[Senate Hearing 106-228]
[From the U.S. Government Publishing Office]
S. Hrg. 106-228
U.S. POLICY ON TERRORISM IN LIGHT OF THE FALN MEMBERS' CLEMENCY
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HEARING
before a
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
SPECIAL HEARING
__________
Printed for the use of the Committee on Appropriations
Available via the World Wide Web: http://www.access.gpo.gov/congress/senate
______
U.S. GOVERNMENT PRINTING OFFICE
60-334 cc WASHINGTON : 1999
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-059732-3
COMMITTEE ON APPROPRIATIONS
TED STEVENS, Alaska, Chairman
THAD COCHRAN, Mississippi ROBERT C. BYRD, West Virginia
ARLEN SPECTER, Pennsylvania DANIEL K. INOUYE, Hawaii
PETE V. DOMENICI, New Mexico ERNEST F. HOLLINGS, South Carolina
CHRISTOPHER S. BOND, Missouri PATRICK J. LEAHY, Vermont
SLADE GORTON, Washington FRANK R. LAUTENBERG, New Jersey
MITCH McCONNELL, Kentucky TOM HARKIN, Iowa
CONRAD BURNS, Montana BARBARA A. MIKULSKI, Maryland
RICHARD C. SHELBY, Alabama HARRY REID, Nevada
JUDD GREGG, New Hampshire HERB KOHL, Wisconsin
ROBERT F. BENNETT, Utah PATTY MURRAY, Washington
BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota
LARRY CRAIG, Idaho DIANNE FEINSTEIN, California
KAY BAILEY HUTCHISON, Texas RICHARD J. DURBIN, Illinois
JON KYL, Arizona
Steven J. Cortese, Staff Director
Lisa Sutherland, Deputy Staff Director
James H. English, Minority Staff Director
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Subcommittee on Commerce, Justice, and State, the Judiciary, and
Related Agencies
JUDD GREGG, New Hampshire, Chairman
TED STEVENS, Alaska ERNEST F. HOLLINGS, South Carolina
PETE V. DOMENICI, New Mexico DANIEL K. INOUYE, Hawaii
MITCH McCONNELL, Kentucky FRANK R. LAUTENBERG, New Jersey
KAY BAILEY HUTCHISON, Texas BARBARA A. MIKULSKI, Maryland
BEN NIGHTHORSE CAMPBELL, Colorado PATRICK J. LEAHY, Vermont
ROBERT C. BYRD, West Virginia
(ex officio)
Professional Staff
Jim Morhard
Kevin Linskey
Paddy Link
Dana Quam
Clayton Heil
Lila Helms (Minority)
Emelie East (Minority)
Eric Harnischfeger (Detailee)
Tim Harding (Detailee)
C O N T E N T S
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Page
Statement of Neil J. Gallagher, Assistant Director for National
Security, Federal Bureau of Investigation, Department of
Justice........................................................ 1
Statement of Neil J. Gallagher................................... 2
Terrorism definition............................................. 2
FALN and Macheteros.............................................. 3
Indictments...................................................... 3
Current threat assessment........................................ 4
Statement of Patrick J. Fitzgerald, Chief of the Organized Crime
and Terrorism Unit, United States Attorneys for the Southern
District of New York, Department of Justice.................... 5
Aggressive enforcement........................................... 5
Clemency decision................................................ 6
Sheik Rahman's conviction........................................ 7
Osama Bin Laden's indictment..................................... 7
Charges against Terry Nichols.................................... 7
Inconsistency of pardon with terrorist policy.................... 8
FALN cooperation with law enforcement............................ 9
Effect on future prosecutions.................................... 11
Difference between parole and clemency........................... 11
Impact of clemency on criminal justice........................... 12
(iii)
U.S. POLICY ON TERRORISM IN LIGHT OF THE FALN MEMBERS' CLEMENCY
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TUESDAY, SEPTEMBER 21, 1999
U.S. Senate,
Subcommittee on Commerce, Justice, and
State,
the Judiciary, and Related Agencies,
Committee on Appropriations,
Washington, DC.
The subcommittee met at 10 a.m., in room SD-138, Dirksen
Senate Office Building, Hon. Judd Gregg (chairman) presiding.
Present: Senator Gregg.
DEPARTMENT OF JUSTICE
Federal Bureau of Investigation
STATEMENT OF NEIL J. GALLAGHER, ASSISTANT DIRECTOR FOR
NATIONAL SECURITY
opening remarks
Senator Gregg. We will start this hearing. I appreciate the
courtesy of our witnesses this morning in coming to this
hearing.
We are interested today in talking about the effects of the
pardons and clemencies granted the Puerto Rican terrorists by
the President and domestic terrorism policy.
