25 February 2000 Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html ----------------------------------------------------------------------- [Congressional Record: February 24, 2000 (Senate)] [Page S799-S820] From the Congressional Record Online via GPO Access [wais.access.gpo.gov] [DOCID:cr24fe00-47] STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTION [Excerpt] By Mr. SPECTER (for himself, Mr. Torricelli, Mr. Thurmond, Mr. Biden, Mr. Grassley, Mr. Feingold, Mr. Helms, Mr. Schumer, and Mr. Sessions): S. 2089. A bill to amend the Foreign Intelligence Surveillance Act of 1978 to [[Page S800]] modify procedures relating to orders for surveillance and searches for foreign intelligence purposes, and for other purposes; to the Committee on the Judiciary. the counterintelligence reform act of 2000 Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation which would correct procedures under the Foreign Intelligence Surveillance Act. I offer this bill on behalf of Senator Torricelli, Senator Thurmond, Senator Biden, Senator Grassley, Senator Feingold, Senator Helms, Senator Schumer, and Senator Sessions. This is legislation which is designed to correct a very pressing problem. This bill refines the Foreign Intelligence Surveillance Act to enable the appropriate investigations of espionage to avoid the very serious mistakes which were made during the investigation of Dr. Wen Ho Lee. The references to Dr. Lee's investigation are made only for the purpose of illustrating the procedural problems which this legislation is designed to correct. The determination as to whether or not Mr. Wen Ho Lee is guilty will remain for the court of competent jurisdiction where he has been indicted. There was information released into the public domain at Mr. Lee's bail hearing which underscores the tremendous importance of this particular case. Dr. Stephen Younger, assistant laboratory director for nuclear weapons at Los Alamos, testified at Dr. Lee's bail hearing on December 13, 1999, and said: These codes and their associated databases and the input file, combined with someone that knew how to use them, could, in my opinion, in the wrong hands, change the global strategic balance. It is hard to have any item of greater importance than changing the global strategic balance. Dr. Younger further testified: They enable the possessor to design the only objects that could result in the military defeat of America's conventional forces. . . They represent the gravest possible security risk to . . . the supreme national interest. Again, it is hard to find more forceful language as to the seriousness of this particular matter than the potential military defeat of America's conventional forces. During the course of this investigation, there were very serious time lapses while the FBI sought to get a warrant on Dr. Lee under the Foreign Intelligence Surveillance Act. The FBI made the FISA request in June of 1997. It was refused by the Department of Justice on August 12, 1997, and then FBI Director Freeh sent FBI Assistant Director John Lewis to talk personally to Attorney General Reno. Attorney General Reno then appointed a Department of Justice subordinate named Daniel Seikaly, who reviewed the matter and rejected it. Attorney General Reno, as she conceded in testimony presented to the Judiciary Committee on June 8, 1999, did not follow up on the matter, leaving this very important request rejected. The proposed legislation would require that when the Director of the FBI makes a request for a FISA warrant that the Attorney General personally must make the decision as to whether the FISA warrant request should be submitted to the court for action. The legislation further provides that when the Attorney General declines to submit the FISA application to the court, the rejection must be in writing. This would give the FBI Director a roadmap, so to speak, as to what additional information is necessary to have the warrant request submitted to the court. After the Department of Justice declined to submit the FISA warrant to the court, the FBI investigation of the case was inactive for some 16 months. It took from August of 1997 to December of 1997 for the FBI Headquarters to send a letter regarding the FISA request to the FBI Albuquerque Field Office, where it lay dormant until November of 1998. From the time the FISA application was not forwarded to the court to the time the FBI office in Albuquerque finally acted, some 16 months elapsed. These 16 months were very crucial with respect to the activities of Dr. Lee. This legislation further provides that when the Attorney General rejects a FISA application in writing, the Director of the FBI has the obligation to personally supervise the matter. The Department of Energy then initiated a polygraph of Dr. Lee, in a very unusual way, that has since been criticized by the President's Foreign Intelligence Advisory Board. The Department of Energy represented that Dr. Lee passed the polygraph when, in fact, he had not. The Secretary of Energy even made an announcement on national television to the effect that Dr. Lee had passed the polygraph when, in fact, he had not. That threw