National Intelligence Reform Act of 2004 - Part 1
NATIONAL INTELLIGENCE REFORM ACT OF 2004
Mr. KYL. Mr. President, I think the Senator from Georgia has covered this area very well. I spoke to it yesterday. I know Senator Stevens is here to lay down some amendments. I will take a few minutes to add one primary thought to what the Senator from Georgia has said, and then quickly lay down three amendments, and then I will be done.
Let me make this one key point about what the Senator from Georgia is talking about. The 9/11 Commission did not recommend the board or the many different assistant directorships and other provisions, from an ombudsman to IGs and the like, that are included in the legislation that is before us today. I am going to tell you what the 9/11 Commission did recommend. What it recommended is what the President has done. What the committee did went far beyond that.
Our amendment does not eliminate all of that, but at least it cuts it back to some extent. That is what I want to explain. Senator Durbin discussed this privacy amendment at length yesterday. His primary point was that the 9/11 Commission recommended this, and therefore the committee did it, and therefore we ought to not amend it out. In fact, one of the things he said was the 9/11 Commission recommended this board, and following their recommendation, the legislation included it.
What exactly did the 9/11 Commission recommend? There were three specific recommendations. They take one and a half pages out of the entire report. I will paraphrase the first two because they are not directly on point:
As the President determines the guidelines for information sharing among government agencies and by those agencies with the private sector, he should safeguard the privacy of individuals about whom information is shared.
Fine.
Two:
The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive's use of the powers. . . .
And three, and this is the key:
At this time of increased and consolidated government authority, there should be a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties.
That is it. As the Senator from Georgia said, that is exactly what the President did in his Executive Order 13353. The Senator from Georgia described what that Executive order does. I have a full copy of all the entities involved in it, the instructions to that board to bring any credible information of possible violations of law to appropriate end, to undertake other efforts to protect the legal rights of all Americans, including freedoms, civil liberties, and information privacy guaranteed by Federal law, and so on.
In other words, what the 9/11 Commission recommended the President did. What is in this bill goes far beyond that. What I said yesterday with respect to risk aversion makes it clear that what the committee did not only goes far beyond what the 9/11 Commission recommended but will virtually guarantee that the risk aversion, which is a problem today, is exacerbated tenfold so that instead of being able to collect more intelligence and analyze that intelligence better and have people who are not involved in group-think, who are actually willing to think outside the box and not be intimidated by risks aversion, instead of that, we are going to get more of that because of all the layers of bureaucracy that is going to be looking over people's shoulders.
What the bill does is require two officers within the national intelligence authority, two out of six, one responsible for privacy, the other for civil rights and civil liberties. In addition, there is an inspector general within the national intelligence authority who, among other things, is to monitor and inform the director of violations of civil liberties and privacy.
There is an ombudsman, which I mentioned a moment ago. There is an independent privacy and civil liberties oversight board with extensive investigative authorities, which the Senator from Georgia talked about, and privacy and civil liberties officers within a long list of executive branch departments and agencies.
So what does the amendment we have offered do? It deletes sections 126 and 127 which require officers for privacy and civil liberties within the national intelligence authority because those already exist; it would strike section 212 requiring privacy and civil liberties officers within a long list of executive branch departments and agencies; and it would modify the privacy and civil liberties oversight board described in section 211. It does not eliminate it, so it would be duplicative of the board the President created.
There will be an executive branch board and an outside board, but this board would not have the authority to subpoena private individuals or documents and reports, accounts, and other evidence of private individuals, nor would it have the power to compel through subpoena, for example, a department or agency to present documents.
I am not even sure, by the way, this board would have the authority to do that under the Constitution. I am not sure that authority could be granted. In any event, that would be a very pernicious power granted to it when that power already exists in the ombudsman, in the inspector general, and the other privacy officers that exist. It is duplicative and unnecessary.
The net result of all these different entities that have the same responsibility is to basically tell intelligence agencies: If you want to get to the end of your career and have a pension at the end of it, you better watch over your shoulder because there are a whole lot of other people doing that. That is not the way to enhance our security.
