Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, obviously, in the brief time here I am not going to be able to say everything that comes to mind about the Senators who are retiring but to summarize a little bit of the information for the benefit of those who might be watching. When you have long, distinguished careers of Senators and they decide not to run for reelection but leave the body, there is a lot that comes to mind about their service. I think it is good to remind ourselves of just a few of these things because of the service they have provided, both to the people of their own States and to the United States. Don Nickles Starting, for example, with our colleague from Oklahoma, Don Nickles, he served both in the leadership of the Senate Republican Conference as well as chairman of the Budget Committee. The last 2 years of his time, during his chairmanship of that committee, he was deeply involved on behalf of taxpayers in saving literally hundreds of billions of dollars in taxpayer money that might otherwise have been spent but for his hard work in ensuring that we had the procedural mechanisms in place to object to excess spending. Second, ensuring that taxpayers could keep more of their money. Helping to get passed significant tax reform, especially during the first term of President Bush, the 2001 and 2003 tax cuts in particular, coupled with the tax cuts of this past year, has meant substantial savings for all American taxpayers. The marginal rate reductions accelerated in 2003, and the reduction in capital gains and dividend tax rates, have been a substantial reason that the economy has moved forward as quickly as it has. Senator Don Nickles was significantly involved in every one of those, and his leadership in tax policy is going to be sorely missed when he leaves the Senate. He got his start in Nickles Machinery back in Ponca City, OK, and he understood early on the lessons of how Government involvement in business could make it much more difficult to not only grow a business but to employ people and to contribute to the economy. It is one of the reasons, when his father passed away, that he began to understand how the estate tax can act in a pernicious way on American families when his business had to actually sell off part of its equity in order to pay the estate tax, to make it more difficult for them to stay in business, to employ the people they did, and do the work they did. He understood, therefore, from practical experience why we needed to reform the Tax Code, and he was instrumental in the reformation of the estate tax as well with the spouses' deduction, which was largely his work. There is so much more one could say about the efforts of Senator Don Nickles. He is a great friend of all of us. In addition to being very focused on getting the work done, he always managed to do so with a smile on his face and a slap on the back in a way that made it hard for people to disagree with him even when they didn't particularly follow his legislative agenda. Don Nickles will be very much missed in the Senate. He leaves, even after 24 years, at such a young age that he will be in Washington and around this country in a way to continue to have interaction with us. We all cherish that because of our friendship with Don Nickles. It is bittersweet that Don will be leaving the Senate, but we know after his significant contributions to this country he certainly deserves an opportunity to move on. Senator Ben Nighthorse Campbell

Mr. KYL

Mr. KYL. I ask unanimous consent to speak as in morning business for not to exceed 10 minutes.

Mr. KYL. Mr. President, I ask it be in order for me to speak for a couple of minutes as in morning business about some of our retiring Senators.

Mr. KYL

Mr. KYL. Mr. President, the water users and providers of Arizona have waited a long time for this day. The Arizona Water Settlements Act, S. 437, is the product of 15 years of negotiation, litigation, and more negotiation. Virtually every major water user and provider in central Arizona has devoted itself to the passage of this bill. In fact, S. 437 would codify the largest water claims settlement in the history of Arizona. The three titles in this bill represent the tremendous efforts of literally hundreds of people in Arizona and here in Washington over a period of 15 years. Looking ahead, this bill could ultimately be nearly as important to Arizona's future as was the authorization of the Central Arizona Project, CAP, itself. Since Arizona began receiving CAP water from the Colorado River, litigation has divided water users over how the CAP water should be allocated and exactly how much Arizona was required to repay the Federal Government. This bill will, among other things, codify the settlement reached between the United States and the Central Arizona Water Conservation District over the State's repayment obligation for costs incurred by the United States in constructing the Central Arizona Project. It will also resolve, once and for all, the allocation of all remaining CAP water. This final allocation will provide the stability necessary for State water authorities to plan for Arizona's future water needs. In addition, approximately 200,000 acre-feet of CAP water will be made available to settle various Indian water claims in the State. The bill would also authorize the use of the Lower Colorado River Basin Development Fund, which is funded solely from revenues paid by Arizona entities, to construct irrigation works necessary for tribes with congressionally approved water settlements to use CAP water. Title II of this bill settles the water rights claims of the Gila River Indian Community. It allocates nearly 100,000 acre-feet of CAP water to the community, and provides funds to subsidize the costs of delivering CAP water and to construct the facilities necessary to allow the community to fully utilize the water allocated to it in this settlement. Title III provides for long-needed amendments to the 1982 Southern Arizona Water Settlement Act for the Tohono O'odham Nation, which has never been fully implemented. Title IV creates a placeholder for a future settlement on the Gila River for the San Carlos Apache Tribe and reiterates the fact that titles I, II, and III do not affect the water rights claims of the San Carlos Apache Tribe or the claims of the United States on their behalf. For the San Carlos Apache Tribe and other Indian communities in Arizona that have not yet settled their water rights claims, this bill offers hope for the future. This bill creates a fund for future Indian water settlements in Arizona. In addition, through this legislation, 67,300 acre-feet of CAP water will be set aside for future Indian water rights settlements. The water needs of each Indian tribe in Arizona are particular to that individual tribe. Likewise, the contours of each Indian water rights settlement must be tailored to the needs of the tribe and the local communities that surround it. Through this bill we give those tribes, the Secretary of the Interior, and future Congresses a framework of water and funding that can be customized to meet the needs of each settlement. For now, this bill will allow Arizona cities to plan for the future, knowing how much water they can count on. The Indian tribes will finally get ``wet'' water--as opposed to the paper claims to water they have now--and projects to use the water. In addition, mining companies, farmers, and irrigation delivery districts can continue to receive water without the fear that they will be stopped by Indian litigation. All final issues between the parties or the United States have been resolved. In particular, the states of Arizona and New Mexico have negotiated the best way to address New Mexico's right under the 1968 Boulder Canyon Project Act, authorizing the CAP, to exchange CAP water on the Gila River. In summary, this bill is vital to the citizens of Arizona and will provide the certainty needed to move forward with water use decisions. Furthermore, the United States can avoid litigating water rights and damage claims and satisfy its trust responsibilities to the Tribes. The parties have worked many years to reach consensus rather than litigate, and I believe this bill represents the best opportunity to achieve a fair result for all the people of Arizona.

Mr. KYL

Mr. KYL. I am happy to yield.

Mr. KYL. Mr. President, I want to take just a couple minutes to engage three of my colleagues in a brief colloquy: Senators Inouye, Senator Akaka, and Senator Domenici, to inform our colleagues of an agreement that was reached in an effort to clear a group of bills that the Energy and Natural Resources Committee had worked on very hard and very long, for a long period of time, and have, in fact, cleared the Senate and been sent to the House, and to ensure that at some point next year, before August 7, a bill relating to native Hawaiians, similar to or the same as S. 344, would be considered by this body. We reached that agreement, which was embodied also in a letter from the two leaders to Senators Domenici and Inouye, who had inquired of that possibility, in which the leaders promised their best efforts to ensure that a native Hawaiian bill equivalent to S. 344 would be brought to the Senate floor for debate and resolution no later than August 7 of next year. I had told both Senators from Hawaii I would express publicly my personal commitment to assist in that effort to ensure that no procedural roadblocks would be thrown in the way of the consideration of that legislation, nor a final vote on it. I will indeed do that and encourage all of my colleagues to work with us toward that end. I thank Senator Domenici for his leadership on that large group of bills that were so important to so many Members of this body and for his work on this particular issue, as well as our good friends from Hawaii, Senators Akaka and Inouye, for their cooperation in helping us reach this resolution.

Mr. KYL

Mr. KYL. Mr. President, today the Senate is considering the conference agreement for H.R. 4520, the American Jobs Creation Act of 2004. I voted against this legislation when it was reported out of the Senate Finance Committee and again when it was approved by the full Senate, so I would like to explain why I am reluctantly supporting the conference agreement. I was a conferee for this conference agreement and am supporting it for four reasons. First, the legislation makes necessary improvements to the way the United States taxes foreign-source income. These changes are a good first step at rationalizing the way we tax U.S.-based multinational companies. Second, the conference agreement dropped many of the tax increases that were included in the Senate-passed bill that would have inappropriately raised taxes on many U.S. businesses. Third, Senator Grassley has committed to work with me on broad-based corporate tax reforms next year. Finally, I am supporting the conference agreement because it is important to come into compliance with our international obligations. The conference agreement includes some very worthwhile provisions. Most importantly, it reforms and simplifies the way we tax U.S.-based multinational businesses. Under current law, U.S.-based multinational companies are subject to a tax system that was designed in the 1960s, that we have failed to modernize as global business transformed and grew, and that has only been modified when Congress needed to raise revenues. As such, the system is inconsistent and inefficient and subjects U.S.-based companies to double-taxation, all of which put our companies at a disadvantage vis-a-vis their foreign competitors. The conference agreement fixes a number of these problems. First, the conference agreement addresses two very serious problems with our foreign tax credit system. The U.S. tax system is a worldwide system, meaning we tax the income of U.S. taxpayers no matter where it is earned. The problem with such a system is that income is double- taxed, once by a foreign jurisdiction and again by the United States. Because many other countries only tax income that is earned within their borders, U.S. companies face double-taxation while many of their foreign competitors do not. To avoid this problem, the U.S. gives taxpayers credits for taxes paid to a foreign jurisdiction, which are used to offset U.S. tax liability. If the system worked perfectly, the net result would be that corporate income is taxed one time at the U.S. rate of 35 percent. The problem is that the system does not work perfectly; there are so many restrictions on the ability to use foreign tax credits that, in practice, foreign earnings are often double-taxed. Further, under current law, unused foreign tax credits can only be carried forward 5 years, after which time they expire, resulting in permanent double-taxation. The conference agreement does two things: First, it eliminates many of the restrictions on using foreign tax credits by reducing the number of ``baskets'' that the different types of credits are segregated into from nine to two, making it much easier to use foreign tax credits. Second, the conference agreement extends the carryforward period to 10 years so that taxpayers have twice as long to use foreign tax credits before they expire. Both of these changes are very important and are a big part of the reason I am supporting the conference agreement. The conference agreement also reforms the ``interest allocation rules,'' which can have the perverse effect of making it more expensive for U.S. companies to build new U.S. facilities by restricting a company's ability to deduct interest payments used to finance the construction of such facilities. The conference agreement gives companies a one-time choice of how to allocate and apportion their interest expenses so that if a company elects the new ``worldwide fungibility'' approach instead of current treatment, interest expenses incurred in the United States would only be allocated against foreign- source income in certain restricted circumstances. This also makes it less likely that U.S. companies will have their use of foreign tax credits restricted, thereby alleviating the problem of double-taxation. Like the foreign tax credit reforms I mentioned earlier, the interest allocation reforms are another reason I am supporting this legislation. I want to express my disappointment with the centerpiece of this legislation, however. I continue to be concerned that the manufacturing deduction represents poor tax policy because it establishes for the first time a lower tax rate for one segment of our business community-- manufacturing--while continuing to impose the higher 35 percent rate on all other U.S. businesses. Sound tax policy should be fair and neutral and the manufacturing deduction is neither. I expect that this provision will cause a great deal of ``game-playing'' as companies strive to define as much of their activity as possible as ``manufacturing'' to more greatly benefit from the deduction. As a result, I believe that the Treasury Department is correct when it predicts that we will see an increase in audits and litigation as a result of this provision. I noted that, for the first time, Congress has established a bifurcated corporate tax rate system in this legislation. Non- manufacturing companies also create good jobs, contribute to our growing economy, and compete with lower-taxed foreign companies just like U.S. manufacturers, yet these companies do not see tax rate relief in this legislation. It would have been far better to have provided a corporate rate reduction across-the-board for all U.S. companies. This would have avoided the game-playing, would have been far simpler for taxpayers and the government to administer, and would have made the United States a more attractive place to do business. This last point is important. Our combined federal and state tax rate is 40 percent, while in Asia the rate is 30.4 percent, and in Europe the rate is 27.7 percent. Our trading partners have been aggressively cutting their corporate tax rates. It is time the Congress stop trying to set industrial policy through targeted tax preferences and confront our high corporate income tax rate directly. I urged my colleagues to take this approach, and while many of my colleagues agreed with me, this effort did not prevail. I predict that, in time, Congress will repeal the manufacturing deduction and replace it with a corporate tax rate reduction. Canada had a similar manufacturing deduction in place and found it to be so complex, subject to abuse, and such a source of tax controversies that Canada eventually replaced it with a lower corporate tax rate. Because of my serious concerns about the manufacturing deduction, I am pleased that Senate Finance Committee Chairman Grassley has agreed to work with me on a review of our corporate tax structure, including not only corporate income tax rates, but also on making the lower tax rates on dividends and capital gains permanent. I appreciate his offer and look forward to working with him on this important issue. The conference agreement drops some of the special interest tax provisions that were included in the Senate-passed bill. I am disappointed, however, that other tax subsidies, such as various tax subsidies for electricity production, were retained in the conference agreement. In this era of budget consciousness, I would much prefer to use scare revenue offsets to enact meaningful, pro-growth, broad-based tax reforms that will have a positive effect on the overall U.S. economy. While some of these provisions might be justifiable, we should always keep in mind that the purpose of our tax system is to raise revenue for the Federal Government in the most efficient means possible, and not to reward special interests. I firmly believe we should focus on broad-based tax relief that provides growth-oriented incentives. This would make our system of taxing business income far more efficient for the Federal Government and for taxpayers alike, and most importantly, it would foster greater economic growth and help businesses create jobs. The conference agreement we consider today largely provides the opposite result and thus accentuates the great need for tax reform. The President has expressed support for comprehensive tax reform and I fully intend to work with him on that project. This conference agreement is revenue neutral, which, in itself is not a bad thing, but should not be a prerequisite for tax legislation. Revenue neutrality means that there are as many tax increases as tax cuts, and we must be very careful about increasing taxes. I am pleased that in the conference committee we were able to eliminate several of the more troubling provisions we euphemistically refer to as revenue raisers, including the codification of the ``economic substance doctrine'' and the taxation of certain settlements, fines and penalties. Quite simply, these are tax increases--sometimes warranted, if we are closing unintended loopholes, but tax increases nonetheless. Congress should approve tax changes to improve the conditions of the economy and to leave more money with the taxpayers who earned it and should not be bound by strict rules of revenue neutrality. We must remember that tax cuts and spending are not the same and do not have the same effect on the economy or on the Federal budget. Tax cuts allow American families, business owners, and investors to keep more of their own money, which encourages economic activity. Increased economic activity brings additional tax revenues into the Federal government, thus improving our budgetary situation. Unlike tax cuts, new spending requires the government to take control of a bigger slice of the economy, which hinders economic growth. I encourage my colleagues to refuse to be bound to ``revenue neutrality'' for its own sake, but to pursue rational tax policies on their merits. Finally, this legislation repeals our export tax subsidy that was judged to be illegal by the World Trade Organization, WTO. While I have serious concerns about the commitments made by our negotiators that led to this result, the United States nonetheless must abide by the agreements we make. Repeal of the export subsidy will bring the United States into compliance with our international obligations and this will end the tariffs the European Union has imposed as a result of the dispute on many U.S.-made products, including products made in my State of Arizona. While I am supporting the conference agreement, I want my colleagues to know that I am very serious about my commitment to pursue policies that provide broad-based, pro-growth, supply-side tax incentives, rather than targeted tax preferences or misguided industrial policies.

