[House Report 108-588]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     108-588

======================================================================



 
              TERRORIST PENALTIES ENHANCEMENT ACT OF 2004

                                _______
                                

  July 7, 2004.--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

                    DISSENTING AND ADDITIONAL VIEWS

                        [To accompany H.R. 2934]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 2934) to increase criminal penalties relating to 
terrorist murders, deny Federal benefits to terrorists, and for 
other purposes, having considered the same, report favorably 
thereon with an amendment and recommend that the bill as 
amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     3
Background and Need for the Legislation..........................     3
The Committee's Amendments.......................................     3
Hearings.........................................................     5
Committee Consideration..........................................     5
Vote of the Committee............................................     5
Committee Oversight Findings.....................................     6
New Budget Authority and Tax Expenditures........................     7
Congressional Budget Office Cost Estimate........................     7
Performance Goals and Objectives.................................     8
Constitutional Authority Statement...............................     8
Section-by-Section Analysis and Discussion.......................     8
Changes in Existing Law Made by the Bill, as Reported............     8
Markup Transcript................................................    10
Dissenting Views.................................................   135
Additional Views.................................................   139

                             The Amendment

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Terrorist Penalties Enhancement Act 
of 2004''.

SEC. 2. PENALTIES FOR TERRORIST OFFENSES RESULTING IN DEATH; DENIAL OF 
                    FEDERAL BENEFITS TO TERRORISTS.

    (a) In General.--Chapter 113B of title 18, United States Code, is 
amended by adding at the end the following:

``Sec. 2339D. Terrorist offenses resulting in death

    ``(a) Whoever, in the course of committing a terrorist offense, 
engages in conduct that results in the death of a person, shall be 
punished by death or imprisoned for any term of years or for life.
    ``(b) As used in this section, the term `terrorist offense' means--
            ``(1) a Federal felony offense that is--
                    ``(A) a Federal crime of terrorism as defined in 
                section 2332b(g) except to the extent such crime is an 
                offense under section 1363; or
                    ``(B) an offense under this chapter, section 175, 
                175b, 229, or 831, or section 236 of the Atomic Energy 
                Act of 1954; or
            ``(2) a Federal offense that is an attempt or conspiracy to 
        commit an offense described in paragraph (1).

``Sec. 2339E. Denial of Federal benefits to terrorists

    ``(a) An individual or corporation who is convicted of a terrorist 
offense (as defined in section 2339D) shall, as provided by the court 
on motion of the Government, be ineligible for any or all Federal 
benefits for any term of years or for life.
    ``(b) As used in this section, the term `Federal benefit' has the 
meaning given that term in section 421(d) of the Controlled Substances 
Act, and also includes any assistance or benefit described in section 
115(a) of the Personal Responsibility and Work Opportunity 
Reconciliation Act of 1996, with the same limitations and to the same 
extent as provided in section 115 of that Act with respect to denials 
of benefits and assistance to which that section applies.''.
    (b) Conforming Amendment to Table of Sections.--The table of 
sections at the beginning of the chapter 113B of title 18, United 
States Code, is amended in by adding at the end the following new 
items:

``2339D. Terrorist offenses resulting in death.
``2339E. Denial of federal benefits to terrorists.''.
    (c) Aggravating Factor in Death Penalty Cases.--Section 3592(c)(1) 
of title 18, United States Code, is amended by inserting ``section 
2339D (terrorist offenses resulting in death),'' after 
``destruction),''.

SEC. 3. DEATH PENALTY IN CERTAIN AIR PIRACY CASES OCCURRING BEFORE 
                    ENACTMENT OF THE FEDERAL DEATH PENALTY ACT OF 1994.

    Section 60003 of the Violent Crime Control and Law Enforcement Act 
of 1994, (Public Law 103-322), is amended, as of the time of its 
enactment, by adding at the end the following:
    ``(c) Death penalty procedures for certain previous aircraft piracy 
violations.--An individual convicted of violating section 46502 of 
title 49, United States Code, or its predecessor, may be sentenced to 
death in accordance with the procedures established in chapter 228 of 
title 18, United States Code, if for any offense committed before the 
enactment of the Violent Crime Control and Law Enforcement Act of 1994 
(Public Law 103-322), but after the enactment of the Antihijacking Act 
of 1974 (Public Law 93-366), it is determined by the finder of fact, 
before consideration of the factors set forth in sections 3591(a)(2) 
and 3592(a) and (c) of title 18, United States Code, that one or more 
of the factors set forth in former section 46503(c)(2) of title 49, 
United States Code, or its predecessor, has been proven by the 
Government to exist, beyond a reasonable doubt, and that none of the 
factors set forth in former section 46503(c)(1) of title 49, United 
States Code, or its predecessor, has been proven by the defendant to 
exist, by a preponderance of the information. The meaning of the term 
`especially heinous, cruel, or depraved', as used in the factor set 
forth in former section 46503(c)(2)(B)(iv) of title 49, United States 
Code, or its predecessor, shall be narrowed by adding the limiting 
language `in that it involved torture or serious physical abuse to the 
victim', and shall be construed as when that term is used in section 
3592(c)(6) of title 18, United States Code.''.

                          Purpose and Summary

    H.R. 2934 would provide for increased penalties, including 
up to life in prison or death, for terrorist offenses that 
result in the death of another person. H.R. 2934 also provides 
that any person convicted of a ``Federal crime of terrorism'' 
is ineligible to receive any benefits from the Federal 
Government for any term of years or for life.

                Background and Need for the Legislation

    Since September 11, 2001, Federal and State officials have 
worked hard to prevent further terrorist attacks on U.S. soil. 
Despite some changes to the law to increase penalties after the 
deadly terrorist attacks, a jury still cannot consider a 
sentence of death or life imprisonment for terrorists in many 
cases even when the attack resulted in death.
    Existing law does not consistently provide adequate maximum 
penalties for fatal acts of terrorism. For example, in a case 
in which a terrorist caused massive loss of life by sabotaging 
a national defense installation in violation of 18 U.S.C. 
Sec. 2155, sabotaging a nuclear facility in violation of 42 
U.S.C. Sec. 2284, or destroying an energy facility in violation 
of 18 U.S.C. Sec. 1366, there would be no possibility of 
imposing the death penalty under the statutes defining these 
offenses because they contain no death penalty authorizations.
    In contrast, dozens of other Federal violent crime 
provisions authorize up to life imprisonment or the death 
penalty in cases where victims are killed. There are also 
cross-cutting provisions which authorize these sanctions for 
specified classes of offenses whenever death results, such as 
18 U.S.C. Sec. 2245, which provides that a person who, in the 
course of a sexual abuse offense, ``engages in conduct that 
results in the death of a person, shall be punished by death or 
imprisoned for any term of years or for life.''
    Current law allows Federal courts to deny Federal benefits 
to persons who have been convicted of drug-trafficking or drug-
possession crimes. 21 U.S.C. Sec. 862. As a result, these 
convicts can be prohibited, for periods of up to life, from 
receiving grants, contracts, loans, professional licenses, or 
commercial licenses that are provided by a Federal agency or 
out of appropriated funds. But despite the fact that terrorism 
is at least as dangerous to the our national security as drug 
offenses, presently there is no legal authority to deny Federal 
benefits to persons who have been convicted of terrorism 
crimes.

                       The Committee's Amendments

    There were several amendments offered during markup. Mr. 
Carter offered an amendment, which was accepted by a voice 
vote, to narrow the definition of ``terrorist offense'' for 
purposes of this legislation by removing the reference to 18 
U.S.C. Sec. 2331 in that definition.
    Representative Green offered an amendment, which passed on 
a voice vote, to authorize the death penalty, in accordance 
with specified procedures, for violations of 49 U.S.C. 
Sec. 46502 (2000) or its predecessor committed prior to the 
enactment of the Violent Crime Control and Law Enforcement Act 
of 1994, but after the enactment of the Antihijacking Act of 
1974.
    Mr. Green's amendment addresses a problem in the law 
relating to the availability of the death penalty for persons 
convicted of causing death in the course of hijacking an 
airplane. Based on a 2003 ruling by the District Court in the 
District of Columbia, U.S. v. Safarimi, 257 F. Supp. 191 
(D.D.C. 2003) the government may not seek the death penalty in 
air piracy cases that occurred after the Antihijacking Act of 
1974 and before the Federal Death Penalty Act of 1994 (which 
repealed the 1974 Act). This would make the death penalty 
unavailable for individuals who killed innocent passengers in 
four hijackings in the 1980's. This was clearly not the intent 
of Congress when it passed the Antihijacking Act of 1974.
    The Committee discussion on Mr. Green's amendment included 
a discussion regarding whether this proposed amendment would be 
an unconstitutional ex post facto law. Mr. Green offered a 
legal opinion prepared by the Department of Justice, which is 
included in the Committee record. Based on this legal opinion 
and the discussion of Members of the Committee, the Committee 
concluded that this amendment would not constitute an ex post 
facto law for the following reasons:

        1) LThe law as it existed during the time period of the 
        offense is not more favorable to defendants than the 
        proposed amendment would be. ``It is axiomatic that for 
        a law to be ex post facto it must be more onerous than 
        the prior law.'' Dobbert v. Florida, 432 U.S. 282, 294 
        (1977).

        2) LThe Committee concluded that either the original 
        regime in the Antihijacking Act of 1974 or the regime 
        of the Violent Crime Control and Law Enforcement Act of 
        1994 currently applies to aircraft piracy committed 
        between the time of the two Acts.

        3) LBecause the proposed amendment appears to be 
        entirely ameliorative when compared with either the 
        Antihijacking Act of 1974 or the Violent Crime Control 
        and Law Enforcement Act of 1994, the Committee 
        concluded that it would not violate the ex post facto 
        clause.

    Mr. Flake offered an amendment, which was accepted by a 
vote of 18-9, to prohibit the death penalty from being applied 
for a violation of 18 U.S.C. Sec. 1363 (destruction of 
buildings or property within special maritime and territorial 
jurisdiction of the United States). The Committee does not 
intend to prohibit a person for being eligible for a death 
sentence in any circumstance that may fall under this statute 
as well as others, but rather intends only that the death 
penalty may not flow from this specific charge. If a defendant 
is charged for other crimes which warrant a death penalty, but 
also is charged with a violation of this statute, that 
individual may still be eligible for the death penalty for 
those violations of other criminal provisions under Title 18.
    Representative Jackson-Lee offered an amendment, which was 
accepted by voice vote, to prohibit corporations convicted of 
terrorist activities from receiving any of the Federal benefits 
specified in the legislation.
    Representative Scott offered an amendment, which failed by 
a vote of 7-18, to strike the provisions of this legislation 
that allow a death sentence for an individual who attempts or 
conspires to commit a terrorist offense when that attempt or 
conspiracy results in the death of another.

                                Hearings

    The Committee on the Judiciary's Subcommittee on Crime, 
Terrorism, and Homeland Security held a hearing on H.R. 2934 on 
April 24, 2004. Testimony was received from four witnesses, 
representing four organizations, with additional materials 
submitted.

