[Congressional Record Volume 147, Number 147 (Tuesday, October 30, 2001)]
[Senate]
[Pages S11185-S11189]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                               TERRORISM

  Mr. SPECTER. Madam President, the terrorist attacks carried out by 
Osama bin Laden and al-Qaida on September 11 require a reevaluation of 
our national policy on what the government should be doing on its 
primary responsibilities: the security of the people.
  The United States was stunned by that diabolical attack. It was 
thought impossible to make the country, with special emphasis on the 
Congress, more ``fighting mad''; but that was done with the anthrax 
attacks. As a nation, we are determined to respond thoughtfully and 
forcefully to win the war against terrorism. This floor statement 
briefly reviews some of the responses by the U.S. to terrorism for the 
past two decades to learn from our mistakes of the past and to guide us 
on what to do in the future.
  The United States has been slow to assert extraterritorial 
jurisdiction to

[[Page S11186]]

bring to justice terrorists who attack U.S. citizens around the world. 
Ordinarily, jurisdiction resides in the locale where the crime 
occurred; however, a nation may assert extraterritorial jurisdiction 
where its citizens are victimized on foreign soil which provides the 
nexus for jurisdiction beyond its boundaries.
  It was not until 1984 that the United States asserted 
extraterritorial jurisdiction to try terrorists who kidnaped or 
hijacked Americans abroad. Those provisions were contained in the 
Omnibus Crime Control Act of 1984 which was added onto the 
appropriations bill for the Department of Justice. The Senate and House 
Judiciary Committees, led by feuding chairmen, could not agree on 
legislation, so an appropriation subcommittee took up the issues in an 
unusual way. The bill was passed in the middle of an all-night session, 
in which I participated along with Senator Warren Rudman on the Senate 
subcommittee, and Congressman Bill Hughes on the House subcommittee.
  That legislation still left a void on terrorism other than kidnaping 
or hijacking. On July 11, 1985, I introduced the Terrorist Prosecution 
Act of 1985, to establish extraterritorial jurisdiction for any attacks 
on any U.S. citizen anywhere in the world. Several months later, the 
need for such legislation became urgent when on December 27, 1985, 16 
people, including five Americans, were killed by random terrorist 
strafings at the Rome and Vienna airports, and many others were 
wounded. This provided the impetus to pass the Terrorist Prosecution 
Act which became law on August 27, 1986, providing the basis for the 
indictments against Osama bin Laden for conspiring to murder 18 
Americans in Mogadishu, Somalia, in 1993, and 12 Americans at the 
Nairobi, Kenya, and Dar es Salam, Tanzania, Embassies in 1998.
  Although there were solid precedents for the United States to act 
against indicted terrorists, who were harbored in foreign countries, 
the United States declined to pursue an aggressive policy to enforce 
outstanding warrants of arrest. In 1886, in the case of Ker v. 
Illinois. 119 U.S. 436 (1886), the Supreme Court of the United 
States held that a prosecution could be validly pursued even where the 
defendant was abducted in a foreign country and brought back to the 
U.S. for trial. Ker, under indictment for fraud in Illinois, had fled 
to Peru. Illinois authorities pursued him to Peru and brought him back 
to Illinois for trial and conviction. The Supreme Court of the United 
States said:

       There are authorities of the highest respectability which 
     hold that such forcible abduction is no sufficient reason why 
     the party should not answer when brought within the 
     jurisdiction of the Court which has the right to try him for 
     such an offense, and presents no valid objection to his trial 
     in such court. (Ker, 119 U.S. at 444.)

