[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1238 Introduced in House (IH)]

103d CONGRESS
  1st Session
                                H. R. 1238

To establish constitutional procedures for the imposition of the death 
         penalty for terrorist murders and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 4, 1993

  Mr. Shaw (for himself and Mr. Gekas) introduced the following bill; 
          which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To establish constitutional procedures for the imposition of the death 
         penalty for terrorist murders and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That this Act may be 
cited as the ``Protection Against Terrorism Act of 1993''.

             TITLE I--TERRORISM DEATH PENALTY ACT OF 1993.

SEC. 101. DEATH PENALTY FOR TERRORIST ACTS.

    (a) Offense.--Subsections 2331 (a) through (c) of title 18 of the 
United States Code are amended to read as follows:
    ``(a) Homicide.--Whoever kills a person while such person is inside 
the United States, or kills a national of the United States, while such 
national is outside the United States, shall--
            ``(1)(A) if the killing is a first degree murder as defined 
        in section 1111(a) of this title, be punished by death or 
        imprisonment for any term of years or for life, or be fined 
        under this title, or both; and
            ``(B) if the killing is a murder other than a first degree 
        murder as defined in section 1111(a) of this title, be fined 
        under this title or imprisoned for any term of years or for 
        life, or both so fined and so imprisoned;
            ``(2) if the killing is a voluntary manslaughter as defined 
        in section 1112(a) of this title, be fined under this title or 
        imprisoned not more than thirty years, or both; and
            ``(3) if the killing is an involuntary manslaughter as 
        defined in section 1112(a) of this title, be fined under this 
        title or imprisoned not more than ten years, or both.
    ``(b) Attempt or Conspiracy With Respect to Homicide.--Whoever 
attempts to kill, or engages in a conspiracy to kill, any human being 
inside the United States or any national of the United States while 
such national is outside the United States shall--
            ``(1) in the case of an attempt to commit a killing that is 
        a murder as defined in this chapter, be fined under this title 
        or imprisoned not more than thirty-five years, or both; and
            ``(2) in the case of a conspiracy by two or more persons to 
        commit a killing that is a murder as defined in section 1111(a) 
        of this title, if one or more of such persons do any overt act 
        to effect the object of the conspiracy, be fined under this 
        title or imprisoned for any term of years or for life, or both 
        so fined and so imprisoned.
    ``(c) Other Conduct.--Whoever engages in physical violence--
            ``(1) with intent to cause serious bodily injury to a 
        person inside the United States, or a national of the United 
        States while such national is outside the United States; or
            ``(2) with the result that serious bodily injury is caused 
        to a person inside the United States, or to a national of the 
        United States while such national is outside the United States;
shall be fined under this title or imprisoned not more than ten years, 
or both''.
    (b) Death Penalty.--Section 2331 of title 18 of the United States 
Code, is amended by adding at the end thereof the following:
    ``(f) Death Penalty Procedures.--
            ``(1) Sentence of death.--A defendant who has been found 
        guilty of an offense described in subsection (a)(1)(A), if the 
        defendant, as determined beyond a reasonable doubt at a hearing 
        under paragraph 3--
                    ``(A) intentionally killed the victim;
                    ``(B) intentionally inflicted serious bodily injury 
                that resulted in the death of the victim;
                    ``(C) intentionally participated in an act, 
                contemplating that the life of a person would be taken 
                or intending that lethal force would be used in 
                connection with a person, other than one of the 
                participants in the offense, and the victim died as a 
                direct result of the act; or
                    ``(D) intentionally and specifically engaged in an 
                act, knowing that the act created a grave risk of death 
                to a person, other than one of the participants in the 
                offense, such that participation in the act constituted 
                a reckless disregard for human life and the victim died 
                as a direct result of the act.
shall be sentenced to death if, after consideration of the factors set 
forth in paragraph (2) in the course of a hearing held pursuant to 
paragraph (3) it is determined that imposition of a sentence of death 
is justified; provided that no person may be sentenced to death who was 
less than sixteen years of age at the time of the offense.
            ``(2) Factors to be considered in determining whether a 
        sentence of death is justified--
                    ``(A) Mitigating factors.--In determining whether a 
                sentence of death is justified, the jury, or if there 
                is no jury, the court, shall consider each of the 
                following mitigating factors and determine which, if 
                any, exist:
                            ``(i) the defendant's mental capacity was 
                        significantly impaired, although the impairment 
                        was not such as to constitute a defense to 
                        prosecution;
                            ``(ii) the defendant was under unusual and 
                        substantial duress, although not such duress as 
                        would constitute a defense to prosecution; and
                            ``(iii) the defendant was an accomplice and 
                        participation in the offense was relatively 
                        minor.
                The jury, or if there is no jury, the court, shall 
                consider whether any other mitigating factor exists.
