Congressional Record, Volume 141 Issue 74 (Friday, May 5, 1995)

[Congressional Record Volume 141, Number 74 (Friday, May 5, 1995)]
[Senate]
[Pages S6202-S6217]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. DASCHLE (for himself, Mr. Biden, Mr. Kohl, Mrs. Feinstein,
and Mr. Dodd):
S. 761. A bill to improve the ability of the United States to respond
to the international terrorist threat; read the first time.

THE OMNIBUS COUNTERTERRORISM ACT OF 1995

Mr. DASCHLE. Mr. President, since the terrible bombing in Oklahoma
City more than 2 weeks ago, we have been forced to consider what the
society should do in self-defense against potentially deadly maniacs
who think that killing defenseless people is a way to send a political
message or effect political change.
This is an enduring challenge for a democracy. We have faced it
before. There is no easy answer.
We cannot afford to give the terrorists what they want to achieve--
the subversion of our free institutions--in the effort to prevent their
terrorist acts. But we cannot remain complacent in the face of
determined threats either.
The President has sent to Congress his proposal to give Federal law
enforcement additional resources and tools to use in combating domestic
and international terrorism on American soil. It includes commonsense
expansion of FBI investigative authorities in counterterrorism cases,
such as access to credit reports and travel and hotel records, which
are routinely available to State and local law enforcement authorities
in criminal investigations.
It will speed the process of adding chemical taggants to explosives,
as well as moving more aggressively into taggant and related explosives
research.
It will expand the FBI's ability to use trace-and-track devices and
pen registers to capture the phone numbers dialed from or coming in to
a particular telephone. It does not abandon the requirement of American
law that no phone may be tapped without an explicit warrant, issued
only when there is probable cause to suspect criminal activity.
The package of proposals includes added penalties and some broader
Federal felony offenses, whose purpose is to conform the law with
respect to explosives to the existing law that covers firearms.
Coupled with the President's earlier antiterrorism bill directed at
international terrorism, this is a sound step to respond to a national
threat without throwing overboard the civil rights of law-abiding
citizens.
The consensus of those who work in this field is that, although the
cold war is over, the war against terrorism is just beginning. Experts
make some chilling--and compelling--arguments.
In the century preceding the Oklahoma City bombing, although
terrorist groups were numerous, and although horrible murders,
kidnapings, and other crimes by them were frequent, there were fewer
than a dozen terrorist attacks that cost more than 100 lives.
There is reason to fear, according to experts, that this trend is
shifting. Where once terrorists would take hostages and threaten the
lives of 1 or 2 or 20 people if their demands were not met, they no
longer issue specific demands. They take fewer and fewer hostages.
Instead, they attack more soft targets, where civilian casualties are
bound to be higher. They are aiming less at a particular demand and
more at terrorizing the entire society.
They build more car bombs and undertake more suicide attacks; they
attack civilians in crowds--airplanes, subways, and office buildings.
They make fewer explicit demands, but their broader demands are more
apocalyptic.
If this trend continues, instead of a cold war atmosphere of threat
and counterthreat, of massive nuclear stockpiles poised to strike each
other's targets, we face the prospect of random violence--impossible to
predict, impossible to counter, impossible to explain.
A civilized society can live with many fears. We lived with the fear
of nuclear holocaust for almost 50 years, yet our society became freer
throughout that time. The great advances in civil rights and
protections against Government were postwar.
But no civilized society will survive the threat of random terror. It
cannot. We must be able to feel secure as we travel to our workplaces
each day, as we sit at our desks or man our service counters--that we
will end the day predictably, by going home, making dinner, performing
the normal pattern of tasks and duties we face.
If we ever reach the point where randomized terror can paralyze us,
can make Americans distrust each other--distrust the safety of the next
few hours--the terrorists will have won, because we will be what they
want us to be: an atomized nation, without community, without security,
without anything except fear for immediate individual survival.
That is where these people want to take us. We have to combat this,
without becoming savages, without losing our perspective, without
succumbing to paralyzing fear.
It is not going to be easy. If the experts are right, and apocalyptic
terrorism is what the future holds, we will face challenges our system
has never before been forced to face. We will have to ask ourselves
questions that we have never before raised.
A growing number of terrorist groups believe they are fighting a holy
war. That change has changed the nature of what they are prepared to
do, the risks they themselves are prepared to run, and the damage they
