[House Report 107-307]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 107-307
======================================================================
IMPLEMENTATION OF CONVENTION ON TERRORIST BOMBINGS AND SUPPRESSION OF
THE FINANCING OF TERRORISM
_______
November 29, 2001.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 3275]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3275) to implement the International Convention for
the Suppression of Terrorist Bombings to strengthen criminal
laws relating to attacks on places of public use, to implement
the International Convention of the Suppression of the
Financing of Terrorism, to combat terrorism and defend the
Nation against terrorist acts, and for other purposes, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 6
Background and Need for the Legislation.......................... 7
Hearings......................................................... 8
Committee Consideration.......................................... 8
Vote of the Committee............................................ 8
Committee Oversight Findings..................................... 8
Performance Goals and Objectives................................. 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Constitutional Authority Statement............................... 9
Section-by-Section Analysis and Discussion....................... 10
Changes in Existing Law Made by the Bill, as Reported............ 14
Markup Transcript................................................ 22
Minority Views................................................... 67
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
TITLE I--SUPPRESSION OF TERRORIST BOMBINGS
SEC. 101. SHORT TITLE.
This title may be cited as the ``Terrorist Bombings Convention
Implementation Act of 2001''.
SEC. 102. BOMBING STATUTE.
(a) Offense.--Chapter 113B of title 18, United States Code,
relating to terrorism, is amended by inserting after section 2332e the
following new section:
``Sec. 2332f. Bombings of places of public use, government facilities,
public transportation systems and infrastructure
facilities
``(a) Offenses.--
``(1) In general.--Whoever unlawfully delivers, places,
discharges, or detonates an explosive or other lethal device
in, into, or against a place of public use, a state or
government facility, a public transportation system, or an
infrastructure facility--
``(A) with the intent to cause death or serious
bodily injury, or
``(B) with the intent to cause extensive
destruction of such a place, facility, or system, where
such destruction results in or is likely to result in
major economic loss, shall be punished as prescribed in
subsection (c).
``(2) Attempts and conspiracies.--Whoever attempts or
conspires to commit an offense under paragraph (1) shall be
punished as prescribed in subsection (c).
``(b) Jurisdiction.--There is jurisdiction over the offenses in
subsection (a) if--
``(1) the offense takes place in the United States and--
``(A) the offense is committed against another
state or a government facility of such state, including
its embassy or other diplomatic or consular premises of
that state;
``(B) the offense is committed in an attempt to
compel another state or the United States to do or
abstain from doing any act;
``(C) at the time the offense is committed, it is
committed--
``(i) on board a vessel flying the flag of
another state;
``(ii) on board an aircraft which is
registered under the laws of another state; or
``(iii) on board an aircraft which is
operated by the government of another state;
``(D) a perpetrator is found outside the United
States;
``(E) a perpetrator is a national of another state
or a stateless person; or
``(F) a victim is a national of another state or a
stateless person;
``(2) the offense takes place outside the United States
and--
``(A) a perpetrator is a national of the United
States or is a stateless person whose habitual
residence is in the United States;
``(B) a victim is a national of the United States;
``(C) a perpetrator is found in the United States;
``(D) the offense is committed in an attempt to
compel the United States to do or abstain from doing
any act;
``(E) the offense is committed against a state or
government facility of the United States, including an
embassy or other diplomatic or consular premises of the
United States;
``(F) the offense is committed on board a vessel
flying the flag of the United States or an aircraft
which is registered under the laws of the United States
at the time the offense is committed; or
``(G) the offense is committed on board an aircraft
which is operated by the United States.
``(c) Penalties.--Whoever violates this section shall be imprisoned
for any term of years or for life, and if death results from the
violation, shall be punished by death or imprisoned for any term of
years or for life.
``(d) Exemptions to Jurisdiction.--This section does not apply to--
``(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law of war,
which are governed by that law,
``(2) activities undertaken by military forces of a state
in the exercise of their official duties; or
``(3) offenses committed within the United States, where
the alleged offender and the victims are United States citizens
and the alleged offender is found in the United States, or
where jurisdiction is predicated solely on the nationality of
the victims or the alleged offender and the offense has no
substantial effect on interstate or foreign commerce.
``(e) Definitions.--As used in this section, the term--
``(1) `serious bodily injury' has the meaning given that
term in section 1365(g)(3) of this title;
``(2) `national of the United States' has the meaning given
that term in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22));
``(3) `state or government facility' includes any permanent
or temporary facility or conveyance that is used or occupied by
representatives of a state, members of Government, the
legislature or the judiciary or by officials or employees of a
state or any other public authority or entity or by employees
or officials of an intergovernmental organization in connection
with their official duties;
``(4) `intergovernmental organization' includes
international organization (as defined in section 1116(b)(5) of
this title);
``(5) `infrastructure facility' means any publicly or
privately owned facility providing or distributing services for
the benefit of the public, such as water, sewage, energy, fuel,
or communications;
``(6) `place of public use' means those parts of any
building, land, street, waterway, or other location that are
accessible or open to members of the public, whether
continuously, periodically, or occasionally, and encompasses
any commercial, business, cultural, historical, educational,
religious, governmental, entertainment, recreational, or
similar place that is so accessible or open to the public;
``(7) `public transportation system' means all facilities,
conveyances, and instrumentalities, whether publicly or
privately owned, that are used in or for publicly available
services for the transportation of persons or cargo;
``(8) `explosive' has the meaning given in section 844(j)
of this title insofar that it is designed, or has the
capability, to cause death, serious bodily injury, or
substantial material damage;
``(9) `other legal device' means any weapon or device that
is designed or has the capability to cause death, serious
bodily injury, or substantial damage to property through the
release, dissemination, or impact of toxic chemicals,
biological agents, or toxins (as those terms are defined in
section 178 of this title) or radiation or radioactive
material;
``(10) `military forces of a state' means the armed forces
of a state which are organized, trained, and equipped under its
internal law for the primary purpose of national defense or
security, and persons acting in support of those armed forces
who are under their formal command, control, and
responsibility;
``(11) `armed conflict' does not include internal
disturbances and tensions, such as riots, isolated, and
sporadic acts of violence, and other acts of a similar nature;
and
``(12) `state' has the same meaning as that term has under
international law, and includes all political subdivisions
thereof.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 113B of title 18, United States Code, is amended by adding
after the item relating to section 2332e the following:
``2332f. Bombings of places of public use, government facilities,
public transportation systems and infrastructure facilities.''.
(c) Disclaimer.--Nothing contained in this section is intended to
affect the applicability of any other Federal or State law which might
pertain to the underlying conduct.
SEC. 103. EFFECTIVE DATE.
Section 102 of this title shall become effective on the date that
the International Convention for the Suppression of Terrorist Bombings
enters into force for the United States.
TITLE II--SUPPRESSION OF THE FINANCING OF TERRORISM
SEC. 201. SHORT TITLE.
This title may be cited as the ``Suppression of the Financing of
Terrorism Convention Implementation Act of 2001''.
SEC. 202. TERRORISM FINANCING STATUTE.
(a) In General.--Chapter 113B of title 18, United States Code,
relating to terrorism, is amended by adding at the end thereof the
following new section:
``Sec. 2339C. Prohibitions against the financing of terrorism
``(a) Offenses.--
``(1) In general.--Whoever, in a circumstance described in
subsection (c), by any means, directly or indirectly,
unlawfully and willfully provides or collects funds with the
intention that such funds be used, or with the knowledge that
such funds are to be used, in full or in part, in order to
carry out--
``(A) an act which constitutes an offense within
the scope of a treaty specified in subsection (e)(7),
as implemented by the United States, or
``(B) any other act intended to cause death or
serious bodily injury to a civilian, or to any other
person not taking an active part in the hostilities in
a situation of armed conflict, when the purpose of such
act, by its nature or context, is to intimidate a
population, or to compel a government or an
international organization to do or to abstain from
doing any act,
shall be punished as prescribed in subsection (d)(1).
``(2) Attempts and conspiracies.--Whoever attempts or
conspires to commit an offense under paragraph (1) shall be
punished as prescribed in subsection (d)(1).
``(3) Relationship to predicate act.--For an act to
constitute an offense set forth in this subsection, it shall
not be necessary that the funds were actually used to carry out
a predicate act.
``(b) Concealment.--
``(1) In General.--Whoever, in the United States, or
outside the United States and a national of the United States
or a legal entity organized under the laws of the United States
(including any of its States, districts, commonwealths,
territories, or possessions), knowingly conceals or disguises
the nature, the location, the source, or the ownership or
control of any material support or resources provided in
violation of section 2339B of this chapter, or of any funds
provided or collected in violation of subsection (a) or any
proceeds of such funds, shall be punished as prescribed in
subsection (d)(2).
``(2) Attempts and conspiracies.--Whoever attempts or
conspires to commit an offense under paragraph (1) shall be
punished as prescribed in subsection (d)(2).
