[Congressional Record Volume 148, Number 79 (Friday, June 14, 2002)]
[Senate]
[Pages S5569-S5573]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
TERRORIST BOMBINGS CONVENTION
Mr. LEAHY. Madam President, the Senator from Iowa has left the floor.
I note he and the Senator from Virginia--we had attempted to move the
Harkin-Allen amendment through the Judiciary Committee yesterday. There
was an objection to moving it, on the Republican side; otherwise, I
would think we could have had it on the floor as a freestanding matter.
We are considering the Leahy-Hatch substitute for the Terrorist
Bombing Convention. This bill brings the United States into immediate
compliance with two international conventions signed by the United
States. Both conventions were entered into after the terrorist bombings
at the U.S. embassies in Kenya and Tanzania. If anybody wants to know
why these treaties are important, look at the news today, the horrific
car bombing outside the U.S. consulate in Karachi, Pakistan.
We grieve for the victims; we mourn with the families of the dead;
and we pray for the speedy recovery of the injured. And, Mr. President,
we act. Not tomorrow--not next month--but today. We act to protect
future victims. We act to punish future evil doers. We act to show that
the United States will lead the international community in the fight to
end such terrorist bombings. That is precisely what my bill, S. 1770,
and the Leahy-Hatch substitute does. Although I introduced this bill
over six months ago, today's events should serve as a jolt to us all.
The time for delay and obstructionism and partisan bickering is over.
It is time to pass this bill.
I am pleased the Senate is considering the Leahy-Hatch substitute
amendment to S. 1770, the ``Terrorist Bombing Convention and
Suppression of the Financing of Terrorism Convention Implementation
Acts of 2001.'' This bill will bring the United States into immediate
compliance with two important international conventions, which were
signed by the United States and transmitted to the United States Senate
for ratification by President Clinton. Both Conventions were entered
into after the terrorist bombings at the United States embassies in
Kenya and Tanzania.
Consideration of these important treaties was inexcusably delayed
when the Senate was under Republican control, and passage of this
implementation legislation has been likewise blocked by an anonymous
Republican hold. As I urged in a statement on the floor of the Senate
on June 7, Republican obstructionism on this anti-terrorism legislation
should stop, the anonymous Republican hold on this bill should be
lifted and this bill should pass.
The International Convention for the Suppression of Terrorist
Bombings--``Bombing Convention''--was adopted by the United Nations
General Assembly in December 1997 and signed by the United States in
January 1998. In September 1999, it was transmitted to the Senate by
President Clinton for ratification, but no action was taken on this
treaty while the Senate remained under Republican control.
The International Convention for the Suppression of Financing
Terrorism--``Financing Convention''--was adopted by the United Nations
General Assembly in December 1999 and signed by the United States in
January 2000. In October 2000, it was transmitted to the Senate by
President Clinton for ratification, but, again, no action was taken on
this treaty while the Senate remained under Republican control.
When the Senate reorganized under a Democratic majority last summer,
the Foreign Relations Committee under the leadership of Chairman Biden
moved expeditiously to report these conventions to the full Senate. The
antibombing treaty, in particular, sat in the Foreign Relations
Committee for approximately 2 years without action during the Clinton
administration when the Senate was under Republican control. Senator
Biden deserves credit for acting quickly to report these treaties
shortly after he assumed chairmanship of the Foreign Relations
Committee. Under the leadership of Majority Leader Daschle, the two
treaties were considered by the Senate, which gave its consent to
ratification by unanimous consent on December 5, 2001.
Yet even as Senator Biden and Majority Leader Daschle were pushing to
move the treaties themselves through the Senate, the Bush
administration did not transmit proposed implementing legislation to
the Judiciary Committee before or during the time that we were working
together day and night to write the USA PATRIOT Act, the bipartisan
antiterrorism legislation responding to the events of September 11. I
remain puzzled why the administration felt that this measure should be
separated from that effort.
Both treaties require the signatory nations to enact certain,
precisely worded criminal provisions in their laws in order to be in
compliance. That is what S. 1770, the Leahy bill, does. I introduced S.