Those are the additional points I wanted to make in addition to those I made yesterday with respect to this amendment. I hope before we vote on this amendment we will have an opportunity to present these arguments in short form with all of the Members in attendance.
Mr. President, I indicated to the chairman of the committee what I intend to do next. Therefore, since our procedure is to lay down one amendment at a time, I ask unanimous consent to lay down three amendments, and I will explain what they are.
The PRESIDING OFFICER. Without objection, it is so ordered.
AMENDMENT NO. 3926
Mr. KYL. Mr. President, the first is amendment No. 3926, which is at the desk, and I ask that amendment be read.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Arizona [Mr. KYL] proposes an amendment numbered 3926.
Mr. KYL. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To amend the Immigration and Nationality Act to ensure that nonimmigrant visas are not issued to individuals with
connections to terrorism or who intend to carry out terrorist activities in the United States)
At the end, add the following new title:
TITLE IV-VISA REQUIREMENTS
SEC. 401. FINDINGS.
Congress makes the following findings:
(1) Section 214 of the Immigration and Nationality Act (8 U.S.C. 1184) governs the admission of nonimmigrants to the United States and sets forth the process for that admission.
(2) Section 214(b) of the Immigration and Nationality Act places the burden of proof on a visa applicant to establish "to the satisfaction of the consular officer, at the time of the application for a visa . . . that he is entitled to a nonimmigrant status".
(3) The report of the National Commission on Terrorist Attacks Upon the United States included a recommendation that the United States "combine terrorist travel intelligence, operations, and law enforcement in a strategy to intercept terrorists . . . and constrain terrorist mobility".
(4) Fifteen of the 19 individuals who participated in the aircraft hijackings on September 11, 2001, were nationals of Saudi Arabia who legally entered the United States after securing nonimmigrant visas despite the fact that they did not adequately meet the burden of proof required by section 214(b) of the Immigration and Nationality Act.
(5) Prior to September 11, 2001, the Department of State allowed consular officers to approve nonimmigrant visa applications that were incomplete, and without conducting face-to-face interviews of many applicants.
(6) Each of the 15 individuals from Saudi Arabia who participated in the aircraft hijackings on September 11, 2001, filed a visa application that contained inaccuracies and omissions that should have prevented such individual from obtaining a visa.
(7) Only one of the hijackers listed an actual address on his visa application. The other hijackers simply wrote answers such as "California", "New York", or "Hotel" when asked to provide a destination inside the United States on the visa application.
(8) Only 3 of the individuals from Saudi Arabia who participated in the aircraft hijackings on September 11, 2001, provided any information in the section of the visa application that requests the name and address of an employer or school in the United States.
(9) The 2002 General Accounting Office report entitled "Border Security: Visa Process Should Be Strengthened as Antiterrorism Tool" outlined the written guidelines and practices of the Department of State related to visa issuance and stated that the Department of State allowed for widespread discretion among consular officers in adhering to the burden of proof requirements under section 214(b) of the Immigration and Nationality Act.
(10) The General Accounting Office report further stated that the "Consular Best Practices Handbook" of the Department of State gave consular managers and staff the discretion to "waive personal appearance and interviews for certain nonimmigrant visa applicants".
(11) Only 2 of the 15 individuals from Saudi Arabia who participated in the aircraft hijackings on September 11, 2001, were interviewed by Department of State consular officers.
(12) If the Department of State had required all consular officers to implement section 214(b) of the Immigration and Nationality Act, conduct face-to-face interviews, and require that visa applications be completely and accurately filled out, those who participated in the aircraft hijackings on September 11, 2001, may have been denied nonimmigrant visas and the tragedy of September 11, 2001, could have been prevented.
SEC. 402. IN PERSON INTERVIEWS OF VISA APPLICANTS.