are prepared to inflict.
This change presents us, as a society, with a challenge as well.
Americans are of diverse faiths, but we are among the
[[Page S6203]] most religious people in the industrialized world today.
We respect the faith of others, and we respect the demands of their
religion. Our respect for religious belief is not enshrined only in our
first amendment. It is an instinctive American habit not to second-
guess the faith of your neighbor.
And yet, if terrorism comes claiming religious sanction, we have to
face it. And this bill will help us.
Since 1990, 40 percent of all terrorist acts worldwide have been
committed explicitly against American targets. That is, in large part,
because the success of our society is a standing refutation of the
beliefs of many of these groups. Unless our system can be destroyed,
their vision cannot be vindicated.
This is believed by domestic groups as well as groups overseas.
Reports that some Americans think they have to shoot down military
helicopters on routine training missions are surfacing. A Member of
Congress has even proposed requiring Federal law enforcement agents to
be formally deputized by local authorities before they can carry out
their responsibilities. Reports of threats against local officials have
discouraged involvement in local government meetings in some regions.
I do not believe that words alone cause terrorist acts. I do not
think anyone seriously believes so. But I do believe that a culture is
comprised of many factors, feeding into its hopes and fears, and I do
believe that a culture changes as the factors feeding its hopes and
playing on its fears change.
When people in the mainstream become careless with words, they breach
barriers that create a new set of assumptions. Barriers, once breached,
are permeable in both directions. The lunacy of the fringe enters the
mainstream even as the careless or calculated words of the mainstream
create a new defining normalcy. Senator Moynihan has spoken about a
society that redefines deviancy. Those aggressively seeking to make
their mark on our society should examine how they are defining
normalcy.
We are warned by the Tokyo subway bombing earlier this year that
weapons of mass destruction need not be explosives. Easily manufactured
chemical and biological weapons can be as deadly and effective when the
goal is to terrorize a community.
Before it collapsed, the Soviet Union operated the largest biological
warfare production facility in the world, employing 15,000 scientists.
These people had developed a form of bubonic plague that was resistant
to 26 antibiotics, a form of fast-spreading meningitis, agents that
could be introduced into water systems or into the air in climate-
controlled buildings.
Today, these people face the economic collapse of the system that
supported them as highly paid and privileged specialists. All they need
to re-create their deadly work is carried in their own brains. The
temptation to sell that knowledge outside of Russian borders cannot be
ignored at a time when the value of their monthly wages has fallen to
less than $70.
Again, this threat is not limited to international terrorists. In
August 1994, our own FBI arrested two members of a group calling itself
the Patriots' Council in Minneapolis. This group was concocting ricin,
a neurotoxin that can be produced from the common castor bean plant.
An equally deadly potential is the contamination of a conventional
bomb with radioactivity. Since May 1994, there have been 39 separate
incidents of nuclear materials diversion in Eastern and Southern
Europe. It is not necessary for radioactive material to be made into an
explosive device like a bomb. The contamination of a conventional bomb
with radioactive materials is simpler; its terrifying effect would be
as great.
These threats are not speculative. Unfortunately, they are all too
real.
We cannot and must not succumb to the temptation of regarding
everyone with oddball notions as a potential threat. But,
unfortunately, neither can we write off all oddballs as harmless.
It is the goal of the President's counterterrorism approach that we
be able to make the distinctions between the harmless and the
potentially dangerous before the dangerous are able to strike again,
not afterward.
I believe it is a balanced package of proposals that does not go too
far. We should pass this legislation promptly, without detouring into
the partisan political minefields some have suggested.
Curtailing the appellate rights of prisoners on death row is not
going to change the murderous intentions of terrorist groups. The
extraneous politically motivated inclusion of these kinds of provisions
does a disservice to the cause of counterterrorism. It does not move us
forward; it is intentionally and purposefully divisive.
I very much regret that this is on the agenda of some in the wake of
a national tragedy. I would hope that these issues could be abandoned
for the time being, out of respect for the families of the victims of
the Oklahoma bombing and so that we may enact the necessary
counterterrorism legislation expeditiously. We have plenty of time for
politics later. This is a time that demands unity.
Mr. President, I ask unanimous consent that a section-by-section
analysis be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

