Joe Biden

Mr. BIDEN

Mr. BIDEN. Mr. President, at this moment, we are trying to clear the Smith amendment and several others. I am not in a position to clear any amendment at this moment. We are running that down right now. If the Senator could withhold for a few minutes.

Mr. BIDEN. Mr. President, I move to lay that motion on the table.

Mr. BIDEN. I beg your pardon. In the last paragraph?

Mr. BIDEN. For clarification purposes, and I think I will accept it, I want to read the entire amendment. It will take me one moment. It says: Section (a) reads, ``Section 842 of title 18, United States Code, is amended by adding at the end the following new section: Subsection 1. It shall be unlawful for any person to teach or demonstrate the making of explosive materials, or to distribute by any means information pertaining to, in whole or in part, the manufacture of explosive materials, if the person intends or knows that such explosive material or information will be used for, or in furtherance of, an activity that constitutes a Federal criminal offense or a criminal purpose affecting interstate commerce. Subsection B. Section 844 of title 18, United States Code, is amended by designating section (a) as subsection (a)(1), and by adding the following new subsection: (a)(1), any person who violates subsection (1) of section 842 of this chapter shall be fined under this title or imprisoned not more than 20 years, or both. That is the end of the amendment. Is that correct?

Mr. BIDEN. Reserving the right to object, is the language ``and'' or is it ``or''? If it is ``or,'' I have no objection.

Mr. BIDEN. Mr. President, yes, I was here. I was also here in 1973, unfortunately. I have been here, and I have been interested in this issue since then. That is why I am so happy the Senator is pushing it.

Mr. BIDEN. Mr. President, parliamentary inquiry.

Mr. BIDEN. Mr. President, the Senator who had objected to moving to consider Pressler amendment numbered 1204 has now withdrawn his objection. We, on the Democratic side, are prepared to accept Pressler amendment numbered 1204.

Mr. BIDEN. I ask my staff how many amendments we have on the Democratic side left? I am told we have 15 to 20. We can give a closer estimate, but I suspect at least a third of those amendments are place holders that are not likely to be moved at all. But one thing for sure, the list is decreasing, not increasing. I was asked by the Democratic leader if we thought we could finish this bill by tomorrow night. I believe we can finish it by tomorrow night, at least the amendments by tomorrow night. Hopefully we will not move into Wednesday on this legislation. I certainly want to move it. Thus far I have seen cooperation on both sides to move contentious amendments.

Mr. BIDEN. I hope so.

Mr. BIDEN. Mr. President, will the Senator yield for a moment?

Mr. BIDEN. Mr. President, there are two committee members that have a hold on this amendment. I am not sure it will not be able to be accepted, but I cannot clear it at this moment. Amendment No. 1204

Mr. BIDEN. Mr. President, I think that is true. Again, I do not think we are going to have trouble finishing the amendments. I think the outcome of the amendments may affect what one or two people on your side or one or two people on my side might end up doing. But my guess there as well is if we finish these amendments we will go to final passage and there will not be much in the way of that. But I cannot make a promise to the leader on that.

