[Congressional Record (Bound Edition), Volume 153 (2007), Part 4]
[Senate]
[Pages 5271-5273]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           AMENDMENTS TO S. 4

  Mr. CORNYN. Madam President, I want to speak briefly on four 
different amendments that are pending to the 9/11 bill that is on the 
Senate floor. First of all, I want to talk about the issue of homeland 
security grant funding. Today, I will join with my colleague, Senator 
Dianne Feinstein of California, and several other colleagues and ask 
that this amendment be accepted. It stands on the principle that the 
limited funds that are available from the taxpayers' pockets to pay for 
homeland security be prioritized based on security concerns and not 
divvied up based on porkbarrel politics.
  I realize the first instinct, perhaps, of a body that represents as 
diverse a nation as ours, with 50 States, is to take whatever amount of 
money there might be for any particular project and figure a way to 
divide it up 50 ways.
  We know our security risks are not based on that sort of structure or 
approach, and it is important that we do try to take the limited 
resources we have available for homeland security grant funding and 
allocate them on a risk-based approach.
  This approach is pretty simple. It is so simple and so commonsense, 
it strikes me as unusual that it has not already been embraced by the 
Congress. It is simply a system that will protect our most vulnerable 
assets and populations, one that recognizes the need to protect the 
critical infrastructure and vital components of our national economy. 
It is vital that we better allocate our limited resources to the most 
vulnerable places in the country that we need to protect, and that 
these funds be distributed in an efficient and timely manner.
  The principle upon which this risk-based funding is premised has 
three main criteria: threat, vulnerability, and consequence. That is, 
what is the greatest threat to our country? What is the greatest 
vulnerability in terms of if there was a successful attack against our 
Nation's infrastructure, what infrastructure would be the most 
vulnerable and have the greatest negative consequence on our country?
  It requires States to quickly pass on Federal funds to areas where 
they are most needed as well and provides greater flexibility using 
these funds and that they be done consistent with federally established 
capability standards.
  This amendment would allow States to retain authority to administer 
grant programs, but there are penalties to States that do not pass 
funds on to local governments within 45 days. If a State fails to pass 
the funds through, local governments may, under this amendment, 
petition the Department of Homeland Security to receive those funds 
directly.
  This is an attempt to respond to one of the concerns I hear in my 
State from local governments and local authorities that are dependent 
on the State government to actually pass the funds through. In fact, 
despite the good work this body did on issues such as Hurricane Katrina 
and Hurricane Rita relief, we find that a lot of the funds that have 
been appropriated by Congress are simply bogged down in the 
bureaucratic structure when it moves from the Federal Government to the 
State government on to local governments.
  So this amendment, which I hope our colleagues will support and which 
will actually result in a net increase in funds to 70 percent of the 
States, is based on two fundamental premises. One is that we ought to 
allocate those limited funds based on risk, vulnerability, and 
consequence, and that we ought to then try to get the money to the 
local officials and the local persons who need it most and to break it 
out of this bureaucratic structure that too often delays funds getting 
to the people who need it most quickly.
  I also have offered an amendment separately, amendment No. 312, about 
which I wish to speak briefly. This is a terrorism recruiting 
prohibition and penalty that is lacking under our current law. We know 
it has been more than 5 years since we were attacked on September 11. 
It is important, as time works to ease the pain on that terrible day, 
that we in Congress ensure we are providing every possible tool to 
prevent another terrorist attack on American soil. We have made 
significant progress in updating our law enforcement and intelligence 
agencies, enabling them to better protect us at home and abroad, but 
there is still a lot we need to do.
  One area we must address and is addressed by this amendment is the 
issue of terrorist recruiting.
  The FBI and other agencies of the Federal Government have made it 
clear that al-Qaida and other terrorists are intent on striking us 
again. We know from the 9/11 report that al-Qaida is patient and 
willing to wait years to take advantage of an opportunity to attack us, 
and in the meanwhile, they carefully formulate how they will carry out 
their plan. According to congressional testimony, terrorists and 
terrorist sympathizers are seeking to recruit people within the United 
States. Of course, their goal is to find individuals who do not fit the 
traditional terrorist model who are willing to engage in terrorism. 
Recruiting these individuals who blend easily into our society provides 
al-Qaida and other terrorists an operational advantage.