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 or other real or personal property
within the United States. These are the types of violent
actions that terrorists most often undertake. The provision
encompasses any such activity which is in violation of the
laws of the United States or any State, 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 branches 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. [[Page S6204]]
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 which the alien is a citizen. Moreover,
some other statutes base criminal jurisdiction on the
involvement of an alien as the perpetrator or victim. E.g.,
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 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 were careful to include the word ``non-capital''
when affecting 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.
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 was 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 [[Page S6205]] 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 of 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 airline 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 aides 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
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 or 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, officers, 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 [[Page S6206]] 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 reaches such crimes committed outside the United
States only when the offender is later found in the United
States. There is, however, good reason 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 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.'' Mathews 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 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 way 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 exists, 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 [[Page S6207]] 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 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 a 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 provisions of the Bail Reform Act, the
judge may deny release altogether upon determining that no
condition(s) of release would assure the aliens future
appearance and community safety. [[Page S6208]]
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 information. 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 or the source of 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 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 [[Page S6209]] 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
its 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
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 choose 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 virture of a felony arrest. Accordingly,
escape by a or aiding the escape of an 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 dipomatic 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 re-
entering 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 re-entering alien terrorists.
Finally, section 106 of the INA, 8 U.S.C. Sec. 1105a, is
amended to strike subsection (a)(1) 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 or
being a terrorist organization if it, or any of its
subgroups, engages in 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 [[Page S6210]] 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 the 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 had 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 ``weapon'' 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 add 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 of
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 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 a organization
designated by the President unless such activity is done in
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 on
behalf of a designated organization, (1) to transmit,
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 transmit,
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, literacy, 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 Secetary 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
[[Page S6211]] 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 extraterritorial
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(l) 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 definition 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 (EGDN), 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.
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 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 manufactured 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 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 [[Page S6212]] 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
representatives 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 explosives
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 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).
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 treat 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 the 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,''
[[Page S6213]] ``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. (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
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 [[Page S6214]] 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 or
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 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.

