Joe Biden

Mr. BIDEN

Mr. BIDEN. Mr. President, while I have strong reservations about the amendment offered by Senators Heflin and Shelby, I have also been informed that the amendment has been cleared by all other Senators-- including Senators, from both sides, representing the committee of jurisdiction, the Committee on Environment and Public Works. For these reasons, I will not object to the amendment offered by Senators Heflin and Shelby and require a roll [[Page S7759]] call vote. But, I would simply note my opposition for the Record.

Mr. BIDEN. Mr. President, we are prepared to accept Shelby amendment No. 1230, the fertilizer research study, and I understand that the Republican side is willing to accept the Heflin amendment numbered 1241 related to sarin gas. I ask unanimous consent that both of them be called up, and then at the appropriate time, I am willing to accept them both en bloc.

Mr. BIDEN. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 1230 to Amendment No. 1199 and Amendment No. 1241, En Bloc

Mr. BIDEN. Mr. President, after consulting with Senator Ford and others, we are prepared to accept the modification. We thank the Senator from Georgia for so modifying. We accept the amendment as sent to the desk.

Mr. BIDEN. I thank my friend from Connecticut. The way I look at this, this is real simple. Real simple and basic. There is nothing real complicated about this. Right now, this can be done. Right now, all that has to be proven is there is an intent to evade. All we are saying is if the effect is evasion, and the effect is avoiding the tap on the phone that they think may be tapped, that they be able to do it based on the effect, not having to prove an intent to thwart eavesdropping. I want to make that clear to everyone here. This still requires an initial finding that this guy is probably a bad guy. It still requires a judge to say that there [[Page S7757]] is probable cause to look at this guy. This is no great leap in anything. Civil libertarians should not worry, law enforcement should be encouraged, and the American people should feel some mild additional sense of security in being able to do what the Senator from Connecticut is suggesting that the President very badly wants, and that was deleted from the bill. It is my hope that our friends on the Republican side may be able to accept this amendment. If there is any time left, I ask that it be reserved. Mr. President, I rise in support of Senator Lieberman's amendment, which I believe will improve the current authority for what are known as roving, or multipoint, wiretap orders. This provision was proposed by the President, but is not included in the Republican substitute. Multipoint wiretaps allow law enforcement officers to obtain a judicial order to intercept the communications of a particular person-- not just for one specified phone, as with most wiretap orders, but on any phone that person may use. A recent prosecution will help illustrate how multipoint wiretaps work. In that case, involving one of the world's biggest international drug traffickers, agents determined that a courier was contacting his bosses by using a number of randomly chosen public phones around his home. A multipoint wiretap was obtained and up to 25 phones were identified to prepare for the chance that the target would use one of them. Anytime he used one of those phones, the agents were able to initiate a wiretap. Interceptions obtained in this way led to 53 Federal indictments and a 19-ton cocaine seizure. Under current law, the Government can get a multipoint wiretap order only if it can show that the defendant is intending to thwart surveillance--usually by switching from phone to phone. The Senator's amendment would allow multipoint wiretaps where the defendant's conduct has the effect of thwarting surveillance-- regardless of the defendant's intent. This small change is desperately needed by law enforcement--because while officers will often be able to show that the individual is changing telephones frequently enough to make a standard wiretap impossible, it may be difficult to prove that he is doing so with intent to thwart a wiretap. Changes in technology have made this proof even more difficult. A target may use more than one phone for reasons other than avoiding surveillance. The current intent requirement virtually requires an officer to wait to apply for a multipoint wiretap until the officer somehow hears the target say ``I am changing phones because I don't want the cops to tap this conversation.'' Let me give you an example of one ongoing case in which a multipoint wiretap order could not be obtained because of the requirement to prove intent to thwart surveillance. In this case, the targets are using electronic scanning equipment to capture cellular phone and identification numbers from unsuspecting and innocent phone users. The particular targets in this case are cloning a new phone number-- allowing them to use it without authority--every 2 weeks or so and thereby effectively avoiding surveillance. The officers are hard-pressed to prove that every time the target clones a new number, he did so for the purpose of thwarting interception--rather than simply to avoid paying for the calls. Because wiretaps are extraordinarily powerful and intrusive, the law contains numerous protections against abuse. The Government must, of course, prove probable cause that a specific person is committing a crime--as with any wiretap application. The application must be approved by a top Justice Department official--the Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney General, or an Acting Assistant Attorney General; The judge must find that the standards for issuing a multipoint order have been met; The application must identify the person believed to be committing the offense and whose communications are to be intercepted; The Government must minimize the intrusiveness of a wiretap--by turning the wiretap off when the conversation is personal, for instance; and Any interception cannot begin until law enforcement has clearly determined that the target is using that particular phone. And once the target is off the phone, the interception must end. In practice, this latter requirement means that if the agents are out on surveillance and they see their target move to a new phone, they can begin interception of the new phone. It also means that if their target hands the phone to his buddy, they must stop the interception immediately. A multipoint wiretap order does not allow the police to intercept a slew of different telephones in a number of places and monitor every conversation on those phones. The amendment proposed by the administration, and offered in modified form by Senator Lieberman, would not change any of the basic protections in the current multipoint wiretap statute. The narrow, but necessary change that the Senator's amendment would make is not intended to make this authority a run-of-the-mill everyday surveillance technique. I understand that multipoint wiretaps are used sparingly--in fact, the Justice Department reports that last year only 10 multipoint wiretaps were conducted and that only 4 have been approved to date this year. The new authority provided by this amendment must be utilized responsibly. And I reiterate that Senator Lieberman's amendment will not change any of the protections built into the multipoint wiretap statute besides broadening the intent standard to include an effects standard. We must provide law enforcement with the tools they need to meet the demands of an ever-complex and changing criminal element. In today's increasingly mobile and high-technology world, we need to provide law enforcement with the ability to move with the criminals. It is now simply too easy for law enforcement to get left behind as the criminals move from place to place and from phone to phone. At the same time we must be cautious not to infringe on civil liberties. I believe the amendment Senator Lieberman offers today accomplishes both of these goals. It is a narrow but necessary expansion of the multipoint wiretap authority--but one that also includes protections against abuse. I urge my colleagues to support this amendment.