That principle was upheld by the Supreme Court of the United States in 
Frisbie v. Collins, 342 U.S. 519, 522 [1953], in an opinion by Justice 
Black, a noted civil libertarian.
  Based on my experience as district attorney of Philadelphia in 
pursuing indicted criminals, I thought some of those techniques could 
be applied to international terrorists. Those ideas were expanded after 
chairing the Intelligence Committee and Judiciary Subcommittee on 
Terrorism.
  After studying ``Ker'' and ``Frisbie,'' I urged U.S. executive branch 
officials to consider abduction, if necessary, to bring back to the 
United States indicted terrorists. In hearings before the Judiciary 
Committee and the Appropriations Subcommittee on Foreign Operations, I 
questioned Secretary of State George Schultz, Attorney General Edwin 
Meese, FBI Director William Webster and State Department Counsel 
Abraham Sofaer on that subject. In testimony before the Judiciary 
Subcommittee on Terrorism on July 30, 1985, Judge Sofaer raised a 
series of objections to such forceful action, saying:

       I would say that seizure by U.S. officials of terrorist 
     suspects abroad might constitute a serious breach of the 
     territorial sovereignty of a foreign state, and could violate 
     local kidnapping laws--that is, the people who do the seizing 
     could be, in fact, criminals under local law. Such acts might 
     also be viewed by foreign states as violations of 
     international law incompatible with the foreign extradition 
     treaties that we have in force with those nations.

  It may be that those hearings, urging the application of ``Ker'' and 
``Frisbie,'' led to action by U.S. law enforcement officials against 
Fawaz Yunis, although his case did not involve abduction in a foreign 
country, but the principle was close. In June 1985, Yunis and other 
terrorists hijacked a Jordanian airliner with two U.S. citizens in 
Beirut, Lebanon. In September 1987, a joint operation of the FBI, CIA, 
and U.S. Military led to the capture of Yunis, who was lured onto a 
yacht off the coast of Cyprus with ``promises of a drug deal.'' Once 
the yacht entered international waters, Yunis was arrested and returned 
to the U.S. for trial where he was convicted of conspiracy, aircraft 
piracy, and hostage-taking, and then sentenced to 30 years in prison.

  The hearings on ``Ker'' and ``Frisbie'' may have also led the DEA--
the Drug Enforcement Administration--to abduct from Mexico Dr. Alvarez-
Machain who was implicated in the kidnaping and murder of a DEA agent 
in Mexico in 1985. After the DEA unsuccessfully negotiated with Mexican 
authorities for Alvarez-Machain's surrender, DEA officials offered a 
reward to a group of Mexican citizens for delivering Alvarez-Machain to 
them in the United States, which was done in April 1990. The trial 
court dismissed the case because the DEA agents had violated the 
extradition treaty with Mexico, and the Circuit Court of Appeals 
affirmed. When the case reached the Supreme Court of the United States, 
the Court reversed the lower courts and stated this principle of law:

       The power of a court to try a person for a crime [exists 
     even if] he had been brought within the court's jurisdiction 
     by reason of a forcible abduction. (United States v. Alvarez-
     Machain, 504 U.S. 655, 661 (1992).)

And now onto Osama bin Laden's longstanding record on terrorism against 
the United States.
  The cases of Ker, Frisbie, and Alvarez-Machain provided ample 
precedent for the United States to have acted against Osama bin Laden 
prior to September 11, 2001. For a decade, Osama bin Laden had been 
prosecuting a war of terrorism against the United States. In 1992, he 
issued a religious declaration, known as a fatwah, urging that United 
States troops be driven out of Saudi Arabia, and the fatwah was 
extended in 1993 to demand expelling U.S. troops from Somalia. The 
terrorists convicted for bombing the World Trade Center in 1993 were 
trained in al-Qaida camps in Afghanistan. In 1996, al-Qaida called for 
a jihad against the United States.
  In February 1998, bin Laden and al-Qaida issued another fatwah, 
calling for the murder of U.S. citizens wherever they were found in the 
world. In May 1998, bin Laden announced the need to possess a nuclear 
weapon against ``Jews and Crusaders.'' In indictments returned in 
November 1998, Osama bin Laden was charged with conspiring to murder 
U.S. troops in Saudi Arabia and Somalia and for being directly involved 
with the bombings of the U.S. embassies in Kenya and Tanzania in August 
1998. In June 1999, bin Laden called for the killing of all American 
males. And then bin Laden was involved with al-Qaida in the terrorist 
attack on the USS Cole.