``(c) Jurisdiction.--There is jurisdiction over the offenses in
subsection (a) in the following circumstances--
``(1) the offense takes place in the United States and--
``(A) a perpetrator was a national of another state
or a stateless person;
``(B) on board a vessel flying the flag of another
state or an aircraft which is registered under the laws
of another state at the time the offense is committed;
``(C) on board an aircraft which is operated by the
government of another state;
``(D) a perpetrator is found outside the United
States;
``(E) was directed toward or resulted in the
carrying out of a predicate act against--
``(i) a national of another state; or
``(ii) another state or a government
facility of such state, including its embassy
or other diplomatic or consular premises of
that state;
``(F) was directed toward or resulted in the
carrying out of a predicate act committed in an attempt
to compel another state or international organization
to do or abstain from doing any act; or
``(G) was directed toward or resulted in the
carrying out of a predicate act--
``(i) outside the United States; or
``(ii) within the United States, and either
the offense or the predicate act was conducted
in, or the results thereof affected, interstate
or foreign commerce;
``(2) the offense takes place outside the United States
and--
``(A) a perpetrator is a national of the United
States or is a stateless person whose habitual
residence is in the United States;
``(B) a perpetrator is found in the United States;
or
``(C) was directed toward or resulted in the
carrying out of a predicate act against--
``(i) any property that is owned, leased,
or used by the United States or by any
department or agency of the United States,
including an embassy or other diplomatic or
consular premises of the United States;
``(ii) any person or property within the
United States;
``(iii) any national of the United States
or the property of such national; or
``(iv) any property of any legal entity
organized under the laws of the United States,
including any of its States, districts,
commonwealths, territories, or possessions;
``(3) the offense is committed on board a vessel flying the
flag of the United States or an aircraft which is registered
under the laws of the United States at the time the offense is
committed;
``(4) the offense is committed on board an aircraft which
is operated by the United States; or
``(5) the offense was directed toward or resulted in the
carrying out of a predicate act committed in an attempt to
compel the United States to do or abstain from doing any act.
``(d) Penalties.--
``(1) Whoever violates subsection (a) shall be fined under
this title, imprisoned for not more than 20 years, or both.
``(2) Whoever violates subsection (b) shall be fined under
this title, imprisoned for not more than 10 years, or both.
``(e) Definitions.--As used in this section--
``(1) the term `funds' means assets of every kind, whether
tangible or intangible, movable or immovable, however acquired,
and legal documents or instruments in any form, including
electronic or digital, evidencing title to, or interest in,
such assets, including coin, currency, bank credits, travelers
checks, bank checks, money orders, shares, securities, bonds,
drafts, and letters of credit;
``(2) the term `government facility' means any permanent or
temporary facility or conveyance that is used or occupied by
representatives of a state, members of a government, the
legislature, or the judiciary, or by officials or employees of
a state or any other public authority or entity or by employees
or officials of an intergovernmental organization in connection
with their official duties;
``(3) the term `proceeds' means any funds derived from or
obtained, directly or indirectly, through the commission of an
offense set forth in subsection (a);
``(4) the term `provides' includes giving, donating, and
transmitting;
``(5) the term `collects' includes raising and receiving;
``(6) the term `predicate act' means any act referred to in
subparagraph (A) or (B) of subsection (a)(1);
``(7) the term `treaty' means--
``(A) the Convention for the Suppression of
Unlawful Seizure of Aircraft, done at The Hague on
December 16, 1970;
``(B) the Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation,
done at Montreal on September 23, 1971;
``(C) the Convention on the Prevention and
Punishment of Crimes against Internationally Protected
Persons, including Diplomatic Agents, adopted by the
General Assembly of the United Nations on December 14,
1973;
``(D) the International Convention against the
Taking of Hostages, adopted by the General Assembly of
the United Nations on December 17, 1979;
``(E) the Convention on the Physical Protection of
Nuclear Material, adopted at Vienna on March 3, 1980;
``(F) the Protocol for the Suppression of Unlawful
Acts of Violence at Airports Serving International
Civil Aviation, supplementary to the Convention for the
Suppression of Unlawful Acts against the Safety of
Civil Aviation, done at Montreal on February 24, 1988;
``(G) the Convention for the Suppression of
Unlawful Acts against the Safety of Maritime
Navigation, done at Rome on March 10, 1988;
``(H) the Protocol for the Suppression of Unlawful
Acts against the Safety of Fixed Platforms located on
the Continental Shelf, done at Rome on March 10, 1988;
or
``(I) the International Convention for the
Suppression of Terrorist Bombings, adopted by the
General Assembly of the United Nations on December 15,
1997;
``(8) the term `intergovernmental organization' includes
international organizations;
``(9) the term `international organization' has the same
meaning as in section 1116(b)(5) of this title;
``(10) the term `armed conflict' does not include internal
disturbances and tensions, such as riots, isolated and sporadic
acts of violence, and other acts of a similar nature;
``(11) the term `serious bodily injury' has the same
meaning as in section 1365(g)(3) of this title;
``(12) the term `national of the United States' has the
meaning given that term in section 101(a)(22) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(22)); and
``(13) the term `state' has the same meaning as that term
has under international law, and includes all political
subdivisions thereof.
``(f) Civil Penalty.--In addition to any other criminal, civil, or
administrative liability or penalty, any legal entity located within
the United States or organized under the laws of the United States,
including any of the laws of its States, districts, commonwealths,
territories, or possessions, shall be liable to the United States for
the sum of at least $10,000, if a person responsible for the management
or control of that legal entity has, in that capacity, committed an
offense set forth in subsection (a).''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 113B of title 18, United States Code, is amended by adding at
the end thereof the following:
``2339C. Prohibitions against the financing of terrorism.''.
(c) Disclaimer.--Nothing contained in this section is intended to
affect the scope or applicability of any other Federal or State law.
SEC. 203. EFFECTIVE DATE.
Except for sections 2339C(c)(1)(D) and (2)(B) of title 18, United
States Code, which shall become effective on the date that the
International Convention for the Suppression of the Financing of
Terrorism enters into force for the United States, and for the
provisions of section 2339C(e)(7)(I) of title 18, United States Code,
which shall become effective on the date that the International
Convention for the Suppression of Terrorist Bombing enters into force
for the United States, section 202 of this title shall be effective
upon enactment.
TITLE III--ANCILLARY MEASURES
SEC. 301. ANCILLARY MEASURES.
(a) Wiretap Predicates.--Section 2516(1)(q) of title 18, United
States Code, is amended by--
(1) inserting ``2332f,'' after ``2332d,''; and
(2) striking ``or 2339B'' and inserting ``2339B, or
2339C''.
(b) Federal Crime of Terrorism.--Section 2332b(g)(5)(B) of title
18, United States Code, is amended by--
(1) inserting ``2332f (relating to bombing of public places
and facilities),'' after ``2332b (relating to acts of terrorism
transcending national boundaries),''; and
(2) inserting ``2339C (relating to financing of
terrorism),'' before ``or 2340A (relating to torture)''.
(c) Providing Material Support to Terrorists Predicate.--Section
2339A of title 18, United States Code, is amended by inserting
``2332f,'' before ``or 2340A''.
(d) Forfeiture of Funds, Proceeds, and Instrumentalities.--Section
981(a)(1) of title 18, United States Code, is amended by adding at the
end thereof the following new subparagraph:
``(H) Any property, real or personal, involved in a
violation or attempted violation, or which constitutes or is
derived from proceeds traceable to a violation, of section
2339C of this title.''.
Purpose and Summary
H.R. 3275, the implementation legislation for the
International Convention for the Suppression of Terrorist
Bombings and the International Convention for the Suppression
of the Financing of Terrorism amends title 18, United States
Code, to allow the United States to be in compliance with the
conditions of the Conventions. The International Convention for
the Suppression of Terrorist Bombings requires parties to the
treaty to criminalize the act of terrorist bombing aimed at
public or governmental facilities, or public transportation or
infrastructure facilities. The International Convention for the
Suppression of Financing of Terrorism requires nations to
criminalize the act of collecting or providing funds with the
intention that they will be used to support acts of
international terrorists.
Background and Need for the Legislation
The International Convention for the Suppression of
Terrorist Bombings was conceived by the United States in the
wake of the bombing attack of the U.S. military personnel in
Saudi Arabia in 1996. This treaty 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. In essence, the Convention imposes binding legal
obligations upon nations either to submit for prosecution or to
extradite any person within their jurisdiction who unlawfully
and intentionally delivers, places, discharges, or detonates an
explosive or other lethal device in, into, or against a place
of public use, a State or government facility, a public
transportation system, or an infrastructure facility. A nation
is subject to these obligations without regard to the place
where the alleged act covered by the Convention took place.
Twenty-eight nations are currently party to the Convention,
which entered into force internationally on May 23, 2001.
Title II of the bill is entitled the ``Suppression of the
Financing of Terrorism Convention Implementation Act of 2001.''
It would implement the International Convention for the
Suppression of the Financing of Terrorism, which was signed by
the United States on January 10, 2000, and which was
transmitted to the Senate for its advice and consent to
ratification on October 12, 2000. The Convention imposes
binding legal obligations upon nations either to submit for
prosecution or to extradite any person within their
jurisdiction who unlawfully and wilfully provides or collects
funds with the intention that they should be used to carry out
various terrorist activities. A nation is subject to these
obligations without regard to the place where the alleged act
covered by the Convention took place. The Convention is not yet
in force internationally, but will enter into force on the
thirtieth day following the date of the deposit of the twenty-
second instrument of ratification, acceptance, approval, or
accession with the Secretary General of the United Nations.
Both the ``terrorist bombings'' and the ``financing
terrorism'' conventions were the subject of hearings in the
Senate Committee on Foreign Relations on October 23, 2001.
President Bush sent Congress a legislative proposal to
implement these two treaties on October 26, 2001 (House
Document 107-139). These treaties, once they are ratified, 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.
Hearings
On November 14, 2001, the Subcommittee on Crime held a
legislative hearing and mark-up on H.R. 3275. Testimony was
received from Mr. Sam Witten, Deputy Legal Adviser, U.S.
Department of State and Mr. Michael Chertoff, Assistant
Attorney General, Criminal Division, U.S. Department of
Justice.