Mr. BIDEN. Mr. President, the majority leader today opened the session by criticizing the President and criticizing the Democrats for what he says are a flood of amendments that are holding up this bill. He said that if the Senate is not finished by tomorrow, we will pull the bill and go on to further matters. Let me point out that in all the years that I have been here--and the Senator from Utah has been over here a few years less than I have--one of the things delaying action on the bill today is we are coming off of a recess of a week and half and the Members are not back in town yet. That is one of the reasons there is delay. Let me first say, contrary to the majority leader's representations, we are not trying to delay this bill. Indeed, on the very same day we received the final version of the Republican bill--and we had started off, by the way, with the President's bill. The President introduced a bill, or had 3 Members introduce the bill on his behalf. Senators Kohl, Specter, and myself met with the President at the White House. This was a bipartisan group, including the Republican leadership. We were under the impression that the President's bill would be the bill from which we worked. The Republicans, as is their right, introduced their own bill. One of the problems is that we did not see that bill until toward the middle of the afternoon the day that we went out of here, I think, or maybe the day before we went out. People had not had a chance to read the bill. Notwithstanding that, the very same day we received the bill, we agreed to a finite list of amendments. We did not wait around. Once we calmed everyone's concerns--we heard about terrorism, civil liberties, new actions, and everyone from folks who view the interests of the NRA as paramount, to folks who view the interests of the civil liberties community as paramount--everyone wanted to make sure they knew what was in that bill. Notwithstanding that, we ended up with a finite list of amendments which we have now. No doubt that list would have been shorter from the beginning had the Democrats had any reasonable opportunity to review the Republican bill before it was brought to the floor. Now, having worked hard over the recess, our staffs having worked hard, primarily, we have limited the number of amendments we need to offer from our side of the aisle, and effectively cut the list by more than half. There is no evidence of any intent to delay the bill. And while talk of delay and the need for cloture motions may be good politics, it has nothing to do with the reality of the work before the Senate. The reality is that we are addressing an important topic that deserves serious--not token, but serious--consideration by this body. That is, the threat of terrorism from both at home and abroad. That threat is real. Bombings at the World Trade Center 2 years ago and in Oklahoma City 2 months ago are proof positive of the need to strengthen our responses to this threat. Does not this threat deserve more than 2 days of the Senate's time? It seems to me that while we all want to move forward, we should also want to make sure that we do the job right. The President has sent two strong terrorism proposals to the Congress this year in responding to two terrible bombings on American soil. His proposals contain many needed reforms to enable law enforcement to better investigate and prosecute terrorist acts. The Judiciary Committee and its Terrorism Subcommittee held a number of extensive hearings on the President's proposal over the last 6 weeks. Many issues have been discussed, debated, and drafted into legislative language. The Republicans have put a bill together, drawn in large measure from the administration's proposal, and much of which is supported by both sides of the aisle. Unfortunately, the Republicans fail to include in their bills several proposals to give law enforcement modest but [[Page S7674]] needed new authority to fight terrorism in the areas of wiretaps, taggants, and military assistance in cases of biological and chemical terrorist acts, just to name three. There will be amendments to address these subjects, and the amendments are needed to make this bill a truly effective tool to fighting terrorism. Several of the amendments have been identified, and several of them have already been offered. The suggestion that they are meant to delay this bill is an obvious attempt to shift focus from the fact that Republicans oppose strengthening the hand of law enforcement against terrorists, the way the President's proposal is opposed to any attempt to delay. In addition, the Republicans included several provisions in their bill that some of Members believe are ill-drafted and are inappropriate as part of this bill. We have several amendments to modify these provisions, but this is a Republican bill. Again, the amendments are identified and they have not and will not be offered to delay. They will be shortly offered. They will be voted on. They are not vehicles for delay. Moreover, I note that the Republicans have identified a number of amendments as well. As I understood from the list before we went out last week, the Republican Members of the Republican Party suggested they had 32 amendments--32 amendments. Now, maybe some of those were in response to what they anticipate to be amendments from Democrats. Democrats have amendments that were put forward in anticipation of what they thought the Republicans were doing. Much of this, I think, will fall away. Putting this in perspective, if there is delay going on--and there is not delay going on--32 out of 40-some amendments or 70, whatever the number was that were listed last week, are Republican amendments. In all the talk of delay by Democrats over habeas corpus reform, the unanimous-consent agreement under which we are operating identifies 4 Democrat amendments on habeas corpus and 4 Republican amendments on habeas corpus. We have all been around here long enough to know Senators do not agree to a unanimous consent agreement limiting the number of amendments that can be offered on a subject that is allegedly the reason for the delay on the bill. There are four amendments offered by Democrats, four amendments offered by Republicans. I am sure we can get time agreements on all those amendments at some point along the way when they are proposed. That is it. I might add, by the way, if my Republican friends had wanted to move on this terrorism bill quickly, all they had to do was leave habeas corpus off this. It would not have attracted all these other amendments. We could have put it on their crime bill. They have a crime bill they want to push. We have plenty of time for that, instead of dealing with this issue. It is true that delay on death penalties being imposed could have a perverse effect, once we identify and convict the people responsible for the bombing in Oklahoma City. That is prospective, way down the road. We will have Democrats--not me, but other Democrats--who will stand up here on the floor and argue that because we have not done more to deal with the ability of people to get explosives, because we have not dealt more restrictively with the people and the ability of people to get ahold of weapons, because we cannot deal with certain bullets that can penetrate vests, that kill police officers, because they have not done that, they hamper our ability to deal with terrorist acts. That is true. I plead with my Democrat and Republican friends, keep that stuff off this bill. Move forward on the essential elements of what the President said and what we all agree is needed to enable the FBI and the law enforcement agencies, federally, to be able to have the manpower as well as additional legal authority to both infiltrate, identify, arrest, prevent--hopefully--prevent future terrorist acts, whether they are domestic or foreign inspired. That is not where we are. No matter how much it made sense to do it