Congressional Record, Volume 141 Issue 92 (Wednesday, June 7, 1995)

[Congressional Record Volume 141, Number 92 (Wednesday, June 7, 1995)]
[Senate]
[Pages S7803-S7880]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

COMPREHENSIVE TERRORISM PREVENTION ACT

The PRESIDING OFFICER. Under the previous order, the hour of 9:45
having arrived and passed, the Senate will now resume consideration of
S. 735, which the clerk will report.
The legislative clerk read as follows:

A bill (S. 735) to prevent and punish acts of terrorism,
and for other purposes.

The Senate resumed consideration of the bill.

Pending:
Hatch-Dole amendment No. 1199, in the nature of a
substitute.

Mr. SPECTER. Mr. President, the time has arrived for consideration of
the pending bill on terrorism. The issues which are going to be taken
up this morning involve habeas corpus reform. In the absence of any
other Senator on the floor who desires to speak or offer an amendment,
I will address the subject in a general way.
Mr. President, the Specter-Hatch habeas corpus reform bill, S. 623,
is a very important piece of legislation. The provisions of that bill
will be taken up now as part of the pending antiterrorism bill. This
bill is an appropriate place to take up habeas corpus reform, because
the acts of terrorism in the atrocious bombing of the Federal building
in Oklahoma City would carry with it the death penalty, and habeas
corpus reform is very important in order to make the death penalty an
effective deterrent.
In order to have an effective deterrent, the penalty has to be
certain and the penalty has to be swift. We have seen in the course of
the appeals taken on cases from death row that they last sometimes as
long as 20 years. Habeas corpus proceedings arising from Federal
convictions are handled slightly differently than those arising out of
State convictions, because in State proceedings, after the highest
State court affirms the death penalty on direct review, there may then
be additional State-court review called collateral review on State
habeas corpus before review on Federal habeas corpus. Despite this
slight difference, this is the time to move ahead with legislation to
reform habeas corpus in all cases.
This is a subject that I have been working on for many years, since
my days as an assistant district attorney in Philadelphia and later as
district attorney of Philadelphia. Since coming to the Senate in 1981,
I have introduced many bills directed at improving the administration
of criminal justice, like the armed career criminal bill, which was
enacted in 1984, and other legislation which has dealt with expanding
the prison system, improving the chances of realistic rehabilitation,
and strengthening deterrent value of the criminal law. The subject of
habeas corpus reform falls into the latter category.
I have addressed habeas corpus reform on many occasions over the
years and succeeded in 1990 in having the Senate pass an amendment to
the 1990 crime bill on habeas corpus reform to try to reduce the long
appellate time. Notwithstanding its passage by the Senate in 1990, the
provision was not passed by the House of Representatives and was
dropped from the conference report. I continued to introduce
legislation on habeas corpus reform in 1991, 1993, and again in 1995.
This year, after very extended negotiations with the distinguished
Senator from Utah, the chairman of the Judiciary Committee, we came to
an agreement on legislation which captioned the Specter-Hatch habeas
corpus reform bill, S. 623, the provisions of which are now pending as
part of this antiterrorism bill.
Preliminarily, Mr. President, I think it important to note the
controversy over whether the death penalty is, in fact, a deterrent
against violent crime.
It is my view that it is a deterrent, and I base that judgment on my
own experience in prosecuting criminal cases, prosecuting personally
murder cases, and running the district attorney's office in
Philadelphia which had some 500 homicides a year at the time.
[[Page S7804]] Based on this experience, I am personally convinced that
many professional robbers and burglars are deterred from taking weapons
in the course of their robberies and burglaries because of the fear
that a killing will result, and that would be murder in the first
degree.
One of the cases which I handled many years ago as an assistant
district attorney on appeal has convinced me that it is, in fact, a
deterrent, and it is an illustrative case where there are many, many
others which have been cited in treatises and the appellate reports.
The case I refer to involved three young hoodlums named Williams, age
19, Cater, 18, and Rivers, age 17. The three of them decided to rob a
grocery store in north Philadelphia. They talked it over, and the
oldest of the group, Williams, had a revolver which he brandished in
front of his two younger coconspirators.
When Cater, age 18, and Rivers, age 17, saw the gun they said to
Williams that they would not go along on the robbery if he took the gun
because of their fear that a death might result and they might face
capital punishment--the electric chair.
Williams put the gun in the drawer, slammed it shut, and they all
left the room to go to the grocery store in north Philadelphia for the
robbery, to get some money.
Unbeknown to Cater or Rivers, Williams had reached back into the
drawer, pulled out the gun, took it with him, and in the course of the
robbery in the north Philadelphia grocery store, the proprietor, Jacob
Viner, resisted. Williams pulled out his gun and shot and killed Mr.
Viner, and all three were caught and charged with murder in the first
degree. All were tried. All were given the death penalty.
We know the facts of the case from the confessions and from the
clearly established evidence as to what happened, as I have just
recited it.
Ultimately, Williams was executed in 1962, the second to the last
individual to be executed in Pennsylvania until within the past few
months there was an execution after a 33-year lapse in carrying out the
death penalty in the State of Pennsylvania.
When the matter came up on hearings before the pardon board, and I
was district attorney, I agreed that the death penalty ought not to be
carried out as to both Cater and Rivers because of the difference in
their approach to the offense, that although technically they were
guilty of the acts of their coconspirator, there was a significant
qualitative difference, because they had refused to go along when the
gun was to be taken and it was counter to the agreement and
conspiratorial plan and scheme which the three carried out.
It was not an easy distinction to make because many would say that
Cater and Rivers were equally responsible with Williams and that they
had participated in the murder plot and should be held to the death
penalty as well. But their sentences were commuted.
I think that case is a good illustration of the deterrent effect of
capital punishment. Here you had two young men, 18 and 17, with very
marginal IQ's, but they knew enough not to go along on a robbery if a
gun was present because they might face the death penalty if a killing
occurred.
Mr. President, in the current context in which habeas corpus appeals
now run for as long as a couple of decades, the deterrent effect of
capital punishment has been virtually eliminated.
There are many, many cases which illustrate this point. Many cases of
brutal murders in which the case has dragged on and on for as long as
17 years or more.
One of them is the case of a man named Willie Turner. On the morning
of July 12, 1978, he walked into the Smith Jewelers in Franklin, VA,
carrying a sawed-off shotgun, wrapped in a towel. Without saying a
word, Turner showed his shotgun to the proprietor, a man named Mr. Jack
Smith.
Mr. Smith triggered the silent alarm, and a police officer, Alan
Bain, arrived at the scene. During the course of the events, the
defendant, Turner, pointed his shotgun at officer Bain's head and
ordered him to remove his revolver from his holster and to put it on
the floor. Turner then eventually shot the proprietor, Jack Smith, in
the head. The shot was not fatal.
Then officer Bain began talking to Turner and he offered to take
Turner out of the store if he would agree not to shoot anyone else. The
defendant Turner then said, ``I'm going to kill this squealer,''
referring to the proprietor, Smith, who lay severely wounded. Turner
reached over the counter with his revolver and fired two close-range
shots into the left side of Mr. Smith's chest.
The shots caused Smith's body to jump. Medical testimony established
that either of these two shots to the chest would have been fatal.
Turner was tried for murder in the first degree, was convicted, and was
sentenced to death. The appeals lasted 17 years, with the victim's
family attending some 19 separate court proceedings.
It is not an easy matter, Mr. President, when we talk about capital
punishment. It is my judgment, however, that society needs this
ultimate weapon in order to try to deal with violent crime in America.
That has been the judgment of some 38 States in the United States. That
is a judgment of the Congress of the United States in enacting
legislation on the death penalty on the crime bill which was passed
last year--a very controversial bill with many aspects going in a
number of directions, some with gun control, others with providing more
police, others with building more prisons.
I supported that bill, in large part because of the death penalty and
the strong stands taken in that bill against violent crime.
Mr. President, there are many, many cases which illustrate the
enormous delays in the criminal justice system and one which I have
cited on the floor before. The Congressional Record is replete with
citations of cases which show the deterrent effect of the death penalty
and show the enormous delays under habeas corpus, but the Robert Alton
Harris case is one which shows it vividly.
Defendant Harris was arraigned for a double murder back in July of
1978. His case wound through the courts running for some 14 years until
1992. In the course of this case, Mr. Harris filed 10 State habeas
corpus petitions under the laws of California, 6 Federal habeas corpus
petitions, 4 Federal stays of executions, there were 5 petitions for
certiorari to the Supreme Court of the United States, and the case went
on virtually interminably. Finally, in a very unusual order, the
Supreme Court of the United States directed the lower Federal courts
not to issue any more stays of execution for Harris.
There is another aspect to these very long delays, Mr. President. It
involves the question as to whether the protracted, lengthy period of
time defendants wait to have their death sentences carried out is
itself, in fact, cruel and unusual punishment.
In a case before the Supreme Court of the United States as reported
in the Washington Post on March 28 of this year, Justice Stevens,
joined by Justice Breyer, called upon the lower courts to begin to
examine whether executing a prisoner who has spent many years on death
row violates the Constitution's prohibition on cruel and unusual
punishment.
There was a case in 1989 where the British Government declined to
extradite a defendant, Jens Soering, to Virginia on murder charges
until the prosecutor agreed not to seek the death penalty because the
European Court of Human Rights had ruled that confinement in a Virginia
prison for 6 to 8 years awaiting execution violated the European
Convention on Human Rights.
So we have a situation where these long delays involve continuing
travail and pain to the family of the victims awaiting closure and
awaiting disposition of the case. We also have an adjudication under
the European Convention on Human Rights that concluded that the
practice in the State of Virginia where cases were delayed for 6 to 8
years constitutes cruel and unusual punishment--all of these factors
come together. Delays now average over 9 years across the United
States. It seems to me the Congress of the United States, which has the
authority to establish timetables and procedures for the Federal
courts, ought to act to make the death penalty an effective deterrent.
This legislation will move precisely in that direction.
Under the Specter-Hatch bill there will be a time limit of 6 months
for the defendant to file his petition for a writ [[Page S7805]] of
habeas corpus in the Federal courts in a capital case. At the present
time, without any statute of limitations, some of those on death row
wait until the death penalty is imminent before filing the petition.
This will put into effect a 6-month time limit in capital cases, where
the State has provided adequate counsel in its post-conviction
proceedings. So there is motivation under the pending legislation for
adequate counsel to be appointed by the States. Not only will the
appointment of counsel expedite the process, but it will ensure that
the defendant will be accorded his or her rights.
After that period of time, a U.S. district court will have a period
of 180 days to decide a habeas corpus petition in a capital case. That
really is a sufficient period of time. That I can personally attest to
from my own experience as an assistant district attorney and district
attorney handling habeas corpus cases in both the State and Federal
courts. If that time is insufficient, a judge can extend the time by
writing an opinion stating his or her reasons. Right now, there are
cases that have been pending before some Federal district judges for
years. We must act to impose some limit on the length of time such
cases are allowed to linger.
This deadline is not unduly burdensome to a Federal judge, to take up
a case and decide it in 6 months. Even in the States which have the
highest incidence of capital punishment, with the most defendants on
death row--Florida, California, Texas--each Federal judge would not
have a case sooner than once every 18 months or so. On appeal, the
Federal court of appeals would have the obligation to decide the case
within 120 days of briefing.
If a defendant sought to file any subsequent petition for habeas
corpus, he would not be allowed to do so unless there was newly
discovered evidence going to his guilt which could not have been
available at an earlier time. This is a reasonably strict standard
against filing repetitious petitions. And a second petition would be
allowed only if the court of appeals agrees to permit the filing of the
petition in the district court. Because the courts of appeals act in
panels of three judges, two judges will have to agree that a subsequent
petition satisfies the rigorous standards of this bill before it is
filed in the district court.
So I think we have set forth here a timetable which is realistic and
reasonable, and a structure which will make the death penalty a
meaningful deterrent, cutting back the time from some 20 years, in
extreme cases, to a reasonable timeframe which can be done with
fairness to all parties in the course of some 2 years.
This legislation is not crafted in a way which is totally acceptable
to me but it has been hammered out over the course of a great many
negotiations and discussions with the distinguished Senator from Utah,
the chairman. While he is on the floor I would like to praise him for
his work in this field and for his work on the committee generally.
This has been a very, very difficult matter to come to closure on. I
think in the posture of the terrorism problem, that we are on the
verge, now, of really moving forward and enacting this very important
legislation.
I think it will pass the Senate. I believe it will pass the House. I
think once presented to the President, it will be enacted into law and
will very significantly improve the administration of criminal justice
in the United States.
Mr. HATCH. Will my colleague yield?
Mr. SPECTER. I do.
Mr. HATCH. Mr. President, I thank my colleague for his kindness. I
have to say we would not be as far along here on habeas corpus and
having it in this bill if it was not for his leadership in this area.
He is one of the few people in the whole Congress who really
understands this issue very fully and thoroughly, and I have to give
him an awful lot of credit on it.
We have worked together with the States attorneys general to have the
language we have in this bill. I hope everybody on this floor will vote
down these amendments that are being brought up here today because I
think it is the only way we can make the change and get rid of these
frivolous appeals, save taxpayers billions of dollars, and get the
system so it works in a just and fair way, the way it should.
The amendment we have will protect civil liberties and constitutional
rights while at the same time protecting the citizens and the victims
and their families from the incessant appeals that really have been the
norm in our society.
So I thank my colleague for his leadership on this and I just
personally respect him and appreciate him and consider him a great
friend.
We are prepared to go. We are supposed to have a vote at 10:15. I
hope we can move ahead on the bill.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Campbell). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BIDEN. 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. BIDEN. Mr. President, I apologize to my colleague for being late.

Amendment No. 1217

(Purpose: To amend the bill with respect to deleting habeas corpus for
State prisoners)

Mr. BIDEN. Mr. President, I call up an amendment at the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Delaware [Mr. Biden] proposes an amendment
numbered 1217.

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:

Delete title 6, subtitle A, and insert the following:

Subtitle A--Collateral Review in Federal Criminal Cases

SEC. 601. FILING DEADLINES.

Section 2255 of title 28, United States Code, is amended--
(1) by striking the second and fifth paragraphs; and
(2) by adding at the end the following new paragraphs:
``A one-year period of limitation shall apply to a motion
under this section. The limitation period shall run from the
latest of--
``(1) the date on which the judgment of conviction becomes
final;
``(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movement was prevented from making a motion by such
governmental action;
``(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and is made retroactively
applicable; or
``(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
``In a proceeding under this section before a district
court, the final order shall be subject to review, on appeal,
by the court of appeals for the circuit in which the
proceeding is held only if a circuit justice or judges issues
a certificate of appealability. A certificate of
appealability may issue only if the movement has made a
substantial showing of the denial of a constitutional right.
A certificate of appealability shall indicate which specific
issue or issues shows such a denial of a constitutional
right.
``A claim presented in a second or successive motion under
this section that was presented in a prior motion shall be
dismissed.
``A claim presented in a second or successive motion under
this section that was not presented in a prior motion shall
be dismissed unless--
``(A) the movant shows the claim relies on a new rule of
constitutional law, made retroactive by the Supreme Court,
that was previously unavailable; or
``(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
diligence; and
``(ii) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the movant guilty of the underlying offense.
``Before a second or successive motion under this section
is filed in the district court, the movant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application. A motion in the
court of appeals for an order authorizing the district court
to consider a second or successive motion shall be determined
by a three-judge panel of the court of appeals. The court of
appeals may authorize the filing of a second or successive
motion only if it determines that the motion makes a prima
facie showing that the motion satisfies the requirements in
this section. The court of appeals shall grant or deny the
authorization to file a second or successive motion not later
than 30 days after the filing of the motion. [[Page S7806]]
``The grant or denial of an authorization by a court of
appeals to file a second or successive motion shall not be
appealable and shall not be the subject of a petition for
rehearing or a writ of certiorari.
``A district court shall dismiss any claim presented in a
second or successive motion that the court of appeals has
authorized to be filed unless the applicant shows that the
claim satisfies the requirements of this section.''.
Mr. BIDEN. Mr. President, this is the first of a series of several
amendments relating to habeas corpus. Habeas corpus is probably the
most time honored phrase in our English jurisprudential criminal
justice system, referred to as the Great Writ. But it is not very well
understood by a vast majority of people including many lawyers.
I say at the outset here that one of the things we are going to hear
today--we are going to hear a great deal about how the system is
abused. We are going to be told that time and again. We will see
charts. We have been seeing these charts for years that show that a man
or woman, in almost every case it has been a man, who has been
sentenced to death, because of a series of frivolous appeals and
successive habeas corpus petitions has remained in a prison cell and
alive for--some of the examples of 10, 12, 14, 18 years after having
committed the crime and having been convicted by a jury of their peers
and having exhausted their appeals--after having committed a heinous
crime. And we are left with the impression that the choice here is a
stark choice between a continuation of a system where everybody
convicted of a heinous crime and sentenced to death languishes in a
prison for a decade or more, costing the system money and avoiding
their ultimate fate that the choice is between that system and a system
that essentially eliminates the right of a Federal court to review the
actions taken by a State court to determine whether or not someone had
been granted a fair trial. That is what habeas corpus is all about.
Habeas corpus is all about saying when so and so is convicted, they
were deprived of certain rights and opportunities and that they were
not given a fair shake in the system.
Habeas corpus came about and really came in the forefront of the
American political and legal system around 1917 when the State of
Georgia put to death someone who by everyone's account should not have
been put to death, and there was no ability of the Federal court to
review the actions taken by the Georgia State court. The reason I give
this background--and in light of the fact that I got here a few minutes
late and there are Senators who have commitments early in the morning
on this, I am going to shorten this particular amendment. But what we
are told is that--and you will hear time and again this morning--the
system is terrible, everyone abuses the system, and essentially State
courts do a good job. Why have the Federal courts in this thing at all?
I realize I am putting colloquial terms to this, but that is the
essence of it.
The amendments that I am going to offer today and others will offer
today are not designed to maintain the system as it is. We will show in
future amendments that, if we amend the habeas corpus law the way we
would like to as opposed to the way it is in the Republican bill, you
still would have a situation where someone would have to have their
fate executed and carried out after a trial by their peers and a
finding of guilt within a very short amount of time. You would not have
these 12-, 14-, 16-, or 18-year delays in implementing a court's
decision.
As my former associate--I was his associate--a very fine trial lawyer
in Wilmington, DE, always would say to the jury, ``I hope we keep our
eye on the ball here.'' I want us to try to focus, if we can, this
morning. My colleagues on the Republican side of the aisle have
repeatedly said in this bill that we must do something to ensure swift
punishment of those who committed the Oklahoma City bombing. That is
supposedly why, you might wonder, in a terrorism bill there is habeas
corpus.
Well, the constant argument put forward is, look, we have to do this
because once we find the person who did this awful thing in Oklahoma
and they are convicted and sentenced to death, the death penalty must
be carried out swiftly. I might add, a bill that the Presiding Officer
and I voted for, the Biden crime bill, is the only reason there is a
death penalty. Had we not voted for that bill, had that not passed last
year, this finding of a person who committed the bombing, that person
under Federal law would not be eligible to be put to death. There is no
question that because of the action you and I and others took last year
there is a death penalty now.
So unlike the World Trade Tower, no death penalty would be there
under Federal law had we not passed the Biden crime bill then. Now
there is. But they say now, once we find this person, we are going to
go put them to death, what we have to do--this will be a Federal prison
because under Federal law they will be prosecuted, not under the
Oklahoma law but Federal law. They are eligible for the death penalty,
and they will be convicted--I assume, and it is our fervent hope they
will be convicted--and now they get sentenced to death. And the
President and the Attorney General say they want the death penalty for
whomever is convicted. My friends say, well, what we have to do now is
have habeas corpus changed so no one will languish in prison. I do not
think there is anybody in the Federal system right now--and I am
looking to my staff for confirmation--who sits on death row filing
habeas corpus petitions. There is one habeas corpus petition that has
been filed in the Federal system.
So what I want to say to my friends--and I will put the rest of this
in the Record--is this has nothing to do with terrorism. Not one of the
horror stories Senator Hatch has given or has given us on the Senate
floor relates to a terrorist who was prosecuted in the Federal court.
They all relate to someone who is prosecuted in State court and has
spent too long sitting on death row. There are useful and practical
steps we can take to prevent future terrorist activities. We can reform
habeas corpus petitions for State court prisoners. But in reforming
habeas corpus petitions for State court prisoners, not one of them will
affect terrorism because--I want to make it real clear--if we have a
terrorist convicted under Federal law in a Federal court, then Federal
habeas applies.
So my amendment is very simple. It says if you want to deal with
terrorism, that is the purpose of putting habeas corpus in this bill
and then limit it to Federal cases; limit it to Federal prisoners. That
is the stated purpose. Do not go back and change the whole State court
system. Do not go back and change the whole State habeas system on this
bill. Debate it on a bill which should be the crime bill that is coming
up in the next couple of weeks we are told.
There was a lot of discussion yesterday about nongermane amendments.
This amendment strikes the 95 percent of the habeas bill that is not
germane and keeps the 5 percent that is germane. Ninety-five percent of
what my friends have in this bill relates to State prisoners, State
courts, and has nothing to do with terrorism, nothing to do with
Oklahoma City, but 5 percent arguably does.
My amendment says let us pass the 5 percent that has to do with
Federal prisoners held in Federal prisons convicted in Federal courts
and change the habeas the way they want for those prisoners. That will
deal with Oklahoma City the way they say they want it and it will not
mess up the 95 percent of the cases that deal with the State prisoners
in State prisons in State courts and deny essentially Federal review of
those State decisions.
So I will reserve the remainder of my time by saying that it is
simple. My amendment simply says, all right, if this is about Oklahoma
City, let us have it about Oklahoma City. The provisions in the bill
relate to Federal prisoners and Federal habeas corpus.
Parliamentary inquiry: How much time remains?
The PRESIDING OFFICER. The Senator from Delaware has 5 minutes 2
seconds.
Mr. BIDEN. I will reserve the remainder of my time.
I yield the floor.
Mr. HATCH. Mr. President, I rise in opposition to the amendment
offered to limit habeas reform exclusively to Federal cases.
Some have argued that habeas reform as applied to the States is not
germane to this debate. Those individuals, including my distinguished
colleague from Delaware, contend that a [[Page S7807]] reform of the
Federal overview of State convictions is meaningless in the context of
the debate we are having. They are perhaps willing to admit that some
revision of the collateral review of cases tried in Federal court may
be in order, but they contend that reform of Federal collateral review
of cases tried in State court is unnecessary.
This position is simply incorrect. I would like to read from a letter
written by Robert H. Macy, district attorney of Oklahoma City, and a
Democrat:

[I]mmediately following the trial or trials in federal
court, I shall, working in cooperation with the United States
Department of Justice and the Federal law enforcement
agencies investigating the bombing of the Alfred P. Murrah
Building, prosecute in Oklahoma State court the cowards
responsible for murdering innocent people in the area
surrounding the federal building. And I shall seek the death
penalty. We must never forget that this bombing took several
lives and injured dozens of persons in the neighborhood and
businesses near the building. The State of Oklahoma has an
overwhelming, compelling interest to seek, and obtain the
maximum penalty allowable by law for the senseless and
cowardly killings.

In our reaction to the destruction of the Federal building in
Oklahoma City, we may overlook the fact that the bombing also caused
the death of people who were not inside the building itself, or even on
Federal property. The State of Oklahoma, not the Federal Government,
will thus prosecute those responsible for the bombing that killed
people outside of the Federal building. In those instances, Federal
jurisdiction may not obtain and it will thus be necessary to prosecute
the killers in State, as well as
Federal, court.

A failure to enact a complete, meaningful, reform of habeas corpus
proceedings may enable the individuals in this case, provided they are
apprehended and duly convicted, to frustrate the demands of justice.
The blood of the innocent men and women are on the hands of the evil
cowards who committed this terrible tragedy. Justice must be, as
President Clinton declared, ``swift, certain, and severe.''
Moreover, failure to enact meaningful, comprehensive, habeas reform
will permit other killers who have terrorized their communities to
continue to frustrate the judicial system. If we adopt the proposed
amendment, we will create a schism between State and Federal capital
law. In other words, murders tried in Federal court will face
imposition of their final penalty more swiftly than persons tried for
capital crimes in State cases. Why should we adopt such a piecemeal
approach to reform, one that will leave such a gap between State and
Federal cases? It simply makes no sense to reform habeas proceedings
for cases tried in Federal court but leave the current disastrous
system in place for cases tried in State court.
As of January 1, 1995, there were some 2,976 inmates on death row.
Yet, only 38 prisoners were executed last year, and the States have
executed only 263 criminals since 1973. Abuse of the habeas process
features strongly in the extraordinary delay between sentence and the
carrying out of that sentence.
In my home State of Utah, for example, convicted murderer William
Andrews delayed the imposition of a constitutionally imposed death
sentence for over 18 years. The State had to put up millions of dollars
in precious criminal justice resources to litigate his meritless
claims. His guilt was never in question. He was not an innocent person
seeking freedom from an illegal punishment. Rather, he simply wanted to
frustrate the imposition of punishment his heinous crimes warranted.
This abuse of habeas corpus litigation, particularly in those cases
involving lawfully imposed death sentences, has taken a dreadful toll
on victims' families, seriously eroded the public's confidence in our
criminal justice system, and drained State criminal justice resources.
This is simply not a just system.
Justice demands that lawfully imposed sentences be carried out.
Justice demands that we now adopt meaningful habeas corpus reform.
Justice demands that we not permit those who would perpetuate the
current system to steer us from our course. We must do as the victims,
families, and friends of those who have asked us to do: enact
meaningful, comprehensive habeas reform now.
Mr. President, I know a number of our colleagues are ready to vote on
this. Let me just make three or four points that I think are important
with regard to the amendment of my friend and colleague.
I contend that the Biden amendment--and I think anybody who reads it
would gut the habeas corpus title of this bill by applying habeas
corpus reform solely to Federal capital convictions thus making reform
inapplicable to the majority of capital cases including the Oklahoma
State prosecution for murders of some of the people killed in Oklahoma.
I am referring to those victims who were not Federal employees but were
killed by the blast while outside of the building. If this amendment
passes, there would be no habeas reform that would apply to them.
So I would like to make three additional points about why we should
not vote for the Biden amendment before I move to table the amendment.
First, I have made this point that where people who were not Federal
employees were outside the building, the terrorist will be prosecuted
in State court for those people.
I ask unanimous consent that a letter from Robert H. Macy, a Democrat
district attorney of Oklahoma City, be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

State of Oklahoma,

District Attorney,

Oklahoma City, OK, May 24, 1995.
Senator Orrin G. Hatch,
Chairman, Judiciary, Dirksen Senate Office, Washington, DC.
Dear Senator Hatch: The purpose of this letter is to
express my support for the inclusion of the provisions for
reform of Federal Habeas Corpus authored by Senator Spector
and you in the Anti-terrorism Bill, S735. Apparently some
persons have raised questions about the appropriateness of
this measure. Specifically, I have been told that there are
some who do not see the importance of these reform measures
in cases, such as the Oklahoma City bombing, which will
initially be prosecuted by Federal Court.
There are two points I would like to make in response to
those questions. First, immediately following the trial or
trials in Federal Court, I shall, working in cooperation with
the United States Department of Justice and the Federal law
enforcement agencies investigating the bombing of the Alfred
P. Murrah Building, prosecute in Oklahoma State Court the
cowards responsible for murdering innocent people in the area
surrounding the federal building. And I shall seek the death
penalty. We must never forget that this bombing took several
lives and injured dozens of persons in the neighborhood and
businesses near the building. The State of Oklahoma has an
overwhelming, compelling interest to seek and obtain the
maximum penalty allowable by law for the senseless and
cowardly killings. Not only is it in the interest of the
State, it is my sworn duty to seek those sanctions, and I
intend to fully carry out my responsibilities.
The reform measures contained in the Spector, Hatch, Dole
Habeas Corpus Reform measures contained in S735 will in my
judgment significantly curb the abuse and delays inherent in
current habeas practice. Every day of delay represents a
victory for these cowardly cold blooded killers and another
day of defeat and suffering for the victims and all other
Americans who cry out for justice.
Secondly, your reform provisions will also create
significant time savings during appeals from federal
convictions as well. Examples of this include:
Time limitations on when habeas petitions may be filed;
time deadlines on when federal courts must rule on habeas
petitions; a requirement that federal courts prioritize
consideration of capital appeals; reform of the abuses
inherent in the probable cause process; limitations on second
and successive petitions.
As Chairman of the Board of Directors of the National
District Attorney's Association I am proud to inform you that
America's prosecutors speak with one voice and that we are
calling upon you and your colleagues to set your priorities
and enact reforms which will provide to every convicted
murderer the rights guaranteed by the constitution, but
absolutely no further consideration or delay than is
constitutionally required.
Respectfully,
Robert H. Macy,
District Attorney.

Mr. HATCH. Mr. President, in this letter, Mr. Macy makes it very
clear that he intends to prosecute these terrorists under State law who
caused the Oklahoma City bombing. If he does, the Biden amendment will
not apply to them. So they can be on death row, even though we want
swift, secure, and fast judgment, they would be on death row for
anywhere up to 50 years, which is the case of one person in our society

[[Page S7808]] today still sitting on death row almost 50 years later.
So, first, it does not take care of those Federal employees who were
killed outside the building should the State of Oklahoma choose to
prosecute those responsible--as Robert Macy has stated will occur.
Second, we do not want piecemeal reform. If a robber kills one of the
Federal employees the night before the bombing in Oklahoma City or
anywhere else, why should we treat that killer any differently from the
Oklahoma terrorists simply because he would be tried in a State court
rather than a Federal court? We need to have it apply across the board,
and the vast majority of murders are committed in the States and
prosecuted by the State courts, and they would not be affected by the
Biden amendment.
Third, let us say that the Federal Government prosecutors, for some
reason or other, blow the prosecution. Assume we are unable to get a
conviction against these terrorists in the Federal courts. The double
jeopardy clause still allows the State to prosecute those terrorists or
those murderers in State court under State law. But if they do
prosecute them and we do not reform Federal habeas corpus review of
State cases, then we will have the same incessant, frivolous appeals ad
hominem, day and night, from that point on because this amendment would
not take care of that problem. If we are going to pass habeas reform,
let us pass real habeas reform. Let us do it straight up. Let us
protect the constitutional rights, which our amendment does do in the
bill. Let us protect civil liberties, but let us get some finality into
the law so that the frivolous appeal game will be over.
Basically, those are the three things: People killed who are not
Federal employees outside the building, those prosecutions will be
brought in State court. And the Biden amendment would not apply to the
benefit of habeas reform to that case. We do not want piecemeal reform.
If a robber kills a Federal employee the night before the bombing in
Oklahoma City, just to give a hypothetical, and the State has to bring
the murder action against that individual, then why should that person
not be subject to the same rules as the murderers in the Oklahoma City
bombing? And if the Federal prosecutor blows the prosecution, why
should not the State prosecutor be able to bring action under the State
laws and under those circumstances prosecute the killers and have the
same rule apply under those circumstances as well?
Mr. BIDEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. I will be very brief in reply.
With regard to the point that if someone is not a Federal employee
outside the building is killed, fortunately, we passed the Biden crime
bill last year, and under title 18, section 2332(A) ``Use of Weapons of
Mass Destruction''--I would refer my colleague to that--anyone killed
at all, whether sitting across the street drinking a cup of coffee,
whether they are riding by in their automobile, whether they are a
Federal employee or whether they are an alien, it does not matter; they
are subject to the Federal death penalty. So the Senator is missing the
point.
Second, we do want universal reform of habeas corpus. Let us do it on
a bill that we are supposed to do it on. Let us do it on the crime
bill.
And, No. 3, as to the idea that we are somehow going to have two
different standards apply, the real issue is under what circumstances
does a Federal court have a right to review a State court's judgment.
It has nothing to do with terrorism under this provision. It has
nothing to do with Oklahoma City. We should deal with it. We should
discuss it. We should debate it, not on this bill.
I am prepared, whenever the Senator wants, to move to the tabling of
my amendment.
Mr. HATCH. I am prepared to yield. Let me just make a point that a
State prosecutor--a Democrat--is going to prosecute these terrorists,
and this habeas reform, if the Biden amendment passes, will not apply
to them. And that, in a nutshell, is the problem with this amendment.
We ought to make our habeas reform apply to both Federal and State
convictions.
Mr. President, I move to table the amendment and ask for the yeas and
nays.
The PRESIDING OFFICER. Do Senators yield back their time?
Mr. HATCH. I yield back the time.
Mr. BIDEN. Mr. President, I would take issue with the last statement
of my friend. I will not debate it now. We will have plenty of time to
do that.
I yield back my time.
Mr. HATCH. I yield back my time.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the motion to
table the amendment. The yeas and nays have been ordered. The clerk
will call the roll.
Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm], the
Senator from New Hampshire [Mr. Gregg], the Senator from Pennsylvania
[Mr. Santorum], and the Senator from Wyoming [Mr. Simpson], are
necessarily absent.
I further announce that, if present and voting, the Senator from
Wyoming [Mr. Simpson], would vote ``yea.''
Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad],
is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
who desire to vote?
The result was announced--yeas 67, nays 28, as follows:

[Rollcall Vote No. 237 Leg.]
YEAS--67
Abraham
Ashcroft
Baucus
Bennett
Bingaman
Bond
Breaux
Brown
Bryan
Burns
Byrd
Campbell
Chafee
Coats
Cochran
Cohen
Coverdell
Craig
D'Amato
DeWine
Dole
Domenici
Exon
Faircloth
Feinstein
Ford
Frist
Gorton
Graham
Grams
Grassley
Hatch
Heflin
Helms
Hollings
Hutchison
Inhofe
Jeffords
Johnston
Kassebaum
Kempthorne
Kerrey
Kyl
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Nunn
Pressler
Pryor
Reid
Robb
Rockefeller
Roth
Shelby
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
NAYS--28
Akaka
Biden
Boxer
Bradley
Bumpers
Daschle
Dodd
Dorgan
Feingold
Glenn
Harkin
Hatfield
Inouye
Kennedy
Kerry
Kohl
Lautenberg
Leahy
Levin
Mikulski
Moseley-Braun
Moynihan
Murray
Packwood
Pell
Sarbanes
Simon
Wellstone
NOT VOTING--5
Conrad
Gramm
Gregg
Santorum
Simpson
So the motion to table the amendment (No. 1217) was agreed to.
Mr. BIDEN. Mr. President, I understand one of our colleagues thought
this was an up-or-down vote as opposed to a tabling motion and would
like to ask unanimous consent to change the vote which will not affect
the outcome.
Change of Vote
Mrs. BOXER. On this last rollcall vote No. 237, I voted ``yea.'' It
was my intention to vote ``nay.'' Therefore, I ask unanimous consent
that I be permitted to change my vote. This will in no way change the
outcome of the vote.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
(The foregoing tally has been changed to reflect the above order.)
Mr. KENNEDY. Mr. President, I rise to speak generally on the subject
of habeas corpus and in support of the amendments by Senators Biden and
Levin that will be offered to the bill.
At the outset, I want to emphasize my support for passage of a strong
antiterrorism bill that gives law enforcement agencies the tools they
need to combat crimes of terror at home and abroad. I commend President
Clinton and the Senators who brought in legislation expeditiously
before the Senate. There is much in this legislation that deserves to
be enacted into law as soon as possible.
It is unfortunate, therefore, that the proponents of the bill have
injected into it an unrelated and highly controversial subject; namely,
drastic changes to longstanding law relating to habeas corpus.
The manager of the bill says that habeas corpus is relevant because
the suspects charged in the Oklahoma City
[[Page S7809]] bombings are charged with a capital offense. But that
fact presents absolutely no justification for changing the rules with
regard to State prisoners.
The inclusion of sweeping habeas corpus reform in this bill is the
worst kind of opportunism, and I regret that it has occurred in the
wake of this national tragedy.
When, and if, capital punishment is imposed, it must be imposed in a
constitutional manner. That is accomplished through the writ of habeas
corpus--a process so central to our constitutional system of Government
that it is often called the ``Great Writ.''
Clearly, some form of habeas corpus is needed to avoid excessive
litigation, repetitive reviews, and the delays that sometimes
characterize the present system. In a series of decisions over the past
10 years, the Supreme Court itself has imposed certain restrictions on
the ability of death row inmates to obtain review through habeas
corpus, and the issue has brought heated controversy to our
congressional debates on crime bills in recent years.
In the past, Senator Biden, among others, has proposed legislation to
limit the number and length of death row appeals, but at the same time
to make sure that post-conviction review in the Federal courts is
meaningful. But he adhered to the sensible conclusion of former Justice
Lewis Powell, who in a landmark report commissioned by Chief Justice
Rehnquist said the following:

Capital cases should be subject to one fair and complete
course of collateral review through the State and Federal
system. Where the death penalty is involved, fairness means a
searching and impartial review of the propriety of the
sentence.

But the bill before us today does not strike a fair balance. It
actually precludes the meaningful review that Justice Powell said was
necessary, and it increases the likelihood that innocent people will be
executed in this country.
A principal problem is that this bill does nothing to ensure that
death penalty defendants receive adequate legal representation at their
original trial.
As many as 20 percent of all death sentences are overturned after
Federal habeas corpus review, very often because a defendant has been
inadequately represented at trial.
This bill also eliminates the current requirement that poor
defendants receive appointed counsel in Federal habeas corpus
proceedings. I reject that view. The appointment of attorneys for death
row inmates is not a question of sympathy, it is a question of
fundamental fairness.
In addition, the bill limits the circumstances under which a death
row inmate may raise a claim of innocence based on newly discovered
evidence. The proposal to limit inmates to one bite at the apple is
sound in principle, but surely our interest in swift executions must
give way in the face of new evidence that an innocent person is about
to be put to death.
At any time prior to the execution there must be a forum in which
non-frivolous claims of innocence can be heard. As Supreme Court
Justice Potter Stewart once wrote, ``swift justice demands more than
just swiftness.''
Finally, the bill might be read to require Federal courts to defer to
State courts on issues of Federal constitutional law. In part the bill
states that a Federal court cannot grant a writ of habeas corpus based
on Federal constitutional claims unless the State court judgment was an
``unreasonable application of Federal law.''
No one thinks that under current law the Federal courts just ignore
State court decisions, even on questions of Federal constitutional law.
The federal courts respect the State courts and give their decisions a
great deal of attention. The specialists I have talked to tell me that
the Federal courts, even now, grant relief on constitutional claims
only when it is pretty clear that a prisoner's constitutional rights
were violated.
This being true, a bill that tells the Federal courts that they
should not grant relief unless they are satisfied that a prisoner's
clearly established rights were violated may not change things very
much.
I do not see the need for this kind of language in the bill, but to
the extent it allows the Federal courts to do what they are doing now,
it may do no great harm. I just hope that, if the bill is adopted, it
will be interpreted correctly.
A contrary interpretation would stand our Federal system on its head.
Why should a Federal court defer to the judgment of a State court on a
matter of Federal constitutional law? The notion that a Federal court
would be rendered incapable of correcting a constitutional error
because it was not an unreasonable constitutional error is
unacceptable, especially in capital cases.
Ever since the days of the great Chief Justice John Marshall, the
Federal courts have historically served as the great defenders of
constitutional protections. They must remain so.
Whatever the merits of this sweeping habeas corpus reform, such
drastic changes should not be adopted on this bill. Nothing in this
legislation would be more detrimental to the values of the Nation and
our Constitution than for Congress, in its rush to combat terrorism, to
strip away venerable constitutional questions.
The perpetrators of the Oklahoma City tragedy will have triumphed if
their actions promote us to short-circuit the Constitution.
This bill goes far beyond terrorism and far beyond Federal prisoners.
It severely limits the ability of any State prisoner--not just
terrorists, but any State prisoner--to seek Federal court review of
constitutional rights. This is an extremely controversial, very
complicated proposal. It is wrong to try to sneak it into an
antiterrorism bill that we all want to pass as quickly as we reasonably
can.
The debate on comprehensive habeas corpus reform should take place
when we take up the omnibus crime bill. The attempt to jam it into the
pending bill is a cynical attempt to manipulate public concern about
terrorism, and the Congress should reject it.
I urge the Senate to act responsibly on this critical issue. We
should adopt the Biden and Levin amendments on the subject, and if
necessary resume the rest of the debate on habeas corpus when the crime
bill comes before the Senate.
(Mr. KYL assumed the chair.)
Mr. DOLE. Mr. President, I wanted to indicate we now have to dispose
of the Biden amendment No. 1217. My understanding is that the Senator
from Delaware is prepared to offer a second.
Mr. BIDEN. Mr. President, my intention would be to offer the second
amendment on counsel standards required in Federal habeas corpus cases.
I think the number is 1226.
Then I will have one more. The most important, from my perspective,
of the amendments I have is the one relating to the deference standard
that is in the Republican bill.
Senator Graham of Florida has indicated to me that he will not offer
his amendment. Senator Levin, I believe, will be ready to offer his
amendment shortly.
I would respectfully request that the Presiding Officer, Mr. Kyl,
offer his amendment sometime between that. It is my intention to offer
my amendment last. I will offer the first three, but the last amendment
on habeas I would like very much to be my amendment on deference.
We will by that time have eliminated all Democratic amendments. I
understand there is one--unless Mr. Kyl is withdrawing his--there is
one amendment on the other side.
Mr. DOLE. We have one, and we have 30 minutes equally divided on this
amendment.
Mr. BIDEN. I am happy to do that. We have apparently not reached a
time agreement. I am prepared to enter now into a time agreement on
this amendment of 30 minutes equally divided.
Mr. DOLE. Mr. President, I make that request.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 1226 to Amendment No. 1199

(Purpose: To amend the bill with respect to requiring counsel for
federal habeas proceedings)

Mr. BIDEN. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:

The Senator from Delaware [Mr. Biden], proposes an
amendment numbered 1226 to amendment No. 1199.

Mr. BIDEN. Mr. President, I ask unanimous consent further reading be
dispensed with. [[Page S7810]]
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

Delete from page 106, line 20 through all of page 125 and
insert the following:
``(h) The ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall
not be a ground for relief in a proceeding arising under
section 2254.''.

SEC. 605. SECTION 2255 AMENDMENTS.

Section 2255 of title 28, United States Code, is amended--
(1) by striking the second and fifth undesignated
paragraphs; and
(2) by adding at the end the following new undesignated
paragraphs:
``A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from the
latest of--
``(1) the date on which the judgment of conviction becomes
final;
``(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action;
``(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
``(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
``In all proceedings brought under this section, and any
subsequent proceedings on review, appointment of counsel for
a movant who is or becomes financially unable to afford
counsel shall be in the discretion of the court, except as
provided by a rule promulgated by the Supreme Court pursuant
to statutory authority. Appointment of counsel under this
section shall be governed by section 3006A of title 18.
``A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate court
of appeals to contain--
``(1) newly discovered evidence that, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
or
``(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.''.

SEC. 606. LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS.

(a) Conforming Amendment to Section 2244(a).--Section
2244(a) of title 28, United States Code, is amended by
striking ``and the petition'' and all that follows through
``by such inquiry.'' and inserting ``, except as provided in
section 2255.''.
(b) Limits on Second or Successive Applications.--Section
2244(b) of title 28, United States Code, is amended to read
as follows:
``(b)(1) A claim presented in a second or successive habeas
corpus application under section 2254 that was presented in a
prior application shall be dismissed.
``(2) A claim presented in a second or successive habeas
corpus application under section 2254 that was not presented
in a prior application shall be dismissed unless--
``(A) the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
``(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
diligence; and
``(ii) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
``(3)(A) Before a second or successive application
permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for
an order authorizing the district court to consider the
application.
``(B) A motion in the court of appeals for an order
authorizing the district court to consider a second or
successive application shall be determined by a three-judge
panel of the court of appeals.
``(C) The court of appeals may authorize the filing of a
second or successive application only if it determines that
the application makes a prima facie showing that the
application satisfies the requirements of this subsection.
``(D) The court of appeals shall grant or deny the
authorization to file a second or successive application not
later than 30 days after the filing of the motion.
``(E) The grant or denial of an authorization by a court of
appeals to file a second or successive application shall not
be appealable and shall not be the subject of a petition for
rehearing or for a writ of certiorari.
``(4) A district court shall dismiss any claim presented in
a second or successive application that the court of appeals
has authorized to be filed unless the applicant shows that
the claim satisfies the requirements of this section.''.
SEC. 607. DEATH PENALTY LITIGATION PROCEDURES.

(a) Addition of Chapter to Title 28, United States Code.--
Title 28, United States Code, is amended by inserting after
chapter 153 the following new chapter:

``CHAPTER 154--SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES
``Sec.
``2261. Prisoners in State custody subject to capital sentence;
appointment of counsel; requirement of rule of court or
statute; procedures for appointment.
``2262. Mandatory stay of execution; duration; limits on stays of
execution; successive petitions.
``2263. Filing of habeas corpus application; time requirements; tolling
rules.
``2264. Scope of Federal review; district court adjudications.
``2265. Application to State unitary review procedure.
``2266. Limitation periods for determining applications and motions.
``Sec. 2261. Prisoners in State custody subject to capital
sentence; appointment of counsel; requirement of rule of
court or statute; procedures for appointment

``(a) This chapter shall apply to cases arising under
section 2254 brought by prisoners in State custody who are
subject to a capital sentence. It shall apply only if the
provisions of subsections (b) and (c) are satisfied.
``(b) This chapter is applicable if a State establishes by
statute, rule of its court of last resort, or by another
agency authorized by State law, a mechanism for the
appointment, compensation, and payment of reasonable
litigation expenses of competent counsel in State post-
conviction proceedings brought by indigent prisoners whose
capital convictions and sentences have been upheld on direct
appeal to the court of last resort in the State or have
otherwise become final for State law purposes. The rule of
court or statute must provide standards of competency for the
appointment of such counsel.
``(c) Any mechanism for the appointment, compensation, and
reimbursement of counsel as provided in subsection (b) must
offer counsel to all State prisoners under capital sentence
and must provide for the entry of an order by a court of
record--
``(1) appointing one or more counsels to represent the
prisoner upon a finding that the prisoner is indigent and
accepted the offer or is unable competently to decide whether
to accept or reject the offer;
``(2) finding, after a hearing if necessary, that the
prisoner rejected the offer of counsel and made the decision
with an understanding of its legal consequences; or
``(3) denying the appointment of counsel upon a finding
that the prisoner is not indigent.
``(d) No counsel appointed pursuant to subsections (b) and
(c) to represent a State prisoner under capital sentence
shall have previously represented the prisoner at trial or on
direct appeal in the case for which the appointment is made
unless the prisoner and counsel expressly request continued
representation.
``(e) The ineffectiveness or incompetence of counsel during
State or Federal post-conviction proceedings in a capital
case shall not be a ground for relief in a proceeding arising
under section 2254. This limitation shall not preclude the
appointment of different counsel, on the court's own motion
or at the request of the prisoner, at any phase of State or
Federal post-conviction proceedings on the basis of the
ineffectiveness or incompetence of counsel in such
proceedings.

``Sec. 2262. Mandatory stay of execution; duration; limits on
stays of execution; successive petitions

``(a) Upon the entry in the appropriate State court of
record of an order under section 2261(c), a warrant or order
setting an execution date for a State prisoner shall be
stayed upon application to any court that would have
jurisdiction over any proceedings filed under section 2254.
The application shall recite that the State has invoked the
post-conviction review procedures of this chapter and that
the scheduled execution is subject to stay.
``(b) A stay of execution granted pursuant to subsection
(a) shall expire if--
``(1) a State prisoner fails to file a habeas corpus
application under section 2254 within the time required in
section 2263;
``(2) before a court of competent jurisdiction, in the
presence of counsel, unless the prisoner has competently and
knowingly waived such counsel, and after having been advised
of the consequences, a State prisoner under capital sentence
waives the right to pursue habeas corpus review under section
2254; or
``(3) a State prisoner files a habeas corpus petition under
section 2254 within the time required by section 2263 and
fails to make a substantial showing of the denial of a
Federal right or is denied relief in the district court or at
any subsequent stage of review.
``(c) If one of the conditions in subsection (b) has
occurred, no Federal court thereafter shall have the
authority to enter a stay of execution in the case, unless
the court of appeals approves the filing of a second or
successive application under section 2244(b).

``Sec. 2263. Filing of habeas corpus application; time
requirements; tolling rules

``(a) Any application under this chapter for habeas corpus
relief under section 2254 must be filed in the appropriate
district court not later than 180 days after final State
court affirmance of the conviction and sentence on
[[Page S7811]] direct review or the expiration of the time
for seeking such review.
``(b) The time requirements established by subsection (a)
shall be tolled--
``(1) from the date that a petition for certiorari is filed
in the Supreme Court until the date of final disposition of
the petition if a State prisoner files the petition to secure
review by the Supreme Court of the affirmance of a capital
sentence on direct review by the court of last resort of the
State or other final State court decision on direct review;
``(2) from the date on which the first petition for post-
conviction review or other collateral relief is filed until
the final State court disposition of such petition; and
``(3) during an additional period not to exceed 30 days,
if--
``(A) a motion for an extension of time is filed in the
Federal district court that would have jurisdiction over the
case upon the filing of a habeas corpus application under
section 2254; and
``(B) a showing of good cause is made for the failure to
file the habeas corpus application within the time period
established by this section.

``Sec. 2264. Scope of Federal review; district court
adjudications

``(a) Whenever a State prisoner under capital sentence
files a petition for habeas corpus relief to which this
chapter applies, the district court shall only consider a
claim or claims that have been raised and decided on the
merits in the State courts, unless the failure to raise the
claim properly is--
``(1) the result of State action in violation of the
Constitution or laws of the United States;
``(2) the result of the Supreme Court recognition of a new
Federal right made retroactively applicable to cases on
collateral review by the Supreme Court; or
``(3) based on a factual predicate that could not have been
discovered through the exercise of due diligence in time to
present the claim for State or Federal post-conviction
review.
``(b) Following review subject to subsections (a), (d), and
(e) of section 2254, the court shall rule on the claims
properly before it.

``Sec. 2265. Application to State unitary review procedure

``(a) For purposes of this section, a `unitary review'
procedure means a State procedure that authorizes a person
under sentence of death to raise, in the course of direct
review of the judgment, such claims as could be raised on
collateral attack. This chapter shall apply, as provided in
this section, in relation to a State unitary review procedure
if the State establishes by rule of its court of last resort
or by statute a mechanism for the appointment, compensation,
and payment of reasonable litigation expenses of competent
counsel in the unitary review proceedings, including expenses
relating to the litigation of collateral claims in the
proceedings. The rule of court or statute must provide
standards of competency for the appointment of such counsel.
``(b) To qualify under this section, a unitary review
procedure must include an offer of counsel following trial
for the purpose of representation on unitary review, and
entry of an order, as provided in section 2261(c), concerning
appointment of counsel or waiver or denial of appointment of
counsel for that purpose. No counsel appointed to represent
the prisoner in the unitary review proceedings shall have
previously represented the prisoner at trial in the case for
which the appointment is made unless the prisoner and counsel
expressly request continued representation.
``(c) Sections 2262, 2263, 2264, and 2266 shall apply in
relation to cases involving a sentence of death from any
State having a unitary review procedure that qualifies under
this section. References to State `post-conviction review'
and `direct review' in such sections shall be understood as
referring to unitary review under the State procedure. The
reference in section 2262(a) to `an order under section
2261(c)' shall be understood as referring to the post-trial
order under subsection (b) concerning representation in the
unitary review proceedings, but if a transcript of the trial
proceedings is unavailable at the time of the filing of such
an order in the appropriate State court, then the start of
the 180-day limitation period under section 2263 shall be
deferred until a transcript is made available to the prisoner
or counsel of the prisoner.

``Sec. 2266. Limitation periods for determining applications
and motions

``(a) The adjudication of any application under section
2254 that is subject to this chapter, and the adjudication of
any motion under section 2255 by a person under sentence of
death, shall be given priority by the district court and by
the court of appeals over all noncapital matters.
``(b)(1)(A) A district court shall render a final
determination and enter a final judgment on any application
for a writ of habeas corpus brought under this chapter in a
capital case not later than 180 days after the date on which
the application is filed.
``(B) A district court shall afford the parties at least
120 days in which to complete all actions, including the
preparation of all pleadings and briefs, and if necessary, a
hearing, prior to the submission of the case for decision.
``(C)(i) A district court may delay for not more than one
additional 30-day period beyond the period specified in
subparagraph (A), the rendering of a determination of an
application for a writ of habeas corpus if the court issues a
written order making a finding, and stating the reasons for
the finding, that the ends of justice that would be served by
allowing the delay outweigh the best interests of the public
and the applicant in a speedy disposition of the application.
``(ii) The factors, among others, that a court shall
consider in determining whether a delay in the disposition of
an application is warranted are as follows:
``(I) Whether the failure to allow the delay would be
likely to result in a miscarriage of justice.
``(II) Whether the case is so unusual or so complex, due to
the number of defendants, the nature of the prosecution, or
the existence of novel questions of fact or law, that it is
unreasonable to expect adequate briefing within the time
limitations established by subparagraph (A).
``(III) Whether the failure to allow a delay in a case,
that, taken as a whole, is not so unusual or so complex as
described in subclause (II), but would otherwise deny the
applicant reasonable time to obtain counsel, would
unreasonably deny the applicant or the government continuity
of counsel, or would deny counsel for the applicant or the
government the reasonable time necessary for effective
preparation, taking into account the exercise of due
diligence.
``(iii) No delay in disposition shall be permissible
because of general congestion of the court's calendar.
``(iv) The court shall transmit a copy of any order issued
under clause (i) to the Director of the Administrative Office
of the United States Courts for inclusion in the report under
paragraph (5).
``(2) The time limitations under paragraph (1) shall apply
to--
``(A) an initial application for a writ of habeas corpus;
``(B) any second or successive application for a writ of
habeas corpus; and
``(C) any redetermination of an application for a writ of
habeas corpus following a remand by the court of appeals or
the Supreme Court for further proceedings, in which case the
limitation period shall run from the date the remand is
ordered.
``(3)(A) The time limitations under this section shall not
be construed to entitle an applicant to a stay of execution,
to which the applicant would otherwise not be entitled, for
the purpose of litigating any application or appeal.
``(B) No amendment to an application for a writ of habeas
corpus under this chapter shall be permitted after the filing
of the answer to the application, except on the grounds
specified in section 2244(b).
``(4)(A) The failure of a court to meet or comply with a
time limitation under this section shall not be a ground for
granting relief from a judgment of conviction or sentence.
``(B) The State may enforce a time limitation under this
section by petitioning for a writ of mandamus to the court of
appeals. The court of appeals shall act on the petition for a
writ or mandamus not later than 30 days after the filing of
the petition.
``(5)(A) The Administrative Office of United States Courts
shall submit to Congress an annual report on the compliance
by the district courts with the time limitations under this
section.
``(B) The report described in subparagraph (A) shall
include copies of the orders submitted by the district courts
under paragraph (1)(B)(iv).
``(c)(1)(A) A court of appeals shall hear and render a
final determination of any appeal of an order granting or
denying, in whole or in part, an application brought under
this chapter in a capital case not later than 120 days after
the date on which the reply brief is filed, or if no reply
brief is filed, not later than 120 days after the date on
which the answering brief is filed.
``(B)(i) A court of appeals shall decide whether to grant a
petition for rehearing or other request for rehearing en banc
not later than 30 days after the date on which the petition
for rehearing is filed unless a responsive pleading is
required, in which case the court shall decide whether to
grant the petition not later than 30 days after the date on
which the responsive pleading is filed.
``(ii) If a petition for rehearing or rehearing en banc is
granted, the court of appeals shall hear and render a final
determination of the appeal not later than 120 days after the
date on which the order granting rehearing or rehearing en
banc is entered.
``(2) The time limitations under paragraph (1) shall apply
to--
``(A) an initial application for a writ of habeas corpus;
``(B) any second or successive application for a writ of
habeas corpus; and
``(C) any redetermination of an application for a writ of
habeas corpus or related appeal following a remand by the
court of appeals en banc or the Supreme Court for further
proceedings, in which case the limitation period shall run
from the date the remand is ordered.
``(3) The time limitations under this section shall not be
construed to entitle an applicant to a stay of execution, to
which the applicant would otherwise not be entitled, for the
purpose of litigating any application or appeal.
``(4)(A) The failure of a court to meet or comply with a
time limitation under this section shall not be a ground for
granting relief from a judgment of conviction or sentence.
[[Page S7812]]
``(B) The State may enforce a time limitation under this
section by applying for a writ of mandamus to the Supreme
Court.
``(5) The Administrative Office of United States Courts
shall submit to Congress an annual report on the compliance
by the courts of appeals with the time limitations under this
section.''.
(b) Technical Amendment.--The part analysis for part IV of
title 28, United States Code, is amended by adding after the
item relating to chapter 153 the following new item:

``154. Special habeas corpus procedures in capital cases...2261.''.....

(c) Effective Date.--Chapter 154 of title 28, United States
Code (as added by subsection (a)) shall apply to cases
pending on or after the date of enactment of this Act.
Mr. BIDEN. Mr. President, in 1988, we passed a bill which I had
authored with several others called the Death Penalty for Drug Kingpins
Act.
It was the first constitutional Federal death penalty to go on the
books after 1972 when the Supreme Court invalidated the death penalty.
I helped write that bill, much to the dismay of many of my liberal
friends who could not understand why I was writing such a bill. It was
a bill strongly promoted by President Bush, and it passed by a lopsided
vote of 65 to 29, with only six Republicans voting against the bill.
When we passed that bill, we recognized that if the Federal
Government was going to put a person to death, we better get it right.
We better have the right guy and we better have had a fair trial, and
the defendant better have had his or her day in court.
As part of the law, we said that the capital defendant--the defendant
accused of a crime which carried with it the death penalty--in that
case the person should have a lawyer. Kind of axiomatic. They should
have a lawyer if they are going to go to trial, a trial in which, if
that person is found guilty, they will be put to death.
That, of course, is also what the sixth amendment of the Constitution
of the United States says. It explicitly says that ``In all criminal
proceedings the accused shall have the assistance of counsel for his
defense.''
Remember Clarence Earl Gideon? The case was Gideon versus Wainwright.
The Supreme Court held that Mr. Gideon, accused of a crime, could not
receive a fair trial absent the right to a lawyer.
In that case, the court said, ``The sixth amendment stands as a
constant admonition that if the constitutional safeguards it provides
be lost, justice will not be done. The right of one charged with a
crime to counsel may not be deemed fundamental and essential to fair
trials in some countries, but it is in ours.''
Also, in the 1988 drug bill we said that prisoners, State or Federal,
who are looking the death penalty in the eye should have a lawyer for
their Federal habeas corpus appeals. Again, we recognize that if the
Federal Government is going to put its stamp of approval on a man's
execution, he should at least have a lawyer.
But this Republican bill does something I am not sure they intended to
do, but they did. This Republican bill changes all of that.
Astonishingly, it changes all of that. In a section entitled
``technical amendments''--we should all keep our eyes open when someone
says ``this is just a technical amendment''--in a section entitled
``technical amendments,'' this bill repeals the right to counsel in
Federal capital cases. It says that the right to counsel is no right at
all but a matter of discretion for the judge.

Let me refer you back to Gideon versus Wainwright, that famous last
sentence which says, ``The right of one charged with a crime to counsel
may not be deemed fundamental and essential to fair trials in some
countries, but it is in ours.''
It does not say it is discretionary in ours. It does not say maybe it
is all right in ours. It does not say it is OK sometimes in ours. It
says, ``it is in ours.''
Astonishingly, this little technical amendment says the right to
counsel is a matter of discretion for the judge to decide.
I do not know what my colleagues were thinking of when they wrote
this. But what this seems to be saying is this: We do not care what the
Constitution says. We do not care what the Supreme Court says. We think
it is OK to deny a person who faces the Federal death penalty--and
there are now over 60 on the books--we think it is OK to deny that
person the assistance of counsel at his trial. I submit this
proposition is as unthinkable as it is unconstitutional. And we should
have nothing to do with it.
The Republican bill also repeals the right we created in 1968 to a
lawyer for Federal habeas corpus appeal. This bill says that there
should be no right to a lawyer, that it should instead be a matter of
discretion for every individual case. What is more, the Republican
proposal is taking away this right at the very same time it is changing
the rules of the game on habeas corpus, and placing new and sweeping
restrictions on the right of habeas corpus itself.
We want to change habeas corpus but they are making sweeping changes
in the rules of the game. And in addition saying, and by the way, while
we are at it we are going to go back and deny you your right to counsel
when you are filing such a petition. And one more thing, we are going
to deny you the automatic right to a lawyer at your trial, before you
are convicted.
It reminds me of that line that is often used, and I will paraphrase,
``hanging first, trial later.'' What are we into here?
I agree we should cut down the delay and abuse of the Federal habeas
corpus and I have made a number of similar proposals over the years to
impose strict time limits on when such petitions could be filed and
also to limit the number that could be filed, essentially giving one
bite out of the apple to drastically reduce the ability to have
successive petitions unless there is some egregious action that is
learned about after the petition is filed, the first petition.
But I have always believed if we are going to speed up the process,
which I wish to do, if we are going to narrow the avenues of habeas
corpus, which I wish to do, we should at least make sure that the
petitioner has a lawyer. That is what we said in 1988 and there has
been no serious question raised about our wisdom in passing that law
since then.
Two years ago I entered into painstaking extensive negotiations with
the Nation's district attorneys and the attorneys general of the United
States over habeas corpus reform. We negotiated for months. We logged
hundreds of hours, argued over scores of serious issues before we came
up with a lengthy and comprehensive compromise--which, I might say and
I probably should not, my staff will not like this, which the liberal
press killed. The liberal press told us this was somehow a terrible
thing to do.
I kept saying we better do this or they are going to take it all
away. But I hope everybody is listening who helped kill that
compromise.
But not once in all our discussions with the Nation's prosecutors, I
was not talking with the public defenders. I was not talking with the
defense bar. I was talking with the Nation's prosecutors, the DA's back
home, the State's attorneys general back home. Not one time in our
talks did the prosecutors propose the repeal of the 1988 right to a
lawyer in a habeas corpus petition. Not once did they argue that the
right to counsel in habeas corpus should be discretionary. Not once did
they suggest that the right to counsel at a trial should be denied.
As a matter of fact, what they constantly said was that the best way
to shorten the appeals, the best way to cut down on the abuse, was to
do it right the first time. They argued--not me--they, the prosecutors,
Republican and Democrat--they said if you want to get this thing on
track make sure there is a competent lawyer representing these people
during this stage of the proceeding. Because they pointed out that most
of the habeas corpus petitions that are granted, and the Federal courts
grant many, most of the ones that are granted are granted because the
court concludes that the defendant did not have adequate counsel, they
were denied their right to know what a fair trial should be.
So here you had the prosecutor--not the defense bar--saying, ``Make
sure that the defendant has legal counsel and then give him one bite
out of the apple.''
These are experienced people. These are the people who try these
cases. These are the people who respond to these habeas corpus
petitions.
I might say to those who are listening, I have to keep reminding
people-- [[Page S7813]] habeas corpus. If a habeas corpus petition is
granted it does not mean anyone goes free. The man or woman still stays
behind bars. All it says is they get a new trial. This is not a
petition for innocence that can be decided in terms of releasing
someone. This merely says that a prisoner behind bars slips a paper
between the bars and says: Send this to the judge, ask him to take a
look at it because I do not think I got a fair trial.
That is what it is. And here we had for months of negotiations--
months--worked out a compromise, and these hard-nosed prosecutors in
our home States said make sure they have counsel. That is the best
insurance for the public at large that we will not be wasting their
money and their time.
Just last year the U.S. Supreme Court, which for the most part is no
friend of the Federal habeas petitioner, recognized the importance of
having a lawyer. In the case of McFarland versus Scott, the Court said:

Quality legal representation is necessary in capital habeas
corpus proceedings in light of the seriousness of the
possible penalty and the unique and complex nature of the
litigation.