  This is not, however, an academic discussion. Let me use one example 
of why I believe this amendment should be adopted.
  Intelligence documents regarding Khalid Shaikh Mohammed--the so-
called mastermind behind 9/11--reveal that he was running terrorist 
cells in the United States. These documents also show that it was al-
Qaida's goal to recruit U.S. citizens and other westerners who could 
move freely in the United States. They targeted mosques, prisons, and 
universities throughout the United States where they could identify and 
recruit people who they thought might be sympathetic to their cause and 
then persuade these individuals to join their terrorist organization.
  Currently--and this is a shocking fact--we have no statutes 
specifically designed to punish those who recruit people to commit 
terrorist acts. The amendment I am offering would remedy this serious 
gap in our law. My amendment simply provides that it is against the law 
to recruit or, in the words of the amendment, ``to employ, solicit, 
induce, command, or cause'' any person to commit an act of domestic 
terrorism, international terrorism, or Federal crime of terrorism, and 
any person convicted of doing so would face severe punishment. This 
amendment would also provide that anyone committing this crime would be 
punished for up to 10 years in Federal prison. If death of an 
individual results, he or she would be punished, on a finding and 
conviction of guilt, to death or any term of years or for life. If 
serious bodily injury to any individual results, the punishment would 
be no less than 10 years or for no more than 25 years.
  I believe this is a commonsense amendment designed to fill a serious 
gap in our Criminal Code that should not exist any longer, certainly 
not this long after 9/11. I urge my colleagues to support this 
amendment.
  I have also offered amendment No. 311, which is one that is not 
unfamiliar to Members of this body. I offered this amendment during our 
immigration debates last year. It is one supported by the Department of 
Homeland Security because this amendment, which received bipartisan 
support last year, will remove current litigation barriers impeding the 
ability of the Secretary of Homeland Security to do his job; that is, 
enforce the immigration laws, especially as they are related to 
apprehension, detention, and expedited removals of illegal aliens.
  We know one of the most obvious symbols of the Federal Government's 
failure to deal with our immigration problem and our broken borders is 
the

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now repudiated catch-and-release program where, because of lack of 
adequate facilities to detain individuals, particularly coming from 
countries other than Mexico, they were often caught and then simply 
released on their own recognizance and asked to return for a 
deportation hearing at a later time. Unsurprisingly, the vast majority 
of these individuals did not appear for their deportation hearing but 
merely melted into the landscape.
  In this particular instance, this amendment is designed to address a 
particular court-ordered permanent injunction issued in an immigration 
case 19 years ago. This is the Orantes case. This Orantes injunction 
has hindered the Department of Homeland Security to promptly remove, 
immediately after apprehension, Salvadoran illegal aliens.
  While Secretary Chertoff has made great strides in increasing the 
number of illegal aliens from countries other than Mexico detained for 
removal along the southwest border and recently ended catch-and-release 
at the border, the limitations contained in this injunction still 
impede the enforcement efforts of the Department of Homeland Security.
  Similarly, other longstanding injunctions have not only impeded the 
ability of the Department of Homeland Security to enforce our 
immigration laws but have also consumed vast amounts of resources and, 
in some cases, are now inconsistent with intervening changes in the 
law.
  This amendment does not eliminate injunctive relief but only requires 
that injunctions be drawn narrowly and not unnecessarily impede the 
enforcement of our immigration laws. Congress enacted comparable 
legislation narrowing the basis for injunctive relief in the Prison 
Litigation Reform Act of 1995, and that legislation has been upheld by 
the Supreme Court.
  This amendment would simply require that courts narrowly tailor 
injunctive relief orders against the Government in immigration cases. 
Courts must limit relief to the minimum necessary to remedy the 
violation; adopt the least intrusive means to remedy violations; 
minimize the adverse impact on national security, border security, 
immigration administration and enforcement, and public safety; and 
finally, provide an expiration date for injunctive relief.
  This amendment would provide that preliminary injunctive relief would 
expire in 90 days from issuance of an order unless the court makes 
findings that permanent relief is required or makes the order final 
before the 90-day period.
  This amendment would also require courts to rule promptly on all 
Government motions to eliminate injunctions in immigration cases.