that way, it does not make a lot of sense for me to spend much more time talking about it other than to put in perspective what has happened here. We could have finished this bill a long time ago. The fact of the matter is that a clear decision was made to take a very important part of the Republican crime bill, their essential elimination of Federal habeas corpus, and drop it on this bill. We could probably settle this whole habeas corpus matter very quickly, the Senator from Utah and I. The only effect habeas corpus can possibly have in this bill is Federal habeas corpus. We have an amendment to limit their proposal to Federal habeas corpus cases. Let us go ahead and do that and drop all Federal habeas corpus amendments, vote on that one. That is the only thing that is arguably related to Oklahoma City. Nothing else has anything to do with Oklahoma City, zero, zero. Nothing else has anything to do with this legislation. This is Federal legislation dealing with terrorist acts. That is Federal court. That is Federal prosecutors. That is a Federal conviction. So let us deal with Federal habeas corpus, not State habeas corpus. This is a sham. I think we should change habeas corpus. I have been trying to change habeas corpus, differently than my friend from Utah has, for the last 8 years. We have battled over it, and it is a legitimate and serious, intellectual, political, and criminal justice issue but it has not a darned thing to do with this. So if we want to end all the delay--and there is no delay in terms other than time consuming on each of the amendments--let us just have the debate on that issue. That applies to this legislation. None of the rest does. The point I want to make here, and I am probably overmaking it, is that there is no delay. There is no delay. We have agreed to the amendment. We have limited the number of amendments that can be brought up. We could further eliminate a lot of those amendments, I am sure, if we could agree on focusing on international and domestic terrorism and we could move on. But one thing for certain, this issue warrants serious consideration--serious consideration. I note the Republicans do not think their 32 amendments are frivolous. Now I doubt any of these amendments, Democrat or Republican, are designed as delaying tactics. I expect we can work many of them out and we can proceed on the rest. But I believe very strongly that our job involves offering relevant amendments to make the bill better and debating them fully and reasonably. Again, terrorism is not a trivial matter, as we all know. The issue is as vital as it is complicated. Let me just give one example how complicated it is. I will bet that 90 percent of the American people would have guessed that when Joe Lieberman, Senator Lieberman of Connecticut, and I brought an amendment to the floor at the request of the President last week that said we want to give the FBI the same power to use wiretapping devices and wiretapping under the circumstances that we presently allow them to investigate organized crime to organized terrorist threats, I will bet 90 percent of the American people would have thought everybody in this floor would vote for that--especially the Republicans. They talk about law and order all the time, like Democrats do these days. And what happened? We voted on it and it lost. I offer that as a simple example of what is so complicated about this issue. People are beginning to understand when we deal with people's constitutional rights and the fourth amendment that maybe it is better to err on the side of being very cautious in the power we give the police. I have always been one to be very cautious. But I thought, since we had the ability to do to organized crime what was proposed by Senator Lieberman and in the President's bill, we ought to be able to do that with terrorists. But, guess what, an overwhelming majority of my Republicans friends did not think that made sense. I do not criticize them for that point of view. I just offer it to point out how complicated it is. I bet they have trouble explaining that back home. I do not suggest that their action was wrong or had any motivation other than they have a heightened sense of concern about the use of wiretaps. I respect that. [[Page S7675]] But guess what, this is not as simple as the majority leader makes it sound. If it were simple, that would have passed like a hot knife through butter here. But it did not. If we could understand how a majority of Republicans do not think we should be able to go after terrorists like we do the mob, then we ought to be able to understand that this is a complicated issue. It is important to get the bill right. Again, terrorism is not a trivial matter. It is vital, as vital as it is complicated. And we have to give law enforcement the tools it needs, even while we maintain protecting our constitutional rights. Now, look, just to give an example, we are going to have an amendment here shortly that is another wiretap amendment. I will give this as just one example. That wiretap amendment, if it passes, will allow the Attorney General, the Federal Government, to be able to do roving wiretaps. That is the second amendment. That says, if you go to a judge and say, ``Judge, we have probable cause to believe John Doe is committing or committed a felony under the existing title 18 of the United States Code that allows us to ask for a wiretap and we want to tap John Doe's phone,'' if the court concludes there is probable cause, then in fact what we do is we go along and we say: All right, the judge says that he will allow a wiretap. Generally what happens is you get a wiretap for a specific phone in John Doe's office or John Doe's home. But lots of times what has happened is that John Doe may figure he may be being tapped because he knows he is doing something wrong. He knows he is trying to avoid detection. So he may walk to the corner phone booth and use the corner phone booth all the time. Or he may go use the phone in his sister's home. Right now the current authority for what are known as roving or multipoint wiretaps, or wiretap orders--a provision was proposed by the President, but not included in the Republican substitute, that would allow this kind of multipoint order, multipoint wiretap to be used. Multipoint wiretaps allow law enforcement officers to obtain a judicial order to intercept the communications of a particular person, not just for one specific phone as with most wiretap orders, but on any phone that a person may use. A recent prosecution will help illustrate how the multipoint wiretaps work. In this particular 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, public phones outside 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 these phones. Any time 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 19 tons of cocaine that were seized. The wiretap on his phone would not have yielded much at all, but they identified all the phones around this guy's neighborhood because they watched him. They watched the pattern. He would walk out of his house and go to a telephone and use that phone. The next time he would use one two streets down from his home, and then four streets, and across the street, and in the drug store across the street. So they got an order for a multipoint wiretap. And they were right. They got the order through a judge. Under the 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 amendment the President wants, and Senator Lieberman will propose on his behalf, would allow a multipoint wiretap where the defendant's conduct has the effect of thwarting surveillance regardless of whether or not the Government can prove the defendant's intent. Keep in mind they already have a guy they identified as the subject of a legitimate wiretap in his own home. And there is probable cause to believe this guy is doing something bad that exists as a crime under the law that you can get a wiretap for.

