[Congressional Record Volume 141, Number 125 (Monday, July 31, 1995)]
[Senate]
[Pages S10966-S10971]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. BIDEN:
  S. 1094. A bill to amend the Federal Rules of Evidence relating to 
character evidence in sexual misconduct cases, and for other purposes; 
to the Committee on the Judiciary.


                      rule of evidence legislation

  Mr. BIDEN. Mr. President, I am introducing a bill today that I do not 
much like. It involves the so-called Dole-Molinari rules of evidence 
which the Congress included last year in the 1994 crime law. This 
provision made a radical change in the Federal Rules of Evidence. It 
took the unprecedented--and in my mind absolutely unwise and 
unwarranted--step of allowing unproven allegations of prior 
crimes to be used against a defendant at trial.
  These new rules--which apply in sexual assault and child molestation 
cases--were added to the crime law over my strenuous objections. My 
objections were twofold, one substantive and one procedural. I will 
detail what I believe are the serious substantive problems with the new 
rules in a moment. First, I must point out that the way these rules 
were adopted by the Congress contravenes--indeed flaunts--the 
procedures we have used, with certain modifications, since 1948 for 
making alterations in the Federal rules.
  I am talking about the Rules Enabling Act. That act allows for a 
thoughtful, inclusive process for considering any changes to the 
Federal Rules of Evidence--rules which have been on the books for many, 
many years and which have been relied upon by judges and litigants in 
countless cases. The Enabling Act process gives the Judicial Conference 
of the United States, the organization of America's Federal judges, 
and, ultimately, the Supreme Court a first cut at any proposed changes. 
The conference, through its various committees, solicits the views of 
judges, lawyers, and academics who have studied the rules, worked with 
the rules, and identified any problems with them. The process ensures 
that the public is given the chance to comment about proposed changes, 
and guarantees that these comments be considered by the rule-makers. 

[[Page S 10967]]

  It is at that point--after the careful, detailed and encompassing 
review and drafting efforts of the conference--that the U.S. Supreme 
Court makes recommendations to the Congress for our acceptance or 
modification. This mechanism is designed to head off unwarranted 
changes and avoid unintended consequences. And it ensures that 
decisions about changes in the rules are made in a deliberative, cool-
headed way, rather than in the heat of a political moment. Passing as 
we did the Dole-Molinari rules last year--in a whirlwind rush to bring 
crime bill negotiations to a close--we thumbed our noses at this most 
important and worthy process.
  I did succeed in structuring the rule change in the crime law to 
ensure that we would have the benefit of the Judiciary's view, albeit 
after the fact. The provision was drafted to delay the implementation 
of the rules to allow the Judicial Conference to weigh in on the issue. 
This is how it works: The Dole-Molinari rules will go into effect 
unless we in the Congress repeal them outright or adopt the Judicial 
Conference recommendations.
  I, for one, would prefer a complete repeal. And, I may point out, the 
Judicial Conference agrees with me. The Judicial Conference itself 
unanimously voted to oppose the new rules. They have called on us to 
reconsider our actions and change our minds. They, too, favor a repeal. 
But they are also pragmatic. So they have sent over a proposal--a most 
modest of proposals, in my view--to make the rules clearer, cleaner, 
and a little bit fairer. I am pragmatic as well, and I know that I 
stand no chance of having the rules repealed, so I am introducing the 
Judicial Conference recommendations today.
  But before we discuss these modest recommendations, I would like to 
take a minute to talk about the Dole-Molinari rules, and why I believe 
they are such a bad idea. Here is the way these rules will work. A 
defendant is on trial for sexual assault. He claims he did not do it. 
He says that the complaining witness has fingered the wrong man. Under 
the Dole-Molinari rules, the prosecutor in this case will be able to go 
out and rummage around for any witness who will testify that, some long 
and blurry time ago, the defendant was sexually aggressive toward her.
  It will not matter that this alleged prior event happened some 20 
years ago. It won't matter that the woman never reported the incident 
to the police. It will not matter that the defendant was never charged 
or convicted of the crime. It won't matter that the evidence is highly 
unreliable.
  No, none of that will matter. The only thing that will matter to the 
jury, when it hears this sort of evidence, is that this guy is bad 
news. And the jury will be able to make the following leap of logic: 
``Well, since he did it once, he probably did it again.'' Jurors will 
also be able to say to themselves something like this: ``I'm not so 
sure he committed this particular crime that he's now charged with. But 
he's a bad guy--he hurt that other women, so it's OK for me to convict 
him today--he has it coming.''
  But wait a minute. It is a cardinal tenet of Anglo-Saxon criminal 
jurisprudence that the prosecution must prove that the accused 
committed the specific crime for which he now stands accused--not some 
other bad act and not merely that he
 is a lousy or wicked person. Or put another way: an accused must be 
tried for what he did--not for who he is.