1770, on December 5, 2001, shortly after passage of the USA Patriot
Act, as a separate bill. This was the same day that the Senate agreed
to ratify both treaties. I then tried to
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move the bill quickly through the Senate, but an anonymous Republican
hold blocked passage.
Again this year I tried to move the bill through the Senate, but
again there was an anonymous hold from the Republican side of the aisle
which blocked its passage. Had there not been a hold placed on the bill
last year, I am quite sure that we could have resolved any remaining
issues in conference, as the Republican-controlled House was
simultaneously passing its own version of my bill.
After the anonymous hold was placed on S. 1770 at the end of the last
session, we received a letter from the Department of Justice on January
29, 2002, about the bill. The letter stated that the Department
``support[ed] the legislation but recommend[ed] several
modifications.'' None of the modifications which the Department
recommended dealt with issues that were necessary for compliance with
the treaties, the basic purpose of the bill. The legislation I
originally introduced would bring this country into full compliance
with those important obligations and take away an excuse from nations
that are hesitant to cooperate in the war against terrorism.
The recent spate of horrible suicide bombings around the world and
the fact that the convention prohibiting terrorist financing entered
into force on April 10, 2002, demonstrate the pressing need for this
legislation. As if that was not enough, only last month the FBI
Director warned that he believes that suicide bombings in the United
States are ``inevitable,'' bringing home the point that this
legislation is required both to fight terrorism at home and abroad.
Nevertheless, S. 1770 has been subjected to an anonymous Republican
hold since December of last year.
In the post-September 11 environment it is almost beyond my
understanding why any Member of this body would secretly obstruct
passage of an important piece of antiterrorism legislation--yet here we
are in June, blocked from compliance with two international terrorism
treaties by a secret Republican hold. As the Administration has made
clear, both Conventions are:
important to insure that all nations have in place laws to
enable full and effective international cooperation against
terrorism. By enacting this legislation, the United States
will be in a position to lead the cooperative effort against
terrorist bombings and terrorist finances.
See Statement of Administration Policy, December 19, 2001.
The legislation meets our obligations under the treaties in the
following ways. Both conventions require signatory nations to adopt
criminal laws prohibiting specified terrorist activities in order to
create a regime of universal jurisdiction over certain crimes. Articles
2 and 4 of the Bombing Convention require signatory countries to
criminalize the delivery, placement, discharge or detonation of
explosives and other lethal devices ``in, into, or against'' various
defined public places with the intent to kill, cause serious bodily
injury, or extensively damage such public places. The Bombing
Convention also requires that signatories criminalize aiding and
abetting, attempting, or conspiring to commit such crimes.
Articles 2 and 4 of the Financing Convention require signatory
countries to criminalize willfully ``providing or collecting'' funds,
directly or indirectly, with knowledge that they are to be used to
carry out acts which either (1) violate nine enumerated existing
treaties, or (2) are aimed at killing or injuring civilians with the
purpose of intimidating a population or compelling a government to do
any act. The Financing Convention also requires that signatories
criminalize aiding and abetting, attempting, or conspiring to commit
such crimes. Signatories must criminalize such acts under Article 2
whether or not ``the funds were actually used to carry out'' such an
offense.
Both conventions require that signatory nations exercise limited
extraterritorial jurisdiction and extradite or prosecute those who
commit such crimes when found inside their borders. The conventions
also require that signatories ensure that, under their domestic laws,
political, religious, ideological, racial or other similar
considerations are not a justification for committing the enumerated
crimes. Thus, signatory nations will not be able to assert such bases
to deny an extradition request for a covered crime. Finally, Article 4
of each convention requires that signatory states make the covered
offenses ``punishable by appropriate penalties which take into account
the grave nature of [the] offenses.''
S. 1770 and the substitute amendment, consistent with the House
version of this bill, H.R. 3275, create two new crimes (one for
bombings and another for financing terrorist acts) that track precisely
the language in the treaties, and bring the United States into
compliance. The legislation also provides extraterritorial jurisdiction
as required by the conventions. Furthermore the bill creates domestic
jurisdiction for these crimes in limited situations where a national
interest is implicated, while excluding jurisdiction over acts where
the conventions do not require such jurisdiction and there is no
distinct federal interest served.
