Statement of U.S. Senator Russ Feingold on the Intelligence Reform Conference Report for the Congressional Record December 8, 2004 Mr. President, with a recognition that this bill is imperfect, and with the firm conviction that this effort is only one step in a much broader effort needed to get this country on the right track to effectively defeat the terrorist forces that have attacked this country, I will vote in favor of the intelligence reform conference report today. I have tremendous respect for the 9/11 Commission that made the recommendations at the heart of this legislation. Their report was not characterized by an ill-considered rush to simply act, but rather an imperative to act wisely. It was not colored by partisan biases, or tainted by self-deluding rosy scenarios about where we stand as a country. I may not agree with every word in the 9/11 Commission's report, but I strongly agree with the vast majority of it, and I believe that the Commission performed a tremendous service for the American people. Among the most detailed and thoughtful recommendations of the Commission were those focused on the urgent need for reform of America's intelligence community. By stressing unified effort, and most importantly, accountability, the Commission pointed the way toward the reforms contained in this bill. This bill puts someone in charge of America's intelligence community -- someone to be appointed by the President and confirmed by the elected representatives of the American people in the Congress. The Director of National Intelligence will be in charge not simply via title and not only because we reorganized boxes on an organizational chart. This legislation provides real authorities to the DNI in terms of allocating resources, establishing tasking priorities, and ensuring information-sharing to unify our efforts. It is up to the Director to use the powers granted in this bill to make this community function - to make sure that the right people have the right resources and the right priorities, and that they share crucial information with their colleagues. And I will add, Mr. President, that it is up to the President of the United States and this Congress to ensure that the lines of authority and the clear accountability laid out in the language of this legislation come alive. We must insist on real accountability; we must accept nothing less. The conference report also establishes, in law, the mandate for the National Counterterrorism Center to bring an integrated effort to that urgent priority. If we are ever to connect the disparate dots that can shed light on the methods, the plans, and the vulnerabilities of fluid, flexible terrorist networks that operate in the shadows, we must integrate our own efforts, not as an afterthought, but as a fundamental organizing principle. However, Mr. President, I am troubled by some provisions that were added in conference that have nothing to do with reforming our intelligence network. The bill includes in section 6001 what has come to be known as the "lone wolf" provision. The lone wolf provision eliminates the requirement in the Foreign Intelligence Surveillance Act ("FISA") that surveillance or searches be carried out only against persons suspected of being agents of foreign powers or terrorist organizations. I am very concerned about the implications of this provision for civil liberties in this country. It is important to remember that FISA itself is an exception to traditional constitutional restraints on criminal investigations, allowing the government to gather foreign intelligence information through wiretaps and searches without having probable cause that a crime has been or is going to be committed. The courts have permitted the government to proceed with surveillance in this country under FISA's lesser standard of suspicion because the power is limited to investigations of foreign powers and their agents. This bill therefore writes out of the statute a key requirement necessary to the lawfulness of intrusive surveillance powers that may very well otherwise be unconstitutional. By allowing searches or wiretaps under FISA of persons merely suspected of engaging in or preparing to engage in terrorism, the bill essentially eliminates the protections of the Fourth Amendment. I voted against the lone wolf bill when it passed the Senate early in this Congress. I believe there are better and more constitutional ways to deal with a situation where evidence of a connection to a foreign government or terrorist organization is not easily obtained. Even if section 6001 survives constitutional challenge, it would mean that non-U.S. persons could have electronic surveillance and searches authorized against them using the lesser standards of FISA even though there is no conceivable foreign intelligence aspect to their case. This provision may very well result in a dramatic increase in the use of FISA warrants in situations that do not justify such extraordinary government power. When the lone wolf provision was considered in the Senate as a stand alone bill last year, I supported an amendment by Senator Feinstein that we thought was a reasonable alternative way to make sure that FISA can be used against a lone wolf terrorist, without eliminating the important agent of a foreign power requirement. The amendment would have created a permissive presumption that if there is probable cause to believe that a non-U.S. person is engaged in or preparing to engage in international terrorism, the individual can be considered to be an agent of a foreign power even if the evidence of a connection to a foreign power is not clear. The use of a permissive presumption rather than eliminating the foreign power