  Over 100 years ago, the Supreme Court in the case of Boyd versus 
United States, underscored the importance of the rule against character 
or propensity evidence. In that robbery case, the court said that 
evidence of earlier robberies--

       Only tended to prejudice the defendants with the jurors--to 
     draw their minds away from the real issue, and to produce the 
     impression that they were wretches whose lives were of no 
     value to the community.

  Let us be honest about this. The whole point of these new rules is to 
increase the number of convictions in sexual assault and child abuse 
cases. And I believe, without a doubt, that they will do just that. But 
at the risk of stating what should be obvious: More convictions are not 
necessarily a good thing. What we want is more convictions of the 
guilty. If any of those who are convicted under the new rules are 
actually innocent--and I believe that this is precisely the danger at 
hand--there is cause only for horror, not celebration.
  As Professor Wigmore--one of the preeminent evidence gurus of all 
time--has said about this sort of evidence: It is the natural tendency 
of the jury to give the evidence excessive weight--and either to allow 
it to bear too strongly on the present charge, or to see it as 
justifying a condemnation, irrespective of the accused's guilt of the 
present charge. This type of evidence has less to do--in my view--with 
the search for the truth, than with a blind desire for vengeance.
  Now remember, I'm the guy who authored the Violence Against Women 
Act. It has been my crusade for the past 4 years to have violence 
against women taken seriously. I have increased the penalties for rape. 
I have talked to anyone who will listen about the epidemic of violence 
against women, and about our obligation--our urgent obligation--to put 
a stop to it now. I devoted an entire Judiciary Committee report to how 
the criminal justice system is not aggressive enough in its pursuit of 
rapists and other criminals who make women their targets. I, too, want 
to see more rapists and child abusers put behind bars. But not at the 
price of fairness. And not at the expense of what we know in our hearts 
to be right and just.
  And let me clear up one more matter. Evidence of prior uncharged 
crimes is admitted into evidence frequently. But it is admitted for a 
legitimate purpose--to help prove, for instance, a pattern of conduct, 
preparation, identity, plan, intent, or purpose. What we're talking 
about here is admitting evidence for what in my view--and which for 
hundreds of years has been considered--a patently illegitimate purpose.
  But that's where we are. And the bill I'm introducing today--the 
Judicial Conference recommendations--doesn't change that. Like the 
Dole-Molinari rules, the Judicial Conference proposal makes a dramatic 
aboutface from current practice--and allows for the introduction of 
propensity or character evidence in sexual assault and child 
molestation cases.
  But the Judicial Conference did make a few very modest changes--which 
the conference itself describes only as correcting ambiguities and 
possible constitutional infirmities while still giving effect to 
Congress' intent. Indeed, this proposal is so modest--and is so in 
keeping with the intent of the original rules' sponsors--that I will be 
very interested to hear what possible substantive objections anyone 
could have about them.
  Here are the changes proposed by the Judicial Conference:
  The proposal makes it clear that the rules are subject to the other 
Rules of Evidence. This is totally unremarkable. As everyone knows, all 
evidence introduced under a particular rule is subject to the other 
rules--like the rule against hearsay, and the rules allowing judges to 
balance the prejudicial impact of evidence against its probative value.
  What is remarkable is that the Dole-Molinari rules were drafted in 
such a way as to seem mandatory--they could be read to require a judge 
to admit the evidence, regardless of whether its prejudice outweighs 
its probative value, and regardless of whether any other rule would be 
violated.
  That would be wholly unprecedented. The rewrite simply makes it clear 
that these new rules will work just like all the others. And let me 
add: The sponsors of the new rules have consistently maintained that 
the rules are not meant to be mandatory rules of admission, and that 
the general standards of the Rules of Evidence will apply. This 
proposal by the Judicial Conference simply makes clear what the 
sponsors of the rules have forthrightly said is their intention.
  The proposal itemizes the different factors that a judge should weigh 
in deciding whether to admit the evidence. Again, this is an 
unremarkable idea. It merely gives judges, who are having to completely 
change how they look at this evidence, some guidance.
  It tells them: When you're deciding what to do about this evidence, 
here are some signposts to consider--like when the uncharged act took 
place; its similarity to the charged misconduct; the surrounding 
circumstances; and any relevant intervening events. 

[[Page S 10968]]
Again, there is nothing in this idea--simply
 to give judges some guidance--which would rub against the grain of the 
sponsors' intentions.

