[Congressional Record Volume 146, Number 11 (Wednesday, February 9, 2000)]
[Senate]
[Pages S538-S541]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH (for himself, Mr. Nickles, Mr. Lott, Mr. Abraham, 
        Mr. Thurmond, Mr. Kyl, Mr. Ashcroft, Mr. Sessions, Mr. Smith of 
        New Hampshire, and Mr. Coverdell):
  S. 2042. A bill to reform the process by which the Office of the 
Pardon Attorney investigates and reviews potential exercises of 
executive clemency; to the Committee on the Judiciary.


              The Pardon Attorney Reform and Integrity Act

  Mr. HATCH. Mr. President, today I am introducing a bill that will 
help restore public confidence in the Department of Justice by 
reforming the way that the Office of Pardon Attorney investigates 
candidates for executive clemency. This bill, the Hatch-Nickles-Abraham 
Pardon Attorney Reform and Integrity Act, which is co-sponsored by 
Senators Lott, Thurmond, Kyl, Ashcroft, Sessions, Smith of New 
Hampshire, and Coverdell, addresses the problems that led to the 
widespread public outrage at the Department of Justice's role in 
President Clinton's decision last September to release 11 Puerto Rican 
nationalist terrorists from prison.
  The beneficiaries of President Clinton's grant of clemency were 
convicted terrorists who belong to violent Puerto Rican independence 
groups called the FALN and Los Macheteros. They were in prison for a 
seditious conspiracy that included the planting of over 130 bombs in 
public places in the United States, including shopping malls and 
restaurants. That bombing spree--which killed several people, injured 
many others and caused vast property damage--remains the most prolific 
terrorist campaign within our borders in United States history.
  The Judiciary Committee has thoroughly investigated the facts and 
circumstances surrounding the decision to release those terrorists from 
prison. We read thousands of documents produced by the Department of 
Justice and the White House. We interviewed law enforcement officials 
knowledgeable about the FALN and Los Macheteros organizations. We spoke 
to victims, and we held two hearings on the many issues raised by the 
grant of clemency. Our investigation has led me to a very troubling 
conclusion: the Justice Department ignored its own rules for handling 
clemency matters, exercised very poor judgment in ignoring the opinions 
of law enforcement and victims, and sacrificed its integrity by bowing 
to political pressure to modify its original recommendation against 
clemency.
  I do not come to this conclusion lightly. I base it on an examination 
of the facts. The facts show that the clemency recipients were never 
asked for information relevant to open investigations or the 
apprehension of fugitives--despite the fact that one of their co-
defendants, Victor Gerena, is on the FBI's ``ten most wanted'' list. 
Many of the killings associated with the FALN bombings, including the 
infamous Fraunces Tavern bombing, remain unsolved. The failure to ask 
for such information from the clemency recipients, several of whom held 
leadership positions in the FALN, means that the rest of the 
perpetrators of those crimes may never be brought to justice. My 
legislation will require the Justice Department to notify law 
enforcement of pending clemency requests, and to assess whether a 
proposed clemency recipient could have information on open 
investigations and fugitives.
  Our investigation also revealed that the White House and the Justice 
Department ignored the many victims of FALN crimes, even while senior 
officials were holding numerous meetings with the terrorists' advocates 
for clemency. While top government officials actually gave strategic 
advice to the terrorists, no one lifted a finger to find, interview, or 
even notify the victims about the pending clemency request. My 
legislation would help ensure that the Justice Department remembers who 
it is supposed to be working for by requiring it to notify and seek 
input from victims.
  Finally, a disturbing connection has come to light between the FALN, 
Los Macheteros and the Cuban government.

[[Page S539]]

