[Congressional Record Volume 141, Number 89 (Friday, May 26, 1995)]
[Senate]
[Pages S7599-S7607]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 COMPREHENSIVE TERRORISM PREVENTION ACT

  The Senate continued with the consideration of the bill.
  Mr. LIEBERMAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. LIEBERMAN. Mr. President, I rise to speak on the bill before the 
Senate at this time, S. 735, the Comprehensive Terrorism Prevention Act 
of 1995.
  Mr. President, let me say first how pleased I am that the leadership 
of both parties has reached agreement on so much in this bill and met 
President Clinton's challenge to reach a prompt and bipartisan 
consensus on counterterrorism legislation in the aftermath of the 
tragedy in Oklahoma City.
  Most of the key provisions of the President's counterterrorism bill, 
offered earlier in the year by Senator Biden and others, are included 
in the measure before us. And I thank the majority leadership of the 
committee for doing so. But, as Senator Biden mentioned last night, 
there are a few provisions that have not been included.
  That is why this morning I will offer two amendments which would 
restore two provisions from the original bill to this genuinely 
bipartisan effort, and I am hopeful that there is an opportunity here 
for bipartisan support for these two law enforcement measures, as well.
  Mr. President, in my view, and in the view of those I have spoken to 
in the Federal and State law enforcement communities who are involved 
in the daily, difficult business of pursuing terrorists, these two 
provisions, which would increase law enforcement's capacity to be 
involved in surveillance through wiretapping of terrorists, would be 
extremely helpful to the law enforcement community's efforts to 
penetrate the highly secretive world of [[Page S7600]] terrorists. 
Indeed, I can imagine a number of situations where the power granted by 
these two amendments would provide exactly the kinds of tools that 
could make a difference in stopping terrorists before they strike.
  Mr. President, since joining the Senate, I have spent a fair amount 
of time and effort considering how we, as a nation, can best prepare 
ourselves to counter and stop terrorists' threats because of my fear 
that, though America domestically has been relatively spared, at least 
was when I began these inquiries, from the pain of terrorist attack, 
certainly more so than other nations in the world, that because of 
political events in the world, it was inevitable that unless we 
directed, created some defense there, we would suffer. And, 
unfortunately, we have.
  As I look back, the first hearing I ever chaired as a Senator 
concerned the coordination of our antiterrorism efforts. And in every 
presentation on hearings that I have been involved in since, whether as 
a member of the Governmental Affairs Committee or involved in the ad 
hoc task force on terrorism, which I was privileged to organize, 
witness after witness, whether they were from the State Department or 
the FBI or the U.S. attorney's offices, or think tanks around this city 
or country, emphasized the special importance of surveillance and 
infiltration to preventing and prosecuting terrorist attacks.
  Mr. President, this says the obvious, but it needs to be said: 
Terrorists are cowards. Terrorists are cowards because they strike at 
undefended targets. And while we are quite logically now, in the 
aftermath of Oklahoma City, attempting to rebuild our defenses around 
more likely targets, particularly public buildings affected, the 
terrorist group that wants to create panic in our society, wants to 
punish our society, wants to strike at the sense of order and security 
in our society can, as we have seen in other settings, just as easily 
not strike at a governmental building, but go down the street and 
attack a large private building, an office building, or strike, as some 
have suggested, at the water supply in a community; so that we can 
never defend against all the potential targets of terrorists.
  The best defense is an offense. And the offense in this case, as this 
bill carries out in many ways, is to be watching people who indicate by 
their own behavior that they are capable of violent acts. I am not 
talking about inhibiting political freedoms here. We are not talking 
about prohibiting anybody from writing or speaking or demonstrating in 
a way that they believe, even if we find it abhorrent. But if they act 
in a way that indicates they may be capable of violent acts, criminal 
acts, then we, the people, should have our law enforcement agents there 
watching them, listening to them, infiltrating their groups to see to 
it that whenever possible we can stop them; we can strike before they 
strike at the heart of our society to prevent more death and 
destruction.
  The witnesses that spoke to committees that I have been on were 
commenting mostly on internationally inspired terrorism, but they 
focused again on the importance of electronic surveillance as a 
component of the overall approach of stopping terrorist acts whenever 
possible before they are committed, and electronic surveillance is part 
of that.
  I would argue that electronic surveillance may be more important with 
domestically based terrorists than with international terrorism. So far 
as we know, they are not generally reliant on outside State sponsors 
who, at some point, may be vulnerable to political or military 
pressure.
  Our weapons here are limited to effective law enforcement, including 
one of the most powerful tools law enforcement has, which is carefully 
circumscribed, legally authorized electronic surveillance, particularly 
in this high-technology communication age.


                Amendment No. 1200 to Amendment No. 1199

     (Purpose: To amend the bill with respect to emergency wiretap 
                               authority)

  Mr. LIEBERMAN. So, Mr. President, the first amendment I am offering 
today would add the words ``domestic or international terrorism'' to 
the limited number of situations in which the Attorney General, the 
Deputy Attorney General, or the Assistant Attorney General can obtain 
an emergency 48-hour wiretap without having to go court in that first 
period of time. Under current law, those three Justice Department 
officials and no others may authorize emergency electronic surveillance 
where there is ``first, immediate danger of death or serious physical 
injury to any person; second, conspiratorial activities threatening the 
national security; and third, conspiratorial activities characteristic 
of organized crime.''
  This all is when there is not, in the opinion of the law enforcement 
officials, time to get a court order. But the important condition in 
this law is that within 48 hours of that emergency authorization for 
electronic surveillance from within the Justice Department, law 
enforcement officers must obtain a court order for the wiretap under 
the normal proceedings for court orders.
  They must submit the same affidavits and documents establishing 
probable cause that are required for any other wiretap.
  The top three Justice Department officials who can make these 
emergency authorizations have a strong incentive to be cautious and 
correct in authorizing emergency wiretaps without a court order, 
because if a judge does not issue a court order supporting a wiretap 
within 48 hours, any information obtained via the emergency wiretap is 
inadmissible in court.
  Mr. President, this amendment, therefore, would simply add the words 
``activities characteristic of domestic or international terrorism'' to 
the list of emergency situations where law enforcement has hours, and 
not days, to get the evidence needed to make an arrest, find a chemical 
weapon, diffuse a bomb or perhaps rapidly clear a building that may be 
the target of a terrorist attack.
  Given the devastating effects of these terrorist acts, which are 
assaults not only on individuals but on whole communities--in fact on 
our Nation and on the democratic processes and the liberties that we 
have--do we not want to give our law enforcement officials the same 
authority to obtain temporary emergency wiretaps they have under 
current law when pursuing organized crime cases? I think so, and I 
believe the American people would think so as well.
  Mr. President, I, therefore, have an amendment which I send to the 
desk at this time.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Connecticut [Mr. Lieberman] proposes an 
     amendment numbered 1200 to amendment No. 1199.

  Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Insert at the appropriate place the following new section:

     SEC.  . REVISION TO EXISTING AUTHORITY FOR EMERGENCY 
                   WIRETAPS.

       (a) Section 2518(7)(a)(iii) of title 18, United States 
     Code, is amended by inserting ``or domestic terrorism or 
     international terrorism (as those terms are defined in 18 
     U.S.C. 2331), for offenses described in section 2516 of this 
     title.'' after ``organized crime''.
       (b) Section 2331 of title 18, United States Code, is 
     amended by inserting the following words after subsection 
     (4)--
       ``(5) the term `domestic terrorism' means any activities 
     that involve violent acts or acts dangerous to human life 
     that are a violation of the criminal laws of the United 
     States or of any State and which appear to be intended to 
     intimidate or coerce a civilian population or to influence 
     the policy of a government by intimidation or coercion; or to 
     affect the conduct of a government by assassination or 
     kidnapping.''.
       (c) Section 2518(7) of title 18 is amended by adding after 
     ``Notwithstanding any other provision of this chapter,'' 
     ``but subject to section 2516,''.