                    ``(B) Aggravating factors.--In determining whether 
                a sentence of death is justified, the jury, or if there 
                is no jury, the court, shall consider each of the 
                following aggravating factors and determine which, if 
                any, exist:
                            ``(i) the death, or injury resulting in 
                        death, occurred during the commission or 
                        attempted commission of, or during the 
                        immediate flight from the commission of, an 
                        offense under section 751 (prisoners in custody 
                        of institution or officer), section 794 
                        (gathering or delivering defense information to 
                        aid foreign government), section 844(d) 
                        (transportation of explosives in interstate 
                        commerce for certain purposes), section 844(f) 
                        (destruction of Government property in 
                        interstate commerce by explosives), section 
                        1118 (prisoners serving life term), section 
                        1201 (kidnaping), or section 2381 (treason) of 
                        this title, or section 902 (i) or (n) of the 
                        Federal Aviation Act of 1958, as amended (49 
                        U.S.C. 1472 (i) or (n)) (aircraft piracy);
                            ``(ii) the defendant has previously been 
                        convicted of another Federal or State offense 
                        resulting in the death of a person, for which a 
                        sentence of life imprisonment or a sentence of 
                        death was authorized by statute;
                            ``(iii) the defendant has previously been 
                        convicted of two or more Federal or State 
                        offenses, punishable by a term of imprisonment 
                        of more than one year, committed on different 
                        occasions, involving the infliction of, or 
                        attempted infliction of, serious bodily injury 
                        or death upon another person;
                            ``(iv) the defendant, in the commission of 
                        the offense, or in escaping apprehension for 
                        the violation of the offense, knowingly created 
                        a grave risk of death to one or more persons in 
                        addition to the victim of the offense;
                            ``(v) the defendant committed the offense 
                        in an especially heinous, cruel, or depraved 
                        manner;
                            ``(vi) the defendant procured the 
                        commission of the offense by payment or promise 
                        of payment of anything of pecuniary value;
                            ``(vii) the defendant committed the offense 
                        as consideration for the receipt, or in the 
                        expectation of the receipt, of anything of 
                        pecuniary value;
                            ``(viii) the defendant committed the 
                        offense after planning and premeditation to 
                        cause the death of a person or commit an act of 
                        terrorism;
                            ``(ix) the defendant has previously been 
                        convicted of two or more State or Federal 
                        offenses punishable by a term of imprisonment 
                        of more than one year, committed on different 
                        occasions, involving the distribution of a 
                        controlled substance;
                            ``(x) the victim was particularly 
                        vulnerable due to old age, youth or infirmity, 
                        the defendant committed the offense against--
                                    ``(I) the President of the United 
                                States, the President-elect, the Vice 
                                President, the Vice President-elect, 
                                the Vice-President-designate, or, if 
                                there is no Vice President, the officer 
                                next in order of succession to the 
                                office of the President of the United 
                                States, or any person who is acting as 
                                President under the Constitution and 
                                laws of the United States;
                                    ``(II) a chief of state, head of 
                                government, or the political 
                                equivalent, of a foreign nation;
                                    ``(III) a foreign official listed 
                                in section 1116(b)(3)(A) of this title, 
                                if he is in the United States on 
                                official business; or
                                    ``(iv) a Federal public servant who 
                                is a judge, a law enforcement officer, 
                                or an employee of a United States penal 
                                or correctional institution--
                                            ``(aa) while he is engaged 
                                        in the performance of his 
                                        official duties;
                                            ``(bb) because of the 
                                        performance of his official 
                                        duties; or
                                            ``(cc) because of his 
                                        status as a public servant.
                        For purposes of this subparagraph, a `law 
                        enforcement officer' is a public servant 
                        authorized by law or by a Government agency or 
                        Congress to conduct or engage in the 
                        prevention, investigation, or prosecution of an 
                        offense.
                The jury, or if there is no jury, the court, may 
                consider whether any other aggravating factor exists.
            ``(3) Special hearing to determine whether a sentence of 
        death is justified.--
                    ``(A) Notice by the government.--If the attorney 
                for the Government believes that the circumstances of 
                the offense are such that a sentence of death is 
                justified under this chapter, he shall, a reasonable 
                time before the trial, or before acceptance by the 
                court of a plea of guilty, or at such time thereafter 
                as the court may permit upon a showing of good cause, 
                sign and file with the court, and serve on the 
                defendant, a notice--
                            ``(i) stating that the Government believes 
                        that the circumstances of the offense are such 
                        that, if the defendant is convicted, a sentence 
                        of death is justified under this chapter and 
                        that the Government will seek the sentence of 
                        death; and
                            ``(ii) setting forth the aggravating factor 
                        or factors that the Government, if the 
                        defendant is convicted, proposes to prove as 
                        justifying a sentence of death.
                The court may permit the attorney for the Government to 
                amend the notice upon a showing of good cause.
                    ``(B) Hearing before a court or jury.--If the 
                attorney for the Government has filed a notice as 
                required under subsection (a) and the defendant is 
                found guilty of or pleads guilty to an offense 
                described in paragraph (1), the judge who presided at 
                the trial or before whom the guilty plea was entered, 
                or another judge if that judge is unavailable, shall 
                conduct a separate sentencing hearing to determine the 
                punishment to be imposed. The hearing shall be 
                conducted--
                            ``(i) before the jury that determined the 
                        defendant's guilt;
                            ``(ii) before a jury impaneled for the 
                        purpose of the hearing if--
                                    ``(I) the defendant was convicted 
                                upon a plea of guilty;
                                    ``(II) the defendant was convicted 
                                after a trial before the court sitting 
                                without a jury;
                                    ``(III) the jury that determined 
                                the defendant's guilt was discharged 
                                for good cause; or
                                    ``(IV) after initial imposition of 
                                a sentence under this section, 
                                reconsideration of the sentence under 
                                this section is necessary; or
                            ``(iii) before the court alone, upon the 
                        motion of the defendant and with the approval 
                        of the attorney for the Government.
                A jury impaneled pursuant to paragraph (3)(b)(2) shall 
                consist of twelve members, unless, at any time before 
                the conclusion of the hearing, the parties stipulate, 
                with the approval of the court, that it shall consist 
                of a lesser number.
                    ``(C) Proof of mitigating and aggravating 
                factors.--Notwithstanding rule 32(c) of the Federal 
                Rules of Criminal Procedure, when a defendant is found 
                guilty or pleads guilty to an offense under paragraph 
                (1), no presentence report shall be prepared. At the 
                sentencing hearing, information may be presented as to 
                any matter relevant to the sentence, including any 
                mitigating or aggravating factor permitted or required 
                to be considered under paragraph (2). Information 
                presented may include the trial transcript and exhibits 
                if the hearing is held before a jury or judge not 
                present during the trial. Any other information 
                relevant to a mitigating or aggravating factor may be 
                presented by either the attorney for the Government or 
                the defendant, regardless of its admissibility under 
                the rules governing admission of evidence at criminal 
                trials, except that information may be excluded if its 
                probative value is substantially outweighed by the 
                danger of creating unfair prejudice, confusing the 
                issues, or misleading the jury. The Government and the 
                defendant shall be permitted to rebut any information 
                received at the hearing, and shall be given fair 
                opportunity to present argument as to the adequacy of 
                the information to establish the existence of any 
                aggravating or mitigating factor, and as to the 
                appropriateness in the case of imposing a sentence of 
                death. The Government shall open the argument. The 
                defendant shall be permitted to reply. The Government 
                shall then be permitted to reply in rebuttal. The 
                burden of establishing the existence of any aggravating 
                factor is on the Government, and is not satisfied 
                unless the existence of such a factor is established 
                beyond a reasonable doubt. The burden of establishing 
                the existence of any mitigating factor is on the 
                defendant, and is not satisfied unless the existence of 
                such a factor is established by a preponderance of the 
                information.