Committee Consideration
On November 14, 2001, the Subcommittee on Crime met in open
session and ordered favorably reported the bill H.R. 3275, by a
voice vote, a quorum being present. On November 15, 2001, the
Committee met in open session and ordered favorably reported
the bill H.R. 3275 with amendment by a voice vote, a quorum
being present.
Vote of the Committee
No recorded votes were held on H.R. 3275.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
H.R. 3275 does not authorize funding. Therefore, clause
3(c) of rule XIII of the Rules of the House of Representatives
is inapplicable.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 3275, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 27, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3275, a bill to
implement the International Convention for the Suppression of
Terrorist Bombings to strengthen criminal laws relating to
attacks on places of public use, to implement the International
Convention of the Suppression of the Financing of Terrorism, to
combat terrorism and defend the nation against terrorist acts,
and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lanette J.
Walker, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 3275--A bill to implement the International Convention for the
Suppression of Terrorist Bombings to strengthen criminal laws
relating to attacks on places of public use, to implement the
International Convention of the Suppression of the Financing of
Terrorism, to combat terrorism and defend the nation against
terrorist acts, and for other purposes
CBO estimates that enacting H.R. 3275 would have no
significant impact on the Federal budget. The bill could affect
direct spending and receipts, so pay-as-you-go procedures would
apply; however, CBO estimates that any such effects would not
be significant.
H.R. 3275 would implement two international treaties: the
International Convention for the Suppression of Terrorist
Bombings and the International Convention for the Suppression
of the Financing of Terrorism. The bill would establish a
sentence of life in prison or death for those who are convicted
of participating in bombings in public places, government
facilities, public transportation systems or infrastructure
facilities. In addition, the bill would establish minimum
prison sentences and criminal fines for those who provide or
collect funds with the intent that such funds be used to carry
out terrorism.
CBO expects that any increase in Federal costs for law
enforcement, court proceedings, or prison operations under the
bill would not be significant because such cases would likely
be pursued under current law. In addition, CBO expects that any
changes in direct spending or receipts would be insignificant
because of the small number of cases that are likely to be
involved.
Section 4 of the Unfunded Mandates Reform Act excludes from
application of that act legislative provisions that would be
necessary for the ratification or implementation of
international treaty obligations. CBO has determined that the
provisions of H.R. 3275 would implement the two treaties
mentioned above, and thus, would fall within that exclusion.
The CBO staff contact for this estimate is Lanette J.
Walker, who can be reached at 226-2860. This estimate was
approved by Peter H. Fontaine, Deputy Assistant Director for
Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8 of the Constitution.
Section-by-Section Analysis and Discussion
Title I--Suppression of Terrorist Bombings.
Section 101. Short Title
This title may be cited as ``The Terrorist Bombings
Convention Implementation Act of 2001''
Section 102. Bombing Statute
This section of the bill adds a new section, 18 U.S.C.
Sec. 2332f, to the Federal terrorism statutes (i.e., Chapter
113B of title 18 of the United States Code) 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 contains 5 subsections (Sec. 2332f(a)-(e)) which
are described below.
Subsection 2332f(a) makes it a crime to unlawfully deliver,
place, discharge or detonate an explosive or other lethal
device in, into or against a place of public use, a State or
government facility, a public transportation system or an
infrastructure facility with intent to cause death or serious
bodily injury, or with the intent to cause extensive
destruction of such a place, facility or system, where such
destruction results in or is likely to result in major economic
loss. Conspiracy and attempts to commit these crimes are also
criminalized. This provision implements article 2, paragraphs
1, 2 and 3 of the Convention. It should be noted that Section
2339A of title 18, United States Code, which is amended by
section 3(d) of the bill, also addresses the provision of
material support for such offenses.
The inclusion of the term ``unlawfully'' in Subsection
2332f(a), and mirrored in article 2 of the Convention defining
the offenses, is intended to embody what would be considered
under U.S. law as common law defenses. For purposes of
Subsection 2332f(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 Section 2332f, that a person purportedly
acted under authority conveyed by any particular foreign
government or official. Clearly such a construction, which
would exempt State-sponsored terrorism, would be at odds with
the purpose of the Convention and this implementing
legislation.
With respect to the provision regarding the delivery,
placing, discharging or detonating of an explosive or lethal
device with the intent to cause extensive destruction of the
described place, facility or system, it is sufficient if the
intent is to significantly damage such a place, facility or
system. Further, for the purpose of Subsection 2332f(a), when
determining whether the act resulted in, or was likely to
result in major economic loss, the physical damage to the
targeted 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.
Subsection 2332f(b) delineates 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 which requires all State Parties to
either extradite or prosecute perpetrators of offenses covered
by the Convention (article 8(1)) 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 which 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 2332f(c) delineates the penalties for committing
the covered crimes, to wit, a term of years or life, and, if
death results from the violation, punishment by death or
imprisonment for any term of years or life.
Subsection 2332f(d) delineates certain exemptions to
jurisdiction as set forth in the Convention. The subsection
exempts from jurisdiction activities of armed forces during an
armed conflict, as those terms are understood under the law of
war, which are governed by that law, and activities undertaken
by military forces of a State in the exercise of their official
duties. It is anticipated that courts, when interpreting and
applying Subsection (d), will solicit the views of the
Executive Branch on whether the activities at issue were
conducted by armed forces during armed conflict, as those terms
are understood under the law of war, or whether the activities
at issue were undertaken by military forces of a State in the
exercise of their official duties. See United States v. Shakur,
690 F. Supp. 1291 (S.D.N.Y. 1988).
Subsection 2332f(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 which 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
which 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 102(b) amends the analysis for chapter 113B of
title 18, United States Code, by inserting therein the caption
for the new Section 2332f. Section 102(c) reflects that new
Section 2332f supplements existing Federal and state laws and
does not affect or supplant any of them.
Section 104. Effective Date
Section 102 of this title shall become effective on the
date that the International Convention for the Suppression of
Terrorist Bombings enters into force for the United States.
Title II--Suppression of the Financing of Terrorism
Section 201. Short Title
This title may be cited as ``The Suppression of the
Financing of Terrorism Convention Implementation Act of 2001.''
Section 202. Terrorism Financing Statute
This section of the bill adds a new section, 18 U.S.C.
Sec. 2339C, to the Federal terrorism statutes (i.e., Chapter
113B of title 18 of the United States Code) entitled
``Prohibitions against the financing of terrorism,'' which
makes financial acts covered by the Convention a crime. New
Section 2339C contains 6 subsections (Sec. 2339C(a)-(f)) which
are described below.
Subsection 2339C(a) makes it a crime to directly or
indirectly, unlawfully and willfully provide or collect funds
with the intention that such funds be used, or with the
knowledge that such funds are to be used, in full or in part,
in order to carry out an act which constitutes an offense
within the scope of certain terrorism treaties, as implemented
by the United States, or any other act intended to cause death
or serious bodily injury to a civilian, or to any other person
not taking an active part in the hostilities in a situation of
armed conflict, when the purpose of such act, by its nature or
context, is to intimidate a population, or to compel a
government or an international organization to do or to abstain
from doing any act. The term ``unlawfully'' is intended to
embody common law defenses. The term ``willfully'' means
voluntary or intentional. Conspiracy and attempts to commit
these crimes are also criminalized. Subsection 2339C(a)(3)
states, as contained in article 2, paragraph 3, of the
Convention, that a violation of Section 2339C(a) does not
require that the funds which are provided or collected actually
be used to carry out an act referred to in subparagraph (A) or
(B) of subsection 2339C(a)(1). Section 2339C(a) implements
article 2, paragraphs 1, 3, 4 and 5 of the Convention.
Subsection 2339C(b) creates an offense for concealing or
disguising the nature, the location, the source, or the
ownership or control of any funds or proceeds provided or
collected under Section 2339C, as well as any material support
or resources provided under Section 2339B, by any person or
legal entity within the United States and by any United States
national or legal entity created under U.S. law anywhere in the
world. This provision goes beyond what was required by the
Convention, but would enhance the ability of U.S. law
enforcement authorities to combat the supply of financing to
terrorists and their organizations.
Subsection 2339C(c) delineates 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 which requires
all State Parties to either extradite or prosecute perpetrators
of offenses covered by the Convention (article 10) who are
found within the territory of a State Party. The structure of
this provision is designed to accommodate the structure of the
Convention. Article 7 of the Convention sets forth both
mandatory and permissive bases of jurisdiction, from which
article 3 excludes certain offenses that lack an international
nexus. Some sections, however, such as, for example, Subsection
2339(C)(c), go beyond the jurisdictional bases required or
expressly permitted under article 7, paragraphs 1 and 2, of the
Convention, as limited by article 3, where expanded
jurisdiction is desirable from a policy perspective and is
consistent with the Constitution.
Subsection 2332f(d)(1) delineates the penalties for
committing the covered crimes under Subsection 2339C(a), to
wit, a fine under title 18, United States Code, imprisonment
for not more than 20 years, or both. This penalty is consistent
with those under current law relating to money laundering
offenses. See 18 U.S.C. Sec. 1956. Subsection 2332f(d)(2)
delineates the penalties for committing the covered crimes
under Subsection 2339C(b), to wit, a fine under title 18,
United States Code, imprisonment for not more than 10 years, or
both.