  Mr. LIEBERMAN. Mr. President, I want to finally, before yielding the 
floor, indicate for the Record that the amendment does not change the 
underlying crimes for which an emergency wiretap can be authorized in 
title 18, United States Code, section 2516. It just says that if those 
crimes are part of a domestic terrorist plot, an emergency wiretap can 
be ordered. And these crimes include: Any offense punishable by death 
or imprisonment for more than 1 year, including violations of the 
Atomic Energy Act relating to sabotage of nuclear facilities and fuel 
or espionage and treason.

[[Page S7601]]

  Also, let me point out that the definition of ``terrorism'' covers 
violent acts or acts dangerous to human life.
  Mr. President, I urge adoption of the amendment. I yield the floor.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  Mr. STEVENS addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Alaska.
  Mr. STEVENS. Mr. President, I ask unanimous consent to proceed as in 
morning business for the purpose of explaining a bill which I would 
like to introduce at this time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. STEVENS. I thank the Chair.
  (The remarks of Mr. Stevens pertaining to the introduction of S. 868 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I understand what my dear colleague from 
Connecticut is trying to do with this expansion of the emergency 
wiretap authority, but I apologize to him because I have to rise to 
oppose this amendment which would expand emergency wiretap authority 
permitting the Government to begin a wiretap prior to obtaining court 
approval in a greater range of cases than the law presently allows.
  I find this proposal troubling, and let me list some reasons. I am 
concerned that this provision, if enacted, would unnecessarily broaden 
emergency wiretap authority. Under current law, such authority exists 
when life is in danger, when the national security is threatened, or 
when an organized crime conspiracy is involved. That is title 18, 
United States Code, section 2518(7).
  This authority is constrained by a requirement that the surveillance 
be approved by a court within 48 hours. The President's proposal 
contained in this amendment would expand these powers to any 
conspiratorial activity characteristic of domestic or international 
terrorism. I personally do not believe that this expansion is necessary 
to effectively battle the threat of terrorism.
  Virtually every act of terrorism one can imagine which would require 
an emergency wiretap--that is, the threat is so immediate that the 
Government cannot obtain a court order before instituting the wiretap--
will certainly also involve ``an immediate danger of death or serious 
physical injury,'' or ``a conspiratorial activity threatening the 
national interest,'' as defined in current law. Thus, expanding the 
Government's emergency wiretap powers to any conspiratorial activity 
characteristic of domestic or international terrorism would add little 
to existing authority. However, the little that it does add or will add 
is particularly troubling.
  This amendment defines domestic terrorism in an unwise and extremely 
broad manner. The amendment defines domestic terrorism, in part, as 
``any activities that involve violent acts or acts dangerous to human 
life and which appear to be intended to intimidate or coerce a civilian 
population or to influence the policy of Government by intimidation or 
coercion.''
  That is a potentially vague and very loose standard. There are 
legitimate acts of protest that could be caught up in this definition, 
because they, in some way, pose a danger or are viewed as 
``intimidating.''
  No one, of course, would contend that activities that truly threaten 
the public safety or an individual should go uninvestigated or 
unpunished. However, the standard for initiating a wiretap without a 
court order should certainly be higher than this amendment proposes.
  Mr. President, a wiretap order is deliberately somewhat difficult to 
obtain. It is more difficult because it is more difficult to get the 
Justice Department to approve it than it is to get a judge or 
magistrate to approve it. Because wiretaps are so intrusive and 
conducted in secret by the Government in circumstances under which the 
subject has a reasonable expectation of privacy, the courts and 
Congress have required that the Government meet a heightened burden of 
necessity before using a wiretap to ensure that civil liberties are 
secure.
  The law also, of course, recognizes exigent circumstances, because in 
a true emergency, when lives are at risk, we would not want law 
enforcement to wait for court-approved wiretaps any more than we expect 
a police officer to obtain a search warrant before chasing an armed and 
fleeing suspect into a house. Our present wiretap statute recognizes 
this with its emergency provision and expanding the exception should 
give us pause. We must ensure that in our response to recent terrorist 
acts, we do not destroy the freedom that we cherish. I fear that the 
amendment does take us a step down that road, and for these reasons, I 
oppose the amendment.
  Let me mention one other thing. The distinguished Senator from 
Connecticut is very sincere and well-intentioned with this amendment. I 
acknowledge that. And he is an acknowledged authority on law 
enforcement. But I have to question whether this amendment would permit 
the Government to obtain emergency wiretaps; in other words, a wiretap 
without a court order--let me repeat that; a wiretap obtained without a 
court order--of, let us say, some of these groups in our society today, 
ranging from the right to the left. Take a gay rights group like Act 
Up, or an environmental group like some of the more vociferous 
environmental groups; or you could take some groups on the right that 
are vociferous that stage a sit-in that may violate some State property 
or some loitering felony. It seems to me that a demonstration blocking 
a busy street or entrance to a church or hospital could endanger human 
life under certain circumstances, and certainly a demonstration of this 
nature would be intended to change the Government's policy. This 
amendment could thus permit the Government to listen to the 
conversations of such groups without obtaining a court order.
  This is deeply troubling to me, and I think to anybody who believes 
in the Bill of Rights and in the important protections the Constitution 
affords us. It is easy to come up with circumstances that would justify 
a wiretap, but then you meet the emergency requirements already in law. 
So I would rather stick with the current law.
  So I urge my fellow Senators to vote against this. That is with a 
full understanding of what the distinguished Senator from Connecticut 
is trying to do, and with some sympathy toward what he is trying to do, 
except I do not think we should expand the wiretap laws any further.
  Mr. BIDEN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Delaware is recognized.
  Mr. BIDEN. I rise to support Senator Lieberman's amendment on 
emergency wiretap authority. Quite frankly, Mr. President, this 
amendment would add to this bill the President's proposal in the 
President's original bill to extend authority for emergency wiretaps--
which are already available, I might add, for organized crime cases--to 
terrorism crimes. And I am sure people looking at this debate are 
probably thinking: Wait a minute. Senator Orrin Hatch is arguing 
against this on civil liberties grounds, and Biden being for this--I 
was going to facetiously say something, but I will not say it. This is 
no time for humor.
  At any rate, the reason I am for this bill--and I have a pretty long 
record and history here of being as vigilant in the civil liberties of 
Americans and constitutional rights as anyone in this body--is that I 
do not see a lot of distinction between crimes of terrorism and 
organized crime. It is kind of basic to me. If the justification exists 
for organized crime, why would it not exist for crimes of terrorism?
  Now, let me explain first what probably my friend from Connecticut 
has already explained--I apologize if I am going over old ground; I 
will be brief--what an emergency wiretap is and how limited an 
emergency wiretap is.
  In almost all cases, the Government has to get a court order to 
initiate a wiretap, under stringent standards set out in current law. 
The emergency wiretap authority allows the Government to initiate a 
wiretap without a court order in emergency situations involving, one, 
immediate danger of death or serious physical injury to any person; 
conspiratorial activities threatening national security; or 
conspiratorial activities characteristic of organized crime activities. 
Only the top three Justice Department officials--the Attorney General, 
Deputy [[Page S7602]] Attorney General, and Associate Attorney 
General--can organize an emergency wiretap.
  Now, if it stopped there, I could see why a lot of people would say, 
even with that, that is still too dangerous, and there is still too 
much exposure for Americans of their civil liberties. But even in those 
emergency situations, the law requires the Government to seek judicial 
approval of the wiretap within 48 hours.
  So it is not like there can be an emergency wiretap placed on the 
authority of the top three Justice Department officials, the top three, 
and left on and then the information used. Within 48 hours, they have 
to get a court order or cease and desist. That is the second 
requirement.
  First, it has to fit the criteria of immediate danger, death, and so 
on, which I read. Second, within 48 hours, there has to be a court 
order. Third, if when they go for the court order, the judge disagrees 
or declines, the wiretap has to end, and any evidence that has been 
gotten in that 48 hours cannot be used. It is sort of an exclusionary 
rule, if you will. It cannot be used.
  So Senator Lieberman's amendment, consistent with what the President 
asked for, would add to the list of emergency situations the following: 
Conspiratorial activities characteristic of domestic or international 
terrorism. It seems to me no less broad than conspiratorial activities 
characteristic of organized crime activities.
  Now, the consistent position for my friends to take here, if they are 
going to take on the amendment of the Senator from Connecticut, would 
be to amend the existing law to strike conspiratorial activities 
characteristic of organized crime. I doubt whether they would want to 
do that. So I am kind of at a loss that if they think that is a good 
idea, why not conspiratorial activities characteristic of domestic or 
international terrorism? Is someone going to tell me that they are more 
at jeopardy or less at jeopardy from the Gambino family than we are 
from some bunch of screwballs running around in the woods who are 
planning on blowing up a building? When is the last time the Mafia blew 
up a building? They are not good guys; they are all bad guys. But I do 
not quite understand the logic here. I do not understand the logic.
  Of course, a wiretap is a powerful and intrusive investigative tool. 
We have to be careful to guard against its abuses. There are several 
statutory restrictions that prevent the abuse of emergency wiretaps, 
none of which would be changed by this amendment.
  Now, there is much more that I am inclined to say, but I will not. I 
will conclude by saying, if a wiretap is authorized and the Government 
then goes to court within 48 hours, if the order is not granted, the 
interception is treated as a violation of title III and is inadmissible 
in trial. This provision, in my view, works no great expansion on the 
wiretap statute. The Government is still required to get a judicial 
order. But it is simply allowed to get an order after the fact when 
there is an emergency situation. The amendment simply extends the 
emergency wiretap authority to terrorism offenses and, surely, 
terrorism is as great a threat as organized crime. This is a narrow and 
sensible amendment. I urge my colleagues to support it.
  Let me emphasize that the amendment does not expand the list of 
offenses which can be investigated using a wiretap. By the way, most 
Americans--and I know my friend was a distinguished prosecutor and 
attorney general of his State. He knows full well --but even most 
practicing lawyers do not know--that you cannot, under the Federal law, 
get a wiretap for all felonies. You cannot get them for every crime. 
Most people think that if the FBI has reason to believe any felony is 
being committed, they can go get a wiretap.
 That is not true. They cannot even ask for a wiretap for certain 
crimes.