  The Judicial Conference proposal would also allow the defendant to 
use similar evidence in rebuttal. The Dole-Molinari rules, as currently 
drafted, are unbalanced: under the rules, a defendant can't, in 
rebuttal, use prior specific instances of conduct to prove that he did 
not have a propensity to commit the charged crime.
  Say, for example, a child testifies under the new rule that his 
father, the defendant, sexually assaulted him 5 years ago. The father 
can't put his other kids on the stand to say that he had not assaulted 
them--to help show that he does not have a propensity to assault 
children. The Judicial Conference proposal simply gives the defendant 
the same evidentiary rights as the prosecution.
  The Judicial Conference proposal also makes a number of small minor 
changes. It consolidates the new rules into one--this is simply a 
clearer, cleaner drafting approach. The proposal also streamlines the 
definitions--without making any substantive changes--and makes the 
notice provisions a bit more flexible, and more in keeping with other 
notice and discovery provisions elsewhere in the rules.
  As is by now clear, this is a very unassuming proposal. It allows for 
the introduction of propensity evidence. It doesn't require that the 
prior bad act have resulted in a conviction, or even that it have been 
the subject of a complaint or charge. It doesn't even require that the 
evidence of the prior uncharged act be particularly reliable.
  In fact, had this rule been proposed last year, I would have opposed 
it. I would have opposed it because I believe that propensity or 
character evidence should not be admitted into trial. Period. But I can 
count. And I know that I'm nearly alone on this one. That is why I am 
introducing this bill--the Judicial Conference recommendations--which 
only make a handful of modest, but important changes to make the bill 
clearer and a little bit fairer. I urge my colleagues to support this 
measure.
  Mr. President, I ask unanimous consent that a copy of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1094

       Be it enacted by the Senate and House of 
     Representatives of the United States of America in 
     Congress assembled,

     SECTION 1. CHARACTER EVIDENCE IN SEXUAL MISCONDUCT CASES.

       (a) In General.--(1) Rule 404(a) of the Federal Rules of 
     Evidence is amended by adding at the end thereof the 
     following:
       ``(4) Character in sexual misconduct cases.--(A) Evidence 
     of another act of sexual assault or child molestation, or 
     evidence to rebut such proof or an inference therefrom, if 
     that evidence is otherwise admissible under these rules, in a 
     criminal case in which the accused is charged with sexual 
     assault or child molestation, or in a civil case in which a 
     claim is predicated on a party's alleged commission of sexual 
     assault or child molestation.
       ``(B) In weighing the probative value of such evidence, the 
     court may, as part of its rule 403 determination, consider--
       ``(i) proximity in time to the charged or predicate 
     misconduct;
       ``(ii) similarity to the charged or predicate misconduct;
       ``(iii) frequency of the other acts;
       ``(iv) surrounding circumstances;
       ``(v) relevant intervening events; and
       ``(vi) other relevant similarities or differences.
       ``(C) In a criminal case in which the prosecution intends 
     to offer evidence under this subdivision, it must disclose 
     the evidence, including statements of witnesses or a summary 
     of the substance of any testimony, at a reasonable time in 
     advance of trial, or during trial if the court excuses 
     pretrial notice on good cause shown.
       ``(D) For purposes of this subdivision--
       ``(i) `sexual assault' means conduct, or an attempt or 
     conspiracy to engage in conduct, of the type proscribed by 
     chapter 109A of title 18, United States Code, or conduct that 
     involved deriving sexual pleasure or gratification from 
     inflicting death, bodily injury, or physical pain on another 
     person irrespective of the age of the victim, regardless of 
     whether that conduct would have subjected the actor to 
     Federal jurisdiction; and
       ``(ii) `child molestation' means conduct, or an attempt or 
     conspiracy to engage in conduct, of the type proscribed by 
     chapter 110 of title 18, United States Code, or conduct, 
     committed in relation to a child below the age of 14 years, 
     either of the type proscribed by chapter 109A of title 18, 
     United States Code, or that involved deriving sexual pleasure 
     or gratification from inflicting death, bodily injury, or 
     physical pain on another person, regardless of whether that 
     conduct would have subjected the actor to Federal 
     jurisdiction.''.
       (2) The first sentence of rule 404(b) of the Federal Rules 
     of Evidence is amended by inserting ``except as provided in 
     subdivision (a)'' after ``therewith''.
       (b) Methods of Proving Character.--Rule 405 of the Federal 
     Rules of Evidence is amended--
       (1) in subsection (a) by inserting before the period in the 
     first sentence ``except as provided in subdivision (c) of 
     this rule''; and
       (2) by adding at the end thereof the following:
       ``(c) Proof in Sexual Misconduct Cases.--In a case in which 
     evidence is offered under rule 404(a)(4), proof may be made 
     by specific instances of conduct, testimony as to reputation, 
     or testimony in the form of an opinion, except that the 
     prosecution or claimant may offer reputation or opinion 
     testimony only after the opposing party has offered such 
     testimony.''.
                                 ______

      By Mr. MOYNIHAN (for himself, Mr. Roth, Mrs. Murray, Mr. Baucus, 
        Mr. D'Amato, Mr. Grassley, Mr. Breaux, Mr. Hatch, and Mr. 
        Pryor):
  S. 1095. A bill to amend the Internal Revenue Code of 1986 to extend 
permanently the exclusion for educational assistance provided by 
employers to employees; to the Committee on Finance.