As a committee, this committee has dedicated an immense
amount of time to the issue of terrorism. I think it is safe to
say that we have been attempting to lead a coherent effort
within the Government on this issue, which is critical. My view
is that the single biggest threat that this Nation faces, in a
military or physical sense, is a terrorist threat.
We have attempted to develop a coordinated national policy
on terrorism and, with the assistance of the Attorney General's
Office and the FBI and the Secretary of State, I think we have
made very good progress and have put in place a national
terrorism policy. We have up and running a group of initiatives
in the area of trying to get ready for what will inevitably
be--unfortunately everybody seems to have concluded--an ongoing
threat. Most likely there will be a terrorist event at some
point in the future, potentially using weapons of mass
destruction.
So the decision by the President to release these 16
people, who have been convicted of acts of terrorism,
especially acts of conspiracy to undermine our Government,
throws into question our national policy on terrorism, in my
opinion. I think stated most bluntly: what is the point of
catching the terrorist if you are going to let him go?
Deterrence, in my opinion, is as much a part of fighting
terrorism as is the intelligence to stop them before they act.
Clearly, the misdirected, although theoretically well
intentioned, attacks on Sudan were an attempt at deterrence of
one type. When you catch a terrorist and go through the many
hours that it takes to catch a group like this group, and the
man-hours that were involved in this are overwhelming, you
expect those folks, once they are convicted, to serve their
sentences. So this decision by the President, in my opinion,
calls into question the whole effort on how we are approaching
the fight on terrorism in this country, and whether we have
taken our foot off the gas pedal and stepped on the brakes
relative to making an effort to try to control terrorist
activity.
There are a lot of questions in this area. It is more of a
policy--although I have some specific questions on the specific
terrorist act--it is more of a policy discussion on terrorism.
And thus, we have asked these two gentlemen to join us this
morning, from the U.S. Attorney's Office in New York, Mr.
Fitzgerald, and from the FBI, Mr. Gallagher.
Our hope is that they can shed some light on where we are
going here, and what this means, what the implications of this
action of clemency and these pardons are for our overall
terrorism policy.
Mr. Gallagher, we will start with you. If you want to make
an opening statement that would be fine. If not, we will go to
questions, but we would like to get an opening statement from
both of you first, if you want to make one. You do not have to.
statement of neil j. gallagher
Mr. Gallagher. Thank you, Mr. Chairman.
With your permission, I would like to begin with a very
simple definition, and it is the definition of terrorism
utilized by the FBI.
Senator Gregg. Why do you not introduce yourself for the
record, as to what your position is within the FBI, so the
people will know.
Mr. Gallagher. Yes, Mr. Chairman. My name is Neil
Gallagher. I am the Assistant Director of the FBI's National
Security Division, which has responsibility for
counterintelligence and counterterrorism. I am a 26-year
veteran of the FBI and, during the period of 1988 through 1993,
I was in charge of the FBI's counterterrorism program.
So I have a background in counterterrorism and am a career
FBI agent.
terrorism definition
Again, with your permission, I would like to begin with a
very simple definition of terrorism utilized by the FBI, and
rather well accepted throughout the United States Government.
Terrorism is the unlawful use of force or violence against
persons or property to influence or intimidate a government,
the civilian population, or any segment thereof in furtherance
of political or social objectives.
faln and macheteros
Utilizing that definition, I would like to go into the
background of when we first learned of the existence of both
the FALN \1\ and the Macheteros. The FALN first came to our
attention on October 26, 1974 when a communique was issued
related to five bombings in New York. Since then, over the
remainder of that decade, the FALN engaged in a series of 72
actual bombings resulting in five deaths, 83 injuries, and over
$3 million in property damage.
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\1\ FALN is the acronym for the Fuerzas Armadas Liberacion Nacional
Puertoriquena which is translated as the Armed Forces of Puerto Rican
Nationalists.
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In 1978, the Macheteros first came into public knowledge
when they issued a communique relating to the ambush
assassination of a Puerto Rican police officer, Julio
Rodriguez. In their statement, they explained that although
they took credit for the murder, they indicated that they did
not intend to kill the police officer. They just intended to
take his weapon, his uniform, and his car.
After that, rather than talk about the numbers of the
Macheteros incidents, let me just relate a couple of brief
incidents that they engaged in.
In 1979, they had eight bombings on one day of U.S.
Government facilities in Puerto Rico.
On December 3, 1979, they ambushed a U.S. Navy bus, killing
two and wounding nine.
On January 12, 1981, they destroyed nine U.S. jet fighters
that were located in Puerto Rico.
On April 21, 1981, they committed a robbery of a Wells
Fargo truck in San Torse, Puerto Rico, resulting in the theft
of $348,000.