                        Committee Consideration

    On April 24, 2004, the Subcommittee on Crime, Terrorism, 
and Homeland Security met in open session and ordered favorably 
reported the bill H.R. 2934 with an amendment, by a voice vote, 
a quorum being present. On June 23, 2004, the Committee met in 
open session and ordered favorably reported the bill H.R. 2934, 
with an amendment, by a voice vote, a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that there 
were two recorded votes during the committee consideration of 
H.R. 2934.
    1. Amendment offered by Representative Flake was agreed to 
by a rollcall vote of 18 yeas to 9 noes and 1 pass.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................
Mr. Bachus......................................................
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................                              X
Ms. Hart........................................................              X
Mr. Flake.......................................................              X
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................
Mr. Schiff......................................................                                              X
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             18               9               1
----------------------------------------------------------------------------------------------------------------

    2. Amendment offered by Representative Scott was not agreed 
to by a rollcall vote of 7 yeas to 18 noes.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................
Mr. Bachus......................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................                              X
Mr. Conyers.....................................................
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              7              18
----------------------------------------------------------------------------------------------------------------

                      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.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives 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. 2934, 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, June 30, 2004.
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. 2934, the ``Terrorist Penalties 
Enhancement Act of 2004.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                             Douglas Holtz-Eakin, Director.

Enclosure.

H.R. 2934--Terrorist Penalties Enhancement Act of 2004.
    CBO estimates that implementing H.R. 2934 would have no 
significant cost to the Federal Government. Enacting the bill 
could affect direct spending and revenues, but CBO estimates 
that any such effects would not be significant. H.R. 2934 
contains no intergovernmental or private-sector mandates as 
defined in the Unfunded Mandates Reform Act, and would impose 
no costs on state, local, or tribal governments.
    H.R. 2934 would establish a new Federal crime for terrorist 
acts that result in death and would deny Federal benefits to 
convicted terrorists. Because those prosecuted and convicted 
under H.R. 2934 could be subject to criminal fines, the Federal 
Government might collect additional fines if the legislation is 
enacted. Collections of such fines are recorded in the budget 
as revenues, which are deposited in the Crime Victims Fund and 
later spent. In addition, enacting H.R. 2934 could reduce the 
number of persons benefitting from Federal assistance programs. 
CBO expects that any additional revenues and direct spending, 
or any effects on Federal assistance programs, would not be 
significant because of the small number of cases likely to be 
affected.
    The CBO staff contact for this estimate is Mark Grabowicz. 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
2934 will help ensure consistency in the prosecution of those 
who commit terrorist attacks.

                   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

Section 1. Short Title. Table of Contents
    This section establishes the short title of the legislation 
as the ``Terrorism Penalties Enhancement Act of 2004.''
Section 2. Penalties for Terrorist Murders
    This section authorizes a court to impose a sentence of up 
to life imprisonment or the death penalty for conduct resulting 
in death that occurs in the course of various offenses 
committed by terrorists. This section also adds the new section 
18 U.S.C. Sec. 2339D that would add terrorist offenses 
resulting in death to the list of offenses in 18 U.S.C. 
Sec. 3592(c)(1), which permits the jury to consider imposition 
of the death penalty.
    This will make the option of capital punishment available 
more consistently in cases involving fatal terrorist crimes. 
The imposition of capital punishment in such cases will 
continue to be subject to the requirement under 18 U.S.C. 
Sec. 3591 that the offender have a high degree of culpability 
with respect to the death of the victim or victims and to the 
requirement that the jury conclude that the death penalty is 
warranted under the standards and procedures of 18 U.S.C. 
Sec. 3593. This section would also ensure that the same 
disincentives that the law creates with respect to drug crimes 
are available in the terrorism context as well. Specifically, 
it would give Federal courts the authority to deny Federal 
benefits to any individual or corporation convicted of a 
terrorist offense listed in 18 U.S.C. Sec. 2332b(g)(5)(B).
Section 3. Death penalty in Certain Air Piracy cases Occurring Before 
        Enactment of the Federal Death Penalty Act of 1994
    Section 3 embodies the Green amendment described above in 
Committee Amendments section that clarifies that the death 
penalty is available for certain air privacy crimes committed 
between the enactment of the Antihijacking Act of 1974 and the 
enactment of the Federal Death Penalty Act of 1994.

         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 (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

TITLE 18, UNITED STATES CODE

           *       *       *       *       *       *       *


                        CHAPTER 113B--TERRORISM

Sec.
2331.  Definitions.
     * * * * * * *
2339D.  Terrorist offenses resulting in death.
2339E.  Denial of federal benefits to terrorists.

           *       *       *       *       *       *       *


Sec. 2339D. Terrorist offenses resulting in death

    (a) Whoever, in the course of committing a terrorist 
offense, engages in conduct that results in the death of a 
person, shall be punished by death or imprisoned for any term 
of years or for life.
    (b) As used in this section, the term ``terrorist offense'' 
means--
            (1) a Federal felony offense that is--
                    (A) a Federal crime of terrorism as defined 
                in section 2332b(g) except to the extent such 
                crime is an offense under section 1363; or
                    (B) an offense under this chapter, section 
                175, 175b, 229, or 831, or section 236 of the 
                Atomic Energy Act of 1954; or
            (2) a Federal offense that is an attempt or 
        conspiracy to commit an offense described in paragraph 
        (1).

Sec. 2339E. Denial of Federal benefits to terrorists

    (a) An individual or corporation who is convicted of a 
terrorist offense (as defined in section 2339D) shall, as 
provided by the court on motion of the Government, be 
ineligible for any or all Federal benefits for any term of 
years or for life.
    (b) As used in this section, the term ``Federal benefit'' 
has the meaning given that term in section 421(d) of the 
Controlled Substances Act, and also includes any assistance or 
benefit described in section 115(a) of the Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996, 
with the same limitations and to the same extent as provided in 
section 115 of that Act with respect to denials of benefits and 
assistance to which that section applies.

           *       *       *       *       *       *       *

                              ----------                              


 SECTION 60003 OF THE VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 
                                  1994

SEC. 60003. SPECIFIC OFFENSES FOR WHICH DEATH PENALTY IS AUTHORIZED.

    (a) * * *

           *       *       *       *       *       *       *

    (c) Death penalty procedures for certain previous aircraft 
piracy violations.--An individual convicted of violating 
section 46502 of title 49, United States Code, or its 
predecessor, may be sentenced to death in accordance with the 
procedures established in chapter 228 of title 18, United 
States Code, if for any offense committed before the enactment 
of the Violent Crime Control and Law Enforcement Act of 1994 
(Public Law 103-322), but after the enactment of the 
Antihijacking Act of 1974 (Public Law 93-366), it is determined 
by the finder of fact, before consideration of the factors set 
forth in sections 3591(a)(2) and 3592(a) and (c) of title 18, 
United States Code, that one or more of the factors set forth 
in former section 46503(c)(2) of title 49, United States Code, 
or its predecessor, has been proven by the Government to exist, 
beyond a reasonable doubt, and that none of the factors set 
forth in former section 46503(c)(1) of title 49, United States 
Code, or its predecessor, has been proven by the defendant to 
exist, by a preponderance of the information. The meaning of 
the term ``especially heinous, cruel, or depraved'', as used in 
the factor set forth in former section 46503(c)(2)(B)(iv) of 
title 49, United States Code, or its predecessor, shall be 
narrowed by adding the limiting language ``in that it involved 
torture or serious physical abuse to the victim'', and shall be 
construed as when that term is used in section 3592(c)(6) of 
title 18, United States Code.

           *       *       *       *       *       *       *


                           Markup Transcript



                            BUSINESS MEETING

                         WEDNESDAY, MAY 5, 2004

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:09 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr., Chairman of the Committee, presiding.
    [Intervening business.]
    Chairman Sensenbrenner. The next item on the agenda is H.R. 
2934, the ``Terrorist Penalties Enhancement Act of 2003.'' The 
Chair recognizes the gentleman from California, Mr. Coble, the 
Chairman of the Subcommittee on Crime, Terrorism, and Homeland 
Security.
    Mr. Coble. That was North Carolina, Mr. Chairman.
    Chairman Sensenbrenner. North Carolina.
    Mr. Coble. Mr. Chairman, the Subcommittee on Crime, 
Terrorism, and Homeland Security reports the bill H.R. 2934, 
the Subcommittee amendment in the nature of a substitute, and 
moves its favorable recommendation to the full House.
    Chairman Sensenbrenner. Without objection, the bill will be 
considered as read and open for amendment at any point, and the 
Subcommittee amendment in the nature of a substitute which the 
Members have before them will be considered as read, considered 
as the original text for purposes of amendment and open for 
amendment at any point.
    [The Subcommittee Amendment in the Nature of a Substitute 
follows:]
      
      


