Congressional Record, Volume 141 Issue 91 (Tuesday, June 6, 1995)

[Congressional Record Volume 141, Number 91 (Tuesday, June 6, 1995)]
[Senate]
[Pages S7763-S7776]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

TRIP TO GUATEMALA, COLOMBIA, HAITI

Mr. SPECTER. Mr. President, during the period of May 26-29, 1995, my
colleague on the Senate Intelligence Committee, Michael DeWine, and I
traveled to Guatemala, Colombia, and Haiti for a firsthand view on
matters of concern to the Intelligence Committee and to the Senate. The
following represents my own personal impressions of the facts learned
and my own judgments.
Our first stop was Guatemala. On April 5, 1995 the Senate
Intelligence committee held an open hearing on the role of the CIA in
two human rights cases. In one case, the committee learned that a
Guatemalan, Col. Roberto Alpirez, might be implicated in the murder of
American farmer and innkeeper Michael DeVine on June 8, 1990. During
the open hearing, Acting Director of Central Intelligence, Adm. Bill
Studeman acknowledged that the CIA received information in October 1991
that shed light on the possible presence of Colonel Alpirez in the
interrogation of Mr. DeVine. Admiral Studeman also acknowledged that
the CIA failed to inform the intelligence committees of the House and
the Senate regarding this information which should have been done.
In the second human rights case, Ms. Jennifer Harbury, the widow of a
Guatemalan guerrilla Commander, Efraim Bamaca, repeatedly sought to
learn the fate of her husband. Both Jennifer Harbury and Carole DeVine,
the widow of Michael DeVine, were eloquent and dynamic hearing
witnesses. They pleaded for our assistance to learn the facts of their
husband's deaths, and, in the case of Ms. Harbury, the location of his
remains. We were also interested to learn what happened in the cases of
Nicholas Blake, Sister Diana Ortiz and Helen Mack.
While the committee's staff is analyzing many documents pertaining to
these cases, we traveled to Guatemala to learn more about these matters
and to determine the willingness of the Guatemalan government to
prosecute anyone legally responsible for these deaths. Our visit also
sought to convince the Guatemalan Government that human rights are a
top United States Government priority.
Our first meeting was with Guatemala's President Ramirez deLeon
Carpio, where we focussed on the Guatemala peace process and pressed
hard on human rights, particularly the DeVine and Bamaca cases.
President deLeon is the former human rights ombudsman in Guatemala.
We expressed the U.S.'s wish to assist the peace process and our
strong interest in resolving the DeVine and Bamaca cases. President
deLeon responded by noting the serious challenges his government has
had to face since he took power. He also stated he had confronted
serious corruption in the Congress and the Courts by changing them
through legal means. Finally he noted that he had succeeded in
achieving a 5 percent economic growth and had to persevere in a
confrontation with powerful interests in the private sector to achieve
major fiscal reform which he characterized as being tougher than
dealing with the Army, the guerrillas, and corrupt politicians
combined.
When we pressed on the DeVine and Bamaca cases, President deLeon said
that both represented part of the general problem of impunity in
Guatemala. He noted a difference between the cases. He characterized
the DeVine case as a common crime. Six soldiers and a Captain Contreras
had been convicted. It is widely believed that Captain Contreras was
the leader of the group that murdered Michael DeVine, but after his
sentencing to 20 years in jail, he escaped, perhaps with the complicity
of the Guatemalan Army which had him in custody.
Therefore, to cast this as strictly a common case of crime appears
inaccurate in that the involvement of the Guatemalan military points to
more than a common crime. In my view, not enough has been done to
apprehend him in spite of the fact that the government of Guatemala had
placed a $17,000 reward for the Captain's recapture.

President deLeon stated that he would be calling Venezuelan President
Caldera about the possibility that the Captain is a fugitive in that
country and that the FBI and Interpol have been asked to join in the
search for him abroad. The President added that he expected to send a
special commission to Venezuela to pursue this and thought that
President Caldera would be willing to cooperate.
Later we met with Defense Minister General Mario Enriquez. The DeVine
and Bamaca murders figured preeminently in our discussions. We
underscored several times the importance of the cases to bilateral
relations. General Enriquez stated investigations into both killings
were going forward, but he drew a distinction between Bamaca and
DeVine.
General Enriquez also reported to us that he was hopeful that Captain
Contreras had been captured just prior to our meeting. The next day,
May 27, the newspapers were filled with front page stories of the
capture of Captain Contreras. But a check with our Embassy in Venezuela
did not shed any more light in the veracity of this reporting.
The capture of Captain Contreras would be a critical element in the
resolution of this crime. It might shed light on why and whether other
military officers were involved. President deLeon noted that he had
suspended Colonels Catalan and Alpirez pending investigation of their
involvement in a crime, a step basically unprecedented in Guatemala. We
also learned of the rumored existence of a tape reportedly held by
Colonel Alpirez which allegedly recorded instructions to him to cover
up the DeVine case.
President deLeon asserted that he would go as far as necessary in
pursuing the DeVine case which he added would benefit the army as an
institution in Guatemala.
In regard to Guatemalan guerrilla commander, Efraim Bamaca, President
deLeon made the same distinction between this case and the DeVine
matter as did General Enriquez. In President deLeon's view Bamaca was a
product of war and to push prosecution of that case would de-stabilize
the army. He felt the Bamaca case should be referred to the Historical
Clarification Commission, otherwise known as the ``truth commission,''
established by agreement between the government of Guatemala and the
URNG guerrillas to deal with the many abuses committed during the war
once it was over.
Nonetheless, we continued to press hard. We asked the President to
make an example of the Bamaca case as a human rights violation. It was
important to the relations between the government of the United States
and the government of Guatemala. I noted that this is a special case
and added that if the body of Efraim Bamaca were found, it would
represent a big step forward.
I noted how the testimony of both Jennifer Harbury and Carole DeVine
to the Intelligence Committee on April 5th had been very moving and,
how Colonel Alpirez was linked to both cases. President deLeon
acknowledged as a former human rights ombudsman he knew that there was
no excuse for torture even in war. Many priests had also been murdered.
He stated he wished to strengthen the bi-lateral relations with the
U.S. and improve Guatemala's image. However to pursue the Bamaca case
would threaten the peace process and the stability of the government.
In his words, it would put a ``sword of Damocles'' over the head of all
2,500 Guatemalan military officers who had seen hundreds of their
comrades die in the 34 years of the conflict. What was needed, he
added, was a peace agreement and genuine reconciliation, not
recriminations.

[[Page S7764]]

We also met with human rights activists, including Ronald Ochaeta,
Director of the Archbishop's Human Rights Office; Helen Mack, sister of
the slain Myrna Mack; and Karen Fisher de Carpio, the daughter-in-law
of the slain two-time Presidential candidate and newspaper publisher
Jorge Carpio. Jorge Carpio was a cousin of the President deLeon Carpio.
They requested that the United States government reveal all the
intelligence about Guatemalan military people who may have been
involved in human rights crimes. They also expressed the fear that,
after the Guatemalan army returns Captain Contreras to justice in
Guatemala, that the United States Government and human rights pressure
will diminish; and absent that pressure, the Guatemalan Army will no
longer even remotely respond to human rights concerns. They termed the
Guatemalan justice system as being dysfunctional. Within the Army, they
felt that there is brotherhood in which only some individual members
are involved in a variety of illegal activities: human rights
violations; stealing of cars; and drug trafficking, etc. They expressed
the view that while most members of the army may not have been involved
in these activities, all have taken ``a blood pact'' not to disclose
any details on their fellow military comrades.
I agree with the human rights activists and monitors that only with
the pressure of the U.S. Government and the international community
will cause the Army to improve its human rights performance in the
future and to shed light and sanctions on past crimes.
Our next stop took us to Colombia where we met with President Ernesto
Samper, his Foreign Affairs Minister, Rodrigo Pardo, and his Defense
Minister, Fernando Botero. We met the leaders of this country in
Cartagena. Our discussions centered on narcotics trafficking and
terrorism. While the United States has been riveted for years over the
taking of hostages in the Middle East, scant attention has been paid to
hostage taking in South America, particularly in Colombia where
presently seven Americans are being held by the terrorist group known
as FARC. I raised these issues with our Ambassador Myles Frechette and
with President Samper. The view of both of them is this hostage taking
is different in the sense that it is financially motivated. Terrorists
have been taking Americans and other foreign nationals captive for
ransom purposes. In meetings with President Samper, Senator DeWine and
I pressed for more action to prevent the taking of these hostages and
greater efforts to release them. In my view, not enough has been done
in this area.
Of paramount importance were our discussions regarding narcotics
trafficking. The conditional certification of Colombia by the President
on February 28, 1995 has clearly had an impact on the government on
Colombia.
Prior to February 1995, there had been sporadic support by some
quarters of the Colombian political establishment in preventing
significant damage to the Colombian drug syndicates. For example, in
1994 the government of Colombia took no legislative steps to reverse
its 1993 criminal procedures code which made it very difficult to bring
mid-level and senior syndicate heads to justice. As a result, following
the trend set in 1993, there were no arrests, incarcerations, or fines
imposed on such traffickers. In addition, a number of frequently
convicted traffickers were able to benefit in significant reductions to
their sentences pursuant to Colombia's woefully inadequate sentencing
laws.
In 1994, total drug seizures through interdiction efforts were above
those of 1993 but didn't reach the levels accomplished in 1991 as the
U.S. Government has recommended. Performance on eradications has
supposedly improved; but results have not met expectations. In 1994
there were no senior government officials indicted for corruption. The
Colombian Congress did not pass bills introduced by the Samper
administration to counter money laundering activities. There was
insufficient progress to detect and remove corrupt officials. There
continues to be a problem with drug syndicate control of foreign soil
such as San Andreas Island.
The conditional certification by the Administration on March 1, 1995
of
Colombia's counter-narcotics effort appears to have changed Colombia's
attitude. Since that date, Colombia has conducted over 170 operations
against the Cali cartel by attempting the capture of drug king pins and
by the efforts to disrupt their operations.