On May 16, 1982, they ambushed four sailors returning to
their ship, killing one.
On October 30, 1983, they conducted a rocket attack against
the Federal building which housed the FBI office in Puerto
Rico, barely missing the FBI office.
On September 12, 1983, they were involved in the robbery of
a Wells Fargo depot up in West Hartford, Connecticut, resulting
in the loss of approximately $7.1 million.
On October 28, 1986, they had 10 simultaneous bombings at
U.S. Government facilities in Puerto Rico.
On July 22, 1988, they bombed a U.S. Army/Navy recruiting
station in Puerto Rico.
And on July 24, 1989, they had two bombings at a shopping
plaza mall in Puerto Rico.
indictments
I would like to spend a few minutes talking about the
events that resulted in the incarceration of the FALN subjects.
That was an indictment that was brought down in April of 1980.
When you look at that indictment and the subsequent
prosecution and convictions, I would point out four different
parts to it. One was that they were charged with seditious
conspiracy relating to 28 different bombings, most of which
were in the Chicago area, a highly populated area.
On November 3, 1976, the FBI and Chicago Police located a
bomb factory in the Chicago area, at 2659 West Hadden Street in
Chicago. In that bomb factory, at one point, there were over
211 sticks of dynamite. The bomb factory was located in a very
highly populated residential area.
On March 15, 1980, they had an armed takeover of the
Carter-Mondale Chicago Headquarters. Though there were no
injuries, I would suggest that this was by sheer luck, given
the fact that they went in armed and took control of the people
in the headquarters.
The actual event that resulted in their apprehension and
led to the indictment occurred on April 4, 1980. If it were not
for the good work of an Evanston, Illinois police officer, and
if it were not for a citizen calling in some strange activity,
there would have been an armored car robbery that day.
Fortunately, that did not occur, and I can provide some more
details later on that. That would suggest that there was a
planned violent activity that was prevented because of good
police work.
On August 30, 1985, the FBI arrested 20 members of the
Macheteros related to the $7.1 million armored car robbery. Of
those 20 individuals, seven were convicted, six pled guilty,
and four remain fugitives. Unfortunately most of the $7.1
million was never recovered. We know that some of the money
went to Cuba and a good portion of the money was utilized for
additional activities of the Macheteros terrorist organization.
current threat assessment
When you look at either the Macheteros or the FALN, you
must ask yourself, ``do they still represent a threat to the
United States and to the people of the United States?''
The arrests that occurred in Chicago in 1980 and the
arrests that occurred in Puerto Rico of the Macheteros in 1985
had the desired effect. It struck at the infrastructure of that
organization. The subsequent prosecution sent a strong message
neutralizing two terrorist organizations that for a period of
over a decade had threatened the security of the United States.
At the same time, as a result of the prosecutions,
admittedly, the FALN kept very low. You did not hear a lot
about them. Their focus became the release of their comrades
from prison.
That was broken in December of 1992 with a bombing of a
U.S. military recruitment center in Chicago, Illinois. As we
learned about the details of that bombing, we learned that the
FALN was attempting to gauge the response of the Puerto Rican
population to a renewal of an armed struggle against the
activities of Puerto Rican independence. In March of 1999, an
individual was convicted for that bombing.
With respect to the Macheteros, on March 31, 1998, there
was a bombing at a new aqueduct project in Puerto Rico that the
Macheteros took credit for. On June 9, 1998, there was a
bombing of a branch of the Banco Popular bank in Puerto Rico.
Several weeks later, on June 25, 1998, there was a similar
device located at another Banco Popular branch. There was a
police officer who responded to a report of a suspicious device
at the bank. It appeared to be a flashlight. When he picked up
the flashlight, it went off in his hands, killing him.
The Macheteros issued a communique indicating that they
were not responsible for that bombing. However, that seems
extremely suspicious, given the location of the device and the
similarities between the two explosive devices in a period of
about 3 weeks.
In closing, going back to the definition of terrorism, from
an FBI perspective certainly the Macheteros and the FALN are
terrorist organizations. They today represent a threat against
the United States.
Thank you, Mr. Chairman.
Senator Gregg. Mr. Fitzgerald.
DEPARTMENT OF JUSTICE
STATEMENT OF PATRICK J. FITZGERALD, CHIEF OF THE
ORGANIZED CRIME AND TERRORISM UNIT, UNITED
STATES ATTORNEYS FOR THE SOUTHERN DISTRICT
OF NEW YORK
Mr. Fitzgerald. Thank you, Mr. Chairman, good morning.
Senator Gregg. If you could also introduce yourself,
please.
Mr. Fitzgerald. Yes, sir. My name is Pat Fitzgerald. I am a
chief of the Organized Crime and Terrorism Unit of the United
States Attorneys Office for the Southern District of New York.