                THE EMPLOYEE EDUCATIONAL ASSISTANCE ACT

  Mr. MOYNIHAN. Mr. President, I rise today, on my own behalf and on 
behalf of Senators Roth, Murray, Baucus, D'Amato, Grassley, Breaux, 
Hatch, and Pryor, to introduce legislation that will reinstate and make 
permanent the tax exclusion for employer-provided educational 
assistance under section 127 of the Internal Revenue Code. This bill 
ensures that employees will be able to continue to receive up to $5,250 
annually in tuition reimbursements or similar educational benefits from 
their employers on a tax-free basis.
  First enacted in 1978, section 127 has enabled over 7 million working 
men and women to advance their education and improve their job skills, 
without incurring additional income tax liabilities and a reduction in 
take-home pay. Without this provision, an employee would owe taxes on 
the value of any educational benefits provided by an employer that do 
not directly relate to his or her current job. For example, a clerical 
worker pursuing a college diploma who earns $21,000 annually, and who 
receives tuition reimbursement for two semesters of night courses--
worth approximately $4,000--would owe additional Federal income and 
payroll taxes of $1,200 on this educational assistance. The effects are 
even more severe if he or she lives in a State that uses the Federal 
definition of income for State tax purposes.
  It is shortsighted to impose such a tax burden on employees seeking 
to further their education. For many low- and moderate-income 
employees, this cut in take-home pay is simply prohibitive, preventing 
them from enrolling in courses that would upgrade their job skills and 
improve their future career prospects. Without this investment in our 
employees' education, the ability of our work force to compete in the 
global economy erodes. By removing the requirement that educational 
assistance be job related in order to be tax-free, section 127 
eliminates a tax burden on workers seeking to further their education 
and improve their career prospects.
  Moreover, section 127 removes a tax bias against lesser-skilled 
workers. The tax bias arises because lesser-skilled workers have 
greater difficulty proving educational expenses are directly related to 
their current jobs due to their narrower job descriptions. Therefore, 
absent section 127, such lesser-skilled workers are more likely to owe 
taxes on employer-provided educational benefits than are higher-
skilled, more senior workers.
  Congress has never quite found sufficient revenue to enact section 
127 on a permanent basis, opting instead for temporary exclusions. 
Since 1978, there have been 7 extensions of this provision. Most 
recently, the Omnibus Reconciliation Act of 1993 provided for an 
extension of section 127 through December 31, 1994. The exclusion has 
once again expired.
  I hope that Congress will recognize the importance of this provision, 
and 

[[Page S 10969]]
enact it permanently. Temporary extensions create great practical 
difficulties for the intended beneficiaries. Employees cannot plan 
sensibly for their educational goals, not knowing the extent to which 
accepting educational assistance may reduce their take-home pay. As for 
employers, the fits and starts of the legislative history of section 
127 have been a serious administrative nuisance. If section 127 is in 
force, then there is no need to withhold taxes on educational benefits 
provided; if not, the job-relatedness of the educational assistance 
must be ascertained, a value assigned, and withholding adjusted 
accordingly. Uncertainty about the program's continuance magnifies this 
burden, and discourages employers from providing educational benefits. 
The legislation that I introduce today would restore certainty to 
section 127 by extending it retroactively, to the beginning of this 
year, and then maintaining it on a permanent basis.
  Mr. President, my previous efforts to extend this provision have 
enjoyed wide, bipartisan support. Encouraging workers to further their 
education and to improve their job skills is an important national 
priority, crucial for preserving our competitive position in the global 
economy. Permitting employees to receive educational assistance on a 
tax-free basis, without incurring significant cuts in take-home pay, is 
a demonstrated, cost-effective means for achieving these objectives.
  Employee educational assistance is not an extravagant, free benefit 
for highly paid executives. It largely benefits low- and moderate-
income employees seeking access to higher education and further job 
training. A survey undertaken by Coopers & Lybrand indicated that over 
70 percent of recipients of section 127 benefits in 1986 earned less 
than $30,000. In fact, lower-income employees are more likely to 
participate in educational assistance programs than those at the higher 
end of the income scale. Employees making less than $30,000 participate 
at a much higher rate than those making above that income, and 
participation rates decline as salary levels increase. Moreover, 
employees making less than $15,000 participate at almost twice the rate 
of those who earn over $50,000.
  Further, section 127 makes an important contribution to simplicity in 
the Tax Code. Without it, employers and the IRS would be required to 
determine, on a case-by-case basis, which employer-provided educational 
benefits are sufficiently related to the job to avoid treatment as 
taxable income.
  Today, American workers are the most productive in the industrialized 
and developing world. Yet pressures from international competition and 
the pace of technological changes require continual adjustment by our 
work force. Retraining will thus be necessary to maintain and 
strengthen American industry's competitive position in the global 
economy. Section 127 permits employees to adapt and retrain without 
incurring additional tax
 liabilities and a reduction in take-home pay. By removing the tax 
burden from workers seeking retraining, section 127 enables employees 
displaced by foreign competition or technological change to learn new 
job skills.