The bill, again consistent with the H.R. 3275, also contains
``ancillary provisions'' that would make the two new crimes predicates
for money laundering and RICO charges, and for wiretaps. The two
provisions would also be subject to an 8-year statute of limitations
and included as a ``federal crime of terrorism.'' Finally, civil asset
forfeiture would be available for the new terrorism financing crime.
Existing anti-terrorism crimes are predicates for each of these tools,
and providing law enforcement with these ancillary provisions is both
consistent and appropriate.
Neither international convention requires a death penalty provision
for any covered crime. Indeed, the Department of Justice, in a
memorandum dated November 14, 2001 to the Subcommittee on Crime of the
House Judiciary Committee, made amply clear that ``the death penalty is
not required by the Convention'' and would not be required to bring the
United States into compliance. This should come as no surprise, given
international sentiment opposing the United States' use of the death
penalty in other contexts.
The inclusion of a death penalty provision in the implementing
legislation for these conventions could lead to complications in
extraditing individuals to the United States from countries that do not
employ the death penalty. Therefore, unlike the House version of the
implementing legislation, the original Senate version of S. 1770
contained no new death penalty provision.
The Administration's insistence on adding yet another death penalty
to our federal criminal laws is especially inexplicable given the
context of this implementing legislation. The chief purpose of the
Terrorist Bombing Convention is to foster international cooperation and
decrease hurdles to extradition in terrorism cases. The United States,
understandably, wants those who victimize its citizens around the world
to be subject to trial and punishment in our own courts. Beyond that
purpose, the legislation is largely duplicative of existing state and
federal laws.
Even in the recent terrorism context, however, where the desire to
assist the United States is at its peak, our closest allies have balked
or obstructed our prosecution efforts when the death penalty has been
implicated, wasting valuable time in our proactive efforts to prevent
future attacks. For instance, according to press reports France offered
legal assistance to Zacarrias Moussaoui, the so-called ``20th
Hijacker,'' in part due to the decision to seek the death penalty in
his case. Spain also refused to extradite a highly dangerous group of
terrorists to the United States based upon concerns about the death
penalty, and a European Union raises similar concerns. This week the
Washington Post reported that Germany also is refusing to fully
cooperate in the prosecution of Moussaoui because the United States is
seeking the death penalty in that case. In short, the primary purpose
of this implementing legislation, fostering international cooperation,
may be defeated by the White House's insistence on the inclusion of a
death penalty provision in this bill.
Nevertheless, at the insistence of the White House, the substitute
amendment would allow the government to seek the death penalty in
bombing
[[Page S5571]]
cases where death results, by reference to the existing death penalty
provision found in 18 U.S.C. Sec. 2332a, prohibiting the use of weapons
of mass destruction.
Unlike H.R. 3275, the original Senate version of S. 1770 also did not
contain a third new crime for ``concealment'' of material support for
terrorists. The Department of Justice conceded in the November, 2001,
memorandum that this provision was not necessary to bring the United
States into compliance with the conventions, stating, ``the concealment
offense set forth in proposed 18 U.S.C. Sec. 2339(c)(b) does not
directly implement the Convention.'' Indeed, in the wake of the passage
of new money laundering provisions in the USA PATRIOT Act, P.L. No.
107-56, and due to the existence of a concealment crime under 18 U.S.C.
Sec. 2339A, with which the Department of Justice recently charged
several people in New York, including a criminal defense attorney, such
legislation is largely duplicative of existing law. More problematic,
however, is the fact that the House bill provided a lower mens rea
requirement than Sec. 2339A, an important change that was not
highlighted or explained in the Administration's accompanying
materials.
The substitute amendment contains a new crime of concealment that
tracks the existing mens rea requirements of Sec. 2339A, so that a
large class of non terrorist related activity is not inadvertently
covered. This new crime would be punishable by ten years imprisonment.
Finally, the original Senate bill contained an important new tool for
international cooperation between law enforcement which is not included
in H.R. 3275 and has been deleted from the substitute amendment.