title viii--substantive investigative enhancements

Sec. 801. Pen registers and trap and trace devices in
foreign counterintelligence and counterterrorism
investigations.
Section 801 permits the FBI to use pen register and trap
and trace device statutes--already available in routine
criminal cases--in foreign counterintelligence
investigations. Pen registers are devices which record
signals pulsed or toned--simply put, the number dialed, while
trap and trade devices record the number from which a call
originates, simply put, Caller ID. Neither device permits the
monitoring of the actual conversation taking place.
Sec. 802. Disclosure of information and consumer reports to
FBI for foreign counterintelligence purposes.
Section 802 permits the FBI to obtain access to consumer
credit reports in foreign counterintelligence matters. These
are the same reports available on request to car salesmen and
real estate agents and to the FBI, by grand jury subpoena, in
routine criminal cases. Without the information in these
reports, the FBI cannot determine where terrorists hold their
assets and accordingly a major part of the investigations is
lost. The grand jury subpoena process is not available in
foreign counterintelligence matters because these are not
necessarily criminal in nature.
Sec. 803. Study and requirements for tagging of explosive
materials, and study and recommendations for rendering
explosive components inert and imposing controls on
precursors of explosives
Section 803 requires the Department of the Treasury to
study the action of taggants--microscopic particles which
will survive combustion and which are unique by manufacture
and date and which therefore will serve to identify the
source of an explosive--as well as whether it is possible to
render certain chemicals inert and whether certain explosives
precursors can be controlled. The study must be completed
within one year of enactment.
The provision also requires Treasury to promulgate
regulations regarding the addition of these taggants by
private manufacturers and criminalizes possession, transfer
and other conduct respecting explosives not containing
taggants. The criminal provision does not become effective
until 90 days after the promulgation of the regulation
requiring the taggant addition.
Sec. 804. Access to records of common carriers, public
accommodation facilities, physical storage facilities and
vehicle rental facilities in foreign counterintelligence and
counterterrorism cases.
Section 804 permits the FBI access to the same records
already available to the DEA by administrative subpoena in
routine narcotics investigations and which are available to
the FBI and all other law enforcement agencies in criminal
cases where a grand jury subpoena may properly be obtained.
Hotels and motels, storage facilities, airlines, trains and
vehicle rental companies all provide services and maintain
records which are often of extraordinary value to law
enforcement--no less in foreign counterintelligence and
counterterrorism cases.
Records would be produced pursuant to a special written
request which would be signed by a person with a title no
lower than Assistant Special Agent In Charge. Such an
individual is generally a senior person considered middle-
management within the FBI structure.
Sec. 805. Limitation of statutory exclusionary rule.
Section 805 would simply extend to warrants issued to
conduct electronic surveillance, the same ``good faith''
standard which [[Page S6215]] already exists by Supreme Court
decision as to routine search warrants. There is no policy
basis to apply a different standard to electronic
surveillance warrants than is applied to other warrants.
Sec. 806. Authority for wiretaps in any terrorism-related
or explosives felony.
Section 806 would expand the circumstances under which
electronic surveillance orders for oral and/or wire
intercepts could be issued by a court, to include any felony
when an appropriate high-ranking Department of Justice
official certifies that the ``felony involves or may involve
domestic or international terrorism.'' While most such
felonies are already covered in the Electronic Communications
Privacy Act of 1986 (ECPA), 18 U.S.C. Sec. 2510, et seq.,
there are occasions when those engaged in terrorism may have
violated statutes which are not enumerated. In such
instances, although the statute may not ordinarily merit
status as a predicate under ECPA, the specific actions of the
target(s) may raise the seriousness of the statute to a level
where an ECPA order is appropriate.
Section 106 would also expand the list of predicate crimes
to include felony explosives violations. Such violations are
key to terrorism and violent crime prosecutions and
accordingly a key predicate to ECPA orders which may be
required in such cases.
Sec. 807. Temporary emergency wiretap authority involving
terroristic crimes.
Section 807 would simply permit the issuance of emergency
wiretap orders--already available in organized crime cases--
to situations involving domestic or international terrorism.
Such orders are only valid for 48 hours but are essential
because this period of time is sufficient to permit the FBI
to obtain a court-ordered warrant, a process which may take
as long as the 48 hours permitted.
Sec. 808. Expanded authority for roving wiretaps.
Section 808 removes a needless impediment to the issuance
of roving wiretaps--wiretaps which protect individual rights
because the ``tap'' follows the target from phone to phone
rather than remaining on one phone which others may use--by
deleting the requirement that the government, which must show
that the target is using multiple phones lines, is doing so
in order to avoid routine surveillance.
This is a hard standard to meet and bears no direct
relevance to whether the roving wiretap ought to be
authorized by a court. Although roving wiretaps have been
authorized since at least 1986, the additional requirement of
proof of motive has foiled several major investigations.
Sec. 809. Enhanced access to telephone billing records.
Section 809 would allow the FBI to obtain telephone billing
information already available in routine cases by way of
grand jury subpoena. Although toll records are already
available, information such as address, length of service and
local calling information is essential in many investigations
and the very same information is used by many telephone
companies for routine marketing and sales promotion programs.
Sec. 810. Requirement to preserve evidence.
Section 810 would require telephone companies to preserve
their records on demand, for at least 90 days, possibly more,
until a court order to preserve records can be obtained.
Although most mainstream phone companies already preserve
their records for more than this period of time, the growth
of small companies in the industry has resulted in
services which discard records after very short periods of
time. Such information is of critical importance in a wide
variety of investigations.
Sec. 811. Permission to request military assistance with
respect to offenses involving chemical and biological
weapons.
Section 811 would permit the Attorney General to request
military assistance in cases involving chemical and
biological weapons. New subsections enacted by section 811
and codified at Sec. Sec. 175(c) and 2332b(c) would provide a
limited exception to the Posse Comitatus Act to permit the
military to provide technical assistance to federal law
enforcement officials in enforcing these subsections.
Technical assistance could include assistance in
investigations, in conducting searches, in evidence
collection, and in disarming and disabling individuals but
would not include authority to arrest. Further, these
subsections do not authorize any intelligence agency to
engage in any activity that is not otherwise authorized by
law or executive order.
Section 811 would also amend current law concerning
chemical weapons to include all chemical weapons, whether in
gaseous form or not. Under existing law, chemical weapons are
covered, only if in gaseous form. Accordingly, an individual
who poisoned a city's water supply with a pellet of dioxin
would not be chargeable under current law because the pellet
was not in gaseous form until it was dropped into the water
Sec. 812. General reward authority of the Attorney General.
Section 812 would remove the existing $500,000 cap on the
Attorney General's reward authority and would also permit the
Attorney General to receive funds from other agencies so as
to permit ``pooled'' awards when multiple agencies are
involved. The Administration intends to submit complementary
appropriations language on this subject.

