19 September 2001

By telephone yesterday Brian Hart of Senator Gregg's office said that
the senator had no plans at the present to introduce legislation revising
law governing encryption. Telephone: 202-224-3324.

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[Congressional Record: September 13, 2001 (Senate)]
[Page S9354-S9359]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr13se01-99]


DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
                   AGENCIES APPROPRIATIONS ACT, 2002

       A bill (H.R. 2500) making appropriations for the
     Departments of Commerce, Justice, and State, the Judiciary,
     and related agencies for the fiscal year ending September 30,
     2002, and for other purposes.


[Excerpt]

  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Madam President, I thank the chairman for yielding to me.
I appreciate his courtesy in my arriving in the Chamber a little late
for the beginning of this work, as a group of us were in a meeting on
how we are going to handle this bill and move it along, I hope.
  I congratulate the chairman of the committee for this bill, which is
a soothsayer bill really. Long before the events of the day before
yesterday, which were so horrific and which reflected the threat of
terrorism to our Nation, our committee aggressively pursued the issue
of how to try to prepare for such an act.
  We have held innumerable hearings over the last 4 or 5 years. One of
the lines that has flowed through all those hearings has been the fact
that our intelligence community--our communities focused on domestic
intelligence and our communities focused on international
intelligence--had concluded that it was more than likely, it was a
probability, that a terrorist event would occur in the United States
and that it would be of significant proportions. And it has occurred.
  How have we tried to ready for this? Well, a lot of the response you
saw in New York--which has been overwhelming and incredibly
professional, and heroic beyond description, which has taken the lives
of many firefighters and police officers and just citizens who went to
help--a lot of that response was coordinated as a result of initiatives
that came out of the hearing process, and the question of first
responder, and how we get the people who are first there up to speed as
to how to handle this type of event. So in that area at least there has
been some solace.
  But the real issue remains, How do you deal with an enemy who, as the
chairman just related, is willing to give their life to make their
point and who has, as their source of support, religious fervor, in
most instances--and I suspect this is going to be proved true

[[Page S9357]]

in this instance--a religious fervor which gives them a community of
support and praise which causes them to be willing to proceed in the
way that they did, which is to use their life to take other innocent
lives?
  First, how do you identify those individuals because they function as
a fairly small-knit group, and it is mostly familial. It involves
families. It involves sects which are very insular and very hard to
penetrate.
  But equally important, when you are trying to deal with that type of
a personality and that type of a culture, which basically seeks
martyrdom as its cause, as its purpose for life, and sees martyrdom as
part of its process for getting to an afterlife in terms of their
religious belief--how do you deal with that culture and group of
individuals without creating more problems, without creating more
people who are willing to take up the banner of hatred and willing to
pursue and use their life in a way to aggravate the situation?
  I think we as a committee have concluded that the first thing you
have to do is have a huge new commitment to intelligence. And we have
made this point. We have dramatically expanded the overseas efforts of
the FBI as an outreach of this effort. But it involves more than that.
  We have to set aside our natural inclination as a democracy to limit
the type of people we deal with in the area of human intelligence.
Unfortunately, the CIA in the 1990s was essentially limited and
defanged, for all intents and purposes, in the area of human
intelligence gathering because the directives and the policies did not
allow us, as a nation, to direct our key intelligence community to
basically go out and employ and use people who were individuals who
could give us the information we needed. Because of our reticence as a
democracy to use people who themselves may be violent and criminal, we
found ourselves basically sightless when it came to individual
intelligence.
  So we have to recognize that in a period of war, which is what I
think everyone characterizes this as, and which it truly is, we are, as
a nation, going to have to be willing to be more aggressive in the use
of human intelligence, and we are going to have to allow our agencies
in the international community to be more aggressive.
  Equally important, we, as a nation, because of our natural
inclination and our very legitimate rules relative to search and
seizure and invasion of privacy, have been very reticent to give our
intelligence communities the technical capability necessary to address
specifically encoding mechanisms.
  The sophistication of encoding mechanisms has become overwhelming. I
asked Director Freeh at one hearing when he was Director of the FBI--
and I remember this rather vividly because I didn't expect this
response at all--what was the most significant problem the FBI faced as
they went forward. He pretty much said it was the encryption capability
of the people who have an intention to hurt America, whether it
happened to be the drug lords or whether it happened to be terrorist
activity.
  It used to be that we had the capability to break most codes because
of our sophistication. This has always been something in which we, as a
nation, specialized. We have a number of agencies that are dedicated to
it. But the quantum leap that has occurred in the past to encrypt
information--just from telephone conversation to telephone
conversation, to say nothing of data--has gotten to a point where even
our most sophisticated capability runs into very serious limitations.

  So we need to have cooperation. This is what is key. We need to have
the cooperation of the manufacturing community and the inventive
community in the Western World and in Asia in the area of electronics.
These are folks who have as much risk as we have as a nation, and they
should understand, as a matter of citizenship, they have an obligation
to allow us to have, under the scrutiny of the search and seizure
clauses, which still require that you have an adequate probable cause
and that you have court oversight--under that scrutiny, to have our
people have the technical capability to get the keys to the basic
encryption activity.
  This has not happened. This simply has not happened. The
manufacturing sector in this area has refused to do this. And it has
been for a myriad of reasons, most of them competitive. But the fact
is, this is something on which we need international cooperation and on
which we need to have movement in order to get the information that
allows us to anticipate an event similar to what occurred in New York
and Washington.
  The only way you can stop that type of a terrorist event is to have
the information beforehand as to who is committing the act and their
targets. And there are two key ways you do that. One is through people
on the ground, on which we need to substantially increase the effort--
and this bill attempts to do that in many ways through the FBI--and the
other way is through having the technical capability to intercept the
communications activities and to track the various funding activities
of the organizations. That requires the cooperation of the commercial
world and the people who are active in the commercial world. That call
must go forth, in my opinion.

