[Congressional Record Volume 142, Number 56 (Monday, April 29, 1996)]
[Senate]
[Pages S4363-S4365]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      THE TERRORISM PREVENTION ACT

 Mr. ABRAHAM. Mr. President, I rise to make a few remarks 
concerning the recently-passed Terrorism Prevention Act. I was actively 
involved in working out the version of the bill that passed the Senate 
last year. However, I was not a conferee in the negotiations between 
the House and the Senate that produced the final version that was 
enacted into law last week. Recognizing how difficult it can be to 
reach agreement among a majority of one hundred Senators, I appreciate 
the daunting task of attaining agreement between not only the two 
congressional bodies, but also between Congress and the President, 
especially on such an important piece of legislation as the Terrorism 
Prevention Act.
  Nevertheless, I do want to note that in my view, while the final 
version contains provisions that make the bill one of this Congress's 
proudest accomplishments, it also contains other provisions included at 
the insistence of the Administration that have rightly raised serious 
concerns among serious people from all across the political spectrum.
  Violent acts against American citizens, whether for political reasons 
or otherwise, cannot be tolerated. But for too long, our criminal 
justice system has been excessively solicitous of the rights of violent 
criminals whose guilt is not in doubt.
  This must stop. The Terrorism Prevention Act's habeas corpus reforms 
will play an important role in stopping it by preventing prisoners on 
death row from gaming our legal system with countless appeals. So, too, 
will its provisions limiting the ability of non-citizens who have 
committed serious crimes in this country to avoid deportation by filing 
countless meritless court challenges to deportation orders.
  At the same time, it is also important that we do not let the 
pendulum swing too far in the other direction and trample on the civil 
rights of those who have committed no crime. Other provisions in the 
Terrorism Prevention Act that were included at the insistence of 
President Clinton will restrict fundraising for organizations suspected 
but not proven to be terrorist on the basis of secret evidence. These, 
I believe, present a serious risk of jeopardizing the freedoms of all 
Americans. I would like to discuss both types of provisions.
  I was delighted, though admittedly confused when, in the wake of the 
Oklahoma City bombing, President Clinton stated that the perpetrators 
of that bombing would be brought to swift and certain justice. As the 
victims of any type of crime in this country know, and apparently know 
better than the President himself, our criminal justice system in its 
present form makes ``swift and certain'' justice for criminals all but 
impossible.
  Instead, convicted criminals--murderers, child molesters, and 
thieves--have been able to game the system for far too long. The 
parents of children who have been molested and murdered and the 
families of other murder victims many of whom were tortured or raped 
before they were killed have had to wait year after year as their 
child's murderer appeals a capital sentence time and time again--not on 
grounds of innocence but because their trials were not perfect. And 
sometimes the attackers have been released by courts more concerned 
about the technical rights of criminals than the need to see that the 
law is carried out and justice served.
  Swift and certain justice has not been possible in this country, not 
for common criminals and not for the perpetrators of terrorist acts, 
because of the endless appeals permitted by the habeas corpus 
procedures enacted by Congress. As Senator Hatch has recently noted, 
there were about 2,976 inmates on death row in 1995. Yet, the States 
have executed only 263 of these convicted killers since 1973. Habeas 
appeals alone make up 40 percent of the total delay from sentence to 
execution.
  The notorious case of Robert Alton Harris demonstrates rather vividly 
where the vices in our present criminal justice system lead. Harris 
killed his first victim in 1975. In a savage attack that included hours 
of torture, Harris beat his next-door neighbor to death. He was 
convicted of manslaughter and sentenced to prison. Even in prison, his 
uncontrollable violence was said to make him a danger to the other 
inmates.
  Six months after he was paroled, Harris abducted two high school 
sophomores as they sat eating hamburgers in a car. He drove them to a 
wooded area and shot them to death, chasing one of the boys through the 
woods and gunning him down as he crouched in the bushes screaming for 
his life. Harris then returned to the first victim and shot him again. 
Over that boy's dead body, Harris sat down and finished the boys' half-
eaten hamburgers.
  Harris did not deny his guilt, but in fact admitted the murders in 
open court. He explained he had murdered the boys because he needed 
their car to commit a bank robbery--the crime for which he had 
originally been arrested. He was given the death penalty by a jury on 
March 6, 1979. Thirteen years passed before the jury's verdict was 
carried out and Harris was finally executed.
  During those 13 years--the years when his teenage victims could have 
been completing college, starting jobs, getting married, and having 
children--Harris filed 10 habeas corpus petitions with the State courts 
and 6 habeas corpus petitions with the Federal courts. The boys' 
parents were notified of five execution dates, four of which were 
canceled by the courts. But for Harris' habeas petitions, he could have 
been executed as early as October 1981, after review by the California 
Supreme Court and further review by the U.S. Supreme Court.
  Reform of our habeas corpus system has been needed, and needed badly, 
for several decades now.
  The Oklahoma City bombing finally provided the clarion call that made 
it possible for the Republican majority, with President Clinton's 
reluctant acquiescence, and over stiff resistance by a majority of the 
Democrats, to enact reforms to this legal quagmire. These reforms are 
long, long overdue.
  At last, because of the Terrorism Prevention Act, the limitless 
opportunities for the Federal judiciary to overturn criminal 
convictions will come to an end. And at last, State courts will be 
allowed to enforce capital sentences against convicted murderers 
without the Federal courts granting repetitive hearings that have 
allowed death row prisoners to languish in prison for a decade or more.
  The habeas corpus reforms may well be the single most important 
legislation that this Congress has passed. If the Terrorism Prevention 
Act had no other provisions to recommend it, I would have voted for the 
act for its habeas corpus reforms.
  Also praiseworthy are the provisions that address the serious problem 
this country has with deporting criminal aliens. Though officially 
designated ``criminal aliens'' rather than ``terrorists,'' as far as I 
am concerned, noncitizens who commit violent, felonious acts against 
American citizens are resident terrorists, irrespective of their 
official designation. Indeed, according to the FBI, alien terrorists 
have been responsible for exactly two terrorist incidents in the United 
States in the last 11 years: the World Trade Center bombing and a 
trespassing incident at the Iranian Mission to the United Nations.
  Meanwhile, more than 50,000 crimes have been committed by aliens in 
this