title ix--substantive prosecutive enhancements

Sec. 901. Possession of stolen explosives.
Section 901 would expand federal statutes which already
criminalize the knowing possession of stolen firearms to
include stolen explosive materials.
Sec. 902. Protection of Federal employees on account of the
performance of their official duties.
Section 902 would expand federal criminal murder and
assault jurisdiction to include all federal employees and
their immediate families. The provision would also include
the uniformed services of the military. Under existing
federal law, only certain enumerated federal employees are
protected under federal law and as federal employees become
targets--not only as the result of their specific job titles,
but merely because they are federal employees--the need for
federal protection grows.

title x--criminal penalties

Sec. 1001. Mandatory penalty for transferring a firearm
knowing that it will be used to commit a crime of violence.
Section 1001 would increase from a maximum to a minimum of
10 years, the sentence of imprisonment which must be imposed
when an individual transfers a firearm knowing that the
firearm material will be used to commit a crime of violence
or a drug trafficking crime. Because such knowledge makes the
crime more serious, there is a greater need for punishment.
Sec. 1002. Mandatory penalty for transferring an explosive
material knowing that it will be used to commit a crime of
violence.
Section 1002 would create a parallel offense to that
involving firearms when an individual transfers explosives
material knowing that the material will be used to commit a
crime of violence or a drug trafficking crime.
Sec. 1003. Increased period of limitations for National
Firearms Act.
Section 1003 would extend the current three-year statute of
limitations which applies to certain serious weapons
offenses, to five years, the same statute of limitations as
applies to virtually all other felony offenses under federal
criminal law. Some of the offenses covered include the
possession of machineguns, sawed-off shotguns, silencers and
explosive devices.

title xi--funding

Sec. 1101. Civil monetary penalty surcharge and
telecommunications carrier compliance payments.
Section 1101 creates a mechanism to pay for the costs of
implementing digital telephony programs. Subject to
appropriations action, a surcharge of 40 percent is added to
each civil monetary penalty at the time it is assessed by the
United States or an agency thereof. The Administration
intends to submit complementary appropriations language on
this subject.

Mr. BIDEN. Mr. President, 2 weeks ago, terrorists destroyed the
Federal building in Oklahoma City, took hundreds of lives, and
destroyed the lives of thousands of others. Federal, State, and local
investigators continue the search for those responsible for that
heinous act.
In the weeks since the attack, there has been renewed focus on S.
390, the President's comprehensive
counterterrorism bill I introducing in February
with Senators Specter and Kohl.
Today, I am pleased to join with Senator Daschle and others in
introducing expanded counterterrorism legislation, which contains
additional proposals to assist law enforcement in the fight against
terrorism.
As I said in February, I believe we must take strong action to
counteract terrorism. Now, in the wake of the Oklahoma City bombing, it
is clear that we must focus our attention not just on foreign
terrorists, but on domestic American terrorists as well.
There are steps we can take, and this bill combines them. We should
ensure that law enforcement has the tools and resources it needs to
effectively investigate and prevent terrorist acts, whatever their
origin.
At the same time, we should not, in the heat of the moment, pass
legislation that we--and the American public--will later regret. Our
freedoms and our Constitution are simply too valuable to be put at risk
in a hurried rush to respond to this terrible tragedy.
Several important provisions in this bill come from S. 390,
introduced earlier this year. For instance, the bill expands the
circumstances in which we can prosecute crimes committed overseas which
affect our interests.
It also prohibits persons from raising funds for foreign terrorist
organizations, implements treaties on plastic explosives, and takes a
number of other important actions.
New provisions in this bill add to that effort by providing enhanced
authority to obtain records in foreign counterintelligence
investigations through letter requests from the FBI. This allows access
to records such as consumer credit reports and hotel/motel records.
[[Page S6216]]