                    ``(D) Return of special findings.--The jury, or if 
                there is no jury, the court, shall consider all the 
                information received during the hearing. It shall 
                return a special finding as to each mitigating and 
                aggravating factor, concerning which information is 
                presented at the hearing, required to be considered 
                under paragraph (2). The jury must find the existence 
                of an aggravating factor by a unanimous vote although 
                it is unnecessary that there be a unanimous vote on any 
                specific aggravating factor if a majority of the jury 
                finds the existence of such a specific factor. A 
                finding with respect to a mitigating factor may be made 
                by one or more members of the jury and any member of 
                the jury who finds the existence of a mitigating factor 
                may consider such a factor established for purposes of 
                this section, regardless of the number of jurors who 
                consider that the factor has been established.
                    ``(E) Return of a finding concerning a sentence of 
                death.--If an aggravating factor required to be 
                considered under subparagraph (2)(c) is found to exist; 
                the jury, or if there is no jury, the court, shall then 
                consider whether all the aggravating factors found to 
                exist sufficiently outweigh all the mitigating factors 
                found to exist to justify a sentence of death, or, in 
                the absence of a mitigating factor, whether the 
                aggravating factors alone are sufficient to justify a 
                sentence of death. Based upon this consideration, the 
                jury by unanimous vote, or if there is no jury, the 
                court shall return a finding as to whether a sentence 
                of death is justified.
                    ``(F) Special precaution to assure against 
                discrimination.--In a hearing held before a jury, the 
                court, prior to the return of a finding under 
                subparagraph (E), shall instruct the jury that, in 
                considering whether a sentence of death is justified, 
                it shall not consider the race, color, national origin, 
                creed, or sex of the defendant. The jury, upon return 
                of a finding under subparagraph (E), shall also return 
                to the court a certificate, signed by each juror, that 
                consideration of the race, color, national origin, 
                creed, or sex of the defendant was not involved in 
                reaching the juror's individual decision.
            ``(4) Imposition of a sentence of death.--Upon a finding 
        under subparagraph (3)(E) that a sentence of death is 
        justified, the court shall sentence the defendant to death. 
        Upon a finding under subparagraph (3)(E) that a sentence of 
        death is not justified, or under subparagraph (3)(E) that no 
        aggravating factor required to be found exsits, the court shall 
        impose any sentence other than death that is authorized by law. 
        Notwithstanding any other provision of law, if the maximum term 
        of imprisonment for the offense is life imprisonment the court 
        may impose a sentence of life imprisonment without parole.
            ``(5) Review of a sentence of death.--
                    ``(A) Appeal.--In a case in which a sentence of 
                death is imposed, the sentence shall be subject to 
                review by the court of appeals upon appeal by the 
                defendant. Notice of appeal must be filed within the 
                time specified for the filing of a notice of appeal. An 
                appeal under this section may be consolidated with an 
                appeal of the judgment of conviction and shall have 
                priority over all other cases.
                    ``(B) Review.--The court of appeals shall review 
                the entire record in the case, including--
                            ``(i) the evidence submitted during the 
                        trial;
                            ``(ii) the information submitted during the 
                        sentencing hearing;
                            ``(iii) the procedures employed in the 
                        sentencing hearing; and
                            ``(iv) the special findings returned under 
                        subparagraph (3)(D).
                    ``(C) Decision and disposition.--
                            ``(i) If the court of appeals determines 
                        that--
                                    ``(I) the sentence of death was not 
                                imposed under the influence of passion, 
                                prejudice, or any other arbitrary 
                                factor; and
                                    ``(II) the information supports the 
                                special finding of the existence of an 
                                aggravating factor required to be 
                                considered under paragraph (2); it 
                                shall affirm the sentence.
                            ``(ii) In any other case, the court of 
                        appeals shall remand the case for 
                        reconsideration under paragraph (3).
                            ``(iii) The court of appeals shall state in 
                        writing the reasons for its disposition of an 
                        appeal of a sentence of death under this 
                        section.
            ``(6) Implementation of a sentence of death.--A person who 
        has been sentenced to death pursuant to the provisions of this 
        chapter shall be committed to the custody of the Attorney 
        General until exhaustion of the procedures for appeal of the 
        judgment of conviction and for review of the sentence. When the 
        sentence is to be implemented, the Attorney General shall 
        release the person sentenced to death to the custody of a 
        United States marshal, who shall supervise implementation of 
        the sentence in the manner prescribed by the law of the State 
        in which the sentence is imposed. If the law of such State does 
        not provide for implementation of a sentence of death, the 
        court shall designate another State, the law of which does so 
        provide, and the sentence shall be implemented in the latter 
        State in the manner prescribed by such law. A sentence of death 
        shall not be carried out upon a woman while she is pregnant.
            ``(7) Use of state facilities.--
                    ``(A) In general.--A United States marshal charged 
                with supervising the implementation of a sentence of 
                death may use appropriate State or local facilities for 
                the purpose, may use the services of an appropriate 
                State or local official or of a person such an official 
                employs for the purpose, and shall pay the costs 
                thereof in an amount approved by the Attorney General.
                    ``(B) Excuse of an employee on moral or religious 
                grounds.--No employee of any State department of 
                corrections or the Federal Bureau of Prisons and no 
                employee providing services to that department or 
                bureau under contract shall be required as a condition 
                of that employment, or contractual obligation to be in 
                attendance at or to participate in any execution 
                carried out under this section if such participation is 
                contrary to the moral or religious convictions of the 
                employee. For purposes of this subsection, the term 
                `participation in execution' includes personal 
                preparation of the condemned individual and the 
                apparatus used for execution and supervision of the 
                activities of other personnel in carrying out such 
                activities.''.