    Chairman Sensenbrenner. The Chair recognizes the gentleman 
from North Carolina, Mr. Coble, to strike the last word.
    Mr. Coble. I thank the Chair.
    Mr. Chairman, the Subcommittee on Crime, Terrorism, and 
Homeland Security recently held a hearing and markup on this 
important piece of legislation which provides enhanced 
penalties for terrorist offenses resulting in death and the 
denial of Federal benefits to anyone convicted of a terrorist 
offense.
    At present, the jury is denied the ability to consider the 
death penalty or life imprisonment in many terrorist cases, 
even those resulting in death. In contrast, there are other 
Federal--other Federal provisions authorize the death penalty 
or life imprisonment for crimes resulting in death. 
Furthermore, while those convicted of drug-related crimes can 
be denied benefits, such as grants, contracts, loans, and 
professional licenses, those convicted of terrorist offenses 
cannot be denied such benefits. It hardly seems fair to allow a 
person who has committed terrorist offenses against our 
citizens to benefit from the generosity of those same citizens.
    These inconsistencies in the law need to be altered, it 
seems to me, and because the potential threat here is so great, 
we hope that the change--that changing the law to allow death 
sentences or life imprisonment will serve to deter would-be 
terrorists.
    I hope my colleagues can support this necessary and 
important bill, and I yield back my time, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott?
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, I am opposed to H.R. 2934, the ``Terrorist 
Penalty Enhancement Act.'' This bill provides for a massive 
expansion of the Federal death penalty, both for crimes that 
supporters of the death penalty might think warrant the death 
penalty as well as crimes many would not expect to be 
associated with death.
    The bill creates 23 new death penalties by making all 43 
Federal crimes of terror under 18 U.S.C. 2332b(g)(5) now death 
penalty eligible. But it also adds a sweeping catch-all death 
penalty provision and makes any Federal crime that meets a 
broad definition of domestic terrorism or international 
terrorism a death penalty-eligible crime should death occur as 
a result of conduct of such crime. Moreover, the bill makes 
attempts and conspiracies to commit such crimes death penalty-
eligible for all people that are involved in any way.
    Now, we have seen how this works in conspiracies and aiding 
and abetting in drug cases when a girlfriend can get decades of 
hard time while the kingpin boyfriend gets less time. This bill 
does not limit crimes to the death penalty eligibility to 
heinous crimes or offenses. It is so broad that it includes 
present offenses that, but for this bill becoming law, could 
require sentences of just a few months or even probation.
    In addition to deaths that occur as a result of the direct 
intent to murder, maim, kidnap, or destroy a nuclear facility 
or other such serious heinous crimes, crimes such as material 
support for a terrorist organization, injury, not destruction 
or damage but injury to a Federal building, are also included. 
They're included whether the crimes occur in the context of an 
effort to violently overthrow our Government or in the context 
of a traditional protest against Government policies. If death 
results, even if it was not specifically intended, anyone who 
was involved in committing or who attempted or conspired to 
commit any of the covered offenses would now be death penalty 
eligible.
    The provisions of the bill create a death penalty liability 
tantamount to a Federal felony murder rule with all of the 
aspects--with the additional aspect that all co-conspirators, 
aiders, and abettors would also be subject to the death 
penalty. This presents constitutional issues as to the 
appropriateness of the death penalty under these circumstances.
    The Attorney General, who ultimately approves death penalty 
cases, has a broad directive--has issued a broad directive to 
Federal prosecutors to pursue the most severe penalties, 
including more death penalties. With the broad expansion of the 
death penalty in this bill, he can pick and choose death 
penalty cases not necessarily on what someone did, but on who 
they are or what they are labeled, using nationality, citizen 
status, or other subjective factors.
    If, for example, a Middle Eastern group is labeled a 
terrorist organization, their crime could be a capital offense. 
Will the same prosecutorial zeal be unleashed against abortion 
protesters when they've committed a similar act?
    Now, Mr. Chairman, there are a number of unsavory reasons 
for charging a death penalty offense under the provisions of 
this bill, even when no reasonable expectation--there's no 
reasonable expectation that the death penalty will actually be 
imposed, for example, to help in the negotiations, getting a 
guilty plea out of somebody who is innocent, or for whom the 
evidence is shaky, or simply to get a more prosecutorially 
favorable jury.
    In a death penalty-qualified jury, anyone opposed to the--
anybody opposed to capital punishment could be stricken for 
cause without the use of a peremptory strike. The so-called 
death-qualified juries are notoriously believed to be more 
prosecutory--more prosecution oriented and they're also not 
broadly based, especially when you consider the polls that 
reflect that half of the African American community is opposed 
to the death penalty and, therefore, ineligible for service, 
whereas only about 20 percent of the rest of the country 
opposes the death penalty. So just charging the death penalty 
entitles the prosecutor to this advantage.
    Mr. Chairman, the provisions of the bill will be 
duplicative of many State jurisdictions and often conflicting. 
One such conflict would be where the residents of a particular 
State have chosen not to authorize capital punishment and the 
Federal Government pursues the death penalty against the 
State's public policy.
    Another concern, of course, is the frequent death rate--
excuse me, frequent error rate in applying the death penalty. 
In the last 10 years, more than 100 people on death row have 
been found factually innocent of the crime for which they 
received the death penalty.
    Mr. Chairman, I'd ask unanimous consent for an additional 
minute.
    Chairman Sensenbrenner. Without objection.
    Mr. Scott. With this kind of record of administering the 
existing death penalty laws, we should await the passage of the 
Innocents Protection Act before such a wholesale addition to 
death penalties occurred.
    Another difficulty occurs when we try to cooperate with 
other countries. We're already experiencing difficulties from 
the rest of the civilized world because of our proliferation of 
the death penalty. Many countries, for example, will not 
extradite suspects if they may be subject to the death penalty, 
and when you have such controversial issues as to whether or 
not someone supports an organization's social or humanitarian 
program, knew or should have known that it had been designated 
a terrorist organization, can only exacerbate such 
difficulties.
    Mr. Chairman, in spite of the over-breadth of the bill and 
all of the concerns, at the recent hearing on the bill, 
incredibly, no witness was able to conclude that it would apply 
to either the 9/11 offenders or to the Oklahoma bombing case.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Scott. Mr. Chairman, 5 more seconds? I hope we will 
defeat the bill. It's unnecessary and unjustified at this time, 
or at least pass limiting amendments.
    I thank you.
    Chairman Sensenbrenner. Without objection, all Members may 
include opening statements in the record at this point.
    [The prepared statement of Ms. Jackson Lee follows:]

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
Representative in Congress From the State of Texas, and Ranking Member, 
        Subcommittee on Immigration, Border Security, and Claims

    I thank Chairman Sensenbrenner and Ranking Member Conyers for their 
efforts in holding today's markup of the Terrorist Penalties 
Enhancement Act, or H.R. 2934. Because of the nature of the 
implications that it can have on our criminal justice system and on the 
U.S. Constitution, it is critical that we do a thorough job of 
analyzing its purposes and effects.
    As it is drafted, I oppose this legislation because it is overbroad 
and vague in its attempt to deter and punish terrorists. My opposition 
to the Terrorist Penalties Enhancement Act does not equate to sympathy 
for terrorist activity. My opposition does, however, equate to an 
initiative to protect the civil rights and civil liberties of non-
terrorists. This legislation, while on its face purports to address 
those crimes that all Americans will rally against, especially after 9/
11. It is very easy to put forth legislation under the guise of 
securing the homeland while advancing a separate agenda at the same 
time. The bill that is before us today seeks to do just that. Senator 
Arlen Specter introduced its companion bill, S. 1604, on September 10, 
2003; H.R. 2934 authorizes the death penalty for any act of domestic or 
international terrorism that results in the death of a person. While I 
wholeheartedly advocate the prosecution of domestic and international 
terrorists, I do not support legislation that is overbroad or that 
overextends its purported purpose. We as legislators must be very 
careful not to encroach upon the fundamental freedoms that are 
guaranteed under the U.S. Constitution. The Terrorist Penalties 
Enhancement Act has serious implications that far exceed the necessity 
of punishing terrorist activity.

         NECESSITY OF INTERNATIONAL SIGNATORIES AND A COALITION

    On December 10, we will celebrate the 56th anniversary of the 
adoption of the Universal Declaration of Human Rights in 1948 by the 
United Nations General Assembly. These thirty articles identify rights 
to which all human beings are entitled.
    Adherence to international law is a very important issue that has 
not been consistently addressed by the current Administration. Section 
2339D of the bill references the definition of ``terrorist offense'' as 
used in Section 2331 of Chapter 113B of title 18, United States Code 
and includes ``international terrorism'' in the scope of the law. We 
have not yet formed a coalition of members of the international 
community to formulate a single system of regulations or guidelines for 
homeland security or to deal with terrorists that is reliable enough to 
create further legislation that applies the death penalty. The record 
of extradition between the U.S. and other nations has tremendous gaps 
and functional problems that would create an impediment to the even-
handed application of this legislation, as drafted. It is logically 
impossible to legislate internationally when we have not included 
international parties as signatories to the legislation. H.R. 2934 has 
international intentions with national jurisdiction.

          RACIAL AND ETHNIC PROFILING AS A RESULT OF H.R. 2934

    Just a short time after 9/11, a group of terrorist suspects were 
assembled. In just over one year, over 87,000 people were interrogated, 
all of them Arabs. Of these, at least 1,200 were detained, many without 
charges. They were declared to be ``material witnesses'' for a trial 
that has not taken place to date. The names of these detainees were not 
released. They could not communicate with anyone outside, and they were 
frequently transported. The above set of events circumvented their 
right to legal counsel and prevented them from filing suit against the 
government for their illegal detention--in the name of homeland 
security.
    To further illustrate the potentially harmful effects that this 
legislation can have on my District, Houston's Joint Terrorism Task 
Force, created a few weeks before the first World Trade Center bombing 
in 1993, has investigated over 100 hate crimes since 9/11. Because 
Houston is viewed as one of eight U.S. cities most vulnerable to a 
potential terrorist attack, it is likely that this number will continue 
to grow. Furthermore, Houston is the only area in the U.S. with 
critical infrastructure in all risk categories.
    Houston also has the nation's second-largest Muslim population, 
numbering 350,000, and 80 mosques. Yet investigators are quick to 
stress that they do not use a broad brush to target Middle Easterners. 
The Council on American Islamic Relations, an Islamic civil rights 
group with offices in Houston has commented on the effects of post-9/11 
law enforcement. Council spokeswoman Rabiah Ahmed said that while the 
FBI is doing important outreach in the fight against hate crimes, the 
agency is sometimes guilty of ``profiling and unequal treatment of 
Muslims.''
    The terror suspects were charged months after their detention. Only 
one of the 1,200 was charged with terrorist related action. Most of the 
group was deported for immigration-related infractions.
    This bill, as drafted, will result in racial and ethnic profiling 
and subsequent excessive or premature punishment that could affect many 
communities of law-abiding people. In Houston alone, the Arab community 
represents a portion of my constituency that has grown from a few 
hundred to over 65,000 in the last 20-30 years.
    Furthermore, the extension of the death penalty in Section 2339D of 
the Act is dangerously broad. Until we first correct our legal 
definition of a ``terrorist offense,'' I think it unwise to extend the 
death penalty as a direct corollary to that definition. Passing this 
bill as drafted would be akin to the blind leading the blind--to death. 
Terrorism philosophically is still a very new thing to America and to 
the entire world, and we could very easily and logically label every 
crime a ``terrorist offense'' if a death follows. We as legislators 
would be playing a dangerous game by expanding the death penalty based 
on an already tenuous definition.
    Our efforts must continue to advance the cause of democratic 
principles, respect for international law, and a government based on 
transparency and accountability. It is a difficult task to legislate 
safeguards for security while preserving individual liberties. 
Provisions that are facially ``anti-terrorist'' do not necessarily 
secure our homeland. Therefore, the bill that we analyze and will mark 
up today must be re-vamped with the above in light of the above 
considerations.
    I respectfully oppose this legislation as drafted, and request that 
we instead work to create a more tight and narrowly-tailored definition 
of ``terrorist offense.''
    Thank you.