(a) REQUIREMENT FOR INTERVIEWS.-Section 222 of the Immigration and Nationality Act (8 U.S.C. 1202) is amended by adding at the end the following new subsection:
"(h) Notwithstanding any other provision of this Act, the Secretary of State shall require every alien applying for a nonimmigrant visa-
"(1) who is at least 12 years of age and not more than 65 years of age to submit to an in person interview with a consular officer unless the requirement for such interview is waived-
"(A) by a consular official and such alien is within that class of nonimmigrants enumerated in section 101(a)(15)(A) or 101(a)(15)(G) or is granted a diplomatic visa on a diplomatic passport or on the equivalent thereof;
"(B) by a consular official and such alien is applying for a visa-
"(i) not more than 12 months after the date on which the alien's prior visa expired;
"(ii) for the classification under section 101(a)(15) for which such prior visa was issued;
"(iii) from the consular post located in the country in which the alien is a national; and
"(iv) the consular officer has no indication that the alien has not complied with the immigration laws and regulations of the United States; or
"© by the Secretary of State if the Secretary determines that such waiver is-
"(i) in the national interest of the United States; or
"(ii) necessary as a result of unusual circumstances; and
"(2) notwithstanding paragraph (1), to submit to an in person interview with a consular officer if such alien-
"(A) is not a national of the country in which the alien is applying for a visa;
"(B) was previously refused a visa, unless such refusal was overcome or a waiver of ineligibility has been obtained;
"© is listed in the Consular Lookout and Support System (or successor system at the Department of State);
"(D) may not obtain a visa until a security advisory opinion or other Department of State clearance is issued unless such alien is-
"(i) within that class of nonimmigrants enumerated in section 101(a)(15)(A) or 101(a)(15)(G); and
"(ii) not a national of a country that is officially designated by the Secretary of State as a state sponsor of terrorism; or
"(E) is identified as a member of a group or sector that the Secretary of State determines-
"(i) poses a substantial risk of submitting inaccurate information in order to obtain a visa;
"(ii) has historically had visa applications denied at a rate that is higher than the average rate of such denials; or
"(iii) poses a security threat to the United States.".
(b) CONDUCT DURING INTERVIEWS.-Section 222 of the Immigration and Nationality Act (8 U.S.C. 1202), as amended by subsection (a), is further amended by adding at the end the following new subsection:
"(i) A consular officer who is conducting an in person interview with an alien applying for a visa or other documentation shall-
"(1) make every effort to conduct such interview fairly;
"(2) employ high professional standards during such interview;
"(3) use best interviewing techniques to elicit pertinent information to assess the alien's qualifications, including techniques to identify any potential security concerns posed by the alien;
"(4) provide the alien with an adequate opportunity to present evidence establishing the accuracy of the information in the alien's application; and
"(5) make a careful record of the interview to document the basis for the final action on the alien's application, if appropriate.".
SEC. 403. VISA APPLICATION REQUIREMENTS.
Section 222© of the Immigration and Nationality Act (8 U.S.C. 1202©) is amended by inserting "The alien shall provide complete and accurate information in response to any request for information contained in the application." after the second sentence.
SEC. 404. EFFECTIVE DATE.
Notwithstanding section 341 or any other provision of this Act, this title shall take effect 90 days after date of the enactment of this Act.
Mr. KYL. Mr. President, this amendment would codify and tighten the procedures for personal interviews of people seeking temporary visas. Mr. President, 15 of the 19 hijackers who came here received these kinds of visas. I think in every case but one they were not interviewed as the State Department guidelines call for, as the statute assumes but does not make explicit. This amendment will do that.
If there are any issues or questions about it, I would be happy to talk with both the majority and minority. I am hopeful we can work that out.
AMENDMENT NO. 3881
(Purpose: To protect crime victims' rights)
Mr. KYL. Mr. President, the second amendment that I ask be read is at the desk. It is amendment No. 3881.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Arizona [Mr. KYL] proposes an amendment numbered 3881.
Mr. KYL. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in the RECORD of Thursday, September 30, 2004, under "Text of Amendments.")
Mr. KYL. Mr. President, I recall in the Senate a vote of I think it was 97 to 1 or 90-something to 1, in any event, earlier this year that passed a proposed statute to guarantee crime victims certain rights. That bill is pending in the House.