Nonetheless, it appears that only the surface has been scratched. The
Cali cartel is well financed and sophisticated. A captured warehouse
disclosed a great amount of electronic equipment ranging from computers
to direction finders. In addition, the cartel is controlling the phone
companies and conducting telephone taps to uncover counter-narcotics
directed against it.
The bottom line is that Colombia still is the largest supplier of
cocaine into the United States. Much more needs to be done to counter
this trafficking. For one, legal cooperation between the United States
and Colombia needs to be reinvigorated. We have been forced to shut
down evidence sharing because Colombia has been misusing what we have
provided to date; and, as a result, families of witnesses have been
killed.
We raised directly with President Samper, the need for extradition
and reform of Colombia's legal system. While Colombian law now
prohibits extradition, we urged President Samper to revisit this issue.
If extradition is not re-instated, Colombia should consider seriously
the proposal to allow drug traffickers to be tried in the United States
and then serve their sentence in Colombia. This would serve to preserve
evidence and remove the case from the inadequate Colombian code of
criminal law. A longer range alternative is for Colombia to transfer
proceedings to an international criminal court which could be
established.
President Samper acknowledged that drugs are a major problem not only
in Colombia, but also internationally. He said that he intends to make
every effort to stop the Cali cartel. It is not enough to destroy the
fields, labs and aircraft used in trafficking, but also to have
effective interdiction and to counter money laundering.
When I raised the need for reinstating extradition, he noted the past
ramifications: drug traffickers countered by killing four Presidential
candidates and 63 magistrates in a reign of terror. In his view,
extradition would come at a high cost. He was frank in stating he
supported the Constitutional amendment to stop extradition to the U.S.
If his judicial reform does not work in the next 2 to 3 years, he
stated that he would consider other alternatives such as extradition.
He was also confident that he will dismantle the Cali cartel within 2
years.
He also found the idea of an international criminal court worth
considering.
On Monday, May 29, 1995 we met with Ambassador William Swing in Haiti
along with Maj. Gen. Joe Kinzer. General Kinzer is Commander of the
United Nations mission in Haiti as well as senior commander of U.S.
forces there.
To gain some perspective on Haiti, it is instructive to note the
volatility of this country over its last 190 years. It has had 21
constitutions, 41 heads of state, 7 of whom have served more than 10
years, 9 of whom have declared themselves heads of state for life, and
29 of whom were assassinated or overthrown.
It has been a country of great political and economic instability,
over-populated, possessing limited resources and having the worst
environmental degradation in the hemisphere. It is the poorest nation
in the western hemisphere.
Prior to the return of President Aristide, the country had 3 years of
illegal, military de facto government, 8 years of chronic instability
and some 30 years of Duvalier family dictatorship. Since the 1991 coup,
the country has
suffered a 30 percent loss of its gross domestic product and its
treasury has been emptied. It has the highest birth rate in the western
hemisphere. Between September 30, 1991 and the return of Aristide in
October 1994, imposed severe sanctions and the toughest embargo ever in
the western hemisphere. The human rights violations by the Cedras
regime escalated. This resulted in many Haitians attempting to escape
the politically oppressive climate. On July 4, 1994 over three thousand
Haitians fled in one day.

On September 19, 1994 over 21,000 U.S. troops were deployed there
without [[Page S7765]] any loss of life. Paramilitary forces of Haiti
were disbanded and its leaders were arrested. General Cedras departed
in exile on October 13, 1994. President Aristide returned on October
15, 1994.
General Kinzer noted that he is operating under Presidential Decision
Directive 25, U.N. Security Council Resolution 940 and Chapter 6 of the
U.N.'s charter which technically limits him to observing, reporting,
and verifying. It does not give him full authority for peacekeeping.
Nonetheless, General Kinzer has set up rules of engagement which, in
essence, give him the ability to carry out peacekeeping. General Kinzer
did point out the importance of intelligence support to the U.S. forces
there and also to the United Nations forces. While such intelligence
was not as critical as in Somalia, he warned that any efforts to
restrict the flow of intelligence of U.N. forces would not be in the
best interests of U.S. forces who are participating.
Ambassador Swing emphasized the serious challenges which lie ahead.
First, there is a need to create a credible security force by February
1996 when the mandate for U.N. forces ends. There is a need to
stimulate badly needed economic development in the country. Third, the
electoral process must be fair for the parliamentary elections in June,
and the Presidential elections in December. Finally, there needs to be
improvement in Haiti's justice system.
We met with President Aristide who pointed out the need for security
forces in the number of about 7,000, which he expects to have ready by
February 1996. Given the rate of training timetable, it is dubious that
this can be achieved. President Aristide represented that the machinery
is in place for a fair and democratic process for the forthcoming
elections.
There are some rumors that President Aristide may not comply with the
Haitian Constitution and step down when his term ends. We questioned
him on this. When asked if there were any circumstances under which he
would stay on as President, his response was ``no''. He stated that the
Constitution requires him to leave no matter what the majority of
Haitians might say. In response to what more he would want from the
United States, he responded by saying he would be ashamed to ask for
more money. What is needed, in his view, is more economic development,
more job opportunities, and a need for a free market.
Mr. President, in the absence of any further proceedings on the
pending legislation, I thought this might be a good time to make a
brief report on a trip which Senator Michael DeWine and I made on
behalf of the Senate Intelligence Committee to Guatemala, Colombia, and
Haiti over a 4-day period, May 26 through May 29, with the principal
focus in Guatemala being to determine the civil rights abuses on the
murder of an American innkeeper, Mr. Michael DeVine, and a Guatemalan
soldier, Commander Bamaca.
These deaths had been the subject of an Intelligence Committee
hearing where there were very, very substantial questions of violations
of human rights.
At that Intelligence Committee hearing in April, Mrs. Carol DeVine
testified about the brutality with respect to her husband, Michael
DeVine, and the perpetrators have not yet been brought to justice. Ms.
Jennifer Harbury, the wife of Commander Bamaca, testified as to the
difficulties in determining what had happened to her husband and even
to finding his body.
On our trip, we talked about the matter with President deLeon of
Guatemala and also with the Minister of Defense and urged that every
effort be made by the Guatemalan Government to find out exactly what
had happened to the American citizen, Michael DeVine, and Commander
Bamaca.
President deLeon pledged the full efforts of the Guatemalan
Government as to the murder of Mr. DeVine but had a difference of
opinion with respect to Commander Bamaca, which he classified as a
military incident. We urged in the strongest possible terms President
deLeon proceed to vindicate human rights and make a thorough
investigation as to both of their matters.
In Colombia, we had extensive discussion with ranking Colombian
officials, including President Samper, principally on the issues of
terrorism and narcotics trade.
I must say, Mr. President, that there is insufficient evidence being
taken by the Colombian Government on the very serious problems of
narcotics traffic which comes to the United States. Since efforts had
been undertaken with some success in the mid to late 1980's, those
efforts have materially decreased with Colombia now refusing to have
extradition. It is my judgment that our efforts in interdiction and the
funds which we are expending in that direction could much more usefully
be placed on the so-called demand side in the United States on
education and on rehabilitation. It seems that the more acreage or
hectares of ground taken away from the growth of cocaine or drugs in
Latin America, in Colombia, illustratively, or Ecuador or Peru, the
more replacement drug growth occurs in those States.
Although we are spending a tremendous sum of money, there has been no
significant lessening of the source of supply. We have to maintain a
very active and vigorous law enforcement program in the United States
to combat supply. But our efforts of international interdiction have
been largely unsuccessful, and I think the Government of Colombia is
doing much less than ought to be done.

Senator DeWine and I finished our short trip with a one-day stay in
Haiti, where we had an opportunity to visit with President Aristide and
visit with General Kinzer. There a real effort has been made by the
U.N. forces to establish order, and U.N. forces are scheduled to leave
in February of next year. There will have to be significant
accomplishments by the Haitian Government to have a local police force
to handle the issue.
Rumors had come to our attention that there might be a question as to
whether President Aristide would step aside after a new President is
elected late this year when his term is set to expire in February.
Senator DeWine and I were very direct and blunt in asking the question
as to whether he did intend to step down, and he was unequivocal in
stating that he would do so. We noted that a real sign of progress in
Haiti would be whether there would be an orderly transition of
government from one elected President to his successor. In light of
what has happened in Haiti historically, that would really be a
remarkable achievement.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SPECTER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Santorum). Without objection, it is so
ordered.

Amendment No. 1250

(Purpose: To ensure due process in deportation proceedings)
Mr. SPECTER. Mr. President, we have now completed the drafting of the
amendment which had been discussed earlier. I now send this to the desk
on behalf of myself, Mr. Simon, and Mr. Kennedy.
This amendment provides that under circumstances where the Department
of Justice is unwilling to present a witness or witnesses to establish
that an alien is a terrorist, that there will be an unclassified
summary presented, sufficient to enable the alien to prepare a defense.
It has provisions which protect the government in a number of
directions, and ultimately in the situation where there is a threat
that the alien's continued presence in the United States would likely
cause serious or irreparable harm to the national security, or death or
serious bodily injury to any person, and the provision of either
classified information or classified summary that meets a higher
standard would cause, again, irreparable harm or the possibility of
death or serious injury, then there may be an unclassified summary
prepared by the Justice Department sufficient to allow the alien to
prepare a defense.
There is a provision here for an interlocutory appeal. It would be my
hope this might be acceptable on both sides, or if not, that it would
receive an affirmative vote by the Senate. I send this amendment to the
desk and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report. [[Page S7766]]
The assistant legislative clerk read as follows:

The Senator from Pennsylvania [Mr. Specter], for himself,
Mr. Simon, and Mr. Kennedy, proposes an amendment numbered
1250.

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

Strike page 36, line 13, through page 38, line 20, and
insert the following in lieu thereof:
``(B) The judge shall approve the summary within 15 days of
submission if the judge finds that it is sufficient to inform
the alien of the nature of the evidence that such person is
an alien as described in section 241(a), and to provide the
alien with substantially the same ability to make his defense
as would disclosure of the classified information.
``(C) The Attorney General shall cause to be delivered to
the alien a copy of the unclassified summary approved under
subparagraph (B).
``(D) If the written unclassified summary is not approved
by the court pursuant to subparagraph (B), the Department of
Justice shall be afforded 15 days to correct the deficiencies
identified by the court and submit a revised unclassified
summary.
``(E) If the revised unclassified summary is not approved
by the court within 15 days of its submission pursuant to
subparagraph (B), the special removal hearing shall be
terminated unless the court, within that time, after
reviewing the classified information in camera and ex parte,
issues written findings that--
``(i) the alien's continued presence in the United States
would likely cause
``(I) serious and irreparable harm to the national
security; or
``(II) death or serious bodily injury to any person;
and
``(ii) provision of either the classified information or an
unclassified summary that meets the standard set forth in
subparagraph (B) would likely cause
``(I) serious and irreparable harm to the national
security; or
``(II) death or serious bodily injury to any person;
and
``(iii) the unclassified summary prepared by the Justice
Department is adequate to allow the alien to prepare a
defense.
``(F) If the court issues such findings, the special
removal proceeding shall continue, and the Attorney General
shall cause to be delivered to the alien within 15 days of
the issuance of such findings a copy of the unclassified
summary together with a statement that it meets the standard
set forth in subparagraph (E)(iii).
``(G)(i) Within 10 days of filing of the appealable order
the Department of Justice may take an interlocutory appeal to
the United States Court of Appeals for the District of
Columbia Circuit of--
``(I) any determination made by the judge concerning the
requirements set forth in subparagraph (B).
``(II) any determination made by the judge concerning the
requirements set forth in subparagraph (E).
``(ii) In an interlocutory appeal taken under this
paragraph, the entire record, including any proposed order of
the judge or summary of evidence, shall be transmitted to the
Court of Appeals under seal, and the matter shall be heard ex
parte. The Court of Appeals shall consider the appeal as
expeditiously as possible, but no later than 30 days after
filing of the appeal.
Amendment Nos. 1218 and 1225, En Bloc

Mr. BIDEN. Mr. President, it is my understanding that the chairman of
the Judiciary Committees, Senator Hatch, is prepared to accept Kennedy
amendment 1218 and the Feinstein amendment 1225 en bloc.
I send the two amendments to the desk and ask unanimous consent that
they be considered en bloc.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Delaware [Mr. Biden] for Mr. Kennedy,
proposes an amendment numbered 1218, and for Mrs. Feinstein,
proposes an amendment numbered 1225.

