[Congressional Record Volume 141, Number 27 (Friday, February 10, 1995)]
[Senate]
[Pages S2493-S2529]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. THURMOND (for himself, Mr. Kyl, Mr. Smith, Mr. Lott, Mr.
Inhofe, Mr. McCain, and Mr. Kempthorne):
S. 383. A bill to provide for the establishment of policy on the
deployment by the United States of an antiballistic missile system and
of advanced theater missile defense systems; to the Committee on Armed
Services.
BALLISTIC MISSILE DEFENSE LEGISLATION
Mr. THURMOND. Mr. President, I rise today to introduce legislation
that would establish as U.S. policy the goal of developing and
deploying as soon as practical defenses to defend the American people
and our forces overseas against ballistic missile attack. This bill is
identical to a provision recently passed by the House National Security
Committee, which will soon be considered by the full House of
Representatives.
The administration has proposed a ballistic missile defense program
that focuses almost exclusively on theater missile defense. While I
strongly support a robust theater program, as reflected in this bill, I
believe that the administration's program is not well balanced.
It is my belief that the administration has failed to put together an
adequate national missile defense program to defend the American people
against the emerging threat posed by long-range ballistic missiles.
Today, the United States faces ballistic missile threats, but has no
defense. In the future, there will be more countries which will be able
to pose such threats to our country. Therefore, we must begin today to
plan for the creation of a highly effective national defense that
initially will be able to defend against a limited ballistic missile
attack.
In the coming months, the Senate Armed Services Committee will be
examining a wide range of options for a national missile defense
system. Our decisions will become apparent in the fiscal year 1996
defense authorization bill. The purpose of the bill I am introducing
today, is to establish a general policy and to require the Secretary of
Defense to establish a plan for developing and deploying a national
missile defense system.
I would like to thank Senator Kyl for his work in this area and for
being a principal cosponsor of this bill. A number of my colleagues
from the Armed Services Committee are also joining me in introducing
this important legislation, and I thank them all for their support and
hard work on this issue.
Mr. KYL. Mr. President, today, along with Senator Thurmond and other
Senate Armed Services Committee members, I am introducing the Ballistic
Missile Defense Revitalization Act of 1995, for the purpose of
requiring the Secretary of Defense to develop for deployment, at the
earliest practical date, national and theater ballistic missile defense
systems. The companion legislation, section 201 of H.R. 7, has passed
the House National Security Committee and will soon be voted on by the
full House.
I am submitting this legislation in an effort to get the Pentagon's
current ballistic missile defense program back on track. Currently, and
in the forseeable future, the United States continues to be woefully
unprepared to cope with the threat of ballistic missile attack. This
must end; and the bill I have introduced today will help end our
vulnerability.
Twelve years ago during his State of the Union Address, former
President Ronald Reagan posed a simple challenge to America's
scientific community: Find a way to make ballistic missiles impotent
and obsolete. Because, he asked, ``Is it not better to save lives than
to avenge them?'' With those words, President Reagan chartered one of
the most important and controversial defense programs of the modern
age--the strategic defense initiative.
Through the years the SDI program was pushed and pulled in many
different directions by both the Congress and administration. No push,
however, equalled the shove the Clinton administration gave the program
in 1993. With the elimination of key ballistic missile defense
programs, the United States is now almost exclusively focused on
theater ballistic missile defenses which, hopefully, will be able to
defend our troops deployed overseas. But, this limited protection comes
at the expense of the development and deployment of national missile
defenses.
Focusing only on theater defenses and the threat that is here and
now, the administration completely ignores analysis from our Nation's
best intelligence experts about the potential future threat to the
continental United States.
Intelligence experts have repeatedly warned that terrorism is on the
rise, that the quest for nuclear weapons in the Third World has not
subsided, and that Russian nuclear materials have shown up on the black
market. But, the administration has failed to heed those warnings.
Even the headlines lay bare the future vulnerability faced by the
American people.
The Washington Times recently carried the headline ``Yeltsin Can't
Curtail Arms Spread.''
A Clinton administration official recently stated, ``The out-of-
control weapons of mass destruction industries in Russia are the No. 1
national security issue facing the United States.''
China has sold to Saudi Arabia the CSS-2, a medium-range missile
capable of reaching any place in Europe.
Iran is desperately shopping the blackmarket for the technology to
develop nuclear weapons, and Russia wants to sell to Iran.
The threat is real. As former Director of the CIA, Bob Gates, said,
``History is not over. It was merely frozen and is now thawing with a
vengeance.''
The CIA claims that 25 nations could acquire chemical, biological,
and nuclear weapons by the end of the decade. That's 20 more than we
have today. And, potentially, 20 nations that are lead by despots who
see it as their duty to annihilate the United States. One of those
leaders could be Abul Abbas, head of the Palestinian Liberation Front,
who promised revenge on the United States for attacking Iraq. He said,
``Revenge takes 40 years. If not my son then the son of my son will
kill you. Someday we will have missiles that can reach New York.''
In day-to-day terms, the proliferation of weapons of mass destruction
among the Third World and the lack of defenses against those weapons
could radically alter the manner in which the United States carries out
its foreign policy. Would we have deployed 15,000 troops in Haiti if
General Cedras had a weapon of mass destruction and a missile that
could reach Florida? Probably not. Would America stand up for human
rights and democracy in a starving nation if warlords had stolen
nuclear weapons from Russia? Probably not. Would the Persian Gulf war
have been fought if Hussein had succeeded in his quest, and acquired a
deliverable nuclear weapon? Probably not.
The world will be dramatically different in the 21st century. We
cannot predict the future. We don't know who will do it or when it will
happen. But, it will happen. Some day, someone, somewhere will launch a
ballistic missile at the United States.
When the warning comes, most Americans will believe that we will be
able to defend ourselves. We can't. When the codes to launch a nuclear
ballistic missile are entered and the keys are turned, there is no way
to prevent the missile from reaching its target.
We cannot intercept it. We cannot interfere with its guidance system.
We cannot make it self-destruct. There is nothing we can do to stop
even one single missile from reaching the United States of America.
Nothing.
The Clinton administration won't change the situation either. In
fact, it's getting worse. The Clinton administration and congressional
opponents have destroyed any future strategic capability to defend the
United States and are on their way to destroying potential theater
defenses as well.
This is being done by their decision to clarify the ABM Treaty to
define
[[Page S2494]] our next theater defense missile as an illegal missile.
The ABM Treaty, recall, was signed in 1972 by Leonid Brezhnev and
Richard Nixon. It shouldn't have been endorsed in 1972, and it
shouldn't be reendorsed in 1995, 23 years later. It most certainly
should not be redefined.
The threat has changed. Technology has improved. And the Soviet Union
doesn't even exist. But, the Clinton team insists on deliberately
drawing a distinction between strategic and theater ballistic missiles,
something that was left undefined in 1972.
What the administration's negotiators have accomplished is not only
to negotiate away strategic systems--which came as no surprise--but,
also to negotiate away the only advanced theater systems in research
and development in the United States. The Clinton administration has
done this by arbitrarily placing speed limits on interceptors. If an
interceptor breaks 3km/sec, it is defined as a strategic ABM
interceptor and would not be deployable as a theater missile under the
new terms of the ABM Treaty. Key theater defense systems, including
THAAD and Navy Upper Tier, have capabilities beyond 3km/sec. and, thus,
could not be further developed as designed.
Over the last 2 years, the opponents have won significant budget cuts
in ballistic missile defenses and have succeeded in canceling all
space-based options. This is especially disturbing because space-based
sensors and interceptors are critical to the success of any global
strategic defense system. They provide worldwide, instanteous detection
of and protection against missiles launched from anywhere in the world,
and are both cheaper and more effective than their ground-based
counterparts.
During Operation Desert Shield, it took the United States 6 months
and 400 airlifts to put in place the Patriot interceptors that were
used to shoot down some of the Iraqi Scuds. With space-based
interceptors, coverage would be instanteous. Yet, all systems capable
of accomplishing that mission have been zeroed. Zeroed, because using
space for military purposes is politically unpopular.
This narrowmindedness and refusal to view space for what it is--the
high frontier, boundless in opportunity--will have serious consequences
for our future military successes. Like earlier forays into the air and
the sea, the use of space will change the course of warfare. It's
already happening. The United States should not deny itself that
capability.
The Ballistic Missile Defense Revitalization Act restores the focus
of the BMD program to development and deployment of defenses capable of
protecting a theater as well as the continental United States. This is
an important step in establishing a firm basis for a national response
to the growing threat from Third World ballistic missiles.
In closing, I will note that 12 years of ballistic missile defense
research has produced a series of successes. There is no longer any
doubt that defense against ballistic missiles is feasible. It is my
hope that the next few years of ballistic missile defense research will
achieve President Reagan's original goal--to make nuclear weapons
impotent and obsolete. The moral imperative is, as President Reagan
said, that it is better to save lives than to avenge them.
______
By Mr. McCONNELL:
S. 386. A bill to amend the Internal Revenue Code of 1986 to provide
for the tax-free treatment of education savings accounts established
through certain State programs, and for other purposes; to the
Committee on Finance.
THE TRUST FUND SAVINGS ACT
Mr. McCONNELL. Mr. President, I introduce a bill that will
help Americans defray the costs of a college education. For many, the
dream of a college education can never be fulfilled simply because they
can not meet the skyrocketing costs. I am sure all of my colleagues
will agree that this Nation's future success is dependent on the
education of our children today.
Mr. President, the facts are clear. Education costs are outpacing
average wages and this has created a barrier to attending college.
Throughout the 1980's education costs have risen 8 percent per year. At
this pace, an average tuition bill of $5,000 will be $11,700 in the
year 2000. In 1994, the average tuition in America rose by 6 percent.
It was also the smallest since 1989 according to the College Board.
In Kentucky last year tuition rocketed 11.2 percent at the University
of Kentucky and the University of Louisville. For other regional
schools, students and parents only saw their costs rise by 5.3 percent.
The largest increase, however, was felt by the students attending
community colleges where costs rose 14.3 percent.
As tuition continues to increase, so does the need for assistance. In
1990, over 56 percent of all students accepted some form of financial
assistance. The statistic was even higher for minority students. Also
on the rise are need-based scholarships and grants. In Kentucky,
between 1984 and 1992, need-based scholarships rose by 160 percent.
It is increasingly common for students to study now and pay later. In
fact, more students than ever are forced to bear the additional loan
costs in order to receive an education. Between 1993 and 1994 Federal
loan volume rose by 57 percent from the previous year. On top of that,
students have increased the size of their loan burden by an average of
28 percent. So, not only are more students taking out loans, but they
are taking out bigger loans as well. Next May at graduation time,
nearly half the graduates will hit the pavement with their diplomas and
stack of loan repayment books.
I believe that we need to reverse this trend by boosting savings and
to help parents meet the education needs of their children. The bill I
am introducing today, will make changes to the Tax Code maximizing the
scope and the investment in State-sponsored education savings plans.
This legislation will permit parents to contribute up to $3,000
annually in after-tax dollars to a State-sponsored plan. Also this
amount will be indexed to match the annual growth in education costs.
The real benefit of this program will allow earnings to accumulate tax-
free when used to meet educaiton costs. Any earnings not used for
educational purposes will be taxed at the students individual rate. I
believe this will provide a significant benefit to families and
correct, at least in this instance, the unfair tax discrimination
toward savings.
For those States that have established programs, whether they are
prepared, savings or bond programs this legislation will provide tax-
exempt status to those organizations that administer these programs. In
November 1994, the U.S. Appeals Court in Cincinnati ruled that the
Michigan Education Trust is not subject to Federal income tax. This
language would also remove any misunderstanding regarding the taxation
of these investments.
This tax designation will serve two purposes. Once, it will send a
clear message regarding each organization's mission to help families
finance a child's education. Second, it will reduce the administrative
expenses, thus increasing the investment in education.
Mr. President, this is not another unfunded mandate. This legislation
merely provides States with an option to invest in their most important
resource, their children. I am confident that following the passage of
this legislation more and more States will seek to establish similar
programs to stimulate both education savings and reduce the need for
State assistance in the future.
Lastly, this bill would make corporate and individual endowments to
the trust fund exempt from Federal taxation when distributed among
participants. This will allow corporations to help finance the
education of our Nation's future leaders.
This legislation is not a funding cure but is a serious effort to
encourage long-term savings. Participants don't have to be rich to
participate. In fact, the average monthly contribution in Kentucky is
just $47.22. This program will reward an individuals long term
investment in education.
The alternative funding option is to continue in our futile attempt
to outpace the rising cost of education through subsidies and aid. More
that likely this would exacerbate the dollar chase driving costs even
higher. I am confident, that my legislation will take the burden off
the Federal and State government to subsidize students.
[[Page S2495]] I hope my colleagues will join me in creating this
viable and affordable means of helping families provide for their
children's higher education. I ask unanimous consent that the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 386
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. TAX TREATMENT OF STATE EDUCATION SAVINGS ACCOUNTS.
(a) In General.--Part III of subchapter B of chapter 1 of
the Internal Revenue Code of 1986 (relating to items
specifically excluded from gross income) is amended by
redesignating section 137 as section 138 and by adding after
section 136 the following new section:
``SEC. 137. EDUCATION SAVINGS ACCOUNTS.
``(a) General Rule.--Gross income shall not include any
qualified education savings account distribution.
``(b) Qualified Education Savings Account Distribution.--
For purposes of this section--
``(1) In general.--The term `qualified education savings
account distribution' means any amount paid or distributed
out of an education savings account which would otherwise be
includible in gross income to the extent such payment or
distribution is used exclusively to pay qualified higher
education expenses incurred by the designated beneficiary of
the account.
``(2) Rollovers.--The term `qualified education savings
account distribution' includes any transfer from an education
savings account of one designated beneficiary to another such
account of such beneficiary or to such an account of another
designated beneficiary.
``(3) Special rules.--The determination under paragraph (1)
as to whether an amount is otherwise includible in gross
income shall be made in the manner described in section 72,
except that--
``(A) all education savings accounts shall be treated as
one contract,
``(B) all distributions during any taxable year shall be
treated as one distribution,
``(C) contributions to an account described in subsection
(c)(4)(B)(i) shall not be included in the investment in the
contract with respect to the account, and
``(D) the value of the contract, income on the contract,
and investment in the contract shall be computed as of the
close of the calendar year in which the taxable year begins.
``(c) Education Savings Account.--For purposes of this
section--
``(1) In general.--The term `education savings account'
means a trust created or organized in the United States--
``(A) pursuant to a qualified State educational savings
plan, and
``(B) exclusively for the purpose of paying the qualified
higher education expenses of the designated beneficiary of
the account.
``(2) Qualified state educational savings plan.--The term
`qualified State educational savings plan' means a plan
established and maintained by a State or instrumentality
thereof under which--
``(A) participants may save to meet qualified higher
education expenses of designated beneficiaries,
``(B) planning and financial information is provided to
participants about current and projected qualified higher
education expenses,
``(C) education savings account statements are provided to
participants at least quarterly, and
``(D) an audited financial statement is provided to
participants at least annually.
``(3) Qualified higher education expenses.--The term
`qualified higher education expenses' means the cost of
attendance (as defined in section 472 of the Higher Education
Act of 1965).
``(4) Limitations.--A trust shall not be treated as an
education savings account unless the following requirements
are met:
``(A) No contribution will be accepted unless it is in
cash, stocks, bonds, or other securities which are readily
tradable on an established securities market.
``(B) Contributions will not be accepted for any taxable
year in excess of the applicable limit. The preceding
sentence shall not apply to--
``(i) contributions to the qualified State educational
savings plan which are allocated to all education savings
accounts within the class for which the contribution was
made, or
``(ii) rollover contributions described in subsection
(b)(2).
``(C) The trust may not be established for the benefit of
more than one individual.
``(D) The trustee is the qualified State educational
savings plan or person designated by it.
``(E) The assets of the trust may be invested only in
accordance with the qualified State educational savings plan.
``(5) Applicable limit.--For purposes of paragraph (4)(B)--
``(A) In general.--The applicable limit is $3,000.
``(B) Indexing.--In the case of taxable years beginning
after December 31, 1995, the $3,000 amount under subparagraph
(A) shall be increased by the education cost-of-living
adjustment for the calendar year in which the taxable year
begins.
``(C) Education cost-of-living adjustment.--For purposes of
subparagraph (B), the education cost-of-living adjustment for
any calendar year is the percentage (if any) by which--
``(i) the higher education cost index for the preceding
calendar year, exceeds
``(ii) such index for 1994.
``(D) Higher education cost index.--For purposes of
subparagraph (C), the higher education cost index for any
calendar year is the average qualified higher education
expenses for undergraduate students at both private and
public institutions of higher education for the 12-month
period ending on August 31 of the calendar year. The
Secretary of Education shall provide for the computation and
publication of the higher education cost index.
``(d) Tax Treatment of Accounts and State Plans.--
``(1) Exemption from tax.--An education savings account
shall be exempt from taxation under this subtitle.
Notwithstanding the preceding sentence, any such account or
plan shall be subject to the taxes imposed by section 511
(relating to imposition of tax on unrelated business income
of charitable, etc. organizations).
``(2) Loss of exemption of account where individual engages
in prohibited transaction.--
``(A) In general.--If the designated beneficiary of an
education savings account is established or any individual
who contributes to such account engages in any transaction
prohibited by section 4975 with respect to the account, the
account shall cease to be an education savings account as of
the first day of the taxable year (of the individual so
engaging in such transaction) during which such transaction
occurs.
``(B) Account treated as distributing all its assets.--In
any case in which any account ceases to be an education
savings account by reason of subparagraph (A) as of the first
day of any taxable year, an amount equal to the fair market
value of all assets in the account shall be treated as having
been distributed on such first day.
``(3) Effect of pledging account as security.--If, during
any taxable year, the individual for whose benefit an
education savings account is established, or any individual
who contributes to such account, uses the account or any
portion thereof as security for a loan, the portion so used
shall be treated as distributed to the individual so using
such portion.
``(e) Reports.--The Secretary may require the trustee of an
education savings account to make reports regarding such
account to the Secretary, to the individual who has
established the account, and to the designated beneficiary of
the account with respect to contributions, distributions, and
such other matters as the Secretary may require. The reports
required by this subsection shall be filed at such time and
in such manner and furnished to such individuals at such time
and in such manner as may be required by those regulations.''
(b) Tax Treatment of Qualified State Educational Savings
Plan.--
(1) Treatment as section 501(c)(3) organization.--Section
501(c)(3) of such Code is amended by inserting ``or which is
a qualified State educational savings plan (as defined in
section 137(c)(2)),'' after ``animals,''.
(2) Charitable contributions.--
(A) Subparagraph (B) of section 170(c)(2) of such Code is
amended by inserting ``, or which is a qualified State
educational savings plan (as defined in section 137(c)(2)),''
after ``animals''.
(B) Section 170(b)(1)(A) of such Code is amended by
striking ``or'' at the end of clause (vii), by inserting
``or'' at the end of clause (viii) and by inserting after
clause (viii) the following new clause:
``(ix) a qualified State educational savings plan (as
defined in section 137(c)(2)).''
(c) Contribution Not Subject to Gift Tax.--Section 2503 of
such Code (relating to taxable gifts) is amended by adding at
the end the following new subsection:
``(h) Education Savings Accounts.--Any contribution made by
an individual to an education savings account described in
section 137 shall not be treated as a transfer of property by
gift for purposes of this chapter.''
(d) Tax on Prohibited Transactions.--Section 4975 of such
Code (relating to prohibited transactions) is amended--
(1) by adding at the end of subsection (c) the following
new paragraph:
``(4) Special rule for education savings accounts.--An
individual for whose benefit an education savings account is
established and any contributor to such account shall be
exempt from the tax imposed by this section with respect to
any transaction concerning such account (which would
otherwise be taxable under this section) if, with respect to
such transaction, the account ceases to be an education
savings account by reason of the application of section
137(d)(2)(A) to such account.'', and
(2) by inserting ``, an education savings account described
in section 137(c),'' in subsection (e)(1) after ``described
in section 408(a)''.
(e) Failure To Provide Reports on Education Savings
Accounts.--Section 6693 of such Code (relating to failure to
provide reports on individual retirement accounts or
annuities) is amended--
[[Page S2496]] (1) by inserting ``or on education savings
accounts'' after ``annuities'' in the heading of such
section, and
(2) by adding at the end of subsection (a) the following
new sentence: ``Any person required by section 137(e) to file
a report regarding an education savings account who fails to
file the report at the time or in the manner required by such
section shall pay a penalty of $50 for each failure, unless
it is shown that such failure is due to reasonable cause.''
(f) Special Rule for Determining Amounts of Support for
Dependent.--Subsection (b) of section 152 of such Code
(relating to definition of dependent) is amended by
redesignating paragraph (6) as paragraph (7) and by inserting
after paragraph (5) the following new paragraph:
``(6) A distribution from an education savings account
described in section 137(c) to the individual for whose
benefit such account has been established shall not be taken
into account in determining support for purposes of this
section to the extent such distribution is excluded from
gross income of such individual under section 137.''
(g) Clerical Amendments.--
(1) The table of sections for part III of subchapter B of
chapter 1 of such Code is amended by striking out the item
relating to section 137 and inserting the following new
items:
``Sec. 137. Education savings accounts.
``Sec. 138. Cross references to other Acts.''
(2) The table of sections for subchapter B of chapter 68 of
such Code is amended by striking out the item relating to
section 6693 and inserting the following new item:
``Sec. 6693. Failure to provide reports on individual retirement
accounts or annuities or on education savings accounts.''
(h) Effective Date.--The amendments made by this section
shall apply to contributions made in taxable years beginning
after December 31, 1994.
______
By Mr. EXON:
S. 387. A bill to encourage enhanced State and Federal efforts to
reduce traffic deaths and injuries and improve traffic safety among
young, old, and high-risk drivers; to the Committee on Commerce,
Science, and Transportation.
the high-risk drivers act of 1995
Mr. EXON. Mr. President, I rise to introduce the High-Risk Drivers
Act. Senator Danforth and I worked very hard on this legislation in the
last Congress and I hope it can be passed quickly this year.
This is indeed a most appropriate time for introduction and swift
passage.
While we have made significant progress in reducing death and injury
on America's highways, it is time to build on that success and focus
Federal resources on those areas which will produce the highest return
on safety for each dollar invested. At this time of scrutiny for all
Federal spending, the high-risk drivers bill gives taxpayers a great
value.
Three groups of drivers need special attention in our continuing
efforts to make the Nation's highways safer. They are young drivers,
high-risk drivers or repeat offenders and older drivers.
This legislation encourages the States and the Federal Government to
focus attention on all three groups. Even with the great need to reduce
the Federal budget deficit, this is one area where we must recognize
and take action on the fact that a small investment will yield
significant returns. When I chaired a hearing on this important
legislation last year, one expert testified that if this legislation
were enacted, there would be at least a tenfold return on investment
due to reduced costs of death, injury, and loss of productivity.
Of course, no economist can measure the cost of the sorrow, pain, and
suffering incurred by parents, friends, and families of those killed
and injured in traffic accidents. No economist can measure the value of
relief parents feel each and every time their young sons and daughters
return home safely.
Even with the long-term decline in traffic fatality rates, too many
lose their lives in traffic accidents. In 1993, according to the
National Safety Council, over 42,000 Americans died in auto crashes.
That's like losing a city the size of Grand Island, NE and its
surrounding area.
This legislation focuses attention where it is most needed to reduce
the carnage on America's highways.
Motor vehicle crashes are the leading cause of death among teenagers.
Teen drivers comprise 7.4 percent of the U.S. population but are
involved in 15.4 percent of the fatal motor vehicle crashes. The simple
problem is that it takes a great deal of experience, judgment, and
maturity to master the operation of a vehicle. Unfortunately, many
young drivers are not getting the training they need to master the safe
operation of automobiles. In addition, the temptations and pressures
faced by today's teenagers sometimes run counter to the skills and the
values needed to safely operate a motor vehicle. The high-risk drivers
bill attempts to temper those temptations and impulses by putting at
risk what many teens value the most, their driver's license, or, in the
vernacular, their ``wheels.''
The High-Risk Drivers Act encourages States through incentive grants
to conduct youth-oriented traffic-safety enforcement, education, and
training programs, and to adopt a graduated license system where a full
unrestricted license is not obtained until a young driver has had a
clean driving record for at least 1 year.
The bill focuses heavy attention on drinking and driving. States are
encouraged to adopt a zero tolerance policy for underage drinking and
driving by adopting, as the State of Nebraska has, a blood alcohol
threshold level of .02 percent for drivers
under the age of 21. In addition, the bill encourages States to adopt
a minimum $500 fine for anyone who sells alcohol to minors, a 6-month
suspension for drivers under the age of 21 caught drinking and driving
and a prohibition against open containers of alcohol inside
automobiles.
The high-risk drivers bill also attempts to get parents involved by
providing them with information about the effect that at-fault
accidents and traffic violations have on young drivers insurance rates
before any tragic and expensive accidents occur.
The second focus area of this legislation is on repeat offenders and
high-risk drivers. This section of the bill uses incentive grants to
encourage States to maintain better records of serious drivers
offenses, to improve the sharing of driver information, and to
establish remedial programs for young high-risk drivers.
Perhaps most innovative and effective is an effort to encourage
States to adopt vehicle confiscation schemes for repeat drunk drivers.
This provision, with appropriate protection for family members, will
help crack down on that hard core group of repeat offenders drunk
drivers who so endanger every citizen, including themselves.
This legislation also establishes an aggressive research agenda for
older drivers. Our Nation's transportation policies must anticipate the
mobility needs of the Nation's senior population. This include
strategies which use technology and licensing plans which help older
drivers keep their independence. I am pleased to report that the
American Association of Retired Persons supports the older driver
provisions of this act.
Finally, this important legislation boosts the authorization level
for the important Anti-Drunk Driving Enforcement Program known as the
410 Program.
This bill embraces the bipartisan compromise Senator Danforth and I
crafted last year. Both the House and Senate voted for this legislation
but the House-passed vehicle for this bill was blocked in the Senate
during the closing hours of the last Congress for reasons unrelated to
this important safety program.
To put it another way, Mr. President, this measure has already passed
both Houses of Congress and has agreed to, but, because of a
technicality at the last minute, it failed to get passage.
Mr. President, I am pleased that my own home State of Nebraska is
seriously looking at a number of the proposals included in this and the
original high risk-drivers bill Senator Danforth and I introduced in
the last Congress.
Mr. President, I ask my colleagues to support swift passage of this
important piece of legislation.
I ask unanimous consent that the articles outlining some of
Nebraska's efforts and the text of the High-Risk Drivers Act of 1995 be
printed in the Record at the conclusion of my remarks.
I would simply specify, Mr. President, if I might, the articles that
I would like to have printed: ``Nebraska Leads in Drunken Driving
Control,'' ``Panel Seeks Tougher DWI Law,'' and ``MADD Founder Faults
Drunk-Driving Bill.''
[[Page S2497]] There being no objection, the material was ordered to
be printed in the Record, as follows:
S. 387
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``High-risk Drivers Act of
1995''.
TITLE I--HIGH-RISK AND ALCOHOL-IMPAIRED DRIVERS
SEC. 101. FINDINGS.
The Congress makes the following findings:
(1) The Nation's traffic fatality rate has declined from
5.5 deaths per 100 million vehicle miles traveled in 1966 to
an historic low of an estimated 1.8 deaths per 100 million
vehicle miles traveled during 1992. In order to further this
desired trend, the safety programs and policies implemented
by the Department of Transportation must be continued, and at
the same time, the focus of these efforts as they pertain to
high risk drivers of all ages must be strengthened.
(2) Motor vehicle crashes are the leading cause of death
among teenagers, and teenage drivers tend to be at fault for
their fatal crashes more often than older drivers. Drivers
who are 16 to 20 years old comprised 7.4 percent of the
United States population in 1991 but were involved in 15.4
percent of fatal motor vehicle crashes. Also, on the basis of
crashes per 100,000 licensed drivers, young drivers are the
highest risk group of drivers.
(3) During 1991, 6,630 teenagers from age 15 through 20
died in motor vehicle crashes. This tragic loss demands that
the Federal Government intensify its efforts to promote
highway safety among members of this high risk group.
(4) The consumption of alcohol, speeding over allowable
limits or too fast for road conditions, inadequate use of
occupant restraints, and other high risk behaviors are
several of the key causes for this tragic loss of young
drivers and passengers. The Department of Transportation,
working cooperatively with the States, student groups, and
other organizations, must reinvigorate its current programs
and policies to address more effectively these pressing
problems of teenage drivers.
(5) In 1991 individuals aged 70 years and older, who are
particularly susceptible to injury, were involved in 12
percent of all motor vehicle traffic crash fatalities. These
deaths accounted for 4,828 fatalities out of 41,462 total
traffic fatalities.
(6) The number of older Americans who drive is expected to
increase dramatically during the next 30 years.
Unfortunately, during the last 15 years, the Department of
Transportation has supported an extremely limited program
concerning older drivers. Research on older driver behavior
and licensing has suffered from intermittent funding at
amounts that were insufficient to address the scope and
nature of the challenges ahead.
(7) A major objective of United States transportation
policy must be to promote the mobility of older Americans
while at the same time ensuring public safety on our Nation's
highways. In order to accomplish these two objectives
simultaneously, the Department of Transportation must support
a vigorous and sustained program of research, technical
assistance, evaluation, and other appropriate activities that
are designed to reduce the fatality and crash rate of older
drivers who have identifiable risk characteristics.
SEC. 102. DEFINITIONS.
For purposes of this title--
(1) The term ``high risk driver'' means a motor vehicle
driver who belongs to a class of drivers that, based on
vehicle crash rates, fatality rates, traffic safety violation
rates, and other factors specified by the Secretary, presents
a risk of injury to the driver and other individuals that is
higher than the risk presented by the average driver.
(2) The term ``Secretary'' means the Secretary of
Transportation.
SEC. 103. POLICY AND PROGRAM DIRECTION.
(a) General Responsibility of Secretary.--The Secretary
shall develop and implement effective and comprehensive
policies and programs to promote safe driving behavior by
young drivers, older drivers, and repeat violators of traffic
safety regulations and laws.
(b) Safety Promotion Activities.--The Secretary shall
promote or engage in activities that seek to ensure that--
(1) cost effective and scientifically-based guidelines and
technologies for the nondiscriminatory evaluation and
licensing of high risk drivers are advanced;
(2) model driver training, screening, licensing, control,
and evaluation programs are improved;
(3) uniform or compatible State driver point systems and
other licensing and driver record information systems are
advanced as a means of identifying and initially evaluating
high risk drivers; and
(4) driver training programs and the delivery of such
programs are advanced.
(c) Driver Training Research.--The Secretary shall explore
the feasibility and advisability of using cost efficient
simulation and other technologies as a mans of enhancing
driver training; shall advance knowledge regarding the
perceptual, cognitive, and decision making
skills needed for safe driving and to improve driver
training; and shall investigate the most effective means
of integrating licensing, training, and other techniques
for preparing novice drivers for the safe use of highway
systems.
TITLE II--YOUNG DRIVER PROGRAMS
SEC. 201. STATE GRANTS FOR YOUNG DRIVER PROGRAMS.
(a) Establishment of Grant Program.--Chapter 4 of title 23,
United States Code, is amended by adding at the end the
following new section:
``Sec. 411. Programs for young drivers
``(a) General Authority.--Subject to the provisions of this
section, the Secretary shall make basic and supplemental
grants to those States which adopt and implement programs for
young drivers which include measures, described in this
section, to reduce traffic safety problems resulting from the
driving performance of young drivers. Such grants may only be
used by recipient States to implement and enforce such
measures.
``(b) Maintenance of Effort.--No grant may be made to a
State under this section in any fiscal year unless such State
enters into such agreements with the Secretary as the
Secretary may require to ensure that such State will maintain
its aggregate estimated expenditures from all other sources
for programs for young drivers at or above the average level
of such expenditures in its 2 fiscal years preceding the
fiscal year in which the High Risk Drivers Act of 1994 is
enacted.
``(c) Federal Share.--No State may receive grants under
this section in more than 5 fiscal years. The Federal share
payable for any grant under this section shall not exceed--
``(1) in the first fiscal year a State receives a grant
under this section, 75 percent of the cost of implementing
and enforcing in such fiscal year the young driver program
adopted by the State pursuant to subsection (a);
``(2) in the second fiscal year the State receives a grant
under this section, 50 percent of the cost of implementing
and enforcing in such fiscal year such program; and
``(3) in the third, fourth, and fifth fiscal years the
State receives a grant under this section, 25 percent of the
cost of implementing and enforcing in such fiscal year such
program.
``(d) Maximum Amount of Basic Grants.--Subject to
subsection (c), the amount of a basic grant made under this
section for any fiscal year to any State which is eligible
for such a grant under subsection (e) shall equal 30 percent
of the amount apportioned to such State for fiscal year 1989
under section 402 of this title. A grant to a State under
this section shall be in addition to the State's
apportionment under section 402, and basic grants during any
fiscal year may be proportionately reduced to accommodate an
applicable statutory obligation limitation for that fiscal
year.
``(e) Eligibility for Basic Grants.--
``(1) In general.--For purposes of this section, a State is
eligible for a basic grant if such State--
``(A) establishes and maintains a graduated licensing
program for drivers under 18 years of age that meets the
requirements of paragraph (2); and
``(B)(i) in the first year of receiving grants under this
section, meets 3 of the 7 criteria specified in paragraph
(3);
``(ii) in the second year of receiving such grants, meets 4
of such criteria;
``(iii) in the third year of receiving such grants, meets 5
of such criteria;
``(iv) in the fourth year of receiving such grants, meets 6
of such criteria; and
``(v) in the fifth year of receiving such grants, meets 6
of such criteria.
For purposes of subparagraph (B), a State shall be treated
as having met one of the requirements of paragraph (3) for
any year if the State demonstrates to the satisfaction of the
Secretary that, for the 3 preceding years, the alcohol fatal
crash involvement rate for individuals under the age of 21
has declined in that State and the alcohol fatal crash
involvement rate for such individuals has been lower in that
State than the average such rate for all States.
``(2) Graduated Licensing Program.--
``(A) A State receiving a grant under this section shall
establish and maintain a graduated licensing program
consisting of the following licensing stages for any driver
under 18 years of age:
``(i) An instructional license, valid for a minimum period
determined by the Secretary, under which the licensee shall
not operate a motor vehicle unless accompanied in the front
passenger seat by the holder of a full driver's license.
``(ii) A provisional driver's license which shall not be
issued unless the driver has passed a written examination on
traffic safety and has passed a roadtest administered by the
driver licensing agency of the State.
``(iii) A full driver's license which shall not be issued
until the driver has held a provisional license for at least
1 year with a clean driving record.
