered a catastrophic injury''; and

(2) striking ``1201(a)'' and inserting ``1201''.

SEC. 613. PUBLIC SAFETY OFFICERS BENEFIT PROGRAM PAYMENT INCREASE.

(a) PAYMENTS.--Section 1201(a) of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796) is amended by striking ``$100,000'' and inserting ``$250,000''.

(b) APPLICABILITY.--The amendment made by subsection (a) shall apply to any death or disability occurring on or after January 1, 2001.

SEC. 614. OFFICE OF JUSTICE PROGRAMS.

Section 112 of title I of section 101(b) of division A of Public Law 105-277 and section 108(a) of appendix A of Public Law 106-113 (113 Stat. 1501A-20) are amended--

(1) after ``that Office'', each place it occurs, by inserting ``(including, notwithstanding any contrary provision of law (unless the same should expressly refer to this section), any organization that administers any program established in title 1 of Public Law 90-351)''; and

(2) by inserting ``functions, including any'' after ``all''.

Subtitle B--Amendments to the Victims of Crime Act of 1984

SEC. 621. CRIME VICTIMS FUND.

(a) DEPOSIT OF GIFTS IN THE FUND.--Section 1402(b) of the Victims of Crime Act of 1984 (42 U.S.C. 10601(b)) is amended--

(1) in paragraph (3), by striking ``and'' at the end;

(2) in paragraph (4), by striking the period at the end and inserting ``; and''; and

(3) by adding at the end the following:

``(5) any gifts, bequests, or donations to the Fund from private entities or individuals.''.

(b) FORMULA FOR FUND DISTRIBUTIONS.--Section 1402(c) of the Victims of Crime Act of 1984 (42 U.S.C. 10601(c)) is amended to read as follows:

``(c) FUND DISTRIBUTION; RETENTION OF SUMS IN FUND; AVAILABILITY FOR EXPENDITURE WITHOUT FISCAL YEAR LIMITATION.--

``(1) Subject to the availability of money in the Fund, in each fiscal year, beginning with fiscal year 2003, the Director shall distribute not less than 90 percent nor more than 110 percent of the amount distributed from the Fund in the previous fiscal year, except the Director may distribute up to 120 percent of the amount distributed in the previous fiscal year in any fiscal year that the total amount available in the Fund is more than 2 times the amount distributed in the previous fiscal year.

``(2) In each fiscal year, the Director shall distribute amounts from the Fund in accordance with subsection (d). All sums not distributed during a fiscal year shall remain in reserve in the Fund to be distributed during a subsequent fiscal year. Notwithstanding any other provision of law, all sums deposited in the Fund that are not distributed

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shall remain in reserve in the Fund for obligation in future fiscal years, without fiscal year limitation.''.

(c) ALLOCATION OF FUNDS FOR COSTS AND GRANTS.--Section 1402(d)(4) of the Victims of Crime Act of 1984 (42 U.S.C. 10601(d)(4)) is amended--

(1) by striking ``deposited in'' and inserting ``to be distributed from'';

(2) in subparagraph (A), by striking ``48.5'' and inserting ``47.5'';

(3) in subparagraph (B), by striking ``48.5'' and inserting ``47.5''; and

(4) in subparagraph (C), by striking ``3'' and inserting ``5''.

(d) ANTITERRORISM EMERGENCY RESERVE.--Section 1402(d)(5) of the Victims of Crime Act of 1984 (42 U.S.C. 10601(d)(5)) is amended to read as follows:

``(5)(A) In addition to the amounts distributed under paragraphs (2), (3), and (4), the Director may set aside up to $50,000,000 from the amounts transferred to the Fund for use in responding to the airplane hijackings and terrorist acts that occurred on September 11, 2001, as an antiterrorism emergency reserve. The Director may replenish any amounts expended from such reserve in subsequent fiscal years by setting aside up to 5 percent of the amounts remaining in the Fund in any fiscal year after distributing amounts under paragraphs (2), (3) and (4). Such reserve shall not exceed $50,000,000.

``(B) The antiterrorism emergency reserve referred to in subparagraph (A) may be used for supplemental grants under section 1404B and to provide compensation to victims of international terrorism under section 1404C.

``(C) Amounts in the antiterrorism emergency reserve established pursuant to subparagraph (A) may be carried over from fiscal year to fiscal year. Notwithstanding subsection (c) and section 619 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2001 (and any similar limitation on Fund obligations in any future Act, unless the same should expressly refer to this section), any such amounts carried over shall not be subject to any limitation on obligations from amounts deposited to or available in the Fund.''.

(e) VICTIMS OF SEPTEMBER 11, 2001.--Amounts transferred to the Crime Victims Fund for use in responding to the airplane hijackings and terrorist acts (including any related search, rescue, relief, assistance, or other similar activities) that occurred on September 11, 2001, shall not be subject to any limitation on obligations from amounts deposited to or available in the Fund, notwithstanding--

(1) section 619 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2001, and any similar limitation on Fund obligations in such Act for Fiscal Year 2002; and

(2) subsections (c) and (d) of section 1402 of the Victims of Crime Act of 1984 (42 U.S.C. 10601).

SEC. 622. CRIME VICTIM COMPENSATION.

(a) ALLOCATION OF FUNDS FOR COMPENSATION AND ASSISTANCE.--Paragraphs (1) and (2) of section 1403(a) of the Victims of Crime Act of 1984 (42 U.S.C. 10602(a)) are amended by inserting ``in fiscal year 2002 and of 60 percent in subsequent fiscal years'' after ``40 percent''.

(b) LOCATION OF COMPENSABLE CRIME.--Section 1403(b)(6)(B) of the Victims of Crime Act of 1984 (42 U.S.C. 10602(b)(6)(B)) is amended by striking ``are outside the United States (if the compensable crime is terrorism, as defined in section 2331 of title 18), or''.

(c) RELATIONSHIP OF CRIME VICTIM COMPENSATION TO MEANS-TESTED FEDERAL BENEFIT PROGRAMS.--Section 1403 of the Victims of Crime Act of 1984 (42 U.S.C. 10602) is amended by striking subsection (c) and inserting the following:

``(c) EXCLUSION FROM INCOME, RESOURCES, AND ASSETS FOR PURPOSES OF MEANS TESTS.--Notwithstanding any other law (other than title IV of Public Law 107-42), for the purpose of any maximum allowed income, resource, or asset eligibility requirement in any Federal, State, or local government program using Federal funds that provides medical or other assistance (or payment or reimbursement of the cost of such assistance), any amount of crime victim compensation that the applicant receives through a crime victim compensation program under this section shall not be included in the income, resources, or assets of the applicant, nor shall that amount reduce the amount of the assistance available to the applicant from Federal, State, or local government programs using Federal funds, unless the total amount of assistance that the applicant receives from all such programs is sufficient to fully compensate the applicant for losses suffered as a result of the crime.''.