Subsection 2339C(e) contains thirteen 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 is certainly a type of funds obviously contemplated by
the Convention. 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) or (B) of Section
2339C(a)(1). The definition of ``treaty'' sets forth the nine
international conventions dealing with counterterrorism found
in the Annex to the Convention. In construing the scope of
these treaties, the court is to look to the description or
definition of the treaty's provisions as reflected in United
States law without regard to the particular jurisdictional
provision in the implementing law. 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 which 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 2339C(f) creates a civil penalty of at least
$10,000 payable to the United States, against any legal entity
in the United States, or organized under the laws of the United
States, including any of its states, district, commonwealths,
territories, or possessions, if any person responsible for the
management or control of that legal entity has, in that
capacity, committed an offense set forth in Subsection
2339C(a). There does not have to be a conviction of such person
under Subsection 2339C(a) to impose the civil penalty against
the legal entity. In determining the size of the penalty, the
court should consider the legal entity's net worth, the volume
of business it transacts, its ability to pay, the amount of the
transaction involved in the Subsection 2339C(a) offense, and
the nature of the predicate act. This civil penalty is in
addition to any other criminal, civil, or administrative
liability or penalty allowable under United States law.
Subsection 2339C(f) fulfills article 5 of the Convention.
Section 202(b) amends the analysis for chapter 113B of
title 18, United States Code, by inserting therein the caption
for the new Section 2339C. Section 202(c) reflects that new
Section 2339C supplements existing Federal and state laws and
does not affect or supplant any of them.
Section 204. Effective Date
Section 202 of this title shall be effective upon
enactment. Except, the provisions of 18 U.S.C.
Sec. 2339C(c)(1)(D) and (2)(B) shall become effective on the
date that the International Convention for the Suppression of
the Financing of Terrorism enters into force for the United
States.
Section 301. Ancillary Measures
This section of the bill, which is not required by the
treaty but will assist in Federal enforcement, adds the new 18
U.S.C. Sec. Sec. 2332f and 2339C to four existing provisions of
law. Sections 2332f and 2339C are made predicates under the
wiretap statute (18 U.S.C. Sec. 2516(1)(c)) and 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). Section 2339f is made a predicate under the
statute relating to the provision of material support to
terrorists (18 U.S.C. Sec. 2339A) and the statute related to
the forfeiture of funds, proceeds and instrumentalities (18
U.S.C. Sec. 981(a)(1)).
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
CHAPTER 46--FORFEITURE
* * * * * * *
Sec. 981. Civil forfeiture
(a)(1) The following property is subject to forfeiture to
the United States:
(A) * * *
* * * * * * *
(H) Any property, real or personal, involved in a
violation or attempted violation, or which constitutes
or is derived from proceeds traceable to a violation,
of section 2339C of this title.
* * * * * * *
CHAPTER 113B--TERRORISM
Sec.
2331. Definitions.
* * * * * * *
2332f. Bombings of places of public use, government facilities, public
transportation systems and infrastructure facilities.
* * * * * * *
2339C. Prohibitions against the financing of terrorism.
* * * * * * *
Sec. 2332b. Acts of terrorism transcending national boundaries
(a) * * *
* * * * * * *
(g) Definitions.--As used in this section--
(1) * * *
* * * * * * *
(5) the term ``Federal crime of terrorism'' means
an offense that--
(A) * * *
(B) is a violation of--
(i) section 32 (relating to
destruction of aircraft or aircraft
facilities), 37 (relating to violence
at international airports), 81
(relating to arson within special
maritime and territorial jurisdiction),
175 or 175b (relating to biological
weapons), 229 (relating to chemical
weapons), subsection (a), (b), (c), or
(d) of section 351 (relating to
congressional, cabinet, and Supreme
Court assassination and kidnaping), 831
(relating to nuclear materials), 842(m)
or (n) (relating to plastic
explosives), 844(f)(2) or (3) (relating
to arson and bombing of Government
property risking or causing death),
844(i) (relating to arson and bombing
of property used in interstate
commerce), 930(c) (relating to killing
or attempted killing during an attack
on a Federal facility with a dangerous
weapon), 956(a)(1) (relating to
conspiracy to murder, kidnap, or maim
persons abroad), 1030(a)(1) (relating
to protection of computers),
1030(a)(5)(A)(i) resulting in damage as
defined in 1030(a)(5)(B)(ii) through
(v) (relating to protection of
computers), 1114 (relating to killing
or attempted killing of officers and
employees of the United States), 1116
(relating to murder or manslaughter of
foreign officials, official guests, or
internationally protected persons),
1203 (relating to hostage taking), 1362
(relating to destruction of
communication lines, stations, or
systems), 1363 (relating to injury to
buildings or property within special
maritime and territorial jurisdiction
of the United States), 1366(a)
(relating to destruction of an energy
facility), 1751(a), (b), (c), or (d)
(relating to Presidential and
Presidential staff assassination and
kidnaping), 1992 (relating to wrecking
trains), 1993 (relating to terrorist
attacks and other acts of violence
against mass transportation systems),
2155 (relating to destruction of
national defense materials, premises,
or utilities), 2280 (relating to
violence against maritime navigation),
2281 (relating to violence against
maritime fixed platforms), 2332
(relating to certain homicides and
other violence against United States
nationals occurring outside of the
United States), 2332a (relating to use
of weapons of mass destruction), 2332b
(relating to acts of terrorism
transcending national boundaries),
2332f (relating to bombing of public
places and facilities), 2339 (relating
to harboring terrorists), 2339A
(relating to providing material support
to terrorists), 2339B (relating to
providing material support to terrorist
organizations), 2339C (relating to
financing of terrorism), or 2340A
(relating to torture) of this title;
* * * * * * *
Sec. 2332f. Bombings of places of public use, government facilities,
public transportation systems and infrastructure
facilities
(a) Offenses.--
(1) In general.--Whoever unlawfully delivers,
places, discharges, or detonates an explosive or other
lethal device in, into, or against a place of public
use, a state or government facility, a public
transportation system, or an infrastructure facility--
(A) with the intent to cause death or
serious bodily injury, or
(B) with the intent to cause extensive
destruction of such a place, facility, or
system, where such destruction results in or is
likely to result in major economic loss, shall
be punished as prescribed in subsection (c).
(2) Attempts and conspiracies.--Whoever attempts or
conspires to commit an offense under paragraph (1)
shall be punished as prescribed in subsection (c).
(b) Jurisdiction.--There is jurisdiction over the offenses
in subsection (a) if--
(1) the offense takes place in the United States
and--
(A) the offense is committed against
another state or a government facility of such
state, including its embassy or other
diplomatic or consular premises of that state;
(B) the offense is committed in an attempt
to compel another state or the United States to
do or abstain from doing any act;
(C) at the time the offense is committed,
it is committed--
(i) on board a vessel flying the
flag of another state;
(ii) on board an aircraft which is
registered under the laws of another
state; or
(iii) on board an aircraft which is
operated by the government of another
state;
(D) a perpetrator is found outside the
United States;
(E) a perpetrator is a national of another
state or a stateless person; or
(F) a victim is a national of another state
or a stateless person;
(2) the offense takes place outside the United
States and--
(A) a perpetrator is a national of the
United States or is a stateless person whose
habitual residence is in the United States;
(B) a victim is a national of the United
States;
(C) a perpetrator is found in the United
States;
(D) the offense is committed in an attempt
to compel the United States to do or abstain
from doing any act;
(E) the offense is committed against a
state or government facility of the United
States, including an embassy or other
diplomatic or consular premises of the United
States;
(F) the offense is committed on board a
vessel flying the flag of the United States or
an aircraft which is registered under the laws
of the United States at the time the offense is
committed; or
(G) the offense is committed on board an
aircraft which is operated by the United
States.
(c) Penalties.--Whoever violates this section shall be
imprisoned for any term of years or for life, and if death
results from the violation, shall be punished by death or
imprisoned for any term of years or for life.
(d) Exemptions to Jurisdiction.--This section does not
apply to--
(1) the activities of armed forces during an armed
conflict, as those terms are understood under the law
of war, which are governed by that law,
(2) activities undertaken by military forces of a
state in the exercise of their official duties; or
(3) offenses committed within the United States,
where the alleged offender and the victims are United
States citizens and the alleged offender is found in
the United States, or where jurisdiction is predicated
solely on the nationality of the victims or the alleged
offender and the offense has no substantial effect on
interstate or foreign commerce.
(e) Definitions.--As used in this section, the term--
(1) ``serious bodily injury'' has the meaning given
that term in section 1365(g)(3) of this title;
(2) ``national of the United States'' has the
meaning given that term in section 101(a)(22) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(22));
(3) ``state or government facility'' includes any
permanent or temporary facility or conveyance that is
used or occupied by representatives of a state, members
of Government, the legislature or the judiciary or by
officials or employees of a state or any other public
authority or entity or by employees or officials of an
intergovernmental organization in connection with their
official duties;
(4) ``intergovernmental organization'' includes
international organization (as defined in section
1116(b)(5) of this title);
(5) ``infrastructure facility'' means any publicly
or privately owned facility providing or distributing
services for the benefit of the public, such as water,
sewage, energy, fuel, or communications;
(6) ``place of public use'' means those parts of
any building, land, street, waterway, or other location
that are accessible or open to members of the public,
whether continuously, periodically, or occasionally,
and encompasses any commercial, business, cultural,
historical, educational, religious, governmental,
entertainment, recreational, or similar place that is
so accessible or open to the public;
(7) ``public transportation system'' means all
facilities, conveyances, and instrumentalities, whether
publicly or privately owned, that are used in or for
publicly available services for the transportation of
persons or cargo;
(8) ``explosive'' has the meaning given in section
844(j) of this title insofar that it is designed, or
has the capability, to cause death, serious bodily
injury, or substantial material damage;
(9) ``other legal device'' means any weapon or
device that is designed or has the capability to cause
death, serious bodily injury, or substantial damage to
property through the release, dissemination, or impact
of toxic chemicals, biological agents, or toxins (as
those terms are defined in section 178 of this title)
or radiation or radioactive material;
(10) ``military forces of a state'' means the armed
forces of a state which are organized, trained, and
equipped under its internal law for the primary purpose
of national defense or security, and persons acting in
support of those armed forces who are under their
formal command, control, and responsibility;
(11) ``armed conflict'' does not include internal
disturbances and tensions, such as riots, isolated, and
sporadic acts of violence, and other acts of a similar
nature; and
(12) ``state'' has the same meaning as that term
has under international law, and includes all political
subdivisions thereof.