What this does is take those exact rights and make them applicable to victims of terrorist attacks, terrorist crimes.
Again, I invite comments. I do not think it will be difficult. We will work that out.
AMENDMENT NO. 3724
(Purpose: To strengthen anti-terrorism investigative tools, promote information sharing, punish terrorist offenses, and for other purposes)
Mr. KYL. Mr. President, I am happy to go to my third amendment. This is amendment No. 3724.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Arizona [Mr. KYL], for himself, Mr. CORNYN, Mr. CHAMBLISS, and Mr. NICKLES, proposes an amendment numbered 3724.
Mr. KYL. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in the RECORD of Tuesday, September 28, 2004 under "Text of Amendments.")
Mr. KYL. Mr. President, I rise today to discuss an important amendment that I will offer to the 9/11 Commission bill. My amendment is substantially the same as S. 2679, the Tools to Fight Terrorism Act, a bill that I introduced earlier this year with several other members of the Judiciary Committee and the Senate leadership.
Since the terrorist attacks of September 11, congressional committees and executive agencies have conducted exhaustive reviews of our Nation's antiterrorism safety net. We have had scores of hearings in the House and Senate judiciary committees, a Joint Intelligence Committee Inquiry, the 9/11 Commission hearings and report, and the Justice Department has conducted extensive evaluations of its own antiterrorism capabilities. These hearings have uncovered numerous flaws and gaps in our antiterrorism system. We have found, for example, that in many cases antiterror investigators still have less authority to access information than do investigators of other crimes that, while serious, pale in comparison to the threat posed by international terrorism. We also have seen that some of the federal code's criminal offenses and penalties are far too light, or too narrow in their scope, in light of the contemporary terrorist threat. Yet, despite all of these hearings and reports-and all of the gaps in our antiterror laws that have been identified-Congress has enacted no major antiterror legislation in almost three years.
This amendment addresses many of the problems that these hearings and reports have identified over the last few years. At the outset, I would like to emphasize 5 things about the amendment.
This amendment is not about the PATRIOT Act. This amendment does not reauthorize or extend the PATRIOT Act. Nor does it involve any of the supposedly "controversial" provisions of the PATRIOT Act.
Nothing in TFTA deals with Section 215 subpoenas, which some critics have complained can be used to access a terrorist's records of book withdrawals and computer use at a library.
Nothing in TFTA deals with delayed-notice searches, which some critics deride as "sneak and peak" searches, even though the PATRIOT Act only codified judicial standards that have been in place for decades.
Nothing in TFTA deals with roving wiretaps, which some critics mischaracterize as allowing taps of the telephones of anyone who fits a general description. This is not true. A roving wiretap can only be used for a particular person, though it applies to any phone that the person uses.
Nothing in TFTA deals with National Security Letters, which allow certain records to be subpoenaed and includes an automatic nondisclosure requirement.
I happen to support the PATRIOT and believe that it should not be allowed to expire. Nevertheless, with this amendment, I have deferred that debate. This amendment does not involve the PATRIOT Act or the debates about it. The only way that one can object to this amendment as "controversial" is if one is willing to define all antiterror legislation as "controversial." In a post-9/11 world, with continuing threats to the U.S. homeland-and clear gaps in some of our antiterror laws-such a presumption against all antiterror legislation would be deeply irresponsible. Fixing obvious flaws in our laws, and giving antiterror investigators the tools that they need, should not be controversial.
Much of TFTA is also in the House of Representatives' 9/11 Commission bill. Approximately half of the provisions of TFTA already have been included by the House of Representatives in their bill implementing the recommendations of the 9/11 Commission. For example, the House bill already contains the "Moussaoui fix," which allows FISA warrants for lone-wolf terrorists-Section 412 of TFTA and section 2001 of H.R. 10.; new offenses for hoaxes relating to terrorist crimes or the deaths of U.S. soldiers-Section 416 of TFTA and section 2021 of H.R. 10.; increased penalties for obstruction of justice in terrorism investigations-Section 417 of TFTA and section 2023 of H.R. 10.; authorization to share grand-jury information with state and local governments-Section 423(b) of TFTA and section 2191 of H.R. 10.; improvements to and expansion of the material-support statute-Section 424 of TFTA and section 2043 of H.R. 10.; a new offense targeted at those who receive military-type training in terrorist camps-Section 425 of TFTA and 2042 of H.R. 10.; expansion of the weapons-of-mass-destruction laws-Section 426 of TFTA and section 2052 of H.R. 10.; and new laws targeted at those who aid rogue states' nuclear proliferation-Section 427 of TFTA and section 2053 of H.R. 10.