                   TITLE II--TERRORIST ALIEN REMOVAL

    Sec. 201. This Act may be cited as the ``Terrorist Alien Removal 
Act of 1991''.
    Sec. 2. The Congress finds that (a) Terrorist groups have been able 
to create significant infrastructures and cells in the United States 
among persons who are in the United States either temporarily, as 
students or in other capacities, or as permanent resident aliens.
    (b) International terrorist groups that sponsor these 
infrastructures were responsible for--
            (1) conspiring to bomb the Turkish Honorary Consulate in 
        Philadelphia, Pennsylvania in 1982;
            (2) hijacking Trans World Airlines Flight 847 during which 
        a United States Navy diver was murdered in 1985;
            (3) hijacking Egypt Air Flight 648 during which three 
        Americans were killed in 1985;
            (4) murdering an American citizen aboard the Achille Lauro 
        cruise liner in 1985;
            (5) hijacking Pan Am Flight 73 in Karachi, Pakistan, in 
        which forty-four Americans were held hostage and two were 
        killed in 1986;
            (6) conspiring to bomb an Air India aircraft in New York 
        City in 1986;
            (7) attempting to bomb the Air Canada cargo facility at the 
        Los Angeles International airport in 1986; and
            (8) numerous bombings and murders in Northern Ireland over 
        the past decade.
    (c) Certain governments and organizations have directed their 
assets in the United States to take measures in preparation for the 
commission of terrorist acts in this country.
    (d) Present immigration laws have not been used to any significant 
degree by law enforcement officials to deport alien terrorists because 
compliance with these laws with respect to such aliens would compromise 
classified intelligence sources and information. Moreover, appellate 
procedures routinely afforded aliens following a deportation hearing 
frequently extend over several years resulting in an inability to 
remove expeditiously aliens engaging in terrorist activity.
    (e) Present immigration laws are inadequate to protect the national 
security of the United States from terrorist attacks by certain aliens. 
Therefore, new procedures are needed to remove alien terrorists from 
the United States and thus reduce the threat that such aliens pose to 
the national security and other vital interests of the United States.
    Sec. 203. (a) Subsection 241(a) of the Immigration and Nationality 
Act (8 U.S.C. 1251(a)) is amended by adding at the end thereof a new 
paragraph 21 as follows:
            ``(21) either prior or subsequent to entry is engaging in 
        or has engaged in terrorist activity.''.
    (b) Subsection 101(a) of the Immigration and Nationality Act (8 
U.S.C. 1101(a)) is amended by adding at the end thereof the following 
new paragraphs:
    ``(43) The term `terrorist activity' means any activity which is 
unlawful under the laws of the place where it is committed, or which, 
if committed in the United States would have been unlawful under the 
laws of the United States or of any State and which involves--
            ``(A) the hijacking of an aircraft, vessel, or vehicle;
            ``(B) the sabotage of an aircraft, vessel, or vehicle;
            ``(C) the seizing or detaining and threatening to kill, 
        injure, or continue to detain another person in order to compel 
        a third person or governmental organization to do or abstain 
        from doing any act as an explicit or implicit condition for the 
        release of the person detained or seized;
            ``(D) a violent attack upon the person or liberty of an 
        `internationally protected person' as defined in 18 U.S.C. 
        1116(b)(4);
            ``(E) the use of any explosive, biological agent, chemical 
        agent, nuclear weapon or device, or firearm with intent to 
        endanger, directly or indirectly, the safety of people or cause 
        substantial damage to property;
            ``(F) an assassination; or
            ``(G) any threat, attempt, or conspiracy to do any of the 
        foregoing.
    ``(44) The term `engage in a terrorist activity' means to commit an 
act of terrorist activity or to do an act which the actor knows, or 
reasonably should know, affords material support to any individual or 
enterprise in conducting terrorist activity at any time including, but 
not limited to--
            ``(A) the preparation and planning of terrorist activity;
            ``(B) the gathering of intelligence on potential targets 
        for terrorist activity;
            ``(C) the providing of any type of material support 
        including but not limited to a safe house, transportation, 
        funds, false identification, weapon, or explosive to any 
        individual who the actor knows or has reason to believe has 
        committed or plans to commit an act of terrorist activity;
            ``(D) the soliciting of funds or other things of value for 
        terrorist activity or for any organization which engages in or 
        which has engaged in terrorist activity; or
            ``(E) the solicitation of any individual for membership in 
        a terrorist enterprise;
The term does not include lawful speeches, writings, or attendance and 
participation in peaceful public assemblies; Provided, however, That 
evidence of any speech, writing, or participation in any public 
assembly may be used to show the actor's awareness of the unlawful 
methods of an individual or enterprise conducting terrorist activity.
    ``(45) The term `individual' means a human being.
    ``(46) The term `enterprise' means an organization or 
government.''.
    Sec. 204. The Immigration and Nationality Act is amended by adding 
at the end thereof a new title V as follows:

                 ``TITLE V--REMOVAL OF ALIEN TERRORISTS

``Sec.
``501 (adds 8 U.S.C. 1601). Applicability.
``502 (adds 8 U.S.C. 1602). Special Removal Hearing.
``503 (adds 8 U.S.C. 1603). Designation of Judges.
``504 (adds 8 U.S.C. 1604). Miscellaneous Provisions.
``Sec. 501. Applicability
    ``(a) The provisions of this title may be followed in the 
discretion of the Department of Justice whenever the Department of 
Justice has information that an alien described in paragraph 21 of 
subsection 241(a) of this Act (8 U.S.C. 1251(a)(21)) is subject to 
deportation because of that paragraph.
    ``(b) Whenever an official of the Department of Justice files, 
under section 502, an application with the court established under 
section 503 for authorization to seek removal pursuant to the 
provisions of this title, the alien's rights regarding removal and 
expulsion shall be governed solely by the provisions of this title. 