(d) DEFINITIONS OF ``COMPENSABLE CRIME'' AND ``STATE''.--Section 1403(d) of the Victims of Crime Act of 1984 (42 U.S.C. 10602(d)) is amended--

(1) in paragraph (3), by striking ``crimes involving terrorism,''; and

(2) in paragraph (4), by inserting ``the United States Virgin Islands,'' after ``the Commonwealth of Puerto Rico,''.

(e) RELATIONSHIP OF ELIGIBLE CRIME VICTIM COMPENSATION PROGRAMS TO THE SEPTEMBER 11TH VICTIM COMPENSATION FUND.--

(1) IN GENERAL.--Section 1403(e) of the Victims of Crime Act of 1984 (42 U.S.C. 10602(e)) is amended by inserting ``including the program established under title IV of Public Law 107-42,'' after ``Federal program,''.

(2) COMPENSATION.--With respect to any compensation payable under title IV of Public Law 107-42, the failure of a crime victim compensation program, after the effective date of final regulations issued pursuant to section 407 of Public Law 107-42, to provide compensation otherwise required pursuant to section 1403 of the Victims of Crime Act of 1984 (42 U.S.C. 10602) shall not render that program ineligible for future grants under the Victims of Crime Act of 1984.

SEC. 623. CRIME VICTIM ASSISTANCE.

(a) ASSISTANCE FOR VICTIMS IN THE DISTRICT OF COLUMBIA, PUERTO RICO, AND OTHER TERRITORIES AND POSSESSIONS.--Section 1404(a) of the Victims of Crime Act of 1984 (42 U.S.C. 10603(a)) is amended by adding at the end the following:

``(6) An agency of the Federal Government performing local law enforcement functions in and on behalf of the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, or any other territory or possession of the United States may qualify as an eligible crime victim assistance program for the purpose of grants under this subsection, or for the purpose of grants under subsection (c)(1).''.

(b) PROHIBITION ON DISCRIMINATION AGAINST CERTAIN VICTIMS.--Section 1404(b)(1) of the Victims of Crime Act of 1984 (42 U.S.C. 10603(b)(1)) is amended--

(1) in subparagraph (D), by striking ``and'' at the end;

(2) in subparagraph (E), by striking the period at the end and inserting ``; and''; and

(3) by adding at the end the following:

``(F) does not discriminate against victims because they disagree with the way the State is prosecuting the criminal case.''.

(c) GRANTS FOR PROGRAM EVALUATION AND COMPLIANCE EFFORTS.--Section 1404(c)(1)(A) of the Victims of Crime Act of 1984 (42 U.S.C. 10603(c)(1)(A)) is amended by inserting ``, program evaluation, compliance efforts,'' after ``demonstration projects''.

(d) ALLOCATION OF DISCRETIONARY GRANTS.--Section 1404(c)(2) of the Victims of Crime Act of 1984 (42 U.S.C. 10603(c)(2)) is amended--

(1) in subparagraph (A), by striking ``not more than'' and inserting ``not less than''; and

(2) in subparagraph (B), by striking ``not less than'' and inserting ``not more than''.

(e) FELLOWSHIPS AND CLINICAL INTERNSHIPS.--Section 1404(c)(3) of the Victims of Crime Act of 1984 (42 U.S.C. 10603(c)(3)) is amended--

(1) in subparagraph (C), by striking ``and'' at the end;

(2) in subparagraph (D), by striking the period at the end and inserting ``; and''; and

(3) by adding at the end the following:

``(E) use funds made available to the Director under this subsection--

``(i) for fellowships and clinical internships; and

``(ii) to carry out programs of training and special workshops for the presentation and dissemination of information resulting from demonstrations, surveys, and special projects.''.

SEC. 624. VICTIMS OF TERRORISM.

(a) COMPENSATION AND ASSISTANCE TO VICTIMS OF DOMESTIC TERRORISM.--Section 1404B(b) of the Victims of Crime Act of 1984 (42 U.S.C. 10603b(b)) is amended to read as follows:

``(b) VICTIMS OF TERRORISM WITHIN THE UNITED STATES.--The Director may make supplemental grants as provided in section 1402(d)(5) to States for eligible crime victim compensation and assistance programs, and to victim service organizations, public agencies (including Federal, State, or local governments) and nongovernmental organizations that provide assistance to victims of crime, which shall be used to provide emergency relief, including crisis response efforts, assistance, compensation, training and technical assistance, and ongoing assistance, including during any investigation or prosecution, to victims of terrorist acts or mass violence occurring within the United States.''.

(b) ASSISTANCE TO VICTIMS OF INTERNATIONAL TERRORISM.--Section 1404B(a)(1) of the Victims of Crime Act of 1984 (42 U.S.C. 10603b(a)(1)) is amended by striking ``who are not persons eligible for compensation under title VIII of the Omnibus Diplomatic Security and Antiterrorism Act of 1986''.

(c) COMPENSATION TO VICTIMS OF INTERNATIONAL TERRORISM.--Section 1404C(b) of the Victims of Crime of 1984 (42 U.S.C. 10603c(b)) is amended by adding at the end the following: ``The amount of compensation awarded to a victim under this subsection shall be reduced by any amount that the victim received in connection with the same act of international terrorism under title VIII of the Omnibus Diplomatic Security and Antiterrorism Act of 1986.''.

TITLE VII--INCREASED INFORMATION SHARING FOR CRITICAL INFRASTRUCTURE PROTECTION

SEC. 711. EXPANSION OF REGIONAL INFORMATION SHARING SYSTEM TO FACILITATE FEDERAL-STATE-LOCAL LAW ENFORCEMENT RESPONSE RELATED TO TERRORIST ATTACKS.

Section 1301 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796h) is amended--

(1) in subsection (a), by inserting ``and terrorist conspiracies and activities'' after ``activities'';

(2) in subsection (b)--

(A) in paragraph (3), by striking ``and'' after the semicolon;

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(B) by redesignating paragraph (4) as paragraph (5);

(C) by inserting after paragraph (3) the following:

``(4) establishing and operating secure information sharing systems to enhance the investigation and prosecution abilities of participating enforcement agencies in addressing multi-jurisdictional terrorist conspiracies and activities; and (5)''; and

(3) by inserting at the end the following:

``(d) AUTHORIZATION OF APPROPRIATION TO THE BUREAU OF JUSTICE ASSISTANCE.--There are authorized to be appropriated to the Bureau of Justice Assistance to carry out this section $50,000,000 for fiscal year 2002 and $100,000,000 for fiscal year 2003.''.

TITLE VIII--STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM

SEC. 801. TERRORIST ATTACKS AND OTHER ACTS OF VIOLENCE AGAINST MASS TRANSPORTATION SYSTEMS.