* * * * * * *
Sec. 2339A. Providing material support to terrorists
(a) Offense.--Whoever provides material support or
resources or conceals or disguises the nature, location,
source, or ownership of material support or resources, knowing
or intending that they are to be used in preparation for, or in
carrying out, a violation of section 32, 37, 81, 175, 229, 351,
831, 842 (m) or (n), 844 (f) or (i), 903(c), 956, 1114, 1116,
1203, 1361, 1362, 1363, 1366, 1751, 1992, 1993, 2155, 2156,
2280, 2281, 2332, 2332a, 2332b, 2332c, 2332f, or 2340A of this
title, section 236 of the Atomic Energy Act of 1954 (42 U.S.C.
2284), or section 46502 or 60123(b) of title 49, or in
preparation for, or in carrying out, the concealment or an
escape from the commission of any such violation, or attempts
or conspires to do such an act, shall be fined under this
title, imprisoned not more than 15 years, or both, and, if the
death of any person results, shall be imprisoned for any term
of years or for life. A violation of this section may be
prosecuted in any Federal judicial district in which the
underlying offense was committed, or in any other Federal
judicial district as provided by law.
* * * * * * *
Sec. 2339C. Prohibitions against the financing of terrorism
(a) Offenses.--
(1) In general.--Whoever, in a circumstance
described in subsection (c), by any means, directly or
indirectly, unlawfully and willfully provides or
collects funds with the intention that such funds be
used, or with the knowledge that such funds are to be
used, in full or in part, in order to carry out--
(A) an act which constitutes an offense
within the scope of a treaty specified in
subsection (e)(7), as implemented by the United
States, or
(B) any other act intended to cause death
or serious bodily injury to a civilian, or to
any other person not taking an active part in
the hostilities in a situation of armed
conflict, when the purpose of such act, by its
nature or context, is to intimidate a
population, or to compel a government or an
international organization to do or to abstain
from doing any act,
shall be punished as prescribed in subsection (d)(1).
(2) Attempts and conspiracies.--Whoever attempts or
conspires to commit an offense under paragraph (1)
shall be punished as prescribed in subsection (d)(1).
(3) Relationship to predicate act.--For an act to
constitute an offense set forth in this subsection, it
shall not be necessary that the funds were actually
used to carry out a predicate act.
(b) Concealment.--
(1) In General.--Whoever, in the United States, or
outside the United States and a national of the United
States or a legal entity organized under the laws of
the United States (including any of its States,
districts, commonwealths, territories, or possessions),
knowingly conceals or disguises the nature, the
location, the source, or the ownership or control of
any material support or resources provided in violation
of section 2339B of this chapter, or of any funds
provided or collected in violation of subsection (a) or
any proceeds of such funds, shall be punished as
prescribed in subsection (d)(2).
(2) Attempts and conspiracies.--Whoever attempts or
conspires to commit an offense under paragraph (1)
shall be punished as prescribed in subsection (d)(2).
(c) Jurisdiction.--There is jurisdiction over the offenses
in subsection (a) in the following circumstances--
(1) the offense takes place in the United States
and--
(A) a perpetrator was a national of another
state or a stateless person;
(B) on board a vessel flying the flag of
another state or an aircraft which is
registered under the laws of another state at
the time the offense is committed;
(C) on board an aircraft which is operated
by the government of another state;
(D) a perpetrator is found outside the
United States;
(E) was directed toward or resulted in the
carrying out of a predicate act against--
(i) a national of another state; or
(ii) another state or a government
facility of such state, including its
embassy or other diplomatic or consular
premises of that state;
(F) was directed toward or resulted in the
carrying out of a predicate act committed in an
attempt to compel another state or
international organization to do or abstain
from doing any act; or
(G) was directed toward or resulted in the
carrying out of a predicate act--
(i) outside the United States; or
(ii) within the United States, and
either the offense or the predicate act
was conducted in, or the results
thereof affected, interstate or foreign
commerce;
(2) the offense takes place outside the United
States and--
(A) a perpetrator is a national of the
United States or is a stateless person whose
habitual residence is in the United States;
(B) a perpetrator is found in the United
States; or
(C) was directed toward or resulted in the
carrying out of a predicate act against--
(i) any property that is owned,
leased, or used by the United States or
by any department or agency of the
United States, including an embassy or
other diplomatic or consular premises
of the United States;
(ii) any person or property within
the United States;
(iii) any national of the United
States or the property of such
national; or
(iv) any property of any legal
entity organized under the laws of the
United States, including any of its
States, districts, commonwealths,
territories, or possessions;
(3) the offense is committed on board a vessel
flying the flag of the United States or an aircraft
which is registered under the laws of the United States
at the time the offense is committed;
(4) the offense is committed on board an aircraft
which is operated by the United States; or
(5) the offense was directed toward or resulted in
the carrying out of a predicate act committed in an
attempt to compel the United States to do or abstain
from doing any act.
(d) Penalties.--
(1) Whoever violates subsection (a) shall be fined
under this title, imprisoned for not more than 20
years, or both.
(2) Whoever violates subsection (b) shall be fined
under this title, imprisoned for not more than 10
years, or both.
(e) Definitions.--As used in this section--
(1) the term ``funds'' means assets of every kind,
whether tangible or intangible, movable or immovable,
however acquired, and legal documents or instruments in
any form, including electronic or digital, evidencing
title to, or interest in, such assets, including coin,
currency, bank credits, travelers checks, bank checks,
money orders, shares, securities, bonds, drafts, and
letters of credit;
(2) the term ``government facility'' means any
permanent or temporary facility or conveyance that is
used or occupied by representatives of a state, members
of a government, the legislature, or the judiciary, or
by officials or employees of a state or any other
public authority or entity or by employees or officials
of an intergovernmental organization in connection with
their official duties;
(3) the term ``proceeds'' means any funds derived
from or obtained, directly or indirectly, through the
commission of an offense set forth in subsection (a);
(4) the term ``provides'' includes giving,
donating, and transmitting;
(5) the term ``collects'' includes raising and
receiving;
(6) the term ``predicate act'' means any act
referred to in subparagraph (A) or (B) of subsection
(a)(1);
(7) the term ``treaty'' means--
(A) the Convention for the Suppression of
Unlawful Seizure of Aircraft, done at The Hague
on December 16, 1970;
(B) the Convention for the Suppression of
Unlawful Acts against the Safety of Civil
Aviation, done at Montreal on September 23,
1971;
(C) the Convention on the Prevention and
Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents,
adopted by the General Assembly of the United
Nations on December 14, 1973;
(D) the International Convention against
the Taking of Hostages, adopted by the General
Assembly of the United Nations on December 17,
1979;
(E) the Convention on the Physical
Protection of Nuclear Material, adopted at
Vienna on March 3, 1980;
(F) the Protocol for the Suppression of
Unlawful Acts of Violence at Airports Serving
International Civil Aviation, supplementary to
the Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation, done
at Montreal on February 24, 1988;
(G) the Convention for the Suppression of
Unlawful Acts against the Safety of Maritime
Navigation, done at Rome on March 10, 1988;
(H) the Protocol for the Suppression of
Unlawful Acts against the Safety of Fixed
Platforms located on the Continental Shelf,
done at Rome on March 10, 1988; or
(I) the International Convention for the
Suppression of Terrorist Bombings, adopted by
the General Assembly of the United Nations on
December 15, 1997;
(8) the term ``intergovernmental organization''
includes international organizations;
(9) the term ``international organization'' has the
same meaning as in section 1116(b)(5) of this title;
(10) the term ``armed conflict'' does not include
internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence, and other acts
of a similar nature;
(11) the term ``serious bodily injury'' has the
same meaning as in section 1365(g)(3) of this title;
(12) the term ``national of the United States'' has
the meaning given that term in section 101(a)(22) of
the Immigration and Nationality Act (8 U.S.C.
1101(a)(22)); and
(13) the term ``state'' has the same meaning as
that term has under international law, and includes all
political subdivisions thereof.
(f) Civil Penalty.--In addition to any other criminal,
civil, or administrative liability or penalty, any legal entity
located within the United States or organized under the laws of
the United States, including any of the laws of its States,
districts, commonwealths, territories, or possessions, shall be
liable to the United States for the sum of at least $10,000, if
a person responsible for the management or control of that
legal entity has, in that capacity, committed an offense set
forth in subsection (a).