Except as they are specifically referenced, no other provisions of the 
Immigration and Nationality Act shall be applicable. An alien subject 
to removal under these provisions shall have no right of discovery of 
information derived from electronic surveillance authorized under the 
Foreign Intelligence Surveillance Act or otherwise for national 
security purposes, nor shall such alien have the right to seek 
suppression of evidence derived in such manner. Further, the Government 
is authorized to use, in the removal proceeding, the fruits of 
electronic surveillance authorized under the Foreign Intelligence 
Surveillance Act without regard to subsections 106 (c), (e), (f), (g), 
and (h) of that Act.
    ``(c) This title is enacted in response to findings of Congress 
that aliens described in paragraph 21 of subsection 241(a) of this Act 
(8 U.S.C. 1251(a)(21)) represent a unique threat to the security of the 
United States. It is the intention of Congress that such aliens be 
promptly removed from the United States following--
            ``(1) a judicial determination of probable cause to believe 
        that a person is such an alien; and
            ``(2) a judicial determination pursuant to the provisions 
        of this title that an alien is removable on the grounds that he 
        is an alien described in paragraph 21 of subsection 241(a) (8 
        U.S.C. 1251(a)(21));
and that such aliens not be given a deportation hearing and are 
ineligible for any discretionary relief from deportation and for relief 
under subsection 243(h) of the Immigration and Nationality Act.
``Sec. 502. Special Removal Hearing
    ``(a) Whenever removal of an alien is sought pursuant to the 
provisions of this title, a written application upon oath or 
affirmation shall be submitted in camera and ex parte to the court 
established under section 503 for an order authorizing such a 
procedure. Each application shall require the approval of the Attorney 
General, the Deputy Attorney General, or the Associate Attorney General 
based upon his finding that it satisfies the criteria and requirements 
for such application as set forth in this title. Each application shall 
include--
            ``(1) the identity of the Department of Justice attorney 
        making the application;
            ``(2) the approval of the Attorney General, the Deputy 
        Attorney General, or the Associate Attorney General for the 
        making of the application;
            ``(3) the identity of the alien for whom authorization for 
        the special removal procedure is sought; and
            ``(4) a statement of facts and circumstances relied on by 
        the Department of Justice to establish that--
                    ``(A) an alien as described in paragraph 21 of 
                subsection 241(a) of this Act (8 U.S.C. 1251(a)(21)) is 
                physically present in the United States, and
                    ``(B) with respect to such alien, adherence to the 
                provisions of title II of this Act regarding the 
                deportation of aliens would tend to harm the national 
                security of the United States, adversely affect foreign 
                relations, reveal an investigative technique important 
                to efficient law enforcement, or disclose a 
                confidential source of information.
    ``(b) The application shall be filed under seal with the court 
established under section 503. The Attorney General may take into 
custody any alien with respect to whom such an application has been 
filed and, notwithstanding any other provision of law, may retain such 
an alien in custody in accordance with the procedures authorized by 
this title.
    ``(c) In accordance with the rules of the court established under 
section 503, the judge shall consider the application and may consider 
other information presented under oath or affirmation at an in camera 
and ex parte hearing on the application. A verbatim record shall be 
maintained of such a hearing. The application and any other evidence 
shall be considered by a single judge of that court who shall enter an 
ex parte order as requested if he finds, on the basis of the facts 
submitted in the application and any other information provided by the 
Department of Justice at the in camera and ex parte hearing, there is 
probable cause to believe that--
            ``(1) the alien who is the subject of the application has 
        been correctly identified and is an alien as described in 
        paragraph 21 of subsection 241(a) of this Act (8 U.S.C. 
        1251(a)); and
            ``(2) adherence to the provisions of title II of this Act 
        regarding the deportation of the identified alien would tend to 
        harm the national security of the United States, adversely 
        affect foreign relations, reveal an investigative technique 
        important to efficient law enforcement or disclose a 
        confidential source of information.
    ``(d)(1) In any case in which the application for the order is 
denied, the judge shall prepare a written statement of his reasons for 
the denial and the Department of Justice may seek a review of the 
denial by the Court of Appeals for the Federal Circuit by notice of 
appeal which must be filed within twenty days. In such a case the 
entire record of the proceeding shall be transmitted to the Court of 
Appeals under seal and the Court of Appeals shall hear the matter ex 
parte.
    ``(2) If the Department of Justice does not seek review, the alien 
shall be released from custody unless such alien may be arrested and 
taken into custody pursuant to title II of this Act as an alien subject 
to deportation, in which case such alien shall be treated in accordance 
with the provisions of this Act concerning the deportation of aliens.
    ``(3) If the application for the order is denied because the judge 
has not found probable cause to believe that the alien who is the 
subject of the application has been correctly identified or is an alien 
as described in paragraph 21 of subsection 241(a) of this Act (8 U.S.C. 
1251(a)) and the Department of Justice seeks review, the alien shall be 
released from custody unless such alien may be arrested and taken into 
custody pursuant to title II of this Act as an alien subject to 
deportation, in which case such alien shall be treated in accordance 
with the provisions of this Act concerning the deportation of aliens 
simultaneously with the application of this title.
    ``(4) If the application for the order is denied because, although 
the judge found probable cause to believe that the alien who is the 
subject of the application has been correctly identified and is an 
alien as described in paragraph 21 of subsection 241(a) of this Act (8 
U.S.C. 1251(a)), the judge has found that there is not probable cause 
to believe that adherence to the provisions of title II of this Act 
regarding the deportation of the identified alien would tend to harm 
the national security of the United States, adversely affect foreign 
relations, reveal an investigative technique important to efficient law 
enforcement, or disclose a confidential source of information, the 
judge shall release the alien from custody subject to the least 
restrictive condition or combination of conditions of release described 
in subsection 3142 (b) and (c)(1)(B)(i)-(xiv) of title 18 that will 
reasonably assure the appearance of the alien at any future proceeding 
pursuant to this title and will not endanger the safety of any other 
person or the community, but if the judge finds no such condition or 
combination of conditions the alien shall remain in custody until the 
completion of any appeal authorized by this title. The provisions of 
sections 3145-3148 of title 18 pertaining to review and appeal of a 
release or detention order, penalties for failure to appear, penalties 
for an offense committed while on release, and sanctions for violations 
of a release condition shall apply to an alien to whom the previous 
sentence applies and--
            ``(A) for purposes of section 3145 an appeal shall be taken 
        to the Court of Appeals for the Federal Circuit; and
            ``(B) for purposes of section 3146 the alien shall be 
        considered released in connection with a charge of an offense 
        punishable by life imprisonment.