the FBI off course, thinking that a passed polygraph exonerated the suspect. This legislation provides that an agency such as the Department of Energy may not take action on a polygraph, that these matters are to be left to the FBI, which has the paramount authority to investigate these matters. The FBI then conducted another polygraph, but not until February 10, 1999, some 6 weeks after the polygraph he allegedly passed. Even though Dr. Lee failed this second polygraph, no action was taken to terminate Dr. Lee until March 8. In the interim, he deleted many of the files that are in issue. These deletions took place on January 20, February 9, 11, 12, and 17, all to the potential prejudice of the United States. Dr. Lee did not have a search warrant executed until April 9, which is a very long lapse before any official action had been taken. The legislation further provides that when a suspect is left in place for the purpose of the investigation, the FBI must make this request in writing and that to that agency. The agency, such as the Department of Energy, must then formulate a plan within 30 days to structure how that suspect will be left in place while minimizing the exposure of classified information to that person. One of the reasons given by the Department of Justice in declining to go forward with the FISA application was that Dr. Lee was not ``currently engaged'' in objectionable activities--to use mild words. This bill changes that requirement to probable cause on the totality of the circumstances. That is a brief summary of what this legislation would do. It is the view of the sponsors of this bill that it is very important for it to move forward so that on pending espionage investigations we do not have the lapses that occurred in this very important case. I am pleased to note that all the members of the Judiciary Subcommittee have joined in cosponsoring this legislation. I thank my colleague, Senator Torricelli, for his cooperation. Senator Thurmond, Senator Grassley, and Senator Sessions have all cosponsored among the Republican members, as have Senators Feingold and Schumer, in addition to Senator Torricelli. Senator Biden was consulted specially and is a cosponsor because he was the author of the Foreign Intelligence Surveillance Act back in 1978. Senator Helms has asked to be added as a cosponsor, which he has. The subcommittee has had some substantial difficulty in ``birth'' pains; it has not really been born, to the extent that the subcommittee has not been funded. We have worked really from our own personal staffs. We have had three fellows and one detailee. We have completed a very lengthy detailed report, some 65 pages, which is the product of extraordinary work by Mr. Doman McArthur of my staff, in collaboration with Senator Torricelli's staff and the staffs of others. We have gone through the 65-page report with a fine-tooth comb to be sure that it is precise, exact, and does not make any disclosures as to any classified information. The subcommittee has deferred holding hearings on the Wen Ho Lee matter, which had been scheduled for December, at the specific request of Director Freeh. Director Freeh met with Torricelli and myself and requested that the hearings on Dr. Lee not go forward substantively, which might cause some problem with the pending prosecution. We do have hearings scheduled on the legislation for March 7, 8 and 21. I have already informed FBI Director Freeh of our intentions to proceed with those hearings, which will be on the substance as to how the act should be reformed. We have given notice to Director Freeh that we would appreciate his presence as a witness. He has said he would be glad to attend. That is a very brief statement of a very complex matter. It is my hope we will have the final clearance from the [[Page S801]] Department of Justice to be able to file the full 65-page report which will elaborate upon the brief summary which I have presented. I am delighted to yield to my very distinguished colleague from New Jersey, Senator Torricelli, the ranking member of the subcommittee. The PRESIDING OFFICER. The Senator from New Jersey is recognized. Mr. TORRICELLI. Mr. President, I thank Senator Specter for yielding time to me. I also thank him for his perseverance and diligence in working on this issue over the course of the last several months. I also express particular thanks to Senator Biden who in reviewing this legislation made very important additions and allowed us to proceed on a bipartisan basis for what I think is an important and worthwhile change in the laws dealing with foreign intelligence surveillance. The origins of this legislation--part of the Judiciary Committee's oversight--is the question of how the Department of Justice handled allegations of Chinese espionage at our most important National Laboratories. The focus of this review, of course, had to do with the case of Dr. Wen Ho Lee, a scientist who was charged in December with 59 counts of illegally removing secrets from computer information at the Los Alamos Laboratory. It appears that Dr. Lee was the subject of interest or investigations for espionage for over 17 years. He