As part of that job, I both supervise and participate in the
investigation and trials of matters involving terrorism,
especially international terrorism.
At the outset of my remarks, I should say that the
defendants who were the subject of the clemency offer were
never charged with any crimes in the Southern District of New
York, and therefore I do not have detailed knowledge of the
nature of the criminal acts or the contents of the clemency
petitions filed on their behalf.
It is, however, my understanding that today's hearing will
not address the crimes of these particular defendants or the
clemency decision itself, but rather potential future
consequences of the decision on other cases and our
counterterrorism efforts generally.
The Department of Justice addresses the terrorist threat to
the United States and its people by aggressively applying a
broad range of counterterrorism statutes to activities
occurring both within the United States and outside. In light
of the potential consequences of terrorist acts, one paramount
objective of the FBI and the Department of Justice is to
prevent such acts from occurring. To that end, we seek to
apprehend terrorists before they strike through the initiation
of criminal investigations as early as possible in the chain of
conspiratorial events.
aggressive enforcement
When terrorist acts do occur, we use all available
resources in an effort to identify the perpetrators and effect
their apprehension and successful prosecution. We also seek to
charge all participants in a terrorist plot with the most
serious criminal charges that the available evidence and law
will sustain.
The Department's commitment to an aggressive
counterterrorism program is demonstrated by enforcement actions
in the Southern District of New York and other judicial
districts.
In my district, by way of example, the dedicated and
effective response of law enforcement to the bombing of the
World Trade Center on February 26, 1993 resulted in the prompt
identification, apprehension, and successful prosecution of six
participants in the bombing, including the so-called
mastermind, Ramsi Yousef. All six defendants were convicted and
have been sentenced to 240 years in jail without the
possibility of parole.
Following the bombing of the World Trade Center, proactive
investigative efforts by the Joint Terrorist Task Force,
operated by the FBI in conjunction with the New York City
Police Department and other agencies, allowed us to charge and
apprehend a sizable group of terrorists before they were able
to carry out their plans to bomb the Holland and Lincoln
Tunnels, a bridge, and other landmarks in the New York area,
including the FBI building and the United Nations. Ten
defendants, including the leader, Sheik Omar Abdel Rahman, were
convicted after a 9 month jury trial of seditious conspiracy
and other charges and sentenced to jail terms ranging from 25
years to life in jail, all without the possibility of parole.
Similarly, through effective coordination with foreign
authorities, it was possible to prevent the bombing of a dozen
U.S. commercial airlines flying Asian-Pacific routes, and to
prosecute successfully within the United States three of the
prime movers involved in that plot, including then fugitive
Ramsi Yousef.
Two of three of these terrorist defendants have been
sentenced to date, both to life imprisonment, again without the
possibility of parole.
Most recently our office, working with the FBI, obtained
charges against Osama Bin Laden, the leader of the Al Qaeda
terrorist organization and 16 other defendants for their
involvement in the bombings of the U.S. embassies in Nairobi,
Kenya and Dar es Salaam, Tanzania on August 7, 1998, and for
conspiracy to murder U.S. nationals living abroad.
The commitment of the Department of Justice, which has
resulted in these and other law enforcement efforts and
successes in the terrorism area, remains steadfast and is not
and will not be diminished by the President's recent decision
to grant clemency to certain members of Puerto Rican separatist
groups who were convicted of criminal acts. Our vigorous
counterterrorism efforts will continue unabated.
clemency decision
Although the President's clemency decision did not impact
the resolve and efforts of law enforcement, we recognize the
potential that terrorist groups or our law enforcement
counterparts in other countries might misconstrue the decision
as signaling a lessening of our commitment to address terrorism
aggressively.
The degree to which that will occur, if at all, is of
course speculative. However, to the extent that anyone
interprets the decision as reflecting a lessening of resolve,
they seriously miscalculate both the intent and actions of the
Department of Justice.
The clemency decision can also be expected to prompt
arguments at trial or in sentencing proceedings by defense
counsel in other terrorism cases that their clients and their
criminal acts should not be regarded as seriously as the
Government urges. We are firmly resolved to deal with any such
arguments so as not to diminish our ability to obtain
convictions and maximum sentences for all terrorist defendants.
We have no greater responsibility in enforcing this
Nation's laws than to protect our citizens from terrorist
actions and plots, and to apply the full force of the criminal
laws to terrorist defendants. Our past efforts demonstrate our
commitment in this area, and it is our resolve that those
efforts will continue and wherever possible be enhanced in the
future.
Senator Gregg. Thank you, Mr. Fitzgerald.
