Congressional Record, Volume 142 Issue 49 (Wednesday, April 17, 1996)

[Congressional Record Volume 142, Number 49 (Wednesday, April 17, 1996)]
[Senate]
[Pages S3427-S3443]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

TERRORISM PREVENTION ACT--CONFERENCE REPORT

The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of the conference report accompanying S. 735,
which the clerk will report.
The assistant legislative clerk read as follows:

A conference report to accompany S. 735, an act to prevent
and punish acts of terrorism and for other purposes.

The Senate resumed the consideration of the conference report.

Motion to Recommit

Mr. LEAHY. Mr. President, I move to recommit the conference report on
the bill S. 735 to the committee of conference with instructions to the
managers on the part of the Senate to disagree to the conference
substitute recommended by the committee of conference and insist on
striking the text of section 414 (relating to summary exclusion),
section 422 (relating to modification of asylum procedures) and section
423 (relating to preclusion of judicial review) from the conference
substitute.
The PRESIDING OFFICER. There are 30 minutes on the motion, to be
equally divided.
Who yields time?
Mr. LEAHY. Mr. President, I yield myself 6 minutes.
Mr. President, I will ask for the yeas and nays on this at the
appropriate time but, I understand that the distinguished chairman of
the committee is on his way to the floor. I would not make such a
request until he was on the floor.
I am not taking this action lightly. I understand there is a real
concern on motions to recommit, but this is a very, very serious
matter.
I understand the symbolism of trying to have this conference report
adopted by the House on the 1-year anniversary of the terrible bombing
of the Federal building in Oklahoma City and, for that matter, the 3-
year anniversary of the tragic end of the siege near Waco. It is one
thing to say we want to schedule a resolution or sense of the Congress
to coincide with a memorial day but here we are talking about a very
significant piece of legislation. While I think that all of us abhor
what happened in Oklahoma--certainly, no sane American could take any
pleasure in what happened in the tragedy in Oklahoma City--we also have
a responsibility as U.S. Senators, no matter which party we belong to,
to pass the best law we can. After all, that is what the American
people expect.
The vast majority of Americans are opposed to terrorism, terrorism of
any sort, and they assume that their elected officials, both
Republicans and Democrats, are going to pass good anti-terrorism
legislation. If it takes a day or two more to get it right, then let us
take the day or two more. We are doing this for a nation of 250 million
Americans, a very powerful nation, threatened by terrorism.
The Senate passed S. 735 on June 6, 1995, almost a year ago. The
House only considered its version last month. The conference committee
apparently met a couple of evenings ago, and we were handed the
conference report yesterday with instructions to pass it post haste.
Having seen almost 10 months elapse since the Senate passed this bill,
I hope we take time to at least to read the conference report. And, I
dare suggest, there are not five Senators in here who have even read
the conference report or have the foggiest notion of what it is they
are voting on.
This is what we are talking about. We are talking about a bill being
rushed through here about antiterrorism, because we are all against
terrorists. But I am willing to bet my farm in Middlesex, VT, you are
not going to find 5 to 10 Senators in this body who have read every
word of this conference report.
In particular, my motion to recommit concerns profound changes to our
asylum process that were not previously considered by the Senate in our
deliberations on antiterrorism last year. The provisions I am objecting
to have nothing to do with preventing terrorism. That is one reason why
they were not in the antiterrorism bill that we considered and passed
last summer. These provisions were added in the conference.

They do not have to do with terrorism. I am asking only to strike
sections 414, 422, and 423. These are general immigration matters. They
should be in the immigration bill. They should not be in this
antiterrorism bill.
I tried to amend these provisions during the Judiciary Committee
consideration of the immigration bill. I failed

[[Page S3428]]

on a tie vote. I circulated a ``Dear Colleague'' earlier this week,
making clear my intention to try to change this. These provisions are
bad policy. They are going to make bad law, and they are put in here
for the first time in a conference report.
I disagree as well with the habeas corpus sections of the conference
report, but at least we had the opportunity to debate and amend those
provisions. The asylum rewrite was done in the dark of the night and it
is being forced on us today. I think that is wrong.
Look no further than the front page of the New York Times on Monday.
You see the most recent example of why we must not adopt the summary
exclusion provision in the bill. There is an article on the case of
Fauziya Kasinga and her flight from Togo to avoid female genital
mutilation. She has sought for 2 years to find sanctuary in this
country, only to be detained, tear-gassed, beaten, isolated and
abused--not in some distant land, but the United States of America. The
case has outraged women and men all over this country.
What you may not know is that the conference report that we have
before us would summarily exclude Ms. Kasinga from ever having made an
asylum claim, a claim that I hope, based on the reported facts, is
going to be granted without her enduring more suffering. You see she
traveled from Germany coming to America, and traveled on a false
British passport in order to escape mutilation in Togo.
Under the legislation before us, she would be out. ``Tough. Go back
and get mutilated. We do not care. We have a law--that none of us ever
saw, none of us ever debated, none of us ever spent time on--that
allows for your summary exclusion. You are out.''
Fidel Castro's daughter is another recent example of a refugee who
came here using a disguise and phony Spanish passport to seek asylum.
She came through Spain. Under the provisions of this bill, she might
have been turned away at the border after a summary interview by a low-
level immigration officer. We all know that there are political reasons
why Fidel Castro's daughter should be granted asylum. Under the
provisions of the conference report before us, slipped into the bill in
the middle of the night, are barriers that could make that impossible.
I yield myself 2 more minutes.
In my ``Dear Colleague'' letter on my proposed amendment to these
sections in the immigration bill and in the additional views I filed
with the committee report on the immigration bill I also recall victims
of the Holocaust and their use of false identification provided by the
brave diplomats Raoul Wallenberg and Chiune Sugihara during World War
II. Think of Oskar Schindler, think of ``Schindler's List.'' These are
the kind of things that we need to consider before adopting this
conference report.
My concern is not to defend alien smuggling or false documentation or
terrorists, but to acknowledge that there are some circumstances and
oppressive regimes in the world where, if you are going to escape, you
may well need to rely on false papers.
It would be ironic if we were to pass these provisions on an
antiterrorism bill that would prohibit victims of terror, torture, and
oppression around the world from seeking refuge in this, the world's
greatest democracy.
I hope that the United States will not abandon its historic role as a
refuge for the oppressed and persecuted. Our country is a beacon of
hope and freedom, let it not be extinguished. Let us not abandon our
leadership role in international human rights. Let us not abandon the
world's true refugees, let us not restrict the due process that
protects the people who look to us for asylum. Unfortunately, the
impact of the provisions in this bill would be to deny refugees any
opportunity to claim political asylum and would, instead, summarily
exclude them from the United States and send them back to their
persecutors without a hearing, without due process protections, without
assistance to help them describe their plight and without judicial
review of any kind.
Sections 421 and 422 of the conference report prohibit an asylum
claim by refugees who enter this country with false identification. I
could understand that we might want to consider as potentially relevant
factors to an asylum claim that the refugee arrived with false
documents and the route that the refugee traveled to get here. But
those factors should not be dispositive. The examples to which I have
previously alluded indicate that there are times when the use of false
documentation is not something that we would want to punish. I fear
that the bill goes too far and sends the wrong signal by putting the
burden on the refugee, without counsel and in a summary proceeding, to
establish that the person is the exception and to create a clear record
of ``credible fear'' and that it was necessary to present the false
document to depart from the persecuting country.
The Committee to Preserve Asylum has sent each of us a letter
outlining the ways in which similar provisions in the immigration bill
would harm human rights and endanger refugees. In their April 8 letter
supporting the Leahy amendment they outline cases in which these
provisions would have been disastrous.
The U.N. High Commissioner for Refugees sent our chairman a letter
dated March 6 objecting to these provisions as inconsistent with the
1967 Protocol Relating to the Status of Refugees and remains critical
of the bill.
The asylum process was reorganized and reformed in January 1994. The
bill fails to take these changes into account. In fact, in 1995 asylum
claims decreased greatly and were being timely processed. Only 20
percent were granted. Thus, the bill's provisions are a bad solution in
search of a problem. The INS and Department of Justice report that they
have matters in hand.
The Department of Justice counsels that we should allow immigration
judges rather than asylum officers to make these determinations. Under
the circumstances, I believe that we have moved too far too fast and
allowed a few cases from the distant past to create bad law.
The asylum provisions in the bill would place undue burdens on
unsophisticated refugees who are truly in need of sanctuary but may not
be able to explain their situation to an overworked asylum officer. The
bill would establish summary exclusion procedures and invest low-level
immigration officers with unprecedented authority to deport refugees
without allowing them a fair opportunity to establish a valid claim to
asylum. Even before being permitted to apply for asylum, refugees who
flee persecution without valid documents, would be met with a series of
procedural hurdles virtually impossible to understand or overcome.
This is a radical departure from current procedures that afford an
asylum hearing before an immigration judge during which an applicant
may be represented by counsel, may cross-examined and present
witnesses, and after which review is available by the Board of
Immigration Appeals. Such hearings have been vitally important to
refugees who may face torture, imprisonment or death as a result of an
initial, erroneous decision by an INS official. Indeed, human rights
organizations have documented a number of cases of people who were
ultimately granted political asylum by immigration judges after the INS
denied their release from INS detention for not meeting a ``credible
fear'' standard. Under the summary screening proposed in the bill
conference report, these refugees would have been sent back to their
persecutors without an opportunity for a hearing.
Under international law, an individual may be denied an opportunity
to prove an asylum claim only if the claim is ``manifestly unfounded.''
This bill would establish a summary screening mechanism that utilizes a
``credible fear'' standard without meaning or precedent in
international law. These summary exclusion provisions have been
criticized by international human rights organizations and the United
Nations High Commissioner for Refugees.
Furthermore, the proposed legislation would deny the Federal courts
their historic role in overseeing the implementation of our immigration
laws and review of individual administrative decisions. The bill would
allow no judicial review whether a person is actually excludable. These
proposals thereby portent a fundamental change in the role of our
coordinate branches of Government and a dangerous precedent.

[[Page S3429]]

Besides being fundamentally unfair to a traumatized and fatigued
refugee, who would be allowed no assistance and no interpreter, the
proposed summary screening process would impose a burdensome and costly
diversion of INS resources. In 1995 for example, only 3,287 asylum
seekers arrived without valid documents--hardly the tens of thousands
purported to justify these changes. The bill would require that a
phalanx of specially trained asylum officers be created and posted at
airports, sea ports and other ports of entry across the country to be
available to conduct summary screening at the border. There is simply
no need to divert these resources in this way when the asylum process
has already been brought under control.
There are no exigent circumstances that require this Nation to turn
its back on its traditional role as a refuge from oppression and to
resort to summary exclusion processes. Neither the Department of
Justice nor the INS support these provisions or believe them necessary.
I urge my colleagues to reject this gutting of our asylum laws and
support the motion to recommit.
Mr. LEAHY. Mr. President, I suggest the absence of a quorum and ask
unanimous consent that it not be charged to my time.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will call the roll.
The legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, regarding the motion to recommit the
conference report by the distinguished Senator from Vermont, now, look,
this bill is a tough bipartisan measure. Stated simply, it is a
landmark piece of legislation. My colleagues on the other side of the
aisle know it. We have crafted a bill that puts the Nation's interests
above partisan politics.
Some of my colleagues however have criticized this bill for not being
tough enough on terrorists. In truth, many oppose this bill because it
is too tough on vicious, convicted murderers--not my friend from
Vermont, but others. My colleagues are aware that this motion to
recommit will not improve the bill. Instead, if it passes it will
scuttle the antiterrorism bill. In other words, it will kill it.
Accordingly, on behalf of Senator Dole and myself, I move to table
the pending motion and ask for the yeas and nays.
Mr. LEAHY. Mr. President, would the Senator withhold just a moment?
Mr. HATCH. I will be happy to withhold.
Mr. LEAHY. Mr. President, as I understand it, we are under a time
agreement. Such a motion would not be in order until--or at least a
vote on such a motion would not be in order until all time is either
used or yielded back. Am I correct?
Mr. HATCH. I thought maybe the Senator had used his time.
I withdraw my request.
The PRESIDING OFFICER. The motion would not be in order until the
time is used or yielded back.
Mr. LEAHY. If the Senator asks unanimous consent to make his motion
to get the yeas and nays on it now, to be done at the expiration of
time or yielding back----
Mr. HATCH. We can wait until then.
Mr. LEAHY. Mr. President, would the Senator yield further, on my
time?
Mr. HATCH. I certainly do.
The PRESIDING OFFICER. The Chair recognizes the Senator from Vermont.
Mr. LEAHY. Mr. President, I ask unanimous consent that a letter from
the Committee to Preserve Asylum and various attachments in support of
my amendment, signed by the American Friends Service Committee, the
American Jewish Committee, Amnesty International, Associated Catholic
Charities of New Orleans, Jesuit Social Ministries, Jewish Federation
of Metropolitan Chicago, Indian Law Resource Center, and a number of
others in support of my amendment be included in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Committee to Preserve Asylum,

