[Congressional Record Volume 151, Number 44 (Thursday, April 14, 2005)]
[Senate]
[Pages S3655-S3657]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KYL (for himself, Mr. Cornyn, and Mr. Coburn):
  S. 783. A bill to repeal the sunset on the 2004 material-support 
enhancements, to increase penalties for providing material support to 
terrorist groups, to bar from the United States aliens who have 
received terrorist training, and for other purposes; to the Committee 
on the Judiciary.
  Mr. KYL. Mr. President, I rise today to introduce the Material 
Support to Terrorism Prohibition Improvements Act of 2005.
  Mr. Barry Sabin, the Chief of the Counterterrorism Section of the 
Justice Department's Criminal Division, testified as to the importance 
of the material support statute at a September 13 hearing before the 
Terrorism Subcommittee last year. He emphasized that:

     a key element of the [Justice] Department's strategy for 
     winning the war against terrorism has been to use the 
     material support statutes to prosecute aggressively those 
     individuals who supply terrorists with the support and 
     resources they need to survive. The Department seeks to 
     identify and apprehend terrorists before they can carry out 
     their plans, and the material support statutes are a valuable 
     tool for prosecutors seeking to bring charges against and 
     incapacitate terrorists before they are able to cause death 
     and destruction.

  The bill that I introduce today expands current law's exclusion from 
the United States of persons who give material support to terrorism by 
training at a terrorist camp. The bill makes such persons inadmissible 
to the United States, they now only are deportable, and applies these 
exclusions to pre-enactment terrorist training. Mr. Sabin described at 
last year's hearing the threat posed by persons who have receive 
training at a terrorist camp:

       A danger is posed to the vital foreign policy interests and 
     national security of the United States whenever a person 
     knowingly receives military-type training from a designated 
     terrorist organization or persons acting on its behalf. Such 
     an individual stands ready to further the malicious intent of 
     the terrorist organization through terrorist activity that 
     threatens the security of United States nationals or the 
     national security of the United States.

  My bill would ensure that such persons not only are removed from the 
United States once they are found

[[Page S3656]]

here, but also are prevented from entering this country in the first 
place.
  Today's bill also repeals a 2006 sunset on several recent 
clarifications that were made to the material-support statute in order 
to address vagueness concerns expressed by some courts. At the 
September 13 Terrorism Subcommittee hearing, George Washington 
University law professor Jonathan Turley said of the original 
legislative proposal to clarify the statute: ``[t]his proposal would 
actually improve the current federal law by correcting gaps and 
ambiguities that have led to recent judicial reversals. In that sense, 
the proposal can be viewed as a slight benefit to civil liberties by 
removing a dangerous level of ambiguity in the law.''
  There is no reason why this important provision, and other 
improvements to the material-support statute made in last year's 9/11 
Commission bill, should be allowed to expire at the end of this 
Congress. This bill would make these improvements permanent.
  I ask unanimous consent that the text of the bill and a section by 
section analysis be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 783

       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 ``Material Support to 
     Terrorism Prohibition Improvements Act of 2005''.

     SEC. 2. REPEAL OF SUNSET ON 2004 MATERIAL-SUPPORT 
                   ENHANCEMENTS.

       Section 6603(g) of the Intelligence Reform and Terrorism 
     Prevention Act of 2004 (18 U.S.C. 2332b note) is repealed.

     SEC. 3. BARRING ENTRY TO THE UNITED STATES FOR 
                   REPRESENTATIVES AND MEMBERS OF TERRORIST GROUPS 
                   AND ALIENS WHO HAVE RECEIVED MILITARY-TYPE 
                   TRAINING FROM TERRORIST GROUPS.

       Section 212(a)(3)(B) of the Immigration and Nationality Act 
     (8 U.S.C. 1182(a)(3)(B)) is amended--
       (1) in clause (i)--
       (A) in subclause (IV), by amending item (aa) to read as 
     follows:

       ``(aa) a terrorist organization as defined in clause (vi), 
     or''.

       (B) by striking subclause (V) and inserting the following:
       ``(V) is a member of a terrorist organization--

       ``(aa) described in subclause (I) or (II) of clause (vi); 
     or
       ``(bb) described in clause (vi)(III), unless the alien can 
     demonstrate by clear and convincing evidence that the alien 
     did not know, and should not reasonably have known, that the 
     organization was a terrorist organization,''.