Mr. BIDEN. Mr. President, we are just awaiting the modification language on Senator Brown's amendment 1229. As soon as we have that and have a chance to look at it, it will be sent to the desk. We will ask that it be considered and we will accept that as well. We will also accept in a moment, I believe, Senator Shelby's amendment relating to fertilizer research, amendment No. 1230. Now that we have interrupted the Senator from Connecticut 12 times-- but we are making progress here; we are accepting important amendments--I will at the end of the comments by my friend from Connecticut urge we accept additional amendments.

Mr. BIDEN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. BIDEN. Mr. President, I do not think I have to ask unanimous consent, but on behalf of Senator Levin then, I ask that his amendment No. 1244 be withdrawn.

Mr. BIDEN. Mr. President, if the Senator will yield for a moment, I say to my friend from Utah, we are prepared to accept several additional amendments that are on the Republican list and the Republican manager, as I understand, is close to being prepared to accept several amendments on the list of the Democrats. Senator Levin has indicated on his amendment No. 1244 that he is willing to withdraw that amendment under an assertion by the chairman of the Judiciary Committee that he would hold hearings on the Levin- Nunn-Inouye amendment.

Mr. BIDEN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. BIDEN

Mr. BIDEN. We cannot take it now so let us just vote on it. Look, in 10 minutes--the whole thing is over in 25 minutes rather than spending 45 minutes deciding whether we can take it.

Mr. BIDEN. We are ready to vote on the Specter amendment. We would agree to a 10-minute time agreement.

Mr. BIDEN. McCain-Leahy is cleared.

Mr. BIDEN. We cannot, but let us vote on Smith. We are ready to vote.

Mr. BIDEN. Mr. President, my experience is not as extensive as the leader's and slightly more extensive than the Senator from Utah's here, but it seems to me we waste a whole lot of time working out whether we can work things out rather than just bringing them up and voting on them. By the time we get to vote on it, we are slowing things up. I have another amendment we can move to, then.

Mr. BIDEN. Mr. President, I think----

Mr. BIDEN. Good. I urge the amendment.

Mr. BIDEN. Mr. President, in response to the leader's suggestion that Senator Hatch and I go off, I am always happy to go off with Senator Hatch. What I would like to suggest is that in the meantime we move on an amendment that the President wants in this bill, the wiretap amendment, while he and I are off. We can continue to make progress. I just think we should debate it in case we do not even get close.

Mr. BIDEN. The Kerrey of Nebraska amendment 1208? Mr. Kerrey exhausted his argumentation on it and is ready to vote on it.

Mr. BIDEN. What was the pending business prior to us going into morning business? [[Page S7749]]

Mr. BIDEN. I understand that that is an amendment relating to firearms. And that would, relating to the list of the 16 amendments, make it five of them relating to firearms, including the one Senator John Kerry filed. The point being, it was filed almost 4 hours ago at the desk in accordance with the rule requiring first degrees to have been filed. The only point I want to make is there is not any subterfuge here that no one knows what is going on. We may not know what is going on because we did not go look, but it has been filed. It is there. We have, of the total of 16 amendments we are talking about, five of them relating to firearms. We are ready to vote. We can dispose of all these amendments including those five amendments I have just referenced. It can all be done and all finished before the cloture vote tomorrow if there is good faith to try to move. We are willing to enter into time agreements. What I would like to suggest, since we cannot enter into a time agreement on those five amendments, maybe while the Republican side is responding to Senator John Kerry's amendment--and a further parliamentary inquiry--I mean Robert Kerrey's amendment --what is the pending business?

Mr. BIDEN. I would ask, is there an amendment--or if they need time-- is there a John Kerry of Massachusetts first-degree amendment?

Mr. BIDEN. Parliamentary inquiry, Mr. President, if I may. I do not know whether I am making unreasonable work for the Parliamentarian here with this request. If I am I would be happy to be told so and I will withhold. Have all the amendments that are able to be attached to this bill prior to cloture--have they all been filed by 12:30 today?

Mr. BIDEN. I am told the amendment was filed at noon.

Mr. BIDEN. If it is not filed----