Washington, DC, April 8, 1996.
Hon. Patrick J. Leahy,
Russell Senate Office Building,
Washington, DC.
Dear Senator Leahy: We are an ad hoc coalition of religious
groups, human rights organizations, concerned physicians, and
immigration and civil rights advocates that have come
together to oppose the new bars to applying for asylum
contained in S. 269.
The right to seek asylum is an internationally recognized
human right, incorporated into U.S. law by Congress in the
1980 Refugee Act. It protects individuals fleeing persecution
on account of race, religion, nationality, political opinion,
or membership in a particular social group. Each year the
U.S. grants asylum to about 8,000 people, less than 1% of
legal immigrants. The new bars to asylum contained in S. 269,
the Immigration Control and Financial Responsibility Act,
would seriously undermine human rights protections for these
bona fide refugees.
The new bars to asylum, found in sections 133 and 193 of
the bill, would give low level immigration officers the
authority to exclude and deport without a fair hearing
refugees who were forced to flee persecution without valid
travel documents. For reasons illustrated in the attached
documents, this section would effectively deny asylum to many
human rights victims. It will also cost more money. Senator
Leahy will offer an amendment on the Senate floor that will
preserve procedural protections for people escaping religious
and political persecution.
We urge you to vote for the Leahy amendment.
Sincerely yours,
American Civil Liberties Union.
American Friends Service Committee.
American Jewish Committee.
Amigos de los Sobrevivientes.
Amnesty International.
Associated Catholic Charities of New Orleans.
Asylum and Refugee Rights Law Project, Washington Lawyers'
Committee for Civil Rights and Urban Affairs.
Ayuda, Inc., Washington, DC.
Center for Immigrants Rights, Inc.
Central American Resource Center--CARECEN of Washington,
DC.
Central America Political Asylum Project, American Friends
Service Committee, Miami, FL.
Church World Services Immigration and Refugee Program.
Columban Fathers' Justice & Peace Office.
Comite Hispano de Virginia.
Committee for Humanitarian Assistance to Iranian Refugees.
Committee to Protect Journalists.
Council of Jewish Federations.
Dominican Sisters of San Rafael, CA.
El Centro Hispanoamericano.
FIRN, Inc. (Foreign-born Information and Referral Network).
Friends Committee on National Legislation.
Heartland Alliance for Human Needs & Human Rights.
Hebrew Immigrant Aid Society.
Hogar Hispano.
Illinois Coalition for Immigrant and Refugee Protection.
Immigrant and Refugee Services of America.
Immigrant Legal Resource Center.
Indian Law Resource Center.
International Institute of Boston.
International Institute of Los Angeles.
Jesuit Social Ministries.
Jewish Federation of Metropolitan Chicago.
Las Americas Refugee Asylum Project.
Lawyers Committee for Human Rights.
Lutheran Immigration and Refugee Service.
Marjorie Kovler Center for the Treatment of Survivors of
Torture.
Mennonite Central Committee.
Minnesota Advocates for Human Rights.
National Asian Pacific American Legal Consortium.
Network: A National Catholic Social Justice Lobby.
North Texas Immigration Coalition.
Northwest Immigrant Rights Project.
Peace Workers.
Physicians for Human Rights.
Political Asylum/Immigration Representation Project, Boston
College Law School.
Proyecto Adelante.
Proyecto San Pablo.
Robert F. Kennedy Memorial Center for Human Rights.
Sponsors Organized to Assist Refugees, OR.
Union of Council of Soviet Jews.
U.S. Committee for Refugees.
Vietnamese Association of Illinois.
VIVE, Inc., An Organization for World Refugees.
____

The New Bars to Asylum Would Return Human Rights Victims to Further
Persecution

vote for the leahy amendment

Sections 133 and 193 of S. 269, the Immigration Control and
Financial Responsibility Act, would give low-level
immigration officers the authority to deport back to their
persecutors refugees who were forced to flee persecution
without valid travel documents. The new bars to asylum would
punish people whose only means of fleeing repressive
governments is by using invalid travel documents.
Many true refugees are forced to flee persecution without
valid travel documents either

[[Page S3430]]

because they do not have time to acquire them or because
applying for them would threaten their lives.
Under current law, a person who arrives in the United
States without valid travel documents and fears persecution
in his or her home country may go before an immigration judge
and prove eligibility for asylum. The asylum seeker may be
represented at the hearing at no cost to the government.
The new bars to asylum would preclude such a person from
even applying for asylum until he or she has proven that he
or she has a ``credible fear'' of persecution and used the
invalid travel documents to flee directly from a country
where there is a ``significant danger'' of being returned to
persecution. This all may have to be proven immediately after
a stressful journey, and without the assistance of counsel or
an interpreter, and without the involvement of any judicial
or quasi-judicial officer.
The new bars and summary procedures are problematic for
several reasons.
A ``false papers'' rule would harm human rights victims. By
definition, asylum seekers frequently fear persecution by the
government of their home country--the same government that
issues travel documents and checks identity papers and exit
permits at the airports and border crossings. It should be
recalled that the United States has long honored Raoul
Wallenberg, who saved countless lives during the Holocaust by
issuing unofficial travel documents so that refugees could
flee further persecution.
Meritorious asylum seekers would be returned to
persecution. The INS has made serious errors while trying to
apply the ``credible fear'' test. Under current law, asylum
seekers who arrive in the U.S. without valid travel documents
are detained pending their hearing unless they prove a
``credible fear'' of persecution in their home country. Human
rights organizations have documented many cases in which
people were denied parole under this standard, but later were
granted asylum at their hearing before an immigration judge.
Under the new bars to asylum, they would have been returned
to persecution. A summary of some of these case studies is
attached.
The Department of Justice opposes the new bars to asylum.
Deputy Attorney General Jamie Gorelick wrote in her February
14 letter to Judiciary Committee Chairman Orrin G. Hatch that
the Justice Department opposes sections 133/193, noting that
``Absent smuggling or an extraordinary migration situation,
we can handle asylum applications for excludable aliens under
our regular procedures.''
The new bars would deny protection to refugees who had to
change planes on route to the United States. Before being
able to apply for asylum, a refugee who used false documents
would have to prove that they were needed to leave her
country or to transit through another country. This
requirement would prejudice both asylum seekers who flee
countries that do not have direct carrier routes to the U.S.
and those who must travel over land through countries that do
not have asylum laws, that may be friendly with the
government they are fleeing, or that are hostile to people of
their background or nationality. Refugees from Asian and
African countries in particular face this situation.
The new bars to asylum are inconsistent with U.s.
obligations under international law and will inevitably lead
to errors. The new bars lack the minimal procedural
safeguards to prevent the mistaken return of a genuine
refugee to certain persecution. The UNHCR ``fears that many
bona fide refugees will be returned to countries where their
lives or freedom will be threatened'' if the new bars to
asylum become law. (Letter to Sen. Hatch, Chairman Judiciary
Cmte, March 6, 1996).

vote for the leahy amendment

Bob, a student at the University of Khartoum in Sudan, was
an active member of the Democratic Unionist Party, an anti-
government organization. After participating in a peaceful
student protest, he was arrested by the Sudanese government.
He was detained in a 6 by 11 foot cell with 10 other
prisoners for 2 months. During his imprisonment, he was
repeatedly interrogated and tortured--he was hung by his
hands and feet, beaten and electrically shocked. As a result
of the torture, his elbows are permanently deformed. He
remained active in the democratic movement after his release
from prison. Then, as he was walking to a democratic union
meeting, he was again arrested and imprisoned. A few months
later, while he was still in prison, he suffered a nervous
breakdown because of the torture he suffered. He was
transferred to a hospital, but remained under arrest. Wearing
a nurse's uniform that his mother had smuggled into the
hospital, Bob escaped from imprisonment.
Bob's colleagues from the democratic union smuggled him
onto a freighter bound for Germany. In Germany, he borrowed
another person's ID card to leave the ship. Knowing that the
anti-immigration and NeoNazi movement in Germany had
heightened and that it would be impossible to receive asylum
there, Bob flew from Germany to the United States. He arrived
without a passport. When he exited the plane, he immediately
told the INS that he wanted to apply for asylum. He was
placed in detention. Bob was not released from detention
because the INS interviewer determined he did not have a
``credible fear'' of persecution. He was granted asylum by an
immigration judge.
Alan, an Indian national, had been persecuted in Kashmir
because of his religion. On several occasions, he and his
family members were imprisoned and tortured by the Indian
government. In July 1994 when the military police sought to
detain him, he evaded arrest. A few months later his family's
home was bombed.
Fearing for his life, Alan fled to the United States using
a false passport. He told the INS he wanted asylum
immediately. He explained to the INS officials that he and
his family had been persecuted by the Indian government. The
INS officers at the airport did not think he was credible.
The officials verbally abused Alan and denied him food and
water until he was brought to a detention center the next
day. Alan was not released from detention because the INS did
not think he had a credible fear of persecution even though
he presented the INS with reports about religious persecution
in Kashmir. Alan was later granted asylum by an immigration
judge.
Sam, a Nigerian national, was an active member of a pro-
democracy organization that was determined to ensure
democratic elections in Nigeria. Shortly before the
elections, the leader of the democracy organization was found
murdered, and several members were arrested and subsequently
disappeared. The State Secret Service went to Sam's house on
election day searching for him. When Sam learned that the
secret service was searching for him, he immediately went
into hiding, afraid that if they found him, he too would
``disappear'' as his colleagues had.
Sam fled to the United States right out of hiding. He
changed planes in Amsterdam. He traveled with a false U.S.
passport. He was afraid that the Nigerian government would
arrest him if he tried to leave the country with his own
identification papers. When he arrived in the United States,
he immediately told the INS that he wanted asylum. He was
placed in detention. The INS interviewed him to determine
whether he had a credible fear of persecution; the INS
concluded that he did not. He was granted asylum by a federal
court.

Mr. LEAHY. Mr. President, I also ask unanimous consent that a letter
from the U.N. High Commissioner for Refugees in support be included in
the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:

United Nations,

High Commissioner for Refugees,

Washington, DC, March 19, 1996.
Re Special Exclusion Provisions of S. 269.
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC.
Dear Senator Leahy: I wish to express UNHCR's sincere
appreciation for your efforts during the 14 March Judiciary
Committee mark-up session to remove the special exclusion
provisions of S. 269. These provisions, found in Sections
133, 141 and 193 of the bill, would almost certainly result
in the U.S. returning bona fide refugees to countries where
their lives or freedom would be threatened.
As noted in my 6 March letter to Judiciary Committee
Chairman Orrin Hatch, we offer our views regarding S. 269
with the hope that you and the other members of the Judiciary
Committee will seek to adhere to the standards and principles
set forth in the 1967 Protocol Relating to the Status of
Refugees, to which the U.S. acceded in 1968.
In particular, UNHCR is concerned with the following
special exclusion provisions:
(1) Lack of due process--Sections 133, 141 and 193 provide
few procedural safeguards to ensure that true refugees are
not erroneously returned to persecution.
(a) No administrative review--Under Section 141, special
exclusion orders are not subject to administrative review (p.
IB-4, line 19). Minimum procedural guidelines for refugee
status determinations specify that an applicant should be
given a reasonable time to appeal for a formal
reconsideration of the decision. This principle is set forth
in UNHCR Executive Committee Conclusion No. 8 (1977).\1\ The
``prompt supervisory review'' provided for in Section 193 (p.
IC-36, line 12) does not meet these minimum procedural
guidelines.
---------------------------------------------------------------------------
\1\ The UNHCR Executive Committee is a group of
representatives from 50 countries, including the United
States, that provides policy and guidance to UNHCR in the
exercise of its refugee protection mandate.
---------------------------------------------------------------------------
(b) Limitation on access to counsel--Under Section 193,
asylum-seekers arriving at US ports of entry with false
documents or no documents are permitted to consult with a
person of their choosing, only if such consultation does
``not delay the process'' (p. IC-36, line 25). Such a
limitation is in violation of the principle that applicants
for asylum should be given the necessary facilities for
submitting his/her case to the authorities, including the
services of a competent interpreter and the opportunity to
contact a representative of UNHCR (UNHCR Executive Committee
Conclusion No. 8 (1977)).
(2) Limitation on access to asylum--Section 193 provides
that individuals presenting false or no documents or who are
escorted to the US from a vessel at sea are not permitted to
apply for asylum unless they traveled to the US from a
country of claimed persecution and that the false document

[[Page S3431]]

used, if any, was necessary to depart from the country of
claimed persecution. UNHCR requests the US to remove this
limitation and to adhere to international principles which
provide as follows:
(a) ``[A]sylum should not be refused solely on the ground
that it could be sought from another State. Where, however,
it appears that a person, before requesting asylum, already
has a connexion or close links with another State, he may if
it appears fair and reasonable be called upon first to
request asylum from that State'' (UNHCR Executive Committee
Conclusion No. 15 (1979) (emphasis added)).
(b) When refugees and asylum-seekers move in an irregular
manner (without proper documentation) from a country where
they have already found protection, they may be returned to
that country if, in addition to being protected against
refoulement (i.e. protected against return to a country where
their lives or freedom would be threatened), they are treated
in accordance with ``recognized basic human standards''
(UNHCR Executive Committee Conclusion No. 58 (1989)). UNHCR
is prepared to assist in practical arrangement for the
readmission and reception of such persons, consistent with
these international standards.
(3) Credible fear standard--Sections 133, 141 and 193
create a new, heightened threshold standard that asylum-
seekers must meet before they are permitted to present their
claims in a hearing before an immigration judge. Under these
sections, asylum-seekers who are brought or escorted to the
US from a vessel at sea (Sections 133 and 141), who have
entered the US without inspection, but have not resided in
the US for two years or more (Section 141), who arrive during
an ``extraordinary migration situation'' (Section 141) or who
arrive at a port of entry with false documents or no
documents (Section 193) must first establish a ``credible
fear'' of persecution before they are permitted to present
their claims in an asylum hearing before an immigration
judge. UNHCR urges the adoption of a ``manifestly unfounded''
or ``clearly abusive'' standard which would reduce the risk
that a bona fide refugee is erroneously returned to a country
where s/he has a well-founded fear of persecution. This
international standard for expeditious refugee status
determinations is set forth in UNHCR Executive Committee
Conclusion No. 30 (1983).
We are hopeful that you will support the elimination of a
deadline for filing asylum applications. Failure to submit a
request within a certain time limit should not lead to an
asylum request being excluded from consideration (UNHCR
Executive Committee Conclusion No. 15 (1979)). Under this
international principle, the US is obliged to protect
refugees from return to danger regardless of whether a filing
deadline has been met.
Again, I thank you for your efforts to ensure that refugees
are protected from return to countries of persecution. Please
do not hesitate to contact my Office if UNHCR may be of any
further assistance to you, your staff or other members of the
Committee.
Sincerely,
Anne Willem Bijleveld,
Representative.