Because foreign counter-intelligence investigations may not involve a
criminal prosecution, a grand jury subpoena may not be an option in
these cases.
This bill now also revises current wiretap laws to provide
authorization for wiretaps in connection with any felony if the
Department of Justice certifies that it is connected to foreign or
domestic terrorism, and it allows for emergency wiretaps in terrorism
investigations.
The bill also alters the standards to obtain a so-called roving
wiretap--targeted at a person moving from phone to phone or using pay
phones.
In addition, the bill allows use of the military to investigate
offenses involving chemical and biological weapons.
And it allows the Department of the Treasury to promulgate
regulations requiring explosives manufacturers to use methods making
the explosives traceable, known as taggants.
While I believe many of the provisions now under consideration in
this bill are useful and desirable, I do share some of the concerns
about the bill.
Specifically, I want to examine closely the need for and the full
scope of the additional authority sought for law enforcement in
wiretapping and in collecting records, particularly where domestic
groups are targeted.
As I said in February, I am also concerned about the alien terrorist
removal provisions, which would allow secret evidence to be used to
deport a person.
Our judicial system generally requires that a defendant be given the
evidence to be used against him--so that he can prepare a defense.
Unseen, unheard evidence simply cannot be defended against, and raises
the possibility of erroneous decisions.
I also believe we should look closely at proposals which would ban
fundraising for organizations which the President designates as
terrorist.
The first amendment rights of association and free speech are at the
heart of our system of government. While we should not allow people to
knowingly support terrorism, we also must ensure that legitimate
political activities are not curtailed.
We must examine these and other issues closely before acting on
terrorism legislation.
But I do believe we should act. Americans enjoy freedoms unlike those
in any other country on the planet. But freedoms bring
responsibilities.
Incidents like the Oklahoma City bombing have no place in our free
and democratic society, which allows full expression of all types of
political views through legitimate means. There is simply no excuse for
turning to violence in a society with open airwaves, uncensored
newspapers, and regular and free elections of the peoples'
representatives.
______

By Mr. HARKIN:
S. 762. A bill to implement General Accounting Office recommendations
regarding the use of commercial software to detect billing code abuse
in Medicare claims processing, and for other purposes; to the Committee
on Finance.

the medicare billing abuse preventon act of 1995

Mr. HARKIN. Mr. President, I am introducing the Medicare
Billing Abuse Prevention Act to implement recommendations of the
General Accounting Office concerning abusive and improper billing
practices that are costing the American taxpayer and individual
Medicare beneficiaries billions of dollars. There is controversy over
what should be done concerning Medicare. But, I am hopeful that we will
all agree that medical providers should receive what they are entitled
to and should not receive payments based on improper billings.
Last year, I along with the chairman and ranking member of the Budget
Committee asked the GAO to look at how much Medicare loses because of
its inability to prevent and detect abusive and inappropriate billings
by health care providers. We specifically asked them what savings the
taxpayers and Medicare beneficiaries might realize if Medicare was to
use the commercially available state of the art computer programs to
detect and stop abusive payments.
GAO has done their usual excellent work. The results of their review
are dramatic. Medicare's system for detecting abuse is failing and it's
costing American taxpayers and senior citizens millions every day.
Taxpayers and those on Medicare could save roughly $4 billion over the
next 5 years if Medicare harnessed the power of the private sector and
used state of the art anti-abuse equipment.
Although I believed we had a problem, the GAO has uncovered losses
from improper billings that are far larger than I expected. They also
suggested a straightforward solution that will conservatively save the
Medicare trust fund about $640 million per year and Medicare
beneficiaries over $140 million a year in their out of pocket costs.
Those estimates are based on four separate samples of 200,000 actual
filed claims each that were processed with commercially available
software developed by four separate computer companies that now provide
the software to commercial users, primarily insurance companies.
I was pleased to hear that the great majority of medical care
providers billed the Government correctly. The losses were the results
of billings submitted by 8 percent of providers. I do want to point out
that all errors are not purposeful. But, whatever the reason, the
Medicare trust fund should have the best protections against improper
payments.
In a hearing held by the Subcommittee on Labor, Health and Human
Services, Education and Related Agencies today, I believe that a solid
case was made for immediate action. Losses are mounting by about $2
million for every day we wait.
Many in Congress are proposing dramatic cuts in Medicare and Medicaid
to pay for tax cuts and reduce the deficit. They are suggesting that
senior citizens and the disabled, most of whom live on limited, fixed
incomes, pay more for Medicare. And they are suggesting dramatic cuts
in payments to doctors, hospitals, and other health care providers--
cuts that will either reduce health care access and quality of care for
older Americans, or simply be shifted on to the millions of working
Americans who have private health insurance.