Mr. BIDEN. Mr. President, I ask unanimous consent further reading be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendments en bloc are as follows:
(Purpose: To require the same procedures for the use of secret evidence
in normal deportation proceedings as are accorded to suspected alien
terrorists)

Amendment No. 1218

On page 48, line 12, before the period insert the
following: ``, except that any proceeding conducted under
this section which involves the use of classified evidence
shall be conducted in accordance with the procedures of
section 501.''
____

Amendment No. 1225

At the appropriate place, insert the following:

SEC. . PROHIBITION ON ASSISTANCE UNDER ARMS EXPORT CONTROL
ACT FOR COUNTRIES NOT COOPERATING FULLY WITH
UNITED STATES ANTITERRORISM EFFORTS.

Chapter 3 of the Arms Export Control Act (22 U.S.C. 2771 et
seq.) is amended by adding at the end the following:

``SEC. 40A. TRANSACTIONS WITH COUNTRIES NOT FULLY COOPERATING
WITH UNITED STATES ANTITERRORISM EFFORTS.

``(a) Prohibited Transactions.--No defense article or
defense service may be sold or licensed for export under this
Act to a foreign country in a fiscal year unless the
President determines and certifies to Congress at the
beginning of that fiscal year, or at any other time in that
fiscal year before such sale or license, that the country is
cooperating fully with United States antiterrorism efforts.
``(b) Waiver.--The President may waive the prohibition set
forth in subsection (a) with respect to a specific
transaction if the President determines that the transaction
is essential to the national security interests of the United
States.''.
amendment no. 1218

Mr. KENNEDY. Mr. President, the bill before the Senate contains a
procedure to permit the use of secret evidence in deportation
proceedings for suspected terrorists. Many Members have reservations
about this procedure, and I believe the sponsors have made a genuine
attempt to strike a balance between our concerns about terrorism and
the fundamental requirements of due process.
However, another section of the bill, section 303, contains no such
balance. It permits the use of secret evidence in any deportation case,
without any due process safeguards at all. The amendment I am offering
would extend the same minimal due process safeguards to these
proceedings that are available in terrorist cases, in the rare
situations in which classified evidence must be protected.
The terrorist deportation procedure in section 301 acknowledges the
sensitive issues surrounding the use of classified evidence. It
requires a special designation by the Chief Justice of five Federal
judges to keep the evidence secure and ensure due process.
However, section 303 allows secret evidence to be used in normal
deportation cases before any of scores of low-level immigration judges
in the Justice Department, with no protection for either the classified
evidence or the immigrant.
While this provision exempts permanent residents from its broad
reach, there are others who reside in the United States under legal
immigration status who also deserve such protection, including the new
spouses of American citizens. If we are to take the extraordinary step
of permitting the use of secret evidence in general deportation
proceedings, I believe the evidence and the immigrant should be
afforded at least the same protections that we give to terrorists.
This can be done without unduly burdening the courts. The number of
cases which rise to the level of requiring secret evidence to justify
deportation is extremely small.
The kinds of cases which could be subject to this procedure would
have substantial equities. The use of secret evidence should not be
taken lightly.
Under this procedure, the immigrant spouses of American citizens
could be deported with secret evidence. By law, these spouses are
``conditional residents,'' not permanent residents, during their first
2 years of marriage.
The same sort of equities apply to refugees. A Vietnamese refugee who
fought on our side in Vietnam, who experienced years of re-education in
Communist concentration camps, and who has now lived here for many
years, but does not have permanent residence, would be subject to
secret deportation with illegally obtained evidence. His only offense
could be that he rescued a fellow soldier from Vietnam by allowing him
to pose as a relative.
There are also 14,000 Chinese students in this country, many of whom
were activists in the democracy movement in China. They qualify for
permanent residence, but they have not yet received their green cards.
They could be subjected to this procedure.
There are 85,000 individuals whom the Immigration Service has allowed
to remain in the United States because of special circumstances
surrounding their cases. They may have American citizen children with
disabilities requiring special attention that cannot [[Page S7767]] be
offered in their parents' home country. These families have not been
given permanent residence, but the courts have declared them
``permanent residents under color of law.''
Some may argue that these are unlikely victims of this procedure. But
there is nothing in this language that prevents immigrants and refugees
with substantial ties to this country from being deported using secret
evidence. Under this procedure, they may never know why they were
deported.
A long line of judicial decisions requires the protection of
immigrants under the fifth amendment from due process violations in the
deportation process.
The fifth amendment states that no person shall be ``deprived of
life, liberty or property, without due process of law.'' The Supreme
Court has consistently ruled that this protection means what it says,
it extends to all persons within the United States, not just citizens.
As the Supreme Court stated in the Japanese Immigrant case in 1903,

This court has never held, nor must we be understood as
holding, that administrative officers, when executing the
provisions of a statute involving the liberty of persons, may
disregard the fundamental principles that inhere in ``due
process of law'' as understood at the time of the adoption of
the Constitution.

In 1915, in Whitfield versus Hanges, the Court outlined the
requirements of a fair deportation hearing, including the right to be
notified of charges, to cross-examine witnesses, and to see the
evidence and have a fair opportunity to rebut it.
To underscore the gravity of deportation, the Supreme Court in 1921,
in Ng Fung Ho versus White, observed that not only does deportation
deprive a person of liberty, but ``[it] may result also in loss of both
property and life; or of all that makes life worth living.'' Again in
1948, in Tan versus Phelan, the Court characterized deportation as ``a
drastic measure'' and ``the equivalent of banishment or exile.''
In 1976, Mathews versus Diaz, the Court noted, ``There are literally
millions of aliens within the jurisdiction of the United States. The
fifth amendment, as well as the 14th amendment, protects every one of
these persons from deprivations of life, liberty, or property without
due process of law.''
In Landon versus Plasencia in 1982, the Court stated that the
interest of an immigrant facing expulsion from the United States ``is,
without question, a weighty one. She stands to lose the right to stay
and live and work in this land of freedom. Further, she may lose the
right to rejoin her immediate family, a right that ranks high among the
interests of the individual.''
We are all concerned about addressing terrorism and expediting
legitimate deportation cases.
The bill before us contains a procedure in section 301 which permits
our courts to handle classified evidence to decide the deportability of
aliens suspected of terrorism.
At a minimum, other deportees should be given the same protections as
terrorists when it comes to using secret evidence against them. For
this reason, my amendment says that the use of evidence in other
deportation settings must follow what is being proposed for suspected
terrorists. This means the evidence must be handled by designated
Federal judges. And before the deportation proceeding is allowed to
continue on the basis of the secret evidence, the judges must weigh the
threat which the presence of the person poses against the likely
consequences of revealing the classified information.
I urge my colleagues to support this amendment.
amendment no. 1225

Mrs. FEINSTEIN. Mr. President, today I offer an amendment that
establishes a clear standard of behavior other countries must meet in
order to be eligible to purchase military equipment from the United
States.
It amends the Arms Export Control Act by adding a section which
states that no defense article or defense service may be sold or
licensed for export to a country unless the President has certified to
Congress that the country is cooperating fully with the United Stats,
or taking adequate steps on its own, to help achieve U.S. antiterrorism
objectives.
This amendment does recognize that certain transactions of military
equipment do have a direct bearing on our national security, so it
allows the President to waive the prohibition with respect to specific
transactions if he determines that they are essential to the national
security interests of the United States.
The United States is the leading exporter of military equipment in
the world. In fiscal year 1994, the United States sold some $12.86
billion worth of defense equipment and services around the world. By
and large, these exports serve the interests of the United States by
helping to build up the security of our allies. Improving our allies'
abilities to defend themselves is one of the most effective ways we can
advance and protect our own interests abroad.
It is not unreasonable to expect a certain level of cooperation from
countries to whom we sell military equipment. Obviously cooperation in
defense matters is taken into consideration, as it should be, because
of the clear benefit it brings to United States security interests.
But our security these days is affected by other, less conventional
problems. Today, terrorism poses a major threat to U.S. security
interests, and to our way of life. Because of that, we must demand and
expect cooperation from our allies to help us achieve our antiterrorism
objectives. When we share our most advanced military technology with
our allies, we should be able to expect full cooperation in these
crucial areas.
For the most part, the commitment to combat terrorism is strong among
our allies who purchase U.S. military equipment. Many of them know
first-hand the scourge of terrorism, and have been deeply affected by
it. Indeed, the State Department's 1994 Patterns of Global Terrorism
report describes some 321 international terrorist attacks in 1994, in
Africa, Asia, Europe, Latin America, and the Middle East. Occasionally,
however, we have been disappointed by the cooperation we have received
in our antiterrorism efforts.
This amendment is designed to add an additional incentive for those
states to cooperate with U.S. antiterrorism efforts. We need their full
cooperation in: Apprehending, prosecuting, and extraditing suspected
terrorists; sharing intelligence to deter terrorist attacks; pressuring
state sponsors of terrorism to change their behavior; curbing private
fundraising efforts for terrorist organizations within their country;
and, taking actions to prevent or deter terrorist attacks. Where we
have signed agreements and treaties, they should be fulfilled in both
letter and spirit. Where we do not have such agreements, our allies
should work with us to put them in place as quickly as practicable.
The threat of international terrorism demands that the civilized
nations of the world band together to defend against those who would
use violence for political ends. This amendment will help ensure that
the United States gets the cooperation it needs from our allies to
fight this threat.
Mr. BIDEN. For the sake of clarification, I would ask the Senator
from California if the certification requirement in her amendment means
that a separate certification of a country's cooperation with U.S.
antiterrorism objectives must accompany every notification of an arms
sale sent to Congress under section 36(b) of the Arms Export Control
Act.
Mrs. FEINSTEIN. No, the certification procedure is designed to
require one certification annually for each country that purchases
defense articles or defense services, or has them licensed for export,
from the United States in a given fiscal year. Most certifications will
probably be provided at the beginning of the fiscal year, but a country
that is not certified at that time may, if eligible, be certified at
any time prior to the first sale or export license to it in the fiscal
year.
The PRESIDING OFFICER. The question is on agreeing to the amendments
en bloc.
The amendments (Nos. 1218 and 1225) were agreed to.
Mr. BIDEN. Mr. President, I move to reconsider the vote.
Mr. HATCH. Mr. President, I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. BIDEN. Mr. President, we are perilously close to finishing all
but the habeas amendments. The Nunn-Biden [[Page S7768]] amendment on
posse comitatus is either going to be debated very shortly or accepted
very shortly.
That leaves, I think, after the vote on the Specter-Simon amendment,
we will know then on the outcome of that vote, whether or not the
Abraham amendment is still relevant. If Specter-Simon prevails, as I
hope it does, then the Abraham amendment would be dropped.
The only amendment I am aware of on the Republican side which we do
not have any agreement on at this point--we thought we did--was the
Brown amendment. If Senator Brown is available, we are ready to enter
into a very short time agreement and debate that amendment tonight.
Mr. DOLE. Have the yeas and nays been ordered?
Mr. SPECTER. 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.
Mr. BIDEN. Mr. President, again I think we are going to know in a
moment whether we will need to debate the Nunn-Biden posse comitatus
amendment, but in the meantime while that is being ironed out, I ask my
friend from Utah whether or not Senator Brown is available to introduce
his amendment. I think that is the only thing we have left.
Mr. DOLE. Mr. President, I ask for the yeas and nays on the Lieberman
amendment numbered 1215.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. HATCH. I understand that Senator Brown is on his way over, and I
will chat with him.
Mr. BIDEN. Mr. President, I say to the majority leader that I think
when we dispose of the Brown amendment and we dispose of the Nunn-Biden
amendment, that other than habeas amendments, there is nothing left.
It is my understanding that the leader, at an appropriate time this
evening, if we complete action on Nunn-Biden and Brown, would move to
vitiate the cloture vote tomorrow.
I would assure the Senator, as well, we would withdraw all 5
amendments relating to firearms or ammunition. They would not be
considered on this bill.
Mr. DOLE. I have not discussed that with the Democrat leader. That
would be my intention. They would be germane, in any event. No need to
have a cloture vote.
So, if we can complete action on all except habeas corpus, we would
like to start fairly early in the morning on the habeas corpus
amendments.
So is there anybody who has amendments? I guess Senator Brown is the
only one on this side?
Mr. BIDEN. Senator Brown is the only one who has a nonhabeas
amendment on the Republican side and the only one we have left on the
Democratic side, as I understand it, is Nunn-Biden.
Mr. HATCH. You have Abraham as well.
Mr. BIDEN. The Senator points out the Abraham amendment is still on
the Republican side, and I have discussed this with Senator Abraham and
he points out to me that if Specter-Simon passes, then his amendment is
redundant, is no longer necessary. It is only if Specter-Simon fails
would we go to the Abraham amendment, in which case we could accept the
Abraham amendment.
Mr. DOLE. So we are waiting on Senator Brown.
Mr. BIDEN. And waiting on a decision by our Republican colleagues
whether or not they can accept the Nunn-Biden posse comitatus
amendment.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 1229 Withdrawn