Mr. LEAHY. Mr. President, I am not in any way trying to derail this
bill. I am just saying that this is something that was tucked into it
in the middle of the night. Nobody ever had a chance to debate it. It
is in here. And it is going to make it impossible, or nearly
impossible, for anyone from Fidel Castro's sister to somebody escaping
torture and religious persecution to come to the United States, if
traveling through a second country or traveling with a false passport
to do it.
That makes no sense. That is not an antiterrorist situation. Look at
``Schindler's List.'' Remember Raoul Wallenberg. Think about those who
escaped persecution by using false passports as a way they could get
out of the country. They may well have to go through an intermediate
country to get to the greatest nation of freedom on Earth. Just because
somebody slipped these provisions into the conference report, let us
not go along with it. This is something that should be debated.
Our own Department of Justice does not support these provisions of
the bill. I think in fact the Justice Department reiterated their
opposition to them in an April 16 letter on similar provisions in the
immigration bill to the majority leader. Deputy Attorney General
Gorelick wrote us, ``absent smuggling or an extraordinary migration
situation, we can handle asylum applications for excludable aliens
under our regular procedures.''
I reserve the balance of my time and yield to the Senator from Utah.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from Utah.
Mr. HATCH. Mr. President, I do not really have anything more to say
other than this is a very important piece of legislation. It is a key
piece of legislation. It is desired by almost everybody who wants to do
anything against terrorism. It is effective and strong. Even though we
acknowledge we do not have everything everybody wants in this bill, it
is a darn good bill that will make a real difference. If this motion or
any motion to recommit passes, this bill is dead, it will be killed. So
we simply have to defeat any and all motions to recommit. I will move
to table the amendment at the appropriate time. I am prepared to yield
back the balance of my time on this amendment.
Mr. BIDEN addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Delaware.
Mr. BIDEN. Mr. President, the Senator from Utah, the distinguished
chairman of the committee, keeps referencing that----
The PRESIDING OFFICER. Does the Senator from Vermont yield time to
the Senator from Delaware?
Mr. LEAHY. Yes. I understand I have about 4 minutes. I yield 2
minutes to the Senator from Delaware.
Mr. BIDEN. Mr. President, the Senator from Utah keeps saying anything
will kill this bill. That is not true. This is not ``kill this bill.''
If we send this back to conference for one or two or 12 amendments it
does not kill this bill. Every major bill we had, including the crime
bill, we sent back to conference with instructions--at least on three
occasions. This will not kill this bill.
Some of this has not been well thought out. Much of what we left out
of the bill, I am convinced, on reconsideration by our friends in the
House, they would change their view. But I want to make it clear, I do
not believe there is any evidence to suggest that sending this back to
conference with specific instructions would kill the bill.
I am prepared, if the chairman and if Senator Leahy is, to yield
back. I yield the floor.
Mr. LEAHY addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from Vermont.
Mr. LEAHY. Does the Senator from California care to speak on this?
Mrs. BOXER. No. I am waiting for the next motion.
Mr. LEAHY. Mr. President, I thought Senator Kennedy wished to speak
on this.
I am ready to yield back the balance of my time.
Mr. HATCH. I am prepared to yield back the balance of my time.
The PRESIDING OFFICER. All time has been yielded back.
Mr. HATCH. Mr. President, I ask unanimous consent that the pending
Leahy motion to recommit be temporarily set aside with the vote to
occur on or in relation to the Leahy motion after completion of debate
on the next motion to recommit.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Senators should be aware there will be two consecutive
rollcall votes following completion of all debate on the next motion.
Mr. President, I also ask unanimous consent to move to table the
Leahy amendment and ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be.
The yeas and nays were ordered.
Mr. BIDEN addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Delaware.
Mr. BIDEN. Mr. President, for the benefit of my colleagues, to review
the bidding from yesterday, the distinguished chairman of the committee
and I agreed on a unanimous-consent proposal that we have one-half hour
on each of up to as many as 14 motions. I doubt there will be that
many. But we will move them out seriatim here. I see my distinguished
colleague from California, Senator Boxer, is on the floor prepared to
go with her motion, to begin to debate her motion. So I would, with the
permission of the Senator from Utah, yield to the Senator from
California for that purpose.
I will make one important point, Mr. President. At the appropriate
time I will make the motion. As I understand the parliamentary
situation, debate must be concluded before I make the motion, otherwise
the motion is subject to immediately being tabled, which I do not think
my friend has any

[[Page S3432]]

intention of doing. But just to make sure we do it by the numbers--I
beg your pardon. I have been informed by staff we got unanimous consent
yesterday that that is not necessary, that we can offer the motion. But
I will offer the motion at this point.

Motion To Recommit

Mr. BIDEN. Mr. President, I offer a motion to recommit the conference
report with instructions to add provisions on the National Firearms Act
statute of limitations. For the purpose of discussion of that motion, I
send that motion to the desk.
The PRESIDING OFFICER. The motion is now pending.
The motion is as follows:

SEC. . 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--.''.

The PRESIDING OFFICER. There will be 30 minutes equally divided. Who
yields time?
Mr. BIDEN. I thank the Chair for its assistance. I yield as much time
as the Senator from California may need under my control.
The PRESIDING OFFICER. The Chair recognizes the Senator from
California.
Mrs. BOXER. Thank you, Mr. President. I want to thank the Senator
from Delaware for taking the leadership on this issue. Every motion
that he will make today is a motion that is tough on crime. Every
single motion that he will make, if it is carried by this U.S. Senate,
will make this a better bill.
The motion that he just sent to the desk means a lot to the Senator
from California because I offered it to this U.S. Senate. It was
adopted unanimously. I have to say, it is inexplicable to me why this
provision would have been stricken. I do know there are certain groups
that oppose it, one in particular, the NRA. I cannot for the life of me
understand why else this would have been stricken from the Senate bill.
Let me explain the amendment that I offered which is the subject of
this motion. What we would do is simply make sure that under the
National Firearms Act when there is a crime which deals with making a
bomb, making a silencer, making a sawed-off shotgun, that there be a
period of time of 5 years rather than 3 years for law enforcement to
track down and prosecute the criminal who would commit such a crime.
There is an anomaly in the United States Code right now. These crimes
are the only ones that have a 3-year statute of limitations. Let me
explain why this is so bad and why we must fix it. If there is a crime
where a terrorist makes a bomb and the bomb explodes and it kills
people--and we have just, of course, revisited, as our President did,
the tragedy in Oklahoma City, and the 1-year anniversary of that
dreadful day is coming quickly upon us--if a criminal had a bomb in his
home or in his farmhouse or in his truck or hidden away for a period of
a year, let us say, while he made that bomb, the statute of limitations
starts running from the day the bomb is made. In such a case law
enforcement would have only 2 years to track down and put away such a
criminal.
I do not understand why those who claim to be tough on crime would
drop from this bill a commonsense provision. Striking this provision
makes it easier to get away with making a bomb. It is that simple.
Who supports this Boxer amendment? How did I even learn about it? I
learned about it from local law enforcement people who asked me to
fight this fight. I learned about it from the Justice Department, who
asked us to carry this fight. I learned about it from the Treasury
Department, which heads the ATF, and they asked me to fight for this.
Mr. President, 47 police chiefs told me to fight for this. For them, I
offered this amendment to establish a 5-year statute of limitations for
making a bomb, a sawed-off shotgun, or a silencer. It is pretty
straightforward.
I think the American people understand this, and people can stand up
here as long as they want, and I have respect for them. However, I must
question them when stand up here and say, ``Well, gee, Senator Boxer,
if we kept your amendment in here, this whole bill would go down.''
Show me one U.S. Senator of either party, show me one House Member who
would truly stand up and say that a criminal who makes a bomb, who
makes a silencer, who makes a sawed-off shotgun should get away with it
because of a 3-year statute of limitations. If any disparity is
warranted, bomb making ought to be a longer statute, because a bomb
could be hidden in somebody's possession for a long time before it was
detonated and before it was used.
The police chief of Oklahoma City supports this. Let me repeat that:
The police chief of Oklahoma City supports this amendment. They know
they need time to put together their case.
What are we doing here? Are we doing the bidding of the NRA, or are
we doing the bidding of the American people? Are we trying to protect
the people from these vicious crimes, these cowardly crimes? It is
horrible enough when someone walks up to someone else and injures them
with a weapon. That is a horrible crime and it should be punishable by
the worst possible punishment.
It is unbelievable to me that this was stricken by this conference
committee. I thought we were going to be tough on crime.
Last night, a simple proposal that would say if a chemical weapon was
used, local law enforcement could call on our military to get help was
defeated in this Republican Senate--defeated. Now, ask the average law
enforcement person in the local community if they are experts on
chemical and biological weapons. They will tell you no. Just as in my
amendment, if you ask them, do you need more time to go after the
cowards that would make a bomb, they would say, ``We need more time,
Senator. Fight for your amendment.'' We did, and it passed this Senate,
and it was dropped in conference. It comes back to us with this piece
missing.
I am stunned that would be the case. There is no argument except the
one that the distinguished chairman makes over and over again on each
of these motions which is, ``You know that your amendment, Senator,
will kill this bill.'' Well, I do not know that. I never got one
letter, one note of opposition to this commonsense proposal supported
by the police chief of Oklahoma City and all the other law enforcement
people who know it takes time to put together these complex cases.
I say if anyone believes this is bad policy, if they disagree with me
on substance, if they disagree with the police chief of Oklahoma City
and all the other police chiefs, the Justice Department and the
administration, why do they not come down here? I say if they agree
that it is common sense that altogether these crimes should have a
minimum of a 5-year statute of limitations, they should support the
Biden motion to recommit.
It defies imagination that we are now here refighting important
commonsense proposals included in the Senate version of this bill.
I hope that my Republican friends will support this motion. I think
it is absolutely key that we not tie the hands of law enforcement. We
are coming to the 1-year anniversary of Oklahoma City. We know the
investigation is going on and is continuing. If you asked every
American, no matter what political stripe, no matter what part of the
country they are from, they would say that it is important to give law
enforcement enough time to investigate these complex cases--that is all
we are asking for. This does not cost any money. It simply gives law
enforcement time, time to make sure that they have completed their
investigation and those cowards who would blow

[[Page S3433]]

up innocent people are put away and dealt with in the harshest possible
fashion.
I say that is being tough on crime. I hope that we will have support
for this motion to recommit. Mr. President, I yield the floor. I
reserve whatever time I might have.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from Utah.
Mr. HATCH. Mr. President, I will not take long because, frankly, it
comes down to one thing: that we have worked this bill out. We have
worked hard with the House Members. It has been very difficult to do.
They have made significant concessions to us, and rightfully so. We
applaud them for doing so because we have our problems here, and they
have their problems there.
Anybody who has been in this process very long understands that once
you reach a conference report like this--especially this one, which has
taken a year to get here--any change is going to kill the bill--
especially this provision.
Section 108 of the Senate bill, in part, would increase from 3 to 5
years the limitations period for commencing actions for violations of
the National Firearms Act. The reason it is opposed by Members of the
House, and the reason I oppose this attempt to increase the limitations
provision, simply put, is because it is unnecessary. It does absolutely
nothing with regard to terrorism. The 3-year Internal Revenue Code
statute of limitation period for licensed firearms dealers violating
the National Firearms Act is more than an adequate time to commence
prosecutions.
There is no sanguine reason to extend the period. This has nothing to
do with terrorism. It may be a good idea in another context, but it is
apparent that it would cause plenty of problems in this context because
there are simply people in the House--and I suspect here--who disagree
with the distinguished Senator from California, who is very sincere in
putting this amendment forward.
The statute of limitations period should be built upon fairness.
These types of statutes of limitation must protect the Government's
ability to prosecute claims and violations of the law. Yet, they also
have to protect citizenry from stale claims and bureaucratic abuse. In
this area there are a significant number of people on both sides of the
floor here, and in the House of Representatives in particular, who have
seen unfairness by various bureaucratic abusers and do not want to
change this.
The traditional 3-year limitations period here accomplishes this fine
balance between public needs and private rights. If we look at the
underlying National Firearms Act offenses subject to a 3-year
limitations period, the violations either prohibit dealers from
possessing or transferring illegal firearms, such as banned machine
guns or sawed-off shotguns, or possessing or transferring them without
the proper firearm identification serial numbers, or through fraudulent
applications or records. The 3-year limitations period, historically,
has been more than sufficient to prosecute claims under the act, some
being substantive but many of an administrative or of a paperwork
nature. Some are technical. And we have seen abuses. Extending the
limitations period to 5 years does absolutely nothing except perhaps
open the system up to abuse and unfairness. Frankly, that is why our
colleagues in the House are against this amendment. That is why I am
against it here today.
I am prepared to yield, and I reserve the remainder of my time.
Mr. BIDEN. Mr. President, I yield myself 2 minutes of what I
understand to be 5 minutes of remaining time.
The idea, of course, here, Mr. President, is that the proposal that
is in the bill, the failure to do this in the bill does not make sense.
Listen to some of the types of weapons covered. Poison gas, bombs,
grenades, rockets having propellant charges of more than 4 ounces,
missiles having an explosive or incendiary charge of more than one-
quarter ounce, mines--these are not playthings we are talking about.
Remember, the statute of limitations runs not from the time the crime
becomes public knowledge, but from the time the crime was committed. So
if a terrorist builds a bomb secretly, keeps it in his barn for 2\1/2\
years, and blows up a building with it, the Federal prosecutors only
have 6 months to track the guy down and get an indictment for building
that bomb.