Thank you both for your testimony, which we appreciate
because it did throw a little more light on where you are, and
certainly the background of this case, but also generally the
background of how you are approaching terrorism and the
prosecution of it.
sheik rahman's conviction
Let me ask you a few preliminary questions, Mr. Fitzgerald.
The Sheik Rahman's conviction: He was not present when the
bombs were exploded at the World Trade Center, and he did not
deliver the bombs to the World Trade Center, did he?
Mr. Fitzgerald. There was no evidence to suggest that. He
was blind, so we would never contend that he was the person who
put the bomb down.
Senator Gregg. He was, however, convicted of seditious
conspiracy?
Mr. Fitzgerald. Yes, Mr. Chairman.
Senator Gregg. And he was convicted of other charges, also?
Mr. Fitzgerald. He was convicted of conspiring to kill the
president of Egypt and soliciting attacks on the president of
Egypt and soliciting attacks by others on the United States
military.
Senator Gregg. But he was not physically present at any
time that any acts of violence were undertaken, is that
correct?
Mr. Fitzgerald. He was convicted of conspiracy and
solicitation offenses for participating in agreements to carry
out acts of violence. He was not convicted of any specific acts
of violence.
osama bin laden's indictment
Senator Gregg. Mr. Bin Laden, who we now have got an
indictment against in absentia, he was not present at the
bombings in Nairobi or Dar es Salaam, was he?
Mr. Fitzgerald. The indictment does not allege that he was
present in either Kenya or Tanzania for the actual bombings.
Senator Gregg. He, however, was indicted, I presume, again
for seditious conspiracy?
Mr. Fitzgerald. No, he was indicted for different
conspiracy charges. Seditious conspiracy requires the people
who were part of the conspiracy to conspire within the United
States. So Osama Bin Laden was indicted for a number of
offenses, including conspiracy to kill Americans overseas,
conspiracy to bomb overseas, and he was actually charged with
the actual bombings.
charges against terry nichols
Senator Gregg. Are you familiar with the Terry Nichols
case?
Mr. Fitzgerald. No, I am not, other than from the
newspapers.
Senator Gregg. Mr. Gallagher, are you familiar with what
Terry Nichols were charged with?
Mr. Gallagher. I was one of the on-scene commanders at
Oklahoma City.
Senator Gregg. Was he present, deemed to be present at the
time of the bombings?
Mr. Gallagher. I do not think the trial established that he
was present with Tim McVeigh at the time of the bombing.
Senator Gregg. So he also was a conspirator who was not
physically involved in the act of violence?
Mr. Gallagher. That is correct, Mr. Chairman.
Senator Gregg. Now part of the logic of the President's PR
on the clemency was that these folks were not found guilty of
actually killing people. They were just found guilty of
seditious conspiracy. Is it not reasonable to say that Mr. Bin
Laden, Sheik Rahman, and Mr. Nichols were also not--Mr. Bin
Laden not having been convicted yet, but not charged in that
case--were not physically present during the acts of violence
for which they were charged or convicted?
Mr. Fitzgerald. We have never contended that any of those
people were present at the scenes of the actual explosions.
inconsistency of pardon with terrorist policy
Senator Gregg. The issue of how we deal with terrorists
that we think are going to occur in the future, but terrorists
who presently exist in our prison or who we presently have
under charge, is impacted by this clemency order; is it not?
And this pardon order.
Because cannot Sheik Rahman and Mr. Nichols and potentially
Mr. Bin Laden, if we can ever bring him to trial and he is
convicted, cannot they all make the same claim, that they were
not present and, therefore, should be granted clemency, as the
FALN have made?
Mr. Fitzgerald. I think they could all make that claim. As
a legal matter in the courtroom, it should be irrelevant. I do
not want to talk about Mr. Bin Laden's case, since he is not
before a court yet. But as for Sheik Omar Abdel Rahman, even
though we never alleged nor proved that he was present at the
scene of the crime, he was convicted and that conviction was
affirmed. He was convicted of seditious conspiracy. That was
affirmed by the Second Circuit Court of Appeals.
Senator Gregg. Of course, all of these FALN members, I
believe, were convicted of seditious conspiracy. My point is
that we now have in prison some, and are trying to capture and
try, some people who have committed some heinous acts or been
participants in orchestrating heinous acts against Americans,
as the FALN did, as was outlined by Mr. Gallagher.
My question is for future terrorism policy: Are these
people not now put in the position, with these clemencies
having been granted, of being able to claim the exact same
status as the FALN people, and, therefore, be able to claim
that they should be granted a pardon?
I do not expect you to answer that question, because you
are not the President. But if I were making the case of these
folks, that would be my case to this President. What is the
difference? They are all convicted of almost the same crime,
which is that they were not physically present, but that they
had a role in developing the event. That was the logic for
which this clemency was granted. If you follow that logic to
its natural conclusion, then almost all the major terrorists
which we have in prison or are trying to charge could claim
clemency and should be granted it by this President if he is
going to be consistent, which I hope he will not.
