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Small Business Additional Temporary Extension Act of 2011

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Date:
Location: Washington, DC

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Mr. CHAMBLISS. I rise to speak in opposition to Amendment No. 365, Senator Paul's amendment concerning suspicious activity reports, or what is referred to as SARS.

This amendment would prevent the Department of Treasury from requiring any financial institution to submit a suspicious activity report unless law enforcement first requests the report. If this amendment should become law, it will effectively take away one of the government's main weapons in the battle against money laundering and other financial crimes.

It will also negatively impact our efforts to detect and follow the flow of funds to and from international terrorists. It is important to remember that SARS are essentially tips from third-party financial institutions concerning suspicious transactions. Because law enforcement is not watching the financial transaction of every American on a daily basis 24/7, they often have no idea that a person is even engaged in a financial crime until they receive a suspicious activity notification from a financial institution.

In a sense, SARs are not much different than the tips that law enforcement often receives from anonymous sources. These tips or leads can often form the basis for initiating investigations that can be used to neutralize criminal or terrorist activities.

The problem with this amendment is that it would require the government to look into a crystal ball in order to figure out when they should request a SAR. With this logic, we should only allow law enforcement to act on an anonymous tip unless they ask for the tip to be reported first. If a law enforcement or intelligence officer doesn't get a tip about suspicious activity, how in the world is he going to know when it occurred in the first place? The answer here is simple: They will likely never know it occurred until the criminal activity has occurred, and maybe it will even go undetected.

Look, for example, at the 9/11 hijackers. There was a minimum of 12 to 13 of those individuals who came into and out of the United States over a period of time. Money was transferred to and from those individuals over a period of time. Under the requirements pre-PATRIOT Act, there was no suspicious activity detected. But after the enactment of the PATRIOT Act, there would be reason now for any financial institution to suspect the potential for suspicious activity from those transfers of moneys.

That is exactly why we did what we did in the PATRIOT Act, and that is one of the reasons why we have not seen a subsequent direct attack on U.S. soil from individuals who had been in the United States and have received money through transfers, or whatever it may be. Let's don't forget that section 215 business records cannot be obtained in an arbitrary manner. There has to be, first of all, a determination that there is some international connection between the individual whose account has been deemed suspicious by the financial institution, and also there has to be some follow-on procedure to determine that there is reason for the government to get hold of the financial records of this individual.

In my mind, this amendment would put law enforcement in an unacceptable and unreasonable position. At the same time we are asking them to pursue swindlers and money launderers more aggressively, we need to preserve the requirement that financial institutions report suspicious activities. We need to follow up on these leads not just from a criminal law enforcement perspective but from a national security perspective as well.

Since 9/11, I have been involved with the Intelligence Committee all of those years. We do extensive oversight on this particular provision in the PATRIOT Act, as well as other provisions. We have hearings on this from time to time, and we require the law enforcement officials to come in and talk to us about what they are doing. To my knowledge, there has never been one complaint or abuse that has been shown from the use of this particular provision. This particular provision is working exactly the way we intended it to work. It is a valuable tool for our law enforcement.

Let me speak also about amendment No. 363, which is Senator Paul's amendment concerning firearms records. Simply put, this amendment would make it more difficult for national security investigators to prevent an act of terrorism inside the United States. The amendment would prohibit the use of a FISA business records court order to obtain firearms records in the possession of a licensed firearms importer, manufacturer, or dealer. Instead, national security investigators could only obtain such records through a Federal grand jury subpoena during the course of a criminal investigation or with a search warrant issued by a Federal magistrate upon a showing of reasonable cause to believe that a violation of Federal firearms laws has occurred. That might not always be possible.

For example, before MAJ Nidal Hasan began his deadly assault against innocent military and civilian personnel at Fort Hood, TX, in November 2009, there was no evidence that he had violated any criminal or Federal firearms laws. Thus, the FBI could not have relied on title 18 to obtain information about Hasan's purchase of the firearms used in the attack.

As we have since learned, however, there was likely enough intelligence information to open a preliminary investigation on Hasan because of his contacts with a known al-Qaida member in Yemen, and seek a section 215 order for information about his gun purchases. I don't understand why we would take this tool away from national security investigators, especially, here again, where there has been no indication of any abuse of this authority with respect to firearms or other sensitive records.

Congress has conducted extensive oversight of the PATRIOT Act and FISA authority, and there have been no reports of any widespread abuse or misuse, and no reports that the government has ever used these authorities to violate second amendment rights.

Moreover, the protections detailed in section 215 ensure that second amendment rights are fully respected in the use of this authority. Unlike in criminal investigations where a Federal grand jury may issue a subpoena for firearms records, any request for records under section 215 must first be approved by the Foreign Intelligence Surveillance Court. As with all other section 215 records, the court must find that such records are relevant to an authorized national security investigation. This means the FBI cannot use this authority in a domestic terrorism investigation, nor can the FBI randomly decide to see whether an ordinary citizen or even a vocal advocate of the second amendment owns a firearm.

There are two additional oversight safeguards that are built into the section 215 process. First, each request for these sensitive records by the FBI can only be approved by one of three high-level FBI officials--the Director, the Deputy Director, or the Executive Assistant Director for National Security.

Second, there are also specific reporting requirements that are designed to keep Congress informed about the number of orders issued for these types of sensitive records.

One of the big lessons we learned after the 9/11 terrorist attacks was that we needed to make sure national security investigators had access to investigative tools similar to those that have long been available to law enforcement. Section 215 of the PATRIOT Act addresses that need. It provides an alternative way to obtain business records, including firearms records, in situations where there may be a national security threat but not yet a criminal investigation or violation.

I have long been a strong supporter of the second amendment. There is nobody in this body who has a better voting record on the second amendment than I do. Probably nobody here owns as many guns as I own, but I use them for legal and lawful purposes. I will work with the National Rifle Association and any citizen group to make sure that neither this law nor any Federal law is misused to infringe on the second amendment rights of any law-abiding citizen. But this particular amendment would harm legitimate national security investigations.

I want to take a minute to read a letter I received from Chris Cox, executive director of the National Rifle Association:

DEAR SENATOR CHAMBLISS: Thank you for asking about the National Rifle Association's position on a motion to table amendment No. 363 to the PATRIOT Act. The NRA takes a back seat to no one when it comes to protecting gun owners' rights against government abuse. Over the past three decades, we fought successfully to block unnecessary and intrusive compilation of firearms-related records by several Federal agencies, and will continue to protect the privacy of our members and all American gun owners.

While well-intentioned, the language of this amendment, as currently drafted, raises potential problems for gun owners, in that it encourages the government to use provisions in current law that allow access to firearms records without reasonable cause, warrant, or judicial oversight of any kind. Based on these concerns, and the fact that the NRA does not ordinarily take positions on procedural votes, we have no position on a motion to table amendment No. 363.

For those reasons, I intend to vote against both of these amendments. While I appreciate the intent and the emotion with which my friend Senator Paul comes to the floor to advocate, we need to make sure we get these extensions in place immediately, so we have no gap in the coverage available to our intelligence community, and that we continue to give them the tools they need to protect America and protect Americans.

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