Crimes covered by the National Firearms Act are serious. They involve
illegal manufacture of rockets, bombs, missiles, and sawed-off
shotguns. So I cannot understand why anybody would oppose bringing the
statute of limitations for these crimes into line with almost every
other Federal crime.
Here are a few examples of crimes with a 5-year statute: Simple
assault; stealing a car; impersonating a Federal employee; buying
contraband cigarettes; impersonating, without authority, the character
Smokey the Bear. If we are going to give the Government 5 years to
track down a guy who impersonates Smokey the Bear, why not track down a
guy who is involved in producing poison gas in his garage or barn?
I yield the remainder of my time to the Senator from California.
Mrs. BOXER. Mr. President, I say to the Senator from Delaware that,
as usual, he has put this in exactly the right manner. There is no
reason on God's green Earth why this should not have been kept in this
bill. Again, just ask the American people. Sometimes things sound very
complicated. When the Senator from Utah got up and discussed the law,
he makes it sound too complicated for the average person to understand.
When you tell the average person that if you get out there and
impersonate Smokey the Bear, law enforcement has 5 years to track you
down, prosecute you, and put you away, but if you make a bomb, they
have 3 years, it makes no sense whatsoever.
When the Senator from Utah says I am very sincere, I appreciate that.
He knows me and he knows that I am, and I know that he is as well. But
this is not about my sincerity. This is about a tool that law
enforcement has asked the Congress to give them. So in the remainder of
my time, I am going to read into the Record the local police chiefs who
have asked us to give them this tool. It does not cost any money and
does not set up a new bureaucracy. It gives them a commodity they want:
time. So I am going to read, in the time that remains, the people who
said to me, ``Senator, this is important. Let us get this statute of
limitations extended so we can go after these bad, cowardly criminals
and put them away.''
The police chiefs of San Jose, CA; San Francisco, CA; Berkeley, CA;
Los Angeles Port, CA; Salinas, CA; San Leandro, CA; Indianapolis, IN;
the police chief of Oklahoma City, OK; the director of police in
Roanoke, VA; the chiefs of police in Bladensburg, MD; Edwardsville, IL;
Rock Hill, SC; Old Saybrook, CT; North Little Rock, AR; Puyallup, WA;
Yarmouth, ME; Kinnelton, NJ; Bel Ridge, St. Louis, MO; Charleston, SC;
Jackson, MS; Salem, MA; Scottsdale, AZ; Cambridge, MA; Haverhill, MA;
Millvale, Pittsburgh, PA; Newport News, VA; Dekalb County Police,
Decatur, GA; Opelousas, LA; Eugene, OR; Mobile, AL; Portland, OR; East
Chicago, IN; Louisville, KY; Alexandria, VA; Renton, WA; Waukegan, IL;
Port St. Lucie, FL; Greensboro, NC; Miami, FL; Buffalo, NY; Oxnard, CA;
Seattle, WA.
The PRESIDING OFFICER. The time of the Senator from California has
expired.
Mrs. BOXER. Thank you. I hope people will listen to the local chiefs
and support the motion of the Senator from Delaware.
Mr. HATCH. Mr. President, look, if the Senator's arguments are valid,
why do we not make it a 100-year statute of limitations? I mean, we can
make it that way. They can prosecute any time they want to prosecute.
The fact of the matter is that we are trying to balance our law
enforcement needs. Most of these are paperwork violations that are
going to be automatically ascertained within a very short period of
time, certainly within 3 years. If we make it 5 years, they will wait
4\1/2\ years before prosecuting on a paperwork violation rather than
2\1/2\ years, which is sometimes the case now.
There is simply no reason to extend the statute of limitations for
this act. Anyone who uses a bomb, as is the illustration by the Senator
from California, or illegal weapon, under this act,

[[Page S3434]]

will be prosecuted under the Criminal Code and receive far larger
penalties than are under this act. The majority of these offenses are
mere paperwork offenses and have little or nothing to do with
terrorism. Essentially, it would permit bureaucrats, like I say, 4\1/2\
years to start an investigation instead of 2\1/2\ years. That is really
sometimes what happens.

Let us get back to where we were; that is, that we have arrived at a
compromise here, and we have had to bring the House a long distance to
meet the needs of the Senate. They have cooperated and have worked
hard. Chairman Hyde and the other members of the conference have all
worked very hard on this, and this is where we are. There are those on
both sides of the floor over there who do not like this amendment, and,
frankly, it would be a deal killer and a bill killer. If we want an
antiterrorism bill, we have to vote down this motion to recommit.
I am prepared to yield the remainder of my time.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Grams). The clerk will call the roll.
The bill 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 addressed the Chair.
Mr. HATCH. Mr. President, I yield 60 seconds of my time to the
distinguished Senator from Delaware.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. Mr. President, I would like to make two very brief points.
I do not believe this is a deal killer, No. 1. But No. 2, there are
two pieces here. It is illegal to make a bomb. It is illegal to put
together poison gas. That is one crime all by itself. The second crime
is if you go out and use it. So, if you used a bomb to blow up
buildings, a new statute of limitations starts to run.
There is a distinction between what is lacking in this bill across
the board, between prevention and apprehension. We not only want to get
the bad guys who do the bad things; we want to prevent the bad guys
from being able to do the bad things. By allowing the statute of
limitations to be like it is for Smokey the Bear impersonation, and
everything else in the Federal code--just about--it gives us more time
to track down the people who have prepared or are stockpiling this kind
of material, whether or not they have used it. That is an important
distinction.
I think this is an important amendment. I cannot believe for a moment
that this would kill the bill, that you would have 35 people in the
House vote against this because we made the statute of limitations for
making poison gas the same as for impersonating Smokey the Bear. I find
that unfathomable.
I thank my colleague for yielding me an extra minute.
Mr. HATCH. Mr. President, how much time do I have?
The PRESIDING OFFICER. The Senator has 6 minutes and 20 seconds.
Mr. HATCH. Mr. President, let me answer the distinguished Senator.
There are people on both sides of the aisle over there who do not
like this amendment. We have taken a year to get this done. It was done
1 month after we passed the Senate bill, which, by the way, was an
excellent bill. The fact of the matter is, there are people over there
who will kill this bill over any amendment at this particular point.
Everybody knows that. This is not something new to us.
We have had to fight our guts out to get this conference and get the
conference report done. Frankly, there are a wide variety of viewpoints
on this bill and on some of the aspects of this bill.
Look, if somebody is making a bomb, it is very likely you could
charge that person under conspiracy, or an attempt statute, or under a
number of other statutes that have longer statutes of limitations. This
is not--I do not want to call it a phony issue, but it certainly is not
an issue that should allow a motion to recommit.

Frankly, 3 years is plenty of time to get somebody who makes a bomb.
If they do not get it under this statute, they will get it under
something else. But if you expand it to 5 years, then all of these
paperwork violations--which primarily is what is prosecuted under this
statute, and some of them very unjustly so in the past--all of those
become dragged out for another 2 years.
Frankly, we want the law enforcement people, if they feel they have a
legitimate reason to prosecute, to prosecute it, and do it quickly so
the witnesses are available, so that a lot of other things can be done
and the people can defend themselves.
So there are a number of legitimate reasons why people do not like
this amendment and why people in the House would not want this in the
bill. The purpose of this is to give the bureaucrats a new lease on
life without really stopping terrorism. That is what we are talking
about here.
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. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, what is the current business?
The PRESIDING OFFICER. The Senator has 3 minutes remaining.
Mr. HATCH. I yield back the remaining part of my time. What is the
current business?

Vote on Leahy Motion To Recommit

The PRESIDING OFFICER. The question is now on the motion to table the
Leahy motion.
Mr. HATCH. We do have the motion to table.
The PRESIDING OFFICER. The yeas and nays have been ordered.
Mr. HATCH. Mr. President, on behalf of Senator Dole and myself, I
also move to table the Biden-Boxer motion, and ask for the yeas and
nays as well.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
Mr. HATCH. It is my understanding that these votes will be back to
back starting now.
The PRESIDING OFFICER. The Senator is correct.
The question is on agreeing to the motion to lay on the table the
motion of the Senator from Vermont. On this question, the yeas and nays
have been ordered, and the clerk will call the roll.
The clerk called the roll.
Mr. LOTT. I announce that the Senator from Florida [Mr. Mack] is
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
who desire to vote?
The result was announced--yeas 61, nays 38, as follows:

[Rollcall Vote No. 63 Leg.]

YEAS--61

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

NAYS--38

Akaka
Baucus
Biden
Bingaman
Boxer
Bradley
Bumpers
Conrad
Daschle
Dodd
Feingold
Ford
Glenn
Graham
Harkin
Heflin
Inouye
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Moseley-Braun
Moynihan
Murray
Nunn
Pell
Pryor
Robb
Rockefeller
Sarbanes
Simon
Wellstone
Wyden

NOT VOTING--1

Mack

So the motion to lay on the table the motion to recommit was agreed
to.
Mr. HATCH. I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, since these are two stacked votes, I ask
unanimous consent that there be 1

[[Page S3435]]

minute for debate equally divided in the usual form prior to the vote
on the motion to table the Biden-Boxer motion.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BIDEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware.

Biden Motion to Recommit

Mr. BIDEN. Mr. President, let me explain briefly what this is. First,
right now there is a statute of limitations that if you go out and
impersonate Smokey the Bear, you have 5 years to track them down, if
you write a bad check you have 5 years. If you make poison gas, if you
make a chemical weapon, if you have a rocket propellant charge of more
than 4 ounces, if you produce missiles and hide them in your garage,
and they find them, without them being used, they only have a 3-year
statute of limitations. So if they did not find them until 1 year after
you have made them, you have 2 years. If they did not find them until
2\1/2\ years, you have 6 months. We want to make this a 5-year statute
of limitations, just like impersonating Smokey the Bear.
This is mindless not to do this when you are talking about making
poison gas and chemical weapons and grenade launchers.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. This is a National Firearms Act and 3-year limitation.
These are mainly paperwork violations. If someone violates beyond
that--and for even paperwork they can get them for conspiracy. They can
prosecute them under a whole variety of statutes that have longer
statutes of limitation.
This is not a serious issue to us in the Senate, but it is a very
serious issue to those in the House. We have worked hard to fashion
this compromise. It is a doggone good compromise. Our friends in the
House have really worked hard to help us to get it done. Frankly, this
motion, as well as others, would kill the bill. So I hope my fellow
Senators will vote against this motion.
The PRESIDING OFFICER. All time for debate has expired.
Mr. HATCH. Mr. President, this is a motion to table, is it not?
The PRESIDING OFFICER. That is correct.
Mr. HATCH. I do not have to move to table?
The PRESIDING OFFICER. No.
The question is on agreeing to the motion to table the Biden motion
to recommit the conference report on S. 735 to the committee on
conference with instructions. The yeas and nays have been ordered. The
clerk will call the roll.
The bill clerk called the roll.
Mr. LOTT. I announce that the Senator from Florida [Mr. Mack] is
necessarily absent.
The PRESIDING OFFICER (Mr. Gregg). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 53, nays 46, as follows:

[Rollcall Vote No. 64 Leg.]

YEAS--53

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

NAYS--46

Akaka
Biden
Bingaman
Boxer
Bradley
Breaux
Bryan
Bumpers
Byrd
Conrad
Daschle
Dodd
Dorgan
Exon
Feingold
Feinstein
Ford
Glenn
Graham
Harkin
Heflin
Hollings
Inouye
Johnston
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Moseley-Braun
Moynihan
Murray
Nunn
Pell
Pryor
Reid
Robb
Rockefeller
Sarbanes
Simon
Wellstone
Wyden

NOT VOTING--1

Mack

The motion to lay on the table the motion to recommit was agreed to.
Mr. HATCH. Mr. President, I move to reconsider the vote.
Mr. BIDEN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. BIDEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware is recognized.

Motion to Recommit

Mr. BIDEN. Mr. President, we are now going to move to a motion that I
offer to recommit the conference report with instructions to add a
provision on multipoint wiretaps that was in our original Senate bill.
I send it to the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

SEC. . REVISION TO EXISTING AUTHORITY FOR MULTIPOINT
WIRETAPS.

(a) Section 2518(ll)(b)(ii) of the 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(ll)(b)(iii) is amended to read: ``(iii)
the judge finds that such showing has been adequately made.''
(c) The amendments made by subsection (a) and (b) of this
amendment shall be effective 1 day after the enactment of
this Act.