    [Intervening business.]
    Chairman Sensenbrenner. The Committee will resume 
consideration of H.R. 2934, the ``Terrorist Penalties 
Enhancement Act.'' Are there amendments? The gentleman from 
Texas, Mr. Carter.
    Mr. Carter. Thank you, Mr. Chairman. I have an amendment at 
the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 2934, offered by Mr. Carter. Page 2, strike 
lines 1 through 2----
    Mr. Carter. Mr. Chairman, I ask unanimous consent to waive 
the reading.
    Chairman Sensenbrenner. Without--well----
    Mr. Carter. To suspend the reading.
    Chairman Sensenbrenner. The request is moot, and the 
gentleman will be recognized for 5 minutes.
    [The amendment offered by Mr. Carter follows:]
      
      

  


    Mr. Carter. Thank you, Mr. Chairman.
    I'd like to thank you for allowing my legislation, H.R. 
2934, the ``Terrorist Penalty Enhancement Act,'' to be 
considered by the Committee. I am pleased that 83 Members of 
my--83 of my colleagues have agreed to cosponsor H.R. 2934, 
which will provide new and expanded penalties to those who 
commit fatal acts of terrorism.
    We must protect our neighborhoods from the threat of 
violent crimes which, unfortunately, in today's world includes 
the threat of terrorist attacks. Congress must act to protect 
U.S. citizens from such attacks and to bring to justice those 
who have threatened our freedom.
    My straightforward legislation will make any terrorist who 
kills eligible for the Federal death penalty. This legislation 
will also deny these same terrorists any Federal benefits they 
otherwise may have been eligible to receive.
    During the Subcommittee consideration, my colleague Mr. 
Green offered an amendment which expands Federal benefits 
denied to include welfare and food stamps. I am pleased this 
amendment was adopted.
    As a former State district judge for over 20 years, I have 
presided over five capital murder trials, three of which have 
resulted in the death penalty. From my experience, I believe 
the death penalty is a tool that can deter acts of terrorism 
and that can serve as a tool for prosecutors when negotiating 
sentences. In fact, in the Subcommittee hearing, Professor 
Joanna Shepherd from Emory University testifies that the death 
penalty does deter crime, which is indicated through her 
research.
    President George W. Bush has expressed his support for this 
legislation. In his speech to the FBI Academy, President Bush 
said, ``For the sake of the American people, Congress should 
change the law and give law enforcement officials the same 
tools they have to fight terror that they have to fight other 
crime.'' In Hershey, Pennsylvania, President Bush again 
emphasized the inequity in current law.
    I agree with President Bush. We ought to be sending a 
strong signal. If you sabotage a defense installation or a 
nuclear facility in a way that takes an innocent life, you 
ought to get the death penalty, the Federal death penalty.
    This legislation today puts all would-be terrorists on 
notice that they will receive the ultimate justice they should 
in the case where they decide to plan and execute future 
attacks on the American people. The amendment I am offering 
would strike from my bill the definition of international or 
domestic terrorism as defined in section 2331. Two weeks ago, I 
was fortunate to testify on behalf of H.R. 2934 when it was 
considered before the Subcommittee on Crime, Terrorism, and 
Homeland Security. Since this hearing, concerns about the 
inclusion of section 2331 in this legislation have been raised. 
In order to address this matter at a later time, I offer this 
amendment and request it be adopted.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Texas, Mr. Carter. 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? The gentleman from Virginia, 
Mr. Scott.
    Mr. Scott. Mr. Chairman, I have a unanimous consent request 
that letters from the University of Memphis, the Criminal 
Justice Law Letter, Criminologist, and Rowan University, and 
the ACLU be inserted in the record in contradiction of the 
testimony from Dr. Shepherd that was just cited.
    Chairman Sensenbrenner. Without objection.
    [The material referred to follows:]

    
    
    Chairman Sensenbrenner. Are there further amendments?
    Mr. Green. I have an amendment.
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green.
    Mr. Green. Thank you, Mr. Chairman. I have an amendment at 
the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute, offered--to H.R. 2934----
    Mr. Green. Unanimous consent that it be considered as read.
    Chairman Sensenbrenner. Without objection.
    [The amendment offered by Mr. Green follows:]
      


    Mr. Green. Thank you, Mr. Chairman.
    As the distinguished Committee of the--Chairman of the 
Subcommittee has said, this bill is all about punishing 
terrorists for crimes that they have committed. The amendment 
that I offer here is meant to close an unintended potential 
loophole that covers a small but important category of 
defendants who committed air piracy offenses resulting in death 
after the enactment of the Anti-Hijacking Act of 1974, but 
before the enactment of the Federal Death Penalty Act of 1994.
    In 1974, Congress enacted the Anti-Hijacking Act making the 
crime of air piracy the one and only crime under Federal law 
for which Congress passed comprehensive procedures to ensure 
that the death penalty could be constitutionally enforced. Over 
the years after the passage of the Anti-Hijacking Act of 1974, 
the crime of air piracy was repeatedly cited by Members of 
Congress and the executive branch as an example of a crime for 
which Congress hadn't enacted the necessary constitutional 
provisions to enforce the death penalty.
    In 1994, in an effort to make the death penalty widely 
available for numerous Federal offenses and to enact uniform 
procedures to apply to all Federal capital offenses, Congress 
passed the Federal Death Penalty Act of 1994, explicitly 
including air piracy among the list of crimes to which it 
applied, at the same time repealing the former death penalty 
procedures of the Anti-Hijacking Act of 1974, then codified.
    On September 29, 2001, the United States obtained custody 
of Zaid Safarini, the operational leader of the deadly 
attempted hijacking of Pan Am Flight 73, which resulted in the 
deaths of at least 20 people, including two U.S. citizens, and 
the injury of more than 100 others. Safarini and his co-
defendants were indicted by a grand jury in the District of 
Columbia in 1991. The Government filed papers stating its 
intention to seek the death penalty against Safarini. The 
district court, however, ruled that the Government could not 
seek the death penalty in the case or, by implication, in any 
other air piracy case from the pre-FDPA period, essentially 
because, among other things, Congress had not made clear which 
procedures should apply to such a prosecution.
    A further complication exists in that there are two 
provisions of the Anti-Hijacking Act of 1974 which, if taken 
away from the pre-FDPA air piracy defendants, could pose ex 
post facto concerns in light of another U.S. Supreme Court 
decision.
    Safarini has since pled guilty to the charged offenses and 
is scheduled to be sentenced in May 2004. This amendment 
addresses the issues identified by the district court in that 
case by explicitly stating that Congress intends for the 
provisions of the 1994 law to apply to this category of 
defendants, while also explicitly preserving for such 
defendants the two provisions of the 1974 Anti-Hijacking Act to 
which they are arguably constitutionally entitled concerning 
the statutory, aggravating, and mitigating circumstances set 
forth in the Anti-Hijacking Act.
    This amendment is particularly important because the 
terrorists who committed these acts of terrorism should be 
punished accordingly. There should not be possibility that 
these terrorists would be able to walk out of jail to cause 
more harm. Without this amendment, anyone who is convicted 
under this Act would be sentenced under the Sentencing 
Guidelines of November 1, 1987, and would have a maximum 
penalty of life in prison. This means that this small category 
of hijackers would be eligible for parole after serving 10 
years in prison and would be released after serving a maximum 
of 30 years.
    In the context of these individuals responsible for the 
hijacking incidents during this period, most of the 
perpetrators were no older than in their 20's when they commit 
their crimes. The imposition of pre-guidelines sentence of life 
imprisonment for these defendants means that many, if not all 
of them, could be expected to be released from prison well 
within their lifetime. Given the gravity of these offenses, 
coupled with a longstanding congressional intent to have the 
death penalty available for the offense of air piracy resulting 
in death, such a result would clearly be at odds with the clear 
directive and legislative history of Congress. This amendment 
will bring parity to all punishments for crimes of terrorism. 
It will clarify that Congress' intent is to ensure that all 
terrorists are punished for their heinous crimes, and it would 
not allow a loophole for a very small category of defendants to 
swallow up the good intent of the law.
    Thank you, Mr. Chairman.
    Mr. Nadler. Mr. Chairman, could I have a question of the 
sponsor?
    Chairman Sensenbrenner. Does the gentleman yield?
    Mr. Nadler. Would the gentleman yield for a question?
    Mr. Green. Yes.
    Mr. Nadler. I'm trying to understand your amendment. Are 
you proposing with all this--I don't mean this disparagingly, 
but all this verbiage, with all this language, are you saying 
in essence that someone who committed certain crimes before the 
date of enactment that we're going to increase this penalty 
retroactively, that we're going to impose the death penalty 
retroactively?
    Mr. Green. No, because that would create ex post facto 
problems. What this simply does--and we had legal research 
done, a legal opinion done. This doesn't present ex post facto 
problems because it clarifies which procedures are in effect, 
and the passage of this amendment does not--it actually makes 
their situation better. It ameliorates their situation, not 
makes it worse.
    Mr. Nadler. How does it ameliorate the situation?
    Mr. Green. It makes it--it ameliorates it because it 
provides clarity as to their rights and which provisions and 
procedures cover them. So if, in fact, it made it worse, you 
would have an ex post facto problem. But the legal analysis 
that I've been given suggests that it does not. It provides a 
clarification.
    Mr. Nadler. Would the gentleman further yield?
    Mr. Green. Sure.
    Chairman Sensenbrenner. Without objection, the gentleman 
will be given an additional 2 minutes.
    Mr. Nadler. Thank you. I've just read this hastily, I 
admit, just having seen this.
    Mr. Green. And it's complicated.
    Mr. Nadler. It says any individual convicted of violating a 
certain section may be sentenced to death in accordance with 
the procedures established in chapter 228 of title 18, if for 
any offense committed before the enactment of the 1994 bill but 
after the enactment of the 1974 law, it is determined by the 
finder of fact, et cetera.
    Without this amendment, could a person be sentenced to 
death for a crime committed before 1994 but after 1974 who--as 
described here?
    Mr. Green. I'm sorry. I didn't follow your question.
    Mr. Nadler. Would someone as described in this section, 
someone convicted of a certain crime after 1974 but before 
1994, without this enactment would he be subject to the death 
penalty under the circumstances stated here?
    Mr. Green. In other words, if this amendment does not pass?
    Mr. Nadler. Yes.
    Mr. Green. My understanding is that it is unclear and they 
may well not be subject to the death penalty.
    Mr. Nadler. It's unclear, but this would clarify that he 
would be subject to the death penalty?
    Mr. Green. Correct, and----
    Mr. Nadler. So wouldn't that be an ex post facto law then?
    Mr. Green. I have the legal analysis here, and it says that 
there is not an ex post facto problem because essentially what 
this amendment does----
    Mr. Nadler. Why is there not an ex post facto problem?
    Mr. Green. I'm going to answer that.
    Mr. Nadler. I'm sorry.
    Mr. Green. It creates a hybrid between the 1974 and 1994 
provisions which that hybrid is more favorable to the 
defendants than the procedures available under either the 1974 
or the 1994 act.
    Mr. Nadler. But if the gentleman would further yield, it 
creates a hybrid which puts more favorable procedures into 
effect. Let's assume that that's an accurate description. But 
it also subjects someone to the death penalty that would not 
have been subjected to the death penalty.
    Mr. Green. Well, of course, under 1974, they were subject 
to the death penalty----
    Mr. Nadler. You just said they weren't.
    Mr. Green. A court decision has thrown that into doubt, but 
the clear intent of Congress----
    Mr. Nadler. But if it's in doubt----
    Mr. Green.--they were, and the 1974 explicitly listed this 
crime----
    Mr. Nadler. But wait a minute. But a court decision 
interpreting the existing law has thrown into doubt whether 
certain people in certain circumstances are subject to the 
death penalty, this would clarify that they are. Insofar as 
this would--insofar--whatever else it may do, insofar as it 
overturns a court decision that said that they're not subject 
to the death penalty and says, yes, they are, that would seem 
to be ex post facto.
    Chairman Sensenbrenner. Without objection, the gentleman 
will be given 2 more minutes.
    Mr. Green. I raised the same questions, but, again, I have 
been given an analysis here that says that because--that that 
isn't the case, that it isn't an ex post facto problem because 
it merely clarifies and it creates a procedure that is a 
hybrid----
    Mr. Nadler. You said that before.
    Mr. Green. Well, that's the answer.
    Mr. Nadler. All right. Who--I have two questions, first of 
all. Number one, whose analysis is this? And could we see the 
detailed legal analysis? Because it certainly seems to be ex 
post facto. And, second----
    Chairman Sensenbrenner. Would the gentleman from Wisconsin 
yield?
    Mr. Green. Yes, I'd be happy to.
    Chairman Sensenbrenner. I think this is a good time to 
adjourn the Committee so that we can get----
    Mr. Nadler. I agree, look into this.
    Chairman Sensenbrenner. I said we would adjourn the 
Committee at 12:15, and I think that during the next week 
perhaps the legal analysis of this amendment can be done on 
both sides so we know exactly what we're dealing with.
    The Committee stands adjourned.
    [Whereupon, at 12:16 p.m., the Committee was adjourned.]