  Notwithstanding demands by the United States and the United Nations, 
the Taliban refused to turn bin Laden over to U.S. authorities. In 
harboring bin Laden, the Taliban, the de factor government of 
Afghanistan, was an accessory after the fact. In his September 20, 2001 
speech to a Joint Session of Congress, President Bush equated those who 
harbor terrorists with the terrorists themselves.
  From all that, it was readily apparent that bin Laden and al-Qaida 
were at war with the United States even prior to September 11. Then, on 
September 11, in addition to murdering 7,000 Americans, bin Laden and 
al-Qaida sought to destroy our symbol of economic achievement by 
leveling the twin towers of the World Trade Center and to decimate the 
White House and U.S. Capitol with planes which crashed into the 
Pentagon and in a Pennsylvania field.
  In a Senate floor statement the following day, September 12, I said--
and it is worth repeating now:

       [T]here have been many declarations that what occurred 
     yesterday with the Trade Towers and the Pentagon were acts of 
     war. And there is no doubt about that. Similarly, what bin 
     Laden did in Mogadishu in 1993 and in the Embassies in 1998 
     were acts of war. At this time, while the Congress should 
     never act precipitously, I do suggest that consideration be 
     given to a declaration of war

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     against the political entity which harbors and has given aid 
     and assistance to bin Laden's terrorist organization and bin 
     Laden and his co-conspirators, based on the indictments which 
     already have been handed
     down . . .

  It was my view on September 12 that even though we could not prove at 
that time that bin Laden was responsible for the terrorism of September 
11, that a basis already existed for declaring war on Afghanistan and 
the Taliban for harboring bin Laden based upon the indictments which 
had already been returned establishing probable cause for acts of war 
which bin Laden and al-Qaida had committed against the United States.
  On September 13, when the President met with Members of Congress from 
New York, Virginia, and Pennsylvania, which were the impacted States, I 
urged President Bush to consider a declaration of war against 
Afghanistan and the Taliban on the basis of the outstanding indictments 
against bin Laden and the Taliban's refusal to turn him over. The 
President made no response at that meeting to my suggestion.
  President Bush declined to ask for a declaration of war, but he did 
request a resolution authorizing the use of force which was passed 
unanimously in the Senate and 420-1 in the House.
  Presidential executive orders have provided that: ``No person 
employed by or acting on behalf of the U.S. Government shall engage in, 
or conspire to engage in, assassination.'' But in April 1986, President 
Reagan ordered the bombing of Tripoli, Libya, and Muammar Qadhafi after 
intelligence intercepts implicated Libyan intelligence operatives in 
the bombing of a disco in Berlin, resulting in the death of two 
American soldiers.
  Similarly, President Clinton ordered a missile attack on Osama bin 
Laden in Afghanistan in August 1998 after the Embassy bombings. In an 
interview with Tom Brokaw on NBC News on September 18, 2001, former 
President Clinton said:

       We had quite good intelligence that he [bin Laden] and his 
     top lieutenants would be in his training camp. So I ordered 
     the cruise missile attacks, and we didn't tell anybody, 
     including the Pakistanis, whose airspace we had to travel 
     over, until the last minute, and unfortunately we missed 
     them, apparently not by very long. We killed a number of 
     terrorists, destroyed the camp, but we didn't get him or his 
     top lieutenants. And I made it clear that we should take all 
     necessary action to try to apprehend him and get him. We 
     never had another chance where the intelligence was as 
     reliable to justify military action. He's very elusive. He 
     spends the night in different places, often stays in--in 
     caves. There were times when he tried to hide among a lot of 
     women and children. It's a tough . . .  nut to crack. But the 
     world is changed now, and . . .  the pressure that President 
     Bush and the administration is putting on the Taliban and 
     also on the Pakistanis, and the statements the Pakistanis 
     have made, and the unity we've got around the world--we 
     finally got other countries as concerned about this as we 
     are. . .