    ``(e)(1) In any case in which the application for the order 
authorizing the special procedures of this title is approved, the judge 
who granted the order shall consider separately each item of evidence 
the Department of Justice proposes to introduce in camera and ex parte 
at the special removal hearing. The judge shall authorize the 
introduction in camera and ex parte of any item of evidence for which 
the judge determines that the introduction other than in camera and ex 
parte would tend to harm the national security of the United States, 
adversely affect foreign relations, reveal an investigative technique 
important to efficient law enforcement, or disclose a confidential 
source of information. With respect to any evidence which the judge 
authorizes to be introduced in camera and ex parte, the judge shall 
cause to be prepared and shall sign, and the Department of Justice 
shall cause to be delivered to the alien, either--
            ``(A) a written summary which shall be sufficient to inform 
        the alien of the general nature of the evidence that he is an 
        alien as described in paragraph 21 of subsection 241(a) of this 
        Act (8 U.S.C. 1251(a)(21)) and to permit the alien to marshal 
        the facts and prepare a defense, but which shall not tend to 
        harm the national security, adversely affect foreign relations, 
        reveal an investigative technique important to efficient law 
        enforcement, or disclose a confidential source; or
            ``(B) if necessary to prevent serious harm to the national 
        security or death or serious bodily injury to any person, a 
        statement informing the alien that no such summary is possible.
            ``(2) The Department of Justice may take an interlocutory 
        appeal to the United States Court of Appeals for the Federal 
        Circuit of any determination by the judge pursuant to paragraph 
        (1)--
            ``(A) concerning whether an item of evidence may be 
        introduced in camera and ex parte;
            ``(B) concerning the contents of any summary of evidence to 
        be introduced in camera and ex parte prepared pursuant to 
        subparagraph (e)(1)(A); or
            ``(C) ruling that no summary of evidence to be introduced 
        in camera and ex parte is possible pursuant to subparagraph 
        (e)(1)(B).
In any interlocutory appeal taken pursuant to this paragraph, the 
entire record, including any proposed order of the judge or summary of 
evidence, shall be transmitted to the Court of Appeals under seal which 
shall hear the matter ex parte. The Court of Appeals shall consider the 
appeal as expeditiously as possible.
    ``(f) In any case in which the application for the order is 
approved the special removal hearing authorized by this section shall 
be conducted for the purpose of determining if the alien to whom the 
order pertains should be removed from the United States on the grounds 
that he is an alien as described in paragraph 21 of subsection 241(a) 
of this Act (8 U.S.C. 1251(a)(21)). In accordance with subsection (e), 
the alien shall be given reasonable notice of the nature of the charges 
against him. The alien shall be given notice, reasonable under all the 
circumstances, of the time and place at which the hearing will be held. 
The hearing shall be held as expeditiously as possible.
    ``(g) The special removal hearing shall be held before the same 
judge who granted the order pursuant to subsection (e) unless that 
judge is deemed unavailable due to illness or disability by the chief 
judge of the court established pursuant to section 503, or has died. A 
decision by the chief judge pursuant to the preceding sentence shall 
not be subject to review by either the alien or the Department of 
Justice.
    ``(h) The hearing shall be open to the public. The alien shall have 
a right to be present as such hearing and to be represented by counsel. 
Any alien financially unable to obtain counsel shall be entitled to 
have counsel assigned to represent him. Such counsel shall be appointed 
by the judge pursuant to the plan for furnishing representation for any 
person financially unable to obtain adequate representation for the 
district in which the hearing is conducted as provided for in section 
3006A of title 18, all provisions of that section shall apply, and for 
purposes of determining the maximum amount of compensation, the matter 
shall be treated as if a felony was charged. The alien may be called as 
a witness by the Department of Justice. The alien shall have a right to 
introduce evidence on his own behalf. Except as provided in subsection 
(j), the alien shall have a reasonable opportunity to examine the 
evidence against him and to cross-examine any witnesses. A verbatim 
record of the proceedings and of all testimony and evidence offered or 
produced at such a hearing shall be kept. The decision of the judge 
shall be based only on the evidence introduced at the hearing, 
including evidence introduced under subsection (j).
    ``(i) At any time prior to the conclusion of the hearing, either 
the alien or the Department of Justice may request the judge to issue a 
subpoena for the presence of a named witness (which subpoena may also 
command the person to whom it is directed to produce books, papers, 
documents, or other objects designated therein) upon a satisfactory 
showing that the presence of the witness is necessary for the 
determination of any material matter. Such a request may be made ex 
parte except that the judge shall inform the Department of Justice of 
any request for a subpoena by the alien for a witness or material if 
compliance with such a subpoena would reveal evidence or the source of 
evidence which has been introduced, or which the Department of Justice 
has received permission to introduce, in camera and ex parte pursuant 
to subsection (j), and the Department of Justice shall be given a 
reasonable opportunity to oppose the issuance of such a subpoena. If an 
application for a subpoena by the alien also makes a showing that the 
alien is financially unable to pay for the attendance of a witness so 
requested, the court may order the costs incurred by the process and 
the fees of the witness so subpoenaed to be paid for from funds 
appropriated for the enforcement of title II of this Act. A subpoena 
under this subsection may be served anywhere in the United States. A 
witness subpoenaed under this subsection shall receive the same fees 
and expenses as a witness subpoenaed in connection with a civil 
proceeding in a court of the United States. Nothing in this subsection 
is intended to allow an alien to have access to classified information.
    ``(j) Evidence which has either been summarized pursuant to 
subsection (e)(1)(A) or for which no summary has been deemed possible 
pursuant to subsection (e)(1)(B) shall be introduced (either in writing 
or through testimony) in camera and ex parte and neither the alien, nor 
the public shall be informed of such evidence or its source other than 
through reference to the summary provided pursuant to subsection 
(e)(1)(A) or to the explanation that no summary could be provided 
pursuant to subsection (e)(1)(B). Notwithstanding the previous 
sentence, the Department of Justice may, in its discretion, elect to 
introduce such evidence in open session.