Currently, there is no clear statutory authority allowing domestic law
enforcement agents to share Title III wiretap information with foreign
law enforcement counterparts. This may create problems when, for
example, the DEA seeks to alert Colombian authorities that a cocaine
shipment is about to leave a Colombian port but the information is
derived from a Title III wiretap.
The original bill would have clarified the authority for sharing
wiretap derived information, specifically in the Title III context. The
bill provided a clear mechanism through which law enforcement could
share wiretap information with foreign law enforcement, while at the
same time ensuring that there are appropriate safeguards to protect
this sensitive information against misuse. It added a subsection to 18
U.S.C. Sec. 2517, permitting disclosure of wiretap information to
foreign officials (1) with judicial approval, (2) in such a manner and
under such conditions as a court may direct, and (3) consistent with
Attorney General guidelines on how the information may be used to
protect confidentiality. Unfortunately, due to the White House's
objection, the substitute removes it from the bill.
I am pleased that obstructing has stopped on this important
implementing legislation for two anti-terrorism treaties that are
intended to increase protections for our national security by enhancing
international cooperation in the fight against terrorism.
I ask unanimous consent for the substitute to be printed in its
entirety the record at the conclusion of my remarks along with the
sectional analysis including a summary of the changes made by the
substitute to the original bill.
Anti-Terrorism Conventions Implementation--Section-by-Section Analysis
TITLE I--Suppression of Terrorist Bombings
Title I of this bill implements the International
Convention for the Suppression of Terrorist Bombings, which
was signed by the United States on January 12, 1998, and was
transmitted to the Senate for its advice and consent to
ratification on September 8, 1999. Twenty-eight States are
currently party to the Convention, which entered into force
internationally on May 23, 2001. The Convention requires
State Parties to combat terrorism by criminalizing certain
attacks on public places committed with explosives or other
lethal devices, including biological, chemical and
radiological devices. The Convention also requires that State
Parties criminalize aiding and abetting, conspiring and
attempting to undertake such terrorist attacks.
Section 101. Short Title
Section 101 provides that title I may be cited as ``The
Terrorist Bombings Convention Implementation Act of 2001.''
Section 102. Bombing Statute
Section 102 adds a new section to the Federal criminal
code, to be codified at 18 U.S.C. Sec. 2332f and entitled
``Bombings of places of public use, government facilities,
public transportation systems and infrastructure
facilities,'' which makes terrorist acts covered by the
Convention a crime. New section 2332f supplements and does
not supplant existing Federal and State laws, and contains
five subsections, which are described below.
Subsection (a) makes it a crime to unlawfully place or
detonate an explosive in certain public places and facilities
with the intent to cause death or serious bodily injury, or
with the intent to cause extensive destruction, where such
destruction results in, or is likely to result in, major
economic loss. Conspiracies and attempts to commit such
crimes are also criminalized. This provision implements
Article 2, paragraphs 1, 2 and 3 of the Convention.
Inclusion of the term ``unlawfully'' in subsection (a),
which is mirrored in Article 2 of the Convention defining the
offenses, is intended to allow what would be considered under
U.S. law as common law defenses. For purposes of subsection
(a), whether a person acts ``unlawfully'' will depend on
whether he is acting within the scope of authority recognized
under and consistent with existing U.S. law, which reflects
international law principles, such as self defense or lawful
use of force by police authorities. This language is not to
be construed as permitting the assertion, as a defense to
prosecution under new section 2332f, that a person
purportedly acted under authority conveyed by any particular
foreign government or official. Such a construction, which
would exempt State-sponsored terrorism, would be clearly at
odds with the purpose of the Convention and this implementing
legislation.
With respect to the mens rea provision of subsection (a),
it is sufficient if the intent is to significantly damage the
targeted public place or facility. Further, for the purpose
of subsection (a), when determining whether the act resulted
in, or was likely to result in, major economic loss, the
physical damage to the targeted place or facility may be
considered, as well as other types of economic loss
including, but not limited to, the monetary loss or other
adverse effects resulting from the interruption of its
activities. The adverse effects on non- targeted entities and
individuals, the economy and the government may also be
considered in this determination insofar as they are due to
the destruction caused by the unlawful act.