                            BUSINESS MEETING
                              (continued)

                        WEDNESDAY, JUNE 23, 2004

    The Committee met, pursuant to notice, at 10:09 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    [Intervening business.]
    Chairman Sensenbrenner. The next item on the agenda is H.R. 
2934, the ``Terrorist Penalties Enhancement Act of 2003.'' 
During a previous meeting of the Committee, before further 
consideration of this bill was postponed, the gentleman from 
North Carolina, Mr. Coble, had, on behalf of the Subcommittee 
on Crime, Terrorism, and Homeland Security, reported the bill 
favorably with a single amendment in the nature of a substitute 
and moved its favorable recommendation to the full House.
    By unanimous consent, the bill was considered as read and 
open for amendment at any point, and the Subcommittee amendment 
in the nature of a substitute was considered as read, 
considered as the original text for purposes of amendment, and 
open for amendment at any point.
    An amendment offered by the gentleman from Texas, Mr. 
Carter, had been adopted by a voice vote, and pending at the 
time the consideration was postponed was an amendment offered 
by the gentleman from Wisconsin, Mr. Green, which the Members 
have before them.
    Is there further debate on the Green amendment? And I would 
ask unanimous consent since a couple of weeks have gone by 
since we debated this that Mr. Green may have an additional 5 
minutes to explain his amendment.
    Is there objection?
    No objection. So ordered.
    And the gentleman from Wisconsin is recognized for 5 
minutes.
    Mr. Green. Thank you, Mr. Chairman.
    First, Mr. Chairman, I ask unanimous consent to distribute 
a letter from the Department of Justice that specifically----
    Chairman Sensenbrenner. Without objection.
    Mr. Green. And as this letter is being passed out, this 
letter from the Department of Justice specifically addresses 
the reasonable concerns that were raised by a few Members on 
the other side about the constitutionality of this amendment. 
And I think it is clear from the opinion that there is not a 
constitutional problem. There is not an ex post facto problem.
    Let me also say this is the letter that all of you--I know 
Congressman Nadler, you should have received in your office 
last week. We had this sent over to you.
    Chairman Sensenbrenner. Without objection, the letter will 
be inserted in the record at this point.
    [The material referred to follows:]

    
    
    Mr. Green. The opinion makes it clear that there is not an 
ex post facto problem. First off, the U.S. Supreme Court has 
ruled that there isn't one this case for a variety of reasons. 
I guess very briefly and most importantly, capital punishment 
has been applicable to air piracy cases for almost 50 years. 
Secondly, the changes that were made that this amendment deals 
with were entirely procedural, first off, and second, they are 
ameliorative; that is to say that they were beneficial to those 
who would be punished under this law. So there is not an ex 
post facto problem here.
    We should also say by way of interest that this would not 
apply to anyone who is currently in U.S. custody. The 
underlying case that has been referred to, that terrorist has 
already been convicted and has already been sentenced. The 
others that we would hope this would one day apply to have not 
yet been apprehended who had committed these crimes during the 
very specific period of time that is involved.
    Very briefly, this amendment is intended to close an 
unintended potential loophole in these cases that applies to 
the single category of defendants who committed these crimes 
resulting in death after the enactment of the Anti-Hijacking 
Act of 1974 but before the enactment of the Federal Death 
Penalty Act of 1994, a very narrow class indeed.
    This amendment makes it clear which set of procedural 
guidelines would apply, and again, as is made clear by the U.S. 
Supreme Court as laid out in the opinion letter that I have had 
distributed, there is not a constitutional problem, because the 
changes were entirely procedural, and in fact, they would 
accrue to the benefit of those who would potentially be charged 
under this.
    And with that, Mr. Chairman, I yield back my time.
    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. Thank you, Mr. Chairman.
    Mr. Chairman, as I understand it, when the crime would be 
committed, there is no death penalty. If this amendment is 
adopted, there will be a death penalty. The gentleman from 
Wisconsin suggests that that's--I think the term is 
ameliorative or helpful to the defendant. I am not sure how 
many defendants would want that kind of help.
    Ex post facto is a change in the law with a retroactive 
application, and unfortunately, I agree with the gentleman from 
Wisconsin's constitutional analysis that it is legal, but that 
does not make it right. I would hope that the amendment would 
be defeated, and I would yield to the gentleman from Wisconsin 
if you want to----
    Mr. Green. I thank the gentleman.
    Ameliorative is actually the term from the Supreme Court, 
not mine. And again, I would advise Members that the opinion 
from the Department of Justice quoting at length from a Supreme 
Court decision makes it very clear that it is not ex post 
facto; that these were procedural changes. In fact, they were 
quote, unquote, ameliorative in the sense that they clarified 
and actually enhanced the procedures to which someone would be 
entitled, and under longstanding constitutional principles, 
this simply is not ex post facto.
    Mr. Scott. Reclaiming my time, I would suggest to the 
gentleman that the procedural change rather than substantive, 
if it had been substantive, it would have been clearly illegal 
under ex post facto, and so, since it's just procedural, it's 
technically legal.
    I would suggest that there are some people who think that 
the difference is in fact substantive. And frankly, I'm not 
surprised. We had a similar case in Virginia where the lawyer 
argued that it may be procedural to some, but it is certainly 
substantive to his client, because his client will be put to 
death under the new law, whereas he would not have been put to 
death under the old law.
    That may be procedural to some, but I think it is extremely 
substantive to others. And I would hope that we would comply 
with the spirit of ex post facto and defeat the amendment.
    I will yield.
    Mr. Green. I guess just as a final point, the District 
Court opinion which raised the question about and actually led 
us to this point in the sense of making the point that it was 
unclear which procedures would apply specifically in its own 
terms invites Congress to clarify which procedures would apply 
and says in the opinion that if Congress were to do so, it 
would not be ex post facto.
    So both the opinion which created the initial question and 
the subsequent opinion from the U.S. Supreme Court have made it 
clear that it is not. Because there are procedural changes and 
the nature of these changes, it is not ex post facto and 
therefore not unconstitutional.
    Mr. Scott. Reclaiming my time, I would concede that the 
gentleman is technically correct, but just because it's legal 
doesn't mean it's right. I would hope we would defeat the 
amendment.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Wisconsin, Mr. Green.
    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?
    There are no----
    Ms. Jackson Lee. I have an amendment at the desk.
    Mr. Flake. I have an amendment at the desk.
    Chairman Sensenbrenner. The gentleman from Arizona, Mr. 
Flake.
    Mr. Flake. Mr. Chairman----
    Chairman Sensenbrenner. Does the gentleman have an 
amendment?
    Mr. Flake. Yes, I have an amendment.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 2934, offered by Mr. Flake and Mr. Delahunt. 
Page 2, line 4----
    Mr. Flake. I ask unanimous consent that the amendment be 
considered as read.
    Chairman Sensenbrenner. Without objection, so ordered.
    The gentleman is recognized for 5 minutes.
    [The amendment offered by Mr. Flake and Mr. Delahunt 
follows:]