       (C) in subclause (VI), by striking ``or'' at the end;
       (D) in subclause (VII), by inserting ``or'' at the end; and
       (E) by inserting after subclause (VII) the following:
       ``(VIII) has received military-type training (as defined in 
     section 2339D(c)(1) of title 18, United States Code) from, or 
     on behalf of, any organization that, at the time the training 
     was received, was a terrorist organization,''; and
       (2) in clause (vi), by striking ``clause (i)(VI)'' and 
     inserting ``subclauses (VI) and (VIII) of clause (i)''.

     SEC. 4. EXPANDED REMOVAL FROM THE UNITED STATES OF ALIENS WHO 
                   HAVE RECEIVED MILITARY-TYPE TRAINING FROM 
                   TERRORIST GROUPS.

       Section 237(a)(4)(E) of the Immigration and Nationality Act 
     (8 U.S.C. 1227(a)(4)(E)) is amended to read as follows:
       ``(E) Recipient of military-type training.--Any alien who 
     has received military-type training (as defined in section 
     2339D(c)(1) of title 18, United States Code) from or on 
     behalf of any organization that, at the time the training was 
     received, was a terrorist organization (as defined in section 
     212(a)(3)(B)(vi)), is deportable.''.

     SEC. 5. BARRING ENTRY TO AND REMOVING TERRORIST ALIENS FROM 
                   THE UNITED STATES BASED ON PRE-ENACTMENT 
                   TERRORIST CONDUCT.

       The amendments made by sections 3 and 4 of this Act shall 
     apply to--
       (1) all aliens subject to removal, deportation, or 
     exclusion at any time; and
       (2) acts and conditions constituting a ground for 
     inadmissibility, excludability, deportation, or removal 
     occurring or existing before, on, or after the date of 
     enactment of this Act.

     SEC. 6. INCREASED PENALTIES FOR PROVIDING MATERIAL SUPPORT TO 
                   TERRORIST GROUPS.

       (a) Providing Material Support to Terrorists.--Section 
     2339A(a) of title 18, United States Code, is amended by 
     striking ``, imprisoned not more than 15 years,'' and all 
     that follows through ``life.'' and inserting ``and imprisoned 
     for not less than 5 years and not more than 25 years, and, if 
     the death of any person results, shall be imprisoned for not 
     less than 15 years or for life.''.
       (b) Providing Material Support or Resources to Designated 
     Foreign Terrorist Organizations.--Section 2339B(a) of title 
     18, United States Code, is amended by striking ``or 
     imprisoned not more than 15 years,'' and all that follows 
     through ``life.'' and inserting ``and imprisoned for not less 
     than 5 years and not more than 25 years, and, if the death of 
     any person results, shall be imprisoned for not less than 15 
     years or for life.''.
       (c) Receiving Military-type Training From a Foreign 
     Terrorist Organization.--Section 2339D of title 18, United 
     States Code, is amended by striking ``or imprisoned for ten 
     years, or both.'' and inserting ``and imprisoned for not less 
     than 3 years and not more than 15 years.''.
                                  ____