``(B) For purposes of subparagraph (A)(iii), subsection
(f)(1), and subsection (f)(6)(B), a provisional licensee has
a clean driving record if the licensee--
``(i) has not been found, by civil or criminal process, to
have committed a moving traffic violation during the
applicable period;
``(ii) has not been assessed points against the license
because of safety violations during such period; and
``(iii) has satisfied such other requirements as the
Secretary may prescribe by regulation.
``(C) The Secretary shall determine the conditions under
which a State shall suspend
[[Page S2498]] provisional driver's licenses in order to be
eligible for a basic grant. At a minimum, the holder of a
provisional license shall be subject to driver
control actions that are stricter than those applicable to
the holder of a full driver's license, including warning
letters and suspension at a lower point threshold.
``(D) For a State's first 2 years of receiving a grant
under this section, the Secretary may waive the clean driving
record requirement of subparagraph (A)(iii) if the State
submits satisfactory evidence of its efforts to establish
such a requirement.
``(3) Criteria for basic grant.--The 7 criteria referred to
in paragraph (1)(B) are as follows:
``(A) The State requires that any driver under 21 years of
age with a blood alcohol concentration of 0.02 percent or
greater when driving a motor vehicle shall be deemed to be
driving while intoxicated for the purpose of (i)
administrative or judicial sanctions or (ii) a law or
regulation that prohibits any individual under 21 years of
age with a blood alcohol concentration of 0.02 percent or
greater from driving a motor vehicle.
``(B) The State has a law or regulation that provides a
mandatory minimum penalty of at least $500 for anyone who in
violation of State law or regulation knowingly, or without
checking for proper identification, provides or sells alcohol
to any individual under 21 years of age.
``(C) The State requires that the license of a driver under
21 years of age be suspended for a period specified by the
State if such driver is convicted of the unlawful purchase or
public possession of alcohol. The period of suspension shall
be at least 6 months for a first conviction and at least 12
months for subsequent conviction; except that specific
license restrictions may be imposed as an alternative to such
minimum periods of suspension where necessary to avoid undue
hardship on any individual.
``(D) The State conducts youth-oriented traffic safety
enforcement activities, and education and training programs--
``(i) with the participation of judges and prosecutors,
that are designed to ensure enforcement of traffic safety
laws and regulations, including those that prohibit drivers
under 21 years of age from driving while intoxicated,
restrict the unauthorized use of a motor vehicle, and
establish other moving violations; and
``(ii) with the participation of student and youth groups,
that are designed to ensure compliance with such traffic
safety laws and regulations.
``(E) The State prohibits the possession of any open
alcoholic beverage container, or the consumption of any
alcoholic beverage, in the passenger area of any motor
vehicle located on a public highway or the right-of-way of a
public highway; except as allowed in the passenger area, by
persons (other than the driver), of a motor vehicle designed
to transport more than 10 passengers (including the driver)
while being used to provide charter transportation of
passengers.
``(F) The State provides, to a parent or legal guardian of
any provisional licensee, general information prepared with
the assistance of the insurance industry on the effect of
traffic safety convictions and at-fault accidents on
insurance rates for young drivers.
``(G) The State requires that a provisional driver's
license may be issued only to a driver who has satisfactorily
completed a State-accepted driver education and training
program that meets Department of Transportation guidelines
and includes information on the interaction of alcohol and
controlled substances and the effect of such interaction on
driver performance, and information on the importance of
motorcycle helmet use and safety belt use.
``(f) Supplemental Grant Program.--
``(1) Extended application of provisional license
requirement.--For purposes of this section, a State is
eligible for a supplemental grant for a fiscal year in an
amount, subject to subsection (c), not to exceed 10 percent
of the amount apportioned to such State for fiscal year 1989
under section 402 of this title if such State is eligible for
a basic grant and in addition such State requires that a
driver under 21 years of age shall not be issued a full
driver's license until the driver has held a provisional
license for at least 1 year with a clean driving record as
described in subsection (e)(2)(B).
``(2) Remedial driver education.--For purposes of this
section, a State is eligible for a supplemental grant for a
fiscal year in an amount, subject to subsection (c), not to
exceed 5 percent of the amount apportioned to such State for
fiscal year 1989 under section 402 of this title if such
State is eligible for a basic grant and in addition such
State requires, at a lower point threshold than for other
drivers, remedial driver improvement instruction for drivers
under 21 years of age and requires such remedial instruction
for any driver under 21 years of age who is convicted of
reckless driving, excessive speeding, driving under the
influence of alcohol, or driving while intoxicated.
``(3) Record of serious convictions; habitual or repeat
offender sanctions.--For purposes of this section, a State is
eligible for a supplemental grant for a fiscal year in an
amount, subject to subsection (c), not to exceed 5 percent of
the amount apportioned to such State for fiscal year 1989
under section 402 of this title if such State is eligible for
a basic grant and in addition such State--
``(A) requires that a notation of any serious traffic
safety conviction of a driver be maintained on the driver's
permanent traffic record for at least 10 years after the date
of the conviction; and
``(B) provides additional sanctions for any driver who,
following conviction of a serious traffic safety violation,
is convicted during the next 10 years of one or more
subsequent serious traffic safety violations.
``(4) Interstate driver license compact.--For purposes of
this section, a State is eligible for a supplemental grant
for a fiscal year in an amount, subject to subsection (c),
not to exceed 5 percent of the amount apportioned to such
State for fiscal year 1989 under section 402 of this title if
such State is a member of and substantially complies with the
interstate agreement known as the Driver License Compact,
promptly and reliably transmits and receives through
electronic means interstate driver record information
(including information on commercial drivers) in cooperation
with the Secretary and other States, and develops and
achieves demonstrable annual progress in implementing a plan
to ensure that (i) each court of the State report
expeditiously to the State driver licensing agency all
traffic safety convictions, license suspensions, license
revocations, or other license restrictions, and driver
improvement efforts sanctioned or ordered by the court, and
that (ii) such records be available electronically to
appropriate government officials (including enforcement,
officers, judges, and prosecutors) upon request at all times.
``(5) For purposes of this section, a State is eligible for
a supplemental grant for a fiscal year in an amount, subject
to subsection (c), not to exceed 5 percent of the amount
apportioned to such State for fiscal year 1989 under section
402 of this title if such State has a law or regulation that
provides a minimum penalty of at least $100 for anyone who in
violation of State law or regulation drives any vehicle
through, around, or under any crossing, gate, or barrier at a
railroad crossing while such gate or barrier is closed or
being opened or closed.
``(6) Vehicle seizure program.--For purposes of this
section, a State is eligible for a supplemental grant for a
fiscal year in an amount, subject to subsection (c), not to
exceed 5 percent of the amount apportioned to such State for
fiscal year 1989 under section 402 of this title if such
State has a law or regulation that--
``(A) mandates seizure by the State or any political
subdivision thereof of any vehicle driven by an individual in
violation of an alcohol-related traffic safety law, if such
violator has been convicted on more than one occasion of an
alcohol-related traffic offense within any 5-year period
beginning after the date of enactment of this section, or has
been convicted of driving while his or her driver's license
is suspended or revoked by reason of a conviction for such an
offense;
``(B) mandates that the vehicle be forfeited to the State
or a political subdivision thereof if the vehicle was solely
owned by such violator at the time of the violation;
``(C) requires that the vehicle be returned to the owner if
the vehicle was a stolen vehicle at the time of the
violation; and
``(D) authorizes the vehicle to be released to a member of
such violator's family, the co-owner, or the owner, if the
vehicle was not a stolen vehicle and was not solely owned by
such violator at the time of the violation, and if the family
member, co-owner, or owner, prior to such release, executes a
binding agreement that the family member, co-owner, or owner
will not permit such violator to drive the vehicle and that
the vehicle shall be forfeited to the State or a political
subdivision thereof in the event such violator drives the
vehicle with the permission of the family member, co-owner,
or owner.
``(g) Authorization of Appropriations.--There are
authorized to be appropriated to carry out this section,
$9,000,000 for the fiscal year ending September 30, 1996,
$12,000,000 for the fiscal year ending September 30, 1997,
$14,000,000 for the fiscal year ending September 30, 1998,
$16,000,000 for the fiscal year ending September 30, 1999,
and $18,000,000 for the fiscal year ending September 30,
2000.''.
(b) Conforming Amendment.--The analysis of chapter 4 of
title 23, United States Code, is amended by inserting
immediately after the item relating to section 410 the
following new item:
``411. Programs for young drivers.''.
(c) Deadlines for Issuance of Regulations.--The Secretary
shall issue and publish in the Federal Register proposed
regulations to implement section 411 of title 23, United
States Code (as added by this section), not later than 6
months after the date of enactment of this Act. The final
regulations for such implementation shall be issued,
published in the Federal Register, and transmitted to
Congress not later than 12 months after such date of
enactment.
SEC. 202. PROGRAM EVALUATION.
(a) Evaluation by Secretary.--The Secretary shall, under
section 403 of title 23, United States Code, conduct an
evaluation of the effectiveness of State provisional driver's
licensing programs and the grant program authorized by
section 411 of title 23, United States Code (as added by
section 101 of this Act).
(b) Report to Congress.--By January 1, 1997, the Secretary
shall transmit a report on the results of the evaluation
conducted under subsection (a) and any related research to
the Committee on Commerce, Science, and Transportation of the
Senate
[[Page S2499]] and the Committee on Public Works and
Transportation of the House of Representatives. The report
shall include any related recommendations by the Secretary
for legislative changes.
TITLE III--OLDER DRIVER PROGRAMS
SEC. 301. OLDER DRIVER SAFETY RESEARCH.
(a) Research on Predictability of High Risk Driving.--
(1) The Secretary shall conduct a program that funds,
within budgetary limitations, the research challenges
presented in the Transportation Research Board's report
entitled ``Research and Development Needs for Maintaining the
Safety and Mobility of Older Drivers'' and the research
challenges pertaining
to older drivers presented in a report to Congress by the
National Highway Traffic Safety Administration entitled
``Addressing the Safety Issues Related to Younger and
Older Drivers''.
(2) To the extent technically feasible, the Secretary shall
consider the feasibility and further the development of cost
efficient, reliable tests capable of predicting increased
risk of accident involvement or hazardous driving by older
high risk drivers.
(b) Specialized Training for License Examiners.--The
Secretary shall encourage and conduct research and
demonstration activities to support the specialized training
of license examiners or other certified examiners to increase
their knowledge and sensitivity to the transportation needs
and physical limitations of older drivers, including
knowledge of functional disabilities related to driving, and
to be cognizant of possible countermeasures to deal with the
challenges to safe driving that may be associated with
increasing age.
(c) Counseling Procedures and Consultation Methods.--The
Secretary shall encourage and conduct research and
disseminate information to support and encourage the
development of appropriate counseling procedures and
consultation methods with relatives, physicians, the traffic
safety enforcement and the motor vehicle licensing
communities, and other concerned parties. Such procedures and
methods shall include the promotion of voluntary action by
older high risk drivers to restrict or limit their driving
when medical or other conditions indicate such action is
advisable. The Secretary shall consult extensively with the
American Association of Retired Persons, the American
Association of Motor Vehicle Administrators, the American
Occupational Therapy Association, the American Automobile
Association, the Department of Health and Human Services, the
American Public Health Association, and other interested
parties in developing educational materials on the
interrelationship of the aging process, driver safety, and
the driver licensing process.
(d) Alternative Transportation Means.--The Secretary shall
ensure that the agencies of the Department of Transportation
overseeing the various modes of surface transportation
coordinate their policies and programs to ensure that funds
authorized under the Intermodal Surface Transportation
Efficiency Act of 1991 (Public Law 102-240; 105 Stat. 1914)
and implementing Department of Transportation and Related
Agencies Appropriation Acts take into account the
transportation needs of older Americans by promoting
alternative transportation means whenever practical and
feasible.
(e) State Licensing Practices.--The Secretary shall
encourage State licensing agencies to use restricted licenses
instead of canceling a license whenever such action is
appropriate and if the interests of public safety would be
served, and to closely monitor the driving performance of
older drivers with such licenses. The Secretary shall
encourage States to provide educational materials of benefit
to older drivers and concerned family members and physicians.
The Secretary shall promote licensing and relicensing
programs in which the applicant appears in person and shall
promote the development and use of cost effective screening
processes and testing of physiological, cognitive, and
perception factors as appropriate and necessary. Not less
than one model State program shall be evaluated in light of
this subsection during each of the fiscal years 1996 through
1998. Of the sums authorized under subsection (i), $250,000
is authorized for each such fiscal year for such evaluation.
(f) Improvement of Medical Screening.--The Secretary shall
conduct research and other activities designed to support and
encourage the States to establish and maintain medical review
or advisory groups to work with State licensing agencies to
improve and provide current information on the screening and
licensing of older drivers. The Secretary shall encourage the
participation of the public in these groups to ensure
fairness and concern for the safety and mobility needs of
older drivers.
(g) Intelligent Vehicle-Highway Systems.--In implementing
the Intelligent Vehicle-Highway Systems Act of 1991 (23
U.S.C. 307 note), the Secretary shall ensure that the
National Intelligent Vehicle-Highway Systems Program devotes
sufficient attention to the use of intelligent vehicle-
highway systems to aid older drivers in safely performing
driver functions. Federally sponsored research, development,
and operational testing shall ensure the advancement of night
vision improvement systems, technology to reduce the
involvement of older drivers in accidents occurring at
intersections, and other technologies of particular benefit
to older drivers.
(h) Technical Evaluations Under Intermodal Surface
Transportation Efficiency Act.--In conducting the technical
evaluations required under section 6055 of the Intermodal
Surface Transportation Efficiency Act of 1991 (Public Law
102-240; 105 Stat. 2192), the Secretary shall ensure that the
safety impacts of older drivers are considered, with special
attention being devoted to ensuring adequate and effective
exchange of information between the Department of
Transportation and older drivers or their representatives.
(i) Authorization of Appropriations.--Of the funds
authorized under section 403 of title 23, United States Code,
$1,250,000 is authorized for each of the fiscal years 1995
through 1997 to support older driver programs described in
subsections (a), (b), (c), (e), and (f).
TITLE IV--HIGH RISK DRIVERS
SEC. 401. STUDY ON WAYS TO IMPROVE TRAFFIC RECORDS OF ALL
HIGH RISK DRIVERS.
(a) In General.--Within 1 year after the date of enactment
of this Act, the Secretary shall complete a study to
determine whether additional or strengthened Federal
activities, authority, or regulatory actions are desirable or
necessary to improve or strengthen the driver record and
control systems of the States to identify high risk drivers
more rapidly and ensure prompt intervention in the licensing
of high risk drivers. The study, which shall be based in part
on analysis obtained from a request for information published
in the Federal Register, shall consider steps necessary to
ensure that State traffic record systems are unambiguous,
accurate, current, accessible, complete, and (to the extend
useful) uniform among the States.
(b) Specific Matters for Consideration.--Such study shall
at a minimum consider--
(1) whether specific legislative action is necessary to
improve State traffic record systems;
(2) the feasibility and practicality of further encouraging
and establishing a uniform traffic ticket citation and
control system;
(3) the need for a uniform driver violation point system to
be adopted by the States;
(4) the need for all the States to participate in the
Driver License Reciprocity Program conducted by the American
Association of Motor Vehicle Administrators;
(5) ways to encourage the States to cross-reference driver
license files and motor vehicle files to facilitate the
identification of individuals who may not be in compliance
with driver licensing laws; and
(6) the feasibility of establishing a national program that
would limit each driver to one driver's license from only one
State at any time.
(c) Evaluation of National Information Systems.--As part of
the study required by this section, the Secretary shall
consider and evaluate the future of the national information
systems that support driver licensing. In particular, the
Secretary shall examine whether the Commercial Driver's
License Information System, the National Driver Register, and
the Driver License Reciprocity program should be more closely
linked or continue to exist as separate information systems
and which entities are best suited to operate such systems
effectively at the least cost. The Secretary shall cooperate
with the American Association of Motor Vehicle Administrators
in carrying out this evaluation.
SEC. 402. STATE PROGRAMS FOR HIGH RISK DRIVERS.
The Secretary shall encourage and promote State driver
evaluation, assistance, or control programs for high risk
drivers. These programs may include in-person license
reexaminations, driver education or training courses, license
restrictions or suspensions, and other actions designed to
improve the operating performance of high risk drivers.
TITLE V--ENHANCED AUTHORIZATION FOR 410 PROGRAM
SEC. 501. FUNDING FOR 23 USC 410 PROGRAM.
In addition to any amount otherwise appropriated or
available for such use, there are authorized to be
appropriated $15,000,000 for each of the fiscal years 1995,
1996, and 1997 for the purpose of carrying out section 410 of
title 23, United States Code.
____
[From the Omaha World-Herald, Dec. 3, 1994]
Nebraska Leads in Drunken Driving Control
Statistics sometimes are deceiving. Such was the case with
a recent federal report on drunken driving fatalities. From
1982 to 1993, the report indicated, some neighboring states
reduced alcohol-related traffic deaths much faster than did
Nebraska.
Does that mean Nebraska has fallen behind? Officials in the
State Office of Highway Safety say the answer is no. They say
Nebraska was ahead and other states are catching up.
Fred Zwonechek, the state's traffic safety administrator,
said that in 1980, Nebraska had 159 alcohol-related traffic
fatalities. In 1981, the number rose to 189. At about that
time, groups such as Mothers Against Drunk Driving were
demanding better enforcement. Attitudes about drinking and
driving began to change. In 1982, drunken driving fatalities
in Nebraska dropped to 102--a one-year plunge of 46 percent.
Since then, the number has remained at around the same level.
Moreover, the percentage of accidents in which alcohol was
involved has hovered in the mid-30s in Nebraska, Zwonechek
said. Nationwide, the comparable figure was 57 percent in
1982 and 43 percent in 1993.
[[Page S2500]] Zwonechek said all the indicators point to
further progress in reducing such deaths.
Even Nebraska's lower drunken driving fatality rate, of
course, is still much too high. But it's good to know that
progress has been made. It's especially reassuring that the
state's top traffic safety official sees further progress
ahead.
____
[From the Omaha World-Herald, Dec. 20, 1994]
Panel Seeks Tougher DWI Law
(By Paul Hammel and Bill Hord)
Lincoln.--A task force of state legislators and law
enforcement officials Monday joined Gov. Nelson in calling
for tougher laws on drunken driving.
The task force, however, went beyond ideas endorsed by
Nelson last week and proposed a stricter standard for legal
intoxication and repeal of a law that wipes out drunken-
driving convictions after eight years.
``There are some people who are ticking time bombs out
there. We want to be more certain that we'll get them off the
road,'' said State Sen. LaVon Crosby of Lincoln, who
organized the task force.
Two key proposals adopted by the 26-member Task Force on
Driving While Intoxicated were lowering the minimum blood-
alcohol standard for legal intoxication from .10 percent to
.08 percent and eliminating the eight-year rule on use of
prior drunken-driving convictions.
Neither was among the proposals endorsed last week by
Nelson.
``There ought to be some point where someone who hasn't had
a problem for a period of time doesn't have it hanging over
his or her head,'' Nelson said Monday.
``I don't want to see us overreach what is necessary to
address the problem,'' he told reporters during his weekly
teleconference call.
The Legislature will get a chance to debate drunken-driving
laws after it convenes Jan. 4 for a 90-day session.
Drunken-driving convictions that occurred eight years ago
or longer cannot be considered when bringing new charges.
Thus, a person who had multiple convictions would still be
charged with first-offense drunken driving if the other
offenses were at least 8 years old.
A 33-year-old Lincoln man, Michael Fogarty, was recently
convicted of second-offense drunken driving even though it
was his eighth conviction.
Lancaster County Attorney Gary
Lacey said the eight-year rule was frustrating.
``It limits a prosecutor's ability to enhance penalties
without any logical reason,'' he said.
``We don't make an exception for habitual criminals, so why
should we make an exception for habitual drunk-driving
criminals?''
Dropping the minimum blood-alcohol level to .08 percent--
the standard in 11 states, including Kansas--has been
defeated in Nebraska during the past several legislative
sessions.
Sen. Crosby and Sen. Carol Hudkins of Malcolm said the
public was beginning to realize that people become impaired
by alcohol at levels well below the current .10 percent.
Sen. Crosby said social drinkers would be unaffected by
dropping the minimum standard to .08.
``It takes a lot (of drinking) to get to .08,'' she said.
``The average social drinker isn't at .08.''
Nelson said there was much disagreement on where to sett
the threshold. Some people want it at zero, he said.
``Before we move downward to .08, there must be hard and
convincing evidence that our streets will, in fact, be
safer.'' Nelson said, ``Why don't we go to .05?''
Nelson said last week that he would not push for a .08
level but would sign such legislation if senators passed it.
Sen. Crosby said her task force's work would probably
result in proposals to increase treatment of drunken drivers,
reinstitute mandatory driver-education courses in high school
and levy higher alcohol taxes, among other possible bills.
Some task force members suggested that taxes should rise 5
cents per drink to help fund enforcement and treatment
efforts.
``The people who are causing the problems . . . need to be
responsible to pay some of the costs,'' said Sen. Hudkins,
who headed the task force's legal committee.
Other recommendations include tougher penalties for
procuring alcohol for minors and for third-, fourth- and
fifth-offense drunken-driving convictions, as well as making
alcohol-dependency treatment mandatory for offenders.
Task force member Diane Riibe of Hooper, past state
director of Mothers Against Drunken Driving, said the group's
study was the most comprehensive look at drunken-driving laws
in recent years.
Ms. Riibe questioned the recommendation of Sen. Don Wesely
of Lincoln that drunken drivers undergo and finance mandatory
alcohol-counseling programs.
While treatment can be helpful, she said, the primary
concern should be getting these drivers off the streets.
``We want to make sure that the policy discussion focuses
on the safety of the public,'' Ms. Riibe said.
Nelson has called for, among other provisions, tougher
penalties for minors in possession of alcohol and for first-
time drunken-driving offenders.
____
[From the Omaha World-Herald, Feb. 8, 1995]
MADD Founder Faults Drunk-Driving Bill
(By Paul Hammel)
Lincoln.--The national founder of Mothers Against Drunk
Driving told Nebraska lawmakers Tuesday that dropping the
legal blood-alcohol level for intoxication does not reduce
drunken driving.
Candace Lightner of Alexandria, Va., told the Legislature's
Transportation Committee that dropping the legal level of
intoxication targets casual drinkers while ignoring the real
problem: alcoholics and repeat drunken drivers.
``If I ruled the world, I would make sure that punishment
is much swifter and much more sure,'' she said. ``That will
be more effective than passing a politically correct bill
that is nothing more than a feel-good, do-nothing law.''
Ms. Lightner founded MADD in 1980 while living in
California after her 13-year-old daughter was killed in an
accident caused by a drunken driver. She was one of a handful
of opponents during a public hearing on a package of bills
designed to toughen Nebraska's drunken-driving laws.
The bills were introduced following a summerlong study
headed by State Sen. LaVon Crosby of Lincoln.
Sen. Crosby has fought unsuccessfully to lower the state's
legal blood-alcohol level for intoxication from .10 to .08, a
level now recognized in 11 states, including Kansas.
Legislative Bill 150, introduced this year, is Sen.
Crosby's fourth attempt at reducing the level. Previous bills
have failed to advance from the transportation committee.
A parade of speakers disagreed with Ms. Lightner's stand
Tuesday, instead urging Nebraska to add the .08 standard
to its arsenal of weapons to combat drunken driving.
James Fell of Washington, D.C., chief of the science and
technology office for the National Highway Traffic Safety
Administration, said the .08 standard is one of three
legislative steps that have proved effective in cutting down
on drunken-driving accidents.
Nebraska, he said, has already adopted the others: a
``zero-tolerance'' law on drinking by teen-age drivers and an
administrative license revocation act, which takes drivers'
licenses immediately from suspected drunken drivers.
``Why don't you go for the hat trick and go for all
three,'' Fell said, ``because it will make a difference.''
Fell and other LB 150 supporters said that although alcohol
consumption and accidents involving drunken drivers have
fallen nationally, it is clear that drivers are impaired well
before reaching the .10 level for alcohol in the blood.
A typical 170-pound man would require four drinks in an
hour to reach the .08 level, he said. A 130-pound woman would
need three drinks, Fell said.
``At the .08 level, there's no doubt you're impaired,''
said Omaha Police Officer Chuck Matson, who also testified in
support of the bill.
However, opponents of the bill, which included the state's
liquor and restaurant industries, said that no one wants
drunken drivers on the state's roads but that dropping the
level to .08 was unreasonable and would be ineffective.
``This is fixing the basement when the roof is leaking,''
said Mike Kelley, an Omaha bar owner and lobbyist for the
United Retailers Liquor Association of Nebraska. ``This isn't
traffic safety, it's temperance.''
Brent Lambi, an Omaha businessman, told committee members
that he was an alcoholic who would not have been deterred
from driving by LB 150.
``I think you need to take away their cars,'' said Lambi.
Ms. Lightner said better enforcement of existing laws was
the answer.
The committee took testimony on several other drunken-
driving bills, including a measure that would prohibit
drivers on suspension from obtaining provisional licenses to
drive to work.
Members took no action on the bills following the hearing.
Sen. Doug Kristensen of Minden, the committee's chairman,
said he was unsure whether the .08 proposal would be advanced
this year. Kelley gave it a 50-50 chance.
Kristensen said he expected the committee to advance some
anti-drunken-driving bills. He said he must be convinced they
would be effective before he would support them.
Mr. DORGAN addressed the Chair.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, I was not present to hear the entire
presentation by Senator Exon from Nebraska but I heard enough to spark
my interest. I came here today to speak about the constitutional
amendment to balance the budget, especially the Reid amendment on
Social Security.
To the Senator from Nebraska, if he is working on issues dealing with
drunk driving, I applaud him for it, and I am very interested in
working with him on it. I will reintroduce legislation in the Senate
that I have introduced previously on the subject of drunk driving.
Two members of my family have been killed by drunk drivers. I expect
there is not anyone in this Chamber who has not received a call to tell
them a loved one, a neighbor, a relative, or a close
[[Page S2501]] acquaintance has been in a tragic accident and has been
killed because of a drunk driver.
It is unforgivable in this country that today, in February 1995,
there are still nearly 10 States in which a person can get behind a
wheel of a car, grab the neck of a fifth of whiskey, put the key in the
ignition, drive off and drink, and it is perfectly legal. There ought
not to be one instance, anywhere in America, where it should be legal
to drink and drive at the same time.
I have tried for 5 years and will try until I get it done to
prescribe all across this country one simple proposal: Alcohol and
automobiles do not mix. Alcohol turns automobiles into instruments of
murder.
We should not tolerate the fact that there are nearly 10 States where
a person can drink and drive, and it is legal in another 20 States
that, if the driver cannot drink, the rest of the folks in the car can
be having a party with beer or whiskey. The fact is we ought not accept
that in this country. No family should receive another call at midnight
saying their mother, their brother, their father, or their sister is
dead because of another drunk-driving accident.
I say to the Senator from Nebraska, I do not know the details of his
legislation, but I do know this: As long as I serve in the Congress, I
will continue, year after year after year, until all across this
country no matter where an American drives, on whichever street or road
or highway, that person will have some assurance that it is not legal
in that jurisdiction to be drinking while driving and it is not legal
in that jurisdiction to have an open container of alcohol in the
vehicle. That ought to be the minimum we would expect in this country
for the state of all Americans.
Mr. EXON. Mr. President, would the Senator yield for a moment so I
might thank him?
Mr. DORGAN. Mr. President I am happy to yield.
Mr. EXON. Mr. President, I listened with keen interest to the remarks
of my friend and colleague from North Dakota. I know he has been very
much involved in this thing, and I want to thank him now for the
support he gave to the Exon-Danforth bill last year. The Senator voted
for it.
I think it is the same, as I outlined in my remarks, since it passed
the House and the Senate. I see no reason why we cannot expedite
passage of this matter. I have delayed introducing it only because
there were many other things going on, but I think, even as important
as those matters are, that we should get going on this.
Certainly, I was not aware of the sad fact that two members of his
family have been killed by a drunk driver. Hardly a week goes by but
that something very similar happens in the State of Nebraska, where the
population compared with other States is smaller and we hear more about
it.
There are some things that we can do, rather than just sit back and
wring our hands. There are some things, and I think the Federal
Government can legitimately be of assistance to the States.
I must tell the Senator that this piece of legislation was sparked
primarily by a typically tragic teenage accident that happened in my
State not too many months ago where young people, 16 and 17 years of
age, went out for a good time at night. The problem was that the driver
had one too many half-cans of beer. It is a tragic. I am not saying
that this bill will solve all of the problem, but I appreciate the
pledge of support from my colleague from North Dakota.
I think that the feelings of this Senator, the Senator from North
Dakota, and others are shared broadly on both sides of the aisle on
this matter, on this measure. It is not a cure-all, but a significant
step in the right direction. I thank my friend from North Dakota for
his remarks.
Mr. DORGAN. I thank the Senator. I hope we can go further. I
certainly support these efforts. As I said, we will be finished when we
have prescribed all across this country an understanding that a person
cannot drink and drive in this country.
Again, to me it does not make sense that in England, in European
countries, for example, people understand that the consequences of
drunk driving are so substantial that a person better not get caught
because they will get hit with an enormous penalty. There is a
completely different attitude about it in the European countries. Here
it has been treated kind of like, Well, old Joe, or old Helen just went
out and had too much to drink. That was not a problem.
It was not, unless they murdered with a vehicle. That is what happens
in this country. Every 28 minutes, around the clock, somebody gets
another call that says your relative died because of a drunk driver.
This is not some mysterious illness for which we do not have a cure.
This is not beyond the comprehension of humans to deal with. We deal
with it by saying to people, Do not even think about driving if you
drink. Don't even think about it. The consequences are too great.
The very first step is for governments, every government, to decide
that there ought to be a prohibition against open containers of alcohol
in vehicles.
______
By Ms. SNOWE (for herself, Mr. Cohen, Mr. Campbell, Mr. Grassley,
Mr. Inhofe, Mr. Roth, Mr. Gregg, Ms. Moseley-Braun, Mr.
Murkowski, Mr. Kohl, Mr. Bennett, Mr. Lugar, Mr. Grams, Mr.
Thomas, Mr. Hatch, and Mr. Coats):
S. 388. A bill to amend title 23, United States Code, to eliminate
the penalties for noncompliance by States with a program requiring the
use of motorcycle helmets, and for other purposes; to the Committee on
Environment and Public Works.
motorcycle helmet legislation
Ms. SNOWE. Ms. President, today I am introducing legislation
restoring the rights of States to decide for themselves whether to
require the use of motorcycle helmets.
My bill is quite simple: it repeals the penalties specified in
section 153 of title 23 of the Intermodal Surface Transportation
Efficiency Act [ISTEA], passed in 1991. Section 153 imposed a penalty
on those States that had not complied by September 30, 1994. These
Federal sanctions forced States without helmet laws to divert 1.5
percent of their fiscal 1995 highway funds from three programs--the
National Highway Safety Program, the Surface Transportation Program,
and the Congestion Mitigation and Air Quality Improvement Program--and
spend those funds instead on section 402 safety programs. For fiscal
year 1996, the penalty doubled, taking a 3-percent chunk from the State
highway construction account.
This compulsory mechanism has the ironic effect of actually
decreasing the safety of some highways, as funds available for needed
repairs are diverted for safety education and awareness programs.
Once again, the Federal Government is trying to micromanage State
transportation budgets, imposing a heavy-handed Federal mandate upon
more than half of our States. And make no mistake, Mr. President: this
is no carrot and stick. It is a mandate, and despite the broad reach of
Federal law, section 153 has failed in its explicit intent.
Fewer than half of the States are in compliance with this Federal
law. Two years into these intrusive Federal sanctions, 28 States remain
without helmet laws and are subject to financial penalties. These
States disagree with the Federal Government's intrusion into what has
traditionally been within the jurisdiction of individual States. And
although Federal penalties doubled last year, none of these States have
passed laws requiring motorcyclists to wear helmets.
The estimated penalties facing States under section 153 total $106.6
million--$106.6 million that is no longer available to upgrade roads in
the National Highway System Program--$106.6 million that is unavailable
to construct and maintain highways--$106.6 million that is no longer
available to promote mass transit--$106.6 million that is unavailable
to make sure that this crucial transportation infrastructure is not
only modern but safe.
Instead, these valuable Federal dollars will be spent on highway
safety programs, which most States already fund quite generously.
States--and motorcyclists in the States--have been at
[[Page S2502]] the forefront of highway safety programs. Forty-two
States have funded State motorcycle safety programs, most of which are
paid for by the motorcyclists themselves, through motorcycle
registration and license fees. Motorcyclists understand that their
safety is at risk on highways--and they want to make sure that their
fellow riders and drivers of passenger cars and trucks have good
awareness of motorcycle safety.
Nevertheless, the Federal Government--through section 153--insists of
forcing States to redirect their precious Federal resources to programs
that are already well-funded. Frankly, I don't believe that we should
compel States to direct desperately needed highway construction funds
into highway safety programs that are already well funded.
The most recent data shows that States have already been doing an
excellent job promoting highway safety. since 1983, the number of
accidents has decreased from 3,070 per 10,000 registered motorcyclists
to 206. Fatalities have similarly declined from 8 per 10,000 registered
motorcyclists to 6 per 10,000 registered motorcyclists. Even without a
motorcyle helmet law, the number of motorcycle occupant fatalities
declined 58.9 percent, from 5,097 in 1980 to 2,398 in 1992 when no
mandatory Federal helmet law existed. Accidents declined by 53.4
percent in this same period. This substantial decline in motorcyle
fatalities demonstrates that States are capable of addressing safety
issues without intervention by the Federal Government.
It is also interesting to note that of the 10 States with the lowest
motorcycle accident rate, 8 had motorcycle rider education programs. In
fact, the 10 States with the lowest motorcycle accident rates spent
64.4 percent more on motorcycle rider education programs than States
with the 10 highest motorcycle accident rates. Clearly, safety programs
do work, and we should allow them to continue to work.
The penalty provisions of section 153 affect States in dire need of
their highway construction funds. For my State of Maine, the estimated
penalty was $853,194 in fiscal year 1995, increasing to $1,706,387 in
fiscal year 1996. I believe that section 153 runs contrary to the
principles of federalism, as the Federal Government tries to thwart the
efforts of States to rebuild their transportation infrastructure in
order to coerce States to pass helmet laws. And it is poor public
policy, because poorly-maintained roads are often quite hazardous to
the motoring public.
I have always strived to protect the interests of our communities by
allowing them and the individual States to make the important decisions
on how their affairs should be run. I believe that each State and each
community should, to the extent of their ability, be allowed to make
their own policy decisions. This is consistent with the ideas of the
Founding Fathers.
State governments are closer to their citizens than the Federal
Government. Surely, these democratic institutions understand the best
interests of their citizens on this important issue, and the Federal
Government should respect their decision. Yet section 153 erodes the
very freedoms and liberties of our democracy, and on which our Nation
was founded. Through provisions such as section 153, we are gradually
stripping away the limited autonomy of the States.