was dealing with the most important weapons secrets possessed by his government critical to the security of the United States. It would be difficult for anyone in this Government to explain to the American people why, despite 17 years of investigation and some reasons for considerable doubt all during this time, he was permitted to continue with his job and retain access to highly classified information. Much is still to be learned about this case. A criminal case is proceeding and an investigation. That is for, in some instances, others to deal with. That does not mean we do not already know some things that can change the conduct in this Government and the laws under which we govern ourselves. We have learned through this investigation that this was all made possible by a series of procedural and investigative errors that gave Dr. Lee this opportunity to download this highly classified material to an unsecured computer. In truth, we do not yet know whether or not, when this unguarded material was in an unsecured computer, in fact it got to foreign agents or other interested parties other than people with proper clearance in the U.S. Government. We do not know. We may never know. But we do know this after interviewing many witnesses and thousands of documents: There was a startling, almost unbelievable failure of coordination and communication between the Department of Justice, the FBI, and the Department of Energy in dealing with this matter, and only through that lack of coordination was an allegation of possible espionage able to lead to 17 years of continued access and the possibility that this information was compromised. As early as 1982, the FBI was aware that Dr. Lee was engaged in suspicious activities. Yet both at that time and in the years that followed there was no action taken to limit access to classified material. The Department of Energy detected Dr. Lee transferring an inordinate number of systems from a secured system to an unsecured system in 1993 and 1994. Personnel responsible for reporting that information failed to do so. In 1997, the FBI had an opportunity to stop Dr. Lee, but they were stymied by the denial of the Department of Justice of a request submitted by the FBI for a warrant to further investigate Dr. Lee. It is this failure that brings us here today. The evidence supporting a FISA request for their warrant was overwhelming. It had been building for years. No single piece of evidence may have been sufficient to warrant a criminal case, but they were more than sufficient to raise a proper level of suspicion to support the issuing of a warrant. Now we know that the request for this warrant, a FISA application, was never even considered by the Attorney General of the United States. When the Director of the Federal Bureau of Investigation, Mr. Freeh, sent a personal representative to meet with the Attorney General to express his concern about the warrant application, which he was right and proper to do, the Attorney General delegated the matter to a subordinate who was unfamiliar with the matter and who had never processed a similar request--no experience, no knowledge, no involvement--and the final disposition of the matter, therefore, was predictable. The request was denied. The warrant was not issued, and an opportunity potentially to either apprehend someone committing a criminal act or to have prevented further damage, if any occurred, was lost. Unfortunately, this problem was compounded in that when the FBI was denied this warrant, in my judgment, the matter should have been appealed but it was allowed to languish, and then further hampered by the Department of Energy which conducted a polygraph of Dr. Lee, and then, incredibly, unbelievably incorrectly concluded that he had passed the test. It is a series of compounded errors of procedure and judgment. It is difficult for the Congress to legislate good judgment for the proper execution of responsibilities. If we cannot do so, we can at least design the laws to provide for greater accountability. That is, indeed, what is being done by my colleagues. Under the legislation we are now introducing, Senator Specter and I have written amendments to the Foreign Intelligence Surveillance Act to provide that upon the personal request of the Director of the FBI, the Attorney General must personally review the FISA requests--no subordinate, no uninformed associate. This is a matter of national security. The Attorney General has no greater responsibility than protecting the secrets of the U.S. Government. This matter belongs on the Attorney General's desk, and under this legislation that is where it will rest. There are those who may argue that making the Attorney General directly responsible will somehow provide an avalanche of work, that they will not be able to deal with all of these matters. Appropriately, the legislation has been designed so this provision is triggered only by the personal request from the Director of the FBI--no subordinate, no associate, no one else in the Government. So the number of cases will be extremely limited. But when asked by the Director of the FBI, one person, and one person in this