[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

=======================================================================

                                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
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                       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
                                 ------                                

   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

                              ----------                              
                                                                   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

                              ----------                              


                      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.
---------------------------------------------------------------------------
    \1\ FALN is the acronym for the Fuerzas Armadas Liberacion Nacional 
Puertoriquena which is translated as the Armed Forces of Puerto Rican 
Nationalists.
---------------------------------------------------------------------------
    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.]

                                  
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