  Now to a discussion of Israel's response to terrorism. It is worth 
noting what Israel has done in its war against terrorism. Israel has 
adopted a policy on what could be called ``executions'' after its own 
determination of terrorists' guilt. After the massacre of the 11 
Israeli Olympic athletes in Munich in 1972, it is reported that Prime 
Minister Golda Meir and Defense Minister Moshe Dayan authorized the 
executions of 9 of the terrorists whom they identified as being 
responsible for the Munich murders. One person, killed in Norway, was 
reported misidentified as a terrorist. Such executions have also been 
carried out by Israel against terrorists who were principals of the 
PLO, Islamic Jihad, Hezbollah and Hamas whom the Israelis found 
involved in murders of Israeli civilians.
  The terrorism of September 11 should make us more understanding of 
the perils faced by Israel for five decades. Since the second Intifada 
began in September 2000, Israel has sustained 165 deaths from the 
killings. On a proportionate basis to our population, that would 
translate into over 7,000 Americans, a virtual equivalency to the mass 
murders on September 11. Should Israel be expected to respond 
differently from the way we responded to September 11? Just as the 
United States must find a way to stop terrorist attacks on U.S. 
citizens, a way must be found to stop the violence which has killed 714 
Palestinians as well as 165 Israelis.
  In seeking to organize a coalition against bin Laden and al-Qaida, 
the United States has urged, even pressured, Israel to temper its 
responses against Palestinian terrorists. In so doing, the United 
States should consider whether it is applying a double standard between 
what we are doing and what we ask Israel to do. What is the difference 
between the United States demand on the Taliban to turn over Osama bin 
Laden contrasted with Israel's demand on Chairman Arafat to turn over 
the assassin of the Israeli tourism Minister Rehavam Zeevi.
  The usually perceptive Thomas L. Friedman in his October 23 New York 
Times column applied such a double standard. Asking Israel to pull its 
punches against Palestinian terrorism to stop ``. . . inflam[ing] the 
Arab-Muslim world in order to avoid . . . seriously undermining our 
[the United States] coalition against bin Laden,'' Friedman calls for 
Israel to subordinate its security interests to those of the United 
States. Friedman then asks Prime Minister Sharon whether ``. . . you 
(know) how serious this war is for America''? Is the war against 
Palestinian terrorism any less serious for Israel?
  In seeking the assistance of Arab countries in the coalition, the 
United States has been careful not to ask for more than can reasonably 
be expected. Similar consideration must be extended to Israel. During 
the gulf war in 1991. Prime Minister Itzhak Shamir and Israel 
cooperated with the United States by taping their windows, wearing gas 
masks, and not responding to Iraqi Scud missile attacks. Israel has 
made serious, good-faith efforts to negotiate with Arafat 
notwithstanding the Intifada violence. Prime Minister Barak made the 
Palestinian authority a very generous offer in January 2001. Foreign 
Minister Shimon Peres has engaged in extensive negotiations until those 
talks were interrupted by outbursts of Palestinian terrorism.
  There was a real question as to how much control Chairman Arafat can 
exert over Palestinian terrorism. Last April 16, I met Chairman Yasser 
Arafat in Cairo near midnight at the precise time Israel was responding 
to Palestinian mortar attacks. As we talked, aides brought Arafat 
communiques describing the fighting. I asked Chairman Arafat why he had 
not accepted then Prime Minister Barak's generous offer earlier in the 
year. Chairman Arafat responded that he had, but he was obviously 
oblivious to the fact that he imposed so many conditions it was, in 
fact, not an acceptance.
  I then called on Chairman Arafat to make a clear statement calling 
for an end to Palestinian terrorists attacks. He said he had done that 
at the Arab summit on March 29, 2001. The transcript of his speech 
refuted his statement. That speech was another example of his 
longstanding tactic of sending contradictory messages. Chairman Arafat 
is famous for saying one thing in English to one audience and the 
reverse in Arabic to another audience.
  In assessing Chairman Arafat's ability to reign in Palestinian 
terrorism, we must take into account that today he is not the man he 
was when he shook the hands of Prime Minister Rabin and Peres on the 
White House South Lawn on September 13, 1993, in the presence of 
President Clinton. Shortly thereafter, I met Chairman Arafat in Cairo 
in January 1994 traveling with a congressional delegation. At that time 
Arafat was healthy, robust, and forceful.
  Seven years later, when I again met him in Cairo, he was shaky, 
hesitant, and spoke mostly through his aides. The recent challenges to 
his authority by Hamas, resulting in Chairman Arafat's firing on and 
killing Palestinians in early October, shows his diminished authority 
and raises serious questions as to whether he can be effective in 
ending the Palestinian violence even if he wants to.
  This April, Secretary of State Colin Powell criticized Israel's 
response to Palestinian terrorism saying Israel's military action was 
``excessive and disproportionate.'' In hearings before the 
Appropriations Subcommittee on Foreign Operations on May 15, 2001, I 
challenged Secretary Powell's characterization and said:

       While Israel did respond very, very forcefully, Israel 
     could have responded much more forcefully and is facing a 
     situation where everybody is sort of at wit's end. And I 
     believe that the calculation is made that if they hit them 
     hard enough within reason that they will--that the 
     Palestinians perhaps will stop the terrorism although that is

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     very complicated with Hamas and Islam Jihad and the others.

  Then Secretary Powell sought to justify his comment by saying that we 
tried to be ``even-handed''. He then referred to ``the cycle of 
violence.'' The comment on ``cycle of violence'' suggests some sort of 
parity or moral equivalency between the purpose and level of force 
between Palestinian terrorists and Israel's reaction in self-defense.
  There is, realistically viewed, no moral equivalency.
  Terrorism, the killing of innocent victims, is totally reprehensible, 
repugnant, and morally unjustifiable. Self-defense in response to such 
terrorism is morally justifiable and is authorized under international 
and natural law.
  When United States pressure on Israel increased, Prime Minister 
Sharon bluntly told the Bush Administration ``do not try to appease the 
Arabs at our expense'' and analogized the situation to the allies 
sacrificing Czechoslovakia in the Munich Pact of 1938. The Bush 
administration replied in kind calling Sharon's comment 
``unacceptable.''
  In limiting the freezing of terrorist assets to individuals and 
groups connected to the al-Qaida organization and the Irish Republican 
Army, President Bush did not extend United States efforts to ``every 
terrorist group of global reach,'' as articulated in his September 20th 
speech. Perhaps he left out Hamas, Hezbollah, the Palestine Liberation 
Organization and other Arab terrorist organizations to maximize the 
chances to get Syria and other Arab countries into our coalition.
  Israel's battle against Palestinian terrorism would have benefited by 
our freezing the bank accounts, of Hamas, Hezbollah and the PLO, just 
as we did with terrorist organizations connected to Osama bin Laden; 
but United States national interests at the moment may have differed--
just as Israel's national interest may differ.
  Israel cannot be blamed for the September 11 terrorism. Senator John 
McCain was right when he said on NBC's ``Meet the Press'' on October 
21:

       So if Israel were taken off the face of the Earth tomorrow, 
     we would still be facing the same terrorist problems we have 
     today.

  Osama bin Laden's hatred against the United States, is rooted in 
events which preceded Israeli's existence. His videotaped statement 
broadcast on October 7 cited, ``what America is facing today is 
something very little of what we have tasted for decades. Our nation, 
since nearly 80 years is tasting this humility.'' He raged against the 
United States for our military action against Iraq and Japan. The two 
references to Israel were minor compared to his diatribe against 
America as the ``head of international infidels.''

  His disregard for human life was palpable in minimizing ``a few more 
than 10 were killed in Nairobi and Dar es Salaam.'' The intensity of 
hostility was demonstrated by a statement by Ayman al Zawahir, one of 
his close associates, on the same videotape:

       American people, can you ask yourselves why there is so 
     much hatred against America?

  The New York Times on October 7 characterized bin Laden's anti-
American attitude:

       Mr. bin Laden, born in Saudi Arabia, has typically focused 
     his anti-American statements on the presence of American 
     troops in Saudi Arabia, declaring it a violation of Islamic 
     holy places. Now, in keeping with the rest of the Arab world, 
     he shifted focus to the Palestinian uprising that began in 
     September 2000, as officials believe.