In all these respects, my amendment is substantially identical to the House bill. The amendment thus helps to bring the Senate bill into line with the House bill, lessening the need for a protracted conference and avoiding delay in enacting this legislation.
TFTA directly implements a number of the key recommendations and addresses key concerns of the 9/11 Commission. The Report of the September 11 Commission recommends that Congress address a number of deficiencies in our nation's preparedness against a terrorist attack. The underlying bill that we are considering responds to many of those recommendations. This amendment addresses others.
The 9/11 Commission Report recommends action to address, among other things, the threat posed by weapons of mass destruction and their proliferation; the vulnerabilities of our seaports and mass-transit systems; the need for improved information sharing; the need to address terrorist finance; the threat posed by sanctuaries where terrorists operate training camps; and the need for improved information sharing. The report also discusses the problems created by terrorist hoaxes, and the legal barriers encountered in the pre-September 11 investigation of suspected hijacker Zacarias Moussaoui.
TFTA addresses every one of these 9/11 Commission recommendations.
TFTA's provisions and the matters that it address have been extensively reviewed in congressional hearings. Every provision of TFTA previously has either been introduced as a bill in the House or Senate or addresses a matter that has been the subject of a committee hearing. Collectively, the provisions of TFTA have been the subject of 9 separate hearings before House and Senate committees and have been the subject of 4 separate committee reports. In addition, the entire bill was reviewed at a September 13 hearing before the Senate Subcommittee on Terrorism. At that hearing, law professor Jonathan Turley testified that every one of TFTA's provisions would be upheld as constitutional by the U.S. Supreme Court.
TFTA primarily consists of all or part of 11 bills currently pending in the House and Senate. Collectively, as of July 19, 2004-the day that TFTA was introduced-the bills included in TFTA have been pending before Congress for 12 years, 10 months, and 28 days. No one can contend that TFTA and its provisions have been "rushed through" the Congress.
TFTA has the support of antiterrorism experts across the ideological spectrum. The Justice Department, in its September 13 testimony on TFTA before the Terrorism Subcommittee, expressed its strong support for the bill. Hearing witnesses Barry Sabin-the Chief of the Criminal Division's Counterterrorism Section-and Dan Bryant, the Assistant Attorney General for the Office of Legal Policy-made clear in their joint written testimony the Justice Department's view that the "Tools to Fight Terrorism Act of 2004 makes well-considered, urgently needed changes to current law, and would greatly aid law enforcement and intelligence officials in their common mission to prevent terrorist attacks and prosecute those who would do us harm. The new tools provided by the TFTA will prevent-terrorist-attacks and will make America safer."
At the Terrorism Subcommittee hearing on TFTA, support for the bill also was voiced by George Washington University law professor Jonathan Turley, a national-security expert who often has been critical of the Justice Department's conduct of the war on terror. In addition to a large number of academic works in the areas of national-security and constitutional law, Professor Turley has represented clients in a variety of high-profile national security cases in both criminal and civil courts, including espionage cases in both federal and military courts. In his testimony before my subcommittee, Professor Turley noted that he "also [has] been a vocal critic of some of the measures taken after September 11th on constitutional and policy grounds."
This is what Professor Turley had to say about the TFTA in his testimony:
The Tools to Fight Terrorism Act of 2004 . . . contains many beneficial changes that will increase the ability of the government to pursue terrorists while preserving necessary guarantees for civil liberties.