  This does not expand the list of things for which they can have an 
emergency wiretap. Nor does it expand the list that a judge, when it is 
48 hours later and we say, ``Judge, make this real,'' the judge cannot 
say, ``Well, it is not covered as subject matter for wiretap under the 
law now, but I will let you do it because the change of the law allows 
it.'' It does not do that.
  It does not expand offenses which can be investigated using a 
wiretap. All it does is allow an emergency wiretap for those domestic 
and international terrorist offenses which involve violent acts and 
acts dangerous to human life. The wiretap must then be approved by the 
court. Quite frankly, I do not see how it could be construed to cover a 
simple political demonstration, as my friend from Utah fears.
  What I fear is that we are not making a false distinction between 
acts of terrorism and organized crime. I do not hear anybody suggesting 
that if the Gambino family gets together for a picnic, we are worried 
about whether or not an emergency wiretap may impact on their right to 
have a picnic. I do not hear them saying that.
  If a bunch of wackos get together talking about the Federal 
Government, and the Government has reason to believe they are preparing 
for or engaging in acts of violence, why not them, too?
  To put it in crass terms, if we can mess up the Gambino picnic, we 
should be able to mess up the screwball picnic, if there is evidence--
if there is evidence--that there is a likelihood of a violent act or 
violent crime to be committed.
  I do not know who we are protecting, but it does not seem to make any 
sense to me. No safeguards that exist now are being reduced. We are 
adding an additional category, the category seems reasonable to me.
  I compliment the Senator on his amendment. I yield the floor.
  Mr. SPECTER. Mr. President, I oppose the pending amendment, and I do 
so with a deference to my colleague from Connecticut because of his 
experience as Attorney General.
  I believe that we ought to be very circumspect and very careful 
before expanding wiretapping authority at all until there has been an 
opportunity for very careful study. That opportunity is not present 
here.
  As I have listened to the very abbreviated arguments in the course of 
less than 30 minutes, there may be no expansion beyond the current law. 
Nobody has cited an illustration as to what would be subject to wiretap 
under Senator Lieberman's amendment that would not be subject to 
wiretap under existing law. It may well be that there are sufficient 
vagaries in the language of the amendment which could render it 
overbroad.
  This bill has not been subjected to the usual legislative process of 
a markup, which is where the committee sits down and goes over the bill 
and considers amendments in a more deliberative fashion than an 
amendment being presented and debated on the floor over the course of 
30 minutes, or a few minutes more.
  In saying this, I do not fault, at all, the distinguished Senator 
from Connecticut, because these are the rules of procedure in the 
Senate. I do say that it ought to give Members some pause.
  As we speak, we are on a Friday near noon and many Senators are 
waiting to catch planes. The distinguished clerk is nodding in the 
affirmative. I do not think we ought to legislate in this kind of a 
rush. Expanding wiretap authority may have a very, very serious impact 
on civil liberties. No compelling need has been shown for adopting this 
amendment and, therefore, I think the amendment ought not to be 
enacted. Under these procedures and time constraints, I am sure of 
that. I yield the floor.
  The PRESIDING OFFICER (Mr. Bennett). The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, let me assure my friend and colleague 
from Pennsylvania that I am in no rush.
  I have been following this question of how we can best counter 
terrorism for a long time, and I have been working with people in the 
FBI, the U.S. attorney offices, and the Justice Department. They tell 
me that that is an expanded authority that will help them combat 
terrorism.
  I have spent a fair amount of time thinking about this amendment. I 
have concluded that it gives one more weapon to the folks that are 
fighting on our side against the terrorists.
  Mr. President, I must say I am a little bit surprised by some of the 
objections which suggest that this authority, limited as it is, as the 
Senator from Delaware made clear, 48-hour emergency wiretap, three 
officials at the Justice Department, can authorize on a showing of 
necessity the same [[Page S7603]] grounds that a court would use if a 
court does not similarly authorize the wiretap within 48 hours, it is 
over, and the evidence seized in between is inadmissible.
  Let me go to the concern about whether this authority might be used 
against domestic political groups compromising their civil liberties. 
There is nowhere in the language of the proposal, let alone the 
underlying law which it amends, to suggest that that is possible. It is 
certainly not my intention.
  The term ``domestic terrorism'' which as Senator Biden has indicated 
is what this is about, we take the language here, conspiratorial 
activities characteristic of organized crime, which an emergency 
wiretap can be grounded, and add conspiratorial activities 
characteristic of domestic terrorism.
  How do we define ``domestic terrorism?'' It means any activities that 
involve violent acts, or acts dangerous to human life, that are 
criminal--that are a violation of the criminal laws of the United 
States or any State; and on top of that, which appear to be intended to 
intimidate or coerce a civilian population or influence the policy of 
the Government by intimidation and coercion.
  It takes more than the intention to intimidate or coerce the 
Government or the American people, one must be contemplating or 
involved in violent acts or criminal acts with that purpose.
  Now, there is no mainstream or out of the mainstream political group 
that just is expressing points of view that is by any stretch of the 
imagination going to be subject to an emergency wiretap under this 
provision.
  There is a general point, and I will make it as my final point. It 
does cover international terrorism as well. We are not talking just 
domestic political groups, but people or agents of foreign governments, 
agents of foreign groups that may be on our soil, moving around, 
attempting or planning acts of violence against us.
  The general point in terms of the concern of civil liberties. As is 
true in so many of these questions of law and order and maintaining 
that basic order that is the precondition of our liberties, the 
question is, who do we give the benefit of the doubt? Are we going to 
side with the potential victims of a terrorist act? Are we going to 
stretch over so far backward in our concern about civil liberties that 
we give the benefit of the doubt to the would-be terrorists? To me 
there ought to be a simple answer to that equation.
  It is, in another sense, do we trust those in positions of authority? 
I have had the privilege of working in law enforcement. The U.S. 
attorneys, the FBI, the Secret Service--they are not perfect. They are 
just people. But by and large these are people who are out there every 
day, as we have seen too often, putting their lives on the line for 
Government to maintain the order that does protect our liberty.
  Give me a choice of giving them another narrowly circumscribed 
authority to use to stop terrorism, I am going to give it to them with 
the confidence that in almost every case I can think of, they will use 
it in an appropriate way. If for some reason they do not, within 48 
hours a judge is going to come along and say ``That is it, take the 
wiretap off.'' And not only that, everything that has been gathered in 
the 48 hours is inadmissible in court.
  This power, incidentally, that has existed under this statute 
regarding national security and organized crime cases, has rarely been 
used because of the standard set up in the law and because of the 
deterrent that if a judge does not confirm the original authorization 
by the Justice Department, evidence is inadmissible.
  Mr. President, I think this is just one smart tool, another smart 
tool, to give the folks who are out there fighting terrorists on our 
side to make sure we stop the terrorists before they stop us. I yield 
the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I understand the distinguished Senator from 
Delaware would like to speak?
  Mr. BIDEN. Mr. President, I ask unanimous consent that a letter and 
testimony regarding this bill be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                        Gun Owners of America,