* * * * * * *
CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
* * * * * * *
Sec. 2516. Authorization for interception of wire, oral, or electronic
communications
(1) The Attorney General, Deputy Attorney General,
Associate Attorney General, or any Assistant Attorney General,
any acting Assistant Attorney General, or any Deputy Assistant
Attorney General or acting Deputy Assistant Attorney General in
the Criminal Division specially designated by the Attorney
General, may authorize an application to a Federal judge of
competent jurisdiction for, and such judge may grant in
conformity with section 2518 of this chapter an order
authorizing or approving the interception of wire or oral
communications by the Federal Bureau of Investigation, or a
Federal agency having responsibility for the investigation of
the offense as to which the application is made, when such
interception may provide or has provided evidence of--
(a) * * *
* * * * * * *
(q) any criminal violation of section 229 (relating to
chemical weapons); or sections 2332, 2332a, 2332b, 2332d,
2332f, 2339A, [or 2339B] 2339B, or 2339C of this title
(relating to terrorism); or
* * * * * * *
Markup Transcript
BUSINESS MEETING
THURSDAY, NOVEMBER 15, 2001
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:10 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Chairman Sensenbrenner. The Committee will be in order.
The last item on the agenda is the adoption of H.R. 3275,
the implementation legislation for the International Convention
for the Suppression of Financing of Terrorism.
The Chair recognizes the gentleman from Texas, Mr. Smith,
the Chairman of the Subcommittee on Crime.
Mr. Smith. Thank you, Mr. Chairman.
Mr. Chairman, the Subcommittee on Crime reports favorably
the bill H.R. 3275 and moves its favorable recommendation in
the full House.
Chairman Sensenbrenner. Without objection, H.R. 3275 will
be considered as read and open for amendment at any point.
[The bill, H.R. 3275, follows:]
Chairman Sensenbrenner. The Chair recognizes the gentleman
from Texas, Mr. Smith, to strike the last word.
Mr. Smith. Mr. Chairman, international terrorism once
threatened Americans only when they were outside our country.
Today every American must live their life conscious of the fact
that the war on terrorism is being fought not only in other
countries but also in our own.
International cooperation is one way to defeat terrorism
and is critically important to our success.
Mr. Chairman, H.R. 3275 is bipartisan legislation. Both
treaties were drafted and initiated by the Clinton
Administration and are now strongly supported by the Bush
Administration.
The first treaty, the International Convention for the
Suppression of Terrorist Bombings, was drafted by the United
States in the wake of the bombing attack of the U.S. military
personnel in Saudi Arabia in 1996. This treaty creates
international jurisdiction over the unlawful and intentional
use of explosives and other lethal devises at public places
with the intent to kill or cause serious bodily injury or with
intent to cause the extensive destruction of the public place
itself.
The treaty requires nations to extradite or submit for
prosecution persons accused of committing or aiding such
offenses. Thirty-seven nations are currently party to the
convention, which became effective internationally on May 23rd,
2001.
The second treaty is the International Convention for the
Suppression of Financing of Terrorism drafted in 1999. This
convention imposes binding legal obligations upon nations
either to submit for prosecution or to extradite any person
within their jurisdiction who unlawfully and willfully provides
or collects funds with the intention that they be used to carry
out terrorist activities.
Nations also are required to take appropriate steps for the
detection, freezing, seizure, or forfeiture of any funds used
or allocated for the purposes of committing terrorist acts.
By approving this legislation, we will avoid any delay in
implementing these treaties once they have been ratified by the
Senate.
Some might oppose this legislation because the bill
provides for the possibility of the death penalty for those
international terrorists who blow up public buildings and kill
innocent people. Others might be opposed because these new
terrorist laws would be added as predicate offenses to our laws
on wiretaps, money laundering, and material support for
terrorism. However, we already have laws in place that provide
the death penalty for terrorists that murder innocent
civilians, so the provisions of this bill are consistent with
current law. Furthermore, this bill amends current laws against
terrorists simply to include crimes of terrorist bombings and
financing terrorism.
Some concern was expressed at the hearing on this bill that
there may be other laws already enacted that could cover the
terrorist activities this bill focuses on. While there may be
some overlap of current law with the crimes set forth in this
bill, Assistant Attorney General Michael Chertoff testified
that the bill does plug important and serious gaps in our
criminal code.
As Mr. Chertoff stated: These are serious crimes that we
should be able to attack from multiple ways. We should not shy
away from plugging gaps for crimes that involve terrorist
bombings simply because there may be some other related
criminal statute in place when we can enact a criminal law that
is exactly on point.
Changing or delaying these conventions could handcuff our
law enforcement officers in their efforts to bring terrorists
to justices. These treaties, once they are ratified and
implemented, will expand the legal framework for international
cooperation in the investigation, prosecution, and extradition
of persons who engage in bombings and financially support
terrorist organizations.
Mr. Chairman, at a time when other nations are being asked
to support our coalition efforts, we should act promptly to
join them in these treaties to fight international terrorism.
I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, I am in favor of the United States ratifying
the International Convention for the Suppression of Terrorist
Bombing and the International Convention for the Suppression of
the Financing of Terrorism, but I am opposed to H.R. 3275, the
implementing legislation, in its current form.
There are numerous controversial provisions in the bill,
such as death penalties, which are not necessary to implement
the treaties. If we could focus our attention on just doing
what is needed to implement the treaties, I am sure that we
could do so quickly and unanimously.
These treaties have been pending for some time, so I
applaud the President's decision to seek their ratification.
However, I am concerned that right on the heels of hurriedly
enacting into law an anti-terrorism bill laden down with severe
penalties and severe intrusions into traditional civil
liberties, we are now being asked to enact--again in a hurry--
yet another such bill.
The anti-terrorism bill we just enacted was represented by
the Administration as a comprehensive anti-terrorism bill
designed to cover the full gamut of terroristic threats to this
country. Upon that representation, unprecedented extensions of
wiretap, RICO, asset seizures, and punishments were enacted
into law. Many of them had nothing to do with terrorism.
Because we are not sure how these intrusive measures would
play out, the bill this Committee passed unanimously placed a
2-year sunset on these provisions, and the bill finally was
adopted with a 4-year sunset.
The bill before us provides for further extensions of these
drastic measures, and even goes further by adding additional
death penalty provisions with no sunset or other type of
review.
The Justice Department has made it clear that these
measures are not required for ratification of treaties that
have been pending before the Senate for over a year. The part
of the bill that addresses what is required is not
controversial. But it seems that much of it is duplicative of
existing law.
The Department of Justice, for example, insists that it
needs the bill because there is a gap in the law when someone
bombs a foreign embassy in the United States.
Now, Members of the Committee, let's be serious. If
somebody blows up an embassy in downtown D.C. and law
enforcement officials can't figure out how to charge a crime
under existing law, we've got more problems than this bill will
cure.
Of particular concern is the death penalty, which can't be
necessary because other countries who are signatories to the
treaties don't have any death penalties at all.
So, Mr. Chairman, we should separate what is required and
not controversial from what is controversial and not required,
so we can pass a bill with broad support, as we did with the
anti-terrorism bill. If more is desired, let's discuss in that
in a separate bill.
Now, I understand that the gentleman from Texas will have
an amendment which addresses some of these concerns, and I look
forward to consideration of that amendment.
Thank you, Mr. Chairman.
Chairman Sensenbrenner. Without objection, all Members
opening statements will be inserted in the record at this
point.
[The statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress From the State of Michigan
I rise in support of this amendment, which strikes the death
penalty as a punishment under this legislation. This legislation is not
the appropriate time or vehicle for expanding use of the death penalty
in this country. Simply put, the death penalty should not be expanded;
it has raised numerous concerns because of its questionable
constitutionality and the manner in which it is implemented.
As practiced in this country, the death penalty violates not only
the Eighth Amendment prohibition against cruel and unusual punishment
but also the Sixth Amendment guarantee of right to counsel. A Columbia
University study showed that two out of three death penalty convictions
between 1973 and 1995 were overturned on appeal, largely because of
incompetent counsel. Many lawyers appointed to death penalty cases
simply have no experience whatsoever with capital offenses. We simply
are not complying with the Sixth Amendment in a situation where
defendants' lives are dependent upon inexperienced lawyers. It is
because of these concerns that Mr. Delahunt's Innocence Protection Act
garnered so many cosponsors from both sides of the aisle.
And unfortunately, sometimes the errors in death penalty cases are
not discovered until after the defendant is already incarcerated. In
Oklahoma City, the FBI has found that police chemists have performed
flawed analyses in numerous cases; at least one man has been released
from death row when DNA evidence cleared him. Overall, approximately
ninety-eight death row inmates have been exonerated since the death
penalty was reinstated in the 1970's.
Moreover, numerous studies have shown that it is applied in a
discriminate manner. For instance, statistics show that African-
American defendants convicted of killing white victims are ten times
more likely to receive the death penalty than white defendants who kill
African-Americans. Evidence like this indicates that capital punishment
is being applied unfairly and should be curtailed, not expanded.
This is why numerous politicians on both sides of the aisle, legal
experts, and Americans are not only raising concerns about capital
punishment but also opposing it. After learning that thirteen death row
inmates had been exonerated in Illinois, Republican Governor George
Ryan imposed a blanket moratorium on executions in his state. Supreme
Court Justice Sandra Day O'Connor said just this past July that
``serious questions are being raised'' about the death penalty and
``the system may well be allowing some innocent defendants to be
executed.'' The American Bar Association also has called for a
moratorium. Even Texas, the state traditionally having a high execution
rate, has reduced its rate from forty last year to thirteen this year.
And when asked whether they support capital punishment or life without
parole, only forty-seven percent of Americans favor the death penalty;
an all-time low.
Finally, I fail to understand why we need a death penalty in order
to comply with a treaty when most other signatory nations have outlawed
it. As a matter of fact, many parties to the convention may not
extradite persons to us because we impose the death penalty.