Where will we draw the line? How far will Congress go in the debate
over State freedoms? The National Conference of State Legislators
expressed a clear and solid view during testimony before Congress in
1993: the mandatory helmet and seat belt law provision, it said, is one
of the most infringing provisions on the right of individual States
included in ISTEA.
Clearly, we must continue to do everything we can to make our roads
safer, and to reduce the number of fatalities and severe injuries that
occur on our Nation's highways. But I believe there are better ways for
us to achieve these goals, without resorting to penalties on our
financially burdened States.
At a time when Congress has already acted to eliminate future
unfunded mandates on the States, we understand the burden that our
actions can impose on the States. Surely, we can remove this
unnecessary and intrusive mandate and restore authority to State
Governments where they belong.
I will continue to work with my colleagues, however, to support the
grant incentive provisions of section 153 and, and to explore
additional options for enhancing highway safety. In the meantime, we
should give the States some credit for keeping their roads and highways
safe and repeal the insulting penalties contained in section 153.
I urge my colleagues to join me in supporting this
legislation.
______
By Mr. JOHNSTON (for himself, Mr. Bennett, Mr. Hatfield, Mr.
Nickles, Mr. Shelby, and Mr. Specter):
S. 389. A bill for the relief of Nguyen Quy An and his daughter,
Nguyen Ngoc Kim Quy; to the Committee on the Judiciary.
PRIVATE RELIEF LEGISLATION
Mr. JOHNSTON. Mr. President, I am proud to introduce a bill
for the relief of Maj. Nguyen Quy An and his daughter, Nguyen Ngoc Kim
Quy.
Major An, a former South Vietnamese helicopter pilot, was awarded the
Distinguished Flying Cross for risking his own life to save four
American servicemen in Vietnam in 1969. Two years later, his helicopter
was hit by enemy fire and went down in flames while he was on a mission
in Vietnam's central highlands. Major An managed to land the aircraft
safely, saving himself and his crew; however, his arms were severely
burned and had to be amputated by American doctors. He was imprisoned
in a Vietnamese reeducation camp for 9 weeks, but was released because
he was considered worthless without his two hands. Major An attempted
to escape Vietnam by boat three times, but each time he was captured,
and he spent 17 months in jail for the escape attempts.
Mr. President, last January, Senators Simpson, Mathews, Hatfield,
Specter, Nickles, Bennett, and myself gave Major An and his daughter
refuge on an Air Force plane from Ho Chi Minh City to Bangkok. One of
the most touching moments I have ever experienced was the thrill of
announcing to Major An that our plane had cleared Vietnam's airspace
and hearing everyone in our delegation and the military escorts clap
and cheer. Major An and his daughter are currently in this country on
humanitarian parole.
In the 103d Congress, I introduced legislation cosponsored by
Senators Mathews, Hatfield, Specter, Nickles, and Bennett for the
relief of Major An and his daughter. Unfortunately, this bill was not
acted on last year, so I rise today to submit new legislation for their
relief. I hope my colleagues will join with me in recognizing the
heroic actions of Major An and will reward him for his bravery by
giving him and his daughter the opportunity to reside permanently in
the United States.
______
By Mr. BIDEN (for himself, Mr. Specter, Mr. Kohl, Mr. Kerrey, and
Mr. D'Amato) (by request):
S. 390. A bill to improve the ability of the United States to respond
to the international terrorist threat; to the Committee on the
Judiciary.
the omnibus counterterrorism act of 1995
Mr. BIDEN. Mr. President, at the request of President Clinton,
I am introducing today legislation to combat international terrorism.
The very grave threat to the United States posed by violent terrorist
acts is documented by the events of this week, as well as of the past 2
years.
Two days ago, Ahmed Ramzi Yousef, the alleged mastermind of New
York's World Trade Center bombing 2 years ago, was arrested and
extradited from Pakistan. Explosives and United and Delta Airlines
timetables were recovered from his hotel room in Pakistan.
Even as legal proceedings now begin against him, 11 other men are on
trial in Federal court in New York City for conspiracy to commit
several heinous acts of terrorism in and around Manhattan--including
the World Trade Center bombing.
These incidents demonstrate that the United States and its citizens
continue to be the focus of extremists who are willing and able to use
violence to advance their cause. The damage this terrorism causes
extends beyond the tragic loss of life and damage of the World Trade
Center bombing.
Indeed, the revelation that terror networks are operating in our
midst undeniably has its intended effect on
[[Page S2503]] our national psyche--it undermines the sense of security
of all Americans both at home and abroad.
Equally important, the continued operation of numerous terrorist
organizations around the globe undermines the stability of key U.S.
allies and important foreign policy objectives.
In the Middle East, terrorism perpetrated by groups supported by Iran
and Syria pose a grave threat to the already fragile Middle East peace
process.
The recent bombing in central Tel Aviv, which killed 19 Israelis--
many of them soldiers on leave--was only the latest in a series of
attacks carried out by Palestinian extremists since the signing of the
Israeli-PLO Declaration of Principles in September 1993.
In South America, terrorists in Colombia and Peru--often in league
with narcotics traffickers--attack the very institutions of State,
weakening the ability of those governments to confront the drug trade--
a trade that continues to plague our own society.
A short time ago, international terrorism seemed to be in decline.
But in 1993, the last year for which data are available, the State
Department's Office of Counterterrorism reports that there were 427
terrorist incidents, an increase from 364 incidents in 1992.
The main reason for the increase was an acceleration of the campaign
conducted by the Kurdistan workers party--known as the PKK--against
Turkish interests in Western Europe.
But the raw numbers--and the dry statistics of which group
perpetrated what attack--do not even begin to portray the harm caused
by the heinous acts of terrorist violence.
Wherever it occurs, the lost lives, broken hearts, and destroyed
dreams of the thousands touched by terrorism is tangible, while the
fear that grips the citizenry--the fear of the indiscriminate attack
that can occur at any time--cannot be quantified. But its effect is all
too real.
In the 1980's, Congress and the Reagan administration worked together
to empower law enforcement with many tools to counter the men of
terror. Last year, President Clinton urged a refocus on terrorism--and
sought recommendations from the executive branch agencies on new tools
that might be needed in the fight against terrorism.
Now, this bill includes a number of provisions to help in that fight.
The bill expands the circumstances in which we can prosecute crimes
committed overseas which affect our interests. It also prohibits
persons in the United States from conspiring to commit terrorism
overseas--and from raising funds for foreign terrorist organizations.
In addition, the bill implements the convention on the marking of
plastic explosives for the purposes of detection. That convention was
an international response to earlier terrorist bombings of aircraft,
requiring manufacturers of plastic explosives to make them easier to
detect.
The bill also expands the coverage of the existing statute involving
transactions in nuclear materials, to cover materials from the
dismantling of nuclear weapons in the former Soviet Union.
It also allows prosecutors to use the Federal RICO and money
laundering statutes to attack terrorism, and fills gaps in current law
by authorizing wiretaps for investigations of all terrorism offenses.
Other more technical changes will also enhance the law enforcement
response to terrorism.
Finally, the bill includes a new Federal terrorism offense, with
stiff penalties--including a new death penalty for terrorist murders.
This is an important, an appropriate, new Federal offense.
The expansion of Federal jurisdiction has been a contested issue in
recent years. I have long opposed broad assertions of Federal
jurisdiction over offenses which are more appropriately prosecuted in
State courts. But, in my view, international terrorism requires a
Federal response.
As expressed in its letter transmitting the legislation to the
Congress, the administration stated that it intends that section 101
confer Federal jurisdiction only over acts of violence that are,
indeed, international terrorism offenses.
I strongly support that intent, but I believe the language of section
101 could be improved to better reflect that intent. The administration
has agreed to work with the Congress to make modifications to the
legislative language to further that goal.
I must also point out that the bill includes one provision which I
strongly oppose in its current form. That is the provision which allows
secret evidence to be used in a deportation proceeding against an
immigrant--even a legal permanent resident--who is alleged to be a
terrorist.
Under current law, any person who is not a citizen--including legal
immigrants--is deportable if the person is engaged in terrorist
activities, even without a criminal conviction.
This bill would create a new and, in my view, troubling court
procedure which would allow the Government to deport an immigrant based
on secret evidence, on evidence unknown to the immigrant or his
counsel.
The right to see and confront the evidence against oneself is a
fundamental premise of the due process clause of the Constitution.
The Supreme Court has held that the due process clause applies to
aliens in the United States, and that it applies to deportation
proceedings.
Deportation can be a dramatic step. This procedure could be used, for
instance, against a legal permanent resident who has lived in the
United States with all of his family for 40 or more years.
Deportation could mean separation from family, and could mean removal
to a country in which the person has never before lived, since a person
is not always deported to the person's country of citizenship.
The use of secret information is unprecedented. Even in other cases
where sensitive information is involved, the Government is required to
give a defendant a summary of the evidence to be used against him.
The use of secret evidence raises fundamental questions about the
accuracy of any determinations made using that procedure. Our system of
justice is an adversarial one. It assumes that by allowing defendants
to see and challenge the evidence against them, the reliability and
truthfulness of that information can be evaluated.
That is what cross-examination is all about--to test the reliability
and biases of the witness. That is why the defense is allowed to put on
witnesses to rebut evidence presented by the prosecution. If a person
does not know what evidence is being used against him, it is simply
impossible to subject that evidence to the scrutiny our system
requires.
I agree with the administration that we must have the ability to
deport aliens involved in terrorist activities. I also agree that we
must be able to safeguard classified information. But I am not
convinced that nothing short of secret evidence can protect our
security. Why, for example, can we not consider applying the Classified
Information Procedures Act--a tried and tested process--to deportation
proceedings, before we sanction in this country Kafkaesque procedures
requiring people to defend against unknown and unseen evidence.
I have introduced this bill at the President's request. I support
most of its provisions, as I am sure most Senators will. But as I have
said, I will work to modify certain portions of the bill even as we
move expeditiously to see it enacted into law.
Mr. President, I ask unanimous consent that the text of the bill and
additional material be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 390
Be it enacted by the Senate and House of Representatives of
the United States in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as ``The Omnibus Counterterrorism Act
of 1995.''
SEC. 2. TABLE OF CONTENTS.
The following is the table of contents for this Act:
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Findings and purposes.
TITLE I--SUBSTANTIVE CRIMINAL LAW ENHANCEMENTS
Sec. 101. Acts of terrorism transcending national boundaries.
[[Page S2504]] Sec. 102. Conspiracy to harm people or property
overseas.
Sec. 103. Clarification and extension of criminal jurisdiction over
certain terrorism offense overseas.
TITLE II--IMMIGRATION LAW IMPROVEMENTS
Sec. 201. Alien terrorist removal procedures.
Sec. 202. Changes to the Immigration and Nationality Act to facilitate
removal of alien terrorists.
Sec. 203. Access to certain confidential INS files through court order.
TITLE III--CONTROLS OVER TERRORIST FUND-RAISING
Sec. 301. Terrorist fund-raising prohibited.
TITLE IV--CONVENTION ON THE MARKING OF PLASTIC EXPLOSIVES
Sec. 401. Short title.
Sec. 402. Findings and purposes.
Sec. 403. Definitions.
Sec. 404. Requirement of detection agents for plastic explosives.
Sec. 405. Criminal sanctions.
Sec. 406. Exceptions.
Sec. 407. Investigative authority.
Sec. 408. Effective date.
TITLE V--NUCLEAR MATERIALS
Sec. 501. Expansion of nuclear materials prohibitions.
TITLE VI--PROCEDURAL AND TECHNICAL CORRECTIONS AND IMPROVEMENTS
Sec. 601. Correction to material support provision.
Sec. 602. Expansion of weapons of mass destruction statute.
Sec. 603. Addition of terrorist offenses to the RICO statute.
Sec. 604. Addition of terrorist offenses to the money laundering
statute.
Sec. 605. Authorization for interception of communications in certain
terrorism related offenses.
Sec. 606. Clarification of maritime violence jurisdiction.
Sec. 607. Expansion of federal jurisdiction over bomb threats.
Sec. 608. Increased penalty for explosives conspiracies.
Sec. 609. Amendment to include assaults, murder, and threats against
former federal officials on account of the performance of
their official duties.
Sec. 610. Addition of conspiracy to terrorism offenses.
TITLE VII--ANTITERRORISM ASSISTANCE
Sec. 701. Findings.
Sec. 702. Antiterrorism assistance amendments.
SEC. 3. FINDINGS AND PURPOSES.
(a) The Congress finds and declares--
(1) International terrorism remains a serious and deadly
problem which threatens the interests of the United States
both overseas and within its territory. States or
organizations that practice terrorism or actively support it
should not be allowed to do so without serious consequence;
(2) International terrorism directed against United States
interests must be confronted by the appropriate use of the
full array of tools available to the President, including
diplomatic, military, economic and prosecutive actions;
(3) The Nation's security interests are seriously impacted
by terrorist attacks carried out overseas against United
States Government facilities, officials and other American
citizens present in foreign countries;
(4) United States foreign policy interests are profoundly
affected by terrorist acts overseas especially those directed
against friendly foreign governments and their people and
those intended to undermine the peaceful resolution of
disputes in the Middle East and other troubled regions;
(5) Since the Iranian Revolution of 1979, the defeat of the
Soviet Union in Afghanistan, the peace initiative in the
Middle East, and the fall of communism throughout Eastern
Europe and the former Soviet Union, international terrorism
has become a more complex problem, with new alliances
emerging among terrorist organizations;
(6) Violent crime is a pervasive international problem and
is exacerbated by the free international movement of drugs,
firearms, explosives and individuals dedicated to performing
acts of international terrorism who travel using false or
fraudulent documentation;
(7) While international terrorists move freely from country
to country, ordinary citizens and foreign visitors often fear
to travel to or through certain parts of the world due to
concern about terrorist violence;
(8) In addition to the destruction of property and
devastation to human life, the occurrence of an international
terrorist event results in a decline of tourism and affects
the marketplace, thereby having an adverse impact on
interstate and foreign commerce and economies of friendly
nations;
(9) International terrorists, violating the sovereignty of
foreign countries, attack dissidents and former colleagues
living in foreign countries, including the United States;
(10) International terrorists, both inside and outside the
United States, carefully plan attacks and carry them out in
foreign countries against innocent victims;
(11) There are increasing intelligence indications of
networking between different international terrorist
organizations leading to their increased cooperation and
sharing of information and resources in areas of common
interest;
(12) In response, increased international coordination of
legal and enforcement issues is required, pursuant, for
example, to the numerous multilateral conventions in force
providing universal prosecutive jurisdiction over persons
involved in a variety of terrorist acts, including hostage
taking, murder of an internationally protected person, and
aircraft piracy and sabotage;
(13) Until recently, United States asylum processing
procedures have been complicated and often duplicative,
providing a powerful incentive for individuals, including
terrorists, without a genuine claim, to apply for asylum and
remain in the United States;
(14) The United States Constitution grants Congress the
power to establish a uniform rule of naturalization and to
make all laws necessary and proper thereto;
(15) Part of that power authorizes the Congress to
establish laws directly applicable to alien conduct within
the United States that harms the foreign relations, domestic
tranquility or national security of the United States;
(16) While the vast majority of aliens justify the trust
placed in them by United States immigration policies, a
dangerous few utilized access to the United States to carry
out their terrorist activity to the detriment of this
nation's national security and foreign policy interests.
Accordingly, international terrorist organizations have been
able to create significant infrastructures and cells in the
United States among aliens who are in this country either
temporarily or as permanent resident aliens;
(17) International terrorist organizations, acting through
affiliated groups and/or individuals, have been raising
significant funds within the United States, often through
misrepresentation of their purposes or subtle forms of
extortion, or using the United States as a conduit for
transferring funds among countries;
(18) The provision of funds to organizations that engage in
terrorism serves to facilitate their terrorist activities
regardless of whether the funds, in whole or in part, are
intended or claimed to be used for non-violent purposes;
(19) Certain foreign governments and international
terrorist organizations have directed their members or
sympathizers residing in the United States to take measures
in support of terrorist acts, either within or outside the
United States;
(20) Present federal law does not adequately reach all
terrorist activity likely to be engaged in by aliens within
the United States;
(21) Law enforcement officials have been hindered in using
current immigration law to deport alien terrorists because
the law fails to provide procedures to protect classified
intelligence sources and information. Moreover, a few high
ranking members of terrorist organizations have been
naturalized as United States citizens because denial of such
naturalizations would have necessitated public disclosure of
highly classified sources and methods. Furthermore,
deportation hearings frequently extend over several years,
thus hampering the expeditious removal of aliens engaging in
terrorist activity;
(22) Present immigration law is inadequate to protect the
United States from terrorist attacks by certain aliens. New
procedures are needed to permit expeditious removal of alien
terrorists from the United States, thereby reducing the
threat that such aliens pose to the national security and
other vital interests of the United States;
(23) International terrorist organizations that have
infrastructure support within the United States are believed
to have been responsible for--
(A) conspiring in 1982 to bomb the Turkish Honorary
Consulate in Philadelphia, Pennsylvania;
(B) bombing the Marine barracks in Lebanon in 1983;
(C) holding Americans hostage in Lebanon from 1984-1991;
(D) hijacking in 1984 Kuwait Airlines Flight 221 during
which two American employees of the Agency for International
Development were murdered;
(E) hijacking in 1985 TWA Flight 847 during which a United
States Navy diver was murdered;
(F) murdering in 1985 an American tourist aboard the
Achille Lauro cruise liner;
(G) hijacking in 1985 Egypt Air Flight 648 during which one
American and one Israeli were killed;
(H) murdering in 1985 four members of the United States
Marine Corps in El Salvador;
(I) attacking in December 1985 the Rome and Vienna airports
resulting in the death of a young American girl;
(J) hijacking in 1986 Pan Am Flight 73 in Karachi,
Pakistan, in which 44 Americans were held hostage and two
were killed;
(K) conspiring in 1986 in New York City to bomb an Air
India aircraft;
(L) bombing in April 1988 the USO club in Naples, Italy,
killing one American servicewoman and injuring four American
servicemen;
(M) attacking in 1988 the Greek cruise ship ``City of
Poros'';
(N) bombing in 1988 Pan Am Flight 103 resulting in 270
deaths;
(O) bombing in 1989 UTA Flight 772 resulting in 171 deaths,
including seven Americans;
[[Page S2505]] (P) murdering in 1989 a United States Marine
Corps officer assigned to the United Nations Truce
Supervisory Organization in Lebanon;
(Q) downing in January 1991 a United States military
helicopter in El Salvador causing the death of a United
States military crewman as a result of the crash and
subsequently murdering its two surviving United States
military crewmen;
(R) bombing in February 1992 the United States Ambassador's
residence in Lima, Peru;
(S) bombing in February 1993 a cafe in Cairo, Egypt, which
wounded two United States citizens;
(T) bombing in February 1993 the World Trade Center in New
York City, resulting in six deaths;
(U) conspiring in the New York City area in 1993 to destroy
several government buildings and tunnels;
(V) wounding in October 1994 two United States citizens on
a crowded street in Jerusalem, Israel;
(W) kidnapping and subsequently murdering in October 1994 a
dual citizen of the United States and Israel; and
(X) numerous bombings and murders in Northern Ireland over
the past decade;
(24) Nuclear materials, including byproduct materials, can
be used to create radioactive dispersal devices which are
capable of causing serious bodily injury as well as
substantial damage to property and the environment;
(25) The potential use of nuclear materials, including
byproduct materials, enhances the threat posed by terrorist
activities and thereby has a greater effect on the security
interests of the United States;
(26) Due to the widespread hazards presented by the threat
of nuclear contamination, as well as nuclear bombs, the
United States has strong interest in assuring that persons
who are engaged in the illegal acquisition and use of nuclear
materials, including byproduct materials, are prosecuted for
their offenses;
(27) The threat that nuclear materials will be obtained and
used by terrorist and other criminal organizations has
increased substantially due to international developments in
the years since the enactment in 1982 of the legislation
which implemented the Convention on the Physicial Protection
of Nuclear Material, codified at 18 U.S.C. 831;
(28) The successful effort to obtain agreements from other
countries to dismantle and destroy nuclear weapons has
resulted in increased packaging and transportation of nuclear
materials, thereby creating more opportunities for their
unlawful diversion or theft;
(29) The illicit trafficking in the relatively more common,
commercially available and usable nuclear and byproduct
materials poses a potential to cause significant loss of life
and/or environmental damage;
(30) Reported trafficking incidents in the early 1990's
suggest that the individuals involved in trafficking these
materials from Eurasia and Eastern Europe frequently
conducted their black market sales within the Federal
Republic of Germany, the Baltic States, and to a lesser
extent in the Middle European countries;
(31) The international community has become increasingly
concerned over the illegal possession of nuclear and nuclear
byproducts materials;
(32) The potentially disastrous ramifications of increased
access by terrorists to nuclear and nuclear byproduct
materials pose such a significant future threat that the
United States must use all lawful methods available to combat
the illegal use of such materials;
(33) The United States has an interest in encouraging
United States corporations to do business in the countries
which comprised the former Soviet Union, as well as in other
developing democracies; protection of such corporations from
threats created by the unlawful use of nuclear materials is
important to encourage such business ventures, and to further
the foreign relations and commerce of the United States;
(34) The nature of nuclear contamination is such that it
may affect the health, environment, and property of United
States nationals even if the acts which constitute the
illegal activity occur outside the territory of the United
States, and are primarily directed toward non-nationals of
the United States;
(35) Plastic explosives were used by terrorists in the
bombings of Pan Am flight 103 in December 1988 and UTA flight
772 in September 1989;
(36) Plastic explosives currently can be used with little
likelihood of detection for acts of unlawful interference
with civil aviation, maritime navigation, and other modes of
transportation;
(37) The marking of plastic explosives for the purpose of
detection would contribute significantly to the prevention
and punishment of such unlawful acts; and
(38) In order to deter and detect the unlawful use of
plastic explosives, the Convention on the Marking of Plastic
Explosives for the Purpose of Detection, done at Montreal on
1 March 1991, requires each contracting State to adopt
appropriate measures to ensure that plastic explosives are
duly marked and controlled.
The Congress further finds:
(39) Such international terrorist offenses place innocent
lives in jeopardy, endanger national security, affect
domestic tranquility, and gravely impact on interstate and
foreign commerce;
(40) Such international terrorist offenses involve
international associations, communication, and mobility which
can often be addressed effectively only at the federal law
enforcement level;
(41) There previously has been no federal criminal statute
which provides a comprehensive basis for addressing acts of
international terrorism carried out within the United States;
(42) There previously has been no federal provision that
specifically prohibits fund raising within the United States
on behalf of international terrorist organizations;
(43) There previously has been no adequate procedure under
the immigration law that permits the expeditious removal of
resident and non-resident alien terrorists;
(44) There previously has been no federal criminal statute
which provides adequate protection to United States interests
from non-weapons grade, yet hazardous radioactive material,
and from the illegal diversion of nuclear materials which are
held for other than peaceful purposes;
(45) There previously has been no federal law that requires
the marking of plastic explosives to improve their
detectability; and
(46) Congress has the power under the interstate and
foreign commerce clause, and other provisions of the
Constitution, to enact the following measures against
international terrorism in order to help ensure the integrity
and safety of the Nation.
(b) The purposes of this Act are to provide:
(1) federal law enforcement the necessary tools and fullest
possible basis allowed under the Constitution of the United
States to address, pursuant to the rule of law, acts of
international terrorism occurring within the United States,
or directed against the United States or its nationals
anywhere in the world;
(2) the Federal Government the fullest possible basis,
consistent with the Constitution of the United States, to
prevent persons and organizations within the jurisdiction of
the United States from providing funds, directly or
indirectly, to organizations, including subordinate or
affiliated persons, designated by the President as engaging
in terrorism, unless authorized under this Act;
(3) procedures which, consistent with principles of
fundamental fairness, will allow the government to deport
resident and non-resident alien terrorists promptly without
compromising intelligence sources and methods;
(4) provide federal law enforcement the necessary tools and
fullest possible basis allowed under the Constitution of the
United States to combat the threat of nuclear contamination
and proliferation which may result from illegal possession
and use of radioactive materials; and
(5) fully implement the Convention on the Marking or
Plastic Explosives for the Purpose of Detection, done at
Montreal on 1 March 1991.
TITLE I--SUBSTANTIVE CRIMINAL LAW ENHANCEMENTS
SEC. 101. ACTS OF TERRORISM TRANSCENDING NATIONAL BOUNDARIES.
(a) Offense.--Chapter 113B of title 18, United States Code,
is amended by inserting after section 2332a this new section:
``2332b. Acts of terrorism transcending national boundaries
``(a) Findings and Purpose.--
``(1) The Congress hereby finds that--
``(A) international terrorism is a serious and deadly
problem which threatens the interests of this nation not only
overseas but also within our territory;
``(B) international terrorists have demonstrated their
intention and capability of carrying out attacks within the
United States by, for example, bombing the World Trade Center
in New York and undertaking attacks, including
assassinations, against former colleagues and opponents who
have taken up residence in this country;
``(C) United States foreign policy interests are seriously
affected by terrorist acts within the United States directed
against foreign governments and their people;
``(D) such offenses place innocent lives in jeopardy,
endanger national security, affect domestic tranquility, and
gravely impact on interstate and foreign commerce;
``(E) such offenses involve international associations,
communication, and mobility which often can be addressed
effectively only at the federal law enforcement level; and
``(F) there previously has been no federal criminal statute
which provides a comprehensive basis for addressing acts of
international terrorism carried out within the United States.
``(2) The purpose of this section is to provide federal law
enforcement the fullest possible basis allowed under the
Constitution to address acts of international terrorism
occurring within the United States.
``(b) Prohibited Acts.--
``(1) Whoever, in a circumstance described in subsection
(c),
``(A) kills, kidnaps, maims, commits an assault resulting
in serious bodily injury, or assaults with a dangerous weapon
any individual within the United States; or
``(B) destroys or damages any structure, conveyance or
other real or personal property within the United States,
in violation of the laws of any State or the United States
shall be punished as prescribed in subsection (d).
``(2) Whoever threatens to commit an offense under
subsection (b)(1), or attempts or conspires so to do, shall
be punished as prescribed in subsection (d).
[[Page S2506]] ``(c) Jurisdictional Bases.--The
circumstances referred to in subsection (b) are:
``(1) any of the offenders travels in commerce with the
intent to commit the offense or to escape apprehension after
the commission of such offense;
``(2) the mail, or any facility utilized in any manner in
commerce, is used in furtherance of the commission of the
offense or to effect the escape of any offender after the
commission of such offense;
``(3) the offense obstructs, delays or affects commerce in
any way or degree or would have so obstructed, delayed or
affected commerce if the offense had been consummated;
``(4) the victim, or intended victim, is the United States
Government or any official, officer, employee or agent of the
legislative, executive or judicial branches, or of any
department or agency, of the United States;
``(5) the structure, conveyance or other real or personal
property (A) was used in commerce or in any activity
affecting commerce, or (B) was in whole or in part owned,
possessed, or used by, or leased to (I) the United States, or
any department or agency thereof, or (II) any institution or
organization receiving federal financial assistance or
insured by any department or agency of the United States;
``(6) any victim, or intended victim, of the offense is, at
the time of the offense, traveling in commerce;
``(7) any victim, intended victim or offender is not a
national of the United States;
``(8) the offense is committed in the territorial sea
(including the airspace above and the seabed and subsoil
below, and artificial islands and fixed structures erected
thereon) of the United States; or
``(9) the offense is committed in those places within the
United States that are in the special maritime and
territorial jurisdiction of the United States.
Jurisdiction shall exist over all principals and
coconspirators of an offense under subsection (b), and
accessories after the fact to any offense based upon
subsection (b), if at least one of the above circumstances is
applicable to at least one offender.
``(d) Penalties.--Whoever violates this section shall, in
addition to the punishment provided for any other crime
charged in the indictment, be punished--
``(1) for a killing or if death results to any person from
any other conduct prohibited by this section, by death or by
imprisonment for any term of years or for life;
``(2) for kidnapping, by imprisonment for any term of years
or for life;
``(3) for maiming, by imprisonment for not more than
thirty-five years;
``(4) for assault with a dangerous weapon or assault
resulting in serious bodily injury, by imprisonment for not
more than thirty years;
``(5) for destroying or damaging any structure, conveyance
or other real or personal property, by imprisonment for not
more than twenty-five years;
``(6) for attempting or conspiring to commit an offense,
for any term of years up to the maximum punishment that would
have applied had the offense been completed; and
``(7) for threatening to commit an offense under this
section, by imprisonment for not more than ten years.
Notwithstanding any other provision of law, the court shall
not place on probation any person convicted of a violation of
this section; nor shall the term of imprisonment imposed
under this section run concurrently with any other term of
imprisonment.
``(e) Limitation on Prosecution.--No indictment for any
offense described in this section shall be sought by the
United States except after the Attorney General, or the
highest ranking subordinate of the Attorney General with
responsibility for criminal prosecutions, has made a written
certification that, in the judgment of the certifying
official, such offense, or any activity preparatory to its
commission, transcended national boundaries and that the
offense appears to have been intended to coerce, intimidate,
or retaliate against a government or a civilian population,
including any segment thereof.
``(f) Investigative Responsibility.--Violations of this
section shall be investigated by the Attorney General.
Assistance may be requested from any Federal, State or local
agency, including the Army, Navy, and Air Force, any statute,
rule, or regulation to the contrary notwithstanding.
``(g) Evidence.--
``(1) The prosecution is not required to prove knowledge by
any defendant of a jurisdictional base alleged in the
indictment.
``(2) In a prosecution under this section that is based
upon the adoption of State law, only the elements of the
offense under State law, and not any provisions pertaining to
criminal procedure or evidence, are adopted.
``(h) Extraterritorial Jurisdiction.--There is
extraterritorial federal jurisdiction (1) over any offense
under subsection (b), including any threat, attempt, or
conspiracy to commit such offense, and (2) over conduct
which, under section 3 of this title, renders any person an
accessory after the fact to an offense under subsection (b).
``(i) Definitions.--As used in this section, the term--
``(1) `commerce' has the meaning given such term in section
1951(b)(3) of this title;
``(2) `facility utilized in any manner in commerce'
includes means of transportation, communication, and
transmission;
``(3) `national of the United States' has the meaning
prescribed in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22));
``(4) `serious bodily injury' has the meaning prescribed in
section 1365(g)(3) of this title;
``(5) `State' includes a State of the United States, the
District of Columbia, and any commonwealth, territory or
possession of the United States; and
``(6) `territorial sea of the United States' means all
waters extending seaward to 12 nautical miles from the
baselines of the United States determined in accordance with
international law.''.
(b) Technical Amendment.--The chapter analysis for Chapter
113B of title 18, United States Code, is amended by inserting
after ``2332a. Use of Weapons of Mass Destruction.'' the
following:
``2332b. Acts of terrorism transcending national
boundaries.''
(c) Statute of Limitations Amendment.--Section 3286 of
title 18, United States Code, is amended by--
(1) striking ``any offense'' and inserting ``any non-
capital offense'';
(2) striking ``36'' and inserting ``37'';
(3) striking ``2331'' and inserting ``2332'';
(4) striking ``2339'' and inserting ``2332a''; and
(5) inserting ``2332b (acts of terrorism transcending
national boundaries),'' after ``(use of weapons of mass
destruction),''.
(d) Presumptive Detention.--Section 3142(e) of title 18,
United States Code, is amended by inserting ``or section
2332b'' after ``section 924(c)''.
(e) Wiretap Amendment.--Section 2518(11)(b)(ii) of title
18, United States Code, is amended by--
(1) inserting ``(A)'' before ``thwart'' and
(2) inserting ``or (B) commit a violation of section 2332b
of this title'' after ``facilities''.
SEC. 102. CONSPIRACY TO HARM PEOPLE AND PROPERTY OVERSEAS.
(a) Section 956 of chapter 45 of title 18, United States
Code, is amended to read as follows:
``956. Conspiracy to kill, kidnap, maim, or injure certain property in
a foreign country
``(a)(1) Whoever, within the jurisdiction of the United
States, conspires with one or more other persons, regardless
of where such other person or persons are located, to commit
at any place outside the United States an act that would
constitute the offense of murder, kidnaping, or maiming if
committed in the special maritime and territorial
jurisdiction of the United States shall, if he or any such
other person commits an act within the jurisdiction of the
United States to effect any object of the conspiracy, be
punished as provided in subsection (a)(2).
``(2) The punishment for an offense under subsection (a)(1)
of this section is--
``(A) imprisonment for any term of years of for life if the
offense is conspiracy to murder or kidnap; and
``(B) imprisonment for not more than thirty-five years if
the offense is conspiracy to maim.
``(b) Whoever, within the jurisdiction of the United
States, conspires with one or more persons, regardless of
where such other person or persons are located, to injure or
destroy specific property situated within a foreign country
and belonging to a foreign government or to any political
subdivision thereof with which the United States is at peace,
or any railroad, canal, bridge, airport, airfield or other
public utility, public conveyance or public structure, or any
religious, educational or cultural property so situated,
shall, if he or any such other person commits an act within
the jurisdiction of the United States to effect any object of
the conspiracy, be imprisoned not more than twenty-five
years.''.
(b) The chapter analysis for chapter 45 of title 18, United
States Code, is amended by striking ``956. Conspiracy to
injure property of foreign government.'' and inserting in
lieu thereof ``956. Conspiracy to kill, kidnap, maim, or
injure certain property in a foreign country.''.
(c) Section 2339A of title 18, United States Code, is
amended by--
(1) striking ``36'' and inserting in lieu thereof ``37'';
(2) striking ``2331'' and inserting in lieu thereof
``2332'';
(3) striking ``2339'' and inserting in lieu thereof
``2332a'';
(4) striking ``of an escape'' and inserting in lieu thereof
``or an escape''; and
(5) inserting ``956,'' before ``1114.''
SEC. 103. CLARIFICATION AND EXTENSION OF CRIMINAL
JURISDICTION OVER CERTAIN TERRORISM OFFENSES
OVERSEAS.
(a) Section 46502(b) of title 49, United States Code, is
amended by--
(1) in paragraph (1), striking ``and later found in the
United States'';
(2) amending paragraph (2) to read as follows:
``(2) There is jurisdiction over the offense in paragraph
(1) if--
``(A) a national of the United States was aboard the
aircraft;
``(B) an offender is a national of the United States; or
``(C) an offender is afterwards found in the United
States.''; and
(3) inserting a new paragraph (3) as follows:
``(3) For purposes of this subsection, the term `national
of the United States' has the meaning prescribed in section
101(a)(22) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(22)).''.