Subsection (b) establishes the jurisdictional bases for the
covered offenses and includes jurisdiction over perpetrators
of offenses abroad who are subsequently found within the
United States. This provision implements a crucial element of
the Convention (Article 8(1)), which requires all State
Parties to either extradite or prosecute perpetrators of
offenses covered by the Convention who are found within the
jurisdiction of a State Party. While current Federal or State
criminal laws encompass all the activity prohibited by the
Convention that occurs within the United States, subsection
(b)(1) ensures Federal jurisdiction where there is a unique
Federal interest, e.g., a foreign government is the victim of
the crime or the offense is committed in an attempt to compel
the United States to do or abstain from doing any act.
Subsection (c) establishes the penalties for committing the
covered crimes at any term of years or life. This provision
differs from the Administration proposal, which sought to add
a new death penalty provision for this crime, despite the
fact that such a provision is not required for compliance
under the Convention and may create hurdles in seeking
extradition to the United States under this statute.
Subsection (d) sets forth certain exemptions to
jurisdiction as provided by the Convention. Specifically, the
subsection exempts from jurisdiction activities of armed
forces during an armed conflict and activities undertaken by
military forces of a State in the exercise of their official
duties.
Subsection (e) contains definitions of twelve terms that
are used in the new law. Six of those definitions (``State or
government facility,'' ``infrastructure facility,'' ``place
of public use,'' ``public transportation system,'' ``other
lethal device,'' and ``military forces of a State'') are the
same definitions used in the Convention. Four additional
definitions (``serious bodily injury,'' ``explosive,''
``national of the United States,'' and ``intergovernmental
organization'') are definitions that already exist in other
U.S. statutes. One of those definitions (``armed conflict'')
is defined consistent with an international instrument
relating to the law of war, and a U.S. Understanding to the
Convention that is recommended to be made at the time of U.S.
ratification. The final term (``State'') has the same meaning
as that term has under international law.
Section 103. Effective Date
Since the purpose of Title I is to implement the
Convention, section 103 provides that the new criminal
offense created in Section 102 will not become effective
until the date that the Convention enters into force in the
United States. This will ensure immediate compliance of the
United States with its obligations under the Convention.
Title II--Suppression of the Financing of Terrorism
Title II implements the International Convention for the
Suppression of the Financing of Terrorism, which was signed
by the United States on January 10, 2000, and was
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transmitted to the Senate for its advice and consent to
ratification on October 12, 2000. The Convention is not yet
in force internationally, but will enter into force 30 days
after the deposit of the 22nd instrument of ratification with
the U.N. Secretary-General. Once in force, the Convention
requires State Parties to combat terrorism by criminalizing
certain financial transactions made in furtherance of various
terrorist activities. The Convention also requires that State
Parties criminalize conspiracies and attempts to undertake
such financing.
Section 201. Short Title
Section 201 provides that title II may be cited as ``The
Suppression of Financing of Terrorism Convention
Implementation Act of 2001.''
Section 202. Terrorism Financing Statute
Section 202(a) adds a new section to the Federal criminal
code, to be codified at 18 U.S.C. Sec. 2339C and entitled
``Prohibitions against the financing of terrorism,'' which
makes financial acts covered by the Convention a crime. New
section 2339C supplements and does not supplant existing
Federal and State laws, and contains five subsections, which
are described below.
Subsection (a) makes it a crime to provide or collect funds
with the intention or knowledge that such funds are to be
used to carry out certain terrorist acts. Conspiracies and
attempts to commit these crimes are also criminalized. This
subsection implements Article 2, paragraphs 1, 3, 4 and 5 of
the Convention.
Subsection (b) establishes the jurisdictional bases for the
covered offenses under section 2339C(a) and includes
jurisdiction over perpetrators of offenses abroad who are
subsequently found within the United States. This provision
implements a crucial element of the Convention (Article 10),
which requires all State Parties to either extradite or
prosecute perpetrators of offenses covered by the Convention
who are found within the territory of a State Party.