  If we are serious about creating an immigration law that will 
actually work, then we have to eliminate 19-year-old impediments, such 
as the Orantes injunction, to our ability to end once and for all the 
failed policy of catch-and-release when it comes to illegal 
immigration. I hope my colleagues will vote favorably for amendment No. 
311, which will end this particular impediment, now 19 years old in the 
Orantes case.
  The last amendment I have is amendment No. 310, known as the Zadvydas 
amendment because this amendment will strengthen the Government's 
ability to detain criminal aliens, including murderers, rapists, and 
child molesters, until they can actually be removed. This amendment 
arises out of a decision handed down by the U.S. Supreme Court--it is 
not a constitutional decision; it is merely based upon a statute, one 
which Congress can fix and which my amendment will fix. But this 
decision in June of 2001 simply provided that unless there is a 
reasonable likelihood that a criminal alien who is being held by the 
Government will actually be repatriated to their government within a 
given period of time, failing that, they must be simply released and 
cannot be held any longer by the U.S. Government. Although the 
Government has authority to detain suspected terrorists, under this 
decision, it has only limited authority to detain criminal aliens who 
have been ordered removed.
  Under the Zadvydas decision, the Federal Government has had to 
release hundreds of dangerous illegal aliens into the American 
population. Among them is Carlos Rojas Fritze, who sodomized, raped, 
beat, and robbed a stranger in a public restroom and called it ``an act 
of love.'' Tuan Thai, who repeatedly raped, tortured, and terrorized 
women and vowed to repeat his crimes and who also threatened to kill 
his immigration judge and prosecutor, was likewise released because 
under this decision he could not be held pending repatriation to his 
country of origin.
  Guillermo Perez Aguilar, who repeatedly committed sex crimes against 
children and was arrested for possession of a controlled substance, is 
also an example of an individual who had to be released into the 
American population because he could no longer be held under our 
immigration laws pending repatriation because of the Zadvydas decision.
  The list of criminal offenders such as these is long, and it is 
simply unacceptable that these individuals can roam freely in American 
society because of the way our current laws are interpreted.
  Zadvydas and Suarez Martinez, which is another case following the 
Zadvydas case, were simply statutory holdings, not constitutional 
holdings. As I mentioned a moment ago, Congress has the power--and, I 
would argue, the duty--to address these perils to our security by 
amending the Immigration and Naturalization Act. Indeed, in the 
Zadvydas opinion, the Court invited Congress to revisit the statute.
  Another anomaly created by a recent decision out of the Ninth Circuit 
is a view that the Department of Homeland Security cannot even detain 
aliens during removal proceedings. Neither the Zadvydas nor the Suarez 
Martinez decision made any pronouncements on the Department of Homeland 
Security's authority to detain an alien prior to removal proceedings 
being completed and a removal order issued.
  My amendment, which will essentially cure the defect found by the 
Supreme Court in the Zadvydas case, will clarify that an illegal 
criminal alien can be detained while removal proceedings are ongoing. 
Finally, it will provide that judicial review of ongoing detention, as 
with post-order detention, remains available in the U.S. District Court 
for the District of Columbia via habeas corpus proceedings. In other 
words, there will be periodic administrative review of the detentions 
and an opportunity for judicial review via habeas corpus in the U.S. 
District Court for the District of Columbia, which should address any 
constitutional concerns about indefinite detentions.
  It is simply unacceptable that we should stand by and fail to act on 
this serious threat to public safety in this country, and this sort of 
inaction, when it comes to immigration, I think seriously undermines 
American confidence in their Government. What government would stand by 
and allow these dangerous criminal aliens to simply be released into 
the American heartland when their country of origin has refused or 
perhaps only delayed the repatriation of these individuals back to 
their country of origin?
  We can fix this mistake and this great danger to America's national 
security by adopting this amendment.
  I thank the Chair, and I yield the floor.
  Mr. WEBB. Madam President, I ask unanimous consent to speak for up to 
15 minutes in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Senator Webb pertaining to the introduction of S. 759 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The PRESIDING OFFICER. The galleries will refrain. It is not 
appropriate to show signs of appreciation.
  Mr. WEBB. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.

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  The PRESIDING OFFICER (Mr. Webb). Without objection, it is so 
ordered.

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