Chapter 97 of title 18, United States Code, is amended by adding at the end the following:``§1993. Terrorist attacks and other acts of violence against mass transportation systems

``(a) GENERAL PROHIBITIONS.--Whoever willfully--

``(1) wrecks, derails, sets fire to, or disables a mass transportation vehicle or ferry;

``(2) places or causes to be placed any biological agent or toxin for use as a weapon, destructive substance, or destructive device in, upon, or near a mass transportation vehicle or ferry, without previously obtaining the permission of the mass transportation provider, and with intent to endanger the safety of any passenger or employee of the mass transportation provider, or with a reckless disregard for the safety of human life;

``(3) sets fire to, or places any biological agent or toxin for use as a weapon, destructive substance, or destructive device in, upon, or near any garage, terminal, structure, supply, or facility used in the operation of, or in support of the operation of, a mass transportation vehicle or ferry, without previously obtaining the permission of the mass transportation provider, and knowing or having reason to know such activity would likely derail, disable, or wreck a mass transportation vehicle or ferry used, operated, or employed by the mass transportation provider;

``(4) removes appurtenances from, damages, or otherwise impairs the operation of a mass transportation signal system, including a train control system, centralized dispatching system, or rail grade crossing warning signal;

``(5) interferes with, disables, or incapacitates any dispatcher, driver, captain, or person while they are employed in dispatching, operating, or maintaining a mass transportation vehicle or ferry, with intent to endanger the safety of any passenger or employee of the mass transportation provider, or with a reckless disregard for the safety of human life;

``(6) commits an act, including the use of a dangerous weapon, with the intent to cause death or serious bodily injury to an employee or passenger of a mass transportation provider or any other person while any of the foregoing are on the property of a mass transportation provider;

``(7) conveys or causes to be conveyed false information, knowing the information to be false, concerning an attempt or alleged attempt being made or to be made, to do any act which would be a crime prohibited by this subsection; or

``(8) attempts, threatens, or conspires to do any of the aforesaid acts,

shall be fined under this title or imprisoned not more than twenty years, or both, if such act is committed, or in the case of a threat or conspiracy such act would be committed, on, against, or affecting a mass transportation provider engaged in or affecting interstate or foreign commerce, or if in the course of committing such act, that person travels or communicates across a State line in order to commit such act, or transports materials across a State line in aid of the commission of such act.

``(b) AGGRAVATED OFFENSE.--Whoever commits an offense under subsection (a) in a circumstance in which--

``(1) the mass transportation vehicle or ferry was carrying a passenger at the time of the offense; or

``(2) the offense has resulted in the death of any person,

shall be guilty of an aggravated form of the offense and shall be fined under this title or imprisoned for a term of years or for life, or both.

``(c) DEFINITIONS.--In this section--

``(1) the term `biological agent' has the meaning given to that term in section 178(1) of this title;

``(2) the term `dangerous weapon' has the meaning given to that term in section 930 of this title;

``(3) the term `destructive device' has the meaning given to that term in section 921(a)(4) of this title;

``(4) the term `destructive substance' has the meaning given to that term in section 31 of this title;

``(5) the term `mass transportation' has the meaning given to that term in section 5302(a)(7) of title 49, United States Code, except that the term shall include schoolbus, charter, and sightseeing transportation;

``(6) the term `serious bodily injury' has the meaning given to that term in section 1365 of this title;

``(7) the term `State' has the meaning given to that term in section 2266 of this title; and

``(8) the term `toxin' has the meaning given to that term in section 178(2) of this title.''.

(f) CONFORMING AMENDMENT.--The analysis of chapter 97 of title 18, United States Code, is amended by adding at the end:

``1993. Terrorist attacks and other acts of violence against mass transportation systems.''.

SEC. 802. EXPANSION OF THE BIOLOGICAL WEAPONS STATUTE.

Chapter 10 of title 18, United States Code, is amended--

(1) in section 175--

(A) in subsection (b)--

(i) by striking ``does not include'' and inserting ``includes'';

(ii) by inserting ``other than'' after ``system for''; and

(iii) by inserting ``bona fide research'' after ``protective'';

(B) by redesignating subsection (b) as subsection (c); and

(C) by inserting after subsection (a) the following:

``(b) ADDITIONAL OFFENSE.--Whoever knowingly possesses any biological agent, toxin, or delivery system of a type or in a quantity that, under the circumstances, is not reasonably justified by a prophylactic, protective, bona fide research, or other peaceful purpose, shall be fined under this title, imprisoned not more than 10 years, or both. In this subsection, the terms `biological agent' and `toxin' do not encompass any biological agent or toxin that is in its naturally occurring environment, if the biological agent or toxin has not been cultivated, collected, or otherwise extracted from its natural source.'';

(2) by inserting after section 175a the following:

``SEC. 175b. POSSESSION BY RESTRICTED PERSONS.

``(a) No restricted person described in subsection (b) shall ship or transport interstate or foreign commerce, or possess in or affecting commerce, any biological agent or toxin, or receive any biological agent or toxin that has been shipped or transported in interstate or foreign commerce, if the biological agent or toxin is listed as a select agent in subsection (j) of section 72.6 of title 42, Code of Federal Regulations, pursuant to section 511(d)(l) of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132), and is not exempted under subsection (h) of such section 72.6, or appendix A of part 72 of the Code of Regulations.

``(b) In this section:

``(1) The term `select agent' does not include any such biological agent or toxin that is in its naturally-occurring environment, if the biological agent or toxin has not been cultivated, collected, or otherwise extracted from its natural source.

``(2) The term `restricted person' means an individual who--

``(A) is under indictment for a crime punishable by imprisonment for a term exceeding 1 year;

``(B) has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year;

``(C) is a fugitive from justice;

``(D) is an unlawful user of any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

``(E) is an alien illegally or unlawfully in the United States;

``(F) has been adjudicated as a mental defective or has been committed to any mental institution;

``(G) is an alien (other than an alien lawfully admitted for permanent residence) who is a national of a country as to which the Secretary of State, pursuant to section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), section 620A of chapter 1 of part M of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or section 40(d) of chapter 3 of the Arms Export Control Act (22 U.S.C. 2780(d)), has made a determination (that remains in effect) that such country has repeatedly provided support for acts of international terrorism; or

``(H) has been discharged from the Armed Services of the United States under dishonorable conditions.

``(3) The term `alien' has the same meaning as in section 1010(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(3)).

``(4) The term `lawfully admitted for permanent residence' has the same meaning as in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)).

``(c) Whoever knowingly violates this section shall be fined as provided in this title, imprisoned not more than 10 years, or both, but the prohibition contained in this section shall not apply with respect to any duly authorized United States governmental activity.''; and

(3) in the chapter analysis, by inserting after the item relating to section 175a the following:

``175b. Possession by restricted persons.''.

SEC. 803. DEFINITION OF DOMESTIC TERRORISM.