The structure of this provision is designed to accommodate
the structure of the Convention, which sets forth both
mandatory and permissive bases of jurisdiction, and
excludes certain offenses that lack an international
nexus. Some portions of this provision go beyond the
jurisdictional bases required or expressly permitted under
the Convention, however, where expanded jurisdiction is
desirable from a policy perspective because a unique
Federal interest is implicated and is consistent with the
Constitution.
Subsection (c) establishes the penalties for committing the
covered crimes at imprisonment for not more than 20 years, a
fine under title 18, United States Code, or both. This
penalty is consistent with the current penalties for money
laundering offenses. See 18 U.S.C. Sec. 1956.
Subsection (d) contains 13 definitions of terms that are
used in the new law. Two of those definitions (``government
facility,'' and ``proceeds'') are the same definitions used
in the Convention. The definition for ``funds'' is identical
to that contained in the Convention with the exception that
coins and currency are expressly mentioned as money. The
definitions for ``provides'' and ``collects'' reflect the
broad scope of the Convention. The definition for ``predicate
acts'' specifies the activity for which the funds were being
provided or collected. These are the acts referred to in
subparagraphs (A) and (B) of section 2339C(a)(1). The
definition of ``treaty'' sets forth the nine international
conventions dealing with counter-terrorism found in the Annex
to the Convention. The term ``intergovernmental
organization,'' which is used in the Convention, is
specifically defined to make clear that it contains within
its ambit existing international organizations. The
definitions for ``international organization,'' ``serious
bodily injury,'' and ``national of the United States''
incorporate definitions for those terms that already exist in
other U.S. statutes. One of the definitions (``armed
conflict'') is defined consistent with international
instruments relating to the law of war. The final term
(``State'') has the same meaning as that term has under
international law.
Subsection (e) creates a civil penalty of at least $10,000
payable to the United States, against any legal entity in the
United States, if any person responsible for the management
or control of that legal entity has, in that capacity,
committed an offense set forth in subsection (a) of the new
section 2339C. This civil penalty may be imposed regardless
of whether there is a conviction of such person under
subsection (a), and is in addition to any other criminal,
civil, or administrative liability or penalty allowable under
United States law. Subsection (e) fulfills Article 5 of the
Convention.
Section 203. Effective Date
Section 203 provides that those provisions of the Act that
may be implemented immediately shall become effective upon
enactment. However, two jurisdictional provisions will not
become effective until the Financing Convention enters into
force for the United States. Those provisions are the new 18
U.S.C. Sec. Sec. 2339C(b)(1)(D) and (2)(B). In addition, new
18 U.S.C. Sec. 2339C(d)(7)(I), which is a definitional
section specifically linked to the Bombing Convention, will
not become effective until that Convention enters into
effect.
TITLE III--Ancillary Measures
Title III, which is not required by the International
Conventions but will assist in federal enforcement, adds the
new 18 U.S.C. Sec. Sec. 2332f and 2339C to several existing
provisions of law.
Section 301. Ancillary Measures
Sections 2332f and 2339C are made predicates under the
wiretap statute (18 U.S.C. Sec. 2516(1)(q)) and under the
statute relating to the provision of material support to
terrorists (18 U.S.C. Sec. 2339A). Sections 2332f and 2339C
are also added to those offenses defined as a ``Federal crime
of terrorism'' under 18 U.S.C. Sec. 2332b(g)(5)(B), as
amended by the USA PATRIOT Act. P.L. No. 107-56. In addition,
a provision is added to the civil asset forfeiture statute
that makes this tool available in the case of a violation of
18 U.S.C. Sec. 2339C. These provisions are consistent with
the treatment of similar Federal crimes already in existence.
TITLE IV--Foreign Disclosure of Wiretap Intercepts
This provision, which is not required by the International
Conventions, clarifies that Federal law enforcement
authorities may disclose otherwise confidential wiretap
information to their foreign counterparts with appropriate
judicial approval. This provision is intended to ensure
effective cooperation between domestic and foreign law
enforcement in the investigation and prosecution of
international criminal organizations.
Section 401. Short Title
Section 401 provides that title IV may be cited as ``The
Foreign Law Enforcement Cooperation Act of 2001.''