    Mr. Flake. Mr. Chairman, my amendment, offered with 
Congressman Delahunt, would exclude from death penalty-eligible 
offenses related to 18 U.S.C Sec. 1363, injury to buildings or 
property with special maritime and territorial jurisdiction of 
the United States. While I believe it is the intention of H.R. 
2934, I believe the intention is praiseworthy, I am not 
convinced that this crime is suitable for death penalty 
prosecution in all cases.
    I am a supporter of the death penalty, and I am concerned 
that if we do this, we will be giving ammunition to death 
penalty opponents by applying the death penalty to this type of 
crime in the name of the war on terrorism. I should note that 
groups like the American Conservative Union, Americans for Tax 
Reform and the Free Congress have expressed their concern about 
the breadth of the crimes covered in this bill.
    It is important to note that the destruction of Federal 
buildings by fire or explosion is already punishable by the 
death penalty if death results. Also, even if the harm to the 
Federal building does not come from fire or explosion, the 
existence of multiple murder victims, the risk of death to 
others and the heinous nature of the murder and the fact that 
the murder occurred during the destruction of Federal buildings 
are all aggravating factors which a jury may consider in 
determining whether the death penalty should be imposed of 
those guilty of capital offenses.
    What would happen in a scenario when a Federal building is 
damaged as protestors are deliberately pushing forward on a 
crowd to push open a door, and someone gets trampled and dies 
in the melee? It appears that all of the participants and 
anyone who helped to plan or stage the event could be eligible 
for the capital terrorism charge because of their violation in 
a context where they were seeking to coerce a Government act to 
let them into the Government building.
    Whether it is civil rights, abortion or an NRA protest, all 
could be charged with a death penalty offense. I should note 
that prosecutors generally charge, as in the present case, they 
are required to charge the maximum offense that they believe 
that the evidence supports.
    It is also important to note that while a death must 
necessarily result from the crimes in order to make them 
eligible for a death penalty prosecution, the defendant would 
not have necessarily have intended to victim in order to be 
eligible, and I think this is what is important. You do not 
have to intentionally kill the victim in order to be eligible.
    Federal law does not require the Government to establish 
that the defendant who commits the crime for which the death 
penalty may be imposed actually intended to kill the victim; 
rather, a death sentence is also available for an act of 
violence if the defendant knows that the act would create a 
grave risk of death such as participation in an act--that an 
act constituted reckless disregard for human life.
    This, to me, seems to be quite subjective on the part of 
the Government who is proving the case. In fact, the statute 
which applies to Federal death sentences and would apply to the 
proposed legislation lays out four possible levels of intent 
for which the death penalty may be imposed: a defendant may be 
sentenced to death if the defendant intentionally kills a 
victim, intentionally inflicted serious bodily injury that 
resulted in the death of the victim; intentionally participated 
in an act, contemplating that the life of the person would be 
taken or intending that lethal force would be used in 
connection with that person other than one of the participants 
in the offense; and if the victims died as a direct result of 
the act.
    All of these three are fine. The fourth one is what causes 
problems: (d) intentionally or specifically engaged in an act 
of violence, knowing that the act created a grave risk of death 
to a person other than one of the participants in the offense 
such that participation in the act constitutes a reckless 
disregard for human life and the victim died as a direct result 
of the act.
    These intent standards do not rule out the potential for a 
death sentence in a case if the defendant whose violation of 
the Federal law was as an act of civil disobedience in the 
course of a political protest if it results in the death that I 
have described. Again, you could be in a situation where 
there's a protest; somebody pushes through the door of a 
Federal building; somebody is killed in the melee; and the 
planners or any participants in that protest could be subject 
to the death penalty.
    I would submit that what we are doing here is giving 
Government the authority and the ability to basically scare you 
out of rightful protest because you don't have to intentionally 
kill the victim in order to be charged.
    The bottom line is that if the death is associated with the 
destruction of a Federal building, they are already death 
penalty-eligible offenses in the U.S. Code. As a death penalty 
supporter, I don't wish to offer death penalty opponents the 
appearance that the death penalty is being used egregiously in 
the name of the war on terror.
    And with that, I yield back.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Coble, Chairman of the Subcommittee wish to be recognized
    Mr. Coble. No, I do not, Mr. Chairman.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Thank you, Mr. Chairman.
    I commend the gentleman----
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    I commend the gentleman for his amendment. I support the 
amendment, but I submit it does not go far enough. The basic 
problem or one basic problem with this bill, and I think the 
bill should be much further modified and probably reconsidered 
is that it broadly--let me say, I do oppose the death penalty. 
But that aside, this applies the death penalty in an ill-
considered way, in a much too broad fashion that I suspect even 
most supporters of the death penalty wouldn't support.
    It creates a sweeping catch-all death penalty for any 
Federal felony that meets the Federal code's definition of 
terrorism. The Federal code's definition of terrorism is very 
broad and does not involve only what we would normally consider 
a terrorist action.
    The definitions are anything that involves a violation of 
State or Federal criminal law such as, for example, a blocking 
of an abortion clinic by a protest group that appears to be 
intended to influence Government policy or a civilian 
population by intimidation or coercion. So if you are blocking 
the door to someone who wants to come in, you would seem to 
meet that definition--and involves acts dangerous to human 
life, and with the traffic congestion at the door that Mr. 
Flake reflected, it might meet that definition, too.
    So in this case, blocking an entrance to an abortion clinic 
and maybe getting a little obstreperous could meet the 
definition of terrorism and could, if someone, by accident gets 
killed or connected with that gets killed, subject someone to 
the death penalty. So what this overbroad definition, and as 
the death penalty in this catch-all provision applies to it, 
would subject a lot of people in protest groups, whether on the 
left in antiglobalization protests, an antiwar rally, or the 
right, an antiabortion demonstration, potentially to the death 
penalty, where I don't think anybody in his right mind, 
frankly, intends that to happen.
    And I think it is a basic drafting problem with the 
existing law defining terrorism and with this bill, and I think 
that this bill should be redrafted either to eliminate the 
catch-all provision or to target the death penalty much more 
closely to acts that are defined as deliberate acts of the 
Federal crime of terrorism in more narrow circumstances. And if 
I had time now, I would draft that amendment, but I've just 
seen this bill or just read it for the first time, really, and 
I don't have time to do that right now.
    I urge the adoption of Mr. Flake's amendment. It goes in 
the right direction. But I would suggest that this bill be 
withdrawn now; that someone, that the sponsors take a careful 
look at the definitions and the catch-all provision here, 
because I do not think it is really the intention of the 
sponsors--I hope it is not, I trust it is not--to subject 
people to a death penalty who are engaging in political protest 
if something goes wrong.
    It is just too broad here, regardless of your opinion of 
the death penalty. Mr. Flake's amendment is an attempt at 
ameliorating this. It's a good attempt, but it doesn't go far 
enough, and I do not think we have--I would hope that this 
could be brought back in a week or so----
    Ms. Lofgren. Would the gentleman yield?
    Mr. Nadler. One second--and that we could properly consider 
a narrowing amendment so that the death penalty is applied 
where the sponsors, I assume, want it to be applied.
    I am not going to support it in any event, to be honest, 
because I do not like the death penalty. But certainly, even 
people who support the death penalty, I don't think they want 
it applied as this bill, the way it is drafted, I think, 
inadvertently would apply it.
    I'll yield.
    Ms. Lofgren. I would just like to speak.
    I actually have frequently voted in favor of the death 
penalty. I do not oppose the death penalty. But I think the 
gentleman's point is well-taken. And I think we could 
collaboratively come up with something that would avoid the 
result, and I would be--if we were able to do that, I'd be 
happy to support it as someone who has, in fact, supported the 
death penalty on many occasions.
    I think to take a week to fix this would be a smart thing 
to do, and I would certainly be willing to help if there is 
interest in doing that, and I thank the gentleman for yielding.
    Mr. Flake. Would the gentlelady yield?
    Mr. Nadler. I will yield.
    Mr. Flake. I would submit that my amendment actually does 
that. It simply excludes from death penalty-eligible offenses 
those related to 18 U.S.C. Sec. 1363; this is injury to 
buildings or property within special maritime and territorial 
jurisdiction of the U.S. So I would submit----
    Mr. Nadler. Reclaiming my time, reclaiming my time, I think 
that is one thing, that is one exclusion that ought to be made. 
I am not at all sure it is the only exclusion. I suspect, 
although I do not know exactly; I haven't had time to really go 
through this; I suspect that if you looked at this, if a bunch 
of us looked at it, we'd find we wanted to narrow it further. 
All I ask is that----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Nadler. I ask for an additional 30 seconds.
    Chairman Sensenbrenner. Without objection.
    Mr. Nadler. All I'm suggesting is that we take a week or 
the week after the break, and a bunch of people from both sides 
of the aisle can sit down and if, indeed, your amendment does 
everything that people want it to do, fine; if not, maybe we 
will have a different amendment and come back and do it. At 
least we'll all be properly prepared.
    I yield back.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Carter?
    Mr. Carter. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Carter. Mr. Chairman, I oppose this amendment. Every 
crime that was included in 18 U.S.C. 2332(b)(g)(5) was 
determined to be a Federal crime of terrorism because of its 
serious nature. These crimes were agreed to in the PATRIOT Act 
on a bipartisan, bicameral basis.
    H.R. 2934 makes every crime in this section eligible for 
life in prison or the death penalty if death results of another 
person. Each of these offenses require proof of at least three 
separate intents in order to get to the death penalty: one, the 
intent of the underlying offense; two, the intent that the 
violent act influence the Government; and three, that the 
intent engage in an act of violence knowing it creates a grave 
risk of death.
    Mr. Flake would like to exclude section 1363, buildings or 
property within the special maritime or territorial 
jurisdiction, from the death penalty eligibility. I believe the 
exclusion of terrorist acts which destroys Federal buildings 
and in which a loss of life occurs is irresponsible. Should 
intent be sufficiently proven, there is also the exhaustive 
death penalty procedures that must be followed before we reach 
the ultimate results.
    Mr. Chairman, I believe in the finders of fact in the 
criminal justice system, and I urge my fellow colleagues to 
oppose this amendment.
    I yield back my time.
    Chairman Sensenbrenner. The question is on----
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Lofgren?
    Ms. Lofgren. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. Certainly, people can disagree on this 
measure, and I'm someone who actually did work on the PATRIOT 
Act and did vote for the PATRIOT Act, although I think that 
experience has shown that the administration of the act should 
lead us to reviewing that measure, because there are certainly 
some unexpected consequences and interpretations that I think I 
don't think any of us really intended at the time, and, you 
know, I, as someone who has supported the death penalty in 
appropriate cases, I think the interplay of the PATRIOT Act and 
this measure would lead to results that would--I think it is 
correct that both liberal, moderate and conservative groups 
have raised the alarm, because it would end up with the result 
of the death penalty for activities that do not rise to that 
level, which is why I think we'd be better off taking another 
week to work through it.
    And I yield to the gentleman from New York.
    Mr. Nadler. Thank you.
    I thank the gentlewoman for yielding. I would like to reply 
to Mr. Carter. He cited the PATRIOT Act's definitions, and 
indeed, he cited them correctly. Unfortunately, the PATRIOT 
Act, we may recall, was passed in great haste. I don't think 
the exact definitions were given sufficient consideration.
    But let's take a look at how blocking abortion clinics, for 
instance, could meet the exact definitions that the gentleman 
just cited and yield, under this bill, the death penalty: 
blocking access to abortion clinics, for example, could, quote, 
involve, unquote, violations of Federal law punishable by more 
than 1 year in prison and may certainly, quote, appear to be 
intended, unquote, to influence Government policy or a civilian 
population by, quote, intimidation or coercion, depending on 
how you are blocking it.
    Blocking clinics under some circumstances could involve, 
quote, acts dangerous to human life, unquote, in that such 
actions could threaten the lives of the protestors if 
protestors block traffic, for example, get in the way of the 
cars, or interfere with the ability of women to get needed 
medical treatment.
    Now, I do not know that a court would apply the death 
penalty in that case, but it clearly could meet the definitions 
in this bill or in the PATRIOT Act, to which this bill would 
apply the death penalty, which is why I am saying I think 
before we leap, we ought to just wait a week, sit down, take a 
look and see if we can get a consensus of the Members who 
support this bill, of the Members who support capital 
punishment and say maybe we ought to narrow it a little here, 
because I do not think we ought to leave it to any court that 
people in an anti-globalization protest or in an abortion 
protest should potentially be subject to the death penalty 
because they meet the literal words of a definition that 
clearly was not intended for these kinds of things and should 
not be intended for these kinds of things.
    Yes, there are three different intents required in the 
PATRIOT Act, but the way they are drafted I submit, and it is 
clear, could apply to people whom none of us would want to be 
subject to the death penalty. Mr. Flake's amendment goes a step 
in that direction but not far enough, and that is why not only 
the ACLU but the American Conservative Union, the Free Congress 
Foundation, the Gun Owners of America, noted left-wing groups, 
I am sure you will all agree, urge that we narrow this.
    So I just urge that the bill be withdrawn now for a week or 
so, considered, and maybe you'll decide, maybe the majority; 
the majority controls; maybe the majority will come back with 
the exact same words, in which case I will vote no. But I just 
think we ought to take a look for a week, and maybe we can come 
to a better consensus that will get more support and that will 
do what the majority wants to do but not go so far as these 
words appear to go without, I am sure, anybody's real intent to 
go that far.
    I thank you, and I yield back.
    Chairman Sensenbrenner. The time belongs to the gentlewoman 
from California.
    Ms. Lofgren. I would yield back.
    Chairman Sensenbrenner. The question is on the--the 
gentleman from California, Mr. Schiff.
    Mr. Schiff. I thank the gentleman and move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Schiff. I wanted to ask a question of the author of the 
amendment, if I could, and I would be happy to yield such time 
as he may need to respond.
    And that is a question of how this amendment would be 
interpreted in practice. And that is that as the amendment is 
drafted, it provides that when you look at it in the context of 
the bill, that for those who commit terrorist offenses 
resulting in death, the death penalty would be available, and I 
support that, except to the extent that the crime that is 
committed meets within the definition of section 1363.
    Now, one possible way of interpreting that is if someone 
blew up a building, like the Oklahoma bombing, that would 
actually be a violation of 1363, among other things. And you 
could make an argument that by virtue of your amendment, 
because the acts of blowing up a Federal building meet within 
1363, you have taken the death penalty off the table.
    It is a counterintuitive point, but I wonder if you'd have 
the argument that Congress intended clearly that where you met 
the definition of this section that the death penalty would not 
be available. And I know that is not the result that you are 
aiming at, but I wonder if the gentleman has considered that 
may be how the argument would be made in the court or the Court 
of Appeals, and I wonder if you have had any feedback from the 
Department of Justice on the amendment generally, and I would 
be happy to yield to the gentleman.
    Mr. Flake. I have not considered that. I would just submit 
that this simply--the bill itself seeks to expand the 
application of the death penalty to a new class of people, 
those who put at grave risk or whatever others involved in a 
protest or who attempt to influence the Government.
    We had no trouble executing Tim McVeigh. The charges 
against Nichols, although he did not get the death penalty, he 
was certainly eligible for it. What I worry about with this 
bill is that it not only puts--what it does, really, is put 
people in danger who are simply protesting of being subject to 
the death penalty, and prosecutors will use that as a way to 
basically scare people out of protesting.
    Mr. Carter. Will the gentleman yield?
    Mr. Flake. That's my concern here.
    Mr. Schiff. Reclaiming my time, I would be happy to yield 
to the gentleman.
    Mr. Carter. I think that any good defense lawyer would 
certainly make that argument, and I agree with you on that. And 
it's a good point well taken.
    But to address some of the things that Mr. Flake is talking 
about, in order to reach this, the courts have ruled that this 
has got to be willfully and maliciously destroy the property. 
And using--going back to the example that you gave about the 
explosion of the building, take the example of someone who 
loads up a truckload of explosives and crashes through the door 
killing numerous people with the intent of detonating the bomb, 
but it does not go off.
    That, I mean, that is another scenario you could look at 
that you would want to go forward on the death penalty with 
this.
    Mr. Schiff. I would be happy to yield again. I would only 
emphasize before I do that I understand where the gentleman is 
coming from and what he's attempting to do. I'm not sure the 
language accomplishes the goal. It may open up a risk the 
gentleman is not intending to open up, and I am just trying to 
get a sense, frankly, of whether the danger that the gentleman 
is trying to address is a realistic danger.
    Indeed, all of the sections of the bill and the current law 
can be pushed and pressed to make the death penalty apply in 
circumstances where we would not have it apply, and we are 
reliant on the Attorney General and on the prosecutors 
throughout the country to exercise strong judgment. It is the 
most important judgment we call upon them to exercise.
    And I appreciate the efforts of the gentleman to try to 
define more properly where we want it addressed, and I think 
some of the amendments that have been made in Committee 
already, taking out the broad definitions of international and 
domestic terrorism I think addressed probably some of the most 
grave threats of overinterpretation of the statute, but I am 
not sure that the amendment hits the mark, and I'll be happy to 
yield the balance of my time to the gentleman.
    Mr. Flake. I thank the gentleman.
    I would just say I fail to see how restricting----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Flake.--the application of this section affects others 
in statute.
    Chairman Sensenbrenner. The question is on the amendment--
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, first, I would like unanimous 
consent to enter into the record a statement on behalf of the 
amendment by the gentleman from Massachusetts, Mr. Delahunt.
    Chairman Sensenbrenner. Without objection.
    [The prepared statement of Mr. Delahunt follows:]