To say that habeas litigation is unique and complex is an
understatement. Habeas petitions must meet tightened pleading
requirements. They must comply with the Supreme Court's intricate
doctrines on procedural default and waiver. Federal courts can
summarily dismiss any petition that appears legally insufficient on its
face. And they can deny stay of execution where petitioner fails to
raise a substantial Federal claim. But this provision tells these
indigent defendants who have just been sentenced to death that they
have no right to the help of a lawyer, that they might have to navigate
the arcane, complicated and hazardous sea of the Supreme Court
jurisprudence and statutory rules by themselves.
Quite apart from what I believe is the fundamental unfairness of this
proposition, I also think at a practical level it will waste a lot of
time and a lot of money to deny a lawyer at this point. First, ask any
experienced lawyer or prosecutor. Almost all would rather have a
competent adversary who can adequately frame and present issues over an
incompetent one who does not have the first clue about how to present
his arguments. Most experienced lawyers would tell you that having
someone who has no training on the other side only slows things down
because the trained lawyer and the judge end up doing a lot of extra
work just to figure out what the untrained lawyer is trying to say and
to make sure reversible error is not created.
What is more, under the Republican proposal, valuable resources will
be squandered in litigation at the outset over whether counsel should
or should not be appointed. If the judge ends up appointing counsel,
all that time and money will have been wasted, and if the judge does
not appoint counsel, the indigent death row inmate will be left to find
his own way through some of the most complicated legal doctrines
imaginable. This just does not make sense, in my view, as a practical
matter or as a matter of principle.
We should not in our haste to hurry up executions lose sight of our
commitment to constitutional values. We should not endorse proposals
that increase the chance that, where execution is imminent, an innocent
person be executed. We should not, I believe, sacrifice certainty in
the name of speed, or fairness in the name of vengeance.
Most importantly, Mr. President, I really believe that everyone
should understand we are not talking about changing any of the ways in
which we deal with habeas corpus in this amendment. We are not talking
about whether the Biden approach of only one petition or their approach
of only one petition is the best one. We are not talking about whether
we are going to cut the delay by a year or a month or a day. What we
are talking about is a fundamental principle, one that, as it relates
to the trial, has been established since Gideon versus Wainwright, and
in many instances before that, and one as it relates to Federal habeas
corpus that was established in 1988.
I ask my friend from Utah, because it may have been an oversight,
whether he really intended to eliminate the right to counsel at trial
as well as the right to counsel in a habeas corpus petition.
So I sincerely hope my colleagues will take a close look at this.
This does not have to do with speeding up the process; this has to do
with the fundamental fairness. Are we going to stick with
constitutional principle established several decades ago in this
country saying you are entitled to a lawyer at a trial and, if you
cannot afford one, the court will appoint one as a matter of right and
you are entitled to a lawyer at the Federal level when you file a
habeas corpus petition? The practical implication of all that is that
most prosecutors will tell you that will speed the process up, not slow
the process down.
I yield the floor.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Of course, we will not deny counsel, nor will anybody; nor
is it done, nor will it be done. The reason we oppose this amendment
offered by the distinguished Senator from Delaware is this amendment
would strike the much-needed reform in 28 U.S.C. 848(q) contained in
the antiterrorism bill. Section 848(q), as many of our Senators and
others are no doubt aware, provides funding for capital litigants; that
is, people who have been convicted of capital crimes, to hire among
other things investigators and expert witnesses to assist them with
their habeas petitions. That just presumes that there will be a lawyer
there as well, and there will be. I do not know of a case where a
lawyer has not been appointed.
What you may not be aware of, however, is that section 848(q) permits
the defense counsel to contact the judge ex parte; that is, without the
prosecutor being present, and requests additional funding for experts,
investigators, researchers, and the like. In other words, defense
counsel can approach the judge outside the prosecutors presence and
request the appointment of additional investigators or a new
psychiatrist. The prosecutor is given neither the opportunity to
present nor even a chance to oppose such an appointment.
To add insult to injury, the court can order payment and the
appointment to run nunc pro tunc; that is, from the time the defense
counsel initially hired the additional help. They can go way back. The
defense counsel can go hire these people, have no way of paying them,
and then all of a sudden have an ex parte proceeding, and the judge can
order that they be paid back to the date that the defense counsel hired
them. Talk about an abusive system. This means an investigator hired 6
months before can, when approved by the judge, receive payment for all
of that investigator's past work, and in an ex parte proceeding,
without the right of the prosecutor to be present. The defense counsel
can use whatever information the investigator provides as demonstrating
the need to hire that investigator and pay him from the time that he
actually started working on the case.
There is absolutely no reason for ex parte proceedings on Federal
collateral review after the judgment is final. While such an
arrangement may arguably be appropriate at the trial level, it is not
defensible for postconviction collateral proceedings. It is likely that
the secrecy of these proceedings serves no other purpose than to permit
the defense counsel to, outside of the presence of the prosecutor or
the prosecution, argue their cases, obtain extensions of time, or
receive additional unwarranted investigative expenses. This is simply
indefensible.
There should be no need for a confidential hearing at this point in
the proceeding. They will have had the hearing already. They will be on
appeal. They will have had all kinds of constitutional protections
under our bill, and then to allow an ex parte proceeding to go ahead,
they will have raised their issues at the State level or they would be
unexhausted. By the time the claim is presented in Federal court, all
of these issues should have seen the light of day. Thus, no reason
exists for defense counsel to hide whatever they may be investigating,
nor should defense counsel be permitted to argue their petitions
outside of the presence of other counsel.
It just makes sense that they would not. Section 848(q) has been
greatly abused, and has resulted in enormous [[Page S7814]] cost to the
States. The reform contained in the antiterrorism bill is thus greatly
needed. The Supreme Court has never required counsel in collateral
proceedings. We do not make it discretionary to appoint counsel at
trial; counsel must be appointed at trial. I have to say that any
argument that we do not is ridiculous. But this is a very, very
important point.
I hope our colleagues will vote against the Biden amendment.
Mr. SPECTER addressed the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. I yield time to the Senator from Pennsylvania.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, I certainly agree with the distinguished
Senator from Delaware that we have to be meticulous on right to
counsel. We cite Gideon versus Wainwright, and I was assistant district
attorney when that case was decided in 1963. I am glad to say that in
our Pennsylvania courts, in Philadelphia, counsel had been provided for
indigent defendants long before the Supreme Court of the United States
made that a constitutional mandate in the landmark Gideon case, written
by Justice Black, which said counsel was required for anyone who is
hauled into court to face felony charges.
On a very personal note, I got my introduction into criminal law when
I was assisting defendants back in March 1958, when I took my first
turn defending indigents going down to the prison in the city of
Philadelphia and had, as a matter of fact, my first taste of what the
role of the trial lawyer was, of criminal prosecutions, and of being in
public service.
As I understand these provisions of the bill, it will greatly improve
the extraordinarily technical and complicated procedure that when a
State opts into the expedited procedures, there is additional
responsibility on the State under the provisions of section 2261(b) to
establish a mechanism for the appointment of compensation and payment
of reasonable litigation expenses of competent counsel at the State
postconviction proceedings brought by indigent prisoners.
On the point about ex parte contacts by defense counsel, I doubt that
there is any real quarrel about the requirement that defense lawyers
ought to make an application in the presence of opposing counsel and
ought to make that application in advance of wanting to hire experts.
So it seems to me that whatever the state of the law is this is an
advancement in requiring that States under this provision that I just
read have competent counsel.
Mr. BIDEN. Will the Senator yield for a very brief question?
Mr. SPECTER. I do.
Mr. BIDEN. On page 125 of the Senator's bill, section 608,
``Technical Amendments,'' it says ``Section 408(c) of the Controlled
Substance Act is amended in paragraph 34(a) by striking `shall' and
inserting `may'.''
When you go and look at that paragraph in the law, it says, paragraph
4(a) says ``notwithstanding any other provision of the law to the
contrary, in every criminal action in which the defendant is charged
with a crime,'' and then it goes on to say that the defendant, the
present law says, ``The defendant shall be entitled to the appointment
of one or more attorneys and'' et cetera.
But the way it is changed in your law, it says that ``Notwithstanding
any other provision of the law to the contrary, every criminal action
in which a defendant is charged with a crime the defendant may be
entitled.'' You strike the word ``shall'' and insert ``may.''
Mr. SPECTER. I do not have the referenced section. Let me get it.
Mr. BIDEN. All right.
Mr. SPECTER. Even if you had a statutory provision, it would not
alter the constitutional mandate of Gideon versus Wainwright. Not that
we should trifle with language which would in any way suggest
undercutting the constitutional right to counsel, but if a statute in
error were to say that, Gideon versus Wainwright would control. You
simply cannot have a criminal proceeding where there is not counsel
appointed for the defendant.
Mr. BIDEN. If the Senator will yield for 10 seconds, I think he is
right, Mr. President, but I do not know why we should pass an
unconstitutional statute, because this is clearly unconstitutional the
way it is written.
Mr. SPECTER. If I may respond further to my colleague, if that is so,
that is something that I would certainly concur ought to be corrected.
And I would take a look at that section right now.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The absence of a quorum has been suggested.
The clerk will call the roll.
Mr. HATCH. If the Senator will withhold.
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. Mr. President, I yield time to myself.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. This certainly is not unconstitutional. This has been
worked very carefully by top legal experts, State attorneys general and
others. The court has never mandated counsel in collateral proceedings,
and I think that point has to be made. But there is going to be counsel
appointed and always has been.
To be honest with you, what we are concerned about is that the way
the amendment of the distinguished Senator from Delaware reads, we are
going to wind up having nun pro tunc orders which will allow
petitioners to have expert witness fees and investigators paid for from
the time that the defense counsel wants to hire all these people. The
law currently allows these payments to be made at excessive cost to the
States on an ex parte, meaning one attorney only, proceeding. And that
just should not be. So I hope that folks will vote this amendment down.
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. BIDEN. 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. BIDEN. Mr. President, with the consent of my colleague--and I
failed to do this earlier--I would send a modification of my amendment,
a draft error correction in my amendment to the desk.
Mr. President, I will withhold.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. I ask unanimous consent that the pending amendment be laid
aside so that we can proceed to other business and also to work on some
of the questions we have.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. HATCH. 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. BIDEN. 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. BIDEN. Mr. President, let me very briefly state where we are
right now. You can see the staffs scurrying around here. We have
reached a meeting of the minds on two-thirds of the amendments that I
have offered here. The staff is trying to get precise language that
would accommodate the mutual agreement we have made here thus far. But
there is going to be one part of my amendment that is still going to be
pertinent, and I will speak to that later. But the distinguished
Senator from Pennsylvania and I would like to enter into a brief
colloquy on what I think will be the only remaining part of
disagreement in the Biden amendment that was sent up.
Very briefly, Mr. President, there were two sections of the Biden
amendment, one relating to counsel for an indigent in the filing of a
habeas corpus petition. The second provision is what the Senator from
Utah spoke to, and that is the ability under present law for the
counsel of an indigent person to go to a judge, without notifying the
prosecutor he is going to the judge, and in private--we call it in
camera--say, judge, I need you to authorize my ability to go hire a
psychiatrist for the following reasons, or hire an investigator
[[Page S7815]] for the following reasons. The distinguished Senator
from Utah is worried about that provision and suggests that that
portion of the law is presently being abused. I do not believe it is
abused.
I want to make a very brief statement now as to why I think that and
why I am going to pursue in my follow-on amendment here the elimination
of the provision in the Republican bill that would delete the
possibility of an indigent defense counsel going to a judge on his own.
The reason for that is as follows:
Right now, if I am a prosecutor and I get a lead as to how I can make
my case better to prove the defendant did the deed, I can hire--I can
use--an investigator to go investigate that. If I believe there is a
need to make a case that the defendant is, in fact, perfectly sane and
not insane, I can hire a psychiatrist.
I can use investigative tools without ever having to go to the
defendant's counsel and say, ``By the way, here is what I am going to
do. I am going to hire this psychiatrist to prove that your defendant,
your client, is sane.'' Or, ``I am going to hire two investigators to
go down to Second and Vine and prove that the stoplight does not exist
there,'' or whatever.
So no one quarrels with that. If I am a lawyer who is hired by
private funds to defend an accused person, I am not required to
telegraph to the prosecutor that I have hired a private detective to
investigate a lead in a particular city. I do not have to tell the
prosecutor that.
My worry is that if we change the law as proposed in the core
legislation, that what will be required for an indigent defense counsel
is to walk into court, walk into the chambers of a judge and say, by
the way, judge, we better call in the prosecutor, and sit the
prosecutor down and say, now I want to say, judge, I need your
authority to allow me to go hire an investigator. Here are the reasons
that I want to hire the investigator. The prosecutor is sitting there
taking notes about my case.
Now, that is why I think we should not delete this portion of the
law.
Mr. SPECTER. Would the distinguished Senator from Delaware yield?
Mr. BIDEN. I am delighted to yield.
Mr. SPECTER. I understand the concerns that the Senator has
expressed. I believe that the bill as drafted is preferable,
notwithstanding the arguments the distinguished Senator has raised. I
will come to the specific question in just a moment here.
I think that ex parte communications are very problemsome in any kind
of a case, but they ought to be eliminated to the maximum extent
possible, which is why I think that it just is not a good idea to have
one lawyer talking to the judge by himself.
But the language which I would focus on here is that which says no ex
parte communication request may be considered pursuant to the section
unless a proper showing is made concerning the need for
confidentiality.
I concur with the Senator from Delaware when he says that there ought
not to have to be disclosure by defense counsel in the presence of the
prosecutor to matters which would prejudice the defendant in
investigating the case on the facts, or as to getting expert opinion as
to mental state and competency.
But the question I would have, and it is not really accommodated by
the language, is that if there is a showing of the need for
confidentiality, that would preclude the prosecutor gaining an upper
hand in an unfair way. As a sponsor of this language, let me state that
it is our intent here in this legislation that there not be a
circumstance in which the defense is compelled to reveal, in front of
the prosecutor, matters which would be prejudicial to his opportunity
to present a defense.
Mr. BIDEN. Mr. President, in response to my colleague, he is coming
awfully close to what I intend. If it is read the way in which the
distinguished Senator from Pennsylvania reads it, which is that if
there is a showing for the need for confidentiality, then the judge can
meet only with the defense counsel and make his or her judgment. That,
quite frankly, gets a lot closer to what I intend.
As the Senator feels, as a matter of principle, that we should err on
the side of not having ex parte proceedings, I must acknowledge in
these days, I err on the side of allowing indigent defense counsel to
have the maximum flexibility with the judge.
While the staff is correcting the other portions of this, I would
like to seek the counsel of my counsel, and determine whether or not it
is still necessary to proceed with the last portion of this amendment.
I see the distinguished leader is on the floor. He always comes when
he worries things are slowing down. I can assure the Senator they are
not slowing down, they are moving along fast. We will get this done
before the time would have been used had a rollcall vote been called.
We are very close. I think that can happen.
So I do not want the Senator to get upset. We have Senator Levin
waiting in the wings to go with his amendment.
Mr. DOLE. If the Senator will yield, I had just sort of passed
through the Chamber and I did not see anything happening, but there is
a lot of precedent for that.
As I understand, the next amendment would be the Senator from
Michigan, Senator Levin, and there would be 50 minutes, 25 minutes on a
side. Is that satisfactory?
Mr. LEVIN. That would be fine.
Mr. DOLE. Mr. President, I make that request.
The PRESIDING OFFICER (Mr. Ashcroft). Without objection, it is so
ordered.
Mr. DOLE. While that debate is going on, it is my understanding that
the Biden amendment is now pending, is that correct?
Mr. BIDEN. Mr. President, the answer is yes.
The reason I have counseled my friend from Michigan not to go yet is
that the key staff people who know this issue very well, who will also
want to be available to Senator Hatch as well as to me, are the very
people negotiating this other item which is very close.
Apparently, we are now ready to go. We will be able to move right
away to Senator Levin. We may be able to dispose of this right now.
Apparently, we have reached our agreement.
Mr. DOLE. Does the Senator from Wisconsin have an amendment?
Mr. BIDEN. Mr. President, I think the Senator from Wisconsin wishes
to speak on the issue.
Mr. FEINGOLD. That is right.
Mr. BIDEN. Maybe we can let him do that while we nail this down.
Mr. DOLE. If I understand, after the disposition of the pending
amendment--if we work it out--fine; then the amendment of the Senator
from Michigan; there would be two amendments remaining, one by the
Presiding Officer and one by the Senator from Delaware.
Mr. BIDEN. That is correct.
Mr. DOLE. And as I understand, one would have a 60 minute time
agreement, the other 90 minutes.
Mr. BIDEN. I would say we may not use all 90 minutes, but since it is
the last amendment, I would prefer to have that cushion.
Mr. DOLE. The point is, we would like to complete action. We said no
votes before 1 o'clock. I think it will be probably be before 2
o'clock, would be my guess. there will probably not be any vote before
2 o'clock, but we had hoped to complete action on this bill by 3
o'clock so we could start on telecommunications. We are probably going
into the evening tonight on that bill.
I am told by the managers on that bill that it is a bipartisan
effort, and may be able to complete that more quickly than we may have
thought at the outset.
The bottom line is we need to finish this bill, and I know the
managers are making progress. I appreciate it very much.
Mr. FEINGOLD. Mr. President, I wish to speak on the bill on the
habeas corpus issue. I rise today to speak against provisions in S. 735
that are characterized as reforms in the habeas corpus appeals process.
These items that are being referred to as reforms, in my view, would
hasten the implementation of the death penalty and might well have the
result of rushing innocent people to executions.
This is not, strictly speaking, a debate about the death penalty
itself, but about the fundamental American right of due process.
Mr. President, there are several ways in which this fundamental right
may be undermined by the pending bill, including the requirement that
Federal [[Page S7816]] judiciary defer to State courts. This is a major
departure from more than 200 years of legal precedent, and to my mind,
the most egregious change proposed by habeas reform supporters.
There is also a general 1-year statute of limitations--6 months in
some cases--for filing a petition. These time limits fail to recognize
the time needed to develop a proper habeas petition.
There is also a concern which the ranking member has been discussing
about the elimination of the current absolute right of petitioners in
capital cases to counsel for Federal habeas corpus petitions and
replacing it with a provision that leaves assignment of counsel to the
discretion of the court. I understand there has been some movement on
that, some progress. I am pleased to hear it and look forward to
reviewing it.
Mr. President, we have heard the arguments for streamlining habeas
corpus procedures to limit death row appeals and implement the death
penalty more quickly.
On a gut level, these arguments carry power; they paint a picture of
convicted criminals contemptuously manipulating our justice system to
avoid punishment for heinous crimes, all the while supposedly
languishing comfortably in their prison cells. The arguments remind us
of the lingering pain and frustration of victims' families, who are
forced to wait, sometimes for years, before they reach the end of their
ordeals that began with the violent death of a loved one. The arguments
also speak to the problems of clogged courts and precious resources
tied up in lengthy and, perhaps, duplicative habeas proceedings.
But the supporters of so-called habeas reform usually do not tell us
other stories--the rest of the story.
They do not tell us about innocent defendants sent to death row
because they could not afford competent counsel, and because some
States do not have procedures in place to provide effective counsel to
indigents. They do not tell us of murder defendants watching as their
attorneys fail to properly prepare and present a defense, either
because they lack resources or because they themselves are indifferent,
incompetent, or inexperienced.
They do not tell us about innocent defendants convicted because of
sloppy investigations or prosecutorial misconduct.
They do not seem to take into account the amount of time it takes to
properly prepare and present a habeas petition.
They seem ready and willing to hasten to fatal judgment in the name
of efficiency and to accept tragic mistakes as the necessary price for
timely justice.
I am not willing to support this haste.
While I completely understand the pain of victims' families, I do not
want to create more pain, and more victims of violence, by approving
changes in the law that could send innocent people to their deaths.
That in itself would be a dreadful crime.
We must be mindful that when we change the law, it applies to all,
not just to the clever manipulators of the system that supporters of
the habeas reform provisions of S. 735 seem to believe fill our death
rows.
Consider the case of Nathaniel Carter, an innocent man wrongly
convicted in 1982 of the stabbing death of his mother-in-law.
Mr. Carter is a man about my age. His story was told in the New York
Times and in New York Newsday this past February. Ten witnesses placed
Mr. Carter miles from the murder scene at the time the crime was
committed. Nonetheless, he was sentenced to 25-years-to-life for a
crime he did not commit, only because New York State at that time did
not have a death penalty statute.

It does now, and if that statute had been in effect in 1982, the
sentencing judge made it plain that it would have been imposed, on Mr.
Carter, an innocent man.
Mr. Carter spent 28 months in prison before being exonerated. His
former wife eventually admitted committing the crime.
Nathaniel Carter was lucky, but had conditions been different, his
luck would not have saved him. His boyhood friend, George Pataki, now
Governor of New York, earlier this year signed that State's new death
penalty statute into law.
It is worth considering what would have happened if Mr. Carter had
faced the death penalty and if he would have faced the habeas reforms
included in S. 735. He might well be dead for a crime he did not
commit.
So the question today is are we willing to put Mr. Carter and others
like him to death for the sake of hastening other deaths of some guilty
parties?
The U.S. Supreme Court has handed down significant habeas decisions
this year in two separate cases, decisions that should be considered in
this debate.
On April 19, the Court, in Kyles versus Whitley, reversed and
remanded the first-degree murder conviction of a Louisiana man, Curtis
Lee Kyles. Mr. Kyles was sentenced to death.
After his conviction, it was discovered the State had not revealed
certain evidence favorable to Mr. Kyles' case. His appeals to State
courts won him a remand for an evidentiary hearing, but the State trial
court afterward denied relief. He then went to the State supreme court,
which denied his application for discretionary review.
However, the U.S. Supreme Court ruled that Mr. Kyles was entitled to
a new trial because there was a ``reasonable probability'' that the
disclosure of that evidence would have produced a different result than
the original conviction.
Had Mr. Kyles not been able to file his Federal habeas petition, as
might well be the case if we pass S. 735 with its habeas reform
provisions, which include a higher bar to habeas petitions and
deference to State courts, he might still be sitting in a Louisiana
prison, awaiting death.
Earlier this year, in January, the U.S. Supreme Court handed down its
ruling in Schlup versus Delo.
In that case, Lloyd Schlup, a prisoner in Missouri, was convicted of
participating in the murder of a fellow inmate and sentenced to death.
However, Schlup, who was filing his second habeas petition, argued
his trial deprived the jury of critical evidence that would have
established his innocence. The U.S. district court had denied relief,
stating Mr. Schlup had not met the ``clear and convincing evidence''
standard that the habeas reform provisions of S. 735 would impose.
The U.S. Supreme Court adopted a less stringent standard, that the
habeas petitioner need show that the constitutional violation
complained of ``probably resulted in the conviction of one who is
actually innocent.''
There is a body of evidence readily available to show that putting
limits on the habeas corpus process could well mean innocent people
will be affected in the ultimate way.
A 19-page staff report prepared last November for the House
Subcommittee on the Constitution, formerly the Subcommittee on Civil
and Constitutional Rights, found 52 cases in 20 years where innocent
people were convicted of capital crimes and later won release, some of
them by filing habeas petitions.
That document, entitled, ``Innocence and the Death Penalty: Assessing
the Danger of Mistaken Executions,'' might be worth reading before we
decide to reform this system in this way that reminds me very much of
something that is quite the opposite of reform.
At one point, the report states:

These 52 cases illustrate the flaws inherent in the death
sentencing systems used in the states. Some of these men were
convicted on the basis of perjured testimony or because the
prosecutor improperly withheld exculpatory evidence. In other
cases, racial prejudice was a determining factor. In others,
defense counsel failed to conduct the necessary investigation
that would have disclosed exculpatory information.

I would also call to the attention of my colleagues a Yale Law School
Journal piece entitled, ``Counsel for the Poor; the Death Sentence Not
For The Worst Crime But For The Worst Lawyer,'' published in May 1994,
by Stephen Bright, the director of the Southern Center for Human
Rights, based in Atlanta, GA.
Mr. Bright's piece is a sobering, I might even say chilling
description of problems encountered by defendants in capital cases.
Mr. Bright points out instances of States not providing sufficient
resources to assigned defense counsel for proper investigation of a
case. Compared to the resources available to an aggressive prosecutor,
a defendant can [[Page S7817]] begin with a significant disadvantage in
a life-or-death fight.
Mr. Bright also describes cases of professional incompetence on the
part of attorneys representing indigent clients in capital cases. Some
of these defendants, after they were convicted and sentenced to death,
were able to secure competent counsel, prove their innocence, and win
just release.
Capital cases are complex, and the stakes are the highest imaginable,
so experienced counsel is needed to properly represent a defendant.
Still, we are seeing evidence that these cases are not always tried by
such experienced counsel. Imagine sitting in the defendant's chair,
your life on the line, knowing you are innocent, and watching your
attorney fail to conduct proper investigation, fail to call witnesses,
fail to present an adequate statement to the jury. Imagine that in this
country.
When the day is done, that attorney walks home. You, the defendant,
walk to death row. If you cannot find experienced, responsible counsel
for an appeal, you walk to the gas chamber, the electric chair, or to a
stark room with vials of poison to execute you.
We must not forget these stories as we debate reform.
Neither should we forget, in our frustration with the current system,
that a habeas petitioner is not free to walk the streets while awaiting
the ruling of the court. I think that is a misperception
that some have. This man or woman is in prison, not sitting in a
country club.
Many of the stories we hear during this debate rely on their
persuasive power on the grief and rage many of us feel after a brutal
murder. But let me speak a word of caution to those who stir those
feelings. Grief and rage are not good foundations for making good
policy, and emotions that strong can lead us to bad decisions and
unintended consequences,
and in this case, to conclude, although it may not be very frequent
and apparently is frequent enough, it literally can lead to the
execution of innocent people.

I urge that the habeas provisions of this bill be removed. I do not
think they are appropriate to this piece of legislation. Certainly, the
bill could go forward without them, and it would be a far better piece
of legislation.
I thank the Chair. I yield the floor.
Mr. WELLSTONE addressed the Chair.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Mr. President, I came in at the very end to hear the
remarks of my colleague from Wisconsin. I would like to thank him for
his eloquence. I am not a lawyer, but I do believe that the Senator
from Wisconsin has made an essential point. I think his point about
habeas is as follows: Actually, regardless of your position about
capital punishment--I think all of us in very good faith can have
profoundly different views on this question--what you certainly do not
want to ever see happen is that someone innocent is executed, and to in
any way, shape, or form move away from the very rights that people have
in the appeal process, which is a frightening possibility. I think the
Senator from Wisconsin has spoken to this in a very eloquent way.
I thank him for his remarks.

Amendment No. 1252 to Amendment No. 1199

Mr. HATCH. Mr. President, I send an amendment to the desk and I ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Utah [Mr. Hatch] proposes an amendment
numbered 1252 to amendment numbered 1199.

Mr. HATCH. 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:

Delete lines 4 through 7 on page 125.
Strike lines 20 through 24 on page 106 and insert the
following:
``(h) Except as provided in title 21, United States Code,
section 848, in all proceedings brought under this section,
and any subsequent proceedings on review, the court may
appoint counsel for an applicant who is or becomes
financially unable to afford counsel, except as
Strike lines 9 through 11 on page 108 and insert the
following:
``Except as provided in title 21, United States Code,
section 848, in all proceedings brought under this section,
and any subsequent proceedings on review, the court may
appoint counsel who is or becomes financially unable

Mr. HATCH. Mr. President, this modification will correct the text. I
want to thank my colleague from Delaware for bringing our attention to
it, as well as my colleague from Pennsylvania, who has worked with us
to try to resolve this. We think we can resolve this matter so that we
can then vote on the Senator's amendment when the time comes.
Mr. BIDEN. I urge adoption of the modification.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 1252) was agreed to.
Mr. BIDEN. Mr. President, I thank my friend from Utah. As usual, he
is always reasonable.
The effect of what the Senator has just done is to modify the
underlying bill that he introduced, the Hatch amendment, the Hatch
bill, the Hatch-Dole bill.
It maintains in capital cases the requirement that counsel be
appointed at trial and in a habeas proceeding, and it makes
discretionary the appointment of counsel at those stages in noncapital
cases.
That leaves one part of my original amendment that still needs to be
resolved. We can speak to it in a very short order.
There was a third section of the existing bill that was attempted to
be amended by my amendment.
I send that modification of my amendment to the desk and ask for its
immediate consideration.
The PRESIDING OFFICER. Is the Senator modifying amendment 1226?
Mr. BIDEN. No, the Senator is modifying, actually, it is a whole new
amendment. I am attempting to modify the underlying bill.
Mr. President, I want to make clear. I may have done something
inadvertently here.
I do not mean to modify, I am sending the amendment to the desk, the
purpose of which is to amend the Hatch amendment. We need a vote on it.
I am not seeking unanimous consent for that.
The PRESIDING OFFICER. If there is no objection, the clerk will
report the new amendment.
Mr. HATCH. Parliamentary inquiry: As I understand it, this is a
substitute that will replace the pending Biden amendment.
Mr. BIDEN. That is correct.
The PRESIDING OFFICER. The Senator can either withdraw the pending
Biden amendment 1226 and send up a new amendment, or he can modify the
Biden amendment No. 1226.
Mr. BIDEN. That is correct.
Mr. President, if there is one thing I have learned after years, it
is that it is very difficult to listen to staff and the Presiding
Officer at the same time. I apologize.
I should have been listening to the Presiding Officer.
Would he mind repeating his question to me?
The PRESIDING OFFICER. The Senator could either modify amendment 1226
or submit a new amendment, either one.
Mr. BIDEN. I am submitting a new amendment.

Amendment No. 1226 withdrawn

Mr. BIDEN. President, I would like to withdraw amendment 1226. I hate
numbers and acronyms. But that is what I wish to withdraw.
I send a new amendment to the desk, the number of which I have not
the slightest idea.
The PRESIDING OFFICER. Amendment 1226 is withdrawn
The amendment (No. 1226) was withdrawn.

Amendment No. 1253 to Amendment No. 1199

(Purpose: To amend the bill with respect to requring counsel for
federal habeas proceedings)

The PRESIDING OFFICER. The clerk will report the new amendment.
The legislative clerk read as follows:

The Senator from Delaware [Mr. Biden] proposes an amendment
numbered 1253 to amendment No. 1199.

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:

Strike lines 10-22 on page 125.

Mr. HATCH. Mr. President, as I understand it, that amendment has been
[[Page S7818]] set over until some time at 1 o'clock, am I correct?
The PRESIDING OFFICER. No agreement has been reached on the
disposition of that amendment.
Mr. HATCH. I move to table the amendment.
Mr. BIDEN. Mr. President, before he does that, I would like to be
able to speak for 5 minutes to my amendment.
Mr. HATCH. I withhold that.
I ask unanimous consent that the vote occur on or in relation to
amendment No. 1226, which is now 1253, at a time to be determined by
the majority leader after consultation with the minority leader, but
not before 1 p.m. today.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. Mr. President, if I can speak very briefly now to my new
amendment, let me make sure that I have it straight for myself, let
alone for all of my colleagues.
My original amendment was designed to do three things, to change
three provisions of the Hatch--I will call it the bill; it is
technically an amendment--the thing we are debating, the
counterterrorism legislation that is before us. In that
counterterrorism legislation, there were a number of provisions, three
of which were as follows: One deleted the existing statutory
requirement that there be counsel appointed for an indigent at a trial.
The second, deleted an existing statutory provision requiring counsel
be appointed at a habeas corpus proceeding for an indigent. And the
third amended existing law that says counsel for an indigent has the
right to go before a Federal judge by himself without the prosecutor
present and make a request to the Federal judge for additional
resources in order to adequately be able to protect his client's
constitutional interests, that is, go in to a Federal judge and say:
Judge, I do not have the money to hire an investigator like the
prosecutor has that I need to go to x town to interview three people.
The way the law exists now, that lawyer for the indigent can do just
what a lawyer for a nonindigent can do and what the prosecutor can do.
He does not have to tip his hand to the prosecutor to say this is what
I am about to do; this is what I am about to investigate; this is what
I want to check out.
It would be a little bit like in that God-awful O.J. Simpson trial in
that if every time the defense hired someone to investigate something,
they first had to go to the prosecutor and say: By the way, I am going
to hire this investigator to go look at the background of one of the
police officers, and I am going to do it on Tuesday, and I am going to
interview the following three people.
No one would expect defense counsel to have to do that with the
prosecution present, would not have to tell the prosecutor that.
Conversely, the prosecutor, when they are in the middle of a trial
and they say: My goodness--or before a trial--we better check out a
lead that we have; we have a lead that on September 12 the defendant
was with Mary Jones in Oshkosh; we are going to send an investigator to
go to see Mary Jones and find out whether that is true--if the
prosecutor had to say: By the way, defense counsel, on October 3 we are
going to send an investigator to meet Mary Jones in Oshkosh, that would
prejudice the State's case because the defendant could pick up the
phone and call Mary Jones and tell Mary Jones to leave town. It is not
reasonable.
What we did in the law not long ago, we said an indigent should have
the same rights. But an indigent does not have any money. The only
reason a poor guy's lawyer, the one that is appointed by the court,
goes to the judge is because he does not have the money. Otherwise, he
would not have to go to the judge. All he would have to do is say: OK,
I am hiring a guy to go check this out. But now he is able to go to the
judge. The reason he goes to the judge is that the judge is the guy who
dispenses the money. The judge is the guy to say: OK, I will give you
the money to hire that guy. You proved to me you need it. I will give
you the money.
Now, what my friends do here--and I understand their motivation; I
think it is pure--is they say, wait a minute now. That is costing
money, and should not the prosecutor, the State, have to be in that
room when the defense attorney is in that room saying: Judge, I have no
money, but I wish to hire an investigator to check this out.
They say that the State prosecutor should be able to be in that room
while that is being done. Well, they would not say that if it were a
civil case. You would not in a civil case say, by the way, you ought to
tell the other side that you are about to hire two people to go
investigate a witness who says they saw your client walking around
perfectly healthy when they claim to have a bad back. They say, well,
you would not have to telegraph that.
Just because somebody is poor, why should they have to give away
their case in front of the prosecutor?
And, by the way, to put it another way, how is the State hurt by
this? The State is not hurt in any way by this. There is a Federal
judge sitting there deciding whether or not there is a legitimate case
made to need this investigator or to need this additional resource.
And so what my amendment does is it strikes another provision in the
underlying counterterrorism bill, the Hatch bill. It strikes the part
that says that before a poor man's appointed counsel can ask a judge a
question, he has to have the prosecutor in the room with him while he
asks.
Now, my good friend from Pennsylvania, who is, along with the
chairman of the Judiciary Committee, one of the best trial lawyers in
this place, and their previous records demonstrate that, says
basically: Joe, do not worry about that because our legislation says--
and I will read it--``No ex parte proceeding, communication or request
may be considered pursuant to this section unless a proper showing is
made concerning the need for confidentiality.''
I understand what they intend by that. What they intend by that is to
solve the problem I have just raised, but under the law the use of the
phrase ``proper showing'' means that in front of the prosecutor you are
going to have to say: This is why I need this money, judge, to hire
this investigator.
The effect of that is in making your proper showing you have to make
it in front of the prosecutor. You have now given away the very thing
you wanted to avoid when you asked for the closed hearing. This closed
meeting with the judge has nothing to do with the facts of the case,
nothing to do with the outcome of the case, nothing to do with the
evidence that can or cannot be submitted in the case, nothing to do
with the substance of the case.
It has to do with the resources made available to a court-appointed
lawyer. He may go in and say: Judge, you have not given me enough money
to be able to send out the following 20 questions to prospective
witnesses. I want that money. Can you give me that money to send out
those letters? Or to provide transportation to get a witness.
Remember Rosa, that woman in the O.J. trial who was going to Mexico?
Well, it may be a situation where he said: Look, I have an indigent
witness who cannot get here. I do not have the money to get him here.
Can you give us the money to get him here? The judge may say: No, I
will not give you the money. I do not think it is essential for your
case. But if the judge thinks it is essential, he can say: OK, you are
authorized to buy a ticket to send that person here.
But what you do not want to do is to necessarily have to tell that to
the prosecution at this point because it may be a witness you turn out
not using.
Anyway, that is the crux of this thing, and although the intention to
correct my concern in the underlying remaining amendment is the law
says that ``upon a proper showing of the need for confidentiality'' you
can have this secret hearing, or this closed hearing, it does not get
it done because ``proper showing,'' we believe, is essentially a term
of art in the law. You have to make your case before the other person.
Now, the last point I will make--and this is, I think, an appropriate
point to make--is that the mere fact they put this in here evidences
the fact they know I am right. The mere fact they acknowledge that
there are circumstances under which confidentiality is appropriate
makes my case.
Think about that now. If they thought everything I am saying here
makes no sense, that it is not a legitimate point to raise, why would
they [[Page S7819]] provide for any circumstance under which there
could be a closed hearing in which only the judge and only the defense
counsel were present? They acknowledge by implication. They try to
correct it by saying ``proper showing.'' I spent, with my staff, 20
minutes trying to come up with some other phrase that would get it
done.
But the truth of the matter is, it is real simple. It is human
nature. If you have the prosecutor and the defense lawyer there and the
judge, where the Presiding Officer is, and I have to make my case to
you because you are not going to automatically grant what I request,
you want to know why I want it. So you have to ask me, ``Joe, why do
you want it?'' And in order for me to convince you to give me the
resources, I have to say to you in front of the other guy, ``Well, I
want it, Judge, because I think this witness is going to show that the
witnesses for the prosecution are lying.'' Bingo, out of the bag.
Now, if I could say to you, ``Judge, I can't say in front of the
prosecutor here. Could you ask the prosecutor to step out of the room
and I will tell you?'' If you could say that, then that will get it
done. I do not mind the prosecutor being in there as long as when it
comes to me to make my case as to why I need the resources that the
prosecutor is not there.
So I toyed with the idea of changing the law to say, ``No ex parte
proceedings, communication, or request may be considered pursuant to
this section unless a request is made concerning the need for
confidentiality.'' A request is made--a request--not a showing, because
when you move from request to showing, you are required to lay your
cards on the table. ``The very cards I have to show you, Your Honor, in
order to get you to allow me the money,'' I have to do it in front of
those folks.
We do not ask that for a defendant who can afford a lawyer. We do not
ask that for a prosecutor. We only ask that for somebody who is poor,
and that is a double standard. That is a double standard. To put it
another way, Mr. President, if we wanted to make it even for everybody,
we should require the privately paid defense lawyer to have to tell the
prosecutor every single investigator he or she hires and why they hired
them, and we should have to tell the prosecutor they have to tell the
defense lawyer every single thing their investigator is doing before
they do it. That would be fair. Now everybody is on the same playing
field. Now poor folks are treated just like wealthy folks. Prosecutors
are treated just like defendants. That would be fair.
But what do we have here? We have a situation where I am poor, he is
wealthy, and she is a prosecutor. She does not have to tell me anything
about what she is investigating as a prosecutor. He does not have to
tell her anything about what he is investigating as a defendant, he can
afford it. But I have to tell everybody. It is not fair; not fair. That
is what I am trying to correct.
The underlying statute is 848. My amendment strikes all of their
reference to that statute. I would be willing to do it by just
substituting the word ``request'' for ``a proper showing'' in their
language, but I do not think they are willing to accept that. So I am
willing, when it is the appropriate time for my colleague to respond,
if he wishes to, or move to table this--the bottom line, Mr. President,
is I just think this is about fairness.
Why should an indigent defendant have to tell the prosecutor all that
he is investigating? You say, ``They don't have to under the law.''
They do practically, Mr. President, because they do not have the
resources to hire these folks to do the investigation. Therefore, they
have to ask for that. In order to get the judge to give them those
resources, they have to tell him why they want those resources;
thereby, the effect is they have to tell them. They should not have to
do that. Wealthy defendants do not have to do it. Prosecutors do not
have to do it. Poor people should not have to do it.
I yield the floor and thank my colleague.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I appreciate what my colleague is saying,
and I know he, with his experience, feels very deeply about it. The
real problem is and the reason we have to oppose this amendment is
because at this point in the proceedings, we have had a trial, three
appeals, we have had other proceedings, but at this point in the
proceedings, to which Senator Biden is referring, all claims should
have been out in the open. At that point, they should be out in the
open. They should not be investigating new claims at this point.
Frankly, ex parte proceedings are simply unnecessary at this point in
the proceedings. This is just simply another way of dragging out the
process and the proceeding, permitting the defense counsel to argue his
case outside the presence of the prosecutor. That is why we have to
oppose this amendment.
I suppose we could argue that we should never finish these
proceedings; that there is no finality; that people who do not like the
death penalty want these things to go on forever hoping that nobody
ever has to live up to the judgment of the court or the jury, but that
is what we are trying to solve here.
The bill before the Senate protects constitutional rights. It
protects civil liberties. We give them every chance under our bill to
be able to pursue their claims. There is no reason why they should be
able to walk into a court room and get an ex parte hearing without
having counsel for the State present and having hired people to
investigate new evidence over the last 6 months and then get a nunc pro
tunc ruling of the court--in other words, that they should pay for
that, the State is going to have to pay for that, from the time they
hired them right up to the present time--in an ex parte proceeding. We
both argued this pretty much to death.
Mr. BIDEN. Mr. President, I would like to make one brief response.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. Mr. President, let me explain why, although it sounds
reasonable what my friend said. We have gone through the factfinding
stage, the trial, this is just on habeas appeals, and why do you want
to dig stuff up?
Many of the habeas appeals are premised on the following proposition:
The defendant says, ``Hey, look, I got convicted, I got convicted
unfairly because there was perjured testimony in my trial,'' like a
couple trials that were mentioned here today, actually happened. I am
not making these up, they happened.
It turns out, for example, the prosecutor had a witness that would
have said, ``I was with Charlie Smith and he couldn't have committed
the crime,'' and the prosecutor never let anybody know that.
Conversely, someone gets on the stand in the trial and lies and it is
later found out that they lied.
The reason why the defense attorney needs to be able to investigate
is to be able to root that out. You have a defendant saying, ``Look, I
am about to be put to death, but I'm telling you, Charlie Smith lied.
If you just go find Harriet Wilson, I found out she knows he lied.''
This is what happened. I am asking my staff to check the Carter case.
I am not sure of the facts in the Carter case. If I am not mistaken,
there was additional evidence found out after the trial--after the
trial. That is why the defendant needs the same tools available to him
or her that a wealthy defendant would need or the prosecutor needs.
That is all I am saying. Do not be misled by the notion that the trial
is over, therefore, there is no other factfinding to go on, you do not
need an investigator.
For example, in the Hurricane Carter case--I wanted to make sure I
was right on my facts here--after the trial was over, Hurricane
Carter's lawyers found out that there was a polygraph test given to one
of the witnesses, and the outcome of that polygraph test sustained
Hurricane Carter's assertion that he was innocent. It was never made
available. They never told anybody such a test was done. Therefore, it
took investigative work after the trial to go back and dig this out.
They dug it out.
Old Hurricane Carter ``ain't'' dead now, and the reason he is not
dead now is because they dug that, among other facts, out. That is the
investigative work we are talking about. Keep in mind now, this does
not in any way extend the number of appeals someone [[Page S7820]] can
make.
This does not in any way extend the time in which appeals have to be
filed. This is just simple fairness. Treat poor people like you treat
wealthy people during and after the trial.

I yield the floor.
Mr. HATCH. One more sentence. This is after direct appeals, after
collateral appeals have been done, after the State has decided the
issue on perjury, or to use his hypothetical, where they would have had
the opportunity. All we ask is that the State not be hammered. We have
had judges that do these things. States have had inordinate expenses,
and there is little or no justification for it.
Mr. President, I move to table the Biden amendment and 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. HATCH. I ask unanimous consent that the vote on the motion to
table the Biden amendment No. 1253 be at a time to be determined by the
majority leader after consultation with the minority leader, but not
before 2 p.m. today.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I ask that the Biden amendment No. 1253 be laid aside and
that the Senator from Michigan be recognized to offer his amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I ask unanimous consent that at the conclusion or yielding
back of time on the Levin amendment it be set aside and the vote occur
on or in relation to the Levin amendment No. 1245 following the vote on
the motion to table the Biden amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. It is my understanding that the distinguished Senator from
Oklahoma has asked for some separate time.
I ask unanimous consent that he be given that opportunity to speak at
this time.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. HATCH. I ask that the time not be charged to Senator Levin or our
side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NICKLES. Mr. President, first, I wish to compliment Senator Hatch
for his leadership on this bill, and I also compliment Senator Dole for
his leadership in bringing this bill to the floor and his willingness
to bring it to the Senate this early.
Mr. HATCH. If the Senator will yield, before the Senator gets into
his remarks, I want to also ask unanimous consent that immediately
following the Senator from Oklahoma the Senator from Michigan be
granted 10 minutes, without having the time count against any
amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. NICKLES. Mr. President, again, I thank my friend and colleague
from Utah for his leadership on this bill and for his willingness to
bring it to the floor so quickly. I also thank Senator Dole, because I
remember after the tragedy of April 19 in my State, talking to Senator
Dole either that day or the next day, he stated to me his willingness
to bring legislation forward to the Senate as quickly as possible. He
has met that obligation. We do not usually move very fast in the
Senate. I appreciate his willingness to schedule this as early as
possible. I also appreciate the fact that finally we are going to bring
this issue to a conclusion.
It was my hope that we were going to finish it last night. I wanted
to be in Oklahoma today because of some base closing hearings both in
Enid and in Oklahoma City, Vance and Tinker Air Force bases. That is
very important. But I feel like this issue is most important for my
State and for many people across our country. It is vitally important
that we enact habeas corpus reform.
On Monday of this week I was honored to meet with about a dozen
Oklahomans who had lost family members in the Oklahoma City bombing.
These brave individuals came to their Nation's Capital to honor their
loved ones by asking the U.S. Senate to do one meaningful thing--enact
tough habeas corpus reform on the antiterrorism bill.
There are several important parts of the bill that is before us, but
the one key element that will help the victims of the Oklahoma City
bomber and other victims of violent crime in habeas corpus reform.
I will read a couple of the comments that some of the victim's
families made:

In Oklahoma City they had a press conference and came to
the State capitol to urge Congress and the President to
implement habeas corpus legislation that would significantly
reduce the appeals process and expedite the imposition of
death sentences. In strained, choked voices, they talked of
the tragedy that tore at the city, leaving shattered families
still only beginning to absorb the depths of their losses.
Connie Williams wore a button with her dead son Scott's
picture, bearing the words ``Beloved Scott, Our Special
Angel.'' His pregnant wife, Nicole, said, ``I do not want his
daughter to be in high school wondering why his killers are
still on death row.''

She is right.
Some of the families came up to our Nation's Capitol on Monday. One
was Diane Leonard. Her statement was, ``Our pain and anger are great.''
Her husband is gone, a Secret Service agent killed in the bombing in
Oklahoma City. I might mention he was an agent of the Secret Service
for 25 years. She added, ``But it would be much, much greater if the
perpetrators of this crime are allowed to sit on death row for many
years.'' She is talking about the pain and anger are great, but it
would be much greater if the perpetrators were allowed to sit on death
row for many years. She is a former Tulsa resident. Diane Leonard, her
voice cracking with emotion, described in graphic detail the injuries
her husband suffered. She urged Senators to have the courage to amend
the law to allow death sentences to be carried out in 2 or 3 years.
I respect the fact that some of our colleagues feel differently on
the death penalty. We have heard some of them speak eloquently today.
They are opposed to habeas corpus reform in large part, in many cases,
because they do not want the death penalty to ever be carried out. I
respect their position, but I do not think they are correct. I think
they are wrong.
Mr. President, I fear that our criminal justice system is in critical
condition. The past couple of years have shown a dip in America's crime
rate, but over the course of years our crime rate has gone up and up
and up.
Today, an American is about 2\1/2\ times more likely to be a victim
of a property crime than he or she was in 1960.
Today, an American is about four times more likely to be a victim of
a violent crime than he or she was in 1960.
And in the face of these sobering numbers and the numbing real-life
stories that appear on our television sets every night, our criminal
justice system appears less and less able to dispense justice.
This bill, if it contains tough, new habeas corpus reforms, can be an
essential step along the path to reform.
No adult in Oklahoma can consider the probable prospects for the
Oklahoma City bomber without reflecting on the man who until a few
weeks ago was Oklahoma's most notorious killer. That man is Roger Dale
Stafford who, in 1978, murdered nine persons in two separate incidents.
Roger Dale Stafford was given nine death sentences for those murders,
but he is living still.
Roger Dale Stafford does have an execution date; it is July 1, 1995.
But Roger Dale Stafford has had execution dates before, and they all
have come and gone. Whether this date will be the last I do not know
for his attorney has announced that he will seek another stay of
execution. Incidentally, this is the same attorney who has been
appointed to represent Timothy James McVeigh, the man being held in
connection with the Oklahoma City bombing.
Roger Dale Stafford's crimes are well known in Oklahoma, but the fact
that they are well known does not reduce their ability to shock and
sadden anyone who hears of his wickedness.
On June 21, 1978, after searching unsuccessfully for a business to
rob, Roger Dale Stafford, his wife, Verna, and his brother, Harold,
decided to stop their car, raise the hood, and feign distress, in hopes
that a wealthy and vulnerable Good Samaritan would come
[[Page S7821]] along. They pulled their car to the side of the road,
and Verna Stafford attempted to flag down passing cars. Roger and
Harold Stafford lay in wait in the darkness.
Eventually, a blue Ford pickup truck with a white camper shell pulled
off the road, and the driver, Air Force Sgt. Melvin Lorenz approached
Verna Stafford with an offer to help. Sergeant Lorenz looked under the
hood of the Stafford automobile and said that he could find nothing
wrong. At that point, the Stafford brothers confronted Sergeant Lorenz
and demanded his wallet. Roger Stafford was armed with a pistol.
Sergeant Lorenz informed the Staffords that he and his family were on
their way to his mother's funeral in North Dakota, and that he could
give the appellant some money, but not all that he had. Roger Dale
Stafford then shot Sergeant Lorenz twice, killing him.
Hearing the shots, Linda Lorenz, Sergeant Lorenz's wife, got out of
the pickup truck and ran toward her husband. Verna Stafford knocked
Mrs. Lorenz to the ground, and Roger Stafford shot her as she fell,
killing her.
The murderers then heard a child calling from the back of the camper.
Roger Stafford approached the camper, cut a hole in the screen, and
fired his pistol into the darkness, forever silencing 11-year-old
Richard Lorenz.
For the Lorenz murders, Roger Dale Stafford was convicted on three
counts of first degree murder and sentenced to death for each murder.
That was first of Roger Dale Stafford's murderous episodes in
Oklahoma. A month later, he struck again:
On July 16, 1978, Roger, Verna, and Harold Stafford robbed the
Sirloin Stockade Restaurant in Oklahoma City. The trio waited in the
restaurant's parking lot until all the customers had left, then knocked
on the side door of the restaurant. When the manager answered, he was
greeted by Roger and Harold Stafford pointing guns at him. They forced
him to take them to the cash register and the office safe.
Harold and Verna Stafford held five employees at gun-point while
Roger Stafford had the manager empty the office safe which contained
almost $1300. All six employees were then ordered inside the
restaurant's walk-in freezer. Once inside, Roger Stafford shot one of
the hostages, then both men opened fire on the remaining employees.
Roger Stafford told Verna that it was time for her to take part. He
placed his gun in her hand and helped her pull the trigger.
All six Sirloin Stockade employees died as a result of the shootings.
They were: Terri Michelle Horst, age 15; David Gregory Salsman, age 15;
David Lindsay, age 17; Anthony Tew, age 17; Louis Zacarias, age 46; and
Isaac Freeman, age 56.
For the Sirloin Stockade murders, Roger Dale Stafford was convicted
on six counts of first degree murder and sentenced to death for each
murder.
As I said, Mr. President, Roger Dale Stafford lives still, and each
day his penalty becomes farther and farther removed from the crimes for
which it is so eminently justified. Justice still waits for Roger Dale
Stafford.
And, why the delay? Because since his convictions, Roger Dale
Stafford has made at least 18 reported appearances in Federal and State
courts. He has been before the U.S. Supreme Court six times--1985,
1985, 1985, 1984, 1984, 1984--before the U.S. Court of Appeals for the
10th Circuit once, 1994, before the Oklahoma Supreme Court once, 1986,
and before the Oklahoma Court of Criminal Appeals nine times, 1993,
1992, 1991, 1990, 1987, 1985, 1985, 1983, 1983. This list does not
include appearances which were not officially reported. It omits one
pretrial appearance at an appellate court, 1979. And, it omits all
activity at the trial courts.
Mr. President, 17 years ago he murders teenagers, he murders an
innocent family that is trying to help him out, and he is still on
death row. That is not justice delayed, that is justice denied.
What about the families that lost teenagers in that incident? What
about the families that lost loved ones--178--in the Oklahoma City
bombing incident; 178, with over 400 injured? Are we going to be
telling them 15, 17, 20 years from now, ``Well, the appeals process is
just very cumbersome,'' and have taxpayers paying not only the expense
for taking care of the perpetrators of the crime, should they be
convicted and receive the death sentences, as they surely should and
hopefully will. What are we going to tell those families?
I met with some of the victims that lost two children. I met with
them Friday. A young lady in her early twenties lost both her kids. I
met with a daughter that lost her father just last Monday. I met with
three spouses that lost their spouse. One of the individuals that was
here was an uncle who lost his nephew, whose wife is expecting. What
about that child who will never see her father alive? Are we going to
tell that child, ``Well, we are sorry, but the person that was
responsible for murdering your dad is still in Federal court, he is
still in prison living pretty well, watching TV; Uncle Sam, or the
Government, is taking care of him, giving him three meals, making sure
all his rights are protected,'' and allow him to abuse the process for
15 years or so? I do not think so. That is not justice to the families.
That is not justice, period.
So we need habeas corpus reform. We have needed it for a long time. I
am glad the President has reversed himself and now agreed that we need
this on this bill. This will allow the families to at least have some
knowledge that there will be justice, and hopefully we will move very
quickly.
Mr. President, I want to make some general comments on habeas corpus
reform because we have needed this for a long time. First, our habeas
system does not promote justice. The availability of habeas corpus to
State prisoners, beyond the various remedies and layers of review
available in State courts, has little or no value in avoiding
injustices or ensuring that the Federal rights of criminal defendants
are respected. The typical applicant has already secured extensive
review of his case in State courts, having pursued a State appeal and
often having initiated collateral attacks in State courts. The claims
raised by such defendants are normally without substance and are likely
to be technical, that is, to allege procedural irregularities which
cast no real doubt on the defendant's guilt.
Let me just mention the cases in Oklahoma City. I talked to a Federal
judge, the first judge I was responsible for getting appointed in
Oklahoma. 1982 was his first year on the court. They had 193 prisoner
appeals made to the Federal courts--193. That happened to be about 10
percent of their caseload. In 1992, 10 years later, they had 630. The
number more than tripled, an increase to 25 percent of their caseload.
Prisoners are finding it pretty easy to make appeals, and they are
appealing to the Federal system. There is no limit to the number of
appeals. They can appeal for anything. They can appeal on habeas that
they were incorrectly convicted, or they can appeal and say that
somebody next door is smoking or somebody next door has a radio too
loud. And they take it all the way to the Federal court. That is
happening hundreds of times.
In Oklahoma City and the western district in 1992, there were 630
prisoner petitions. Some of the prisoners are specializing in this.
There is nothing else to do. So they have legal access, they have
access to the library, and they can abuse this process for all it is
worth. And so what if it ties up the court? So what if it keeps them
kind of busy? So what if they are as guilty as they possibly can be? So
what if they have been convicted and gone through every appeal in the
process and been to the Supreme Court?
Roger Dale Stafford has had his case to the Supreme Court six times,
and every time the Supreme Court said, ``Guilty.'' Yet he files another
petition. I expect he has another one in the typewriter right now. It
just so happens his attorney is a very competent, very professional,
very good attorney, Steven Jones. He also happens to be the same
attorney that will be defending Mr. McVeigh. I do not want the victims
of the Oklahoma City bombing to have to wait 17 or 20 years for
justice. That is why we need habeas corpus reform.
Second, the habeas system demeans federalism. The present system of
review is demeaning to the State courts and pointlessly disparaging to
the efforts to comply with Federal law in criminal proceedings. A
single Federal judge is frequently placed in the position of reviewing
a judgment of conviction that was entered by a State trial
[[Page S7822]] judge, reviewed and found objectionable by a State
appellate court, and upheld by a State supreme court. An independent
determination of the contentions raised by the applicant is required of
the Federal judge although he may have no doubt that the State courts
were conscientious and fair. State judiciaries are presumed to be
incapable of applying Federal law, or unwilling to do so.
I know Senator Kyl will have an amendment later that would address
that, and I compliment him for his amendment and plan to support him in
his efforts.
Third, habeas corpus defeats the demand for finality. The current
system of Federal habeas corpus defeats the important objective of
having an end to litigation. The costs of such a system were eloquently
described by the late Justice John Harlan in Mackey v. United States,
401 U.S. 667, 690-91 (1971):

Both the individual criminal defendant and society have an
interest in insuring that there will at some point be the
certainty that comes with an end to litigation, and that
attention will ultimately be focused not on whether a
conviction was free from error but rather on whether the
prisoner can be restored to a useful place in the community.
* * * If law, criminal or otherwise, is worth having and
enforcing, it must at some time provide a definitive answer
to the questions litigants present or else it never provides
an answer at all. * * * No one, not criminal defendants, not
the judicial system, not society as a whole is benefitted by
a judgment providing a man shall tentatively go to jail
today, but tomorrow and every day thereafter his continued
incarceration shall be subject to fresh litigation on issues
already resolved.

Fourth, habeas procedures are wasteful. The current system is
wasteful of limited resources. At a time when both State and Federal
courts face staggering criminal caseloads, we can ill afford to make
large commitments of judicial and prosecutorial resources to procedures
of dubious value in furthering the ends of justice. Such commitments
come at the expense of the time available for the stages of the
criminal process at which the questions of guilt and innocence and
basic fairness are most directly addressed. Former Chief Justice Warren
Burger made the following points:

I know of no society or system of justice that takes such
scrupulous care as we do to give every accused person the
combination of procedural safeguards, free legal counsel,
free appeals, free records, new trials and post conviction
reviews of his case. I have seen cases--and this occurs in
many courts today--where three, four, and five trials are
accorded to the accused with an appeal following each trial
and reversal of the conviction on purely procedural grounds.
* * * In some of these multiple trial and appeal cases the
accused continued his warfare with society for eight, nine,
ten years and more. In one case more than 60 jurors and
alternates were involved in five trials, a dozen trial judges
heard an array of motions and presided over these trials;
more than 30 different lawyers participated either as court-
appointed counsel or prosecutors and in all more than 50
appellate judges reviewed the case on appeals. I tried to
calculate the costs of all this for that one criminal act and
the ultimate conviction. The best estimates could not be very
accurate, but they added to a quarter of a million dollars.
The tragic aspect was the waste and futility since every
lawyer, every judge and every juror was fully convinced of
the defendant's guilt from the beginning to the end.'' 25
Record of the N.Y.C. Bar Assoc. 14, 15-16 (Supp. 1970).

Fifth, the way our habeas system is used nullifies capital sentences.
The constitutionality of the death penalty has been settled since 1976.
Thirty-eight States now authorize capital punishment, but the
inefficiency of current court procedures has resulted in a de facto
nullification of capital punishment laws. The public interest
organizations that routinely involve themselves in capital cases have
fully exploited the system's potential for obstruction. Delay is
maximized by deferring collateral attack until the eve of execution.
Once a stay of execution has been obtained, the possibility of carrying
out the sentence is foreclosed for additional years as the case works
its way through the multiple layers of State and Federal courts.
Mr. President, this country desperately needs reform in its criminal
justice system. Habeas corpus reform is an important part of that
necessary reform, and this bill is an excellent place to start
reforming habeas corpus.
I agree with the families of the Oklahoma City dead: Habeas corpus
reform is an inadequate, but necessary, memorial to the memories of
those who died in that dreadful, murderous blast.
Again, I compliment Senator Hatch for his leadership, and Senator
Dole for bringing this to the floor of the Senate and Senator Dole for
pushing the Senate for the last several days, including last night.
I am glad that finally we are going to have this bill come to a
conclusion and have cloture, and allow us to have habeas corpus reform
which, again, in my opinion, is the most significant element of true
crime control that we can enact.
I am hopeful we can send a positive signal to the families of the
victims in the Oklahoma City bombing and tell them that, yes, we are
going to have an end to these endless appeals, and that justice will be
done and it will be done, as President Clinton said, in a timely manner
as well.
The PRESIDING OFFICER (Mr. Faircloth). The Chair recognizes the
Senator from Michigan.
Mr. ABRAHAM. Mr. President, I rise today in support of this
legislation as well. I also pay tribute to my colleague from Oklahoma,
whom I think today presented an extraordinarily strong and compelling
argument in favor of the reforms of habeas corpus that we are looking
at today, and against a series of amendments.
Later in my remarks I will address some of those reforms and that
issue, although I am unable to think of how I can address them more
vividly and effectively than the Senator from Oklahoma has already
done.
Today I rise to also just indicate my overall support for this
legislation. Clearly, the people in our country and in our State of
Michigan in particular stand back and look at the events which took
place in Oklahoma City with great concern. They have asked us to act. I
believe this bill properly incorporates the best ideas as to the sorts
of actions we should be taking at this time to address the problem of
terrorism, wherever it may originate.
At this point I would like, in my remarks, to highlight a series of
provisions in the bill I have worked on with our outstanding floor
leader and my good friend, the Senator from Utah, with the majority
leader, and others. These provisions would facilitate the deportation
of aliens who have committed serious crimes while in the United States.
The provisions at issue, contained in title III, section 303(e) of
the bill, require that aliens who are convicted of serious crimes in
courts of law in this country be deported upon completion of their
sentences without any further judicial review of the order of
deportation. These expedited deportation procedures will apply to the
almost half a million aliens currently residing in this country who are
deportable because they have been convicted of committing serious
felonies.
Under the Immigration and Nationality Act, aliens who are convicted
of felonies after entry are already deportable. They are rarely
actually deported, however, because criminal aliens are able to request
equitable waivers from the courts and other types of judicial review
that were never meant to apply to convicted felons. Such abuse of
process operates to prevent the order of deportation from becoming
final.
Notably, both the administration's antiterrorism bill and S. 735
contain expedited deportation procedures for a small class of aliens
reasonably suspected of planning future terrorist activity. The
administration's bill, however, makes no provision for rapid
deportation of aliens who have actually committed crimes. This, despite
the fact that the Attorney General has said that the removal of
criminal aliens from the United States is one of the administration's
highest priorities and that our prisons and jails are crowded with
criminal aliens. The substitute to S. 735 remedies that omission.
According to the FBI, foreign terrorists have been responsible for
exactly two terrorist incidents in the United States in the last 11
years: the World Trade Center bombing and a trespassing incident at the
Iranian mission to the United Nations. While the World Trade Center
bombing was obviously a very serious matter, it should not be the
exclusive focus of our efforts to take strong action to protect
American citizens from criminal conduct by non-citizens.

