[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.

                          ____________________