The PRESIDING OFFICER. There will be 30 minutes equally divided.
Mr. BIDEN. I yield myself 2 minutes.
Mr. President, the distinguished Senator, and former Attorney General
of the State of Connecticut, is here. We are going to divide this up a
little bit. I want to make in my opening statement here a clarification
for anyone listening as to what we are doing here, because we are
really not changing anything that is not already done in any
significant way.
These multipoint wiretaps are made out to be this major new
concoction that they have come up with to interfere in the lives of
people. I was told in the House conference that some Members of the
House thought that it meant that the FBI would be in vans roving down
the street literally eavesdropping on people's homes. It is bizarre
what people think this means.
Let me explain what has to happen now to get a multipoint wiretap.
There are all sorts of provisions built into the law now for the
Federal Government: One, the Government must convince a judge that
there is probable cause to believe that a specific person is committing
a specific crime, as with any other wiretap. Two, the application even
to ask a Federal judge for one of these wiretaps is approved at the
very top level of the Justice Department, either by the Attorney
General herself, or the Deputy Attorney General, or the Assistant
Attorney General for the Criminal Division. No U.S. attorney in America
can go out and ask a judge for one of these. No U.S. attorney can do
that. No assistant U.S. attorney can do it without the approval of the
Attorney General, Deputy Attorney General, or the head of the Criminal
Division.
The application submitted must identify the person involved and
believed to be committing the crime, and whose communications are to be
the ones intercepted. A judge then has to find that the target's
action--that is, the person who they are targeting. Say, we think our
reporter here is in fact committing a crime. What you have to do is get
the judge to believe that there is probable cause to believe a crime
has been committed, that he is engaging in an activity. And, further,
when they decide that you can wiretap not only his home phone, but the
mobile phone he has in his pocket, the phone he has in his car, and the
pay phone he uses all the time--the judge has to believe that the
person is committing the crime--and communications are intercepted, it
has to be proved that he is trying to effectively thwart the tap. For
example, if my phone is tapped and there is probable cause that I
committed a criminal offense, and I walk every day at 2 o'clock down to
the pay phone on the corner, or I use a cell phone and then get rid of
the new cell phone every day and get a new one, then that effectively
thwarts the ability of the Federal Government investigators to tap
someone where there is probable cause that they committed a crime. So
that

[[Page S3436]]

judge has to believe all that before he grants such an order.
In addition, any interception cannot begin until the officers have
clearly determined that the target in question--that is, the person
they believe committed the crime--is using a particular tapped phone.
Once the target is off the phone, the interception must end. It does
not say, by the way, that any phone that the target uses can be tapped.
It says that we have reason to believe that he is using the following
phone, one, two, or three. You can tap those phones.
Once the phone is tapped, if you go to your mother-in-law's house to
use the phone, and after you get off, your mother-in-law is off the
phone, they cannot, under the law, tap your mother-in-law. They must
end the surveillance. It must stop. It must stop.
In addition, the moment the target leaves the phone, the tap on that
phone has to be disengaged. It cannot be used. Any evidence cannot be
used that would come from such a tap, if it stayed on. So this is
nothing new. What is new is that, under the present law, this is used
for the mob and other outfits. Under the present law, you have to show
that the person is intending to thwart the surveillance--intending to.
So essentially what you have to get is a mobster or terrorist saying,
``I cannot use this phone in my house anymore because I think it is
tapped. I am going to be going other places to use other phones. I will
get to you later.'' That is what you basically have to prove now.

What we are saying in this law is--and 77 Senators voted for it last
year--if the effect of the target is to thwart the surveillance, that
is all you need to prove. The effect is to thwart the surveillance. You
do not have to prove that he intended to thwart the surveillance; you
have to prove the effect is to thwart surveillance.
So, again, a minor change already exists with multipoint wiretaps, is
already in place. I will quote Mr. McCollum, the Republican leader of
the Criminal Subcommittee. When I offered this in conference, he said:

I think the reality is quite simple here--

This is McCollum speaking to me.

You are 100 percent right.

I am 100 percent right.

It is the single-most important issue we are not putting in
this bill. We have got to find some way to do it. But we are
not going to get the votes for this bill, and we could not
get the votes for this freestanding bill, I don't think,
right this minute in the House.

Get the first part: ``It is the single-most important issue we are
not putting in the bill.'' Mr. McCollum is right.
I yield the remainder of my time to the distinguished Senator from
Connecticut.
Mr. LIEBERMAN. Mr. President, I thank my colleague from Delaware. Mr.
McCollum was right. Senator Biden was right in everything he said,
except for where he said you could not wiretap my mother-in-law. I
would like to talk to him later about that.
Mr. BIDEN. If the Senator will yield for 3 seconds. His mother-in-law
may be listening.
Mr. LIEBERMAN. She probably is.
Mr. President, let me say first, both to the Senator from Delaware
and the Senator from Utah, how very pleased in general I am that we
have come as far as we have on this legislation. Over a year ago,
President Clinton challenged us to reach a bipartisan consensus on
counterterrorism legislation in the aftermath of the Oklahoma City
tragedy. The Senate promptly did so, including the Dole-Hatch
substitute bill we passed last spring, including in that bill most of
the key provisions of the President's own counterterrorism bill offered
earlier in the year by Senator Biden and others.
Unfortunately, the Senate's spirit of bipartisanship did not reach
the other body and did not, as fully as I think it should, reach the
conference itself. The conference has produced a report and a bill that
I would term a good bill in the war against terrorism. But it could and
should be better. That is why I am supporting Senator Biden's motion to
recommit, particularly directing the conference committee to insert
this so-called multipoint wiretapping that I was privileged to offer
along with Senator Biden and which, as he has indicated, passed the
Senate overwhelmingly. Not only was that amendment dropped in
conference, but even what I thought was the entirely uncontroversial
provision in the Senate bill that would add specific terrorism offenses
to the list of crimes for which wiretaps may be authorized was dropped
as well. In other words, if there is a suspected terrorist out there
now and law enforcement wants to tap his or her phones, they have to do
so on suspicion of a crime being committed but it cannot be a terrorist
act. They have to find some other specific crime that was committed.
Mr. President, these omissions puzzle me and trouble me. I am afraid
that they represent some strange left-right marriage of fear or
skepticism or cynicism about the Government and about law enforcement
officials particularly. As Senator Biden has said, the power to
wiretap--let me say from my own experience and others in law
enforcement--is a critically important tool in the hands of law
enforcement, and they need that tool not to feather their own nest or
build their own empires; they need it to protect us from the criminals,
and in this case the terrorists. They are on our side, those who work
for the U.S. attorneys, the FBI, the DEA, and the whole range of other
law enforcement officials down to the State and local police. They are
on our side.
There is somehow a feeling that has grown at the extremes of our
political discourse that we have a lot to fear from them. This
provision, as Senator Biden has said, incorporates the classically
American due process rules to make sure that any wiretap that is
obtained is approved by a judge and is applied and used in narrowly and
clearly circumscribed ways.
Mr. President, for everything I know about terrorism, the ability to
penetrate the highly secretive world of terrorists is the single most
effective tool law enforcement officials have to prevent terrorism acts
from happening and then to bring the terrorists to justice. We can
build barriers around Federal buildings. We can increase law
enforcement presence and try to fortify obvious targets. But we can
never defend all of the targets of terrorists, because they are
cowards. They will look for and strike undefended targets without
remorse about killing innocent civilians. You simply cannot protect
every target. They will strike everywhere. The object of the terrorist
is to create terror and panic. So, the best defense we have against
them is an offense, to penetrate their operations and to know that they
are about to strike before they strike so we can cut them off. If there
was ever a category of crime that warranted the full range of wiretap
capacities that law enforcement officials have today, it is terrorism.
That is what this amendment would do.
Look. In a way, by not including this amendment that the Senate
passed overwhelmingly, more essentially, allowing the terrorist to use
all of the tools of modern technology, leave the house phone, go to the
cell phone, go to the car phone, go to the phone booth, and we are
saying to law enforcement, ``Oh, no, you cannot. We are going to make
it hard for you to follow them. You are going to have to prove that
they are moving with an intent to thwart that wiretap.''

Senator Biden's example is so perfect. Basically we are saying to the
law enforcement folks, you have to hear a terrorist say on the phone
that, ``I got to hang up, John. I'm afraid the FBI is listening to me.
I am going to move out to my cell phone.'' You need that kind of proof
of intent to get, under the current law, this multipoint wiretap.
So we are saying to the bad guys, the criminals, the terrorists, you
can use all of this modern telecommunications equipment, but we are
going to stop law enforcement from trailing them. It is as if we said
during the cold war that we had intelligence information that the
Soviet Union had developed some very strong new weapon, that the
Pentagon had the ability to counteract that weapon with a defense, but
we are going to put strictures on them from using that weapon. It does
not make sense. It is why I think it is so important to adopt this
amendment.
Mr. President, multipoint wiretaps are used very sparingly because of
the requirements that Senator Biden set out. They have proved, however,
according to testimony submitted by Deputy Attorney General Jamie
Gorelick to the Judiciary Committee,

[[Page S3437]]

highly effective tools in prosecuting today's highly mobile criminals
and terrorists who may switch phones frequently for any number of
reasons. Again, as we have asked before on other measures, why allow
ease of obtaining a multipoint wiretap against other criminals,
including organized crime criminals, and not allow it against
terrorists who threaten us in such a devastating way?
Mr. President, the aim of this motion to recommit is a simple one. We
want to be sure that our law enforcement officials receive the tools
they need, the tools that will be there for them so that swift and
effective action can be taken to prevent the World Trade Center
explosion, to prevent Oklahoma City, to prevent any future disaster of
that kind. We owe our Federal law enforcement officials that authority,
that capacity, those tools. But the truth is we owe it to ourselves.
They are out there trying to protect us and our families from being
innocent victims of a terrorist. Every counterterrorism expert that I
have ever talked to or ever heard, within the Government and without,
will emphasize the importance of infiltration and surveillance in
countering terrorists and bringing them to justice. Given the
devastating effects of these acts, not only the maiming and death of
men, women, and children, but these acts are assaults on the
institutions of our Government, on the democratic processes which we
cherish, and on our fundamental liberty to move safely and confidently
throughout our society. They create the kind of fear that undercuts the
freedom that we have fought for.
So I do not understand why we would not want to give the law
enforcement officials the same authority to obtain wiretaps when
pursuing terrorists that they have under current law to pursue other
kinds of criminals, and why we do not want to improve their ability to
track all criminals, including terrorists, as they move from phone to
phone and from place to place with the obvious intent of thwarting
surveillance and covering their treacherous, deadly deeds.
Mr. President, finally, I say we need to give the conferees another
chance to strengthen this bill. As I said at the outset, it is a good
bill, but it can and should be a better bill. I fear that, if we do not
include a power like this one, that we are going to come to a day when
we are going to look back and regret it--a terrorist act that will
occur that could have been stopped if law enforcement had this
authority.
I know we want to pass this bill and have the President sign it by
the first anniversary of the Oklahoma City tragedy, but the truth is
that I would rather see us do this right, do it as strongly and
effectively as we can. And if it takes a few more days, so be it. We
have waited this long. We can wait a little longer to protect
ourselves, our society, the institutions of our Government, and the
basic freedom to live and move around in our great country from the
horrible acts of terrorists within our midst.
I thank the Chair. I yield the floor.
Mr. HATCH. Mr. President, how much time remains?
The PRESIDING OFFICER. The Senator from Utah has 15 minutes and the
Senator from Delaware has 1 minute and 54 seconds.
Mr. HATCH. Mr. President, I do not disagree with my two distinguished
colleagues on that side that this might be a useful provision. After
all, I wrote it, and we put it in the Senate bill. I drafted the
multipoint language in the Senate bill. However, since that time, some
have raised, in their eyes, serious questions as to whether this
expanded authority to wiretap American citizens and others is
necessary.
Because of that, we have worked out this bill through a long series
of meetings for over a year, culminating Monday night in a conference
where we put everything in this bill we could possibly get into it. We
brought it very close to what the original Senate bill was. I think it
is a darned good bill. We could not get the other side to agree on this
provision. It comes down to whether we want a bill or we do not.
To this end, because of that, then I insisted we at least put in a
study, a balanced study to look at the excesses of law enforcement with
regard to wiretapping and the needs of law enforcement with regard to
wiretapping and the applications of it. The distinguished Senator from
Connecticut and I both understand how important it is, and so does, of
course, the ranking Democrat on the committee. We will require the
Justice Department to review its law enforcement surveillance needs and
report back to Congress.
On that basis, I just want to say that I am committed to working with
both Senator Biden and Senator Lieberman to craft legislation which
will provide law enforcement with the electronic surveillance
capabilities it needs, wiretap authority it needs. I am going to get
this done one way or the other in an appropriate way, but the study is
important in the eyes of those on the other side. It is important in my
eyes.
I do not want to go into this thing halfcocked, nor do I want to lose
this bill because others feel we may be moving into it halfcocked
without having looked at it in a balanced way. So I will work with both
of my colleagues to craft legislation to provide law enforcement with
whatever wiretap authority, expanded wiretap authority it needs beyond
what it has today. I give my colleagues my assurance that we will move
in this direction with dispatch. I think they both know, when I say
that, I mean it. The truth, however, is that this provision would have
done nothing--and I repeat nothing--to stop the Oklahoma bombing. This
is not antiterrorism legislation that would have been necessary to stop
the Oklahoma bombing. While multipoint wiretaps may be useful in crime
investigation, we simply do not need to put them in this particular
legislation at this time.