(a) DOMESTIC TERRORISM DEFINED.--Section 2331 of title 18, United States Code, is amended--

(1) in paragraph (1)(B)(iii), by striking ``by assassination or kidnapping'' and inserting ``by mass destruction, assassination, or kidnapping'';

(2) in paragraph (3), by striking ``and'';

(3) in paragraph (4), by striking the period at the end and inserting ``; and''; and

(4) by adding at the end the following:

[Page: S10627]

``(5) the term `domestic terrorism' means activities that--

``(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

``(B) appear to be intended--

``(i) to intimidate or coerce a civilian population;

``(ii) to influence the policy of a government by intimidation or coercion; or

``(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

``(C) occur primarily within the territorial jurisdiction of the United States.''.

(b) CONFORMING AMENDMENT.--Section 3077(1) of title 18, United States Code, is amended to read as follows:

``(1) `act of terrorism' means an act of domestic or international terrorism as defined in section 2331;''.

SEC. 804. PROHIBITION AGAINST HARBORING TERRORISTS.

(a) IN GENERAL.--Chapter 113B of title 18, United States Code, is amended by adding after section 2338 the following new section:``§2339. Harboring or concealing terrorists

``(a) Whoever harbors or conceals any person who he knows, or has reasonable grounds to believe, has committed, or is about to commit, an offense under section 32 (relating to destruction of aircraft or aircraft facilities), section 175 (relating to biological weapons), section 229 (relating to chemical weapons), section 831 (relating to nuclear materials), paragraph (2) or (3) of section 844(f) (relating to arson and bombing of government property risking or causing injury or death), section 1366(a) (relating to the destruction of an energy facility), section 2280 (relating to violence against maritime navigation), section 2332a (relating to weapons of mass destruction), or section 2332b (relating to acts of terrorism transcending national boundaries) of this title, section 236(a) (relating to sabotage of nuclear facilities or fuel) of the Atomic Energy Act of 1954 (42 U.S.C. 2284(a)), or section 46502 (relating to aircraft piracy) of title 49, shall be fined under this title or imprisoned not more than ten years, or both.''.

``(b) A violation of this section may be prosecuted in any Federal judicial district in which the underlying offense was committed, or in any other Federal judicial district as provided by law.''.

(b) TECHNICAL AMENDMENT.--The chapter analysis for chapter 113B of title 18, United States Code, is amended by inserting after the item for section 2338 the following:

``2339. Harboring or concealing terrorists.''.

SEC. 805. JURISDICTION OVER CRIMES COMMITTED AT U.S. FACILITIES ABROAD.

Section 7 of title 18, United States Code, is amended by adding at the end the following:

``(9) With respect to offenses committed by or against a United States national, as defined in section 1203(c) of this title--

``(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and

``(B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities.

Nothing in this paragraph shall be deemed to supersede any treaty or international agreement in force on the date of enactment of this paragraph with which this paragraph conflicts. This paragraph does not apply with respect to an offense committed by a person described in section 3261(a) of this title.''.

SEC. 806. MATERIAL SUPPORT FOR TERRORISM.

(a) IN GENERAL.--Section 2339A of title 18, United States Code, is amended--

(1) in subsection (a)--

(A) by striking ``, within the United States,'';

(B) by inserting ``229,'' after ``175,'';

(C) by inserting ``1993,'' after ``1992,'';

(D) by inserting ``, section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284),'' after ``of this title'';

(E) by inserting ``or 60123(b)'' after ``46502''; and

(F) by inserting at the end the following: ``A violation of this section may be prosecuted in any Federal judicial district in which the underlying offense was committed, or in any other Federal judicial district as provided by law.''; and

(2) in subsection (b)--

(A) by striking ``or other financial securities'' and inserting ``or monetary instruments or financial securities''; and

(B) by inserting ``expert advice or assistance,'' after ``training,''.

(b) TECHNICAL AMENDMENT.--Section 1956(c)(7)(D) of title 18, United States Code, is amended by inserting ``or 2339B'' after ``2339A''.

SEC. 807. ASSETS OF TERRORIST ORGANIZATIONS.

Section 981(a)(1) of title 18, United States Code, is amended by inserting at the end the following:

``(G) All assets, foreign or domestic--

``(i) of any person, entity, or organization engaged in planning or perpetrating any act of domestic or international terrorism (as defined in section 2331) against the United States, citizens or residents of the United States, or their property, and all assets, foreign or domestic, affording any person a source of influence over any such entity or organization;

``(ii) acquired or maintained by any person for the purpose of supporting, planning, conducting, or concealing an act of domestic or international terrorism (as defined in section 2331) against the United States, citizens or residents of the United States, or their property; or

``(iii) derived from, involved in, or used or intended to be used to commit any act of domestic or international terrorism (as defined in section 2331) against the United States, citizens or residents of the United States, or their property.''.

SEC. 808. TECHNICAL CLARIFICATION RELATING TO PROVISION OF MATERIAL SUPPORT TO TERRORISM.

No provision of the Trade Sanctions Reform and Export Enhancement Act of 2000 (title IX of Public Law 106-387) shall be construed to limit or otherwise affect section 2339A or 2339B of title 18, United States Code.

SEC. 809. DEFINITION OF FEDERAL CRIME OF TERRORISM.

Section 2332b of title 18, United States Code, is amended--

(1) in subsection (f), by inserting after ``terrorism'' the following: ``and any violation of section 351(e), 844(e), 844(f)(1), 956(b), 1361, 1366(b), 1366(c), 1751(e), 2152, or 2156 of this title,'' before ``and the Secretary''; and

(2) in subsection (g)(5)(B), by striking clauses (i) through (iii) and inserting the following:

``(i) section 32 (relating to destruction of aircraft or aircraft facilities), 37 (relating to violence at international airports), 81 (relating to arson within special maritime and territorial jurisdiction), 175 or 175b (relating to biological weapons), 229 (relating to chemical weapons), 351 (a) through (d) (relating to congressional, cabinet, and Supreme Court assassination and kidnaping), 831 (relating to nuclear materials), 842(m) or (n) (relating to plastic explosives), 844(f) (2) through (3) (relating to arson and bombing of Government property risking or causing death), 844(i) (relating to arson and bombing of property used in interstate commerce), 930(c) (relating to killing or attempted killing during an attack on a Federal facility with a dangerous weapon), 956(a)(1) (relating to conspiracy to murder, kidnap, or maim within special maritime and territorial jurisdiction of the United States), 1030(a)(1) (relating to protection of computers), 1030(a)(5)(A)(i) resulting in damage as defined in 1030(a)(5)(B)(ii) through (v) (relating to protection of computers), 1114 (relating to killing or attempted killing of officers and employees of the United States), 1116 (relating to murder or manslaughter of foreign officials, official guests, or internationally protected persons), 1203 (relating to hostage taking), 1362 (relating to destruction of communication lines, stations, or systems), 1363 (relating to injury to buildings or property within special maritime and territorial jurisdiction of the United States), 1366(a) (relating to destruction of an energy facility), 1751 (a) through (d) (relating to Presidential and Presidential staff assassination and kidnaping), 1992 (relating to wrecking trains), 1993 (relating to terrorist attacks and other acts of violence against mass transportation systems), 2155 (relating to destruction of national defense materials, premises, or utilities), 2280 (relating to violence against maritime navigation), 2281 (relating to violence against maritime fixed platforms), 2332 (relating to certain homicides and other violence against United States nationals occurring outside of the United States), 2332a (relating to use of weapons of mass destruction), 2332b (relating to acts of terrorism transcending national boundaries), 2339 (relating to harboring terrorists), 2339A (relating to providing material support to terrorists), 2339B (relating to providing material support to terrorist organizations), or 2340A (relating to torture) of this title;