[[Page S7823]]

More than 53,000 crimes have been committed by aliens in this country
recently enough to put the perpetrators in our State and Federal
prisons right now. An estimated 20 to 25 percent of all Federal prison
inmates are noncitizens; in California, almost one-half of the prison
populations are noncitizens. According to a 1995 Senate Report on
Criminal Aliens in the United States, a conservative estimate of the
total number of deportable criminal aliens presently residing in the
county is 450,000. All of these aliens have committed at least one
serious crime in this country. For that reason all are deportable under
the law. They have not been deported because they have been able to
prevent the order of deportation from ever becoming final by seeking
repeated judicial review.
The grounds on which criminal aliens are legitimately entitled to
waivers of deportation are extremely narrow. To avoid deportation,
criminal aliens essentially must prove a case of mistaken identity--
that the alien is not who the Government thinks he is; that he is not
an alien, at all; or that he has been pardoned or had his conviction
overturned. Mistakes of this order do not happen often. Mistakes of
this order certainly have not happened 450,000 times--for each of the
deportable criminal aliens currently in the country. Rather, the
alien's capacity to demand successive judicial review, even wholly
merit less judicial review, grinds the deportation process to a halt.
Meanwhile, the Immigration and Naturalization Service does not have
adequate facilities to house this many criminal aliens. As a result,
the great majority of these convicted felons are released back to our
streets after serving their sentences, with instructions to report
several months later for a hearing before the INS.
Needless to say, the majority of criminal aliens released from
custody do not return for their hearings. Having been returned to the
streets to continue their criminal predation on the American citizenry,
many are rearrested soon after their release. Thus, for example, a
recent study by the GAO found that 77 percent of noncitizens convicted
of felonies are rearrested at least one more time. In Los Angeles
County alone, more than half of incarcerated illegal aliens are
rearrested within 1 year of their release.
The provisions at issue will put an end to this abuse of process by
doing the following:
First, they will prohibit the Attorney General from releasing
criminal aliens from custody prior to deportation.
They will also eliminate judicial review for orders of deportation
entered against criminal aliens--although criminal aliens will still be
entitled to challenge their orders of deportation before the Board of
Immigration Appeals.
In addition, these provisions will require deportation of criminal
aliens within 30 days of the conclusion of the alien's prison sentence
in most circumstances.
Finally, they will apply these expedited deportation to aliens who
have committed the ``General Crimes'' listed in section 1251 of title 8
of the United States Code. These include crimes such as murder, rape,
drug trafficking, espionage, sabotage, and treason.
These reforms are extremely reasonable. Aliens in this country who
commit these crimes will still be afforded all the due process
protections and lengthy appellate and habeas corpus review afforded
U.S. citizens on the underlying offense. Moreover, once those appeals
have run and the conviction has been upheld, the alien will continue to
be entitled to a hearing before an immigration judge to determine
whether an order of deporatation should be entered. And if an order of
deportation is entered, the alien will still retain the right to appeal
the order to the Board of Immigration Appeals. The substitute to S. 735
only eliminates additional judicial review for criminal aliens beyond
this point.
Without the rapid deportation provisions for criminal aliens in this
legislation, aliens who are convicted felons will continue to be
deported at the current pace, that is about 4 percent a year. At this
rate--assuming no alien is ever convicted of another felony--it would
take 23 years to deport all the aliens presently residing in the
country who are under felony convictions. Meanwhile, many will be
released back into society to prey on more American citizens. No
country, no matter how civilized, should continue to tolerate this
abuse.
For that reason, as well as the many others that have been advanced
over the past few days, we should enact this legislation, and quickly
too. I urge the Senate to do just that.
Finally, Mr. President, I would like to say a few words about another
very important set of provisions in this bill: the sections that would
reform habeas corpus.
Like the provisions concerning deportation of criminal aliens, the
habeas corpus reforms in the bill correct a common abuse of judicial
process in our criminal justice system. In this case they correct the
obstructive and abusive manipulation of the writ of habeas corpus by
criminals who have been convicted of serious violent crimes.
Right now, the delay made possible by abuse of this writ allows
convicted criminals to essentially overrule a State's entire criminal
justice system. By filing repetitive or frivolous habeas corpus
petitions, criminals are able to delay the imposition of capital
sentences indefinitely. This delay in turn seriously undercuts the
moral authority of the people, through their elected representatives,
to impose this punishment on people who have committed extremely
heinous crimes.
This is not fair to the people, who are entitled to determine the
punishments to be accorded crimes committed in their States. Nor is it
fair or even humane to the families of the victims of crime.
The habeas reforms in the antiterrorism bill impose reasonable limits
on the use of the writ--reforms that are long overdue. I support these
reforms and I urge the Senate to enact the antiterrorism bill.
Mr. President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LEVIN. 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. 1245 to Amendment No. 1199

(Purpose: To retain an avenue for appeal in the case of prisoners who
can demonstrate actual innocence)

Mr. LEVIN. Mr. President, I call up an amendment at the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:

The Senator from Michigan [Mr. Levin] proposes an amendment
numbered 1245 to amendment No. 1199.

Mr. LEVIN. 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 106, line 12, strike ``and'' and all that follows
through the end of line 17 and substitute the following:
``or
``(B) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish that constitutional error has occurred and that
more likely than not, but for that constitutional effort, no
reasonable factfinder would have found the applicant guilty
of the underlying offense.''
On page 110, line 3, strike ``and'' and all that follows
through the end of line 9 and substitute the following:
``or
``(ii) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish that constitutional error has occurred and that
more likely than not, but for that constitutional error no
reasonable factfinder would have found the applicant guilty
of the underlying offense.''

Mr. LEVIN. Mr. President, it is my intention to offer and modify this
amendment. I will do that in a moment so that the amendment clarifies
language that more precisely tracks the Supreme Court language which is
the subject of the amendment.
I ask unanimous consent that the modification be in order.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S7824]]

Amendment No. 1245, as Modified, to Amendment No. 1199

Mr. LEVIN. Mr. President, I send a modification to the desk.
The PRESIDING OFFICER. The amendment is so modified.
The amendment (No. 1245), as modified, is as follows:

On page 106, line 13, strike clause (B) and substitute the
following:
``(B) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish that a constitutional violation has probably
resulted in the conviction of a person who is actually
innocent of the underlying offense.''
On page 110, line 4, strike clause (ii) and substitute the
following:
``(ii) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish that a constitutional violation has probably
resulted in the conviction of a person who is actually
innocent of the underlying offense.''

Mr. LEVIN. Mr. President, Justice Clark, discussing the Magna Carta,
said the following:

Ever since the Magna Carta, the greatest right of personal
liberty has been guaranteed, and the procedures of the Habeas
Corpus Act of 1679 gave to every Englishman a prompt and
effective remedy for testing the legality of his
imprisonment. Considered by the founders as the highest
safeguard of liberty, it was written into the Constitution of
the United States that its privilege shall not be suspended
unless, when in cases of rebellion or invasion, the public
safety may require it. Its principle is embedded in the
fundamental law of 47 of our States.

Justice Clark went on to say:

It has long been available in the Federal courts to
indigent prisoners . . . both the State and Federal
Government to test the validity of their detention. Over the
centuries, it has been the common law world's freedom writ.
We repeat what has been so truly said of the Federal writ.
There is no higher duty than to maintain it unimpaired and
unsuspended, save only the cases specified in our
Constitution.

Mr. President, the right of habeas corpus over the years has been
abused. It has been overused and excessively attempted to be utilized
in many cases. Over the years, the Congress and the courts have
attempted to rein in some of those excesses, and have done so. Both the
Supreme Court and the Congress have in a number of ways attempted to
restrict the utilization of the right of habeas corpus so that it would
not be abused. The bill before us, in many respects, however, has
reduced the utilization of the right of habeas corpus excessively. One
particular that I want to address in the next few minutes would deny
access to the writ on the part of somebody who a court believes is
actually innocent.
I want to repeat that because this is a very narrow group of cases
that we are talking about. The case which this amendment addresses is
the case where a court determines that the prisoner filing the writ is
probably actually innocent.
I hope that sounds startling because this is a startling subject. The
subject is whether or not we are going to execute somebody where a
court finds that the person is probably--that is the key word--actually
innocent of the underlying offense. I want to go back into history in
order to give the background of this issue.
As I have said, the court as well as the Congress has found that the
writs of habeas corpus have been used excessively--the petition, more
accurately, seeking a writ, has been used excessively. This has been
happening for many, many years.
The court in the Schlup case, which is the case I want to discuss at
some length, a 1995 case, went through the history of writs of habeas
corpus, and they found that the writ had been excessively sought, that
there had been repetitious petitions, there had been successive writs
sought, and that the burden on the courts became too great.
So in the Schlup case, the majority said the following about the
history of the applications for writs of habeas corpus.

To alleviate the increasing burdens on the Federal courts
and to contain the threat to finality and comity, Congress
attempted to fashion rules disfavoring claims raised in
second and subsequent petitions.

And they then went through congressional enactments starting in 1966.
They also then talked about what the Court has done to restrict the
applicability and the availability of petitions for writs of habeas
corpus, and said the following in the Schlup case.

These same concerns--

And that is the overutilization--

resulted in a number of recent decisions from this Court that
delineate the circumstances under which a district court may
consider claims raised in a second or subsequent habeas
petition. In these decisions, the Court held that a habeas
court may not ordinarily reach the merits of successive
claims absent a showing of cause and prejudice.

The Court then quotes an opinion written by Justice O'Connor in the
Carrier case. And they said in Schlup that Justice O'Connor has noted
the following:

In appropriate cases the principles of comity and finality
that inform the concepts of cause and prejudice must yield to
the imperative of correcting a fundamentally unjust
incarceration.

So there is an exception if the Court finds a fundamental miscarriage
of justice. That is what courts are for. Courts can be abused but
ultimately what they must seek to do is avoid a fundamentally unjust
incarceration and a fundamental miscarriage of justice. And this is
what the Schlup court wrote.

To ensure that the fundamental miscarriage of justice
exception would remain ``rare'' and would only be applied in
the ``extraordinary case,'' while at the same time ensuring
that the exception would extend relief to those who are truly
deserving, this court explicitly tied the miscarriage of
justice exception to the petitioner's innocence.

That is what we now must address this afternoon. It is what do we do,
what standard do we adopt when, on a second application for a petition
of habeas corpus raising a constitutional defect, a petitioner
persuades a court that he or she is probably innocent of the underlying
crime? Will we permit a second petition to be granted so that there can
be a hearing? We are not talking about now release from prison. We are
just talking about whether a hearing will be available to somebody who
persuades a court that he or she is probably innocent and is awaiting
execution.
Now, Justice O'Connor in the previous Carrier case, which is relied
on heavily in Schlup, said the following:

In an extraordinary case, where a constitutional violation
has probably resulted in the conviction of one who is
actually innocent, a Federal habeas court may grant the writ
even in the absence of a showing of cause for the procedural
default.

And the Court went on to say:

Explicitly tying the miscarriage of justice exception to
innocence

And I want to repeat that word because that is the heart of this
amendment. We are only talking about people who are probably innocent
as found by a court and as to whether or not they should be denied a
hearing on the ground that their application is a second application
for the writ and not the first application but where a court now for
the first time, faced with new evidence, is satisfied that that
applicant is probably innocent.
And here is what the Court said:

Explicitly tying the miscarriage of justice exception to
innocence thus accommodates both the systemic interest in
finality, comity, and conservation of judicial resources, and
the overriding individual interest in doing justice in the
``extraordinary case.''

The Court went on to say the following:

Experience has taught us that a substantial claim that
constitutional error has caused the conviction of an innocent
person is extremely rare. To be credible, such a claim
requires petitioner to support his allegations of
constitutional error with new reliable evidence--whether it
be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence--that was not
presented at trial. Because such evidence is obviously
unavailable in the vast majority of cases, claims of actual
innocence are rarely successful.

And the Court said that:

A petitioner does not meet the threshold requirement unless
he persuades the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt.

Now, that is a pretty strong test for being eligible for a hearing on
a second writ, that a court must find an applicant is probably
innocent, meaning that no reasonable juror--no reasonable juror--would
find that person guilty beyond a reasonable doubt. And the issue
becomes whether or not we want to require that person to be executed.
Is that person going to be executed? Are we going to deny, as this bill
does, a Federal court the right to grant a hearing on a second writ of
habeas corpus when a petitioner introducing new evidence convinces a
court [[Page S7825]] that he or she is probably innocent? Will we deny
that court that opportunity?
Now, what the bill does is adopts the dissent in Schlup, which has a
higher standard--not the standard of probability but the standard of
clear and convincing. And that is the issue on this amendment, whether
or not we, in the Senate, are going to overturn the Supreme Court
decision in Schlup, which said that if a court is convinced that a
person is probably innocent, that is enough for that court to grant a
hearing on a second or subsequent application for writ of habeas
corpus, or will we adopt the dissent in Schlup, which says, no,
probability of innocence is not enough. Even if somebody is probably
innocent of the underlying offense, we are going to execute that person
unless there is clear and convincing evidence, evidence above and
beyond probability.
The case itself in Schlup was a case where this man was already a
prisoner and was convicted of first-degree murder, a murder that
occurred in prison, and was sentenced to death. In the habeas corpus
proceedings, he produced a videotape showing him in a cafeteria lunch
line at the time the killing occurred in a different place, sworn
testimony from a prison guard stating that Schlup could not have
committed the murder, and sworn testimony of five eyewitnesses that
Schlup was not present and did not participate in any way in the
murder.
The Federal court of appeals judge found--this is the court of
appeals now, before the Supreme Court--the court of appeals judge found
``truly persuasive evidence that Mr. Schlup is actually innocent.''
Despite that, the majority of the court of appeals upheld the death
sentence and refused to grant a hearing on the new evidence. The court
held that under the clear and convincing test, the test that they
thought they should follow, they would not grant a hearing in his
application.
Earlier this year, the Supreme Court overruled that court of appeals
saying that the clear and convincing test, which is the test in the
bill before us, failed to provide a meaningful avenue by which to avoid
a manifest injustice in cases of actual innocence.
The Court ruled that the fair test for the relief sought is whether
``a constitutional violation has probably resulted in the conviction of
one who is actually innocent.'' I am going to repeat it because that is
the issue in this amendment. The issue is whether we ought to adopt the
majority in Schlup or whether we ought to reverse it. The bill reverses
it and goes with the dissent. The amendment would allow the majority of
the Supreme Court in Schlup to utilize that test in habeas corpus
proceedings, the test being that whether a constitutional violation has
probably resulted in the conviction of one who is actually innocent.
I think most of us feel that habeas corpus has been abused, that
technicalities have been raised by people who are guilty. This
amendment raises the opposite issue. This amendment raises the question
of whether or not we are going to use a technicality to deny a hearing
to someone who is probably actually innocent.
``Probably actually innocent,'' is that enough for a hearing when
someone is on death row or not? Or will the procedural technicality be
used to deny that person--a rare case--a hearing because there had been
a previous petition filed? And to meet the test of the Supreme Court,
the lower court must find that it is more likely than not that no
reasonable juror would have convicted him in light of the new evidence.
Mr. President, we are having to face up to the narrowest group of
cases, the case where there is a claim that a court finds probably
correct that an applicant for the great writ is probably innocent of
the underlying crime. We cannot avoid this by talking about
technicalities. We are the ones who will determine whether a procedural
technicality will stand in the way of a hearing for that small group of
prisoners who persuade a court that they are probably innocent of the
underlying crime.
This may be and probably is only a very few percent of persons who
are in prison on death row, but we know that these cases exist. There
were two of them in 1995. In addition to the Schlup case, we had the
case of Curtis Kyles. In that case, the Supreme Court found that the
prosecution had improperly suppressed evidence of Mr. Kyles' innocence
and that this evidence would have made a different result reasonably
probable--reasonably probable. The Court agreed with Judge King of the
fifth circuit, who expressed ``serious reservations about whether the
State has sentenced to death the right man.''
Mr. President, how much time do I have left?
The PRESIDING OFFICER. The Senator has 4 minutes 7 seconds.
Mr. LEVIN. I thank the Chair and reserve the remainder of my time.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah has 25 minutes.
Mr. HATCH. Mr. President, again, what we are trying to do here is put
some finality into the habeas corpus procedures. The Senator's
amendment just allows another loophole that is unjustified and allows
further appeals. Because liberal judges who are opposed to the death
penalty do not want the death penalty imposed, there will be an
incentive for them to find that there is probable innocence under this
amendment and the whole process will have to start over again,
regardless of whether the petitioner is truly innocent of the crime.
The Hatch substitute, our bill, the Specter-Hatch bill, permits
successive habeas corpus petitions in death penalty cases where the
petitioner may be innocent. If the petitioner is innocent, he or she
can have successive habeas corpus petitions and our bill contains a
safety valve which permits Federal courts to hear legitimate claims.
The Levin amendment, however, weakens the standard of review for
determining whether someone is innocent from a ``clear and convincing''
standard, which is what we have in our bill, to a subjective
``probably'' innocent standard.
In addition, the amendment guts the bill's prohibition against
subsequent provisions by allowing successive habeas corpus petitions
where the death row inmate does not dispute his having committed the
homicide in question but claims the death penalty should not be
imposed.
The amendment offered by Senator Levin, while it seems reasonable, is
problematic. When the Court rules on these issues, it does not write on
a clean slate--and I am talking about the Supreme Court. The Supreme
Court has repeatedly held, for example, that Federal courts are not the
forums in which to relitigate criminal cases. At the initial trial,
society's resources have been concentrated in order to decide the
question of guilt or innocence. Therefore, a petitioner making a claim
of actual innocence falls well short of satisfying his burden if the
reviewing court determines that any juror reasonably could have found
the petitioner guilty of the crime.
The proposed amendment attempts to follow the Supreme Court's recent
decision in Schlup versus Delo in which the Court exacerbates the
confusion in the lower courts, undermines the finality of lawful
convictions and creates a greater uncertainty as to the standard under
which a court must hold an evidentiary subsequent hearing.
I know that I have said this many times before, but we are dealing
with postconviction collateral proceedings, not a trial. This is
posttrial. Habeas corpus review is a postconviction remedy. This is
postjury verdict. This is postsentence by the court. What it means is
the jury has already convicted the individual and his conviction and
sentence have been upheld on appeal. The individual had at least two
State appellate reviews which are subject to Supreme Court review. The
individual has gone to the intermediate appellate court and has gone to
the supreme court of the State.
I might add, the appellate courts have upheld the conviction and the
State habeas petitions have thus been exhausted. In other words, there
has been the trial, there has been a review by the intermediate court,
there has been a review by the supreme court of the State. The State
procedures have been exhausted.
It also means that petitions to the Supreme Court have been filed. In
other words there have been two rounds of State review both of which
were the subject of a petition for certiorari to the Supreme Court of
the United States of America, and that both of those Supreme Court
petitions [[Page S7826]] have been denied; and at least in collateral
cases, as a general rule, the Governor also has ruled on the case
because there has been a petition for clemency; and the Government has
also reviewed the claim in a clemency petition and has denied it, too.
At this point, the prisoner's conviction has been proved beyond a
reasonable doubt. It has been upheld on direct and State collateral
review. The conviction has also been upheld on the death row inmate's
Federal habeas petition. It is at this point in the process--after all
of these reviews--where my colleague from Michigan wants to give
individual Federal judges broad, subjective authority to determine
whether someone is innocent of the crime he or she was convicted of. We
allow such a determination by a Federal court but we propose a more
certain standard rather than the subjective standard employed in my
colleague's amendment.

The proposed amendment would require the district court to hold an
evidentiary hearing or grant a second successive petition if it could
be shown that a constitutional violation probably resulted in an
erroneous conviction.
First, what does probably mean in the law? Who knows? This standard
will gut our habeas corpus proposal here today. Would it be a 50-
percent chance of innocence? Is that what it means? If that is so, then
I think if the prisoner were probably innocent, his conviction would
have been overturned long ago in all of these proceedings up through
the State courts to the Supreme Court, to the Governor, for clemency.
Second, the proposed amendment would let a court decide independently
that a defendant might be innocent. We go through that every day in the
current system. Judges who do not want the death penalty to be imposed,
who are violently opposed to it, for any reason, decide there is
another reason to let this be prolonged again, all at a tremendous cost
to the States and the victims of these crimes.
So what we are saying is, the proposed amendment would let a court
decide independently that a defendant might be innocent, that there was
constitutional error, and that he should not have been convicted. This
is a wholly appropriate standard that we have in the bill.
The Levin amendment will simply serve to permit these prisoners who
have been duly convicted, their convictions upheld, all of their
constitutional rights protected, their civil liberties protected to
continue to raise new claims. It allows judges who does not like the
death penalty to make subjective determinations, many years after the
conviction, to proclaim the probable innocence of a long-convicted
murderer. It simply serves to permit a prisoner to drag out his
proceedings and further delay justice.
Delayed justice is justice denied. We are frustrated by that all the
time. We have a man in California sitting on death row almost for 50
years--successive habeas corpus petitions all the time, on and on. In
Utah, we had the Andrews case. It lasted 18 years. He filed over 30
different habeas corpus petitions--30 different habeas corpus
proceedings--over that 18 years before the death penalty was finally
carried out.
All this does is continue the old system, the old business as usual.
Frankly, because we all know the distinguished Senator from Michigan is
one of the most eloquent advocates against the death penalty in this
body--and I have respect for him; I believe he is very sincere on this
issue--I think it is fair for him to argue against the death penalty
straight up. But to just provide a mechanism whereby there can be
another appeal because some liberal judge decides there ought to be an
appeal and will delay a sentence that the law allows, I think is wrong.
I know of no case--not one--that has been cited to the Judiciary
Committee, in its years of study on this issue, in which Federal habeas
corpus review has been successfully employed to release an innocent
individual from an erroneous State court conviction. It is a myth.
This amendment is just another method to try to get another appeal
and delay the ultimate imposition of the sentence.
Where is the case of an innocent person needing Federal habeas corpus
review in order to prove his or her innocence? Take Randall Dale Adams,
the Texas death row inmate who was the subject of the documentary ``The
Thin Blue Line.'' How did he establish his innocence after he was
convicted? Not through Federal habeas corpus, but through the Texas
State court proceedings--procedures similar to those available in
virtually every State in the Union today.
Take the case of Walter McMillan, who was wrongfully convicted and
sentenced to die for the brutal robbery-murder of an Alabama
convenience store clerk. Was it habeas corpus that saved his life? No,
it was the State of Alabama. Despite being granted relief through the
States, both of these men were called before the Senate Judiciary
Committee by a colleague of ours, who opposes the death penalty, to
demonstrate why our Nation needs more Federal habeas corpus review
rather than less. Federal habeas corpus review had nothing to do with
it.
The State procedures were adequate and did the job in protecting
their innocence and finding their innocence. Yet, they brought them up
here to try and show that Federal habeas corpus review is important.
I do not know of one case where Federal habeas corpus review has
saved the defendant. But the State procedures have. In the Federal
courts, the Federal direct appeal procedures have. That sort of logic,
as in the present amendment, cannot even be called reform even when it
expands the rights of convicted murderers.
I mention these cases--Randall Dale Adams and Walter McMillan--not
because I advocate abolition of Federal habeas corpus. It is clear that
we protect it in the Specter-Hatch antiterrorism bill. I am not
advocating abolition of Federal habeas corpus. The responsible scholars
and lawyers and law enforcement professionals do support banning and
getting rid of Federal habeas corpus. There are many bright people who
think that this system is out of whack and that we do not need Federal
habeas corpus. But I am not arguing that position.
We have provided for protection of Federal habeas corpus, but we do
it one time and that is it--unless, of course, they can truly come up
with evidence of innocence that could not have been presented at trial.
There we allow successive petitions. Any time somebody can show
innocence, we allow that. I simply wish to provide my colleagues some
perspective on this issue. We in the Senate, whose duty it is to enact
into law the community's legitimate interest in seeing justice done
within the parameters of the Constitution, should soundly reject the
present amendment to the Dole-Hatch bill. Indeed, the Senate has a
particular duty with respect to habeas corpus. As the inscription on
the Dirksen Senate Office Building states, ``The Senate is the Living
Symbol of our National Union of States.''
The amendment before us will not only hinder and potentially defeat
our efforts to pass a true crime bill this year, but in so doing, this
amendment will also force an unprecedented and substantial intrusion
into the State criminal justice system.
So I hope that our colleagues will vote against this amendment, as
sincere as it is and as sincere as it is being offered. It is another
way of just delaying the process because some people do not like the
death penalty. I understand that. I think there are good arguments on
both sides of the death penalty. I myself would very seldom use the
death penalty and only in the most heinous of cases. On the other hand,
I think it is essential that we have it on the books. There are those
who would just as sincerely argue the other side, that there should be
no death penalty, that it is cruel and unusual--even some of our
Supreme Court Justices of the past and maybe now and in the future. But
do not try to do it by gumming up the procedural process posttrial that
has plenty of protections for defendants.
There is no reason for this expensive litigation process with
frivolous appeals to continue. That is what we are fighting today. And
we are acknowledging that we protect the constitutional rights and
civil liberties of the defendants in these matters.
I know the Senator from Michigan is very sincere and I acknowledge
that. I have a great deal of respect for his sincerity and
intelligence. But this amendment should not pass because I
[[Page S7827]] think it would make this process a continuation of the
current process, and I think that would be a tragedy.
I reserve the remainder of my time.
Mr. LEVIN. Mr. President, I will take 30 seconds to tell my friend
from Utah this is not a death penalty amendment. This is a habeas
corpus amendment. The language in the bill reverses the Supreme Court
opinion in the Schlup case. That opinion found that the man in that
case was probably innocent. I do not think anyone in this body wants to
execute someone who is probably innocent and deny that person a
hearing.
Now, Justice O'Connor said--not your liberal judge--one of the
majority in the Schlup case, said, ``The court today does not sow
confusion in the law. Rather, it properly balances the dictates of
justice with the need to ensure that the actual innocence exception
remains a 'safety valve' in an 'extraordinary case'.''
The issue is that the bill before the Senate reverses the Supreme
Court. The Levin amendment is not trying to bring something new into
this. The Levin amendment is trying to preserve a Supreme Court opinion
of a few months ago, joined by Justice O'Connor. That is the issue.
I yield the remainder of my time to my friend from Illinois.
Mr. SIMON. Mr. President, I thank my colleague, and I rise in strong
support. I think we all know that I oppose the death penalty. It is a
penalty we reserve for those of modest means. If a person has enough
money, that person will never get the death penalty in this country.
That is the reality.
That is not the question, though I find it of interest that today's
New York Times has a story that the South African Supreme Court
yesterday unanimously outlawed capital punishment in South Africa. We
are one of the few countries left in the Western world that still has
the death penalty.
The question is whether someone who is probably innocent--that is the
language of the Levin amendment--probably resulted in the conviction of
a person who is actually innocent of the underlying offense.
Now, whether a person is for the death penalty or against it, no one
wants to send someone to prison who is probably innocent. We have done
that.
I can remember when we were debating this issue when I was in the
Illinois General Assembly and a man was about to be executed, and
suddenly someone in the State of Georgia confessed that he had
committed the crime.
Now, that case is clear and convincing evidence. I have to say that
the bill without this amendment would take care of that case.
There are a lot of other marginal cases. We are not just saying a
marginal case. The Levin amendment says where a person is probably
innocent, a person ought to have that chance to appeal. I cannot
believe anyone who really looks at this--the Senator from North
Carolina, the Senator from Utah, my colleagues--I cannot believe they
will vote against that.
Maybe Members will vote against it if they are not aware of what the
amendment does, and a briefing is right at the desk on either your side
or our side. These briefings--and I do not mean this disrespectfully to
the fine staff--but it is very difficult to condense in a few words
what these amendments do.
The Levin amendment says ``If you are probably innocent, you ought to
have the chance to appeal.'' I have a hard time believing that is not
going to be accepted unanimously. Apparently, it may not be.
I am pleased to support the Levin amendment, proud to support it and
vote for it.
I believe I have consumed my time, Mr. President. I hope I have been
able to get the message across.
Mr. President, I ask unanimous consent to have an article printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the New York Times, June 7, 1995]

South Africa's Supreme Court Abolishes Death Penalty

(By Howard W. French)

Johannesburg, South Africa, June 6.--In its first major
decision, South Africa's recently created supreme court
abolished the death penalty today, ending a decades-old
practice of executing criminals convicted of serious crimes
that had once given the country one of the world's highest
rates of capital punishment.
Announcing the unanimous decision, Arthur Chaskalson,
president of the Constitutional Court, said, ``Everyone,
including the most abominable of human beings, has a right to
life, and capital punishment is therefore unconstitutional.''
That the Constitutional Court chose the death penalty issue
for its first major ruling underscored the importance of the
issue in a country where for decades execution was used not
just as a weapon against common crime, but as a means of
terror in enforcing the system of racial separation known as
apartheid.
``Retribution cannot be accorded the same weight under our
Constitution as the right to life and dignity,'' Mr.
Chaskalson said. ``It has not been shown that the death
sentence would be materially more effective to deter or
prevent murder than the alternative sentence of life
imprisonment would be.''
In a strong show of support for the ruling, each of the
court's 11 judges issued a written opinion backing the
decision. The Constitutional Court was created earlier this
year as an equal to the executive and legislative branches.
South Africa stopped executing prisoners in 1992 on the
orders of the former National Party Government. With violent
crime rampant, the number of prisoners awaiting execution on
death rows has since swollen to 443. Over 1,100 people were
executed in the 1980's. Death sentences were carried out by
hanging.
Reacting to the ruling, Justice Minister Dullah Omar said
the prisoners would be quickly moved off of death row.
According to prison wardens, the announcement set off a round
of wild celebration among condemned inmates at Pretoria's
Central Prison.
Elsewhere, however, comments on the ruling revealed the
continuing depths of political division among South Africans
that typically run along racial lines, one year after the
formal end of apartheid.
On radio talk shows today, reactions were deeply split
between black and white, with the former typically applauding
the abolition of the death penalty, while the latter,
invoking high crime rates, criticized what many whites say in
a gradual slide away from law and order.
``Under the A.N.C., the message is that people can commit
any crime and get away with it,'' said one caller to a
Johannesburg radio station, referring to the African National
Congress, the party of President Nelsen Mandela.
Crime has become a highly emotional issue among many whites
here, even though blacks are overwhelmingly represented among
the victims of violence. Last weekend in Johannesburg alone,
42 people were killed, 477 businesses and homes were broken
into and 34 women were reported raped.
While whites complained of a spreading sense of impunity,
many blacks reacted by noting that they had been
disproportionately made victims of the death penalty in the
past through wrongful arrests and convictions.
Moreover, with the death penalty much more likely to be
applied to blacks than to whites under apartheid, capital
punishment had become as powerfully emotional an issue for
many blacks as crime has become for many whites.
Mr. Mandela himself made this point in a point in a
statement to the court during his trial for incitement in
1962. ``I have grave fears that this system of justice may
enable the guilty to drag the innocent before the courts,''
he said. ``It enables the unjust to prosecute and demand
vengeance against the just. It may trend to lower the
standards of fairness applied in country's courts by white
judicial officers to black litigants.''
Two years later, in another trial, Mr. Mandela was
sentenced to life imprisonment for conspiracy to overthrow
the government, a judgment that his supporters saw as a
victory because the death sentence was not imposed, even as
they deplored Mr. Mandela's conviction.
Conservative white groups condemned the ruling while many
predominantly black political organizations portrayed it as a
victory for racial justice.
The predominantly black African National Congress, the
country's largest political party and the leading force in
the fight against apartheid, hailed the ruling as a victory
for the country's new democracy, saying, ``never, never and
never again must citizens of our country be subjected to the
barbaric practice of capital punishment.''
``It's making us a civilized society,'' Archbishop Desmond
Tutu, the Anglican primate of Southern Africa, told the South
African Press Association. ``It shows we actually do mean
business when we say we have reverence for life.''
Archbishop Tutu, a leading campaigner against apartheid,
called the death penalty ``obscenity,'' saying it, in effect,
said to criminals, ``We want to show you that we care about
life so we kill you too.''
Amoung white political groups the reaction to the ruling
was typically negative, running from carefully worded
statements of displeasure to outright hostility.
Saying that the overwhelming majority of South Africans
supported the death penalty, F.W. de Klerk, vice president in
the country's coalition transition Government, said that his
National Party, a predominantly white party that had governed
the country for decades under apartheid, would campaign to
reinstate capital punishment.
Other conservative white groups reacted even more harshly.
``The rights of murderers [[Page S7828]] and rapists are
being held in higher regard than those of their victims,''
said one Afrikaner youth organization.
For his part, Mr. Mandela, who served 27 years of a life
sentence under a succession of apartheid governments made no
public comment today on the ruling. The President's office,
however, issued a statement intended to reassure those who
fear a growing leniency toward crime.
``The President also wishes to emphasize that this decision
has no bearing on the commitment of the Government to tackle
the problem of crime, and particularly violent crime, with
all the resources and determination it can muster.''

Mr. BIDEN. Mr. President, parliamentary inquiry. Is there any time
remaining?
The PRESIDING OFFICER. There is no time.
Mr. BIDEN. I ask unanimous consent that I be able to speak 2 minutes
on the Senator's amendment.
The PRESIDING OFFICER (Mr. Inhofe). Without objection, it is so
ordered.
Mr. BIDEN. Mr. President, this is pretty clear here.
What the Senator from Michigan does in his amendment is stick with
one part of the change in the law. Right now there is no requirement in
the law to file the successive petition that says that the defendant
has to explain why he did not file the petition before.
Now, under the Hatch approach and under the approach if adopted by
Senator Levin, that is tightened up. Even Senator Levin is saying we
have to show cause why this was not raised before. There is only one
disagreement before the Senate. That is, what standard of proof do you
have to bring forward to show you are innocent?
By implication, they are agreeing a person ought to be able, if there
is evidence of innocence, ought to be able to have another petition.
Senator Levin says the same thing.
I think every American would say you ought to have another crack at
it. The difference is, they say ``clear and convincing.'' Right now,
the Supreme Court says, no, you do not have to go that far, but you
have to go pretty far. You have to sufficiently establish the
constitutional violation. You said what happened to you in the lower
court, you say your constitutional rights were violated in a way that
probably resulted in the conviction of a person who is actually
innocent.
Are we going to quibble over putting someone to death on whether or
not we abide by the Supreme Court majority that says all you have to do
is say ``probably'' this resulted in a conviction of an innocent
person?
But they want to go even further. They want to say, no, ``probably''
is not enough. You have to show that there is clear and convincing. The
only thing they do not say is ``beyond a reasonable doubt.''
Keep in mind, folks, what everybody misses, when we talk about habeas
corpus, is this is not about having a convicted person go free. That is
not what this is about. Nobody under habeas corpus petition goes free.
They get a new trial. That is all they are saying here. I sure think
this is distinction with a difference that can mean the difference
between life and death of an innocent person. I hope they will yield on
``probably'' and not ``clear and convincing.''
Mr. HATCH. Mr. President, I do not want to prolong this. I think I
have 11 minutes left. I will just take a minute or two.
What I am saying, there has been a trial, conviction, there have been
posttrial proceedings, there has been an appeal to the intermediate
court in the State, an appeal to the supreme court of the State, then a
petitioner of certiorari to the Supreme Court, all of which are denied,
and a petition for clemency to the Governor. He denies. In every case
where we found actual innocence, or any kind of innocence, it has been
through those proceedings, not in Federal habeas.
I have to say that all of this is another attempt to just prolong the
process and allow--call it what it is--a liberal judge who does not
believe in the death penalty to prolong the process, again at a
tremendous cost to the States, everybody concerned, and I think a cost
to justice.
People out there are starting to say, my goodness gracious, is there
no finality to the decisions, the just decisions, of the court?
I have to say the cases that we can cite where people have been
helped, where innocence has been proven, have been through that State
process, not through the Federal habeas process. It is just another
layer of expense.
I am not going to knock those who are trying to do this because they
will sincerely do anything to stop the death penalty. I respect that.
If I was a defense lawyer again, I would do anything to try and
preserve somebody's life. But I have to say it would be pretty cynical
to keep doing what is being done in some of these cases today. We can
call it sincerity, but the fact of the matter is it is a legal
obligation to do what you can. But there is an element out there in the
legal community which, having failed to convince the public and the
courts that the death penalty is wrong, has set about to eliminate the
death penalty defect by making death penalty litigation too costly and
protracted.
As a lawyer I do everything I can within the law, and if we provide
this law, I will be doing that, and so will every other defense lawyer.
It is another appeal, another cost to the States, another frivolous
appeal which we are trying to limit here while still giving the
protections we need in these matters.
The Levin amendment relies on the term ``actual innocence.'' Actual
innocence means--and let me just read out of the leading Supreme Court
case on it, Sawyer versus Whitney. This is what they held:

1. To show actual innocence one must show by clear and
convincing evidence that but for a constitutional error no
reasonable juror would have found the petitioner eligible for
the death penalty under the applicable State law.

The amendment before us, the Levin amendment, will not help the truly
innocent. This amendment will further undermine the proper role of
habeas corpus and that is the effect of the amendment. The effect of it
is not meant to overturn the fundamental defects. The Specter-Hatch
habeas bill has the safety valve. It has a safety valve available for
the truly innocent. We provide successive petitions for those who prove
innocence. The proposed amendment will do nothing to help the truly
innocent. It is merely another means of delaying justice. There are
plenty of procedures and mechanisms in the Specter-Hatch bill to
protect the truly innocent. So we do not need to continue to prolong
this.
I move to table the Levin amendment. I ask for the yeas and nays.
The PRESIDING OFFICER. Does the Senator yield his remaining time?
Mr. HATCH. I yield my remaining time.
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. HATCH. Mr. President, I ask unanimous consent the vote on the
motion to table the Levin amendment be deferred to a time to be
determined by the majority leader, after consultation with the minority
leader, after 2 p.m. today.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I now ask the Levin amendment be laid aside so the
distinguished Senator from Arizona can call up his amendment. I
understand there is to be a 1-hour time agreement.
I ask unanimous consent there be a 1-hour time agreement with the
time equally divided--in the usual form, we will put it that way.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I also ask unanimous consent at the conclusion or yielding
back of the time on the Kyl amendment that it be set aside and the vote
occur on or in relation to the Kyl amendment following the vote on the
motion to table the Levin amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Arizona is recognized.

Amendment No. 1211

(Purpose: To stop the abuse of Federal collateral remedies)

Mr. KYL. Mr. President, I have an amendment at the desk and I ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Arizona [Mr. Kyl] proposes an amendment
numbered 1211.

[[Page S7829]]

At the appropriate place, insert the following new section:

STOPPING ABUSE OF FEDERAL COLLATERAL REMEDIES.

(a) In General.--Chapter 153 of title 28, United States
Code, is amended by adding at the end the following:

``Sec. 2257. Adequacy of State remedies

Mr. KYL. 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:

At the appropriate place, insert the following new section:

SEC. . STOPPING ABUSE OF FEDERAL COLLATERAL REMEDIES.

(a) In General.--Chapter 153 of title 28, United States
Code, is amended by adding at the end the following:

``Sec. 2257. Adequacy of State remedies

``Notwithstanding any other provision of law, an
application for a writ of habeas corpus in behalf of a person
in custody pursuant to a judgment or order of a State court
shall not be entertained by a court of the United States
unless the remedies in the courts of the State are inadequate
or ineffective to test the legality of the person's
detention.''.
(b) Clerical Amendment.--The table of sections for chapter
153 of title 18, United States Code, is amended by adding at
the end the following:
``2257. Adequacy of State remedies.''.

Mr. KYL. Mr. President, the reason I asked the key provision of that
amendment be read is to illustrate its simplicity. It is very simple
and yet I think very important and necessary as an improvement to the
bill which is before us now.
I want to begin by complimenting the manager of the bill, the Senator
from Utah, for not only getting the bill to this point but for
insisting that we have habeas corpus reform in this important piece of
legislation.
My amendment will improve the habeas corpus reforms by, as was just
read, ensuring that a case in the State courts can be reviewed in the
State court system, but that as long as the State court system provides
adequate and effective remedies, that person does not have the
authority to go over to the Federal courts and relitigate all of the
same claims in the Federal courts.
Of course, it should go without saying that there is always a review
in the U.S. Supreme Court from any decision of the highest court of a
State. So there is ultimately still the potential for Federal review of
a State court decision.
I would like to illustrate exactly what we are talking about here
with a hypothetical and a real case. The Senator from Oklahoma is here.
One of the reasons the Senator from Oklahoma is so interested in this
provision is because of the recent tragedy in his State. Let us assume
two cases in the State of Oklahoma. In the first case, there is a
robbery and in the course of that robbery someone is shot. The person
is tried in the State courts, there is an appeal to the appeals court
and on up to the supreme court of the State--eventually a prosecution,
a conviction and a sentencing.
Thereafter that State court prisoner may file writs of habeas corpus
in the Oklahoma State court system as often as that person can find
grounds for doing so. Those writs can be determined legally in the
appeals and supreme court of the State of Oklahoma, and eventually of
course, after the supreme court of Oklahoma has ruled, they can be
considered by the U.S. Supreme Court. So that State court prisoner has
virtually an unlimited right to take these writs of habeas corpus up
and down the State court system.
In today's law he also has the right to go to the Federal court
system and essentially relitigate the exact issues. ``I have some newly
discovered evidence that will prove I was innocent of the crime. I have
gone up and down the State court system, now I would like to try my
luck in the Federal courts.'' Under existing law, that person can do
it.
What the bill says is we are going to put a couple of roadblocks in
the way. It should not be quite so easy for you to you do that. You at
least ought to have some time limits within which to file these habeas
corpus writs in Federal court, and the Federal courts at least ought to
give great weight to the previous decisions of the supreme court. Those
are both sound provisions but they obviously do not preclude the State
court prisoner from going to Federal court.
Let us take, on the other hand, the perpetrators of the heinous
tragedy in Oklahoma City a few weeks ago. They will probably--he or
they--will probably be tried in the Federal district court in Oklahoma.
If convicted, there could be an appeal to the Tenth Circuit Court of
Appeals and eventually to the U.S. Supreme Court. But those people,
having been convicted, will have their writs of habeas corpus reviewed
only in the Federal district court and circuit courts of the United
States of America. They do not have the right to go over to the
Oklahoma State court system and relitigate those same claims. So,
whereas the State court prisoner can use both the State system and the
Federal system, in duplicate appeals, a Federal prisoner may only use
the Federal system.
The constitutionality is obviously clear. Either the State courts or
the Federal courts are competent to adjudicate constitutional claims.
That is established. There is no legal question about that whatsoever.
But the Federal court prisoner has one set of options. The State court
prisoner, under the stats quo, has two sets of options. And we are
limiting them a little bit by the bill before us.
My amendment says: No, a Federal court prisoner adjudicates his
claims in Federal court. A State court prisoner adjudicates his claims
in the State court. The only time the State court prisoner can go to a
Federal court is from an ultimate appeal to the U.S. Supreme Court.
This will end the duplicative appeals that we have all been
complaining about. This and only this amendment will end those
duplicative appeals. Because it will still be quite possible for State
court prisoners under the bill before us to adjudicate their claims in
State court and then go to the Federal court so long as they do it in a
timely manner. So long as they meet the time limits we impose in this
bill, they can still go to the Federal court and relitigate exactly the
same claims.
What ordinarily happens is that the Federal district courts or
circuit courts of appeals say, ``Wait a minute, the State court has
already decided that. Your appeal is summarily denied.'' But that takes
time.
I just spoke to the presiding judge of the Arizona court of appeals
and he said we summarily dismissed many of these. But he said every one
of them has to be considered. And that is the point. From a very small
number to a very large number, the district courts and the circuit
courts of appeals are having to handle these writs that have already
been decided by the State court and, as the Federal courts have said
over and over again, the State courts are perfectly able to resolve
these issues.
Mr. President, this is not just an idea that I have come up with.
This is what is happening in the District of Columbia today, and has
been for the last 25 years, because 25 years ago the Congress passed a
law and established that in the District of Columbia courts--by the
way, the District of Columbia has in effect a State court system which
parallels the U.S. District Court and the Circuit Court of Appeals for
the District of Columbia.
So it is similar to States in that it has its own system of courts.
We in the Congress 25 years ago said that prisoners in the District of
Columbia can only use that quasi-State court system here in the
District of Columbia. That was tested in the U.S. Supreme Court and the
constitutionality was upheld in the case of Swain versus Pressley in
1977. And there have also been other opinions with respect to the
constitutionality of what was done. One judge, as a matter of fact,
even wrote that because of this experiment in the District of Columbia,
which has worked very well for the last 25 years, that the Congress
ought to consider the same kind of limitation of remedies in the State
courts, exactly what we are proposing here today with my amendment.
So at the invitation of Judge McGowan, we are proposing an amendment
which says in the State courts, [[Page S7830]] you do like the District
of Columbia. You exhaust your remedies in the State court. You can go
to the U.S. Supreme Court, but not jump over to the Federal District
Court and the Circuit Court of Appeals to litigate the same claims.
Judge Robert Bork has written a letter in support of my amendment. He
writes, in part:

Your proposed amendment to the antiterrorism bill to stop
the abuse of Federal collateral remedies is an excellent and
much-needed reform. There is no doubt about the
constitutionality of the provision you propose, nor is there
any doubt about the need for your amendment. Your amendment
is a sorely needed reform to a situation that is now out of
hand.

Mr. President, the constitutionality of what I propose is beyond
question. It has been tried for 25 years here in the District of
Columbia. It is found to be very workable. Everybody agrees that we
need to limit duplicative appeals.
Therefore, it seems to me that, if we are to really make the
provision of habeas corpus reform in this bill work, we do not just
play with it at the edges by proposing some time limits and providing
for deference to State court proceedings. We go right to the heart of
matter and say if you have a complete and adequate remedy in the State
courts, then that is what you will get except, of course, for your
ultimate appeal to the U.S. Supreme Court. You cannot jump over to the
Federal system of courts to readjudicate those very same claims.
The Senator from Oklahoma is on his feet. I would like to yield time
to the Senator from Oklahoma to further discuss this particular
amendment.
Mr. NICKLES addressed the Chair.
The PRESIDING OFFICER (Mr. Thomas). The Senator from Oklahoma is
recognized.
Mr. NICKLES. Mr. President, I would like to compliment my friend and
colleague from Arizona for his leadership. He brought this amendment to
my attention. I told him I was not very familiar with it, but I told
him I would do a little more homework. I have. I have become more
convinced that he is on the right track.
I talked to the Federal judge in the Western District of the State of
Oklahoma, and I asked him about the number of appeals; prisoner
petitions. We find out in the last 10 years they more than tripled, and
have actually consumed about 25 percent of the work load in the western
district. The court has before them hundreds of prisoner petitions and
appeals that have to be reviewed.
The Senator from Arizona makes an excellent point, and says the
States have ajudicated these cases thoroughly. They have gone all the
way through the State courts, through the appeals process, State
supreme courts, and then all the way even--with capital punishment
cases--to the Supreme Court.
Yet, they continue to press, and want to run through the Federal
court system as well where the Federal judges do not have time to go
through the entire case, where there is almost a presumption that, if
they have to do that, maybe the Federal Government knows better, which
is not always correct. The Federal judges I have talked to said we are
in serious need of habeas corpus reform.
I compliment my friend and colleague from Arizona for, I believe,
truly making more significant reform. I think Senator Hatch's bill has
some good reform. I compliment him for it. The reforms in S. 735 will
help expedite the procedures. There are time limits under the proposal
now before us from the Senator from Utah. Senator Kyl's amendment would
go much, much further. It would eliminate these hundreds of, in almost
all cases--at least, in my State, frivolous petitions placed before the
Federal courts, frivolous but yet they still take time. At 25 percent
of the caseload, you are talking about a very significant amount of
time and energy and dollars that now are being expended by frivolous
appeals because many prisoners become quite good at filing petitions,
and there is no limit whatsoever on the number of petitions that they
can file.
So I compliment my colleague from Arizona for his leadership and for
coming up with very significant reform. I appreciate the fact that we
have outstanding scholars such as Judge Bork and others who have
endorsed the reforms in this amendment.
I urge my colleagues to adopt the amendment.
Mr. KYL. Mr. President, I would like to yield 7 minutes of additional
time to the junior Senator from Oklahoma, Senator Inhofe.
Mr. INHOFE addressed the Chair.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Thank you, Mr. President.
First of all, let me thank the Senator from Arizona for bringing this
up. I think it is significant for all of us to realize that had it not
been for the bombing in Oklahoma City, we would not be here today. We
would not even be having a discussion. There would not be a debate on
habeas reform. There would not be a counterterrorism bill.
Certainly, this contentious item of habeas that we have been trying
to bring up, at least for the last 9 years that I know of, would not
even be discussed in an open debate as it is today. So it is very
significant for people to understand this is all precipitated by the
tragedy that took place in April of this year in Oklahoma City.
On Monday of this week, we had a group of people that came up from
Oklahoma. Among others, they were Diane Leonard, whose husband, Don, a
Secret Service agent, was killed in the bombing; we had Glenn Seidl,
who lost his wife, Kathy; Kay Ice, who lost her brother, Paul, a
Customs Agent; Mike Reyes, who lost his father and was injured himself;
and Danny McKinney, Linda's husband. It goes on and on. There is not
time to name all of them. But they were here for one reason. That
reason is that they wanted to be sure that we had the strongest
possible habeas reform in this bill.
So when you stop and realize what has happened in Oklahoma, and what
happened in Oklahoma as I mentioned once before on this floor, but I
think it is worth bringing up again at this point because it gives you
an insight into what the families of the victims in Oklahoma are
thinking about because it is something that is contemporary right now--
a guy named Roger Dale Stafford is scheduled to be executed on July 1.
I do not know whether he will be. It is hard to say. In the spring of
1978, someone stopped to help him with his car. He was broken down in
Oklahoma. He murdered in cold blood a Sergeant Lorenz, and the
sergeant's wife and small son, and drove 60 miles to Oklahoma City, and
committed a great crime known as ``The Sirloin Stockade Crime,'' where
he rounded up six people and took them into the refrigerator, tied them
up, and executed the six of them. He has been found guilty on all nine
counts and has nine death sentences. That was 17 years ago.
I might suggest that Roger Dale Stafford today is 100 pounds heavier
than he was 17 years ago. So I am sure he is eating well. He has been
in the cell, probably living under better conditions than he was
before, for the past 17 years.
I cannot help but think when anyone is considering a crime of the
magnitude of that which we had in Oklahoma City, Mr. President, that
they spend a lot of time thinking, ``What is the downside? What is the
worst thing that can happen to me if I get caught and convicted? It is
going to be that I will be executed. Wait a minute. The average time
between conviction and execution in America is 9\1/2\ years. So I will
be there for 10 or 15 or 20 years watching color TV in an air-
conditioned cell.''
That loses its deterrent value for those of us who are narrow enough
in our thinking to believe that punishment is a deterrent to crime.
So without this, we have no way of delivering the message to other
individuals who might be considering such a heinous crime as that which
was committed in Oklahoma City.
So let me just say that I am here today on behalf of multitudes of
people in the State of Oklahoma who were killed in the brutal bombing,
the mass murder that took place last April in Oklahoma City.
The message they told us last Monday to deliver on the floor of this
Senate, the loud and clear message, was yes, if this does not pass, we
still want to support the bill as it is right now and the habeas
element that is in the bill. That is fine. But the message was let us
get the strongest possible habeas [[Page S7831]] reform that we can
have. That happens to be the John Kyl amendment.
So I am not here speaking on behalf of one U.S. Senator from the
State of Oklahoma. I am speaking on behalf of the families of those
individuals who were killed in that very brutal act in April of this
year.
Thank you, Mr. President.
Mr. KYL. Mr. President, does the Senator reserve the remainder of his
time?
Mr. INHOFE. I yield.
Mr. KYL. Both Senators from Oklahoma have conducted themselves in an
exemplary manner following the tragedy in their State in a way both to
help the people of their State but also to try to do everything they
could to assist law enforcement officials to bring to justice the
responsible parties and to see to it that there are changes in the law
that perhaps can help prevent those kinds of things from happening in
the future and, in the cases where they cannot be prevented, that the
people are brought to justice.
I very much appreciate the support of both of the Senators from
Oklahoma.
Mr. President, I would like to reserve the remainder of my time at
this point should anyone from the minority wish to speak.
Mr. BIDEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. Let me say while our colleague from Oklahoma is in the
Chamber that I, too, admire the way in which he and his senior
colleague have conducted themselves in the wake of such a horrible
tragedy. I do not in any way question that the victims' survivors,
families of the victims in Oklahoma City, want what he states, and that
is a change in the way habeas corpus works. They do not want any more
Staffords. They cannot understand, nor can I, why Stafford is in jail
for 17 years after having filed apparently successful petitions to
delay his execution, and they want action.
But I would say that we would be on habeas corpus whether or not that
god-awful tragedy in Oklahoma had occurred. The Republican crime bill
has the habeas corpus petition in it. We are scheduled to take up the
Republican crime bill. We were scheduled to take up the Republican
crime bill before we left for our Easter recess. Then we were scheduled
to take it up before we left for Memorial Day. Now we are scheduled to
take it up before the Fourth of July recess.
In that Republican crime bill is the reform of habeas corpus. In the
crime bill that I offered 2 years ago, 18 months ago, there was a
reform of habeas corpus. So I just want to make it clear that the
Senate's attention is not focused on habeas corpus at this moment
because of what happened in Oklahoma and the counterterrorism bill. It
is a convenient--and I mean that in a literal sense; I do not mean that
in a disparaging way--it is a convenient vehicle to move up the debate
on this issue, but the debate was necessary and inevitable.
Let me point out there are three sort of teams in this debate. One
team says keep habeas corpus the way it is; we do not want any changes
in habeas corpus. I got a bite out of that apple over the last couple
years because every time I would offer amendments on habeas corpus I
would read in the editorial page of the New York Times about how
Senator Biden is emasculating habeas corpus, and what a terrible thing
he is doing, and the compromises Senator Biden is working out are--and
it went on and on. Every liberal newspaper in America pointed out that
wanting to change habeas corpus from the way it is to make sure that
the Staffords of the world are executed----
Mr. INHOFE. Just for a moment, will the Senator yield?
Mr. BIDEN. I would be happy to yield.
Mr. INHOFE. Let me clarify. I used the words ``at this level.'' I do
not believe we would be having the debate at this level if it had not
been for the fact it did not happen.
I might also observe that the same attorney, who is a very capable
and competent attorney in Oklahoma, Steven Jones, the one who so
successfully got the delays in the Stafford case, is the same attorney
that is handling Timothy McVeigh's case here, too.
Mr. BIDEN. I thank the Senator.
But there are basically three points of view on this floor in a broad
sense. One is, do we maintain the status quo on habeas corpus? That is
made up of half a dozen to a dozen Members on my side and one or two
Members on the Republican side. And they do not want to see any change
in habeas.
There is a second school of thought in a broad sense represented by
the distinguished Senator from Arizona, who is a capable and competent
lawyer in his own right and knows this area well, as he demonstrated by
his presentation. And that is to say, in effect, as I read what he says
but what others have said as well, that State courts are fully
competent to determine whether or not somebody's constitutional rights
have been violated. And that is a respected, understood, and clearly
articulated school of thought that has existed for some time and has
been in a very articulate manner stated here today.
There is a third school on this floor that says status quo is bad. We
do not want habeas corpus to continue as it statutorily has and has
been interpreted by the courts over the last couple decades. We want it
changed.
Now, we differ. There are limits to that third group, and they range
somewhere between Senator Specter and probably me. And Senator Specter
and I have been for years debating this issue, agreeing and
disagreeing, but we are into that school that says, wait a minute, do
not take the Federal courts totally out of this or, in effect, take
them totally out of it but drastically curtail the time within which
someone is able to file a habeas petition and how many times they are
able to file one and what constitutes a successive petition.
Now, I am certain that the Senator from Oklahoma was right when he
ticked off the names of the families of the victims and said they want
action. I would respectfully suggest that it is unlikely that they know
the difference between a successive petition based upon probable
innocence versus clear and convincing evidence. Most lawyers on this
floor do not know the difference. Most lawyers who practice law do not
know the difference; 85 percent of the highest paid lawyers in America,
if you brought them in and sat them down in these chairs and asked them
to define what a successive petition is, could not do it, could not do
it. I am talking about the thousand-dollar-an-hour guys. They could not
do it.
Now, I do not mean that to malign the legal profession. They do not
handle these cases. Death penalty cases, habeas cases are complicated.
Just like I could not, if I were back in the practice of law, explain
to you a complicated antitrust provision. I did not practice antitrust
law.
So with all due respect, what I am proposing and will propose --and
my opposition to the Kyl amendment is just as likely to be acceptable
to those folks in Oklahoma as anyone else's because the effect of what
I wish to see happen--and I think a majority in here--is to make sure
that we are no longer in a situation where this fellow Stafford could
be gaining weight in an air-conditioned cell after having filed 17
petitions.
If we adopt the amendment that I am going to offer after this
amendment, Stafford would be dead. No more Staffords. There is no legal
way in which anyone could hang around, after having been convicted of a
capital offense, for 17 years, let alone 7 years, because there are
strict time limits and strict circumstances under which a second
petition could be filed.
Now, one of the problems here is that we confuse all crimes with
apples and oranges. We hear about delay all the time, and it is true,
with all due respect, even the Kyl amendment will not fundamentally
change the delay. If you take a look at where the delay occurs--and
just pick this one case that we talk about--and I will get the second
graph, if I can, about the length of delay in State courts versus
Federal--the case often cited is this Guerra case, to find out how long
this fellow, after having been convicted, languished in, at the expense
of the taxpayers, a prison avoiding the inevitable.
Of the delays that took place, only--still, there are delays--24
percent of them were because of what the Federal courts did. And 76
percent, or 9 years 2 months' worth of delays had nothing to do with
the Federal courts. They were all in the State court in the State of
Texas. [[Page S7832]]
Leave that graph up for another moment, please. I want to make sure
everybody understands. The State of Texas, under State court and State
law, provided for 9 years 2 months' worth of delay.
The Federal courts, having Federal habeas available, did, in fact,
add to the delay, 2 years and 10 months. But let us eliminate, as my
friend from Arizona wishes to do, in effect, the ability of the Federal
courts to get into the game. There still would have been a 9-year-2-
month delay in the execution of a man who was convicted and should have
been put to death. The point is, the end result of all this was he
ended up with a granting of habeas in the end. The point is, it was 9
years 2 months in the State court.
In the State of California, we heard a lot of talk about how Federal
habeas corpus causes all these delays. The delays in execution of the
death penalty, much of the responsibility is in the State courts. The
California experience: California's Supreme Court has on its docket
four capital cases that have been fully briefed for over 7 years, but
the State court has not even heard the argument yet. It has nothing to
do with the Federal courts. You have four cases, as of a month ago,
when this chart was made up for a hearing. Maybe something has happened
in the last month, but as of a month ago, there were four capital cases
in the California Supreme Court where the petitioners seeking redress
filed their briefs 7 years ago, and the State court has not even acted
yet. Translated, that means 7 years living off the taxpayers in an air-
conditioned cell because the California State Supreme Court has not
even looked at the briefs or, if they looked at them, have not told
anybody they looked at them.
The California Supreme Court has taken more than 8 years to decide 24
of the cases in which it affirmed the death penalty.
One State habeas petition has been pending for 4\1/2\ years and
another has been pending for 6 years. This is not even getting to the
Federal court.
The reason I cite this is the distinguished former Member of Congress
and attorney general of the State of California, Mr. Lungren, came
before our committee and said, ``The Federal courts should work like
the State courts work. My State of California really knows what it is
doing.'' Look at what the State of California knows.
I understand the anger. I feel angry and aggrieved as an American
citizen that convicted killers are in California sitting in the jails
for 7 and 8 years because the court has not even gotten around to
listening to what they have to say. You cannot put them to death,
because they filed a petition but they have not gotten around to
looking at the petition.
What are we doing, though, when we decide that we are angry about
that? We are saying the answer is get the Federal Government out of
this, the Federal courts out of this. That does not solve the problem,
but it creates another problem. The problem it creates when there is no
Federal habeas corpus is bad decisions. Bad decisions made by State
courts allow people who deserve another trial to not get it. Their
constitutional rights are violated. A significant number of the habeas
corpus petitions that are filed are granted.
I admit I cannot change the State of California. I have no authority
as a Federal official to tell the State of California how they should
look at their petitions. But I can do one thing. When it gets to the
bottom here and they finally act, under the proposal I want, they get
one chance to get into Federal court, to say the State court judges did
not know what they were doing on the Constitution.
Keep in mind now, what I am proposing means when all this is done,
within 6 months, the person in jail has to file a petition in Federal
court. If they do not, they are out of luck, and they can only file a
second petition under the same ground rules that my friends from the
Republican Party, that Senator Specter and Senator Hatch's bill says,
where we differ, which I will debate later, where we differ, Senators
Specter, Hatch and Biden, is on what they are allowed to look at once
they get that petition in front of them. I will speak to that later.
But look, I really think, to quote my old friend Sid Balick again,
``You gotta keep your eye on the ball here.'' The vast majority of us
in this body want to and have been trying for years to change the old
system to limit the time in which a petition can be filed and to limit
the number of petitions that can be filed. So essentially you get one
bite out of the apple.
What my friend from Arizona would do would deny that one bite. I ask
you, what damage is done to the Nation allowing a person who, after the
fact, learns that perjured testimony was used against him; after the
fact, learns that information was made available to the prosecution
which went to his innocence that was never made known to him; after the
fact, after the fact, after the trial, after the appeals?
If you have to file it within 6 months, I do not know how much
additional weight old Stafford would have gained in 6 months, but it
would not have been 100 pounds. What is the alternative? The
alternative, for example, in this Guerra case was when they finally got
down to it, they granted his appeal. They said, ``Wait a minute, you
did not get it right at the trial.''
But I, with the greatest amount of respect, suggest that although I
understand the motivation, it will not speed up the process. All it
will do is enhance the likelihood that a person whose constitutional
rights have been denied--and those constitutional rights usually relate
to whether they are innocent or guilty--whether they have had a chance
to make their case.
Senator Kyl's amendment would bar a prisoner even from being able to
file a habeas petition if the State court system has in place what are
determined to be adequate and effective procedures to test the legality
of the prisoner's detention.
This amendment makes clear that the State court need not have gotten
the result right in a particular case and, in fact, it need not even
have applied its system fairly in a particular case. All it says is
they have to have had a process, and if they had a process, even though
it may not have been applied fairly in a particular case, even though
it may not have gotten the result right on a constitutional basis, the
Federal court cannot look at it.
Everyone agrees that there is a need to end the delays in the system.
It just does not work right now. But I also think everyone agrees that
there should be a fair process and one that does not execute innocent
people.
We know most prosecutors and law enforcement officers are honorable.
Most cases proceed fairly, and we can have confidence in the result.
Under my approach, after the first petition, most of that will be made
clear. They will be rejected and they will be put to death. And I
support the death penalty. The Biden crime bill is the only reason why,
if McVeigh is convicted in Oklahoma, he would be put to death. I wrote
the law. If he is tried in Federal court without that law having been
passed, he could not be put to death. I support the death penalty. But
I do not support a reasonable ability for a person, if they have a
strong case, to suggest they did not get a fair trial, to be able to
have one bite out of the apple to determine in Federal court whether
that was true.
We all know that occasionally prosecutors or cops act in bad faith,
as Senators do, as doctors do, as lawyers do, as housewives do. Every
one of our professions, every one of them, has some bad apples. So,
occasionally, prosecutors or cops act in bad faith and there are cases
which have demonstrated that. As we all know, our judicial system will
make honest mistakes and has done so.
The recent case of Kirk Bloodworth is one example. Bloodworth was
convicted and sentenced to death for the rape and murder of a young
girl. After a new trial, he was again convicted and sentenced to life
imprisonment. Subsequent DNA testing confirmed his innocence.
Bloodworth lost 9 years of his life because of the error in our legal
system. Habeas corpus has existed to correct just such errors, and to
ensure that there will never be another Leo Frank, another innocent
person who has been executed.
You do not have to have 17-year delays to ensure that. You do not
have to have any delay to ensure that. But what you have to have is the
ability of a Federal court, on one occasion, to look at the facts in
the petition and [[Page S7833]] make a judgment as to whether or not a
new trial is warranted.
So I respectfully suggest that the debate between the Senator from
Arizona and me is not about maintaining the status quo; it is about how
we change the status quo. I respect the Senator's intelligence and
motivation greatly. But I also respectfully suggest that his approach,
A, does not solve the real problem--State court delay--and, B, takes
away the one last shot, as a practical matter, that one has to get
before a Federal court.
Now, I will acknowledge--and I suspect he would agree--that 75 years
ago Federal review was probably needed much more than it is today,
because the competence of State court justices was, in some cases, de
minimis. And the prejudice that existed in some States--my own
included--was real and palpable, making it very difficult for some
people to get a fair trial and get their constitutional rights
guaranteed. I acknowledge that. That is why the Leo Frank case
generated a change in statutory habeas corpus. He was a Jew and he was
put to death in large part because he was a Jew. Facts were overlooked,
and a decade later it became clear from witnesses that he did not
commit the crime.
Most States do not operate that way anymore. I will pick a State so
that I am not being parochial and bragging about my State court system,
and I will not brag about the Arizona State court system, which is very
good. I know several of their State supreme court justices and State
court judges. They are first rate. I will pick a State. I would rank
the New York State court of appeals, their highest court, over the last
50 years, up against any Federal district court or Federal circuit
court of appeals in the Nation. But I cannot say that for probably 20
States that I will not name, because it would be a violation of Senate
rules, and because I would be maligning the justices of other States.
But I will say, as Barry Goldwater once said, ``In your heart, you know
I am right.'' In your heart, you know there are certain States you
would just as soon not be tried in for a capital offense as other
States.
So what this does--although I acknowledge that State courts get it
right the vast majority of the times, I will put this in the negative--
what damage is done by the proposal of time limits built into the
proposal I am making and that are made, I might add, in the underlying
bill, that say you have to file a petition within a certain amount of
time and there is a limited circumstance under which you can file a
second petition.
So for those reasons, and others which I will not take the time to
speak to, I am going to oppose the amendment of my distinguished friend
from Arizona.
Mr. President, Is any time left in opposition?
The PRESIDING OFFICER. The opposition has 12 minutes 42 seconds.
Mr. BIDEN. I reserve the remainder of my time.
The PRESIDING OFFICER. If I was not clear, the Senator from Arizona
has 12 minutes. The Senator from Delaware has 4 minutes.
Mr. BIDEN. I reserve my 4 minutes.
Mr. KYL. Mr. President, I will yield myself 6 minutes of my remaining
time. I would like to respond to the comments of the Senator from
Delaware. They were well put and thoughtful, and I think they
contribute to the debate. I am going to consider the arguments that he
made, with the primary arguments in reverse order, if I might.
The last argument he made essentially was what happens when, after
the fact, the defendant finds something out that might enable him to
win his freedom? That, of course, is the rationale for the writ of
habeas corpus. Of course, the answer is, if you are a Federal court
prisoner, you have the opportunity to file a writ of habeas corpus in
the Federal courts. If you are a State court prisoner, you have the
right to file a habeas corpus petition in the State courts. So that is
your remedy for something that happens after the fact.
The Senator from Delaware said it must be a fair process, and indeed
it must be. Under my amendment, one of the things that can be
contested, and could be contested in Federal court, is that the remedy
of the State is not adequate or fair. Finally, with regard to this last
point, the Senator from Delaware said he will be proposing an amendment
that at least gives the prisoner in the State court system one shot in
the Federal courts and primarily base that argument on the notion that
while great strides have been made in State courts' competence over the
years, there may still be some situations where the State court would
not be as competent as the Federal court.
I would like to respond to this in a couple of ways, Mr. President.
First of all, we do have one shot in the Federal system under my
amendment. It is directly to the U.S. Supreme Court. That right exists
today, and it could not be taken away in our amendment, and we do not
do that, of course. So if a State court prisoner believes that, despite
all of the hearings he has gotten in the State court system, he still
has not gotten a fair shake, and that he has really two things that he
can claim--first, the State court system is not fair, and secondly, he
can go to the U.S. Supreme Court and make his final point there.
Let me read something that Justice Powell wrote not too long ago that
I think goes to this point:
He said this nearly 20 years ago:

We are unwilling to assume that there now exists a general
lack of appropriate sensitivity to constitutional rights in
the trial and appellate courts of the several States. State
courts, like Federal courts, have a constitutional obligation
to safeguard personal liberties and to uphold Federal laws.

