[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:

       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 inserting the following:

     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:

       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 inserting the following:

     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.

                          ____________________