[Congressional Record (Bound Edition), Volume 148 (2002), Part 8]
[Senate]
[Pages 10393-10397]
[From the U.S. 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 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

[[Page 10394]]

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 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

[[Page 10395]]

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 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.

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     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

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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 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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