      Prepared Statement of the Honorable William D. Delahunt, a 
       Representative in Congress From the State of Massachusetts

    Mr. Chairman, since the enactment of the PATRIOT Act, large numbers 
of our fellow citizens have felt increasingly uneasy--not just about 
the threat of terrorism, but about many of the measures being taken to 
respond to it.
    For this reason, I have strong reservations about the far-reaching 
provisions in the legislation before the Committee today. Specifically, 
it is difficult for me to understand why we need to extend the death 
penalty to all of these offenses.
    Even if we expand the crimes covered by the death penalty under US 
law, we must continue to engage in multilateral efforts to combat 
terrorism. And many nations have determined that the potential risks of 
executing the innocent outweigh the need for the death penalty.
    This bill may further obstruct our ability to cooperate with other 
countries that have specifically rejected the death penalty for 
terrorists. For example, earlier this month, Britain agreed to 
extradite Abu Hamza, accused of 11 terrorist offenses under federal 
law. While Mr. Hamza has been charged with certain offenses which are 
death penalty eligible, Britain only agreed to release him to US 
custody after obtaining assurance that Attorney General Ashcroft would 
not seek the death penalty in Mr. Hamza's case--to do otherwise, would 
violate the obligations of Britain under the European Convention of 
Human Rights which prevents Britain from extraditing an individual to a 
country where they may face execution.
    To date, our country's record on the death penalty is spotty. Since 
the death penalty was reinstated in 1976, 909 people have been executed 
in the United States. During the same period, 143 individuals have been 
exonerated after spending years on death row for crimes they did not 
commit. Some came within days or hours of being put to death.
    Further, DNA has exonerated 12 of the people freed from death row 
and 120 people wrongfully convicted of serious crimes. In at least 34 
of these cases, the same test that exonerated an innocent person has 
led to the apprehension of the real perpetrator.
    There are already 20 federal crimes of terrorism on the books that 
carry the death penalty. While many of us oppose the use of the death 
penalty under any circumstances--including me based on my many years as 
a prosecutor and my own personal experience with cases where mistakes 
were made--it is unclear to me why we would apply the death penalty in 
a circumstance where the penalty will clearly go beyond the nature of 
the underlying offense.
    HR 2934 makes many federal felonies death-eligible offenses even 
though the existing penalty for such a crime is not even life 
imprisonment. The bill will also include certain non-violent offenses--
such as injury to a building or property within federal jurisdiction.
    The amendment that I am offering with my colleague, Mr. Flake, 
would ensure that crimes under Section 1363 are not eligible for the 
death penalty.
    Specifically, our amendment would exclude crimes involving injury 
to buildings or property. Under current law, a person convicted under 
this section may face five years in prison if the damage is to any 
property and up to twenty years if the damage is done to a dwelling. In 
the entire history that this statute has been on the books, there have 
been few occasions where prosecutors have even sought to charge a 
defendant under this statute.
    With our allies, the United States needs to restore its credibility 
in order to confront potential terrorist threats. At the same time, 
however, we must not disregard the proper balance between the 
requirements of national defense and the preservation of the freedoms 
and values that define our society.
    For this reason, I ask my colleagues to join me in support of the 
amendment offered by the gentleman from Arizona.

    Mr. Scott. And just remind people that this underlying bill 
includes abortion protestors and any other kind of protests and 
also includes conspirators and attempts, so it is extremely 
broad, and when you trigger the death penalty just by the 
damage to a building, I think you have got an extremely 
overbroad piece of legislation.
    I think the amendment narrows it to those kinds of--
eliminates one which one would not consider a heinous crime, 
and I would hope that we would adopt this amendment. I mean, 
the idea that you would have a death penalty for damage to a 
building in the middle of a protest is extremely overbroad, and 
I would yield to the gentleman from Arizona.
    Mr. Flake. I thank the gentleman for yielding.
    I just wanted to further answer the question from the 
gentleman from California. I just fail to see how restricting 
the application in this one section affects the other sections 
that already apply the death penalty, and those include section 
46-502, 32, 1114, 1117, 844. There are several other sections 
that apply the death penalty in these cases, and I just don't 
see how that the fear that you expressed, and I appreciate your 
doing it in good faith actually would affect this amendment.
    I thank the gentleman for yielding.
    Mr. Scott. I yield back the balance of my time.
    Mr. Coble. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Coble?
    Mr. Coble. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Coble. And I will not consume 5 minutes.
    The gentleman from Arizona, if he would look at me for a 
minute, I would like to put a question to him. It appears much 
confusion has surrounded this discussion. Mr. Flake, if you 
will give me a couple examples where the death penalty will not 
be imposed if your amendment passed, whereas otherwise, it 
would be imposed.
    Mr. Flake. I thank the gentleman for the question.
    As I mentioned, you could have a situation where there is a 
protest that takes place at a Federal building, and during the 
protest, people are pushed through the door; the Federal 
building is damaged. Anybody under this, a prosecutor could 
easily, as Mr. Nadler explained, say that, well, there is the 
intent to do this, the intent to do this, the intent to do that 
and the intent to do the other, and individuals participating 
in the protest were put at grave risk of harm.
    And so, the prosecutor could apply the death penalty to 
anybody participating in that protest. Now, whether the death 
penalty would actually be carried out is another story. And 
those on the Committee and others will make a good argument 
that in the end, the death penalty may not be applied, because 
that standard is pretty high. But to be charged with the death 
penalty is another matter completely. And in my view, what you 
do with this is simply scare people out of rightful, legitimate 
civic protest.
    And so, under this, the way this expansion goes, anyone 
participating in a protest that starts out peaceful, ends up 
breaking down a door and somebody accidentally gets killed in 
the melee could be charged with the death penalty: anybody who 
planned the protest, anybody who participated in it.
    If my amendment passes, then, that standard would be raised 
substantially. You would have to prove further intent and 
willingness to have someone killed, and we already have that in 
statute several other places. So that's what I'm getting at 
here.
    Mr. Coble. I'll reclaim my time. I thank the gentleman. I 
yield back, Mr. Chairman.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Arizona, Mr. Flake.
    Those in favor will say aye.
    Opposed no.
    The ayes appear to have it.
    Mr. Flake. Mr. Chairman, I would ask for a recorded vote.
    Chairman Sensenbrenner. Recorded vote is ordered. It was in 
favor----
    Mr. Flake. Wait, wait, wait, wait, wait, no, no, no, record 
will be corrected
    Mr. Carter. Mr. Chairman, I would ask for a recorded vote.
    Chairman Sensenbrenner. The record will be corrected to say 
that Mr. Carter asked for a recorded vote.
    Those in favor of the Flake amendment will, as your names 
are called, answer aye; those opposed, no, and the Clerk will 
call the roll.
    The Clerk. Mr. Hyde?
    Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye.
    Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly?
    Mr. Goodlatte?
    Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon?
    Mr. Bachus?
    Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye.
    Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye.
    Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye.
    Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye.
    Mr. Pence?
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye.
    Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye.
    Mr. King.
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Carter?
    Mr. Carter. No.
    The Clerk. Mr. Carter, no.
    Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mrs. Blackburn?
    Mrs. Blackburn. No.
    The Clerk. Mrs. Blackburn, no.
    Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman?
    Mr. Boucher?
    Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye.
    Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Ms. Waters?
    Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Mr. Delahunt?
    Mr. Wexler?
    Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye.
    Mr. Weiner?
    Mr. Schiff?
    Mr. Schiff. Pass.
    The Clerk. Mr. Schiff, pass.
    Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Members in the chamber who wish to 
cast or change their votes?
    The gentleman from California, Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Chairman Sensenbrenner. Further Members in the chamber who 
wish to cast or change their votes?
    If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 17 ayes and nine noes.
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Waters.
    Ms. Waters. Waters, aye.
    The Clerk. Ms. Waters, aye.
    Chairman Sensenbrenner. The clerk will report again.
    The Clerk. Mr. Chairman, there are 18 ayes, 9 noes, and 1 
pass.
    Chairman Sensenbrenner. And the amendment is agreed to.
    Are there further amendments?
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee?
    Ms. Jackson Lee. Mr. Chairman, I have an amendment at the 
desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 2934, offered by Ms. Jackson Lee of Texas. 
Page 2, line 12, insert ``or corporation'' after 
``individual''.
    [The amendment offered by Ms. Jackson Lee follows:]

    
    
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson Lee. Mr. Chairman, I think we've already had a 
very vigorous----
    Chairman Sensenbrenner. Would the gentlewoman yield?
    Ms. Jackson Lee. I yield.
    Chairman Sensenbrenner. I think this amendment is a 
constructive addition to bill and would urge the Members to 
support it.
    Ms. Jackson Lee. Well, I thank the distinguished Chairman. 
I'll just simply say it adds corporation to this legislation, 
and I think as the Chairman has already noted, we have had a 
broad discussion on the broadness of this legislation, which I 
may agree of its vast reach, but that it is a vast reach, but I 
do believe in making this legislation complete to add the word 
corporation, and with that, I yield back and ask my colleagues 
to support the amendment.
    [The prepared statement of Ms. Jackson Lee follows:]

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
Representative in Congress From the State of Texas, and Ranking Member, 
        Subcommittee on Immigration, Border Security, and Claims

    Thank you Mr. Chairman and Mr. Ranking Member for first allowing 
the Subcommittee on Crime, Terrorism, and Homeland Security to mark 
this bill up last month and now for giving the Full Committee a final 
opportunity to analyze it.
    Because of the nature of the implications that it can have on our 
criminal justice system and on the U.S. Constitution, it is critical 
that we do a thorough job of analyzing its purposes and effects.
    I offer an amendment proposal that reads as follows:

        Page 2, line 12, insert ``or corporation'' after 
        ``individual.''