                                    Springfield, VA, May 18, 1995.
       Dear Senator: The tragic bombing in Oklahoma City has, 
     unfortunately, provoked a ``feeding frenzy'' of efforts to 
     manipulate the unfortunate victims for the political 
     advantage of certain special interests and ideological points 
     of view. These efforts have been embodied in attempts to 
     blame pro-Second Amendment organizations, pro-life groups, or 
     Republicans in general for what appear to be the actions of 
     isolated madmen.
       In this climate, it is particularly important that we not 
     over-react or react foolishly to the heart-rending events 
     which we, as a nation, have witnessed. On April 27, S. 735 
     was introduced by the Majority Leader and the Chairman of the 
     Senate Judiciary Committee, and was brought directly onto the 
     Senate calendar. While avoiding some of the most extreme 
     proposals which have been posited for political advantage in 
     the wake of the bombing, S. 735 nevertheless contains some 
     provisions which are far too dangerous to be considered 
     without hearings, markup, and the normal checks and balances 
     of the legislative process.
       As introduced, Gun Owners of America would oppose S. 735, 
     and would rate any vote for that legislation as an anti-gun 
     vote. In particular, we object to provisions of S. 735 which 
     would:
       Allow the BATF to go after gun dealers for far-reaching 
     ``conspiracy'' charges involving no overt act at all;
       Significantly broaden the materials which the Secretary of 
     the Treasury could require from law-abiding businesses, 
     groups and individuals;
       Preempt state law enforcement efforts in many circumstances 
     which are primarily of local concern,
       Broaden the authority of the FBI to make demands of 
     citizens not suspected of crimes, and, in general, increase 
     the ability of government to intrude on the privacy and 
     rights of individuals.
       It may well be the Congress, after due consideration, will 
     decide that some changes in federal law are necessary. But 
     this is not an area where legislation should be adopted prior 
     to full consideration of the ramifications of that 
     legislation. I therefore urge you to step back, hold 
     hearings, and take time to consider what, if any, changes in 
     federal law would genuinely address the issue of terrorism, 
     rather than merely serving as a political placebo. The 
     country and the Constitution will both be healthier as a 
     result of your efforts.
           Sincerely,
                                                      Larry Pratt,
     Executive Director.
                                                                    ____

Excerpts From Written Testimony Before the U.S. Senate Committee on the 
    Judiciary, Submitted by David B. Kopel, Associate Policy Analyst


                              wiretapping

       Various proposals have been offered to expand dramatically 
     the scope of wiretapping. For example, the Clinton bill 
     defines almost all violent and property crime (down to petty 
     offenses below misdemeanors) as ``terrorism'' and also allow 
     wiretaps for ``terrorism'' investigations.
       Other proposals would allow wiretaps for all federal 
     felonies, rather than for the special subet of felonies for 
     which wiretaps have been determined to be especially 
     necessary. Notably, wiretaps are already available for the 
     fundamental terrorist offenses: arson and homicide. 
     Authorizing wiretaps for evasion of federal vitamin 
     regulations, gun registration requirements, or wetlands 
     regulations is hardly a serious contribution to anti-
     terrorism, but amounts to a bait-and-switch on the American 
     people.
       Currently, FBI wiretapping, bugging, and secret break-ins 
     of the property of American groups is allowed after approval 
     from a seven-member federal court which meets in secret. Of 
     the 7,554 applications which the FBI has submitted in since 
     1978, 7,553 have been approved.
       Making the request for vast new wiretap powers all the more 
     unconvincing is how poorly wiretap powers have been used in 
     the past. Terrorists are, of course, already subject to being 
     wiretapped. Yet as federal wiretaps set new record highs 
     every year, wiretaps are used almost exclusively for 
     gambling, racketeering, and drugs. The last known wiretap for 
     a bombing investigation was in 1998. Of the 976 federal 
     electronic eavesdropping applications in 1993, not a single 
     one was for arson, explosives, or firearms, let alone 
     terrorism. From 1983 to 1993, of the 8,800 applications for 
     eavesdropping, only 16 were for arson, explosives, or 
     firearms. In short, requests for vast new wiretapping powers 
     because of terrorism are akin to a carpenter asking for a 
     pile driver to hammer a nail, while a hammer lies nearby, 
     unused.
       Even more disturbing than proposals to expand the 
     jurisdictional base for wiretaps are efforts to remove legal 
     controls on wiretaps. For example, wiretaps are authorized 
     for the interception of particular speakers on particular 
     phone lines. If the interception target keeps switching 
     telephones (as by using a variety of pay phones), the 
     government may ask the court for a ``roving wiretap,'' 
     authorizing interception of any phone line the target is 
     using. Yet while roving wiretaps are currently available when 
     the government shows the court a need, the Clinton and Dole 
     bills allow roving wiretaps for ``terrorism'' 
     [[Page S7604]] without court order. (Again, remember that 
     both bills define ``terrorism'' as almost all violent or 
     property crime.)
       The Foreign Intelligence Surveillance Act (FISA) provides 
     procedures for authorizing wiretaps in various cases. These 
     procedures have worked in the most serious foreign espionage 
     cases. Yet the Clinton and Dole bills would authorize use of 
     evidence gathered in violation of FISA in certain deportation 
     proceedings.


                       warrantless data gathering

       Proposals have also been offered to require credit card 
     companies, financial reporting services, hotels, airlines, 
     and bus companies to turn over customer information whenever 
     demanded by the federal government. Document subpoenas are 
     currently available whenever the government wishes to coerce 
     a company into disclosing private customer information. Thus, 
     the proposals do not increase the type of private information 
     that the government can obtain; the proposals simply allow 
     the government to obtain the information even when the 
     government cannot show a court that there is probable cause 
     to believe that the documents contain evidence of illegal 
     activity.
       Similar analysis may be applied to proposals to increase 
     the use of pen registers (which record phone numbers called, 
     but do not record conversations, and thus do not
      require a warrant). If a phone company has a high enough 
     regard for its customers' privacy so as to not allow pen 
     registers to be used without any controls, the government 
     may obtain a court order to place a pen register. Business 
     respect for customer privacy ought to be encouraged, not 
     outlawed.