Mr. BIDEN. Mr. President, if I may--and I thank the Senator for her invitation for me to speak to this as well--we have three slightly different points of view here. Let me make clear what I would like to see avoided and what I would like to see accomplished. Using specific examples and hypotheticals is not always the best way to do it, but it seems to be the only way I have available to me to do it at this moment. None of us wants to have the publishers of World Book Encyclopedia indicted because they, in their World Book, tell you how you can make a bomb. You can go to a public library and you can find out how to build a nuclear device. It is a lot more complicated than building a light bulb bomb, but you can find that out. The purpose, the knowledge or intention of the publisher of World Book Encyclopedia or any other publication is in all probability not the same purpose as that of the publisher of the Terrorist Handbook. But for the purpose of Lady Justice, blindfolded, weighing her scales, it is hard to tell the difference sometimes, other than looking at the person or the organization that is publishing the material, to determine their intent. And we do not want courts getting into that kind of business. I do not think the presiding officer wants that to happen, nor do I, nor do I think anyone does, although I sure would like to be able to capture those folks who issued that handbook. So the Senator has narrowed her language, I think appropriately, to say ``know or intends.'' Let me tell you why I think ``know'' makes sense to be in there. If, for example, that gruesome example that the Senator gave from the internet, where somebody puts on a bulletin board how to make a terrorist device, a bomb, and then someone writes back and says, ``O Great One,'' I am paraphrasing, ``I want to kill Zionists in the Government. Tell me more. Feed me.'' Or whatever the terminology was. The original publication of that information on the bulletin board on the internet may or may not meet the standard of having known the information was going to be used for a criminal purpose, or may or may not meet the standard of having intended that it be used. But it seems to me it is pretty clear that when that idiot writes back or punches in his code and name and says, ``O Great One, I want to kill people, tell me more,'' if the original person who put the information up on the bulletin board said, ``All right, Swami, here it comes. If you really want to get Zionists, here is how to do it,'' it seems to me at that point the person knows that the information he or she is disseminating is intended for a criminal purpose. The Senator from California said there are some stores, some retail outlets that sell the handbook. Or you can write away to get the handbook. If I walk in to you and you are selling the handbook, you have the handbook and I say, ``Ma'am, I would like to buy a handbook that would teach me how to--do you see the cop down there in the corner? I want to put a pipe bomb in that trash can where he stands every morning from 8:30 to 9. I want to blow that SOB up.'' And you say, ``I have just the thing for you,'' and you walk over and you hand him the handbook, it seems to me you knew the information that is available to you to do something terrible, kill that policeman standing at the corner. It would be awfully hard to prove, though, that, if you sold that handbook to me, you intended for me to kill that policeman. You could know I was going to use it to kill someone without having intended for me to kill someone. Are you with me? So my concern is, if it gets even narrowed further to say only ``intends the information to be used in a criminal enterprise or criminal act,'' then it is so narrow that you are not going to catch in that net people who I think we should catch. I have been, for the last 23 years, always listed as one of the two or three or four people most protective of the first amendment. You know, all these rating organizations that rate us whether we are conservative, liberal, good, bad, or indifferent? I am always, along with Senator Leahy and a few others, listed here as one of the staunchest defenders of the first amendment. So I am not looking to broaden the net the Senator wishes to cast. But it seems to me if you narrow it so much so that you only use the word ``intend,'' you do not get the circumstance where I know that the information I have at my disposal as to how to build a light bulb bomb or any other kind of bomb, I know why you are seeking the information. You have told me. You tell me, ``I want to know how to make a bomb out of Gerber's baby peaches. I want to know how to do that. Teach me, oh Great One.'' You say, ``I've got just the answer for you. Here is how you do it.'' It seems to me that does fall beyond the purview of first amendment protection. It seems to me it is narrow enough and specific enough that it warrants to be made unlawful. And it seems to me that it is not at all inconsistent with what the fifth circuit and other courts have said relative to the standard required on the part of the person disseminating the information. So in truth, you might also be able to get that very person on a conspiracy charge. You might not even need this statute. My friend, who is truly--we use this phrase too frequently around here, and it does not always apply, but in this case it does. My friend, who is learned in the law could stand and say, ``Well, all right, Joe. I am not trying to eliminate the ability to nail the person who is knowingly participating in an unlawful activity. We can already do that under a conspiracy statute.'' Practically, that is true. But I would argue that including the word ``knows'' as well as ``intends'' here does no damage to the first amendment, and makes the case if not easier, equally as able to be pursued as a conspiracy theory would be. This is more direct. So my friend from Utah and I have been, the first 15 years of our working together, not always on the same side of these civil liberties arguments. And it is truly--I mean this sincerely--a pleasure to be on the same side of these arguments with him these days. I do not by that in any way imply a change in his motivation at all. I think things have changed, and as the troubles in society, the maturation process, has applications of old principles to new problems. So I am not being facetious when I say I welcome it. But I respectfully disagree with him here. I will not object to the Senator from California taking out the word ``knows.'' But I would suggest that her test, her intended purpose, is best served by saying if the person intends or knows that such explosive material or information will be used for or in furtherance of an activity that constitutes a criminal, a Federal criminal offense, or a criminal purpose affecting interstate commerce, I think keeping only two words ``intends'' or ``knows'' is totally appropriate, and I would support that. But it is obviously her amendment. If she is persuaded by the reasoning of the Senator from Utah, I will not object to it. I thank the Chair. I yield the floor.