Mr. HATCH. Mr. President, I am very grateful to our distinguished
Senator from Colorado, Senator Brown. Because, as much as he likes his
amendment regarding terrorist countries, it has hit a snag where it has
had an objection from both sides of the aisle.
In the interests of moving this bill forward he has authorized me to
withdraw that amendment at this time.
I ask unanimous consent the Brown amendment be withdrawn.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 1229) was withdrawn.
Mr. BIDEN. Mr. President, let me say I know he has decided not to run
again, and this will probably hurt his reputation, but it is a pleasure
to work with the Senator from Colorado. He is always reasonable. I
thank him very much.
As Senator Eastland once said to me, ``I will come and campaign for
you or against you, whichever will help the most.'' Maybe if I said
something negative it would help more but I really mean it. I thank him
for his cooperation. This is the second time he has moved this
legislation along. I truly appreciate it.
I want to correct something I said earlier. I referred to the posse
comitatus amendment as the Nunn-Biden amendment. That is not accurate.
This is not a minor point. It is the Nunn-Thurmond-Biden amendment.
Senator Thurmond has been a leader in this issue and I did not mean in
any way to leave him out. It is the Nunn-Thurmond-Biden amendment. I
yield the floor.
The PRESIDING OFFICER. The Senator from Georgia.

Amendment No. 1213 to Amendment No. 1199

(Purpose: To authorize the Attorney General to request, and the
Secretary of Defense to provide, Department of Defense assistance for
the Attorney General in emergency situations involving biological or
chemical weapons of mass destruction)