That was in the case of Stone versus Powell, in 1976.
Later, speaking to the American Bar Association, Justice Powell said:

Another cause of overload in the Federal court system is
conferring Federal habeas corpus jurisdiction to review State
court criminal convictions. Repetitive recourse is
commonplace. I know of no other system of justice structured
in a way that assures no end to the litigation of a criminal
conviction. Our practice in this respect is viewed with
disbelief by lawyers and judges in other countries.

So, Mr. President, I think that particular issue is disposed of by,
among other things, the words of Justice Powell.
A second point the Senator from Delaware said is that most of the
delay is in State courts. He is correct, although the chart he has
there represents one case. He has about 25 or 24 percent of the delay
in the Federal courts, and the rest in the State court. Actually, there
is a better figure than that, and the figure is about 40 percent in the
Federal courts, 60 percent in the trial courts.
This is from the Powell committee report, and it talked about overdue
process. The Powell committee report on page 27 notes ``Federal habeas
corpus made up 40 percent of the total delay from sentence to
execution, in a sample of 50 cases.'' That is 50 cases as opposed to
one case.
The point of the matter is the Senator from Delaware is correct in
noting that most of the delay would be State courts. I submit, however,
that that is due to several factors. I am not sure the statistics fail
to account for the fact that most of the cases are in State court. As a
matter of fact, there are not that many in the Federal court.
Say it is between 25 and 40 percent. At least under my amendment we
are dealing with 40 percent of the problem. That is not insignificant.
Or, the least, taking the number of the Senator from Delaware, 25
percent of the problem.
Whereas the Senator from Delaware would simply make it more difficult
to get into Federal court if you are a State court prisoner, we say you
cannot. As Federal legislators, what we can do something about, the
Federal court, we do something. We say you cannot go there. It is up to
the States to deal with the rest of the problem which is before them.
Finally, Mr. President, the Senator from Delaware made a point with
respect to Senator Inhofe's presentation, and it was a valid point. But
I think it makes a point too far, or one point too much.
The Senator from Delaware said it is doubtful that Senator Inhofe's
constituents understand the difference between the Hatch and Kyl
amendment, and mentions a lot of lawyers could not identify the
difference. He is correct. I do not believe that makes the case.
It is true we have to be careful about what we do here. It is also
true that [[Page S7834]] while the common citizen may not understand
the technicalities, the legalities, even the word habeas corpus coming
from Latin, the common citizen does understand when something is
broken. And the Senator from Delaware made an eloquent case for the
proposition that something is drastically broken when people can stay
on death row as long as they do.
The Senator from Oklahoma made the same point, 16 or 17 years, with
the average being over 9 years. The system is drastically broken. It
does not take a lawyer to figure that out.
Mr. President, let me conclude at this point that the ordinary man
may not understand all of the technicalities we are talking about, but
he knows something is broken here. The fix in my case is quite simple.
Federal prisoners go to Federal court, State prisoners go to State
court with an ultimate appeal to the U.S. Supreme Court, but State
prisoners do not get the extra bites of the apple in the Federal court.
It is a simple solution.
The solution in the bill and the solution of the Senator from
Delaware is much more complex. We will impose some limitations on how
you get into the Federal court. That does not stop you from getting in
the Federal court. So if you want to solve between 25 and 40 percent of
the problem, voting for the Kyl amendment will definitely do that.
It has been held as constitutional. It is supported by Judge Bork and
by many others. I submit it would be a good addition to this bill. I am
happy to yield to the Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I ask the distinguished Senator from
Delaware to yield.
Mr. HATCH. Mr. President, I believe the Senator from Delaware needs
his remaining 4 minutes. How much time does the Senator need?
Mr. SPECTER. I shall be brief, holding to 5 minutes.
Mr. HATCH. I ask unanimous consent that the Senator be granted 5
minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. Mr. President, I am opposed to the amendment by the
distinguished Senator from Arizona. At the outset, I acknowledge his
experience in the field. But it is my view that Federal review of State
criminal convictions, especially in capital cases, is very, very
important in order to guarantee appropriate constitutional safeguards.
I believe the death penalty is an effective deterrent against crimes
of violence. I spoke earlier about my own experience as a district
attorney of Philadelphia, and before that as an assistant district
attorney where I tried murder cases. My thought is that it discourages
many professional robbers and burglars from carrying weapons because of
concern that a killing might result and they would face the possibility
of first-degree murder and the death penalty.
I believe that it is very, very important, Mr. President, if we are
to retain the death penalty, we have to use it very, very carefully.
There are some 37 States which favor the death penalty. Thirteen
jurisdictions in the United States oppose it. It took many years to
bring back the death penalty on the Federal level, having achieved that
only last year.
The news from South Africa is they have abolished the death penalty.
The death penalty is not in use in many jurisdictions, in many nations.
I think it is very, very important to retain the death penalty as an
effective weapon. Therefore we have to use it very, very carefully.
I have objections to the pending amendment both on constitutional
grounds and on public policy grounds. I am well away of the contention
that there is constitutional support to it. Frankly, I doubt that the
constitutional support would stand up.
When we are dealing with the question of jurisdiction of the Federal
courts to entertain questions on Federal issues, on constitutional
issues, I believe it is necessary that the Federal courts retain that
jurisdiction as a constitutional matter.
I am aware of ex parte McCardle and aware of the distinctions on
habeas corpus where there is supposedly an adequate State habeas corpus
remedy. When someone comes into the Federal courts on habeas corpus,
especially in a capital case, and makes an assertion of denial of
actual rights on privilege against self-incrimination or coerced
confession or ineffective counsel or absence of counsel or search and
seizure issues, I believe it is necessary as a constitutional matter
that the Federal courts retain that kind of jurisdiction.
In our Judiciary Committee hearings, this is a question which I
frequently ask the nominees as to whether they believe the Congress has
the authority to take away jurisdiction on constitutional issues from
the Federal courts. It is too lengthy a subject to discuss at any
length today.
Beyond the constitutional issue is a matter of public policy. I think
it is very important to have the kind of detached, objective review
that the Federal courts give.
In many of our States we have elected judges. I think that is, in
some circumstances, perhaps in many circumstances, an impediment to the
kind of review we have by judges who have life tenure.
I recall reading for the first time in law school the case of Brown
versus Mississippi, 1936, a decision by the Supreme Court of the United
States saying that the due process clause which limited State action
warranted the Supreme Court of the United States to reverse a
conviction in a State court in a capital case. Without reciting the
case of Brown versus Mississippi and the horrendous facts there, it was
not until 1936 that the Supreme Court of this country intervened in a
State criminal matter to say that it violated the U.S. Constitution.
The Federal courts have been providing the safeguards on
constitutional rights significantly through Federal habeas corpus. I
believe that has to be maintained. In urging the adoption of the
Specter-Hatch amendment, our amendment really goes to the issue of
curtailing the time.
Some might say that it is a restriction on defendant's rights. I
think, actually, it is not, for reasons I stated earlier, on the
challenge to cruel and barbarous treatment, keeping someone on death
row for a protracted period of time.
The international court I referred to earlier this morning, refused
an extradition from England to Virginia, because Virginia kept
prisoners on death row for 6 to 8 years, which was deemed a violation
of cruel and barbarous treatment.
I think, Mr. President, on constitutional grounds and on public
policy grounds we ought not to restrict the jurisdictions of the
Federal courts.
Accordingly, I urge my colleagues to oppose this amendment. I yield
the floor.
Mr. KYL. Mr. President I appreciate the remarks of the Senator from
Pennsylvania. He makes some good points that I would like to respond
to, but at this point I would like to ask unanimous consent that the
Senator from Mississippi be allotted the same amount of time that the
Senator from Pennsylvania spoke on, so that I may utilize the remaining
amount of my time to close the debate.
The PRESIDING OFFICER (Mr. Inhofe) Without objection, it is so
ordered.
Mr. LOTT. Mr. President, I thank the distinguished Senator from
Arizona for letting me have this time and for his effort on this
amendment. I certainly am pleased to support it because I think it
really does what needs to be done in this area of habeas corpus,
because it provides that when a State--State--provides adequate and
effective remedies for considering prisoners' claims, there is simply
no basis for allowing additional rounds of litigation on the same
claims in the lower Federal courts.
I am not a constitutional expert. But let me just read what Judge
Robert Bork has said about this particular amendment. He says:

[This] . . . amendment to the anti-terrorism bill to stop
the abuse of federal collateral remedies is an excellent and
much-needed reform. . . . There is no doubt about the
constitutionality of the provision you propose. . . . Nor is
there any doubt about the need for [the] amendment. . . .
[The] amendment is a sorely needed reform to a situation that
is now out of hand.

Again, I am not a constitutional expert and I know when we have bills
like this the lawyers descend on the floor and start arguing. There are
very good merits on both sides. But let me just say what I hear from
the American people when I go to my State and other
[[Page S7835]] States. They think there is horrible abuse in this area.
They think these endless appeals are totally out of control and that it
should be cut back and cut back significantly.
I want to emphasize, this does still allow for the Supreme Court to
be involved. But how many rounds are we going to have? The American
people understand how this system is being abused. That is what is so
applicable in this case. If we have a process whereby the people who
were involved in the bombing in Oklahoma City are found, apprehended,
indicted, convicted and sentenced, if you will, perhaps to death, and
then we go through a long, protracted process of appeals through the
State courts, appeals through the Federal courts, the American people
are going to be even more horrified at our judicial system in America.
They are looking now at the Simpson trial and wondering what have we
wrought? This is one small step in the right direction.
Under current law, habeas corpus claims that are rejected after
thorough consideration in the State courts are readjudicated in the
lower Federal courts. It is duplicative review in the Federal courts
and it is needless and time consuming. The habeas corpus provision in
S. 735 reduces this redundancy, but it does not eliminate it.
I commend the Senator from Utah, Senator Hatch, for the good work he
has been doing in this area for years. Finally he has brought this
issue almost to a climax. But I think now Senator Kyl will go one step
further and that will really help in dealing with this problem of
abuse, delay, and repetitive litigation in the lower courts, the State
courts, and the Federal courts.
Under current law, criminal defendants in the State present their
claims at their trials, in State court appeals, in State collateral
proceedings, and in applications for review by State supreme courts and
then by the U.S. Supreme Court. After exhausting these State remedies,
prisoners can then go back and initiate additional rounds of litigation
through the habeas corpus proceedings in the lower Federal courts,
presenting the same claims that have already been raised and decided in
State court review. As a result of this redundant review, the criminal
justice system in the United States really now is plagued with problems
of delay and abuse.
We talked about, I guess it was, cruel and inhuman punishment in the
past. The Supreme Court addressed the question of people staying in
jails awaiting final conclusion of their trials or convictions, and
that was ruled as being wrong. What about the fact that many of them
now sit on death row for years and years with access to libraries and
computers and everything they could possibly need so they continue to
drag out this process? There has to be an end to it.
The habeas corpus provisions in the bill, S. 735, do moderate the
redundancy of the current situation through the time limits on Federal
habeas filings, stricter limits on the repetitive habeas filings, and
more deferential standards of review. But they do not address the
underlying problem of pointless readjudication in the lower Federal
courts. The Kyl amendment addresses the root cause of the existing
problems of delay and abuse by eliminating these habeas corpus reviews
of the State judgments.
I think we have seen where this has been changed in the District of
Columbia. That has worked quite well. The experience here in DC
demonstrates that the rights of defendants can effectively be protected
without the redundancy of these habeas corpus reviews in the lower
Federal courts. This amendment, as I understand it, would extend those
benefits to all the other States.
Punishment is intended to be a deterrent to heinous crime. Under the
present system, however, many killers do not fear the punishment
because they know of the delays that will be involved. The Kyl
amendment addresses this problem, and I commend him for his efforts. I
certainly support this amendment.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. BIDEN. Mr. President, I yield myself the remainder of the time.
Let me respond quickly to my friend's comment in response to what I
had said.
First of all, he said this is about winning freedom. This is not
about winning freedom. Habeas corpus is granted--no freedom. It means a
new trial.
He points out very forthrightly that he attempts to prevent folks
from going to Federal court except as it relates to being able to go to
the Supreme Court. It is not the Supreme Court's job to take a detailed
look at every State court conviction. It is for the Supreme Court to
decide weighty issues of Federal constitutional law. That is why we
have Federal courts and that is why my committee spends so much time, a
significant portion of it, considering the nomination of Federal
judges. Our system depends on Federal courts, all the Federal courts,
being the safeguarders of Federal law.
Let us just put this in very practical terms. Let us assume he is
right, the State courts are fully capable and do not need any Federal
review. What you end up with is as many as 50 different interpretations
of the Federal Constitution; 50 different ways in which 50 different
States could interpret whether or not a constitutional right has been
denied or not denied. Just from a very practical standpoint that is not
good policy. Whereas, when you have the appeal to the Federal court
system, that becomes the law, the law of the land governing all 50
States.
I also point out that the State--as the Senator said: Look, we allow
folks who are convicted in State court to go to State courts for their
appeal and folks convicted in Federal court to go to the Federal courts
for their habeas corpus petitions. The problem is that Federal court
judges are trained in their experiences in interpreting the Federal
Constitution. State courts hardly deal with the Federal Constitution.
They deal with the State constitutions. We should have the people who
are trained and experienced in interpreting the Federal law relative to
the Federal Constitution being able to determine whether there has been
a violation of that Federal law or, in this case, the Federal
Constitution.
Last, Justice Powell, I am confident--and I am willing to bet; you
are not allowed to bet on the floor--but figuratively speaking, I would
be willing to bet him dinner at any restaurant in America that Justice
Powell does not support his amendment. I can say that with certainty
because Justice Powell's commission came forward with an explicit
guarantee that there would be access to Federal courts; an explicit
guarantee. They made it absolutely clear that it is essential there be
access to the Federal courts. I do not doubt that Judge Bork would
support this, I do not doubt that at all. In fact, I am certain he
would and we should all keep that in mind.
So I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. How much time remains?
The PRESIDING OFFICER. The Senator from Arizona has 6 minutes. The
Senator from Delaware has 1 minute 1 second.
Mr. HATCH. Mr. President, I ask both sides to allow me to have a few
minutes just to make--I ask unanimous consent I be given a few minutes
just to make some short comments.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, I have listened to this debate and I really
want to compliment the distinguished Senator from Arizona. I think this
has been one of the most spirited parts of this whole debate on the
habeas corpus provisions of the bill. I deeply appreciate, of course,
the frustration some have with the Federal court's micromanagement of
State court decisions. Indeed, I think the abuses of Federal habeas
corpus practice fuel the desire to remove the Federal courts altogether
from the review process. The Kyl amendment would effectively end
Federal habeas review of State convictions where the State already has
postconviction collateral review. And I can appreciate my colleague's
willingness to address the gross abuse that currently occurs under our
Federal habeas process. We are all sick of it. Something has to be
done.
Senator Kyl's amendment would return habeas review to its original
moorings, as a corrective process where no other real remedy exists.
And it deserves consideration. [[Page S7836]]
In the early history of this country, habeas review was not available
at common law to review by any other court a conviction of a felony
entered by a court of competent jurisdiction. The function of the writ
was to free people who had been imprisoned illegally. Let us understand
what I am saying. The constitutional great writ is preconviction.
That is the Constitution writ. The writ of habeas corpus we are
talking about is postconviction, and it is a statutory writ that can be
changed readily by the Congress of the United States. Senator Kyl has
cogently pointed out that that is exactly what it is. The writ is
guaranteed against suspension by the Constitution. The earlier great
writ was well understood to refer to habeas for Federal prisoners, only
Federal prisoners. The Kyl amendment appreciates the history of the
writ and attempts to return it to its original understanding. He has
argued that nobly and well.
I think the proposal of the Senator from Arizona deserves close
scrutiny, and he should be complimented for his efforts to address this
difficult problem. I have to say that I believe there needs to be
postconviction habeas corpus review. But I also believe that the
Senator makes a very strong point because, as a lot of people do not
know, the District of Columbia has done away with postconviction habeas
corpus review, collateral review. And it has worked very well in the
District of Columbia. All the Senator is saying perhaps is that we
should consider doing that for the country as a whole.
So I just wanted to make these few short comments. I have to say that
I compliment my friend and colleague from Arizona for his intelligence
on this issue, and for the very, very spirited debate that we have had
here on this. I want to express that for all concerned.
The PRESIDING OFFICER. Who yields time?
Mr. KYL addressed the Chair.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, I would like to use the remainder of my time
and close the debate, if there are no others who wish to speak.
Mr. President, first of all, let me compliment the Senator from
Delaware who has conducted a very intelligent and thoughtful debate. I
appreciate that. I very much appreciate the comments of the Senator
from Utah just now. It is only because of his tenacity that this issue
is before us. As he said, he has been fighting this issue for years to
try to bring some reform to the Senate and was able to do that finally
in the bill that he brought to the Senate floor. I appreciate very much
his efforts.
I also appreciate the comments he just made. He is exactly correct in
describing my amendment as an attempt to return the habeas petition to
its original meaning. There is a statutory postconviction remedy, as he
points out. I believe he is very familiar, as a matter of fact, with
Congress' law of 25 years ago under which the District of Columbia uses
a purely quasi-State court system for the review of its writs and does
not allow prisoners to go into the Federal system, a system which has
worked very well and which we have been invited to consider as a result
by Federal judges who have written on the subject.
Let me also address briefly two points, one made by the Senator from
Pennsylvania, and one by the Senator from Delaware. The Senator from
Pennsylvania questioned the constitutionality of what we are doing
here. I understand the point he was making. But I do not think that the
constitutionality of what we are proposing here is in doubt. The U.S.
Supreme Court has upheld this procedure unanimously in a 1977 opinion,
Swain versus Pressley. The opinion was written by Justice Stevens. That
was--to use the phrase--``bandied about'' a fairly liberal court in
1977. Subsequently, the Federal courts have consistently held that the
remedy provided in this District of Columbia court system, which does
not permit a Federal writ of habeas corpus, is adequate and effective
to test the legality of detention.
Among the cases are, for example, Garris versus Lindsay in 1986, a
D.C. Circuit Court case, and Saleh versus Braxton, a District of
Columbia District Court case in 1992. So consistently the courts have
upheld, and I also cited the U.S. Supreme Court decision upholding the
constitutionality, as well.
The Senator from Delaware argued finally that there could be 50
different interpretations of the constitutional law, if the State court
prisoners are relegated only to a State court habeas remedy. With all
due respect, I do not think that is correct because, as we all know,
those of us who are constitutional lawyers anyway, the U.S. Supreme
Court precedents must be followed when State supreme courts--or as in
New York's case, it is called the court of appeals, or the circuit
courts--are adjudicating constitutional questions, they must follow
U.S. Supreme Court precedents.
Therefore, it is not possible for there to be 50 different
interpretations of Federal law by State supreme courts unless those
courts are dealing in bad faith, and I am sure that no one is
suggesting that is the case. It has always been the case that under our
Constitution, the Framers contemplated that State courts would be
making these interpretations. As a matter of fact, there is an
interesting book by Curt Sneideker who writes to this point. He said
that in our judicial system it has been understood from the very
beginning that State courts could pass on Federal questions. And, by
the way, he cites Federalist Papers No. 82 for that proposition.
Indeed, the Constitution itself expressly directs them to do so in
article VI, clause 2.
So very clearly, the State courts have always been thought of as a
place where Federal constitutional issues could be resolved. As I noted
earlier, Justice Powell has made a very convincing case, and he is not
the only one. But he specifically has made a convincing case that the
State courts have the competence to rule on these issues.
Mr. President, just in summary, again I compliment both managers of
this bill for the very intelligent way in which they have approached
this issue. I appreciate the opportunity to debate my amendment in this
way, and I will simply say that in summary, what I am trying to do with
my amendment is to ensure that there is an adequate remedy for all
habeas petitions for both Federal and State court prisoners, Federal
prisoners in the Federal system, State court prisoners in the State
court system, but to limit State court systems to the State just as
Federal writs are limited to the Federal system.
The only exception which we could not take away, even if we tried--
and, of course, we do not want to--even in the State court system,
prisoners have the ability to go to the U.S. Supreme Court, the
ultimate Federal court, to test the propriety of the final decision of
the State court, in most cases called the State supreme court. So there
is adequate ability to protect the constitutional rights of both State
and Federal prisoners.
My amendment simply helps to solve this problem of overburdened
Federal courts by taking out of the Federal courts somewhere between 25
and 40 percent perhaps of the cases that are currently adjudicated not
only in State courts but in a duplicative way in the Federal courts, as
well.
I urge that my colleagues support my amendment.
Mr. BIDEN. Mr. President, do I have any time left?
The PRESIDING OFFICER. The Senator from Delaware has 1 minute and 19
seconds.
Mr. BIDEN. Mr. President, my staff pointed out to me, as I sat down
when I said we should keep that in mind, I said in jest that we should
keep that in mind, my reference was to Judge Bork. I believe Powell
does not support this, the Powell Commission would not support this,
and that Justice Bork would. We should keep in mind the distinction.
But I would also like to point out, as my staff pointed out to me, in
Wright versus West, the Supreme Court case decided a couple of years
ago, where the Bush administration sought to ask the Supreme Court to
rule on the standard of full and fair, which is what Senator Kyl is
proposing, Justice Rehnquist, from his home State of Arizona, refused
to adopt the standard that Senator Kyl is proposing. He is certainly no
liberal. He refused to adopt the standard and insisted that there be
access to the lower Federal courts. [[Page S7837]]
But I thank my colleagues for their indulgence.
I yield the remainder of my time.
Mr. KYL. Mr. President, let me again compliment both managers of the
bill. I think this has been a good debate. I reiterate my amendment
simply restricts the State court prisoners to the Start court as
prisoners until they are able to go the to U.S. Supreme Court. I
believe this will significantly reduce the number of duplicative
appeals. That is what this is all about on the habeas corpus reform, to
strengthen the bill. In any event, I reiterate that this is a good bill
that we should all support.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Utah.
Mr. HATCH. Mr. President, I compliment both Senator Kyl and Senator
Biden. Both have presented very interesting and good arguments. They
both deserve being listened to.
Mr. President, I ask unanimous consent that the vote on the Kyl
amendment be at a time to be determined by the majority leader, after
consultation with the minority leader.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. Mr. President, do we first have to ask for the yeas and
nays?
Mr. HATCH. Yes. I ask for the yeas and nays on the Kyl amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Ms. SNOWE. Mr. President, I would like to join my colleagues in
supporting S. 735, the Comprehensive Terrorism Prevention Act. This
legislation contains a broad range of needed changes in law to enhance
our country's ability to combat terrorism, both at home and from
abroad. The managers of this bill have described its provisions in some
detail, so I will not repeat their comments. Briefly, however, this
bill would increase penalties: for conspiracies involving explosives,
for terrorist conspiracies, for terrorist crimes, for transferring
explosives, for using explosives, and for other crimes related to
terrorist acts.
The bill also contains habeas corpus reform to curb the abuse of
habeas corpus and to address the acute problems of unnecessary delay
and abuse in death penalty cases. The bill also includes provisions to
combat international terrorism, to remove aliens, to control
fundraising for foreign terrorists, and procedural changes to
strengthen our counterterrorism laws. Among those strengthening laws
are a requirement to use chemical tagging in plastic explosives, to
criminalize a threat to use a weapon of mass destruction, and to add
conspiracy crime to certain terrorism offenses.
Finally, the bill authorized increased funding for Federal law
enforcement agencies, providing $1.5 billion over 5 years for the FBI,
DEA, assistant U.S. attorneys, the INS, and the U.S. Customs Service.
Mr. President, I would like to concentrate the remainder of my
comments of two provisions of mine that are included in this bill with
the assistance of the chairman of the Judiciary Committee, Senator
Hatch, and our distinguished majority leader, Senator Dole. These two
provisions are the Terrorist Exclusion Act and the Law Enforcement and
Intelligence Sources Protection Act, both of which I have introduced
separately this session of Congress.
Traditionally, Americans have thought of terrorism as primarily a
European, Middle Eastern, or Latin American problem. While Americans
abroad or U.S. diplomatic facilities have been targets, Americans have
often considered the United States itself largely immune from acts of
terrorism. Two events have changed this sense of safety. The first was
the international terrorist attack of February 26, 1993, against the
New York World Trade Center, and the second was the shocking domestic
terrorist attack this April 19 against the Federal building in Oklahoma
City.
I first introduced the Terrorist Exclusion Act in the House 2 years
ago, and this year I have reintroduced the legislation in the Senate
with Senator Brown as my original cosponsor. The Terrorist Exclusion
Act will close a dangerous loophole in our visa laws which was opened
up in the Immigration Reform Act of 1990. That bill eliminated then-
existing authority to deny a U.S. visa to a known member of a violent
terrorist organization.
The new standards required knowledge that the individual had
personally been involved in a past terrorist act or was coming to the
United States to conduct such an act. This provision will restore the
previous standard allowing denial of a U.S. visa for membership in a
terrorist group.
The elimination of authority to exclude a foreigner from the United
States for mere membership in a terrorist group happened in the context
of Congress' rewrite of the old McCarran-Walter's Act. The McCarran-
Walter's Act contained a wide range of visa exclusions for ideological
or associational reasons. But in narrowly refocusing all visa
exclusions on personal acts, it perhaps inadvertently treated
foreigners who join violent terrorist organizations no differently than
if they had merely joined a political club, or fraternal order. This
removed a valuable tool for protecting American lives. In my view, and
I am sure the view of the vast majority of Americans, there is a
difference.
I discovered this dangerous weakness in our visa laws in early 1993
during my investigation of the State Department failures that allowed
the radical Egyptian cleric, Sheikh Omar Abdel Rahman, to travel to and
reside in the United States since 1990. I undertook this investigation
in my role as ranking Republican of the House International Operations
Subcommittee, which has jurisdiction over terrorism issues, a role I
have continued in the Senate as chair of the International Operations
Subcommittee of the Foreign Relations Committee.
Sheikh Rahman is the spiritual leader of Egypt's terrorist
organization, the Islamic Group. His followers have been convicted for
the 1993 bombing of the World Trade Center in New York, and the sheikh
himself is now on trial for his alleged role in planting and approving
a second wave of terrorist acts in the New York City area.
The significance of Sheikh Abdel Rahman is that he was clearly
excludable from the United States under the old pre-1990 law, but the
legal authority to exclude him ended with enactment of the Immigration
Reform Act that year. He was admitted to this country through an
amazing series of bureaucratic blunders.
But then, the 1990 law came into effect, and the State Department was
forced to try to deport him on the grounds that he once bounced a check
in Egypt and had more than one wife, rather than the fact that he was
the known spiritual leader of a violent terrorist organization. This
was before the World Trade Center bombing.
A high-ranking State Department official informed my staff during my
investigation that if Sheikh Abdel Rahman had tried to enter after the
1990 law went into affect, they would have had no legal authority to
exclude him from the United States because they had no proof that he
had ever personally committed a terrorist act, despite the fact that
his followers were known to have been involved in the assassination of
Anwar Sadat.
The urgency of passing this provision comes from the sad truth that
every day American lives continue to be put at risk out of deference to
some imagined first amendment rights of foreign terrorists. This is an
extreme misinterpretation of our cherished Bill of Rights, which the
Founders of our Nation intended to protect the liberties of all
Americans.
In my reading of the U.S. Constitution I see much about the
protection of the safety and welfare of Americans, but nothing about
protecting the rights of foreign terrorists to travel freely to the
United States whenever they choose.
The second of my bills contained in S. 735 is the Law Enforcement and
Intelligence Sources Protection Act. This legislation would
significantly increase the ability of law enforcement and intelligence
agencies to share information with the State Department for the purpose
of denying visas to known terrorists, drug traffickers, and others
involved in international criminal activity.
This provision would permit denials of U.S. visas to be made without
a detailed written explanation for individuals who are excluded for law
enforcement reasons, which current law requires. These denials could be
made [[Page S7838]] citing U.S. law generically, without further
clarification or amplification. Individuals denied visas due to the
suspicion that they are intending to immigrate would still have to be
informed that this is the basis, to allow such an individual to compile
additional information that may change that determination.
Under a provision of the Immigration and Nationality Act [INA], a
precise written justification, citing the specific provision of law, is
required for every alien denied a U.S. visa. This requirement was
inserted into the INA out of the belief that every non-American denied
a U.S. visa for any reason had the right to know the precise grounds
under which the visa was denied, even if it was for terrorist activity,
narcotics trafficking, or other illegal acts. This has impeded the
willingness of law enforcement and intelligence agencies to share with
the State Department the names of excludable aliens.
These agencies are logically concerned about impeding an
investigation or revealing sources and methods if they submit a name of
a person they know to be a terrorist or criminal--but who we do not
want to know that we know about their activities--who then goes on the
lookout list, is denied a visa, and then is informed in writing that he
or she was denied a visa because of known drug trafficking activity.
That drug trafficker then will know that the DEA knows about his or her
illegal activity and may be developing a criminal case. This
information is something the United States would want to protect, until
the case against is completed and, hopefully, some law enforcement
action is taken. At the same time, however, for the protection of the
American people we should also make this information available to the
Department of State to keep the individual out of our country.
The key issue is that travel to the United States by noncitizens is a
privilege, not a constitutional right. There is no fundamental right
for extensive due process in visa decisions by our consular officers
overseas. While I believe that our country should do what we can to be
fair in our treatment of would-be visitors to the United States, in
cases where providing information to an alien would harm our own
national security, complicate potential criminal cases or potentially
reveal sources and methods of intelligence gathering, we should err on
the side of protecting Americans, not the convenience of foreign
nationals.
Mr. President, I again congratulate Senator Dole, Senator Hatch, and
all of my other colleagues--on both sides of the aisle--who have been
instrumental in bringing this comprehensive counterterrorism bill to
the Senate floor for swift action. This is an example of our capacity
to act quickly on a bipartisan basis and in cooperation with the
administration on critical issues. It is my hope that this bill is an
example of what we can accomplish together in this body, and I hope we
will continue to approach issues important to the future of our Nation
in this manner.
I urge adoption of the bill.
Mr. HATCH. I now ask that the Kyl amendment be laid aside and the
Senator from Delaware be recognized to offer the last amendment to this
bill as soon as we have a quorum call.
Mr. President, I suggest the absence of a quorum.
Mr. DOLE addressed the Chair.
The PRESIDING OFFICER. The distinguished majority leader is
recognized.
Mr. DOLE. Mr. President, what is the pending business? Are we on the
final amendment?
The PRESIDING OFFICER. The Chair would observe we just dispensed with
the Kyl amendment. There is no pending amendment at this time.
Mr. DOLE. Is there a time agreement on the Biden amendment?
Mr. HATCH. Mr. President, I ask unanimous consent that the amendment
of the distinguished Senator from Arizona be laid aside; that as soon
as the distinguished majority leader is finished, we can move to the
final amendment, the Biden amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DOLE. How much time is the Biden amendment?
Mr. HATCH. Mr. President, I ask unanimous consent that there be 90
minutes equally divided between Senator Biden and myself.
Mr. COHEN. Reserving the right to object, I might indicate to the
Senator from Utah that Senator Biden indicated he will allow me to have
an additional 15 minutes separate and apart from this agreement.
Mr. HATCH. Let us make it 105 minutes with 45 minutes----
Mr. DOLE. I have a better idea. Why not the Senator from Utah give
him 15 minutes of his 45.
Mr. HATCH. That will be fine.
Mr. COHEN. I do not want to take the time of Senator Hatch.
Mr. DOLE. We want to finish this bill.
Mr. HATCH. That is fine with me. Half-hour to me, an hour to Senator
Biden.
The PRESIDING OFFICER. Is there objection? Does the Senator from
Maine object?
Mr. COHEN. No.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DOLE. Mr. President, then it would appear to me that we are not
going to finish this bill until after 5 o'clock. But we will take up
the telecommunications bill. We will be here late because we have
frittered away the afternoon here. We hoped to conclude action on this
bill by 1 o'clock. It is now 3:30, and it is going to be 5 or 6
o'clock. So we do not have any recourse because Senator Pressler and
Senator Hollings have been waiting all day long to take up the
telecommunications bill, and there will be votes and there will be
amendments probably until 10 or 11 o'clock tonight. So if we can
finish, whenever we finish this bill, we will be on the
telecommunications bill.
I understand the Senator from Delaware is now prepared to offer his
amendment, which will be the final amendment.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I see the distinguished Senator from Maine
is prepared to speak and utilize his 15 minutes.
Mr. COHEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Maine.
Mr. COHEN. Mr. President, first let me thank the Senator from Utah
for allowing me to use 15 minutes of his time. I will try and cut it
down if I can, because I do not want to trespass on his time,
especially since I am going to be speaking in opposition to his
position. So it is kind generosity on his part, superimposed by the
majority leader, I might add, but nonetheless I appreciate it.
Mr. President, I have in my past life been both a prosecutor and
defense counsel. I believe firmly that some reform of habeas corpus is
necessary. Successive and repetitive petitions, appeals and Supreme
Court reviews have led to excessive delays and imposed costs on State
prosecutors' offices that otherwise would be dedicated to law
enforcement. I think these delays have rightly been perceived by the
American people as an abuse of the judicial process by those opposed to
the death penalty.
I also want to point out that I oppose the death penalty, but I
cannot support a system that allows respect for the law to be
undermined. Consequently, I believe many of the procedural reforms
contained in S. 735 are appropriate and necessary.
I support limits on successive, repetitive petitions. I support a
statute of limitations for filing habeas petitions. And I support time
limits on judicial consideration of habeas cases. I think these reforms
should be sufficient to eliminate the abuses of the habeas system that
have led to decade-long delays in many capital cases.
But the goal of habeas corpus reform ought to be that prisoners have
one complete bite at the apple.
The bill before the Senate gives prisoners one bite at the apple but
changes the law so that the bite is incomplete. It weakens the
standards under which Federal courts review constitutional errors that
take place in State courts by requiring a Federal court to defer to a
State court's reasonable interpretation and application of
constitutional law.
By weakening the effectiveness of the writ in this way, I think it is
going to erode what has been a cherished procedure over the centuries,
the hallmark [[Page S7839]] of Anglo-American jurisprudence. The writ
of habeas corpus is the last line of defense for constitutional rights.
An effective habeas remedy is especially necessary in modern times
because of the poor caliber of legal representation capital defendants
are being provided in capital trials.
Many of the States that produce a large number of capital cases have
no minimum competency standards for defense counsel. One State limits
the compensation for court-appointed counsel to $1,000 for all pretrial
preparation and trial proceedings--I repeat, $1,000 for all pretrial
preparation and trial proceedings.
Another State pays a maximum of $2,500. A survey by the Mississippi
Trial Lawyers Association estimated that the average capital defense
attorney is compensated at a rate of $11.75 an hour, just 2\1/2\ times
the minimum wage.
There are reported cases of trial counsel sleeping during trial, not
presenting any mitigating evidence during the penalty phase of the
trial, having only 6 months of legal experience and no criminal trial
experience, or filing a one-page brief on appeal.
In one of his last opinions from the bench, Justice Blackmun listed
six egregious examples of the poor representation many capital
defendants receive. One case Justice Blackmun described was that
involving John Young, who was represented in his capital trial by an
attorney who was addicted to drugs and who a few weeks after the trial
was incarcerated on Federal drug charges. The court of appeals of the
eleventh circuit rejected Young's ineffective assistance of counsel
claim on Federal habeas review and the Supreme Court denied certiorari.
Young was executed in 1985.
In another case, Larry Heath was represented on direct appeal by
counsel who filed a six-page brief before the Alabama Court of Criminal
Appeals. The attorney failed to appear for the oral argument before the
Alabama Supreme Court and filed a brief in that court containing a one-
page argument and citing a single case. The eleventh circuit found no
prejudice, and the Supreme Court denied review. He was executed in
1992.
The bill before the Senate does nothing to remedy the serious problem
of incompetent counsel in State court capital cases. But in light of
this, I think the Biden amendment is all the more imperative to
maintain the effectiveness of habeas under these circumstances. When
trial counsel has done little to protect a capital defendant's
constitutional rights at trial, at the very least, it seems to me the
Federal Government ought to provide effective Federal court review of
the State court conviction and sentence to ensure that the core
constitutional requirements have been satisfied.
Mr. President, I think Senator Biden has already talked at some
length about the case of Rubin ``Hurricane'' Carter. I read a book that
was written some time ago called ``The 16th Round.'' In ``The 16th
Round,'' we have a description of what happened to Rubin ``Hurricane''
Carter, the one time the middleweight prizefighter. It was not a death
penalty case, but it was a case of an innocent man being convicted for
a crime he did not commit, primarily because he was a black man who was
in the vicinity when a triple murder was committed.
It was way back in June 1966. Two light-skinned black men, one
described as thin, about 5 feet 11 inches, shot and killed three people
in a Paterson, NJ bar. Carter, a very dark-skinned, stocky,
prizefighter, 5 feet 8 inches tall, was driving in the vicinity with
two other people. They were stopped by the police and then released
because they did not match the description of the killers. Later that
night, Carter and a man named John Artis were again picked up by the
police, but the survivor of the shooting failed to identify them as the
killers. They were given lie detector tests and they passed.
In the meantime, a small-time thief who was robbing a factory nearby
the murder site told the police he had seen the commission of the
crimes, and in an attempt to curry favor with the police, he told them
Rubin ``Hurricane'' Carter was the killer.
Based on that information, Carter and Artis were tried, convicted,
and sentenced. Carter himself was sentenced to life in prison.
Ten years later, after the thief recanted his trial testimony, Carter
and Artis were given new trials. Then at the time of trial the thief
recanted his recantation. Carter and Artis were convicted again. The
New Jersey Supreme Court affirmed Carter's conviction by a vote of 4-3.
Then a habeas corpus petition was filed in Federal court. In 1985,
the court issued an opinion finding two serious constitutional
violations: The prosecutor's misuse of a lie detector test and the
denial of equal protection due to the prosecutor's unfounded racial
allegations against the defendants. The prosecution argued that the
defendants were simply out to murder white people when, in fact, the
evidence was that they both had many white friends.
The third circuit upheld the lower court's decision to grant the
petition. The Supreme Court denied certiorari. And the State of New
Jersey finally dismissed the indictment.
Here we have a situation where a person spent over 20 years in prison
over charges that were false. The attorney for Mr. Carter has written
to Senator Hatch to point out that if a proposal similar to the one on
the floor right now were law today, Carter's habeas corpus petition
would have been dismissed. He said, ``I do not see what legitimate
criminal justice purpose would be achieved by such a result.''
Indeed, the 16th round never would have occurred. The 15th round
would have knocked Carter out for the rest of his life, without him
ever having a legitimate opportunity to challenge the injustice that
took place 20 years ago.
So let us not fool ourselves. The substantive changes to the habeas
bill being proposed are not designed just to eliminate frivolous cases.
They are designed to weaken the Federal courts' role in scrutinizing
State court verdicts for constitutional error. Prof. Henry Monaghan
from Columbia University said it very well in a letter to Senator
Hatch. He acknowledged that he is ``no fan of habeas corpus.'' But he
was satisfied that the changes in the Supreme Court law and the
procedural reforms in this bill ``would go a long way to eliminating
abuses.'' He went on to urge that the substantive standards not be
altered:

I believe the writ's core function of affording independent
Federal review to mixed questions of law and fact should be
retained and that the deference provision in S. 735 should be
withdrawn. The deference provision in S. 735 would keep
habeas corpus from serving any meaningful role. Effectively,
it would repeal the habeas corpus statute.

Similarly, a former State prosecutor recently wrote to me that the
``reasonableness'' rule of deference in this bill is not the way to
speed up habeas corpus review. It is not a way to prevent the same
prisoner from filing more than one petition. Rather, ``it is an
unprecedented attack on the rule, as old as the Republic, that Federal
courts have the last word on what the Federal Constitution means and
how it is to be applied. It would require Federal courts to stand by
and do nothing even if presented with a State court ruling that was
wrong, and the cause of the person being unjustly imprisoned or even
executed.''
So, Mr. President, I think it is important that those accused of
serious capital crimes have one complete bite at the apple. I believe
the Biden amendment will make sure that one bite is complete and not
incomplete. I hope that it will receive the endorsement of the Senate,
because habeas corpus without it will become a hollow remedy, one that
I do not think would be worthy of the title ``the Great Writ.''
A strong case has been made for the procedural reforms in this bill.
They will increase respect for the law by stopping the endless delays
and appeals of capital sentences. But no case has been made for
changing the substantive standards applicable in federal courts for
well over a century. When we are making such radical changes in our
legal system, we should act prudently. We can always cut back on habeas
in the future if the procedural reforms in this bill do not work. But
we may never recover the habeas process once it has been effectively
been repealed by the substantive changes being proposed.
I yield the floor.
Mr. BIDEN. Mr. President, I thank the Senator from Maine. The Senator
from Maine has a reputation in this [[Page S7840]] body of being one of
the most thoughtful, and when he speaks in debates, unlike the Senator
from Delaware, a most measured Senator, and one whose career has been
marked by observable high points of principle. And this is, I detect,
from his speech, a principled issue here. This is an important issue.
This is not one where we should, quite frankly, be guided by the
legitimate but sometimes not fully articulated concerns of our
constituents.
I believe what our constituents want is what the Senator from Maine
has outlined. I doubt whether there is a man or woman in America who
thinks that Hurricane Carter should not be free today. I doubt whether
there are any people in America today who would have been happy had
this been the law and had he been denied the opportunity to make that
final plea in Federal Court.
Yet, if we amend the law along the lines of the Biden amendment,
which Senator Cohen supports, we would have drastically cut down
frivolous appeals and drastically cut down successful appeals. As a
matter of fact, there is no difference in the time limitation for
filing an appeal and the number of successive appeals that are allowed
between what Senator Hatch wants and what we want. The big difference
in what the Senator from Maine and I are saying is the standard the
court is able to apply when the Federal court looks at, as Professor
Monaghan states, those mixed questions of fact and law. This would
essentially not allow them to look at fact, just theoretically the law.
So what I propose to do is precisely what Professor Monaghan, who is
not a fan of habeas corpus, wants done. Let us be real clear right from
the start here what we are arguing about and what we are not arguing
about. Again, as my old buddy Sid Balick, says, ``keep your eye on the
ball.'' What are we arguing about and what are we not arguing about? We
are not arguing about whether or not to speed up the process of habeas
corpus review, and we are not arguing about reducing the current abuses
in the system.
I agree with my Republican colleagues from Utah and Pennsylvania that
we have to have a strict statute of limitations and a strict limit on
successive petitions. Put another way, how many times after that first
one, or under what circumstance, can you file another petition if you
are able to at all. Nothing I am trying to do today, nothing in my
amendment would change what the Republicans propose for speeding things
up or cutting down on abuses. They have a 6-month statute of
limitations in their bill. I am not trying to make that 9 months or 1
year or 2 years. I am not proposing to change a single word in the
statute of limitations. As this chart up here shows, in the Biden
amendment the time limits for filing a petition are the same as in the
Specter-Hatch provision. We both set limits on time.
Nothing in my amendment, nothing at all, would change what the
Republicans propose for speeding things up or for cutting down on
abuses.
The Republicans have a new strict limit on successive petitions in
their bill. Many of my liberal friends think these restrictions are
excessive. I do not. I have not attempted to change a word. I have not
attempted to change a word on their bill relating to successive
petitions. Not a period, not a comma of their proposal is changed by my
amendment.
Put another way, at the end of the day, or the end of today, even if
I were to win everything I am asking for, the statutory right of habeas
corpus will be drastically altered from what it is today. No longer
will we see a guy filing petition after petition. No longer will my
friend from Utah, my distinguished friend from South Carolina, Senator
Thurmond, my friend from Pennsylvania, my new friend and colleague from
Oklahoma, be able to put up on a board or reference cases which are
real and exist today where someone has sat, after having been convicted
for a capital offense, on death row for 2, 5, 10, 12, 15, 16, or 19
years. That will not be possible if we adopt my amendment.
Now, usually, the Senator from Utah has a chart out here listing the
number of petitions in several cases. I am not making light of that.
When he brings out that chart, if he does in his response, I want
everyone to look at it and understand that if the Biden amendment
passes, that would be the end of charts like that.
There would no longer be an ability for a convicted prisoner,
convicted of a capital offense, to be able to file those successive
petitions and delay for the number of years the charts have always
shown.
I also point out that we will still have the problem of irresponsible
State courts who do not read briefs, who do not take the time to follow
through. I cannot affect that, nor can they. At a Federal level, we
will have eliminated the ability to have those successive petitions.
So let the Senate be clear on what we are not arguing about. What we
are arguing about is whether we should dismantle the habeas corpus
process by dramatically restricting the Federal power of the Federal
courts to decide whether a State court got it wrong, whether a State
court wrongly convicted a person, whether a State court is wrongly
sending a person to death. That is what we will be changing.
That is where I part company with my Republican friends. I want to
fix the problem. They want to do away with the right. I want to get a
habeas corpus petitioner in and out of Federal court quickly. I do not
want to make it practically impossible for him to get into Federal
court. I want to say you get in, and you must get in quickly, and you
can only get in under certain circumstances, and you are out. The
Republicans want to slam the door of the Federal courthouse closed.
I know there are a lot of things about Federal overreaching, but one
thing I do not think most Americans--whether they are liberal or
conservative, whether they are moderate, whether they are Republican or
Democrat--I do not think they believe that is a remedy, to slam the
Federal courthouse door. They do not want it swinging off its hinges,
but they do not want it slammed shut.
What I propose is--to be able to use this silly metaphor--to be able
to open the door once, walk through the door, and say, ``Federal
judges, experts on the Federal Constitution, listen to my plea. Make a
decision. If you decide against me, I'm out, but listen to it.''
As the Senator said, the lawyer for Hurricane Carter, and I suspect
everyone else would agree he would be a man in jail the rest of his
life were that door slammed shut, had it been slammed shut in the way I
believe this present bill does.
So that is what we are arguing about.

Amendment No. 1224

(Purpose: To amend the bill with respect to deleting the rule of
deference for habeas corpus)

Mr. BIDEN. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Delaware [Mr. Biden] proposes an amendment
numbered 1224.

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:

Delete page 105, line 3, through page 105, line 17.

Mr. BIDEN. Mr. President, let Members be clear about what we are
talking about.
A petition for habeas corpus--I want to complicate this--a petition
for habeas corpus is literally and simply a piece of paper on which a
State prisoner says, ``I have been denied my constitutional rights in
the following way,'' and takes that paper or has his lawyer take the
paper and file that in a Federal court.
In almost all instances, this is after his remedies have expired in a
State court system. The issue is whether he or she should be able to
file that in Federal court and under what circumstances.
The piece of paper that a habeas corpus petition is written on says
that the prisoner claims to be held or sentenced to death in violation
of the Federal Constitution, the U.S. Constitution. It does not ask
that the prisoner be released, but it does ask that he be given a new
trial.
Habeas corpus is the means by which Federal courts ensure that State
[[Page S7841]] courts are following the Constitution. It ensures that
those in jail or on death row were not only not put there mistakenly,
but that they were not put there in violation of the U.S. Constitution.
I might add, if we, in fact, eliminate Federal habeas corpus or in
effect eliminate Federal habeas corpus, what we do is we leave to 50
different States the potential for 50 different interpretations of fact
and law.
We all know if a Federal court makes a judgment on a Constitution in
a circuit or in a district, it usually goes to a circuit, and then to
the Supreme Court. We get a final national judgment on how to read that
provision and that fact/legal mixture under the Federal Constitution.
We have a uniform application of the law.
The writ of habeas corpus, known historically as the ``great writ,''
is enshrined in the Constitution itself, which provides that ``The writ
of habeas corpus shall not be suspended,'' article I, section 9.
Unfortunately, under the current system, guilty people can sometimes
delay their death sentences by filing frivolous habeas petitions. There
is no time limit on when the petition has to be filed, and there is no
statutory limit on the number of petitions.
I have, in years past, proposed legislation that would reform this
system to generally limit a petitioner to one petition in Federal
court, and to impose strict limits on when that petition had to be
filed. But my legislation also recognized in that one round of Federal
review, the prisoner is allowed and must be allowed a full and careful
review to ensure that we do not execute innocent people.
The death sentence is unlike any other. There is no turning back once
it has been carried out; to state the obvious, a mistake cannot be
fixed. Because of that, we cannot allow the death penalty to be used
against innocent people and we cannot allow it to be carried out
unfairly.
I am certain all of my colleagues would agree that, although the
death penalty should be applied swiftly and with certainty, the worst
thing in the world would be for it to be applied wrongly.
My amendment tries to preserve the important role that habeas plays,
while reducing delays. It strikes at what I believe is the issue that
truly rises above all else in the Republican bill. It strikes the
provision in the Republican bill that I think is the most troublesome,
and that is the so-called rule of deference, which has been known
around here the last 20 years that I have been here as the full and
fair rule.
This, in my view, and probably in the view of advocates of both sides
of the habeas corpus debate, is the single most important provision of
the Republican bill and the single biggest difference between my
approach and their approach.
As the chart I have just had put up illustrates, when it comes to
speeding things up, Senator Hatch and I are in the same spot. Both our
bills have time limits on when a petition can be filed. Both our bills
have limits on successive petitions. But our bill differs when it comes
to the issue of deciding these petitions.
I said the Federal courts should exercise independent review while
the Specter-Hatch bill requires Federal courts to defer to the States.
It is important to realize that the deference standard in the
Specter-Hatch bill effectively makes the rest of the bill irrelevant.
After all, what difference does it make what the time limits are if the
Federal courts are going to be precluded from examining what the State
courts did in any event? What difference do the time limits make? That
is the fundamental difference in our approaches, because that is what
the result of the Specter Hatch bill will be.
Let me give a hypothetical example. Suppose an innocent man is
charged with a capital crime and during the investigation one of the
witnesses identifies someone else as having committed the crime other
than the defendant, a fact which is concealed from the defendant. And
there are cases where this has occurred.
At trial the witness identifies the defendant, the innocent man, even
though the prosecution has in its possession the evidence that another
witness identifies someone else as having committed the crime. But at
trial, the second witness identifies the defendant, the innocent man.
In addition, the witness testifies that he has never met the
defendant before when, in fact, the prosecutor knows that the witness
harbors a grudge against the defendant, the witness who identifies the
defendant.
Now, the prosecutor goes ahead and does not tell the defense about
the details of what the witness previously said, that he previously
said, no, I identify somebody else, and where the prosecution knows
that the identifying witness has a grudge against the defendant.
The State courts go ahead and uphold the conviction anyway, reasoning
that the truthful evidence would not actually prove the defendant
innocent.
Let me get this straight now. If in a trial the stenographer here is
accused of killing John Doe and the prosecutor interviews me as a
witness. I say no, he did not kill John Doe, Charlie Smith killed John
Doe. But then I say, no, I change my mind. I think he did kill John
Doe.
The prosecutor investigates and finds out that the stenographer and I
have hated one another for the last 20 years, or I have held a grudge
against the stenographer because he took down one of my speeches
incorrectly.
They never do that, I might add.
Now, the prosecutor does not tell the defendant about my grudge
against the defendant and about the fact that I initially identified
somebody else. So, now there is a trial and he is convicted.
After the conviction takes place, he files a petition for the writ of
habeas corpus and proves that this information was withheld from him;
that it would have made a difference to the jury. And the State court
of Delaware says: No, no, even if that is true, it does not prove that
he is innocent. It just proves that I have a grudge against him and it
just proves that the prosecution was not totally honest. But it does
not prove his innocence. Therefore, hang him. Or, in Delaware, lethal
injection.
Now, the fact of the matter is under the language of this bill the
State court's decision on this issue, that is the scope of the
prosecutor's duty to turn over the information, would be the absolute
last word because, as long as the State court decision could be
described by a lawyer as being reasonable, the Federal court could not
overturn it. In this example, an innocent man may be put to death
because, under this bill's provisions, the issue before the Federal
court would be, was it reasonable for the State court to say that they
are upholding the conviction because the information withheld would not
have proved his innocence?
The probability is the Federal court would have to say that is
reasonable. It may not be right. We might not have decided it that way,
but it is reasonable. A reasonable man could say, all right, even if
the jury had known this, it did not prove his innocence. They still may
have convicted him. The Republican bill says:

An application for writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim * * * resulted in a decision
that * * * involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States.

That is a heck of a standard to have to apply.
So, I say goodbye to the stenographer. He is off to death row. He
probably thinks he is off to death row when he has to come out here and
take down my speeches. But he is off to death row. Because even
though--even though--the prosecution withheld evidence that goes to his
innocence, instead of the court saying, ``This would have made it
difficult for the jury to find beyond a reasonable doubt he was
guilty,'' which would have been a reasonable conclusion to reach as
well, they said ``This does not prove that he is innocent so we are not
going to overturn the conviction.'' So he is gone. Because, as long as
the State court decision could be described by a lawyer as being
reasonable, the Federal court has to defer to the State court.
The effect is there is no habeas corpus review on matters of fact and
law at a Federal level. My amendment simply strikes this language. It
leaves in the bill the rest of the reforms--time limits, limits on
second petitions--but it strikes the deference rule and allows
[[Page S7842]] the current practice of independent review by the court,
the Federal court. The Federal court should be able to say in that
circumstance: We understand what the State court did but under our
interpretation of the Constitution and his constitutional rights we
believe that withholding this information was so prejudicial that he
should get a second trial with all the facts being known. They should
be able to do that. This would preclude them from doing that.
I think there are four parts of this long sentence I read up here on
the board, four parts of this long sentence which have a devastating
effect.
(Mr. THOMPSON assumed the chair).
Mr. BIDEN. First, the language sets out clearly what the general
principle is. The general principle in this language in the Hatch bill
is that Federal courts shall not grant a claim that was adjudicated in
State court proceedings. That is what is at the top. It seems to me
that is what the sponsor of this bill views as the most desirable
outcome in a habeas petition. Of course, this is directly contrary to
the purpose of habeas corpus, which is to have Federal courts, and in
particular the Supreme Court, decide issues of Federal constitutional
law.
The second problem, in this instance, the bill seems to allow an
exception to the general rule but one that is likely to be illusory
because a claim can be granted only if the State court's application of
Federal law to the facts, before it was unreasonable, not merely wrong
but unreasonable. It could be wrong but viewed as reasonable. This is
an extraordinary deferential standard to the State courts, and I
believe it is an inappropriate one. It puts the Federal courts in the
difficult position of evaluating the reasonableness of a State court
judge rather than simply deciding whether or not he correctly applied
the law, not whether he did it reasonably. You can have a reasonable
mistake. They could reasonably conclude that on a constitutional
provision, it should not apply, when in fact the Supreme Court would
rule it must apply. Reasonable people could have reached the conclusion
prior to the application of the Miranda decision that it was reasonable
not to tell someone their rights. That is a reasonable decision. It may
not be born out of animus. The Supreme Court said no. You have to tell
people their rights. A reasonable standard of review is the lowest
standard used by Federal courts.
In reviewing the constitutionality of statutes, for example, in cases
where courts used the reasonable or rational standard, it looks only at
whether there is any rational basis supporting the statute. It is a
cursory standard of review. In fact, looking at thousands of cases
since the late 1930's, our Supreme Court has found--to the best of my
knowledge--no statute invalid when they have applied the reasonable
standard.
Reasonable people, like Senator Hatch and I, are going to be arguing
on the floor about the regulatory reform bill and about the takings
clause and all of those issues, right now if the U.S. Congress passes a
law saying you cannot have more than 2 parts per billion of a
carcinogenic substance in the liquid effluent coming out of your
factory, the Supreme Court says not whether that does or does not cause
cancer, they say it is reasonable for those folks in the Senate and the
House to conclude that is dangerous and, therefore, they will uphold
the statute.
It is the lowest standard. It is one thing to apply that when we are
protecting the public against environmental pollution. It is another
thing when we are applying that standard to the application of
constitutional rights to individuals. There we have always applied the
highest standard. The Government has been required to meet the highest
standard before they can put someone in jail or put them to death. This
reasonableness standard reduces to its lowest common denominator.
The court also uses a reasonableness standard in reviewing Federal
agencies' interests, and the administrative statutes. I will not get
into it now. But the Chevron case and others are cases we debated about
whether or not, in applying civil law, which standard we should apply.
But the bottom line is this, folks. If the standard is reasonableness,
it is the lowest common denominator. And, if the Federal court is
required to give deference to a State court on the grounds that it
acted reasonably as opposed to correctly, a lot of folks--I should not
say a lot; I do not know how many--but there will be individuals who
will be put to death where they otherwise would not have been put to
death if the Federal court were able to apply the standard that
determines their ability to go back and look at the facts and the law
and make an independent judgment.
By the way, let me say the whole reason to have the ability of a
defendant to go into Federal court is to allow Federal judges to apply
the Federal Constitution and determine whether they think the State
court applied it correctly. But if you limit what they can look at and
the standard they use in review, you have in effect undercut the very
rationale for allowing the defendant to get into that Federal court in
the first place.
The third problem with this language is the bill's reasonableness
exception is limited not only by the requirement that the decision must
have been unreasonable, but that it must have been unreasonable in
light of Supreme Court law. So even if there is a Federal court
decision directly on point, the State court could ignore it as long as
the application of law had not been directly decided by the Supreme
Court.
As the Presiding Officer knows, as a former prosecutor and a first-
rate trial lawyer, there are a number of lower Federal court decisions
that never get to the Supreme Court because no one bothers to conclude
that they were wrongly decided. And they are accepted as Federal law.
In this case, you could have all the districts or the circuits agreeing
on one application of the law, and the State court ignore what the
Federal courts have said because there is no Supreme Court decision on
point. That seems to me to be a very dangerous precedent. Even so, if
there is a Federal court decision directly on point, under this
language, the State court could ignore it as long as the Supreme Court
has not spoken to it. In other words, State courts could ignore the
decisions of the lower U.S. courts interpreting the Constitution
without any prospect of being corrected by Federal courts.
For example, an appeals court recently held that a defendant cannot
be prosecuted criminally and have his property forfeited under the
civil forfeiture laws because of the double jeopardy clause prohibiting
that. That ruling is clear. It is unambiguous. But it is not a Supreme
Court ruling. Under this bill, a State court, which subsequently
refused to follow that interpretation, could not be corrected by habeas
corpus review because it could never get back into the Federal court
system.
This limitation on Supreme Court laws is particularly nonsensical
because the Supreme Court generally does not accept for review
decisions by circuit courts of appeal unless there is a split in the
circuits, as the Presiding Officer knows. If all the circuits agree on
a principle of law, the Supreme Court would have no reason to address
it.
So under this standard that we are about to write into the law, a
State court could ignore a rule that all the circuit courts agreed on
and no Federal court could correct that State decision. That is
preposterous; maybe unintended, but that is the effect.
Fourth, the exception to the general rule in habeas shall not be
granted if the State court ajudicating the claim is further narrowed by
the language in the statute requiring that the Federal law at issue
must have been clearly established. Not only must the decision of the
State court have been unreasonable, and not only must it have been
unreasonable in light of Supreme Court law, not Federal law, but it
must have been unreasonable in light of Supreme Court law that is
clearly established.
The one thing we know is that where lawyers are involved, there is
little that can be said to be clearly established. So where the
application of a U.S. Supreme Court decision to a new set of facts is
unclear, the State court need not worry about it.
For instance, the Supreme Court quite logically has held that the
prosecution must give to the defendant any evidence it has that is
favorable to him. It is called justice--justice. This is not a game.
Prosecutors are not [[Page S7843]] there to determine whether they can
win. They are there to do justice. And so the Supreme Court has said
that, if the prosecution has at its disposal evidence that goes to the
innocence of the defendant, that has to be made available to the
defendant. But is a certain kind of evidence favorable to the accused?
That might not be clearly established. And so the State courts will be
free to go their own way.
For example, a clear case would be assume that in the State court,
the prosecutor had evidence there were two witnesses at the same time
who said the defendant did not do it. Well, they cannot withhold that
from him. But they may conclude at the State court level that they have
evidence there is a motel receipt that indicated the defendant was at
such and such a place when this crime was committed. They can
reasonably conclude at a State court level we really do not think that
goes to the innocence, that is not favorable to the defendant, that is
a marginal question so we are not going to tell him.
Now, what you have to do, if you are filing a Federal habeas corpus
appeal to get them to go back and get them to look at that, you have to
prove that judgment was unreasonable even though there is a Supreme
Court decision out there saying you have to make things that are
favorable to the defendant available to the defendant, because it is
not clearly established law, because it is not around long enough to
have been applied to 10, 20, 30 fact circumstances.
Now, it seems to me that we are requiring an awful lot of hurdles and
limitations on what a Federal judge can look at once we get to court.
Again, keep our eye on the ball here. We are not talking about
successive abilities to get into Federal court. We are not talking
about extended time limits to get into Federal court. We are not
talking about whether or not you can get into Federal court repeatedly.
We are only talking about when you get to Federal court what is the
Federal judge able to look at. And right now the Federal judge is able
to look at the whole thing from ground up if he wants to. He can make
an independent decision based on what the specific statement by the
defendant is in his petition as to why they should be granted a new
trial. They can go back and look at the facts in the case and the law
and apply them in conjunction with one another.
So let me summarize what I think this language in the Hatch bill
says. First, it states that habeas relief cannot be granted by a
Federal judge if a State court has adjudicated the claim, which is
directly contrary to the entire purpose of Federal habeas corpus.
Second, it creates what looks to be an exception but one that is
largely illusory. It requires that a State court merely behave
reasonably--not correctly, reasonably. It requires that a State court
merely act reasonably in relation to a Supreme Court decision, not in
relation to decisions of lower Federal courts in their State. And it
requires them to act reasonably only if the Supreme Court law can be
said to be clearly established. All this amounts to is that State
courts in almost every case will be free to reach virtually any
decision without any chance of Federal review later. This rule, the so-
called rule of deference, turns habeas on its head. The purpose of
habeas is to correct State court errors. But if Federal courts have to
defer to State court decisions, they will not be able to correct their
mistakes except in the most egregious circumstances.
Now, through the years we have fought in this Chamber battles over
the so-called full and fair standard, essentially what Senator Kyl had
introduced. At least he was straightforward and blatant about it. He
said: Look, my purpose here is to do away with any State prisoner being
able to get into a Federal court, period, and because the Constitution
says you can go to the Supreme Court under rare circumstances, I am not
going to try to eliminate it. But he said 40 percent of the delay is in
Federal court, so what I am going to do is do away with the ability to
get into Federal courts.
Straightforward. This provision suggested by my Republican friend
essentially does the same thing, making it sound like we are really
letting someone get in.
Admittedly, the most egregious cases, which would not be captured by
the Kyl amendment, would be captured in this amendment. But the vast
majority of cases are in a gray area. And again my proposal to delete
this standard will in no way slow the process up and will in no way
increase the number of opportunities that a prisoner has to file a
petition.
While this language looks different than full and fair, the language
in this bill would have virtually the same effect. It would prevent
Federal courts from granting relief for a violation of the Federal
Constitution because it would require deference to the State decision
unless that decision were unreasonable. Being wrong would not be enough
to get it overturned. It would have to be unreasonable.
If I can make an analogy to the Presiding Officer--who is the only
one here at the moment and so that is why I am speaking to him,
although I always like to speak to him--it is like this deal with good-
faith exceptions to the fourth amendment, search and seizure. All of a
sudden, by the way, my friends on the right side of the Chamber, my
right and on the ideological right, all of a sudden are beginning to
realize: Wait. Maybe we do not want to do away with that so quickly.
But at any rate, there is an exception that if a cop violates the
fourth amendment but did it in good faith, it should be admissible in
court.
Well, you can theoretically argue that makes sense. But how about
where a court wrongly but in good faith, in good faith wrongly decides
a provision in the Constitution, wrongly decides it, the result of
which is the person goes to death. Are we going to reward ignorance?
Are we going to reward reasonableness just because it came from the
State? It may be reasonable that he reached that decision but wrong.
Wrong. This would preclude Federal courts from looking at the merits--
whether it was wrongly decided. They only get to do it if it meets the
threshold that it was an unreasonable application of the facts and the
law.
When the Supreme Court announces a constitutional wrong such as the
right of the defendant to know about evidence held by the prosecutor
that suggests he is innocent, it necessarily leaves open the question
of how that general rule applies to specific facts. Does that mean
evidence that could be used to impeach a witness must be turned over?
How strong does the evidence need to be before the requirement kicks
in? The Supreme Court cannot possibly decide all of these issues in one
case.
But lawyers arguing in courts will be able to come up with all sorts
of different ways of applying that general rule in individual cases.
And many of those ways of applying them may be reasonable. That means
that Federal courts will be unable to review State decisions through
habeas corpus and begin to establish some uniform law in that portion
of the country. Instead, virtually any decision a court reaches will
have to be considered acceptable solely because it was reasonable.
I ask everybody listening to this, do we want 25 different
interpretations of what is reasonable? Do we want 25 or 50 different
versions of what is reasonable? That flies in the face of the notion of
a uniform application of the only unifying document that exists in our
Nation, the U.S. Constitution. This would mean that the Federal
Constitution would be determined by State court judges.
Placing primary responsibility for the Federal Constitution in the
hands of State courts is a dramatic departure from this country's
historical principle, and that is that it is the Federal courts that
should be the final arbiters of Federal law. It would relegate us to a
system in which the 50 State court systems and in fact the individual
judges within those systems are the separate and ultimate arbiters of
what the Constitution means.
The meaning of the Federal Constitution could be different, depending
on what State you are in.