I urge my colleagues to vote ``Yes'' on this amendment.
[The statement of Ms. Jackson Lee follows:]
Are there amendments----
Mr. Delahunt. Mr. Chairman?
Mr. Smith. Mr. Chairman?
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Texas.
Mr. Smith. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 3275----
Mr. Smith. Mr. Chairman, I ask unanimous consent that the
amendment be considered as read.
Chairman Sensenbrenner. Without objection, so ordered.
[The amendment follows:]
Chairman Sensenbrenner. And the gentleman from Texas is
recognized for 5 minutes.
Mr. Smith. Thank you, Mr. Chairman.
And as the gentleman from Virginia indicated, I do hope
that this amendment will satisfy some of the concerns that he
has expressed, as well as the concerns expressed by the
gentlewoman from Texas, Ms. Jackson Lee.
Mr. Chairman, I offer this amendment to make changes to the
bill consistent with recommendations provided by the Department
of Justice.
These recommendations were made in response to requests by
Members of the Subcommittee that the Department of Justice
review the bill and inform them of any provision that was not
necessary to comply with the terrorist bombing treaty or the
financing of terrorism treaty.
Upon further review, the Justice Department has determined
that it is not necessary to specifically reference the RICO
statutes or the extension of the statute of limitations. Since
the crimes that we are dealing with are Federal crimes of
terrorism, under section 2332b(g)(5)(B) of title 18 of the U.S.
Code, they would automatically be included in these statutes.
This amendment will serve to simplify the bill language,
and I urge my colleagues to support it.
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, the amendment has what's called
ancillary measures, which suggests that they are not absolutely
needed.
I would point out that the wiretap predicate, unlike the
wiretap legislation that we passed in the anti-terrorism bill,
is limited to terrorism situations under title 3, which
requires probable cause that crimes are being committed. That
is in stark contrast to what we passed last time around, where
with the FISA wiretaps, you don't even have to suggest that a
crime is being committed and you don't need probable cause.
This amendment limits the application of the bill and more
closely reflects what is needed to conform with the treaties.
And, therefore, I would support the amendment.
Chairman Sensenbrenner. The question is on the----
Ms. Jackson Lee. Will the gentleman yield? Will the
gentleman yield?
Chairman Sensenbrenner. The gentleman from Virginia----
Mr. Scott. Reclaiming my time, and I would yield to the
gentlelady from Texas.
Ms. Jackson Lee. Let me as well indicate my concerns with
the broad net again for implementing the treaties, in as much
as many of the provisions were already in U.S. criminal law.
And I would say to the gentleman from Texas, this
alleviates some of my concern in the redundancy issue that we
raised in Subcommittee. And I thank the gentleman for the
amendment, and I support the amendment.
Mr. Frank. Would the gentleman yield?
Mr. Scott. I yield to the gentleman from Massachusetts.
Mr. Frank. Mr. Chairman, since this is now becoming a love
fest--[Laughter.]--I just wanted to add a word of bipartisan
praise.
I think we should take note, this appears to be the first
treaty that the Bush Administration has discovered on entering
office that it is prepared to support. [Laughter.]
And we've heard a lot about the belated discovery of
multilateralism. I have been trying to think of all of the
treaties that Bush Administration administered, and we have
finally found one that it likes, and I think that ought to be
duly noted.
Chairman Sensenbrenner. And then we should quickly pass
this bill.
The question is on the----
Mr. Delahunt. Will the gentleman yield?
Mr. Frank. Before they change their minds. [Laughter.]
Chairman Sensenbrenner. Right.
The question is on the amendment offered by the gentleman
from Texas, Mr. Smith.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment is agreed to.
Are there further amendments?
Mr. Nadler. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. I don't have an amendment; I have a question
for the sponsor of the bill.
Chairman Sensenbrenner. The gentleman strikes the last word
and is recognized for 5 minutes.
Mr. Nadler. Thank you. I just have a question.
I'm trying to understand this bill, the necessity. Can you
cite for us, please, precisely anything that this bill adds to
the law? In other words, what's now legal that would be made
illegal under this bill?
Mr. Delahunt. Will the gentleman yield?
Mr. Nadler. To who?
Mr. Delahunt. To----
Mr. Nadler. Oh, yes, certainly.
Mr. Delahunt. Yes, at my request yesterday, there was a
memorandum--and I want to compliment the department for
producing it in a timely fashion--that posed that exact
question. And if you don't have it in front of you, I would be
happy to share my copy of it with you.
It's entitled ``Response to Request by Members of
Subcommittee for More Input.''
It says, ``Provisions that do not directly implement the
conventions.'' And clearly, it would take longer than you or I
have in terms of time to recite it.
Mr. Nadler. Well, I will read this, but--thank you.
Reclaiming my time.
I will read this.
But I will yield to the gentleman. Could you give us
examples of what are now legal that would be made illegal under
this bill?
Mr. Smith. Let me give you one specific example that was
given to us by the Associate Attorney General yesterday. And it
is this: If, for example, a U.S. citizen were implicated in
planting a bomb in an Air France aircraft that exploded and
killed people, with no U.S. citizens, under current law, that
U.S. citizen would not be able to be prosecuted. Whereas under
the treaty----
Mr. Nadler. That's hard to--reclaiming my time.
It's hard to believe that it is not a crime now to plant a
bomb in the United States on a foreign aircraft if the bomb
explodes over the ocean?
Mr. Smith. No, no, no, no. If the U.S. citizen planted a
bomb in France on an Air France aircraft, blew it up----
Mr. Nadler. Presumably that would be a crime under French
law which they would extradite----
Mr. Smith. Well, that was the example given to us yesterday
by the Attorney General.
Mr. Nadler. So this expands our jurisdiction to crimes that
occur in a foreign----
Mr. Smith. Correct. And it fills in some gaps that are now
open and where we are not able to prosecute.
Mr. Nadler. Let me just ask one other question, then. And I
haven't given this any thought, obviously, but are there
problems with giving the United States jurisdiction for crimes
that occur in France, that France might want to prosecute?
Mr. Smith. If the gentleman will yield, I think the point
of the treaty is that we want to be able to have that
individual extradited and work with France----
Mr. Frank. Will the gentleman yield?
Mr. Nadler. Yes.
Mr. Frank. Well, if you pass this bill, he won't be
extradited, because they won't extradite anybody to be subject
to a death penalty. So if you include the death penalty, you
guarantee that there will be no extradition.
Mr. Delahunt. Will the gentleman yield?
Mr. Nadler. Yes.
Mr. Delahunt. I have an amendment that would deal with the
death penalty issue, because of the reluctance on the part of a
number of parties to the agreement.
Mr. Nadler. I appreciate the gentleman.
Reclaiming my time, can you give me an example, other--I
mean, I find it difficult to think that we are going to pass a
bill to give us jurisdiction for a crime in France that France
would certainly want to--if someone put a bomb on an Air
France, in France, put a bomb on an Air France airline that
blew up, I suspect the French would want to prosecute that
individual. And why would they extradite them to the United
States so we could prosecute them?
Give me a more practical example. I mean, I don't see a
great problem in that situation, where France would certainly
want to prosecute. Is there anything that might happen where
someone else doesn't want to prosecute that this bill would
help us with?
Mr. Smith. By the way, I think that was a very practical
example, because I think that's a very realistic possibility.
Let me see if we can----
Mr. Nadler. Yes, but France would take care of that,
presumably.
Mr. Smith. If the gentleman will continue to yield, let me
see if we can give another example based upon the testimony we
received.
Let me read to the gentleman a couple of paragraphs as to
what Mr. Chertoff testified and maybe that will reassure him:
Some concern was expressed at the hearing on this bill--this is
what I mentioned awhile ago--that there may be other laws
already enacted that could cover the terrorist activities the
bill focuses on. While there may be some overlap of current law
with the crimes set forth in this bill, Assistant Attorney
General Michael Chertoff testified that the bill does plug
important and serious gaps in our criminal code.
As he stated: These are serious crimes that we should be
able to attack from multiple ways. We should not shy away from
plugging gaps for crimes that involve terrorist bombings simply
because there may be some other related criminal statute in
place when we can enact a criminal law that is exactly on
point.
If the gentleman wants to yield further, I can read him
part of the memo that was given----
Mr. Nadler. I'm reclaiming my time. Thank you very much.
Mr. Smith. Okay.
Mr. Nadler. You read that before anyway.
I yield back.
Mr. Watt. Mr. Chairman? Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt.
Mr. Watt. I move to strike the last word----
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt [continuing]. Just for the purpose of requesting
that maybe we all would feel better if we had a copy of the
letter that was written to Mr. Delahunt, which apparently has
not been circulated.
Mr. Delahunt. Will the gentleman yield?
Chairman Sensenbrenner. Is it possible that the staff can
supply the letter quickly?
Mr. Smith. We can give them a copy, Mr. Chairman. It's
titled, ``Response to Request by Members of Subcommittee for
More Input: Provisions that do not directly implement,'' and
then it goes into provisions which implement the convention.
Chairman Sensenbrenner. Without objection, the letter will
be put in the record at this point.
[The information referred to follows:]
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The time belongs to the gentleman
from North Carolina, Mr. Watt.
Mr. Watt. I yield back.
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. Are there amendments?
Mr. Delahunt. Mr. Chairman?
Mr. Scott. Can I ask unanimous consent that the gentleman
from Massachusetts be recognized for the purpose of an
amendment. He has a time constraint and would like his
amendment considered.
Chairman Sensenbrenner. The Chair was about ready to
recognize him all by himself. [Laughter.]