Mr. Fitzgerald, you said that the practical implications of
this clemency may be that terrorists will misconstrue and
foreign governments will misconstrue our resolve. And this
really worries me. I think it should worry the FBI. I am sure
it does.
We, on this committee, have spent a lot of time funding FBI
Legats overseas, and there has been considerable discussion on
this in this committee. It has been hard to get a consensus
around that. This question is to you, Mr. Gallagher. In light
of Mr. Fitzgerald's comments that this may be misconstrued, and
I go to a foreign government and I say, Mr. Jones over here, we
believe we can convict him of seditious conspiracy. We would
like to extradite him to the United States. Is that foreign
government not going to say why should we send him to the
United States? You are just going to let him go on clemency?
Mr. Gallagher. That is one possibility, Mr. Chairman.
Senator Gregg. Is it not going to make your credibility, in
trying to pursue terrorists overseas, much more difficult when
you have got this sort of a treatment of a domestic terrorist
event?
Mr. Gallagher. From just a purely law enforcement
perspective, the FBI, on any given day, is reaching out to law
enforcement and intelligence agencies throughout the world in
our effort to counter terrorism. We solicit the cooperation of
these agencies, not just to go against the one person who may
be the one who places the bomb, but also to go against the
infrastructure that will support the terrorist organization. So
to that degree, your comments are accurate.
Senator Gregg. When the decision was made to move to
clemency by the President, to give a pardon to these people
who--how many people had they killed? Or were killed as a
result of their activities?
Mr. Gallagher. The FALN bombings have resulted in the
deaths of five and injuries to 83.
Senator Gregg. When the decision was made to move towards a
pardon of these individuals, was there any attempt, any
communication between--well, that is a privileged matter.
faln cooperation with law enforcement
Did the FBI have the opportunity to talk to these
individuals before clemency was granted, to ask them questions
about who was the trigger man? In other words, were you given
access to these people, to use the leverage of clemency to
determine more information?
Mr. Gallagher. I cannot speak to the issue of clemency, but
at the time of their arrest back in 1980, the FBI attempted to
obtain information and interview the individuals who were
arrested. For the most part, all of the FALN subjects refused
to cooperate with the investigation.
Senator Gregg. And did they continue to refuse to cooperate
throughout the term of their incarceration?
Mr. Gallagher. Yes, Mr. Chairman.
Senator Gregg. So when they were released, you had not
received cooperation as to who was actually the trigger people
in these events?
Mr. Gallagher. That is correct, and there are also other
events, such as the FALN bombings in New York, that have never
been charged and that remain unresolved.
Senator Gregg. Is it not almost black letter police law, or
police procedure, that before you release someone for clemency
or give someone a pardon or grant someone a commuted sentence,
that you get their cooperation when there are outstanding
investigations that involve death?
Mr. Gallagher. Prior to a prosecution, if we are talking
about making a recommendation either to the U.S. Attorneys
Office or through the U.S. Attorneys to the court for a reduced
sentence, cooperation is quite often a critical element.
Senator Gregg. Would it not have been the minimum level of
courtesy for the White House to have said to the FBI: we are
going to give clemency to these people, but you can talk to
them first, to try to get their cooperation?
Mr. Gallagher. Unfortunately, Mr. Chairman, that would
cause me to get into the area that I believe is covered by
executive privilege.
Senator Gregg. Did you ever talk to these people prior to
the clemency?
Mr. Gallagher. The FALN subjects?
Senator Gregg. Correct.
Mr. Gallagher. No, sir.
Senator Gregg. So I am going to presume that you were never
given that courtesy by the White House? I think it is a safe
presumption.
Does the Department have a criteria for clemency?
Mr. Gallagher. I would have to defer to the Department of
Justice. The FBI does not have a criteria for clemency.
Senator Gregg. Do you know if the----
Mr. Fitzgerald. I do not know what the criteria are,
whether there is a formal policy.
Senator Gregg. Let me read to you from what I have been
able to glean is the criteria--the process for commuting
computation petitions. There is one section that I am
interested in.
It says:
seriousness and relative recantness of the offense
When an offense is very serious, a suitable length of time should
have elapsed in order to prevent denigrating the seriousness of the
offense or undermining the deterrent effect of the conviction. In the
case of a prominent individual or notorious crime, the likely effect of
a pardon on law enforcement interests or upon general public should be
taken into account.
That appears to be the protocol for granting a pardon and
clemency procedure, under Presidential Directive 1-2.112,
Standards for Considering Pardon Petitions.