Mr. BIDEN. I will be happy to.

Mr. BIDEN. I do not mean yield to the issue, but yield temporarily on the floor. Let me ask the Senator somewhat of a rhetorical question. She points out the entirety of what she spoke of. From my perspective, her historical analysis is accurate. I remember at the time being dumbfounded, quite frankly, that the chemical industry, a large chemical industry in Delaware, and others would not push hard for these actions to be taken. I mean, I just assumed, naively, that this would be something everybody would be for. There is one argument that can be made in opposition to what we are trying to do and I think we should state it. That OTA study, Office of Technology Assessment study, said that there was only one possible exception to the circumstance under which adding a taggant might diminish the safety, and that was with regard to smokeless powder. The Senator pointed out that back as early as 1973, the NRA pointed out that they were concerned about people who were muzzle loading antique guns and using smokeless powder to put them in a position to be able to use the guns. Probably we could have settled that matter then but it turned out that, whether the NRA was concerned about that or not--and I will not make a judgment about that--it ended up being the initial device used, the wedge used to block anything from happening. It is my understanding from my discussions with the White House, with the Justice Department, my staff and others, that when I introduced the President's bill, when Senators Kohl and Specter and I introduced the President's bill containing this provision, that we did not intend--the White House did not intend, the Justice Department did not intend--to include within the definition of explosive, smokeless powder. The ATF indicates that they do not include that in their definition of explosives. And I would think that--I would like to ask the Senator whether this is not her understanding as well, that we would be willing to make it very clear in the record that our definition--your definition of explosives does not include smokeless powder.

Mr. BIDEN. I would encourage the Senator to proceed. I would ask her permission, when we work this out, whether I could interrupt her at that point.

Mr. BIDEN. I thank the Chair and I thank the Senator.

Mr. BIDEN. Mr. President, I suggest the absence of a quorum.

Mr. BIDEN. I have no objection. [[Page S7694]]