While we must be cautious not to legislate out of a reflective impulse, September 11th exposed a number of vulnerabilities and gaps in our legal and intelligence systems that remain only partially addressed. This Act continues to work to close those gaps and to accommodate the interests of the Executive Branch in pursuing, prosecuting, and (hopefully) deterring terrorists.
The vast majority of the[] provisions [of TFTA] are matters that, in my view, should receive general support as balanced and necessary measures.
TFTA should be a matter for general consensus rather than division among civil libertarians and advocates of national security interests. . . . [W]e need to recognize the improvements in this Act and the good-faith changes that have been made by members seeking a fair balance in the legislation.
In one part of his testimony before my subcommittee, Professor Turley also recommended a change to a part of the bill-in order to better protect civil liberties. He recommended that, if the FBI is given subpoena authority for terrorism investigations, it also be required to report on the use of that authority. The amendment that I offer today incorporates this recommendation-it would require the FBI to report to Congress on the number of subpoenas that it issues pursuant to this new authority, and the circumstances under which those subpoenas are issued.
I will next discuss the provisions of this amendment-and how they help to address the recommendations and concerns raised by the 9/11 Commission, and what others have said about these provisions.
The Moussaoui fix: The case of suspected 9/11 conspirator Zacarias Moussaoui is discussed extensively in the 9/11 Commission Report. Moussaoui, you will recall, is the Al Qaeda operative who was arrested by Minneapolis FBI agents several weeks before the September 11 attacks. That summer, instructors at a Minnesota flight school became suspicious when Moussaoui, with little apparent knowledge of flying, asked to be taught to pilot a 747. The instructors contacted the Minneapolis office of the FBI, which immediately suspected that Moussaoui might be a terrorist.
The hearings conducted by the 9/11 Commission raised some agonizing questions about the FBI's pursuit of Moussaoui. Commissioner Richard Ben-Veniste noted the possibility that the Moussaoui investigation could have allowed the United States to "possibly disrupt the [9/11] plot." Commissioner Bob Kerrey even suggested that with better use of the information gleaned from Moussaoui, the "conspiracy would have been rolled up." And Commissioner Jamie Gorelick followed up by asking whether more could have been done to allow FBI agents to "break through the barriers" to their investigation of Moussaoui.
After the September 11 attacks, when FBI agents finally were allowed to search Moussaoui, they discovered information in his belongings that linked him to two of the actual 9/11 hijackers, and to a high-level organizer of the attacks who later was arrested in Pakistan.
The 9/11 Commissioners are right to ask whether more could have been done to pursue this case. The problem is that, given the state of the law at the time, the answer to that question is probably no. In fact, given the state of the law today, the answer to the question still would be no.
FBI agents were blocked from searching Moussaoui because an outdated requirement of the 1978 FISA statute. FISA sets rules for searches conducted for intelligence investigations. As the 9/11 Commission Report notes, the FBI field office was unable to obtain a FISA warrant for Moussaoui because it lacked information linking him to a known terror group. As the Report states:
Minneapolis agents "sought a special warrant under the Foreign Intelligence Surveillance Act to [search Moussaoui]. To do so, however, the FBI needed to demonstrate probable cause that Moussaoui was an agent of a foreign power, a demonstration that [is] . . . a statutory requirement for a FISA warrant. The agent did not have sufficient information to connect Moussaoui to a foreign power.
Current law simply does not allow searches of apparent lone-wolf terrorists such as Zacarias Moussaoui-even if the FBI can show probable cause to believe that the person is involved in international terrorism.
My amendment would correct this problem. Section 412 gives the FBI clear authority to conduct a search or surveillance under FISA when it has probable cause to believe that the target is engaged in or preparing for international terrorism. This new authority would not require FBI to also link the suspect to a particular terrorist group.
It is inevitable that Islamist terrorists will try again to attack the United States. As agonizing as it is today to review why we did not prevent the September 11 attacks, imagine if it happened again. Imagine if another attack occurred-and another review commission found that critical FBI investigations again were undermined by the lack of FISA authority to monitor and search lone-wolf terrorists. We simply cannot let that happen. We must ensure that today's FBI agents are not hampered by the same unnecessary barriers that hurt the efforts of the Minneapolis agents in August of 2001.
