10.12.01

Senator Maria Cantwell's Statement on the Senate Anti-Terrorism Bill

Mr. President, I support this bill but I do so only with the gravest reservations. We are giving broad new powers to our law enforcement and intelligence communities, without the traditional safeguards of judicial review and congressional oversight. I believe that many provisions of the bill, particularly those sections dealing with electronic eavesdropping and computer trespass, remain seriously flawed and may infringe on civil liberties.

While I will support the bill because I believe it provides new and necessary tools in the fight against terror, I also believe this legislation could have been much better if its focus had been different. Rather than unleashing new investigative powers that may or may not work to stop terrorism, this bill could have provided new tools to secure our borders and coordinate international information on the whereabouts of individuals with terrorist affiliations.

The fight against terrorism requires not only law enforcement tools and wiretaps, but also requires us to develop the single best coordinated effort of sharing and analyzing information to disrupt terrorist planning and rout out terrorist sympathizers. Our federal agencies were designed, trained, and funded to combat an enemy far different than the one we recently encountered. It is clear that changes must be made across the board to effectively prevent future terror and allow us to defend against new threats.

I am voting for this bill today with the strong hope that it will be improved in a conference with the House. Sections of the bill break down the traditional separation of domestic criminal matters governed by the Fourth Amendment right against unwarranted search and seizure from the gathering of international intelligence information, which is granted broader discretion. I strongly believe we should include a sunset provision that would give Congress the opportunity to reassess whether these new tools are yielding the intended results in the war on terror.

If this bill is not improved through a conference process or other negotiation, I reserve the right to vote against a conference report.

The civil liberties of our citizens must not be compromised because we are legislating in a climate of uncertainty.

I am also supporting much of the Senate version of the bill, however, because I believe Chairman Leahy has succeeded in adding provisions that will significantly advance our battle against terrorism. I thank the Chairman for his hard work on these provisions and appreciate his efforts in strengthening the northern border.

This legislation takes a dramatic step toward increasing the investments we've made in tools and technology for our consular and INS staff. We rely on these front-line individuals to make the decisions on a daily basis that keep terrorists out of our country. But right now we have more than mere gaps in technology or cracks in our border protection - we have gaping holes that have allowed terrorists to walk freely onto American soil.

Among the most important provisions that the Chairman has added is the authorization to triple staffing across our northern border, and to provide much-needed funding for technology purchases and upgrades for the northern border.

The increases in manpower are desperately needed. The northern border is patrolled by only 300 border patrol agents in contrast to the 9,000 on the southern border. More critically, at points of entry where suspect persons have repeatedly tried to enter or have entered, we must provide sufficient staffing to allow Customs and INS inspectors and INS agents to do their job well. We place a tremendous responsibility on the individuals charged with deciding whom to admit and whom to turn away. We must provide them enough people and new tools to do their job well.

One new tool this bill provides is the establishment of a visa technology standard to help secure our border. I personally worked to get language included in this bill that requires the State Department and the Department of Justice to develop a technology standard, so that we can be certain each individual who seeks entry into our country on a visa is the person he or she claims to be and there is no known reason to keep that person out.

American citizenship comes with deeply valued privileges and rights. One of the most basic of those rights is privacy. To require a fingerprint or a digital photograph of an alien seeking to enter our country is a reasonable and effective way to improve our ability to keep terrorists out of this country while still welcoming a vibrant flow of legal aliens. Aliens seeking to visit, go to school, work, or engage in business will provide the consular officer considering his or her visa application with some type of biometric - most likely fingerprint or digital photo or both - so that we can compare the identity information with that of persons unwelcome in the U.S. With this technology, we will be able to confirm the person presenting a visa at the border is the person who received the visa.

This technology standard is not prescriptive. I have left it to the agencies to determine what type of identifying information should be required as part of the visa process, but this is a reasonable step to encourage these agencies to do more quickly and with greater coordination. This provision simply seeks to get agencies to work closely together to make certain that the technology chosen is coordinated, workable and is the basis for interoperable systems.

To get a sense of the challenge the agents face, currently, there is no technology standard in place that allows the U.S. government to confirm with certainty that people seeking entry into the U.S. through the visa program are eligible for entry, or are persons who have not previously sought and received a visa under a different name. Not enough data is available to our consular officers, who are responsible for reviewing visa applications, or to U.S. border inspectors admitting aliens into the United States, which would allow them to confirm the identity of an alien applying for or using a U.S. visa. Current systems are antiquated, have insufficient capacity to handle the traffic of visa-related database queries, and are incompatible among departments and agencies.

Focusing on the visa process is also a targeted method of focusing on the most suspect persons, as citizens of 29 of our closest allies including most European countries, Japan and Canada can enter without visas. And this is as it should be.