Mr. NUNN. Mr. President, I am going to start with the explanation of
the amendment which I hope we will be voting on this evening. If the
majority leader would like to interrupt at any point in time, I know
there will be other things that will be coming up, I will be glad to
yield and I invite that.
I am pleased to propose on behalf of myself, Senator Thurmond,
Senator Biden, and Senator Warner, an amendment to address a
significant gap in the law regarding the use of chemical and biological
weapons of mass destruction in criminal terrorist activities.
The Armed Forces have special capabilities to counter nuclear,
biological, and chemical weapons. They are trained and equipped to
detect, suppress, and contain these dangerous materials in hostile
situations.
Most of our law enforcement officials do not have anything like the
capability that our military does in these unique circumstances. At the
present time the statutory authority to use the Armed Forces in
situations involving the criminal use of these weapons of mass
destruction extends only to nuclear materials. In my opinion, chemical
and biological attacks on the United States, terrorist attacks, are
much more likely than nuclear, although all would be horrible. Section
831 of title 18, United States Code, permits the Armed Forces to assist
in dealing with crimes involving nuclear materials when the Attorney
General and the Secretary of Defense jointly determine that there is an
emergency situation requiring military assistance. There is no similar
authority to use the special expertise of the Armed Forces in
circumstances involving the use of chemical and biological weapons of
mass destruction.
In the wake of the devastating bombing of the Federal building in
Oklahoma City, with its tragic loss of life and disruption of
governmental functions, I think it is appropriate to reexamine Federal
counterterrorism capabilities, including the role of the Armed Forces.
I would also add that the Tokyo chemical attack in the subway is the
kind of situation that very well could happen, also, in this country.
For more than 100 years, military participation in civilian law
enforcement activities has been governed by the Posse Comitatus Act.
The Act precludes military participation in the execution of laws
except as expressly authorized by Congress. That landmark legislation
was the result of congressional concern about increasing use of
[[Page S7769]] the military for law enforcement purposes in post-Civil
War era, particularly terms of enforcing the Reconstruction laws in the
South in and suppressing labor activities in the North.
There are about a dozen express statutory exceptions to the Posse
Comitatus Act, which permit military participation in arrests,
searches, and seizures. Some of the exceptions, such as the permissible
use of the armed forces to protect the discoverer of guano islands,
reflect historical anachronisms. Others, such as the authority to
suppress domestic disorders when civilian officials cannot do so, have
continuing relevance--as shown most recently in the 1992 Los Angeles
riots.
It is important to remember that the Act does not bar all military
assistance to civilian law enforcement officials, even in the absence
of a statutory exception. The Act has long been interpreted as not
restricting use of the armed forces to prevent loss of life or wanton
destruction of property in the event of sudden and unexpected
circumstances. In addition, the Act has been interpreted to apply only
to direct participation in civilian law enforcement activities--that
is, arrest, search, and seizure. Indirect activities, such as the loan
of equipment, have been viewed as not within the prohibition against
using the armed forces to execute the law.
Over the years, the administrative and judicial interpretation of the
Act, however, created a number of gray areas, including issues
involving the provision of export advice during investigations and the
use of military equipment and facilities during ongoing law enforcement
operations.
During the late 1970's and early 1980's, I became concerned that the
lack of clarity was inhibiting useful indirect assistance, particularly
in counterdrug operations. I initiated legislation, which was enacted
in 1981 as chapter 18 of title 10, United States Code, to clarify the
rules governing military support to civilian law enforcement agencies.
We not have, as a matter of fact, and have had since 1981 military
ships in the Caribbean--and other places for that matter where we have
heavy drug traffic--where the military, the Navy, has the right to
intercept vessels, but the power of arrest is reserved for Coast Guard
personnel that are on the Navy ships for that purpose. So we have been
very careful about how we approach this matter.
The administration has requested legislation that would permit direct
military participation in specific law enforcement activities related
to chemical and biological weapons of mass destruction, similar to the
exception under current law that permits direct military participation
in the enforcement of the laws concerning improper use of nuclear
materials.
We had a hearing under the auspices of Senator Hatch and Senator
Biden. During that hearing it came to the attention of the committee--
and the Armed Forces Committee was also invited to participate in that
hearing, and I was there--that, although the overall direction that the
President was laying out seemed to me to make sense, I thought the
statute that had been submitted was not properly drawn. It used the
words ``technical assistance'' without defining that term properly;
used the term ``disabling and disarming'' but precluded the power of
arrest.
In effect, I reached the conclusion that the military would be in a
position where they were basically able to disable and disarm, which
would include the use of force, and perhaps even the use of fatal
force, but not have the power of arrest, which did not make sense.
I think the ultimate depriving of civil liberties is when you kill
someone. If you can kill them without arresting them you are not really
protecting someone's civil liberties. So we decided to carefully
reconstruct that statute to try to deal with chemical and biological
weapons, and we worked diligently to do that, and are continuing to
work on possible amendments in good faith with colleagues on both
sides. Senator Hatch has participated in that. Senator Thurmond and I
have worked hard on it. Senator Biden has participated, and others.
Senator Dole and others have been involved in trying to make sure we
know exactly what we are doing. I hope we can work it out this evening.
But, if not, we will certainly have to vote on the matter at some
point.
In my judgment, Mr. President, the question of whether we should
create a further exception for chemical and biological weapons should
be addressed in light of the two enduring themes reflected in the
history and practice of the Posse Comitatus Act and related statutes:
First, the strong and traditional reluctance of the American people
to permit any military intrusion into civilian affairs.
Second, the concept that any exceptions to the Posse Comitatus Act
should be narrowly drawn to meet specific needs that cannot be
addressed by civilian law enforcement authorities and that pose a grave
danger to the American people.
As I previously mentioned, these issues were examined at a hearing
before the Judiciary Committee on May 10, led by the chairman of the
Committee, Senator Hatch, and the ranking minority member, Senator
Biden. At their invitation, I participated in the hearing, and I am
grateful for the courtesies extended to me.
At the hearing, we heard from former Secretary of Defense Caspar
Weinberger, and from current representatives of the Departments of
Justice and Defense. During the hearing, five major themes emerged:
First, we should be very cautious about establishing exceptions to
the Posse Comitatus Act, which reflects enduring principles concerning
historic separation between civilian and military functions in our
democratic society.
Second, exceptions to the Posse Comitatus Act should not be created
for the purpose of using the armed forces to routinely supplement
civilian law enforcement capabilities with respect to ongoing,
continuous law enforcement problems.
Third, exceptions may be appropriate when law enforcement officials
do not possess the special capabilities of the Armed Forces in specific
circumstances, such as the capability to counter chemical and
biological weapons of mass destruction in a hostile situation.
Fourth, any statute which authorizes military assistance should be
narrowly drawn to address with specific criteria to ensure that the
authority will be used only when senior officials, such as the
Secretary of Defense and the Attorney General, determine that there is
an emergency situation which can be effectively addressed only with the
assistance of military forces.
Fifth, any assistance which authorizes military assistance should not
place artificial constraints on the actions military officials may take
that might compromise their safety or the success of the operation.
In other words, Mr. President, as a result of that hearing, I came to
the conclusion that in this area we ought to set a very high threshold
for participation by the military and define those terms very
carefully. Once the military is involved and, for example, they have on
chemical gear, they are in a very difficult situation. Law enforcement
may not even be able to be on the scene because of the heavy presence
of chemical or biological agents. Once that happens, we do not want to
put our 19, 20-, 22-, 23-, 24- or 25-year-olds out there without having
enough authority to go ahead and do the job.
So we have tried to draft this authority with a very high threshold
for any involvement of this military and to make that authority very
limited, very carefully drawn. Once they are involved, then we want to
give the military personnel authority to protect themselves and to take
action as required by the circumstances, the very emergency type of
circumstances we are describing.
The amendment that Senator Thurmond, Senator Biden and I are
sponsoring has been drafted to reflect the traditional purposes of the
Posse Comitatus Act and the limited nature of the exceptions to the
Act.
Under the amendment, the Attorney General may request DoD assistance
to enforce the prohibitions concerning biological and chemical weapons
of mass destruction in an emergency situation.
The Secretary of Defense may provide assistance if there is a joint
determination by the Secretary of Defense and the Attorney General that
there is [[Page S7770]] an emergency situation, and the Secretary of
Defense determines that the provision of such assistance will not
adversely affect military preparedness.
Military assistance could be provided under the amendment only if the
Attorney General and the Secretary of Defense jointly determine that
each of the following five conditions is present:
First, that the situation involves a biological or chemical weapon of
mass destruction.
Second, that the situation poses a serious threat to the interests of
the United States.
Third, that civilian law enforcement expertise is not readily
available to counter the threat posed by the biological or chemical
weapon of mass destruction involved.
Fourth, that Department of Defense special capabilities and expertise
are needed to counter the threat posed by the biological or chemical
weapon of mass destruction involved.
Fifth, that enforcement of the law would be seriously impaired if the
DoD assistance were not provided.
The types of assistance that could be provided during an emergency
situation would involve operation of equipment to monitor, detect,
contain, disable, or dispose of a biological or chemical weapon of mass
destruction or elements of such a weapon. This includes the authority
to search for and seize the weapons or elements of the weapons.
This authority must be given. I do not know of any way to avoid that
because what you have to do is stop the possibility or the probability
in some cases of massive death of American people.
The Attorney General and the Secretary of Defense would issue joint
regulations defining the types of assistance that could be provided.
The regulations would also describe the actions that Department of
Defense personnel may take in circumstances incidental to the provision
of assistance under this section, including the collection of evidence.
This would not include the power of arrest except in exigent
circumstances or as otherwise authorized by law.
Now, that word ``exigent'' is one we are now considering, whether
there are other words that would more precisely define the kind of
circumstances we are talking about. The word ``exigent" though is used
in criminal statutes and has been used over and over again, and that
word is well known in law enforcement circumstances.
Also, this provision is designed to address two important concerns.
First is the general principle that types of assistance provided by the
Department of Defense should consist primarily of operating equipment
designed to deal with the chemical and biological agents involved and
that the primary responsibility for arrest should reside in all
circumstances with civilian officials where that is possible. As a law
enforcement situation unfolds, however, military personnel must be able
to deal with circumstances in which they may confront hostile
opposition.
I repeat, Mr. President, there can very well be circumstances, a
subway, for instance, involving chemical agents, just like the
situation in Tokyo, or a situation similar to that where chemical
agents are present, where law enforcement people are not even able to
go into the area, where the only people who can go into the area are
the military personnel.
In that situation, we do not want to put handcuffs on the military
and say you are going into this dangerous situation but you cannot take
steps necessary to protect not only your lives but the lives of the
people who are in the area.
In such circumstances, the safety of the military personnel involved,
and the safety of others, and the law enforcement mission cannot be
compromised by precluding the military from exercising the power they
need, including the use of force.
The amendment requires the Department of Defense to be reimbursed for
assistance provided under this section in accordance with section 377
of title 10, the general statute governing reimbursement of the
Department of Defense for law enforcement assistance. This means that
if DOD does not get a training or operational benefit substantially
equivalent to DOD training, the DOD must be reimbursed.
Under the amendment, the functions of the Attorney General and the
Secretary of Defense my be exercised, respectively, by the Deputy
Attorney General and the Deputy Secretary of Defense, each of whom
serves as the alter ego to the head of the Department concerned. These
functions may be delegated to another official only if that official
has been designated to exercise the general powers of the head of the
agency. This would include, for example, an Under Secretary of Defense
who has been designated to act for the Secretary in the absence of the
Secretary and the Deputy.
Mr. President, I will not go into more detail at this time, but the
limitations set forth in this amendment are designed to address the
appropriate allocation of resources and functions within the Federal
Government and are designed to avoid providing a basis for excluding
evidence or challenging an indictment.
Current law contains offenses involving the unlawful use of nuclear
and biological weapons. The amendment sets forth the administration's
proposal for a similar offense concerning the unlawful use of chemical
weapons which is not now on the books.
Mr. President, this is a prudent and narrowly drafted amendment. It
is consistent with the traditional separation of civilian and military
functions and the exceptions for unusual and unique circumstances which
require the special expertise of the Armed Forces to address serious
threats to the national interest.
I might add there is an amendment that is incorporated in this
amendment as it now stands, or it will stand when it is sent to the
desk, proposed by the Senator from Maine [Mr. Cohen], basically saying
that the Government should take every step possible to get the law
enforcement community in a position where we can in the future reduce
the need for using military personnel.
So we are not saying this is going to be here for all time. We are
saying we need it now, and as the months go by and the years go by
there would be the goal in this amendment to reduce the need to rely as
much on the military as we must necessarily rely on them now in the
chemical and biological area where they do have extensive training and
equipment and are virtually the only ones who are able to deal with
certain circumstances that could be enormously dangerous to the
American people.
Mr. President, I will be glad to yield the floor. I know the Senator
from South Carolina, the cosponsor of this amendment, would like to be
heard.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. THURMOND. Mr. President, as chairman of the Armed Services
Committee of the Senate, I was pleased to work with Senator Nunn, the
ranking member of the Armed Services Committee, along with Senators
Hatch, Dole, Biden, and Craig to draft this amendment.
The purpose of this amendment is to have military assistance
available to help Federal law enforcement in emergency situations that
involve chemical and biological weapons of mass destruction.
In 1982, the Congress passed and then President Reagan signed into
law a bill to authorize military assistance in instances involving
nuclear devices. I supported that legislation in 1982 and believe it is
now appropriate to extend that law to cover chemical and biological
weapons of mass destruction.
We have been careful to limit military assistance to circumstances
that pose a serious threat to the interests of the United States and
where civilian expertise is not readily available to provide the
required assistance to counter the threat posed by the chemical and
biological weapons of mass destruction.
Mr. President, I believe this amendment will provide valuable
assistance to law enforcement to protect the American people should we
face terrorists with chemical and biological weapons. We have been
careful to include safeguards to ensure that the military is not
involved in routine law enforcement.
I would encourage my colleagues to support this amendment.
Mr. BIDEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. Mr. President, the amendment that the Senator from
[[Page S7771]] Georgia [Senator Nunn], and I have proposed would create
a narrow exception to the Posse Comitatus Act in order to permit the
use of the military to assist law enforcement in emergency situations
involving chemical and biological weapons.
Before describing the amendment in detail, let me briefly review the
origins of the Posse Comitatus Act and the existing exceptions to it.
The term ``posse comitatus'' means literally the ``power of the
county.''
Its roots trace back to English common law, where the sheriff,
obligated to defend the county against any of the king's enemies, was
empowered to summon every person above 15 years old for this purpose.
The first Congress provided similar power to Federal marshals in
1789--authorizing the marshals to command all necessary assistance in
the execution of their duty.
Three years later, Congress explicitly authorized marshals to use the
militia in assisting their posse.
In the first half of the nineteenth century, the practice of using
both the militia and regular military to assist law enforcement became
commonplace--
Although whenever military personnel were called into service as a
part of a posse, they were subordinated to civilian authority.
Following the Civil War, Federal troops were often used extensively
in the South, as well as to quell labor unrest in the North.
Dissatisfaction with this practice led to pressure from Congress for
explicit restrictions on the use of the military in law enforcement
operations.
The result was the Posse Comitatus Act, enacted in 1878.
The Act is brief and straightforward:

Whoever, except in cases and under circumstances expressly
authorized by the constitution or act of Congress, willfully
uses any part of the army or the air force as a Posse
Comitatus or otherwise to execute the laws shall be fined not
more than $250,000 or imprisoned not more than two years, or
both.

Over the past century, Congress has enacted numerous exceptions to
this general principle.
Many of these exceptions are for emergency circumstances, or where
the need for use of the military is obvious.
For example, the law permits use of the military: to suppress
insurrections; to protect foreign officials and official guests; to
enforce the neutrality laws and customs laws; and to assist in
investigations of murderers of Members of Congress or the Cabinet.
Congress has also provided some less compelling exceptions to the
Posse Comitatus Act.
For instance, the President is empowered to use the military: to
protect certain Federal parks and timber on Federal lands in Florida;
to assist States in enforcing quarantines and health laws; and to
remove any unlawful inclosures on public lands.
Most relevant to our present inquiry is an exception which permits
the use of the military to assist law enforcement in countering the
illegal possession or use of nuclear materials.
This provision, enacted in 1982, gives the military broad authority
to assist in the enforcement of the law. The provision explicitly
provides that the armed forces may be used to arrest persons and
conduct searches and seizures.
The military has unique expertise concerning nuclear materials, which
in my view justifies an exception.
Should this Nation ever be faced with terrorists armed with nuclear
materials--of whatever grade--I believe the Department of Justice and
FBI should be able to draw on this expertise.
I hold a similar view of the President's request for analogous
authority with regard to chemical and biological weapons.
The military's expertise with chemical and biological weapons give it
special knowledge which would be impractical and expensive to duplicate
in civilian law enforcement.
The provision we have introduced is not--is not--the proposal sent to
us by the administration.
Both Senator Nunn and I believed that, as drafted, the administration
bill would have presented many practical problems.
Instead, we have drafted a new version which does the following:

Description of the amendment

It permits the use of the military to assist law
enforcement to respond to emergency situations involving
biological or chemical weapons.
This assistance can only be provided if certain conditions
are met: (1) civilian expertise is not readily available; (2)
defense department assistance is needed; and
(3) enforcement of the law would be seriously impaired if
the Department of Defense assistance were not provided.