Mr. KYL

Mr. KYL. Mr. President, as the primary drafter of Title I of H.R. 5107, I would like to make a few comments. After extensive consultation with my colleagues, broad bipartisan consensus was reached and the language in Title I was agreed to. I would like to make it clear that it is not the intent of this bill to limit any laws in favor of crime victims that may currently exist, whether these laws are statutory, regulatory, or found in case law. I would like to turn to the bill itself and address the first section, (a)(1), the right of the crime victim to be reasonably protected. Of course the government cannot protect the crime victim in all circumstances. However, where reasonable, the crime victim should be provided accommodations such as a secure waiting area, away from the defendant before and after and during breaks in the proceedings. The right to protection also extends to require reasonable conditions of pre-trial and post-conviction relief that include protections for the victim's safety. I would like to address the notice provisions of (a)(2). The notice provisions are important because if a victim fails to receive notice of a public proceeding in the criminal case at which the victim's right could otherwise have been exercised, that right has effectively been denied. Public court proceedings include both trial level and appellate level court proceedings. It does not make sense to enact victims' rights that are rendered useless because the victim never knew of the proceeding at which the right had to be asserted. Simply put, a failure to provide notice of proceedings at which a right can be asserted is equivalent to a violation of the right itself. Equally important to this right to notice of public proceedings is the right to notice of the escape or release of the accused. This provision helps to protect crime victims by notifying them that the accused is out on the streets. For these rights to notice to be effective, notice must be sufficiently given in advance of a proceeding to give the crime victim the opportunity to arrange his or her affairs in order to be able to attend that proceeding and any scheduling of proceedings should take into account the victim's schedule to facilitate effective notice. Restrictions on public proceedings are in 28 CFR Sec. 50.9 and it is not the intent here today to alter the meaning of that provision. Too often crime victims have been unable to exercise their rights because they were not informed of the proceedings. Pleas and sentencings have all too frequently occurred without the victim ever knowing that they were taking place. Victims are the persons who are directly harmed by the crime and they have a stake in the criminal process because of that harm. Their lives are significantly altered by the crime and they have to live with the consequences for the rest of their lives. To deny them the opportunity to know of and be present at proceedings is counter to the fundamental principles of this country. It is simply wrong. Moreover, victim safety requires that notice of the release or escape of an accused from custody be made in a timely manner to allow the victim to make informed choices about his or her own safety. This provision ensures that takes place. I would like to turn to (a)(3), which provides that the crime victim has the right not to be excluded from any public proceedings. This language was drafted in a way to ensure that the government would not be responsible for paying for the victim's travel and lodging to a place where they could attend the proceedings. In all other respects, this section is intended to grant victims the right to attend and be present throughout all public proceedings. This right is limited in two respects. First, the right is limited to public proceedings, thus grand jury proceedings are excluded from the right. Second, the government or the defendant can request, and the court can order, judicial proceedings to be closed under existing laws. This provision is not intended to alter those laws or their procedures in any way. There may be organized crime cases or cases involving national security that require procedures that necessarily deny a crime victim the right not to be excluded that would otherwise be provided under this section. This is as it should be. National security matters and organized crime cases are especially challenging and there are times when there is a vital need for closed proceedings. In such cases, the proceedings are not intended to be interpreted as ``public proceedings'' under this bill. In this regard, it is not our intent to alter 28 CFR Sec. 50.9 in any respect. Despite these limitations, this bill allows crime victims, in the vast majority of cases, to attend the hearings and trial of the case involving their victimization. This is so important because crime victims share an interest with the government in seeing that justice is done in a criminal case and this interest supports the idea that victims should not be excluded from public criminal proceedings, whether these are pre-trial, trial, or post-trial proceedings. When ``the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding,'' a victim may be excluded. The standards of ``clear and convincing evidence'' and ``materially altered'' are extremely high and intended to make exclusion of the victim quite rare, especially since (b) says that ``before making a determination described in subsection (a)(3), the court shall make every effort to permit the fullest attendance possible by the victim and shall consider reasonable alternatives to the exclusion of the victim from the criminal proceeding.'' It should be stressed that (b) requires that ``the reasons for any decision denying relief under this chapter shall be clearly stated on the record.'' A judge should explain in detail the precise reasons why relief is being denied. This right of crime victims not to be excluded from the proceedings provides a foundation for (a)(4), which provides victims the right to reasonably be heard at any public proceeding involving release, plea, or sentencing. This provision is intended to allow crime victims to directly address the court in person. It is not necessary for the victim to obtain the permission of either party to do so. This right is a right independent of the government or the defendant that allows the victim to address the court. To the extent the victim has the right to independently address the court, the victim acts as an independent participant in the proceedings. When a victim invokes this right during plea and sentencing proceedings, it is intended that the he or she be allowed to provide all three types of victim impact: the character of the victim, the impact of the crime on the victim, the victims' family and the community, and sentencing recommendations. Of course, the victim may use a lawyer, at the victim's own expense, to assist in the exercise of this right. This bill does not provide victims with a right to counsel but recognizes that a victim may enlist a counsel on their own. It is not the intent of the term ``reasonably'' in the phrase ``to be reasonably heard'' to provide any excuse for denying a victim the right to appear in person and directly address the court. Indeed, the very purpose of this section is to allow the victim to appear personally and directly address the court. This section would fail in its intent if courts determined that written, rather than oral communication, could generally satisfy this right. On the other hand, the term ``reasonably'' is meant to allow for alternative methods of communicating a victim's views to the court when the victim is unable to attend the proceedings. Such circumstances might arise, for example, if the victim is incarcerated on unrelated matters at the time of the proceedings or if a victim cannot afford to travel to a courthouse. In such cases, communication by the victim to the court is permitted by other reasonable means. In short, the victim of crime, or their counsel, should be able to provide any information, as well as their opinion, directly to the court concerning the release, plea, or sentencing of the accused. This bill intends for this right to be heard to be an independent right of the victim. It is important that the ``reasonably be heard'' language not be an excuse for minimizing the victim's opportunity to be heard. Only if it is not practical for the victim to speak in person or if the victim wishes to be heard by the court in a different fashion should this provision mean anything other than an in-person right to be heard. Of course, in providing victim information or opinion it is important that the victim be able to confer with the prosecutor concerning a variety of matters and proceedings. Under (a)(5), the victim has a reasonable right to confer with the attorney for the government in the case. This right is intended to be expansive. For example, the victim has the right to confer with the government concerning any critical stage or disposition of the case. The right, however, it is not limited to these examples. This right to confer does not give the crime victim any right to direct the prosecution. Prosecutors should consider it part of their profession to be available to consult with crime victims about concerns the victims may have which are pertinent to the case, case proceedings or dispositions. Under this provision, victims are able to confer with the government's attorney about proceedings after charging. I would note that the right to confer does impair the prosecutiorial discretion of the Attorney General or any officer under his direction, as provided (d)(6). I would like to turn now to restitution in (a)(6). This section provides the right to full and timely restitution as provided in law. We specifically intend to endorse the expansive definition of restitution given by Judge Cassell in U.S. v. Bedonie and U.S. v. Serawop in May 2004. This right, together with the other rights in the act to be heard and confer with the government's attorney in this act, means that existing restitution laws will be more effective. I would like to move on to (a)(7), which provides crime victims with a right to proceedings free from unreasonable delay. This provision does not curtail the government's need for reasonable time to organize and prosecute its case. Nor is the provision intended to infringe on the defendant's due process right to prepare a defense. Too often, however, delays in criminal proceedings occur for the mere convenience of the parties and those delays reach beyond the time needed for defendant's due process or the government's need to prepare. The result of such delays is that victims cannot begin to put the criminal justice system behind them and they continue to be victimized. It is not right to hold crime victims under the stress and pressure of future court proceedings merely because it is convenient for the parties or the court. This provision should be interpreted so that any decision to schedule, reschedule, or continue criminal cases should include victim input through the victim's assertion of the right to be free from unreasonable delay. I would add that the delays in criminal proceedings are among the most chronic problems faced by victims. Whatever peace of mind a victim might achieve after a crime is too often inexcusably postponed by unreasonable delays in the criminal case. A central reason for these rights is to force a change in a criminal justice culture which has failed to focus on the legitimate interests of crime victims, a new focus on limiting unreasonable delays in the criminal process to accommodate the victim is a positive start. I would like to turn to (a)(8). The broad rights articulated in this section are meant to be rights themselves and are not intended to just be aspirational. One of these rights is the right to be treated with fairness. Of course, fairness includes the notion of due process. Too often victims of crime experience a secondary victimization at the hands of the criminal justice system. This provision is intended to direct government agencies and employees, whether they are in executive or judicial branches, to treat victims of crime with the respect they deserve and to afford them due process. It is not the intent of this bill that its significance be whittled down or marginalized by the courts or the executive branch. This legislation is meant to correct, not continue, the legacy of the poor treatment of crime victims in the criminal process. This legislation is meant to ensure that cases like the McVeigh case, where victims of the Oklahoma City bombing were effectively denied the right to attend the trial and to avoid federal appeals courts from determining, as the Tenth Circuit Court of Appeals did, that victims had no standing to seek review of their right to attend the trial under the former victims' law that this bill replaces. I would also like to comment on (b), which directs courts to ensure that the rights in this law be afforded and to record, on the record, any reason for denying relief of an assertion of a crime victim. This provision is critical because it is in the courts of this country that these rights will be asserted and it is the courts that will be responsible for enforcing them. Further, requiring a court to provide the reasons for denial of relief is necessary for effective appeal of such denial. Turning briefly to (c), there are several important things to point out. First, this provision requires that the government inform the victim that the victim can seek the advice of the attorney, such as from the legal clinics for crime victims contemplated under this law, such as the law clinics at Arizona State University and those supported by the National Crime Victim Law Institute at the Law School at Lewis and Clark College in Portland, Oregon. This is an important protection for crime victims because it ensures the independent and individual nature of their rights. Second, the notice section immediately following limits the right to notice of release where such notice may endanger the safety of the person being released. There are cases, particularly in domestic violence cases, where there is danger posed by an intimate partner if the intimate partner is released. Such circumstances are not the norm, even in domestic violence cases as a category of cases. This exception should not be relied upon as an excuse to avoid notifying most victims. I would now like to address the enforcement provisions of the bill in (d). This provision allows a crime victim to enter the criminal trial court during proceedings involving the crime against the victim, to stand with other counsel in the well of the court, and assert the rights provided by this bill. This provision ensures that crime victims have standing to be heard in trial courts so that they are heard at the very moment when their rights are at stake and this, in turn, forces the criminal justice system to be responsive to a victim's rights in a timely way. Importantly, however, the bill does not allow the defendant in the case to assert any of the victim's rights to obtain relief. This prohibition prevents the individual accused of the crime from distorting a right intended for the benefit of the individual victim into a weapon against justice. The provision allows the crime victim's representative and the attorney for the government to go into a criminal trial court and assert the crime victim's rights. The inclusions of representatives and the government's attorney in the provision are important for a number of reasons. First, allowing a representative to assert a crime victim's rights ensures that where a crime victim is unable to assert the rights on his or her own for any reason, including incapacity, incompetence, minority, or death, those rights are not lost. The representative for the crime victim can assert the rights. Second, a crime victim may choose to enlist a private attorney to represent him or her in the criminal case--this provision allows that attorney to enter an appearance on behalf of the victim in the criminal trial court and assert the victim's rights. The provision also recognizes that, at times, the government's attorney may be best situated to assert a crime victim's rights either because the crime victim is not available at a particular point in the trial or because, at times, the crime victim's interests coincide with those of the government and it makes sense for a single person to express those joined interests. Importantly, however, the provision does not mean that the government's attorney has the authority to compromise or co-opt a victim's right. Nor does the provision mean that by not asserting a victim's right the government's attorney has waived that right. The rights provided in this bill are personal to the individual crime victim and it is that crime victim that has the final word regarding which of the specific rights to assert and when. Waiver of any of the individual rights provided can only happen by the victim's affirmative waiver of that specific right. In sum, without the ability to enforce the rights in the criminal trial and appellate courts of this country any rights afforded are, at best, rhetoric. We are far past the point where lip service to victims' rights is acceptable. The enforcement provisions of this bill ensure that never again are victim's rights provided in word but not in reality. I want to turn to (d)(2) because it is an unfortunate reality that in today's world there are crimes that result in multiple victims. The reality of those situations is that a court may find that the sheer number of victims is so large that it is impracticable to accord each victim the rights in this bill. The bill allows that when the court makes that finding on the record the court must then fashion a procedure that still gives effect to the bill and yet takes into account the impracticability. For instance, in the Oklahoma City bombing case the number of victims was tremendous and attendance at any one proceeding by all of them was impracticable so the court fashioned a procedure that allowed victims to attend the proceedings by close circuit television. This is merely one example. Another may be to allow victims with a right to speak to be heard in writing or through other methods. Importantly, courts must seek to identify methods that fit the case before that to ensure that despite the high number of crime victims, the rights in this bill are given effect. It is a tragic reality that cases may involve multiple victims and yet that fact is not grounds for eviscerating the rights in this bill. Rather, that fact is grounds for the court to find an alternative procedure to give effect to this bill. I now want to turn to another critical aspect of enforcement of victims' rights, (d)(3). This subsection provides that a crime victim who is denied any of his or her rights as a crime victim has standing to seek appellate review of that denial. Specifically, the provision allows a crime victim to apply for a writ of mandamus to the appropriate appellate court. The provision provides that court shall take the writ and shall order the relief necessary to protect the crime victim's right. This provision is critical for a couple of reasons. First, it gives the victim standing to appear before the appellate courts of this country and ask for review of a possible error below. Second, while mandamus is generally discretionary, this provision means that courts must review these cases. Appellate review of denials of victims' rights is just as important as the initial assertion of a victim's right. This provision ensures review and encourages courts to broadly defend the victims' rights. Without the right to seek appellate review and a guarantee that the appellate court will hear the appeal and order relief, a victim is left to the mercy of the very trial court that may have erred. This country's appellate courts are designed to remedy errors of lower courts and this provision requires them to do so for victim's rights. For a victim's right to truly be honored, a victim must be able to assert the rights in trial courts, to then be able to have denials of those rights reviewed at the appellate level, and to have the appellate court take the appeal and order relief. By providing for all of this, this bill ensures that victims' rights will have meaning. It is the clear intent and expectation of Congress that the district and appellate courts will establish procedures that will allow for a prompt adjudication of any issues regarding the assertion of a victim's right, while giving meaning to the rights we establish. I would like to turn our attention to (d)(4) because that also provides an enforcement mechanism. This section provides that in any appeal, regardless of the party initiating the appeal, the government can assert as error the district court's denial of a crime victim's right. This subsection is important for a couple of reasons. First, it allows the government to assert a victim's right on appeal even when it is the defendant who seeks appeal of his or her conviction. This ensures that victims' rights are protected throughout the criminal justice process and that they do not fall by the wayside during what can often be an extended appeal that the victim is not a party to. I would like to turn to the next provision, (d)(5). This provision is not intended to prevent courts from vacating decisions in non-trial proceedings, such as proceedings involving release, delay, pleas, or sentencings, in which victims' rights were not protected, and ordering those proceedings to be redone. It is important for victims' rights to be asserted and protected throughout the criminal justice process, and for courts to have the authority to redo proceedings such as release, delay, pleas, and sentencings, where victims' rights are abridged. I want to turn to the definitions in the bill, contained in (e). There are a couple of key points to be made about the definitions. A ``crime victim'' is defined as a person directly and proximately harmed as a result of a federal offense or an offense in the District of Columbia. This is an intentionally broad definition because all victims of crime deserve to have their rights protected, whether or not they are the victim of the count charged. Additionally, crime victims may, for any number of reasons, want to employ an attorney to represent them in court. This definition of crime victim allows crime victims to do that. It also assures that when, for any reason, crime victims unable to assert rights on their own--those rights will still be protected. Now I would like to turn to the portion of the bill concerning administrative compliance with victims' rights. The provisions of (f) are relatively self-explanatory, but it important to point out that these procedures are completely separate from and in no way limit the victim's rights in the previous section. I also would like to make it clear that it is the intention of the Congress that the money authorized in 1404D for the Director of the Office for Victims of Crimes ``for the support of organizations that provide legal counsel and support services for victims in criminal cases for the enforcement of crime victims' rights in Federal jurisdictions, and in States and tribal governments . . .'' is intended to support the work of the National Crime Victim Law Institute at the Law School at Lewis and Clark College in Portland, Oregon, and to replicate across the nation the clinics that it is supporting, fashioned after the Crime Victims Legal Assistance Project housed at Arizona State University College of Law and run by Arizona Voice for Crime Victims. The Director of OVC should take care to make sure that these funds go into the support of these programs so that crime victims can receive free legal counsel to enforce their rights in our federal courts. Only in this way will be able to fully and fairly test whether statutes are enough to protect victims' rights. There is no substitute for testing these rights in our courts to see if they have the power to change a culture that for too long has ignored the victim. Let me comment briefly on the provision on reports. Under (a), the Administrative Office of the U.S. Courts to report annually the number of times a right asserted in a criminal case is denied the relief requested, and the reasons therefore, as well as the number of times a mandamus action was brought and the result of that mandamus. Such reporting is the only way we in the Congress and other interested parties can observe whether reforms we mandate are being carried out. No one doubts the difficulty of obtaining case-by-case information of this nature. Yes, this information is critical to understanding whether federal statutes really can effectively protect victim's rights or whether a constitutional amendment is necessary. We are certain that affected executive and judicial agencies can work together to implement effective administrative tools to record and amass this data. We would certainly encourage the National Institute of Justice to support any needed research to get this system in place. One final point. Throughout this Act reference is made to the ``accused.'' The intent is for this word to be used in the broadest sense to include both those charged and convicted so that the rights we establish apply throughout the criminal justice system. Title IV