Last evening, Israel was bombed in another bombing attack. I
personally do not believe we should wait one more day--knowing that is
going on over there and knowing that we have at least 1,500 known
terrorists and organizations in this Nation, I do not think we should
wait one more day, not one more hour in my book, in voting for final
passage of this bill. We want to assure that terrorist funding is
prohibited and stopped, and this bill goes a long way toward doing
that.
Let me mention for the record the letters of support that we have for
this bill. They are wide ranging and across the political spectrum: The
National Association of Attorneys General, the National Association of
Police Officers, the National District Attorneys Association, the Anti-
Defamation League, Survivors of the Oklahoma Bombing, Citizens for Law
and Order, the International Association of Chiefs of Police, the
National Sheriffs Association, the National Troopers Association, the
Law Enforcement Alliance of America, 34 individual State attorneys
general including the California attorney general, California's
District Attorneys Association, the National Government Association
with regard to the habeas corpus provision, and various Governors, and
so forth. It is okayed by the Governor of Oklahoma, who is a
Republican, Frank Keating, and by the Democrat attorney general, with
whom I have had a great deal of joy working, Drew Edmonson. I have a
lot of respect for him, and he has been willing to work with us to try
to get this done.
Frankly, we do not have a letter, but we do have the verbal support
of AIPAC, and I might say other attorneys general in this country who
have written to us and want to be mentioned. We will put that all in
the Record.
This is important. This bill is important. I know my colleagues know
I am sincere when I say I will find some way of resolving these
multipoint wiretap problems. Unfortunately, they were called roving
wiretaps when they came up, and just that rhetorical term has caused us
some difficulties and has caused some of the people who feel, after
Waco, Ruby Ridge, Good Ol' Boys Roundup, et cetera, that even law
enforcement sometimes is too intrusive into all of our lives, and at
this particular time of the year, at tax time, with the feelings about
the IRS, there are some who literally feel this is going too far and it
will kill this bill if we put it in.
So I will move ahead. We will have the study, but I will move ahead
even while the study is being conducted and do everything I can with my
two colleagues here to get this problem resolved. I intend to do it,
and we will get it done.
I am going to move to table this. I hope folks will vote for the
motion to

[[Page S3438]]

table so that we can continue to preserve this bill and get it done,
quit playing around with it and get it done. I yield the floor.
Mr. BIDEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware has 1 minute 54
seconds remaining.
Mr. BIDEN. Mr. President, if the problem is people misunderstand
because this is a roving wiretap, one thing that will get everybody's
attention is we amend it, send it back, and it will become real clear.
In about 20 minutes of discussion, we can have it back here, and it
will not kill the bill--if that is the reason.
No. 2, in the letter from the chiefs, the president of the
International Association of Chiefs of Police, they do support the bill
but they are very clear. Let me quote. They say:

This legislation does not deal with the ability of law
enforcement to use roving wiretaps or 48-hour wiretaps in the
case of terrorism even though this later type of wiretap is
already authorized in other special situations.

They list what they do not like about the bill. They do not like the
fact that this is not in the bill. They strongly support this wiretap
authority. And if we cannot get it done now in this bill, I
respectfully suggest to my friend that no matter how much he wishes to
fix this, there will be no ability to get it done standing alone.
I yield back whatever seconds I may have remaining.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. The fact is that we have to pass this bill. Frankly, I
think we can get this problem solved. It is kind of a world turned
upside down. When I got here 20 years ago, it was the conservatives who
wanted expanded wiretap authority and the liberals fought it with
everything they had. But now all of a sudden we have the liberals
fighting for wiretap authority and conservatives concerned about it.
The fact is it is not just the rhetoric. There is some sincere
concern on the part of some Members of the House who are crucial to the
passage of this bill about putting this in at this time. I believe we
can resolve this problem in the future, and I will work hard to do it
with my colleagues, but it really cannot be in this bill if we want a
terrorism bill at this time.
I yield back the remainder of my time. On behalf of Senator Dole and
myself, I move to table the motion and ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the motion to
table the motion to recommit. The yeas and nays have been ordered. The
clerk will call the roll.
The legislative clerk called the roll.
Mr. LOTT. I announce that the Senator from Florida [Mr. Mack] is
necessarily absent.
Mr. FORD. I announce that the Senator from Louisiana [Mr. Breaux] is
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
who desire to vote?
The result was announced--yeas 58, nays 40, as follows:

[Rollcall Vote No. 65 Leg.]

YEAS--58

Abraham
Ashcroft
Bennett
Bond
Brown
Bryan
Burns
Campbell
Chafee
Coats
Cochran
Cohen
Coverdell
Craig
D'Amato
DeWine
Dole
Domenici
Dorgan
Faircloth
Feingold
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hatch
Hatfield
Helms
Hutchison
Inhofe
Jeffords
Kassebaum
Kempthorne
Kyl
Lott
Lugar
McCain
McConnell
Murkowski
Nickles
Pressler
Reid
Roth
Santorum
Shelby
Simon
Simpson
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
Wellstone

NAYS--40

Akaka
Baucus
Biden
Bingaman
Boxer
Bradley
Bumpers
Byrd
Conrad
Daschle
Dodd
Exon
Feinstein
Ford
Glenn
Graham
Harkin
Heflin
Hollings
Inouye
Johnston
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Moseley-Braun
Moynihan
Murray
Nunn
Pell
Pryor
Robb
Rockefeller
Sarbanes
Wyden

NOT VOTING--2

Breaux
Mack

So the motion to table the motion to recommit was agreed to.
Mr. MOYNIHAN. I move to reconsider the vote.
Mr. HATCH. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. MOYNIHAN addressed the Chair.
The PRESIDING OFFICER. The Senator from New York.

Motion to Recommit

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

The Senator from New York [Mr. Moynihan] moves to recommit
the conference report on the bill S. 735.

Mr. MOYNIHAN. Mr. President, I ask unanimous consent reading of the
motion be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The text of the motion to recommit is as follows:

Motion to recommit the conference report on the bill S. 735
to the committee of conference with instructions to the
managers on the part of the Senate to disagree to the
conference substitute recommended by the committee of
conference and insist on deleting the following:
``(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.'';

from section 104 of the conference report''.
Mr. MOYNIHAN. 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. MOYNIHAN. Mr. President, the distinguished ranking member and
manager have asked that I yield myself such time as I may require, and
I add with the proviso, as much time as he wishes. I will obviously
yield to him.
The PRESIDING OFFICER. The Senator has 15 minutes.
Mr. MOYNIHAN. Mr. President, this is a proposal to strike an
unprecedented provision--unprecedented until the 104th Congress--to
tamper with the constitutional protection of habeas corpus.
The provision reads:

(d) An application for writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of 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.

We are about to enact a statute which would hold that constitutional
protections do not exist unless they have been unreasonably violated,
an idea that would have confounded the framers. Thus we introduce a
virus that will surely spread throughout our system of laws.
Article I, section 9, clause 2 of the Constitution stipulates, ``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.''
We are at this moment mightily and properly concerned about the
public safety, which is why we have before the Senate the conference
report on the counterterrorism bill. But we have not been invaded, Mr.
President, and the only rebellion at hand appears to be against the
Constitution itself. We are dealing here, sir, with a fundamental
provision of law, one of those essential civil liberties which precede
and are the basis of political liberties.
The writ of habeas corpus is often referred to as the ``Great Writ of
Liberty.'' William Blackstone called it

[[Page S3439]]

``the most celebrated writ in English law, and the great and
efficacious writ in all manner of illegal imprisonment.'' It is at the
very foundation of the legal system designed to safeguard our
liberties.
I repeat what I have said previously here on the Senate floor: If I
had to choose between living in a country with habeas corpus but
without free elections, or a country with free elections but without
habeas corpus, I would choose habeas corpus every time. To say again,
this is one of the fundamental civil liberties on which every
democratic society of the world has built political liberties that have
come subsequently.
I make the point that the abuse of habeas corpus--appeals of capital
sentences--is hugely overstated. A 1995 study by the Department of
Justice's Bureau of Justice Statistics determined that habeas corpus
appeals by death row inmates constitute 1 percent of all Federal habeas
filings. Total habeas filings make up 4 percent of the caseload of
Federal district courts. And most Federal habeas petitions are disposed
of in less than 1 year. The serious delays occur in State courts, which
take an average of 5 years to dispose of habeas petitions. If there is
delay, the delay is with the State courts.
It is troubling that Congress has undertaken to tamper with the Great
Writ in a bill designed to respond to the tragic circumstances of the
Oklahoma City bombing last year. Habeas corpus has little to do with
terrorism. The Oklahoma City bombing was a Federal crime and will be
tried in Federal court.
Nothing in our present circumstance requires the suspension of habeas
corpus, which is the practical effect of the provision in this bill. To
require a Federal court to defer to a State court's judgment unless the
State court's decision is unreasonably wrong effectively precludes
Federal review. I find this disorienting.
Anthony Lewis has written of the habeas provision in this bill: ``It
is a new and remarkable concept in law: that mere wrongness in a
constitutional decision is not to be noticed.'' If we agree to this, to
what will we be agreeing next? I restate Mr. Lewis' observation, a
person of great experience, a long student of the courts, ``It is a new
and remarkable concept in law: that mere wrongness in a constitutional
decision is not to be noticed.'' Backward reels the mind.
On December 8, four United States attorneys general, two Republicans
and two Democrats, all persons with whom I have the honor to be
acquainted, Benjamin R. Civiletti, Jr., Edward H. Levi, Nicholas
Katzenbach, and Elliot Richardson--I served in administrations with Mr.
Levi, Mr. Katzenbach, and Mr. Richardson; I have the deepest regard for
them--wrote President Clinton. I ask unanimous consent that the full
text be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

December 8, 1995.
Hon. William J. Clinton,
The White House,
Washington, DC.
Dear Mr. President: The habeas corpus provisions in the
Senate terrorism bill, which the House will soon take up, are
unconstitutional. Though intended in large part to expedite
the death penalty review process, the litigation and
constitutional rulings will in fact delay and frustrate the
imposition of the death penalty. We strongly urge you to
communicate to the Congress your resolve, and your duty under
the Constitution, to prevent the enactment of such
unconstitutional legislation and the consequent disruption of
so critical a part of our criminal punishment system.
The constitutional infirmities reside in three provisions
of the legislation: one requiring federal courts to defer to
erroneous state court rulings on federal constitutional
matters, one imposing time limits which could operate to
completely bar any federal habeas corpus review at all, and
one preventing the federal courts from hearing the evidence
necessary to decide a federal constitutional question. They
violate the Habeas Corpus Suspension Clause, the judicial
powers of Article III, and due process. None of these
provisions appeared in the bill that you and Senator Biden
worked out in the last Congress together with representatives
of prosecutors' organizations.
The deference requirement would bar any federal court from
granting habeas corpus relief where a state court has
misapplied the United States Constitution, unless the
constitutional error rose to a level of ``unreasonableness.''
The time-limits provisions set a single period for the filing
of both state and federal post-conviction petitions (six
months in a capital case and one year in other cases),
commencing with the date a state conviction becomes final on
direct review. Under these provisions, the entire period
could be consumed in the state process, through no fault of
the prisoner or counsel, thus creating an absolute bar to the
filing of a federal habeas corpus petition. Indeed, the
period could be consumed before counsel had even been
appointed in the state process, so that the inmate would have
no notice of the time limit or the fatal consequences of
consuming all of it before filing a state petition.
Both of these provisions, by flatly barring federal habeas
corpus review under certain circumstances, violate the
Constitution's Suspension Clause, which provides: ``The
privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in the cases of rebellion or invasion
the public safety may require it'' (Art. I, Sec. 9, cl. 1).
Any doubt as to whether this guarantee applies to persons
held in state as well as federal custody was removed by the
passage of the Fourteenth Amendment and by the amendment's
framers' frequent mention of habeas corpus as one of the
privileges and immunities so protected.
The preclusion of access to habeas corpus also violates Due
Process. A measure is subject to proscription under the due
process clause if it ``offends some principle of justice so
rooted in the traditions and conscience of our people as to
be ranked as fundamental,'' as viewed by ``historical
practice.'' Medina v. California, 112 S.Ct. 2572, 2577
(1992). Independent federal court review of the
constitutionality of state criminal judgments has existed
since the founding of the Nation, first by writ of error,
and since 1867 by writ of habeas corpus. Nothing else is
more deeply rooted in America's legal traditions and
conscience. There is no case in which ``a state court's
incorrect legal determination has ever been allowed to
stand because it was reasonable,'' Justice O'Connor found
in Wright v. West, 112 S.Ct. 2482, 2497; ``We have always
held that federal courts, even on habeas, have an
independent obligation to say what the law is.'' Indeed,
Alexander Hamilton argued, in The Federalist No. 84, that
the existence of just two protections--habeas corpus and
the prohibition against ex post facto laws--obviated the
need to add a Bill of Rights to the Constitution.
The deference requirement may also violate the powers
granted to the judiciary under Article III. By stripping the
federal courts of authority to exercise independent judgment
and forcing them to defer to previous judgments made by state
courts, this provision runs afoul of the oldest
constitutional mission of the federal courts: ``the duty . .
. to say what the law is.'' Marbury v. Madison, 5 U.S. (1
Cranch) 137, 177 (1803). Although Congress is free to alter
the federal courts' jurisdiction, it cannot order them how to
interpret the Constitution, or dictate any outcome on the
merits. United States v. Klein, 80 U.S. (13 Wall.) 128
(1871). Earlier this year, the Supreme Court reiterated that
Congress has no power to assign ``rubber stamp work'' to an
Article III court. ``Congress may be free to establish a . .
. scheme that operates without court participation,'' the
Court said, ``but that is a matter quite different from
instructing a court automatically to enter a judgment
pursuant to a decision the court has not authority to
evaluate.'' Gutierrez de Martinez v. Lamagno, 115 S.Ct 2227,
2234.
Finally, in prohibiting evidentiary hearings where the
constitutional issue raised does not go to guilt or
innocence, the legislation again violates Due Process. A
violation of constitutional rights cannot be judged in a
vacuum. The determination of the facts assumes'' and
importance fully as great as the validity of the substantive
rule of law to be applied.'' Wingo v. Wedding, 418 U.S. 461,
474 (1974).
The last time habeas corpus legislation was debated at
length in constitutional terms was in 1968. A bill
substantially eliminating federal habeas corpus review for
state prisoners was defeated because, as Republican Senator
Hugh Scott put it at the end of debate, ``if Congress tampers
with the great writ, its action would have about as much
chance of being held constitutional as the celebrated
celluloid dog chasing the asbestos cat through hell.''
In more recent years, the habeas reform debate has been
viewed as a mere adjunct of the debate over the death
penalty. But when the Senate took up the terrorism bill this
year, Senator Moynihan sought to reconnect with the large
framework of constitutional liberties: ``If I had to live in
a country which had habeas corpus but not free elections,''
he said, ``I would take habeas corpus every time.'' Senator
Chafee noted that his uncle, a Harvard law scholar, has
called habeas corpus ``the most important human rights
provision in the Constitution.'' With the debate back on
constitutional grounds, Senator Biden's amendment to
delete the deference requirement nearly passed, with 46
votes.
We respectfully ask that you insist, first and foremost, on
the preservation of independent federal review, i.e., on the
rejection of any requirement that federal courts defer to
state court judgments on federal constitutional questions. We
also urge that separate time limits be set for filing federal
and state habeas corpus petitions--a modest change which need
not interfere with the setting of strict time limits--and
that they begin to run only upon the appointment of competent
counsel. And we urge that evidentiary hearings be permitted
wherever the factual

[[Page S3440]]

record is deficient on an important constitutional issue.
Congress can either fix the constitutional flaws now, or
wait through several years of litigation and confusion before
being sent back to the drawing board. Ultimately, it is the
public's interest in the prompt and fair disposition of
criminal cases which will suffer. The passage of an
unconstitutional bill helps no one.
We respectfully urge you, as both President and a former
professor of constitutional law, to call upon Congress to
remedy these flaws before sending the terrorism bill to your
desk. We request an opportunity to meet with you personally
to discuss this matter so vital to the future of the Republic
and the liberties we all hold dear.
Sincerely,
Benjamin R. Civiletti, Jr.,
Baltimore, MD.
Edward H. Levi,
Chicago, IL.
Nicholas deB. Katzenbach,
Princeton, NJ.
Elliot L. Richardson,
Washington, DC.