``(ii) section 236 (relating to sabotage of nuclear facilities or fuel) of the Atomic Energy Act of 1954 (42 U.S.C. 2284); or

``(iii) section 46502 (relating to aircraft piracy), the second sentence of section 46504 (relating to assault on a flight crew with a dangerous weapon), section 46505(b)(3) or (c) (relating to explosive or incendiary devices, or endangerment of human life by means of weapons, on aircraft), section 46506 if homicide or attempted homicide is involved (relating to application of certain criminal laws to acts on aircraft), or section 60123(b) (relating to destruction of interstate gas or hazardous liquid pipeline facility) of title 49.''.

SEC. 810. NO STATUTE OF LIMITATION FOR CERTAIN TERRORISM OFFENSES.

(a) IN GENERAL.--Section 3286 of title 18, United States Code, is amended to read as follows:``§3286. Extension of statute of limitation for certain terrorism offenses.

``(a) EIGHT-YEAR LIMITATION.--Notwithstanding section 3282, no person shall be prosecuted, tried, or punished for any noncapital offense involving a violation of any provision listed in section 2332b(g)(5)(B) other than a provision listed in section 3295, or a violation of section 112, 351(e), 1361, or 1751(e) of this title, or section 46504, 46505, or 46506 of title 49, unless the indictment is found or the information is instituted within 8 years after the offense was committed.

``(b) NO LIMITATION.--Notwithstanding any other law, an indictment may be found or an information instituted at any time without limitation for any offense listed in section 2332b(g)(5)(B), if the commission of such offense resulted in, or created a forseeable risk

[Page: S10628]

of, death or serious bodily injury to another person.''.

(b) APPLICATION.--The amendments made by this section shall apply to the prosecution of any offense committed before, on, or after the date of enactment of this section.

SEC. 811. ALTERNATE MAXIMUM PENALTIES FOR TERRORISM OFFENSES.

(a) ARSON.--Section 81 of title 18, United States Code, is amended in the second undesignated paragraph by striking ``not more than twenty years'' and inserting ``for any term of years or for life''.

(b) DESTRUCTION OF AN ENERGY FACILITY.--Section 1366 of title 18, United States Code, is amended--

(1) in subsection (a), by striking ``ten'' and inserting ``20''; and

(2) by adding at the end the following:

``(d) Whoever is convicted of a violation of subsection (a) or (b) that has resulted in the death of any person shall be subject to imprisonment for any term of years or life.''.

(c) MATERIAL SUPPORT TO TERRORISTS.--Section 2339A(a) of title 18, United States Code, is amended--

(1) by striking ``10'' and inserting ``15''; and

(2) by striking the period and inserting ``and, if the death of any person results, shall be imprisoned for any term of years or for life.''.

(d) MATERIAL SUPPORT TO DESIGNATED FOREIGN TERRORIST ORGANIZATIONS.--Section 2339B(a)(1) of title 18, United States Code, is amended--

(1) by striking ``10'' and inserting ``15''; and

(2) by striking the period after ``or both'' and inserting ``and, if the death of any person results, shall be imprisoned for any term of years or for life.''.

(e) DESTRUCTION OF NATIONAL-DEFENSE MATERIALS.--Section 2155(a) of title 18, United States Code, is amended--

(1) by striking ``ten'' and inserting ``20''; and

(2) by striking the period at the end and inserting ``, and, if death results to any person, shall be imprisoned for any term of years or for life.''.

(f) SABOTAGE OF NUCLEAR FACILITIES OR FUEL.--Section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), is amended--

(1) by striking ``ten'' each place it appears and inserting ``20'';

(2) in subsection (a), by striking the period at the end and inserting ``, and, if death results to any person, shall be imprisoned for any term of years or for life.''; and

(3) in subsection (b), by striking the period at the end and inserting ``, and, if death results to any person, shall be imprisoned for any term of years or for life.''.

(g) SPECIAL AIRCRAFT JURISDICTION OF THE UNITED STATES.--Section 46505(c) of title 49, United States Code, is amended--

(1) by striking ``15'' and inserting ``20''; and

(2) by striking the period at the end and inserting ``, and, if death results to any person, shall be imprisoned for any term of years or for life.''.

(h) DAMAGING OR DESTROYING AN INTERSTATE GAS OR HAZARDOUS LIQUID PIPELINE FACILITY.--Section 60123(b) of title 49, United States Code, is amended--

(1) by striking ``15'' and inserting ``20''; and

(2) by striking the period at the end and inserting ``, and, if death results to any person, shall be imprisoned for any term of years or for life.''.

SEC. 812. PENALTIES FOR TERRORIST CONSPIRACIES.

(a) ARSON.--Section 81 of title 18, United States Code, is amended in the first undesignated paragraph--

(1) by striking ``, or attempts to set fire to or burn''; and

(2) by inserting ``or attempts or conspires to do such an act,'' before ``shall be imprisoned''.

(b) KILLINGS IN FEDERAL FACILITIES.--

(1) Section 930(c) of title 18, United States Code, is amended--

(A) by striking ``or attempts to kill'';

(B) by inserting ``or attempts or conspires to do such an act,'' before ``shall be punished''; and

(C) by striking ``and 1113'' and inserting ``1113, and 1117''.

(2) Section 1117 of title 18, United States Code, is amended by inserting ``930(c),'' after ``section''.

(c) COMMUNICATIONS LINES, STATIONS, OR SYSTEMS.--Section 1362 of title 18, United States Code, is amended in the first undesignated paragraph--

(1) by striking ``or attempts willfully or maliciously to injure or destroy''; and

(2) by inserting ``or attempts or conspires to do such an act,'' before ``shall be fined''.

(d) BUILDINGS OR PROPERTY WITHIN SPECIAL MARITIME AND TERRITORIAL JURISDICTION.--Section 1363 of title 18, United States Code, is amended--

(1) by striking ``or attempts to destroy or injure''; and

(2) by inserting ``or attempts or conspires to do such an act,'' before ``shall be fined'' the first place it appears.

(e) WRECKING TRAINS.--Section 1992 of title 18, United States Code, is amended by adding at the end the following:

``(c) A person who conspires to commit any offense defined in this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.''.