          curtailing first amendment rights of computer users

       For some government agencies, the Oklahoma City tragedy has 
     become a vehicle for enactment of ``wish list'' legislation 
     that has nothing to do with Oklahoma City, but which it is 
     apparently hoped the ``do something'' imperative of the 
     moment will not examine carefully.
       One prominent example is legislation to drastically curtail 
     the right of habeas corpus. Although Supreme Court decisions 
     in recent years have already sharply limited habeas corpus, 
     prosecutors' lobbies want to go even further. Two obvious 
     points should be made: First, habeas corpus has nothing to do 
     with apprehending criminals; by definition, anyone who files 
     a habeas corpus petition is already in prison. Second, habeas 
     corpus has nothing to do with Oklahoma City in particular, or 
     terrorism in general.
       A second example, of piggybacking irrelevant legislation 
     designed to reduce civil liberties are current FBI efforts to 
     outlaw computer privacy.
       If a person writes a letter to another person, he can write 
     the letter in a secret code. If the government intercepts the 
     letter, and cannot figure out the secret code, the government 
     is out of luck. These basic First Amendment principles have 
     never been questioned.
       But, if instead of writing the letter with pen and paper, 
     the letter is written electronically, and mailed over a 
     computer network rather than postal mail, do privacy 
     interests suddenly vanish? According to FBI director Louis 
     Freeh, the answer is apparently ``yes.''
       Testifying before the Senate Judiciary Committee about 
     Oklahoma City, director Freeh complained that people can 
     communicate over the internet ``in encrypted conversations 
     for which we have no available means to read and understand 
     unless that encryption problem is dealt with immediately.'' 
     ``That encryption problem'' (i.e. people being able to 
     communicate privately) could only be solved by outlawing high 
     quality encryption software like Pretty Good Privacy.
       First of all, shareware versions of Pretty Good Privacy are 
     ubiquitous throughout American computer networks. The cat 
     cannot be put back in the bag. More fundamentally, the 
     potential that a criminal, including a terrorist, might 
     misuse private communications is no reason to abolish private 
     communications per se. After all, people whose homes are 
     lawfully bugged can communicate privately by writing with an 
     Etch-a-Sketch. That is no reason to outlaw Etch-a-Sketch.
       Although Mr. Freeh apparently wants to outlaw encryption 
     entirely, the Clinton administration has been proposing the 
     ``Clipper Chip.'' The federal government has begun requiring 
     that all vendors supplying phones to the federal government 
     include the ``Clipper'' chip. Using the federal government's 
     enormous purchasing clout, the Clinton administration is 
     attempting to make the Clipper Chip into a de facto national 
     standard.
       The clipper chips provides a low level of privacy 
     protection against casual snoopers. But some computer 
     scientists have already announced that the chip can be 
     defeated. Moreover, the ``key''--which allows the private 
     phone conversation, computer file, or electronic mail to be 
     opened up by unauthorized third parties--will be held by the 
     federal government.
       The federal government promises that it will keep the key 
     carefully guarded, and only use the key to snoop when 
     absolutely necessary. This is the same federal government 
     that promised that social security numbers would only be used 
     to administer the social security system, and that the 
     Internal Revenue Service would never be used for political 
     purposes.
       Proposals for the federal government's acquisition of a key 
     to everyone's electronic data, which the government promises 
     never to misuse, might be compared to the federal 
     government's proposing to acquire a key to everyone's home. 
     Currently, people can buy door locks and other security 
     devices that are of such high quality that covert entry by 
     the government is impossible; the government might be able to 
     break the door down, but the government would not be able to 
     enter discretely, place an electronic surveillance device, 
     and then leave. Thus, high-quality locks can defeat a lawful 
     government attempt to read a person's electronic 
     correspondence or data.
       Similarly, it is legal for the government to search through 
     somebody's garbage without a warrant; but there is nothing 
     wrong with the privacy-conscious people and businesses using 
     paper shredders to defeat any potential garbage snooping. 
     Even if high-quality shredders make it impossible for 
     documents to be pieced back together, such shredders should 
     not be illegal.
       Likewise, while wiretaps or government surveillance of 
     computer communications may be legal, there should be no 
     obligation of individuals or businesses to make wiretapping 
     easy. Simply put, Americans should not be required to live 
     their lives in a manner so that the government can spy on 
     them when necessary.
       Thus, although proposals to outlaw or emasculate computer 
     privacy are sometimes defended as maintaining the status quo 
     (easy government wiretaps), the true status quo in America is 
     that manufacturers and consumers have never been required to 
     buy products which are custom-designed to facilitate 
     government snooping.
       The point is no less valid for electronic keys than it is 
     for front-door keys. The only reason that electronic privacy 
     invasions are even discussed (whereas their counterparts for 
     ``old-fashioned'' privacy invasions are too absurd to even be 
     contemplated), is the tendency of new technologies to be more 
     highly restricted than old technologies. For example, the 
     Supreme Court in the 1920's began allowing searches of 
     drivers and automobiles that would never have been allowed 
     for persons riding horses.
       But the better Supreme Court decisions recognize that the 
     Constitution defines a relationship between individuals and 
     the government that is applied to every new technology. For 
     example, in United States v. Katz, the Court applied the 
     privacy principle underlying the Fourth Amendment to prohibit 
     warrantless eavesdropping on telephone calls made from a 
     public phone booth--even though telephones had not been 
     invented at the time of the Fourth Amendment. Likewise, the 
     principle underlying freedom of the press--that an unfettered 
     press is an important check on secretive and abusive 
     governments--remains the same whether a publisher uses a 
     Franklin press to produce a hundred copies of a pamphlet, or 
     laser printers to produce a hundred thousand. Privacy rights 
     for mail remain the same whether the letter is written with a 
     quill pen and a paper encryption ``wheel,'' or with a 
     computer and Pretty Good Privacy.
       Efforts to limit electronic privacy will harm not just the 
     First Amendment, but also American commerce. Genuinely secure 
     public-key encryption (like Pretty Good Privacy) gives users 
     the safety and convenience of electronic files plus the 
     security features of paper envelopes and signatures. A good 
     encryption program can authenticate the creator of a 
     particular electronic document--just as a written signature 
     authenticates (more or less) the creator of a particular 
     paper document.
       Public-key encryption can greatly reduce the need for 
     paper. With secure public-key encryption, businesses could 
     distribute catalogs, take orders, pay with digital cash, and 
     enforce contracts with veriable signatures--all without 
     paper.
       Conversely the Clinton administration's weak privacy 
     protection (giving the federal government the ability to spy 
     everywhere) means that confidential business secrets will be 
     easily stolen by business competitors who can bribe local or 
     federal law enforcement officials to divulge the ``secret'' 
     codes for breaking into private conversations and files, or 
     who can hack the clipper chips.