While Medicare for years led the health care field in technology,
today it has been left in the dust. While most of the Nation's leading
private health insurers and managed care plans are saving billions by
using this state of the art equipment, Medicare lags behind. In fact,
many of the same private health insurers that Medicare contracts with
to process its claims use this new technology on their private sector
business but can't use the same to bring American taxpayers and seniors
Medicare savings. This is part of the reason why Medicare's costs are
rising faster than private sector health care costs.
The GAO had four private companies that have developed sophisticated
computer technology to detect and stop billing abuse run a
representative sample of doctors bills Medicare had already checked and
paid through their systems. The private sector systems found instance
after instance where Medicare, with its outdated computer technology,
paid abusive or inappropriate bills that should have been denied. The
most common form of billing abuse identified was unbundling, where a
doctor performs a procedure and bills Medicare not only for the full
procedure, but also for components of the procedure. For example, a
doctor bills Medicare $5,000 for gall bladder surgery, but also bills
Medicare $1,000 for the incision and closing the wound. Medicare is
paying twice for the same service. Other examples of unbundling abuses
identified include: billing for multiple visits to the same patient on
the same day; billing separately for injections and chemotherapy
administration when those injections are simply a component of the
chemotherapy administration; and, billing for excessive numbers of Pap
smears for the same woman on the same day.
Billing abuses that the commercial computer systems would identify
include mutually exclusive procedures, the use of an inappropriate
assistant at surgery, duplicate billings, and global fee period
violations where one charge might cover a physician's services for 30
days after surgery and the doctor separately charges for services
provided during that time period. [[Page S6217]]
The GAO indicates that it would cost around $20 million or less to
install the private sector technology in Medicare. And they have
clearly demonstrated that such an investment would save Medicare
taxpayers and beneficiaries over $3.9 billion in 5 years. So, for every
dollar we invest, taxpayers will get a $200 return. I call that a
bargain. I want to reiterate: for every day we fail to invest,
taxpayers will lose about $2 million. And more will be lost by
individual Medicare patients, sometimes thousands of dollars by a
single individual. I call that a scandal.

The Billing Abuse Prevention Act will do three things.
First, it will provide a definite time when commercially available
computer systems shall be in actual use to catch billing code abuses by
all of the 32 Medicare contractors who examine Medicare billings so
errors and abusive billing practices can be caught. HCFA has been given
90 days from the date of enactment to set out the exact requirements
under which the 32 Medicare contractors shall have a computer checking
system in place. And, it requires that the contractors actually have
the system in use within 180 days after enactment.
It is my hope and expectation that this can be done more quickly than
that. HCFA should now begin the process to develop the criteria without
waiting for the legislation to pass. With the full cooperation of the
agency, I am hopeful that the HCFA implementing requirements could be
ready by the time the President signs the bill. That will allow the
contractors to move more quickly as well.
Many of the 32 contractors are already using the commercially
available systems to review private insurance claims. But, some
modifications of the systems will be needed to modify the program to
match HCFA billing practices. And, the contractors will want to review
all of the systems that are available that meet HCFA's criteria and go
through the appropriate procurement practices.
Second, the legislation provides that the Secretary of Health and
Human Services may keep information about the system confidential. If
that is not done, detailed information about the system could be used,
to some degree, to get around the system's safeguards. The legislation
also provides that the proprietary information about the systems are
not to be released. If it became available, the companies that created
it might lose a significant part of their investment since other
companies could acquire the technical details of the systems. The
Secretary is expected to release appropriate information about the
system which is in the public interest.
It is important to use commercially available systems because we
already know they work and we can put them into place relatively
quickly with minor modifications. We save time which results in real
savings and we avoid what might be a large development cost if HCFA
tried to create their own system. Another advantage of commercial
systems is that they will be continually improved as the private
development companies work to further improve their systems to acquire
a larger share of the private marketplace.
Third, the Secretary shall order a review of all of the existing
regulations and guidelines governing Medicare payment policies and
billing code abuse to see what modifications might be appropriate to
maximize the benefits of the computer checking systems and avoiding
improper payments.
I urge that this legislation be rapidly considered and
passed.

____________________