Mr. KYL

Mr. KYL. Mr. President, I rise today to introduce legislation, the Ukraine Democracy and Fair Elections Act of 2004, designed to promote free, fair and transparent elections in Ukraine. Like the United States, Ukraine is currently in the midst of a presidential election campaign. There is, however, one glaring contrast--all indications are that the campaign in Ukraine is not fair, not free and not transparent. The U.S. government has sent a number of high level officials to Ukraine to tell retiring President Kuchma and Ukraine's Prime Minister Viktor Yanukovych--who is Kuchma's endorsed presidential candidate-- that free and fair elections are essential to Ukraine's standing with the United States. Similarly, European governments have called upon Ukraine to hold free and fair elections. But, unfortunately, it appears that abuses of Ukraine's campaign laws are rapidly escalating. Ukrainian government officials have continued, without pause, an aggressive offensive against their opposition. Together with oligarch beneficiaries of the Kuchma-Yanukovych government they have denied the opposition access to national media, they have intimidated campaign workers and opposition supporters at work and at home, they have tried to prohibit opposition assemblies, and have stopped buses on the way to opposition rallies. They make a mockery of Ukrainian laws by using government resources to promote the Yanukovych candidacy, and they are aggressively manipulating Ukrainian election laws to ensure that they control the election commission at each of the 40,000 polling place in the country. What is at stake here is the future of democracy and perhaps independence in Ukraine as well as significant United States national interests in a region that we helped liberate from Communist tyranny just 15 years ago. The legislation that I am introducing would prevent senior government officials, who are personally involved in suppressing free and fair elections in Ukraine, from obtaining visas to the United States, and would seize the assets of these corrupt officials, unless the U.S. President certifies the elections as free and fair. The objective is to target directly those individuals responsible for the corruption, not the Ukrainian people as a whole. I would note that similar legislation has been introduced in the House of Representatives by Representative Dana Rohrabacher of California. I hope this will send a clear message that we stand with the free and democratic people of Ukraine, but not with those who would pervert democracy.