Section 402. Amendment to Wiretap Statute
Section 402 adds a new subsection to 18 U.S.C. Sec. 2517
that governs the disclosure of otherwise confidential
information gathered pursuant to a Title III wiretap. This
provision clarifies the authority of domestic law enforcement
officers to disclose such information as may show a violation
of either domestic or foreign criminal law to foreign law
enforcement officials. The provision requires a court order
prior to making such a disclosure and sets the standards for
the issuance of such an order. It is intended to allow
foreign disclosure only to enforce the criminal laws of
either the United States or the foreign nation. It also
requires that an attorney for the government certify that the
foreign officials who are to receive the wiretap information
have been informed of the Attorney General's guidelines
protecting confidentiality. This provision is intended to
enhance the ability of domestic law enforcement to work with
their foreign counterparts to investigate international
criminal activity at the same time as protecting against
improper use of such wiretap information.
Mr. LEAHY. Madam President, we must act. The United States must lead
the international community in the fight to end such terrorist
bombings. This is precisely what the Leahy-Hatch substitute does. We
have been trying to pass this legislation for 6 months. We have been
trying to clear it. We have been involved with the White House to reach
a consensus.
I thank Senator Hatch for his work, and the White House. We have
worked out the whole matter with the White House and with Senators. I
urge its passage. I urge its passage with as large a vote as possible.
I yield the remainder of our time.
Mr. ENZI. Madam President, I rise in support of H.R. 3275. I am very
pleased that the Senate is considering this valuable legislation which
would make the United States compliant with two very important
treaties.
I believe one of our most significant duties, as the United States
Senate, is the consideration of treaties for ratification. We alone
have the responsibility to give advice and consent to international
understandings and agreements made by the executive branch of our
Government.
The two treaties this legislation addresses are part of a nearly
four-decade process of conventions considering acts of terrorism. As we
debate this legislation, we are examining long-term global means to
address the threat of terrorism. The Convention on the Suppression of
Terrorist Bombings and the Convention for the Suppression of the
Financing of Terrorism require the United States and any country
adopting the treaties to criminalize terrorist bombings and to
criminalize direct or indirect financing of terrorist acts.
The Financing Convention addresses some of the issues we worked on
last year. The Senate has already approved antiterrorism legislation
that included provisions dealing with money laundering issues which
help deter and punish terrorist acts and would enhance law enforcement
investigatory tools. The legislation established rule-making procedures
for the U.S. Treasury, clarified guidelines for international banking,
and maintained accountability considerations for individuals and
financial institutions. I believe it is imperative that we continue to
address terrorist financing domestically as well as internationally. In
response to requests by the United States, countries throughout the
world began the
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search for terrorists' financial assets. The freezing of these assets
is a first step to the eradication of global terrorist organizations.
On September 28 of last year, the United Nations Security Council
adopted Resolution 1373 which established a set of legally binding
obligations for each member nation. Now, this is quite significant
because there are not a lot of legally binding resolutions considered
by the Security Council. Resolution 1373 requires each nation to
prevent the financing of terrorism, deny safe haven to terrorists, and
increase cooperation and information sharing in these efforts.
Resolution 1373, which passed with our support, also directs nations to
ratify all outstanding terrorism related conventions.
Nations, both allies and former adversaries, overwhelmingly acted to
sign, ratify, and become compliant with a number of terrorism
conventions. It has taken the United States nearly 9 months to do so.
The Senate Foreign Relations Committee held a hearing on these treaties
last October and approved them in November. The full Senate ratified
the treaties in December.
Now, most people might think that once the Senate gives its advice
and consent to a treaty, it is ratified and the United States is full
party to the agreement. This could only be seen as a ``virtual''
ratification. It is not, however, until the United States is fully
compliant with the treaty that the President can deposit our articles
of ratification and we become full treaty members.
It is this last step where the Senate faltered. We had the House
approved implementing legislation last December. We are only now, in
June, contemplating its passage. We cannot drag our feet any longer.
Today we are considering implementing language. We are ready to vote.
We are ready to make the United States compliant with important
treaties that can help us fight against terrorism. The amendment
language is identical to the version passed by the House in December.
It is the right language, the appropriate language and should pass the
Senate today.