  A minister of the United Arab Emirates is reported to have warned the 
United States that if Israel continued killing Palestinians, ``most of 
us will certainly have to reconsider our role in the coalition''. The 
United States was obviously seeking to assuage Arab objections when 
Secretary of Defense Rumsfeld skipped Israel in his recent mid-East 
trip and Secretary of State Powell emphasized that Israel would not be 
part of any military coalition. Hezbollah and Hamas are now reportedly 
accelerating their terrorism on the expectation that Israel may be 
reluctant to respond out of concern for Arab participation in the 
coalition. That is a prelude to the most important part of this 
somewhat lengthy statement, and that is a focus on dealing with 
terrorism in the future.
  The conduct of Osama bin Laden and al-Qaida prior to September 11 
should have put the United States on notice that we were facing a 
ruthless, powerful enemy engaged in a religious war with the capacity 
to inflict enormous damage. By 20/20 hindsight, the United States 
should have taken whatever action was necessary to, as President Bush 
later put it, either bring bin Laden and al-Qaida to justice, or to 
bring justice to them. The point is not to attach blame for what 
happened in the past; but to learn from this bitter experience how 
tough and determined we must be from this day forward in fighting 
terrorism. After September 11, it is obvious that the civilized world 
faces decisions on how to deal with terrorism which threatens our 
survival. Self defense, acknowledged as a person's most primordial 
motivation, is recognized as a fundamental principle in international 
law.
  Congress, in conjunction with the President, has the responsibility 
to conduct hearings, deliberate, and establish our national policy on 
how to deal with terrorism. As a starting point, Congress should 
conduct oversight hearings to determine whether our intelligence 
agencies were at fault in failing to provide warnings of the September 
11 attacks. If so, Congress must act to cure such deficiencies and to 
do whatever is necessary at whatever cost to reorganize our 
intelligence agencies and provide the resources to be as sure as 
possible that we will not be again caught by surprise. The oversight 
hearings on the adequacy of our intelligence should be deferred until 
next year so as not to distract the intelligence community from using 
its full resources to detect current threats.

  Congress, in conjunction with the President, should consider the 
public policy behind the Executive Order banning ``Assassinations.'' As 
a starting point, we should consider whether the pejorative term 
``assassinations'' is accurate or whether we are really dealing with 
``executions,'' even if they are based on a non-judicial determination 
of guilt. It is one thing to prohibit the CIA from involvement in the 
killing of a leader of a foreign political faction or from the killing 
of a foreign leader contrasted with the CIA implementing a Presidential 
finding to take bin Laden into custody or kill him if there is no 
alternative.
  The use of force in war or against terrorism does not require the 
same level of proof to convict in a U.S. court of law. Without 
prejudging Israel's nonjudicial determinations of guilt and the 
following ``executions,'' Congress must decide what quality of proof 
and what level of force is necessary to assure our Nation's survival.
  It was concluded that the Executive Order banning assassinations did 
not preclude President Reagan's order to bomb Libya and Qaddafi or 
President Clinton's order for a missile attack against bin Laden and 
al-Qaida in Afghanistan in August of 1998. In 1976, the Church 
Committee on Intelligence Operations concluded:

       . . . short of war, assassination is incompatible with 
     American principles, international order, and morality. It 
     should be rejected as a tool of foreign policy.

  The Church committee's interdiction against assassination, ``short of 
war,'' raises the obvious question as to when war begins or whether 
terrorism isn't in fact, war. When it becomes a matter of survival, I 
suggest the pristine rules of the Church committee may have to be 
superseded, again depending on the circumstances.
  Judicial determinations of guilt are not required as a basis for the 
use of deadly force in war and should not be the basis for action 
against terrorists. Israel has long considered itself in a war for 
survival facing being vastly outnumbered and surrounded by hostile 
armies in wars in 1949, 1956, 1967 and 1973, and some of those nations 
still have a state of war technically against Israel. In moving against 
the Munich murderers and Palestinian terrorists, Israel has adopted an 
activist policy of execution after a nonjudicial determination of 
guilt. All of that I suggest is worth studying.
  In President Bush's speech to the Joint Session of Congress on 
September 20, he said:

       The war on terrorism . . . will not end until every 
     terrorist group of global reach has been found, stopped and 
     defeated.