Mr. KYL

Mr. KYL. Mr. President, I rise today to introduce legislation, the Ukraine Democracy and Fair Elections Act of 2004, designed to promote free, fair and transparent elections in Ukraine. Like the United States, Ukraine is currently in the midst of a presidential election campaign. There is, however, one glaring contrast--all indications are that the campaign in Ukraine is not fair, not free and not transparent. The U.S. government has sent a number of high level officials to Ukraine to tell retiring President Kuchma and Ukraine's Prime Minister Viktor Yanukovych--who is Kuchma's endorsed presidential candidate-- that free and fair elections are essential to Ukraine's standing with the United States. Similarly, European governments have called upon Ukraine to hold free and fair elections. But, unfortunately, it appears that abuses of Ukraine's campaign laws are rapidly escalating. Ukrainian government officials have continued, without pause, an aggressive offensive against their opposition. Together with oligarch beneficiaries of the Kuchma-Yanukovych government they have denied the opposition access to national media, they have intimidated campaign workers and opposition supporters at work and at home, they have tried to prohibit opposition assemblies, and have stopped buses on the way to opposition rallies. They make a mockery of Ukrainian laws by using government resources to promote the Yanukovych candidacy, and they are aggressively manipulating Ukrainian election laws to ensure that they control the election commission at each of the 40,000 polling place in the country. What is at stake here is the future of democracy and perhaps independence in Ukraine as well as significant United States national interests in a region that we helped liberate from Communist tyranny just 15 years ago. The legislation that I am introducing would prevent senior government officials, who are personally involved in suppressing free and fair elections in Ukraine, from obtaining visas to the United States, and would seize the assets of these corrupt officials, unless the U.S. President certifies the elections as free and fair. The objective is to target directly those individuals responsible for the corruption, not the Ukrainian people as a whole. I would note that similar legislation has been introduced in the House of Representatives by Representative Dana Rohrabacher of California. I hope this will send a clear message that we stand with the free and democratic people of Ukraine, but not with those who would pervert democracy.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that two letters, which I sent to 9/11 Commission member Slade Gorton, be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, I rise today to discuss this body's efforts to reform the U.S. intelligence community. My distinguished colleagues from Maine and Connecticut have worked hard to develop legislation to address some of the executive branch structural reforms recommended by the 9/11 Commission. To be sure, there is a need to change, the way we do business if we are to effectively battle terrorist organizations, like al-Qaida, and protect the American people from another devastating terrorist attack. But I believe that many provisions of the bill before us are tackling the problem from the wrong angle. I think it is important that we move forward with deliberate speed. Past efforts, like the Goldwater-Nichols Act of 1986, should set an example. That overhaul of the Defense Department took several years from start to finish. It was a huge undertaking, as is our current effort to reform the intelligence community. The 9/11 Commission did a good job of cataloguing and critiquing the failures of 9/11--I believe it spent some 18 months on that effort. But it spent far less time developing the recommendations to solve the problems. We are now acting on those recommendations over a period of less than 2 weeks on the Senate floor. It is important to ask whether, in the middle of a war, it is wise to attempt such a fundamental reorganization with a deadline of October 8 for Senate consideration, a conference and then adoption of a conference report. Nevertheless, I will support moving this legislation forward, as the President has strongly urged us to do, so that we may try to resolve outstanding issues in the Senate-House conference committee. As Congress prepares its final intelligence reform bill to be sent to the President, we must be especially careful to do no harm. I will continue to press the issues about which I am concerned during the conference. Today I plan to discuss: No. 1, how the 9/11 Commission recommendations fail to thoroughly address the problems it identified; No. 2, deficiencies in the Governmental Affairs Committee proposal; and No. 3, what I think we should be doing instead--focusing on intelligence community reform, instead of just reorganization. I will also touch very briefly on two additional areas in which I had proposed amendments: visa reform, and tools and resources for fighting terror. Former Secretary of Defense James Schlesinger identified one of the key problems with the 9/11 Commission recommendations: [The Commission] has . . . proposed a substantial reorganization of the intelligence community--changes that do not logically flow from the problems that the Commission identified in its narrative. The Commission identified four categories of failures by the U.S. Government that ultimately led to the attacks of September 11, 2001: imagination, policy, capabilities, and management. After reviewing the 9/11 Commission's narrative of these failures and studying its 41 recommendations to prevent future such failures, I am hard pressed to see what most of the recommendations have to do with the problems identified. I will briefly touch on each of these broad problems identified by the Commission and assess how they will be addressed by both the Commission and later the Senate's legislation. First, lack of imagination. I agree that this problem was a significant contributor not only to the failure of intelligence community to predict the 9/11 attacks, but also the vast majority of the intelligence failures that have plagued our intelligence community over the past 20 years. A lack of imagination is simply an extension of the much broader and more pervasive cultural problems such as risk aversion, group think and a lack of competitive analysis that continue to hamper our intelligence and law enforcement agencies. I will deal with these problems in more detail later; but it is clear that none of the Commission's recommendations or this bill's provisions begin to address this culture problem; and, in fact, one recommendation could substantially increase risk aversion, a problem exacerbated by the bill's redundant provisions piling on layers of civil liberties and privacy review. The Commission itself notes that ``Imagination is not a gift usually associated with bureaucracies,'' and so it is ironic that Commission proposes to create an even more bureaucratic intelligence structure. Chairman Kean and Vice Chairman Hamilton contend that an empowered NID will foster competitive analysis and quash group think because that individual will draw on the perspectives of all the intelligence agencies, rather than just the CIA, as the DCI is now more likely to do. But a convincing case can be made that the creation of national intelligence director with budgetary authority over most of the intelligence community could actually exacerbate the community's lack of imagination. Under such a centralized system, it is far more likely that agencies, like DHS's Information Analysis office, will be inclined to provide a commonly accepted view because the NID will control their budgets. As such, they will lack the protection that their previous patron--the Department of Homeland Security, in this case--provided them. Risk aversion and group think are, therefore, likely to become even more widespread problems. The second failure identified by the Commission is one of policy. Here the report faults not the intelligence community, but political leaders, including Members of Congress, for failing to act even when there was a clear threat. Terrorists had demonstrated time and time again that they were at war with us: in 1993 at the World Trade Center; in 1995 at a U.S. military barracks in Saudi Arabia; in 1998 at the U.S. Embassies in Kenya and Tanzania; and in 2000 with the bombing of the USS Cole. Almost a decade of attacks resulted in little more than a single cruise missile strike that destroyed a pharmaceutical plant. This failure of decisionmaking really calls for a fix that can't be legislated--good leadership. The Commission makes a number of related recommendations on how to fight the war on terror, with the goal of making another attack less likely. These range from the obvious, ``make a long-term commitment to Afghanistan,'' to the irrelevant and unwise, declassifying the overall intelligence budget. On the whole, however, most of recommendations are already being implemented in some fashion, and have been underway since shortly after the attacks. I commend to my colleagues a fact sheet prepared by the White House detailing its implementation of the majority of the 9/ 11 Commission's recommendation. On a more specific level, one area where not enough work has been done is that of terrorists' travel. The Commission correctly identifies the importance of the problem arguing, ``[f]or terrorists, travel documents are as important as weapons,'' and I am, therefore, surprised that the Commission and the committee have decided to put that issue on the backburner. I will return to this issue in more detail shortly, but it is one area where Congress can make an important contribution to U.S. security and we should not abdicate that responsibility. The third failure is one of capabilities. It is here that the 9/11 Commission highlights numerous glaring weaknesses in how the intelligence community shared information, prepared for potential attacks and planned for U.S. responses. The Commission recommends improvements in information sharing and the parts of this legislation that seek to implement these are important. Regardless of how we ultimately decide to organize the intelligence community, it is important that we improve and streamline information sharing. Congress has already taken some important steps toward that objective. For example, the PATRIOT Act, enacted shortly after the September 11 attacks, improved information sharing by breaking down legal barriers between intelligence and law enforcement, but it is clear we will not be able to make the Patriot Act provisions permanent in this bill. Unfortunately, the 9/11 Commission overlooks the fact that solving the capabilities problem requires far more than just improving the sharing of information. The problem extends beyond what intelligence is available to an analyst at any given time. The 9/11 Commission, the Joint House-Senate Inquiry into the 9/11 attacks, and the recently completed Senate Select Committee on Intelligence investigation into pre-war intelligence on Iraq all point to far deeper deficiencies. They identify core cultural problems. Indeed, too often the right information is not collected due to, among other things, excessive risk aversion, and analysis of the information is not adequately questioned to ensure that group think has not replaced sound judgment. The Commission focused on only one recommendation for fixing a laundry list of problems with the CIA's collection and analysis, and only one recommendation on improvements to the FBI's intelligence capabilities. On the other hand, the Commission devoted three recommendations to protecting civil liberties, though none is designed to prevent a future attack. The last failure identified by the Commission is one of management. It is this failure that leads the Commission to recommend the creation of the National Intelligence Director. The report highlights the inability of then-DCI George Tenet to mobilize the entire intelligence community after he issued a memo stating, ``We are at war'' with terrorists. However, the 9/11 Commission's report states that the DCI's memo had ``little overall effect on mobilizing the CIA.'' If even the CIA, where the Director has complete budgetary and line control, did not respond to the DCI's memo, we should not be confident that simply putting someone at the top of a new organizational chart is the panacea that some claim. It warrants noting that the 9/11 Commission details an example, from before 9/11 and the changes that followed, where the intelligence and law enforcement communities were able to mobilize, break down stovepipes and information was shared ``widely and abundantly.'' This example--termed the ``Millennium Exception'' by the Commission--focuses on the last weeks of December 1999, when the government ``acted in concert to deal with terrorism.'' The Government's approach to this threat, demonstrate the power of strong leadership and commitment, despite what some call a disjointed intelligence organization. Too often problems of management have less to do with organizational structure, and more to do with the managers themselves. I fear that we are rushing to implement sweeping organizational changes because it is the easy thing to do, not because it is necessarily the right thing to do. In the meantime, the hard work of changing the culture of the community seems to have been pushed to the side. The Senate is currently considering a reorganization package that contains a number of the 9/11 Commission's 41 recommendations. Among the most significant, the bill establishes a Senate-confirmed national intelligence director with strong budget, personnel, security, and other authorities; creates a national counterterrorism center, NCTC, to integrate intelligence capabilities and develop joint counterterrorism plans; redefines the National Foreign Intelligence Program as the National Intelligence Program--which includes the national collection agencies within the Defense Department, NSA, NGA, and NRO; and contains provisions that require the establishment of an information sharing network. The bill is called the National Intelligence Reform Act of 2004. But it does not reform the intelligence community; it reorganizes it. It does not get at the fundamental problems in the intelligence community identified by the 9/11 Commission and the other intelligence investigations and inquiries over the last several years. And, unfortunately, in at least one glaring respect, it violates the first rule of medicine and legislating in that it does do harm. Moreover, even if the reshuffling of bureaucracy can ultimately be made to work, doing so now, while our country is at war, makes it very hard to supply our strategists, planners, and warfighters the information they need, when they need it. I have taken under careful advisement the cautious tone of many former and current officials. For example, in his testimony to the Senate Armed Services Committee on August 17, 2004, Secretary of Defense Donald Rumsfeld stated: In pursuit of strengthening our nation's intelligence capabilities, I would offer a cautionary note. It is important that we move with all deliberate speed; however, moving too quickly risks enormous error . . . And we are considering these important matters while waging a war. The Center for Strategic and International Studies, CSIS, recently released a statement, signed by an experienced group of former officials, urging similar caution. The statement was endorsed by: former Senators David Boren, Bill Bradley, Gary Hart, Sam Nunn, and Warren Rudman; former Secretaries of Defense Frank Carlucci and William Cohen; former Deputy Secretary of Defense John Hamre; former Director of Central Intelligence Robert Gates; former Secretary of State and National Security Advisor Henry Kissinger; and former Secretary of State George Shultz. It said: Rushing in with solutions before we understand all of the problems is a recipe for failure. In his testimony, Secretary Rumsfeld discussed in detail his concerns about how intelligence community reorganization could potentially adversely affect the Defense Department. He expressed his strong reservations about the national collection agencies--the NSA, NGA, and NRO--being removed from the Defense Department, where they are now located, and aligned under the direct leadership of the national intelligence director. He stated: ``We wouldn't want to place new barriers or filters between the military Combatant Commanders and those agencies when they perform as combat support agencies. It would be a major step to separate these key agencies from the military Combatant Commanders, which are the major users of such capabilities. The Defense Department worked tirelessly in the decade after the first gulf war to ensure that the speed and scope of intelligence support to military operations would be improved for future conflicts. It was General Schwartz kopf's view that the national intelligence support during Desert Storm was not adequate. Now, as we have seen from the success of our military operations in Afghanistan, Iraq, and the broader War on Terror, ``gaps and seams,'' as Secretary Rumsfeld refers to them, have been drastically reduced. General Myers, Chairman of the Joint Chiefs of Staff, also expressed his concerns on the subject during his testimony to the Senate Armed Services Committee, stating: . . . for the warfighter, from the combatant commander down to the private on patrol, timely, accurate intelligence is literally a life and death matter every day. . . . As we move forward, we cannot create any institutional barriers between intelligence agencies--and of course that would include the National Security Agency, the National Geospacial- Intelligence Agency, and the National Reconnaissance office and the rest of the warfighting team. I am concerned that the reorganization package before the Senate places this effective system in jeopardy. In S. 2485, the NSA, NGA, and NRO remain within DOD; but this is somewhat deceiving. These national collection agencies will also be within the newly defined National Intelligence Program. The Committee- reported bill would essentially remove the Secretary of Defense from any meaningful management role over these agencies. First, the national intelligence director would have the authority to appoint the heads of these agencies, albeit with the concurrence of the Secretary of Defense. What makes this unusual and potentially problematic? Well, consider the fact that the Director of the National Security Agency, a general officer, is dual-hatted as the Deputy Commander for Network Attack, Planning, and Integration at Strategic Command, or that the Director of the National Reconnaissance Office also serves as an Under Secretary of the Air Force. These positions truly support the mission of the Defense Department Second, the national intelligence director would have the authority to execute the budgets of these agencies. It is one thing to say that the NID should manage the entire budget for the National Intelligence Program, and, therefore, to help develop agencies' budgets and even receive their appropriation. It is quite another to altogether remove the Secretary of Defense from the loop by requiring that the NID suballocate funding directly back to the agencies. This effectively removes the Secretary from the management loop. I have studied the Defense Secretary's testimony to the Senate Armed Services Committee, as well as the testimony of other experts. I am also aware that there were some good amendments in the committee markup to help preserve the Defense Department's equities. But I am still not convinced that we are doing no harm. As General Myers commented during the course of the Senate Armed Services Committee's discussion on the subject, ``[T]he devil's in the details.'' I recognize that during the course of the Senate's debate on this bill, several of my colleagues have offered amendments to ensure that the equities of the Defense Department are protected, and I applaud them for their efforts. So, while I am not convinced we are doing no harm--particularly with respect to ensuring our warfighters have the intelligence support they need--I am also not convinced that we are necessarily doing much good. Again, the solutions of the 9/11 Commission, and, in turn, the Senate bill, don't seem to match the problems. I would like to discuss an example of what I believe we could do to help minimize our chances of another catastrophic terrorist attack--by addressing cultural problems in the intelligence community, including risk aversion, group think, and a failure of leadership. I was a member of the Senate Intelligence Committee for 8 years and participated in the first of the post-9/11 evaluations--the joint Senate-House inquiry, formally named the Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001. Along with the current Intelligence Committee chairman, I offered additional views to that report which, had I been part of the 9/11 Commission, I would similarly have submitted. Those additional views describe the core cultural problems in the intelligence community that can't simply be solved by reorganizing agencies. On this, the Commission report and the bill before us missed the mark in many respects. First, let's consider risk aversion, which plays out not only in the intelligence community, but also in foreign policy decisionmaking, economics, business investments, and so on. There are many potential reasons for risk aversion--a particular action might have adverse, unintended consequences, might get one into trouble with one's superiors, or might simply draw unwanted attention, just to name a few. When an individual or a government acts, there is always a calculation of risk; but some governments and some individuals are more willing to take chances than others. This is a product of both leadership and environment. An aversion to taking risks--even when they should be taken--plagues our intelligence community. Indeed, in the course of our congressional inquiry on the 9/11 attacks no intelligence or law-enforcement agency escaped being described by its own officials as hampered by an aversion to thinking critically, exposing their views to others, and being willing to boldly take risks. Time and time again, this has contributed to intelligence failures--most recently, of course, 9/11 and the intelligence communities' claims about Saddam's stockpiles of weapons of mass destruction. The 9/11 Commission also addressed the issue of risk aversion within the CIA, noting the net result for that agency pre-9/11: . . . an organization capable of attracting extraordinarily motivated people but institutionally averse to risk, with its capacity for covert action atrophied, predisposed to restrict the distribution of information, having difficulty assimilating new types of personnel, and accustomed to presenting descriptive reportage of the latest intelligence. One of the most well known examples of the problem of risk aversion in the context of the 9/11 attacks was the FBI's failure to respond to the ``Phoenix Memorandum,'' written by a Phoenix special agent who wanted to alert his superiors about suspicious individuals seeking pilot training. The now-famous