[[Page S2507]] (b) Section 32(b) of title 18, United States
Code, is amended by--
(1) striking ``, if the offender is later found in the
United States,''; and
(2) adding at the end the following two new paragraphs:
``(5) There is jurisdiction over an offense in this
subsection if--
``(A) a national of the United States was on board, or
would have been on board, the aircraft;
``(B) an offender is a national of the United States; or
``(C) an offender is afterwards found in the United States.
``(6) For purposes of this subsection, the term `national
of the United States' has the meaning prescribed in section
101(a)(22) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(22)).''.
(c) Section 1116 of title 18, United States Code, is
amended by--
(1) in subsection (b), adding at the end a new paragraph
(7) as follows:
``(7) `national of the United States' has the meaning
prescribed in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22)).''; and
(2) in subsection (c), striking the first sentence and
inserting the following:
``If the victim of an offense under subsection (a) is an
internationally protected person outside the
United States, the United States may exercise jurisdiction
over the offense if (1) the victim is a representative,
officer, employee, or agent of the United States, (2) an
offender is a national of the United States, or (3) an
offender is afterwards found in the United States.''.
(d) Section 112 of title 18, United States Code, is amended
by--
(1) in subsection (c), inserting ``national of the United
States,'' before ``and''; and
(2) in subsection (e), striking the first sentence and
inserting the following:
``If the victim of an offense under subsection (a) is an
internationally protected person outside the United States,
the United States may exercise jurisdiction over the offense
if (1) the victim is a representative, officer, employee, or
agent of the United States, (2) an offender is a national of
the United States, or (3) an offender is afterwards found in
the United States.''.
(e) Section 878 of title 18, United States Code, is amended
by--
(1) in subsection (c), inserting ``national of the United
States,'' before ``and''; and
(2) in subsection (d) striking the first sentence and
inserting the following:
``If the victim of an offense under subsection (a) is an
internationally protected person outside the United States,
the United States may exercise jurisdiction over the offense
if (1) the victim is a representative, officer, employee, or
agent of the United States, (2) an offender is a national of
the United States, or (3) an offender is afterwards found in
the United States.''.
(f) Section 1201(e) of title 18, United States Code, is
amended by--
(1) striking the first sentence and inserting the
following:
``If the victim of an offense under subsection (a) is an
internationally protected person outside the United States,
the United States may exercise jurisdiction over the offense
if (1) the victim is a representative, officer, employee, or
agent of the United States, (2) an offender is a national of
the United States, or (3) an offender is afterwards found in
the United States.''; and
(2) adding at the end thereof the following:
``For purposes of this subsection, the term `national of the
United States' has the meaning prescribed in section
101(a)(22) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(22)).''.
(g) Section 37(b)(2) of title 18, United States Code, is
amended--
(1) by inserting ``(A)'' before ``the offender is later
found in the United States''; and
(2) by inserting ``; or (B) an offender or a victim is a
national of the United States (as defined in section
101(a)(22) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(22)))'' after ``the offender is later found in the
United States''.
(h) Section 178 of title 18, United States Code, is amended
by--
(1) striking the ``and'' at the end of paragraph (3);
(2) striking the period at the end of paragraph (4) and
inserting in lieu thereof ``; and''; and
(3) adding the following at the end thereof:
``(5) the term `national of the United States' has the
meaning prescribed in section 101(a)(22) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(22)).''.
TITLE II--IMMIGRATION LAW IMPROVEMENTS
SEC. 201. ALIEN TERRORIST REMOVAL PROCEDURES.
(a) Findings and Purpose.--
(1) The Congress hereby finds that--
(A) international terrorism is a serious and deadly problem
which threatens the interests of this nation overseas and
within our territory;
(B) until recently, United States asylum processing
procedures have been complicated and often duplicative,
providing a powerful incentive for individuals, including
terrorists, without a genuine claim, to apply for asylum and
remain in the United States;
(C) while most aliens justify the trust placed in them by
our immigration policies, a dangerous few utilized access to
the United States to create significant infrastructures and
cells in the United States in order to carry out their
terrorist activity to the detriment of the nation's national
security and foreign policy interests;
(D) the bombing of the World Trade Center exemplifies the
danger posed to the United States and its citizens by alien
terrorists;
(E) similarly, some foreign terrorist organizations utilize
associated aliens within the United States to raise funds to
facilitate their overseas terrorist acts against U.S.
nationals as well as against foreign governments and their
citizens; and
(F) current immigration laws and procedures are not
effective in addressing the alien terrorist problem, as they
require the government to place sensitive intelligence
sources and methods at risk and allow the alien to remain
within the United States for the prolonged period necessary
to pursue a deportation action. Moreover, under the current
statutory framework a few high ranking members of terrorist
organizations have been naturalized as United States citizens
because denial of such naturalizations would have
necessitated public disclosure of highly classified sources
and methods.
(2) The purpose of this section is to provide procedures
which, consistent with principles of fundamental fairness,
will allow the government to deport alien terrorists promptly
without compromising intelligence sources and methods.
(b) Alien Removal Procedures.--The Immigration and
Nationality Act is amended--
(1) by adding at the end of the table of contents the
following:
``TITLE V--ALIEN TERRORIST REMOVAL PROCEDURES.
``Sec. 501. Applicability
``Sec. 502. Special removal hearing
``Sec. 503. Designation of judges
``Sec. 504. Miscellaneous provisions''; and
(2) by adding at the end the following new title:
``TITLE V--ALIEN TERRORIST REMOVAL PROCEDURES
``Applicability
``Sec. 501. (a) The provisions of this title may be
followed in the discretion of the Department of Justice
whenever the Department of Justice has classified information
that an alien described in paragraph 4(B) of section 241(a),
as amended, is subject to deportation because of such
section. For purposes of this title, the terms `classified
information' and `national security' shall have the meaning
prescribed in section 1 of the Classified Information
Procedures Act, 18 U.S.C. App. III 1.
``(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 (50 U.S.C. 1801 et. seq.) or otherwise for
national security purposes. Nor shall such alien have the
right to seek suppression of evidence. Further, the
government is authorized to use, in the removal proceedings,
the fruits of electronic surveillance and/or unconsented
physical searches authorized under the Foreign Intelligence
Surveillance Act without regard to subsections 106(c), (e),
(f), (g), and (h) of that Act. The provisions and
requirements of section 3504 of title 18, United States Code,
shall not apply to procedures under this title.
``(c) This title is enacted in response to findings of
Congress that aliens described in paragraph 4(B) of section
241(a), as amended, 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 such 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 or she is an alien described in paragraph 4(B) of section
241(a), as amended.
The Congress furthers intends that, other than as provided by
this title, such aliens shall not be given a deportation
hearing and are ineligible for any discretionary relief from
deportation or for relief under section 243(h).
``Special Removal Hearing
``Sec. 502. (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 or the Deputy Attorney General based upon his finding
that it satisfies the criteria and requirements of 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 or the Deputy
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
[[Page S2508]] ``(4) a statement of the facts and
circumstances relied on by the Department of Justice to
establish that--
``(A) the alien is an alien as described in paragraph 4(B)
of section 241(a), as amended, and is physically present in
the United States; and
``(B) with respect to such alien, adherence to the
provisions of title II regarding the deportation of aliens
would pose a risk to the national security of the United
States.
``(b)(1) 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.
``(2) An alien lawfully admitted for permanent residence
(hereafter referred to as resident alien) shall be entitled
to a release hearing before the judge assigned to the special
removal case pursuant to section 503(a). The resident alien
shall be granted release pending the special removal hearing,
upon such terms and conditions prescribed by the court
(including the posting of any monetary amount), if the alien
demonstrates to the court that the alien, if released, is not
likely to flee and that the alien's release will not endanger
national security or the safety of any person or the
community. The judge may consider classified information
submitted in camera and ex parte in making his determination.
``(C) In accordance with the rules of the court established
under section 503, the judge shall consider the application
and may consider other information, including classified
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 4(B) of section 241(a), as amended; and
``(2) adherence to the provisions of title II regarding the
deportation of the identified alien would pose a risk to the
national security of the United States.
``(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 United States Court of
Appeals for the District of Columbia Circuit by notice of
appeal which must be filed within 20 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
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
4(B) of section 241(a), as amended, 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 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 4(B) of section 241(a), as amended, the judge has
found that there is not probable cause to believe that
adherence to the provisions of title II regarding the
deportation of the identified alien would pose a risk to the
national security of the United States, the judge shall
release the alien from custody subject to the least
restrictive condition or combination of conditions of release
described in section 3142(b) and (c)(1)(B)(i) through (xiv)
of title 18, United States Code, 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 through 3148 of
title 18, United States Code, 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 violation of a release condition shall
apply to an alien to whom the previous sentence applies and--
``(A) for purposes of section 3145 of such title an appeal
shall be taken to the United States Court of Appeals for the
District of Columbia Circuit; and
``(B) for purposes of section 3146 of such title 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 each item of
classified information the Department of Justice proposes to
introduce in camera and ex parte at the special removal
hearing and shall order the introduction of such information
pursuant to subsection (j) if he determines the information
to be relevant. The Department of Justice shall prepare a
written summary of such classified information which does not
pose a risk to national security and the judge shall approve
the summary if he finds the summary is sufficient to inform
the alien of the general nature of the evidence that he is an
alien as described in paragraph 4(B) of section 241(a), as
amended, and to permit the alien to prepare a defense. The
Department of Justice shall cause to be delivered to the
alien a copy of the summary.
``(2) If the written summary is not approved by the court,
the Department shall be afforded reasonable opportunity to
correct the deficiencies identified by the court and submit a
revised summary. Thereafter, if the written summary is not
approved by the court, the special removal hearing shall be
terminated unless the court issues a finding that--
``(A) the continued presence of the alien in the United
States, or
``(B) the provision of the required summary
would likely cause serious and irreparable harm to the
national security or death or serious bodily injury to any
person. If such finding is issued, the special removal
hearing shall continue, the Department of Justice shall cause
to be delivered to the alien a statement that no summary is
possible, and the classified information submitted in camera
and ex parte may be used pursuant to subsection (j).
``(3) The Department of Justice may take an interlocutory
appeal to the United States Court of Appeals for the District
of Columbia Circuit of--
``(A) any determination by the judge pursuant to paragraph
(1)--
``(I) concerning whether an item of evidence may be
introduced in camera and ex parte; or
``(II) concerning the contents of any summary of evidence
to be introduced in camera and ex parte prepared pursuant to
paragraph (1); or
``(B) the refusal of the court to make the finding
permitted by paragraph (2);
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 and the matter shall be heard 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 4(b) of section 241(a), as amended. In
accordance with subsection (e), the alien shall be given
reasonable notice of the nature of the charges against him
and a general account of the basis for the charges. 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, in which case the chief
judge shall assign another judge to conduct the special
removal hearing. 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 special removal hearing shall be open to the
public. The alien shall have a right to be present at 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,
United States Code. 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
witness. 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 special
removal hearing, either the alien or the Department of
Justice may request
[[Page S2509]] 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.
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) When classified information has been summarized
pursuant to subsection (e)(1) or where a finding has been
made under subsection (e)(2) that no summary is possible,
classified information 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 sources other than through reference to the summary
provided pursuant to subsection (e)(1). Notwithstanding the
previous sentence, the Department of Justice may, in its
discretion and, in the case of classified information, after
coordination with the originating agency, elect to introduce
such evidence in open session.
``(k) Evidence introduced at the special removal 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 attorneys 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 4(B)
of subsection 241(a) of this Act (8 U.S.C. 1251(a)(4)(B)), as
amended. If the judge finds that the Department of Justice
has met this burden, the judge shall order the alien removed
and, if the alien is a resident alien who was released
pending the special removal hearing, order the Attorney
General to take the alien into custody.
``(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 information 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 United States
Court of Appeals for the District of Columbia Circuit by
notice of appeal which must be filed within 20 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 the substance or source of
such information 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 subsection (d) or (e) of this section, 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 (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. Any order of removal shall not be
stayed pending disposition of a writ of certiorari except as
provided by the Court of Appeals or a Justice of the Supreme
Court.
``(q) The Department of Justice retains the right to
dismiss a removal action at any stage of the proceeding.
``(r) Nothing in this section shall prevent the United
States from seeking protective orders and/or asserting
privileges ordinarily available to the United States to
protect against the disclosure of classified
information, including the invocation of the military and
state secrets privileges.
``Designation of Judges
``Sec. 503. (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. The Chief Justice
shall publicly designate one of the judges so appointed as
the chief judge. The chief 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, the Director of Central
Intelligence 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 hearings
authorized by section 502, the orders themselves, and
evidence received in camera and ex parte, and for such other
actions as are necessary to protect information concerning
matters before the court from harming the national security
of the United States.
``(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 the term of one judge shall
expire each year.
``Miscellaneous Provisions
``Sec. 504. (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 judgment of the Attorney
General, in consultation with the Secretary of State, impair
the obligation of the United States under any treaty
(including a treaty pertaining to extradition) or otherwise
adversely affect the foreign policy of the United States.
``(2) If the alien refuses to choose a country to which he
wishes to be transported, or if the Attorney General, in
consultation with the Secretary of State, determines that
removal of the alien to the country so selected would impair
a treaty obligation or adversely affect United States 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 212(a)(3)(B) of this Act (8 U.S.C. 1182(a)(3)(B),
as amended, he 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, in
coordination with the Secretary of State, shall make periodic
efforts to reach agreement with other countries to accept
such an alien and at least every six months shall provide to
the alien a written report on his efforts. 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 determinations and 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 by the alien that continued
detention violates his rights under the Constitution.
Jurisdiction over any such challenge shall lie exclusively in
the United States Court of Appeals for the District of
Columbia 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
[[Page S2510]] 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 purposes of section 751 and 752 of title 18,
United States Code, an alien in the custody of the Attorney
General pursuant to this title shall be subject to the
penalties provided by those sections in relation to a person
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 opportunity
to communicate with and receive visits from members of his
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 of citizenship or nationality or of any country
providing representation services therefore. The Attorney
General shall notify the appropriate embassy, mission, or
consular office of the alien's detention.''.
(c) Additional Amendments to INA.--(1) Subsection 106(b) of
the Immigration and Nationality Act (8 U.S.C. 1105a(b)) 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 3(B) of subsection 212(a) (8
U.S.C. 1182(a)), as amended, shall rest exclusively in the
United States Court of Appeals for the District of Columbia
Circuit.''.
(2) Section 276(b) of the Immigration and Nationality Act
(8 U.S.C. 1326(b)) is amended by deleting the word ``or'' at
the end of subparagraph (b)(1), by replacing the period at
the end of subparagraph (b)(2) with a semicolon followed by
the word ``or'', and by adding at the end of paragraph (b)
the following subparagraph: ``(3) who has been excluded from
the United States pursuant to subsection 235(c) of this Act
(8 U.S.C. 1225(c)) because such alien was excludable under
paragraph 3(B) of subsection 212(a) thereof (8 U.S.C.
1182(a)(3)(B)), as amended, or who 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 fined under title 18,
United States Code, and imprisoned for a period of ten years
which sentence shall not run concurrently with any other
sentence.''
(3) Section 106(a) of the Immigration and Nationality Act
(8 U.S.C. 1105a(a)) is amended by striking from the end of
subparagraph 9 the semicolon and the word ``and'' and
inserting a period in lieu thereof, and by striking
subparagraph 10.
(d) Effective Date.--The provisions of this Act shall be
effective upon enactment, and shall apply to all aliens
without regard to the date of entry or attempted entry into
the United States.
SEC. 202. CHANGES TO THE IMMIGRATION AND NATIONALITY ACT TO
FACILITATE REMOVAL OF ALIEN TERRORISTS.
(a) Section 212(a)3)(B) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)(3)(B)) is amended to read as follows:
``(B) Terrorism Activities
``(i) In general
Any alien who
``(I) has engaged in a terrorism activity, or
``(II) a consular officer or the Attorney General knows, or
has reason to believe, is likely to engage after entry in any
terrorism activity (as defined in clause (iii)),
is excludable. An alien who is a representative of the
Palestine Liberation Organization, or any terrorist
organization designated by proclamation by the President
after he has found such organization to be detrimental to the
interests of the Untied States, is considered, for purposes
of this Act, to be engaged in a terrorism activity. As used
in clause (B)(i), the term ``representative'' includes an
officer, official or spokesman of the organization and any
person who directs, counsels, commands or induces such
organization or its
members to engage in terrorism activity. For purposes of
subparagraph (3)(B)(i), the determination by the Secretary
of State or the Attorney General that an alien is a
representative of the organization shall be controlling
and shall not be subject to review by any court.
``(ii) Terrorism activity defined.--As used in this Act,
the term `terrorism activity' means any activity which is
unlawful under the laws of the place where it is committed
(or which, if it had been committed in the United States,
would be unlawful under the laws of the United States or any
State), and which involves any of the following:
``(I) The hijacking or sabotage of any conveyance
(including an aircraft, vessel, or vehicle).
``(II) The seizing or detaining, and threatening to kill,
injure, or continue to detain, another individual in order to
compel a third person (including a governmental organization)
to do or abstain from doing any act as an explicit or
implicit condition for the release of the individual seized
or detained.
``(III) A violent attack upon an internationally protected
person (as defined in section 1116(b)(4) of title 18, United
States Code) or upon the liberty of such a person.
``(IV) An assassination.
``(V) The use of any--
``(a) biological agent, chemical agent, or nuclear weapon
or device, or
``(b) explosive, firearm, or other weapon (other than for
mere personal monetary gain),
with intent to endanger, directly or indirectly, the safety
of one or more individuals or to cause substantial damage to
property.
``(VI) A threat, attempt, or conspiracy to do any of the
foregoing.
``(iii) Engage in terrorism activity defined.--As used in
this Act, the term `engage in terrorism activity' means to
commit, in an individual capacity or as a member of an
organization, an act of terrorism activity or an act which
the actor knows, or reasonably should know, affords material
support to any individual, organization, or government which
the actor knows or reasonably should know has committed or
plans to commit terrorism activity, including any of the
following acts:
``(I) The preparation or planning of terrorism activity.
``(II) The gathering of information on potential targets
for terrorism activity.
``(III) The providing of any type of material support,
including a safe house, transportation, communications,
funds, false documentation or identification, weapons,
explosives, or training.
``(IV) The soliciting of funds or other things of value for
terrorism activity or for any terrorist organization.
``(V) The solicitation of any individual for membership in
a terrorist organization, terrorist government, or to engage
in a terrorism activity.
``(iv) Terrorist organization defined.--As used in this
Act, the term `terrorist organization' means any organization
engaged, or which has a significant subgroup which engages,
in terrorism activity, regardless of any legitimate
activities conducted by the organization or its subgroups.
``(v) Terrorism defined.--As used in this Act, the term
`terrorism' means premeditated, politically motivated
violence perpetrated against noncombatant targets.''.
(b) Section 241(a)(4)(B) of the Immigration and Nationality
Act (8 U.S.C. Sec. 1251(a)(4)(B)) is amended to read as
follows:
``(B) Terrorism activities.--Any alien who has engaged, is
engaged, or at any time after entry engages in any terrorism
activity (as defined in section 212(a)(3)(B)).''.
(c) Section 291 of the Immigration and Nationality Act (8
U.S.C. 1361) is amended by adding after ``custody of the
Service.'' this new sentence:
``The limited production authorized by this provision shall
not extend to the records of any other agency or department
of the Government or to any documents that do not pertain to
the respondent's entry.''.
(d) Section 242(b)(3) of the Immigration and Nationality
Act (8 U.S.C. 1252(b)(3)) is amended by inserting after
``Government'' the following:
``. In the case of an alien who is not lawfully admitted for
permanent residence and notwithstanding the provisions of any
other law, reasonable opportunity shall not comprehend access
to classified information, whether or not introduced in
evidence against him. The provisions and requirements of 18
U.S.C. Sec. 3504 and 50 U.S.C. Sec. 1801 et seq. shall not
apply in such cases''.''
SEC. 203. ACCESS TO CERTAIN CONFIDENTIAL INS FILES THROUGH
COURT ORDER.
(a) Section 245A(c)(5) of the Immigration and Nationality
Act (8 U.S.C. 1255a(c)(5) is amended by--
(1) inserting ``(i)'' after ``except the Attorney
General''; and
(2) inserting after ``Title 13'' the following:
``and (ii) may authorize an application to a Federal court of
competent jurisdiction for, and a judge of such court may
grant, an order authorizing disclosure of information
contained in the application of the alien to be used:
``(I) for identification of the alien when there is reason
to believe that the alien has been killed or severely
incapacitated; or
``(II) for criminal law enforcement purposes against the
alien whose application is to be disclosed if the alleged
criminal activity occurred after the legalization application
was filed and such activity poses either an immediate risk to
life or to national security or would be prosecutable as an
aggravated felony, but without regard to the length of
sentence that could be imposed on the applicant''.
(b)(1) Section 210(b)(5) of the Immigration and Nationality
Act (8 U.S.C. 1160(b)(5)) is amended by inserting ``, except
as allowed by a court order issued pursuant to paragraph (6)
of this subsection'' after ``consent of the alien''.
(2) Section 210(b)(6) of the Immigration and Nationality
Act (8 U.S.C. 1160(b)(6)) is amended by inserting the
following sentence before ``Anyone who uses'';
``Except the Attorney General may authorize an application to
a Federal Court of competent jurisdiction for, and a judge of
such
[[Page S2511]] court may grant, an order authorizing
disclosure of information contained in the application of the
alien to be used:
``(E) for identification of the alien when there is reason
to believe that the alien has been killed or severely
incapacitated; or
``(F) for criminal law enforcement purposes against the
alien whose application is to be disclosed if the alleged
criminal activity occurred after the special agricultural
worker application was filed and such activity poses either
an immediate risk to life or to national security or would be
prosecutable as an aggravated felony, but without regard to
the length of sentence that could be imposed on the
applicant.''.
TITLE III--CONTROLS OVER TERRORIST FUND-RAISING
SEC. 301. TERRORIST FUND-RAISING PROHIBITED.
(a) Chapter 113B of title 18, United States Code, is
amended by adding at the end thereof the following new
section:
``2339B. Fund-raising for terrorist organizations
``(a) Findings and Purpose.--
``(1) The Congress hereby finds that--
``(A) terrorism is a serious and deadly problem which
threatens the interests of the United States both overseas
and within our territory;
``(B) the nation's security interests are gravely impacted
by terrorist attacks carried out overseas against United
States Government facilities and officials, as well as
against other American citizens present in foreign countries;
``(C) United States foreign policy interests are profoundly
affected by terrorist acts overseas directed against foreign
governments and their people;
``(D) United States economic interests are significantly
impacted by terrorist attacks carried out in foreign
countries against United States citizens and businesses;
``(E) international cooperation is required for an
effective response to terrorism, as demonstrated by the
numerous multilateral conventions in force providing
universal
prosecutive jurisdiction over persons involved in a variety
of terrorist acts, e.g., hostage taking, murder of an
internationally protected person, and aircraft piracy and
sabotage;
``(F) some foreign terrorist organizations, acting through
affiliated groups or individuals, raise significant funds
within the United States or use the United States as a
conduit for their receipt of funds raised in other nations;
and
``(G) the provision of funds to organizations that engage
in terrorism serves to facilitate their terrorist endeavors,
regardless of whether the funds, in whole or in part, are
intended or claimed to be used for non-violent purposes.
``(2) The purpose of this section is to provide the Federal
Government the fullest possible basis, consistent with the
Constitution, to prevent persons within the United States or
subject to the jurisdiction of the United States from
providing funds, directly or indirectly, to foreign
organizations, including subordinate or affiliated persons,
designated by the President as engaging in terrorism, unless
authorized under this section.
``(b) Authority.--Notwithstanding any other provision of
law, the President is authorized, under such regulations as
he may prescribe, to regulate or prohibit:
``(1) fund-raising or the provision of funds for use by or
for the benefit of any foreign organization, including
persons assisting such organization in fund-raising, that the
President has designated pursuant to subsection (c) as being
engaged in terrorism activities; or
``(2) financial transactions with any such foreign
organization,
within the United States or by any person subject to the
jurisdiction of the United States anywhere.
``(c) Designation.--
``(1) Pursuant to the authority granted in subsection (b),
the President is authorized to designate any foreign
organization based on finding that--
``(A) the organization engages in terrorism activity as
defined in section 212(a)(3)(B) of the Immigration and
Nationality Act (8 U.S.C. Sec. 1182(a)(3)(B)); and
``(B) the organization's terrorism activities threaten the
national security, foreign policy, or economy of the United
States.
``(2) Pursuant to the authority granted in subsection (b),
the President is also authorized to designate persons which
are raising funds for, or acting for or on behalf of, any
organization designated pursuant to subsection (c)(1) above.
``(3) If the President finds that the conditions which were
the basis for any designation issued under this subsection
have changed in such a manner as to warrant revocation of
such designation, or that the national security, foreign
relations, or economic interests of the United States so
warrant, he may revoke such designation in whole or in part.
``(4) Any designation, or revocation thereof, issued
pursuant to this subsection shall be published in the Federal
Register and shall become effective immediately on
publication.
``(5) Any revocation of a designation shall not affect any
action or proceeding based on any conduct committed prior to
the effective date of such revocation.
``(6) Any finding made in my designation issued pursuant to
paragraph (1) of this subsection that a foreign organization
engages in terrorism activity shall be conclusive. No
question concerning the validity of the issuance of such
designation may be raised by a defendant in a criminal
prosecution as a defense in or as an objection to any trial
or hearing if such designation was issued and published in
the Federal Register in accordance with this subsection.
``(d) Prohibited Activities.--
``(1) Except as authorized pursuant to the procedures in
subsection (e), it shall be unlawful for any person within
United States, or any persons subject to the jurisdiction of
the United States anywhere, to directly or indirectly, raise,
receive or collect on behalf of, or furnish, give, transmit,
transfer or provide funds to or for an organization or person
designated by the President under subsection (c), or to
attempt to do any of the foregoing.
``(2) It shall be unlawful for any person within the United
States or any person subject to the jurisdiction of the
United States anywhere, acting for or on behalf of any
organization or person designated under subsection (c), (A)
to transmit, transfer, or receive any funds raised in
violation of subsection (d)(1) or (B) to transmit, transfer,
or dispose of any funds in which any organization or person
designated pursuant to subsection (c) has an interest.
``(e) Authorized Transactions.--
``(1) The Secretary shall publish regulations, consistent
with the provisions of this subsection, setting forth the
procedures to be followed by persons seeking to raise or
provide funds for an organization designated under subsection
(c)(1).
``(2) Any person within the United States, or any person
subject to the jurisdiction of United States anywhere, who
seeks to solicit funds for or to transfer funds to any
organization or person designated under subsection (c) shall,
regardless of whether it has an agency relationship with the
designated organization or person, first obtain a license
from the Secretary and may thereafter solicit funds or
transfer funds to a designated organization or person only as
permitted under the terms of a license issued by the
Secretary.
``(3) The Secretary shall grant a license only after the
person establishes to the satisfaction of the Secretary
that--
``(A) the funds are intended to be used exclusively for
religious, charitable, literary, or educational purposes; and
``(B) all recipient organizations in any fund-raising chain
have effective procedures in place to ensure that the funds
(i) will be used exclusively for religious, charitable,
literary, or educational purposes and (ii) will not be used
to offset a transfer of funds to be used in terrorist
activity.
``(4) Any person granted a license shall maintain books and
records, as required by the Secretary, that establish the
source of all funds it receives, expenses it incurs, and
disbursements it makes. Such books and records shall be made
available for inspection within two business days of a
request by the Secretary. Any person granted a license shall
also have an agreement with any recipient organization or
person that such organization's or person's books and
records, wherever located, must be made available for
inspection of the Secretary upon a request of the Secretary
at a place and time agreeable to that organization or person
and the Secretary.
``(5) The Secretary may also provide by regulation
procedures for the licensing of transactions otherwise
prohibited by this section in cases found by the Secretary to
be consistent with the statement of purpose in subsection
(a)(2).
``(f) Special Requirements for Financial Institutions.--
``(1) Except as authorized by the Secretary by means of
directives, regulations, or licenses, any financial
institution which becomes aware that it has possession of or
control over any funds in which an organization or person
designated under subsection (c) has an interest, shall--
``(A) retain possession of or maintain control over such
funds; and
``(B) report to the Secretary the existence of such funds
in accordance with the regulations prescribed by the
Secretary.
``(2) Any financial institution that fails to report to the
Secretary the existence of such funds shall be subject to a
civil penalty of $250 per day for each day that it fails to
report to the Secretary--
``(A) in the case of funds being possessed or control at
the time of the designation of the organization or person,
within ten days after the designation; and
``(B) in the case of funds whose possession of or control
over arose after the designation of the organization or
person, within ten days after the financial institution
obtained possession of or control over the funds.
``(g) Investigations.--
``Any investigation emanating from a possible violation of
this section, or of any license, order, or regulation issued
pursuant to this section, shall be conducted by the Attorney
General, except that investigations relating to (1) a
licensee's compliance with the terms of a license issued by
the Secretary pursuant to subsection (e) of this section, (2)
a financial institution's compliance with the requirements of
subsection (f) of this section, and (3) civil penalty
proceedings authorized pursuant to subsection (i) of this
section, shall be conducted in coordination with the Attorney
General by the office
[[Page S2512]] within the Department of the Treasury
responsible for licensing and civil penalty proceedings
authorized by this section. Any evidence of a criminal
violation of this section arising in the course of an
investigation by the Secretary or any other federal agency
shall be referred immediately to the Attorney General for
further investigation. The Attorney General shall timely
notify the Secretary of any action taken on referrals from
the Secretary, and may refer investigations to the Secretary
for remedial licensing or civil penalty action.
``(h) Recordkeeping and Reporting; Civil Procedures.--
``(1) Notwithstanding any other provision of law, in
exercising the authorities granted by this section, the
Secretary and the Attorney General may require any person to
keep a full record of, and to furnish under oath, in the form
of reports or otherwise, complete information relative to any
act or transaction referred to
in this section either before, during, or after the
completion thereof, or relative to any funds referred to
in this section, or as may be necessary to enforce the
terms of this section. In any case in which a report by a
person could be required under this subsection, the
Secretary or the Attorney General may require the
production of any books of account, records, contracts,
letters, memoranda, or other papers or documents, whether
maintained in hard copy or electronically, in the control
or custody of such person.
``(2) Compliance with any regulation, instruction, or
direction issued under this section shall to the extent
thereof be a full acquittance and discharge for all purposes
of the obligation of the person making the same. No person
shall be held liable in any court for or with respect to
anything done or omitted in good faith in connection with the
administration of, or pursuant to and in reliance on, this
section, or any regulation, instruction, or direction issued
under this section.
``(3) In carrying out their function under this section,
the Secretary and the Attorney General may hold hearings,
sign and issue subpoenas, administer oaths, examine
witnesses, and receive evidence.
``(4) In the case of contumacy by, or refusal to obey a
subpoena issued to, any person, the Attorney General may
invoke the aid of any court of the United States within the
jurisdiction of which the investigation is carried on or of
which the subpoenaed person is an inhabitant, or in which the
subpoenaed person carries on business or may be found, to
compel compliance with the subpoena. The court may issue an
order requiring the subpoenaed person to appear before the
agency issuing the subpoena, or other order or direction, to
produce records, if so ordered, or to give testimony touching
the matter under investigation. Any failure to obey the order
of the court may be punished by the court as a contempt
thereof. All process in any such case may be served in any
judicial district in which such person may be found.
``(i) Penalties.--
``(1) Any person who knowingly violates subsection (d)
shall be fined under this title, or imprisoned for up to 10
years, or both.
``(2)(A) Any person who fails to maintain or to make
available to the Secretary upon his request or demand the
books or records required by subsection (e), or by
regulations promulgated thereunder, shall be subject to a
civil penalty of $50,000 or twice the amount of money which
would have been documented had the books and records been
properly maintained, whichever is greater.
``(B) Any person who fails to take the actions required of
financial institutions pursuant to subsection (f)(1), or by
regulations promulgated thereunder, shall be subject to a
civil penalty of $50,000 per violation, or twice the amount
of money of which the financial institution was required to
retain possession or control, whichever is greater.
``(C) except as otherwise specified in this section, any
person who violates any license, order, direction, or
regulation issued pursuant to this section shall be subject
to a civil penalty of $50,000 per violation, or twice the
value of the violation, whichever is greater.
``(3) Any person who intentionally fails to maintain or to
make available to the Secretary the books or records required
by subsection (e), or by regulations promulgated thereunder,
shall be fined under this title, or imprisoned for up to five
years, or both.
``(4) Any organization convicted of an offense under (h)
(1) or (3) of this section shall, upon conviction, forfeit
any charitable designation it might have received under the
Internal Revenue Code.
``(j) Injunction.--
``(1) Whenever it appears to the Secretary or the Attorney
General that any person is engaged in, or is about to engage
in, any act which constitutes, or would constitute, a
violation of this section, the Attorney General may initiate
civil action in a district court of the United States to
enjoin such violation.
``(2) A proceeding under this subsection is governed by the
Federal Rules of Civil Procedure, except that, if an
indictment has been returned against the respondent,
discovery is governed by the Federal Rules of Criminal
Procedure.
``(k) Extraterritorial Jurisdiction.--There is
extraterritorial Federal jurisdiction over an offense under
this section.
``(l) Classified Information in Civil Proceedings Brought
by the United States.--
``(1) Discovery of classified information by defendants.--A
court, upon a sufficient showing, may authorize the United
States to delete specified items of classified information
from documents to be introduced into evidence and/or made
available to the defendant through discovery under the
Federal Rules of Civil Procedure, to substitute a summary of
the information for such classified documents, or to
substitute a statement admitting relevant facts that the
classified information would tend to prove. The court shall
permit the United States to make a request for such
authorization in the form of a written statement to be
inspected by the court alone. If the court enters an order
granting relief
following such an ex parte showing, the entire text of the
statement of the United States shall be sealed and
preserved in the records of the court to be made available
to the appellate court in the event of an appeal. If the
court enters an order denying relief to the United States
under this provision, the United States may take an
immediate, interlocutory appeal in accordance with the
provisions of paragraph (3) of this subsection. In the
event of such an appeal, the entire text of the underlying
written statement of the United States, together with any
transcripts of arguments made ex parte to the court in
connection therewith, shall be maintained under seal and
delivered to the appellate court.
``(2) Introduction of classified information; precautions
by court
``(A) Exhibits.--The United States, in order to prevent
unnecessary or inadvertent disclosure of classified
information in a civil trial or other proceeding brought by
the United States under this section, may petition the court
ex parte to admit, in lieu of classified writings, recordings
or photographs, one or more of the following: (i) copies of
those items from which classified information has been
deleted, (ii) stipulations admitting relevant facts that
specific classified information would tend to prove, or (iii)
a summary of the specific classified information. The court
shall grant such a motion of the United States if it finds
that the redacted item, stipulation or summary will provide
the defendant with substantially the same ability to make his
defense as would disclosure of the specific classified
information.