  Another thing this bill does, which is extremely positive and which,
again, regrettably anticipated the event, is to say that within our own
Federal Government we are not doing a very good job of coordinating our
exercise.
  There are 42 different agencies that are responsible for intelligence
activity and for counterterrorism activity. They overlap in
responsibility. In many instances, they compete in responsibility.
  Turf is the most significant inhibitor of effective Federal action
between agencies. Although there is a sincere effort to avoid turf, and
in my opinion, in working with a lot of these agencies, I have been
incredibly impressed by a willingness of the various leaders of these
agencies, both under the Clinton administration and under the Bush
administration, to set aside this endemic problem of protection of
one's prerogatives and allow parties to communicate across agency lines
and to put aside the stovepipes. Even though there is that commitment,
the systems do not allow it to occur in many instances.
  This bill, under the leadership of the chairman, includes language
which has attempted to bring more focus and structure into the cross-
agency activities. One of the specific proposals in the bill, which may
not be the last approach taken and probably won't be but is an attempt
to move the issue down the field, is to set up a Deputy Attorney
General whose purpose is to oversee counterterrorism activity and
coordinate it across agencies and who is the repository of the
authority to do that. There is no such person today in the Federal
Government. Of these 42 agencies, everybody reports to their own agency
head. Nobody reports across agency lines. There is virtually no one who
can stand up and say, other than the President, ``get this done.''
  The purpose of the Deputy Attorney General is to accomplish that, at
least within the law enforcement area and within much of the
consequence manager's area, especially the crime area, although it is
understood that this individual will work in concert with the head of
FEMA, the purpose of which is to actually manage the disaster relief
efforts that occur as a result of an event such as New York or where
you have these huge efforts committed.
  That type of coordination is so critical. Would it have abated the
New York and Washington situation? No, it wouldn't have. But can it, in
anticipation of the next event, because this is not an isolated event.
Regrettably, whether we like it or not, we are in a continuum of
confrontation here.
  As I mentioned earlier, there is not one or two people but rather a
culture that sees this as an expression of the way they deliver their
message for life, or after life for that matter. Regrettably, we have
to be ready for the potential of another event.
  I do believe this type of centralizing of decision, centralizing
authority, centralizing the budget responsibility is absolutely
critical to getting the Federal Government into an orderly set of
activities or orderly set of approaches.
  Just take a single example. If you happen to be a police officer in
Epping, NH, and you have a sense that you notice something that isn't
right, you know it isn't necessarily criminal but you think there is
something wrong, something that might just, because of your intuition
as an officer or your

[[Page S9358]]

knowledge as an officer, might need to be reported, you can call your
State police or you can call the FBI or you can call the U.S. attorney,
but there really is no central clearinghouse for knowledge. There is no
one-stop shopping. If you as a fire chief want to get ready in Epping,
NH, for an event, you don't have a place to go for that one-stop
shopping where you can find out how you train your people, where they
go for training, what your support capabilities are going to be, who is
going to support you. This should exist within the Federal Government.
It does not. This is an attempt to try to get some of that into a form
that will be effective and responsive to people.

  Of course, when you get to the end of the line--we have talked about
all the technical things we can do as a government and all the
important things we can do to try to restructure ourselves and commit
the resources in order to improve our capacity to address this, but in
the end it comes down to a commitment of our people, understanding that
we are confronting a fundamental evil, an evil of proportions equal to
any that we have confronted as a nation, and that we as a nation cannot
allow those who are behind this evil to undermine our way of life and
our commitment to democracy.
  We must make every effort, leave no stone unturned--regrettably,
these people live under stones to a large degree--to find these people
who are responsible and to bring them to justice. But we also must make
every effort to recognize that in doing that, we cannot allow them to
win by losing our basic rights and the commitment to openness as a
society and a democracy. Then they would be successful, if we were to
do that.
  So as we rededicate ourselves, as we all continue to see the image of
those buildings collapsing and the horror that followed--and we all
obviously want retribution and we are all angered by it--we have to
react in the context of a democracy. We have to pursue this in the
context of what has made us great, which is that we are a people who
unite when we confront such a threat. We unite and we focus our
energies on defeating that threat. But we don't allow that threat to
win by undermining our basic rights and our openness as a society.
  In summary, I appreciate all the efforts of the chairman of the
committee to bring forward a bill which, regrettably, understood that
this type of event could occur and attempted to address it even before
it did. Now I think it is important we pass this legislation. It does
empower key agencies within the Government who have a responsibility to
address the issue of counterterrorism not only with the dollars but
with the policies they need in order to be more successful in their
efforts.
  There is still a great deal to do. There is still a lot of changes we
need to make, a lot of changes in the law we should make in order to
empower these agencies to be even more effective. Certainly there is
going to be a great deal more funds that have to be committed than what
are in this bill in order to give these agencies--the FBI and the State
Department--the resources they need to be strong and be successful in
pursuing the people who committed this horrific act and in protecting
Americans around the world and especially protecting our freedoms and
liberties here in the United States.
  This bill is clearly a step in the right direction. I congratulate
the chairman for bringing it forward.