Finally, the amendment requires the Attorney General and the
Secretary of Defense to joint issue regulations concerning the types of
assistance that may be provided.
The provision permits the regulations to authorize arrest or search
and seizure only in instances for the immediate protection of human
life.
We share the concern of many of our colleagues about using the
military to enforce the law.
And we do not want the military to have carte blanche to arrest
suspects or engage in search or seizure.
But once called in to assist law enforcement, we do not want to
create the ludicrous circumstance where a soldier called in to assist
law enforcement stands immobile where his safety--or the safety of
others--is at risk.
Mr. President, the issue comes down to this: Do we want to authorize
the limited use of the military to combat chemical and biological
weapons terrorism, or do we want to spend scarce resources to duplicate
this capability in law enforcement?
Mr. President, I am under the impression that our distinguished
Republican colleague is likely to accept this amendment. I hope that is
the case.
Mr. CRAIG addressed the Chair.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Mr. President, let me thank Senator Thurmond and Senator
Nunn for their cooperation in resolving some concerns in the posse
comitatus amendment and the effort that they took in a most serious and
appropriate way to cause the military to be involved in the areas of
biological and chemical warfare and weaponry of mass destruction when
it might be applied against civilian populations in this country.
Many of us expressed some very real concern because of what has been
debated here tonight, the very important separation of the military and
civilian population which is rooted in our history and that we have
cautiously and appropriately guarded throughout our country's existence
with few exceptions.
And so it was with that background we watched this amendment most
closely, and I must say that in the end I can now support it because of
some changes that have been made which I think we can all be very
comfortable with, and that is to narrow this to not allow arrests, to
prohibit those but to allow action where there is the exception for the
immediate protection of human life. We think that narrows it and
properly defines it, clarifies it so it is not ambiguous and so that it
can be interpreted in the appropriate way by the Attorney General and
the Secretary of Defense in their joint responsibility in the issue of
regulations concerning the implementation of the statute.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I compliment the distinguished Senator from
Georgia and the distinguished Senator from South Carolina for the extra
efforts they have put into trying to resolve the problems on this posse
comitatus issue.
Everybody knows I was not very enthusiastic about changing the
emergency powers of the President or by changing the current posse
comitatus law. But after having worked with these two great Senators,
and seeing the compromises that have been worked out to try to resolve
the problems with this issue that have existed in the minds of a number
of Senators on the Senate floor, I am happy to say I believe we are in
a position to accept the amendment, and if the distinguished Senator
from Delaware is also in the same position, I think we can urge passage
of this amendment at this time.
Mr. BIDEN. I would so urge, Mr. President. If I could have the
attention of the Senator from Georgia, if he would send the amendment
to the desk, I guess we can agree on it.
[[Page S7772]]

Mr. NUNN. I say to my friend from Delaware I have just taken the
amendment to the desk, and it reflects all those changes that we worked
out, and I would ask that the previous amendment not be called up but
the one I just brought to the desk be called up.
The PRESIDING OFFICER. Without objection, the pending Specter
amendment is set aside for consideration of the amendment of the
Senator from Georgia. The clerk will report.
The assistant legislative clerk read as follows.

The Senator from Georgia [Mr. Nunn], for himself, Mr.
Thurmond, Mr. Biden, and Mr. Warner, proposes an amendment
numbered 1213.

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

On page 160, between lines 11 and 12, insert the following:

SEC, 901. AUTHORITY TO REQUEST MILITARY ASSISTANCE WITH
RESPECT TO OFFENSES INVOLVING BIOLOGICAL AND
CHEMICAL WEAPONS.

(a) Biological Weapons of Mass Destruction.--Section 175 of
title 18, United States Code, is amended by adding at the end
the following:
``(c)(1) Military Assistance.--The Attorney General may
request that the Secretary of Defense provide assistance in
support of Department of Justice activities relating to the
enforcement of this section in an emergency situation
involving biological weapons of mass destruction. Department
of Defense resources, including personnel of the Department
of Defense, may be used to provide such assistance if--
``(A) the Secretary of Defense and the Attorney General
determine that an emergency situation involving biological
weapons of mass destruction exists; and
``(B) the Secretary of Defense determines that the
provision of such assistance will not adversely affect the
military preparedness of the United States.
``(2) As used in this section, `emergency situation
involving biological weapons of mass destruction' means a
circumstance involving a biological weapon of mass
destruction--
``(A) that poses a serious threat to the interests of the
United States; and
``(B) in which--
``(i) civilian expertise is not readily available to
provide the required assistance to counter the threat posed
by the biological weapon of mass destruction involved;
``(ii) Department of Defense special capabilities and
expertise are needed to counter the threat posed by the
biological weapon of mass destruction involved; and
``(iii) enforcement of the law would be seriously impaired
if the Department of Defense assistance were not provided.
``(3) The assistance referred to in paragraph (1) includes
the operation of equipment (including equipment made
available under section 372 of title 10) to monitor, contain,
disable, or dispose of a biological weapon of mass
destruction or elements of the weapon.
``(4) The Attorney General and the Secretary of Defense
shall jointly issue regulations concerning the types of
assistance that may be provided under this subsection. Such
regulations shall also describe the actions that Department
of Defense personnel may take in circumstances incident to
the provision of assistance under this subsection. Such
regulations shall not authorize arrest or any assistance in
conducting searches and seizures that seek evidence related
to violations of this section, except for the immediate
protection of human life.
``(5) The Secretary of Defense shall require reimbursement
as a condition for providing assistance under this subsection
in accordance with section 377 of title 10.
``(6)(A) Except to the extent otherwise provided by the
Attorney General, the Deputy Attorney General may exercise
the authority of the Attorney General under this subsection.
The Attorney General may delegate the Attorney General's
authority under this subsection only to the Associate
Attorney General or an Assistant Attorney General and only if
the Associate Attorney General or Assistant Attorney General
to whom delegated has been designated by the Attorney General
to act for, and to exercise the general powers of, the
Attorney General.
``(B) Except to the extent otherwise provided by the
Secretary of Defense, the Deputy Secretary of Defense may
exercise the authority of the Secretary of Defense under this
subsection. The Secretary of Defense may delegate the
Secretary's authority under this subsection only to an Under
Secretary of Defense or an Assistant Secretary of Defense and
only if the Under Secretary or Assistant Secretary to whom
delegated has been designated by the Secretary to act for,
and to exercise the general powers of, the Secretary.''.
(b) Chemical Weapons of Mass Destruction.--The chapter 113B
of title 18, United States Code, that relates to terrorism,
is amended by inserting after section 2332a the following.

``Sec. 2332b. Use of chemical weapons

``(a) Offense.--A person who without lawful authority uses,
or attempts or conspires to use, a chemical weapon--
``(1) against a national of the United States while such
national is outside of the United States;
``(2) against any person within the United States; or
``(3) against any property that is owned, leased or used by
the United States or by any department or agency of the
United States, whether the property is within or outside of
the United States,

shall be imprisoned for any term of years or for life, and if
death results, shall be punished by death or imprisoned for
any term of years or for life.
``(b) Definitions.--For purposes of this section--
``(1) the term ``national of the United States'' has the
meaning given in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22)); and
``(2) the term ``chemical weapon'' means any weapon that is
designed to cause widespread death or serious bodily injury
through the release, dissemination, or impact of toxic or
poisonous chemicals or their precursors.
``(c)(1) Military Assistance.--The Attorney General may
request that the Secretary of Defense provide assistance in
support of Department of Justice activities relating to the
enforcement of this section in an emergency situation
involving chemical weapons of mass destruction. Department of
Defense resources, including personnel of the Department of
Defense, may be used to provide such assistance if--
``(A) the Secretary of Defense and the Attorney General
determine that an emergency situation involving chemical
weapons of mass destruction exists; and
``(B) the Secretary of Defense determines that the
provision of such assistance will not adversely affect the
military preparedness of the United States.
``(2) As used in this section, `emergency situation
involving chemical weapons of mass destruction' means a
circumstance involving a chemical weapon of mass
destruction--
``(A) that poses a serious threat to the interests of the
United States; and
``(B) in which--
``(i) civilian expertise is not readily available to
provide the required assistance to counter the threat posed
by the chemical weapon of mass destruction involved;
``(ii) Department of Defense special capabilities and
expertise are needed to counter the threat posed by the
biological weapon of mass destruction involved; and
``(iii) enforcement of the law would be seriously impaired
if the Department of Defense assistance were not provided.
``(3) The assistance referred to in paragraph (1) includes
the operation of equipment (including equipment made
available under section 372 of title 10) to monitor, contain,
disable, or dispose of a chemical weapon of mass destruction
or elements of the weapon.
``(4) The Attorney General and the Secretary of Defense
shall jointly issue regulations concerning the types of
assistance that may be provided under this subsection. Such
regulations shall also describe the actions that Department
of Defense personnel may take in circumstances incident to
the provision of assistance under this subsection. Such
regulations shall not authorize arrest or any assistance in
conducting searches and seizures that seek evidence related
to violations of this section, except for the immediate
protection of human life.
``(5) The Secretary of Defense shall require reimbursement
as a condition for providing assistance under this subsection
in accordance with section 377 of title 10.
``(6)(A) Except to the extent otherwise provided by the
Attorney General, the Deputy Attorney General may exercise
the authority of the Attorney General under this subsection.
The Attorney General may delegate the Attorney General's
authority under this subsection only to the Associate
Attorney General or an Assistant Attorney General and only if
the Associate Attorney General or Assistant Attorney General
to whom delegated has been designated by the Attorney General
to act for, and to exercise the general powers of, the
Attorney General.
``(B) Except to the extent otherwise provided by the
Secretary of Defense, the Deputy Secretary of Defense may
exercise the authority of the Secretary of Defense under this
subsection. The Secretary of Defense may delegate the
Secretary's authority under this subsection only to an Under
Secretary of Defense or an Assistant Secretary of Defense and
only if the Under Secretary or Assistant Secretary to whom
delegated has been designated by the Secretary to act for,
and to exercise the general powers of, the Secretary.''
(c)(1) Civilian Expertise.--The President shall take
reasonable measures to reduce civilian law enforcement
officials' reliance on Department of Defense resources to
counter the threat posed by the use of potential use
biological and chemical weapons of mass destruction within
the United States, including:
(A) increasing civilian law enforcement expertise to
counter such threat:
(B) improving coordination between civilian law enforcement
officials and other civilian sources of expertise, both
within and outside the Federal Government, to counter such
threat;
(2) Report requirement.--The President shall submit to the
Congress-- [[Page S7773]]
(A) ninety days after the date of enactment of this Act, a
report describing the respective policy functions and
operational roles of Federal agencies in countering the
threat posed by the use or potential use of biological and
chemical weapons of mass destruction within United States;
(B) one year after the date of enactment of this Act, a
report describing the actions planned to be taken and the
attendant cost pertaining to paragraph (1); and
(C) three years after the date of enactment of this Act, a
report updating the information provided in the reports
submitted pursuant to subparagraphs (A) and (B), including
measures taken pursuant to paragraph (1).
(d) Clerical Amendment.--The chapter analysis for chapter
113B of title 18, United States Code, is amended by inserting
after the item relating to section 2332a the following:
``2332b. Use of chemical weapons.''.

(e) Use of Weapons of Mass Destruction.--Section 2332a(a)
of title 18, United States Code, is amended by inserting
``without lawful authority'' after ``A person who''.