       Section 1. Bill Title. ``Material Support to Terrorism 
     Prohibition Improvements Act of 2005.''
       Section 2. Repeal of Sunset on 2004 Material-Support 
     Enhancements. Section 6603 of the Intelligence Reform and 
     Terrorism Prevention Act of 2004 (the 9/11 Commission Act) 
     includes important provisions that expand and clarify the 
     material-support statutes (18 U.S.C. Sec. Sec.  2339A & 
     2339B). These provisions clarify the definitions of the terms 
     ``personnel'', ``training'', and ``expert advice or 
     assistance,'' in order to correct void-for-vagueness problems 
     identified by the Ninth Circuit; expand the jurisdictional 
     bases for material-support offenses; clarify the definition 
     of ``material support;'' and clarify that the United States 
     need only show that a defendant knew that the organization to 
     which he gave material support either engaged in terrorism or 
     was designated as a terror group--thus overruling the Ninth 
     Circuit's conclusion that the United States also must show 
     that the defendant knew of the particular terrorist activity 
     that caused an organization to be designated as a terror 
     group. All of these changes are set to expire on December 31, 
     2006, pursuant to subsection 6603(g) of the 9/11 Commission 
     Act. This section of this Act repeals subsection (g), making 
     the 2004 material-support enhancements permanent.
       Section 3. Barring Entry to the United States for 
     Representatives and Members of Terrorist Groups and Aliens 
     Who Have Received Military-Type Training from Terrorist 
     Groups. This section bars entry to the United States for any 
     alien who has received military-type training from a either a 
     terrorist group that is designated as such by the Secretary 
     of State, or from an undesignated terrorist group. (These 
     groups are defined in 8 U.S.C. Sec.  1182(a)(3)(B)(vi). An 
     undesignated terrorist group is a group that commits or 
     incites terrorist activity with the intent to cause serious 
     bodily injury, prepares or plans terrorist activity, or 
     gathers information on potential targets for terrorist 
     activity.) This section would correct a deficiency in current 
     law, which makes aliens who receive military-type terror 
     training deportable but does not make them inadmissible. 
     Aliens who receive training in violent activity from a 
     terrorist group are not allowed to remain in the United 
     States--they should not be permitted to enter the United 
     States in the first place. This section also bars entry to 
     the United States for aliens who are representatives or 
     members of either designated or undesignated terrorist 
     organizations, though members of undesignated terror groups 
     may avoid exclusion if they can show by clear and convincing 
     evidence that they did not know, and should not reasonably 
     have known, that the organization to which they belonged was 
     a terrorist organization.
       Section 4. Expanded Removal from the United States of 
     Aliens Who Have Received Military-Type Training from 
     Terrorist Groups. Under current law, an alien is deportable 
     if he has received military-type training from a terrorist 
     group that is designated as such by the Secretary of State. 
     See 8 U.S.C. Sec.  1227(a)(4)(E). This section also makes 
     deportable an alien who has received military-type training 
     from an undesignated terrorist group. (See Section 3 above 
     for definition of undesignated terror group.)
       Section 5. Barring Entry to and Removing Terrorist Aliens 
     from the United States Based on Pre-Enactment Terrorist 
     Conduct. This section makes clear that the terrorist-alien 
     deportation and exclusion provisions in sections 3 and 4 of 
     this Act apply to terrorist activity that the alien engaged 
     in before the enactment of this Act. Congress indisputably 
     has the authority to bar and remove aliens from the United 
     States based on past terrorist conduct. See Lehmann v. U.S. 
     ex rel. Carson, 353 U.S. 685, 690 (1957) (``It seems to us 
     indisputable, therefore, that Congress was legislating 
     retrospectively, as it may do, to cover offenses of the kind 
     here involved.'' (emphasis added; citations omitted)). Under 
     this section, an alien who received military-type training 
     from a terrorist group in Afghanistan in 2001 would be barred 
     from entering or remaining in the United States.
       Section 6. Increased Penalties for Providing Material 
     Support to Terrorist Groups. Under current law, providing 
     material support to a terrorist group is a criminal offense 
     that is punishable by zero to 15 years' imprisonment, or zero 
     to life if death results. Receiving military-type training 
     from a terrorist group is punishable by zero to 10

[[Page S3657]]

      years in prison. Under the Supreme Court's recent decision 
     in United States v. Booker, 125 S.Ct. 738 (January 12, 2005), 
     the federal sentencing guidelines' prescriptions no longer 
     are mandatory--district judges now have discretion to impose 
     little or no jail time for material-support offenses. Booker/
     Fanfan also limits the appellate courts' ability to correct a 
     district judge's failure to impose jail time for a material-
     support offense. This section increases the penalties for 
     material-support offenses to 5-25 years' imprisonment, with 
     15 years to life if death results, and raises the military-
     type-training penalty to 3-15 years' imprisonment. These 
     enhanced penalties reflect both the gravity of the offense of 
     providing material support to a terrorist group, and the 
     heightened importance, since the terrorist attacks of 
     September 11, 2001, of deterring individuals from providing 
     aid and comfort to terrorist organizations.
                                 ______