Independent review is the only sensible approach, I suggest. Even
Justice O'Connor has said in rejecting a judicially created full and
fair rule--which is what this rule is--that:

We have never held in the past that Federal courts must
presume the correctness of State court legal decisions.

Let me stop there and read it again:

[[Page S7844]]

We have never held in the past that Federal courts must
presume the correctness of State court legal decisions.

This requires us to presume--presume--the correctness of State court
decisions. I am not certain that the State of Mississippi would apply
the Constitution the same way the State of New York would, as the State
of California would, as the State of New Hampshire would. I do not know
if anybody else is very sure of that.
Let me go on and read the entire quote from Justice O'Connor:

We have never held in the past that Federal courts must
presume the correctness of State court legal decisions or
that State courts' incorrect legal determination has ever
been allowed to stand because it was reasonable. We have
always held that Federal courts, even on habeas, have the
independent obligation to say what the law is.

That is the Federal constitutional interpretation by the Supreme
Court. I quote her again:

We have never held . . . that State courts' incorrect legal
determination has ever been allowed to stand because it was
reasonable.

This would allow incorrect State court decisions to stand because
they are reasonable, although incorrect.
That quote, I might add, was from Wright versus West, decided in
1992. Even Justice Rehnquist----
The PRESIDING OFFICER. All the time of the Senator from Delaware has
expired.
Mr. BIDEN. Mr. President, I ask unanimous consent, although I have
much more, that I be allowed to have 7 more minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN. Mr. President, even Justice Rehnquist publicly stated that
this full and fair doctrine goes further than is wise, and the Supreme
Court, reflecting that view, has on at least five occasions refused to
apply this doctrine. Let me give some of the cases.
The effect of the deference rule is best illustrated, I think, by
looking at some of the real-life cases. The last time the Federal
courts were required to defer to State courts, we executed an innocent
man. That was in 1915. There is a chart I have to illustrate that.
Leo Frank, a Jewish man, had been convicted and sentenced to die by a
jury intimidated by an angry lynch mob outside the courtroom. The mob
could be heard inside the courtroom. Mr. Frank's lawyers were so
intimidated that they left the courtroom at times because they feared
for their lives.
Nevertheless, the State court reviewing the conviction concluded the
trial had been fair and upheld the conviction. A majority of the
Supreme Court voted to uphold the conviction and, after determining
that they were required to defer to the State court decision, upheld
the conviction. The dissenters thought independent review was
appropriate and, on that basis, they concluded that the State court
decision was wrong.
The Supreme Court applied the rule of deference in 1915, and Mr.
Frank was killed in prison by an angry mob, and later the actual
offender confessed and Frank was posthumously pardoned. But because of
the deference rule, an innocent man was executed, and that is what is
at stake today. We are talking about going back to the 1915 standard.
Several years later, after the Frank case in Moore versus Dempsey,
1923, the Supreme Court was faced with another similar case. Again,
this time several African-American men were on trial for murder, which
they claim was self-defense, when a mob attacked them in their church
and set the church on fire. At the trial, the same mob armed and
surrounded the courthouse. The State court held that there had been no
violation of the constitutional right to a fair trial by an impartial
jury, notwithstanding those little incidental facts.
This time, the Supreme Court rejected the deference rule and
concluded that independent review is required and the dissenters argued
that the Federal court should defer to the State court decision and
voted to uphold the conviction.
Many years later, in the famous 1953 case of Brown versus Allen, the
court considered a case in which the defendant had confessed after
being subjected to psychological and physical coercion, sleep
deprivation, and other types of pressure that put the confession and
the resulting conviction in serious doubt.
The State court found the confession to be voluntary, notwithstanding
the circumstances. The Supreme Court overturned the conviction,
applying independent review. Had they been required to apply this
standard, they would have been required to hold that person guilty,
even though he had been subjected to psychological and physical
coercion and sleep deprivation before the confession was granted.
These Supreme Court cases, and others I will not take the time to go
into, illustrate in concrete terms what the effect of the deference
rule is. There are also lower court cases in which habeas relief has
been granted. These cases would be decided differently under the
deference rule.
Consider the recent case of Herrera, who was convicted of murder and
sentenced to death. The State court denied his appeal and the habeas
petition. A few months ago, a Reagan appointee of the Federal bench
granted habeas relief because the prosecutor had threatened and
intimidated witnesses and failed to disclose evidence that proved Mr.
Herrera innocent and knowingly used false evidence in a closing
argument to the jury.
That was not some wacko liberal judge appointed by a liberal
President. That was a judge appointed by Reagan. If, in fact, this law
had existed at the time, he would not have been able to make that
judgment. For instance, one woman told the police Herrera had not
committed the killing. She was threatened by a police officer who said
he would take away her daughter unless she cooperated. The prosecutor
knew this. The prosecutor also insisted she change her testimony to
implicate Herrera, and the judge found many other such violations of
law, but the State court concluded, no, he was guilty; the conviction
should stand.
The Federal court corrected it. Based on this severe misconduct, this
Reagan-appointee judge said but for the conduct of the police officer
and the prosecutor, either Herrera would not have been charged with the
offense or the trial would have resulted in acquittal. The prosecutor's
misconduct was designed to obtain a conviction and another notch in
their guns despite the overwhelming evidence that another man was the
killer and the lack of evidence pointing to Herrera.
This remarkable finding that a constitutional violation would put an
innocent man on death row would not have occurred under the Hatch-
Specter bill. The same claims had been made to the State courts. There
was nothing new in the Federal court habeas petition, but the State
court found that they did not amount to a constitutional violation. If
the bill's deference rule had been in effect, the Federal judge would
have been foreclosed from correcting the State court's decision and
saving an innocent man's life.
Let me pose the question to Senator Hatch. In the Herrera case, the
court was confronted with various questions, including whether the
conduct of the police officer, when intimidating witnesses and
withholding evidence, amounted to a violation of the Constitution.
I would like to ask him when he comes back, would not his bill, which
requires deference to the decisions of the State court, have prevented
the judge from granting Federal habeas relief?
Mr. HATCH. As I understand it, it is the Herrera case.
Mr. BIDEN. It is the Herrera case.
Mr. HATCH. I do not think so. The fact of the matter is, let me just
take a second and look at that Herrera case.
Mr. BIDEN. I would like to describe another case: Fred Macias. He was
convicted of murdering two people in their homes. The main evidence was
the testimony of another man who admitted having been in the house when
the murder occurred, but who then claimed Macias was with him and
committed the murder. Macias' lawyer did such a poor job. He did not
investigate and discover a credible witness who provided an alibi.
The State court rejected Macias' claim that his lawyer had failed to
give him an effective representation. Only when a Federal court looked
at the fact an innocent man was facing the death sentence was the
conviction thrown out. [[Page S7845]]
The prosecution still tried to reindict Macias, but on being
presented with all the evidence, a grand jury in that same jurisdiction
refused to indict Macias again.
Again, as I read the Hatch-Specter bill, the Federal court would have
been forced to defer to the State court. So I would like to also point
out another case, that of Hurricane Carter, which has been referred to.
Carter was convicted of the murder of three people--despite the fact
that he did not match the physical description of the killers, and was
sentenced to life in prison.

The prosecution used the eyewitness testimony of a thief who at first
denied seeing Carter at the scene. But the police then showed the
witness a manufactured lie detector test that falsely showed he was
lying.--In the face of this pressure, the witness changed his
testimony. The fact that the witness had been pressured into his
testimony using a false lie detector was not disclosed to the
defendant, and was concealed from the jury.
The New Jersey Supreme Court upheld the conviction--but the Federal
courts concluded that the prosecutor had unconstitutionally withheld
evidence favorable to Carter. After habeas was granted, the State
dismissed the indictment rather than seek a retrial in which it would
have to give all the evidence to the defendant.
The deference rule in this bill would have prevented the Federal
courts from correcting the State court's decision that the prosecutors
had not violated the Constitution.
In fact, in that case, the State of New Jersey tried to win the case
by arguing that the Federal court should defer to the State court. The
Federal court instead exercised independent review, and ruled for Mr.
Carter.
Let me also discuss the case of Walter McMillian. McMillian was
convicted of murder and sentenced to death. The main evidence at trial
was the testimony of a white man who claimed to have been an
accomplice, and who was granted immunity. Two other witnesses testified
that they had seen McMillian's truck in front of the dry cleaners. The
jury ignored the testimony of a number of friends and family members
who said he was at a fish fry.
After trial, a new investigation showed that the alleged accomplice
who testified against McMillian at trial did not even know him at the
time of the offense.
That, in fact, he had denied McMillian's involvement in three
interviews before finally fingering McMillian.
That witnesses who claimed to have seen McMillian's low-rider truck
could not have done so since the truck was not a low-rider at the time
of the offense.
That the accomplice had complained to prison doctors that he was
being pressured to frame McMillian, and that the doctors told the
prosecutors about this before trial.
And that the State had interviewed other inmates who said the
``accomplice'' had told them he was going to frame a man.
The new investigation into the McMillian case showed that all of this
evidence was withheld from the defendant at trial.
Despite this new evidence, the Alabama trial court refused to grant
relief, turning down the constitutional claims about perjured testimony
and Government misconduct. Eventually, the Alabama Appeals Court
reversed. But, had the Alabama Appeals Court come out the other way,
the deference language would have barred the Federal court from
preventing the execution of an innocent man.
While my colleagues rightly point out the crush of repetitive
petitions--many of which are frivolous, they leave the impression that
habeas is no longer needed.
The cases I have just described demonstrate how important it is to
preserve independent Federal review. While most State courts try to
apply the law properly, sometimes they fail because of police or
prosecution misconduct, or simply because they make mistakes.
Here are a few more examples of recent cases in which Federal courts
granted habeas relief:

In Brown versus Lynaugh (5th Cir. 1988), Habeas relief was
granted because the presiding judge left the bench, took the
witness stand and provided evidence against the defendant.
Even though that type of conduct seems to make the trial
patently unfair, the State court didn't think so. The rule of
deference has prevented the Federal Courts from correcting
that error.
In McDowell versus Dixon (4th Cir. 1988), the conviction of
a dark-skinned African American was reversed because the
prosecutor had withheld eye-witness statements that the
assailant was white. The state courts found that this error
did not deprive the defendant of a fair trial. The Federal
court overruled and granted habeas relief. The deference rule
would have prevented the Federal courts from granting relief.

These cases demonstrate that habeas corpus is still needed--and that
injustices continue to occur. Without habeas, those injustices would be
left to stand uncorrected.

conclusion

Everyone agrees that there is a need to end the delays and that the
current system just doesn't work right. But I also think everyone would
agree that we should have a fair process--one that does not execute
innocent people.
We know that most prosecutors and most law enforcement officers are
honorable. Most cases proceed fairly, and we can have confidence in the
result.
But occasionally, prosecutors or cops act in bad faith--and there are
cases which have demonstrated that. And, as we all know, our judicial
system can make mistakes--and has done so.
The recent case of Kirk Bloodsworth is one example. Bloodsworth was
convicted and sentenced to death for the rape and murder of a young
girl. After a new trial, he was again convicted and sentenced to life
in prison. Subsequent DNA testing confirmed his innocence. Bloodsworth
lost 9 years out of his life because of an error in our legal system.
He was lucky to escape with his life.
Mistakes do happen. Innocent people are convicted and sentenced to
die.
Habeas corpus has existed to correct such errors--and to ensure that
there will never be another Leo Frank--that there will never be another
innocent person--man who is executed.
I urge my colleagues to support this amendment.
I hope that the Senator from Utah, when he gets an opportunity, will
respond to my question relating to the case I raise. I thank the Chair
for the time.
I yield the floor.
Mr. HATCH. Mr. President, this chart, I think, says about everything
that needs to be said on this. Everything that Senator Biden has said
can be answered by the Specter-Hatch bill. These are the inmates on
death row versus the actual executions. There were 2,976 inmates on
death row as of January 1995. The yellow bar on the chart shows 281
executions since 1977. There are multiple frivolous appeals in almost
every one of these almost 3,000 death row cases. If they lose on one,
they conjure up another one, and then they conjure up another one, and
they conjure up another one, just like Andrews in Utah--18 years, 30
appeals. Every one of them were frivolous; every one was denied. No
question of guilt. No question of problems. No question he did the
murders. Yet, it took 18 years. And every time he brought up a habeas
corpus petition, the victims and their families had to relive the whole
murder situation again. You wonder why people in this country are
worried about the laws and do not believe in them.
There is no finality, no way of solving these problems. It is a
farce. Why is it? Because liberal judges--and I have to say active
defense lawyers who are doing their jobs under a system that allows
this charade to go on and on--continue to allow this to happen because
they do not like the death penalty.
I think we ought to face that death penalty straight up and down. If
you have arguments against the death penalty, I understand that. I know
there are two sides to it. I do not like it myself, except in the most
heinous of cases. I would never use it unless it was a really heinous
case, like the Andrews case, or like any number of other cases, like
the Manson case. He was saved by the Furman case, the Supreme Court
case where we had a temporary law on whether or not the death penalty
is to be inflicted. There are many others you can talk about.
Mr. President, I have to oppose this amendment. It is offered to
modify the standard of habeas corpus reform that we have proposed in
this antiterrorism [[Page S7846]] bill. Our present system of
multilayered State and Federal and collateral appeal has resulted in
enormous delays. I have just made the case between sentencing and
judicial resolution as to whether the sentence was lawful, without any
improvement in the quality of the adjudication. The resulting lack of
finality saps public confidence in our criminal justice system and
undermines the proper roles of the State and Federal Government. I know
there are people here who believe that only the Federal courts tell the
truth. That just is not true. State courts, in many respects, are just
as good, if not better, than the Federal courts--in these areas, just
as good. I get a little tired of the Federal courts being demeaned and
maligned because, basically, people do not like the death penalty.
A system incapable of enforcing legally imposed sentences cannot be
called just and must be reformed. I mentioned in my home State of Utah,
for example, the William Andrews case. He delayed imposition of a
constitutionally imposed death sentence for 18 years, and we went
through 30 appeals, and the survivors--I think there was one where they
poured Drano down his throat. There were others, too, and they would
drive pencils through their eardrums before killing them. This survivor
had to be there each time and had to go through it each time, had to
have it recollected each time. There was no question of guilt, no
question of the sentence, and no question it was constitutional. Yet,
it took 18 years and 30 appeals and millions of dollars to get done. He
was not an innocent person seeking freedom from an illegal punishment.
Rather, he committed a particularly heinous crime and simply wanted to
frustrate the demands of justice.
The Andrews case is hardly an isolated example. As I have said, as of
January 1995 there were almost 3,000 people on death row. Yet the
States have executed only 263 since 1973--38 last year. Now, Federal
habeas corpus proceedings have become, in effect, a second round of
appeals in which convicted criminals are afforded the opportunity to
relitigate claims already considered and rejected by the State courts.
The abuse of habeas corpus litigation, particularly in those cases
involving lawfully imposed death sentences, has seriously eroded the
public's confidence in our criminal justice system. It has drained our
State criminal justice resources and has taken a dreadful toll on the
victims' families and those who have to live through that every time
there is a habeas petition found.
The single most important provision contained in the habeas reform
proposal in S. 735, the bill today, is the standard of review that this
provision has. It determines the degree of deference the Federal court
will give to the decisions of a State court.
I notice the standard of review on the habeas proposals by the Biden
staff-prepared poster. It says that Specter-Hatch requires Federal
courts to defer to State courts in almost all cases, even if the State
is wrong about the U.S. Constitution. That is absolutely false. The
fact of the matter is, currently, Federal courts have virtual de novo
review of a State court's legal determination. Under our change,
Federal courts would be required to defer to the determination of State
courts, unless the State court's decision was ``contrary to or involved
in an unreasonable application of clearly established Federal laws as
determined by the Supreme Court.'' I will read that again.

An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim adjudicated on
the merits in a State court proceedings unless the
adjudication of that claim (1) resulted in a decision that
was contrary to or involved an unreasonable application of
clearly established Federal laws as determined by the Supreme
Court of the United States or (2) resulted in a decision that
was based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.

This is a wholly appropriate standard. It enables the Federal court
to overturn State court positions that clearly contravene Federal law.
It further allows the Federal courts to review State court decisions
that improperly apply clearly established Federal law. The standard
also ends the improper review of the State court decisions.
After all, State courts are constrained to uphold the Constitution
and faithfully apply Federal law as well. There is simply no reason
that Federal courts should have the ability to virtually retry cases
that have been properly adjudicated by our State courts. There is no
reason to allow Federal courts to do that. If you talk to your State
attorneys general, they will tell you that a review standard is the
single most important provision of our bill. Meaningful reform will
stop repeated assaults upon fair and valid State convictions through
spurious petitions filed in the Federal courts. We cannot stop the
spurious petitions without changing the standard under which these
petitions are reviewed.
If the Biden amendment passes, we are back to business as usual,
except for some time constraints. Even then it is business as usual,
because there will be repetitive frivolous appeals allowed by the
liberal judges in almost every case brought to them where they can make
any kind of a claim, regardless of whether it is legitimate or not.
It happens all the time now. People are fed up to here with it and
are sick of it. That is why this issue is so important. We have the
balance of the procedural protections afforded to defendants against
the need for maintaining the integrity of the finality of decisions of
our State courts.
Mr. President, I think that part of the disagreement we have with
respect to the appropriate standard of review in habeas petitions
involves differing visions as to the proper role of habeas review.
Federal habeas review takes place only after there has been a trial.
A direct review by the State appellate court, usually in intermediate
court, another direct review by the State supreme court, then a third
review or fourth review by the U.S. Supreme Court on a petition for
certiorari. Thus we have a trial in at least three levels of appellate
review, four different ways of protecting the rights of the defendant.
In a capital case, the petitioner often files a clemency petition, so
the State executive branch also has an opportunity. That is five: The
trial, the initial appeal to the intermediate court, the State supreme
court, the petition to the Federal Supreme Court, and the petition for
clemency to the Governor. Five different protections for the defendant.
Those are the direct appeals.
Then we give them separate habeas appeals all the way up to the State
courts again, all the way up to through the Federal court again.
I notice the distinguished Senator from Pennsylvania was at an
Intelligence Committee hearing and needs to get back there. So I will
interrupt my remarks to grant him 5 minutes for his remarks on this
very important issue.
Mr. SPECTER. Mr. President, I thank my distinguished colleague, the
chairman of the committee, for yielding to me at this time. I have
worked with him intimately on this legislation.
As he has noted and I noted earlier, we are in the midst of an
Intelligence Committee meeting, a committee which I chair, so I
appreciate his yielding to me for a few moments.
I have sought recognition to support Senator Hatch and to oppose the
amendment offered by the distinguished Senator from Delaware.
This legislation is the result of a great deal of work over many,
many years. It has been going on since the 1980's. As I commented
earlier, a habeas corpus reform bill was passed by the U.S. Senate in
1990, but it did not survive a conference with the House of
Representatives.
Legislation to reform habeas corpus has been considered and
reconsidered each year for many years. The provision which is being
debated now, I think, is a reasonable compromise. It is not my absolute
preference on the kind of language that I would have chosen had I
written the bill alone, but I think it is a reasonable compromise.
Part of my concern is that when we change the standards it breeds a
lot of new litigation to have interpretations of untested language. I
think there is substantial latitude here for interpretation.
[[Page S7847]]
Current law gives significant deference on questions of law and on
factual determination to State court determinations. Under the current
bill, I think there is still a good bit of latitude which the Federal
judge will have when he makes a determination under a habeas corpus
petition. There will be deference to the determinations of the State
court, but the Federal judge will still have latitude to alter the
State court decision in any case in which the Federal judge determines
that it was contrary to or involved an unreasonable application of
clearly established Federal law as determined by the Supreme Court of
the United States, or resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceedings.
So there still is latitude for the Federal judge to disagree with the
determination made by the State court judge. It is my sense, having
litigated these cases as an assistant district attorney years ago, in
the Federal and State courts, that where there is a miscarriage of
justice, the Federal court can come to a different decision than was
made in the State court proceedings.
The language in the habeas corpus reform bill passed earlier this
year by the House is even more restrictive than the language in the
Senate bill. The House bill contains a provision that precludes the
granting of a writ of habeas corpus unless the State court's decision
is arbitrary. This is an even more restrictive standard than that in
the Senate bill.
Mr. President, in the legislation which is pending before us, there
are provisions which I consider a step backward from the bill which
passed the Senate in 1990, which would have eliminated the requirement
of exhaustion of State court remedies.
Were I to craft a bill myself, I would not require an exhaustion of
State court remedies before the filing of a Federal habeas corpus
petition because if that exhaustion requirement were not present there
would be a much more orderly and a prompt disposition of these
contested issues.
Were exhaustion of State remedies not necessary, we would not have
the interminable tennis match back and forth between the State and
Federal courts as illustrated by the Pennsylvania case of Peoples
versus Castille, which is illustrative of the complexity of bouncing
back and forth between the courts.
In the Peoples case, the defendant was convicted in the State court
of aggravated assault. The conviction was reviewed and upheld by the
Pennsylvania superior court, an intermediate appellate court. Then the
case went to the Supreme Court of Pennsylvania on what is called an
allocatur application, a request for review. The Supreme Court of
Pennsylvania denied the petition for allocatur but the court may do so
either considering the case on the merits or refusing to hear it as a
discretionary matter.
The defendant then sought a writ of habeas corpus from the U.S.
District Court for the Eastern District of Pennsylvania, which sent the
case back to the State court, holding that Peoples had failed to
exhaust his available State remedies because it was unclear whether the
Pennsylvania Supreme Court had considered the merits in denying
allocatur.
The case then went from the district court to the court of appeals
which reversed the district court, saying that there had been an
adequate exhaustion of State court remedies.
The PRESIDING OFFICER. The time has expired.
Mr. HATCH. I yield an additional 3 minutes.
Mr. SPECTER. The State then went to the Supreme Court of the United
States which hears few cases. Thousands apply and the year in which the
court agreed to hear this appeal only about 150 cases were heard. They
took this case. The Supreme Court of the United States then reversed
the circuit court and sent the case back to the district court.
Now, had there been no requirement for an exhaustion of State court
remedies, the case could have had one hearing in the Federal court, all
of the issues would have been decided, and I think decided about the
same way if we did not have State court proceedings, bearing in mind
that there had already been a full decision by a State appellate court
which had upheld the judgment of conviction in the first instance.
What we are really looking at with about 2,900 inmates on death row,
there were only 38 cases in which the death penalty was carried out. It
would be very much in the interests of the objective of swiftness and
certainty to put an end to the long delays. Eliminating the requirement
of exhaustion of State remedies would go a long way to achieving these
goals.
The State prosecutors and the attorneys general, however, disagree
with my view as to what is in the public interest on the issue of
exhaustion. We have the same objective. That is, to make the punishment
swift and certain, to eliminate the long delays which are a detriment
to law enforcement and undermine the deterrent effect of the death
penalty, not to have the matter come to closure for the families of the
victims, and not to harm the interests of the defendants, as
interpreted by some international tribunals, which say it is cruel and
unusual punishment to have the cases last longer than 6 to 8 years, an
issue also raised by two of the current Justices of the Supreme Court,
as I mentioned earlier today. I will not go into that because of the
limitation of time.
The issue of exhaustion of State remedies has been eliminated,
however, because this bill does not abolish to exhaustion requirement.
Unlie the resolution of this issue in the 1990 legislation, which
passed the Senate, which eliminated the requirement of exhaustion of
State remedies, that provision is not in this bill.
I refer to that to illustrate how uniformity and consensus cannot be
achieved on these difficult issues, and different people will have
different views. But what we come down to at bottom in this legislation
that is currently crafted, I think, is a realistic compromise. I think
defendants' rights are protected. There are increased protections in
this legislation with the appointment of counsel. We have the
requirement that there are timetables and limitations periods so the
defendants' rights, the States rights, and the victims' rights are all
protected.
I think it is a carefully crafted compromise which ought to be
enacted to promote the interests of all parties involved. That is why I
urge my colleagues to reject the amendment offered by the distinguished
Senator from Delaware on this state of the record.
I thank my colleague for yielding to me at this time.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I thank my colleague. I have enjoyed
working with him on this Specter-Hatch habeas corpus reform. Without
him I do not think we would be nearly as far along as we are, so I want
to personally thank him for the efforts he has put forward.
Let me get back to what I was saying. Look at all the reviews these
cases have: The trial, the direct review to the intermediate court, the
direct review to the State supreme court, the direct review to the
Supreme Court of the United States of America, petition to the Governor
for clemency.
But that is not the end. In virtually every State a postconviction
collateral proceeding exists. In other words, the petitioner can file a
habeas corpus petition in State court. The petition is routinely
subject to appellate review by an intermediate court and the State
supreme court. The prisoner then may file a second petition in the U.S.
Supreme Court and may also, of course, seek a second review of that by
the Governor. So after conviction we have at least six levels of review
by State courts, two rounds of review at least in capital cases by the
State executive.
Contrary to the impression that may be left by some of my colleagues
on the other side of this issue, Federal habeas review does not take
place until well after conviction and numerous rounds of direct and
collateral review.
The Supreme Court has clearly held in Goeke versus Branch that habeas
review is not an essential prerequisite to conviction. Indeed, this
very term the Supreme Court reaffirmed that principle that the
Constitution does not even require direct review as a prerequisite for
a valid conviction, and that is the Goeke case. [[Page S7848]]
Now that we have the proper context for this debate, let us look at
the proposed standard again. Under the standard contained in S. 735,
Federal courts would be required to defer to the determinations of
State courts unless the State court's decision was ``contrary to or
involved an unreasonable application of clearly established Federal law
as determined by the Supreme Court.''
That is a wholly appropriate standard. It enables the Federal court
to overturn State court decisions that clearly contravene Federal law.
Indeed, this standard essentially gives the Federal court the authority
to review de novo whether the State court decided the claim in
contravention of Federal law.
Moreover, the Federal standard, this review standard proposed in S.
735, allows the Federal court to review State court decisions that
improperly apply clearly established Federal law. In other words, if
the State court unreasonably applied Federal law its determination is
subject to review by the Federal courts.
What does this mean? It means that if the State court reasonably
applied Federal law, its decision must be upheld. Why is that a
problematic standard? After all, Federal habeas review exists to
correct fundamental defects in the law. If the State court has
reasonably applied Federal law it is hard to say that a fundamental
defect exists.
The Supreme Court in Harlow versus Fitzgerald has held that if the
police officer's conduct was reasonable, no claim for damages under
Bivens versus Six Unknown Agents can be maintained.
In Leon versus United States, the Supreme Court held if the police
officer's conduct in conducting a search was reasonable, no fourth
amendment violation ensues or would obtain, and the court could not
order suppression of the evidence obtained as a result of the search.
The Supreme Court has repeatedly endorsed the principle that no
remedy is available where the Government acts reasonably. Why, then,
given this preference for reasonableness in the law, should we empower
a Federal court to reverse a State court's reasonable application of
Federal law to the facts? If we give that power that Senator Biden will
give, we have hundreds of judges who do not like the death penalty, who
are just going to give repeated habeas corpus reviews any time some
clever defense lawyer demands it--which is exactly what we have today.
Our proposed standard simply ends the improper review of State court
decisions. After all, State courts are required to uphold the
Constitution and to faithfully apply Federal law so there is no reason
for what the distinguished Senator from Delaware is arguing for.
He does not believe in the death penalty. I understand that. I
respect him for that. But the arguments against meaningful habeas
reform, like we have in this bill, are in reality arguments against the
death penalty. If that is so, then let us debate the efficacy of the
death penalty. Let us not continue frivolous appeal after frivolous
appeal at a cost of billions of dollars in this society, just because
we do not like the death penalty. Let us decide whether death is the
appropriate sanction for people like those who murdered 168 individuals
in Oklahoma City, for whom I am wearing this memorial set of ribbons
pinned on me by the daughter of one of the victims, somebody, I have to
say, by whom I was very moved.
I am prepared to debate the point on whether or not the death penalty
is an appropriate penalty. But let us not disguise the argument under
the guise of phony habeas corpus.
The second argument I think my friends are making is that they
fundamentally distrust the decisions of the State courts. It is an
insult to all of the wonderful, fine State court judges around this
country. They cannot show cases that literally show that the State
courts cannot do the job.
Let me just give an illustration. We have heard a lot about the Rubin
Carter case, ``Hurricane'' Carter. The fact of the matter is we have
heard all kinds of arguments relating to that case.
He is supposed to be an innocent individual, falsely held in prison
despite his innocence. As a trial lawyer, I know that you should always
be suspicious of alleged evidence offered at the last minute by your
opponents. And this Carter case is no different.
Here, at the last minute, we hear about still one more apocryphal,
highly disputed case on which there is absolutely no agreement
whatsoever about the guilt or innocence of the defendant.
First we are told that Carter was falsely convicted in New York--
well, he was convicted for murder--twice, but in New Jersey. Then we
are told that he served 28 months, when, in fact, he served for nearly
20 years. And now, we are told, without any supporting proof, that he
is innocent of the very murders that two juries have found--beyond a
reasonable doubt--that he committed. And we are supposed to believe
these unsupported allegations of innocence--allegations made by
Senators who don't even know what State Rubin Carter was tried in?
These allegations are directly disputed by the prosecutors in New
Jersey who know this case best. They are directly disputed by every
jury and every court that has reviewed this case. And we should
remember that it was Judge Lee Sarokin--
a very liberal judge--who was the district judge that released Rubin
Carter, after nearly 20 years in jail. And he released him not because
he was innocent, but because of a procedural objection to the
composition of the jury. An objection raised 20 years after the fact.

The Carter case does not show the value of Federal habeas corpus--the
Carter case is a fresh indictment of the current system. It shows more
clearly than ever, that if you can get your habeas petition before the
right liberal Federal judge, you can get out of State prison,
regardless of your innocence or guilt.
Here is what the New York Times--one of the most liberal papers in
our Nation--said about Judge Sarokin's decision in the Carter case: it
said that the judge's decision was ``flawed by excessive lecturing on
the need for `compassion' and the injustice of a possible third trial''
for Rubin Carter. Well, I submit that the Federal courts are not
empaneled to provide compassion, they are there to provide justice. In
the area of habeas, they are there to provide a constitutional back-up
for constitutional issues. The Hatch/Dole bill preserves that function
of the Federal courts.
The floor of the U.S. Senate is not the place to determine the guilt
or innocence of persons involved in highly disputed cases. That is what
hearings are for.
Where were these defenders of the alleged innocence of this three-
time murderer when the Judiciary Committee held hearing after hearing
on the specific question of whether habeas corpus was needed to protect
innocent prisoners? They were nowhere.
I have asked witness after witness to show me a case--even one case--
where Federal habeas corpus has been used to free an innocent man or
woman, and not one case has been cited. Specifically, I asked Chief
Judge Charles Clark of the fifth circuit if he could name even one case
that he had ever seen in which Federal habeas corpus had resulted in
the release or retrial of an innocent man. And he could not. Yet he was
the chief judge of the largest circuit in the Nation--running from
Texas to Florida in those days. Not one case.
So forgive me if I am a bit reluctant to accept today the unsupported
allegations made on the Senate floor as to the alleged innocence of
prisoners who have long been held to be guilty of serious crimes.`
It should also be pointed out that the Carter case rebuts entirely
the point that the Senator from Delaware has made several times to the
effect that habeas petitions only result in retrials--they do not
result in release. So he says. But there was no retrial for Rubin
Carter--nor could there be after 20 years. He was released outright--
despite the jury verdict that he murdered three individuals.
(Ms. SNOWE assumed the chair.)
Mr. HATCH. We can go on and on. There are a number of others.
Virtually every case brought up--I do not know the Garrett case, but
every case brought up can be distinguished.
The Frank case, cited by Senator Biden, involved a lynching. There
was nothing State or Federal corrective process could have done to help
Mr. Frank. It was wrong that they lynched [[Page S7849]] him, but it
happened. That case, decided in 1915, occurred at a very different time
and under very different circumstances. That is not applicable to this
debate. We can go on and on.
Madam President, this is the most important stage in criminal law in
the last 30 years, and maybe in our lifetime. This is a change to stop
the incessant frivolous appeals that are eating our country alive. We
have the chance to really, really do something about this while at the
same time protecting constitutional rights and civil liberties for
everybody, and doing it in an appropriate, legally sound manner. This
amendment will do that.
I hope we will vote down all of these amendments that we have heard
debated here today.
I am prepared to yield back the remainder of my time.
I yield the remainder of my time.
I ask unanimous consent that the rollcall vote on the motion to table
the Biden amendment No. 1253 be the standard 15-minute vote and that
all remaining stacked votes be limited to 10 minutes each.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Madam President, I ask unanimous consent--I have the
approval of Senator Biden to do this--on behalf of myself and Senator
Biden, that all action on amendment No. 1241 be vitiated, the Heflin
amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Madam President, do we have rollcall votes ordered on
every one of the amendments?
The PRESIDING OFFICER. We have rollcall votes ordered on the first
three with the exception of 1224.
Mr. HATCH. I move to table the Biden amendment, and 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. HATCH. Madam President, a rollcall vote is ordered on one which
is not a motion to table, and the rest are motions to table?
The PRESIDING OFFICER. The Senator is correct.

Vote on Motion to Table Amendment No. 1253

The PRESIDING OFFICER. The question is on agreeing to the motion of
the Senator from Utah to lay on the table amendment No. 1253 offered by
the Senator from Delaware [Mr. Biden]. On this question, the yeas and
nays have been ordered, and the clerk will call the roll.
The bill clerk called the roll.
Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad]
is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
who desire to vote?
The result was announced--yeas 65, nays 34, as follows:

[Rollcall Vote No. 238 Leg.]

YEAS--65

Abraham
Ashcroft
Baucus
Bennett
Bond
Brown
Bryan
Burns
Byrd
Campbell
Chafee
Coats
Cochran
Cohen
Coverdell
Craig
D'Amato
DeWine
Dole
Domenici
Exon
Faircloth
Feinstein
Ford
Frist
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hatch
Hatfield
Helms
Hutchison
Inhofe
Jeffords
Johnston
Kassebaum
Kempthorne
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Nunn
Pressler
Reid
Robb
Rockefeller
Roth
Santorum
Shelby
Simpson
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner

NAYS--34

Akaka
Biden
Bingaman
Boxer
Bradley
Breaux
Bumpers
Daschle
Dodd
Dorgan
Feingold
Glenn
Harkin
Heflin
Hollings
Inouye
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Moseley-Braun
Moynihan
Murray
Packwood
Pell
Pryor
Sarbanes
Simon
Wellstone

NOT VOTING--1

Conrad

So, the motion to lay on the table the amendment (No. 1253) was
agreed to.
vote on motion to table amendment no. 1245, as modified

The PRESIDING OFFICER. The question now occurs on agreeing to the
motion to table amendment No. 1245, as modified, offered by the Senator
from Michigan, Senator Levin. The yeas and nays have been ordered. The
clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad]
is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 62, nays 37, as follows:

[Rollcall Vote No. 239 Leg.]

YEAS--62

Abraham
Ashcroft
Baucus
Bennett
Bond
Breaux
Brown
Burns
Byrd
Campbell
Coats
Cochran
Cohen
Coverdell
Craig
D'Amato
DeWine
Dole
Domenici
Exon
Faircloth
Feinstein
Ford
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hatch
Helms
Hutchison
Inhofe
Johnston
Kassebaum
Kempthorne
Kerrey
Kyl
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Nunn
Pressler
Reid
Robb
Rockefeller
Roth
Santorum
Shelby
Simpson
Smith
Snowe
Stevens
Thomas
Thompson
Thurmond
Warner

NAYS--37

Akaka
Biden
Bingaman
Boxer
Bradley
Bryan
Bumpers
Chafee
Daschle
Dodd
Dorgan
Feingold
Glenn
Graham
Harkin
Hatfield
Heflin
Hollings
Inouye
Jeffords
Kennedy
Kerry
Kohl
Lautenberg
Leahy
Levin
Mikulski
Moseley-Braun
Moynihan
Murray
Packwood
Pell
Pryor
Sarbanes
Simon
Specter
Wellstone

NOT VOTING--1

Conrad

So the motion to lay on the table the amendment (No. 1245), as
modified, was agreed to.
vote on amendment no. 1211

The PRESIDING OFFICER. The question is on agreeing to the amendment
offered by the Senator from Arizona, Senator Kyl.
The yeas and nays have been ordered.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad]
is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 38, nays 61, as follows:

[Rollcall Vote No. 240 Leg.]

YEAS--38

Ashcroft
Brown
Burns
Campbell
Coats
Cochran
Coverdell
Craig
D'Amato
Dole
Domenici
Faircloth
Gramm
Grams
Grassley
Gregg
Helms
Hutchison
Inhofe
Kassebaum
Kempthorne
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Pressler
Santorum
Shelby
Simpson
Smith
Stevens
Thomas
Thurmond
Warner

NAYS--61

Abraham
Akaka
Baucus
Bennett
Biden
Bingaman
Bond
Boxer
Bradley
Breaux
Bryan
Bumpers
Byrd
Chafee
Cohen
Daschle
DeWine
Dodd
Dorgan
Exon
Feingold
Feinstein
Ford
Frist
Glenn
Gorton
Graham
Harkin
Hatch
Hatfield
Heflin
Hollings
Inouye
Jeffords
Johnston
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Moseley-Braun
Moynihan
Murray
Nunn
Packwood
Pell
Pryor
Reid
Robb
Rockefeller
Roth
Sarbanes
Simon
Snowe
Specter
Thompson
Wellstone

NOT VOTING--1

Conrad

So the amendment (No. 1211) was rejected.
Vote On Motion To Table Amendment No. 1224

The PRESIDING OFFICER. The question now occurs on the motion to table
amendment No. 1224, offered by the Senator from Delaware [Mr. Biden].
The yeas and nays have been ordered.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad]
is necessarily absent. [[Page S7850]]
The PRESIDING OFFICER. Are there any other Senators in the Chamber
who desire to vote?
The result was announced, yeas 53, nays 46, as follows:

[Rollcall Vote No. 241 Leg.]

YEAS--53

Abraham
Ashcroft
Baucus
Bennett
Bond
Brown
Burns
Byrd
Campbell
Coats
Cochran
Coverdell
Craig
D'Amato
DeWine
Dole
Domenici
Faircloth
Feinstein
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hatch
Helms
Hutchison
Inhofe
Kempthorne
Kyl
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Pressler
Reid
Rockefeller
Roth
Santorum
Shelby
Simpson
Smith
Specter
Stevens
Thomas
Thompson
Thurmond
Warner

NAYS--46

Akaka
Biden
Bingaman
Boxer
Bradley
Breaux
Bryan
Bumpers
Chafee
Cohen
Daschle
Dodd
Dorgan
Exon
Feingold
Ford
Glenn
Graham
Harkin
Hatfield
Heflin
Hollings
Inouye
Jeffords
Johnston
Kassebaum
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Mikulski
Moseley-Braun
Moynihan
Murray
Nunn
Packwood
Pell
Pryor
Robb
Sarbanes
Simon
Snowe
Wellstone

NOT VOTING--1

Conrad

So the motion to lay on the table the amendment (No. 1224) was agreed
to.
Mr. HATCH. Madam President, I move to reconsider the vote by which
the motion to lay on the table was agreed to.
The PRESIDING OFFICER. Without objection, the motion to lay on the
table is agreed to.
Mr. HATCH. Madam 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. HATCH. Madam President, I ask unanimous consent that the quorum
call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 1254 to Amendment No. 1199

Mr. HATCH. Madam President, on behalf of Senator Biden and myself, I
send a managers' amendment to the desk, which is agreed to by us, and
ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:

The Senator from Utah [Mr. Hatch], for himself and Mr.
Biden, proposes an amendment No. 1254 to amendment No. 1199.

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

On page 5, lines 8 and 9, strike ``113 (a), (b), (c), or
(f)'' and insert ``113(a) (1), (2), (3), (6), or (7)''.
On page 5, line 20, strike ``destructs'' and insert
``obstructs''.
On page 7, line 11, insert ``intent to commit murder or any
other felony or with'' after ``assault with''.
On page 9, line 12, strike ``any manner in'' and insert
``interstate''.
On page 10, between lines 18 and 19, insert the following
new subsection:
(f) Expansion of Provision Relating to Destruction or
Injury of Property Within Special Maritime and Territorial
Jurisdiction.--Section 1363 of title 18, United States Code,
is amended by striking ``any building, structure or vessel,
any machinery or building materials and supplies, military or
naval stores, munitions of war or any structural aids or
appliances for navigation or shipping'' and inserting ``any
structure, conveyance, or other real or personal property''.
On page 13, strike lines 5 through 8 and insert the
following:
(b) Penalty for Carrying Weapons or Explosives on an
Aircraft.--Section 46505 of title 49, United States Code, is
amended--
(1) in subsection (b), by striking ``one'' and inserting
``10''; and
(2) in subsection (c), by striking ``5'' and inserting
``15''.
On page 23, line 23, strike ``2339A)'' and insert ``2339A
of title 18, United States Code)''.
On page 29, line 25, strike ``determined'' and insert
``designated''.
On page 36, line 2, strike ``item of''.
On page 48, lines 21 and 22, strike ``Notwithstanding any
other provision of law,''.
On page 60, strike lines 1 and 2, and insert ``Columbia not
later than 30 days after receipt of actual notice under
subsection (b)(6).''
On page 57, strike lines 18 and 20, and insert ``The
designation shall take effect 30 days after the receipt of
actual notice under subsection (b)(6), unless otherwise
provided by law.''
On page 93, lines 22 through 24, strike ``to--'' and all
that follows through ``(ii) expand'' and insert ``to
expand''.
On page 95, line 15, strike ``shall provide'' and insert
``shall provide to appropriate State law enforcement
officials, as designated by the chief executive officer of
the State,''.
On page 95, strike line 23 and all that follows through
page 96, line 2 and insert the following:
(D) Allocation.--(i) Of the total amount appropriated
pursuant to this section in a fiscal year--
(I) $500,000 or 0.25 percent, whichever is greater, shall
be allocated to each of the participating States; and
(II) of the total funds remaining after the allocation
under subclause (I), there shall be allocated to each State
an amount which bears the same ratio to the amount of
remaining funds described in this subparagraph as the
population of such State bears to the population of all
States.
(ii) Definition.--For purposes of this subparagraph, the
term ``State'' means any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, American Samoa, Guam, and the Northern
Mariana Islands, except that for purposes of the allocation
under this subparagraph, American Samoa and the Commonwealth
of the Northern Mariana Islands shall be considered as one
State and that for these purposes, 67 percent of the amounts
allocated shall be allocated to American Samoa, and 33
percent to the Commonwealth of the Northern Mariana Islands.
On page 99, line 19, insert after ``Attorneys'' the
following: ``and personnel for the Criminal Division of the
Department of Justice''.
On page 99, between lines 21 and 22, insert the following:
``(c) Availability of Funds.--Funds made available pursuant
to this section, in any fiscal year, shall remain available
until expended.
On page 117, lines 3 and 4, strike ``right made
retroactively applicable to cases on collateral review by the
Supreme Court'' and insert ``right that is made retroactively
applicable''.
On page 133, line 3, strike ``(a) In General.--''.
On page 133, strike lines 8 through 10 and insert the
following:
(B) in paragraph (2), by striking ``; or'' and inserting
the following: ``and the results of such use affect
interstate or foreign commerce or, in the case of a threat,
attempt, or conspiracy, would have affected interstate or
foreign commerce if such use had occurred;'';
(C) by redesignating paragraph (3) as paragraph (4);
(D) by inserting after paragraph (2) the following:
``(3) against a victim, or intended victim, that is the
United States Government, a member of the uniformed services,
or any official, officer, employee, or agent of the
legislative, executive, or judicial branches, or any
department or agency, of the United States; and''; and
(E) in paragraph (4), as redesignated, by inserting before
the comma at the end the following: ``, or is within the
United States and is used in any activity affecting
interstate or foreign commerce''.
On page 133, line 21, before the end quotation marks insert
the following: ``The preceding sentence does not apply to a
person performing an act that, as performed, is within the
scope of the person's official duties as an officer or
employee of the United States or as a member of the Armed
Forces of the United States, or to a person employed by a
contractor of the United States for performing an act that,
as performed, is authorized under the contract.''.
On page 134, strike lines 1 through 8.
On page 140, line 20, insert after ``employee,'' the
following: ``or any person assisting such an officer or
employer in the performance of official duties,''.
On page 140, line 21, strike ``their official duties,'' and
insert ``such duties or the provision of such assistance,''.
On page 141, line 1, insert ``or manslaughter as provided
in section 1113'' after ``murder''.
On page 143, between lines 15 and 16, insert the following:
(i) Clarification of Maritime Violence Jurisdiction.--
Section 2280(b)(1)(A) of title 18, United States Code, is
amended--
(1) in clause (ii), by striking ``and the activity is not
prohibited as a crime by the State in which the activity
takes place''; and
(2) in clause (iii), by striking ``the activity takes place
on a ship flying the flag of a foreign country or outside the
United States,''.
On page 147, line 19, strike ``effective date of section
801'' and insert ``date of enactment of title VII''.
On page 148, line 13, insert ``of title VII'' after ``date
of enactment''.
On page 148, line 18, insert ``of title VII'' after ``date
of enactment''.
On page 149, lines 6 and 7, strike ``effective date of
section 801'' and insert ``date of enactment of title VII''.
On page 152, strike lines 3 through 5 and insert the
following: ``Except as otherwise provided in this title, this
title and the amendments made by this title shall take effect
1 year after the date of enactment of this Act.''.
On page 160, between lines 11 and 12, insert the following:
[[Page S7851]]

SEC. 902. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE
UNITED STATES PARK POLICE.

(a) In General.--There are authorized to be appropriated
from the General Fund of the Treasury for the activities of
the United States Park Police, to help meet the increased
needs of the United States Park Police, $1,000,000 for each
of the fiscal years 1996, 1997, 1998, 1999, and 2000.
(b) Availability of Funds.--Funds made available pursuant
to this section, in any fiscal year, shall remain available
until expended.

SEC. 903. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE
ADMINISTRATIVE OFFICE OF THE UNITED STATES
COURTS.

(a) In General.--There are authorized to be appropriated
from the General Fund of the Treasury for the activities of
the Administrative Office of the United States Courts, to
help meet the increased needs of the Administrative Office of
the United States Courts, $4,000,000 for each of the fiscal
years 1996, 1997, 1998, 1999, and 2000.
(b) Availability of Funds.--Funds made available pursuant
to this section, in any fiscal year, shall remain available
until expended.

SEC. 904. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE
UNITED STATES CUSTOMS SERVICE.

(a) In General.--There are authorized to be appropriated
from the General Fund of the Treasury for the activities of
the United States Customs Service, to help meet the increased
needs of the United States Customs Service, $10,000,000 for
each of the fiscal years 1996, 1997, 1998, 1999, and 2000.
(b) Availability of Funds.--Funds made available pursuant
to this section, in any fiscal year, shall remain available
until expended.
On page 51, line 10, replace ``1252(a)'' with ``1252a''.
On page 51, line 14, insert ``of this title'' after
``section 101(a)(43)''.

Mr. HATCH. Madam President, I urge adoption of the amendment.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
So the amendment (No. 1254) was agreed to.
Mr. HATCH. I move to reconsider.
Mr. DOLE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. BRADLEY. Madam President, I rise in support of the Comprehensive
Terrorism Prevention Act. The Oklahoma City bombing brought into sharp
focus the reality and horror of domestic terrorism in America. The
death toll of the bombing now stands at 167, making it the deadliest
mass murder in the history of the United States. This legislation will
enhance the ability of law enforcement to combat both foreign and
domestic terrorism. It is a strong, adequate response to the serious
problem of terrorism, and will provide the United States with the
necessary tools to respond to the international and domestic terrorist
threats and prosecute these despicable acts to the fullest extent of
the law.
Madam President, I had wanted to offer an amendment to this bill that
was designed to make a technical correction to the existing law banning
handgun bullets capable of piercing body armor. Law enforcement
represents the first line of defense against threats to our internal
security. My amendment therefore was designed to give the maximum level
of protection to our police officers by extending the current
composition-based ban on cop-killing bullets to provide that any bullet
capable of penetrating body armor will be banned, regardless of the
bullet's physical composition. I decided not to pursue adoption of the
amendment, however, because of my concern that it would slow action on
this important bill. I intend to offer this amendment to the next
appropriate vehicle.
Madam President, the provisions in this bill are vitally important to
our efforts to respond to international and domestic threats of
terrorism. I, therefore, fully support this bill, and I am confident
that because of our actions today, America will be more fortified
against the evils of terrorism.
Mr. PELL. Madam President. Today, as the Senate considers final
passage of S. 735, legislation designed to combat domestic and
international terrorism, I regret that I must oppose the final version
of the bill. I regret it because I believe that appropriate steps can
be taken by this Congress to add to the tools currently available to
law enforcement to combat terrorism. Especially in light of the recent,
horrific tragedy in Oklahoma City, enhancement of the ability to combat
the growing menace of terrorism is timely and necessary.
However, as Congress rushes to respond, we can not let our fervor for
action allow us to unwisely circumscribe basic protections long
enshrined in our Constitution. Unfortunately, I believe that as the
bill stands, the Senate has gone too far in changing and restricting
the application and availability of the right to appeal court decisions
under the writ of habeas corpus. This writ has been a fundamental part
of our jurisprudence since our country's founding. It is a critical
part of the means by which our system of justice guarantees that
everyone has the opportunity for a fair trial and that the rights
granted under the U.S. Constitution will be respected and enforced.
With this time-honored tradition of habeas corpus so much a part of
the bedrock legal principles which underpin our society, why are we
considering changing it all? The answer is clear and has been readily
acknowledged by the proponents of this so-called reform: they want to
expedite the execution of those who have received the death penalty. It
is that simple. There is no other driving force behind these efforts;
efforts which incidentally have been around for years now. Those who
favor the death penalty are frustrated that appeals under habeas corpus
are available for those who protest their innocence and claim they were
denied a fair trial. They argue that with an appeals process that lasts
for years, the deterrent effect of the death penalty is lost. Thus,
they want to drastically limit the ability of those convicted of crimes
and given the death penalty to appeal their convictions, despite the
fact that the sentence, if carried out, is irreversible and final.
Let me be clear. I harbor no sympathy for those appropriately found
guilty of murder and strongly believe that it is critical that they
face certain and severe punishment, including life in prison without
parole. The victims deserve no less, the criminal deserves no more.
However, I do oppose the death penalty. I do so because I believe that
the death penalty is not a conscionable punishment in a civilized
society. The reason is obvious; the death penalty once carried out
cannot be reversed if turns out that an individual really was innocent.
Indeed, I note that the last time an individual was executed in my
state of Rhode Island, it was later proved that he did not commit the
crime. It strikes me as remarkable that in a legal system which has the
death penalty, such as ours, that procedures would be sought which
limit the opportunities otherwise available for an individual to prove
his innocence. If anything, I believe that additional avenues should be
available for the proof of innocence, not fewer. But the bill before us
today does just that--it limits the rights of the accused to have their
convictions reviewed for error. This is wrong and in my opinion, a sad
day in the U.S. Senate.
Accordingly, I feel that the limited good done by the bill--by which
I mean the commendable efforts to fight terrorism--is outweighed by the
attack on habeas corpus which has been included. Interestingly enough,
efforts to limit the changes in habeas corpus to apply only to Federal
terrorism cases, the supposed reason for this bill, were rejected. The
entire habeas corpus system, meaning for both those cases brought in
State and Federal courts, has been changed. It brings into question the
true motivations behind attaching this language to this bill--a bill
that on its face has great public appeal and is being moved by a sense
of urgency given the events in Oklahoma City in April. But despite my
profound sympathy for the victims of the bombing in Oklahoma City--
indeed as well as all terrorist acts--and my desire to do something
about relieving the pain they suffer, I believe that in good
conscience, I cannot support the bill as it stands given the changes it
contains to habeas corpus.
JUDICIAL REVIEW OF CRIMINAL ALIEN CASES

Mr. KENNEDY. Madam President, section 303(e) broadens the class of
criminal aliens subject to special expedited deportation procedures and
eliminates all judicial review.
Every Member of this body is willing to take every reasonable step to
punish criminal aliens and deport them from the United States.
But the Justice Department reports that this provision is a step
backward [[Page S7852]] in our fight against crime. It disrupts strong
provisions against criminal aliens enacted in last year's crime bill
and only recently implemented through regulation. It ties the Attorney
General's hands in obtaining convictions against criminal aliens. And
it eliminates all judicial review in these cases--a major departure
from fundamental principles of due process.
This provision harms our crime fighting efforts in at least three
ways.
First, it eliminates the Attorney General's ability to target the
removal of the most serious offenders within the resources she has
available. It applies to all criminal aliens, regardless of the gravity
of their offense. Under current law, only aggravated felons--those
committing the most serious offenses--are placed in expedited
proceedings. Under this section, however, all criminal aliens must be
removed within 30 days, whether they are murderers or petty
shoplifters.
An immigrant with an American citizen wife and children sentenced to
1-year probation for minor tax evasion and fraud would be subject to
this procedure. And under this provision, he would be treated the same
as ax murderers and drug lords. INS is required to detain him. He gets
a quick deportation hearing from an immigration judge in the Justice
Department and he is out within 30 days--no judicial review, no
nothing.
Over the past 2 years, the President and Congress have increased
substantially the number of immigration officers and immigration judges
to handle these cases. As a result, over the next year, the
administration will double the number of criminal aliens deported to
more than 58,000.
But even with the additional funds, resources are still limited. The
Justice Department would be required to divert resources from the
Border Patrol, from naturalization, and from other important activities
to accommodate this provision.
The Immigration Subcommittee is now considering legislation which
will reform the criminal alien definitions. We should allow that
process to proceed, rather than make premature and drastic changes in
the current definition and due process.
The second way in which this provision harms law enforcement is that
it requires the Attorney General to detain all those in this broadened
category of criminal aliens, with no allowance for those whose home
countries will not or cannot take them back. This is the case today
with Cuba, Vietnam, and Bosnia. In these cases, the Attorney General
would be required to keep the alien in indefinite detention, even if
the offense is relatively light and the Attorney General believes the
alien would pose no danger to the community.
This is a drastic and unnecessary expense to the taxpayer. It takes
jail space and resources away from more pressing criminal enforcement.
Under this provision, a Cuban refugee convicted of shoplifting in
certain States could face life imprisonment in an INS jail.
Finally, by providing that all criminal aliens be removed within 30
days of the issuance of a deportation order, the provision ignores real
law enforcement needs. The 30-day requirement may be waived where
criminal aliens are cooperating with law enforcement as witnesses.
However, there is no allowance for other law enforcement purposes. For
example, an alien convicted and ordered deported for one offense could
not be held in the United States for trial under other offenses for
which the alien may subsequently be charged.
In the World Trade Center bombing, for example, one of the suspected
conspirators in the case was already in jail for another crime. Under
this provision, he would be subjected to mandatory deportation within
30 days of the issuance of a deportation order for the first crime, and
would not be available for prosecution under the second--and far more
serious--crime.
In addition to undermining the war on crime, this amendment virtually
eliminates the Attorney General's flexibility to grant discretionary
relief from deportation for long-time permanent residents convicted of
lesser crimes. This discretionary relief is available to permanent
residents who have resided here for at least 7 years. It is granted if
the immigration judge believes their equities in the United States--
such as American citizen spouses or children or contributions to their
communities--outweigh the gravity of their offense.
Under current law, permanent residents with aggravated felony
convictions who serve at least 5 years in prison are ineligible for
this discretionary relief from deportation. However, under this
provision, this discretionary relief would be denied to permanent
residents for carrying a concealed firearm, drug abuse, or addiction,
in which no conviction would even be required, any drug
offense involving more than 30 grams of marijuana, and other such
crimes. They could live here productively for 30 years and have an
American citizen wife and children. But for them, it is one strike and
you are out.

Similarly, refugees could also be deported to the hands of their
persecutors for relatively small offenses.
Under this provision, for example, a refugee from Rwanda could put a
bill in the mailbox and realize he forgot to put a stamp on it. When he
innocently tries to remove the letter from the mailbox and he is
arrested for tampering with the mail--a felony. Due to poor
representation, he accepts a plea bargained sentence of 1 year. To his
surprise, he is suddenly subject to expedited deportation with no
judicial review.
Under this provision, an older immigrant who came to the United
States as a child but was never naturalized gets tired of a rash of
robberies on her store and buys a firearm which she doesn't realize is
illegal. She is convicted of a felony. Even though she is married to an
American and has four U.S.-citizen children, she must be placed in
expedited deportation proceedings with no recourse to the courts.
A long-time permanent resident could decide to go fishing. He hooks
and kills what he does not realize is a rare fish, which is a strict
liability felony with a mandatory minimum of 1 year. Even though he is
married to an American and has U.S.-citizen children, he is convicted,
serves his time, and is immediately deported with no prospect for
judicial review.
These are the kinds of cases which can easily happen if this drastic
provision is allowed to stand.
Even if we accept--as this provision proposes--that virtually any
offense results in automatic deportation, the elimination of judicial
review alone would be grounds for opposing this provision. This is a
major departure from fair principles of due process.
The need for judicial review in this instance is obvious. Immigration
judges in the Justice Department make mistakes.
For example, in a recent ninth circuit case, the panel reviewed an
immigration judge's deportation order against someone convicted of drug
trafficking who claimed to be a U.S. citizen but did not have a lawyer.
The court found that the immigration judge's order was ``not based on
substantial evidence.'' In this case, a possible U.S. citizen could
have been erroneously deported if the court had not intervened.
It is because of cases such as these that the standing policy of the
American Bar Association is that legislation should not:

Limit the availability and scope of judicial review of
administrative decisions under the Immigration and
Nationality Act to less than what is provided . . . in the
Administrative Procedures Act: in particular judicial review
of . . . denials of stays of execution of exclusion or
deportation orders . . . and constitutional and statutory
writs of habeas corpus.

I had intended to offer an amendment to the counter-terrorism bill
which would correct these problems. While I will not offer the
amendment at this time, it is my hope that the grave problems of the
current language will be addressed as the bill proceeds.
The provision in the pending bill would do nothing to enhance our
ability to exclude suspected terrorists. It would impede current
efforts to remove dangerous criminal aliens. And I hope it will be
addressed at a later stage.
alien terrorist removal act

Mr. SMITH. Madam President, I rise this afternoon to commend Senators
Dole and Hatch for incorporating my bill, S. 270, the Alien Terrorist
Removal Act of 1995, into S. 735, the comprehensive antiterrorism
legislation now before the Senate. [[Page S7853]]
I also want to thank Senator Specter again for the opportunity to
testify before his Terrorism Subcommittee last month regarding my alien
terrorist removal bill.
My bill--now the alien terrorist removal title of S. 735--essentially
embodies the Smith-Simpson amendment that the Senate passed unanimously
as part of the crime bill in the last Congress. Unfortunately, certain
House Members of the conference committee insisted on the removal of
the Smith-Simpson amendment from the 1994 crime bill.
This year, however, Madam President, the Clinton administration
proposed its own substantially identical version of my bill as a part
of its omnibus antiterrorism legislation. Thus, I am confident that the
alien terrorist removal title of S. 735 will enjoy broad bipartisan
support here in the Senate, will be supported by the House as well, and
will be signed into law by the President in the next few weeks.
Let me summarize briefly for the benefit of my colleagues what the
alien terrorist removal title of S. 735 is all about. The alien
terrorist removal provisions of the bill would establish a new,
special, judicial procedure under which classified information can be
used to establish the deportability of alien terrorists.
The new procedures provided under title III of S. 735 are carefully
designed to safeguard national security interests, while at the same
time according appropriate protection to the necessarily limited
constitutional due process rights of aliens.
Under current law, Madam President, classified information cannot be
used to establish the deportability of terrorist aliens. Thus, when
there is insufficient unclassified information available to establish
the deportability of a terrorist alien, the Government faces two
equally unacceptable choices.
First, the Justice Department could declassify enough of its evidence
against the alien in question to establish his deportability.
Sometimes, however, that simply cannot be done because the classified
information in question is so sensitive that its disclosure would
endanger the lives of human sources or compromise highly sensitive
methods of intelligence gathering.
The Government's second, and equally untenable, choice would be
simply to let the terrorist alien involved remain in the United States.
Unfortunately, that is not just a hypothetical situation. It happens
in real cases. That is why the Department of
Justice--under both Republican and Democratic Presidents and Attorneys
General--has been asking for the authority granted by my bill--now
title III of S. 735--since 1988.