  Finally, section 127 has also helped to improve the quality of 
America's public education system, at a fraction of the cost of direct-
aid programs. It has enabled thousands of public schoolteachers to 
obtain advanced degrees, augmenting the quality of instruction in our 
schools. A survey by the National Education Association a few years ago 
found that almost half of all American public school systems provide 
tuition assistance to teachers seeking advanced training and degrees. 
The Tax Code should not impose obstacles to this kind of shared effort 
toward improvement. This legislation, by making section 127 permanent, 
will ensure that it does not.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1095

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. PERMANENT EXTENSION OF EDUCATIONAL ASSISTANCE 
                   EXCLUSION.

       (a) In General.--Section 127 of the Internal Revenue Code 
     of 1986 (relating to exclusion for educational assistance 
     programs) is amended by striking subsection (d) and by 
     redesignating subsection (e) as subsection (d).
       (b) Effective Date.--The amendments made by this section 
     shall apply to taxable years beginning after December 31, 
     1994.

  Mr. ROTH. Mr. President, we've all heard the axiom that the 
cultivation of the mind is the secret to a happy and productive life. 
Education not only provides untold benefits to the individual, but to 
society as a whole. In fact, the worth of education is increasing.
  In 1980, a male college graduate made about 30 percent more than a 
male high school graduate. By 1988, he made about 60 percent more. In 
just 8 years, the premium for a college degree doubled--in comparison 
with a high school diploma.
  On a social level, education is fundamental to the future well-being 
and competitiveness of America. Not only are well-educated men and 
women able to make greater contributions to our economy, but they make 
unquantifiable contributions to business, academia, and 
agriculture, as well as to our technical and communications resources.
  The irony, Mr. President, is that while the value of higher education 
is increasing, the confidence of Americans to receive a higher 
education is declining. Polls shows that our countrymen are less and 
less optimistic about their ability to receive higher education. A full 
55 percent think paying for college is more difficult now that it was 
10 years ago, and 66 percent say it will be even more difficult 10 
years now. Sixty percent believe even qualified people can't afford 
college.
  The solution? Eighty percent of those polled say the best solution is 
to have financial support provided through work opportunities. This 
compares to 43 percent who call for more direct grants to students and 
even 62 percent for those who want more money for student loans.
  The legislation I am cosponsoring today with Senator Moynihan, is a 
welcomed and needed measure to encourage and assist employers to 
provide educational opportunities for their employees. What we seek to 
do with this legislation is permanently extend the exclusion for 
employer provided educational assistance. The exclusion, section 127, 
expired on December 31, 1994--7 months ago--and unless it is extended, 
employees will be taxed on their education benefits. They will owe both 
Federal and FICA taxes on the assistance they have received.
  Mr. President, section 127 is legislation that has been approved 
before. We know that it is needed--that it is important. Congress has 
passed it in an effort to increase the participation of employers in 
assisting in the education of their employees. Under previous 
congressional action, tax-free benefits were made available for 
employees who wanted to improve their knowledge and skill in job-
related studies. Beyond this, the law also allowed employees to 
participate in other studies. The only exclusions involved education in 
sports, games and hobbies, unless those studies were directly 
associated with their employment needs or were part of an overall 
degree program.
  Congress has already established the need for section 127 and 
provided the legislation. What Senator Moynihan and I are doing now is 
simply making it permanent. Our bill will allow employees to 
permanently receive up to $5,250 annually in undergraduate tuition or 
similar educational benefits from their employers on a tax-free basis. 
It will be effective retroactively, going back to January 1, 1995--thus 
taking care of the 7 months that have lapsed since section 127 expired.
  I encourage my colleagues to join Senator Moynihan and me in passing 
this bill, reminding them of the importance of education as it pertains 
to the future of America. As Daniel Webster said when he stood on the 
Senate floor many years ago:

       If we work marble, it will perish; if we work upon brass, 
     time will efface it; if we rear temples, they will crumble 
     into dust; but if we work upon immortal minds . . . we are 
     then engraving upon tablets which no time will efface, but 
     will brighten and brighten to all eternity.