I encourage my colleagues to support this amendment, support the
fight against terrorism, and support making the United States compliant
to these two valuable international agreements.
Mr. FEINGOLD. Madam President, I rise today to oppose a provision in
H.R. 3275, the Terrorist Bombings Convention Implementation Act, and
the proposed Leahy-Hatch amendment to S. 1770, the Senate version of
this implementing legislation, which would authorize the use of the
death penalty by the Federal Government.
This bill seeks to implement into Federal law the obligations of the
United States under the International Convention for the Suppression of
Terrorist Bombings and the International Convention for the Suppression
of the Financing of Terrorism. The U.S. signed these conventions, which
were later ratified by the Senate on December 5, 2001. These two
conventions are vital to our efforts to fight terrorism. These
conventions will fill an important gap in international law by
expanding the legal framework for international cooperation in the
investigation, prosecution, and extradition of persons who engage in
bombings and financially support terrorist organizations. Both
conventions require participating countries to pass specific criminal
laws to implement those nations' obligations under the conventions.
But while these conventions do not require a death penalty, the House
bill and the proposed amendment to the Senate bill would authorize the
use of the death penalty by the United States. Not only do I oppose the
expansion of the Federal death penalty at a time when Americans are
questioning the fairness of the administration of this punishment, but
I also fear that expanding the Federal death penalty through this
implementing legislation will undermine our fight against terrorism.
I fear that the inclusion of a death penalty could actually thwart
the purpose of these conventions. Instead of encouraging international
cooperation in the fight against terrorism, this implementing
legislation threatens to hamper international cooperation to prevent
and punish terrorist bombings and financing of terrorist organizations.
Many nations, including our closest allies in the fight against
terrorism, may refuse to extradite suspects to nations where those
suspects will face the death penalty. Already our allies like France
and Germany have expressed their concerns about extraditing individuals
or sharing information concerning al-Qaeda suspects out of concern that
the United States will seek the death penalty against suspected
terrorists. As this experience obviously shows, it doesn't serve the
cause of justice, peace, or freedom to include a death penalty
provision in this important bill.
Moreover, this is not the time to expand the Federal death penalty.
Americans are increasingly recognizing that the current death penalty
system is broken, and risks executing the innocent or applying the
ultimate punishment disproportionately to those who may live in the
``wrong'' part of the country, have the ``wrong'' color skin, or just
not have the money to pay for a ``dream team'' defense.
These problems plague the integrity of the justice system at the
state and federal levels. A report released by the Justice Department
in September 2000 showed troubling racial and geographic disparities in
the administration of the federal death penalty. The color of a
defendant's skin or the federal district in which the prosecution takes
place can affect whether a defendant lives or dies in the federal
system. Former Attorney General Janet Reno ordered a further analysis
of why these disparities exist. And Attorney General Ashcroft has
agreed to continue this study.
We have not yet seen the results of this study, nor have we had the
opportunity to review and understand what the results might mean for
the fairness and integrity of our federal justice system. While this
important study is underway, Congress should not create even more
death-eligible crimes.
As Governor George Ryan of Illinois said at a hearing I held on June
12th in the Senate Judiciary Subcommittee on the Constitution on the
report of the Illinois Governor's Commission on Capital Punishment,
``especially after September 11, . . . the United States must be a
model for the rest of the world. And that means our justice system
should be the glowing example for the pursuit of truth and justice. It
must be fair and compassionate.''
There is no question that we should prosecute and punish severely
those responsible for the horrific attacks on our nation on September
11th or those who may plan or perpetrate acts of terror in the future.
But I am very concerned that the bill's provision for the death penalty
against suspected terrorists could undermine the purpose of the
conventions and our ability to seek vital information and cooperation
from other nations. I fear that the death penalty provision will
weaken, not strengthen, our hand in pursuing terrorists, especially our
global efforts to bring alleged terrorists to justice and to prevent
future acts of terror.
For these reasons, I cannot in good conscience support H.R. 3275, the
proposed Leahy substitute amendment to H.R. 3275, the proposed Leahy-
Hatch amendment to S. 1770, or S. 1770, if the amendment should be
adopted.
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