                           *   *   *   *   *



                      right to keep and bear arms

                       Cracking down on militias

       Equating all militias with white supremacists is nonsense. 
     Like the Los Angeles Police Department, some militias may 
     have members, or even officers, who are racist, but that does 
     not mean that the organization as a whole, or the vast 
     majority of its members are racists. Most militias are 
     composed of people with jobs and families; people who are 
     seeking to protect what they have, not to inflict revenge on 
     others for their own failings.
       The frenzy of hatred being whipped up against law-abiding 
     militia members is not unlike the hatred to which law-abiding 
     Arab-Americans would have been subjected,
      had Oklahoma City been perpetrated by the Libyan secret 
     service. It is not unlike the hatred to which Japanese-
     Americans were subjected after World War II. Ironically, 
     some politicians who complain about the coarse, angry tone 
     of American politics do so in speeches in which they heap 
     hate-filled invective upon anyone and everyone who belongs 
     to a militia.
       As this Issue Brief is written, no evidence has developed 
     which ties any militia (let [[Page S7605]] alone all of them) 
     to the Oklahoma City crime. At most, two suspects are said to 
     have attended a few militia meetings and left because the 
     militias did not share their goals. This fact no more proves 
     a militia conspiracy than the hypothetical fact that the 
     suspects went to church a few times would prove that the Pope 
     and Jerry Falwell masterminded the Oklahoma City bombing.
       That someone who perpetrated a crime may have attended a 
     militia meeting is hardly proof that all militias should be 
     destroyed. The step-father of Susan Smith (the alleged South 
     Carolina child murderer) sexually molested her one night 
     after he returned from putting up posters for the Pat 
     Robertson presidential campaign. What if someone suggested 
     that the ``radical'' patriarchal theories espoused by 
     Robertson and the Christian Coalition created the 
     ``atmosphere'' which led to the incestuous rape, and that 
     therefore all Christian Coalition members were responsible 
     for the crime, and the FBI should ``crack down'' on them? The 
     claim would be dismissed in a second; equally outrageous 
     claims about gun owners should likewise be dismissed.
       It is a sad testament to the bigotry of certain segments of 
     the media that totally unsubstantiated, vicious conspiracy 
     theories of the type which were once employed against 
     Catholics and Jews are now being trotted out against militia 
     members, patriots, and gun owners.
       No militia group was involved with the Oklahoma City 
     bombing. Despite the hate-mongering of the media, the 
     ``need'' to start spying on militia groups is a totally 
     implausible basis for expansion of federal government powers.
       Moreover, militia groups hold public meetings, sometimes 
     advertising in local newspapers. There is hardly a need for 
     greater ``surveillance'' of such public groups.
       To respond intelligently to the militia and patriot 
     movements, we must acknowledge that, although the movements 
     are permeated with implausible conspiracy theories, the 
     movements are a reaction to increasing militarization, 
     lawlessness, and violence of federal law enforcement, a 
     genuine problem which should concern all Americans.
       We must also remember that it is lawful in the United 
     States to exercise freedom of speech and the right to bear 
     arms. Spending one's weekends in the woods practicing with 
     firearms and listening to right-wing political speeches is 
     not my idea of a good time, but there is not, and should not, 
     be anything illegal about it.
       If we want to shrink the militia movement, the surest way 
     is to reduce criminal and abusive behavior by the federal 
     government, and to require a thorough, open investigation by 
     a Special Prosecutor of what happened at Waco and at Ruby 
     Ridge, Idaho. If, as the evidence strongly suggests, the law 
     was broken, the law-breakers should be prosecuted, even if 
     they happen to be government employees.
       Conversely, the persons responsible for the deaths of 
     innocent Americans should not be promoted to even-higher 
     positions in the FBI or federal law enforcement. If the 
     Clinton administration were trying to fan the flames of 
     paranoia, it could hardly do better than to have appointed 
     Larry Potts second-in-command at the FBI.
       Militias and patriot groups have been understandably 
     ridiculed for a paranoid world-view centered on the United 
     Nations and international banking. But ironically, many of 
     the people doing the ridiculing share an equally paranoid 
     world-view. Most members of the establishment media and the 
     gun control movement have no more idea what a real militia 
     member is like than militia members have about what a real 
     international banker is like. In both cases, stereotyping 
     substitutes for understanding, and familiar devils (the 
     United Nations for the militia, the National Rifle 
     Association for the establishment media) are claimed to be 
     the motive force behind the actions of a man who (allegedly) 
     believes that the government put a microchip in his buttocks.
       Nearly twenty years ago, an article in the Public Interest 
     explained the American gun control conflict:
       ``[U]nderlying the gun control struggle is a fundamental 
     division in our nation. The intensity of passion on this 
     issue suggests to me that we are experiencing a sort of low-
     grade war going on between two alternative views of what 
     America is and ought to be. On the one side are those who 
     take bourgeois Europe as a model of a civilized society: a 
     society just, equitable, and democratic; but well ordered, 
     with the lines of authority clearly drawn, and with decisions 
     made rationally and correctly by intelligent men for the 
     entire nation. To such people, hunting is atavistic, personal 
     violence is shameful, and uncontrolled gun ownership is a 
     blot upon civilization.
       ``On the other side is a group of people who do not tend to 
     be especially articulate or literate, and whose world view is 
     rarely expressed in print. Their model is that of the 
     independent frontiersman who takes care of himself and his 
     family with no interference from the state. They are 
     `conservative' in the sense that they cling to America's 
     unique pre-modern tradition--a non-feudal society
      with a sort of medieval liberty at large for every man. To 
     these people, `sociological' is an epithet. Life is tough 
     and competitive. Manhood means responsibility and caring 
     for your own.''
       The author explained the disaster that America will create 
     for itself if fearful in government attempt to ``crack down'' 
     on fearful gun-owners, thereby fulfilling the worst fears 
     that each group has of the other:
       ``As they [the gun-owners] say to a man, `I'll bury my guns 
     in the wall first.' They ask, because they do not understand 
     the other side, `Why do these people want to disarm us?' They 
     consider themselves no threat to anyone; they are not 
     criminals, not revolutionaries. But slowly, as they become 
     politicized, they find an analysis that fits the phenomenon 
     they experience: Someone fears their having guns, someone is 
     afraid of their defending their families, property, and 
     liberty. Nasty things may happen if these people begin to 
     feel that they are concerned.
       It would be useful, therefore, if some of the mindless 
     passion, on both side, could be drained out of the gun-
     control issue. Gun control is no solution to the crime 
     problem, to the assassination problem, to the terrorist 
     problem. . . . [S]o long as the issue is kept at a white 
     heat, with everyone having some ground to suspect everyone 
     else's ultimate intentions, the rule of reasonableness has 
     little chance to assert itself.''


                            ASSAULT WEAPONS

       Perhaps the most cynical effort to exploit the Oklahoma 
     City tragedy is the effort of gun prohibition advocates to 
     use the murders as a pretext for preserving the federal ban 
     on so-called ``assault weapons.'' To state the obvious, the 
     Oklahoma City bombing was perpetrated with a bomb, not a gun. 
     The bombers may have attended meetings of groups which 
     support the right to keep and bear arms, but that does not 
     prove that gun rights groups were coconspirators, despite the 
     vicious insinuations of some gun prohibition advocates.
       The reasons for repealing the gun ban remain as strong as 
     ever. First of all, Congress has no Constitutional power 
     (under the Constitution's text and original intent) to ban 
     the simple possession (as opposed to sale in interstate 
     commerce) of anything.
       Second, if one looks at actual police data (rather than 
     unsupported claims from anti-gun police administrators), 
     ``assault weapons'' constitute only about one percent of 
     crime guns.
       Third, despite the menacing looks of so-called ``assault 
     weapons,'' they are not more powerful or more deadly than 
     firearms with a more conventional appearance. Instead, the 
     ``assault weapon'' ban is based on cosmetics, such as whether 
     a gun has a bayonet lug--as if criminals were perpetrating 
     drive-by bayonetings.
       Finally, the ban has already been nullified for all 
     practical purposes. Since the law defines an ``assault 
     weapon'' based on trivial characteristics like bayonet lugs, 
     gun manufacturers have already brought ought new versions of 
     the banned guns, minus the cosmetically offensive bayonet 
     lugs and similar components.
       Repeal of the ``assault weapon'' ban makes sense as a move 
     towards a more rational federal criminal justice policy. It 
     makes even more sense when its social impact is considered. 
     Many gun control advocates acknowledged that ``assault 
     weapons'' were a tiny component of the gun crime problem, but 
     they still liked the ban because of its symbolic value. A 
     great many other people, however, were very upset by the 
     symbolic message of the gun ban. Some of them have joined 
     militias, patriot groups, or similar organizations. Indeed, 
     it would be no exaggeration to say that President Clinton, 
     Representative Schumer, and Senator Feinstein have, through 
     pushing the gun ban through Congress, done more to promote 
     the surge in militia membership than anyone else in the 
     nation.
       If we want to reduce the number of people who are 
     frightened by the federal government, the federal government 
     should stop frightening so many people. Given the irrelevance 
     of the ``assault weapon'' ban to actual crime control, repeal 
     of the ban would be a very important step that the federal 
     government could take to convincing millions of Americans 
     that it is not a menace to their liberty. Conversely, 
     retention of a ban on cosmetically-incorrect firearms by law-
     abiding citizens would be a strong statement to the American 
     people that their federal government does not trust them; and 
     if so, why should they trust it?