Process: A bill that is substantially identical to section 412 first was introduced in the Senate by Senator Schumer and me on June 5, 2002. We reintroduced the same provision in the 108th Congress. That bill-S. 113-was unanimously reported by the Judiciary Committee in March 2003, and was approved by the full Senate by a vote of 90-4 in May 2003. A substantially identical provision also has been included in a House bill introduced by Chairmen SENSENBRENNER and Goss-and is included in the House 9/11 Commission bill as section 2001. The Moussaoui fix also has been the subject of two hearings-one in the Senate Intelligence Committee on July 31, 2002, and one in the House Crime Subcommittee on May 18, 2004.
Section 412 is substantially identical to section 2001 of the House of Representatives' 9/11 Commission bill.
Weapons of Mass Destruction and Shoulder-Fired Antiaircraft Rockets: The 9/11 Commission Report notes that "al Qaeda has tried to acquire or make weapons of mass destruction for at least ten years. . . . Preventing the proliferation of these weapons warrants a maximum effort." The Report also discusses "Pakistan's illicit trade and [the] nuclear smuggling networks of Pakistani nuclear scientist A.Q. Khan." The Report recommends that the U.S. work with other nations "to develop laws and an international legal regime with universal jurisdiction to enable the capture, interdiction, and prosecution of such smugglers by any state in the world."
Sections 426 and 427 and subtitle B of my amendment all are directed at preventing terrorists from gaining access to weapons of mass destruction. Section 427 makes it a crime to participate in or provide material support to a nuclear-weapons program, or other weapons-of-mass-destruction program, of a designated terrorist organization or state sponsor of terrorism. There would be extraterritorial jurisdiction for an offense under this provision. Section 426 would amend the federal weapons-of-mass-destruction statute to cover attacks on property and would broaden the bases for federal jurisdiction under that statute. Subtitle B is designed to deter the unlawful possession and use of atomic weapons, radiological dispersal devices, shoulder-fired rockets, and the variola virus (the causative agent of smallpox).
In his testimony about these provisions before the Terrorism Subcommittee, Professor Jonathan Turley had this to say:
[Section 426, the WMD-statute provision] would close current loopholes in the interest of national security and does not materially affect civil liberty interests.
[Section 427] would criminalize the participation in programs involving special nuclear material, atomic weapons, or weapons of mass destruction outside of the United States. This new crime with extraterritorial jurisdiction is an obvious response to recent threats identified by this country and other allies like Pakistan. The obvious value of such a law would be hard to overstate. . . . It is important for the purposes of our extraterritorial enforcement efforts to have a specific crime on the books to address this form of misconduct.
[With regard to subtitle B-the new shoulder-fired rockets proscription], [g]iven the enormous threats to our country from such weapons, these increased penalties are manifestly reasonable. . . . While it is certainly possible that a defendant could be in possession of a MANPADS as part of arms trafficking or some other motive than terrorism, this is clearly one of the most likely forms of terrorist conduct.
Process: Sections 426 and 427 of my amendment are identical to sections 2052 and 2053 of the House 9/11 Commission bill. These-and the new penalties for possession of shoulder-fired rockets and other dangerous weapons-also are identical to legislation that Senator Cornyn introduced earlier this year.
Mass-Transportation and Seaport Security: The 9/11 Commission Report recommends that the U.S. government "identify and evaluate the transportation assets that need to be protected, set risk-based priorities for defending them, select the most practical and cost-effective ways of doing so, and then develop a plan . . . to implement the effort." While noting the continuing threat to aviation, the Report also emphasizes that "[o]pportunities to do harm are as great, or greater, in maritime or surface transportation"-and that "railroads and mass transit" are particularly difficult to protect against terrorism.
Subtitles C and D of my amendment address the unique challenges of providing security on mass-transportation systems and at seaports by updating current criminal offenses and creating new offenses that are tailored to these venues.
BREAK IN TRANSCRIPT