(f) MATERIAL SUPPORT TO TERRORISTS.--Section 2339A of title 18, United States Code, is amended by inserting ``or attempts or conspires to do such an act,'' before ``shall be fined''.

(g) TORTURE.--Section 2340A of title 18, United States Code, is amended by adding at the end the following:

``(c) CONSPIRACY.--A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.''.

(h) SABOTAGE OF NUCLEAR FACILITIES OR FUEL.--Section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), is amended--

(1) in subsection (a)--

(A) by striking ``, or who intentionally and willfully attempts to destroy or cause physical damage to'';

(B) in paragraph (4), by striking the period at the end and inserting a comma; and

(C) by inserting ``or attempts or conspires to do such an act,'' before ``shall be fined''; and

(2) in subsection (b)--

(A) by striking ``or attempts to cause''; and

(B) by inserting ``or attempts or conspires to do such an act,'' before ``shall be fined''.

(i) INTERFERENCE WITH FLIGHT CREW MEMBERS AND ATTENDANTS.--Section 46504 of title 49, United States Code, is amended by inserting ``or attempts or conspires to do such an act,'' before ``shall be fined''.

(j) SPECIAL AIRCRAFT JURISDICTION OF THE UNITED STATES.--Section 46505 of title 49, United States Code, is amended by adding at the end the following:

``(e) CONSPIRACY.--If two or more persons conspire to violate subsection (b) or (c), and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as provided in such subsection.''.

(k) DAMAGING OR DESTROYING AN INTERSTATE GAS OR HAZARDOUS LIQUID PIPELINE FACILITY.--Section 60123(b) of title 49, United States Code, is amended--

(1) by striking ``, or attempting to damage or destroy,''; and

(2) by inserting ``, or attempting or conspiring to do such an act,'' before ``shall be fined''.

SEC. 813. POST-RELEASE SUPERVISION OF TERRORISTS.

Section 3583 of title 18, United States Code, is amended by adding at the end the following:

``(j) SUPERVISED RELEASE TERMS FOR TERRORISM PREDICATES.--Notwithstanding subsection (b), the authorized term of supervised release for any offense listed in section 2332b(g)(5)(B), the commission of which resulted in, or created a foreseeable risk of, death or serious bodily injury to another person, is any term of years or life.''.

SEC. 814. INCLUSION OF ACTS OF TERRORISM AS RACKETEERING ACTIVITY.

Section 1961(1) of title 18, United States Code, is amended--

(1) by striking ``or (F)'' and inserting ``(F)''; and

(2) by inserting before the semicolon at the end the following: ``, or (G) any act that is indictable as an offense listed in section 2332b(g)(5)(B)''.

SEC. 815. DETERRENCE AND PREVENTION OF CYBERTERRORISM.

(a) CLARIFICATION OF PROTECTION OF PROTECTED COMPUTERS.--Section 1030(a)(5) of title 18, United States Code, is amended--

(1) by inserting ``(i)'' after (A)'';

(2) by redesignating subparagraphs (B) and (C) as clauses (ii) and (iii), respectively;

(3) by adding ``and'' at the end of clause (iii), as so redesignated; and

(4) by adding at the end the following:

``(B) caused (or, in the case of an attempted offense, would, if completed, have caused) conduct described in clause (i), (ii), or (iii) of subparagraph (A) that resulted in--

``(i) loss to 1 or more persons during any 1-year period (including loss resulting from a related course of conduct affecting 1 or more other protected computers) aggregating at least $5,000 in value;

``(ii) the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals;

``(iii) physical injury to any person;

``(iv) a threat to public health or safety; or

``(v) damage affecting a computer system used by or for a Government entity in furtherance of the administration of justice, national defense, or national security;''.

(b) PENALTIES.--Section 1030(c) of title 18, United States Code is amended--

(1) in paragraph (2)--

(A) in subparagraph (A) --

(i) by inserting ``except as provided in subparagraph (B),'' before ``a fine'';

(ii) by striking ``(a)(5)(C)'' and inserting ``(a)(5)(A)(iii)''; and

(iii) by striking ``and' at the end;

(B) in subparagraph (B), by inserting ``or an attempt to commit an offense punishable under this subparagraph,'' after ``subsection (a)(2),'' in the matter preceding clause (i); and

(C) in subparagraph (C), by striking ``and'' at the end;

(2) in paragraph (3)--

(A) by striking ``, (a)(5)(A), (a)(5)(B),'' both places it appears; and

(B) by striking ``and'' at the end; and

(3) by striking ``(a)(5)(C)'' and inserting ``(a)(5)(A)(iii)''; and

(4) by adding at the end the following new paragraphs:

``(4)(A) a fine under this title, imprisonment for not more than 10 years, or both, in the case of an offense under subsection (a)(5)(A)(i), or an attempt to commit an offense punishable under that subsection;

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``(B) a fine under this title, imprisonment for not more than 5 years, or both, in the case of an offense under subsection (a)(5)(A)(ii), or an attempt to commit an offense punishable under that subsection;

``(C) a fine under this title, imprisonment for not more than 20 years, or both, in the case of an offense under subsection (a)(5)(A)(i) or (a)(5)(A)(ii), or an attempt to commit an offense punishable under either subsection, that occurs after a conviction for another offense under this section.''.

(c) DEFINITIONS.--Subsection (e) of section 1030 of title 18, United States Code is amended--

(1) in paragraph (2)(B), by inserting ``, including a computer located outside the United States'' before the semicolon;

(2) in paragraph (7), by striking ``and'' at the end;

(3) by striking paragraph (8) and inserting the following new paragraph (8):

``(8) the term `damage' means any impairment to the integrity or availability of data, a program, a system, or information;'';

(4) in paragraph (9), by striking the period at the end and inserting a semicolon; and

(5) by adding at the end the following new paragraphs:

``(10) the term `conviction' shall include a conviction under the law of any State for a crime punishable by imprisonment for more than 1 year, an element of which is unauthorized access, or exceeding authorized access, to a computer;

``(11) the term `loss' includes any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service;

``(12) the term `person' means any individual, firm, corporation, educational institution, financial institution, governmental entity, or legal or other entity;''.

(d) DAMAGES IN CIVIL ACTIONS.--Subsection (g) of section 1030 of title 18, United States Code is amended--

(1) by striking the second sentence and inserting the following new sentences: ``A suit for a violation of subsection (a)(5) may be brought only if the conduct involves one of the factors enumerated in subsection (a)(5)(B). Damages for a violation involving only conduct described in subsection (a)(5)(B)(i) are limited to economic damages.''; and

(2) by adding at the end the following: ``No action may be brought under this subsection for the negligent design or manufacture of computer hardware, computer software, or firmware.''.