Mr. MOYNIHAN. Mr. President, let me read excerpts from the letter:

The habeas corpus provisions in the Senate bill . . . are
unconstitutional. Though intended in large part to expedite
the death penalty review process, the litigation and
constitutional rulings will in fact delay and frustrate the
imposition of the death penalty . . .
The constitutional infirmities . . . violate the Habeas
Corpus Suspension Clause, the judicial powers of Article III
and due process . . .
. . . A measure is subject to proscription under the due
process clause if it ``offends some principle of justice so
rooted in the traditions and conscience of our people as to
be ranked as fundamental,'' as viewed by ``historical
practice.''

That is Medina versus California, a 1992 decision. To continue,

Independent federal court review of the constitutionality
of state criminal judgments has existed since the founding of
the Nation, first by writ of error, and since 1867 by writ of
habeas corpus.
Nothing else is more deeply rooted in America's legal
traditions and conscience. There is no clause in which ``a
state court's incorrect legal determination has ever been
allowed to stand because it was reasonable.''

That is Justice O'Connor, in Wright versus West. She goes on, as the
attorneys general quote,

We have always held that federal courts, even on habeas,
have an independent obligation to say what the law is.

If I may interpolate, she is repeating the famous injunction of
Justice Marshall in Marbury versus Madison.
The attorneys general go on to say:

Indeed, Alexander Hamilton argued, in The Federalist No.
84, that the existence of just two protections--habeas corpus
and the prohibition against ex post facto laws--obviated the
need to add a Bill of Rights to the Constitution.

The letter from the attorneys general continues, but that is the gist
of it. I might point out that there was, originally, an objection to
ratification of the Constitution, with those objecting arguing that
there had to be a Bill of Rights added. Madison wisely added one during
the first session of the first Congress. But he and Hamilton and Jay,
as authors of the Federalist papers, argued that with habeas corpus and
the prohibition against ex post facto laws in the Constitution, there
would be no need even for a Bill of Rights. We are glad that, in the
end, we do have one. But their case was surely strong, and it was so
felt by the Framers.
To cite Justice O'Connor again:

A state court's incorrect legal determination has never
been allowed to stand because it was reasonable.

Justice O'Connor went on:

We have always held that Federal courts, even on habeas,
have an independent obligation to say what the law is.

Mr. President, we can fix this now. Or, as the attorneys general
state, we can ``wait through several years of litigation and confusion
before being sent back to the drawing board.'' I fear that we will not
fix it now. The last time this bill was before us, there were only
eight Senators who voted against final passage.
We Americans think of ourselves as a new nation. We are not. Of the
countries that existed in 1914, there are only eight which have not had
their form of government changed by violence since then. Only the
United Kingdom goes back to 1787 when the delegates who drafted our
Constitution established this Nation, which continues to exist. In
those other nations, sir, a compelling struggle took place, from the
middle of the 18th century until the middle of the 19th century, and
beyond into the 20th, and even to the end of the 20th in some
countries, to establish those basic civil liberties which are the
foundation of political liberties and, of those, none is so precious as
habeas corpus, the ``Great Writ.''
Here we are trivializing this treasure, putting in jeopardy a
tradition of protection of individual rights by Federal courts that
goes back to our earliest foundation. And the virus will spread. Why
are we in such a rush to amend our Constitution? Eighty-three
amendments have been offered in this Congress alone. Why do we tamper
with provisions as profound to our traditions and liberty as habeas
corpus? The Federal courts do not complain. It may be that if we enact
this, there will be some prisoners who are executed sooner than they
otherwise would have been. You may take satisfaction in that or not, as
you choose, but we will have begun to weaken a tenet of justice at the
very base of our liberties. The virus will spread.
This is new. It is profoundly disturbing. It is terribly dangerous.
If I may have the presumption to join in the judgment of four attorneys
general, Mr. Civiletti, Mr. Levi, Mr. Katzenbach, and Mr. Richardson--
and I repeat that I have served in administrations with three of them--
this matter is unconstitutional and should be stricken from this
measure.
Fourteen years ago, June 6, 1982, to be precise, I gave the
commencement address at St. John University Law School in Brooklyn. I
spoke of the proliferation of court-curbing bills, at that time, but
what I said is, I feel, relevant to today's discussion. I remarked,

. . . some people--indeed, a great many people--have
decided that they do not agree with the Supreme Court and
that they are not satisfied to Debate, Legislate, Litigate.
They have embarked upon an altogether new and I believe
quite dangerous course of action. A new triumvirate hierarchy
has emerged. Convene (meaning the calling of a constitutional
convention), Overrule (the passage of legislation designed
to overrule a particular Court ruling, when the Court's
ruling was based on an interpretation of the
Constitution), and Restrict (to restrict the jurisdiction
of certain courts to decide particular kinds of cases).
Perhaps the most pernicious of these is the attempt to
restrict courts' jurisdictions, for it is . . . profoundly at
odds with our nation's customs and political philosophy.
It is a commonplace that our democracy is characterized by
majority rule and minority rights. Our Constitution vests
majority rule in the Congress and the President while the
courts protect the rights of the minority.
While the legislature makes the laws, and the executive
enforces them, it is the courts that tell us what the laws
say and whether they conform to the Constitution.
This notion of judicial review has been part of our
heritage for nearly two hundred years. There is not a more
famous case in American jurisprudence than Marbury v. Madison
and few more famous dicta than Chief Justice Marshall's that
It is emphatically the province and the duty of the
judicial department to say what the law is.
But in order for the court to interpret the law, it must
decide cases. If it cannot hear certain cases, then it cannot
protect certain rights.

Mr. President, I am going to ask unanimous consent that a number of
materials appear in the Record following my remarks. I apologize for
the length, but if we are going to trifle with the Great Writ of
Liberty, the record needs to be complete. The materials are as follows:
a May 23, 1995 letter from the Emergency Committee to Save Habeas
Corpus to the President and a one-page attachment; a June 1, 1995
letter from the Emergency Committee to me; a March 13, 1996 New York
Times editorial entitled, ``The Wrong Answer to Terrorism''; an April
8, 1996 Times editorial entitled, ``Grave Trouble for the Great Writ'';
three Anthony Lewis op-eds which appeared in the Times on July 7, 1995,
December 8, 1995, and April 15, 1996 entitled ``Mr. Clinton's
Betrayal'', Is It A Zeal To Kill?'', and ``Stand Up For Liberty'',
respectively; and the third paragraph of the March 12, 1996 ``Statement
of Administration Policy'' concerning H.R. 2703--the House version of
the counter-terrorism bill--which reads, in part: ``H.R. 2703 would
establish a standard of review for Federal courts on constitutional
issues that is excessively narrow and subject to potentially
meritorious constitutional challenge.''
Mr. President, I ask unanimous consent that these materials be
printed in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S3441]]

(See exhibit 1.)
Mr. MOYNIHAN. Mr. President, we need to deal resolutely with
terrorism. And we will. But if, in the guise of combating terrorism, we
diminish the fundamental civil liberties that Americans have enjoyed
for two centuries, then the terrorists will have won. With deep regret,
but with a clear conscience, I will vote against the conference report
to S. 735 as now presented.

Exhibit 1

Emergency Committee To

Save Habeas Corpus,

May 23, 1995.
The President,
The White House,
Washington, DC.
Dear Mr. President: We understand that the Senate may act,
as soon as tomorrow, 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
``unreasonable'' incorrect. This is a variation of the
proposal by the Reagan and Bush administrations 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 adjudication.''
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 substantially
diminished.
The habeas corpus reform bill you and Senator Biden
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 principle 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. We in the Emergency
Committee have fought against proposals to strip the federal
courts of power to correct unconstitutional state court
actions, alongside other distinguished groups such as the
NAACP Legal Defense Fund, the Southern Christian Leadership
Conference, the American Bar Association, former prosecutors,
and the committee chaired by Justice Powell on which all
subsequent reform proposals have been based. We have met with
Attorney General Reno, testified in Congress, and
successfully argued in the Supreme Court against the adoption
of a deference standard, in Wright v. West.
We hope you will use the power of your office to ensure
that the worthwhile goal of streamlining the review of
criminal cases is accomplished without diminishing
constitutional liberties. If it would be helpful, we would be
pleased to meet with you to discuss this vitally important
matter personally.
Sincerely,
Benjamin Civiletti.
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 Chairmen Biden
and Brooks
``Racial distinctions are evident in every aspect of the
process that leads to execution. . . . [W]e fervently 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 Rehnquist to adopt a standard of deference to
state courts on federal constitutional matters.
____

Emergency Committee To

Save Habeas Corpus,

June 1, 1995.
Hon. Daniel Patrick Moynihan,
Senate Russell 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 hebeas
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 hebeas 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
principle 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 hebeas 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.
Edward H. Levi.
Nicholas DeB. Katzenbach.
Elliot L. Richardson.
____

[From the New York Times, Mar. 13, 1996.]

The Wrong Answer to Terrorism

With the first anniversary of the Oklahoma City bombing
approaching next month, Congress and the White House are
pressing to complete action on new antiterrorism legislation.
In haste to demonstrate their resolve in an election year,
President Clinton and lawmakers from both parties are ready
to approve steps that would dangerously erode American
liberties. Combating terrorism is vitally important, but it
should not threaten long-established rights of privacy, free
speech and due process.
Last June the Senate rashly passed the Comprehensive
Terrorism Protection Act of 1995. The bill contained some
reasonable measures, including an increase in F.B.I. staff
and revisions in Federal law that would make it easier to
trace bombs and impose harsher penalties for dealing in
explosives.
But the legislation also authorized intrusive new
surveillance powers for law enforcement agencies, crackdown
on suspect aliens

[[Page S3442]]

and an ill-advised blurring of the line between military and
police forces. To assure passage, Mr. Clinton unwisely agreed
to withdraw his objections to incorporating a change in
habeas corpus standards that would limit death row appeals in
Federal courts.
A corresponding bill under consideration in the House this
week does not include some of the most troubling Senate
provisions, including the expanded role for military forces
in domestic law enforcement. But House members who take their
constitutional vows seriously should eliminate or modify
other damaging provisions in the bill.
Among other dubious steps, the House bill would grant the
Secretary of State expansive authority to brand foreign
groups and their domestic affiliates as terrorists, thereby
making it a crime for Americans to support the group's
activities, even if they are perfectly legal. Members of
designated terrorist groups would be barred from entering the
country to speak, reviving a discredited practice that was
discarded in 1990 with repeal of the McCarthy-era McCarran-
Walter Act.
Under the House legislation, the Attorney General would be
given unchecked authority to elevate ordinary state and
Federal crimes to acts of terrorism, carrying sentences
ranging up to death. The F.B.I., which already has ample
authority to pursue terrorists, would get new powers to
obtain phone and travel records without having to establish
that a suspect seemed to be engaging in criminal activity.
Government wiretap authority would be expanded, with reduced
judicial oversight.
The proposed change in habeas corpus would undermine the
historic role of the Federal courts in correcting
unconstitutional state court convictions and sentences. If
Congress is determined to make this alteration, it should at
least address the question separately and carefully, rather
than tagging it onto an antiterrorism bill.
These objectionable measures are not included in a
promising alternative bill proposed by three Democratic
representatives--John Conyers Jr. of Michigan, Jerrold Nadler
of New York and Howard Berman of California.
Americans were shaken and angered by the explosion that
shattered the Federal building in Oklahoma City and killed
169 people. Congress is right to give Federal law enforcement
agencies more money and manpower. Diminishing American
liberties is not the solution to terrorism.
____

[From the New York Times, Apr. 8, 1996]