Mr. BIDEN. Mr. President, I urge acceptance of the amendment.
The PRESIDING OFFICER. Is there further debate on the amendment? If
not, the question is on agreeing to the amendment.
So the amendment (No. 1213) was agreed to.
Mr. HATCH. Mr. President, I move to reconsider the vote.
Mr. BIDEN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. HATCH. Mr. President, it appears to me that we are down to the
votes on Senator Lieberman's amendment and the Specter-Simon amendment.
We are prepared to vote.
Mr. BIDEN. Mr. President, that is my understanding. I have been
informed by staff of the Democratic leadership it would be helpful if
we did not start the vote for about 5 minutes, so we give people enough
notice that we are about to start the vote.
Mr. HATCH. Why not start the vote and add 5 minutes to it. Start it
at 9:45.
Mr. BIDEN. Parliamentary inquiry, Mr. President. Have the yeas and
nays been ordered on both amendments?
The PRESIDING OFFICER. The Specter amendment and the Lieberman
amendment.
Mr. BIDEN. And the first amendment will be?
The PRESIDING OFFICER. The Specter amendment.
Mr. BIDEN. The second one is Lieberman, and the vote on the Specter
amendment will start at 9:45? I ask unanimous consent that the vote on
the Specter amendment begin at 9:45.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, I ask unanimous consent that the vote on
the Lieberman amendment be immediately following that amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Vote on Amendment No. 1250

The PRESIDING OFFICER. Under the previous order, the question occurs
on agreeing to amendment No. 1250 offered by the Senator from
Pennsylvania, Mr. Specter. The yeas and nays have been ordered, and the
clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. LOTT. I announce that the Senator from New Mexico [Mr. Domenici],
and the Senator from Texas [Mr. Gramm] are necessarily absent.
Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad],
and the Senator from Arkansas [Mr. Pryor] are necessarily absent.
The result was announced--yeas 81, nays 15, as follows:

[Rollcall Vote No. 235 Leg.]

YEAS--81

Abraham
Akaka
Ashcroft
Baucus
Bennett
Biden
Bingaman
Bond
Boxer
Bradley
Breaux
Bryan
Bumpers
Burns
Chafee
Coats
Cochran
Cohen
Craig
D'Amato
Daschle
DeWine
Dodd
Dorgan
Exon
Faircloth
Feingold
Feinstein
Ford
Frist
Glenn
Graham
Grams
Grassley
Gregg
Harkin
Hatch
Hatfield
Heflin
Helms
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnston
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lott
Lugar
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nunn
Packwood
Pell
Pressler
Reid
Robb
Rockefeller
Santorum
Sarbanes
Shelby
Simon
Simpson
Snowe
Specter
Stevens
Thomas
Thurmond
Warner
Wellstone

NAYS--15

Brown
Byrd
Campbell
Coverdell
Dole
Gorton
Kassebaum
Kyl
Lieberman
Mack
McCain
Nickles
Roth
Smith
Thompson

NOT VOTING--4

Conrad
Domenici
Gramm
Pryor
So the amendment (No. 1250) was agreed to.
vote on amendment no. 1215

The PRESIDING OFFICER. Under the previous order, the question is on
agreeing to amendment numbered 1215, offered by the Senator from
Connecticut [Mr. Lieberman]. The yeas and nays have been ordered. The
clerk will call the roll.
The legislative clerk called the roll.
Mr. LOTT. I announce that the Senator from New Mexico [Mr. Domenici]
and the Senator from Texas [Mr. Gramm], are necessarily absent.
Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad]
and the Senator from Arkansas [Mr. Payor], are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 77, nays 19, as follows:

[Rollcall Vote No. 236 Leg.]

YEAS--77

Abraham
Akaka
Ashcroft
Baucus
Bennett
Biden
Bingaman
Bond
Boxer
Bradley
Breaux
Brown
Bumpers
Byrd
Campbell
Coats
Cochran
Cohen
D'Amato
Daschle
DeWine
Dodd
Dole
Exon
Feinstein
Ford
Frist
Glenn
Gorton
Graham
Grams
Grassley
Harkin
Hatch
Heflin
Helms
Hollings
Hutchison
Inouye
Jeffords
Johnston
Kassebaum
Kennedy
Kerrey
Kerry
Kohl
Kyl
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
McCain
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Nunn
Pell
Reid
Robb
Rockefeller
Roth
Santorum
Sarbanes
Shelby
Simon
Simpson
Snowe
Stevens
Thompson
Thurmond
Warner

NAYS--19

Bryan
Burns
Chafee
Coverdell
Craig
Dorgan
Faircloth
Feingold
Gregg
Hatfield
Inhofe
Kempthorne
Mack
Packwood
Pressler
Smith
Specter
Thomas
Wellstone

NOT VOTING--4

Conrad
Domenici
Gramm
Pryor
So the amendment (No. 1215) was agreed to.
Mr. HATCH. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. FORD. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. KOHL. Mr. President, I rise today in support of anti-terrorism
legislation. After all, one of the principal purposes of any government
is to ensure the safety of its citizens. And the destruction of the
Oklahoma City Federal building and the bombing of the World Trade
Center indicate that we need to do a better job in this area.
But I continue to have concerns about some provisions of S. 735, just
as I did about the President's proposal. In addition, I am concerned
that the bill under consideration may divide the Senate at a time when
all public officials should be unified in the fight against violence
and terror. So while I am inclined to support this measure, I am also
inclined to support amendments that would improve it.
For many years, we have watched with growing concern as terrorist
violence has escalated--and reached closer to home. We can no longer
ignore the fact that post-cold-war violence knows no borders, and
respects no distinction between soldiers and innocents.
Mr. President, fundraising for international terrorism now has roots
in America--and it has even reached the [[Page S7774]] Midwest. In
fact, in 1993 a group of Palestinian immigrants, linked to the infamous
Abu Nidal terrorist organization, actively raised money here for
terrorism abroad. Surprisingly, this terrorist cell extended from St.
Louis, MO, to Dayton, OH, to Racine, WI.
After their arrest, three of the men were accused of plotting to blow
up the Israeli Embassy in Washington. They admitted to smuggling money
and information, buying weapons, and planning terrorist activities. In
July 1994 they pleaded guilty to Federal Racketeering charges.
Given these growing threats to American lives, both at home and
abroad, it makes sense for Congress to create a comprehensive Federal
criminal statute to be used against domestic and international
terrorists, and to choke off fundraising by terrorist organizations.
Such legislation is not a panacea but, by clarifying and elaborating on
our current laws it could provide law enforcement with more effective
tools in their fight to protect us.
Unfortunately, while S. 735 accomplishes some of these laudable
goals, it moves far beyond areas directly affecting terrorism and into
issues--such as habeas corpus reform--that have frayed the consensus
that Americans expect from us when their safety is at risk. Now, let us
be clear: Many criminal appeals are frivolous, and the often convoluted
habeas process is in need of reform. However, this divisive issue
should be thoroughly debated on its own--not as a last minute
attachment to a 160-page terrorism proposal.
Moreover, attaching habeas reform to this bill opens the door to
other issues that should be considered elsewhere. For example, others
seem encouraged to offer amendments relating to arms sales, perjury,
identification cards, and immigration. If these amendments are
attached, this bill will become a christmas tree. And if these
proposals are accepted, then I will consider offering my amendment to
address the Supreme Court's concerns regarding gun free school zones.
After all, this is one bill that will certainly be signed into law
quickly.
Beyond these concerns regarding habeas corpus reform, I also have
some substantive concerns regarding the core antiterrorism provisions
of this bill, just as I had with the Clinton bill. Specifically, I
believe that S. 735 has not adequately addressed the constitutional
objections that Members from both sides of the aisle have raised over
the preceding months. While the substitute does address some of these
concerns, it often creates more problems than it solves.
For example, the current bill entirely deletes the licensing
provisions of the President's fundraising proposal. While the original
provision was already flawed, the Republican cure is worse than the
disease. While we need to stop the flow of money to terrorist
organizations, we also need to be sure that our final product allows
groups to raise funds for nonviolent, legitimate political purposes. An
overly broad ban--with no safety valve--may infringe upon the first
amendment rights of donors to provide financial support to legitimate
organizations of their choice.
Similarly, the alien deportation provisions of S. 735 may undermine
the due process rights of legal resident aliens. Specifically, these
aliens should have some right to review--and challenge--evidence that
the Government has marshalled against them. After all, none of us would
want to be caught up in a kafkaesque procedure that takes place
entirely behind closed doors. In the words of Benjamin Franklin, ``They
that give up essential liberty to obtain a little temporary safety
deserve neither liberty nor safety.''
In closing, Mr. President, we should not use this antiterrorism bill
as a vehicle for moving a partisan agenda forward, destroying a rare
consensus in the process. Moreover, in fighting terrorists, we must not
be frightened into weakening the Constitution that we have sworn to
uphold. Therefore, I hope we agree to several amendments to address
these problems, so that we may present the American people with
legislation that strengthens our defenses against terrorism, without
weakening our commitment to the Constitution.
Mr. KYL. Mr. President, I rise in support of S. 735, the Dole-Hatch
Terrorism Prevention Act of 1995. I thank Senator Dole and Senator
Hatch for including in the bill my provision, which strengthens the
protection of Federal computers against terrorism.
Mr. President, the Internet is a worldwide system of computers and
computer networks that enables users to communicate and share
information. The system is comparable to the worldwide telephone
network. According to a Time magazine article, the Internet connects
over 4.8 million host systems, including educational institutions,
Government facilities, military bases, and commercial businesses.
Millions of private individuals are connected to the Internet through
their personal computers and modems.
Computer criminals have quickly recognized the Internet as a haven
for criminal possibilities. During the 1980's, the development and
broad-based appeal of the personal computer sparked a period of
dramatic technological growth. This has raised the stakes in the battle
over control of the Internet and all computer systems.
Computer criminals know all the ways to exploit the Internet's easy
access, open nature, and global scope. From the safety of a telephone
in a discrete location, the computer criminal can anonymously access
personal, business, and Government files. And because these criminals
can easily gain access without disclosing their identities, it is
extremely difficult to apprehend and successfully prosecute them.
Prosecution of computer criminals is complicated further by
continually changing technology, lack of precedence, and weak or
nonexistent State and Federal laws. And the costs are passed on to
service providers, the judicial system, and most importantly--the
victims. Mr. President, section 527 will deter this type of crime.
This section requires the U.S. Sentencing Commission to review
existing sentencing guidelines as they apply to sections 1030(a)(4) and
1030(a)(5) of title 18 of the United States Code--the Computer Fraud
and Abuse Act. The Commission must also establish guidelines to ensure
that criminals convicted under these sections receive mandatory minimum
sentences for not less than 6 months. Currently, judges are given great
discretion in sentencing under the Computer Fraud and Abuse Act. In
many cases, the sentences don't match the crimes, and criminals receive
light sentences for serious crimes. Mandatory minimum sentences will
deter computer ``hacking'' crimes, and protect the infrastructure of
Federal computer systems.
Everybody recognizes that it is wrong for an intruder to enter a home
and wander around; it doesn't make sense to view a criminal who breaks
into a computer system differently. We have a national anti-stalking
law to protect citizens on the street, but it doesn't cover stalking on
the communications network. We should not treat these criminals
differently simply because they possess new weapons.
These new technologies, which so many Americans enjoy, were developed
over many years. I understand that policy can't catch up with
technology overnight, but we can start filling in the gaps created by
these tremendous advancements. We cannot allow complicated technology
to paralyze us into inactivity. It is vital that we protect the
information and infrastructure of this country.
Because computers are the nerve centers of the world's information
and communication system, there are catastrophic possibilities. Imagine
an international terrorist penetrating the Federal Reserve System and
bringing to a halt every Federal financial transaction. Or worse yet,
imagine a terrorist who gains access to the Department of Defense, and
gains control over NORAD.
The best known case of computer intrusion is detailed in the book,
``The Cuckoo's Egg.'' In March 1989, West German authorities arrested
computer hackers and charged them with a series of intrusions into
United States computer systems through the University of California at
Berkeley. Eastern block intelligence agencies had sponsored the
activities of the hackers beginning in May 1986. The only punishment
the hackers were given was probation.
An example of the pending threat is illustrated in the Wednesday, May
10, headline from the Hill entitled ``Hired Hackers Crack House
Computers.'' Auditors from Price Waterhouse managed to break into House
Members' [[Page S7775]] computer systems. According to the article, the
auditors' report stated that they could have changed documents,
passwords, and other sensitive information in those systems. What is to
stop international terrorists from gaining similar access, and
obtaining secret information relating to our national security?
Mandatory minimum sentences will make the criminals think twice
before illegally accessing computer files. In a September 1994 Los
Angeles Times article about computer intrusion, Scott Charney, chief of
the computer crime unit for the U.S. Department of Justice, stated
``the threat is an incresing threat,'' and ``[i]t could be a 16-year-
old kid out for fun or it could be someone who is actively working to
get information from the United States.''
He added, there is a ``growing new breed of digital outlaws who
threaten national security and public safety.'' For example, the Los
Angeles Times article reported that, in Los Angeles alone, ther are at
least four outlaw computer hackers who, in recent years, have
demonstrated they can seize control of telephones and break into
Government computers.
The article also mentioned that Government reports further reveal
that foreign intelligence agencies and mercenary computer hackers have
been breaking into military computers. For example, a hacker is now
awaiting trial in San Francisco on epionage charges for cracking an
Army computer system and gaining access to FBI files on former
Philippine president Ferdinand Marcos. According to the 1993 Department
of Defense report, such a threat is very real: ``The nature of this
changing motivation makes computer intruders' skills high-interest
targets for criminal elements and hostile adversaries.''
Mr. President, the September 1993 Department of Defense report added
that, if hired by terrorists, these hackers could cripple the Nation's
telephone system, ``create significant public health and safety
problems, and cause serious economic shocks.'' The hackers could bring
an entire city to a standstill. The report states that, as the world
becomes wired for computer networks, there is a greater threat the
networks will be used for spying and terrorism. In a 1992 report, the
President's National Security Telecommunications Advisory Committee
warned, ``known individuals in the hacker community have ties with
adversary organizations. Hackers frequently have international ties.''
Mr. President, section 527 of this bill will deter terrorist activity
and enhance our national security.
Mr. DODD. Mr. President, the brutal and vicious bombing of the
Federal building in Oklahoma City continues to tear at the Nation's
soul. We are still mourning the loss of so many innocent lives, and
asking ourselves how anyone could act with such savagery.
The toll from this terrible tragedy would have been even worse, if so
many rescue workers and volunteers had not acted so heroically. Their
courageous and tireless efforts inspired the Nation. We should all take
a minute to commend these heroes.
The many law enforcement officials who have worked so hard on this
case should also be commended. Their efficient apprehension of suspects
and witnesses has impressed everyone. We can all be proud of their
efforts.
As we continue to deal with this terrible tragedy--the deadliest
terrorist attack on American soil--we must find ways to prevent such
acts in the future. While no one will argue that we can end terrorism,
we can take steps to deter terrorists, make it more difficult for them
to kill and injure, and ensure that they are brought swiftly to
justice.
The President deserves commendation for moving forcefully in that
direction with a comprehensive proposal to crack down on terrorists.
That proposal, which he submitted to the Congress shortly after the
Oklahoma bombing, establishes new Federal offenses to ensure that
terrorists do not escape through the gaps in current law. FBI director
Louis Freeh explained the importance of closing these gaps in recent
testimony before the Judiciary Committee.
The President's proposal also provides additional investigative tools
for Federal law enforcement officials. These include access to
financial reports, telephone bills and other records in foreign
counterintelligence investigations. Because these investigations are
not always based on criminal offenses, it can be difficult for law
enforcement to proceed in certain cases.
Overall, the President's proposal will help the Nation prevent
terrorism and help bring terrorists to justice. The bombing in Oklahoma
made clear just how vulnerable we all are to terrorism, and we ought to
move this proposal forward in an efficient, bipartisan way.
To their credit, Senators Dole and Hatch have incorporated most of
the President's proposal into the bill we are considering today. I
commend them for negotiating with the democratic leadership and
attempting to narrow differences.
However, there are a few important Presidential proposals that are
not in the Republican bill. The President sought to provide the
Attorney General with the authority to order emergency wiretaps in
foreign and domestic terrorism cases. When I met with Federal law
enforcement officials last week in Connecticut, they stressed the
important of this proposal. Regrettably, my Republican colleagues
fought this amendment and it was defeated.
Another critical Presidential proposal fared better. Bipartisan
cooperation resulted in a unanimous vote in favor of Senator
Feinstein's amendment, which authorizes the Treasury Department to
promulgate regulations requiring tracing agents in explosives. This
authority should help law enforcement officials track bomb builders and
other criminals. Because this technology is relatively new, we will
need to monitor the effectiveness of the department's regulations.
There are other important differences between the Republican bill and
the President's proposal. One critical difference is the Republican
approach to habeas corpus reform. This has been a contentious issue for
a number of years. No one in this body wants to see prisoners abuse the
legal process, and delay justice for victims, by filing meritless
appeals. But most of my colleagues also want to ensure that those
people who have been unfairly convicted have some recourse.
We have all struggled to strike the right balance on habeas corpus
reform, and it is not an easy task. In this time of healing, we should
not let a divisive political issue delay the counterterrorism measures
that the Nation demands. I hope that we can reach some sort of
compromise on this issue.
There are other aspects of this bill that need to be worked out. Some
of my colleagues have raised some important concerns about the effect
of this legislation in civil rights. Clearly, no one in this body wants
to act hastily and undermine the Constitution. We must not sacrifice
the principles of freedom, fairness and privacy on the altar of fear.
That would give the ultimate victory to the terrorists.
So let us work together, resolve our differences, and rejoin the
battle to strengthen the Nation against terrorist attack.
AMENDMENT NO. 1233