Since 1996, the State Department has issued over 4.5 million laser visas that contain fingerprint information, and the State Department and the INS are currently engaged in a pilot program that provides pictures from the consular offices where the visa was obtained to the point of entry inspector at the Newark airport. We need to move faster to improve these systems and to implement the use of this type of technology into a cohesive national effort.

I hope that as we develop a new standard that appropriately facilitates more secure borders, other countries would be interested in taking advantage of that standard to improve integration of information regarding dangerous individuals with the United States, and to address our mutual concern of border security. We must work with our allies to keep terrorists from entering our nations.

Unfortunately, aspects of this bill that greatly expand electronic eavesdropping in this country without providing adequate safeguards are deeply troubling. This bill attempts to improve our ability to eavesdrop on terrorists in this country without abridging American's Fourth Amendment right of reasonable search and seizure. I do not believe it does a good enough job.

Expansion of wiretap authority under the Foreign Intelligence Surveillance Act will expand the ability of the government - allowing wiretaps on the lines of American citizens - not just foreign terrorists. And it will be done in secret with insignificant reporting to the Congress, and with no way for Congress to conduct meaningful oversight.

While we are in a new era in our fight against terrorism, we also need to be mindful of our history. If there is one thing we know it is that providing broad powers to intelligence-gathering entities without requiring meaningful oversight endangers our civil liberties and may plunge this country into a crisis just as dangerous -- if not as costly in terms of human life -- as terrorist acts.

I am also discouraged by our inability to reach a true consensus on accessing email communications. I would like to believe that technologies like Carnivore will not be used to derive content from email communications under the terms of this bill, but I am skeptical. Those of us who feel strongly about the use of technology to chip away at traditional privacy rights will closely watch how law enforcement uses this particular new tool.

Finally, I am concerned about a provision that invites unrestrained surveillance of "computer trespassers." Indeed, I am very concerned about protecting our critical infrastructure. And I applaud the goals of this provision. But I believe the drafting is, at best, sloppy, and when viewed with the most jaundiced eye could allow law enforcement to infringe personal privacy significantly. Once approved by a computer system owner or operator, the FBI could intercept all communications with the "computer trespasser" without any constraint. There should be limitations on the scope of the information law enforcement can obtain through this provision, particularly since there is no judicial review of these interceptions.

There are numerous relatively minor aspects of this bill that, when taken together, potentially will interfere with Americans' enjoyment of their right to privacy in a manner not demonstrated to be valuable in the fight against terrorists. Some of these changes to the law may simply be a product of the speed with which we must consider this legislation. I accept that, and I will work to correct these provisions as problems come to light. I have the assurance of the Judiciary Committee Chairman that we will exercise our oversight authority with great zeal to protect the constitutional rights of U.S. citizens and will work closely with the Committee to fulfill our oversight responsibilities.

I also believe this legislation misses an opportunity to meaningfully address the issue of discrimination. This would have been an ideal place to take a stand against crimes based on race, religion and sexual orientation. I have been disheartened that my state has seen incidents of hate crimes against Arab-Americans, Muslims and Sikhs in the wake of the attacks. The Department of Justice and local jurisdictions will be facing a challenge in prosecuting the violence that has arisen against Muslims and Arabs in the wake of the attack, and this legislation could have been a beneficial tool in helping to send a message that hate crimes will not be tolerated.

In Washington state alone, an individual has already been charged with shooting at several people and setting fire to the cars of worshippers outside a mosque in Snohomish; a Sikh cabdriver was harassed and physically assaulted by a passenger in King County; and over 40 students from the United Arab Emirates have withdrawn from Washington State University out of fear for their safety. Just after the terrorists attacks, a person in Shoreline, a city just outside Seattle, apparently scoured the yellow pages searching for the word "Arab," only to leave a frightening message on the answering machine of the Arabic Language and Translation Service. I condemn such threatening and violent acts that merely compound the horror of the terrorist attacks.

Americans are better than these acts of hate. I have confidence that Americans are large enough in spirit to be tolerant, and that these instances of physical violence will not continue. We must recognize that the pain we feel is the also the pain felt by Muslims and people of Arab descent. Regardless of what religion we practice, we are first and foremost Americans who honor the same flag. There is no real "Islamic terrorist" - some terrorists may believe in Islam, others may have other religious beliefs - but it is the terrorism that we abhor, not the true religious belief or those who simply share those beliefs.

The events of September 11th have changed us as a country forever. We have been attacked on our own soil. Thousands have died, thousands more have been injured. Very simply, we must do all that we can to stop terrorism by finding and disrupting terrorist activities here and abroad. The challenge we face is to do this without compromising the values that make Americans unique and have allowed us to become great: respect for personal autonomy and the rights of the individual; and tolerance of all regardless of race or religion. While I will likely vote for this bill, I also promise to engage in vigilant oversight of these new powers, and I urge those in the law enforcement and intelligence communities to use these powers wisely and with great deliberation.