requirement would have maintained judicial oversight and review on a case by case basis on the question of whether the target of the surveillance is an agent of a foreign power. The permissive presumption would permit the FISA judge to decide, in a given case, if the government has gone too far in requesting a FISA warrant. Senator Feinstein's formulation would have put some limit on the government's ability to use this new power to dramatically extend FISA's reach. If the government comes to the conclusion that an individual is truly acting on his or her own, then our criminal laws concerning when electronic surveillance and searches can be used are more than sufficient. True lone wolf terrorists can and should be investigated and prosecuted in our criminal justice system. Section 6001 allows the government to use FISA to obtain a warrant for surveillance even if it knows that the subject has no connection whatsoever with a foreign power or a terrorist organization. That is not right. I am also very concerned about the material support (section 6601 et seq.) and pre-trial detention (section 6952) provisions contained in the conference report. Neither of these provisions was considered by the Senate, or even by the Senate Judiciary Committee. While it appears that the material support provision adopted by the conference is not as broad as the provision contained in the House bill, its full implications cannot possibly be analyzed in the brief time we have to consider this bill. The material support provision amends and expands the current crime of providing material support to terrorists or terrorist organizations. One federal court, of course, has ruled that a provision of the current statute is unconstitutional because it criminalizes First Amendment protected activities. In January, a federal judge in California ruled that a provision added by PATRIOT Act criminalizing the provision of "expert advice or assistance" to a terrorist organization was vague and therefore unconstitutional. The judge found that the term "expert advice or assistance" could be interpreted to include unequivocally pure speech and advocacy protected by the First Amendment. The judge found that the PATRIOT Act bans all expert advice and assistance, including providing peacemaking or conflict resolution advice, and places no limitation on the type of expert advice and assistance that is banned. The conference report attempts to cure this constitutional defect in the law. It states that the law criminalizing providing material support to a foreign terrorist organization shall not be construed to abridge rights guaranteed by the First Amendment. The conference report also allows an exception for providing personnel, training, or expert advice or assistance that is approved by the Secretary of State and the Attorney General. But I am not convinced that these provisions cure the constitutional flaws. And I believe that expanding this provision is therefore the wrong way to go. Furthermore, as I noted earlier, the material support provision in the conference report has not been debated and analyzed in the Senate Judiciary Committee or even on the floor of the Senate when this bill was considered before the election. The 9/11 Commission strongly recommended that when determining whether to expand federal law enforcement power, the burden is on the executive branch to show how its proposals would materially enhance security and what steps it will take to ensure the protection of civil liberties. The executive branch has not even started to meet that test here. We don't know how this new provision will work, and what problems might arise because of it. We haven't had the opportunity to consult with experts and consider amendments in the normal legislative process. Congress and the American people deserve a full debate on this issue. Inserting this provision in the conference report without that debate was a mistake. Similarly, the pretrial detention provision was not recommended by the 9/11 Commission, and the Administration has never shown how current law is inadequate. Furthermore, like the material support provision, this provision did not receive adequate consideration by the Senate. At the only hearing where this issue was raised this year, the Department of Justice could not give a single example where current law failed and this expanded presumption of pretrial detention was needed. Current law, which allows for bail to be denied if a defendant is a flight risk or a danger to the community, is fully adequate to cover the kinds of terrorism cases where bail should not be granted. Reasonable bail is a constitutional right. I am very troubled by the expansion of the presumption that bail will be denied. Unfortunately, this Justice Department has a record of abusing its detention powers post-9/11 and of making terrorism allegations that turn out to have no merit. It is worth noting that the crime of material support of terrorism, which has been expanded in this bill, is one of the crimes where a suspect is presumptively denied bail. In sum, as with the material support provision, the Administration has not met its burden of showing how the expanded pretrial detention provision is necessary and would not impair constitutional rights and protections. It has no place in this bill. Mr. President, this bill is not perfect. Over time, as the new structure begins to operate, we may find that additional changes are needed. But the conference report takes critically important steps in the right direction. I commend Senators Collins and Lieberman for working tirelessly to ensure that this legislation becomes law this year.

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