``(B) Taking of trial testimony.--During the examination of
a witness in any civil proceeding brought by the United
States under this section, the United States may object to
any question or line of inquiry that may require the witness
to disclose classified information not previously found to be
admissible. Following such an objection, the court shall take
suitable action to determine whether the response is
admissible and, in doing so, shall take precautions to guard
against the compromise of any classified information. Such
action may include permitting the United States to provide
the court, ex parte, with a proffer of the witness's response
to the question or line of inquiry, and requiring the
defendant to provide the court with a proffer of the nature
of the information he seeks to elicit.
``(C) Appeal.--If the court enters an order denying relief
to the United States under this subsection, the United States
may take an immediate interlocutory appeal in accordance with
paragraph (3) of this subsection.
``(3) Interlocutory appeal
``(A) An interlocutory appeal by the United States shall
lie to a court of appeals from a decision or order of a
district court authorizing the disclosure of classified
information, imposing sanctions for nondisclosure of
classified information, or refusing a protective order sought
by the United States to prevent the disclosure of classified
information.
``(B) An appeal taken pursuant to this section either
before or during trial shall be expedited by the court of
appeals. Prior to trial, an appeal shall be taken within ten
days after the decision or order appealed from and the trial
shall not commence until the appeal is resolved. If an appeal
is taken during trial, the trial court shall adjourn the
trial until the appeal is resolved and the court of appeals
(1) shall hear argument on such appeal within four days of
the adjournment of the trial, (2) may dispense with written
briefs other than the supporting materials previously
submitted to the trial court, (3) shall render its decision
within four days of argument on appeal, and (4) may dispense
with the issuance of a written opinion in rendering its
decision. Such appeal and decision shall not affect the right
of the defendant, in a subsequent appeal from a final
judgment, to claim as error reversal by the trial court on
remand of a ruling appealed from during trial.
``(4) Nothing in this subsection shall prevent the United
States from seeking protective orders and/or asserting
privileges ordinarily available to the United States to
protect against the disclosure of classified information,
including the invocation of the military and state secrets
privilege.
``(m) Definitions.--As used in this section, the term--
``(1) `classified information' means any information or
material that has been determined by the United States
Government pursuant to an Executive order, statute, or
regulation, to require protection against unauthorized
disclosure for reasons of national security and any
restricted data, as defined in paragraph r. of section 11 of
the Atomic Energy Act of 1954 (42 U.S.C. 2014(y));
``(2) `financial institution' has the meaning prescribed in
section 5312(a)(2) of title 31,
[[Page S2513]] United States Code, including any regulations
promulgated thereunder;``(3) `funds' includes coin or
currency of the United States or any other country,
traveler's checks, personal checks, bank checks, money
orders, stocks, bonds, debentures, drafts, letters of credit,
any other negotiable instrument, and any electronic
representation of any of the foregoing;
``(4) `national security' means the national defense and
foreign relations of the United States;
``(5) `person' includes an individual, partnership,
association, group, corporation or other organization;
``(6) `Secretary' means the Secretary of the Treasury; and
``(7) `United States', when used in a geographical sense,
includes all commonwealths, territories and possessions of
the United States.''.
(b) Technical Amendment.--The analysis for chapter 113B of
title 18, United States Code, is amended by adding at the end
thereof the following:
``2339B. Fund-raising for terrorists organizations''.
(c) Section 212(a)(3)(B)(i) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)), as amended by
section 202(a) of this Act, is further amended by inserting
after the phrase ``Palestine Liberation Organization'' the
following: ``, an organization designated by the President
under section 2339B of title 18, United States Code''.
(d) The provisions of section 2339B(k) of title 18, United
States Code, (relating to classified information in civil
proceedings brought by the United States) shall also be
applicable to civil proceedings brought by the United States
under the International Emergency Economic Powers Act (50
U.S.C. 1701 et seq.).
TITLE IV--CONVENTION ON THE MARKING OF PLASTIC EXPLOSIVES
SEC. 401. SHORT TITLE.
This title may be cited as the ``Marking of Plastic
Explosives for Detection Act.''.
(a) Findings.--The Congress finds that--
(1) plastic explosives were used by terrorists in the
bombings of Pan Am flight 103 in December 1988 and UTA flight
772 in September 1989;
(2) plastic explosives can be used with little likelihood
of detection for acts of unlawful interference with civil
aviation, maritime navigation and other modes of
transportation;
(3) the criminal use of plastic explosives places innocent
lives in jeopardy, endangers national security, affects
domestic tranquility, and gravely affects interstate and
foreign commerce;
(4) the marking of plastic explosives for the purpose of
detection would contribute significantly to the prevention
and punishment of such unlawful acts; and
(5) for the purpose of deterring and detecting such
unlawful acts, the Convention on the Marking of Plastic
Explosives for the Purpose of Detection, Done at Montreal on
1 March 1991, requires each contracting State to adopt
appropriate measures to ensure that plastic explosives are
duly marked and controlled.
(b) Purpose.--The purpose of this Act is to fully implement
the Convention on the Marking of Plastic Explosives for the
Purpose of Detection, Done at Montreal on 1 March 1991.
SEC. 403. DEFINITIONS.
Section 841 of title 18, United States Code, is amended by
adding at the end the following new subsections:
``(o) `Convention on the Marking of Plastic Explosives'
means the Convention on the Marking of Plastic Explosives for
the Purpose of Detection, Done at Montreal on 1 March 1991.
``(p) `Detection agent' means any one of the substances
specified in this subsection when introduced into a plastic
explosive or formulated in such explosive as a part of the
manufacturing process in such a manner as to achieve
homogeneous distribution in the finished explosive,
including--
``(1) Ethylene glycol dinitrate (EGDN),
C2H4(NO3)2, molecular weight 152, when
the minimum concentration in the finished explosive is 0.2
percent by mass;
``(2) 2, 3-Dimethyl-2, 3-dinitrobutane (DMNB), 6H
12(NO 2)2, molecular weight 176, when the
minimum concentration in the finished explosive is 0.1
percent by mass;
``(3) Para-Mononitrotoluene (p-MNT),
C7H7NO2, molecular weight 137, when the
minimum concentration in the finished explosive is 0.5
percent by mass;
``(4) Ortho-Mononitrotoluene (o-MNT),
C7H7NO2, molecular weight 137, when the
minimum concentration in the finished explosive is 0.5
percent by mass; and
``(5) any other substance in the concentration specified by
the Secretary, after consultation with the Secretary of State
and the Secretary of Defense, which
has been added to the table in Part 2 of the Technical Annex
to the Convention on the Marketing of Plastic Explosives.
``(q) `Plastic explosive' means an explosive material in
flexible or elastic sheet form formulated with one or more
high explosives which in their pure form have a vapor
pressure less than 10-4 Pa at a temperature of
25 deg.C., is formulated with a binder material, and is as a
mixture malleable or flexible at normal room temperature.''.
SEC. 404. REQUIREMENT OF DETECTION AGENTS FOR PLASTIC
EXPLOSIVES.
Section 842 of title 18, United States Code, is amended by
adding after subsection (k) the following new subsections:
``(l) It shall be unlawful for any person to manufacture
any plastic explosive which does not contain a detection
agent.
``(m)(1) It shall be unlawful for any person to import or
bring into the United States, or export from the United
States, any plastic explosive which does not contain a
detection agent.
``(2) This subsection does not apply to the importation or
bringing into the United States, or the exportation from the
United States, of any plastic explosive which was imported,
brought into, or manufactured in the United States prior to
the effective date of the Marketing of Plastic Explosives for
Detection Act by or on behalf of any agency of the United
States performing military or police functions (including any
military reserve component) or by or on behalf of the
National Guard of any State, not later than 15 years after
the date of entry into force of the Convention on the Marking
of Plastic Explosives, with respect to the United States.
``(n)(1) It shall be unlawful for any person to ship,
transport, transfer, receive, or possess any plastic
explosive which does not contain a detection agent.
``(2) This subsection does not apply to--
``(A) the shipment, transportation, transfer, receipt, or
possession of any plastic explosive, which was imported,
brought into, or manufactured in the United States prior to
the effective date of this Act by any person during a period
not exceeding three years after the effective date of this
Act; or
``(B) the shipment, transportation, transfer, receipt, or
possession of any plastic explosive, which was imported,
brought into, or manufactured in the United States prior to
the effective date of this Act by or on behalf of any agency
of the United States performing a military or police function
(including any military reserve component) or by or on behalf
of the National Guard of any State, not later than 15 years
after the date of entry into force of the Convention on the
Marking of Plastic Explosives, with respect to the United
States.
``(o) It shall be unlawful for any person, other than an
agency of the United States (including any military reserve
component) or the National Guard of any State, possessing any
plastic explosive on the effective date of this Act, to fail
to report to the Secretary within 120 days from the effective
date of this Act the quantity of such explosives possessed,
the manufacturer or importer, any marks of identification on
such explosives, and such other information as the Secretary
may by regulations prescribe.''.
SEC. 405. CRIMINAL SANCTIONS.
Section 844(a) of title 18, United States Code, is amended
to read as follows:
``(a) Any person who violates subsections (a) through (i)
or (l) through (o) of section 842 of this chapter shall be
fined under this title or imprisoned not more than 10 years,
or both.''.
SEC. 406. EXCEPTIONS.
Section 845 of title 18, United States Code, is amended--
(1) in subsection (a), by inserting ``(l), (m), (n), or (o)
of section 842 and subsections'' after ``subsections'';
(2) by adding at the end of subsection (a)(1) ``and which
pertains to safety''; and
(3) by adding at the end the following new subsection:
``(c) It is an affirmative defense against any proceeding
involving sections 842 (l) through (o) if the proponent
proves by a preponderance of the evidence that the plastic
explosive--
``(1) consisted of a small amount of plastic explosive
intended for and utilized solely in lawful--
``(A) research, development, or testing of new or modified
explosive materials;
``(B) training in explosives detection or development or
testing of explosives detection equipment; or
``(C) forensic science purposes; or
``(2) was plastic explosive which, within three years after
the date of entry into force of the Convention on the Marking
of Plastic Explosives, with respect to the United States,
will be or is incorporated in a military device within the
territory of the United States and remains an integral part
of such military device, or is intended to be, or is
incorporated in, and remains an integral part of a military
device that is intended to become, or has become, the
property of any agency of the United States performing
military or police functions (including any military reserve
component) or the National Guard of any State, wherever such
device is located. For purposes of this subsection, the term
`military device' includes, but is not restricted to, shells,
bombs, projectiles, mines, missiles, rockets, shaped charges,
grenades, perforators, and similar devices lawfully
manufactured exclusively for military or police purposes.''.
SEC. 407. INVESTIGATIVE AUTHORITY.
Section 846 of title 18, United States Code, is amended--
(1) by inserting in the last sentence before the
``subsection'' the phrase ``subsection (m) or (n) of section
842 or;'', and
(2) by adding at the end the following:
``The Attorney General shall exercise authority over
violations of subsections (m) or (n) of section 842 only when
they are committed by a member of a terrorist or
revolutionary group. In any matter involving a terrorist or
revolutionary group or individual,
[[Page S2514]] as determined by the Attorney General, the
Attorney General shall have primary investigative
responsibility and the Secretary shall assist the Attorney
General as requested.''.
SEC. 408. EFFECTIVE DATE.
The amendments made by this title shall take effect one
year after the date of the enactment of this Act.
TITLE V--NUCLEAR MATERIALS
SEC. 501. EXPANSION OF NUCLEAR MATERIALS PROHIBITIONS.
(a)(1) Findings.--The Congress finds and declares--
(A) Nuclear materials, including byproduct materials, can
be used to create radioactive dispersal devices which are
capable of causing serious bodily injury as well as
substantial damage to property and the environment;
(B) The potential use of nuclear materials, including
byproduct materials, enhances the threat posed by terrorist
activities and thereby has a greater effect on the security
interests of the United States;
(C) Due to the widespread hazards presented by the threat
of nuclear contamination, as well as nuclear bombs, the
United States has a strong interest in assuring that persons
who are engaged in the illegal acquisition and use of nuclear
materials, including byproduct materials, are prosecuted for
their offenses;
(D) The threat that nuclear materials will be obtained and
used by terrorist and other criminal organizations has
increased substantially since the enactment in 1982 of the
legislation which implemented the Convention on the Physical
Protection of Nuclear Material, codified at 18 U.S.C. 831;
(E) The successful efforts to obtain agreements from other
countries to dismantle nuclear weapons have resulted in
increased packaging and transportation of nuclear materials,
thereby decreasing the security of such materials by
increasing the opportunity for unlawful diversion and theft;
(F) The illicit trafficking in the relatively more common,
commercially available and useable nuclear and byproduct
materials poses a potential to cause significant loss of life
and/or environmental damage;
(G) Reported trafficking incidents in the early 1990's
suggest that the individuals involved in trafficking these
materials from Eurasia and Eastern Europe frequently
conducted their black market sales of
these materials within the Federal Republic of Germany, the
Baltic States, and to a lesser extent in the Middle
European countries;
(H) The international community has become increasingly
concerned over the illegal possession of nuclear and nuclear
byproduct materials;
(I) The potentially disastrous ramifications of increased
access to nuclear and nuclear byproduct materials pose such a
significant future threat that the United States must use all
lawful methods available to combat the illegal use of such
materials;
(J) The United States has an interest in encouraging United
States corporations to do business in the countries which
comprised the former Soviet Union, as well as in other
developing democracies; protection of such U.S. corporations
from threats created by the unlawful use of nuclear materials
is important to the success of the effort to encourage such
business ventures, and to further the foreign relations and
commerce of the United States;
(K) The nature of nuclear contamination is such that it may
affect the health, environment, and property of U.S.
nationals even if the acts which constitute the illegal
activity occur outside the territory of the United States,
and are primarily directed toward non-U.S. nationals; and
(L) There is presently no federal criminal statute which
provides adequate protection to United States interests from
non-weapons grade, yet hazardous radioactive material, and
from the illegal diversion of nuclear materials which are
held for other than peaceful purposes.
(2) Purpose.--The purpose of the Act is to provide federal
law enforcement the necessary tools and fullest possible
basis allowed under the Constitution of the United States to
combat the threat of nuclear contamination and proliferation
which may result from illegal possession and use of
radioactive materials.
(b) Expansion of Scope and Jurisdictional Bases.--Section
831 of title 18, United States Code, is amended by--
(1) in subsection (a), striking ``nuclear material'' each
time it appears and inserting each time ``nuclear material or
nuclear byproduct material'';
(2) in subsection (a)(1)(A), inserting ``or the
environment'' after ``property'';
(3) amending subsection (a)(1)(B) to read as follows:
``(B)(i) circumstances exist which are likely to cause the
death of or serious bodily injury to any person or
substantial damage to property or the environment; or (ii)
such circumstances are represented to the defendant to
exist;'';
(4) in subsection (a)(6), inserting ``or the environment''
after ``property'';
(5) amending subsection (c)(2) to read as follows:
``(2) an offender or a victim is a national of the United
States or a United States corporation or other legal
entity;'';
(6) in subsection (c)(3), striking ``at the time of the
offense the nuclear material is in use, storage, or
transport, for peaceful purposes, and'';
(7) striking ``or'' at the end of subsection (c)(3);
(8) in subsection (c)(4), striking ``nuclear material for
peaceful purposes'' and inserting ``nuclear material or
nuclear byproduct material'';
(9) striking the period at the end of subsection (c)(4) and
inserting ``; or'';
(10) adding at the end of subsection (c) a new paragraph as
follows:
``(5) the governmental entity under subsection (a)(5) is
the United States or the threat under subsection (a)(6) is
directed at the United States.'';
(11) in subsection (f)(1)(A), striking ``with an isotopic
concentration not in excess of 80 percent plutonium 238'';
(12) inserting at the beginning of subsection (f)(1)(C)
``enriched uranium, defined as'';
(13) redesignating subsections (f)(2)-(4) as (f)(3)-(5);
(14) inserting after subsection (f)(1) the following new
paragraph:
``(2) the term `nuclear byproduct material' means any
material containing any radioactive isotope created through
an irradiation process in the operation of a nuclear reactor
or accelerator;'';
(15) striking ``and'' at the end of subsection (f)(4), as
redesignated;
(16) striking the period at the end of subsection (f)(5),
as redesignated, and inserting a semicolon; and
(17) adding at the end of subsection (f) the following new
paragraphs:
``(6) the term `national of the United States' has the
meaning prescribed in section 101(a) (22) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(22)); and
``(7) the term `United States corporation or other legal
entity' means any corporation or other entity organized under
the laws of the United States or any State, district,
commonwealth, territory or possession of the United
States.''.
TITLE VI--PROCEDURAL AND TECHNICAL CORRECTIONS AND IMPROVEMENTS
SEC. 601. CORRECTION TO MATERIAL SUPPORT PROVISION
Section 120005 of Pub. Law 103-322, September 13, 1994, is
amended to read at the time of its enactment on September 13,
1994, as follows:
``(a) Offense.--Chapter 113A of title 18, United States
Code, is amended by adding the following new section:
``Sec. 2339A. Providing material support to terrorists
``(a) Definition.--In this section, `material support or
resources' means currency or other financial securities,
financial services, lodging, training, safehouses, false
documentation or identification, communications equipment,
facilities, weapons, lethal substances, explosives,
personnel, transportation, and other physical assets, but
does not include humanitarian assistance to persons not
directly involved in such violations.
``(b) Offense.--A person who, within the United States,
provides material support or resources or conceals or
disguises the nature, location, source, or ownership of
material support or resources, knowing or intending that they
are to be used in preparation for, in carrying out, a
violation of section 32, 37, 351, 844(f) or (i), 1114, 1116,
1203, 1361, 1363, 1751, 2280, 2281, 2332, or 2332a of this
title or section 46502 of title 49, or in preparation for or
carrying out the concealment or an escape from the commission
of any such violation, shall be fined under this title,
imprisoned not more than ten years, or both.''.
SEC. 602. EXPANSION OF WEAPONS OF MASS DESTRUCTION STATUTE.
Section 2332a of title 18, United States Code, is amended
by--
(1) in subsection(a), inserting ``threatens,'' before
``attempts or conspires to use, a weapon of mass
destruction'';
(2) by redesignating subsection (b) as subsection (c); and
(3) by adding the following new subsection:
``(b) Any national of the United States who outside of the
United States uses, or threatens, attempts or conspires to
use, a weapons of mass destruction shall be imprisoned for
any term of years or for life, and if death results, shall be
punished by death or imprisonment for any term of years or
for life.''.
SEC. 603. ADDITION OF TERRORIST OFFENSES TO THE RICO STATUTE.
(a) Section 1961(1)(B) of title 18 of the United States
Code is amended by--
(1) inserting after ``Section'' the following: ``32
(relating to the destruction of aircraft), section 37
(relating to violence at international airports), section 115
(relating to influencing, impeding, or retaliating against a
federal official by threatening or injuring a family member),
section '';
(2) inserting after ``section 224 (relating to sports
bribery,'' the following: ``section 351 (relating to
Congressional or Cabinet officer assassination),'';
(3) inserting after ``section 664 (relating to embezzlement
from pension and welfare funds),'' the following: ``section
831 (relating to prohibited transactions involving
nuclear materials), section 844(f) or (i) (relating to
destruction by explosives or fire of government property
or property affecting interstate or foreign commerce),'';
(4) inserting after ``sections 891-894 relating to
extortionate credit transactions),'' the following: ``section
956 (relating to conspiracy to kill, kidnap, maim, or injure
certain property in a foreign country),'';
[[Page S2515]] (5) inserting after ``section 1084 (relating
to the transmission of gambling information),'' the
following: ``section 1111 (relating to murder), section 1114
(relating to murder of United States law enforcement
officials), section 1116 (relating to murder of foreign
officials, official guests, or internationally protected
persons), section 1203 (relating to hostage taking),'';
(6) inserting after ``section 1344 (relating to financial
institution fraud),'' the following: ``section 1361 (relating
to willful injury of government property), section 1363
(relating to destruction of property within the special
maritime and territorial jurisdiction),'';
(7) inserting after ``section 1513 (relating to retaliating
against a witness, victim, or an informant),'' the following:
``section 1751 (relating to Presidential assassination),'';
(8) inserting after ``section 1958 (relating to use of
interstate commerce facilities in the commission of murder-
for-hire),'' the following: ``section 2280 (relating to
violence against maritime navigation), section 2281 (relating
to violence against maritime fixed platforms),''; and
(9) inserting after ``2321 (relating to trafficking in
certain motor vehicles or motor vehicle parts),'' the
following: ``section 2332 (relating to terrorist acts abroad
against United States nationals), section 2332a (relating to
use of weapons of mass destruction), section 2332b (relating
to acts of terrorism transcending national boundaries),
section 2339A (relating to providing material support to
terrorists),''.
(b) Section 1961(1) of title 18 of the United States Code
is amended by striking ``or'' before ``(E)'', and inserting
at the end thereof the following: ``or (F) section 46502 of
title 49, United States Code;''.
SEC. 604. ADDITION OF TERRORISM OFFENSES TO THE MONEY
LAUNDERING STATUTE.
(a) Section 1956(c)(7)(B)(ii) of title 18, United States
Code, is amended by striking ``or extortion;'' and inserting
``extortion, murder, or destruction of property by means of
explosive or fire;''.
(b) Section 1956(c)(7)(D) of title 18, United States Code,
is amended by--
(1) inserting after ``an offense under'' the following:
``section 32 (relating to the destruction of aircraft),
section 37 (relating to violence at international airports),
section 115 (relating to influencing, impeding or retaliating
against a federal official by threatening or injuring a
family member),'';
(2) inserting after ``section 215 (relating to commissions
or gifts for procuring loans),'' the following: ``section 351
(relating to Congressional or Cabinet officer
assassination),'';
(3) inserting after ``section 798 (relating to
espionage),'' the following: ``section 831 (relating to
prohibited transactions involving nuclear materials), section
844(f) or (i) (relating to destruction by explosives or fire
of government property or property affecting interstate or
foreign commerce),'';
(4) inserting after ``section 875 (relating to interstate
communications),'' the following: ``section 956 (relating to
conspiracy to kill, kidnap, maim, or injure certain property
in a foreign country),'';
(5) inserting after ``section 1032 (relating to concealment
of assets from conservator, receiver, or liquidating agent of
financial institution),'' the following: ``section 1111
(relating to murder), section 1114 (relating to murder of
United States law enforcement officials), section 1116
(relating to murder of foreign officials, official guests, or
internationally protected persons),'';
(6) inserting after ``section 1203 (relating to hostage
taking)'' the following: ``, section 1361 (relating to
willful injury of government property), section 1363
(relating to destruction of property within the special
maritime and territorial jurisdiction),'';
(7) inserting after ``section 1708 (relating to theft from
the mail'' the following: ``), section 1751 (relating to
Presidential assassination),'';
(8) inserting after ``2114 (relating to bank and postal
robbery and theft),'' the following: ``section 2280 (relating
to violence against maritime navigation), section 2281
(relating to violence against maritime fixed platforms),'';
and
(9) striking ``of this title'' and inserting the following:
``section 2332 (relating to terrorist acts abroad against
United States nationals), section 2332a (relating to use of
weapons of mass destruction), section 2332b (relating to
international terrorist acts transcending national
boundaries), 2339A (relating to providing material support to
terrorists) of this title, section 46502 of title 49, United
States Code,''.
SEC. 605. AUTHORIZATION FOR INTERCEPTIONS OF COMMUNICATIONS
IN CERTAIN TERRORISM RELATED OFFENSES.
(a) Section 2516(1) of title 18, United States Code, is
amended by--
(1) striking ``and'' at the end of subparagraph (n);
(2) redesignating subparagraph (o) as subparagraph (q); and
(3) inserting these two new paragraphs after paragraph (n):
``(o) any violation of section 956 or section 960 of title
18, United States Code (relating to certain actions against
foreign nations);
``(p) any violation of section 46502 of title 49, United
States Code; and''.
(b) Section 2516(1)(C) of title 18, United States Code, is
amended by inserting before ``or section 1992 (relating to
wrecking trains)'' the following: ``section 2332 (relating to
terrorist acts abroad), section 2332a (relating to weapons of
mass destruction, section 2332b (relating to acts of
terrorism transcending national boundaries), section 2339A
(relating to providing material support to terrorists),
section 37 (relating to violence at international
airports),''.
SEC. 606. CLARIFICATION OF MARITIME VIOLENCE JURISDICTION.
Section 2280(B)(1)(A) of title 18, United States Code, is
amended by--
(1) in clause (ii), striking ``and the activity is not
prohibited as a crime by the State in which the activity
takes place''; and
(2) in clause (iii), striking ``the activity takes place on
a ship flying the flag of a foreign country or outside of the
United States,''.
SEC. 607. EXPANSION OF FEDERAL JURISDICTION OVER BOMB
THREATS.
Section 844(e) of title 18, United States Code, is amended
by--
(1) inserting ``(1)'' before ``Whoever''; and
(2) adding at the end thereof this new paragraph:
``(2) Whoever willfully makes any threat, or maliciously
conveys false information knowing the same to be false,
concerning an attempt or alleged attempt being made, or to be
made to violate subsections (f) or (i) of this section or
section 81 of this title shall be fined under this title or
imprisoned for not more than five years, or both.
SEC. 608. INCREASED PENALTY FOR EXPLOSIVE CONSPIRACIES.
Section 844 of title 18, United States Code, is amended by
adding at the end the following new subsection:
``(n) Except as otherwise provided in this section, a
person who conspires to commit any offense defined in this
chapter shall be subject to the same penalties (other than
the penalty of death) as those prescribed for the offense the
commission of which was the object of the conspiracy.''.
SEC. 609. AMENDMENT TO INCLUDE ASSAULTS, MURDERS, AND THREATS
AGAINST FORMER FEDERAL OFFICIALS ON ACCOUNT OF
THE PERFORMANCE OF THEIR OFFICIAL DUTIES.
Section 115(a)(2) of title 18, United States Code, is
amended by inserting ``, or threatens to assault, kidnap, or
murder, any person who formerly served as a person designed
in paragraph (1), or'' after ``assaults, kidnaps, or murders,
or attempts to kidnap or murder''.
SEC. 610. ADDITION OF CONSPIRACY TO TERRORISM OFFENSES
(a)(1) Section 32(a)(7) of title 18, United States Code, is
amended by inserting ``or conspires'' after ``attempts''.
(2) Section 32(b)(4) of title 18, United States Code, is
amended by inserting ``or conspires'' after ``attempts''.
(b) Section 37(a) title 18, United States Code, is amended
by inserting ``or conspires'' after ``attempts''.
(c)(1) Section 115(a)(1)(A) of title 18, United States Code
is amended by inserting ``or conspires'' after ``attempts''.
(2) Section 115(a)(2) of title 18, United States Code, as
amended by section 609, is further amended by inserting ``or
conspires'' after ``attempts''.
(3) Section 115(b)(2) of title 18, United States Code, is
amended by striking both times it appears ``or attempted
kidnapping'' and inserting both times, ``attempted kidnapping
or conspiracy to kidnap''.
(4) (A) Section 115(b)(3) of title 18, United States Code,
is amended by striking ``or attempted murder'' and inserting,
``attempted murder or conspiracy to murder''.
(B) Section 115(b)(3) of title 18, United States Code, is
further amended by striking ``and 1113'' and inserting,
``1113 and 1117''.
(d) Section 175(a) of title 18, United States Code, is
amended by inserting, ``or conspires to do so,'' after ``any
organization to do so,''.
(e) Section 1203(a) of title 18, United States Code, is
amended by inserting ``or conspires'' after ``attempts''.
(f) Section 2280(a)(1)(H) of title 18, United States Code,
is amended by inserting ``or conspires'' after ``attempts''.
(g) Section 2281(a)(1)(F) of title 18, United States Code,
is amended by inserting ``or conspires'' after ``attempts''.
(h)(1) Section 46502(a)(2) of title 49, United States Code,
is amended by inserting ``or conspires'' after
``attempting''.
(2) Section 46502(b)(1) of title 49, United States Code, is
amended by inserting ``or conspiring to commit'' after
``committing''.
TITLE VII--ANTITERRORISM ASSISTANCE
SEC. 701. FINDINGS.
Congress finds that in order to improve the effectiveness
and cost efficiency of the Antiterrorism Training Assistance
Program, which is administered and coordinated by the
Department of State to increase the antiterrorism
capabilities of friendly countries, more flexibility is
needed in providing trainers and courses overseas and to
provide personnel needed to enhance the administration and
evaluation of the courses.
SEC. 702. ANTITERRORISM ASSISTANCE AMENDMENTS.
Section 573 of chapter 8 (relating to antiterrorism
assistance), of the Foreign Assistance Act of 1961 (22 U.S.C.
2349aa2) is amended by:
(1) striking ``30 days'' in subsection (d)(1)(A) and
inserting in lieu thereof ``180 days'';
(2) striking the ``add'' after subsection (d)(1)(B);
(3) striking subsection (d)(1)(B);
(4) inserting ``and'' after subsection (d)(1)(A);
[[Page S2516]] (5) redesignating subsection (d)(1)(C) as
subsection (d)(1)(B);
(6) amending subsection (d)(2) to read as follows:
``(2) Personnel of the United States Government authorized
to advise foreign countries on antiterrorism matters shall
carry out their responsibilities within the United States
when determined most effective or outside the United States
for periods not to exceed 180 consecutive calendar days.'';
and
(7) striking subsection (f).
____
Section-by-Section Analysis
Section 1.
Section 1 states that the short title for the Act is ``The
Omnibus Counterterrorism Act of 1995.''
Section 2.
Section 2 provides a Table of Contents for the Act.
Section 3.
Section 3 sets forth the congressional findings and
purposes for the Act.
Section 101.
The purpose of section 101 is to provide a more certain and
comprehensive basis for the Federal Government to respond to
future acts of international terrorism carried out within the
United States. The section creates an overarching statute
(proposed 18 U.S.C. 2332b) which would allow the government
to incorporate for purposes of a federal prosecution any
applicable federal or state criminal statute violated by the
terrorist act, so long as the government can establish any
one of a variety of jurisdictional bases delineated in
proposed subsection 2332b(c).
Subsection 101(a) creates a new offense, 18 U.S.C. 2332b,
entitled ``Acts of Terrorism Transcending National
Boundaries.'' This statute is aimed at those terrorist acts
that take place within the United States but which are in
some fashion or degree instigated, commanded, or facilitated
from outside the United States. It does not encompass acts of
street crime or domestic terrorism which are in no way
connected to overseas sources.
Subsection 2332b(a) sets forth the particular findings and
purposes for the provision.
Subsection 2332b(b) sets forth the prohibited acts which
relate to the killing, kidnapping, maiming, assault causing
serious bodily injury, or assault with a dangerous weapon of
any individual (U.S. national or alien) within the United
States. It also covers destruction or damage to any
structure, conveyance of other real or personal property
within the United States. These are the types of violent
actions that terrorist most often undertake. The provision
encompasses any such activity which is in violation of the
laws of the United States or any States, provided a federal
jurisdictional nexus is present.
Subsection 2332b(c) sets forth the jurisdictional bases.
Except for subsections (c) (6) and (7), these bases are a
compilation of jurisdictional elements which are presently
utilized in federal statutes and which have been approved by
the courts.
Paragraph (1) covers the situation where the offender
travels in commerce. Cf. 18 U.S.C. 1952.
Paragraph (2) covers the situation where the mails or a
facility utilized in any manner in commerce is used to
further the commission of the offense or to effectuate an
escape therefrom. Cf. 18 U.S.C. 1951.
Paragraph (3) covers the situation where the results of
illegal conduct affect commerce. Cf. 18 U.S.C. 1365(c).
Paragraph (4) covers the situation where the victim is a
federal official. Cf. 18 U.S.C. 115, 1114, 351, 1751. The
language includes both civilians and military personnel.
Moreover, it also covers any ``agent'' of a federal agency.
Cf. 18 U.S.C. 1114 (i.e., assisting agent of customs or
internal revenue) and 1121. It covers all ranches of
government, including members of the military services, as
well as all independent agencies of the United States.
Paragraph (5) covers property used in commerce (cf. 18
U.S.C. 844(i)), owned by the United States (cf. 18 U.S.C.
1361), owned by an institution receiving federal financial
assistance (cf. 18 U.S.C. 844(f)) or insured by the federal
government (cf. 18 U.S.C. 2113).
Paragraph (6) provides a jurisdictional base which has not
been tested. It should, however, fall with the federal
government's commerce power. It is included to avoid the
construction, given to many federal interstate commerce
statutes, that a ``commercial'' aspect is required. Paragraph
(6) would cover both business and personal travel.
Paragraph (7) covers situations where the victim or
perpetrator is not a national of the United States. The
victimization of an alien in a terrorist attack has the
potential of affecting the relations of the United States
with the country of criminal jurisdiction on the involvement
of an alien as the perpetrator or victim. E.q., see 18 U.S.C.
1203 and 1116. In addition, aliens are a special
responsibility of the federal government, as it is involved
in admitting aliens, establishing the conditions for their
presence, adjusting them to resident alien status, deporting
aliens for violating the immigration laws, and eventually
naturalizing aliens as citizens.
Paragraphs (8) and (9) cover the territorial seas of the
United States and other places within the special maritime
and territorial jurisdiction of the United States that are
located within the United States (cf. 18 U.S.C. 7).
Jurisdiction exists over the prohibited activity if at
least one of the jurisdictional elements is applicable to one
perpetrator. When jurisdiction exists for one perpetrator, it
exists over all perpetrators even those who were never within
the United States.
Subsection (d) sets forth stringent penalties. These
penalties are mandatorily consecutive to any other term of
imprisonment which the defendant might receive. Consecutive
sentences for ``identical'' offenses brought in the same
prosecution are constitutionally permissible. See Missouri v.
Hunter, 459 U.S. 359, 367 (1983). However, there is no
statutory mandatory minimum. The court is given the
discretion to decide the penalty for this offense under the
sentencing guidelines.
Subsection (e) limits the prosecutorial discretion of the
Attorney General. Before an indictment is sought under
section 2332b, the Attorney General, or the highest ranking
subordinate of the Attorney General with responsibility for
criminal prosecutions, must certify that in his or her
judgment the violation of section 2332b, or the activity
preparatory to its commission, transcended national
boundaries. This means that the Attorney General must
conclude that some connection exists between the activities
and some person or entity outside the United States.
Moreover, the certification must find that the offense
appears to have been intended to coerce, intimidate, or
retaliate against a government or civilian population. This
is similar to the certification requirement for ``terrorism''
found in 18 U.S.C. 2332(d). The term ``civilian population''
includes any segment thereof and, accordingly, is consistent
with the Congressionally intended scope of section 2332(d).
The certification requirement ensures that the statute will
only be used against terrorists with overseas connections.