For what purpose does the gentleman from Massachusetts seek
recognition.
Mr. Delahunt. I thank the Chairman for recognizing me--all
by myself.
I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Smith. Mr. Chairman, I will reserve a point of order.
Chairman Sensenbrenner. A point of order is reserved.
The Clerk. Amendment to H.R. 3275, offered by Mr. Delahunt
and Mr. Scott.
Page 5, line 7, insert a period after ``life'' and strike
all that follows through line 9.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman from Massachusetts is
recognized for 5 minutes.
Mr. Delahunt. Yes, Mr. Chairman, the amendment, which I am
joined in with Mr. Scott, would delete the language authorizing
the imposition of the death penalty for the offenses set forth
under section 102.
In the memorandum presented by the Department of Justice,
it acknowledges that apart from these ancillary measures, the
proposed legislation contains a very limited number of
provisions that are not required for the implementation of the
conventions.
One of those, of course, is the death penalty. In fact, Mr.
Chairman, not only is it not required by the convention, but,
as others have suggested, it could impair the fight against
international terrorism by making it harder for the Justice
Department to secure extradition in these kinds of cases.
Let's be honest, much of the rest of the civilized world
rejects the death penalty. And even some of our closest
allies--Canada, for example--have begun to refuse extradition
requests by the United States unless the courts can be assured
that the defendants will not face execution.
Given that situation, how can it serve our national
interests to enact additional unnecessary provisions that
further marginalize us among our allies who reject the death
penalty? The only answer I have heard is that the new death
penalty provision merely tracks current law with respect to
comparable domestic crimes. Well, that's true. And we're not
repealing current law.
But the fact that the current law presents an obstacle to
our law enforcement objectives is, for me, hardly a persuasive
argument for compounding the problem.
So I support the implementation of the conventions with all
due speed. I think there are other problems. I would have
preferred a different process here.
But, saying that, let's do it in a way that advances our
national objectives.
And I urge support for the amendment and yield back the
balance of my time.
Chairman Sensenbrenner. The Chair would beg the indulgence
of Members of the Committee. We are unsure whether we adopted
Mr. Smith's amendment.
Does the clerk have a record? Have we adopted Mr. Smith's
amendment?
Okay, since we have done that, we are now on the Delahunt
amendment. Does the gentleman from Texas, Mr. Smith, insist on
his point of order?
Mr. Smith. Mr. Chairman, I withdraw my point of order but
oppose the amendment.
Chairman Sensenbrenner. Okay. The gentleman is recognized
for 5 minutes.
Mr. Smith. Mr. Chairman, this debate should not be about
whether the death penalty is appropriate or not. It should be
about whether or not we implement the terrorist bombings treaty
in a manner consistent with current law.
One may not like the death penalty, but if we are going to
have it, then we should be consistent with the types of crime
it applies to.
Sections 2332a and 2332b of title 18 of the U.S. Code all
provide for the death penalty for a terrorist act that results
in someone's death. With regard to the terrorist bombing crime
set forth in the treaty, article 4 of the treaty requires that
each nation provide, quote, ``appropriate penalties which take
into account the grave natures of those offenses,'' unquote.
Right now we are dealing with the unlawful detonation of an
explosive or other lethal device in a public facility with the
intent to cause death and which does in fact cause death. It
would be inconsistent with our current laws on terrorism not to
allow for the possibility of the death penalty in these similar
cases.
The crime of killing innocent people by blowing up public
buildings should be subject to the most severe penalty
possible, and that should be an option.
So I ask my colleagues to oppose this amendment, and I
yield back the balance of my time.
Chairman Sensenbrenner. The question is on the amendment by
the----
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Scott.
Mr. Scott. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, we've already pointed out that
this provision may in fact be a barrier to extradition. But I
want to support the amendment because it's obviously not needed
when other countries don't even have the death penalty, so it
cannot possibly be required.
We know that the death penalty is not a deterrent.
Certainly, it wouldn't have done anything to deter those
involved in September 11th. We know we make mistakes in the
application of the death penalty. And we know there is a racial
bias in the application of the death penalty.
And we have no idea how this thing is going to be applied
in so far as the attorney general has announced that terrorists
ought to be tried in some home-baked procedure where they would
not be entitled to a fair trial. We would hate to have the
death penalty pending in cases like that.
So I would hope that we would support the amendment and
have the debate on the death penalty at another time.
I yield back the balance of my time.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from Massachusetts, Mr. Delahunt.
Those in favor will say aye.
Opposed, no.
The noes appear to have it. The noes have it, and the
amendment is not agreed to.
Are there further amendments?
Hearing none, the Chair notes the presence of a reporting
quorum. The question occurs on the motion to report the bill
H.R. 3275 favorably as amended.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
motion to report favorably is agreed to.
Without objection, the bill will be reported favorably to
the House in the form of a single amendment in the nature of a
substitute incorporating the amendments adopted here today.
Without objection, the Chairman is authorized to move to go to
conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes.
All Members will be given 2 days as provided by the rules in
which to submit additional dissenting, supplemental, or
minority views.
The Chair thanks the Members for their indulgence and
support. This concludes the business on the notice, and the
Committee is adjourned.
[Whereupon, at 11:06 a.m., the Committee was adjourned.]
Minority Views
While we support the prompt ratification and implementation
of the International Conventions for the Suppression of
Terrorist Bombings and the Suppression of the Financing of
Terrorism, we are concerned that H.R. 3275 includes
controversial changes to U.S. domestic law that go well beyond
the limited changes required to bring our laws into conformity
with the requirements of those agreements.\1\
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\1\ Department of Justice Memorandum to House Crime Subcommittee
(Response to Request by Members of Subcommittee for More Input) 1 (Nov.
14, 2001) (hereinafter the ``DOJ Memorandum'').
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Chief among these is the provision in Title I that
authorizes the imposition of the death penalty for the offenses
set forth in section 102.\2\ At the Committee markup, Reps.
William D. Delahunt (D-MA) and Bobby Scott (D-VA) offered an
amendment to delete this language, leaving in place the
provision authorizing a maximum sentence of life imprisonment,
but it was rejected by voice vote.
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\2\ See H.R. 3275 Sec. 102(a), 107th Cong., 1st Sess. (proposed 18
U.S.C. Sec. 2332f(c)).
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This is surprising considering that the Administration has
acknowledged that capital punishment is not required to
implement the Conventions.\3\ In fact, not only is it not
required under the Conventions, but it actually could impair
the fight against international terrorism by making it harder
for the Justice Department to secure extradition in these kinds
of cases. This is because America's continued resort to the
death penalty has brought condemnation from numerous nations
across the globe. Even some of our closest allies routinely
refuse to honor extradition requests by the United States
unless their judicial authorities can be assured that the
defendants will not face execution.\4\ Given this situation, we
do not see how it serves American interests to enact additional
provisions that will further complicate our ability to
prosecute terrorists and further marginalize the United States
within the family of nations.
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\3\ Hearing on H.R. 3275 Before the Subcomm. on Crime of the House
Comm. on the Judiciary, 107th Cong., 1st Sess. (Nov. 14, 2001)
(testimony of Michael Chertoff, Assistant Att'y General, Criminal
Division, U.S. Dep't of Justice); DOJ Memorandum, supra.
\4\ See, e.g., the recent decision by the Supreme Court of Canada,
holding that the Canadian Charter of Rights and Freedoms precludes
extradition to the United States absent assurances by U.S. authorities
that the death penalty would not be imposed. United States v. Burns, 1
S.C.R.283 (2001). See also New Murder Trial Granted for Fugitive
Extradited From France, N.Y. Times, Nov. 15, 2001, at A25 (United
States officials required to assure the French authorities that
longtime fugitive Ira Einhorn would not be eligible for the death
penalty in his new trial); Benjamin Weiser, South Africa Rules On
Terror Suspect, N.Y. Times, at B4, May 29, 2001 (South African
Constitutional Court ruling that suspect on trial in Manhattan in
connection with the bombing of the American Embassy in Tanzania should
not have been turned over to U.S. authorities without assurances that
he would not face the death penalty); John Kifner, France Will Not
Extradite If Death Penalty Is Possible, N.Y. Times, Mar. 31, 2001, at
B4 (refusal of French officials to turn over anti-abortion activist
accused of killing a Buffalo doctor who provided abortions unless given
guarantees that he would not be executed).
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Nevertheless, the Majority and the Administration have
attempted to justify this new death penalty provision by
claiming that it merely tracks current law with respect to
comparable domestic crimes.\5\ That may well be so, but the
fact that current law presents an obstacle to our law
enforcement objectives is hardly a persuasive argument for
compounding the problem.
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\5\ DOJ Memorandum, supra.
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In fact, we doubt a persuasive argument can be made for
expanding the death penalty in this context. While reasonable
people may disagree about whether the death penalty acts as a
deterrent to some categories of crimes, we are at a loss to see
how anyone can seriously believe that the prospect of capital
punishment will deter the kinds of atrocities our nation
experienced on September 11. Indeed, the Administration
implicitly concedes as much when it says that this new
provision merely replicates existing death penalty provisions--
provisions that did nothing to prevent those attacks.
The Conventions should be ratified and implemented with all
reasonable dispatch, but we have a responsibility to achieve
that goal in a way that genuinely advances our nation's
interests.
John Conyers, Jr.
Barney Frank.
Howard L. Berman.
Jerrold Nadler.
Robert C. Scott.
Melvin L. Watt.
Sheila Jackson Lee.
Maxine Waters.
William D. Delahunt.
Tammy Baldwin.