Mr. BIDEN. Mr. President, let me say that the Senator from California never ceases to amaze me. I say that with genuine respect. When she zeroed in on this problem when Senator Kennedy came to the hearing and presented a 60-, 70-, 80-page document--I forget how long it was--of information that the staff had pulled off the Internet for him on how to do these things, one of the things that I admire most about her is her incredible common sense. I remember her sitting there looking at us and saying, ``You mean you can do this? I mean, why are we allowing this?'' All of us who were supposedly hopefully good lawyers all looked and said, ``First amendment problem, Senator.'' And we all did say that. We all knew because of our reverence for the first amendment. Those of us who are conservative, liberal, and moderate alike all said, ``First amendment problem.'' We all kind of went on to other things. As she always does, she went back to her office, and I am sure she turned to that able staff member next to her and said, ``Wait a minute, there has to be a way to do this. There has to be an answer to this.'' As usual, her instinct is almost always right. And when I have dealt with her, it has been unerring. Not being a lawyer, she went out and got some fine lawyers and said, ``How can I write this thing because I, Dianne Feinstein, don't want to amend the first amendment either, but I do want to deal with this foolishness.'' [[Page S7687]] She did it. I compliment her. And remind me, if I ever forget, never to underestimate her. She always gets it done. We are all better for it. I again congratulate her. We have no other amendment on the floor at the moment. What I would like to do, unless someone wishes to bring up an amendment, I would like to because I was not here when the Senator from California spoke on her first amendment, the taggants amendment, and I would like to take a moment. Amendment No. 1202 If anyone has any other thing to bring up, I would be happy to yield. I rise at this moment to support the amendment of my friend from California on taggants, if I may, because we are going to be voting on that I think around 6 o'clock. One area we did not address in the legislation before us was the issue of taggants. The President wanted to see it addressed, and I did as well and spoke very briefly with my friend from California and encouraged her to move the amendment on taggants. I feel it is very important in the battle against terrorism to enhance our ability to identify, following detonation, the source or origin of the explosives used in an act of violence against our fellow Americans. Key Federal law enforcement officials recognize that to provide for enhanced tracing capabilities is a logical and, I would argue, overdue response. The administration included a tracing provision in their antiterrorism proposal, and it was section 803 of S. 761. Now, I want to make it clear to those of our colleagues who may be listening in their offices, I am not inadvertently substituting the word ``tracing'' for ``taggant'' because that is what this is all about. We want to be able to trace the manufacture of the material used, not for purposes of prosecuting the manufacturer, unless the manufacturer violated the law intentionally in to whom they sold the material, but in order to be able to trace the person who purchased the material which would enhance our ability to find out who detonated the bomb. The provision authorizes the Secretary of Treasury to promulgate regulations requiring taggants to be added to explosive materials. Now, the Republican bill, however, omits this key provision. Instead, the Republican bill calls for no action, only more study. I would also note that not only does the Republican bill choose study over action but, even worse, their bill calls on the Justice Department to study this issue. Now, we all know that jurisdiction over these issues and the real expertise related thereto is in the Treasury Department. Let us not duplicate effort. Let us not duplicate bureaucracy. Let us think of the taxpayers, not the pet peeves of some special interest group because they do not like the Treasury Department. The Treasury Department is the outfit that has been dealing with this issue and explosives for time immemorial. The Justice Department is not. It does not have the expertise. So I would suggest that is not the place we should look. Now, taggants are tiny plastic, as they are referred, sandwiches with different color stripes that are added to explosives during the manufacturing process. Because these taggants are left after the explosion, they can be used to identify the source of an explosion. And that is the source of the material--where it was purchased. In other words, these identifiers, these little plastic sandwiches, as they are called, different colored stripes are put into the explosive when it is being manufactured, legitimately manufactured. We are not talking about some back-room operation. These are legitimate explosives. These are legitimate materials made by legitimate companies for legitimate purposes. You add at the time of their manufacture these little colored strips so that when the explosion goes off, you are able to go into the area where the explosion took place and by use of detection means find these taggants. These taggants--this is my phrase; I have never heard anyone else use this--are a little bit like that little bar code on the bottom of everything you buy in the grocery store. The checker just runs it through a scanner. They can identify what stock it was, what date it was made, where it came from, what part of the store it was in, how much it cost. It is the same principle here. We want to be able to essentially run the residue of that explosive material through a scanner, in effect. And you are able to say OK, the material used in this bomb was manufactured at such and such a time, such and such a batch, et cetera, and work your way back with the intention of not going after the manufacturer but going after the person who purchased it. Now, it may be the person legitimately purchased it, and we find out it was purchased for a construction operation and it was put in, properly stored in a locked vault and that you find out the vault was not broken into but that on the job it turned out a couple pieces were missing. Well, then you have the investigative tool to narrow it down. Maybe then you look at the people who took the explosive out and were legitimately working on the job. Maybe it turns out to be one of them. It was not them. They may say, well, it was only 20 minutes it was not here. And there was a guy wearing a red cap that came by. It is investigative work. It merely gives, but significantly gives, an opportunity to law enforcement agencies to begin to trace, backtrack, until hopefully you find the person who was the person who purchased and used this material. Now, to use a practical example of how even small pieces of evidence are vital, consider that the vehicle identification number on the exploded remains of a rental truck that was used to blow up the Federal Building in Oklahoma City was the critical piece of evidence that gave Federal law enforcement a critical lead on the bombing suspects. There was a taggant in effect on that vehicle in an ID number on it. Where would we be if we had not required an ID number on that vehicle? We would be nowhere. You would not have been able to go back to find out from where that vehicle was rented, who walked in and rented it, what they looked like, what their description was and then trace it back to the guy who gets arrested almost incidentally on a highway going out of Oklahoma City the day of the bombing. Very important material, a tiny little thing. You would say, well, wait a minute. That truck was blown to smithereens. This just goes to show you the investigative capability of the people there. The axle--I believe it was an axle--on which this identification number existed was found. They knew to go and look at that ID number. Once they found it, they could begin the tracing process. In fact, it was the employees of the rental agency they traced this back to who provided much of the information necessary to create the composite sketch of the suspect initially known as John Doe 1, whom we now know as Timothy McVeigh. Now, taggants work much in the same way. The taggants would give an indication where the explosives were purchased. Not only does that lead law enforcement to a sales clerk who might have provided a description of the terrorist, but this information may also be key, and perhaps the only physical evidence that a prosecutor can use, to nail the defendant to the crime. If there were taggants in the explosives that were used, you would be able to do the same thing--and they were recovered. You might be able to go back and find where the material that blew up the-- and that was fertilizer added with some chemicals and the like. You may be able to go back and find out where that fertilizer was sold and you may find the very same thing. The clerk says I remember selling that fertilizer to the following person, and you do a composite sketch. Again, it is a strong piece of evidence. Now, my colleagues on the other side of the aisle will argue that we should study this issue more closely. But that means only one thing: More needless delay. The potential effect of taggants has been highlighted in a study that was conducted in the late 1970's when the ATF seeded a very small portion of explosives, 10,000 pounds, with taggants. We had this debate, I might add, when I first came to the Senate in the 1970's, and we were told, no, it may be a destabilizing element in the manufacture of the material; it may be used for purposes on the part of law enforcement to do bad things, et cetera. But we agreed that Alcohol, Tobacco, and [[Page S7688]] Firearms could do an experiment. So they went to a manufacturing site, and they tagged 