                                 ______

      By Mr. D'AMATO:
  S. 1096. A bill to amend the Immigration and Nationality Act to 
provide that members of Hamas (commonly 

[[Page S 10970]]
known as the Islamic Resistance Movement) be considered to be engaged 
in a terrorist activity and ineligible to receive visas and excluded 
from admission into the United States; to the Committee on the 
Judiciary.


                    the hamas exclusion act of 1995

 Mr. D'AMATO. Mr. President, I introduce the Hamas Exclusion 
Act of 1995. This bill was introduced in 1993, in conjunction with 
Representative Peter Deutsch in the House. I am introducing it again 
this year because of Hamas' continued role in disruption of the peace 
process as well as the recent detention of Mousa Mohamed Abu Marzook at 
JFK Airport in New York.
  Hamas continues to use terrorism as a tool to disrupt the peace 
process. In doing so, it continues to kill innocent Israelis without 
concern for life. Between April 1994 and July 1995, Hamas has conducted 
at least 8 suicide bombings against Israeli targets, killing at least 
52 people. This is murder plain and simple.
  When U.S. immigration officials detained Marzook at JFK last week, 
they detained a man who held a place on the U.S. terrorism watchlist 
and according to the INS, is an ``excludable alien based on his 
participation in terrorist activities.''
  I applaud President Clinton's recent actions against terrorism, 
especially his Executive orders against terrorist fundraising in the 
United States and the total embargo on trade with Iran for which I 
pushed. This latest action signals that the United States can no longer 
act as a haven for those who belong to terrorist organizations whose 
only wish is to kill and maim.
  My bill is simple. It states that an alien who is an officer, 
official, representative, or spokesman of Hamas, is considered to be 
engaged in terrorist activity and therefore eligible to be excludable 
under the immigration statutes.
  There can be no toleration of the actions of Hamas and groups like 
it, nor can we allow these groups to operate in the United States. 
While this bill is not the panacea, it will act to keep one group out. 
I urge my colleagues to join me in sending this strong message by 
cosponsoring this legislation.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1096

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. TERRORIST ACTIVITIES.

       Section 212(a)(3)(B)(i) of the Immigration and Nationality 
     Act (8 U.S.C. 1182(a)(3)(B)(i)) is amended by adding at the 
     end ``An alien who is an officer, official, representative, 
     or spokesman of Hamas (commonly known as the Islamic 
     Resistance Movement) is considered, for purposes of this Act, 
     to be engaged in a terrorist activity.''.
      By Mr. HATFIELD (for himself and Mr. Packwood):
  S. 1097. A bill to designate the Federal building located at 1550 
Dewey Avenue, Baker City, OR, as the ``David J. Wheeler Federal 
Building,'' and for other purposes; to the Committee on Environment and 
Public Works.


           the david j. wheeler federal building act of 1995

  Mr. HATFIELD. Mr. President, it is my honor to propose the 
designation of the Federal building in Baker City, OR, as the David J. 
Wheeler Federal Building.
  Mr. David J. Wheeler was an outstanding citizen until his life came 
to a tragic end on April 26, 1995. Mr. Wheeler, a U.S. Forest Service 
engineer working the Wallowa-Whitman National Forest, was brutally 
murdered by two juveniles while on assignment in the Payette National 
Forest in Idaho. Mr. Wheeler's death has had a tremendous impact on the 
entire community in Baker City because he was an active civic leader 
involved in and committed to his hometown.
  A true altruist, Mr. Wheeler was a member of the Baker City Rotary 
Club and was the president-elect at the time of his death. Mr. Wheeler 
volunteered as a coach at the local YMCA. In 1994 the Baker County 
Chamber of Commerce selected Mr. Wheeler as the Baker County Father of 
the Year. These honors are a clear illustration of the model citizen 
Mr. Wheeler was in his community.
  The Federal building in Baker City is currently unnamed and houses 
the U.S. Post Office, Bureau of Land Management, and the U.S. Forest 
Service. To designate this building as the David J. Wheeler Federal 
Building is a tribute to an extraordinary American and will commemorate 
the contributions Mr. Wheeler selflessly provided to his community.
  Mr. PACKWOOD. Mr. President, on April 26 of this year, the life of my 
fellow Oregonian, David Jack Wheeler, was snuffed out. He was murdered 
while working in the Wallowa-Whitman forest that he loved. David was an 
employee of the U.S. Forest Service, and he was an exemplary citizen of 
Baker City, OR. David was well-regarded in the community of Baker City 
because he was one of those individuals who didn't stop at just holding 
down a job and caring for a family. He gave back to his community. 
David worked to provide access for everyone to recreational and 
administrative facilities within the forest. He was a mentor and 
counselor to his coworkers. Because of this his community, friends, 
family, and employer would like to honor him by designating the Federal 
building located in Baker City as the David J. Wheeler Federal 
Building. I agree with these good people in this effort and so have 
sponsored a bill to make this happen. Folks in Baker City are right to 
honor David in this way. He gave so much to his community and this is a 
small thing to ask in return.
                                 ______