                            BAN ON TRAINING

       Morris Dees of the Southern Poverty Law Center has begun 
     promoting a federal ban on group firearms training which is 
     not authorized by state law. First of all, state governments 
     are perfectly capable of banning or authorizing whatever they 
     want. The proposal for a federal ban amounts to asking 
     Washington for legislation similar to that which various 
     allies of Mr. Dees promoted at the state level in the 1980s, 
     with little success. The vast majority of states having 
     rejected a training ban, the federal government should hardly 
     impose the will of the small minority on the rest of the 
     states.
       A former direct-mail fundraiser for the antigun lobby, Mr. 
     Dees may be forgiven for a low level of concern for the 
     exercise of the right to keep and bear arms. But the right to 
     keep and bear arms necessarily includes the right to practice 
     with them, just as the Constitutional right to read a 
     newspaper editorial about political events necessarily 
     includes the right to learn how to read. Just as the 
     government may not forbid people from learning how to read in 
     groups, it may not forbid people from learning how to use 
     firearms in groups.
       ``Organizing, arming, and training in conjunction with a 
     political agenda would be [[Page S7606]] seen as dangerous in 
     any other society but our own,'' a private security 
     consultant recently told Congress, demanding that ``these 
     groups be flatly dealt with as `enemies of our society.'''
       Of course the United States was founded by ``religious nuts 
     with guns,'' and later achieved independence as a result of a 
     war instigated by people who organized, armed, and trained 
     with a political agenda. The spark of the revolutionary war, 
     the battle of Lexington and Concord, was prompted by the 
     ruling government's attempts to confiscate the ``assault 
     weapons'' of the day held by local militias. It was at the 
     Concord Bridge where militiamen were ordered to ``wait until 
     you see the whites of their eyes'' and then shot government 
     employees who were coming to arrest them for possessing an 
     illegal ``assault weapon'' (a cannon). The Texan revolution 
     against Mexico likewise began over civilian possession of 
     ``military'' arms, when the Mexican government demanded that 
     settlers hand over a cannon, and the Texans replied, ``Come 
     and take it!''
       The militiamen of Concord Bridge and Texas may have broken 
     the law, but they were great men, worthy of admiration by 
     every schoolchild, and every other American. ``You need only 
     reflect that one of the best ways to get yourself a 
     reputation as a dangerous citizen these days is to go around 
     repeating the very phrases which our founding fathers used in 
     their struggle for independence,'' observed American 
     historian Charles A. Beard.


                bureau of alcohol, tobacco and firearms

       Some people have claimed that criticism of an alleged 
     pattern of criminal conduct at the Bureau of Alcohol, Tobacco 
     and Firearms is tantamount to complicity in the Oklahoma City 
     bombing. If so, then the United States Senate is the party 
     ultimately at fault. In 1982, the Senate Subcommittee on the 
     Constitution investigated the BATF and unanimously concluded 
     that the agency had habitually engaged in:
       ``. . . conduct which borders on the criminal. . . . 
     [E]nforcement tactics made possible by current firearms laws 
     are constitutionally, legally and practically reprehensible. 
     . . . [A]pproximately 75 percent of BATF gun prosecutions 
     were aimed at ordinary citizens who had neither criminal 
     intent nor knowledge, but were enticed by agents into 
     unknowing technical violations.''
       If it is legitimate for a United States Senate subcommittee 
     to find that BATF operations consist of ``conduct which 
     borders on the criminal,'' it is hardly inappropriate for 
     other persons to point out similar conduct.
       The Waco raid was the most spectacular, but hardly the only 
     instance of abuse of power by BATF in conducting search 
     warrants.
       On December 16, 1991 (the first day of the third century of 
     the Bill of Rights), sixty BATF agents, accompanied by two 
     television crews, broke into the Oklahoma home of John 
     Lawmaster. Acting on a tip (suspected to be from Lawmaster's 
     ex-wife) that Lawmaster had illegally converted a semi-
     automatic to full automatic, BATF worked with the ex-wife to 
     lure Lawmaster away from his home before the raid. With 
     Lawmaster absent, BATF knocked down his front door with a 
     battering ram. While some agents stood guard with weapons 
     drawn, other agents broke open his gun safe, scattered his 
     personal papers, spilled boxes of ammunition onto the floor, 
     and broke into a small, locked box that contained precious 
     coins. To look through some ceiling tiles, one agent stood on 
     a table, breaking the table in the process.
       Neighbors who asked what BATF was doing were threatened 
     with arrest. Having found nothing illegal, BATF left weapons 
     and ammunition strewn about the home, and departed. They 
     closed the doors, but since BATF had broken the doors on the 
     way in, the doors could not be latched or locked. Upon 
     returning to the shambles that remained of his home, 
     Lawmaster found a note from BATF: ``Nothing found.'' Utility 
     company representatives arrived, and told Lawmaster that they 
     had been told to shut off all his utilities.
       One of the field commanders of the Waco raid was Ted 
     Royster, head of BATF operations for Texas, Oklahoma, and New 
     Mexico. Royster also supervised the Lawmaster ``raid,'' 
     watching the operation from a parked vehicle with tinted 
     windows.
       On February 5, 1993--23 days before the Waco raid--BATF 
     ransacked the home of Janice Hart, a black woman in Portland, 
     Oregon, terrorizing her and her three children for hours, 
     destroying her furniture, slamming a door on a child's foot, 
     forcing two children to wait outside in a car while Ms. Hart 
     was interrogated inside, and refusing to allow her to call an 
     attorney, until BATF discovered that there was a case of 
     mistaken identity. (BATF had been looking for Janice Harold, 
     who bears no resemblance to Mrs. Hart.) In this case, unlike 
     most others, BATF did at least send a
      check for damages, although no apology was offered.
       As reported by the Washington Times:
       ``In 1990, [Louis Katona] lent a military-style grenade 
     launcher to ATF for use in an unrelated prosecution, but it 
     was never returned.
       ``In May 1992, ATF executed a search warrant at his home. 
     During the search, Mr. Katona said his car's tires were 
     flattened, his firearms were intentionally damaged and his 
     pregnant wife was manhandled so roughly that she had a 
     miscarriage.
       ``In September, he was charged with 19 felonies * * * When 
     the case went to trial in April 1994, U.S. District Judge 
     George W. White directed a verdict of not guilty--asking on 
     the record, `Where's the beef?'''
       In a case which is widely known among the gun community, 
     but which has been ignored by the national press, except for 
     the Washington Times, the home of gun show promoters Harry 
     and Theresa Lamplugh was raided by BATF in 1994. At least 
     fifteen BATF agents, armed with machine guns, burst into 
     Lamplugh's home one morning. Mr. Lamplugh asked the men, most 
     of whom were not wearing uniforms, if they had a warrant. 
     ``Shut the fxxxx up mother fxxxer; do you want more trouble 
     than you already have?'' they responded, sticking a machine 
     gun in his face.
       Over the next six and half hours, BATF agents demolished 
     the home, refused to let the Lamplughs get dressed, held a 
     pizza party, killed three house cats (including a Manx kitten 
     which was stomped to death), scattered Mr. Lamplugh's cancer 
     pills all over the floor, and carted off over eighteen 
     thousand dollars worth of the Lamplugh's property, plus their 
     medical records. Nearly a year later, the government has 
     neither filed any criminal charges, nor returned any 
     property, even the medical records.
       The first of BATF's notorious raids came on June 7, 1971, 
     when agents broke into the home of Kenyon Ballew. A burglar 
     had told the police that Ballew owned grenades. Ballew did 
     own empty grenade hulls, which are entirely legal and 
     unregulated. Wearing ski masks and displaying no 
     identification, BATF agents broke down Ballew's door with a 
     battering ram. Responding to his wife's screams, Ballew took 
     out an antique blackpowder pistol, and was promptly shot by 
     BATF. Nothing illegal was found. He remains confined to a 
     wheelchair as a result of the shooting, and now subsists on 
     welfare.
       If the sear (the catch that holds the hammer at cock) on a 
     semiautomatic rifle wears out, the rifle may malfunction and 
     repeat fire. The BATF arrested and prosecuted a smalltown 
     Tennessee police chief for possession of an automatic weapon 
     (actually a semiautomatic with a worn-out sear), even though 
     the BATF conceded that the police chief had not deliberately 
     altered the weapon. In March and April of 1988, BATF pressed 
     similar charges for a worn-out sear against a Pennsylvania 
     state police sergeant. After a 12-day trial, the federal 
     district judge directed a verdict of not guilty and called 
     the prosecution ``a severe miscarriage of justice.''
       Today, observes Robert E. Sanders, a former head of BATF's 
     criminal division, the bureau's leaders, to the great dismay 
     of many high-quality field agents, have ``shifted from the 
     criminal to the gun,'' and are now waging ``an all-out war 
     against the gun.'' Sanders noted that ``Instead of focusing 
     on selected criminals, there is an indiscriminate focus on 
     anyone who owns guns. They are in total consonance with the 
     Clinton administration's anti-gun position and with the gun 
     control groups.''
       BATF's management has consistently proven itself unwilling 
     to obey statutory law. The Firearm Owners' Protection Act 
     specifically forbids BATF to gather registration information 
     about guns to gun owners, except in connection with a 
     criminal investigation. Nevertheless, BATF is implementing 
     ``Project Forward Trace'' to register the owners of certain 
     legal semiautomatic firearms.
       The Treasury Department defends the Waco attack on the 
     basis that ``the raid fit within an historic, well-
     established and well-defended government interest in 
     prohibiting and breaking up all organized groups that sought 
     to arm or defend themselves.'' The candid admission of BATF's 
     objective, however, conflicts with the fact that nothing in 
     existing law makes it illegal for persons, alone or in 
     groups, to collect large number of weapons and to defend 
     themselves. To the contrary, the ownership of large numbers 
     of weapons is specifically protected by federal statute, by 
     federal case law, and of course by the Second Amendment.
       One approach to improving BATF's conduct would be 
     incremental reforms of the statutes governing BATF. Such an 
     approach was attempted by the Firearm Owners' Protection Act, 
     signed into law in 1986. The 1986 reforms, pushed by the 
     National Rifle Association and other pro-gun organizations, 
     reduced BATF search authority, especially for paperwork 
     technicalities, and increased penalties for armed career 
     criminals. Yet even today, the armed career criminal statutes 
     are often enforced in a manner targeting small-scale, unarmed 
     offenders.
       The Bureau of Alcohol, Tobacco and Firearms (a descendant 
     of the Bureau of Prohibition) enforces the federal alcohol 
     laws in a manner also characterized by administrative abuse, 
     over-reaching beyond statutory power, and selective 
     enforcement against persons or companies who dare to 
     criticize BATF.
       Nor are people outside of BATF the only victims. Planning 
     for the BATF raid on the Mount Carmel Center in Waco began 
     shortly after the Bureau found out that
      Sixty Minutes was working on a story about sexual harassment 
     at BATF. Months later, Sixty Minutes host Mike Wallace 
     opined ``Almost all the agents we talked to said that they 
     believe the initial attack on that cult in Waco was a 
     publicity stunt--the main goal of which was to improve 
     AFT's tarnished image.'' (The codeword for the beginning 
     of the BATF raid was ``showtime.'') [[Page S7607]] 
       The Sixty Minutes report was devastating. BATF agent 
     Michelle Roberts told the television program that after she 
     and some male agents finished a surveillance in a parking 
     lot, ``I was held against the hood of my car and had my 
     clothes ripped at by two other agents.'' Agent Roberts 
     claimed she was in fear of her life. The agent who verified 
     Ms. Roberts' complaints claims that he was pressured to 
     resign from BATF. Another agent, Sandra Hernandez, said her 
     complaints about sexual harassment were at first ignored by 
     BATF, and she was then demoted to file clerk and transferred 
     to a lower-ranking office. BATF agent Bob Hoffman said 
     ``[T]he people I put in jail have more honor than the top 
     administration in this organization.'' Agent Lou Tomasello 
     said, ``I took an oath. And the thing I find totally 
     abhorrent and disgusting is these higher-level people took 
     that same oath and they violate the basic principles and 
     tenets of the Constitution and the laws and simple ethics and 
     morality.'' Black BATF agents have complained about 
     discrimination in assignments.
       Abolishing BATF is no solution, for abolition would leave 
     in place the federal alcohol, tobacco and firearms laws, and 
     transfer their enforcement responsibility to some other 
     agency. It is the very nature of the victimless crimes--such 
     as laws criminalizing the peaceful possession or manufacture 
     of alcohol or firearms--which lead to enforcement abuses. As 
     long as the consensual offense laws remain in the U.S. Code, 
     abusive enforcement is likely, as has been the historical 
     norm since the enactment of such laws. Removing most firearm 
     (and alcohol and tobacco) laws from the federal statutes does 
     not imply that alcohol, tobacco, and firearms should be 
     subject to no legal controls. Rather, the control of those 
     objects can continue to be achieved at the state level, 
     without a redundant layer of federal control and the manifold 
     temptations of federal abuse.
       Since 1985, BATF's size has increased 50%, from 2,900 
     employees to 4,300. In a time of vast budget deficits, simply 
     restoring BATF to its former size might save both taxpayer 
     dollars and taxpayer lives.
       While BATF's performance at Waco was disgraceful, two facts 
     should be kept in mind: First, the BATF has a large number of 
     honorable, admirable employees who have quietly gone about 
     their work for years enforcing federal regulations applicable 
     to gun dealers, and enforcing federal laws against possession 
     of guns by persons with felony convictions for violent crime. 
     Misbehavior of some BATF staff (and some BATF leadership) 
     should not be taken as proof that all BATF employees are bad.