  Congress, in conjunction with the executive branch, must also decide 
what

[[Page S11189]]

action should be taken against every nation which sponsors, supports, 
or harbors terrorists in order to meet President Bush's goal. We must 
determine what national security and survival require in evaluating a 
policy on abducting or executing terrorists in foreign countries and 
taking tough action against these who harbor them.
  Consideration should also be given to the detention of individuals 
where there is reason to believe they are part of al-Qaida or some 
other group which is actively planning terrorism against the United 
States. Under existing law, membership or an affiliation with such a 
group without more is not a basis for arrest or detention. The standard 
for detention should not require the level or probable cause necessary 
for a warrant of arrest or a search warrant but it should be more than 
mere surmise. It is obviously a difficult line to draw.
  A case was reported after September 11 where a suspected terrorist 
was detained when he tried to gain entry to the United States from 
Canada, but was released when there was not sufficient evidence to 
arrest him. He was reportedly later identified as one of the pilots on 
a September 11 hijacking, which illustrates the point that if we let 
them go when we have reason to detain them, they may come back to kill 
us.
  Twenty-first century terrorists do not wear uniforms. Study must be 
undertaken to determine an appropriate standard for detention on the 
analogy of detaining prisoners of war. The issue of detention of aliens 
received considerable attention during the debate on the terrorism 
legislation which was signed into law by President Bush on October 26. 
That legislation answers part of the problem but not all of it.
  Poignant scenes from ``Saving Private Ryan'' illustrate the problem.
  In the movie, U.S. forces captured a German soldier behind enemy 
lines as they were making their way on their mission to save Private 
Ryan. The German soldier pleaded for his life. The American soldiers 
did not have the capacity to take him with them as a prisoner, so they 
had the alternative of killing him or letting him go.
  When he promised to move to U.S.-held territory and surrender 
himself, the American soldiers relented and released him.
  In a later scene, that German soldier confronts the same American 
soldiers and kills several of them. That sequence illustrates American 
generosity and our natural instincts to be merciful. It is a lesson 
worth noting that we, as a nation, must reevaluate our level of 
``toughness'' if we are to survive.
  In this Senate floor statement, I have sought to raise issues which 
must be decided after congressional hearings and deliberations rather 
than to provide definitive answers.
  Now, Mr. President, I come to the crux of what I have had to say.
  In summary, these are the issues to be decided by Congress in 
conjunction with the President, after hearings, deliberation, and 
consultation. These are some of the issues which have to be considered. 
I do not say they are all inclusive, but these are the ones on my mind 
now.
  First, should the United States revise its policy against 
assassinations to acknowledge that war and terrorism warrant executions 
under some circumstances?
  Second, should such executions be authorized based on a nonjudicial 
determination of guilt, recognizing that responses to war and terrorism 
have traditionally not required the level of proof to indict or convict 
in a U.S. court of law?
  Third, what level of our national leadership should be invested with 
the power to make such nonjudicial determinations of guilt?
  Fourth, what are the standards for the quality and quantity of proof 
to make such a nonjudicial determination of guilt?
  Fifth, should the United States be deterred from going into another 
sovereign nation to abduct or take forceful action against a terrorist 
when the host nation fails or refuses to turn over such terrorists?
  Sixth, to what extent should the United States act against foreign 
nations or their officials who harbor terrorists?
  And seventh, should individuals be detained where there is some basis 
to believe that they are non-uniformed members of al-Qaida or another 
terrorist organization on the analogy of incarcerating prisoners of 
war? If so, what should be the standard for such detention, and who 
should make the determination?
  My sense is that America will maintain its resolve in carrying on the 
war against terrorism regardless of how long it takes. The 
steadfastness and durability of the coalition is another question. In 
my opinion historically, ``Remember Pearl Harbor'' will be a mild 
declaration or exhortation to ``Remember September 11th!!''
  That concludes my statement. I thank my colleague, the Senator from 
Alaska, for his patience, and in fact he was patient. He came in at the 
latter part of my statement, and I have taken considerable time until 
Senator Stevens arrived, and there is no other Senator who sought 
recognition. I appreciate the opportunity to make the statement which 
has been the product of considerable work on my part.
  I yield the floor.

                          ____________________