(e) AMENDMENT OF SENTENCING GUIDELINES RELATING TO CERTAIN COMPUTER FRAUD AND ABUSE.--Pursuant to its authority under section 994(p) of title 28, United States Code, the United States Sentencing Commission shall amend the Federal sentencing guidelines to ensure that any individual convicted of a violation of section 1030 of title 18, United States Code, can be subjected to appropriate penalties, without regard to any mandatory minimum term of imprisonment.

SEC. 816. ADDITIONAL DEFENSE TO CIVIL ACTIONS RELATING TO PRESERVING RECORDS IN RESPONSE TO GOVERNMENT REQUESTS.

Section 2707(e)(1) of title 18, United States Code, is amended by inserting after ``or statutory authorization'' the following: ``(including a request of a governmental entity under section 2703(f) of this title)''.

SEC. 817. DEVELOPMENT AND SUPPORT OF CYBERSECURITY FORENSIC CAPABILITIES.

(a) IN GENERAL.--The Attorney General shall establish such regional computer forensic laboratories as the Attorney General considers appropriate, and provide support to existing computer forensic laboratories, in order that all such computer forensic laboratories have the capability--

(1) to provide forensic examinations with respect to seized or intercepted computer evidence relating to criminal activity (including cyberterrorism);

(2) to provide training and education for Federal, State, and local law enforcement personnel and prosecutors regarding investigations, forensic analyses, and prosecutions of computer-related crime (including cyberterrorism);

(3) to assist Federal, State, and local law enforcement in enforcing Federal, State, and local criminal laws relating to computer-related crime;

(4) to facilitate and promote the sharing of Federal law enforcement expertise and information about the investigation, analysis, and prosecution of computer-related crime with State and local law enforcement personnel and prosecutors, including the use of multijurisdictional task forces; and

(5) to carry out such other activities as the Attorney General considers appropriate.

(b) AUTHORIZATION OF APPROPRIATIONS.--

(1) AUTHORIZATION.--There is hereby authorized to be appropriated in each fiscal year $50,000,000 for purposes of carrying out this section.

(2) AVAILABILITY.--Amounts appropriated pursuant to the authorization of appropriations in paragraph (1) shall remain available until expended.

TITLE IX--IMPROVED INTELLIGENCE

SEC. 901. RESPONSIBILITIES OF DIRECTOR OF CENTRAL INTELLIGENCE REGARDING FOREIGN INTELLIGENCE COLLECTED UNDER FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

Section 103(c) of the National Security Act of 1947 (50 U.S.C. 403-3(c)) is amended--

(1) by redesignating paragraphs (6) and (7) as paragraphs (7) and (8), respectively; and

(2) by inserting after paragraph (5) the following new paragraph (6):

``(6) establish requirements and priorities for foreign intelligence information to be collected under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), and provide assistance to the Attorney General to ensure that information derived from electronic surveillance or physical searches under that Act is disseminated so it may be used efficiently and effectively for foreign intelligence purposes, except that the Director shall have no authority to direct, manage, or undertake electronic surveillance operations pursuant to that Act unless otherwise authorized by statute or executive order;''.

SEC. 902. INCLUSION OF INTERNATIONAL TERRORIST ACTIVITIES WITHIN SCOPE OF FOREIGN INTELLIGENCE UNDER NATIONAL SECURITY ACT OF 1947.

Section 3 of the National Security Act of 1947 (50 U.S.C. 401a) is amended--

(1) in paragraph (2), by inserting before the period the following: ``, or international terrorist activities''; and

(2) in paragraph (3), by striking ``and activities conducted'' and inserting ``, and activities conducted,''.

SEC. 903. SENSE OF CONGRESS ON THE ESTABLISHMENT AND MAINTENANCE OF INTELLIGENCE RELATIONSHIPS TO ACQUIRE INFORMATION ON TERRORISTS AND TERRORIST ORGANIZATIONS.

It is the sense of Congress that officers and employees of the intelligence community of the Federal Government, acting within the course of their official duties, should be encouraged, and should make every effort, to establish and maintain intelligence relationships with any person, entity, or group for the purpose of engaging in lawful intelligence activities, including the acquisition of information on the identity, location, finances, affiliations, capabilities, plans, or intentions of a terrorist or terrorist organization, or information on any other person, entity, or group (including a foreign government) engaged in harboring, comforting, financing, aiding, or assisting a terrorist or terrorist organization.

SEC. 904. TEMPORARY AUTHORITY TO DEFER SUBMITTAL TO CONGRESS OF REPORTS ON INTELLIGENCE AND INTELLIGENCE-RELATED MATTERS.

(a) AUTHORITY TO DEFER.--The Secretary of Defense, Attorney General, and Director of Central Intelligence each may, during the effective period of this section, defer the date of submittal to Congress of any covered intelligence report under the jurisdiction of such official until February 1, 2002.

(b) COVERED INTELLIGENCE REPORT.--Except as provided in subsection (c), for purposes of subsection (a), a covered intelligence report is as follows:

(1) Any report on intelligence or intelligence-related activities of the United States Government that is required to be submitted to Congress by an element of the intelligence community during the effective period of this section.

(2) Any report or other matter that is required to be submitted to the Select Committee on Intelligence of the Senate and Permanent Select Committee on Intelligence of the House of Representatives by the Department of Defense or the Department of Justice during the effective period of this section.

(c) EXCEPTION FOR CERTAIN REPORTS.--For purposes of subsection (a), any report required by section 502 or 503 of the National Security Act of 1947 (50 U.S.C. 413a, 413b) is not a covered intelligence report.

(d) NOTICE TO CONGRESS.--Upon deferring the date of submittal to Congress of a covered intelligence report under subsection (a), the official deferring the date of submittal of the covered intelligence report shall submit to Congress notice of the deferral. Notice of deferral of a report shall specify the provision of law, if any, under which the report would otherwise be submitted to Congress.

(e) EXTENSION OF DEFERRAL.--(1) Each official specified in subsection (a) may defer the date of submittal to Congress of a covered intelligence report under the jurisdiction of such official to a date after February 1, 2002, if such official submits to the committees of Congress specified in subsection (b)(2) before February 1, 2002, a certification that preparation and submittal of the covered intelligence report on February 1, 2002, will impede the work of officers or employees who are engaged in counterterrorism activities.

(2) A certification under paragraph (1) with respect to a covered intelligence report shall specify the date on which the covered intelligence report will be submitted to Congress.

(f) EFFECTIVE PERIOD.--The effective period of this section is the period beginning on the date of the enactment of this Act and ending on February 1, 2002.

(g) ELEMENT OF THE INTELLIGENCE COMMUNITY DEFINED.--In this section, the term ``element of the intelligence community'' means any element of the intelligence community specified or designated under section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

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SEC. 905. DISCLOSURE TO DIRECTOR OF CENTRAL INTELLIGENCE OF FOREIGN INTELLIGENCE-RELATED INFORMATION WITH RESPECT TO CRIMINAL INVESTIGATIONS.