Utilizing the existing definitions of terrorism in the Immigration
Act of 1990 and of classified information in the Classified Information
Procedures Act, title III of S. 735 would establish a special alien
terrorist removal court made up of sitting U.S. District Judges that is
modeled on the special court that was created by the Foreign
Intelligence Surveillance Act.
Under title III of S. 735, the U.S. district judge sitting as the
special court would personally review the classified information
involved.
Without the compromising classified information, the alien in
question would be provided an unclassified summary of the classified
information involved.
Ultimately, the special court would determine whether, considering
the record as a whole, the Justice Department has proven, by clear and
convincing evidence, that the alien is a terrorist and should be
removed from the United States.
Finally, any alien ordered removed under the provisions of title III
of S. 735 would have the right to appeal to the full U.S. Court of
Appeals for the District of Columbia Circuit.
In closing, let me say that the most serious threat that our Nation
faces in the post-cold-war world is the scourge of terrorism.
Foreign terrorism came to our shores in 1993 with the World Trade
Center bombing. Tragically, with the Oklahoma City bombing in April, we
learned the bitter lesson that we face the threat of terrorism from
domestic extremists as well.
Now, this historic 104th Congress is doing its job by moving quickly
to respond to those twin threats. I urge the prompt passage of S. 735
and, once again, I commend the sponsors for incorporating my alien
terrorist removal bill into their landmark legislation.
Mr. FEINGOLD. Madam President, after the despicable attack on the
Murrah Federal building in Oklahoma City almost 2 months ago, I reacted
with the same feelings of shock and outrage as millions of other
Americans.
Those feelings run deeper than language can adequately describe. The
pictures of the ravaged building, the stories of the victims and the
families will never be forgotten.
Madam President, there should be absolutely no debate about our
national resolve to fight terrorism and to keep it from our shores. No
American wants to fear that the kind of thing that happened in Oklahoma
or at the World Trade Center in New York will occur in their hometown
or that one of their loved ones will be hurt by this kind of heinous
act.
Fighting terrorism requires that we take strong and forceful steps to
stop terrorists before they strike, and if they do strike, to
prosecute, convict and punish them.
We need to make sure that law enforcement officers have the resources
to investigate and prosecute terrorist acts; we need to give them tools
to apprehend terrorists before they strike.
There are a number of provisions of this legislation that are aimed
at achieving that goal, and I strongly support those proposals.
The bill would make available about $1.2 billion to increase law
enforcement resources to carry out these tasks. There are provisions
added during floor consideration to provide for tracer elements to be
placed in explosives to help identify where these materials are likely
to have originated. There are other provisions included in this bill
that are also likely to help us fight terrorist threats.
Nevertheless, I intend to vote against this legislation. I believe
that in the haste to respond to a national tragedy, we may be making
mistakes that will be difficult to undo.
There are a number of provisions in this legislation that are
problematic, and quite frankly, I am equally concerned about the
process which brought this measure to the floor of the Senate, the
hasty debate, and the pressure to clear the measure without
understanding the implications of what is being proposed.
The Administration proposed legislation to deal with international
terrorism earlier this year; that initial proposal was quickly reshaped
as a result of the Oklahoma City tragedy into a bill to deal with
domestic terrorism. Although hearings were held in the Judiciary
Committee, the Committee never met to debate the bill, there is no
committee report, and the measure which was called up by the leader was
drafted in private and introduced shortly before many Members left town
for the Memorial Day recess.
It has also become the vehicle for what is called ``habeas corpus
reform.'' What is described as ``reform'' is in fact an attempt to
rewrite and weaken what is known as the ``Great Writ''--the common law
instrument that allowed citizens to challenge the lawfulness of their
detention by the crown. Suddenly, habeas reform has become a tool for
fighting terrorism. I find that a stretch of the imagination. What we
have is a classic, political move to get another agenda wrapped into an
emotionally charged, moving vehicle.
In the past year, many of our basic, fundamental protections against
government intrusion contained in the Bill of Rights have been under
assault. I think many Americans are unaware that these reform movements
are in fact assaults upon fundamental rights--not just the rights of
criminals, but the rights of all Americans to be free from government
overreaching and harassment.
I spoke at some length earlier today on my very grave concerns about
how the so-called habeas reforms engrafted into this bill aimed at
speeding up executions threaten the rights of the innocent and raise
the spectre of gross miscarriage of justice taking place.
There are also a number of other provisions of this bill that I
believe are either not well thought out or misguided.
For example, last night the Senate adopted by a voice vote an
amendment [[Page S7854]] authorizing a greater role for the military in
domestic antiterrorism activities.
Provisions dealing with this issue were included in the
administration's original proposal and they were of great concern to me
and a number of Senators who do not believe that the military should be
playing a role in domestic law enforcement efforts.
Madam President, one of the hallmarks of a democratic society is the
separation of the military--whose primary function is to defend the
Nation from outside threats--from internal law enforcement
responsibilities. Military dictatorships use soldiers to enforce their
laws; democracies do not.
This country has a very closely defined set of rules, arising out of
the Bill of Rights itself and applied by our judicial system, which
guarantee due process and fairness in the administration of justice.
Law enforcement personnel are trained in carrying out these rules;
soldiers are not.
I recognized, Madam President, that a very sincere effort was made by
a number of the principal authors of these provisions to craft a very
narrow exception to the posse comitatus law, the 1878 statute which
limits the role of the military in domestic law enforcement activities.
However, I believe that both the process used to craft this amendment
and the substance of this amendment are flawed. This broadening of the
authority of the military, albeit in a narrow area, was not part of a
bill reported by the committees of jurisdiction, but rather was
introduced and voice voted within the span of a few hours last night.
There were no hearings on this specific proposal, no committee report
filed outlining the expectations of how it will operate, and no real
public debate over its provisions. Rather, we had a voice vote on
language most of us had first seen a few hours earlier.
That is not the way to deal with such a fundamental issue. There is
no reason for this hasty disposition of this kind of important issue.
Beyond the process used, I have concerns about whether the amendment
itself may operate to open the door to perhaps an even broader role for
the military than even the administration had initially proposed. The
administration's proposal did not explicitly give the military the
authority to make an arrest, although it had language about disabling
and disarming individuals that was troublesome. The amendment adopted
last night gives the Department of Justice and the Department of
Defense the
authority to promulgate regulations governing the role of the military
and provides that those regulations shall not authorize arrests by the
military except under ``exigent circumstances'' or as otherwise
authorized by law. In other words, the military is given the power to
make arrests, but the regulations will limit that authority to certain
circumstances.

Madam President, while I recognize the authority being created is
limited to cases involving biological or chemical weapons, I am
concerned that we have opened a door that may be hard to close in the
future when the case is made that the military can play a greater role,
for example, in the war on drugs or other areas which have been the
subject of heightened public concern. I do not believe that it is
necessary to give the military arrest powers within the U.S. If
military needs to be involved in a domestic investigation, I believe
that civilian law enforcement officials should be present and available
to make any arrests needed. The notion that military personnel will be
operating without accompanying civilian officials is very troubling. If
authority is needed to detain an individual until a civilian law
enforcement official arrives, arguments can be made for that authority,
but that does not justify, in my mind, granting a direct power to make
an arrest under any type of circumstances.
Madam President, in a similar vein, I am concerned about the
amendment adopted yesterday which loosens the requirements in current
law for issuance of a warrant for what is called a ``roaming'' or
``roving'' wiretap. The Fourth Amendment, in very explicit language,
requires that no search warrant may issue unless ``particularly
describing the place to be searched, and the persons or things to be
seized.''
The Fourth Amendment was written in such precise terms because the
drafters of the Constitution were aware of the practice of British
authorities of obtaining sweeping search warrants that allowed them to
search wherever and whenever they pleased. The rights of the people to
be secure in their homes from government officials barging in was not a
right recognized before the American revolution. It is perhaps a unique
American right, but it is one that many of us regard as sacrosanct.
The requirement for specificity is especially important with respect
to wire tap authority because a wire tap is particularly invasive--no
one knows that a government agent is listening to your private
conversations. The law has long required that a wire tap warrant be
very narrowly and carefully drawn. Current law allows a roaming wire
tap--that is one that moves from place to place--only where there is an
allegation that the suspect is moving form place to place with the
intent to avoid interception of the communication. The amendment
adopted strikes the ``intent'' requirement and allows such a wiretap
where the person's actions and conduct would have the effect of
thwarting interception from a specified facility. Again, this provision
opens the door to greater government powers. I am not convinced that an
adequate case has been made that this broader and potentially abusive
authority is needed.
There are other provisions of the bill that may also have problems
that I will not take the time to outline here. In sum, I
think the bill was hastily crafted and goes beyond what is needed to
deal with a terrorist threat.

Madam President, less than a year ago, I confronted this same
situation when the Clinton administration's crime bill came to a final
vote on the floor of the Senate.
Just as with this bill, there were a number of provisions in that
legislation that I supported. I supported the concept of putting more
police officers on the streets. I supported prevention programs as
sensible and cost-effective ways to head off criminal activity.
But I objected to other provisions.
I objected to the expansion of the death penalty, a form of state-
sponsored violence that few civilized nations practice. I note in
today's papers that the Supreme Court of South Africa, a nation that
has executed people for 350 years has ruled that the death penalty
violates that nation's constitution.
The pending legislation would also add new death penalties to federal
law. I oppose those provisions as well.
I also opposed some of the provisions of last year's crime bill that
I believed amounted to unnecessary and counterproductive Federal
intrusion into the war on crime, which is best fought at the State and
local level.
Because of these objections, I voted against that bill.
Because of my objections today, I am voting against this one.
I believe that we are acting in haste, making law from outrage and
not from deliberation.
I believe that despite good intentions and provisions of the bill
that would provide additional resources to law enforcement personnel
fighting terrorists, that we are not passing a thoughtful, meaningful
response to a real threat. Instead, we are rewriting habeas corpus law
because some proponents of these changes saw an opportunity in this
bill to move their agenda. We are opening the door to a greater role
for Federal Government take actions that will invade the lives of our
constituents without reasonable grounds.
When we act in haste, we multiply our chances of error and I see
errors in this bill. I cannot support it.
Mrs. MURRAY. Madam President, I rise today to speak in support of S.
735, the antiterrorism bill.
This bill poses serious dilemmas for me, and for this Congress. It
requires us to face some of the real dangers that exist in the modern
world, and it motivates us to act in the interest of protecting the
people. But it also makes us face the cost of freedoms we enjoy as
Americans.
It is disturbing to me when the Congress is faced with a decision to
increase protection for the people by chipping away at the edges of
freedom.
But in this case, the imperative is clear. We have heard many
compelling [[Page S7855]] stories on this floor about the horrors of
Oklahoma City, the tragedy of the World Trade Center. These stories are
real; they involved real Americans in today's world. I need not repeat
these stories here. Let me simply acknowledge what we all feel: These
events have shaken every American to the core of their being. To reduce
the likelihood of such events occurring in the future, and to preserve
a peaceful existence for Americans, we must act.
We must empower our law enforcement officials to zero in on terrorist
organizations, at home and abroad. This bill does that.
We must make these crimes a high priority within the judicial system,
and clearly subject terrorist activities to prosecution. This bill does
that.
We must cripple the ability of terrorists to finance their activities
in our own backyard. This bill does that.
We must draw on all the expertise of the Government, including the
military where appropriate. This bill does that.
This bill contains many provisions that will improve our ability as a
nation to prevent, combat, and prosecute against terrorist activities.
As a result of the World Trade Center and Oklahoma City bombings, we
owe it to the victims to act. As Senators in an increasingly dangerous
world, we owe it to all citizens to protect the quality of life unique
to the United States of America. Therefore, I will support S. 735.
Madam President, having said that, I must add a few concerns. I do
not think it is ever a good idea to legislate in the heat of the
moment. Cases like this are most susceptible to the laws of unintended
consequences. As we broaden the reach of law enforcement, and as we
broaden the application of penalties, we as elected officials have an
equal obligation to keep from unnerving the people we are trying to
protect. We have no idea what kind of mistakes will be made, or whose
rights will be infringed, when this bill is implemented. It will be
critically important for law enforcement officials of all types to keep
in mind the responsibilities to protect the citizens that go along with
the kind of broad new powers we are bestowing on them.
Likewise, we have to recognize the dangers of internal hatred and
anger. If there is one thing we can conclude from recent tragedies, it
is this: We must remain vigilant against extremism of all types. These
are forces that may be motivated by legitimate feelings of frustration
with the Government. But there are very clear lines that we must not
cross. Our system of Government is geared toward discourse and debate;
if we lose the ability to air out our differences through honest
debate, and if we cannot agree to disagree when we have to, the entire
country will suffer. We all have a responsibility to zealously defend
our collective rights to democratic government.
To this end, I feel strongly that all of us--politicians, activists,
citizens--have a contribution to make toward maintaining civil
discourse. We can improve the environment dramatically by simply toning
down the rhetoric. If we are going to protect constitutional democracy
and our rights as citizens to express our opinions, we have to learn to
respect each other as people.
Finally, Madam President, I would like to add a comment regarding the
amendment offered by the ranking member of the Judiciary Committee,
Senator Biden. He rightfully pointed out that this legislation takes on
an issue that is far too complicated to resolve here: habeas corpus
reform. This is the wrong time and the wrong bill on which to attempt
to resolve a debate that has raged in this country for years. As I said
before, I believe it is unwise to legislate in the heat of the moment.
By including the limits on habeas corpus in this bill, the majority is
doing just that. I believe the Senate should instead have a thorough,
thoughtful debate about habeas corpus independent of this legislation.
It is simply too important to run through the Senate on a bill narrowly
targeting antiterrorism activities.
Therefore, I support the Biden amendment. While it is obvious the
votes are not there to postpone the debate over habeas corpus to a
later time, at least the point has been made on the Senate floor.
Madam President, I hope my remarks are persuasive in pointing out the
dilemmas in passing this legislation. While we can take comfort knowing
this bill strengthens the hand of law enforcement to aggressively
pursue terrorists, none of us should take comfort in what it might mean
for innocents caught in the middle as the antiterrorism effort
intensifies. I support S. 735 with some reluctance, and sincerely hope
that authorities will use their new powers as judiciously as the spirit
of freedom implores.
Madam President, on Monday, June 5, the Senate adopted by a vote of
90-0 an amendment by the Senator from California, Senator Feinstein, to
require the use of taggants to mark materials used in the construction
of explosives. I was unavoidably detained, and therefore not present
for that vote. I apologize to the leaders for my absence; had I been
present, I would have voted ``aye'' on the Feinstein amendment. If
there is one straight-forward thing we can do to help law enforcement
investigate bombings, it is requiring the use of taggants.
Mr. WARNER. Madam President, the horrific April 19 bombing of the
Alfred P. Murrah Federal Building in Oklahoma City shocked and stunned
Americans. Every single one of us has been forced to confront the risks
and the vulnerability of our open society. The United States needs a
systematic and comprehensive counterterrorism policy to detect, deter,
prevent, and punish terrorist acts.
Congress must consider and pass an effective antiterrorism bill; we
must do so on a bipartisan basis. The problem is too dangerous to be
treated in a partisan manner. We must stand together to protect the
citizens of the United States.
One of the greatest fears that we all have for the safety of our
citizens is the use of weapons of mass destruction by terrorist
elements. As demonstrated by the recent Tokyo subway tragedy, even very
limited use of chemical agents can cause widespread death and disaster.
We must ensure that our Nation has the ability to marshall all
available assets and expertise to deal with the potential use of mass
destruction by terrorists.
For that reason, I am pleased to join in cosponsoring an amendment to
authorize Department of Defense assistance to law enforcement
authorities in emergency situations involving biological and chemical
weapons. This amendment is patterned on authority which currently
exists for the Department of Defense to provide technical assistance to
incidents involving nuclear weapons and materiel. The amendment has
been carefully drawn to limit the involvement of the military in law
enforcement activities. Indeed, we have focused on the critical need to
marshall the unique expertise of the military for use in these
catastrophic situations.
The legislation pending before the Senate today will lay the
foundation for an antiterrorism plan for America.
As the Senate considers legislation directed at antiterrorism, I am
aware that we will also consider subsequently during this session
modified anticrime legislation. I will continue to support measures
that will provide local and State officials, and law enforcement
personnel, the appropriate resources needed to combat the rising crime
rate. This week, the Federal Bureau of Investigation released
preliminary crime reports for 1994. The reports showed crime rates
dropping from the year before. The crime rate may appear to decrease
slightly, but not enough to calm the fears of many citizens. Crime will
continue to terrorize Americans until the Congress can assist the
States with adequate funds and legal tools necessary to make a drastic
reduction in the crime rate.
I have no doubt that the General Services Administration has stepped
up security at our Federal buildings as a result of the tragic events
which occurred in Oklahoma City. The House held hearings on Federal
building security shortly after the event.
As the chairman of the Subcommittee on Transportation and
Infrastructure, it is my intention to hold a hearing soon regarding
building security under the auspices of the Federal Protective Service
of the GSA.
I am increasingly concerned by recent reports which have indicated
that memos produced within GSA have indicated internal skepticism about
how reductions in the Federal Protective [[Page S7856]] Service of the
GSA could adversely affect the agency's ability to assess and analyze
Federal building security in the District of Columbia, Maryland, and
Virginia.
It is my intention to review this matter for the Senate.
Madam President, while the Senate debates the legislation before us
today, we must all realize that no legislation can make America totally
safe. An open, democratic society simply will not allow for total and
absolute security for our Nation.
Because of the freedom our society demands, we must be evervigilant
concerning possible threats to our citizens. I have always been totally
committed to maintaining the readiness of our Armed Forces whenever a
threat to our national security becomes imminent. I am also totally
committed to maintaining the readiness of our Federal, State, and local
law enforcement personnel to confront any domestic threat which may
arise anywhere in the United States.
I do have a major concern with this legislation: we must ensure that
its provisions do not violate the Constitution or place inappropriate
restrictions on the personal freedoms protected by the first amendment.
I will not support provisions which will prohibit free exercise of
religion or speech, or which impinge on the freedom of association.
Mr. CRAIG. Madam President, I abhor and condemn terrorism in any
form. Our Nation cannot tolerate terrorism--be it foreign or domestic--
and our Nation's law enforcement must have the tools it needs to fight
this menace.
There are some very important reforms in this bill that would be
helpful. They include habeas corpus reform, which is the only change
that will really have an impact in the Oklahoma City case.
I will vote for this bill in order to send a strong message of
support for those reforms to the House and any future House-Senate
conference working on this legislation.
However, for the record, my vote is not an endorsement of each and
every provision of this bill. I am not convinced that the bill before
us today is the best we can do to assist law enforcement in fighting
against terrorism, and I would like to discuss some of the specific
reservations I have.
First and foremost are potential constitutional problems such as
those relating to the sections on restricting fundraising, excluding
and deporting aliens, the new wiretapping authority we adopted last
night, and acquisition of information including consumer records.
In all fairness, there are conflicting opinions even among my
colleagues who are lawyers about whether some of these provisions will
survive court review. I have been assured that the safeguards contained
in the bill are sufficient to overcome potential constitutional
problems. For that reason, I have decided not to oppose the entire bill
on this basis. However, I remain concerned about these provisions and
would hope they can be further improved before the Senate takes action
on a final bill.
Another section of the bill that I think could be improved is the new
language relating to taggants in explosives. Although I joined a
unanimous Senate in voting for changes made on the floor during debate,
I am not by any means convinced this is the best way to approach that
issue. After the Senate acted, I was contacted by several resource-
based industries in my State suggesting concerns that had not been
raised or reviewed previously. I hope the House and any future
conference will take a close look at that section and make improvements
that will balance the interests of law enforcement with those of the
affected industries.
There are other items in this bill that I question, but those are
some of the most important, I do not think we would be sacrificing any
tools needed by law enforcement if we were to make improvements in
these sections.
I commend the majority leader and Senator Hatch for their hard work
to deliver a bill that will strengthen the hand of law enforcement in
fighting terrorism. I hope the bill will be improved as it moves
through the remaining steps of the legislative process, so that I can
vote for a truly effective package.
Mr. BIDEN. Madam President, the Oklahoma City bombing and the earlier
bombing of the World Trade Center demonstrate clearly that the United
States must respond seriously to those--whether foreign or domestic--
who seek to make their point through the mass killing of Americans.
These events demand that we examine our current laws and practices to
ensure that we are doing everything that is necessary and appropriate
to guard against the threat. We must take strong action to counteract
terrorism, both foreign and domestic.
There are steps we can take and should take.
Let me outline the key terrorism proposals from the President's bill
that are contained in the substitute we will vote on shortly. These
provisions include:
A new offense to assure Federal jurisdiction over all violent acts
which are motivated by international terrorism.
This provision will cover gaps in current Federal law--for example, a
terrorist who commits mass murder on private or State-owned property
may now be subject only to State court jurisdiction.
This offense carries a new death penalty, complementing the terrorism
death penalty in last year's crime bill.
The bill will implement an international treaty to require a
detection agent to be added to plastic explosives.
It will enhance the Government's ability to obtain consumer credit
reports and hotel/motel and vehicle rental records in foreign
intelligence investigations. It does not change the law governing such
information for domestic investigations.
It gives the Government greater ability to exclude from entering the
United States those aliens who are involved in terrorist activities.
Let me also mention the amendments offered by Democrats to add tough
law enforcement provisions to the Republican bill.
The Lieberman amendment, which was adopted, expands wiretap
authority. It gives new authority for multiple-point wiretaps provided
to Federal law enforcement.
Another Lieberman amendment, which was defeated, with no Republicans
voting for it, gives authority for emergency wiretaps--identical to
authority currently available for organized crime investigations--in
terrorist investigations.
The Feinstein amendment, which was adopted, requires taggants. It
gives authority to Secretary of the Treasury to require taggants in
explosives. Taggants assist law enforcement by providing a means to
trace the source of an explosive.
The Nunn-Thurmond-Biden-Warner amendment, also adopted, gives new
assistance against chemical and biological weapons. The posse comitatus
exception to allow the use of military to assist in the investigations
of chemical and biological weapons.
The Kerrey amendment, also adopted, increases funding for Federal
antiterrorist enforcement. It adds $262 million for ATF new explosives
investigators and for Secret Service security initiatives.
The Boxer amendment, again, adopted, increases penalties for gun and
explosives crimes. It extends statute of limitations for National
Firearms Act offenses.
A Levin amendment, adopted by the Senate, increases penalties for the
use of explosives.
A Feinstein amendment, again, adopted, prohibits the distribution of
bombmaking material intended to be used for a crime.
A Leahy amendment, first as adopted, assists victims of terrorist
attacks. It provides assistance and compensation for victims of
terrorist attacks.
The Leahy-McCain amendment, as adopted, raises special assessment on
criminal penalties.
The Specter-Simon-Kennedy amendment, as adopted, deports criminal
aliens. It enhances protection of classified information when deporting
alien terrorists.
Another Feinstein amendment, also adopted, increases international
efforts against terrorism. It prohibits arms sales to countries who are
not cooperating fully with U.S. antiterrorist efforts.
Particularly with these tough amendments now added to the bill, this
counterterrorism is a big step forward [[Page S7857]] in giving law
enforcement new tools to fight and prevent terrorism. I urge my
colleagues to support the bill.
The PRESIDING OFFICER. The Senator majority leader.
Mr. DOLE. Let me announce for my colleagues, we are going to move to
the telecommunications bill after this vote, and I understand Senator
Hollings and Senator Pressler are ready to do that. We will have
opening statements. I have an amendment that I will offer. I think the
distinguished Democratic leader has an amendment he may offer. These
amendments may be accepted. But we are trying to find a couple of bona
fide amendments that can be offered tonight and voted on in the
morning.
If that is the case, if we have a couple, we can debate those
amendments tonight and not have any more votes tonight and have those
votes in the morning.
I will assume we can find one additional amendment so this will be
the last vote tonight. Any votes that are ordered tonight will occur
probably fairly early in the morning, around 9 o'clock.
Mr. HATCH. Madam President, are the yeas and nays ordered?
The PRESIDING OFFICER. No, they have not been ordered.
Mr. HATCH. I ask for the yeas and nays on final passage.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question now occurs on agreeing to
amendment No. 1199, as amended.
So the amendment (No. 1199), as amended, was agreed to.
The PRESIDING OFFICER. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed for a third reading and was read
the third time.
The PRESIDING OFFICER. The bill having been read the third time, the
question is, shall it pass? The yeas and nays have been ordered. The
clerk will call the roll.
The legislative clerk called the roll.
Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad]
is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
who desire to vote?
The result was announced--yeas 91, nays 8, as follows:

[Rollcall Vote No. 242 Leg.]

YEAS--91

Abraham
Akaka
Ashcroft
Baucus
Bennett
Biden
Bingaman
Bond
Boxer
Bradley
Breaux
Brown
Bryan
Bumpers
Burns
Byrd
Campbell
Chafee
Coats
Cochran
Cohen
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Dole
Domenici
Dorgan
Exon
Faircloth
Feinstein
Ford
Frist
Glenn
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Harkin
Hatch
Heflin
Helms
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnston
Kassebaum
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Kyl
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Murkowski
Murray
Nickles
Nunn
Pressler
Pryor
Reid
Robb
Rockefeller
Roth
Santorum
Sarbanes
Shelby
Simpson
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner

NAYS--8

Feingold
Hatfield
Moseley-Braun
Moynihan
Packwood
Pell
Simon
Wellstone

NOT VOTING--1

Conrad

So the bill (S. 735), as amended, was passed as follows:
S. 735
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Comprehensive Terrorism
Prevention Act of 1995''.

SEC. 2. TABLE OF CONTENTS.

The table of contents of this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of contents.

TITLE I--SUBSTANTIVE CRIMINAL LAW ENHANCEMENTS

Sec. 101. Increased penalty for conspiracies involving explosives.
Sec. 102. Acts of terrorism transcending national boundaries.
Sec. 103. Conspiracy to harm people and property overseas.
Sec. 104. Increased penalties for certain terrorism crimes.
Sec. 105. Mandatory penalty for transferring an explosive material
knowing that it will be used to commit a crime of
violence.
Sec. 106. Penalty for possession of stolen explosives.
Sec. 107. Enhanced penalties for use of explosives or arson crimes.
Sec. 108. Increased periods of limitation for National Firearms Act
violations.

TITLE II--COMBATING INTERNATIONAL TERRORISM

Sec. 201. Findings.
Sec. 202. Prohibition on assistance to countries that aid terrorist
states.
Sec. 203. Prohibition on assistance to countries that provide military
equipment to terrorist states.
Sec. 204. Opposition to assistance by international financial
institutions to terrorist states.
Sec. 205. Antiterrorism assistance.
Sec. 206. Jurisdiction for lawsuits against terrorist states.
Sec. 207. Report on support for international terrorists.
Sec. 208. Definition of assistance.
Sec. 209. Waiver authority concerning notice of denial of application
for visas.
Sec. 210. Membership in a terrorist organization as a basis for
exclusion from the United States under the Immigration
and Nationality Act.

TITLE III--ALIEN REMOVAL

Sec. 301. Alien terrorist removal.
Sec. 302. Extradition of aliens.
Sec. 303. Changes to the Immigration and Nationality Act to facilitate
removal of alien terrorists.
Sec. 304. Access to certain confidential immigration and naturalization
files through court order.

TITLE IV--CONTROL OF FUNDRAISING FOR TERRORISM ACTIVITIES

Sec. 401. Prohibition on terrorist fundraising.
Sec. 402. Correction to material support provision.

TITLE V--ASSISTANCE TO FEDERAL LAW ENFORCEMENT AGENCIES

Subtitle A--Antiterrorism Assistance

Sec. 501. Disclosure of certain consumer reports to the Federal Bureau
of Investigation for foreign counterintelligence
investigations.
Sec. 502. Access to records of common carriers, public accommodation
facilities, physical storage facilities, and vehicle
rental facilities in foreign counterintelligence and
counterterrorism cases.
Sec. 503. Increase in maximum rewards for information concerning
international terrorism.

Subtitle B--Intelligence and Investigation Enhancements

Sec. 511. Study and report on electronic surveillance.
Sec. 512. Authorization for interceptions of communications in certain
terrorism related offenses.
Sec. 513. Requirement to preserve evidence.

Subtitle C--Additional Funding for Law Enforcement

Sec. 521. Federal Bureau of Investigation assistance to combat
terrorism.
Sec. 522. Authorization of additional appropriations for the United
States Customs Service.
Sec. 523. Authorization of additional appropriations for the
Immigration and Naturalization Service.
Sec. 524. Drug Enforcement Administration.
Sec. 525. Department of Justice.
Sec. 526. Authorization of additional appropriations for the Department
of the Treasury.
Sec. 527. Funding source.
Sec. 528. Deterrent against Terrorist Activity Damaging a Federal
Interest Computer.

TITLE VI--CRIMINAL PROCEDURAL IMPROVEMENTS

Subtitle A--Habeas Corpus Reform

Sec. 601. Filing deadlines.
Sec. 602. Appeal.
Sec. 603. Amendment of Federal Rules of Appellate Procedure.
Sec. 604. Section 2254 amendments.
Sec. 605. Section 2255 amendments.
Sec. 606. Limits on second or successive applications.
Sec. 607. Death penalty litigation procedures.
Sec. 608. Technical amendment.

Subtitle B--Criminal Procedural Improvements

Sec. 621. Clarification and extension of criminal jurisdiction over
certain terrorism offenses overseas.
Sec. 622. Expansion of territorial sea.
Sec. 623. Expansion of weapons of mass destruction statute.
Sec. 624. Addition of terrorism offenses to the RICO statute.
Sec. 625. Addition of terrorism offenses to the money laundering
statute. [[Page S7858]]
Sec. 626. Protection of current or former officials, officers, or
employees of the United States.
Sec. 627. Addition of conspiracy to terrorism offenses.
Sec. 628. Clarification of Federal jurisdiction over bomb threats.

TITLE VII--MARKING OF PLASTIC EXPLOSIVES

Sec. 701. Findings and purposes.
Sec. 702. Definitions.
Sec. 703. Requirement of detection agents for plastic explosives.
Sec. 704. Criminal sanctions.
Sec. 705. Exceptions.
Sec. 706. Investigative authority.
Sec. 707. Effective date.
Sec. 708. Study and requirements for tagging of explosive materials,
and study and recommendations for rendering explosive
components inert and imposing controls on precursors of
explosives.

TITLE VIII--NUCLEAR MATERIALS

Sec. 801. Findings and purpose.
Sec. 802. Expansion of scope and jurisdictional bases of nuclear
materials prohibitions.

TITLE IX--MISCELLANEOUS PROVISIONS

Sec. 901. Prohibition on distribution of information relating to
explosive materials for a criminal purpose.
Sec. 902. Designation of Cartney Koch McRaven Child Development Center.
Sec. 903. Foreign air travel safety.
Sec. 904. Proof of citizenship.
Sec. 905. Cooperation of fertilizer research centers.
Sec. 906. Special assessments on convicted persons.
Sec. 907. Prohibition on assistance under Arms Export Control Act for
countries not cooperating fully with United States
antiterrorism efforts.
Sec. 908. Authority to request military assistance with respect to
offenses involving biological and chemical weapons.
Sec. 909. Revision to existing authority for multipoint wiretaps.
Sec. 910. Authorization of additional appropriations for the United
States Park Police.
Sec. 911. Authorization of additional appropriations for the
Administrative Office of the United States Courts.
Sec. 912. Authorization of additional appropriations for the United
States Customs Service.
Sec. 913. Severability.

TITLE X--VICTIMS OF TERRORISM ACT

Sec. 1001. Title.
Sec. 1002. Authority to provide assistance and compensation to victims
of terrorism.
Sec. 1003. Funding of compensation and assistance to victims of
terrorism, mass violence, and crime.
Sec. 1004. Crime victims fund amendments.
TITLE I--SUBSTANTIVE CRIMINAL LAW ENHANCEMENTS

SEC. 101. INCREASED PENALTY FOR CONSPIRACIES INVOLVING
EXPLOSIVES.

Section 844 of title 18, United States Code, is amended by
adding at the end the following new subsection:
``(n) Except as otherwise provided in this section, a
person who conspires to commit any offense defined in this
chapter shall be subject to the same penalties (other than
the penalty of death) as those prescribed for the offense the
commission of which was the object of the conspiracy.''.

SEC. 102. ACTS OF TERRORISM TRANSCENDING NATIONAL BOUNDARIES.

(a) Redesignation.--(1) Chapter 113B of title 18, United
States Code (relating to torture) is redesignated as chapter
113C.
(2) The chapter analysis of title 18, United States Code,
is amended by striking ``113B'' the second place it appears
and inserting ``113C''.
(b) Offense.--Chapter 113B of title 18, United States Code,
is amended by inserting after section 2332a the following new
section:

``Sec. 2332b. Acts of terrorism transcending national
boundaries

``(a) Prohibited Acts.--
``(1) Whoever, in a circumstance described in subsection
(b), commits an act within the United States that if
committed within the special maritime and territorial
jurisdiction of the United States would be in violation of
section 113(a), (1), (2), (3), (6), or (7), 114, 1111, 1112,
1201, or 1363 shall be punished as prescribed in subsection
(c).
``(2) Whoever threatens, attempts, or conspires to commit
an offense under paragraph (1) shall be punished under
subsection (c).
``(b) Jurisdictional Bases.--
``(1) This section applies to conduct described in
subsection (a) if--
``(A) the mail, or any facility utilized in interstate
commerce, is used in furtherance of the commission of the
offense;
``(B) the offense obstructs, delays, or affects interstate
or foreign commerce in any way or degree, or would have
obstructed, delayed, or affected interstate or foreign
commerce if the offense had been consummated;
``(C) the victim or intended victim is the United States
Government or any official, officer, employee, or agent of
the legislative, executive, or judicial branches, or of any
department or agency, of the United States;
``(D) the structure, conveyance, or other real or personal
property was in whole or in part owned, possessed, or used
by, or leased to the United States, or any department or
agency thereof;
``(E) the offense is committed in the territorial sea
(including the airspace above and the seabed and subsoil
below, and artificial islands and fixed structures erected
thereon) of the United States; or
``(F) the offense is committed in places within the United
States that are in the special maritime and territorial
jurisdiction of the United States.
``(2) Jurisdiction shall exist over all principals,
coconspirators, and accessories after the fact, of an offense
under subsection (a) if at least one of the circumstances
described in paragraph (1) is applicable to at least one
offender.
``(c) Penalties.--
``(1) Whoever violates this section shall, in addition to
the punishment provided for any other crime charged in the
indictment, be punished--
``(A) if death results to any person, by death, or by
imprisonment for any term of years or for life;
``(B) for kidnapping, by imprisonment for any term of years
or for life;
``(C) for maiming, by imprisonment for not more than 35
years;
``(D) for assault with intent to commit murder or any other
felony or with a dangerous weapon or assault resulting in
serious bodily injury, by imprisonment for not more than 30
years;
``(E) for destroying or damaging any structure, conveyance,
or other real or personal property, by imprisonment for not
more than 25 years;
``(F) for attempting or conspiring to commit the offense,
for any term of years up to the maximum punishment that would
have applied had the offense been completed; and
``(G) for threatening to commit the offense, by
imprisonment for not more than 10 years.
``(2) Notwithstanding any other provision of law, the court
shall not place on probation any person convicted of a
violation of this section.
``(d) Limitation on Prosecution.--No indictment for any
offense described in this section shall be sought by the
United States except after the Attorney General, or the
highest ranking subordinate of the Attorney General with
responsibility for criminal prosecutions, has made a written
certification that, in the judgment of the certifying
official--
``(1) such offense, or any activity preparatory to its
commission, transcended national boundaries; and
``(2) the offense appears to have been intended to coerce,
intimidate, or retaliate against a government or a civilian
population, including any segment thereof.
``(e) Investigative Responsibility.--Violations of this
section shall be investigated by the Federal Bureau of
Investigation. Nothing in this section shall be construed to
interfere with the authority of the United States Secret
Service under section 3056, or with its investigative
authority with respect to sections 871 and 879.
``(f) Evidence.--In a prosecution under this section, the
United States shall not be required to prove knowledge by any
defendant of a jurisdictional base alleged in the indictment.
``(g) Extraterritorial Jurisdiction.--There is
extraterritorial Federal jurisdiction over--
``(1) any offense under subsection (a); and
``(2) conduct that, under section 3, renders any person an
accessory after the fact to an offense under subsection (a).
``(h) Definitions.--As used in this section--
``(1) the term `commerce' has the meaning given such term
in section 1951(b)(3);
``(2) the term `facility utilized in interstate commerce'
includes means of transportation, communication, and
transmission;
``(3) the term `national of the United States' has the
meaning given such term in section 101(a)(22) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(22));
``(4) the term `serious bodily injury' has the meaning
given such term in section 1365(g)(3); and
``(5) the term `territorial sea of the United States' means
all waters extending seaward to 12 nautical miles from the
baselines of the United States determined in accordance with
international law.''.
(c) Technical 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 new
item:

``2332b. Acts of terrorism transcending national boundaries.''.
(d) Statute of Limitations Amendment.--Section 3286 of
title 18, United States Code, is amended--
(1) by striking ``any offense'' and inserting ``any
noncapital offense'';
(2) by striking ``36'' and inserting ``37'';
(3) by striking ``2331'' and inserting ``2332'';
(4) by striking ``2339'' and inserting ``2332a''; and
(5) by inserting ``2332b (acts of terrorism transcending
national boundaries),'' after ``(use of weapons of mass
destruction),''.
(e) Presumptive Detention.--Section 3142(e) of title 18,
United States Code, is amended by inserting ``or section
2332b'' after ``section 924(c)''.
(f) Expansion of Provision Relating to Destruction or
Injury of Property Within [[Page S7859]] Special Maritime and
Territorial Jurisdiction.--Section 1363 of title 18, United
States Code, is amended by striking ``any building, structure
or vessel, any machinery or building materials and supplies,
military or naval stores, munitions of war or any structural
aids or appliances for navigation or shipping'' and inserting
``any structure, conveyance, or other real or personal
property''.

SEC. 103. CONSPIRACY TO HARM PEOPLE AND PROPERTY OVERSEAS.

(a) In General.--Section 956 of title 18, United States
Code, is amended to read as follows:

``Sec. 956. Conspiracy to kill, kidnap, maim, or injure
certain property in a foreign country

``(a)(1) Whoever, within the jurisdiction of the United
States, conspires with one or more other persons, regardless
of where such other person or persons is located, to commit
at any place outside the United States an act that would
constitute the offense of murder, kidnapping, or maiming if
committed in the special maritime and territorial
jurisdiction of the United States, shall, if he or any such
other person commits an act within the jurisdiction of the
United States to effect any object of the conspiracy, be
punished as provided in paragraph (2).
``(2) The punishment for an offense under paragraph (1)
is--
``(A) imprisonment for any term of years or for life if the
offense is conspiracy to murder or kidnap; and
``(B) imprisonment for not more than 35 years if the
offense is conspiracy to maim.
``(b) Whoever, within the jurisdiction of the United
States, conspires with one or more persons, regardless of
where such other person or persons is located, to injure or
destroy specific property situated within a foreign country
and belonging to a foreign government or to any political
subdivision thereof with which the United States is at peace,
or any railroad, canal, bridge, airport, airfield, or other
public utility, public conveyance, or public structure, or
any religious, educational, or cultural property so situated,
shall, if he or any such other person commits an act within
the jurisdiction of the United States to effect any object of
the conspiracy, be imprisoned not more than 25 years.''.
(b) Clerical Amendment.--The chapter analysis for chapter
45 of title 18, United States Code, is amended by striking
the item relating to section 956 and inserting the following:

``956. Conspiracy to kill, kidnap, maim, or injure certain property in
a foreign country.''.
SEC. 104. INCREASED PENALTIES FOR CERTAIN TERRORISM CRIMES.

(a) In General.--Title 18, United States Code, is amended--
(1) in section 114, by striking ``maim or disfigure'' and
inserting ``torture (as defined in section 2340), maim, or
disfigure'';
(2) in section 755, by striking ``two years'' and inserting
``five years'';
(3) in section 756, by striking ``one year'' and inserting
``five years'';
(4) in section 878(a), by striking ``by killing,
kidnapping, or assaulting a foreign official, official guest,
or internationally protected person'';
(5) in section 1113, by striking ``three years or fined''
and inserting ``seven years''; and
(6) in section 2332(c), by striking ``five'' and inserting
``ten''.
(b) Penalty for Carrying Weapons or Explosives on an
Aircraft.--Section 46505 of title 49, United States Code, is
amended--
(1) in subsection (b), by striking ``one'' and inserting
``10''; and
(2) in subsection (c), by striking ``5'' and inserting
``15''.

SEC. 105. MANDATORY PENALTY FOR TRANSFERRING AN EXPLOSIVE
MATERIAL KNOWING THAT IT WILL BE USED TO COMMIT
A CRIME OF VIOLENCE.

Section 844 of title 18, United States Code, is amended by
adding at the end the following new subsection:
``(n) Whoever knowingly transfers an explosive material,
knowing or having reasonable cause to believe that such
explosive material will be used to commit a crime of violence
(as defined in section 924(c)(3)) or drug trafficking crime
(as defined in section 924(c)(2)) shall be imprisoned for not
less than 10 years, fined under this title, or both.''.

SEC. 106. PENALTY FOR POSSESSION OF STOLEN EXPLOSIVES.

Section 842(h) of title 18, United States Code, is amended
to read as follows:
``(h) It shall be unlawful for any person to receive,
possess, transport, ship, conceal, store, barter, sell,
dispose of, pledge, or accept as security for a loan, any
stolen explosive material that is moving in, part of,
constitutes, or has been shipped or transported in,
interstate or foreign commerce, either before or after such
material was stolen, knowing or having reasonable cause to
believe that the explosive material was stolen.''.

SEC. 107. ENHANCED PENALTIES FOR USE OF EXPLOSIVES OR ARSON
CRIMES.

Section 844 of title 18, United States Code, is amended--
(1) in subsection (e), by striking ``five'' and inserting
``10'';
(2) by amending subsection (f) to read as follows:
``(f)(1) Whoever maliciously damages or destroys, or
attempts to damage or destroy, by means of fire or an
explosive, any building, vehicle, or other personal or real
property in whole or in part owned or possessed by, or leased
to, the United States, or any department or agency thereof,
shall be imprisoned for not less than 5 years and not more
than 20 years. The court may order a fine of not more than
the greater of $100,000 or the cost of repairing or replacing
any property that is damaged or destroyed.
``(2) Whoever engages in conduct prohibited by this
subsection, and as a result of such conduct directly or
proximately causes personal injury to any person, including
any public safety officer performing duties, shall be
imprisoned not less than 7 years and not more than 40 years.
The court may order a fine of not more than the greater of
$200,000 or the cost of repairing or replacing any property
that is damaged or destroyed.
``(3) Whoever engages in conduct prohibited by this
subsection, and as a result of such conduct directly or
proximately causes the death of any person, including any
public safety officer performing duties, shall be imprisoned
for a term of years or for life, or sentenced to death. The
court may order a fine of not more than the greater of
$200,000 or the cost of repairing or replacing any property
that is damaged or destroyed.''.
(4) in subsection (h)--
(A) in the first sentence by striking ``5 years but not
more than 15 years'' and inserting ``10 years''; and
(B) in the second sentence by striking ``10 years but not
more than 25 years'' and inserting ``20 years''; and
(5) in subsection (i)--
(A) by striking ``not more than 20 years, fined the greater
of a fine under this title or the cost of repairing or
replacing any property that is damaged or destroyed,'' and
inserting ``not less than 5 years and not more than 20 years,
fined the greater of $100,000 or the cost of repairing or
replacing any property that is damaged or destroyed'';
(B) by striking ``not more than 40 years, fined the greater
of a fine under this title or the cost of repairing or
replacing any property that is damaged or destroyed,'' and
inserting ``not less than 7 years and not more than 40 years,
fined the greater of $200,000 or the cost of repairing or
replacing any property that is damaged or destroyed''; and
(C) by striking ``7 years'' and inserting ``10 years''.

SEC. 108. INCREASED PERIODS OF LIMITATION FOR NATIONAL
FIREARMS ACT VIOLATIONS.

Section 6531 of the Internal Revenue Code of 1986 is
amended--
(1) by redesignating paragraphs (1) through (8) as
subparagraphs (A) through (H), respectively; and
(2) by amending the matter immediately preceding
subparagraph (A), as redesignated, to read as follows: ``No
person shall be prosecuted, tried, or punished for any
criminal offense under the internal revenue laws unless the
indictment is found or the information instituted not later
than 3 years after the commission of the offense, except that
the period of limitation shall be--
``(1) 5 years for offenses described in section 5861
(relating to firearms and other devices); and
``(2) 6 years--.''.
TITLE II--COMBATING INTERNATIONAL TERRORISM

SEC. 201. FINDINGS.

The Congress finds that--
(1) international terrorism is among the most serious
transnational threats faced by the United States and its
allies, far eclipsing the dangers posed by population growth
or pollution;
(2) the President should continue to make efforts to
counter international terrorism a national security priority;
(3) because the United Nations has been an inadequate forum
for the discussion of cooperative, multilateral responses to
the threat of international terrorism, the President should
undertake immediate efforts to develop effective multilateral
responses to international terrorism as a complement to
national counterterrorist efforts;
(4) the President should use all necessary means, including
covert action and military force, to disrupt, dismantle, and
destroy international infrastructure used by international
terrorists, including overseas terrorist training facilities
and safe havens;
(5) the Congress deplores decisions to ease, evade, or end
international sanctions on state sponsors of terrorism,
including the recent decision by the United Nations Sanctions
Committee to allow airline flights to and from Libya despite
Libya's noncompliance with United Nations resolutions; and
(6) the President should continue to undertake efforts to
increase the international isolation of state sponsors of
international terrorism, including efforts to strengthen
international sanctions, and should oppose any future
initiatives to ease sanctions on Libya or other state
sponsors of terrorism.

SEC. 202. PROHIBITION ON ASSISTANCE TO COUNTRIES THAT AID
TERRORIST STATES.

The Foreign Assistance Act of 1961 (22 U.S.C. 151 et seq.)
is amended by adding immediately after section 620F the
following new section:

``SEC. 620G. PROHIBITION ON ASSISTANCE TO COUNTRIES THAT AID
TERRORIST STATES.

``(a) Prohibition.--No assistance under this Act shall be
provided to the government of any country that provides
assistance to the government of any other country for which
the Secretary of State has made a determination under section
620A''. [[Page S7860]]
``(b) Waiver.--Assistance prohibited by this section may be
furnished to a foreign government described in subsection (a)
if the President determines that furnishing such assistance
is important to the national interests of the United States
and, not later than 15 days before obligating such
assistance, furnishes a report to the appropriate committees
of Congress including--
``(1) a statement of the determination;
``(2) a detailed explanation of the assistance to be
provided;
``(3) the estimated dollar amount of the assistance; and
``(4) an explanation of how the assistance furthers United
States national interests.''.

SEC. 203. PROHIBITION ON ASSISTANCE TO COUNTRIES THAT PROVIDE
MILITARY EQUIPMENT TO TERRORIST STATES.

The Foreign Assistance Act of 1961 (22 U.S.C. 151 et seq.)
is amended by adding immediately after section 620G the
following new section:

``SEC. 620H. PROHIBITION ON ASSISTANCE TO COUNTRIES THAT
PROVIDE MILITARY EQUIPMENT TO TERRORIST STATES.

``(a) Prohibition.--
``(1) In general.--No assistance under this Act shall be
provided to the government of any country that provides
lethal military equipment to a country the government of
which the Secretary of State has determined is a terrorist
government for the purposes of 6(j) of the Export
Administration Act of 1979 (50 U.S.C. App. 2405(j)), or 620A
of the Foreign Assistance Act of 1961 (22 U.S.C. 2371).
``(2) Applicability.--The prohibition under this section
with respect to a foreign government shall terminate 1 year
after that government ceases to provide lethal military
equipment. This section applies with respect to lethal
military equipment provided under a contract entered into
after the date of enactment of this Act.
``(b) Waiver.--Notwithstanding any other provision of law,
assistance may be furnished to a foreign government described
in subsection (a) if the President determines that furnishing
such assistance is important to the national interests of the
United States and, not later than 15 days before obligating
such assistance, furnishes a report to the appropriate
committees of Congress including--
``(1) a statement of the determination;
``(2) a detailed explanation of the assistance to be
provided;
``(3) the estimated dollar amount of the assistance; and
``(4) an explanation of how the assistance furthers United
States national interests.''.

SEC. 204. OPPOSITION TO ASSISTANCE BY INTERNATIONAL FINANCIAL
INSTITUTIONS TO TERRORIST STATES.

The International Financial Institutions Act (22 U.S.C.
262c et seq.) is amended by inserting after section 1620 the
following new section:

``SEC. 1621. OPPOSITION TO ASSISTANCE BY INTERNATIONAL
FINANCIAL INSTITUTIONS TO TERRORIST STATES.

``(a) In General.--The Secretary of the Treasury shall
instruct the United States executive director of each
international financial institution to vote against any loan
or other use of the funds of the respective institution to or
for a country for which the Secretary of State has made a
determination under section 6(j) of the Export Administration
Act of 1979 (50 U.S.C. App. 2405(j)) or section 620A of the
Foreign Assistance Act of 1961 (22 U.S.C. 2371).
``(b) Definition.--For purposes of this section, the term
`international financial institution' includes--
``(1) the International Bank for Reconstruction and
Development, the International Development Association, and
the International Monetary Fund;
``(2) wherever applicable, the Inter-American Bank, the
Asian Development Bank, the European Bank for Reconstruction
and Development, the African Development Bank, and the
African Development Fund; and
``(3) any similar institution established after the date of
enactment of this section.''.

SEC. 205. ANTITERRORISM ASSISTANCE.

(a) Foreign Assistance Act.--Section 573 of the Foreign
Assistance Act of 1961 (22 U.S.C. 2349aa-2) is amended--
(1) in subsection (c), by striking ``development and
implementation of the antiterrorism assistance program under
this chapter, including'';
(2) by amending subsection (d) to read as follows:
``(d)(1) Arms and ammunition may be provided under this
chapter only if they are directly related to antiterrorism
assistance.
``(2) The value (in terms of original acquisition cost) of
all equipment and commodities provided under this chapter in
any fiscal year shall not exceed 30 percent of the funds made
available to carry out this chapter for that fiscal year.'';
and
(3) by striking subsection (f).
(b) Assistance to Foreign Countries To Procure Explosives
Detection Devices and Other Counterterrorism Technology.--(1)
Subject to section 575(b), up to $3,000,000 in any fiscal
year may be made available--
(A) to procure explosives detection devices and other
counterterrorism technology; and
(B) for joint counterterrorism research and development
projects on such technology conducted with NATO and major
non-NATO allies under the auspices of the Technical Support
Working Group of the Department of State.
(2) As used in this subsection, the term ``major non-NATO
allies'' means those countries designated as major non-NATO
allies for purposes of section 2350a(i)(3) of title 10,
United States Code.
(c) Assistance to Foreign Countries.--Notwithstanding any
other provision of law (except section 620A of the Foreign
Assistance Act of 1961) up to $1,000,000 in assistance may be
provided to a foreign country for counterterrorism efforts in
any fiscal year if--
(1) such assistance is provided for the purpose of
protecting the property of the United States Government or
the life and property of any United States citizen, or
furthering the apprehension of any individual involved in any
act of terrorism against such property or persons; and
(2) the appropriate committees of Congress are notified not
later than 15 days prior to the provision of such assistance.

SEC. 206. JURISDICTION FOR LAWSUITS AGAINST TERRORIST STATES.

(a) Exception to Foreign Sovereign Immunity for Certain
Cases.--Section 1605 of title 28, United States Code, is
amended--
(1) in subsection (a)--
(A) by striking the period at the end of paragraph (6) and
inserting ``; or'' and
(B) by adding at the end the following new paragraph:
``(7) not otherwise covered by paragraph (2) in which money
damages are sought against a foreign government for personal
injury or death that was caused by an act of torture,
extrajudicial killing, aircraft sabotage, hostage taking, or
the provision of material support or resources (as defined in
section 2339A of title 18, United States Code) for a person
carrying out such an act, by a foreign state or by any
official, employee, or agent of such foreign state while
acting within the scope of his or her office, employment, or
agency, except that--
``(A) the claimant must first afford the foreign state a
reasonable opportunity to arbitrate the claim in accordance
with accepted international rules of arbitration; and
``(B) an action under this paragraph shall not be
maintained unless the act upon which the claim is based--
``(i) occurred while the individual bringing the claim was
a national of the United States (as that term is defined in
section 101(a)(2) of the Immigration and Nationality Act);
and
``(ii) occurred while the foreign state was designated as a
state sponsor of terrorism under section 6(j) of the Export
Administration Act of 1979 (50 App. U.S.C. 2405(j)) or
section 620A of the Foreign Assistance Act of 1961 (22 U.S.C.
2371).''; and
(2) by adding at the end the following new subsection:
``(e) For purposes of paragraph (7)--
``(1) the terms `torture' and `extrajudicial killing' have
the meaning given those terms in section 3 of the Torture
Victim Protection Act of 1991 (28 U.S.C. 350 note);
``(2) the term `hostage taking' has the meaning given such
term in Article 1 of the International Convention Against the
Taking of Hostages; and
``(3) the term `aircraft sabotage' has the meaning given
such term in Article 1 of the Convention for the Suppression
of Unlawful Acts Against the Safety of Civil Aviation.''.
(b) Exception to Immunity From Attachment.--
(1) Foreign state.--Section 1610(a) of title 28, United
States Code, is amended--
(A) by striking the period at the end of paragraph (6) and
inserting ``, or''; and
(B) by adding at the end the following new paragraph:
``(7) the judgment relates to a claim for which the foreign
state is not immune under section 1605(a)(7), regardless of
whether the property is or was involved with the act upon
which the claim is based.''.
(2) Agency or instrumentality.--Section 1610(b)(2) of such
title is amended--
(A) by striking ``or (5)'' and inserting ``(5), or (7)'';
and
(B) by striking ``used for the activity'' and inserting
``involved in the act''.
(c) Applicability.--The amendments made by this title shall
apply to any cause of action arising before, on, or after the
date of the enactment of this Act.

SEC. 207. REPORT ON SUPPORT FOR INTERNATIONAL TERRORISTS.

Not later than 60 days after the date of enactment of this
Act, and annually thereafter in the report required by
section 140 of the Foreign Relations Authorization Act,
Fiscal Years 1988 and 1989 (22 U.S.C. 2656f), the Secretary
of State shall submit a report to the Speaker of the House of
Representatives and the Committee on Foreign Relations of the
Senate that includes--
(1) a detailed assessment of international terrorist groups
including their--
(A) size, leadership, and sources of financial and
logistical support;
(B) goals, doctrine, and strategy;
(C) nature, scope, and location of human and technical
infrastructure;
(D) level of education and training;
(E) bases of operation and recruitment;
(F) operational capabilities; and
(G) linkages with state and non-state actors such as ethnic
groups, religious communities, or criminal organizations;
(2) a detailed assessment of any country that provided
support of any type for international terrorism, terrorist
groups, or individual terrorists, including countries that
knowingly allowed terrorist groups or individuals to transit
or reside in their territory, regardless of whether terrorist
acts were [[Page S7861]] committed on their territory by such
individuals;
(3) a detailed assessment of individual country efforts to
take effective action against countries named in section 6(j)
of the Export Administration Act of 1979 (50 U.S.C. App.
2405(j)), including the status of compliance with
international sanctions and the status of bilateral economic
relations; and
(4) United States Government efforts to implement this
title.

SEC. 208. DEFINITION OF ASSISTANCE.

For purposes of this title--
(1) the term ``assistance'' means assistance to or for the
benefit of a government of any country that is provided by
grant, concessional sale, guaranty, insurance, or by any
other means on terms more favorable than generally available
in the applicable market, whether in the form of a loan,
lease, credit, debt relief, or otherwise, including subsidies
for exports to such country and favorable tariff treatment of
articles that are the growth, product, or manufacture of such
country; and
(2) the term ``assistance'' does not include assistance of
the type authorized under chapter 9 of part 1 of the Foreign
Assistance Act of 1961 (relating to international disaster
assistance).

SEC. 209. WAIVER AUTHORITY CONCERNING NOTICE OF DENIAL OF
APPLICATION FOR VISAS.

Section 212(b) of the Immigration and Nationality Act (8
U.S.C. 1182(b)) is amended--
(1) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B), respectively;
(2) by striking ``If'' and inserting ``(1) Subject to
paragraph (2), if''; and
(3) by inserting at the end the following paragraph:
``(2) With respect to applications for visas, the Secretary
of State may waive the application of paragraph (1) in the
case of a particular alien or any class or classes of
excludable aliens, except in cases of intent to immigrate.''.

SEC. 210. MEMBERSHIP IN A TERRORIST ORGANIZATION AS A BASIS
FOR EXCLUSION FROM THE UNITED STATES UNDER THE
IMMIGRATION AND NATIONALITY ACT.

Section 212(a)(3)(B) of the Immigration and Nationality Act
(8 U.S.C. 1182(a)(3)(B)) is amended--
(1) in clause (i)--
(A) by striking ``or'' at the end of subclause (I);
(B) by inserting ``or'' at the end of subclause (II); and
(C) by inserting after subclause (II) the following new
subclause:

``(III) is a member of a terrorist organization or who
actively supports or advocates terrorist activity,''; and

(2) by adding at the end the following new clause:
``(iv) Terrorist organization defined.--As used in this
subparagraph, the term `terrorist organization' means an
organization that engages in, or has engaged in, terrorist
activity as designated by the Secretary of State, after
consultation with the Secretary of the Treasury.''.
TITLE III--ALIEN REMOVAL

SEC. 301. ALIEN TERRORIST REMOVAL.

(a) Table of Contents.--The Immigration and Nationality Act
is amended by adding at the end of the table of contents the
following:

``TITLE V--ALIEN TERRORIST REMOVAL PROCEDURES

``501. Definitions.
``502. Applicability.
``503. Removal of alien terrorists.''.
(b) Alien Terrorist Removal.--The Immigration and
Nationality Act is amended by adding at the end the following
new title:
``TITLE V--ALIEN TERRORIST REMOVAL PROCEDURES

``SEC. 501. DEFINITIONS.

``As used in this title--
``(1) the term `alien terrorist' means any alien described
in section 241(a)(4)(B);
``(2) the term `classified information' has the same
meaning as defined in section 1(a) of the Classified
Information Procedures Act (18 U.S.C. App. IV);
``(3) the term `national security' has the same meaning as
defined in section 1(b) of the Classified Information
Procedures Act (18 U.S.C. App. IV);
``(4) the term `special court' means the court described in
section 503(c); and
``(5) the term `special removal hearing' means the hearing
described in section 503(e).

``SEC. 502. APPLICABILITY.

``(a) In General.--The provisions of this title may be
followed in the discretion of the Attorney General whenever
the Department of Justice has classified information that an
alien described in section 241(a)(4)(B) is subject to
deportation because of such section.
``(b) Procedures.--Whenever an official of the Department
of Justice files, under section 503(a), an application with
the court established under section 503(c) for authorization
to seek removal pursuant to this title, the alien's rights
regarding removal and expulsion shall be governed solely by
the provisions of this title, except as specifically
provided.

``SEC. 503. REMOVAL OF ALIEN TERRORISTS.