Government alone, will have direct responsibility. Second, the legislation requires that if the Attorney General decides not to forward a FISA application to the court, that decision must be communicated in writing to the FBI Director along with specific recommendations as to what investigative steps should be undertaken to meet the probable cause requirements. Matters of national security on this level cannot fall in departmental cracks--not get lost somewhere between Justice and the FBI. This will ensure that in those cases when the Attorney General has personally rejected this request the reasons will be stated, the FBI will be told why and then given a chance to return having met the appropriate probable cause standard. Third, the legislation requires that the FBI Director must personally supervise the implementation of the Attorney General's recommendations to ensure once again that in the highest levels of the U.S. Government these unusual but critical cases of national security dealing with foreign espionage are dealt with not by subordinates, but that this Congress can hold people for which it has responsibility, oversight, and votes to confirm--such as the Attorney General and the FBI Director--directly accountable. I believe these are appropriate responses to what we have learned to date out of this investigation. But I conclude by saying both what this legislation is and what it is not. This legislation is not an attempt to lower the probable cause standard for what is required for a warrant and a FISA application. Probable cause is a standard of law. It should be taken seriously. The rights of no citizen should be violated by an intrusive or curious government. The standard remains. What is being changed here is accountability, not a lessening of civil [[Page S802]] liberties. We simply want to know that the standard which has always existed of probable cause will be used, that procedures will be followed, that people will be held accountable, not that the Government is any more or any less intrusive. The probable cause standard remains the cornerstone of American liberties to ensure that the Government has reason and merit as a matter of law to involve itself in the privacy of our citizens. I proudly offer this legislation with Senator Specter. I believe it is a good and appropriate response. I thank the Senator for his patience in the drafting. I listened to my colleagues, particularly on this side of the aisle, with relatively modest changes we have recommended, all of which the Senator has incorporated. I look forward to the committee and then the Senate enacting this legislation. Mr. BIDEN. FISA, the Foreign Intelligence Surveillance Act of 1978, is a very vital part of our arsenal to combat terrorism and espionage. For 20 years, it has enabled the FBI to keep track of major threats to our security while preserving the constitutional rights of Americans. Basically, it provides for a sort of super search warrant, allowing the FBI, under certain unique circumstances, to eavesdrop upon activities, after showing a probable cause to a Federal judge, without having to disclose this eavesdropping in ways that they would have to under a normal warrant for a wiretap or a physical search. FISA has been very useful to deal with terrorism, and also with espionage cases. Senator Specter has undertaken an effort to look into what may or may not have transpired at our National Laboratories in the celebrated case of Wen Ho Lee and others. This has been the subject of some very legitimate discussion, and occasionally some partisan discussion. But knowing Senator Specter as long as I have, I do not doubt his desire to look into these cases that have transpired, and the consequences of any leakage of classified information from any of our National Laboratories, for the primary purpose of seeing to it that it does not happen again, if in fact it did happen, as well as to determine what did happen. Senator Specter and Senator Torricelli have been looking into these recent cases, especially, as I said, the case of Wen Ho Lee at Los Alamos National Laboratory. As a result of that inquiry, Senator Specter is proposing what I think is a very important series of sensible amendments to this act we call FISA. I am pleased to cosponsor this bill, having been an original author of that legislation in 1978, along with Birch Bayh and others. The initial bill with which Senator Specter approached me and others had a few areas where I thought it could be improved. I wish to publicly thank Senator Specter for agreeing to the changes I suggested in his proposed legislation. One of the dilemmas that exists, in the debate about whether the Attorney General and the Justice Department and/or the FBI were reading from the same page in the hymnal on how to investigate the Wen Ho Lee case, is the issue of whether the FBI communicated enough information to the Attorney General so that, under the reading of the FISA law, the Attorney General could conclude that there was sufficient reason to get a search or electronic surveillance court order. There has been a little bit of disagreement, at a minimum, between the FBI and