Jorge Masetti, a former Cuban intelligence agent, has stated that Cuba 
helped Los Macheteros to plan and execute the $7.1 million Wells Fargo 
robbery--the biggest cash heist in US history--by providing funding, 
training and assistance in smuggling the money out of the country. Some 
sources estimate that 4 million dollars from the robbery ended up in 
Cuba. We don't know whether the Pardon Attorney knew of or told the 
President about this Cuban connection because the Pardon Attorney 
currently has no obligation to contact intelligence agencies for 
information relevant to proposed grants of executive clemency. My 
legislation would require the Justice Department to solicit from law 
enforcement and intelligence agencies necessary information concerning 
the nature of the threat posed by potential clemency recipients so that 
the Pardon Attorney can properly advise the President whether a 
particular grant of clemency will impact future crime or terrorism.
  Before describing how this bill works, I want to explain how the 
Office of Pardon Attorney currently operates. The job of the Office of 
Pardon Attorney is not complicated: it is to investigate potential 
grants of clemency and, in appropriate cases, to produce a report and 
recommendations to the President. Ordinarily, this work begins when the 
office receives a petition from a prisoner or someone who has already 
completed a prison sentence. The Department's rules require that an 
individual seeking clemency submit such a petition to the Pardon 
Attorney. After receiving a petition, the Pardon Attorney makes an 
initial determination of whether the request has enough merit to 
warrant further investigation. If so, the Pardon Attorney researches 
the potential clemency recipient and prepares a report analyzing the 
information in light of the grounds for granting clemency. As described 
by the United States Attorneys' Manual, those grounds ``have 
traditionally included disparity or undue severity of sentence, 
critical illness or old age, and meritorious service rendered to the 
government by the petitioner.''
  It is to be expected that the Administration and the Department of 
Justice Office of Legal Counsel (``OLC'') would question the 
constitutionality of this bill by asserting an expansive view of 
executive power. That is their nature. This is the same Administration 
and Department that resisted any oversight of the FALN clemency 
decision. The OLC and the Department have a history of taking a liberal 
view of laws and privileges that would shield the President from 
scrutiny. This is evidenced by the Department's sound defeats on 
assertions of government attorney-client privilege and its ill-fated 
attempt to create a protective function privilege out of whole cloth. 
Anyone examining the merits of the OLC's attacks against this bill, 
therefore, must acknowledge that the Administration and the Department 
have a track record of overstating executive power.
  With that background, let me clarify that the Pardon Attorney Reform 
and Integrity Act was carefully drafted to avoid offending the 
separation of powers. The Act does not attempt to dictate how the 
President uses the pardon power. Far from it. The Constitution gives 
that power to the President, and this bill does not restrict it in any 
way. This bill affects only those cases where the President delegates 
the responsibility to investigate a particular potential grant of 
clemency. Nothing in the bill requires the President to ask the Pardon 
Attorney for assistance or requires the Pardon Attorney to take any 
particular position or recommend any particular outcome. It doesn't 
even require the Department to submit a report to the President, but 
simply make it available. Furthermore, the bill does not require the 
President to read any report, consider any particular information, or 
avail himself of any resource. The President will still be able to 
disregard the Justice Department's reports, use another agency, ask 
anyone in the world for advice, or exercise the ``pardon power'' 
without anyone's counsel. Only if the President chooses to ask the 
Justice Department for assistance will the procedural requirements of 
this bill apply--and they will apply only to the Justice Department, 
not to the President.