``(a) Application for Use of Procedures.--This section
shall apply whenever the Attorney General certifies under
seal to the special court that--
``(1) the Attorney General or Deputy Attorney General has
approved of the proceeding under this section;
``(2) an alien terrorist is physically present in the
United States; and
``(3) removal of such alien terrorist by deportation
proceedings described in sections 242, 242A, or 242B would
pose a risk to the national security of the United States
because such proceedings would disclose classified
information.
``(b) Custody and Release Pending Hearing.--(1) The
Attorney General may take into custody any alien with respect
to whom a certification has been made under subsection (a),
and notwithstanding any other provision of law, may retain
such alien in custody in accordance with this subsection.
``(2)(A) An alien with respect to whom a certification has
been made under subsection (a) shall be given a release
hearing before the special court designated pursuant to
subsection (c).
``(B) The judge shall grant the alien release, subject to
such terms and conditions prescribed by the court (including
the posting of any monetary amount), pending the special
removal hearing if--
``(i) the alien is lawfully present in the United States;
``(ii) the alien demonstrates that the alien, if released,
is not likely to flee; and
``(iii) the alien demonstrates that release of the alien
will not endanger national security or the safety of any
person or the community.
``(C) The judge may consider classified information
submitted in camera and ex parte in making a determination
whether to release an alien pending the special hearing.
``(c) Special Court.--(1) The Chief Justice of the United
States shall publicly designate not more than 5 judges from
up to 5 United States judicial districts to hear and decide
cases arising under this section, in a manner consistent with
the designation of judges described in section 103(a) of the
Foreign Intelligence Surveillance Act (50 U.S.C. 1803(a)).
``(2) The Chief Justice may, in the Chief Justice's
discretion, designate the same judges under this section as
are designated pursuant to section 103(a) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)).
``(d) Invocation of Special Court Procedure.--(1) When the
Attorney General makes the application described in
subsection (a), a single judge of the special court shall
consider the application in camera and ex parte.
``(2) The judge shall invoke the procedures of subsection
(e) if the judge determines that there is probable cause to
believe that--
``(A) the alien who is the subject of the application has
been correctly identified and is an alien as described in
section 241(a)(4)(B); and
``(B) a deportation proceeding described in section 242,
242A, or 242B would pose a risk to the national security of
the United States because such proceedings would disclose
classified information.
``(e) Special Removal Hearing.--(1) Except as provided in
paragraph (5), the special removal hearing authorized by a
showing of probable cause described in subsection (d)(2)
shall be open to the public.
``(2) The alien shall have a reasonable opportunity to be
present at such hearing and to be represented by counsel. Any
alien financially unable to obtain counsel shall be entitled
to have counsel assigned to represent such alien. Counsel may
be appointed as described in section 3006A of title 18,
United States Code.
``(3) The alien shall have a reasonable opportunity to
introduce evidence on his own behalf, and except as provided
in paragraph (5), shall have a reasonable opportunity to
cross-examine any witness or request that the judge issue a
subpoena for the presence of a named witness.
``(4)(A) An alien subject to removal under this section
shall have no right--
``(i) of discovery of information derived from electronic
surveillance authorized under the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 801 et seq.) or otherwise
for national security purposes if disclosure would present a
risk to the national security; or
``(ii) to seek the suppression of evidence that the alien
alleges was unlawfully obtained, except on grounds of
credibility or relevance.
``(B) The Government is authorized to use, in the removal
proceedings, the fruits of electronic surveillance and
unconsented physical searches authorized under the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 801 et seq.)
without regard to subsections 106 (c), (e), (f), (g), and (h)
of such Act.
``(C) Section 3504 of title 18, United States Code, shall
not apply to procedures under this section if the Attorney
General determines that public disclosure would pose a risk
to the national security of the United States because it
would disclose classified information.
``(5) The judge shall authorize the introduction in camera
and ex parte of any evidence for which the Attorney General
determines that public disclosure would pose a risk to the
national security of the United States because it would
disclose classified information. With respect to such
evidence, the Attorney General shall submit to the court an
unclassified summary of the specific evidence prepared in
accordance with paragraph (6).
``(6)(A) The information submitted under paragraph (5)(B)
shall contain an unclassified summary of the classified
information [[Page S7862]] that does not pose a risk to
national security.
``(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.
``(f) Determination of Deportation.--The judge shall,
considering the evidence on the record as a whole (in camera
and otherwise), require that the alien be deported if the
Attorney General proves, by clear and convincing evidence,
that the alien is subject to deportation because such alien
is an alien as described in section 241(a)(4)(B). If the
judge finds that the Department of Justice has met this
burden, the judge shall order the alien removed and, if the
alien was released pending the special removal proceeding,
order the Attorney General to take the alien into custody.
``(g) Appeals.--(1) The alien may appeal a final
determination under subsection (f) to the United States Court
of Appeals for the District of Columbia Circuit, by filing a
notice of appeal with such court not later than 30 days after
the determination is made. An appeal under this section shall
be heard by the Court of Appeals sitting en banc.
``(2) The Attorney General may appeal a determination under
subsection (d), (e), or (f) to the Court of Appeals for the
District of Columbia Circuit, by filing a notice of appeal
with such court not later than 20 days after the
determination is made under any one of such subsections.
``(3) If the Department of Justice does not seek review,
the alien shall be released from custody, unless such alien
may be arrested and taken into custody pursuant to title II
as an alien subject to deportation, in which case such alien
shall be treated in accordance with the provisions of this
Act concerning the deportation of aliens.
``(4) If the application for the order is denied because
the judge has not found probable cause to believe that the
alien who is the subject of the application has been
correctly identified or is an alien as described in paragraph
4(B) of section 241(a), and the Department of Justice seeks
review, the alien shall be released from custody unless such
alien may be arrested and taken into custody pursuant to
title II as an alien subject to deportation, in which case
such alien shall be treated in accordance with the provisions
of this Act concerning the deportation of aliens
simultaneously with the application of this title.
``(5)(A) If the application for the order is denied based
on a finding that no probable cause exists to find that
adherence to the provisions of title II regarding the
deportation of the identified alien would pose a risk of
irreparable harm to the national security of the United
States, or death or serious bodily injury to any person, the
judge shall release the alien from custody subject to the
least restrictive condition or combination of conditions of
release described in section 3142(b) and (c)(1)(B) (i)
through (xiv) of title 18, United States Code, that will
reasonably ensure the appearance of the alien at any future
proceeding pursuant to this title and will not endanger the
safety of any other person or the Community.
``(B) The alien shall remain in custody if the court fails
to make a finding under subparagraph (A), until the
completion of any appeal authorized by this title. Sections
3145 through 3148 of title 18, United States Code, pertaining
to review and appeal of a release or detention order,
penalties for failure to appear, penalties for an offense
committed while on release, and sanctions for violation of a
release condition, shall apply to an alien to whom the
previous sentence applies and--
``(i) for purposes of section 3145 of such title, an appeal
shall be taken to the United States Court of Appeals for the
District of Columbia Circuit; and
``(ii) for purposes of section 3146 of such title the alien
shall be considered released in connection with a charge of
an offense punishable by life imprisonment.
``(6) When requested by the Attorney General, the entire
record of the proceeding under this section shall be
transmitted to the court of appeals or the Supreme Court
under seal. The court of appeals or Supreme Court may
consider such appeal in camera.''.

SEC. 302. EXTRADITION OF ALIENS.

(a) Scope.--Section 3181 of title 18, United States Code,
is amended--
(1) by inserting ``(a)'' before ``The provisions of this
chapter''; and
(2) by adding at the end the following new subsections:
``(b) The provisions of this chapter shall be construed to
permit, in the exercise of comity, the surrender of persons,
other than citizens, nationals, or permanent residents of the
United States, who have committed crimes of violence against
nationals of the United States in foreign countries without
regard to the existence of any treaty of extradition with
such foreign government if the Attorney General certifies, in
writing, that--
``(1) evidence has been presented by the foreign government
that indicates that had the offenses been committed in the
United States, they would constitute crimes of violence as
defined under section 16 of this title; and
``(2) the offenses charged are not of a political nature.
``(c) As used in this section, the term `national of the
United States' has the meaning given such term in section
101(a)(22) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(22)).''.
(b) Fugitives.--Section 3184 of title 18, United States
Code, is amended--
(1) in the first sentence by inserting after ``United
States and any foreign government,'' the following: ``or in
cases arising under section 3181(b),'';
(2) in the first sentence by inserting after ``treaty or
convention,'' the following: ``or provided for under section
3181(b),''; and
(3) in the third sentence by inserting after ``treaty or
convention,'' the following: ``or under section 3181(b),''.

SEC. 303. CHANGES TO THE IMMIGRATION AND NATIONALITY ACT TO
FACILITATE REMOVAL OF ALIEN TERRORISTS.

(a) Terrorism Activities.--Section 212(a)(3)(B) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)) is
amended to read as follows:
``(B) Terrorism activities.--
``(i) In general.--Any alien who--

``(I) has engaged in a terrorism activity, or
``(II) a consular officer or the Attorney General knows, or
has reason to believe, is likely to engage after entry in any
terrorism activity (as defined in clause (iii)),

is excludable. An alien who is an officer, official,
representative, or spokesman of any terrorist organization
designated as a terrorist organization by proclamation by the
President after finding such organization to be detrimental
to the interest of the United States, or any person who
directs, counsels, commands, or induces such organization or
its members to engage in terrorism activity, shall be
considered, for purposes of this Act, to be engaged in
terrorism activity.
``(ii) Terrorism activity defined.--As used in this Act,
the term `terrorism activity' means any activity that is
unlawful under the laws of the place where it is committed
(or which, if it had been committed in the United States,
would be unlawful under the laws of the United States or any
State), and that involves any of the following:

``(I) The hijacking or sabotage of any conveyance
(including an aircraft, vessel, or vehicle).
``(II) The seizing or detaining, and threatening to kill,
injure, or continue to detain, another individual to compel a
third person (including a governmental organization) to do or
abstain from doing any act as an explicit or implicit
condition for the release of the individual seized or
detained.
``(III) A violent attack upon an internationally protected
person (as defined in section 1116(b)(4) of title 18, United
States Code) or upon the liberty of such a person.
``(IV) An assassination.
``(V) The use of any--

``(aa) biological agent, chemical agent, or nuclear weapon
or device, or [[Page S7863]]
``(bb) explosive, firearm, or other weapon (other than for
mere personal monetary gain),

with intent to endanger, directly, or indirectly, the safety
of one or more individuals or to cause substantial damage to
property.
``(VI) A threat, attempt, or conspiracy to do any of the
foregoing.

``(iii) Engage in terrorism activity defined.--As used in
this Act, the term `engage in terrorism activity' means to
commit, in an individual capacity or as a member of an
organization, an act of terrorism activity, or an act that
the actor knows affords material support to any individual,
organization, or government that the actor knows plans to
commit terrorism activity, including any of the following
acts:

``(I) The preparation or planning of terrorism activity.
``(II) The gathering of information on potential targets
for terrorism activity.
``(III) The providing of any type of material support,
including a safe house, transportation, communications,
funds, false documentation or identification, weapons,
explosives, or training.
``(IV) The soliciting of funds or other things of value for
terrorism activity or for any terrorist organization.
``(V) The solicitation of any individual for membership in
a terrorist organization, terrorist government, or to engage
in a terrorism activity.

``(iv) Terrorist organization defined.--As used in this
Act, the term `terrorist organization' means--

``(I) an organization engaged in, or that has a significant
subgroup that engages in, terrorism activity, regardless of
any legitimate activities conducted by the organization or
its subgroups; and
``(II) an organization designated by the Secretary of State
under section 2339B of title 18.''.

(b) Deportable Aliens.--Section 241(a)(4)(B) of the
Immigration and Nationality Act (8 U.S.C. 1251(a)(4)(B)) is
amended to read as follows:
``(B) Terrorism activities.--Any alien who is engaged, or
at any time after entry engages in, any terrorism activity
(as defined in section 212(a)(3)(B)) is deportable.''.
(c) Burden of Proof.--Section 291 of the Immigration and
Nationality Act (8 U.S.C. 1361) is amended by inserting after
``custody of the Service.'' the following new sentence: ``The
limited production authorized by this provision shall not
extend to the records of any other agency or department of
the Government or to any documents that do not pertain to the
respondent's entry.''.
(d) Apprehension and Deportation of Aliens.--Section 242(b)
of the Immigration and Nationality Act (8 U.S.C. 1252(b)(3))
is amended by inserting immediately after paragraph (4) the
following: ``For purposes of paragraph (3), in the case of an
alien who is not lawfully admitted for permanent residence
and notwithstanding the provisions of any other law,
reasonable opportunity shall not include access to classified
information, whether or not introduced in evidence against
the alien, 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. Section 3504 of title 18, United States Code, and 18
U.S.C. 3504 and the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.) shall not apply in such
cases.''.
(e) Criminal Alien Removal.--
(1) Judicial review.--Section 106 of the Immigration and
Nationality Act (8 U.S.C. 1105a(a)(10)) is amended to read as
follows:
``(10) Any final order of deportation against an alien who
is deportable by reason of having committed a criminal
offense covered in section 241(a)(2) (A)(iii), (B), (C), or
(D), or any offense covered by section 241(a)(2)(A)(ii) for
which both predicate offenses are covered by section
241(a)(2)(A)(i), shall not be subject to review by any
court.''.
(2) Final order of deportation defined.--Section 101(a) of
such Act (8 U.S.C. 1101(a)) is amended by adding at the end
the following new paragraph:
``(47)(A) The term `order of deportation' means the order
of the special inquiry officer, or other such administrative
officer to whom the Attorney General has delegated the
responsibility for determining whether an alien is
deportable, concluding that the alien is deportable or
ordering deportation.
``(B) The order described under subparagraph (A) shall
become final upon the earlier of--
``(i) a determination by the Board of Immigration Appeals
affirming such order; or
``(ii) the expiration of the period in which the alien is
permitted to seek review of such order by the Board of
Immigration Appeals.''.
(3) Arrest and custody.--Section 242(a)(2) of such Act is
amended--
(A) in subparagraph (A)--
(i) by striking ``(2)(A) The Attorney'' and inserting ``(2)
The Attorney'';
(ii) by striking ``an aggravated felony upon'' and all that
follows through ``of the same offense)'' and inserting ``any
criminal offense covered in section 241(a)(2) (A)(iii), (B),
(C), or (D), or any offense covered by section
241(a)(2)(A)(ii) for which both predicate offenses are
covered by section 241(a)(2)(A)(i), upon release of the alien
from incarceration, shall deport the alien as expeditiously
as possible''; and
(iii) by striking ``but subject to subparagraph (B)''; and
(B) by striking subparagraph (B).
(4) Classes of excludable aliens.--Section 212(c) of such
Act (8 U.S.C. 1182(c)) is amended--
(A) by striking ``The first sentence of this'' and
inserting ``This''; and
(B) by striking ``has been convicted of one or more
aggravated felonies'' and all that follows through the end
and inserting ``is deportable by reason of having committed
any criminal offense covered in section 241(a)(2) (A)(iii),
(B), (C), or (D), or any offense covered by section
241(a)(2)(A)(ii) for which both predicate offenses are
covered by section 241(a)(2)(A)(i).''.
(5) Aggravated felony defined.--Section 101(a)(43) of such
Act is amended--
(A) in subparagraph (F)--
(i) by inserting ``, including forcible rape,'' after
``offense)''; and
(ii) by striking ``5 years'' and inserting ``1 year''; and
(B) in subparagraph (G) by striking ``5 years'' and
inserting ``1 year''.
(6) Deportation of criminal aliens.--Section 242A(a) of
such Act (8 U.S.C. 1252a) is amended--
(A) in paragraph (1)--
(i) by striking ``aggravated felonies (as defined in
section 101(a)(43) of this title)'' and inserting ``any
criminal offense covered in section 241(a)(2) (A)(iii), (B),
(C), or (D), or any offense covered by section
241(a)(2)(A)(ii) for which both predicate offenses are
covered by section 241(a)(2)(A)(i).''; and
(ii) by striking ``, where warranted,'';
(B) in paragraph (2), by striking ``aggravated felony'' and
all that follows through ``before any scheduled hearings.''
and inserting ``any criminal offense covered in section
241(a)(2) (A)(iii), (B), (C), or (D), or any offense covered
by section 241(a)(2)(A)(ii) for which both predicate offenses
are covered by section 241(a)(2)(A)(i).''.
(7) Deadlines for deporting alien.--Section 242(c) of such
Act (8 U.S.C. 1252(c)) is amended--
(A) by striking ``(c) When a final order'' and inserting
``(c)(1) Subject to paragraph (2), when a final order''; and
(B) by inserting at the end the following new paragraph:
``(2) When a final order of deportation under
administrative process is made against any alien who is
deportable by reason of having committed a criminal offense
covered in section 241(a)(2) (A)(iii), (B), (C), or (D) or
any offense covered by section 241(a)(2)(A)(ii) for which
both predicate offenses are covered by section
241(a)(2)(A)(i), the Attorney General shall have 30 days from
the date of the order within which to effect the alien's
departure from the United States. The Attorney General shall
have sole and unreviewable discretion to waive the foregoing
provision for aliens who are cooperating with law enforcement
authorities or for purposes of national security.''.
(f) Effective Date.--The amendments made by this section
shall take effect on the date of enactment of this Act and
shall apply to cases pending before, on, or after such date
of enactment.

SEC. 304. ACCESS TO CERTAIN CONFIDENTIAL IMMIGRATION AND
NATURALIZATION FILES THROUGH COURT ORDER.

(a) Confidentiality of Information.--Section 245A(c)(5) of
the Immigration and Nationality Act (8 U.S.C. 1255a(c)(5)) is
amended--
(1) by inserting ``(i)'' after ``except the Attorney
General''; and
(2) by inserting after ``Title 13'' the following: ``and
(ii) may authorize an application to a Federal court of
competent jurisdiction for, and a judge of such court may
grant, an order authorizing disclosure of information
contained in the application of the alien to be used--
``(I) for identification of the alien when there is reason
to believe that the alien has been killed or severely
incapacitated; or
``(II) for criminal law enforcement purposes against the
alien whose application is to be disclosed.''.
(b) Applications for Adjustment of Status.--Section 210(b)
of the Immigration and Nationality Act (8 U.S.C. 1160(b)) is
amended--
(1) in paragraph (5), by inserting ``, except as allowed by
a court order issued pursuant to paragraph (6) of this
subsection'' after ``consent of the alien''; and
(2) in paragraph (6), by inserting the following sentence
before ``Anyone who uses'': ``Notwithstanding the preceding
sentence, the Attorney General may authorize an application
to a Federal court of competent jurisdiction for, and a judge
of such court may grant an order authorizing, disclosure of
information contained in the application of the alien to be
used for identification of the alien when there is reason to
believe that the alien has been killed or severely
incapacitated, or for criminal law enforcement purposes
against the alien whose application is to be disclosed or to
discover information leading to the location or identity of
the alien.''.
TITLE IV--CONTROL OF FUNDRAISING FOR TERRORISM ACTIVITIES

SEC. 401. PROHIBITION ON TERRORIST FUNDRAISING.

(a) In General.--Chapter 113B of title 18, United States
Code, is amended by adding at the end the following new
section:

``Sec. 2339B. Fundraising for terrorist organizations

``(a) Findings and Purpose.--
``(1) The Congress finds that--
``(A) terrorism is a serious and deadly problem which
threatens the interests of the [[Page S7864]] United States
overseas and within our territory;
``(B) the Nation's security interests are gravely affected
by the terrorist attacks carried out overseas against United
States Government facilities and officials, and against
American citizens present in foreign countries;
``(C) United States foreign policy and economic interests
are profoundly affected by terrorist acts overseas directed
against foreign governments and their people;
``(D) international cooperation is required for an
effective response to terrorism, as demonstrated by the
numerous multilateral conventions in force providing
universal prosecutive jurisdiction over persons involved in a
variety of terrorist acts, including hostage taking, murder
of an internationally protected person, and aircraft piracy
and sabotage;
``(E) some foreign terrorist organizations, acting through
affiliated groups or individuals, raise significant funds
within the United States or use the United States as a
conduit for the receipt of funds raised in other nations; and
``(F) the provision of funds to organizations that engage
in terrorism serves to facilitate their terrorist endeavors,
regardless of whether the funds, in whole or in part, are
intended or claimed to be used for nonviolent purposes.
``(2) The purpose of this section is to provide the Federal
Government the fullest possible basis, consistent with the
Constitution, to prevent persons within the United States or
subject to the jurisdiction of the United States from
providing funds, directly or indirectly, to foreign
organizations, including subordinate or affiliated persons,
that engage in terrorism activities.
``(b) Designation.--
``(1) The Secretary of State, after consultation with the
Secretary of the Treasury, is authorized to designate under
this section any foreign organization based on finding that--
``(A) the organization engages in terrorism activity as
defined in section 212(a)(3)(B) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(3)(B)); and
``(B) the organization's terrorism activities threaten the
security of United States citizens, national security,
foreign policy, or the economy of the United States.
``(2) Not later than 7 days after making a designation
under paragraph (1), the Secretary of State shall prepare and
transmit to Congress a report containing a list of the
designated organizations and a summary of the facts
underlying the designation. The designation shall take effect
30 days after the receipt of actual notice under subsection
(b)(6), unless otherwise provided by law.
``(3) A designation or redesignation under this subsection
shall be in effect for 1 year following its effective date,
unless revoked under paragraph (4).
``(4)(A) If the Secretary of State, after consultation with
the Secretary of the Treasury, finds that the conditions that
were the basis for any designation issued under this
subsection have changed in such a manner as to warrant
revocation of such designation, or that the national
security, foreign relations, or economic interests of the
United States so warrant, the Secretary of State may revoke
such designation in whole or in part.
``(B) Not later than 7 calendar days after the Secretary of
State finds that an organization no longer engages in, or
supports, terrorism activity, the Secretary of State shall
prepare and transmit to Congress a supplemental report
stating the reasons for the finding.
``(5) Any designation, or revocation of a designation,
issued under this subsection shall be published in the
Federal Register not later than 7 calendar days after the
Secretary of State makes the designation.
``(6) Not later than 7 calendar days after making a
designation under this subsection, the Secretary of State
shall give the organization actual notice of--
``(A) the designation;
``(B) the consequences of the designation for the
organization's ability to raise funds in the United States;
and
``(C) the availability of judicial review.
``(7) Any revocation or lapsing of a designation shall not
affect any action or proceeding based on any conduct
committed prior to the effective date of such revocation or
lapsing.
``(8) Classified information may be used in making a
designation under this subsection. Such information shall not
be disclosed to the public or to any party, but may be
disclosed to a court ex parte and in camera.
``(9) No question concerning the validity of the issuance
of a designation issued under this subsection may be raised
by a defendant in a criminal prosecution as a defense in or
as an objection to any trial or hearing if such designation
was issued and published in the Federal Register.
``(c) Judicial Review.--
``(1) Organizations designated by the Secretary of State as
engaging in, or supporting, terrorism activities under this
section may seek review of the designation in the District
Court for the District of Columbia not later than 30 days
after receipt of actual notice under subsection (b)(6).
``(2) In reviewing a designation under this subsection, the
court shall receive relevant oral or documentary evidence,
unless the court finds that the probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence, or unless its introduction or consideration is
prohibited by a common law privilege or by the Constitution
or laws of the United States. A party shall be entitled to
present its case or defense by oral or documentary evidence,
to submit rebuttal evidence, and to conduct such cross-
examination as may be required for a full and true disclosure
of the facts.
``(3) The judge shall authorize the introduction in camera
and ex parte of any item of evidence containing classified
information for which the Attorney General determines that
public disclosure would pose a risk to the national security
of the United States. With respect to such evidence, the
Attorney General shall submit to the court either--
``(A) a statement identifying relevant facts that the
specific evidence would tend to prove; or
``(B) an unclassified summary of the specific evidence
prepared in accordance with paragraph (5).
``(4)(A)(i) The Secretary of State shall have the burden of
demonstrating that there are specific and articulable facts
giving reason to believe that the organization engages in or
supports terrorism activity (as that term is defined in
section 212(a)(3)(B)).
``(ii) The organization shall have the burden of proving
that its purpose is to engage in religious, charitable,
literary, educational, or nonterrorism activities and that it
engages in such activities.
``(iii) The Secretary shall have the burden of proving that
the control group of the organization has actual knowledge
that the organization or its resources are being used for
terrorism activities.
``(iv) If any portion of the Secretary's evidence consists
of classified information that cannot be revealed to the
organization for national security reasons, the Secretary
must prove these elements by clear and convincing evidence.
``(B) If the court finds, under the standards stated in
subparagraph (A) that the control group of the organization
has actual knowledge that the organization or its resources
are being used for terrorism activities, the court shall
affirm the designation of the Secretary.
``(C)(i) If the court finds by a preponderance of the
evidence that the organization or its resources have been
used for terrorism activities without the knowledge of the
control group, but that the control group is now aware of
these facts, the court may condition revocation of the
designation on the control group's undertaking or completing
all steps within its power to prevent the organization or its
resources from being used for terrorism activities. Such
steps may include--
``(I) maintaining financial records adequate to document
the use of the organization's resources; and
``(II) making records available to the Secretary for
inspection.
``(ii) If a designation is revoked under subsection (B)(4)
and the organization fails to comply with any condition
imposed, the designation may be reinstated by the Secretary
of State upon a showing that the organization failed to
comply with the condition.
``(5)(A) The information submitted under paragraph (3)(B)
shall contain an unclassified summary of the classified
information that does not pose a risk to national security.
``(B) The judge shall approve the unclassified summary if
the judge finds that the summary is sufficient to inform the
organization of the activities described in section
212(a)(3)(B) in which the organization is alleged to engage,
and to permit the organization to defend against the
designation.
``(C) The Attorney General shall cause to be delivered to
the organization a copy of the unclassified summary approved
under subparagraph (B).
``(6) The court shall decide the case on the basis of the
evidence on the record as a whole, in camera or otherwise.
``(d) Prohibited Activities.--It shall be unlawful for any
person within the United States, or any person subject to the
jurisdiction of the United States anywhere, to directly or
indirectly, raise, receive, or collect on behalf of, or
furnish, give, transmit, transfer, or provide funds to or for
an organization or person designated by the Secretary of
State under subsection (b), or to attempt to do any of the
foregoing.
``(e) Special Requirements for Financial Institutions.--
``(1) Except as authorized by the Secretary of State, after
consultation with the Secretary of the Treasury, by means of
directives, regulations, or licenses, any financial
institution that becomes aware that it has possession of or
control over any funds in which an organization or person
designated under subsection (b) has an interest, shall--
``(A) retain possession of or maintain control over such
funds; and
``(B) report to the Secretary the existence of such funds
in accordance with the regulations prescribed by the
Secretary.
``(2) Any financial institution that knowingly fails to
report to the Secretary the existence of such funds shall be
subject to a civil penalty of $250 per day for each day that
it fails to report to the Secretary--
``(A) in the case of funds being possessed or controlled at
the time of the designation of the organization or person,
within 10 days after the designation; and
``(B) in the case of funds whose possession of or control
over arose after the designation of the organization or
person, within 10 days [[Page S7865]] after the financial
institution obtained possession of or control over the funds.
``(f) Investigations.--Any investigation emanating from a
possible violation of this section shall be conducted by the
Attorney General, except that investigations relating to--
``(1) a financial institution's compliance with the
requirements of subsection (e); and
``(2) civil penalty proceedings authorized pursuant to
subsection (g)(2),

shall be conducted in coordination with the Attorney General
by the office within the Department of the Treasury
responsible for civil penalty proceedings authorized by this
section. Any evidence of a criminal violation of this section
arising in the course of an investigation by the Secretary or
any other Federal agency shall be referred immediately to the
Attorney General for further investigation. The Attorney
General shall timely notify the Secretary of any action taken
on referrals from the Secretary, and may refer investigations
to the Secretary for remedial licensing or civil penalty
action.
``(g) Penalties.--
``(1) Any person who, with knowledge that the donee is a
designated entity, violates subsection (d) shall be fined
under this title, or imprisoned for up to ten years, or both.
``(2) Any financial institution that knowingly fails to
comply with subsection (e), or by regulations promulgated
thereunder, shall be subject to a civil penalty of $50,000
per violation, or twice the amount of money of which the
financial institution was required to retain possession or
control, whichever is greater.
``(h) Injunction.--
``(1) Whenever it appears to the Secretary or the Attorney
General that any person is engaged in, or is about to engage
in, any act which constitutes, or would constitute, a
violation of this section, the Attorney General may initiate
civil action in a district court of the United States to
enjoin such violation.
``(2) A proceeding under this subsection is governed by the
Federal Rules of Civil Procedure, except that, if an
indictment has been returned against the respondent,
discovery is governed by the Federal Rules of Criminal
Procedure.
``(i) Extraterritorial Jurisdiction.--There is
extraterritorial Federal jurisdiction over an offense under
this section.
``(j) Classified Information in Civil Proceedings Brought
by the United States.--
``(1) Discovery of classified information by defendants.--A
court, upon a sufficient showing, may authorize the United
States to delete specified items of classified information
from documents to be introduced into evidence or made
available to the defendant through discovery under the
Federal Rules of Civil Procedure, to substitute an
unclassified summary of the information for such classified
documents, or to substitute a statement admitting relevant
facts that the classified information would tend to prove.
The court shall permit the United States to make a request
for such authorization in the form of a written statement to
be inspected by the court alone. If the court enters an order
granting relief following such an ex parte showing, the
entire text of the statement of the United States shall be
sealed and preserved in the records of the court to be made
available to the appellate court in the event of an appeal.
If the court enters an order denying relief to the United
States under this paragraph, the United States may take an
immediate, interlocutory appeal in accordance with the
provisions of paragraph (3). For purposes of such an appeal,
the entire text of the underlying written statement of the
United States, together with any transcripts of arguments
made ex parte to the court in connection therewith, shall be
maintained under seal and delivered to the appellate court.
``(2) Introduction of classified information; precautions
by court.--
``(A) Exhibits.--The United States, to prevent unnecessary
or inadvertent disclosure of classified information in a
civil trial or other proceeding brought by the United States
under this section, may petition the court ex parte to admit,
in lieu of classified writings, recordings or photographs,
one or more of the following:
``(i) copies of those items from which classified
information has been deleted;
``(ii) stipulations admitting relevant facts that specific
classified information would tend to prove; or
``(iii) an unclassified summary of the specific classified
information.

The court shall grant such a motion of the United States if
the court finds that the redacted item, stipulation, or
unclassified summary will provide the defendant with
substantially the same ability to make his defense as would
disclosure of the specific classified information.
``(B) Taking of trial testimony.--During the examination of
a witness in any civil proceeding brought by the United
States under this section, the United States may object to
any question or line of inquiry that may require the witness
to disclose classified information not previously found to be
admissible. Following such an objection, the court shall take
suitable action to determine whether the response is
admissible and, in doing so, shall take precautions to guard
against the compromise of any classified information. Such
action may include permitting the United States to provide
the court, ex parte, with a proffer of the witness's response
to the question or line of inquiry, and requiring the
defendant to provide the court with a proffer of the nature
of the information the defendant seeks to elicit.
``(C) Appeal.--If the court enters an order denying relief
to the United States under this subsection, the United States
may take an immediate interlocutory appeal in accordance with
paragraph (3).
``(3) Interlocutory appeal.--
``(A) An interlocutory appeal by the United States shall
lie to a court of appeals from a decision or order of a
district court--
``(i) authorizing the disclosure of classified information;
``(ii) imposing sanctions for nondisclosure of classified
information; or
``(iii) refusing a protective order sought by the United
States to prevent the disclosure of classified information.
``(B) An appeal taken pursuant to this paragraph either
before or during trial shall be expedited by the court of
appeals. Prior to trial, an appeal shall be taken not later
than 10 days after the decision or order appealed from, and
the trial shall not commence until the appeal is resolved. If
an appeal is taken during trial, the trial court shall
adjourn the trial until the appeal is resolved. The court of
appeals--
``(i) shall hear argument on such appeal not later than 4
days after the adjournment of the trial;
``(ii) may dispense with written briefs other than the
supporting materials previously submitted to the trial court;
``(iii) shall render its decision not later than 4 days
after argument on appeal; and
``(iv) may dispense with the issuance of a written opinion
in rendering its decision.
``(C) An interlocutory appeal and decision under this
paragraph shall not affect the right of the defendant, in a
subsequent appeal from a final judgment, to claim as error,
reversal by the trial court on remand of a ruling appealed
from during trial.
``(4) Construction.--Nothing in this subsection shall
prevent the United States from seeking protective orders or
asserting privileges ordinarily available to the United
States to protect against the disclosure of classified
information, including the invocation of the military and
State secrets privilege.
``(k) Definitions.--As used in this section--
``(1) the term `classified information' means any
information or material that has been determined by the
United States Government pursuant to an Executive order,
statute, or regulation, to require protection against
unauthorized disclosure for reasons of national security and
any restricted data, as defined in paragraph (r) of section
11 of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y));
``(2)(A) the term `control group' means the officers or
agents charged with directing the affairs of the
organization;
``(B) if a single officer or agent is authorized to conduct
the affairs of the organization, the knowledge of the officer
or agent that the organization or its resources are being
used for terrorism activities shall constitute knowledge of
the control group;
``(C) if a single officer or agent is a member of a group
empowered to conduct the affairs of the organization but
cannot conduct the affairs of the organization on his or her
own authority, that person's knowledge shall not constitute
knowledge by the control group unless that person's knowledge
is shared by a sufficient number of members of the group so
that the group with knowledge has the authority to conduct
the affairs of the organization;
``(3) the term `financial institution' has the meaning
prescribed in section 5312(a)(2) of title 31, United States
Code, including any regulations promulgated thereunder;
``(4) the term `funds' includes coin or currency of the
United States or any other country, traveler's checks,
personal checks, bank checks, money orders, stocks, bonds,
debentures, drafts, letters of credit, any other negotiable
instrument, and any electronic representation of any of the
foregoing;
``(5) the term `national security' means the national
defense and foreign relations of the United States;
``(6) the term `person' includes an individual,
partnership, association, group, corporation, or other
organization;
``(7) the term `Secretary' means the Secretary of the
Treasury; and
``(8) the term `United States', when used in a geographical
sense, includes all commonwealths, territories, and
possessions of the United States.''.
(b) Technical Amendment.--The analysis for chapter 113B of
title 18, United States Code, is amended by adding at the end
the following new item:

``2339B. Fundraising for terrorist organizations.''.

(c) Classified Information in Civil Proceedings.--Section
2339B(k) of title 18, United States Code (relating to
classified information in civil proceedings brought by the
United States), shall also be applicable to civil proceedings
brought by the United States under the International
Emergency Economic Powers Act (50 U.S.C. 1701 et seq.).

SEC. 402. CORRECTION TO MATERIAL SUPPORT PROVISION.

Section 2339A of title 18, United States Code, is amended
to read as follows:

``Sec. 2339A. Providing material support to terrorists

``(a) Definition.--In this section, `material support or
resources' means currency or [[Page S7866]] other financial
securities, financial services, lodging, training,
safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal
substances, explosives, personnel, transportation, and other
physical assets, but does not include humanitarian assistance
to persons not directly involved in such violations.
``(b) Offense.--A person who, within the United States,
provides material support or resources or conceals or
disguises the nature, location, source, or ownership of
material support or resources, knowing or intending that they
are to be used in preparation for, or in carrying out, a
violation of section 32, 37, 351, 844(f) or (i), 956, 1114,
1116, 1203, 1361, 1363, 1751, 2280, 2281, 2332, or 2332a of
this title or section 46502 of title 49, or in preparation
for or carrying out the concealment or an escape from the
commission of any such violation, shall be fined under this
title, imprisoned not more than 10 years, or both.''.
TITLE V--ASSISTANCE TO FEDERAL LAW ENFORCEMENT AGENCIES
Subtitle A--Antiterrorism Assistance

SEC. 501. DISCLOSURE OF CERTAIN CONSUMER REPORTS TO THE
FEDERAL BUREAU OF INVESTIGATION FOR FOREIGN
COUNTERINTELLIGENCE INVESTIGATIONS.

(a) In General.--The Fair Credit Reporting Act (15 U.S.C.
1681 et seq.) is amended by adding after section 623 the
following new section:

``SEC. 624. DISCLOSURES TO THE FEDERAL BUREAU OF
INVESTIGATION FOR FOREIGN COUNTERINTELLIGENCE
PURPOSES.

``(a) Identity of Financial Institutions.--(1)
Notwithstanding section 604 or any other provision of this
title, a court or magistrate judge may issue an order ex
parte directing a consumer reporting agency to furnish to the
Federal Bureau of Investigation the names and addresses of
all financial institutions (as that term is defined in
section 1101 of the Right to Financial Privacy Act of 1978)
at which a consumer maintains or has maintained an account,
to the extent that information is in the files of the agency.
The court or magistrate judge shall issue the order if the
Director of the Federal Bureau of Investigation, or the
Director's designee, certifies in writing to the court or
magistrate judge that--
``(A) such information is necessary for the conduct of an
authorized foreign counterintelligence investigation; and
``(B) there are specific and articulable facts giving
reason to believe that the consumer--
``(i) is a foreign power (as defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978) or a person
who is not a United States person (as defined in such section
101) and is an official of a foreign power; or
``(ii) is an agent of a foreign power and is engaging or
has engaged in international terrorism (as that term is
defined in section 101(c) of the Foreign Intelligence
Surveillance Act of 1978) or clandestine intelligence
activities that involve or may involve a violation of
criminal statutes of the United States.
``(2) An order issued under this subsection shall not
disclose that it is issued for purposes of a
counterintelligence investigation.
``(b) Identifying Information.--(1) Notwithstanding section
604 or any other provision of this title, a court or
magistrate judge shall issue an order ex parte directing a
consumer reporting agency to furnish identifying information
respecting a consumer, limited to name, address, former
addresses, places of employment, or former places of
employment, to the Federal Bureau of Investigation. The court
or magistrate judge shall issue the order if the Director or
the Director's designee, certifies in writing that--
``(A) such information is necessary to the conduct of an
authorized foreign counterintelligence investigation; and
``(B) there is information giving reason to believe that
the consumer has been, or is about to be, in contact with a
foreign power or an agent of a foreign power (as defined in
section 101 of the Foreign Intelligence Surveillance Act of
1978).
``(2) An order issued under this subsection shall not
disclose that it is issued for purposes of a
counterintelligence investigation.
``(c) Court Order for Disclosure of Consumer Reports.--(1)
Notwithstanding section 604 or any other provision of this
title, if requested in writing by the Director of the Federal
Bureau of Investigation, or an authorized designee of the
Director, a court may issue an order ex parte directing a
consumer reporting agency to furnish a consumer report to the
Federal Bureau of Investigation, upon a showing in camera
that--
``(A) the consumer report is necessary for the conduct of
an authorized foreign counterintelligence investigation; and
``(B) there are specific and articulable facts giving
reason to believe that the consumer whose consumer report is
sought--
``(i) is an agent of a foreign power; and
``(ii) is engaging or has engaged in international
terrorism (as that term is defined in section 101(c) of the
Foreign Intelligence Surveillance Act of 1978) or clandestine
intelligence activities that involve or may involve a
violation of criminal statutes of the United States.
``(2) An order issued under this subsection shall not
disclose that it is issued for purposes of a
counterintelligence investigation.
``(d) Confidentiality.--(1) No consumer reporting agency or
officer, employee, or agent of a consumer reporting agency
shall disclose to any person, other than officers, employees,
or agents of a consumer reporting agency necessary to fulfill
the requirement to disclose information to the Federal Bureau
of Investigation under this section, that the Federal Bureau
of Investigation has sought or obtained the identity of
financial institutions or a consumer report respecting any
consumer under subsection (a), (b), or (c).
``(2) No consumer reporting agency or officer, employee, or
agent of a consumer reporting agency shall include in any
consumer report any information that would indicate that the
Federal Bureau of Investigation has sought or obtained such
information or a consumer report.
``(e) Payment of Fees.--The Federal Bureau of Investigation
is authorized, subject to the availability of appropriations,
pay to the consumer reporting agency assembling or providing
reports or information in accordance with procedures
established under this section, a fee for reimbursement for
such costs as are reasonably necessary and which have been
directly incurred in searching, reproducing, or transporting
books, papers, records, or other data required or requested
to be produced under this section.
``(f) Limit on Dissemination.--The Federal Bureau of
Investigation may not disseminate information obtained
pursuant to this section outside of the Federal Bureau of
Investigation, except--
``(1) to the Department of Justice, as may be necessary for
the approval or conduct of a foreign counterintelligence
investigation; or
``(2) where the information concerns a person subject to
the Uniform Code of Military Justice, to appropriate
investigative authorities within the military department
concerned as may be necessary for the conduct of a joint
foreign counterintelligence investigation.
``(g) Rules of Construction.--Nothing in this section shall
be construed to prohibit information from being furnished by
the Federal Bureau of Investigation pursuant to a subpoena or
court order, or in connection with a judicial or
administrative proceeding to enforce the provisions of this
Act. Nothing in this section shall be construed to authorize
or permit the withholding of information from the Congress.
``(h) Reports to Congress.--On an annual basis, the
Attorney General shall fully inform the Permanent Select
Committee on Intelligence and the Committee on Banking and
Financial Services of the House of Representatives, and the
Select Committee on Intelligence and the Committee on
Banking, Housing, and Urban Affairs of the Senate concerning
all requests made pursuant to subsections (a), (b), and (c).
``(i) Damages.--Any agency or department of the United
States obtaining or disclosing any consumer reports, records,
or information contained therein in violation of this section
is liable to the consumer to whom such consumer reports,
records, or information relate in an amount equal to the sum
of--
``(1) $100, without regard to the volume of consumer
reports, records, or information involved;
``(2) any actual damages sustained by the consumer as a
result of the disclosure;
``(3) if the violation is found to have been willful or
intentional, such punitive damages as a court may allow; and
``(4) in the case of any successful action to enforce
liability under this subsection, the costs of the action,
together with reasonable attorney fees, as determined by the
court.
``(j) Disciplinary Actions for Violations.--If a court
determines that any agency or department of the United States
has violated any provision of this section and the court
finds that the circumstances surrounding the violation raise
questions of whether or not an officer or employee of the
agency or department acted willfully or intentionally with
respect to the violation, the agency or department shall
promptly initiate a proceeding to determine whether or not
disciplinary action is warranted against the officer or
employee who was responsible for the violation.
``(k) Good-Faith Exception.--Notwithstanding any other
provision of this title, any consumer reporting agency or
agent or employee thereof making disclosure of consumer
reports or identifying information pursuant to this
subsection in good-faith reliance upon a certification of the
Federal Bureau of Investigation pursuant to provisions of
this section shall not be liable to any person for such
disclosure under this title, the constitution of any State,
or any law or regulation of any State or any political
subdivision of any State notwithstanding.
``(l) Injunctive Relief.--In addition to any other remedy
contained in this section, injunctive relief shall be
available to require compliance with the procedures of this
section. In the event of any successful action under this
subsection, costs together with reasonable attorney fees, as
determined by the court, may be recovered.''.
(b) Clerical Amendment.--The table of sections at the
beginning of the Fair Credit Reporting Act (15 U.S.C. 1681a
et seq.) is amended by adding after the item relating to
section 623 the following new item:

``624. Disclosures to the Federal Bureau of Investigation for foreign
counterintelligence purposes.''.

[[Page S7867]]

SEC. 502. ACCESS TO RECORDS OF COMMON CARRIERS, PUBLIC
ACCOMMODATION FACILITIES, PHYSICAL STORAGE
FACILITIES, AND VEHICLE RENTAL FACILITIES IN
FOREIGN COUNTERINTELLIGENCE AND
COUNTERTERRORISM CASES.

Title 18, United States Code, is amended by inserting after
chapter 121 the following new chapter:

``CHAPTER 122--ACCESS TO CERTAIN RECORDS

``Sec. 2720. Access to records of common carriers, public
accommodation facilities, physical storage facilities, and
vehicle rental facilities in counterintelligence and
counterterrorism cases

``(a)(1) A court or magistrate judge may issue an order ex
parte directing any common carrier, public accommodation
facility, physical storage facility, or vehicle rental
facility to furnish any records in its possession to the
Federal Bureau of Investigation. The court or magistrate
judge shall issue the order if the Director of the Federal
Bureau of Investigation or the Director's designee (whose
rank shall be no lower than Assistant Special Agent in
Charge) certifies in writing that--
``(A) such records are sought for foreign
counterintelligence purposes; and
``(B) there are specific and articulable facts giving
reason to believe that the person to whom the records pertain
is a foreign power or an agent of a foreign power as defined
in section 101 of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 801).
``(2) An order issued under this subsection shall not
disclose that it is issued for purposes of a
counterintelligence investigation.
``(b) No common carrier, public accommodation facility,
physical storage facility, or vehicle rental facility, or any
officer, employee, or agent of such common carrier, public
accommodation facility, physical storage facility, or vehicle
rental facility, shall disclose to any person, other than
those officers, agents, or employees of the common carrier,
public accommodation facility, physical storage facility, or
vehicle rental facility necessary to fulfill the requirement
to disclose the information to the Federal Bureau of
Investigation under this section.
``(c) As used in this chapter--
``(1) the term `common carrier' means a locomotive, rail
carrier, bus carrying passengers, water common carrier, air
common carrier, or private commercial interstate carrier for
the delivery of packages and other objects;
``(2) the term `public accommodation facility' means any
inn, hotel, motel, or other establishment that provides
lodging to transient guests;
``(3) the term `physical storage facility' means any
business or entity that provides space for the storage of
goods or materials, or services related to the storage of
goods or materials, to the public or any segment thereof; and
``(4) the term `vehicle rental facility' means any person
or entity that provides vehicles for rent, lease, loan, or
other similar use, to the public or any segment thereof.''.

SEC. 503. INCREASE IN MAXIMUM REWARDS FOR INFORMATION
CONCERNING INTERNATIONAL TERRORISM.

(a) Terrorism Abroad.--Section 36 of the State Department
Basic Authorities Act of 1956 (22 U.S.C. 2708) is amended--
(1) in subsection (c), by striking ``$2,000,000'' and
inserting ``$10,000,000''; and
(2) in subsection (g), by striking ``$5,000,000'' and
inserting ``$10,000,000.
(b) Domestic Terrorism.--Title 18, United States Code, is
amended--
(1) in section 3072, by striking ``$500,000'' and inserting
``$10,000,000''; and
(2) in section 3075, by striking ``$5,000,000'' and
inserting ``$10,000,000''.
(c) General Reward Authority of the Attorney General.--
(1) In general.--Chapter 203 of title 18, United States
Code, is amended by adding immediately after section 3059A
the following section:

``Sec. 3059B. General reward authority

``(a) Notwithstanding any other provision of law, the
Attorney General may pay rewards and receive from any
department or agency funds for the payment of rewards under
this section to any individual who assists the Department of
Justice in performing its functions.
``(b) Not later than 30 days after authorizing a reward
under this section that exceeds $100,000, the Attorney
General shall give notice to the respective chairmen of the
Committees on Appropriations and the Committees on the
Judiciary of the Senate and the House of Representatives.
``(c) A determination made by the Attorney General to
authorize an award under this section and the amount of any
reward authorized shall be final and conclusive, and not
subject to judicial review.''.
Subtitle B--Intelligence and Investigation Enhancements

SEC. 511. STUDY AND REPORT ON ELECTRONIC SURVEILLANCE.

(a) Study.--The Attorney General and the Director of the
Federal Bureau of Investigation shall study all applicable
laws and guidelines relating to electronic surveillance and
the use of pen registers and other trap and trace devices.
(b) Report.--Not later than 90 days after the date of
enactment of this Act, the Attorney General shall submit a
report to the Congress that includes--
(1) the findings of the study conducted pursuant to
subsection (a);
(2) recommendations for the use of electronic devices in
conducting surveillance of terrorist or other criminal
organizations, and for any modifications in the law necessary
to enable the Federal Government to fulfill its law
enforcement responsibilities within appropriate
constitutional parameters; and
(3) a summary of efforts to use current wiretap authority,
including detailed examples of situations in which expanded
authority would have enabled law enforcement authorities to
fulfill their responsibilities.

SEC. 512. AUTHORIZATION FOR INTERCEPTIONS OF COMMUNICATIONS
IN CERTAIN TERRORISM RELATED OFFENSES.

Section 2516(1) of title 18, United States Code, is
amended--
(1) in paragraph (c)--
(A) by inserting before ``or section 1992 (relating to
wrecking trains)'' the following: ``section 2332 (relating to
terrorist acts abroad), section 2332a (relating to weapons of
mass destruction, section 2332b (relating to acts of
terrorism transcending national boundaries), section 2339A
(relating to providing material support to terrorists),
section 37 (relating to violence at international
airports),''; and
(B) by inserting after ``section 175 (relating to
biological weapons),'' the following: ``or a felony violation
under section 1028 (relating to production of false
identification documentation), sections 1541, 1542, 1543,
1544, and 1546 (relating to passport and visa offenses),'';
(2) by striking ``and'' at the end of paragraph (o), as so
redesignated by section 512(a)(2);
(3) by redesignating paragraph (p), as so redesignated by
section 512(a)(2), as paragraph (s); and
(4) by inserting after paragraph (o), as so redesignated by
section 512(a)(2), the following new subparagraphs:
``(p) any violation of section 956 or section 960 of title
18, United States Code (relating to certain actions against
foreign nations);
``(q) any violation of section 46502 of title 49, United
States Code; and''.

SEC. 513. REQUIREMENT TO PRESERVE EVIDENCE.

Section 2703 of title 18, United States Code, is amended by
adding at the end the following new subsection:
``(f) Requirement To Preserve Evidence.--A provider of wire
or electronic communication services or a remote computing
service, upon the request of a governmental entity, shall
take all necessary steps to preserve records and other
evidence in its possession pending the issuance of a court
order or other process. Such records shall be retained for a
period of 90 days, which period shall be extended for an
additional 90-day period upon a renewed request by the
governmental entity.''.
Subtitle C--Additional Funding for Law Enforcement

SEC. 521. FEDERAL BUREAU OF INVESTIGATION ASSISTANCE TO
COMBAT TERRORISM.

(a) In General.--With funds made available pursuant to
subsection (b), the Attorney General shall--
(1) develop digital telephony technology;
(2) support and enhance the technical support center and
tactical operations;
(3) create a Federal Bureau of Investigation
counterterrorism and counterintelligence fund for costs
associated with terrorism cases;
(4) expand and improve the instructional, operational
support, and construction of the Federal Bureau of
Investigation academy;
(5) construct an FBI laboratory, provide laboratory
examination support, and provide for a Command Center;
(6) make funds available to the chief executive officer of
each State to carry out the activities described in
subsection (d); and
(7) enhance personnel to support counterterrorism
activities.
(b) Authorization of Appropriations.--There are authorized
to be appropriated for the activities of the Federal Bureau
of Investigation, to help meet the increased demands for
activities to combat terrorism--
(1) $300,000,000 for fiscal year 1996;
(2) $225,000,000 for fiscal year 1997;
(3) $328,000,000 for fiscal year 1998;
(4) $190,000,000 for fiscal year 1999; and
(5) $183,000,000 for fiscal year 2000.
(c) Availability of Funds.--
(1) In general.--Funds made available pursuant to
subsection (b), in any fiscal year, shall remain available
until expended.
(d) State Grants.--
(1) In general.--Any funds made available for purposes of
subsection (a)(6) may be expended--
(A) by the Director of the Federal Bureau of Investigation
to expand the combined DNA Identification System (CODIS) to
include Federal crimes and crimes committed in the District
of Columbia; and
(B) by the Attorney General, in consultation with the
Director of the Federal Bureau of Investigation to make funds
available to the chief executive officer of each State to
carry out the activities described in paragraph (2).
(2) Grant program.--
(A) Use of funds.--The executive officer of each State
shall use any funds made available under paragraph (1)(B) in
conjunction with units of local government, other States, or
combinations thereof, to carry out all or part of a program
to establish, develop, update, or upgrade-- [[Page S7868]]
(i) computerized identification systems that are compatible
and integrated with the databases of the National Crime
Information Center of the Federal Bureau of Investigation;
(ii) ballistics identification programs that are compatible
and integrated with the Drugfire Program of the Federal
Bureau of Investigation;
(iii) the capability to analyze deoxyribonucleic acid (DNA)
in a forensic laboratory in ways that are compatible and
integrated with the combined DNA Identification System
(CODIS) of the Federal Bureau of Investigation; and
(iv) automated fingerprint identification systems that are
compatible and integrated with the Integrated Automated
Fingerprint Identification System (IAFIS) of the Federal
Bureau of Investigation.
(B) Eligibility.--To be eligible to receive funds under
this paragraph, a State shall require that each person
convicted of a felony of a sexual nature shall provide to
appropriate State law enforcement officials, as designated by
the chief executive officer of the State, a sample of blood,
saliva, or other specimen necessary to conduct a DNA analysis
consistent with the standards established for DNA testing by
the Director of the Federal Bureau of Investigation.
(C) Interstate compacts.--A State may enter into a compact
or compacts with another State or States to carry out this
subsection.
(D) Allocation.--(i) Of the total amount appropriated
pursuant to this section in a fiscal year--
(I) $500,000 or 0.25 percent, whichever is greater, shall
be allocated to each of the participating States; and
(II) of the total funds remaining after the allocation
under subclause (I), there shall be allocated to each State
an amount which bears the same ratio to the amount of
remaining funds described in this subparagraph as the
population of such State bears to the population of all
States.
(ii) Definition.--For purposes of this subparagraph, the
term ``State'' means any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, American Samoa, Guam, and the Northern
Mariana Islands, except that for purposes of the allocation
under this subparagraph, American Samoa and the Commonwealth
of the Northern Mariana Islands shall be considered as one
State and that for these purposes, 67 percent of the amounts
allocated shall be allocated to American Samoa, and 33
percent to the Commonwealth of the Northern Mariana Islands.

SEC. 522. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE
UNITED STATES CUSTOMS SERVICE.

(a) In General.--There are authorized to be appropriated
for the activities of the United States Customs Service, to
help meet the increased needs of the United States Customs
Service--
(1) $6,000,000 for fiscal year 1996;
(2) $6,000,000 for fiscal year 1997;
(3) $6,000,000 for fiscal year 1998;
(4) $5,000,000 for fiscal year 1999; and
(5) $5,000,000 for fiscal year 2000.
(b) Availability of Funds.--Funds made available pursuant
to subsection (a), in any fiscal year, shall remain available
until expended.

SEC. 523. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE
IMMIGRATION AND NATURALIZATION SERVICE.

(a) In General.--There are authorized to be appropriated
for the activities of the Immigration and Naturalization
Service, to help meet the increased needs of the Immigration
and Naturalization Service $5,000,000 for each of the fiscal
years 1996, 1997, 1998, 1999, and 2000.
(b) Availability of Funds.--Funds made available pursuant
to subsection (a), in any fiscal year, shall remain available
until expended.

SEC. 524. DRUG ENFORCEMENT ADMINISTRATION.

(a) Activities of Drug Enforcement Administration.--With
funds made available pursuant to subsection (b), the Attorney
General shall--
(1) fund antiviolence crime initiatives;
(2) fund major violators' initiatives; and
(3) enhance or replace infrastructure.
(b) Authorization of Appropriations.--There are authorized
to be appropriated to the Drug Enforcement Administration, to
help meet the increased needs of the Drug Enforcement
Administration--
(1) $60,000,000 for fiscal year 1996;
(2) $70,000,000 for fiscal year 1997;
(3) $80,000,000 for fiscal year 1998;
(4) $90,000,000 for fiscal year 1999; and
(5) $100,000,000 for fiscal year 2000.
(c) Availability of Funds.--Funds made available pursuant
to this section, in any fiscal year, shall remain available
until expended.

SEC. 525. DEPARTMENT OF JUSTICE.

(a) In General.--Subject to the availability of
appropriations, the Attorney General shall--
(1) hire additional Assistant United States Attorneys, and
(2) provide for increased security at courthouses and other
facilities housing Federal workers.
(b) Authorization of Additional Appropriations.--There are
authorized to be appropriated for the activities of the
Department of Justice, to hire additional Assistant United
States Attorneys and personnel for the Criminal Division of
the Department of Justice and provide increased security to
meet the needs resulting from this Act $20,000,000 for each
of the fiscal years 1996, 1997, 1998, 1999, and 2000.
(c) Availability of Funds.--Funds made available pursuant
to this section, in any fiscal year, shall remain available
until expended.

SEC. 526. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE
DEPARTMENT OF THE TREASURY.

(a) In General.--There are authorized to be appropriated
for the activities of the Bureau of Alcohol, Tobacco and
Firearms, to augment counterterrorism efforts--
(1) $20,000,000 for fiscal year 1996;
(2) $20,000,000 for fiscal year 1997;
(3) $20,000,000 for fiscal year 1998;
(4) $20,000,000 for fiscal year 1999; and
(5) $20,000,000 for fiscal year 2000.
(b) In General.--There are authorized to be appropriated
for the activities of the United States Secret Service, to
augment White House security and expand Presidential
protection activities--
(1) $62,000,000 for fiscal year 1996;
(2) $25,000,000 for fiscal year 1997;
(3) $25,000,000 for fiscal year 1998;
(4) $25,000,000 for fiscal year 1999; and
(5) $25,000,000 for fiscal year 2000.

SEC. 527. FUNDING SOURCE.

Notwithstanding any other provision of law, funding for
authorizations provided in this subtitle may be paid for out
of the Violent Crime Reduction Trust Fund.

SEC. 528. DETERRENT AGAINST TERRORIST ACTIVITY DAMAGING A
FEDERAL INTEREST COMPUTER.

The United States Sentencing Commission shall review
existing guideline levels as they apply to sections
1030(a)(4) and 1030(a)(5) of title 18, United States Code,
and report to Congress on their findings as to their
deterrent effect within 60 calendar days. Furthermore, the
Commission shall promulgate guideline amendments that will
ensure that individuals convicted under sections 1030(a)(4)
and 1030(a)(5) of title 18, United States Code, are
incarcerated for not less than 6 months.
TITLE VI--CRIMINAL PROCEDURAL IMPROVEMENTS
Subtitle A--Habeas Corpus Reform

SEC. 601. FILING DEADLINES.

Section 2244 of title 28, United States Code, is amended by
adding at the end the following new subsection:
``(d)(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of--
``(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
``(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
``(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
``(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through the
exercise of due diligence.
``(2) The time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim shall not be
counted toward any period of limitation under this
subsection.''.

SEC. 602. APPEAL.

Section 2253 of title 28, United States Code, is amended to
read as follows:

``Sec. 2253. Appeal

``(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
``(b) There shall be no right of appeal from a final order
in a proceeding to test the validity of a warrant to remove
to another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the validity of such person's detention pending
removal proceedings.
``(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to
the court of appeals from--
``(A) the final order in a habeas corpus proceeding in
which the detention complained of arises out of process
issued by a State court; or
``(B) the final order in a proceeding under section 2255.
``(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a substantial
showing of the denial of a constitutional right.
``(3) The certificate of appealability under paragraph (1)
shall indicate which specific issue or issues satisfy the
showing required by paragraph (2).''.

SEC. 603. AMENDMENT OF FEDERAL RULES OF APPELLATE PROCEDURE.

Rule 22 of the Federal Rules of Appellate Procedure is
amended to read as follows:
``Rule 22. Habeas corpus and section 2255
proceedings [[Page S7869]]
``(a) Application for the Original Writ.--An application
for a writ of habeas corpus shall be made to the appropriate
district court. If application is made to a circuit judge,
the application shall be transferred to the appropriate
district court. If an application is made to or transferred
to the district court and denied, renewal of the application
before a circuit judge shall not be permitted. The applicant
may, pursuant to section 2253 of title 28, United States
Code, appeal to the appropriate court of appeals from the
order of the district court denying the writ.
``(b) Certificate of Appealability.--In a habeas corpus
proceeding in which the detention complained of arises out of
process issued by a State court, an appeal by the applicant
for the writ may not proceed unless a district or a circuit
judge issues a certificate of appealability pursuant to
section 2253(c) of title 28, United States Code. If an appeal
is taken by the applicant, the district judge who rendered
the judgment shall either issue a certificate of
appealability or state the reasons why such a certificate
should not issue. The certificate or the statement shall be
forwarded to the court of appeals with the notice of appeal
and the file of the proceedings in the district court. If the
district judge has denied the certificate, the applicant for
the writ may then request issuance of the certificate by a
circuit judge. If such a request is addressed to the court of
appeals, it shall be deemed addressed to the judges thereof
and shall be considered by a circuit judge or judges as the
court deems appropriate. If no express request for a
certificate is filed, the notice of appeal shall be deemed to
constitute a request addressed to the judges of the court of
appeals. If an appeal is taken by a State or its
representative, a certificate of appealability is not
required.''.

SEC. 604. SECTION 2254 AMENDMENTS.

Section 2254 of title 28, United States Code, is amended--
(1) by amending subsection (b) to read as follows:
``(b)(1) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a
State court shall not be granted unless it appears that--
``(A) the applicant has exhausted the remedies available in
the courts of the State; or
``(B)(i) there is an absence of available State corrective
process; or
``(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
``(2) An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of
the State.
``(3) A State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance upon the
requirement unless the State, through counsel, expressly
waives the requirement.'';
(2) by redesignating subsections (d), (e), and (f) as
subsections (e), (f), and (g), respectively;
(3) by inserting after subsection (c) the following new
subsection:
``(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim--
``(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States; or
``(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.'';
(4) by amending subsection (e), as redesignated by
paragraph (2), to read as follows:
``(e)(1) In a proceeding instituted by an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual issue
made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.
``(2) If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court shall
not hold an evidentiary hearing on the claim unless the
applicant shows that--
``(A) the claim relies on--
``(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
``(ii) a factual predicate that could not have been
previously discovered through the exercise of due diligence;
and
``(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.''; and
(5) by adding at the end the following new subsections:
``(h) Except as provided in title 21, United States Code,
section 848, in all proceedings brought under this section,
and any subsequent proceedings on review, the court may
appoint counsel for an applicant who is or becomes
financially unable to afford counsel, except as provided by a
rule promulgated by the Supreme Court pursuant to statutory
authority. Appointment of counsel under this section shall be
governed by section 3006A of title 18.
``(i) The ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall
not be a ground for relief in a proceeding arising under
section 2254.''.

SEC. 605. SECTION 2255 AMENDMENTS.

Section 2255 of title 28, United States Code, is amended--
(1) by striking the second and fifth undesignated
paragraphs; and
(2) by adding at the end the following new undesignated
paragraphs:
``A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from the
latest of--
``(1) the date on which the judgment of conviction becomes
final;
``(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action;
``(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
``(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
``Except as provided in title 21, United States Code,
section 848, in all proceedings brought under this section,
and any subsequent proceedings on review, the court may
appoint counsel for a movant who is or becomes financially
unable to afford counsel shall be in the discretion of the
court, except as provided by a rule promulgated by the
Supreme Court pursuant to statutory authority. Appointment of
counsel under this section shall be governed by section 3006A
of title 18.
``A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate court
of appeals to contain--
``(1) newly discovered evidence that, if proven and viewed
in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
or
``(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.''.

SEC. 606. LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS.

SEC. 607. DEATH PENALTY LITIGATION PROCEDURES.

(a) Addition of Chapter to Title 28, United States Code.--
Title 28, United States [[Page S7870]] Code, is amended by
inserting after chapter 153 the following new chapter:

``Sec. 2262. Mandatory stay of execution; duration; limits on
stays of execution; successive petitions

``Sec. 2263. Filing of habeas corpus application; time
requirements; tolling rules

``(a) Any application under this chapter for habeas corpus
relief under section 2254 must be filed in the appropriate
district court not later than 180 days after final State
court affirmance of the conviction and sentence on direct
review or the expiration of the time for seeking such review.
``(b) The time requirements established by subsection (a)
shall be tolled--
``(1) from the date that a petition for certiorari is filed
in the Supreme Court until the date of final disposition of
the petition if a State prisoner files the petition to secure
review by the Supreme Court of the affirmance of a capital
sentence on direct review by the court of last resort of the
State or other final State court decision on direct review;
``(2) from the date on which the first petition for post-
conviction review or other collateral relief is filed until
the final State court disposition of such petition; and
``(3) during an additional period not to exceed 30 days,
if--
``(A) a motion for an extension of time is filed in the
Federal district court that would have jurisdiction over the
case upon the filing of a habeas corpus application under
section 2254; and
``(B) a showing of good cause is made for the failure to
file the habeas corpus application within the time period
established by this section.

``Sec. 2264. Scope of Federal review; district court
adjudications

``(a) Whenever a State prisoner under capital sentence
files a petition for habeas corpus relief to which this
chapter applies, the district court shall only consider a
claim or claims that have been raised and decided on the
merits in the State courts, unless the failure to raise the
claim properly is--
``(1) the result of State action in violation of the
Constitution or laws of the United States;
``(2) the result of the Supreme Court recognition of a new
Federal right that is made retroactively applicable; or
``(3) based on a factual predicate that could not have been
discovered through the exercise of due diligence in time to
present the claim for State or Federal post-conviction
review.
``(b) Following review subject to subsections (a), (d), and
(e) of section 2254, the court shall rule on the claims
properly before it.
``Sec. 2265. Application to State unitary review procedure

``Sec. 2266. Limitation periods for determining applications
and motions

``(a) The adjudication of any application under section
2254 that is subject to this chapter, and the adjudication of
any motion under section 2255 by a person under sentence of
death, shall be given priority by the district court and by
the court of appeals over all noncapital matters.
``(b)(1)(A) A district court shall render a final
determination and enter a final judgment on any application
for a writ of habeas corpus brought under this chapter in a
capital case not later than 180 days after the date on which
the application is filed.
``(B) A district court shall afford the parties at least
120 days in which to complete all actions, including the
preparation of all pleadings and briefs, and if necessary, a
hearing, prior to the submission of the case for decision.
``(C)(i) A district court may delay for not more than one
additional 30-day period beyond the period specified in
subparagraph (A), the rendering of a determination of an
application for a writ of habeas corpus if the court issues a
written order making a finding, and stating the reasons for
the finding, [[Page S7871]] that the ends of justice that
would be served by allowing the delay outweigh the best
interests of the public and the applicant in a speedy
disposition of the application.
``(ii) The factors, among others, that a court shall
consider in determining whether a delay in the disposition of
an application is warranted are as follows:
``(I) Whether the failure to allow the delay would be
likely to result in a miscarriage of justice.
``(II) Whether the case is so unusual or so complex, due to
the number of defendants, the nature of the prosecution, or
the existence of novel questions of fact or law, that it is
unreasonable to expect adequate briefing within the time
limitations established by subparagraph (A).
``(III) Whether the failure to allow a delay in a case,
that, taken as a whole, is not so unusual or so complex as
described in subclause (II), but would otherwise deny the
applicant reasonable time to obtain counsel, would
unreasonably deny the applicant or the government continuity
of counsel, or would deny counsel for the applicant or the
government the reasonable time necessary for effective
preparation, taking into account the exercise of due
diligence.
``(iii) No delay in disposition shall be permissible
because of general congestion of the court's calendar.
``(iv) The court shall transmit a copy of any order issued
under clause (i) to the Director of the Administrative Office
of the United States Courts for inclusion in the report under
paragraph (5).
``(2) The time limitations under paragraph (1) shall apply
to--
``(A) an initial application for a writ of habeas corpus;
``(B) any second or successive application for a writ of
habeas corpus; and
``(C) any redetermination of an application for a writ of
habeas corpus following a remand by the court of appeals or
the Supreme Court for further proceedings, in which case the
limitation period shall run from the date the remand is
ordered.
``(3)(A) The time limitations under this section shall not
be construed to entitle an applicant to a stay of execution,
to which the applicant would otherwise not be entitled, for
the purpose of litigating any application or appeal.
``(B) No amendment to an application for a writ of habeas
corpus under this chapter shall be permitted after the filing
of the answer to the application, except on the grounds
specified in section 2244(b).
``(4)(A) The failure of a court to meet or comply with a
time limitation under this section shall not be a ground for
granting relief from a judgment of conviction or sentence.
``(B) The State may enforce a time limitation under this
section by petitioning for a writ of mandamus to the court of
appeals. The court of appeals shall act on the petition for a
writ or mandamus not later than 30 days after the filing of
the petition.
``(5)(A) The Administrative Office of United States Courts
shall submit to Congress an annual report on the compliance
by the district courts with the time limitations under this
section.
``(B) The report described in subparagraph (A) shall
include copies of the orders submitted by the district courts
under paragraph (1)(B)(iv).
``(c)(1)(A) A court of appeals shall hear and render a
final determination of any appeal of an order granting or
denying, in whole or in part, an application brought under
this chapter in a capital case not later than 120 days after
the date on which the reply brief is filed, or if no reply
brief is filed, not later than 120 days after the date on
which the answering brief is filed.
``(B)(i) A court of appeals shall decide whether to grant a
petition for rehearing or other request for rehearing en banc
not later than 30 days after the date on which the petition
for rehearing is filed unless a responsive pleading is
required, in which case the court shall decide whether to
grant the petition not later than 30 days after the date on
which the responsive pleading is filed.
``(ii) If a petition for rehearing or rehearing en banc is
granted, the court of appeals shall hear and render a final
determination of the appeal not later than 120 days after the
date on which the order granting rehearing or rehearing en
banc is entered.
``(2) The time limitations under paragraph (1) shall apply
to--
``(A) an initial application for a writ of habeas corpus;
``(B) any second or successive application for a writ of
habeas corpus; and
``(C) any redetermination of an application for a writ of
habeas corpus or related appeal following a remand by the
court of appeals en banc or the Supreme Court for further
proceedings, in which case the limitation period shall run
from the date the remand is ordered.
``(3) The time limitations under this section shall not be
construed to entitle an applicant to a stay of execution, to
which the applicant would otherwise not be entitled, for the
purpose of litigating any application or appeal.
``(4)(A) The failure of a court to meet or comply with a
time limitation under this section shall not be a ground for
granting relief from a judgment of conviction or sentence.
``(B) The State may enforce a time limitation under this
section by applying for a writ of mandamus to the Supreme
Court.
``(5) The Administrative Office of United States Courts
shall submit to Congress an annual report on the compliance
by the courts of appeals with the time limitations under this
section.''.
(b) Technical Amendment.--The part analysis for part IV of
title 28, United States Code, is amended by adding after the
item relating to chapter 153 the following new item:

``154. Special habeas corpus procedures in capital cases...2261.''.....