Grave Trouble for the Great Writ

Members of Congress are exploiting public concerns about
terrorism to threaten basic civil liberties. Of these, not
one is more precious than the writ of habeas corpus--the
venerable Great Writ devised by English judges to guard
against arbitrary imprisonment and, in modern terms, a vital
shield against unfair trials.
Both the House and Senate have voted to weaken the modern
version of habeas corpus beyond recognition. Invading the
province of the independent Federal judiciary, their
proposals would forbid judges from rendering their own
findings of fact and law, virtually instructing the judges to
decide cases against the petitioning prisoner. President
Clinton, who has waffled on the issue, needs to warn Congress
that he will not sign this unconstitutional measure just to
get a terrorism law.
The writ has long been available in America to tell
sheriffs and wardens to ``produce the body'' of the prisoner
and justify the jailing in court. Congress applied the habeas
corpus power in 1867 to give Federal district courts the
power to review state criminal convictions. Since then,
judges have set aside many sentences of prisoners who failed
to receive fair trials, including some condemned to die
because prosecutors concealed evidence of their innocence.
The antiterrorism bills contain provisions that would
accelerate the executions of condemned prisoners, at great
risk to their fundamental rights. These provisions have
survived Congressional debate even though other provisions
that might actually have done something about terrorism--
banning bullets that pierce police vests and tagging
explosives to enable law enforcement to trace terrorist
bombs--were scrapped on the House floor.
The most pernicious legal change would instruct Federal
judges that they are bound by state court findings when
determining the fairness of a prisoner's criminal trial. Only
when those findings are ``unreasonable'' or flatly contradict
clearly announced Supreme Court rulings can the Federal court
overturn them. State courts rarely disobey the high court
openly. But they still make serious mistakes. Federal judges
have often found state court judgments woefully sloppy though
masked in neutral language the new proposals would insulate
from review.
A Supreme Court case from last year makes the point. By a
distressingly thin 5-to-4 margin, the Court set aside the
death sentence of a man whose murder conviction rested on the
word of an informant whose potential motives for falsely
accusing him were known to the police but concealed from the
defense. The condemned man's conviction survived many layers
of state and Federal judicial review before reaching the
Supreme Court. Under the proposal in Congress, the defendant,
instead of getting a new trial, would get the chair.
By essentially telling independent Federal judges how to
decide cases, the bill unconstitutionally infringes on the
jurisdiction of a coordinate branch of government and
potentially violates the Constitution's stricture that the
writ of habeas corpus shall not be suspended except in time
of war or dire emergency. It also includes unrealistic
deadlines for filing court petitions and undue restraints on
legal resources available to prisoners. Unless a Senate-House
conference committee can disentangle habeas corpus from
terrorism, Mr. Clinton has a duty to warn that he will veto
the entire package.
____

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

Mr. Clinton's Betrayal

(By Anthony Lewis)

Boston.--For Bill Clinton's natural supporters, the most
painful realization of his Presidency is that he is a man
without a bottom line. He may abandon any seeming belief, any
principle. You cannot rely on him.
There is a telling example to hand. As the Senate debated a
counterterrorism bill last month, Mr. Clinton changed his
position on the power of Federal courts to issue writs of
habeas corpus. The Senate then approved a provision that may
effectively eliminate that power.
The issue may sound legalistic, but habeas corpus has been
the great historic remedy for injustice. By the Great Writ,
as it is called, Federal courts have set aside the
convictions of state prisoners because they were tortured
into confessing or convicted by other unconstitutional means.
In recent years conservatives in Congress have attacked the
habeas corpus process because it delays the execution of
state prisoners on death row. Some prisoners do file
frivolous petitions. But in other cases conservative Federal
judges have found grave violations of constitutional rights--
ones not found in state courts, often because the defendants
had such incompetent lawyers.
After the Oklahoma City bombing, Senate Republicans decided
to attach a crippling habeas provision to the
counterterrorism bill. On May 23 four former Attorneys
General, Democrats and Republicans--Benjamin Civiletti,
Nicholas deB. Katzenbach, Edward H. Levi and Elliot L.
Richardson--wrote President Clinton urging him to oppose it.
``It is vital,'' they wrote, ``to insure that habeas
corpus--the means by which all civil liberties are enforced--
is not substantively diminished.
. . . 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
insuring the rights of all law-abiding citizens.''
Two days later President Clinton wrote the Senate majority
leader, Bob Dole, to say that he favored habeas corpus reform
so long as it preserved ``the historic right to meaningful
Federal review.'' The issue should be addressed later, he
said, not in the counterterrorism bill.
Then, on June 5, Mr. Clinton appeared on television on
CNN's ``Larry King Live.'' Asked about habeas corpus, he said
reform ``ought to be done in the context of this terrorism
legislation.''
It was a complete switch from his position of less than two
weeks before. And it had the effect of undermining Senate
supporters of habeas corpus.
Two days later the Senate approved the Republican measure.
The House has also passed stringent restrictions on habeas
corpus, so almost certainly there will be legislation putting
a drastic crimp on the historic writ.
The Senate bill says that no Federal court may grant habeas
corpus to a state prisoner if state courts had decided his or
her claim on the merits--unless the state decision was
``contrary to, or involved an unreasonable application of''
Federal constitutional law as determined by the Supreme
Court.
That language seems to mean that Federal judges must
overlook even incorrect state rulings on constitutional
claims, so long as they are not ``unreasonably'' incorrect.
It is a new and remarkable concept in law; that mere
wrongness in a constitutional decision is not to be noticed.
Experts in the field say the provision may effectively
eliminate Federal habeas corpus. It signals Federal judges to
stay their hands. And what Federal judge will want to say
that his state colleagues have been not just wrong but
``unreasonable''?
The President explained to Larry King that attaching the
habeas corpus provision to the counterterrorism bill would
speed proceedings in the prosecutions brought over the
Oklahoma bombing. But those are Federal prosecutions, not
covered by this bill.
No, the reason for President Clinton's turnabout is clear
enough. He thinks there is political mileage in looking tough
on crime. Compared with that, the Great Writ is unimportant.
In 1953 Justice Hugo L. Black wrote: ``It is never too late
for courts in habeas corpus proceedings . . . to prevent
forfeiture of life or liberty in flagrant defiance of the
Constitution.'' Now, thanks to Bill Clinton and the
Republicans in Congress, it may be.
____

[From the New York Times, Dec. 8, 1995]

Is It a Zeal To Kill?

(By Anthony Lewis)

An Illinois man who had been on death row for 11 years,
Orlando Cruz, had a new trial last month and was acquitted of
murder. The

[[Page S3443]]

record, including police perjury, was so rank that the
Justice Department has begun investigating possible civil
rights violations.
In the last 20 years, 54 Americans under sentence of death
have been released from prison because of evidence of their
innocence. In an important pending case, a U.S. Court of
Appeals has scheduled a hearing for Paris Carriger, an
Arizona death row inmate who some usually skeptical
criminologists believe is probably innocent.
Congress is now preparing to deal with the fact that
innocent men and women are occasionally sentenced to death in
this country. Congress's answer is: Execute them anyway,
guilty or innocent.
That result will follow, inevitably, from legislation that
is heading for the floor of the House and has already passed
the Senate. It would limit Federal habeas corpus, the legal
procedure by which state prisoners can go to Federal courts
to argue that they were unconstitutionally convicted or
sentenced.
Federal habeas corpus has played a crucial part in saving
wrongly convicted men and women from execution. One reason is
that state judges, most of them elected, want to look
strongly in favor of capital punishment. For example, Alabama
judges have rejected 47 jury recommendations for life
sentences, imposing death instead, while reducing jury death
sentences to life only 5 times.
The habeas corpus restrictions moving through Congress
would increase the chance of an innocent person being
executed in two main ways.
The first deals with the right to bring in newly discovered
evidence of innocence in a fresh habeas corpus petition.
There are legal rules against successive petitions, but there
is an escape hatch for genuine evidence of innocence.
Today a prisoner is entitled to a habeas corpus hearing,
despite the rules against repeated petitions, if his new
evidence makes it ``more likely than not that no reasonable
juror would have convicted him.'' The pending legislation
would change the ``more likely'' standard to the far more
demanding one of ``clear and convincing evidence.''
Second, the legislation as passed by the Senate raises a
new obstacle. Federal courts would be forbidden to grant
habeas corpus if a claim had been decided by state courts--
unless the state decision was ``an arbitrary or
unreasonable'' interpretation of established Federal
constitutional law.
Apparently, a Federal judge could not free a probably
innocent state prisoner if he had been convicted as the
result of a state court constitutional ruling that was merely
wrong. It would have to be ``unreasonably'' wrong--a
remarkable new concept.
Why would members of Congress want to increase the chances
of innocent men and women being gassed or electrocuted or
given lethal injections? Perhaps I am naive, but I find that
difficult to understand.
The country's agitated mood about crime, fed by demagogic
politicians, makes Congress--and Presidents--want to look
tough on crime. One result is zeal for the death penalty.
But that cannot explain a zeal to cut off newly discovered
evidence of a prisoner's likely innocence and execute him,
guilty or innocent. Can our political leaders really be so
cynical that they put the tactical advantage of looking tough
on crime ahead of an innocent human life?
It is a question for, among others, Senator Orrin Hatch and
Representative Henry Hyde, chairmen of the Senate and House
Judiciary Committees. Whatever their political outlook, I
have never thought them indifferent to claims of humanity.
President Clinton must also face the reality of what this
legislation would do. Last May he wrote Senator Bob Dole that
he favored habeas corpus reform so long as it preserved ``the
historic right to meaningful Federal review.'' He opposed
adding a habeas corpus provision to counterterrorism
legislation--but a few days later he abandoned that position.
In the House the clampdown on habeas corpus is going to be
part of a counterterrorism bill coming out of the Judiciary
Committee. The bill has many other problems, of fairness and
free speech. But the attack on habeas corpus is a question of
life and death.
____

[From the New York Times, Apr. 15, 1996]

Stand Up for Liberty

(By Anthony Lewis)

Washington.--In one significant respect, Bill Clinton's
Presidency has been a surprising disappointment and a
grievous one. That is in his record on civil liberties.
This week Congress is likely to finish work on legislation
gutting Federal habeas corpus, the historic power of Federal
courts to look into the constitutionality of state criminal
proceedings. Innocent men and women, convicted of murder in
flawed trials, will be executed if that protection is gone.
And President Clinton made it possible. With a nod and a
wink, he allowed the habeas corpus measure to be attached to
a counterterrorism bill that he wanted--a bill that has
nothing to do with state prosecutions.
House and Senate conferees are likely to finish work on the
terrorism bill this week, and both houses to act on it. Last
week Attorney General Janet Reno sent a long letter to the
conferees. Reading it, one is struck by how insensitive the
Clinton Administration is to one after another long-
established principle of civil liberties.
The letter demands, for example, that the Government be
given power to deport aliens as suspected terrorists without
letting them see the evidence against them--arguing for even
harsher secrecy provisions than ones the House struck from
the bill last month. It says there is no constitutional
right to see the evidence in deportation proceedings,
though the Supreme Court has held that there is.
Ms. Reno denounces the House for rejecting a Clinton
proposal that the Attorney General be allowed to convert an
ordinary crime into ``terrorism'' by certifying that it
transcended national boundaries and was intended to coerce a
government. Instead, in the House bill, the Government would
have to prove those charges to a judge and jury--a burden the
Clinton Administration does not want to bear.
The Reno letter objects to ``terrorists'' being given
rights. But that assumes guilt. The whole idea of our
constitutional system is that people should have a fair
chance to answer charges before they are convicted. Does
Janet Reno think we should ignore the Fourth and Fifth and
Sixth Amendments because they protect ``criminals''? Does
Bill Clinton?
Even before the terrorism bill, with its habeas corpus and
numerous other repressive provisions, the Administration had
shown a cavalier disregard for civil liberties. The Clinton
record is bleak, for example, in the area of privacy.
President Clinton supported the F.B.I.'s demands for
legislation requiring that new digital telephone technology
be shaped to assure easy access for government eavesdroppers.
That legislation passed, and then the Administration asked
for broader wiretap authority in the counterterrorism bill.
(That is one proposal Congress seems unwilling to
swallow.)
The President also supported intrusive F.B.I. demands for
ways to penetrate methods used by businesses and individuals
to assure the privacy of their communications. He called for
all encryption methods to have a decoder key to which law-
enforcement officials would have access.
Recently Mr. Clinton issued an executive order authorizing
physical searches without a court order to get suspected
foreign intelligence information. That is an extraordinary
assertion of power, without legislation, to override the
Constitution's protection of individuals' privacy.
He has also called for a national identity card, which
people would have to provide on seeking a job to prove they
are not illegal aliens. That idea is opposed by many
conservatives and liberals as a step toward an authoritarian
state.
Beyond the particular issues, Mr. Clinton has failed as an
educator. He has utterly failed to articulate the reasons why
Americans should care about civil liberties: the reasons of
history and of our deepest values. This country was born,
after all, in a struggle for those liberties.
His record is so disappointing because he knows better. Why
has he been so insensitive to the claims of liberty?
The answer is politics: politics of a narrow and dubious
kind. The President wants to look tough on terrorism and
aliens and crime. So he demands action where there is no need
or public demand. Without his push, the excesses of the
terrorism bill would have no meaningful constituency.
He would do better for himself, as for the country, if he
stood up for our liberties. And there is history. Does Bill
Clinton really want to be remembered as the President who
sold out habeas corpus?
____

Excerpt From Statement of Administration Policy

Finally, H.R. 2703 contains provisions to reform Federal
habeas corpus procedures. The Administration has consistently
and strongly supported habeas corpus reform in order to
assure that criminal offenders receive swift and certain
punishment. Indeed, the Administration believes that the bill
could be improved to provide additional guarantees that
offenders have only ``one bite at the apple'' and complete
the process even more expeditiously. These further
limitations should be accompanied by necessary changes in the
scope of review afforded to such petitions. H.R. 2703 would
establish a standard of review for Federal courts on
constitutional issues that is excessively narrow and subject
to potentially meritorious constitutional challenges. To
achieve the twin goals of finality and fairness. H.R. 2703
should shorten the duration and reduce the number of reviews
for each criminal conviction while preserving the full scope
of habeas review so that it can continue to serve its
historic function as the last protection against wrongful
conviction. The Administration hopes to work with the House
and the conferees to achieve these ends.

Mr. DOLE. Mr. President, is leader time reserved?
The PRESIDING OFFICER. Yes.

____________________