  The Act is consistent with the Supreme Court's opinions relating to 
the pardon power. The Act neither ``change[s] the effect of . . . a 
pardon'' as described in United States v. Kline, 80 U.S. (13 Wall.) 128 
(1872), nor will it ``modif[y], abridge[], or diminish[]'' the 
President's authority to grant clemency as discussed in Schick v. Reed, 
419 U.S. 256, 266 (1974). In fact, the Act will have no effect 
whatsoever on the President's ability to exercise the pardon power as 
he or she sees fit.
  Moreover, the Supreme Court has recognized that Congress can 
legislate in areas that touch upon the pardon power. In Carlesi v. New 
York, 233 U.S. 51 (1914), the Court found that it was within the power 
of the legislative branch to determine what effect a pardon would have 
on future criminal sentences. The Supreme Court has also acknowledged 
that the pardon power has limits; the President cannot use that power 
as an excuse to wield power over departments that he or she otherwise 
could not. In Knote v. United States, 95 U.S. 149 (1877), the Court 
held that the pardon power does not give the President authority to 
order the treasury to refund money taken from a prisoner--even though 
that prisoner had just been pardoned for the crime that gave rise to 
the government's seizure of that money.
  It is Congress, not the President, that has the authority--indeed, 
the responsibility--to examine and legislate the manner in which the 
Justice Department performs its work. Congress created an ``attorney in 
charge of pardons'' within the Department of Justice in 1891, and 
appropriated money for an ``attorney in charge of pardons'' in that 
same year. To this day, the Office of the Pardon Attorney depends on 
funds appropriated annually by the Congress. In the most recent 
appropriations legislation, the Congress appropriated $1.6 million for 
the Pardon Attorney for the fiscal year ending September 30, 2000. This 
Congressional involvement--creation and funding of the office--provides 
a compelling basis for the Judiciary Committee's investigation and the 
present legislation.
  ``The power of the Congress to conduct investigations is inherent in 
the legislative process. That power is broad. It encompasses inquiries 
concerning the administration of existing laws as well as proposed or 
possibly needed statutes.'' Watkins v. United States, 354 U.S. 178, 187 
(1957). The scope of this power ```is as penetrating and far-reaching 
as the potential power to enact and appropriate under the 
Constitution.''' Eastland v. United States Servicemen's Fund, 421 U.S. 
491, 504 n. 15 (1975) (quoting Barenblatt v. United States, 360 U.S. 
190, 111 (1959)). The Supreme Court has also recognized ``the danger to 
effective and honest conduct of the Government if the legislative power 
to probe corruption in the Executive Branch were unduly hampered.'' 
Watkins, 354 U.S. at 194-95. Once having established its jurisdiction 
and authority, and the pertinence of the matter under inquiry to its 
area of authority, a committee's investigative purview is substantial 
and wide-ranging. Wilkinson v. United States, 365 U.S. 408-09 (1961).
  Congress also has broad powers under the Constitution to ``make all 
Laws which shall be necessary and proper for carrying into Execution 
the foregoing Powers, and all other Powers vested by this Constitution 
in the Government of the United States, or in any Department of Officer 
thereof.'' The areas in which Congress may potentially legislate or 
appropriate are, by necessary implication, even broader. Thus, in 
determining whether Congress has jurisdiction to oversee and enact 
legislation, deference should be accorded to Congress' decision.
  Because of this legal history, the administration of the Department 
of Justice and its various components has long been considered an 
appropriate subject of Congressional oversight. Early this century, in 
McGrain v. Daugherty, 273 U.S. 135, 151 (1927), the Supreme Court 
endorsed Congress' authority to study ``charges of misfeasance and 
nonfeasance in the Department of Justice.'' In that case, which 
involved a challenge to Congress' inquiry into the DOJ's role during 
the Teapot Dome scandal, the Court concluded that Congress had 
authority to investigate ``whether [DOJ's] functions were being 
properly discharged or were being neglected or misdirected, and 
particularly whether the Attorney General and his assistants were 
performing or neglecting their duties in

[[Page S540]]