(a) IN GENERAL.--Title I of the National Security Act of 1947 (50 U.S.C. 402 et seq.) is amended--

(1) by redesignating subsection 105B as section 105C; and

(2) by inserting after section 105A the following new section 105B:

``DISCLOSURE OF FOREIGN INTELLIGENCE ACQUIRED IN CRIMINAL INVESTIGATIONS; NOTICE OF CRIMINAL INVESTIGATIONS OF FOREIGN INTELLIGENCE SOURCES

``SEC. 105B. (a) DISCLOSURE OF FOREIGN INTELLIGENCE.--(1) Except as otherwise provided by law and subject to paragraph (2), the Attorney General, or the head of any other department or agency of the Federal Government with law enforcement responsibilities, shall expeditiously disclose to the Director of Central Intelligence, pursuant to guidelines developed by the Attorney General in consultation with the Director, foreign intelligence acquired by an element of the Department of Justice or an element of such department or agency, as the case may be, in the course of a criminal investigation.

``(2) The Attorney General by regulation and in consultation with the Director of Central Intelligence may provide for exceptions to the applicability of paragraph (1) for one or more classes of foreign intelligence, or foreign intelligence with respect to one or more targets or matters, if the Attorney General determines that disclosure of such foreign intelligence under that paragraph would jeopardize an ongoing law enforcement investigation or impair other significant law enforcement interests.

``(b) PROCEDURES FOR NOTICE OF CRIMINAL INVESTIGATIONS.--Not later than 180 days after the date of enactment of this section, the Attorney General, in consultation with the Director of Central Intelligence, shall develop guidelines to ensure that after receipt of a report from an element of the intelligence community of activity of a foreign intelligence source or potential foreign intelligence source that may warrant investigation as criminal activity, the Attorney General provides notice to the Director of Central Intelligence, within a reasonable period of time, of his intention to commence, or decline to commence, a criminal investigation of such activity.

``(c) PROCEDURES.--The Attorney General shall develop procedures for the administration of this section, including the disclosure of foreign intelligence by elements of the Department of Justice, and elements of other departments and agencies of the Federal Government, under subsection (a) and the provision of notice with respect to criminal investigations under subsection (b).''.

(b) CLERICAL AMENDMENT.--The table of contents in the first section of that Act is amended by striking the item relating to section 105B and inserting the following new items:

``Sec..105B..Disclosure of foreign intelligence acquired in criminal investigations; notice of criminal investigations of foreign intelligence sources.

``Sec..105C..Protection of the operational files of the National Imagery and Mapping Agency.''.

SEC. 906. FOREIGN TERRORIST ASSET TRACKING CENTER.

(a) REPORT ON RECONFIGURATION.--Not later than February 1, 2002, the Attorney General, the Director of Central Intelligence, and the Secretary of the Treasury shall jointly submit to Congress a report on the feasibility and desirability of reconfiguring the Foreign Terrorist Asset Tracking Center and the Office of Foreign Assets Control of the Department of the Treasury in order to establish a capability to provide for the effective and efficient analysis and dissemination of foreign intelligence relating to the financial capabilities and resources of international terrorist organizations.

(b) REPORT REQUIREMENTS.--(1) In preparing the report under subsection (a), the Attorney General, the Secretary, and the Director shall consider whether, and to what extent, the capacities and resources of the Financial Crimes Enforcement Center of the Department of the Treasury may be integrated into the capability contemplated by the report.

(2) If the Attorney General, Secretary, and the Director determine that it is feasible and desirable to undertake the reconfiguration described in subsection (a) in order to establish the capability described in that subsection, the Attorney General, the Secretary, and the Director shall include with the report under that subsection a detailed proposal for legislation to achieve the reconfiguration.

SEC. 907. NATIONAL VIRTUAL TRANSLATION CENTER.

(a) REPORT ON ESTABLISHMENT.--(1) Not later than February 1, 2002, the Director of Central Intelligence shall, in consultation with the Director of the Federal Bureau of Investigation, submit to the appropriate committees of Congress a report on the establishment and maintenance within the intelligence community of an element for purposes of providing timely and accurate translations of foreign intelligence for all other elements of the intelligence community. In the report, the element shall be referred to as the ``National Virtual Translation Center''.

(2) The report on the element described in paragraph (1) shall discuss the use of state-of-the-art communications technology, the integration of existing translation capabilities in the intelligence community, and the utilization of remote-connection capacities so as to minimize the need for a central physical facility for the element.

(b) RESOURCES.--The report on the element required by subsection (a) shall address the following:

(1) The assignment to the element of a staff of individuals possessing a broad range of linguistic and translation skills appropriate for the purposes of the element.

(2) The provision to the element of communications capabilities and systems that are commensurate with the most current and sophisticated communications capabilities and systems available to other elements of intelligence community.

(3) The assurance, to the maximum extent practicable, that the communications capabilities and systems provided to the element will be compatible with communications capabilities and systems utilized by the Federal Bureau of Investigation in securing timely and accurate translations of foreign language materials for law enforcement investigations.

(4) The development of a communications infrastructure to ensure the efficient and secure use of the translation capabilities of the element.

(c) SECURE COMMUNICATIONS.--The report shall include a discussion of the creation of secure electronic communications between the element described by subsection (a) and the other elements of the intelligence community.

(d) DEFINITIONS.--In this section:

(1) FOREIGN INTELLIGENCE.--The term ``foreign intelligence'' has the meaning given that term in section 3(2) of the National Security Act of 1947 (50 U.S.C. 401a(2)).

(2) ELEMENT OF THE INTELLIGENCE COMMUNITY.--The term ``element of the intelligence community'' means any element of the intelligence community specified or designated under section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).

SEC. 908. TRAINING OF GOVERNMENT OFFICIALS REGARDING IDENTIFICATION AND USE OF FOREIGN INTELLIGENCE.

(a) PROGRAM REQUIRED.--The Attorney General shall, in consultation with the Director of Central Intelligence, carry out a program to provide appropriate training to officials described in subsection (b) in order to assist such officials in--

(1) identifying foreign intelligence information in the course of their duties; and

(2) utilizing foreign intelligence information in the course of their duties, to the extent that the utilization of such information is appropriate for such duties.

(b) OFFICIALS.--The officials provided training under subsection (a) are, at the discretion of the Attorney General and the Director, the following:

(1) Officials of the Federal Government who are not ordinarily engaged in the collection, dissemination, and use of foreign intelligence in the performance of their duties.

(2) Officials of State and local governments who encounter, or may encounter in the course of a terrorist event, foreign intelligence in the performance of their duties.

(c) AUTHORIZATION OF APPROPRIATIONS.--There is hereby authorized to be appropriated for the Department of Justice such sums as may be necessary for purposes of carrying out the program required by subsection (a).

Mr. REID. Mr. President, I move to reconsider the vote.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

END