    ``(k) Evidence introduced at the hearing, either in open session or 
in camera and ex parte may, in the discretion of the Department of 
Justice, include all or part of the information presented under 
subsections (a) through (c) used to obtain the order for the hearing 
under this section.
    ``(l) Following the receipt of evidence, the attorney for the 
Department of Justice and for the alien shall be given fair opportunity 
to present argument as to whether the evidence is sufficient to justify 
the removal of the alien. The attorney for the Department of Justice 
shall open the argument. The attorney for the alien shall be permitted 
to reply. The attorney for the Department of Justice shall then be 
permitted to reply in rebuttal. The judge may allow any part of the 
argument that refers to evidence received in camera and ex parte to be 
heard in camera and ex parte.
    ``(m) The Department of Justice has the burden of showing by clear 
and convincing evidence that the alien is subject to removal because he 
is an alien as described in paragraph 21 of subsection 241(a) of this 
Act (8 U.S.C. 1251(a)(21)). If the judge finds that the Department of 
Justice has met this burden, the judge shall order the alien removed.
    ``(n)(1) At the time of rendering a decision as to whether the 
alien shall be removed, the judge shall prepare a written order 
containing a statement of facts found and conclusions of law. Any 
portion of the order that would reveal the substance or source of 
evidence received in camera and ex parte pursuant to subsection (j) 
shall not be made available to the alien or the public.
    ``(2) The decision of the judge may be appealed by either the alien 
or the Department of Justice to the Court of Appeals for the Federal 
Circuit by notice of appeal which must be filed within twenty days, 
during which time such order shall not be executed. In any case 
appealed pursuant to this subsection, the entire record shall be 
transmitted to the Court of Appeals and information received pursuant 
to subsection (j), and any portion of the judge's order that would 
reveal such information or its source, shall be transmitted under seal. 
The Court of Appeals shall consider the case as expeditiously as 
possible.
    ``(3) In an appeal to the Court of Appeals pursuant to either 
subsections (d) or (e) or this subsection, the Court of Appeals shall 
review questions of law de novo but a prior finding on any question of 
fact shall not be set aside unless such finding was clearly erroneous.
    ``(o) If the judge decides, pursuant to subsection (n), that the 
alien should not be removed, the alien shall be released from custody 
unless such alien may be arrested and taken into custody pursuant to 
title II of this Act as an alien subject to deportation in which case, 
for purposes of detention, such alien may be treated in accordance with 
the provisions of this Act concerning the deportation of aliens.
    ``(p) Following a decision by the Court of Appeals pursuant to 
either subsection (d) or subsection (n), either the alien or the 
Department of Justice may petition the Supreme Court for a writ of 
certiorari. In any such case, any information transmitted to the Court 
of Appeals under seal shall, if such information is also submitted to 
the Supreme Court, be transmitted under seal.
``Sec. 503. Designation of Judges
    ``(a) The Chief Justice of the United States shall publicly 
designate five district court judges from five of the United States 
judicial circuits who shall constitute a court which shall have 
jurisdiction to conduct all matters and proceedings authorized by 
section 502. One of the judges so appointed shall be publicly 
designated as the presiding judge by the Chief Justice. The presiding 
judge shall promulgate rules to facilitate the functioning of the court 
and shall be responsible for assigning the consideration of cases to 
the various judges.
    ``(b) Proceedings under section 502 shall be conducted as 
expeditiously as possible. The Chief Justice, in consultation with the 
Attorney General and other appropriate Federal officials, shall, 
consistent with the objectives of this title, provide for the 
maintenance of appropriate security measures for applications for ex 
parte orders to conduct the special removal hearing authorized by 
section 502, the orders themselves, evidence received in camera and ex 
parte, and other matters as necessary to protect information concerning 
matters before the court from harming the national security of the 
United States, adversely affecting foreign relations, revealing 
investigative techniques, or disclosing confidential sources of 
information.
    ``(c) Each judge designated under this section shall serve for a 
term of five years and shall be eligible for redesignation except that 
the four associate judges first designated under subsection (a) shall 
be designated for terms of from one to four years so that one term 
expires each year.
``Sec. 504. Miscellaneous Provisions
    ``(a)(1) Following a determination pursuant to this title that an 
alien shall be removed, and after the conclusion of any judicial review 
thereof, the Attorney General may retain the alien in custody, or if 
the alien was released pursuant to subsection 502(o) may return the 
alien to custody, and shall cause the alien to be transported to any 
country which the alien shall designate provided such designation does 
not, in the Attorney General's judgment, impair any treaty (including a 
treaty pertaining to extradition) obligation of the United States or 
otherwise adversely affect the foreign policy of the United States.
    ``(2) If the alien refuses to chose a country to which he wishes to 
be transported, or if the Attorney General determines that removal of 
the alien to a selected country would impair a treaty obligation or 
adversely affect foreign policy, the Attorney General shall cause the 
alien to be transported to any country willing to receive such alien.
    ``(3) Before an alien is transported out of the United States 
pursuant to paragraph (1) or (2) or pursuant to an order of exclusion 
because such alien is excludable under paragraph 34 of subsection 
212(a) of this Act (8 U.S.C. 1182(a)(34)), he or she shall be 
photographed and fingerprinted, and shall be advised of the provisions 
of subsection 276(b) of this Act (8 U.S.C. 1326(b)).
    ``(4) If no country is willing to receive such an alien, the 
Attorney General may, notwithstanding any other provision of law, 
retain the alien in custody. The Attorney General shall make periodic 
efforts to reach agreement with other countries to accept such an alien 
and shall submit a written report on his efforts to obtain such an 
agreement to the alien at least every six months. Any alien in custody 
pursuant to this subsection shall be released from custody solely at 
the discretion of the Attorney General and subject to such conditions 
as the Attorney General shall deem appropriate. The actions of the 
Attorney General pursuant to this subsection shall not be subject to 
judicial review, including application for a writ of habeas corpus 
except for a claim that his rights under the Constitution are being 
violated by continued detention. Jurisdiction over any such challenge 
shall lie exclusively in the Court of Appeals for the Federal Circuit.