Would not the phase ``likely effect of the pardon on law
enforcement interests or upon the general public'' include the
issue of releasing people who have knowledge of who killed, was
it six people?
Mr. Gallagher. Five people were killed.
Senator Gregg. Five people, and wounded 83 other people,
allowing law enforcement to receive their cooperation? Would
not that phrase, you presume, include that concept?
Mr. Gallagher. Again, Mr. Chairman, you are asking me to
speak on behalf of the White House. I can only speak for the
FBI and law enforcement.
Senator Gregg. Well, I would just note for the record that
this language seems to be pretty clear, that law enforcement is
supposed to be assisted in its investigations prior to pardons
being granted.
Effect on future prosecutions
Now the question becomes, in the future, when we deal with
a terrorist group, is prosecution going to be affected by the
fact that clemency might occur? I notice you seem to think, Mr.
Fitzgerald, that is not the case.
Mr. Fitzgerald. I would say that in any future prosecution,
when we are presented either with a terrorist act within our
jurisdiction or a terrorist plot, there will be no change in
the way we proceed, that the FBI and the U.S. Attorneys Office
will proceed to identify, seek to apprehend, charge
aggressively, and prosecute anyone who is responsible for
participating in a plot or an act and to seek maximum
sentences. Our intentions and our resolve will be unchanged.
Senator Gregg. I think that is good news. The fact is, law
enforcement will continue to enforce the law.
You said these individuals were convicted without the
ability to get parole; is that correct?
Mr. Fitzgerald. Yes, under the new law that was passed in,
I think, 1987, parole was abolished in the sentencing
guidelines. So the sentences under the new law do not allow for
parole.
Difference between parole and clemency
Senator Gregg. What is the difference between parole and
clemency? Is not clemency even a lesser degree of restraint
than parole?
Mr. Fitzgerald. To be honest with you, I am not familiar
with the terms of the clemency offered the individuals that you
are talking about, so I do not know.
Senator Gregg. Theoretically, if someone is granted
clemency and someone is put on parole, who has more freedom
when they get out of jail?
Mr. Fitzgerald. It actually depends on the clemency
restrictions and the parole restrictions and comparing them.
Honestly, I have no idea what restrictions there are on these
people.
Senator Gregg. Would you have any thoughts on that, Mr.
Gallagher?
Mr. Gallagher. I go back to a statement made by Ojeda Rios,
who is the leader of the Macheteros. He was charged in
connection with the $7.1 million Wells Fargo robbery. He was
out on bail. He issued a communique announcing that he was
going to return to his clandestine ways and has not been seen
since.
So when you talk about conditions being placed on a
terrorist, we have to assume that the terrorist will abide by
all of the restrictions that may be placed on them, though well
intended. In the case of Ojeda Rios, he continues to lead a
terrorist organization in exile.
Impact of clemency on criminal justice
Senator Gregg. You made the point, and I think it was a
telling point that--although I think Mr. Fitzgerald's comments
on the fact that this may be miscontrued overseas and the
implications--the clemency will affect trial procedure. I think
that is an important point because it does mean that you are
going to have smart defense attorneys basically claiming that
there is no status difference between Osama Bin Laden, if we
ever get him into court, and the FALN and the charges should,
therefore, be treated as subject to clemency.
I think the point that you made, Mr. Gallagher, at the end
of your comments, the statement was that you consider the FALN
to represent today a threat to the United States. It is a
fairly telling statement, and my question to you is: Do you
think clemency should be granted to individuals when they have
threatened the institution of freedom known as the United
States?
Mr. Gallagher. Again, Mr. Chairman, I offer my apologies.
That appears to get into the area of executive privilege
because it is giving what may be the FBI opinion on the process
of granting clemency. I will have to stop with that.
Senator Gregg. The President sent us legislation, and he
has made the statement publicly, and in fact last week he was
encouraging Russia to get tough on terrorists. The legislation
was get-tough-on-terrorist legislation. It was the Anti-
Terrorism and Effective Death Penalty Act of 1996.
My question is is it getting tough on terrorists to give a
group of terrorists who kill five people, injure 83, cause
millions of dollars of damage, and openly threaten the
institution of free government through violence--is that
getting tough on terrorists, to give them clemency?
Mr. Gallagher. That is a question, in the sense that you
just posed it, for the White House, not for the FBI. The FBI
will maintain its resolve in combating terrorism. We will
continue to use the law enforcement approach to try to prevent
terrorism from occurring inside the United States, and we will
continue to aggressively pursue organizations like the
Macheteros and the FALN.
Senator Gregg. Well, do you think these folks are going to
become law-abiding citizens with no further interest in
terrorist activity?
Mr. Gallagher. My concern is that the release of these
individuals could possibly have both a psychological and
operational impact on an active terrorist organization.