respect of the institution.'' Id. at 177. These precedents make clear 
that the Judiciary Committee has jurisdiction to investigate the Pardon 
Attorney's role in the pardon process, and to enact legislation 
concerning the way in which that office operates.
  We have discussed this bill with the Department of Justice, and we 
have reviewed the regulations the Department has proposed. The problems 
with the Office of the Pardon Attorney, however, cannot be fixed by a 
mere change in department regulations. It has been six months since the 
public outcry over the FALN clemency shined a spotlight on the Pardon 
Attorney's practices. Despite having half-a-year to reform itself, the 
Department has suggested only minimal changes in the way it does 
business. In its draft regulations, the Department agrees that it 
should ascertain the views of victims, but only in cases involving 
``crimes of violence.'' Victims of other crimes deserve the right to be 
heard, too. Victims of so-called identity theft, for example, have 
compelling stories of the horror of being forced into bankruptcy to 
avoid collections lawyers, losing their jobs due to issues related to 
wage garnishments, and trying to rebuild their lives without the 
ability to obtain credit or sign an apartment lease. Victims of such 
crimes also deserve to be heard. Similarly, the Department's proposed 
regulations acknowledge the need to determine whether releasing a 
particular prisoner would pose a risk, but limit their focus to past 
victims and ignore other possible targets including witnesses, 
informants, prosecutors and court personnel. The Department's proposal 
also fails to notify victims when it undertakes a clemency 
investigation, when it completes its report to the President, or when 
the President makes a decision. Under the Department's scheme, victims 
may still learn of a prisoner's release from prison by watching the 
event on TV.
  Equally important, the Department's suggested regulations ignore the 
Department's main job: to protect law-abiding people from criminal 
acts. The Department does not see a need to require the Pardon Attorney 
to talk to law enforcement officials about whether a particular person 
could provide helpful information about criminal investigations or 
searches for fugitives. Nor does the Department see the value of asking 
law enforcement whether a potential release from prison would pose a 
risk to specific people other than victims or to a broader societal 
interest such as enhancing a particular criminal organization or 
decreasing the deterrent value of prison sentences. The Department's 
proposed regulations also ignore the importance of whether a potential 
clemency recipient has accepted responsibility for, or feels remorse 
over, criminal acts.
  Even if the Department's proposed regulations were identical to this 
bill, moreover, those regulations could not overcome what is perhaps 
the most important weakness of all: Regulations are not law. They do 
not have the force of statutes, and they can be changed very easily. 
The FALN case proves the need for a statute because the Attorney 
General ignored even the current, weak regulations in the FALN matter. 
Although the Justice Department and the White House refuse to let 
anyone in Congress review the reports produced by the Pardon Attorney 
about the FALN clemency, it is clear that the Pardon Attorney did not 
follow the Justice Department regulations when analyzing the issues for 
the President. For starters, the Pardon Attorney began investigating a 
potential grant of clemency for the FALN terrorists even though no 
personal petitions for clemency had been filed. That's right--these 
terrorists had not asked for clemency prior to the Justice Department's 
efforts to free them. Indeed, no such petitions were ever filed. And 
the absence of petitions was not a mere oversight: the FALN terrorists 
refused to file such petitions because they do not recognize that their 
criminal acts were wrongful or that the United States government had 
the right to punish them for committing those acts.
  I have the utmost respect for the career men and women at the Justice 
Department. It appears, however, the Department caved in to political 
pressure in this case. Although it submitted a report in December 1996 
recommending against the granting of clemency for the FALN terrorists--
which should have ended its involvement--the Pardon Attorney produced 
another report two-and-a-half years later reportedly changing its 
recommendation. The second report did not recommend either for or 
against the granting of clemency, violating the Justice Department 
regulation requiring that in every clemency case the Department ``shall 
report in writing [its] recommendation to the President, stating 
whether in [its] judgment the President should grant or deny the 
petition.''
  Why did the Justice Department's recommendation change? What happened 
between the first report in December 1996 and the second one in the 
summer of 1999 that justified a reexamination and change of the 
Department's conclusion? Because of the President's assertion of 
executive privilege, we may never know for sure. It was a mistake for 
the President to let politics affect such an important clemency 
decision, but is much worse than a mistake when political pressure 
forces an independent agency to alter its advice against its better 
judgment.
  The Pardon Attorney Reform and Integrity Act will help prevent this 
from happening again. It will make available to the President access to 
the most pertinent facts concerning the exercise of executive clemency, 
including information from law enforcement agencies about the risks 
posed by any release from prison. It will also help ensure that--if the 
President chooses to have the Department of Justice conduct a clemency 
review--the victims of crime will not be shut out of the clemency 
process while terrorists and their organized sympathizers have access 
to--and obtain advice from--high government officials. In other words, 
this Act will insure that the tax-payer funded Justice Department will, 
when assisting the President in a clemency review, focus on public 
safety, not politics. Let me be clear that the Department of Justice is 
an agency which I have great respect for. Its employees are loyal, 
dedicated public servants. This bill is aimed at helping the 
Department, not hurting it.
  Specifically, our bill will do the following:
  1. Give victims a voice by insuring that they are notified of key 
events in the clemency process and by giving them an opportunity to 
voice their opinions.
  2. Enhance the voice of law enforcement by requiring the Pardon 
Attorney to notify the law enforcement community of a clemency 
investigation and permitting law enforcement to express its views on: 
the impact of clemency on the individuals affected by the decision--for 
example, victims and witnesses; whether clemency candidates have 
information which might help in other investigations; and whether 
granting clemency will increase the threat of terrorism or other 
criminal activity.
  Of course, it is the hope of all the co-sponsors--and all Americans--
that presidents will use the congressionally created and funded Office 
of the Pardon Attorney in order to make the best possible decisions 
regarding executive clemency. I believe that when Congress passes this 
bill--and should President Clinton sign it into law--future Presidents, 
victims, and the American public will be well served. If President 
Clinton wants to help in this effort to restore integrity to the 
clemency process, he will announce his support for this bill.
  Mr. President, I thank the many co-sponsors of this act, and I ask 
the rest of my colleagues to support this much-needed legislation. I 
ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2042

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Pardon Attorney Reform and 
     Integrity Act''.