Section 2332b is not aimed at purely domestic terrorism or
against normal street crime as current law, both federal and
state, appears to adequately address these areas. The
certification of the Attorney General is not an element of
the offense and, except for verification that the
determination was made by an authorized official, is not
subject to judicial review.
Subsection (f) states that the Attorney General shall
investigate this offense and may request assistance from any
other federal, state, or local agency including the military
services. This latter provision, also found in several other
statutes, see e.g., 18 U.S.C. 351(g) and 1751(i), is intended
to overcome the restrictions of the posse comitatus statute,
18 U.S.C. 1385. It is not intended to give intelligence
agencies, such as the Central Intelligence Agency, any
mission that is prohibited by their charters.
Pursuant to 28 C.F.R. 0.85(a), the Attorney General
automatically delegates investigative responsibility over
this offense to the Director of the Federal Bureau of
Investigation (FBI). Moreover, under 28 C.F.R. 0.85(l) the
FBI has been designated as the lead federal law enforcement
agency responsible for criminal investigation of terrorism
within the United States. While local and state authorities
retain their investigative authority under their respective
laws, it is expected that in the event of major terrorist
crimes such agencies will cooperate, consult, coordinate and
work closely with the FBI, as occurred in the investigation
of the World Trade Center bombing in New York City.
Subsection (g) makes express two points which are normally
inferred by courts under similar statutes, namely, that no
defendant has to have knowledge of any jurisdictional base
and that only the elements of the state offense and not any
of its provisions pertaining to procedures or evidence are
adopted. Federal rules of evidence and procedure control any
case brought under section 2332b.
Subsection (h) makes it clear that there is
extraterritorial jurisdiction to reach defendants who were
involved in crimes but who never entered the United States.
Subsection (i) sets forth definitions, many of which
specifically incorporate definitions from elsewhere in the
federal code, e.g., the definition of ``territorial sea'' in
18 U.S.C. 2280(e).
Subsection 101(b) makes a technical amendment to the
chapter analysis for Chapter 113B of title 18, United States
Code.
Subsection 101(c) amends 18 U.S.C. 3286, which was created
by section 120001 of Pub. Law 103-322. Section 3286 is
designed to extend the period of limitation for a series of
enumerated terrorism offenses from five to eight years. The
wording of the section, however, gives rise to a potential
interpretation that, with respect to violations of the
enumerated offenses that are capital crimes, the same eight-
year period applies rather than the unlimited period that
previously applied and continues to apply to capital offenses
under 18 U.S.C. 3281. Section 3286's introductory language is
as follows:
``Notwithstanding section 3282, no person shall be
prosecuted, tried, or punished for any offense involving a
violation of'' the enumerated provisions of law (emphasis
supplied).
It seems clear that Congress did not intend to reduce the
limitations period for offenses under the enumerated statutes
that are capital due to the killing of one or more victims.
Rather, the intent was (as the title of the section 120001
provision indicates) to enlarge the applicable limitation
period for non-capital violations of the listed offenses.
Accordingly, the proposed amendment would insert ``non-
capital'' after ``any'' in the above-quoted phrase. Notably,
the drafters
[[Page S2517]] were careful to include the word ``non-
capital'' when effecting a similar period of limitations
extension applicable to arson offenses under 18 U.S.C. 844(i)
in section 320917 of the Pub. L. 103-322.
Subsection 101(c) also corrects certain erroneous statutory
references in section 3286 (i.e., changes ``36'' to ``37'',
``2331'' to ``2332'' and ``2339'' to ``2332a''). Finally, the
subsection adds to section 3286 the new 18 U.S.C. 2332b.
Subsection 101(d) amends section 3142(e) of title 18,
United States Code, to insure that a defendant arrested for a
violation of the new 18 U.S.C. 2332b is presumed to be
unreleasable pending trial. The factors, most likely to be
present i.e., an alien perpetrator who is likely to flee and
who is working on behalf of or in concert with a foreign
organization, makes such an individual unsuitable for release
pending trial. This presumption, which is subject to
rebuttal, will limit the degree of sensitive evidence that
the Government must disclose to sustain its burden to deny
release.
Subsection 101(e) amends the ``roving'' provision in the
wiretap statute (18 U.S.C. 2518(11)(b)(ii)) so that it can be
applied to violations of new 18 U.S.C. 2332b even in the
absence of a showing of intent to thwart detection. The
development of evidence of such intent could cause a delay
which, in the content of a section 2332b violation, could
have catastrophic consequences. Further, the secrecy and
clandestine movement of terrorists make it extremely
difficult to develop advance knowledge of which precise
telephones they will use.
section 102.
Section 102 is designed to complement section 101 of this
bill concerning terrorist acts within the United States
transcending national boundaries. Just as a better basis for
addressing crimes carried out within the United States by
international terrorists is needed, it also is appropriate
that there should be an effective federal basis to reach
conspiracies undertaken in part within the United States for
the purpose of carrying out terrorist acts in foreign
countries.
Section 102 covers two areas of activity involving
international terrorists. The first is conspiracy in the
United
States to murder, kidnap, or maim a person outside of the
United States. The second is conspiracy in the United
States to destroy certain critical types of property, such
as public buildings and conveyances, in foreign countries.
The term conveyance would include cars, buses, trucks,
airplanes, trains, and vessels.
Subsection 102(a) amends current 18 U.S.C. 956 in several
ways. It creates a new subsection 956(a) which proscribes a
conspiracy in the United States to murder, maim, or kidnap a
person outside of the United States. The new section fills a
void in the law that exists. Currently, subsection 956(a)
only prohibits a conspiracy in the United States to commit
certain types of property crimes in a foreign country with
which the United States is at peace. It does not cover
conspiracy to commit crimes against the person.
Subsection 102(a) thus expands on the current section 956
so that new subsection 956(a) covers conspiracy to commit one
of the three listed serious crimes against any person in a
foreign country or in any place outside of the jurisdiction
of the United States, such as on the high seas. This type of
offense is committed by terrorists and the new subsection
956(a) is intended to ensure that the government is able to
punish those persons who use the United States as a base in
which to plot such a crime to be carried out outside the
jurisdiction of the United States.
New subsection 956(a) would apply to conspiracies to commit
one of the enumerated offenses where at least one of the
conspirators is inside the United States. The other member or
members of the conspiracy would not have to be in the United
States but at least one overt act in furtherance of the
conspiracy would have to be committed in the United States.
The subsection would apply, for example, to two individuals
who consummated an agreement to kill a person in a foreign
country where only one of the conspirators was in the United
States and the agreement was reached by telephone
conversations or letters, provided at least one of the overt
acts were undertaken by one co-conspirator while in the
United States. In such a case, the agreement would be reached
at least in part in the United States. The overt act may be
that of only one of the conspirators and need not itself be a
crime.
Subsection 102(a) also re-enacts current section 956(a) of
title 18 (dealing with a conspiracy in the United States to
destroy property in a foreign country) as subsection 956(b),
and expands its coverage to other forms of property. The
revision adds the terms ``airport' and ``airfield'' to the
list of ``public utilities'' presently set out in section
956(a), since they are particularly attractive targets for
terrorists. New subsection 956(b) also adds public
conveyances (e.g., buses), public structures, and any
religious, educational or cultural property to the list of
targets. This makes it clear that the statute covers a
conspiracy to destroy any conveyance on which people travel
and any structure where people assemble, such as a store,
factory or office building. It also covers property used for
purposes of tourism, education, religion or entertainment.
Accordingly, the words ``public utility'' do not limit the
statute's application to a conspiracy to destroy only such
public utility property as transportation lines or power
generating facilities.
Consequently, as amended, 18 U.S.C 956 reaches those
individuals who have conspired within the United States to
commit the violent offenses overseas and who solicit money in
the United States to facilitate their commission. Moreover,
monetary contributors who have knowledge of the conspiracy's
purpose are coconspirators subject to prosecution.
Subsection 102(a) also increases the penalties in current
18 U.S.C. 956(a). The new penalties are comparable to those
proposed in section 101 of the bill for the new 18 U.S.C.
2332b. Finally, subsection 102(a) eliminates the requirement
that is currently found in 18 U.S.C. 956(b) of naming in the
indictment the ``specific property'' which is being targeted,
as this requirement may be difficult to establish in the
context of a terrorism conspiracy which does not result in a
completed offense. Additionally, even in a completed
conspiracy, the parties may, after agreeing that a category
of property or person will be targeted, leave the actual
selection of the particular target to their conspirators on
the ground overseas. Hence, while an indictment must always
describe its purposes with specificity, it need not allege
all specific facts, especially those that were formulated at
a subsequent time or which may not be completely known to
some of the participants.
Section 956 is contained in chapter 45 of title 18, United
States Code, relating to interference with the foreign
relations of the United States. It is not intended to apply
to duly authorized actions undertaken on behalf of the United
States Government. Chapter 45 covers those individuals who,
without appropriate governmental authorization, engage in
prohibited conduct that is harmful to the foreign relations
of the United States.
section 103
This section would correct a failure to execute fully our
treaty obligations and would, in addition, clarify and expand
federal jurisdiction over certain overseas acts of terrorism
affecting United States interests.
Subsection 103(a) would amend 49 U.S.C. 46502(b) (former
section 902(n) of the Federal Aviation Act of 1958, as
amended (49 U.S.C. App. 1472(n)). Section 46502(b) currently
covers those aircraft piracies that occur outside the
``special aircraft jurisdiction of the United States,'' as
defined in 49 U.S.C. 46501(2). It, therefore, applies to
hijackings of foreign civil aircraft which never enter United
States airspace. As a State Party to the 1970 Hague
Convention for the Suppression of Unlawful Seizure of
Aircraft, the United States has a treaty obligation to
prosecute or extradite such offenders when they are found in
the United States. This measure is based on the universal
jurisdiction theory. See United States v. Yunis, 924 F.2d
1086 (D.C. Cir. 1991). However, the present statute fails to
make clear when federal criminal jurisdiction commences with
respect to such air piracies, absent the actual presence
within the United States of one of the perpetrators.
Paragraph (a)(1) would establish clear federal criminal
jurisdiction over those foreign aircraft hijackings where
United States nationals are victims or perpetrators. While
the Hague Convention does not mandate that State Parties
criminalize those situations involving their nationals as
victims or perpetrators, it does allow State Parties to
assert extraterritorial jurisdiction on the basis of the
passive personality principle. See Paragraph 3 of Article 4.
In addition, other recent international conventions dealing
with terrorism, such as the United Nations Convention Against
the Taking of Hostages and the International Maritime
Organization Convention for the Suppression of Unlawful Acts
Against the Safety of Maritime Navigation, mandate criminal
jurisdiction by a State Party when its national is a
perpetrator and permit the assertion of jurisdiction when its
national is a victim of an offense prohibited by those
conventions. Further, experience has shown that it is often
the country whose nationals were victims of the hijacking
which is willing to commit the necessary resources to locate,
prosecute, and incarcerate the perpetrators for a period of
time commensurate with their criminal acts. For those foreign
civil aircraft hijackings involving no United States
nationals as victims or perpetrators, section 46502 would
continue to carry out the U.S. obligation under the
Convention to prosecute or extradite an alien perpetrator who
was subsequently found in the United States.
Under the clarified statute, subject matter jurisdiction
over the offense would vest whenever a United States national
was on a hijacked flight or was the perpetrator of the
hijacking. Where a United States national is the perpetrator,
all perpetrators, including non-U.S. nationals, would be
subject to indictment for the offense, since these non-
national defendants would be either principals or aiders and
abettors within the meaning of 18 U.S.C. 2.
Paragraph (a)(2) amends 49 U.S.C. 46502(b)(2) to set forth
the three different subject matter jurisdictional bases. It
has the effect of repealing the current provision which
failed to fully execute our treaty obligation. Presently,
paragraph 46502(b)(2) reads: ``This subsection applies only
if the place of takeoff or landing of the aircraft on which
the individual commits the
offense is located outside the territory of the country of
registration of the aircraft.'' Paragraph (b)(2) was
intended to reflect paragraph 3 of Article 3 of the Hague
Convention, which
[[Page S2518]] states that the convention normally applies
``only if the place of take-off or the place of actual
landing of the aircraft on which the offense is committed is
situated outside the territory of the State of registration
of that aircraft.'' However, the authors of the original
legislation apparently overlooked the obligation imposed by
paragraph 5 of Article 3 of the Convention which applies when
the alleged aircraft hijacker is found in the territory of a
State Party other than the State of registration of the
hijacked aircraft. Paragraph 5 states: ``Notwithstanding
paragraphs 3 and 4 of this Article, Article 6, 7, 8 and 10
shall apply whatever the place of take-off or the place of
actual landing of the aircraft, if the offender or the
alleged offender is found in the territory of a State other
than the State of registration of that aircraft.''
For example, under the Hague Convention, the hijacking of
an Air India flight that never left India is not initially
covered by the Convention. (Article 3, paragraph 3.) However,
the subsequent travel of the offender from India to the
jurisdiction of another State Party triggers treaty
obligations. Paragraph 5 makes the obligation of Article 7,
to either prosecute or extradite an alleged offender found in
a party's territory, applicable to a hijacker of a purely
domestic air flight who flees to another State.
Paragraph (a)(3) creates a new section 46502(b)(3) which
provides a definition of ``national of the United States''
that has been used in other terrorism provisions, see, e.g.,
18 U.S.C. 2331(2) and 3077(2)(A).
Subsection 103(b) amends section 32(b) of title 18, United
States Code. Presently, section 32(b) carries out the treaty
obligation of the United States, as a State Party to the
Montreal Convention for the Suppression of Unlawful Acts
Against the Safety of Civil Aviation, to prosecute or
extradite offenders found in the United States who have
engaged in certain acts of violence directed against foreign
civil aircraft located outside the United States. The
proposed amendment would fully retain current jurisdiction
and would establish additional jurisdiction where a United
States national was the perpetrator or a United States
national was on board such aircraft when the offense was
committed. Because subsection 32(b)(3) of title 18, United
States Code, covers the placement of destructive devices upon
such aircraft and a ``victim'' does not necessarily have to
be on board the aircraft at the time of such placement, the
phrase ``or would have been on board'' has been used. In such
instances, the prosecution would have to establish that a
United States national would have been on board a flight that
such aircraft would have undertaken if the destructive device
had not been placed thereon.
Subsection 103(b) is drafted in the same manner as
paragraph (a)(2), above, so that once subject matter
jurisdiction over the offense vests, all the perpetrators of
the offense are subject to indictment for the offense.
Subsections 103(c), (d), (e) and (f) would amend 18 U.S.C.
1116 (murder), 112 (assault), 878 (threats), and 1201
(kidnapping), respectively. The primary purpose of these
proposed amendments is to extend federal jurisdiction to
reach United States nationals, or those acting in concert
with such a national, who commit one of the specified
offenses against an internationally protected person located
outside of the United States. The invocation of such
jurisdiction under U.S. law is required by the Convention on
the Prevention and Punishment of Crimes Against
Internationally Protected Persons, including diplomatic
agents. It was apparently omitted as an oversight when the
implementing federal legislation was enacted in 1976 (P.L.
94-467).
Additionally, the provisions would also clarify existing
jurisdiction. The language used in the first sentence of
sections 1116(e), 112(e), 878(d), and 1201(e) is ambiguous as
pertains to instances in which the victim is a United States
diplomat. The first sentence in each of these provisions now
reads: ``If the victim of an offense under subsection (a) is
an internationally protected person, the United States may
exercise jurisdiction over the offense if the alleged
offender is present within the United States, irrespective of
the place where the offense was committed or the nationality
of the victim or the alleged offender.''
This sentence could be read to require the presence of the
offender in the United States even when the internationally
protected person injured overseas was a United States
diplomat. This would be anomalous and was likely not
intended. Accordingly, subsections (c)-(f) rewrite the first
sentence to read as follows:
``If the victim of an offense under subsection (a) is an
internationally protected person outside the United States,
the United States may exercise jurisdiction over the offense
if (1) the victim is a representative, officer, employee, or
agent of the United States, (2) an offender is a national of
the United States, or (3) an offender is afterwards found in
the United States.''
The provision is drafted, in the same manner as the
aircraft piracy and aircraft destruction measures, so that
once subject matter jurisdiction over the offense is vested,
all the perpetrators of the offense would be subject to
indictment for the offense.
Subsections 103(c)-(f) also would incorporate in an
appropriate manner the definition of ``national of the United
States'' in sections 1116, 112, 878, and 1201 of title 18.
Subsection 103(g) contains an amendment similar in nature
to those in the preceding subsections. It expands federal
jurisdiction over extraterritorial offenses involving
violence at international airports under 18 U.S.C. 37. That
provision, enacted as section 60021 of Public law 103-322,
presently reachers such crimes committed outside the United
States only when the offender is later found in the United
States. There is, however, good reasons to provide for
federal jurisdiction over such terrorist crimes when an
offender or a victim is a United States national. In such
circumstances the interests of the United States are equal
to, if not greater than, the circumstance where neither the
victim nor the offender is necessarily a United States
national but the offender is subsequently found in this
country.
Subsection 103(h) adds the standard definition of the term
``national of the United States'' to 18 U.S.C. 178. This term
is used earlier in the chapter (in 18 U.S.C. 175(a), which
provides for extraterritorial jurisdiction over crimes
involving biological weapons ``committed by or against a
national of the United States'') but no definition is
provided.
section 201
In recent years, the Department of Justice has obtained
considerable evidence of involvement in terrorism by aliens
in the United States. Both legal aliens, such as lawful
permanent residents and aliens here on student visas, and
illegal aliens are known to have aided and to have received
instructions regarding terrorist acts from various
international terrorist groups. While many of these aliens
would be subject to deportation proceedings under the
Immigration and Nationality Act (INA), these proceedings
present serious difficulties in cases involving classified
information. Specifically, these procedures do not prevent
disclosure of classified information where such disclosure
would pose a risk to national security. Consequently, section
201 sets out a new title in the INA devoted exclusively to
the removal of aliens involved in terrorist activity where
classified information is used to sustain the grounds for
deportation.
The new title would create a special court, patterned after
the special court created under the Foreign Intelligence
Surveillance Act (50 U.S.C. 1801 et seq.). When the
Department of Justice believes that it has identified an
alien in the United States who has engaged in terrorist
activity, and that to afford such an alien a deportation
hearing would reveal classified national security
information, it could seek an ex parte order from the court.
The order would authorize a formal hearing, called a special
removal hearing, before the same court, at which the
Department of Justice would seek to prove by clear and
convincing evidence that the alien had in fact engaged in
terrorist activity. At the hearing, classified evidence could
be presented in camera
and not revealed to the alien or the public, although its
general nature would normally be summarized.
Enactment of section 201 would provide a valuable new tool
with which to combat aliens who use the United States as a
base from which to launch or fund terrorist attacks either on
U.S. citizens or on persons in other countries. It is a
carefully measured response to the menace posed by alien
terrorists and fully comports with and exceeds all
constitutional requirements applicable to aliens.
Subsection 201(a) sets out findings that aliens are
committing terrorist acts in the United States and against
United States citizens and interests and that the existing
provisions of the INA providing for the deportation of
criminal aliens are inadequate to deal with this threat.
These findings are in addition to the general findings
contained in section 3 of the bill. The findings explain that
these inadequacies arise primarily because the INA,
particularly in its requirements pertaining to deportation
hearings, may require disclosure of classified information.
The findings are important in explaining Congressional
intent and purpose. As noted above, section 201 creates an
entirely new type of hearing to determine whether aliens
believed to be terrorists should be removed from the United
States. At such a ``special removal hearing,'' the government
would be permitted to introduce in camera and ex parte
classified evidence that the alien has engaged in terrorist
activity. Such hearings would be held before Article III
judges. The in camera and ex parte portion of the hearing
would relate to classified information which, if provided to
the alien or otherwise made public, would pose a risk to
national security. Such an extraordinary type of hearing
would be invoked only in a very small percentage of
deportation cases, and would be applicable only in those
cases in which an Article III judge has found probable cause
to believe that the aliens in question are involved in
terrorist activity. Although the bill provides the alien many
rights equal to--and in some respects greater than--those
enjoyed by aliens in ordinary deportation proceedings, the
rights specified for aliens subject to a special removal
hearing are deemed exclusive of any rights otherwise afforded
under the INA.
It is within the power of Congress to provide for a special
adjudicatory proceeding and to specify the procedural rights
of aliens involved in terrorist acts. The Supreme Court has
noted that ``control over matters of immigration is a
sovereign prerogative, largely within the control of the
Executive and the Legislature. . . . The role of the
judiciary is limited to determining whether the procedures
meet the essential standard
[[Page S2519]] of fairness under the Due Process Clause and
does not extend to imposing procedures that merely displace
congressional choices of policy.'' Landon v. Plasencia, 459
U.S. 21, 34-35 (1982). Moreover, Congress can specify what
type of process is due different classes of aliens. ``(A)
host of constitutional and statutory provisions rest on the
premise that a legitimate distinction between citizens and
aliens may justify attributes and benefits for one class not
accorded to the other; and the class of aliens itself is a
heterogeneous multitude of persons with a wide-ranging
variety of ties to this country.'' Matthews v. Diaz, 426 U.S.
67, 78-79 (1976). Because the Due Process Clause does not
require ``that all aliens must be placed in a single
homogeneous legal classification,'' id., Congress can provide
separate processes and procedures for determining whether to
remove resident and non-nonresident alien terrorists.
Subsection 201(b) adds a new title V to the INA to provide
a special process for removing alien terrorists when
compliance with normal deportation procedures might adversely
affect national security interests of the United States.
However, the new title V is not the only way of expelling
alien terrorists from the United States. In addition to
proceedings under the new special removal provisions, aliens
falling within 8 U.S.C. 1251(a)(4)(B) alternatively could be
deported following a regular deportation hearing. Moreover,
like all other aliens, alien terrorists remain subject to
possible expulsion for any of the remaining deportation
grounds specified in section 241 of the Act (8 U.S.C. 1251).
For example, alien terrorists who violate the criminal laws
of the United States remain subject to ``ordinary''
deportation proceedings on charges under INA section
241(a)(2). The special removal provisions augment, without in
any narrowing, the prosecutorial options in cases of alien
terrorists.
The new title V consists of four new sections of the INA,
sections 501-504 (8 U.S.C. 1601-1604). Briefly, the title
provides for creation of a special court comprised of Article
III judges, patterned after the special court created under
the Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et
seq.). When the Department of Justice believes it has
identified an alien terrorist, that is, an alien who falls
within 8 U.S.C. 1251(a)(4)(B), and determines that to
disclose the evidence of that fact to the alien or the public
would compromise national security, the Department may seek
an order from the special court. The order would authorize
the Department to present the classified portion of its
evidence that the alien is a terrorist in camera and ex parte
at a special removal hearing. The classified portion of the
evidence would be received in chambers with only the court
reporter, the counsel for the government, and the witness or
document present. The general nature of such evidence,
without identifying classified or sensitive particulars,
would than normally be revealed to the alien, his counsel,
and the public in summarized form. The summary would have to
be found by the court to be sufficient to permit the alien to
prepare a defense.
Where an adequate summary, as determined by the court,
would pose a risk to national security, and, hence,
unavailable to the alien, the special hearing would be
terminated unless the court found that (1) the continued
presence of the alien in the United States or (2) the
preparation of the adequate summary would likely cause
serious and irreparable harm to the national security or
death or serious bodily injury to any person. If such a
situation exits, the special removal hearing would continue,
the alien would not receive a summary, and the relevant
classified information could be introduced against the alien
pursuant to subsection (j).
If, at the conclusion of the hearing, the judge finds that
the government has established by clear and convincing
evidence that the alien has engaged in terrorist activity,
the judge would order the alien removed from the United
States. The alien could appeal the decision to the United
States Court of Appeals for the District of Columbia Circuit,
and ultimately could petition for a writ of certiorari to the
Supreme Court.
Use of information that is not made available to the alien
for reasons of national security is a well-established
concept in the existing provisions of the INA and immigration
regulations. For example, section 235(c) provides for an
expedited exclusion process for aliens excludable under 8
U.S.C. 1182(a)(3) (providing for the exclusion, inter alia,
of alien spies, saboteurs, and terrorists), and states in
relevant part:
``If the Attorney General is satisfied that the alien is
excludable under [paragraph 212(a)(3)] on the basis of
information of a confidential nature, the disclosure of which
the Attorney General, in his discretion, and after
consultation with the appropriate security agencies of the
Government, concludes would be prejudicial to the public
interest, safety, or security, he may in his discretion order
such alien to be excluded and deported without any inquiry or
further inquiry by [an immigration judge].''
Thus, where it is necessary to protect sensitive
information, existing law authorizes the Attorney General to
conduct exclusion proceedings outside the ordinary
immigration court procedures and to rely on classified
information in ordering the exclusion of alien terrorists.
In the deportation context, 8 C.F.R. 242.17 (1990) provides
that in determining whether to grant discretionary relief to
an otherwise deportable alien, the immigration judge--
``May consider and base his decision on information not
contained in the record and not made available for inspection
by the [alien], provided the Commissioner has determined that
such information is relevant and
is classified under Executive Order No. 12356 (47 FR 14874,
April 6, 1982) as requiring protection from unauthorized
disclosure in the interest of national security.''
The constitutionality of this provision has been upheld.
Suciu v. INS, 755 F.2d 127 (8th Cir. 1985). The alien in that
case had been in the United States for 16 years and had
become deportable for overstaying his student visa, a
deportation ground ordinarily susceptible to discretionary
relief. Nevertheless, the court held that it was proper to
deny the alien discretionary relief without disclosing to him
the reasons for the denial. Sucia followed the Supreme
Court's holding sustaining the constitutionality of a similar
predecessor regulation in Jay v. Boyd, 351 U.S. 345 (1956).
Section 501 (Applicability)
Section 501 sets forth the applicability of the new title.
Section 501(a) states that the title may, but need not, be
employed by the Department of Justice whenever it has
information that an alien is subject to deportation because
he is an alien described in 8 U.S.C. 1251(a) (4)(B), that is,
because he has engaged in terrorist activity.
Section 501(b) provides that whenever an official of the
Department of Justice determines to seek the expulsion of an
alien terrorist under the special removal provisions, only
the provisions of the new title need be followed. This
ensures that such an alien will not be deemed to have any
additional rights under the other provisions of the INA.
Except when specifically referenced in the special removal
provisions, the remainder of the INA would be inapplicable.
For example, under the special removal provisions an alien
who has entered the United States (and thus is not
susceptible to exclusion proceedings) need not be given a
deportation hearing under section 242 of the Act, 8 U.S.C.
1252, and will not have available the rights generally
afforded aliens in deportation proceedings (e.g., the
opportunity for an alien out of status to correct his
status).
Section 501(c) states that Congress has enacted the title
upon finding that alien terrorists represent a unique threat
to the security interests of the United States. Consequently,
the subsection states Congress' specific intent that the
Attorney General be authorized to remove such aliens without
resort to a traditional deportation hearing, following an ex
parte judicial determination of probable cause to believe
they have engaged in terrorist activity and a further
judicial determination, following a modified adversarial
hearing, that the Department of Justice has established by
clear and convincing evidence that the aliens in fact have
engaged in terrorist activity.
Section 501(c) is designed to make clear that singling out
alien terrorists for a special type of hearing rather than
according them ordinary deportation hearings is a careful and
deliberate policy choice by a political branch of government.
This policy choice is grounded upon the legislative
determination that alien terrorists seriously threaten the
security interests of the United States and that the existing
process for adjudicating and effecting alien removal is
inadequate to meet this threat. In accordance with settled
Supreme Court precedent, such a choice is well within the
authority of the political branches of government to control
our relationship with and response to aliens.
For example, in Mathews v. Diaz, supra, the Court held that
Congress could constitutionally provide that only some aliens
were entitled to Medicare benefits. The Court held that it
was ``unquestionably reasonable for Congress to make an
alien's eligibility depend on both the character and duration
of his residence,'' and noted that the Court was ``especially
reluctant to question the exercise of congressional
judgment'' in matters of alien regulation. 426 U.S. at 83,
84; see Fiallo v. Bell, 430 U.S. 787, 792 (1977) (describing
the regulation of aliens as a political matter ``largely
immune from judicial control''). The specific findings and
reference to the intent in adopting the new provisions of
title V make clear the policy judgment that alien terrorists
should be treated as a separate class of aliens and that this
choice should not be disturbed by the courts.
Section 502 (Special Removal Hearing)
Section 502 sets out the procedure for the special removal
hearing. Section 502(a) provides that whenever the Department
of Justice determines to use the special removal process it
must submit a written application to the special court
(established pursuant to section 503) for an order
authorizing such procedure. Each application must indicate
that the Attorney General or Deputy Attorney General has
approved its submission and must include the identity of the
Department attorney making the application, the identity of
the alien against whom removal proceedings are sought, and a
statement of the facts and circumstances relied upon by the
Department of Justice as justifying the belief that the
subject is an alien terrorist and that following normal
deportation procedures would pose a risk to the national
security of the United States.
Section 502(b) provides that applications for special
removal proceedings shall be filed under seal with the
special court established pursuant to section 503. At or
after the time the application is filed, the Attorney General
may take the subject alien into custody. The
[[Page S2520]] Attorney General's authority to retain the
alien in custody is governed by the provisions of new title V
which, as explained below, provide in certain circumstances
for the release of the alien.
Although title V does not require the Attorney General to
take the alien subject to special removal applications into
custody, it is expected that most such aliens will be
apprehended and confined. The Attorney General's decision
whether to take a non-resident alien into custody will not be
subject to judicial review. However, a resident alien is
entitled to a release hearing before the judge assigned by
the special court. The resident alien may be released upon
such terms and conditions prescribed by the court (including
the posting of any monetary amount), if the alien
demonstrates to the court that the alien, if released, is not
likely to flee and that the alien's release will not endanger
national security or the safety of any person or the
community. Subsequent provisions (section 504(a)) authorize
the Attorney General to retain custody of alien terrorists
who have been ordered removed until such aliens can be
physically delivered outside our borders.
Section 502(c) provides that special removal applications
shall be considered by a single Article III judge in
accordance with section 503. In each case, the judge shall
hold an ex parte hearing to receive and consider the written
information provided with the application and such other
evidence, whether documentary or testimonial in form, as the
Department of Justice may proffer. The judge shall grant an
ex parte order authorizing the special removal hearing as
provided under title V if the judge finds that, on the basis
of the information and evidence presented, there is probable
cause to believe that the subject of the application is an
alien who falls within the definition of alien terrorist and
that adherence to the ordinary deportation procedures would
pose a risk to national security.
Section 502(d)(1) provides that in any case in which a
special removal application is denied, the Department of
Justice within 20 days may appeal the denial to the United
States Court of Appeals for the District of Columbia Circuit.
In the event of a timely appeal, a confined alien may be
retained in custody. When the Department of Justice appeals
from the denial of a special removal application, the record
of proceedings will be transmitted to the Court of Appeals
under seal and the court will hear the appeal ex parte.
Subsequent provisions (section 502(p)) authorize the
Department of Justice to petition the Supreme Court for a
writ of certiorari from an adverse appellate judgment.
Section 502(d)(2) provides that if the Department of
Justice does not seek appellate review of the denial of a
special removal application, the subject alien must be
released from custody unless, as a deportable alien, the
alien may be arrested and taken into custody pursuant to
title II of the INA. Thus, for example, when the judge finds
that the special procedures of title V are unwarranted but
the alien is subject to deportation as an overstay or for
violation of status, the alien might be retained in custody
but such detention would be pursuant to and governed by the
provisions of title II.
Subsection 502(d)(3) provides that if a special removal
application is denied because the judge finds no probable
cause that the alien has engaged in terrorist activities, the
alien must be released from custody during the pendency of an
appeal by the government. However, section 502(d)(3) is
similar to section 502(d)(2) in that it provides for the
possibility of continued detention in the case of aliens who
otherwise are subject to deportation under title II of the
Act.
Section 502(d)(4) applies to cases in which the judge finds
probable cause that the subject of a special removal
application has been correctly identified as an alien
terrorist, but fails to find probable cause that use of the
special procedures are necessary for reasons of national
security, and the Department of Justice determines to appeal.
A finding that the alien has engaged in terrorist activity--a
ground for deportation that would support confinement under
title II of the Act--justifies retaining the alien in
custody. Nevertheless, section 502(d)(4) provides that the
judge must determine the question of custody based upon an
assessment of the risk of flight and the danger to the
community or individuals should the alien be released. The
judge shall release the alien subject to the least
restrictive condition(s) that will reasonably assure the
alien's appearance at future proceedings, should the
government prevail on its appeal, and will not endanger the
community or individual members thereof. The possible release
conditions are those authorized under the Bail Reform Act of
1984, 18 U.S.C. 3142(b) and (c), and range from release on
personal recognizance to release on execution of a bail bond
or release limited to certain places or periods of time. As
with the referenced provsions of the Bail Reform Act, the
judge may deny release altogether upon determining that no
condition(s) of release would assure the alien's future
appearance and community safety.
Section 502(e)(1) provides that in cases in which the
special removal application is approved, the judge must then
consider each piece of classified evidence that the
Department of Justice proposes to introduce in camera and ex
parte at the special removal hearing. The judge shall
authorize the in camera and ex parte introduction of any item
of classified evidence if such evidence is relevant to the
deportation charge.
Section 502(e)(1) also provides that with respect to any
evidence authorized to be introduced in camera and ex parte,
the judge must consider how the alien subject to the
proceedings is to be advised regarding such evidence. The
Department of Justice must prepare a summary of the
classified informaiton. The court must find the summary to be
sufficient to inform the alien of the general nature of the
evidence that he has engaged in terrorist activity, and to
permit the alien to prepare a defense. A summary, however,
``shall not pose a risk to the national security.'' In
considering the summary to be provided to the alien of the
government's proffered evidence, it is intended that the
judge balance the alien's interest in having an opportunity
to hear and respond to the case against him against the
government's extraordinarily strong interest in protecting
the national security. The Department of Justice shall
provide the alien a copy of the court approved summary.
In situations where the court does not approve the proposed
summary, the Department of Justice can amend the summary to
meet specific concerns raised by the court. Subsection (e)(2)
provides that if such submission is still found unacceptable,
the special removal proceeding is to be terminated unless the
court finds that the continued presence of the alien in the
United States or the preparation of an adequate summary would
likely cause serious and irreparable harm to the national
security or death or serious bodily injury to any person. If
such a situation exists, the special removal hearing would
continue, the alien would be notified that no summary is
possible, and relevant classified information could be
introduced against the alien pursuant to subsection (j).