[[Page S4364]]

country recently enough that the perpetrators are still incarcerated in 
State and Federal prisons right now.
  Noncitizens in this country who are convicted of committing serious 
crimes are deportable and should be deported. These are not 
``suspected'' criminals or members of secretly designated terrorist 
groups: These are convicted felons. And there are about half a million 
of them currently residing on U.S. soil.
  The reason these criminal aliens are here, despite their 
deportability under U.S. law, is that they are able to manipulate our 
immigration laws by requesting endless review of their orders of 
deportation. Exactly as in the habeas corpus context, these are 
convicted criminals obstructing the operation of law by abusing unduly 
generous provisions of judicial and administrative review. As long, as 
a petition for review is pending, they cannot be deported. Thus, at 
present, aliens who are convicted felons are deported at a rate of 
about 4 percent a year.
  The case of Lyonel Dor is typical. Lyonel Dor, a citizen of Haiti, 
entered the United States illegally in 1972. This alone made him 
deportable as an illegal alien. Six years later he participated in the 
murder of his aunt. For this, he was convicted of first degree 
manslaughter and served 6\1/2\ years in prison. This made him doubly 
deportable, since aliens who commit crimes of violence in the United 
States are deportable even if they were here legally in the first 
place.

  Accordingly, Dor was ordered deported in March 1985 following a full 
administrative hearing on whether such an order should be entered. At 
that hearing, Dor conceded deportability. He took no direct 
administrative appeal from the March 1985 order, although he would have 
been entitled to do so.
  Nevertheless, as of late 1989, Dor had not been deported.
  Instead, he remained in this country, requesting and receiving 
unending additional collateral administrative review and judicial 
review of his order of deportation, tying up the courts and the INS for 
more than 5 years after completing his criminal sentence. As of today, 
April 29, 1996, I do not know whether Lyonel Dor has ever deported, or 
whether he is still in this country requesting more review.
  According to court documents described in the 1989 case, since 
arriving in this country illegally, Dor received the attention of a 
total of 14 administrative processes and 6 judicial processes, 
including the criminal proceedings on his participation in the murder 
of his aunt. The deportation effort alone for this illegal immigrant 
and convicted murderer entailed 13 administrative proceedings and 4 
judicial proceedings. In two of the four judicial proceedings, Federal 
courts directed that Dor not be deported until the order of deportation 
could be further subject to yet more review.
  In this Act, as well as in the illegal immigration bill, I have 
strongly promoted legal reforms that will put an end to such 
absurdities. The Terrorism Prevention Act contains some of these 
provisions, including important reforms that will place some 
constraints on the almost limitless opportunities for criminal aliens 
to delay their deportations.
  In particular, without touching in any way any direct appeal an alien 
may have in connection with his underlying criminal conviction, it 
denies judicial review of orders of deportation entered against 
criminal aliens, eliminates certain grounds for administrative review 
of the orders of deportation entered against criminal aliens, and 
requires the Attorney General to deport criminal aliens with 30 days of 
the final order of deportation. I should add that during the Judiciary 
Committee markup of the pending illegal immigration bill, S. 1664, I 
proposed amendments to that legislation that will make additional 
reforms, and I am pleased to say that they were adopted and form a part 
of the bill now before Congress.
  On the other hand, there are other provisions in this act that I 
believe could be construed as being insufficiently attentive to civil 
liberties. I say this as one who is aware that cries of civil liberties 
violations can easily deteriorate into crying wolf when no wolf is 
anywhere in the neighborhood, and that it is therefore doubly important 
to be sure such concerns are legitimate so as not to dull the American 
people's vigilance against governmental excess. Nevertheless, I believe 
in this instance there are legitimate grounds for concern.
  The provisions that most concern me regard not convicted criminals, 
but, at least theoretically, the wholly innocent. These are the 
provisions of the act that will criminalize certain fundraising 
activities.
  The fundraising provisions have a long history to which the 
Conference Report provided an unsatisfactory conclusion. The 
fundraising proposals in the bill originally sent to Congress by the 
President had been quite controversial. Indeed, Senators and citizens 
of all political persuasions--Democrats and Republicans, liberals and 
conservatives--were concerned that in seeking to punish the guilty 
these provisions went too far in endangering the rights of the 
innocent. Obviously, this will always be a difficult balance to strike.
  But these proposals would have given a President unilateral 
authority, on the basis of secret evidence and without judicial review, 
to make it a crime to contribute money to any organization--domestic or 
foreign, charitable or political--designated by the President as 
belonging on a ``terrorist'' list.