    ``(b)(1) Notwithstanding the provisions of subsection (a), the 
Attorney General may hold in abeyance the removal of an alien who has 
been ordered removed pursuant to this title to allow the trial of such 
alien on any federal or State criminal charge and the service of any 
sentence of confinement resulting from such a trial.
    ``(2) Pending the commencement of any service of a sentence of 
confinement, by an alien described in paragraph (1), such an alien 
shall remain in the custody of the Attorney General, unless the 
Attorney General determines that temporary release of the alien to the 
custody of State authorities for confinement in a State facility is 
appropriate and would not endanger national security or public safety.
    ``(3) Following the completion of a sentence of confinement by an 
alien described in paragraph (1) or following the completion of State 
criminal proceedings which do not result in a sentence of confinement 
of an alien released to the custody of State authorities pursuant to 
paragraph (2), such an alien shall be returned to the custody of the 
Attorney General who shall proceed to carry out the provisions of 
subsection (a) concerning removal of the alien.
    ``(c) For the purposes of sections 751 and 752 of title 18, an 
alien in the custody of the Attorney General pursuant to this title 
shall be considered as being committed to the custody of the Attorney 
General by virtue of an arrest on a charge of felony.
    ``(d)(1) An alien in the custody of the Attorney General pursuant 
to this title shall be given reasonable opportunities to communicate 
with and receive visits from members of his or her family, and to 
contact, retain, and communicate with an attorney.
    ``(2) An alien in the custody of the Attorney General pursuant to 
this title shall have the right to contact an appropriate diplomatic or 
consular official of the alien's country, or an official of any country 
providing representation services for that country. The Attorney 
General shall notify the appropriate embassy of the alien's 
detention.''.
    Sec. 205. Subsection 212(a) of the Immigration and Nationality Act 
(8 U.S.C. 1182(a)) is amended by adding at the end thereof a new 
paragraph 34 as follows:
    ``(34) Aliens with respect to whom the consular officer or the 
Attorney General knows or has reasonable ground to believe are engaging 
in, have engaged in, or probably would, after entry, engage in 
terrorist activity.''.
    Sec. 206. (a) Subsection 235(c) of the Immigration and Nationality 
Act (8 U.S.C. 1225(c)) is amended by striking out ``or (29)'' and 
inserting in lieu thereof ``(29), or (34)''.
    (b) Section 106(b) (8 U.S.C. 1105a(b)) of the Immigration and 
Nationality Act is amended by adding at the end thereof the following 
sentence: ``Jurisdiction to review an order entered pursuant to the 
provisions of section 235(c) of this Act concerning an alien excludable 
under paragraph 34 of subsection 212(a) (8 U.S.C. 1182(a)) shall rest 
exclusively in the United States Court of Appeals for the Federal 
Circuit.''.
    Sec. 207. Section 276 of the Immigration and Nationality Act (8 
U.S.C. 1326) is amended by inserting ``(a)'' before the phrase ``Any 
alien who'' at the beginning thereof and by adding a new subsection (b) 
as follows:
    ``(b) Any alien who has been excluded from the United States 
pursuant to subsection 235(c) of the Immigration and Nationality Act (8 
U.S.C. 1225(c)) because such alien was excludable under paragraph 34 of 
subsection 212(a) of said Act (8 U.S.C. 1182(a)(34)) or has been 
removed from the United States pursuant to the provisions of title V of 
the Immigration and Nationality Act and who thereafter, without the 
permission of the Attorney General, enters the United States or 
attempts to do so shall be imprisoned for a period of ten years which 
sentence shall not run concurrently with any other sentence and fined 
in accordance with the provisions of title 18, United States Code.''.
    Sec. 208. Subsection 106(a) (8 U.S.C. 1105a(a)) of the Immigration 
and Nationality Act is amended by--
            (1) striking from the end of paragraph 8 ``; and'' and 
        inserting a period; and
            (2) striking paragraph (9).

      TITLE III--COUNTERINTELLIGENCE ACCESS TO TELEPHONE TOLL AND 
                         TRANSACTIONAL RECORDS

    Sec. 301. Section 2709 of title 18 of the United States Code is 
amended by--
            (1) striking out subsections (b) and (c); and
            (2) inserting the following new subsections (b) and (c).
    ``(b) Required Certification.--The Director of the Federal Bureau 
of Investigation (or an individual within the Federal Bureau of 
Investigation designated for this purpose by the Director) may:
            ``(1) request any such information and records if the 
        Director (or the Director's designee) certifies in writing to 
        the wire or electronic communication service provider to which 
        the request is made that--
                    ``(A) the information sought is relevant to an 
                authorized foreign counterintelligence investigation; 
                and
                    ``(B) there are specific and articulable facts 
                giving reason to believe that the person or entity 
                about whom information is sought or pertains is a 
                foreign power or an agent of a foreign power as defined 
                in section 101 of the Foreign Intelligence Surveillance 
                Act of 1978 (50 U.S.C. 1801); and
            ``(2) request subscriber information regarding a person or 
        entity if the Director certifies in writing to the wire or 
        electronic communications service provider to which the request 
        is made that--
                    ``(A) the information sought is relevant to an 
                authorized foreign counterintelligence investigation; 
                and
                    ``(B) that information available to the Federal 
                Bureau of Investigation indicates there is reason to 
                believe that communication facilities registered in the 
                name of the person or entity have been used; through 
                the services of such provider, in communication with a 
                foreign power or an agent of a foreign power as defined 
                in section 101 of the Foreign Intelligence Surveillance 
                Act of 1978 (50 U.S.C. 1801).''.
    ``(c) Penalty for Disclosure.--No wire or electronic communication 
service provider, or officer, employee, or agent thereof, shall 
disclose to any person that the Federal Bureau of Investigation has 
sought or obtained access to information under this section. Violators 
of this section shall be subject to penalty under section 3571 of this 
title.''.

                                 <all>

HR 1238 IH----2
HR 1238 IH----3
HR 1238 IH----4