electronic communication to FBI headquarters recommended that the FBI consider seeking authority to obtain visa information from the State Department on individuals who obtained visas to attend flight school. The intelligence operations specialists at headquarters who reviewed the memo told the staff of the congressional joint inquiry that they had decided among themselves that seeking that authority raised profiling concerns. These concerns stemmed at least in part from previous public allegations of racial profiling against FBI agents who had questioned two Middle Eastern men acting suspiciously on a flight from Phoenix to Washington, DC, in 1999. On a broader--not case-specific--level, the intelligence community's clandestine service has been seriously hampered by an aversion to taking risks. According to the 9/11 Commission's report, James Pavitt, the head of the CIA's Directorate of Operations, recalled that covert action had gotten the clandestine service into trouble in the past, and he had no desire to see it happen again. It is likely that this ``trouble'' was at least in part a result of congressional actions, for example the 1976 Church Committee investigation, which was set up in the wake of revelations about assassination plots organized by the CIA. The investigation resulted in some 183 recommendations, and subsequent legislative proposals and debate that consumed considerable attention over a number of years. In part, that debate focused on specific, clearly defined limitations and prohibitions on intelligence activities. Obviously, as we move forward with reforming congressional oversight of the intelligence community, there will be a need to balance strong and effective oversight with not hamstringing the community and creating an even more risk averse environment. The culture of risk aversion in the clandestine service was also accentuated by executive branch actions during the Clinton administration. For example, risk aversion in the clandestine service was compounded by the 1995 Deutch Guidelines, CIA guidelines promulgated by then-Director of the CIA, John Deutch, which severely limited the ability of CIA case officers to meet with and recruit foreign nationals who may have been involved in dubious activities or have blood on their hands. Incidentally, during his tenure, Mr. Deutch also conducted a CIA-wide ``asset scrub,'' which applied an inflexible reporting standard to all CIA spies that, if not met, resulted in their automatic firing. How can you effectively penetrate an organization or adversarial regime without dealing with unsavory characters? Thankfully, the Deutch Guidelines were finally repealed by the DCI in July 2002; but, their repercussions had a lasting effect on the culture of the Directorate of Operations. So, here we have a clandestine service unwilling to take the risks that are, by nature, part of the job. Compound that with the fact that the DO had few resources. Between 1992 and 1998, the Central Intelligence Agency closed one-third of its overseas field stations, lost one-quarter of its clandestine service case officers, lost 40 percent of its recruited spies, and CIA intelligence reports declined by nearly one-half. The result of this deterioration of a key part of our intelligence community was that, before 9/11, we had not one human source inside al- Qaida's command structure. What did the 9/11 Commission recommend to transform the clandestine service into a unit more effectively able to penetrate al-Qaida. The CIA Director should emphasize . . . ``(b) transforming the clandestine service by building its human intelligence capabilities; (c) developing a stronger language program, with high standards and sufficient financial incentives; (d) renewing emphasis on recruiting diversity among operations officers so they can blend more easily in foreign cities; (e) ensuring a seamless relationship between human source collection and signals collection at the operational level; and (f) stressing a better balance between unilateral and liaison operations. As Reuel Gerecht, American Enterprise Institute scholar, commented in a recent article in the Weekly Standard, ``That's it. In a 447-page report on the intelligence failings of 9/11, the clandestine service gets nine lines. The important bit--`transforming the clandestine service . . .' is a 10-word platitude.'' The intelligence reform bill we are considering this week similarly fails to delve into this central problem. Even if we put the resources back in, we have not figured out how to deal with the mentality now ingrained in our covert officers. Finally, as I previously noted, I believe the bill currently before the Senate will exacerbate the risk aversion problem in at least one respect: its creation of an excessive, redundant bureaucracy to oversee the protection of privacy and civil liberties. Should there be protections and oversight? Yes. But should there be so many layers of such oversight that intelligence officers are more worried about getting into trouble than about adequately performing their missions? Certainly not. The provisions in this bill dealing with privacy and civil liberties are quite extensive. In summary, the bill establishes: two officers within the National Intelligence Authority, one responsible for privacy, the other for civil rights and civil liberties; an Inspector General within the National Intelligence Authority, who, in part, monitors and informs the National Intelligence Director of any violations of civil liberties and privacy; an Ombudsman within the National Intelligence Authority to protect against so-called politicization of intelligence; an independent Privacy and Civil Liberties Oversight Board with extensive investigative authorities; and privacy and civil liberties officers within the Departments of Justice, Defense, State, Treasury, Health and Human Services, and Homeland Security, the National Intelligence Authority, the Central Intelligence Agency, and any other department, agency, or element of the Executive Branch designated by the Privacy and Civil Liberties Oversight Board to be appropriate for coverage. These provisions reach far beyond what the 9/11 Commission recommended--an executive branch board to oversee the protection privacy and civil liberties. The President already created such a board through executive order on August 27. Under the construct offered in the Governmental Affairs Committee bill there will simply be too many people performing the same task. It will be inefficient; it will be counterproductive; and it will add yet another legal hurdle for our intelligence officers to overcome. Our goal should be to make it easier for them to do their jobs--to detect and prevent future catastrophic terrorist attacks--not more difficult. Let's not forget why we are reforming the intelligence community. It is to prevent another 9/11. The problem is not that we invaded suspects' privacy, but that we didn't know enough about them to prevent the attack. I offered an amendment to S. 2845, which I discussed several times on the floor of the Senate, to eliminate some of this redundant oversight. I withdrew that amendment reluctantly, but with the understanding that the issue would be resolved in conference. I plan to continue to press my case on this matter because I believe it is central to ensuring that we do not make worse the already existing problem of risk aversion within the intelligence community. Second, group think. This problem is not unrelated to the problem of risk aversion. The result of analysts' fears of taking risks is often that they are unable to think outside the box, to break free of the generally-accepted assumptions held by their agency or by the rest of the intelligence community. In his August 16 testimony to the Senate Armed Services Committee, former Secretary of Defense James Schlesinger discussed the problem at length, stating: Different organizations will drift gravitate towards different ways of organizing reality--based upon their range of responsibilities and, also, their interests in a narrower sense. Most individuals make themselves comfortable in their own organizations by not challenging a prevailing consensus. Another cause of group think is simply a lack of imagination. In a recent op-ed in the Washington Post, Henry Kissinger raises some important questions about the reforms currently being pursued. He states that the basic premise of the ``current emphasis on centralization'' through the creation of a director of national intelligence ``seems to be that the cause of most intelligence failures is inadequate collection and coordination.'' Kissinger believes, however, that ``the breakdown usually occurs in the assessment stage.'' He attributes that breakdown to a failure of imagination to connect the dots of available knowledge. His op-ed describes in detail how a lack of imagination led to the major intelligence failures of the last 4 decades: the 1973 Middle East War, the Indian nuclear test of 1998, the September 11 attacks, and the failure to find WMD stockpiles in Iraq. How do we solve this problem? Well, let's take the issue of Iraq's weapons. The Senate concluded in its bipartisan report on the intelligence community's assessment: The presumption that Iraq had active WMD programs was so strong that formalized IC mechanisms to challenge assumptions and ``group think,'' such as ``red teams,'' ``devil advocacy,'' and other types of alternative, or competitive analysis, were not utilized. Former Defense Secretary James Schlesinger recommends precisely what the bipartisan report said was lacking. In his testimony, SASC, August 16, he stated: The only solution within an organization is to establish a Devil's Advocacy organization to challenge the prevailing beliefs. This is an imperfect solution, as Secretary Schlesinger further notes, but, still, if we had had such mechanisms, we would have had a far greater chance of reaching the truth. Yet, neither the Commission nor the Committee recommends such a ``red team'' or ``devil's advocacy'' entity or process. We will have to do it by amendment. This is one place where we can learn from our past successes and failures. Historically speaking, ``red teams,'' have been helpful inside and outside of the intelligence community. In the 1970s, for example, the intelligence community persisted in underestimating the size and scale of the Soviet arms build-up. In response, Congress created a ``red team'' called Team B to review the IC's analysis. Team B's report, which documented how far off the intelligence community was, laid the foundation for President Reagan to rebuild the U.S. military in the 1980s. More recently, the Rumsfeld Commission on the ballistic missile threat was created to play devil's advocate with the findings of the intelligence community. Not surprisingly, the Commission found the estimates far off, dramatically underestimating the time it would take for a country to procure or produce a ballistic missile. The chairmen of the 9/11 Commission, Thomas Kean and Lee Hamilton, recognize the group think problem in their September 8 Washington Post op-ed, and offer that their proposed reforms ``institutionalize information-sharing, thus guaranteeing a competitive airing of views.'' They further state: We don't want dissent quashed by group-think; we want competing analyses to be shared broadly . . . But as key experts, like Henry Kissinger and Jim Schlesinger, point out, it is valid to question whether centralized intelligence--which we are now pursuing--encourages conformity, making the problem of group think worse. At best, that structural change will do nothing to affect the problem. Last, but certainly not least, leadership is a problem that simply cannot be solved legislatively. Conversely, good leadership can potentially solve the other cultural issues I have identified. Al-Qaida's attack on Washington and New York occurred after a long period of poor leadership at the highest levels of the U.S. Government regarding terrorism. Despite repeated assaults on the United States and its interests, the U.S. Government was still unwilling to treat terrorism as a true national security issue until after 9/11. This was, of course, partly a failure of political leadership. But the intelligence community is not absolved, either. The problem of inadequate allocation of resources in the intelligence community, for example, was at least partly a result of confused leadership in the community. In spite of a 1998 declaration of war on al-Qaida by the Director of Central Intelligence, two key organizations--namely, the Defense Intelligence Agency and the Federal Aviation Administration-- were not allowed, though they offered, to throw their support behind the antiterror effort. Counterterrorism analytic centers were fragmented across the administration at the Pentagon, the CIA, and various FBI locations. Only after 9/11 did various intelligence and law enforcement entities begin to put aside their parochialism and work together in a more productive manner. And certainly reorganization was a partial fix for the problem--in particular, the new Terrorist Threat Integration Center, TTIC, which merges and analyzes all threat information in a single location under the direction of the DCI, has been beneficial. But, with better leadership of the intelligence community, the condition would not have been so prevalent in the first place. It would not have taken a monumental disaster for these entities to cooperate more effectively with one another. I would now like to briefly discuss visa reform. I am pleased that the Collins-Lieberman bill, with the addition of Kyl amendment No. 3926, will at least tighten up immigration law to require, in statute, that most temporary visa applicants be personally interviewed by State Department consular officers during the application process, and that all such applicants be required to actually complete their visa applications to get a visa. Past misuse of immigration law allowed 15 of the 19 September 11 hijackers to enter the United States without completing their applications or being interviewed. Some might question why such State Department regulations need to be included as statutory language in the Immigration and Nationality Act. Section 214(b) of the INA governs the admission of nonimmigrants to the United States. It presumes that an alien who applies for a temporary visa actually intends to stay in the United States permanently ``until he establishes to the satisfaction of the consular office'' that he intends to stay temporarily. This means that the burden of proof is on the alien to show that he is eligible to receive a visa and that he will not overstay or otherwise violate the terms of the visa. Had the State Department required its consular affairs officers to implement section 214(b) correctly, and thus to conduct in-person interviews and require that visa applications be completely and accurately filled out, to meet the burden of proof requirement, the tragedy of 9/11 could have been prevented. The intent of Section 214(b) was not carried out by the State Department consular affairs officers who issued visas to the 9/11 hijackers. Fifteen of the 19 men who flew hijacked airplanes into the World Trade Center, the Pentagon, and the Pennsylvania countryside were Saudi nationals who should have been denied admission to the United States under section 214(b) because their visa applications contained inaccuracies or omissions. These were not trivial mistakes in spelling or punctuation. The applications omitted such fundamental information as: means of financial support, home address, and destination or address while in the United States. According to an October 28, 2002 National Review article by Joel Mowbray under the title and subtitle ``Visas for Terrorists: They were ill-prepared. They were laughable. They were approved,'' only one of the 15 applicants listed an actual destination address for inside the United States. The rest listed locations such as ``California,'' ``New York,'' or simply ``Hotel.'' Section 214(b) should also have been used to require face-to-face interviews of those applying for nonimmigrant visas. Only two of the 15 Saudi hijackers were interviewed by State Department officials. Such laxity by consular officers, however, occurred under guidelines and practices put in place by senior State Department officials. According to cables and other written notices sent over time by Mary Ryan, who was Assistant Secretary for Consular Affairs on September 11, 2001, shortening the visa application process wherever possible was a ``very worthy goal.'' Such top-down guidelines were explored in an October 2002 GAO report, ``Border Security: Visa Process Should Be Strengthened as Antiterrorism Tool.'' The report says the State Department's written guidelines and resulting practices for visa issuance allowed for ``widespread discretionary adherence among consular officers in adhering to the burden of proof requirements included in section 214(b).'' The GAO report also says the State Department's ``Consular Best Practices Handbook'' gave consular managers and staff the discretion to ``waive personal appearance and interviews for certain nonimmigrant visa applicants.'' The 9/11 Commission was provided detailed information about the State Department's use of section 214(b) and its contribution, in my opinion, to the tragedy of 9/11. In a letter to the 9/11 Commission on April 23, 2004, I said how important it was that the 9/11 Commission focus on the State Department's contribution to the dysfunction of the visa-issuance system prior to September 11. In a followup letter on May 13, 2004 to the Commission, I stated that correct use of the statutory law governing nonimmigrant visa issuance could have kept several, if not all, of the 9/11 hijackers from entering the country. The amendment that the bill managers have accepted is based on the regulations promulgated by the State Department in the Foreign Affairs Manual it issued after September 11. It requires that all aliens who apply for a nonimmigrant visa submit to an in-person interview with a consular affairs officer. Although the primary purpose of the in-person interview is to determine whether an applicant will overstay his or her visa, it is also a prime opportunity for a consular affairs officer to gauge the intent of the applicant to try to make sure that the applicant does not intend to harm the United States. I recognize that not every person may have to be interviewed, so my amendment allows applicants under the age of 12, individuals over the age of 65, diplomats, and certain other individuals to be exempt from the in- person interview requirement if the consular affairs officer deems it appropriate. My amendment also requires that, even if the nonimmigrant visa applicant falls into a category for which an interview is not necessarily required, one will be required if he is not a national of the country in which he is applying for a visa; if he was previously refused a visa; or if he is listed in the Consular Lookout and Support System. CLASS is the State Department's database that lists all applicants about whom the Department has security concerns. Finally, my amendment requires that all applicants for nonimmigrant visas provide complete and accurate information in response to every question on the nonimmigrant visa application. This is to ensure that the application is completely filled out and that the applicant has provided enough information to meet the burden of proof required by section 214(b) of the INA. The codification of these few provisions will help ensure that terrorists are not able to enter the country using legally issued visas. Provisions to that effect ought to be in any piece of legislation aimed at preventing additional terrorist attacks on this country. I appreciate the willingness of Senators Collins and Lieberman to work with me to modify the amendment to make it acceptable. Before I close, I want to note that I have separately discussed another related area in serious need of attention: making sure we have the legal authorities and resources we need to effectively fight terror. I had prepared several amendments on this topic, which I intended to introduce to this bill, but because some Members erroneously believed that these amendments were highly controversial, I chose not to pursue them. These amendments, one of which was my Tools for Terrorism, TFTA, bill in its entirety, others of which were parts of that bill, should not have been considered controversial. TFTA is not new--it is composed of bills that have been pending, have been approved by the Justice Department, and have been the subject of nine separate hearings. TFTA consists of all or part of 11 bills currently pending in the House and Senate. Every provision of the bill previously has either been introduced as a bill in the House or Senate or had a committee hearing. Every provision of the bill has the full support of the Justice Department. Collectively, the provisions of this bill have been the subject of nine separate hearings before House and Senate committees and have been the subject of four separate committee reports. Furthermore, collectively, the bills included in TFTA have been pending before Congress for 13 years. That said, in the interest of allowing the Senate to move forward quickly, and noting that some of the provisions of my TFTA bill are included in the House version of the Intelligence Reform bill, I have decided to continue to try to press my case during the House-Senate conference. My intention today was not to create a sense of futility in this body's efforts, but rather to express reservations about the proposed solutions and highlight those areas I know need to be resolved if we are to effectively wage the war on terror. A careful reading of the congressional joint inquiry report, the Senate's Iraq intelligence investigation, and the 9/11 Commission's narrative of the failures that led to 9/11 all point to far deeper deficiencies than can be solved by bureaucratic reorganization. I plan to vote for this bill, but I do so recognizing that it is imperfect, and also with the clear intention of continuing to press my case for various modifications in conference. Finally, while it is true that, if we do reform right, we will be able to improve our intelligence, it will never be the case that our intelligence is perfect. It is next to impossible to imagine every possibly means by which we might be attacked. As Judge Richard Posner points out in his New York Times Book review: The [9/11 Commission] narrative points to something different, banal and deeply disturbing; that it is almost impossible to take effective action to prevent something that hasn't occurred previously. This does not mean we should not try; it does mean that we have to be realistic about the limitations of intelligence. Those limitations make solid political leadership all the more important. Intelligence, diplomacy, military, law enforcement--these are all tools in our arsenal to fight the war on terror and whatever other threats may come our way. Decisionmakers must be willing to use them effectively. That is what will offer our greatest protection against another devastating attack.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the amendment be withdrawn.