     SEC. 2. REPRIEVES AND PARDONS.

       (a) Definitions.--In this section--
       (1) the term ``executive clemency'' means any exercise by 
     the President of the power to grant reprieves and pardons 
     under clause 1 of section 2 of article II of the Constitution 
     of the United States, and includes any pardon, commutation, 
     reprieve, or remission of a fine; and
       (2) the term ``victim'' has the meaning given the term in 
     section 503(e) of the Victims' Rights and Restitution Act of 
     1990 (42 U.S.C. 10607(e)).

[[Page S541]]

       (b) Reporting Requirement.--If the President delegates to 
     the Attorney General the responsibility for investigating or 
     reviewing, in any particular matter or case, a potential 
     grant of executive clemency, the Attorney General shall 
     prepare and make available to the President a written report, 
     which shall include--
       (1) a description of the efforts of the Attorney General--
       (A) to make each determination required under subsection 
     (c); and
       (B) to make the notifications required under subsection 
     (d)(1); and
       (2) any written statement submitted by a victim under 
     subsection (c).
       (c) Determinations Required.--In the preparation of any 
     report under subsection (b), the Attorney General shall make 
     all reasonable efforts to--
       (1) inform the victims of each offense that is the subject 
     of the potential grant of executive clemency that they may 
     submit written statements for inclusion in the report 
     prepared by the Attorney General under subsection (b), and 
     determine the opinions of those victims regarding the 
     potential grant of executive clemency;
       (2) determine the opinions of law enforcement officials, 
     investigators, prosecutors, probation officers, judges, and 
     prison officials involved in apprehending, prosecuting, 
     sentencing, incarcerating, or supervising the conditional 
     release from imprisonment of the person for whom a grant of 
     executive clemency is petitioned or otherwise under 
     consideration as to the propriety of granting executive 
     clemency and particularly whether the person poses a danger 
     to any person or society and has expressed remorse and 
     accepted responsibility for the criminal conduct to which a 
     grant of executive clemency would apply;
       (3) determine the opinions of Federal, State, and local law 
     enforcement officials as to whether the person for whom a 
     grant of executive clemency is petitioned or otherwise under 
     consideration may have information relevant to any ongoing 
     investigation or prosecution, or any effort to apprehend a 
     fugitive; and
       (4) determine the opinions of Federal, State, and local law 
     enforcement or intelligence agencies regarding the effect 
     that a grant of executive clemency would have on the threat 
     of terrorism or other ongoing or future criminal activity.
       (d) Notification to Victims.--
       (1) In general.--The Attorney General shall make all 
     reasonable efforts to notify the victims of each offense that 
     is the subject of the potential grant of executive clemency 
     of the following events, as soon as practicable after their 
     occurrence:
       (A) The undertaking by the Attorney General of any 
     investigation or review of a potential grant of executive 
     clemency in a particular matter or case.
       (B) The making available to the President of any report 
     under subsection (b).
       (C) The decision of the President to deny any petition or 
     request for executive clemency.
       (2) Notification of grant of executive clemency.--If the 
     President grants executive clemency, the Attorney General 
     shall make all reasonable efforts to notify the victims of 
     each offense that is the subject of the potential grant of 
     executive clemency that such grant has been made as soon as 
     practicable after that grant is made, and, if such grant will 
     result in the release of any person from custody, such notice 
     shall be prior to that release from custody, if practicable.
       (e) No Effect on Other Actions.--Nothing in this section 
     shall be construed to--
       (1) prevent any officer or employee of the Department of 
     Justice from contacting any victim, prosecutor, investigator, 
     or other person in connection with any investigation or 
     review of a potential grant of executive clemency;
       (2) prohibit the inclusion of any other information or view 
     in any report to the President; or
       (3) affect the manner in which the Attorney General 
     determines which petitions for executive clemency lack 
     sufficient merit to warrant any investigation or review.
       (f) Applicability.--Notwithstanding any other provision of 
     this section, this section does not apply to any petition or 
     other request for executive clemency that, in the judgment of 
     the Attorney General, lacks sufficient merit to justify 
     investigation or review, such as the contacting of a United 
     States Attorney.
       (g) Regulations.--Not later than 90 days after the date of 
     enactment of this Act, the Attorney General shall promulgate 
     regulations governing the procedures for complying with this 
     section.
                                 ______