10,000 pounds of explosives. They put in one of these little colored strips, these sandwiches. Now, despite this relatively small amount--and that probably represented less than--I will not even guess--one one-hundredth percent of all the explosives sold that year. It was infinitesimally small in this little experiment compared to the universe of all explosives sold that year. For example, my staff is telling me 4 billion pounds of explosives are sold per year--4 billion pounds. This was 10,000 pounds that was tagged as an experiment. Now, notwithstanding that, that one experiment back in 1978--and the Senator from California knows this--was very instrumental and effective in helping solve a bombing incident in the State of Maryland. Now, the idea that we did this one experiment--and it was just pure luck, I suspect, that that 10,000 pounds was purchased. But what happened was there was a car bombing, and but for the fact that the explosive used was part of that 10,000-pound batch that was the only batch out of four billion pounds sold that year, the perpetrator of the act was unlucky enough to purchase something from that batch. And that was the thing that led to the identification and conviction of that individual, with little or no possibility of their ever having found him but for the taggants. I suggest that the study by the Office of Technology Assessment on taggants is also a key source of the safety and efficacy of taggants. There was this experiment and the study by the Office of Technology Assessment. The Office of Technology Assessment found that ``identification taggants would facilitate the investigation of almost all significant criminal bombings in which commercial explosives were used.'' Now, safety tests performed by the Office of Technology Assessment found taggants to be compatible with the explosives covered by this amendment. By compatible, I mean they did not diminish the efficacy of the explosives, No. 1. So it blew up just as big as it would have blown up without the taggant. It did not diminish its capacity. Second, it did nothing to destabilize the explosive. It made it no more or less dangerous to deal with that explosive. One of the arguments we will hear used is that if you add these taggants, they will have the effect of destabilizing this explosive material, making it more dangerous to handle. There is no evidence of that, according to the Office of Technology Assessment. Third, they also found that it did not, in any way, affect the manufacturer of that material. That is, placing the taggants in the material as it is manufactured did not diminish safety in the production of that material. For 15 years, law enforcement in Switzerland have recognized taggants as an important piece of the puzzle in solving crimes involving illegally used explosives. Under this amendment, the Secretary of the Treasury will determine how we can best utilize this technology. Then we will move forward and use the taggants after that assessment has been made by the Secretary of the Treasury. And that is key. We should move forward in this area now, and we should do so without further delay. Now, a study on common and precursor chemicals, another aspect of the amendment I want to touch on briefly, is the requirement that the Secretary of the Treasury study and make recommendations regarding: First, the ability and feasibility of rendering inert those common chemicals used to manufacture explosive materials and, second, the ability to impose controls on those precursor chemicals used to manufacture explosive materials. Let me make it clear, this is a separate issue. There are two issues here that the Senator from California has pursued that were in the President's legislation. One, this notion of, in effect, seeding an explosive with a color-stripped material so that when the explosive goes off, you can find the material and trace back the place where it was manufactured and sold. That is the taggant. Now, there is a second issue, and that is chemicals which are sold--I will use this phrase--over the counter. These are chemicals you can go and buy, but they can be used for destructive purposes, although their intention is for constructive purposes. Fertilizer is to help things grow, not kill things or kill people. Now, I said this before, and I say it to my friend from California here. I was at a conference with a group of U.S. Senators, Congresspersons, and officials from the United Nations the day this god-awful explosion in Oklahoma occurred, and we literally interrupted the conference. One of the conferees was Gen. Michael Rose, a general in the British Army, who was the UNPROFOR Commander of Forces in Bosnia up until about 3 months ago. General Rose and I were sitting next to one another discussing the situation in Bosnia. What happened was that we adjourned when we heard this horrible news and went to the nearest television. The first scene all of us saw--a dozen of us Congressmen, Senators and generals--was a visual image of the Federal building and the confusion surrounding it. You could see how the Federal building was not only blown up, but it looked like it was cut away in the front. I was sitting next to General Rose. I could not hear what was on the television in this hotel lobby. We just saw the picture. He looked at me and he said, ``That bomb is a fertilizer bomb. That is what destroyed that building.'' My staffer reminded me that he looked and he said, ``That is an ANFO bomb.'' I wondered, what in the devil is he talking about? How does he know this? All we can see is this picture on television. He had not heard any more about this than I did. We just walked out of this conference. He went on to explain to me how when ammonium nitrate is added to fertilizer in a certain formula and way, it produces an explosion whose fingerprints or characteristics are like the one we saw. I was amazed. I was complimenting him, because about 3 minutes later a reporter comes on and says, ``We have just learned that this was a fertilizer bomb.'' I did not know how he knew this. He went on to explain to us that it was his experience when he was a commander in Northern Ireland with the use of fertilizer bombs by the IRA. He went on to point out that England had changed the law relative to the sale of fertilizer to Ireland and the type of fertilizer and the amount of nitrate that could be in the fertilizer, and he went on and on about it. And he said something fascinating. He said that it has had three interesting effects. First, the environment is cleaner. There is not as much nitrates left over in the environment when it is applied to the soil. The water is cleaner and the bombs are fewer. So that is when I became interested in how do you take these materials that seem to me to be totally innocent in terms of the ability to cause damage and render them inert--inert in the sense that they can only do the thing for which they were manufactured, which is to help things grow, as opposed to kill people. One of the ways to do that is to look at it and study it and make recommendations regarding the feasibility of adding materials to the manufacture of these chemicals and precursor chemicals that will not diminish the effectiveness of the chemical but render them incapable of generating the explosion. The purpose of this provision is very simple, and it should be clear to every American in the wake of the Oklahoma City tragedy. What has become evident in the past weeks is that in America today, nearly anyone, as our friend from California has pointed out, can acquire the ingredients, all of which have other legitimate uses, and build a bomb. The bomb in Oklahoma was a mixture of ammonium nitrate fertilizer and diesel fuel. Ammonium nitrate can be purchased at almost any garden supply or hardware store, and when mixed with a fuel, it can be classified as a high explosive. One way to desensitize ammonium nitrate while still preserving its effectiveness for its intended use would be to mix a nonexplosive chemical such as lime, calcium carbonate, into the product, to render it inefficient for use as an explosive. Now, I think it makes overwhelming sense to suggest that a feasibility study be done and recommendations made as to whether or not, for example, lime can be added to ammonium nitrate, allowing the fertilizer to be as potent as it was before for the purposes of encouraging growth in the soil, yet rendering it incapable of being used as [[Page S7689]] a bomb when mixed with a fuel supply. This type of desensitizing is currently employed in England, as I said. Let me be clear, all this amendment does with regard to this point, all it does is require the Secretary to study the feasibility of such a policy being implemented in the United States. It is an unfortunate reality that individuals would take seemingly harmless--I might add, legal--products and devices and turn them into weapons capable of exacting the devastation and loss of life that we all saw in Oklahoma City. However unfortunate that may be, it is a reality nonetheless. The amendment of my friend from California is an effort to curtail the availability of products which can be used in this manner. Mr. President, I would like to make as a concluding point that I understand negotiations between Senator Feinstein and other interested parties on the other side are proceeding. Of course, I hope these discussions will be successful, but I strongly urge that the Senator from California not relent on the two essential aspects of her amendment. One, the taggants be able to be placed, by recommendation from the Secretary of Treasury, in explosives; and, two, that the study be undertaken that would determine whether there are ways that we can feasibly render inert the destructive capability of otherwise totally constructive precursor chemicals. I see the Senator from California is on the floor and seeking recognition. I yield the floor. Mrs. FEINSTEIN addressed the Chair.