Mr. KYL. And the creation of an ombudsman. This is overkill. It is going to exacerbate the problem of risk aversion with having too many people looking over the shoulder of too many people we tasked with the difficult job of collecting and analyzing intelligence. Mr. President, 9/11 did not happen because we had too many people with privacy being violated or civil rights being violated. It happened because our intelligence was not good enough. Too many of these are going to impede our intelligence, and that is why we offered this amendment. I regret we are going to have to withdraw it, but I appreciate the fact that the sponsors of the legislation are committed to working with us in the conference to try to bring a better balance to the bill.

Mr. KYL. Mr. President, I ask unanimous consent for an additional 30 seconds.

Mr. KYL. Mr. President, we are going to be asking unanimous consent to withdraw amendment No. 3801, which is an amendment Senator Chambliss and I offered to deal with the problem of overlapping and redundant civil rights and privacy investigations, entities, or individuals that would be added to those that already exist to protect civil rights and privacy in the national intelligence director office and other offices of the intelligence community. The head of the 9/11 Commission, Philip Zelikow, the Executive Director, noted one of the biggest problems we have with our intelligence collection and analysis when he said: We also found-- ``We'' meaning the 9/11 Commission-- that the 9/11 story illustrated the danger of risk aversion from constant worry of being investigated. We gave several important examples of officials who overinterpreted existing legal constraints for fear of exceeding their authority. We were also astonished by the extent to which CIA officials, beyond any others in the Government, already conduct their work in a manner that anticipates and guards themselves for the prospect of future investigations. We found this in the Intelligence Committee, and the 9/11 Commission found the same thing--a profound aversion to taking risks because of all the people looking over the shoulders of these agents, ready to pounce on them if they do anything wrong or make a mistake. What does the underlying legislation do? It exacerbates the problem because it requires that existing agencies of the Government either designate an existing officer or create a new position for privacy and civil liberties. Notwithstanding the fact that each Department-- Homeland Security, Health and Human Services, CIA, and others--already have officers with the responsibility, including an inspector general, chief privacy officer, and the officer for civil rights and civil liberties. In each one of these agencies, those officers currently exist. There is a new mandate placed on all of them, in addition to which the President, following the 9/11 Commission recommendation, appointed his own board on Safeguarding American's Civil Liberties, and the bill creates a privacy and civil liberties oversight board with subpoena power and puts under the National Intelligence Authority an officer for civil rights and liberties and a privacy officer, in addition to the already existing inspector general.

Mr. KYL

Mr. KYL. Mr. President, there are a lot of problems that affect people around the world and in this country. Some go unmentioned and yet affect millions of lives and are with us every day. One of those problems is the problem of domestic violence. I was so pleased that both the majority leader and the Democratic leader, this morning, began their official presentations in the Senate talking about the problem of domestic violence and the fact that the Senate, last week, unanimously passed a resolution which supports ``the goals and ideals of National Domestic Violence Awareness Month,'' which is this month of October, and expresses ``the sense of the Senate that Congress should raise awareness of domestic violence in the United States and its devastating effects on families.'' Our message in passing this resolution is aimed both at a national audience as well as every individual who is a victim of domestic violence or who knows one. Their message is not a moment of silence, as is frequently the case but, rather, the message is: ``It's time to talk.'' And all around the country--indeed, the world--this message is being conveyed today and for the remainder of this month. I want to thank Marie Claire magazine, for example, and organizations that are promoting this theme: ``It's time to talk.'' And why is that important? Because as almost anyone who understands the problem of domestic violence knows, the biggest reason the problem remains with us is that it is kept a secret. People are ashamed or afraid to talk, to begin the conversation that would confront and, therefore, solve the problem. That is why ``It's time to talk'' is so important. It is not just the victims who should talk, it is society as a whole. As the resolution states: There is a need to increase the public awareness about and understanding of domestic violence and the needs of battered women and their children. It is hard to convey the sense of this problem talking statistics, but I think it is important that we understand the magnitude of the problem, not in terms of human suffering with individual stories but to understand the statistics of how serious the problem is. We have made progress to be sure, but it is still a very serious problem. An average of more than three women are murdered by their husbands or boyfriends in the United States every day, and someone in the United States is sexually assaulted every 2 minutes each year. Each year, about 342,000 pregnant women in the United States are battered by the men in their lives, leading to pregnancy complications, including low weight gain, anemia, infections, and many others. In 2002 alone, 250,000 women and girls older than the age of 12 were raped or sexually assaulted, a quarter of a million women. One out of every 12 women has been stalked in her lifetime. It is an issue not only for today's generation but for children because nearly 9 million witness domestic violence every day. This obviously creates a risk factor in their lives for having long-term physical and mental health problems, including substance abuse, being a victim of abuse, and becoming a perpetrator of abuse. A boy who witnesses his father's domestic violence is 10 times more likely to engage in domestic violence than a boy from a nonviolent home. Forty percent of girls ages 14 to 17 report knowing someone their age who has been hit or beaten by a boyfriend. One in five adolescent girls in the United States becomes a victim of physical or sexual abuse or both in a dating relationship. The cost is devastating. The real cost is the emotional and psychological harm that occurs to victims of domestic violence and to their families. But there is also a staggering cost to society. As we noted in the resolution adopted in the Senate, the cost of domestic violence, including rape, physical assault, and stalking, exceeds $5.8 billion each year, of which $4.1 billion is spent on direct medical and mental health care services. The problem exists in my State of Arizona. Just to cite a couple statistics: 81 of the 440 homicides reported in Arizona in the year 2003 were a result of domestic and/or dating violence; this year, as of September 8, there were 61 domestic violence-related deaths reported; in the year 2002, every 5 minutes police responded to a call involving domestic violence; every 19 minutes an arrest was made as a result of a domestic violence incident; and every 36 minutes police were called to the scene of domestic violence where children were present. In that same year, 91 law enforcement agencies in Arizona reported a total of over 112,000 calls to service for domestic violence. Of those calls, there were a total of 26,000 arrests made. I conclude by acknowledging the dedication of all the people tirelessly working behind the scenes to try to end domestic violence and to deal with the crisis of strengthening the survivors of domestic violence. I have toured centers in Arizona--for example, city centers against family violence in Mesa, Glendale, and Scottsdale, all leading the way. We have raised money and dedicated sites for the Autumn House Domestic Violence Shelter, Chrysalis Shelter, the Center Against Sexual Abuse, ChildHelp USA, and the Sexual Assault Recovery Institute, and many others. I thank all of them for their efforts in trying to deal with this important crisis. I also thank those of my colleagues who have been involved in this effort: my colleague Dianne Feinstein, who has worked so tirelessly in this effort in trying to provide help for victims of crime, for example; Senator Biden, who was one of the authors of the resolution about which I spoke earlier. There are others who will come to the floor of the Senate throughout the morning either to provide statements or to deliver them here noting the nature of the problem. It is fitting that this month is designated as National Domestic Violence Awareness Month. It is fitting that our resolution passed in the Senate notes that we should raise awareness of domestic violence in the United States and its devastating effects on families, as I said in the beginning. In order to solve this problem, we have to begin by acknowledging it and confronting it. It is indeed time to talk.