Mr. PRESSLER. Mr. President, I would note the pending amendment
concerns a matter, airline security, that is within the jurisdiction of
the Senate Committee on Commerce, Science, and Transportation. I see
the distinguished chairman of the Committee on the Judiciary is on the
floor. Would the chairman be willing to enter into a short colloquy on
this issue?
Mr. HATCH. I would be pleased to discuss the matter with my friend.
Mr. PRESSLER. I thank my colleague. Although I support the proposed
amendment requiring a uniform security standard for passenger airlines,
as chairman of the Commerce Committee I want the record to be clear on
the point that the Committee on Commerce, Science, and Transportation
retains jurisdiction over matters concerning airline safety and
security.
Further, I want the record to be clear that simply by not objecting
to this amendment on jurisdictional grounds, the Committee on Commerce,
Science, and Transportation will not be deemed to have waived its
jurisdiction over the very important issue of air carrier security
programs. [[Page S7776]]
I would ask whether the chairman agrees with my assessment of the
jurisdictional situation and whether he would be willing to stipulate
as much for the record?
Mr. HATCH. I understand and appreciate that the chairman of the
Senate Committee on Commerce, Science, and Transportation has always
provided strong leadership on air passenger safety and security issues.
Let me make it clear that my friend from South Dakota is absolutely
correct. Aviation security is within the jurisdiction of the Senate
Committee on Commerce, Science, and Transportation. It is not my
intention that this amendment will affect in any way that committee's
jurisdiction over airline security matters in the future.
Mr. PRESSLER. I thank my friend from Utah for clarifying this point.
Having put my jurisdictional concern to rest, I join in supporting the
amendment and urge my colleagues to support it. American citizens
traveling on foreign carriers should have the same level of protection
they have when traveling on U.S. passenger carriers. Moreover, U.S.
passenger carriers should not be put at a competitive disadvantage vis-
a-vis foreign competitors whose relaxed security standards are less
expensive.
Mr. HATCH. I thank the chairman. I very much appreciate his support
for this amendment and thank him for agreeing to proceed to its
consideration.
Mrs. FEINSTEIN. Mr. President, yesterday the Senate voted 90 to 0 to
approve an amendment I authored to the counterterrorism legislation.
Because of the importance of this amendment, I want to clarify its
intent and language.
This amendment will make it easier for law enforcement officials to
trace the origins of bombs used for violent or criminal purposes. The
legislation specifically requires the Secretary of the Treasury to
conduct a study within 12 months on the use of taggants in all
explosive materials, including black or smokeless powder. Once that
study is completed, the Treasury Department must enforce the use of
taggants in explosive materials within 6 months, depending on the
study's findings and other factors. In addition, this amendment
instructs the Treasury Department to also study ways of making common
chemicals, such as fertilizer, inert and unusable as an explosive.
This amendment exempts putting taggants in black or smokeless gun
powder when that powder is used for small arms ammunition, or bullets--
an exemption that already exists under current law. In addition, black
or smokeless powder used in antique firearms for recreational purposes
is also exempted from this amendment. The amendment does allow for the
use of taggants in black or smokeless powder produced for sale in large
quantities or for other uses.
I want to clarify that this amendment extends the existing exemption
under current law. Under sections 845 (a)(4) and (5) of Title 18,
United States Code, small arms ammunitiona and antique weapons used for
recreational purposes are exempt from all explosive regulations, except
for a few specific circumstances. This amendment simply reiterates
current law.
Mr. HATCH. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DOLE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DOLE. Mr. President, it is my understanding, after visiting with
the managers, that the only amendments left are habeas corpus
amendments.
I want to thank the managers on both sides of the aisle for their
hard work and cooperation for the last 6 hours, and also the Democratic
leader, Senator Daschle, for his cooperation.
So we are down now to the habeas corpus amendments. We disposed of
virtually everything, 80, 90 amendments. We are down to about six, five
on the Democratic side and one on the Republican side.
I think we have agreed that we come in at 9:30, have 15 minutes of
morning business, and at 9:45 we are on the bill. And Senator Biden
will bring up the habeas corpus Federal prisoners, No. 1217, with 30
minutes of debate equally divided.
Then there would be a vote at 10:15 which would accommodate two
Senators who are going to the Base Closure Commission, and one Senator
who has someone in the hospital. Then we would try to reach time
agreements on the remaining amendments, and if possible stack all of
those votes so we can complete action probably sometime like 1 o'clock.
We would have votes on those, plus final passage, unless there is a
motion to reconsider a vote, or something like that.
I think that is satisfactory. I wish to check with Senators.
So we will proceed on that basis.

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