Mr. BIDEN. As further evidence that we are not just arriving at this as a means of a compromise, it was never our intention to include smokeless powder. I would read from, as further evidence of that although we did not make it absolutely clear, I would read page 2 of the amendment, subsection (e), the bottom, second-to-the-last-line of the page. Tracer elements to be added to explosive materials under provisions of this subsection shall be of such character and in such quantity as the Secretary may authorize or require, and such as will not substantially impair the quality of the explosive material for their intended lawful use, adversely affect the safety of the explosives, or have substantially adverse effects on the environment. So we thought that we were dealing with this red herring by having the section requiring that the decision would have to be made that the tracer elements, the taggants, would not adversely affect the safety of the explosives. Since OTA indicated that there was a possibility of that with regard to smokeless powder, we did not intend that to be covered. But I would suggest--I know my friend from California who is leading this effort has probably had some discussions already with the majority staff and others about this. I hope we can reach a resolution on it. And I sincerely hope, coming from a State where agriculture is our single largest industry in terms of dollars and effect on the economy, and where fertilizers are used a good deal--hope no one would be fearful of explaining to the agricultural community that they supported a study to determine this. I cannot imagine the farmers in my State, very conservative, hard-working folks, would be opposed to a study being conducted to determine whether or not ammonium nitrate could have an element added to it that would not in any way diminish its efficacy on the land but would diminish its efficacy as an explosive component. I might point out--I might ask it, actually, in terms of a question. Is it the sponsor's intention that this merely be a study relative to means to render inert these components, precursors that can be used as bombs? And that if the study concludes that the only way it could be done would be to diminish the capacity of ammonium nitrate to do its job on the field, that we would not move forward? This is merely a study, is it not?

Mr. BIDEN. Mr. President, I was referring to the Pressler amendment renaming a Federal building. It is amendment numbered 1204. However, I have just been informed by the chairman of the committee of jurisdiction that he would like an opportunity to look at that. Therefore, I withdraw my request to act on Pressler amendment numbered 1204. What I am saying is we do not have an amendment to clear at the moment.

Mr. BIDEN. Mr. President, I would be prepared to move Senator Pressler's amendment regarding renaming the Federal building, if that is appropriate.