Senator Gregg. Reinvigorate it maybe?
Mr. Gallagher. It may reinvigorate them. With the FALN
having a lull for a period of a decade, to allow their
individuals to be released may reinvigorate them.
Just the other day, on September 13 in Puerto Rico, Ojeda
Rios issued a communique with respect to the ongoing dispute
over the Island of Vieques off Puerto Rico. He stated that, if
this debate continues on unresolved, the Macheteros will not
stand by with their arms crossed. And at the end of his
communique he issued a challenge to the FBI, in addition to
other U.S. Government agencies. So the real prospect of
additional terrorism, either directed or supported by the
Macheteros or the FALN, exists today.
Senator Gregg. That was this week that he issued that?
Mr. Gallagher. September 13, 1999.
Senator Gregg. When was the clemency granted?
Mr. Gallagher. Well, I do not have the actual date of the
clemency, because I have not seen the document.
Senator Gregg. They were released September 10 and this
communication occurred on September when?
Mr. Gallagher. September 13, 1999.
Senator Gregg. So we have 3 full days then we received a--
--
Mr. Gallagher. A challenge because the Macheteros have
targeted the United States Navy to highlight the ongoing debate
over the Island of Vieques. In the communique, they have also
mentioned the FBI. There has not only been a rocket attack
against the FBI facility in Puerto Rico, but today there is an
FBI agent who was involved in the attempted arrest of Ojeda
Rios that is blind in one eye as a result of a shoot-out that
occurred during the arrest attempt.
Senator Gregg. So we got 3 days of peace for this clemency,
and we now have a threat that has been reasserted.
Mr. Gallagher. The threat has been reasserted by the
Macheteros.
Senator Gregg. Governor Keating, who was a former FBI agent
and is governor of Oklahoma, made this statement relative to
the clemency. He said this type of action will encourage
terrorism worldwide. We should never make deals with
terrorists.
Do you think that that is a reasonable statement of policy?
Mr. Gallagher. With respect to whether it will encourage
terrorists?
Senator Gregg. Right.
Mr. Gallagher. My concern is that it would have a
psychological impact on at least these two terrorist
organizations. And you have to consider the possibility that it
could have a similar psychological impact on other terrorist
organizations.
I can recall sitting down with representatives of the
Southern District of New York at the early stages before the
prosecution of Sheik Rahman, and one of the reassuring aspects
of it was the aggressiveness of the prosecutors out of the
Southern District that were going to take on the infrastructure
that would plan to bomb New York City. It was not only those
individuals who had placed the bomb, but the entire
infrastructure that would allow an organization like that to
exist on U.S. soil.
Senator Gregg. Is there anything further either of you wish
to add?
Mr. Fitzgerald. No, thank you, Mr. Chairman.
Senator Gregg. I think both of you have summarized the
problem rather starkly and, as I see it, the problem is that
this clemency, first, was ill-conceived. Second, it cannot be
justified. Third, it creates very serious problems for those
pending terrorist cases and for the terrorists we already have
in jail. It gives them credibility to claim clemency under the
same act. Fourth, it is going to undermine our ability to deal
with foreign governments and foreign police forces, and
undermine their confidence in our willingness to not only
convict terrorists but to keep them in prison. And fifth, it
appears that we have granted clemency to a group of people who
really were not asked to cooperate before they were given
clemency, which I find staggering, to identify who caused these
crimes beyond themselves; who did this killing beyond their own
group. Clearly, there is no confidence--at least it appears to
me from the testimony this morning--that these folks are going
to be a problem in the future with some sort of terrorist act,
or that their associates will not undertake some sort of
terrorist action.
And so, as a general statement, it seems to me that the
granting of clemency in this area has really shredded our
efforts to have a coherent, cohesive, and tough policy against
terrorists.
We have been set back significantly, I would suspect, in
our capacity to one, pursue terrorists; but two, once we get
them in prison, keep them there by this action. Obviously, in
these specific instances, we have been set back completely
because they are out, and they should never have been out. But
with other people who are hopefully going to be apprehended and
convicted, like Mr. Bin Laden, it undermines our credibility in
holding them in jail.
So I do think this has done a disservice which may come
back to haunt us as a Nation.
conclusion of hearing
I appreciate your time for coming here and testifying, and
I think that it has been an opportunity to get some of these
issues out that I think were important to discuss, and I thank
you for doing that.
Mr. Fitzgerald. Thank you, Mr. Chairman.
Mr. Gallagher. Thank you.
Senator Gregg. Thank you.
[Whereupon, at 10:45 a.m., Tuesday, September 21, the
hearing was concluded, and the subcommittee was recessed, to
reconvene subject to the call of the Chair.]