Section 502(e)(3) provides that, in certain situations, the
Department of Justice may take an interlocutory appeal to the
United States Court of Appeals for the District of Columbia
Circuit from the judge's rulings regarding the in camera and
ex parte admission and summarization of particular items of
evidence. Interlocutory appeal is authorized if the judge
rules that a piece of classified information may not be
introduced in camera and ex parte because it is not relevant;
or if the Department disagrees with the judge regarding the
wording of a summary (that is, if the Department believes
that the scope of summary required by the court will
compromise national security). Interlocutory appeal is also
authorized when the court refuses to make the finding
permitted by subsection (e)(2). Because the alien is to
remain in custody during such an appeal, the Court of Appeals
must hear the matter as expeditiously as possible. When the
Department appeals, the entire record must be transmitted to
the Court of Appeals under seal and the court shall hear the
matter ex parte.
Section 502(f) provides that in any case in which the
Department's application is approved, the court shall order a
special removal hearing for the purpose of determining
whether the alien in question has engaged in terrorist
activity. Subsection (f) provides that ``[i]n accordance with
subsection (e), the alien shall be given reasonable notice of
the nature of the charges against him and a general account
of the basis for the charges.'' This cross-reference is
intended to make clear that subsection (f) is not to be
construed as requiring that information be given to the alien
about the nature of the charges if such information would
reveal the matters that are to be introduced in camera. The
special removal hearing must be held as expeditiously as
possible.
Section 502(g) provides that the special removal hearing
shall be held before the same judge who approved the
Department of Justice's application unless the judge becomes
unavailable due to illness or disability.
Section 502(h) sets out the rights to be afforded to the
alien at the special removal hearing. The hearing shall be
open to the public, the alien shall have the right to be
represented by counsel (at government expense if he cannot
afford representation), and to introduce evidence in his own
behalf. Except as provided in section 502(j) regarding
presentation of evidence in camera and ex parte, the alien
also shall have a reasonable opportunity to examine the
evidence against him and to cross-examine adverse witnesses.
As in the case of administrative proceedings under the INA
and civil proceedings generally, the alien may be called as a
witness by the Department of Justice. A verbatim record of
the proceedings and of all evidence and testimony shall be
kept.
Section 502(i) provides that either the alien or the
government may request the issuance of a subpoena for
witnesses and documents. A subpoena request may be made ex
parte, except that the judge must inform the Department of
Justice where the subpoena sought by the alien threatens
disclosure of evidence of the source or evidence which the
Department of Justice has introduced or proffered for
introduction in camera and ex parte. In such cases, the
Department of Justice shall be given a reasonable opportunity
to oppose the issuance of a subpoena and, if necessary to
protect the confidentiality of the evidence or its source,
the judge may, in his discretion, hear such opposition in
camera. A subpoena under section 502(i) may be served
anywhere in the United States. Where the alien shows an
inability to pay for the appearance of a necessary witness,
the court may order the costs of the subpoena and witness fee
to be paid by the government from funds appropriated for the
enforcement of
[[Page S2521]] title II of the INA. Section 502(i) states
that it is not intended to allow the alien access to
classified information.
Section 502(j) provides that any evidence which has been
summarized pursuant to section 502(e)(1) may be introduced
into the record, in documentary or testimonial form, in
camera and ex parte. The section also permits the
introduction of relevant classified information if the court
has made the finding permitted by subsection (e)(2). While
the alien and members of the public would be aware that
evidence was being submitted in camera and ex parte, neither
the alien nor the public would be informed of the nature of
the evidence except as set out in section 502(e)(1). For
example, if the Department of Justice sought to present in
camera and ex parte evidence through live testimony, the
courtroom could be cleared of the alien, his counsel, and the
public while the
testimony is presented. Alternatively, the court might hear
the testimony in chambers attended by only the reporter,
the government's counsel, and the witness. In the case of
documentary evidence, sealed documents could be presented
to the court without examination by the alien or his
counsel (or access by the public).
While the Department of Justice does not have to present
evidence in camera and ex parte, even if it previously has
received authorization to do so, it is contemplated that
ordinarily much of the government's evidence (or at least the
crucial portions thereof) will be presented in this fashion
rather than in open court. The right to present evidence in
camera and ex parte will have been determined in the ex parte
proceedings before the court pursuant to subsections (a)
through (c) of section 502.
Section 502(k) provides that evidence introduced in open
session or in camera and ex parte may include all or part of
the information that was presented at the earlier ex parte
proceedings. If the evidence is to be introduced in camera
and ex parte, the attorney for the Department of Justice
could refer the judge to such evidence in the transcript of
the ex parte hearing and ask that it be considered as
evidence at the removal hearing itself. The Department might
present evidence in open court rather than in camera and ex
parte as a result of changed circumstances, for example,
where the source whose life was at risk had died before the
hearing or if the Department believes that a public
presentation of the evidence might have a deterrent effect on
other terrorists. In any event, once the Department of
Justice has received authorization to present evidence in
camera and ex parte, its decision whether to do so is purely
discretionary and is not subject to review at the time of the
special removal hearing. Of course, the disclosure of any
classified information requires appropriate consultation with
the originating agency.
Section 502(l) provides that following the introduction of
evidence, the attorney for the Department of Justice and the
attorney for the alien shall be given fair opportunity to
present argument as to whether the evidence is sufficient to
justify the alien's removal. At the judge's discretion, in
camera and ex parte argument by the Department of Justice
attorney may be heard regarding evidence received in camera
and ex parte.
Section 502(m) provides that the Department of Justice has
the burden of showing that the evidence is sufficient. This
burden is not satisfied unless the Department establishes by
clear and convincing evidence--the standard of proof
applicable in a deportation hearing--that the alien has
engaged in terrorist activity. If the judge finds that the
Department has met that burden, the judge must order the
alien removed. In cases in which the alien has been shown to
have engaged in terrorist activity, the judge has no
authority to decide that removal would be unwarranted. If the
alien was a resident alien granted release, the court is to
order the Attorney General to take the alien into custody.
Section 502(n)(1) provides that the judge must render his
decision as to the alien's removal in the form of a written
order. The order must state the facts found and the
conclusions of law reached, but shall not reveal the
substance of any evidence received in camera or ex parte.
Section 502(n)(2) provides that either the alien or the
Department of Justice may appeal the judge's decision to the
United States Court of Appeals for the District of Columbia
Circuit. Any such appeal must be filed within 20 days, and
during this period the order shall not be executed.
Information received in camera and ex parte at the special
removal hearing shall be transmitted to the Court of Appeals
under seal. The Court of Appeals must hear the appeal as
expeditiously as possible.
Section 502(n)(3) sets out the standard of review for
proceedings in the Court of Appeals. Questions of law are to
be reviewed de novo, but findings of fact may not be
overturned unless clearly erroneous. This is the usual
standard in civil cases.
Section 502(o) provides that in cases in which the judge
decides that the alien should not be removed, the alien must
be released from custody. There is an exception for aliens
who may be arrested and taken into custody pursuant to title
II of the INA as aliens subject to deportation. For such
aliens, the issues of release and/or circumstances of
continued detention would be governed by the pertinent
provisions of the INA.
Section 502(p) provides that following a decision by the
Court of Appeals, either the alien or the government may seek
a writ of certiorari in the Supreme Court. In such cases,
information submitted to the Court of Appeals under seal
shall, if transmitted to the Supreme Court, remain under
seal.
Section 502(q) sets forth the normal right the Government
has to dismiss a removal action at any stage of the
proceeding.
Section 502(r) acknowledges that the United States retains
it common law privileges.
Section 503 (Designation of Judges)
Section 503 establishes the special court to consider
terrorist removal cases under section 502, patterned on the
special court created under the Foreign Intelligence
Surveillance Act, 50 U.S.C. 1801 et seq. Section 503(a)
provides that the court will consist of five federal district
court judges chosen by the Chief Justice of the United States
from five different judicial circuits. One of these judges
shall be designated as the chief or presiding judge. Should
the Chief Justice determine it appropriate, he could
designate as judges under this section some of those that he
has designated pursuant to section 1803(a) of title 50,
United States Code for the Foreign Intelligence Surveillance
Court. The presiding judge shall promulgate rules for the
functioning of the special court. The presiding judge also
shall be responsible for assigning cases to the various
judges. Section 503(c) provides that judges shall be
appointed to the special court for terms of five years,
except for the initial appointments the terms of which shall
vary from one to five years so that one new judge will be
appointed each year. Judges may be reappointed to the special
court.
Section 503(b) provides that all proceedings under section
502 are to be held as expeditiously as possible. Section
503(b) also provides that the Chief Justice, in consultation
with the Attorney General, the Director of Central
Intelligence and other appropriate officials, shall provide
for the maintenance of appropriate security measures to
protect the ex parte special removal applications, the orders
entered in response to such applications, and the evidence
received in camera and ex parte sufficient to prevent
disclosures which could compromise national security.
Section 504 (Miscellaneous Provisions)
Section 504 contains the title's miscellaneous provisions.
Section 504(a) provides that following a final determination
that the alien terrorist should be removed (that is, after
the special removal hearing and completion of any appellate
review), the Attorney General may retain the alien in custody
(or if the alien was released, apprehend and place the alien
in custody) until he can be removed from the United States.
The alien is provided the right to choose the country to
which he will be removed, subject to the Attorney General's
authority, in consultation with the Secretary of State, to
designate another country if the alien's choice would impair
a United States treaty obligation (such as an obligation
under an extradition treaty) or would adversely affect the
foreign policy of the United States. If the alien does not
choose a country or if he chooses a country deemed
unacceptable, the Attorney General, in coordination with the
Secretary of State, must make efforts to find a country that
will take the alien. The alien may, at the attorney General's
discretion, be kept in custody until an appropriate country
can be found, and the Attorney General shall provide the
alien with a written report regarding such efforts at least
once every six months. The Attorney General's determinations
and actions regarding execution of the removal order are not
subject to direct or collateral judicial review, except for a
claim that continued detention violates the alien's
constitutional rights. The alien terrorist shall be
photographed
and fingerprinted and advised of the special penalty
provisions for unlawful return before he is removed from
the United States.
Section 504(b) provides that, notwithstanding section
504(a), the Attorney General may defer the actual removal of
the alien terrorist to allow the alien to face trial on any
State or federal criminal charge (whether or not related to
his terrorist activity) and, if convicted, to serve a
sentence of confinement. Section 504(b)(2) provides that
pending the service of a State or federal sentence of
confinement, the alien terrorist is to remain in the Attorney
General's custody unless the Attorney General determines that
the alien can be released to the custody of State authorities
for pretrial confinement in a State facility without
endangering national security or public safety. It is
intended that where the alien terrorist could possibly secure
pretrial release, the Attorney General shall not release the
alien to a State for pretrial confinement. Section 503(b)(3)
provides that if an alien terrorist released to State
authorities is subsequently to be released from state custody
because of an acquittal in the collateral trial, completion
of the alien's sentence of confinement, or otherwise, the
alien shall immediately be returned to the custody of the
Attorney General who shall then proceed to effect the alien's
removal from the United States.
Section 504(c) provides that for purposes of sections 751
and 752 of title 18 (punishing escape from confinement and
aiding such an escape), an alien in the Attorney General's
custody pursuant to this new title--whether awaiting or after
completion of a special removal hearing--shall be treated as
if in custody by virtue of a felony arrest. Accordingly,
escape by or aiding the escape of an
[[Page S2522]] alien terrorist will be punishable by
imprisonment for up to five years.
Section 504(d) provides that an alien in the Attorney
General's custody pursuant to this new title--whether
awaiting or after completion of a special removal hearing--
shall be given reasonable opportunity to receive visits from
relatives and friends and to consult with his attorney.
Determination of what is ``reasonable'' usually will follow
the ordinary rules of the facility in which the alien is
confined.
Section 504(d) also provides that when an alien is confined
pursuant to this new title, he shall have the right to
contact appropriate diplomatic or consular officers of his
country of citizenship or nationality. Moreover, even if the
alien makes no such request, subsection (d) directs the
Attorney General to notify the appropriate embassy of the
alien's detention.
Subsection 201(c) sets out three conforming amendments to
the INA. First, section 106 of the INA, 8 U.S.C. Sec. 1105a,
is amended to provide that appeals from orders entered
pursuant to section 235(c) of the Act (pertaining to summary
exclusion proceedings for alien spies, saboteurs, and
terrorists) shall be to the United States Court of Appeals
for the District of Columbia Circuit. Thus, in cases
involving alien terrorists, the same court of appeals shall
hear both exclusion and deportation appeals and will develop
unique expertise concerning such cases.
Second, section 276 of the INA, 8 U.S.C. Sec. 1326, is
amended to add increased penalties for an alien entering or
attempting to enter the United States without permission
after removal under the new title or exclusion under section
235(c) for terrorist activity. For aliens unlawfully
reentering or attempting to reenter the United States, the
section presently provides for a fine pursuant to title 18
and/or imprisonment for up to two years (five years when the
alien has been convicted of a felony in the United States, or
15 years when convicted of an ``aggravated felony''); the
bill increases to a mandatory ten years the term of
imprisonment for reentering alien terrorists.
Finally, section 106 of the INA, 8 U.S.C. Sec. 1105a, is
amended to strike subsection (a)(10) regarding habeas corpus
review of deportation orders. Originally enacted in 1961 to
make clear that the exclusive provision for review of final
deportation orders through petition to the courts of appeals
was not intended to extinguish traditional writs of habeas
corpus in cases of wrongful detention, the subsection has
been the source of confusion and duplicative litigation in
the courts. Congress never intended that habeas corpus
proceedings be an alternative to the process of petitioning
the courts of appeals for review of deportation orders.
Elimination of subsection (a)(10) will make clear that any
review of the merits of a deportation order or the denial of
relief from deportation is available only through petition
for review in the courts of appeals, while leaving unchanged
the traditional writ of habeas corpus to examine challenges
to detention arising from asserted errors of constitutional
proportions.
Subsection 201(d) provides that the new provisions are
effective upon enactment and ``apply to all aliens without
regard to the date of entry or attempted entry into the
United States.'' Aliens may not avoid the special removal
process on the grounds that either their involvement in
terrorist activity or their entry into the United States
occurred before enactment of the new title. Upon enactment,
the new title will be available to the Attorney General for
removal of any and all alien terrorists when classified
information is involved.
Section 202
This section makes additional changes to the Immigration
and Naturalization Act (INA) besides those contained in
section 201. It improves the government's ability to deny
visas to alien terrorist leaders and to deport non-resident
alien terrorists under the INA.
Subsection 202(a) amends the excludability provisions of
the INA relating to terrorism activities (section
212(a)(3)(B) of the INA (8 U.S.C. 1182(a)(3)(B)). Most of the
changes are clarifying in nature, but a few are substantive.
The changes are:
(1) ``Terrorist'' is changed to ``terrorism'' in most
instances in order to direct focus on the nature of the
activity itself and not the character of the particular
individual perpetrator.
(2) Definitions of ``terrorist organization'' and
``terrorism'' are added. The definition of ``terrorist
organization'' includes subgroups. Although a terrorist
organization may perform certain charitable activities, e.g.,
run a hospital, this does not remove its characterization of
being a terrorist organization if it, or any of its
subgroups, engages in terrorism activity. The definition of
``terrorism'' describes terrorism as the ``premeditated
politically motivated violence perpetrated against noncombat
targets.'' This is consistent with existing law found
elsewhere in the federal code. See, e.g., 22 U.S.C. 2656f(d).
(3) In order to make ``representatives'' of certain
specified terrorist organizations excludable, the term has
been expanded to cover any person who directs, counsels,
commands or induces the organization or its members to engage
in terrorism activity. The terms ``counsels, commands, or
induces'' are used in 18 U.S.C. 2. Presently, only the
officers, officials, representatives and spokesman are deemed
to be excludable. This change expands coverage to encompass
those leaders of the group who may not hold formal titles and
those who are closely associated with the group and exert
leadership over the group but may not technically be a
member. This is not a mere membership provision.
(4) In order to make the ``leaders'' of more terrorist
organizations excludable without having to establish that
they personally have engaged in terrorist activity, the
revision gives the President authority to designate terrorist
organizations based on a finding that they are detrimental to
the interests of the United States. (Presently, only the PLO
is expressly cited in the existing statute.) Implicit with
the right to designate is the authority to remove an
organization that the President has previously designated. By
giving the President this authority, which is similar to
subsection (f) of section 212 (8 U.S.C. 212(f)), the
President can impose stricter travel limitations on the
leaders of terrorist organizations who desire to visit the
United States. For a leader of a
designated terrorist organization to obtain a visa, he would
have to solicit a waiver from the Attorney General under
subsection 212(d)(3) (8 U.S.C. 1182(d)(3)) to obtain
temporary admission. In deciding whether or not to grant
to waiver, the Attorney General could, should he/she
decide to grant a waiver, impose whatever restrictions are
warranted on the alien's presence in the United States.
(5) The words ``it has been'' are inserted in the first
sentence of the definition of ``terrorism activity'' in order
to make clear that it is United States law (federal or state)
which is used to determine whether overseas violent activity
is considered criminal.
(6) The term ``weapons'' is added to clause (V)(b) in the
definition of ``terrorist activity'' in order to cover those
murders carried out by deadly and dangerous devices other
than firearms or explosives (e.g., a knife).
(7) The knowledge requirement in clause (III) of the
definition of ``engage in terrorism activity'' was deleted as
unnecessary, as similar language has been added in the
beginning of the definition.
(8) The term ``documentation or'' has been added to ``false
identification'' in clause (III) of the definition of
``engage in terrorism activity'' to encompass other forms of
false documentation that might be provided to facilitate
terrorism activity. The term ``false identification'' would
include stolen, counterfeit, forged and falsely made
identification documents.
Subsection 202(b) amends section 241(a)(4)(B) of the INA (8
U.S.C. 1251(a)(4)(B)) to reflect the change in section
212(a)(3)(B) (8 U.S.C. 1182(a)(3)(B)) from ``terrorist'' to
``terrorism.''
Subsection 202(c) adds a sentence to section 291 of the INA
(8 U.S.C. 1361) to clarify that discovery by the alien in a
deportation proceeding is limited only to those documents in
the INS file relating to the alien's entry. Section 291 was
never intended to authorized discovery beyond this limited
category of documents.
Subsection 202(d) makes an important change to section
242(b)(3) of the INA (8 U.S.C. 1252(b)(3)). First, in the
case of non-resident aliens it precludes the alien's access
to any classified information that is being used to deport
them. Secondly, it denies non-resident aliens any rights
under 18 U.S.C. 3504 (relating to access concerning sources
of evidence) and 50 U.S.C. 1801 et seq. (relating to the
Foreign Intelligence Surveillance Act) during their
deportation.
Section 203
Section 203 amends the confidentiality provisions contained
in the Immigration and Nationality Act (INA) for an alien's
application relating to legalization (section 245A(c)(5) of
the INA (8 U.S.C. 1255(a)(c)(5)) or special agricultural
worker status (section 210(b)(5) and (6) of the INA (8 U.S.C.
1160(b)(5) and (6)). At present, it is very difficult to
obtain crucial information contained in these files, such as
fingerprints, photographs, addresses, etc., when the alien
becomes a subject of a criminal investigation. In both the
World Trade Center bombing and the killing of CIA personnel
on their way to work at CIA Headquarters, the existing
confidentiality provisions hindered law enforcement efforts.
Subsection 203(a) amends the confidential provisions for
legalization files. It permits access to the file if a
federal court finds that the file relates to an alien who has
been killed or severely incapacitated or is the suspect of an
aggravated felony. Subsection 203(b) makes comparable
amendments to the confidentiality requirements relating to
special agricultural worker status.
Section 301
Section 301 authorizes the government to regulate or
prohibit any person or organization within the United States
and any person subject to the jurisdiction of the United
States anywhere from raising or providing funds for use by
any foreign organization which the President has designated
to be engaged in terrorism activities. Such designation would
be based on a Presidential finding that the organization (1)
engages in terrorism activity as defined in the Immigration
and Nationality Act and (2) its terrorism activities threaten
the national security, foreign policy, or economy of the
United States.
The fund-raising provision provides a licensing mechanism
under which funds may be provided to a designated
organization based on a showing that the money will be used
exclusively for religious, charitable, literary, or
educational purposes. It includes
[[Page S2523]] both administrative and judicial enforcement
procedures, as well as a special classified information
procedures applicable to certain types of civil litigation.
The term ``person'' is defined to include individuals,
partnerships, associations, groups, corporations or other
organizations.
Subsection 301(a) creates a new section 2339B in title 18,
United States Code, entitled ``Fund-raising for terrorist
organizations.''
Subsection 2339B(a) sets forth the congressional findings
and purposes for the fund-raising statute.
Subsection 2339B(b) gives the President the authority to
issue regulations to regulate or prohibit any person within
the United States or any person subject to the jurisdiction
of the United States anywhere from raising or providing funds
for use by, or from engaging in financial transactions with,
any foreign organization which the President, pursuant to
subsection 2339B(c), has designated to be engaged in
terrorism activities.
Subsection 2339B(c)(1) grants the President the authority
to designate any foreign organization, if he finds that (1)
the organization engages in terrorism activity (as defined in
section 212(a)(3)(B) of the Immigration and Nationality Act
(8 U.S.C. 1182(a)(3)(B)) and (2) the organization's terrorism
activities threaten the national security, foreign policy or
economy of the United States. Subsection 2339B(c)(2) grants
the President the authority to designate persons who are
raising funds for or are acting for or on behalf of a foreign
organization designated pursuant to subsection (c)(1).
Such designations must be published in the Federal
Register. The President is authorized to revoke any
designation. A designation under subsection (c)(1) is
conclusive and is not reviewable by a court in a criminal
prosecution.
Subsection 2339B(d) sets forth the prohibited activities.
Paragraph (1) makes it unlawful for any person within the
United States, or any person subject to the jurisdiction of
the United States anywhere in the world, to raise, receive,
or collect funds on behalf of or to furnish, give, transmit,
transfer, or provide funds to or for an organization
designated by the President unless such activity is done is
accordance with a license granted under subsection 2339B(e).
Paragraph (2) makes it unlawful for any person within the
United States or any person subject to the jurisdiction of
the United States anywhere in the world, acting for or or
behalf of a designated organization, (1) to transit,
transfer, or receive any funds raised in violation of
subsection 2339B(d)(1); (2) to transmit, transfer or dispose
of any funds in which any designated organization has an
interest; or (3) to attempt to do any of the foregoing. The
latter provision serves to make it a crime for any person
within the United States, or any person subject to the
jurisdiction of the United States anywhere, to transfer,
transfer or dispose of on behalf of a designated organization
any funds in which such organization has an interest until
after a license has been issued.
Subsection 2339B(e) requires that any person who desires to
solicit funds or transfer funds to any designated
organization must obtain a license from the Secretary of the
Treasury. Any license issued by the Secretary shall be
granted only when the Secretary is
satisfied that the funds are intended exclusively for
religious, charitable, literacy, or educational purposes
and that any recipient in any fund-raising chain has
effective procedures in place to insure that the funds
will be used exclusively for religious, charitable,
literary, or educational purposes and will not be used to
affect a transfer of funds to be used in terrorism
activity. The burden is on the license applicant to
convince the Secretary that such procedures do in fact
exist. A licensee is required to keep books and records
and make such books available for inspection upon the
Secretary's request. A licensee is also required to have
an agreement with any recipient which permits the
Secretary to inspect the recipient's records.
Subsection 2339B(f) requires that a financial institution
which becomes aware that it is in possession of or that it
has control over funds in which a designated organization has
an interest must ``freeze'' such funds and notify the
Secretary of the Treasury. A civil penalty is provided for
failure to freeze such funds or report the required
information to the Secretary. The term ``financial
institution'' has the meaning prescribed in 31 U.S. C.
5312(a)(2) and regulations promulgated thereunder. It is the
same definition as utilized in the money laundering statute,
see 18 U.S.C. 1956(c)(6).
Subsection 2339B(g) divides investigative responsibility
for the section between the Secretary of the Treasury and the
Attorney General. This provision thus permits the combination
of the administrative and financial expertise of Treasury's
Office of Foreign Assets Control (OFAC) and the intelligence
capabilities and criminal investigative techniques of the
Federal Bureau of Investigation (FBI) to be combined together
in a highly coordinated manner in order to effectively
enforce the requirements of this section while protecting the
equities of the nation's national security intelligence
gathering community. The provision reflects, as does section
407 of the bill, the FBI's role as the lead federal agency
for the investigation and prosecution of terrorist activity
as well as the prime federal intelligence agency for
gathering national security information within the United
States.
Section 2339B(h) gives authority to the Secretary of the
Treasury and the Attorney General to require recordkeeping,
hold hearings, issue subpoenas, administer oaths and receive
evidence.
Subsection 2339B(i) sets forth the penalties for section
2339B. Any person who knowingly violates subsection 2339B(d)
can be fined under title 18, United States Code, or
imprisoned for up to ten years, or both. A person who fails
to keep records or make records available to the Secretary of
the Treasury upon his/her request is subject to a civil
penalty of the greater of $50,000 or twice the amount of
money which would have been documented had the books and
records been properly maintained. A financial institution
which fails to take the actions required pursuant to
subsection (f)(1) is subject to civil penalty of the greater
of $50,000 or twice the amount of money of which the
financial institution was required to retain possession or
control. Any person who violates any license, order,
direction, or regulation issued pursuant to the section is
subject to a civil penalty of the greater of $50,000 per
violation or twice the value of the violation. A person who
intentionally fails to maintain or make available the
required books or records also commits a crime subject to a
fine under title 18, United States Code, or imprisonment for
up to five years, or both. Any organization convicted of an
offense under subsections 2339B(i)(1) or (3) shall forfeit
any charitable designation it might have received under the
Internal Revenue Code.
Subsection 2339B(j)(1) gives the Attorney General the right
to seek an injunction to block any violation of section
2339B. An injunctive proceeding is normally governed by the
Federal Rules of Civil Procedure, but if the respondent is
under indictment, discovery is to be governed by the Federal
Rules of Criminal Procedure.
Subsection 2339B(k) states that there is extra territorial
jurisdiction over activity prohibited by section 2339B which
is conducted outside the United States. This insures that
foreign persons outside the United States are covered by this
statute if they aid, assist, counsel, command, induce or
procure, or conspire with, persons within the United States
or persons subject to the jurisdiction of the United States
anywhere in the world to violate the fund-raising prohibition
(18 U.S.C. 2339B, 2, and 371).
Subsection 2339B(1) sets forth a special process to protect
classified information when the government is the plaintiff
in civil proceedings to enforce section 2339B.
Subsection 2339B(m) sets forth the definitions of
``classified information,'' ``financial institution,''
``funds,'' ``national security,'' ``person,'' and ``United
States.'' Funds are defined to include all currency, coin,
and any negotiable or registered security that can be used as
a method of transferring money.
Subsection 301(c) further amends section 212(a)(3)(B)(i) of
the Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(B)(i)) to include leaders of any terrorist
organization designated under the fund-raising statute (18
U.S.C. 2339B) as an aliens deemed to be excludable under the
immigration laws.
Subsection 301(d) makes the special classified information
provisions of 18 U.S.C. 2339B(k) applicable to similar civil
proceedings under the International Emergency Economic Powers
Act (50 U.S.C. 1701 et. seq.).
Section 401
This section states that title IV may be cited as the
``Marking of Plastic Explosives for Detection Act.''
Section 402
This section sets forth the congressional findings
concerning the criminal use of plastic explosives and the
prevention of such use through the marking of plastic
explosives for the purpose of detection. This section also
states that the purpose of the legislation is to implement
the Convention on the Marking of Plastic Explosives for the
Purpose of Detection, Done at Montreal on 1 March 1991 (the
Convention).
Section 403
This section sets forth three new definitions for 18 U.S.C.
841. It amends 18 U.S.C. 841 by adding a new subsection (o)
which defines the term ``Convention on the Marking of Plastic
Explosives.'' The definition provides the full title of the
Convention, ``Convention on the Marking of Plastic Explosives
for the Purpose of Detection, Done at Montreal on 1 March
1991.'' The definition eliminates the need to repeat the full
title of the Convention each time it is used in the bill.
Section 403 also amends section 841 by adding a new
subsection (p) which defines the term ``detection agent.''
The term has been defined to include four specified chemical
substances and any other substance specified by the Secretary
of the Treasury by regulation. The four specified chemical
substances, ethylene glycol dinitrate (EDGN), 2, 3-dimethyl-
2-3-dinitrobutane (DMNB), paramononitrotoluene (p-MNT), and
ortho-mononitrotoluene (o-MNT), are in Part 2 of the
Technical Annex to the Convention. The required minimum
concentration of the four substances in the finished plastic
explosives was also taken from the Technical Annex. The
definition of ``detection agent'' has been drafted to require
that the particular substance be introduced into a plastic
explosive in such a manner as to achieve homogeneous
distribution in the finished explosive. The purpose of
homogeneous distribution is to assure that the detection
agent can be detected by vapor detection equipment.
[[Page S2524]] New section 841(p)(5) would permit the
Secretary of the Treasury to add other substances to the list
of approved detection agents by regulation, in consultation
with the Secretaries of State and Defense. Permitting the
Secretary to designate detection agents other than the four
listed in the statute would facilitate the use of other
substances without the need for legislation. Only those
substances which have been added to the table in Part 2 of
the Technical Annex, pursuant to Articles VI and VII of the
Convention, may be designated as approved detection agents
under section 841(p)(5). Since the Department of Defense
(DOD) is the largest domestic consumer of plastic
explosives (over 95 percent of domestic production), it is
appropriate that DOD provide guidance to the Treasury
Department in approving additional substances as detection
agents.
Finally, section 403 adds a new subsection (q) to section
841 which defines the term ``plastic explosive.'' The
definition is based on the definition of ``explosives'' in
Article I of the Convention and Part I of the Technical
Annex.
Section 404
This section adds subsections (l)-(o) to 18 U.S.C. Sec. 842
proscribing certain conduct relating to unmarked plastic
explosives.
Section 842(l) would make it unlawful for any person to
manufacture within the United States any plastic explosive
which does not contain a detection agent.
Section 842(m) would make it unlawful for any person to
import into the United States or export from the United
States any plastic explosive which does not contain a
detection agent. However, importations and exportations of
plastic explosives imported into or manufactured in the
United States prior to the effective date of the Act by
Federal law enforcement agencies or the National Guard of any
State, or by any person acting on behalf of such entities,
would be exempted from this prohibition for a period of 15
years after the Convention is entered into force with respect
to the United States. This provision implements Article IV,
paragraph 3, of the Convention. Section 842(m) is drafted to
specifically include the National Guard of any State and
military reserve units within the 15-year exemption.
The purpose of the 15-year exemption is to give the
military and Federal law enforcement agencies a period of 15
years to use up the considerable stock of unmarked plastic
explosives they now have on hand. This exception would also
permit DOD to export its unmarked plastic explosives to
United States forces in other countries during the 15-year
period.
Section 842(n)(1) would make it unlawful for any person to
ship, transport, transfer, receive, or possess any plastic
explosive which does not contain a detection agent. Section
842(n)(2)(A) would provide an exception to the prohibition of
section 842(n)(1) for any plastic explosive which was
imported, brought into, or manufactured in the United States
prior to the effective date of the Act by any person during a
period not exceeding three years after the effective date of
the Act. This provision implements Article IV, paragraph 2,
of the Convention, and provides an exemption from the
prohibitions of section 842(n)(1) for any person, including
State and local governmental entities and other Federal
agencies, for a period of three years after the effective
date of the Act.
Section 842(n)(2)(B) would provide an exception to the
prohibition of section 842(n)(1) for any plastic explosive
which was imported, brought into, or manfuactured in the
United States prior to the effective date of the Act by any
Federal law enforcement agency or the United States military
or by any Federal law enforcement agency or the United States
military or by any person acting on behalf of such entities
for a period of 15 years after the date of entry into force
of the Convention with respect to the United States. This
provision implements Article IV, paragraph 3, of the
Convention. The provision was drafted to specifically include
the National Guard of any State and military reserve units
within the 15-year exemption.
Section 842(o) would make it unlawful for any person, other
than a Federal agency possessing any plastic explosive on the
effective date of the Act, to fail to report to the Secretary
of the Treasury within 120 days from the effective date of
the Act the quantity of plastic explosive possessed, the
manufacturer or importer of the explosive, any identifying
markings on the explosive, and any other information as
required by regulation. This provision implements Article IV,
paragraph 1, of the Convention, which requires each State
Party to take all necessary measures to exercise control over
the possession and transfer of possession of unmarked
explosives which have been manufactured in or imported into
its territory prior to the entry into force of the Convention
with respect to that State. This provision was drafted to
specifically include the National Guard of any State and
military reserve units as agencies which are exempt from the
reporting requirement.
Section 405
This section amends 18 U.S.C. 844(a), which provides
penalties for violating certain provisions of 18 U.S.C. 842.
The amended section would add sections 842(l)-(o) to the list
of offenses punishable by a fine under 18 U.S.C. 3571 of not
more than $250,000 in the case of an individual, and $500,000
in the case of an organization, or by imprisonment for not
more than 10 years, or both.
Section 406
This section amends 18 U.S.C. 845(a)(1), which excepts from
the provisions of 18 U.S.C. Chapter 40 any aspect of the
transportation of explosive materials regulated by the United
States Department of Transportation. The purpose of the
amendment is to make it clear that the exception in section
845(a)(1) applies only to those aspects of such
transportation relating to safety. This amendment would
overcome the effect of the adverse decisions in United States
v. Petrykievicz, 809 F. Supp. 794 (W.D. Wash. 1992), and
United States v. Illingworth, 489 F.2d 264 (10th Cir.) 1973).
In those cases, the court held that the language of section
845(a)(1) resulted in the defendant's exemption from all the
provisions of the chapter, including the requirement of a
license or permit to ship, transport, or receive explosives
in interstate or foreign commerce.
The list of offenses which are not subject to the
exceptions of section 845(a) has also been amended to include
the new plastic explosives offenses in sections 842(l)-(m).
Section 406 also adds a new subsection (c) to 18 U.S.C. 845
to provide certain affirmative defenses to the new plastic
explosives offenses in sections 842(l)-(o). This provision
implements Part 1, paragraph II, of the Technical Annex to
the Convention, which relates to exceptions for limited
quantities of explosives. The affirmative defenses of 18
U.S.C. 845(c) could be asserted by defendants in criminal
prosecutions, persons having an interest in explosive
materials seized and forfeited pursuant to 18 U.S.C. 844(c),
and persons challenging the revocation or denial of their
explosives licenses or permits pursuant to 18 U.S.C. 845(c).
The three affirmative defenses specified in section
845(c)(1) all relate to research, training, and testing, and
require that the proponent provide evidence that there was a
``small amount'' of plastic explosive intended for and
utilized solely in the specified activities. The
respresentatives to the Conference which resulted in the
Convention agreed that the amount of unmarked explosive
permitted to be used for these purposes should be
``limited,'' but were unable to agree on a specific quantity.
The Secretary of the Treasury may issue regulations defining
what quantity of plastic explosives is a ``small amount'' or
may leave it up to the proponent of the affirmative defense
to prove that a ``small amount'' of explosives was imported,
manufactured, possessed, etc. The statute is drafted to
require that the proponent establish the affirmative defense
by a preponderance of the evidence.