      By Mr. HELMS (for himself and Mr. Dole):
  S. 1098. A bill to establish the Midway Islands as a National 
Memorial, and for other purposes; to the Committee on Armed Services.


               THE BATTLE OF MIDWAY NATIONAL MEMORIAL ACT

  Mr. HELMS. Mr. President, in less than a month, ceremonies in Hawaii 
will commemorate the United States victory over Japan and the end of 
World War II. The American people were devastated by the December 7, 
1941, Japanese surprise attack on Pearl Harbor--undoubtedly, one of the 
most disastrous defeats in United States history. Victory at the Battle 
of Midway was a key element to the recovery of the United States Armed 
Forces and the ultimate victory on Japan.
  Historians rank Midway as one of the most decisive naval battles of 
all time. It is only fitting, in my judgment, that American heroes of 
the Battle of Midway be given due recognition, and that is why the 
Battle of Midway National Memorial Act is so important.
  Mr. President, if approved, this bill will: First, establish the 
Midway Islands as a National War Memorial; second, protect the historic 
structures associated with the Battle of Midway; and three, protect the 
surrounding environs, without cost to the taxpayers. The bill provides 
that the memorial be funded from revenues earned from private sector 
entities currently operating at the airstrip and the port facilities on 
Midway.
  Historic victories such as Midway, Gettysburg, Yorktown, and Normandy 
are remembered by memorializing the hallowed ground upon which American 
blood was shed. The Midway Islands, and the surrounding seas where so 
many American lives were sacrificed, deserve to be memorialized as 
well.
  Mr. President, during the month of June 1942, a badly outnumbered 
American naval force, consisting of 29 ships and other units of the 
Armed Forces, under the overall command of Adm. Chester W. Nimitz, 
outmaneuvered and out-fought 350 ships of the combined Japanese 
Imperial Fleet. The objectives of the Japanese high command were to 
occupy the Midway Islands and destroy the United States Pacific Fleet, 
but the forces under the command of Admiral Nimitz completely thwarted 
Japanese strategy. Victory at Midway was the turning point in the 
Pacific Theater.
  The outcome of the conflict, Mr. President, was remarkable given the 
fact that U.S. Forces were so badly outnumbered. The United States lost 
163 aircraft compared to 286 Japanese aircraft lost. One American 
aircraft carrier, the U.S.S. Yorktown, and one destroyer, the U.S.S. 
Humman were destroyed. On the other hand, the Japanese Imperial Navy 
lost five ships, four of the ships being the Imperial Navy's main 
aircraft carriers. Almost as devastating was the loss of most of the 
experienced Japanese pilots. At the end 

[[Page S 10971]]