(c) Effective Date.--Chapter 154 of title 28, United States
Code (as added by subsection (a)) shall apply to cases
pending on or after the date of enactment of this Act.

SEC. 608. TECHNICAL AMENDMENT.

Section 408(q) of the Controlled Substances Act (21 U.S.C.
848(q)) is amended by amending paragraph (9) to read as
follows:
``(9) Upon a finding that investigative, expert, or other
services are reasonably necessary for the representation of
the defendant, whether in connection with issues relating to
guilt or the sentence, the court may authorize the
defendant's attorneys to obtain such services on behalf of
the defendant and, if so authorized, shall order the payment
of fees and expenses therefor under paragraph (10). No ex
parte proceeding, communication, or request may be considered
pursuant to this section unless a proper showing is made
concerning the need for confidentiality. Any such proceeding,
communication, or request shall be transcribed and made a
part of the record available for appellate review.''.
Subtitle B--Criminal Procedural Improvements

SEC. 621. CLARIFICATION AND EXTENSION OF CRIMINAL
JURISDICTION OVER CERTAIN TERRORISM OFFENSES
OVERSEAS.

(a) Aircraft Piracy.--Section 46502(b) of title 49, United
States Code, is amended--
(1) in paragraph (1), by striking ``and later found in the
United States'';
(2) by amending paragraph (2) to read as follows:
``(2) The courts of the United States have jurisdiction
over the offense in paragraph (1) if--
``(A) a national of the United States was aboard the
aircraft;
``(B) an offender is a national of the United States; or
``(C) an offender is afterwards found in the United
States.''; and
(3) by adding at the end the following new paragraph:
``(3) For purposes of this subsection, the term `national
of the United States' has the meaning given such term in
section 101(a)(22) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(22)).''.
(b) Destruction of Aircraft or Aircraft Facilities.--
Section 32(b) of title 18, United States Code, is amended--
(1) by striking ``(b) Whoever'' and inserting ``(b)(1)
Whoever'';
(2) by redesignating paragraphs (1) through (4) as
subparagraphs (A) through (D), respectively;
(3) by striking ``, if the offender is later found in the
United States,''; and
(4) by adding at the end the following new paragraphs:
``(2) The courts of the United States have jurisdiction
over an offense described in this subsection if--
``(A) a national of the United States was on board, or
would have been on board, the aircraft;
``(B) an offender is a national of the United States; or
``(C) an offender is afterwards found in the United States.
``(3) For purposes of this subsection, the term `national
of the United States' has the meaning given such term in
section 101(a)(22) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(22)).''.
(c) Murder or Manslaughter of Internationally Protected
Persons.--Section 1116 of title 18, United States Code, is
amended--
(1) in subsection (a), by striking ``, except that'';
(2) in subsection (b), by adding at the end the following
new paragraph:
``(7) `National of the United States' has the meaning given
such term in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22)).''; and
(3) in subsection (c), by striking the first sentence and
inserting the following: ``If the victim of an offense under
subsection (a) is an internationally protected person outside
the United States, the United States may exercise
jurisdiction over the offense if (1) the victim is a
representative, officer, employee, or agent of the United
States, (2) an offender is a national of the United States,
or (3) an offender is afterwards found in the United
States.''.
(d) Protection of Internationally Protected Persons.--
Section 112 of title 18, United States Code, is amended--
(1) in subsection (c), by inserting ``national of the
United States,'' before ``and''; and
(2) in subsection (e), by striking the first sentence and
inserting the following: ``If the victim of an offense under
subsection (a) is an internationally protected person outside
the United States, the United States may exercise
jurisdiction over the offense if (1) the victim is a
representative, officer, employee, or agent of the United
States, (2) an offender is a national of the United States,
or (3) an offender is afterwards found in the United
States.''. [[Page S7872]]
(e) Threats Against Internationally Protected Persons.--
Section 878 of title 18, United States Code, is amended--
(1) in subsection (c), by inserting ``national of the
United States,'' before ``and''; and
(2) in subsection (d), by striking the first sentence and
inserting the following: ``If the victim of an offense under
subsection (a) is an internationally protected person outside
the United States, the United States may exercise
jurisdiction over the offense if (1) the victim is a
representative, officer, employee, or agent of the United
States, (2) an offender is a national of the United States,
or (3) an offender is afterwards found in the United
States.''.
(f) Kidnapping of Internationally Protected Persons.--
Section 1201(e) of title 18, United States Code, is amended--
(1) by striking the first sentence and inserting the
following: ``If the victim of an offense under subsection (a)
is an internationally protected person outside the United
States, the United States may exercise jurisdiction over the
offense if (1) the victim is a representative, officer,
employee, or agent of the United States, (2) an offender is a
national of the United States, or (3) an offender is
afterwards found in the United States.''; and
(2) by adding at the end the following: ``For purposes of
this subsection, the term `national of the United States' has
the meaning given such term in section 101(a)(22) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(22).''.
(g) Violence at International Airports.--Section 37(b)(2)
of title 18, United States Code, is amended to read as
follows:
``(2) the prohibited activity takes place outside the
United States, and--
``(A) the offender is later found in the United States; or
``(B) an offender or a victim is a national of the United
States (as defined in section 101(a)(22) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(22))).''.
(h) National of the United States Defined.--Section 178 of
title 18, United States Code, is amended--
(1) by striking the ``and'' at the end of paragraph (3);
(2) by striking the period at the end of paragraph (4) and
inserting ``; and''; and
(3) by adding at the end the following new paragraph:
``(5) the term `national of the United States' has the
meaning given such term in section 101(a)(22) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(22)).''.

SEC. 622. EXPANSION OF TERRITORIAL SEA.

(a) Territorial Sea Extending to Twelve Miles Included in
Special Maritime and Territorial Jurisdiction.--The Congress
declares that all the territorial sea of the United States,
as defined by Presidential Proclamation 5928 of December 27,
1988, for purposes of criminal jurisdiction is part of the
United States, subject to its sovereignty, and, for purposes
of Federal criminal jurisdiction, is within the special
maritime and territorial jurisdiction of the United States
wherever that term is used in title 18, United States Code.
(b) Assimilated Crimes in Extended Territorial Sea.--
Section 13 of title 18, United States Code (relating to the
adoption of State laws for areas within Federal
jurisdiction), is amended--
(1) in subsection (a), by inserting after ``title,'' the
following: ``or on, above, or below any portion of the
territorial sea of the United States not within the
jurisdiction of any State, Commonwealth, territory,
possession, or district''; and
(2) by adding at the end the following new subsection:
``(c) Whenever any waters of the territorial sea of the
United States lie outside the territory of any State,
Commonwealth, territory, possession, or district, such waters
(including the airspace above and the seabed and subsoil
below, and artificial islands and fixed structures erected
thereon) shall be deemed for purposes of subsection (a) to
lie within the area of that State, Commonwealth, territory,
possession, or district it would lie within if the boundaries
of such State, Commonwealth, territory, possession, or
district were extended seaward to the outer limit of the
territorial sea of the United States.''.

SEC. 623. EXPANSION OF WEAPONS OF MASS DESTRUCTION STATUTE.

Section 2332a of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) by inserting ``threatens,'' before ``attempts'';
(B) in paragraph (2), by striking ``; or'' and inserting
the following: ``and the results of such use affect
interstate or foreign commerce or, in the case of a threat,
attempt, or conspiracy, would have affected interstate or
foreign commerce if such use had occurred;'';
(C) by redesignating paragraph (3) as paragraph (4);
(D) by inserting after paragraph (2) the following:
``(3) against a victim, or intended victim, that is the
United States Government, a member of the uniformed services,
or any official, officer, employee, or agent of the
legislative, executive, or judicial branches, or any
department or agency, of the United States; and''; and
(E) in paragraph (4), as redesignated, by inserting before
the comma at the end the following: ``, or is within the
United States and is used in any activity affecting
interstate or foreign commerce''.
(2) by redesignating subsection (b) as subsection (c);
(3) by adding immediately after subsection (a) the
following new subsection:
``(b) Use Outside United States.--Any national of the
United States who outside of the United States uses,
threatens, attempts, or conspires to use, a weapon of mass
destruction, shall be imprisoned for any term of years or for
life, and if death results, shall be punished by death or
imprisonment for any term of years or for life. The preceding
sentence does not apply to a person performing an act that,
as performed, is within the scope of the person's official
duties as an officer or employee of the United States or as a
member of the Armed Forces of the United States, or to a
person employed by a contractor of the United States for
performing an act that, as performed, is authorized under the
contract.''; and
(4) by amending subsection (c)(2)(B), as redesignated by
paragraph (3), by striking ``poison gas'' and inserting ``any
poisonous chemical agent or substance, regardless of form or
delivery system, designed for causing widespread death or
injury;''.

SEC. 624. ADDITION OF TERRORISM OFFENSES TO THE RICO STATUTE.

Section 1961(1) of title 18, United States Code, is
amended--
(1) in subparagraph (B)--
(A) by inserting after ``Section'' the following: ``32
(relating to the destruction of aircraft), section 37
(relating to violence at international airports), section 115
(relating to influencing, impeding, or retaliating against a
Federal official by threatening or injuring a family member),
section'';
(B) by inserting after ``section 224 (relating to sports
bribery),'' the following: ``section 351 (relating to
congressional or Cabinet officer assassination),'';
(C) by inserting after ``section 664 (relating to
embezzlement from pension and welfare funds),'' the
following: ``section 831 (relating to prohibited transactions
involving nuclear materials), section 844 (f) or (i)
(relating to destruction by explosives or fire of government
property or property affecting interstate or foreign
commerce),'';
(D) by inserting after ``sections 891-894 (relating to
extortionate credit transactions),'' the following: ``section
956 (relating to conspiracy to kill, kidnap, maim, or injure
certain property in a foreign country),'';
(E) by inserting after ``section 1084 (relating to the
transmission of gambling information),'' the following:
``section 1111 (relating to murder), section 1114 (relating
to murder of United States law enforcement officials),
section 1116 (relating to murder of foreign officials,
official guests, or internationally protected persons),
section 1203 (relating to hostage taking),'';
(F) by inserting after ``section 1344 (relating to
financial institution fraud),'' the following: ``section 1361
(relating to willful injury of government property within the
special maritime and territorial jurisdiction),'';
(G) by inserting after ``section 1513 (relating to
retaliating against a witness, victim, or an informant),''
the following: ``section 1751 (relating to Presidential
assassination),'';
(H) by inserting after ``section 1958 (relating to use of
interstate commerce facilities in the commission of murder-
for-hire),'' the following: ``section 2280 (relating to
violence against maritime navigation), section 2281 (relating
to violence against maritime fixed platforms),''; and
(I) by inserting after ``2321 (relating to trafficking in
certain motor vehicles or motor vehicle parts),'' the
following: ``section 2332 (relating to terrorist acts abroad
against United States nationals), section 2332a (relating to
use of weapons of mass destruction), section 2332b (relating
to acts of terrorism transcending national boundaries),
section 2339A (relating to providing material support to
terrorists),'';
(2) by striking ``or'' before ``(E)''; and
(3) by inserting before the semicolon at the end the
following: ``, or (F) section 46502 of title 49, United
States Code''.

SEC. 625. ADDITION OF TERRORISM OFFENSES TO THE MONEY
LAUNDERING STATUTE.

Section 1956(c)(7) of title 18, United States Code, is
amended--
(1) in subparagraph (B), by amending clause (ii) to read as
follows:
``(ii) murder, kidnapping, robbery, extortion, or
destruction of property by means of explosive or fire;''; and
(2) in subparagraph (D)--
(A) by inserting after ``an offense under'' the following:
``section 32 (relating to the destruction of aircraft),
section 37 (relating to violence at international airports),
section 115 (relating to influencing, impeding, or
retaliating against a Federal official by threatening or
injuring a family member),'';
(B) by inserting after ``section 215 (relating to
commissions or gifts for procuring loans),'' the following:
``section 351 (relating to congressional or Cabinet officer
assassination),'';
(C) by inserting after ``section 798 (relating to
espionage),'' the following: ``section 831 (relating to
prohibited transactions involving nuclear materials), section
844 (f) or (i) (relating to destruction by explosives or fire
of Government property or property affecting interstate or
foreign commerce),'';
(D) by inserting after ``section 875 (relating to
interstate communications),'' the following: ``section 956
(relating to conspiracy to kill, kidnap, maim, or injure
certain property in a foreign country),''; [[Page S7873]]
(E) by inserting after ``section 1032 (relating to
concealment of assets from conservator, receiver, or
liquidating agent of financial institution),'' the following:
``section 1111 (relating to murder), section 1114 (relating
to murder of United States law enforcement officials),
section 1116 (relating to murder of foreign officials,
official guests, or internationally protected persons),'';
(F) by inserting after ``section 1203 (relating to hostage
taking)'' the following: ``section 1361 (relating to willful
injury of Government property), section 1363 (relating to
destruction of property within the special maritime and
territorial jurisdiction),'';
(G) by inserting after ``section 1708 (relating to theft
from the mail)'' the following: ``section 1751 (relating to
Presidential assassination),'';
(H) by inserting after ``2114 (relating to bank and postal
robbery and theft),'' the following: ``section 2280 (relating
to violence against maritime navigation), section 2281
(relating to violence against maritime fixed platforms),'';
and
(I) by striking ``of this title'' and inserting the
following: ``section 2332 (relating to terrorist acts abroad
against United States nationals), section 2332a (relating to
use of weapons of mass destruction), section 2332b (relating
to international terrorist acts transcending national
boundaries), 2339A (relating to providing material support to
terrorists) of this title, section 46502 of title 49, United
States Code,''.

SEC. 626. PROTECTION OF CURRENT OR FORMER OFFICIALS,
OFFICERS, OR EMPLOYEES OF THE UNITED STATES.

(a) Amendment To Include Assaults, Murders, and Threats
Against Families of Federal Officials.--Section 115(a)(2) of
title 18, United States Code, is amended by inserting ``, or
threatens to assault, kidnap, or murder, any person who
formerly served as a person designated in paragraph (1), or''
after ``assaults, kidnaps, or murders, or attempts to kidnap
or murder''.
(b) Murder or Attempts To Murder Current or Former Federal
Officers or Employees.--Section 1114 of title 18, United
States Code, is amended to read as follows:

``Sec. 1114. Protection of officers and employees of the
United States

``Whoever kills or attempts to kill a current or former
officer or employee of the United States or its
instrumentalities, or an immediate family member of such
officer or employee, or any person assisting such an officer
or employee in the performance of official duties, during or
on account of the performance of such duties or the provision
of such assistance, shall be punished--
``(1) in the case of murder, as provided under section
1111;
``(2) in the case of manslaughter, as provided under
section 1112; and
``(3) in the case of attempted murder or manslaughter as
provided in section 1113, not more than 20 years.''.
(c) Amendment To Clarify the Meaning of the Term Deadly or
Dangerous Weapon in the Prohibition on Assault on Federal
Officers or Employees.--Section 111(b) of title 18, United
States Code, is amended by inserting after ``deadly or
dangerous weapon'' the following: ``(including a weapon
intended to cause death or danger but that fails to do so by
reason of a defective or missing component)''.

SEC. 627. ADDITION OF CONSPIRACY TO TERRORISM OFFENSES.

(a) Destruction of Aircraft or Aircraft Facilities.--(1)
Section 32(a)(7) of title 18, United States Code, is amended
by inserting ``or conspires'' after ``attempts''.
(2) Section 32(b)(D) of title 18, United States Code, as
redesignated by section 721(b)(2), is amended by inserting
``or conspires'' after ``attempts''.
(b) Violence at International Airports.--Section 37(a) of
title 18, United States Code, is amended by inserting ``or
conspires'' after ``attempts''.
(c) Influencing, Impeding, or Retaliating Against a Federal
Official by Threatening or Injuring a Family Member.--(1)
Section 115(a)(1)(A) of title 18, United States Code, is
amended by inserting ``or conspires'' after ``attempts''.
(2) Section 115(a)(2) of title 18, United States Code, as
amended by section 729, is further amended by inserting ``or
conspires'' after ``attempts''.
(3) Section 115(b)(2) of title 18, United States Code, is
amended by striking both times it appears ``or attempted
kidnapping'' and inserting both times ``, attempted
kidnapping or conspiracy to kidnap''.
(4)(A) Section 115(b)(3) of title 18, United States Code,
is amended by striking ``or attempted murder'' and inserting
``, attempted murder or conspiracy to murder''.
(B) Section 115(b)(3) of title 18, United States Code, is
further amended by striking ``and 1113'' and inserting ``,
1113, and 1117''.
(d) Prohibitions With Respect to Biological Weapons.--
Section 175(a) of title 18, United States Code, is amended by
inserting ``, or conspires to do so,'' after ``any
organization to do so,''.
(e) Hostage Taking.--Section 1203(a) of title 18, United
States Code, is amended by inserting ``or conspires'' after
``attempts''.
(f) Violence Against Maritime Navigation.--Section
2280(a)(1)(H) of title 18, United States Code, is amended by
inserting ``or conspires'' after ``attempts''.
(g) Violence Against Maritime Fixed Platforms.--Section
2281(a)(1)(F) of title 18, United States Code, is amended by
inserting ``or conspires'' after ``attempts''.
(h) Aircraft Piracy.--Section 46502 of title 49, United
States Code, is amended--
(1) in subsection (a)(2), by inserting ``, conspiring,''
after ``committing'' and
(2) in subsection (b)--
(A) in paragraph (1), by inserting ``or conspiring to
commit'' after ``committing'';
(B) in paragraph (2), by inserting ``conspired or'' after
``has placed,''; and
(C) in paragraph (3), by inserting ``conspired or'' after
``has placed,''.
(i) Clarification of Maritime Violence Jurisdiction.--
Section 2280(b)(1)(A) of title 18, United States Code, is
amended--
(1) in clause (ii), by striking ``and the activity is not
prohibited as a crime by the State in which the activity
takes place''; and
(2) in clause (iii), by striking ``the activity takes place
on a ship flying the flag of a foreign country or outside the
United States,''.

SEC. 628. CLARIFICATION OF FEDERAL JURISDICTION OVER BOMB
THREATS.

Section 844(e) of title 18, United States Code, is
amended--
(1) by striking ``(e) Whoever'' and inserting ``(e)(1)
Whoever''; and
(2) by adding at the end the following new paragraph:
``(2) Whoever willfully makes any threat, or maliciously
conveys false information knowing the same to be false,
concerning an attempt or alleged attempt being made, or to be
made to violate subsection (f) or (i) of this section or
section 81 of this title shall be fined under this title,
imprisoned for not more than 5 years, or both.''.
TITLE VII--MARKING OF PLASTIC EXPLOSIVES

SEC. 701. FINDINGS AND PURPOSES.

(a) Findings.--The Congress finds that--
(1) plastic explosives were used by terrorists in the
bombings of Pan Am flight 103 in December 1988 and UTA flight
722 in September 1989;
(2) plastic explosives can be used with little likelihood
of detection for acts of unlawful interference with civil
aviation, maritime navigation, and other modes of
transportation;
(3) the criminal use of plastic explosives places innocent
lives in jeopardy, endangers national security, affects
domestic tranquility, and gravely affects interstate and
foreign commerce;
(4) the marking of plastic explosives for the purpose of
detection would contribute significantly to the prevention
and punishment of such unlawful acts; and
(5) for the purpose of deterring and detecting such
unlawful acts, the Convention on the Marking of Plastic
Explosives for the Purpose of Detection, Done at Montreal on
1 March 1991, requires each contracting State to adopt
appropriate measures to ensure that plastic explosives are
duly marked and controlled.
(b) Purpose.--The purpose of this title is to fully
implement the Convention on the Marking of Plastic Explosives
for the Purpose of Detection, Done at Montreal on 1 March
1991.

SEC. 702. DEFINITIONS.

Section 841 of title 18, United States Code, is amended by
adding at the end the following new subsections:
``(o) `Convention on the Marking of Plastic Explosives'
means the Convention on the Marking of Plastic Explosives for
the Purpose of Detection, Done at Montreal on 1 March 1991.
``(p) `Detection agent' means any one of the substances
specified in this subsection when introduced into a plastic
explosive or formulated in such explosive as a part of the
manufacturing process in such a manner as to achieve
homogeneous distribution in the finished explosive,
including--
``(1) Ethylene glycol dinitrate (EGDN),
C2H4(NO3)2, molecular weight 152, when
the minimum concentration in the finished explosive is 0.2
percent by mass;
``(2) 2,3-Dimethyl-2,3-dinitrobutane (DMNB),
C6H12(NO2)2, molecular weight 176, when
the minimum concentration in the finished explosive is 0.1
percent by mass;
``(3) Para-Mononitrotoluene (p-MNT),
C7H7NO2, molecular weight 137, when the
minimum concentration in the finished explosive is 0.5
percent by mass;
``(4) Ortho-Mononitrotoluene (o-MNT),
C7H7NO2, molecular weight 137, when the
minimum concentration in the finished explosive is 0.5
percent by mass; and
``(5) any other substance in the concentration specified by
the Secretary, after consultation with the Secretary of State
and the Secretary of Defense, which has been added to the
table in part 2 of the Technical Annex to the Convention on
the Marking of Plastic Explosives.
``(q) `Plastic explosive' means an explosive material in
flexible or elastic sheet form formulated with one or more
high explosives which in their pure form have a vapor
pressure less than 10^{-4 Pa at a temperature of
25 deg.C., is formulated with a binder material, and is as a
mixture malleable or flexible at normal room temperature.''.

SEC. 703. REQUIREMENT OF DETECTION AGENTS FOR PLASTIC
EXPLOSIVES.

Section 842 of title 18, United States Code, is amended by
adding after subsection (k) the following new subsections:
``(l) It shall be unlawful for any person to manufacture
any plastic explosive that does not contain a detection
agent.
``(m)(1) It shall be unlawful for any person to import or
bring into the United States, or export from the United
States, any plastic explosive that does not contain a
detection agent. [[Page S7874]]
``(2) This subsection does not apply to the importation or
bringing into the United States, or the exportation from the
United States, of any plastic explosive that was imported,
brought into, or manufactured in the United States prior to
the date of enactment of title VII of the Comprehensive
Terrorism Prevention Act of 1995 by or on behalf of any
agency of the United States performing military or police
functions (including any military reserve component) or by or
on behalf of the National Guard of any State, not later than
15 years after the date of entry into force of the Convention
on the Marking of Plastic Explosives, with respect to the
United States.
``(n)(1) It shall be unlawful for any person to ship,
transport, transfer, receive, or possess any plastic
explosive that does not contain a detection agent.
``(2) This subsection does not apply to--
``(A) the shipment, transportation, transfer, receipt, or
possession of any plastic explosive that was imported,
brought into, or manufactured in the United States prior to
the date of enactment of the Comprehensive Terrorism
Prevention Act of 1995 by any person during a period not
exceeding 3 years after the date of enactment of title VII of
the Comprehensive Terrorism Prevention Act of 1995; or
``(B) the shipment, transportation, transfer, receipt, or
possession of any plastic explosive that was imported,
brought into, or manufactured in the United States prior to
the date of enactment of title VII of the Comprehensive
Terrorism Prevention Act of 1995 by or on behalf of any
agency of the United States performing a military or police
function (including any military reserve component) or by or
on behalf of the National Guard of any State, not later than
15 years after the date of entry into force of the Convention
on the Marking of Plastic Explosives, with respect to the
United States.
``(o) It shall be unlawful for any person, other than an
agency of the United States (including any military reserve
component) or the National Guard of any State, possessing any
plastic explosive on the date of enactment of title VII of
the Comprehensive Terrorism Prevention Act of 1995, to fail
to report to the Secretary within 120 days after such
effective date the quantity of such explosives possessed, the
manufacturer or importer, any marks of identification on such
explosives, and such other information as the Secretary may
by regulations prescribe.''.

SEC. 704. CRIMINAL SANCTIONS.

Section 844(a) of title 18, United States Code, is amended
to read as follows:
``(a) Any person who violates any of subsections (a)
through (i) or (l) through (o) of section 842 shall be fined
under this title or imprisoned not more than 10 years, or
both.''.

SEC. 705. EXCEPTIONS.

Section 845 of title 18, United States Code, is amended--
(1) in subsection (a), by inserting ``(l), (m), (n), or (o)
of section 842 and subsections'' after ``subsections'';
(2) in paragraph (1), by inserting before the semicolon ``,
and which pertain to safety''; and
(3) by adding at the end the following new subsection:
``(c) It is an affirmative defense against any proceeding
involving subsections (l) through (o) of section 842 if the
proponent proves by a preponderance of the evidence that the
plastic explosive--
``(1) consisted of a small amount of plastic explosive
intended for and utilized solely in lawful--
``(A) research, development, or testing of new or modified
explosive materials;
``(B) training in explosives detection or development or
testing of explosives detection equipment; or
``(C) forensic science purposes; or
``(2) was plastic explosive that, within 3 years after the
date of enactment of the Comprehensive Terrorism Prevention
Act of 1995, will be or is incorporated in a military device
within the territory of the United States and remains an
integral part of such military device, or is intended to be,
or is incorporated in, and remains an integral part of a
military device that is intended to become, or has become,
the property of any agency of the United States performing
military or police functions (including any military reserve
component) or the National Guard of any State, wherever such
device is located.
``(3) For purposes of this subsection, the term `military
device' includes, but is not restricted to, shells, bombs,
projectiles, mines, missiles, rockets, shaped charges,
grenades, perforators, and similar devices lawfully
manufactured exclusively for military or police purposes.''.

SEC. 706. INVESTIGATIVE AUTHORITY.

Section 846 of title 18, United States Code, is amended--
(1) in the last sentence, by inserting in the last sentence
before ``subsection'' the phrase ``subsection (m) or (n) of
section 842 or;'', and
(2) by adding at the end the following: ``The Attorney
General shall exercise authority over violations of
subsection (m) or (n) of section 842 only when they are
committed by a member of a terrorist or revolutionary group.
In any matter involving a terrorist or revolutionary group or
individual, as determined by the Attorney General, the
Attorney General shall have primary investigative
responsibility and the Secretary shall assist the Attorney
General as requested.''.

SEC. 707. EFFECTIVE DATE.

Except as otherwise provided in this title, this title and
the amendments made by this title shall take effect 1 year
after the date of enactment of this Act.

SEC. 708. STUDY AND REQUIREMENTS FOR TAGGING OF EXPLOSIVE
MATERIALS, AND STUDY AND RECOMMENDATIONS FOR
RENDERING EXPLOSIVE COMPONENTS INERT AND
IMPOSING CONTROLS ON PRECURSORS OF EXPLOSIVES.

(a) The Secretary of the Treasury shall conduct a study and
make recommendations concerning--
(1) the tagging of explosive materials for purposes of
detection and identification;
(2) whether common chemicals used to manufacture explosive
materials can be rendered inert and whether it is feasible to
require it; and
(3) whether controls can be imposed on certain precursor
chemicals used to manufacture explosive materials and whether
it is feasible and cost-effective to require it.

In conducting the study, the Secretary shall consult with
other Federal, State and local officials with expertise in
this area and such other individuals as shall be deemed
necessary. Such study shall be completed within twelve months
after the enactment of this Act and shall be submitted to the
Congress and made available to the public. Such study may
include, if appropriate, recommendations for legislation.
(b) There are authorized to be appropriated for the study
and recommendations contained in paragraph (a) such sums as
may be necessary.
(c) Section 842, of title 18, United States Code, is
amended by inserting after subsection (k), a new subsection
(l) which reads as follows:
``(l)(1) It shall be unlawful for any person to
manufacture, import, ship, transport, receive, possess,
transfer, or distribute any explosive material that does not
contain a tracer element as prescribed by the Secretary
pursuant to regulation, knowing or having reasonable cause to
believe that the explosive material does not contain the
required tracer element.
``(2) For purposes of this subsection, explosive material
does not include smokeless or black powder manufactured for
uses set forth in section 845(a) (4) and (5) of this
chapter.''.
(d) Section 844, of title 18, United States Code, is
amended by inserting after ``(a) through (i)'' the phrase
``and (l)''.
(e) Section 846, of title 18, United States Code, is
amended by designating the present section as ``(a)'' and by
adding a new subsection (b) reading as follows:
``(b) to facilitate the enforcement of this chapter the
Secretary shall, within 6 months after submission of the
study required by subsection (a), promulgate regulations for
the addition of tracer elements to explosive materials
manufactured in or imported into the United States. Tracer
elements to be added to explosive materials under provisions
of this subsection shall be of such character and in such
quantity as the Secretary may authorize or require, and such
as will not substantially impair the quality of the explosive
materials for their intended lawful use, adversely affect the
safety of these explosives, or have a substantially adverse
effect on the environment.''.
(f) The penalties provided herein shall not take effect
until ninety days after the date of promulgation of the
regulations provided for herein.
TITLE VIII--NUCLEAR MATERIALS

SEC. 801. FINDINGS AND PURPOSE.

(a) Findings.--The Congress finds that--
(1) nuclear materials, including byproduct materials, can
be used to create radioactive dispersal devices that are
capable of causing serious bodily injury as well as
substantial damage to property and the environment;
(2) the potential use of nuclear materials, including
byproduct materials, enhances the threat posed by terrorist
activities and thereby has a greater effect on the security
interests of the United States;
(3) due to the widespread hazards presented by the threat
of nuclear contamination, as well as nuclear bombs, the
United States has a strong interest in ensuring that persons
who are engaged in the illegal acquisition and use of nuclear
materials, including byproduct materials, are prosecuted for
their offenses;
(4) the threat that nuclear materials will be obtained and
used by terrorist and other criminal organizations has
increased substantially since the enactment in 1982 of the
legislation that implemented the Convention on the Physical
Protection of Nuclear Material, codified at section 831 of
title 18, United States Code;
(5) the successful efforts to obtain agreements from other
countries to dismantle nuclear weapons have resulted in
increased packaging and transportation of nuclear materials,
thereby decreasing the security of such materials by
increasing the opportunity for unlawful diversion and theft;
(6) the illicit trafficking in the relatively more common,
commercially available and usable nuclear and byproduct
materials poses a potential to cause significant loss of life
and environmental damage;
(7) reported trafficking incidents in the early 1990's
suggest that the individuals involved in trafficking these
materials from Eurasia and Eastern Europe frequently
conducted their black market sales of these materials within
the Federal Republic of Germany, the Baltic States, the
former Soviet [[Page S7875]] Union, Central Europe, and to a
lesser extent in the Middle European countries;
(8) the international community has become increasingly
concerned over the illegal possession of nuclear and nuclear
byproduct materials;
(9) the potentially disastrous ramifications of increased
access to nuclear and nuclear byproduct materials pose such a
significant future threat that the United States must use all
lawful methods available to combat the illegal use of such
materials;
(10) the United States has an interest in encouraging
United States corporations to do business in the countries
that comprised the former Soviet Union, and in other
developing democracies;
(11) protection of such United States corporations from
threats created by the unlawful use of nuclear materials is
important to the success of the effort to encourage such
business ventures, and to further the foreign relations and
commerce of the United States;
(12) the nature of nuclear contamination is such that it
may affect the health, environment, and property of United
States nationals even if the acts that constitute the illegal
activity occur outside the territory of the United States,
and are primarily directed toward foreign nationals; and
(13) there is presently no Federal criminal statute that
provides adequate protection to United States interests from
nonweapons grade, yet hazardous radioactive material, and
from the illegal diversion of nuclear materials that are held
for other than peaceful purposes.
(b) Purpose.--The purpose of this title is to provide
Federal law enforcement agencies the necessary tools and
fullest possible basis allowed under the Constitution to
combat the threat of nuclear contamination and proliferation
that may result from illegal possession and use of
radioactive materials.

SEC. 802. EXPANSION OF SCOPE AND JURISDICTIONAL BASES OF
NUCLEAR MATERIALS PROHIBITIONS.

Section 831 of title 18, United States Code, is amended--
(1) in subsection (a)--
(A) by striking ``nuclear material'' each place it appears
and inserting ``nuclear material or nuclear byproduct
material'';
(B) in paragraph (1)--
(i) in subparagraph (A), by inserting ``or the
environment'' after ``property''; and
(ii) by amending subparagraph (B) to read as follows:
``(B)(i) circumstances exist that are likely to cause the
death or serious bodily injury to any person or substantial
damage to property or the environment, or such circumstances
have been represented to the defendant to exist;''; and
(C) in paragraph (6), by inserting ``or the environment''
after ``property'';
(2) in subsection (c)--
(A) by amending paragraph (2) to read as follows:
``(2) an offender or a victim is a national of the United
States or a United States corporation or other legal
entity;'';
(B) in paragraph (3)--
(i) by striking ``at the time of the offense the nuclear
material is in use, storage, or transport, for peaceful
purposes, and''; and
(ii) by striking ``or'' at the end of the paragraph;
(C) in paragraph (4)--
(i) by striking ``nuclear material for peaceful purposes''
and inserting ``nuclear material or nuclear byproduct
material''; and
(ii) by striking the period at the end of the paragraph and
inserting ``; or''; and
(D) by adding at the end the following new paragraph:
``(5) the governmental entity under subsection (a)(5) is
the United States or the threat under subsection (a)(6) is
directed at the United States.''; and
(3) in subsection (f)--
(A) in paragraph (1)--
(i) in subparagraph (A), by striking ``with an isotopic
concentration not in excess of 80 percent plutonium 238'';
and
(ii) in subparagraph (C), by striking ``(C) uranium'' and
inserting ``(C) enriched uranium, defined as uranium'';
(B) by redesignating paragraphs (2), (3), and (4) as
paragraphs (4), (5), and (6), respectively;
(C) by inserting after paragraph (1) the following new
paragraph:
``(2) the term `nuclear byproduct material' means any
material containing any radioactive isotope created through
an irradiation process in the operation of a nuclear reactor
or accelerator;'';
(D) by striking ``and'' at the end of paragraph (4), as
redesignated;
(E) by striking the period at the end of subsection (f)(5),
as redesignated, and inserting a semicolon; and
(F) by adding at the end the following new paragraphs:
``(6) the term `national of the United States' has the
meaning given such term in section 101(a)(22) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(22)); and
``(7) the term `United States corporation or other legal
entity' means any corporation or other entity organized under
the laws of the United States or any State, Commonwealth,
territory, possession, or district of the United States.''.
TITLE IX--MISCELLANEOUS PROVISIONS

SEC. 901. PROHIBITION ON DISTRIBUTION OF INFORMATION RELATING
TO EXPLOSIVE MATERIALS FOR A CRIMINAL PURPOSE.

(a) Section 842 of title 18, United States Code, is amended
by adding at the end the following new subsection:
``(l) It shall be unlawful for any person to teach or
demonstrate the making of explosive materials, or to
distribute by any means information pertaining to, in whole
or in part, the manufacture of explosive materials, if the
person intends or knows, that such explosive materials or
information will be used for, or in furtherance of, an
activity that constitutes a Federal criminal offense or a
criminal purpose affecting interstate commerce.''.
(b) Section 844 of title 18, United States Code, is amended
by designating subsection (a) as subsection (a)(1) and by
adding the following new subsection:
``(a)(2) Any person who violates subsection (l) of section
842 of this chapter shall be fined under this title or
imprisoned not more than twenty years, or both.''.

SEC. 902. DESIGNATION OF CARTNEY KOCH MCRAVEN CHILD
DEVELOPMENT CENTER.

(a) Designation.--
(1) In general.--The Federal building at 1314 LeMay
Boulevard, Ellsworth Air Force Base, South Dakota, shall be
known and designated as the ``Cartney Koch McRaven Child
Development Center''.
(2) Replacement building.--If, after the date of enactment
of this Act, a new Federal building is built at the location
described in paragraph (1) to replace the building described
in the paragraph, the new Federal building shall be known and
designated as the ``Cartney Koch McRaven Child Development
Center''.
(b) References.--Any reference in a law, map, regulation,
document, paper, or other record of the United States to a
Federal building referred to in subsection (a) shall be
deemed to be a reference to the ``Cartney Koch McRaven Child
Development Center''.

SEC. 903. FOREIGN AIR TRAVEL SAFETY.

Section 44906 of title 49, United States Code, is amended
to read as follows:

``Sec. 44906. Foreign air carrier security programs

``The Administrator of the Federal Aviation Administration
shall continue in effect the requirement of section 129.25 of
title 14, Code of Federal Regulations, that a foreign air
carrier must adopt and use a security program approved by the
Administrator. The Administrator shall only approve a
security program of a foreign air carrier under section
129.25, or any successor regulation, if the Administrator
decides the security program provides passengers of the
foreign air carrier a level of protection identical to the
level those passengers would receive under the security
programs of air carriers serving the same airport. The
Administrator shall prescribe regulations to carry out this
section.''.

SEC. 904. PROOF OF CITIZENSHIP.

Notwithstanding any other provision of law, a Federal,
State, or local government agency may not use a voter
registration card (or other related document) that evidences
registration for an election for Federal office, as evidence
to prove United States citizenship.

SEC. 905. COOPERATION OF FERTILIZER RESEARCH CENTERS.

In conducting any portion of the study relating to the
regulation and use of fertilizer as a pre-explosive material,
the Secretary of the Treasury shall consult with and receive
input from non-profit fertilizer research centers and include
their opinions and findings in the report required under
subsection (c).

SEC. 906. SPECIAL ASSESSMENTS ON CONVICTED PERSONS.

Section 3013(a)(2) of title 18, United States Code, is
amended--
(A) in subparagraph (A), by striking ``$50'' and inserting
``not less than $100''; and
(B) in subparagraph (B), by striking ``$200'' and inserting
``not less than $400''.

SEC. 907. 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.''.

SEC. 908. 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 [[Page S7876]] 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 or potential use of
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--
(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 the 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''.

SEC. 909. REVISION TO EXISTING AUTHORITY FOR MULTIPOINT
WIRETAPS.

(a) Section 2518(11)(b)(ii) of title 18 is amended: by
deleting ``of a purpose, on the part of that person, to
thwart interception by changing facilities.'' and inserting
``that the person had the intent to thwart interception or
that the person's actions and conduct would have the effect
of thwarting interception from a specified facility.''.
(b) Section 2518(11)(b)(iii) is amended to read:
``(iii) the judge finds that such showing has been
adequately made.''.
[[Page S7877]]

SEC. 910. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE
UNITED STATES PARK POLICE.

SEC. 911. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE
ADMINISTRATIVE OFFICE OF THE UNITED STATES
COURTS.

SEC. 912. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE
UNITED STATES CUSTOMS SERVICE.

SEC. 913. SEVERABILITY.

If any provision of this Act, an amendment made by this
Act, or the application of such provision or amendment to any
person or circumstance is held to be unconstitutional, the
remainder of this Act, the amendments made by this Act, and
the application of the provisions of such to any person or
circumstance shall not be affected thereby.
TITLE X--VICTIMS OF TERRORISM ACT

SEC. 1001. TITLE.

This title may be cited as the ``Victims of Terrorism Act
of 1995''.

SEC. 1002. AUTHORITY TO PROVIDE ASSISTANCE AND COMPENSATION
TO VICTIMS OF TERRORISM.

The Victims of Crime Act of 1984 (42 U.S.C. 10601 et seq.)
is amended by inserting after section 1404A the following new
section:

``SEC. 1404B. COMPENSATION AND ASSISTANCE TO VICTIMS OF
TERRORISM OR MASS VIOLENCE.

``(a) Victims of Acts of Terrorism Outside the United
States.--The Director may make supplemental grants to States
to provide compensation and assistance to the residents of
such States who, while outside the territorial boundaries of
the United States, are victims of a terrorist act or mass
violence and are not persons eligible for compensation under
title VIII of the Omnibus Diplomatic Security and
Antiterrorism Act of 1986.
``(b) Victims of Domestic Terrorism.--The Director may make
supplemental grants to States for eligible crime victim
compensation and assistance programs to provide emergency
relief, including crisis response efforts, assistance,
training, and technical assistance, for the benefit of
victims of terrorist acts or mass violence occurring within
the United States and may provide funding to United States
Attorney's Offices for use in coordination with State victims
compensation and assistance efforts in providing emergency
relief.''.

SEC. 1003. FUNDING OF COMPENSATION AND ASSISTANCE TO VICTIMS
OF TERRORISM, MASS VIOLENCE, AND CRIME.

Section 1402(d)(4) of the Victims of Crime Act of 1984 (42
U.S.C. 10601(d)(4)) is amended to read as follows:
``(4)(A) If the sums available in the Fund are sufficient
to fully provide grants to the States pursuant to section
1403(a)(1), the Director may retain any portion of the Fund
that was deposited during a fiscal year that was in excess of
110 percent of the total amount deposited in the Fund during
the preceding fiscal year as an emergency reserve. Such
reserve shall not exceed $50,000,000.
``(B) The emergency reserve may be used for supplemental
grants under section 1404B and to supplement the funds
available to provide grants to States for compensation and
assistance in accordance with sections 1403 and 1404 in years
in which supplemental grants are needed.''.

SEC. 1004. CRIME VICTIMS FUND AMENDMENTS.

(a) Unobligated Funds.--Section 1402 of the Victims of
Crime Act of 1984 (42 U.S.C. 10601) is amended--
(1) in subsection (c), by striking ``subsection'' and
inserting ``chapter''; and
(2) by amending subsection (e) to read as follows:
``(e) Amounts Awarded and Unspent.--Any amount awarded as
part of a grant under this chapter that remains unspent at
the end of a fiscal year in which the grant is made may be
expended for the purpose for which the grant is made at any
time during the 2 succeeding fiscal years, at the end of
which period, any remaining unobligated sums shall be
returned to the Fund.''.
(b) Base Amount.--Section 1404(a)(5) of such Act (42 U.S.C.
10603(a)(5)) is amended to read as follows:
``(5) As used in this subsection, the term `base amount'
means--
``(A) except as provided in subparagraph (B), $500,000; and
``(B) for the territories of the Northern Mariana Islands,
Guam, American Samoa, and Palau, $200,000.''.

Mr. HATCH. Madam President, I would like to thank Bob Dole for his
strong leadership. It was an honor to work with him. Arlen Specter for
his legal acumen, Joe Biden for his statesmanship and Don Nickles and
James Inhofe for their able input. All of these Senators were vital to
the passage of this bill.
I would also like to commend the following staffers for their long,
hard work:
Democrats: Cynthia Hogan, Ankor Gouel, Chris Putals, Demetra Lambros,
Mimi Murphy, Tracy Doherty, and Mike O'Leary.
Republicans: Mike O'Neill and Mike Kennedy. These two men worked,
literally, around the clock. Also, Ashley Disque, John Gibbons, Dennis
Shea, Richard Hertling, Lee Otis, Eric Mayfield, and Manus Cooney.
All of these people helped make this bill possible. The President
called on Congress for swift action, and we delivered.
Mr. DOLE. Madam President, immediately after the Oklahoma City
tragedy, President Clinton was right on target when he said that the
perpetrators of this vicious crime should face justice that was
``swift, certain, and severe.''
I am pleased to report to the American people and to the President
that, with today's passage of the antiterrorism bill, we are one giant
step closer to achieving this important goal.
The most critical element of this bill, and the one that bears most
directly on the tragic events in Oklahoma City, is the provision
reforming the so-called habeas corpus rules.
By imposing filing deadlines on all death row inmates, and by
limiting condemned killers convicted in State or Federal court to one
Federal habeas petition--one bite of the apple--these landmark reforms
will go a long, long way to streamline the lengthy appeals process and
bridge the gap between crime and punishment in America.
It is dead wrong that we must wait 8, or 9, or even 10 years before a
capital sentence is actually carried out. And, of course, it is
terribly unjust to the innocent victims of violent crime and their
families.
As I said yesterday, if the Federal Government prosecutes the
Oklahoma City case and the death penalty is sought and imposed, the
execution of the sentence could take as a little as 1 year once these
reforms are enacted into law.
I want to thank President Clinton for his efforts this past week in
discrouraging Democratic amendments. No doubt about it, the President's
involvement has helped speed up the process here in the Senate. I
particularly commend the President for finally coming around to the
view that habeas reform is an essential ingredient of any serious anti-
terrorism plan.
I want to thank the two managers, Senator Hatch and Senator Biden,
for their persistence in guiding this legislation through the Senate.
On this side of aisle, Senator Hatch has provided the intellectual glue
that has kept this effort together. And, of course, I want to thank my
two colleagues from Oklahoma, Senator Nickles and Senator Inhofee,
whose help in this process has also been invaluable.
Finally, I commend the good people of Oklahoma City, who self-
sacrifice and resiliency during this very difficult time has been an
inspiration for us all. The families of some of the bombing victims
travelled all the way to Washington this past Monday to let us know
that we must take action now to put an end to the endless delays and
appeals that have done so much to weaken public confidence in our
system of criminal justice. It is gratifying to see that their efforts
have had such a profound impact here in the Senate.
Mr. HATFIELD. Madam President, it has been a difficult process, but
we have now reached the conclusion of this worthy debate. I want to
commend Majority Leader Dole and Minority Leader Daschle and the
managers of this legislation, Chairman Hatch and [[Page S7878]] Senator
Biden, the ranking member of the Judiciary Committee, for their skill
and resolve in moving this important and complex measure through the
Senate.
It is proper for the Senate, at the request of the President, to
undertake this legislative action to put in place safeguards to ensure,
to the extent we can, that terrorism does not occur in the future. It
is my hope that this legislation will provide one more avenue toward
the national healing that is needed in the aftermath of one of the most
senseless and disturbing acts in the history of man.
I have joined with all my colleagues to condemn this act in the
harshest terms. However, despite my abhorrence of this horrible crime,
I am unable to support this legislation. As many of my colleagues are
aware, I am a long-time opponent of capital punishment. This
legislation, under section 2332b, on page 7 of the bill, provides for
the imposition of the death penalty in the following manner:

(1) Whoever violates this section shall, in addition to the
punishment provided for any other crime charged in the
indictment, be punished--
(A) if death results to any person, by death, or by life
imprisonment for any term of years or for life;

Madam President, I could support this provision if the clause ``by
death'' were excluded. Because it has not been deleted, and because the
death penalty is so repugnant me, I am unable to support this
legislation which has many meritorious provisions.
I would like my colleagues to take note of a recent event in the
country of South Africa. I am informed that the highest court in South
Africa has struck down the death penalty in that country on the basis
that it constitutes cruel and inhumane punishment. In his opinion,
Chief Justice Arthur Chaskalson said, ``Retribution cannot be accorded
the same weight under our constitution as the right to life and
dignity.'' He went on to make a point made by death penalty opponents
on this floor many times: ``It has not been shown that the death
sentence would be materially more effective to deter or prevent murder
than the alternative sentence of life imprisonment.''
I believe it is time for this country to follow the lead of the South
Africans. I have long held that capital punishment is a barbaric
penalty, certainly one that should be abhorrent to a society such as
our own.
I have marveled at the strides the South Africans have made over the
past decade. It was not too many years ago that the United States put
great pressure on the Government of South Africa to improve their
horrible human rights record. While this new decision is being met with
the expected cries of opposition, it now appears to me that the South
Africans are setting an example for us on human rights.
I merely make note of this enlightenment in South Africa as this body
continues down the road of support for capital punishment. It is my
hope that some day my colleagues will realize this is a failed,
primitive and sickening policy. I regret that, on that basis, I am
unable to support S. 735.

the comprehensive terrorism prevention act
Mr. MOYNIHAN. Madam President, I am deeply concerned that the Senate
has chosen in this legislation to radically alter the ancient writ of
habeas corpus an subjiciendum. Four separate Democratic amendments that
would have moderated the bill's extreme habeas corpus provisions were
rejected today.
It is troubling that the Senate has undertaken to revise the Great
Writ of Liberty in a bill designed as a response to the Oklahoma City
bombing. Habeas corpus reform has very little to do with terrorism. The
Oklahoma City bombing was a Federal crime and will be tried in Federal
courts. The controversy over habeas corpus is a result of excess
litigation by State court prisoners who believe they were wrongly
convicted in State courts. According to the Emergency Committee to Save
Habeas Corpus, a group of 100 of the Nation's most distinguished
attorneys, scholars, and civic leaders, ``Cutting back the enforcement
of constitutional liberties for people unlawfully held in State custody
is neither necessary to habeas reform nor relevant to terrorism.''
Article I, section 9 of the U.S. Constitution provides that:

The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.

The Habeas Corpus Act of 1867 permitted State prisoners convicted in
State courts to challenge the constitutionality of their imprisonment
in Federal district court. This is a right we have honored in the
United States for well over a century.
The legislation before us will require our Federal courts to defer to
State court judgments unless a State court's application of Federal law
is unreasonable. Our Federal courts will be powerless to correct State
court decisions--even if a State court decision is wrong. The bill
requires deference by the Federal courts unless a State court's
decision is unreasonably wrong. This is a standard that will
effectively preclude Federal review.
This Senator understands the need for habeas corpus reform, and I
would support legislation to impose reasonable limitations on appeals.
But this bill goes far too far. It will in many cases transform the
State courts--not the Federal courts established under article III of
the U.S. Constitution--into the arbiters of Federal constitutionality.
This legislation will eviscerate the writ of habeas corpus, and that
is something this Senator in good conscience must oppose. Mr.
President, I ask unanimous consent that a letter from the Emergency
Committee to Save Habeas Corpus, and the list of its members, be
printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

Emergency Committee

To Save Habeas Corpus,

Washington, DC, June 1, 1995.
Hon. Daniel Patrick Moynihan,
Russell Senate Office Building,
Washington, DC.
Dear Senator Moynihan: We understand that the Senate may
act next week on the habeas corpus provisions in Senator
Dole's terrorism legislation. Among these provisions is a
requirement that federal courts must defer to state courts
incorrectly applying federal constitutional law, unless it
can be said that the state ruling was ``unreasonably''
incorrect. This is a variation of past proposals to strip the
federal courts of the power to enforce the Constitution when
the state court's interpretation of it, though clearly wrong,
had been issued after a ``full and fair'' hearing.
The Emergency Committee was formed in 1991 to fight this
extreme proposal. Our membership consists of both supporters
and opponents of the death penalty, Republicans and
Democrats, united in the belief that the federal habeas
corpus process can be dramatically streamlined without
jeopardizing its constitutional core. At a time when
proposals to curtail civil liberties in the name of national
security are being widely viewed with suspicion, we believe
it is vital to ensure that habeas corpus--the means by which
all civil liberties are enforced--is not substantively
diminished.
The habeas corpus reform bill President Clinton proposed in
1993, drafted in close cooperation with the nation's district
attorneys and state attorneys general, appropriately
recognizes this point. It would codify the long-standing
principal of independent federal review of constitutional
questions, and specifically reject the ``full and fair''
deference standard.
Independent federal review of state court judgments has
existed since the founding of the Republic, whether through
writ of error or writ of habeas corpus. It has a proud
history of guarding against injustices born of racial
prejudice and intolerance, of saving the innocent from
imprisonment or execution, and in the process, ensuring the
rights of all law-abiding citizens. Independent federal
review was endorsed by the committee chaired by Justice
Powell on which all subsequent reform proposals have been
based, and the Supreme Court itself specifically considered
but declined to require deference to the states, in Wright v.
West in 1992.
We must emphasize that this issue of deference to state
rulings has absolutely no bearing on the swift processing of
terrorism offenses in the federal system. For federal
inmates, the pending habeas reform legislation proposes
dramatic procedural reforms but appropriately avoids any
curtailment of the federal courts' power to decide federal
constitutional issues. This same framework of reform will
produce equally dramatic results in state cases. Cutting back
the enforcement of constitutional liberties for people
unlawfully held in state custody is neither necessary to
habeas reform nor relevant to terrorism.
We are confident that the worthwhile goal of streamlining
the review of criminal cases can be accomplished without
diminishing constitutional liberties. Please support the
continuation of independent federal review of federal
constitutional claims through habeas corpus.
Sincerely,
Benjamin Civiletti. [[Page S7879]]
Edward H. Levi.
Nicholas DeB. Katzenbach.
Elliot L. Richardson.
____

Statements on Proposals Requiring Federal Courts in Habeas Corpus Cases
to Defer to State Courts on Federal Constitutional Questions

Capital cases should be subject to one fair and complete
course of collateral review through the state and federal
system * * * . Where the death penalty is involved, fairness
means a searching and impartial review of the propriety of
the sentence--Justice Lewis F. Powell, Jr., presenting the
1989 report of the Ad Hoc Committee on Federal Habeas Corpus
in Capital Cases, chaired by him and appointed by Chief
Justice William Rehnquist.
The federal courts should continue to review de novo mixed
and pure questions of federal law. Congress should codify
this review standard * * *. Senator Dole's bill [containing
the ``full and fair'' deference requirement' would rather
straightforwardly eliminate federal habeas jurisdiction over
most constitutional claims by state inmates--150 former state
and federal prosecutors, in a December 7, 1993 letter to
Judiciary Committee Chairman Biden and Brooks.
Racial distinctions are evident in every aspect of the
process that leads to execution * * *. [W]e feverently and
respectfully urge a steadfast review by federal judiciary in
state death penalties as absolutely essential to ensure
justice--Rev. Dr. Joseph E. Lowery, President, Southern
Christian Leadership Conference, U.S. House Judiciary
Committee hearing on capital habeas corpus reform, June 6,
1990.
The State court cannot have the last say when it, though on
fair consideration and what procedurally may be deemed
fairness, may have misconceived a federal constitutional
right--Justice Felix Frankfurter, for the Court, in Brown v.
Allen, 344 U.S. 443, 508(1953)
[There is no case in which] a state court's incorrect legal
determination has ever been allowed to stand because it was
reasonable. We have always held that federal courts, even on
habeas, have an independent obligation to say what the law
is--Justice Sandra Day O'Connor, concurring in Wright v.
West, 112 S.Ct. 2482(1992), citing 29 Supreme Court cases and
``many others'' to reject the urging of Justices Thomas,
Scalia and Rhenquist to adopt a standard of deference to
state courts on federal constitutional matters.
____

Emergency Committee To Save Habeas Corpus

chairs

Benjamin Civiletti, Former Attorney General of the United
States.
Nicholas DeB. Katzenbach, Former Attorney General of the
United States.
Edward H. Levi, Former Attorney General of the United
States.
Elliot L. Richardson, Former Attorney General of the United
States.

members

Floyd Abrams, Attorney.
Robert Abrams, Former Attorney General, New York.
Philip S. Anderson, Attorney.
Dennis W. Archer, Mayor of Detroit; Former Justice,
Michigan Supreme Court.
Birch Bayh, Former U.S. Senator, Indiana.
Francis X. Bellotti, Former Attorney General,
Massachusetts.
Lindy Boggs, Former Member of Congress, Louisiana.
Hyman Bookbinder, Washington Representative Emeritus,
American Jewish Committee.
Albert Brewer, Former Governor of Alabama.
Allen E. Broussard, Former Justice, California Supreme
Court.
John Buchanan, Former Member of Congress, Alabama.
Haywood Burns, Dean, City University of New York Law
School.
Guido Calabresi, Dean, Yale Law School.
Julius Chambers, Director-Counsel, NAACP Legal Defense and
Educational Fund.
L. Stanley Chauvin, Jr., Former President, American Bar
Association.
Dick Clark, Former United States Senator, Iowa.
W.J. Michael Cody, Former Attorney General, Tennessee.
William T. Coleman, Jr., Former U.S. Secretary of
Transportation.
Joseph Curran, Attorney General, Maryland.
John J. Curtin, Jr., Former President, American Bar
Association.
Lloyd N. Cutler, Former Counsel to the President.
Talbot D'Alemberte, Former President, American Bar
Association.
Samuel Dash, Professor, Georgetown Law School; Former Chief
Counsel, Senate Watergate Committee; Former District Attorney
of Philadelphia.
John A. Dixon, Jr., Former Chief Justice, Louisiana Supreme
Court.
John Douglas, Former Assistant Attorney General of the
United States.
Father Robert Drinan, Former Member of Congress,
Massachusetts.
Thomas Eagleton, Former U.S. Senator, Missouri.
Raymond Ehrlich, Former Chief Justice, Florida Supreme
Court.
Arthur J. England, Jr., Former Justice, Florida Supreme
Court.
Marvin Frankel, Former U.S. District Judge, New York.
John Hope Franklin, Historian.
Donald Fraser, Mayor of Minneapolis; Former Member of
Congress, Minnesota.
Stanley H. Fuld, Former Chief Judge, New York Court of
Appeals.
Susan Getzendanner, Former U.S. District Judge, Illinois.
Joseph I. Giarrusso, Former Superintendent, New Orleans
Police Department.
John J. Gibbons, Former Chief Judge, United States Court of
Appeals for the Third Circuit.
William A. Grimes, Former Justice, New Hampshire Supreme
Court.
Joseph R. Grodin, Former Justice, California Supreme Court.
Gerald Gunther, Professor, Stanford Law School.
William J. Guste, Former Attorney General, Louisiana.
Reverend Theodore Hesburgh, C.S.C., President Emeritus,
University of Notre Dame.
L. Eades Hogue, Former Trial Attorney, Criminal Division,
U.S. Department of Justice.
Elizabeth Holtzman, New York City Comptroller; Former
Member of Congress, New York.
Shirley Hufstedler, Former Judge, United States Court of
Appeals for the Ninth Circuit, Former U.S. Secretary of
Education.
Richard J. Hughes, Former Governor and Supreme Court Chief
Justice, New Jersey (deceased).
Charles J. Hynes, District Attorney for Kings County
(Brooklyn), New York.
Thomas Johnson, Former County Attorney, Hennepin County,
Minnesota.
Barbara Jordan, former Member of Congress, Texas.
Robert W. Kastenmeier, former Member of Congress,
Wisconsin.
William W. Kilgarlin, former Justice, Supreme Court of
Texas.
Coretta Scott King, President, Martin Luther King Center.
Lane Kirkland, President, AFL-CIO.
Richard H. Kuh, former Manhattan District Attorney.
Phillip Kurland, Professor, University of Chicago Law
School.
Phillip Lacovara, former Deputy Solicitor General of the
United States.
Shelby Lanier, Jr., Chairman, National Black Police
Association.
William Leech, former Attorney General, Tennessee.
George N. Leighton, former U.S. District Judge, Illinois.
Arthur Liman, former Chief Counsel, U.S. Senate Iran/Contra
Committee.
Hans Linde, former Justice, Oregon Supreme Court.
Robert MacCrate, former President, American Bar
Association.
Charles McC. Mathias, former U.S. Senator, Maryland.
Darrell McGraw, Attorney General, West Virginia.
Robert S. McNamara, former U.S. Secretary of Defense;
former President, World Bank.
Jim Mattox, former Attorney General and Member of Congress,
Texas.
Harry McPherson, former Counsel to the President.
Walter F. Mondale, former U.S. Vice President; former U.S.
Senator and Attorney General, Minnesota.
James Neal, former Chief Watergate Special Prosecutor;
former United States Attorney.
William G. Paul, General Counsel, Phillips Petroleum
Company.
John H. Pickering, Attorney.
Jack Pope, former Chief Justice, Texas Supreme Court.
Edward E. Pringle, former Chief Justice, Colorado Supreme
Court.
Thomas Railsback, former Member of Congress, Illinois.
Joseph Rauh, Attorney (deceased).
Robert Raven, former President, American Bar Association.
Cruz Reynoso, former Justice, California Supreme Court.
Leroy C. Richie, Vice President, General Counsel, Chrysler
Corporation.
Peter W. Rodino, Jr., former Chairman, U.S. House Judiciary
Committee.
Stephen Sachs, former Attorney General and former United
States Attorney, Maryland.
Carl Sagan, Astronomer.
Whitney North Seymour, Jr., former United States Attorney,
New York.
James Shannon, former Attorney General, Massachusetts.
Robert L. Shevin, former Attorney General, Florida.
Seymour Simon, former Justice, Illinois Supreme Court.
Chesterfield Smith, former President, American Bar
Association.
Nicholas Spaeth, former Attorney General, North Dakota.
Robert Spire, former Attorney General, Nebraska (deceased).
Geoffrey Stone, Dean, University of Chicago Law School.
Alan Sundberg, former Chief Justice, Florida Supreme Court.
Leonard v.B. Sutton, former Chief Justice, Colorado Supreme
Court.
Telford Taylor, Professor, Columbia Law School; former
Prosecutor, Nuremburg War Crimes Tribunal.
James Tierney, former Attorney General, Maine.
Joseph D. Tydings, former U.S. Senator and United States
Attorney, Maryland. [[Page S7880]]
Harold R. Tyler, Jr., former U.S. District Judge, New York;
former Deputy Attorney General of the United States.
Cyrus Vance, former U.S. Secretry of State.
James Vollers, former Judge, Texas Court of Criminal
Appeals.
Andrew Young, former Ambassador to the United Nations,
former Mayor, Atlanta, Georgia.

executive director

H. Scott Wallace, 1625 K Street, N.W., Suite 800,
Washington, D.C. 20006.

Mr. GRASSLEY addressed the Chair.
The PRESIDING OFFICER. The Senator from Iowa is recognized.
Mr. GRASSLEY. I ask unanimous consent to speak as in morning business
briefly for the purpose of introducing a bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Grassley pertaining to the introduction of S.
888 are located in today's Record under ``Statements on Introduced
Bills and Joint Resolutions.'')

____________________}