Mr. KYL

Mr. KYL. Yes.

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. Here is what Professor Turley had to say about the seaport-security provision during the hearing on TFTA: [Subtitle D] addresses a weakness in our domestic security system that has been repeatedly criticized as perhaps the country's single greatest threat: seaport security. While much remains to be done in terms of real security improvements at seaports, [subtitle D] represents one of the most significant legal reforms in this area. * * * * * While many of [the acts of violence proscribed by TFTA] can be currently prosecuted under other laws, [subtitle D] would create a tailored series of offenses affecting seaports and seagoing vessels. For example, one important addition would be a crime for knowingly transporting dangerous material for a terrorist operation or a terrorist. This new crime in Section [455] will serve to increase the expected deterrent for transporters. Currently, a transporter can be prosecuted as a co-conspirator as well as charged with false statements in many cases. However, Section [455] would define a crime specifically with this type of opportunistic conduct in mind. For a prosecutor, such a tailored law makes a case more compelling for a jury. * * * * * These laws give the Executive Branch more flexibility and options in dealing with misconduct at our seaports. It could not be more timely or more justified given recent warnings from security experts. Process: Subtitles C and D are identical to bills introduced this year by Senators Sessions and Biden, respectively. The Sessions bill was the subject of a hearing before the Senate Judiciary Committee on April 8, 2004. The Senate Subcommittee on Terrorism held a hearing on the need to improve security at U.S. seaports on January 27 of this year. Information Sharing: The 9/11 Commission Report recommends that ``information procedures should provide incentives for sharing, to restore a better balance between security and shared knowledge.'' The Report also recommends that the President ``coordinate the resolution of the legal, policy, and technical issues across agencies to create a `trusted information network' ''--and that this information-sharing network and the FBI ``build a reciprocal relationship, in which state and local governments understand what information they are looking for and, in return, receive some of the information being developed.'' Sections 422 and 423 of my amendment act on these recommendations by improving the FBI's ability to share intelligence information that has been obtained under existing authorities. Section 422 creates a uniform standard under which the FBI would disseminate intelligence information to other federal agencies. Under current law, several different statutes govern the circumstances under which the FBI may disseminate intelligence information to other federal agencies. Some of these statutes anomalously place restrictions on information sharing with other federal agencies that are greater than the restrictions applied to non-federal agencies. This section allows dissemination of intelligence information under uniform guidelines developed by the Attorney General. Section 423 amends current law to make clear that national-security- related information may be shared with relevant Federal, State, and local officials regardless of whether the investigation that produced the information is characterized as a ``criminal'' investigation or a ``national security'' investigation. This section also would authorize the sharing of grand-jury information with appropriate state and local authorities. I do not think one can overstate the importance of information sharing--of tearing down the walls that prevent different parts of the government from exchanging intelligence and working together in the war on terror. A graphic illustration of the importance of tearing down the legal walls between different terror investigators is provided by another pre-September 11 investigation. Like the Moussaoui case, this investigation also came tantalizing close to substantially disrupting or even stopping the 9/11 plot--and also ultimately was blocked by a flaw in our antiterror laws. The investigation that I am talking about involved Khalid Al Midhar, one of the suicide hijackers of American Airlines Flight 77, which was crashed into the Pentagon, killing 58 passengers and crew and 125 people on the ground. An account of the investigation of Midhar is provided in the 9/11 Commission's Staff Statement No. 10. That statement notes as follows: During the summer of 2001 [an FBI official] . . . found [a] cable reporting that Khalid Al Mihdhar had a visa to the United States. A week later she found the cable reporting that Mihdhar's visa application--what was later discovered to be his first application--listed New York as his destination. . . . The FBI official grasped the significance of this information. The FBI official and an FBI analyst working the case promptly met with an INS representative at FBI Headquarters. On August 22 INS told them that Mihdhar had entered the United States on January 15, 2000, and again on July 4, 2001. . . . The FBI agents decided that if Mihdhar was in the United States, he should be found. These alert agents immediately grasped the danger that Khalid Al Midhar posed to the United States--and immediately initiated an effort to track him down. Unfortunately, at the time, the law was not on their side. The Joint Inquiry Report of the House and Senate Intelligence Committees describes what happened next: Even in late August 2001, when the CIA told the FBI, State, INS, and Customs that Khalid al-Mihdhar, Nawaf al-Hazmi, and two other ``Bin Laden-related individuals'' were in the United States, FBI Headquarters refused to accede to the New York field office recommendation that a criminal investigation be opened, which might allow greater resources to be dedicated to the search for the future hijackers. . . . FBI attorneys took the position that criminal investigators ``CAN NOT'' (emphasis original) be involved and that criminal information discovered in the intelligence case would be ``passed over the wall'' according to proper procedures. An agent in the FBI's New York field office responded by e-mail, saying: ``Whatever has happened to this, someday someone will die and, wall or not, the public will not understand why we were not more effective in throwing every resource we had at certain problems.'' The 9/11 Commission staff report assesses the ultimate impact of these legal barriers: Many witnesses have suggested that even if Mihdhar had been found, there was nothing the agents could have done except follow him onto the planes. We believe this is incorrect. Both Hazmi and Mihdhar could have been held for immigration violations or as material witnesses in the Cole bombing case. Investigation or interrogation of these individuals, and their travel and financial activities, also may have yielded evidence of connections to other participants in the 9/11 plot. In any case, the opportunity did not arise. Congress must do what it can now to make sure that something like this does not happen again--that arbitrary, seemingly minor bureaucratic barriers are not allowed to undermine our best leads toward uncovering an attack on the United States. Sections 422 and 423 of my amendment would do just that. Process: Subsection (b) of section 423 is included in H.R. 10, the House of Representatives' 9/11 Commission bill. Sections 422 and 423 both are identical to a bill that has been introduced by Senator Chambliss. Subpoena Authority: The bill that the Senate is now considering already authorizes subpoena authority. Section 141(f)(5) of the bill authorizes the National Intelligence Authority's Inspector General to issue subpoenas for his investigations. It also authorizes the Inspector to go to federal court to enforce his subpoenas if a recipient refuses to comply with them. Section 211(g) of the bill also authorizes the new Privacy and Civil Liberties Board to issue administrative subpoenas and to seek their judicial enforcement. I agree with the bill's judgment that subpoena authority can be an important investigative tool. For this reason, section 415 of my amendment authorizes the Attorney General to issue judicially enforceable subpoenas in an ``investigation of a Federal crime of terrorism.'' Rachel Brand, the Principal Deputy Assistant Attorney General for the Justice Department's Office of Legal Policy, described the need for subpoena authority in terrorism investigations in a hearing before my subcommittee on June 22 of this year. Ms. Brand noted: Although grand jury subpoenas are a sufficient tool in many investigations, there are circumstances in which an administrative subpoena would save precious minutes or hours in a terrorism investigation. For example, the ability to use an administrative subpoena will eliminate delays caused by factors such as the unavailability of an Assistant United States Attorney to immediately issue a grand-jury subpoena, especially in rural areas; the time it takes to contact an Assistant United States Attorney in the context of a time- sensitive investigation; the lack of a grand jury sitting at the moment the documents are needed (under federal law, the ``return date'' for a grand-jury subpoena must be on a day the grand jury is sitting); or the absence of an empaneled grand jury in the judicial district where the investigation is taking place, a rare circumstance that would prevent a grand-jury subpoena from being issued at all. To appreciate the potential importance of an administrative subpoena in a terrorism case, consider the following hypothetical example. On Friday afternoon, counter-terrorism investigators learn that members of an al Qaeda cell have purchased bomb-making materials from a chemical company. They want to obtain records relating to the purchase that may reveal what chemicals the terrorists bought, as well as delivery records that might reveal the terrorists' location. Investigators reach a prosecutor, who issues a grand jury subpoena for those records. But because the grand jury is not scheduled to meet again until Monday morning and the recipient of a grand jury subpoena is not required to produce the records until the next time the grand jury meets, investigators may not be able to obtain the information for three days during which time the al Qaeda cell may have executed its plan. If investigators had the authority to issue an administrative subpoena, they could obtain the records immediately and neutralize the cell. A recent paper issued by the Republican Policy Committee points out how anomalous it is that the FBI does not have subpoena authority for terrorism investigations. As that report notes, ``[c]urrent provisions of federal law grant [administrative-subpoena] authority to most government departments and agencies.'' Moreover, ``[t]hese authorities are not restricted to high-profile agencies conducting life-or-death investigations.'' As the paper notes, federal law currently authorizes postal inspectors to issue administrative subpoenas when investigating any ``criminal matters related to the Postal Service and the mails.'' Similarly, the Small Business Administration is empowered to use administrative subpoenas to investigate criminal activities under the Small Business Act, such as embezzlement and fraud. The Bureau of Immigration and Customs Enforcement has administrative-subpoena authority for investigations of violations of the immigration laws. And DEA agents have subpoena authority for criminal investigations under the Controlled Substances Act. As the RPC Policy Paper concludes, ``One can hardly contend that federal investigators should be able to issue administrative subpoenas to investigate Mohammed Atta if they suspect that he broke into a mailbox--but should not have the same authority if they suspect he is plotting to fly airplanes into buildings.'' Professor Jonathan Turley also commented on TFTA's subpoenas provision in his testimony before the Terrorism Subcommittee. He stated: There is little reason to believe that a [Judicially Enforceable Terrorism Subpoena] provision would be unconstitutional. * * * * * Much is made [by some critics] of the shift from a grand- jury subpoena to a JETS system. However, the term grand-jury subpoena is misleading in that it is not issued by a grand jury but a federal prosecutor. ``[A] grand jury subpoena gets its name from the intended use of the . . . evidence, not from the source of its issuance.'' Doe v. DiGenova, 779 F.2d 74, 80 n.11 (D.C. Cir. 1985). Administrative subpoenas are currently used in dozens of areas and they have been upheld by the United States Supreme Court. It is extremely rare for a federal prosecutor to deny such a request from the FBI and the elimination of an Assistant United States Attorney from the process is not likely to produce a significant change in the level of review. Professor Turley also added: ``I would strongly encourage the Senate to couple any JETS provision with a close oversight process to monitor the number and nature of subpoenas issued under the new law.'' As I previously noted, the amendment that I offer today implements this recommendation: it includes a requirement that the FBI report on the number of subpoenas that it employs under the new authority and the circumstances of their issue. Terrorist Training Camps: The 9/11 Commission Report recommends that the U.S. government ``identify and prioritize actual or potential terrorist sanctuaries. For each, it should have a realistic strategy to keep possible terrorists insecure and on the run, using all elements of national power.'' The Report explains that such sanctuaries pose a threat because they provide terrorist groups with the ``opportunity and space to recruit, train, and select operatives''--and that the hospitable environment in the United States also allowed this country to be used for terrorist training and exercises. Section 425 of my amendment would make it a federal offense to knowingly receive military-type training from or on behalf of a designated foreign terrorist organization. This provision applies extraterritorially to U.S. nationals, permanent residents, stateless persons whose habitual residence is the United States, or a person who is brought into or found in the United States. The Justice Department testified in favor of this provision at the Terrorism Subcommittee's hearing on the TFTA. The joint statement of Messrs. Sabin and Bryant notes that: It is critical that the United States stem the flow of recruits to terrorist training camps. A danger is posed to the vital foreign policy interests and national security of the United States whenever a person knowingly receives military-type training from a designated terrorist organization or persons acting on its behalf. Such an individual stands ready to further the malicious intent of the terrorist organization through terrorist activity that threatens the security of United States nationals or the national security of the United States. Moreover, a trainee's mere participation in a terrorist organization's training camp benefits the organization as a whole. For example, a trainee's participation in group drills at a training camp helps to improve both the skills of his fellow trainees and the efficacy of his instructors' training methods. Additionally, by attending a terrorist training camp, an individual lends critical moral support to other trainees and the organization as a whole, support that is essential to the health and vitality of the organization. Professor Turley had the following to say about this provision of TFTA in his testimony before the Terrorism Subcommittee: This proposal would fill a gap in our laws revealed by recent cases, like that of Jose Padilla, where citizens have trained at terrorist camps. . . . The proposed crime has been narrowly tailored to require a clear knowledge element as well as a reasonable definition of military-type training. The United States has an obvious interest in criminalizing such conduct and to deter citizens who are contemplating such training. In my view, it raises no legitimate issue of free association or free speech given the criminal nature of the organization. Most importantly, given the use of these camps to recruit and indoctrinate such citizens as Padilla and John Walker Lindh, this new criminal offense is responsive to a clear and present danger for the country. Section 425 of my amendment is identical to section 2042 of the House of Representatives' 9/11 Commission bill. Terrorist Hoaxes: The 9/11 Commission Report notes at several places that false information about terrorist threats influenced key events on September 11, 