  It is not difficult to imagine how such a provision would invite 
abuse.
  People with a grievance against any organization could claim that 
some charitable or religious organization they didn't like was a 
terrorist organization. The accused organization could then be 
designated a ``terrorist'' organization without being provided any 
information about the basis on which it was being so charged or 
afforded an opportunity to contest the designation.
  History teaches us that star chamber proceedings of this type present 
grave risks of error and injustice.
  At the hearings on the bill, concerns about these provisions and 
their constitutional implications were raised by a number of Senators, 
including Senator Specter and myself, as well as the American Civil 
Liberties Union and the American Jewish Committee.
  After a great deal of discussion and negotiation, the Senate bill 
made a number of revisions. These included additions to the fundraising 
provisions that would make the designation of an organization subject 
to the traditional legal safeguards: review by a neutral court, and 
maximum disclosure to the accused organization of the information 
against it--consistent with national security interests and the safety 
of those providing the information.
  The provisions in the Senate bill may not have been perfect. Indeed, 
both the New York Times and USA Today subsequently editorialized that 
many of these provisions still posed risks to civil liberties, even as 
toned down in the Senate bill. There was, no doubt, room for 
improvement. But instead of providing more protections for the secretly 
accused organizations, the Conference Report seems to provide fewer.
  For example, whereas the Senate bill provided for full judicial 
review of the designation of an organization as ``terrorist'', the act 
that emerged from conference provides only for limited review on the 
administrative record. That means that the findings of fact of the 
administrative officer will receive some degree of deference by the 
reviewing court. More seriously still, it permits an organization to be 
designated as ``terrorist'' in the administrative proceeding entirely 
on the basis of classified information. Under the terms of the bill, 
that material can remain secret from the designated organization or any 
of its representatives throughout both the administrative and judicial 
process.
  Despite the serious consequences that flow from such a designation, 
the Conference Report nowhere expressly provides for any disclosure of 
summaries or partial disclosure of the secret information to the 
accused organization, even though the necessity for such a total 
blackout may often be wanting. While the courts may well find such 
Congressional silence insufficient to infer an intent to bar the 
maximum disclosure possible, in light of our country's historical 
distrust of secret proceedings, I believe Congress should have made 
express provision for such disclosure.
  To a lesser degree I believe the procedures established by this 
legislation for removing aliens suspected of being terrorists on the 
basis of classified information are open to similar criticism.

[[Page S4365]]

 Although these provisions at least require some form of summary, in my 
view they strike the balance between the alien and the Government less 
carefully and less fairly than the Senate version of the bill.
  The fight against terrorism and all criminal acts against Americans 
must be conducted vigorously, relentlessly, and in a manner that 
respects basic civil liberties. I believe the fundraising and alien 
terrorist removal provisions are one area in which the Terrorism 
Prevention Act could have been improved by not leaving civil liberties 
protections to the Executive and Judicial branches. I would have 
preferred for the act to have to have expressly provided for disclosure 
of the secret information to the maximum extent possible.
  It is my hope that despite the administration's insensitivity to 
these concerns and its insistence on including these provisions in 
their current objectionable form, during the legislative process, the 
executive branch will be sensitive to the questionable 
constitutionality of these provisions when it turns to enforcing them 
and will take great care in their use. Should it fail to do so, I would 
expect the courts to step in. In any event, and especially should the 
executive branch restraint prove insufficient, and the abuses I fear 
prove not only hypothetical but real, I will seek the opportunity to 
revisit these provisions at the first opportunity.
  Despite these weaknesses, Mr. President, I believe the Terrorism 
Prevention Act is an extremely important measure, and I am pleased to 
have had a chance to participate in its enactment into law.

                          ____________________