Section 845(c)(2) would create another affirmative defense
to the plastic explosives offenses, which implements Article
IV of the Convention, and Part I, Paragraph II(d), of the
Technical Annex. This provision would require that proponent
to prove, by a preponderance of the evidence, that the
plastic explosive was, within three years after the date of
entry into force of the Convention with respect to the United
States, incorporated in a military device that is intended to
become or has become the
property of any Federal military or law enforcement agency.
Furthermore, the proponent must prove that the plastic
explosive has remained an integral part of the military
device for the exemption to apply. This requirement would
discourage the removal of unmarked plastic explosives from
bombs, mines, and other military devices manufactured for
the United States military during the three year period.
The provision was drafted to specifically include the
National Guard of any State and military reserve units
within the exemption. The term ``military device'' has
been defined in accordance with the definition of that
term in Article I of the Convention.
Requiring that the exceptions of section 845(c) be
established as an affirmative defense would facilitate the
prosecution of violations of the new plastic explosive
provisions by terrorists and other dangerous criminals in
that the Government would not have to bear the difficult, if
not impossible, burden of proving that the explosives were
not used in one of the research, training, testing, or
military device exceptions specified in the statute. The
proponent of the affirmative defense would be in the best
position to establish the existence of one of the exceptions.
The approach taken in section 845(c) is patterned after the
affirmative defense provision in 18 U.S.C. 176 and 177,
relating to the use of biological weapons.
Section 407
This section provides the Attorney General investigative
authority over new subsections (m) and (n) of section 842,
relating to the importation, exportation, shipping,
transferring, receipt or possession of unmarked plastic
explosives, when such provisions are violated by terrorist/
revolutionary groups or individuals. This authority is
consistent with the existing March 1, 1973, memorandum of
understanding on the investigation of explosives violations
between the Departments of Justice and the Treasury and the
United States Postal Service. The section also makes it clear
that, consistent with current national policy, the Federal
Bureau of Investigation (FBI) is the lead Federal agency for
investigating all violations of Federal law involving
terrorism when the FBI has been given by statute or
regulation investigative authority over the relevant offense.
See 28 U.S.C. 523 and 28 C.F.R. 0.85(1).
[[Page S2525]] Section 408
This section provides that the amendments made by title IV
shall take effect one year after the date of enactment. The
one year delay should be adequate for manufacturers to obtain
sources of one of the specified detection agents and to
reformulate the plastic explosives they manufacture to
include a detection agent.
Section 501
Section 501 expands the scope and jurisdictional bases
under 18 U.S.C. 831 (prohibited transactions involving
nuclear materials). It is an effort to modify current law to
deal with the increased risk stemming from the destruction of
certain nuclear weapons that were once in the arsenal of the
former Soviet Union and the lessening of security controls
over peaceful nuclear materials in the former Soviet Union.
Among other things, the bill expands the definition of
nuclear materials to include those materials which are less
than weapons grade but are dangerous to human life and/or the
environment. It also expands the jurisdictional bases to
reach all situations where a U.S. national or corporation is
the victim or perpetrator of an offense. The bill expressly
covers those situations where a threat to do some form of
prohibited activity is directed at the United States
Government.
Subsection 501(a)(1) sets forth a series of findings.
Subsection 501(a)(2) sets forth the purpose.
Subsection 501(b) makes many technical changes to section
831 of title 18, United States Code. The ones of substance
are:
(1) Paragraph (1) adds ``nuclear byproduct material'' to
the scope of subsection 831(a).
(2) Paragraph (2) ensures coverage of situations under
subsection 831(a)(1)(A) where there is substantial damage to
the environment.
(3) Paragraph (3) rewrites subsection 831(a)(1)(B) in the
following ways:
(A) drops the requirement that the defendant ``know'' that
circumstances exist which are dangerous to life or property.
If such circumstances are created through the intentional
actions of the defendant, criminal sanctions are appropriate
due to the inherently dangerous nature of nuclear material
and the extraordinary risk of harm created.
(B) adds substantial damage to the environment; and
(C) adds language (i.e., ``such circumstances are
represented to the defendant to exist'') to cover the
situation of sales by undercover law enforcement to
prospective buyers of materials purported to be nuclear
materials. This is comparable to the new 18 U.S.C. 21 created
by section 320910 of Pub. L. 103-322 for undercover
operations.
(4) Paragraph (4) expands the threat provision of
subsection 831(a)(6) to cover threats to do substantial
damage to the environment.
(5) Paragraph (5) expands the jurisdiction in subsection
831(c)(2) beyond those situations where the offender is a
United States national. As revised, it includes all
situations, anywhere in the world where a United States
national is the victim of an offense or where the perpetrator
or victim of the offense is a ``United States corporation or
other legal entity.''
(6) Paragraph (6) drops the requirement in subsection
831(c)(3) that the nuclear material be for ``peaceful
purposes'', i.e., non-military, and that it be in use,
storage, or transport. Hence, the provision now reaches any
alien who commits an offense under subsection 831(a) overseas
and is subsequently found in the United States. Of course, if
the target of the offense was a U.S. national or corporation
or the U.S. Government there would be jurisdiction of the
offense under another provision of subsection 831(c), even
when the perpetrator is still overseas. The activities
prohibited by subsection 831(a) are so serious that all
civilized nations have recognized their obligations to
confront this growing problem because of its inherent
dangerousness.
(7) Paragraph (8) deletes the requirement for subsection
831(c)(4) that the nuclear materials being shipped to or from
the United States be for peaceful purposes. Hence, military
nuclear materials are now encompassed under subsection
831(c)(4). It also adds nuclear byproduct material to the
provision.
(8) Paragraph (10) adds a new paragraph (5) to subsection
831(c) to ensure that there is federal jurisdiction when the
governmental entity being threatened under subsection
831(a)(5) is the United States and when the threat under
subsection 831(a)(6) is directed at the United States.
(9) Paragraph (11) deletes an outmoded requirement, so that
all plutonium is now covered.
(10) Paragraph (14) adds ``nuclear byproduct material'' to
the definitions as a new subsection 831(f)(2). Nuclear
byproduct material means any material containing any
radioactive isotope created through an irradiation process in
the operation of a nuclear reactor or accelerator. This will
extend the prohibitions of this statute to materials that are
not capable of creating a nuclear explosion, but which,
nevertheless, could be used to create a radioactive dispersal
device capable of spreading highly dangerous radioactive
material throughout an area.
(11) Paragraph (17) adds to subsection 831(f) the
definitions for the terms ``national of the United States''
and ``United States corporation or other legal entity.''
section 601
This section deletes subsection (c) of the material support
statute (18 U.S.C. 2339A(c)) enacted as part of the 1994
crime bill (Pub. L. 103-322). It would also correct erroneous
statutory references and typographical errors (i.e., changes
``36'' to ``37,'' ``2331'' to ``2332,'' ``2339'' to
``2332a,'' and ``of an escape'' to ``or an escape'').
Subsection 2339A(c) of title 18, United States Code,
imposes an unprecedented and impractical burden on law
enforcement concerning the initiation and continuation of
criminal investigations under 18 U.S.C. 2339A. Specifically,
subsection (c) provides that the government may not initiate
or continue an investigation under this statute unless the
existing facts reasonably indicate that the target knowingly
and intentionally has engaged, is engaged, or will engage in
a violation of federal criminal law. In other words, the
government must have facts that reasonably indicate each
element of the offense before it even initiates (or
continues) an investigation. The normal investigative
practice is that the government obtains evidence which
indicates that a violation may exist if certain other
elements of the offense, particularly the knowledge or intent
elements, are also present. The government then seeks to
obtain evidence which establishes or negates the existence of
the other elements. If such evidence is found to exist, the
investigation continues to obtain the necessary evidence to
prove its case beyond a reasonable doubt on every element.
As drafted, however, subsection (c) reverses the natural
flow of a criminal investigation. It is an impediment to the
effective use of section 2339A. Moreover, the provision would
generate unproductive litigation which would only serve to
delay the prosecution of any offender, drain limited
investigative and prosecutive resources, and hinder efforts
to thwart terrorism. It is the position of the Department of
Justice that the investigative guidelines issued by the
Attorney General adequately protect individual rights while
providing for effective law enforcement.
Section 601 deletes subsection (c) retroactive to September
13, 1994, the date that the 1994 crime bill was signed into
law. Since subsection (c) is procedural in nature, the
retroactive nature of the proposed deletion does not pose a
constitutional problem. It should suffice, however, to
preclude a defendant from availing himself of subsection (c)
in the event that the conduct charged in a subsequent
indictment arose between September 13, 1994, and the
enactment of section 601.
Section 102(c) of this Act also proposes to broaden the
scope of the material support statute by incorporating, as
one of the predicate offenses, the proposed statute relating
to conspiracies within the United States to commit terrorist
acts abroad.
section 602
This section would add coverage for threats to the weapons
of mass destruction statute (18 U.S.C. 2332a). The offense of
using a weapon of mass destruction (or attempting or
conspiring to use such a weapon) was created by section 60023
of the Violent Crime Control and Law Enforcement Act of 1994
(P.L. 103-322). However, no threat offense was included. A
threat to use such a weapon is a foreseeable tactic to be
employed by a terrorist group. Further, it could necessitate
a serious and costly government response, e.g. efforts to
eliminate the threat, evacuation of a city or facility, etc.
Accordingly, it seems clearly appropriate to make threatening
to use a weapon of mass destruction a federal offense.
This section amends subsection (a) to include threats among
the proscribed offenders. Further, it redesignates subsection
(b) of section 2332a as subsection (c) and provides a new
subsection (b). The new subsection (b) ensures jurisdiction
when a national of the United States outside the United
States is the perpetrator of the threat offense.
section 603
Section 603 adds to the Racketeer Influenced and Corrupt
Organizations (RICO) statute certain federal violent crimes
relating to murder and destruction of property. These are the
offenses most often committed by terrorists. Many violent
crimes committed within the United States are encompassed as
predicate acts for the RICO statute. However, RICO does not
presently reach most terrorist acts directed against United
States interests overseas. Hence, this section adds to RICO
extraterritorial terrorism violations. When an organization
commits a series of terrorist acts, a RICO theory of
prosecution may be the optimal means of proceeding.
The offenses being added to as predicate acts to RICO are:
18 U.S.C. 32 (relating to the destruction of aircraft), 37
(relating to violence at international airports), 115
(relating to influencing, impeding or retaliating against a
federal official by threatening or injuring a family member)
351 (relating to Congressional or Cabinet officer
assassination), 831 (relating to prohibited transactions
involving nuclear materials as amended by section 501 of this
bill), 844 (f) or (i) (relating to destruction by explosives
or fire of government property or property affecting
interstate or foreign commerce), 956 (relating to conspiracy
to kill, kidnap, maim or injure property certain property in
a foreign country as amended by section 102 of this bill),
1111 (relating to murder), 1114 (relating to murder of United
States law enforcement officials), 1116 (relating to murder
of foreign officials, official guests, or internationally
protected persons), 1203 (relating to hostage taking), 1361
(relating to willful injury of
[[Page S2526]] government property), 1363 (relating to
destruction of property within the special maritime and
territorial jurisdiction), 1751 (relating to Presidential
assassination), 2280 (relating to violence against maritime
navigation as amended by section 606 of this bill), 2281
(relating to violence against maritime fixed platforms), 2332
(relating to terrorist acts abroad against United States
(nationals), 2332a (relating to use of weapons of mass
destruction as amended by section 602 of this bill), 2332b
(relating to acts of terrorism transcending national
boundaries created by section 101 of this bill), and 2339A
(relating to providing material support to terrorists as
amended by sections 102(c) and 601 of this bill), and 49
U.S.C. 46502 (relating to aircraft piracy).
section 604
18 U.S.C. 1956(a)(2)(A) makes it a felony to transfer funds
from the United States to a place outside the United States
if the transfer is done with the intent to promote the
carrying on of ``specified unlawful activity.'' The term
``specified unlawful activity'' is defined in section
1956(c)(7)(B) to include an offense against a foreign nation
involving kidnapping, robbery, or extortion as well as
certain offenses involving controlled substances and fraud by
or against a foreign bank. It does not, however, include
murder or the destruction of property by means of explosive
or fire.
In recent investigations of international terrorist
organizations, it has been discovered that certain of these
organizations collect money in the United States and then
transfer the money outside the United States for use in
connection with acts of terrorism which may involve murder or
destruction of property in foreign nations.
In order to prevent terrorist organizations from collecting
money inside the United States which is used to finance
murders and destruction of property, subsection (a) would add
``murder and destruction of property by explosive or fire''
to the list of specified unlawful activity in section
1956(c)(7)(B)(ii). This amendment would also apply to cases
where the proceeds of any such murder or property destruction
would be laundered in the United States.
Subsection (b) would add to the definitions of ``specified
unlawful activity'' in section 1956(c)(7)(D) of title 18,
United States Code, those violent federal offenses most
likely to be
violated by terrorists overseas. Hence, if during the course
of perpetrating these violent offenses the terrorists
transferred funds in interstate or foreign commerce to
promote the carrying on of any of these offenses, they
would also violate the money laundering statute. The
offenses added are the same as those added to the RICO
statute by section 603 of this bill, except for 18 U.S.C.
1203 (relating to hostage taking) which is already
contained as a money laundering predicate. It should be
noted that if section 603 of this bill is enacted,
subsection 604(b) need not be enacted because any offense
which is included as a RICO predicate is automatically a
predicate also under the money laundering statute.
section 605
This section would add a number of terrorism-related
offenses to 18 U.S.C. 2516, thereby permitting court-
authorized interception of wire, oral, and electronic
communications when the rigorous requirements of chapter 119
(including section 2516) are met. Presently, section 2516
contains a long list of felony offenses for which electronic
surveillance is authorized. The list has grown periodically
since the initial enactment of the section in 1968. As a
result, coverage of terrorism-related offenses is not
comprehensive. Section 2516 already includes such offenses as
hostage taking under 18 U.S.C. 1203, train wrecking under 18
U.S.C. 1992, and sabotage of nuclear facilities or fuel under
42 U.S.C. 2284.
The instant proposal would add 18 U.S.C. 956, as amended by
section 103 of this bill, and 960 (proscribing conspiracies
to harm people or damage certain property of a foreign nation
with which the United States is not at war and organizing or
participating in from within the United States an expedition
against a friendly nation), 49 U.S.C. 46502 (relating to
aircraft piracy), and 18 U.S.C. 2332 (relating to killing
United States nationals abroad with intent to coerce the
government or a civilian population). It would also add 18
U.S.C. 2332a (relating to offenses involving weapons of mass
destruction), 18 U.S.C. 2332b (relating to acts of terrorism
transcending national boundaries, which offense is created by
section 101 of this bill), 18 U.S.C. 2339A (relating to
providing material support to terrorists), and 18 U.S.C. 37
(relating to violence at airports).
Terrorism offenses frequently require the use of court-
authorized electronic surveillance techniques because of the
clandestine and violent nature of the groups that commit such
crimes. Adding the proposed predicate offenses to 18 U.S.C.
2516 would therefore facilitate the ability of law
enforcement successfully to investigate, and sometimes
prevent, such offenses in the future.
section 606
In considering legislative proposals which were
incorporated into the 1994 crime bill (Pub. L. 103-322),
Congress altered the Department's proposed formulation of the
jurisdictional provisions of the Maritime Violence
legislation, the Violence Against Maritime Fixed Platforms
legislation, and Violence at International Airports
legislation, because of a concern over possible federal
coverage of violence stemming from labor disputes. The
altered language created uncertainties which were brought to
the attention of Congress. Subsequently, the labor violence
concern was addressed by adoption of the bar to prosecution
contained in 18 U.S.C. 37(c), 2280(c) and 2281(c). With the
adoption of this bar, the sections were to revert to their
original wording, as submitted by the Department of Justice.
While sections 37 and 2281 were properly corrected, the
disturbing altered language was inadvertently left in section
2280.
Consequently, as clauses (ii) and (iii) of subsection
2280(b)(1)(A) of title 18, United States Code, are presently
written, there would be no federal jurisdiction over a
prohibited act within the United States by anyone (alien of
citizen) if there was a state crime, regardless of whether
the state crime is a felony. Moreover, the Maritime
Convention mandated that the United States assert
jurisdiction when a United States national does a prohibited
act anywhere against any covered ship. Limiting jurisdiction
over prohibited acts committed by United States nationals to
those directed against only foreign ships and ships outside
the United States does not fulfill our treaty
responsibilities to guard against all wrongful conduct by our
own nationals.
Moreover, as presently drafted, there is no federal
jurisdiction over alien attacks against foreign vessels
within the United States, except in the unlikely situation
that no state crime is involved. This is a potentially
serious gap. Finally, until the federal criminal jurisdiction
over the expanded portion of the territorial sea of the
United States is clarified, there remains some doubt about
federal criminal jurisdiction over aliens committing
prohibited acts against foreign vessels in the expanded
portion of the territorial sea of the United States (i.e.,
from 3 to 12 nautical miles out). Consequently, striking the
limiting phrases in clauses (ii) and (iii) ensures federal
jurisdiction, unless the bar to prosecution under subsection
2280(c) relating to labor disputes is applicable, in all
situations that are required by the Maritime Convention.
section 607
This section expands federal jurisdiction over certain bomb
threats or hoaxes. Presently, 18 U.S.C. 844(e), covers
threats to damage by fire or explosive property protected by
18 U.S.C. 844(f) or (i), if the United States mails, the
telephone or some other instrument of commerce is used to
convey the threat or the false information. Section 607
removes any jurisdictional nexus for the means used to convey
the threat or false information. A sufficient jurisdictional
nexus is contained in the targeted property itself, i.e., the
property (1) belongs to the United States Government, (2) is
owned by an organization receiving federal funds, or (3) is
used in or affects interstate or foreign commerce. The threat
provision has also been drafted to cover a threat to commit
an arson in violation of 18 U.S.C. 81 against property
located in the special maritime and territorial jurisdiction
of the United States.
section 608
This section would amend the explosives chapter of title 18
to provide generally that a conspiracy to commit an offense
under that chapter is punishable by the same maximum term as
that applicable to the substantive offense that was the
object of the conspiracy. In contrast, the general conspiracy
statute, 18 U.S.C. 371, provides for a maximum of five years'
imprisonment. This provision accords with several recent
Congressional enactments, including 21 U.S.C. 846 (applicable
to drug conspiracies) and 18 U.S.C. 1956(h) (applicable to
money laundering conspiracies). See also section 320105 of
Pub. Law 103-322, which raised the penalty for the offense of
conspiracy to travel interstate with intent to commit murder
for hire (18 U.S.C. 1958). This trend in federal law, which
is emulated in the penal codes of many States, recognizes
that, as the Supreme Court has observed, ``collective
criminal agreement--partnership in crime--presents a greater
potential threat to the public than individual delicts.''
Callanan v. United States, 364 U.S. 587, 593 (1961); accord
United States v. Feola, 420 U.S. 671, 693-4 (1975).
Section 608 includes the introductory phrase ``[e]xcept as
provided in this section'' in order to take account of one
area where a different maximum penalty will apply. Section
110518(b) of Pub. Law 103-322 enacted a special twenty-year
maximum prison penalty (18 U.S.C. 844(m)) for conspiracies to
violate 18 U.S.C. 844(h), which prohibits using an explosive
to commit certain crimes and which carries a mandatory five-
year prison term for the completed crime. Like section
844(m), the proposed amendment exempts the penalty of death
for a conspiracy offense.
section 609
Section 609 would cure an anomaly in 18 U.S.C. 115. The
statute presently punishes violent crimes against the
immediate families of certain former federal officials and
law enforcement officers (including prosecutors) in
retaliation for acts undertaken while the former official was
in office. However, the former official is not protected
against such crimes. Federal investigators, prosecutors, and
judges who are involved in terrorism cases are often the
subject of death threats. The danger posed to the safety of
such officers does not necessarily abate when they leave
government service. Former United States officials should be
protected by federal law against retaliation directed at
[[Page S2527]] the past performance of their official duties.
Section 609 would provide such protection.
section 610
The changes made by this section are similar to that made
by section 608 for explosives conspiracies.
This section adds ``conspiracy'' to several offenses likely
to be committed by terrorists. Conspiracy is added to the
offense itself to ensure that coconspirators are subject to
the same penalty applicable to those perpetrators who attempt
or complete the offense. Presently, the maximum possible
imprisonment provided under the general conspiracy statute,
18 U.S.C. 371, is only five years. The offenses for which
conspiracy is being added are: 18 U.S.C. 32 (destruction of
aircraft), 37 (violence at airports serving international
civil aviation), 115 (certain violent crimes against former
federal officials, added by section 609, and family members
of current or former federal officials), 175 (prohibitions
with respect to biological weapons), 1203 (hostage taking),
2280 (violence against maritime navigation), and 2281
(violence against maritime fixed platforms), and 49 U.S.C.
46502 (relating to aircraft piracy).
section 701
This section sets forth the congressional findings for
title VII
section 702
Amending subsection 573(d) of chapter 8 of the Foreign
Assistance Act of 1961 (22 U.S.C. 2349aa2) would allow more
flexibility and efficiency in the Department of State's
Antiterrorism Training Assistance (ATA) program by permitting
more courses to be taught overseas and allowing for
instructors to teach overseas for up to 180 days. Current law
allows training overseas for only certain specified types of
courses and only for up to 30 days. Deleting subsection (f)
of section 573 would allow for some personnel expenses for
administering the ATA program to be met through the foreign
aid appropriation. Currently, all such costs are paid from
the Department of State's Salaries and Expenses
account.
Mr. SPECTER. Mr. President, as chairman of the Intelligence
Committee and the Judiciary Committee's Subcommittee on Terrorism,
Technology and Government Information, I am pleased to join with the
distinguished ranking member of the Judiciary Committee, Senator Biden,
the ranking member of the Terrorism Subcommittee, Senator Kohl, the
chairman of the Banking Committee, who has a long history of
involvement on counter-terrorism activities, Senator D'Amato, and the
ranking member of the Intelligence Committee, Senator Kerrey, in
introducing the Omnibus Counter-Terrorism Act of 1995. I note that this
bipartisan measure was drafted by the Justice and State Departments,
and I appreciate their input and actions in support of this bill.
I have been actively involved in the fight against international
terrorism for many years. In 1986, I introduced the law that made it a
crime to commit an act of terrorism against a U.S. citizen in a foreign
country. I also introduced a bill to provide the death penalty for
terrorism murderers of U.S. citizens. A terrorist death penalty was
finally enacted in 1994 as part of the crime bill.
This bill provides a next, but overdue step. It would, for the first
time, make an act of international terrorism committed in this country
a violation of Federal law and provide severe punishment, including the
death penalty in the case of terrorist murders, against those who would
commit acts of violence against people in the United States for
political purposes. The legislation will also strengthen the hand of
U.S. authorities to attack international terrorists by making illegal
conspiracies to plan overseas terrorist acts in this country.
A second vital component of the legislation will make it easier to
deport suspected terrorists from the United States. The current
procedures of the Immigration and Nationality Act are cumbersome. The
procedures outlined in this bill will expedite such deportations.
Although I believe we need to study this issue, I am concerned about
the due process implications of some of the special procedures that
permit secret proceedings. I think the subcommittee will need to hold
hearings on this issue and review it very carefully in order to ensure
we strike the right balance between our national security needs and the
requirements of the Constitution.
The third component of this comprehensive bill will be a restriction
on fundraising for international terrorist groups in the United States.
While international organizations will still be able to raise funds in
the United States for charitable purposes, any fundraising in this
country for an organization determined by the President to be engaged
in conducting or supporting international terrorism will be barred.
Again, we will need to take a very close look at this provision to
ensure that it comports with the requirements of the first amendment.
Another important element of this bill is the implementation of the
Montreal convention on the marking of plastic explosives to improve
detectability. This important international agreement will make it
easier to detect plastic explosives to avert tragedies like the bombing
of Pan Am flight 103 over Lockerbie.
This legislation will provide additional weapons in our Nation's
battle against international terrorism and on behalf of democracy
throughout the world. I again wish to thank the administration for its
work on the bill and the cosponsors. I urge all Members of the Senate
to join with us in supporting this bill and to see to it that this bill
is enacted promptly.
Mr. KOHL. Mr. President, one need only read the cruel and
tragic litany of terrorist incidents detailed in the first few pages of
the bill we introduce today, to appreciate the need for--and importance
of--this measure.
Though Americans are less at risk of terrorist attack than citizens
of other countries, we are not immune, and we never will be, so long as
we are a democracy with open borders. The concrete barriers now gracing
the entrances to the World Trade Center--and to this very building--are
a stark reminder of this reality.
And as a matter of both national security and morality, we cannot
ignore the fact that terrorists who strike outside our borders, seek--
and receive--aid and comfort within them.
This is simply intolerable. Free and open societies should not be
free and open to movements and organizations that facilitate terror and
wanton violence--whether in our communities, or across the world.
In the past, the Federal Government has vigorously joined the battle
against terrorism. But there is clearly more to be done if we are to
unite with civilized countries throughout the world to protect each
other and our citizens from those who obey no law.
The legislation we introduce today, crafted by President Clinton, is
a crucial next step in bolstering our commitment to fight international
terror and politically-motivated violence.
The Omnibus Counter-Terrorism Act contains a number of important
provisions. It creates a comprehensive Federal antiterrorism statute
with stiff penalties. It clarifies that U.S. antiterrorism laws apply
to each and every attack against U.S. nationals, regardless of where in
the world an attack occurs.
This bill also solidifies the President's authority to shut down the
fundraising activities of terrorist organizations on U.S. soil. And it
creates a new mechanism that will facilitate the expulsion of aliens
currently in the United States who are, or have, engaged in terrorist
activities.
Let me close by noting that the sponsors of this bill are aware that
any effort to crack down on terrorism must be sensitive to civil
liberties concerns. And we must also be mindful of ethnic communities
that may be affected if this legislation were implemented without due
care and consideration.
I know that the Department of Justice has tried to keep these
concerns in mind in drafting the bill we introduce today. And we stand
ready to continue a discussion on this subject to ensure that our fight
against terrorism is prosecuted fairly and judiciously.
Mr. D'AMATO. Mr. President, I rise today to comment on the
introduction of the Omnibus Counter-Terrorism Act of 1995. I am pleased
to be an original cosponsor of this legislation along with Senators
Biden, Kohl, Specter, and Kerrey.
Mr. President, what we are seeing today is an exponential increase in
violence across the globe. Acts that were once thought to be
implausible are becoming commonplace. We witnessed the bombing of the
World Trade Center 2 years ago. What we saw there was something that so
sane person could imagine. Unfortunately, six people were killed and
over 1,000 were injured. Thankfully, more we not killed and due to
quick police work the perpetrators
[[Page S2528]] of this horrible act were quickly apprehended.
Additionally, special recognition must go out to those responsible for
the arrest of Ramzi Yousef, the alleged mastermind of the operation, in
Pakistan just this week.
We must prevent another World Trade Center-like operation from taking
place. We can no longer rely on luck. The bill we are introducing today
will close loopholes and shore up jurisdiction problems and allow us to
get our hands on these murdering terrorists before they get a chance to
act and if need be, to grab them overseas. It offers us essential legal
tools such as the RICO statute and wiretapping capabilities to stop
terrorism in its tracks.
If we wish to fight terrorism, we must have the right tools. This
bill is a great beginning and will help us to gain the upper hand.
I am pleased to be joining my colleagues in introducing this
legislation and I urge my other colleagues in the Senate to join us in
supporting this important legislation.
______
By Mr. GLENN (for himself and Mr. DeWine):
S. 392. A bill to amend the Dayton Aviation Heritage Preservation Act
of 1992 with regard to appointment of members of the Dayton Aviation
Heritage Commission, and for other purposes; to the Committee on Energy
and Natural Resources.
the dayton aviation heritage preservation act
Mr. GLENN. Mr. President, on behalf of myself and Senator
DeWine, I would like to introduce legislation to correct a concern that
was raised after the passage of the Dayton Aviation Heritage
Preservation Act, establishing a national park to preserve historic
sites in Dayton, OH, that are associated with the Wright brothers and
the early development of aviation.
Public Law 102-419 required that members of a commission established
by the act to assist in preserving and managing the park would be
appointed by the Secretary of the Interior from recommendations made by
certain local and State officials. Concerns were raised that the
language of the act may not be in accordance with the appointments
clause of the Constitution.
The legislation that I am introducing today addresses that concern
and provides that the Secretary will appoint the Commission after
consideration of recommendations made by those public officials. I hope
that the Senate committee will consider this legislation expeditiously
so that the Commission can undertake its full responsibilities.
______
By Mrs. BOXER:
S. 393. A bill to prohibit the Secretary of Agriculture from
transferring any National Forest System lands in the Angeles National
Forest in California out of Federal ownership for use as a solid waste
landfill; to the Committee on Energy and Natural Resources.
transfers of national forest land for landfill construction
Mrs. BOXER. Mr. President, I am pleased today to introduce a
bill to prohibit the Forest Service from transferring land in the
Angeles National Forest for the purposes of constructing a landfill.
Three times in the past 25 years the Forest Service has studied the
possibility of transferring land in Elsmere Canyon to a private company
that wants to build a 190-million-ton landfill on the site. The
landfill would destroy the canyon, 1,600 acres of resource rich,
publicly owned land held in trust by the National Forest Service.
The proposed landfill would sit atop the aquifer that serves the
entire Santa Clarita Valley, posing a considerable risk of
contamination to this critical water supply.
Elsmere Canyon is a major wildlife corridor connecting the San
Gabriel and Santa Monica Mountains. This corridor serves the needs of
deer, bear, and cougars. If the connection were destroyed, many of
these animals would end up in residential areas threatening both the
animals and local residents.
It is clear that this national forest property is far too valuable to
be transferred for the purpose of constructing a landfill. We must also
be concerned about establishing a precedent of using national forest
lands for this purpose when realistic alternatives exist. It is
particularly difficult to justify the loss of this resource in a region
with limited open space and recreational facilities.
To its credit, the Forest Service has denied each of the requests
that have been made for the transfer of Elsmere Canyon. But the
economic and political pressure remains. This bill, introduced in the
House by Congress Buck McKeon with the support of many of his
Republican and Democratic colleagues, takes the landfill option off the
table. It takes a strong position in favor of Forest Service management
that places the public good before private profit.
I hope my colleagues in the Senate will give this bill their early
and favorable consideration.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 393
Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled,
SECTION 1. PROHIBITION OF CERTAIN TRANSFERS OF NATIONAL
FOREST LANDS.
(a) Prohibition.--The Secretary of Agriculture shall not
transfer (by exchange or otherwise) any land owned by the
United States and managed by the Secretary as part of the
Angeles National Forest to any person unless the instrument
of conveyance contains a restriction, enforceable by the
Secretary, on the future use of the land prohibiting the use
of any portion of the land as a solid waste landfill.
(b) Enforcement.--The Secretary shall act to enforce a
restriction described in subsection (a) as soon as possible
when and if violation of the restriction occurs.
______
By Mr. D'AMATO;
S. 394. A bill to clarify the liability of banking and lending
agencies, lenders, and fiduciaries, and for other purposes; to the
Committee on Environment and Public Works.
asset conservation, lender liability, and deposit insurance protection
act
Mr. D'AMATO. Mr. President, I am today introducing the Asset
Conservation, Lender Liability, and Deposit Insurance Protection Act of
1995. This bill addresses an urgent issue facing America's banks and
lenders today--the imposition of massive liability for the cleanup of
property they hold as security interest on a loan, or as the technical
owner under a leveraged lease, that is later discovered to be
contaminated.
Mr. President, court decisions have eviscerated the ``secured
creditor exception'' currently contained in CERCLA, or as it is more
commonly known, the Superfund law. Some courts have scrutinized the
oversight activities of creditors, and deemed them responsible for
cleanup costs. For instance, the Eleventh Circuit Court of Appeals
deemed a secured creditor liable because it exercised authority over
the contaminated property ``sufficiently broad to support the inference
that it could affect hazardous waste disposal decisions if it chose.''
As a result, lenders risk being targeted as convenient deep pockets,
and being forced to foot the cleanup bill for contamination, not
because they caused it or did not take precautions, but simply because
they hold a security interest or have some other technical indicia of
ownership.
Mr. President, this bill will not permit lenders to evade
responsibility if they cause environmental contamination. But lenders
should not be held liable merely because of their deep pockets. The
imposition of culpability based on legal dictates of commercial or
fiduciary law is wrong. And, the implications of this legal doctrine
extend beyond the finance industry. Why? Because the so-called deep
pockets in the banking and finance industries are not bottomless pits.
And the ultimate losers in this scheme are not the lenders, but
potential borrowers, especially small businesses, who may face
liability. Lenders are reluctant to extend credit and face potential
liability. Many small businesses and potential homeowners do not
receive financing because of potential claims. Without access to credit
small businesses can not get off the ground or grow. So, in the final
analysis, the victims are economic growth and job creation.
Mr. President, the refinements embodied in this bill are not new. The
Senate passed similar legislation in
[[Page S2529]] 1991 as part of S. 543, the Federal Deposit Insurance
Corporation Improvement Act. The Senate approved a lender liability
amendment to the Federal Housing Enterprises Regulatory Reform Act of
1992. Last year, the Banking and Environment Committees worked together
and crafted language for inclusion in the Superfund reauthorization
bill. This bill is modeled on final language form that bill, with
several adjustments. Most significantly, this bill would clarify lender
liability rules not only with respect to Superfund, but also with
respect to the underground tank provisions of the Solid Waste Disposal
Act.
This bill will make clear the potential liability that lenders,
acting in their capacity as secured creditors, lessors, or fiduciaries,
face for contamination. Lender liability will be limited to the net
gain that the lender realizes from the sale of property. Fiduciary
liability may not exceed the assets held in that fiduciary capacity.
This bill also addresses the liability problems that the FDIC, RTC, and
other banking agencies face when they close a financial institution and
take over the assets of the failed institution. If these assets include
contaminated property acquired through foreclosure, the agency may
assume liability for contamination for which it is not responsible.
Finally, the bill provides clarity as to when creditors will be deemed
to be owners or operators of contaminated property, and excludes
federally appointed receivers and conservators, including Federal
agencies acting in this capacity, from the definition of owner or
operator.
Mr. President, the time has come to make it clear that innocent banks
and lenders should not face liability for environmental contamination
because they make a loan or protect their security interest. In light
of the Supreme Court's denial of certiorari in Kelly versus
Environmental Protection Agency, the EPA's ability to effectively
address this problem is limited. Congressional action is needed. The
Senate has an ambitious agenda set out for this Congress; an agenda
that includes regulatory relief and litigation reforms. This bill is
consistent with this initiative for economic growth. I offer this bill
in the hopes of furthering the process of reform.
____________________