the Justice Department as to who said what, when, and what request was made when. It has led to a serious political controversy. I think it has also led, as a consequence, on both sides of the aisle, to some posturing and partisanship about a significant national security issue. One of Senator Specter's most important ideas in this bill, one which is going to seem commonsensical to most Americans, is to make it clear that if something is of such consequence that the Director of the FBI believes there should be a FISA hearing and authority granted to allow the FBI to use invasive measures to eavesdrop upon conversations and/or get records, for example, from computer data and the like, if it is that important, the FBI Director can, under this new amendment to FISA, put that request in writing to the Attorney General and the Attorney General, whoever that may be, then has to personally sign off or not sign off, so we avoid this debate that is taking place now about whether second level people or third level people made the right judgment or wrong judgment, and whether or not there was any malfeasance. So this is a very practical solution. If this legislation had been in place 3 years ago, 5 years ago, there would be no doubt as to what happened. Had the FBI said this is critical and this is national security, the Attorney General personally would have had to say yes or no. That is where the record is unclear in the Wen Ho Lee case. This bill would eliminate such doubt in future similar cases if and when they arise, and they surely will arise. Section 2 of this bill permits the judge to consider the past activities of the target of an investigation--that is, the person upon whom they want to eavesdrop and/or whose records they want to secretly examine. So, for example, the Attorney General would be able to say, in a closed FISA hearing: Your Honor, not only do we think this is justified because of some current activity, but we can show you evidence that in 1991 they were engaged in this suspicious activity, in 1993 they were engaged in that, in 1995 they were engaged in this, therefore lending greater credibility to the argument that a FISA court order should be issued by the judge. Again, in this Wen Ho Lee case, and other cases that Senator Specter has examined, there has been discussion of the fact that sometimes these folks had been under investigation before. Would that not lend greater weight to the need for this FISA request to be granted? So we clear that up in this legislation, rather than only allowing the target's current activity to be brought up. Section 3 of this proposal requires the FISA court to be told if the target of a proposed search or surveillance has a relationship with a Federal law enforcement or intelligence agency. This came up in this case as well. The case is being investigated. It turns out at some point one of the persons in the past had been also a source for the FBI. The FBI had gone to this person and said: Will you be a source for us, looking into the possibility of some illegal activity? Then that very person becomes the target, and that very person is never able to tell, nor does the FBI or the CIA say: By the way, Your Honor, we were working with them. That is why they went ahead and did the following. Up to now, when the Federal Government has asked for a FISA court judge to give this surveillance authority, it has not been required to say: By the way, Your Honor, this person in the past had worked with us as a source, as a person cooperating with us. This is a new and useful protection for Americans, because the conduct that might seem suspicious could be a result of what the law enforcement agency had actually asked them to do. It seems only fair to the target to be able to have that information known to the judge. This is typical of the Senator from Pennsylvania, that he looks out for individual rights as well as the interests of law enforcement. There are several other interesting provisions in this bill, including some to improve relations between the FBI and other agencies, and I am sure there will be further refinements in this bill when it is considered by the Judiciary Committee. The important thing is that Senator Specter is working, I think effectively and in a bipartisan manner, to ensure that his inquiry into the Wen Ho Lee case leads to useful changes and not just to partisan recriminations. I compliment him on that, because the purpose of oversight is not only to find out who struck John but, in the national interest, to find the best way to prevent something such as this from happening again. So I compliment him and again thank him for acceding to the more than several changes I asked for in this legislation. I think the amendments to existing law that this bill will enact are good amendments. I think America will be well served, and I would argue that the individual rights of Americans will be in no greater jeopardy after this passes than they ever were. They are protected; they will continue to be protected; and some of these changes will [[Page S803]] even help to further protect the rights of individual Americans. I yield the floor. ______