2001: possibly ``a false report of a third plane approaching'' influenced fire crews' decisions on the ground in New York City on that day, and crisis managers were forced to sort out ``a number of unnerving false alarms'' immediately after the attacks. The Justice Department also has commented on the harm caused by false information and terrorist hoaxes. In its testimony on the TFTA, the Department noted: Since September 11, hoaxes have seriously disrupted people's lives and needlessly diverted law-enforcement and emergency-services resources. In the wake of the anthrax attacks in the fall of 2001, for example, a number of individuals mailed unidentified white powder, intending for the recipient to believe it was anthrax. Many people were inconvenienced, and emergency responders were forced to waste a great deal of time and effort. Similarly, in a time when those in uniform are making tremendous sacrifices for the country, several people have received hoax phone calls reporting the death of a loved one serving in Iraq or Afghanistan. Section 416 of my amendment is intended to reduce the flow of false information about terrorist or national-security-related events by making it a criminal offense to knowingly convey false information about terrorist crimes or the death or injury of a U.S. soldier during war--if such misinformation is conveyed under circumstances where it may reasonably be believed. Professor Turley, at the Terrorism Subcommittee hearing on TFTA, commented that: This new provision would create a serious deterrent to a type of misconduct that routinely places the lives of emergency personnel at risk and costs millions of dollars in unrecouped costs for the federal and state governments. Since a terrorist seeks first and foremost to terrorize, there is precious [little] difference between a hoaxster and a terrorist when the former seeks to shut down a business or a community with a fake threat. . . . This provision responds to the increase in this form of insidious misconduct and correctly defines it as criminal conduct. Process: A bill that is substantially identical to section 416 first was introduced almost three years ago by Representative Lamar Smith on November 11, 2001. That proposal was the subject of a hearing before the House Crime Subcommittee on November 7, 2001. The bill was reported by the House Judiciary Committee on November 29, 2001, which issued Report No. 107-306 for the bill. The Smith bill was then unanimously approved by the House of Representatives on December 12, 2001. Representative Smith reintroduced the bill in this Congress. The House Crime Subcommittee held another hearing on the proposal on July 10, 2003, and the Judiciary Committee issued Report No. 108-505 for the new Smith bill. Also, Senator Hatch has introduced a version of this proposal in the Senate. Section 416 of my amendment is nearly identical to section 2022 of the House of Representatives' 9/11 Commission bill. Financial and Material Support to Terrorists: The 9/11 Commission Report states in its recommendations that ``vigorous efforts to track terrorist financing must remain front and center in U.S. counterterrorism efforts.'' Subtitle E of my amendment, the ``Combating Money Laundering and Terrorist Financing Act,'' expands the list of predicate offenses for money laundering to include burglary and embezzlement, operation of an illegal money-transmitting business, and offenses related to alien smuggling, child exploitation, and obscenity that were enacted or amended by the Protect Act. It also amends current law to prohibit concealing having provided financing while knowing that it has been or will be provided to terrorists. Section 424 of my amendment expands existing prohibitions on providing material support to terrorist groups. This provision makes it a crime to provide material support to any crime of international or domestic terrorism, and expands federal jurisdiction over such offenses. The Justice Department emphasized the importance of the material- support statute in its joint statement on the TFTA before the Terrorism Subcommittee: The TFTA . . . improves current law by clarifying several aspects of the material support statutes. This is another key tool in preventing terrorism. As the Department of Justice has previously indicated, ``a key element of the Department's strategy for winning the war against terrorism has been to use the material support statutes to prosecute aggressively those individuals who supply terrorists with the support and resources they need to survive . . . . The Department seeks to identify and apprehend terrorists before they can carry out their plans, and the material support statutes are a valuable tool for prosecutors seeking to bring charges against and incapacitate terrorists before they are able to cause death and destruction.'' The 9/11 Commission Report also emphasizes the need ``to ensure protection of civil liberties'' during the war on terrorism. In order to address concerns raised by some courts and litigants about the chilling effect of the current material-support statute, section 424 of the amendment clarifies what it means to provide ``training,'' ``personnel,'' and ``expert advice or assistance'' to a terrorist group. Professor Turley, in his Terrorism Subcommittee testimony on TFTA, said of section 424 that ``[t]his proposal would actually improve the current federal law by correcting gaps and ambiguities that have led to recent judicial reversals. In that sense, the proposal can be viewed as a slight benefit to civil liberties by removing a dangerous level of ambiguity in the law.'' A provision identical to section 424 of my amendment appears in the House of Representatives 9/11 Commission bill as section 2043. Presumption of No Bail for Terrorists: Section 413 of my amendment would add terrorists to the category of criminal defendants for whom there is a presumption of no bail. Under current law, a criminal suspect will be denied bail in federal court if the government shows that there is a serious risk that the suspect will flee, obstruct justice, or injure or threaten a witness or juror. The judge must presume this showing is present if the suspect is charged with a crime of violence, a drug crime carrying a potential sentence of ten years or more, any crime that carries a potential sentence of life or the death penalty, or the suspect previously has been convicted of two or more such offenses. Section 413 would add terrorist offenses to this list-- judges would be required to presume that facts requiring a denial of bail are present. This is only a presumption--the terror suspect still could attempt to show that he is not a flight risk or potential threat to jurors or witnesses. The Justice Department testified as to the importance of this provision at the Terrorism Subcommittee hearing on TFTA: Current law provides that federal defendants who are accused of serious crimes, including many drug offenses and violent crimes, are presumptively denied pretrial release under 18 U.S.C. Sec. 3142(e). But the law does not apply this presumption to those charged with many terrorism offenses. To presumptively detain suspected drug traffickers and violent criminals before trial, but not suspected terrorists, defies common sense. * * * * * This omission has presented authorities real obstacles to prosecuting the war on terrorism, as Michael Battle, U.S. Attorney for the Western District of New York, testified before this subcommittee on June 22. In the recent ``Lackawanna Six'' terrorism case in his district, prosecutors moved for pre-trial detention of the defendants, most of whom were charged with (and ultimately pled guilty to) providing material support to al Qaeda. It was expected that the defendants would oppose the motion. What followed was not expected, however. Because the law does not allow presumptive pre-trial detention in terrorism cases, prosecutors had to participate and prevail in a nearly three- week hearing on the issue of detention, and were forced to disclose a substantial amount of their evidence against the defendants prematurely, at a time when the investigation was still ongoing. Moreover, the presiding magistrate judge did in fact authorize the release of one defendant, who, it was later learned, had lied to the FBI about the fact that he had met with Osama bin Laden in Afghanistan. The Lackawanna Six case illustrates the real-life problems the absence of presumptive pre-trial detention has posed to law enforcement. But this shortcoming in the law has also enabled terrorists to flee from justice altogether. For example, a Hezbollah supporter was charged long ago with providing material support to that terrorist organization. Following his release on bail, he fled the country. The suspect described above eventually was recaptured by the United States 6 years after his escape. During that time, he was not a participant in a terrorist attack against the United States--but he could have been. Jonathan Turley also commented on section 413 in his testimony at the Terrorism Subcommittee hearing on TFTA. He stated: [Section 413] would create a presumption against bail for accused terrorists. Under this amendment, such a presumption could be rebutted by the accused, but the court would begin with a presumption that the accused represents a risk of flight or danger to society. This has been opposed by various groups, who point to the various terrorist cases where charges were dismissed or rejected, including the recent Detroit scandal where prosecutorial abuse was strongly condemned by the Court. I do not share the opposition to this provision because I believe that, while there have been abuses in the investigation and prosecution of terrorism cases, the proposed change sought by the Justice Department is neither unconstitutional nor unreasonable. * * * * * This proposal would not impose a categorical denial of bail but a presumption against bail in terrorism cases. Congress has a clearly reasonable basis for distinguishing terrorism from other crimes in such a presumption. In my view, this would be clearly constitutional. While I have been critical of the policies of Attorney General John Ashcroft, I do not share the view of some of my colleagues in the civil liberties community in opposition to this change. There is currently a presumption against pretrial release for a variety of crimes in 18 U.S.C. Sec. 3142(e), including major drug crimes. It seems quite bizarre to have such a presumption in drug cases but not terrorism cases. Use of FISA in immigration proceedings: The 9/11 Commission Report recommends that the United States ``combine terrorist travel intelligence, operations, and law enforcement in a strategy to intercept terrorists, find terrorist travel facilitators, and constrain terrorist mobility.'' The report also states that ``[t]he challenge for national security in an age of terrorism is to prevent the very few people who may pose overwhelming risks from entering or remaining in the United States undetected.'' Section 419 of my amendment is designed to allow the federal government to more readily employ intelligence information to keep suspected terrorists out of the United States. The Foreign Intelligence Surveillance Act requires the government to provide notice when information obtained through FISA is used in any federal proceeding. In 1996, Congress created an exception to this requirement for alien- terrorist removal proceedings. This section would extend this exception to all immigration proceedings--the government would be able to use FISA information to deny an alien a particular immigration benefit, to bar his reentry, or to detain him on immigration charges, all without revealing that the information was obtained through FISA. Such authority would be useful because in many instances, notice that information was obtained through FISA would disclose to the alien that he or his associates have been the target of a FISA investigation--a disclosure that effectively would compromise an ongoing investigation. Professor Turley addressed this provision in his testimony before the Terrorism Subcommittee on the TFTA: This provision would change the current system in which the government must notify parties in an immigration case that it is using information obtained through FISA. . . . Section [419] was criticized recently by the American Immigration Lawyers Association (AILA) group as ``constitutionally dubious.'' Despite my respect for AILA and its work, I must disagree with the suggestion that this provision might be found unconstitutional. The government is allowed to use secret evidence in such proceedings and the only change here is the identification of the source of such secret information. . . . This provision would, in my view, pass constitutional muster. . . . [T]he true legal change produced by Section [419] is marginal. There are good-faith reasons for the government's reluctance to acknowledge an on-going FISA investigation. While I oppose FISA generally, this does not appear an unreasonable request from the Justice Department. Other provisions: lifetime post-release supervision, obstruction of justice, denial of benefits. In his testimony on TFTA before the Terrorism Subcommittee, Professor Turley also had the following to say about these provisions of TFTA: [Section 414] This provision would make terrorists eligible for lifetime post-release supervision. Under the current law, certain individuals convicted of terrorist crimes are not eligible for lifetime post-release supervision because the underlying offense did not create a foreseeable risk of death or serious injury. The Justice Department has objected to the current language of 18 U.S.C. Sec. 3583 as too restrictive since there are many individuals who knowingly support terrorist activities, but do so through less overtly violent means, such as computer-related crimes. The purpose is only to make such individuals eligible for lifetime supervision. This proposal seems facially reasonable in light of the sophisticated web of supporting co-conspirators working with groups like Al-Qaeda. [Section 417] This provision increases the penalties for obstruction of justice in terrorism cases. The Justice Department believes that the increase from 5 to 10 years in terrorism cases is needed to show the added severity of such misconduct in this context. For the purpose of full disclosure, I have represented defendants charged under false statement provisions like 18 U.S.C. Sec. 1001 and I have been a critic of the abusive use of false statement charges by the Justice Department in non-terrorist cases. However, seeking higher penalties for obstruction in the area of terrorism is not an unreasonable demand and certainly would not raise any immediate constitutional problems. [Section 421] This provision would deny federal benefits to convicted terrorists. The denial of such benefits is currently allowed under the Controlled Substances Act and makes obvious sense given the nature of these crimes. In conclusion, I would simply remind my colleagues that every provision of TFTA has been fully explored in congressional committee hearings--the individual provisions of the bill have been the subject of nine separate hearings--and every provision of TFTA has the full support of the Department of Justice. These provisions address obvious and in some cases glaring gaps in our nation's antiterrorism safety net. We cannot allow these problems to continue to go unaddressed. I urge my colleagues to support the amendment. Mr. President, this is a controversial amendment. It is sometimes called the Tools for Terrorism Act. There are 20 specific provisions of this amendment. Some of them are very uncontroversial, some have become controversial. What I am proposing to do by laying this amendment down is begin a dialog with members of both the majority and the minority to see which of them we can agree to be adopted. This was the most efficient way to do that rather than independently offering each one seriatim. But it is my intention to work out a unanimous consent agreement with both sides that would result in as much of this amendment as possible, from my perspective, but in any event, as much as we can agree upon, being agreed to without any further debate or votes if they are not necessary.

Mr. KYL. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. KYL. Mr. President, I am happy to go to my third amendment. This is amendment No. 3724.

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 ask unanimous consent that the reading of the amendment be dispensed with.

Mr. KYL. Mr. President, the second amendment that I ask be read is at the desk. It is amendment No. 3881.

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)