  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, the current United States Code provides 
emergency authority that is totally adequate to resolve the problems 
that are raised by the distinguished Senator from Connecticut. I have 
chatted with him about the fact that I am going to move to table his 
amendment.
  I do so move to table his amendment. Mr. President, I ask for the 
yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question occurs on the motion to table 
amendment No. 1200, offered by the Senator from Connecticut [Mr. 
Lieberman].
  The yeas and nays have been ordered and the clerk will call the roll.
  The legislative clerk called the roll.
  Mr. LOTT. I announce that the Senator from New Mexico [Mr. Domenici], 
the Senator from Texas [Mr. Gramm], the Senator from North Carolina 
[Mr. Helms], the Senator from Texas [Mrs. Hutchison], the Senator from 
Oklahoma [Mr. Inhofe], the Senator from Arizona [Mr. Kyl], the Senator 
from Arizona [Mr. McCain], the Senator from Alaska [Mr. Murkowski], and 
the Senator from Delaware [Mr. Roth] are necessarily absent.
  Mr. FORD. I announce that the Senator from California [Mrs. Boxer], 
the Senator from New Jersey [Mr. Bradley], the Senator from Nebraska 
[Mr. Bryan], the Senator from California [Mrs. Feinstein], the Senator 
from Nebraska [Mr. Kerrey], the Senator from Massachusetts [Mr. Kerry], 
the Senator from Vermont [Mr. Leahy], and the Senator from Arkansas 
[Mr. Pryor] are necessarily absent.
  I also announce that the Senator from Wisconsin [Mr. Feingold], the 
Senator from Wisconsin [Mr. Kohl], and the Senator from Georgia [Mr. 
Nunn] are absent because of attending funeral.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 52, nays 28, as follows:

                      [Rollcall Vote No. 233 Leg.]

                                YEAS--52

     Abraham
     Ashcroft
     Baucus
     Bennett
     Bond
     Brown
     Burns
     Byrd
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Faircloth
     Frist
     Gorton
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Heflin
     Jeffords
     Kassebaum
     Kempthorne
     Lott
     Lugar
     Mack
     McConnell
     Moseley-Braun
     Nickles
     Packwood
     Pressler
     Reid
     Santorum
     Sarbanes
     Shelby
     Simon
     Simpson
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--28

     Akaka
     Biden
     Bingaman
     Breaux
     Bumpers
     Conrad
     Daschle
     Dodd
     Dorgan
     Exon
     Ford
     Glenn
     Graham
     Harkin
     Hollings
     Inouye
     Johnston
     Kennedy
     Lautenberg
     Levin
     Lieberman
     Mikulski
     Moynihan
     Murray
     Pell
     Robb
     Rockefeller
     Wellstone

                             NOT VOTING--20

     Boxer
     Bradley
     Bryan
     Domenici
     Feingold
     Feinstein
     Gramm
     Helms
     Hutchison
     Inhofe
     Kerrey
     Kerry
     Kohl
     Kyl
     Leahy
     McCain
     Murkowski
     Nunn
     Pryor
     Roth
  So the motion to lay on the table the amendment (No. 1200) was agreed 
to.
  Mr. BYRD addressed the Chair.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Mr. President, has the time expired on the Pastore rule?
  The PRESIDING OFFICER. The Senate is still operating under the 
Pastore rule.
  Mr. BYRD. I ask unanimous consent that I may speak out of order for 
not to exceed 4 minutes.
  The PRESIDING OFFICER. Is there objection? Without objection, the 
Senator is recognized to speak out of order for 4 minutes.
  Mr. BYRD. I thank the Chair.

                          ____________________