of the day, 307 Americans had lost their lives. The Japanese navy lost 
2,500 men.
  So severe was the damage inflicted on the Imperial Japanese Navy by 
American airmen and sailors, that Japan never again was able to take 
the offensive against the United States or Allied forces.
  Mr. President, victory over the Japanese was achieved, of course, by 
men and women from all the United States Armed Forces. Certainly at 
Midway, elements of each services--Navy, Marines, and U.S. Army Air 
Corps--were heavily engaged, closely coordinated, and paid a high price 
for their bravery. The Midway Islands should be memorialized to honor 
the courageous efforts of all the services when they were called upon 
to defend our Nation and its interests.
  The heroism of many of American servicemen at Midway often required 
the ultimate sacrifice. Many of the Marine pilots, flying worn out and 
inferior planes, did not live to celebrate the victory at Midway. All 
but five torpedo-plane pilots who attacked the Japanese aircraft 
carrier task force--without protective air cover--were shot down. These 
pilots undoubtedly knew they were flying to an all but certain death.
  But the sacrifice of these brave Americans was not in vain, Mr. 
President. When the battle ended, four Japanese aircraft carriers were 
sent to the bottom of the Pacific Ocean, and their highly experienced 
pilots were lost. Japanese naval aviation never recovered from this 
crippling blow, and the rest, as they say, is history.
  Mr. President, the sacrifice and heroism of these men should never be 
forgotten--it is vital that our sons and daughters never forget what 
their fathers and grandfathers sacrificed for freedom. The Battle of 
Midway should be memorialized for all time, on the Midway Islands, on 
behalf of a grateful Nation.
  Mr. President, I ask unanimous consent that a letter from four 
gallant Americans, each of whom was a hero of the Battle of Midway--Lt. 
Com. Richard H. Best, Capt. Robert M. Elder, Cap. Jack H. Reid, and 
Maj. J. Douglas Rollow--regarding the Midway Islands National Memorial 
Act, be printed in the Record.
  Mr. President, I am grateful to these fine Americans for their 
service at the Battle of Midway and for their diligence in putting 
together this bill. I certainly commend other distinguished Americans 
for their contributions to this effort, including Dr. James D'Angelo, 
Adm. Tom Moorer, Adm. Whitey Feightner, Capt. Gordon Murray, Vice Adm. 
James Flatley III, Vice Adm. William Houser, William Rollow, and 
Anthony Harrigan.
  There being no objection, the letter was ordered to be printed in the 
Record as follows:

                                              International Midway


                                    Memorial Foundation, Inc.,

                                      Rockville, MD, May 30, 1995.
       Dear Senator Helms: Please take a few minutes to read this 
     letter to you from us, some of the survivors of the Battle of 
     Midway. We seek nothing for ourselves--only for our Country.
       Few battles in World War II were as pivotal as the Battle 
     of Midway in 1942. Although the Battle of Britain and 
     Stalingrad turned the course of the war in Europe, the Battle 
     of Midway not only turned the course of the war in the 
     Pacific, but most likely of the entire war. There the 
     Imperial Japanese Fleet was defeated by a handful of U.S. 
     Naval, Marine and Army aviators flying obsolescent aircraft. 
     Lives were heroically lost. Had we not prevailed at Midway, 
     Hawaii would have been lost, and the Pacific war fought on 
     our West Coast.
       Those of us who served in World War II have taken for 
     granted that the generations who succeeded us would know of 
     the enormous cost in lives paid to preserve freedom. We 
     naively assumed that future generations would cherish and 
     protect the values for which so many of our comrades died.
       While other nations in the free world made the remembrance 
     of World War II and the values it represented an imperative 
     for their children, sad to say, our nation has not. 
     Complacency replaced patriotism; revisionists replaced 
     historians. Some would even have our children believe that 
     the United States was the aggressor--insensitive to human 
     life--particularly with regard to the end of the war in the 
     Pacific.
       We know the truth--we lived it; but our children do not. 
     The International Midway Memorial Foundation believes that 
     one of the best ways to preserve the teachings of World War 
     II is to create World War II National Historic Battlefields. 
     There our children, historians and others interested in that 
     epic war for freedom can learn first hand, on site.
       We now face the second battle of Midway. In September 1993, 
     after over 90 years of stewardship, the United States Navy 
     closed Midway as an operational base. The United States Fish 
     and Wildlife Service (USFWS) has requested that Midway be 
     turned over to itself primarily for use as a wildlife refuge.
       The Foundation opposes the transfer of Midway to USFWS. 
     Instead, we wish it declared a National Historic Battlefield, 
     and administered by the U.S. National Park Service, in 
     accordance with sound multiple use principles. Interested 
     visitors can then not only see a beautiful island and its 
     wildlife, but also learn of the historic battle fought there.
       The Foundation will raise funds to help provide exhibits 
     and materials to teach those visitors about the battle. 
     Furthermore, visitors to Midway will generate funds, which in 
     turn, will reduce if not eliminate the cost to our taxpayers 
     of maintaining Midway.
       In closing, we believe our dead at Midway deserve something 
     better than a monument in a wildlife refuge. The few 
     threatened species utilizing the Midway Atoll (primarily the 
     Hawaiian Monk Seal and the Green Sea Turtle) can be amply 
     protected under the multiple-use program we espouse.
       Please help us. Please support legislation to create Midway 
     as a National Historic Battlefield. Let us not lose the 
     second battle of Midway.
           Respectfully yours,
     LCDR Richard H. Best,
                                                       USN (Ret.).
     Capt. Robert M. Elder,
                                                       USN (Ret.).
     Capt. Jack H. Reid,
                                                       USN (Ret.).
     Maj. J. Douglas Rollow,
                                                     USMCR (Ret.).
     

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