    This amendment simply seeks to broaden the application of the 
preclusion of benefits in Section 2339E to more clearly include 
corporate perpetrators or corporate members who either act or fail to 
act, resulting in the facilitation of terrorism. The thrust of this 
proposal is to include the policy of mandating corporate responsibility 
as it relates to ventures that may give fodder to a potential terrorist 
or terrorist group.
    The term ``Federal benefit'' is described in Section 421(d) of the 
Controlled Substances Act as:

        (A) . . . the issuance of any grant, contract, loan, 
        professional license, or commercial license provided by an 
        agency of the United States or by appropriated funds of the 
        United States; and

        (B) does not include any retirement, welfare, Social Security, 
        health, disability, veterans benefit, public housing, or other 
        similar benefit, or any other benefit for which payments or 
        services are required for eligibility; and

        (2) the term ``veterans benefit'' means all benefits provided 
        to veterans, their families, or survivors by virtue of the 
        service of a veteran in the Armed Forces of the United States.

As drafted, Subsection (a) references the preclusion of an 
``individual'' from receiving ``Federal benefits'' upon conviction of a 
terrorist offense. In legalese, a corporation may be defined as an 
individual.
    However, it may be inferred from the language of this provision 
that the preclusion of benefits applies to individual persons only. 
Application of this preclusion to persons only would fail to hold 
corporations accountable for their actions or omissions that play a 
major part in or facilitate the commission of a terrorist act.
    For example, in the recent subway bombing in Madrid, Spain on March 
12, it was discovered that the perpetrators made use of cell phones and 
that their acts were, in part, facilitated by the fraudulent use of the 
Subscriber Identity Module, or SIM card. If it was found that the SIM 
card had been negligently designed or that the manufacturer of that SIM 
card had produced a design defect that facilitates fraudulent use, such 
manufacture should be at least partly liable under this legislation. 
This amendment proposal acts as a deterrent to corporations and 
manufacturers from abrogating their responsibility to produce a product 
with integrity.
    Many corporations have provided a product and/or service that may 
be misused in the commission of a terrorist offense. Passing this 
amendment requires no material change to the thrust of this 
legislation; rather, it (1) ensures that corporations act responsibly 
to avoid aiding or supplying services to terrorist groups, (2) 
clarifies the language in Section 2339E to regulate the behavior of 
corporations immediately upon enactment to avoid wasteful litigation 
for declaratory relief, and (3) prevents our Federal government from 
subsidizing a corporation that facilitates terrorist offenses.
    To reiterate, this amendment proposal will not alter the purpose of 
this legislation. However, it will improve its scope to provide more 
thorough deterrence and threat of punishment to all possible 
perpetrators of or contributors to terrorist offenses.
    I ask that my colleagues on both sides of the aisle support this 
amendment, and I thank you for your consideration.

    Chairman Sensenbrenner. The question is on the Jackson Lee 
amendment.
    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?
    The gentleman from Virginia, Mr. Scott?
    Mr. Scott. Mr. Chairman, I have an amendment at the desk. I 
think it is designated 03.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 2934, offered by Mr. Scott. Page 2, strike 
line 8 and all that follows through line 10 and make 
appropriate redesignations and conforming changes.
    [The amendment offered by Mr. Scott follows:]

    
    
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, this amendment will remove the 
general provisions of the bill to make all attempts and 
coconspirators eligible for the death penalty if death results 
for all offenses under 23-332(b)(g)(5). We should not enact 
such a blanket death penalty provisions and certainly not in 
connection with offenses where murder is not the cold-blooded, 
calculated intent to kill which is necessary to justify the 
ultimate sanction of execution.
    Without the amendment, if you have an abortion protest that 
gets out of hand, all of the protestors could be death-
eligible. Some of the offenses under the bill involve crimes 
motivated by mischief, such as computer hacking or other kinds 
of emotion-based relationships such as supporting or harboring 
a terrorist. Maybe we should jail mothers for harboring their 
children, but I am not sure that the death penalty would be 
appropriate in those cases.
    If there is specific evidence of the requisite intent to 
prosecute capital murder, it should be done. But people should 
be prosecuted for what they did, not what we call them. 
Designating someone a terrorist under a definition as broad as 
attempting or conspiring to influence the conduct of Government 
by intimidation or coercion is far afield from the cold, 
calculating attempt to murder people generally associated with 
the death penalty.
    I would also note that many of these crimes but for this 
designation would be fairly low-level felonies. They would be 
converted to death penalty-eligible by virtue of this bill 
unless this amendment is adopted. I would hope that we would 
adopt the amendment.
    I yield back.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Carter?
    Mr. Carter. If I understand this amendment, Mr. Chairman, 
it is an attempt to eliminate conspiracy and attempt from the 
bill, and I oppose this amendment.
    This legislation and the substitute amendment specifically 
require that the death of another person must occur before the 
death penalty can be considered by the prosecutor, the judge 
and the jury. The fact that a person merely attempted to carry 
out a terrorist attack but was thwarted, killing individuals in 
the process, should not be a reason to remove the consideration 
of the death penalty as a possibility.
    Furthermore, a person who plans and facilitates a terrorist 
act but who does not commit the actual offense is just as 
culpable. There are other terrorism offenses where we have 
recognized that the conspiracy or attempt to commit these 
crimes if it results in the death of another should be 
considered as serious as the underlying crimes subject to the 
penalties.
    For example, 18 U.S.C. 2332(a), use of certain weapons of 
mass destruction, the defendant is eligible for the death 
penalty if he conspires or attempts to use a weapon of mass 
destruction and the death penalty [sic] results from that 
conspiracy or attempt. To do what this--what is proposed here, 
Mr. Chairman, would, in a situation where one of these 
terrorist leaders plans a suicide attack, in my opinion, cons 
these guys into going out and blowing themselves up and results 
in massive deaths of individuals, we would not be able to reach 
the man who planned the attack and conspired to have his agents 
go out and blow up these other folks.
    Clearly, that is something that seems to be going on every 
day. So we need to be seriously concerned about the limitations 
that this would throw in here, and I urge my colleagues to 
oppose this amendment and yield back my time.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt?
    Mr. Watt. I move to strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. I thank you, and I thank the gentleman for 
yielding.
    Mr. Chairman, the gentleman uses the word terrorist attack, 
which is not the language that is used in the actual 
legislation. Terrorist attack could be an abortion protest. Any 
action designed to try to change Government action would 
stimulate this bill. That is not--a civil disobedience is not a 
terrorist attack. This bill, if an abortion protest gets out of 
hand and somebody dies, that would be in a terrorist attack, 
and all the coconspirators and all the people involved would 
all of a sudden be eligible for the death penalty.
    I think that is entirely overbroad. That is not a terrorist 
attack. That is a civil disobedience, and there is no intent, 
no direct intent, although, you know, you could--should have 
calculated somebody might die if you have a big protest, and 
people moving, the mob runs up against the fence or something 
and somebody dies.
    That is not the kind of thing that we anticipate, that we 
really call a terrorist attack. So if you look at--we're 
talking about attempts, coconspiracy, things like harboring a 
terrorist that a mother may be involved in, those are not the 
kinds of things that ought to put people--we ought to be 
putting people to death over.
    And frankly, you shouldn't be able to charge it, because 
once you charge it, you get the benefit of a death-qualified 
jury, which has other effects, but coconspirators and attempts, 
just because they are involved in the abortion protest 
shouldn't subject them to the death penalty.
    I thank the gentleman. I yield back.
    Mr. Watt. I yield back, Mr. Chairman.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Virginia, Mr. Scott.
    Those in favor will say aye.
    Opposed, no.
    The noes appear to have it. The noes have it.
    Mr. Scott. rollcall.
    Chairman Sensenbrenner. rollcall will be ordered. Those in 
favor of the Scott amendment will, as your names are called, 
answer aye, those opposed no, and the Clerk will call the roll.
    The Clerk. Mr. Hyde?
    Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly?
    Mr. Goodlatte?
    Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon?
    Mr. Bachus?
    Mr. Hostettler?
    Mr. Green?
    Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no.
    Mr. Flake?
    Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Mr. King.
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Carter?
    Mr. Carter. No.
    The Clerk. Mr. Carter, no.
    Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mrs. Blackburn?
    Mrs. Blackburn. No.
    The Clerk. Mrs. Blackburn, no.
    Mr. Conyers?
    Mr. Berman?
    Mr. Boucher?
    Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye.
    Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren?
    Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Ms. Waters?
    Mr. Meehan?
    Mr. Delahunt?
    Mr. Wexler?
    Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye.
    Mr. Weiner?
    Mr. Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no.
    Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to wish to cast or 
change their votes?
    The gentleman from California, Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Chairman Sensenbrenner. The gentleman from Massachusetts, 
Mr. Meehan?
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no.
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote?
    If none, the Clerk will report.
    The Clerk. Mr. Chairman, there are seven ayes and 18 noes.
    Chairman Sensenbrenner. Are there further amendments?
    Mr. Feeney. Mr. Chairman, if there are no further 
amendments, Mr. Chairman, may I be recognized?
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Feeney?
    Mr. Feeney. Mr. Chairman, during the Subcommittee meeting 
on April 24, the record includes a suggestion that there may 
be, in quotes, disparate treatment of African-Americans in the 
judicial system and the large numbers of those on death row.
    Contrary to the suggestion in the record, empirical 
evidence shows that there is no disparate treatment, and 
according to a June 6, 2001, report by Attorney General Janet 
Reno, after an extensive review of all Federal death penalty 
procedures, there was, according to the report in quotes, no 
evidence that the minority defendants are subjected to bias or 
otherwise disfavored in decisions concerning capital 
punishment.
    To the contrary, the report reflects that at each stage of 
the process, white defendants and not minorities were 
disproportionately recommended for the death penalty. Mr. 
Chairman, I would ask that the Attorney General's June 6, 2001, 
report, as well as a September 12, 2000, report concerning the 
same matter be inserted into the record at this time.
    Chairman Sensenbrenner. Is there objection?
    The Chair hears none.
    [The 2001 report follows:]

    
    
    [The 2000 report follows:]

    
    
    Ms. Jackson Lee. Mr. Chairman, I would like to strike the 
last word.
    Chairman Sensenbrenner. The gentlewoman from Texas.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    I believe that an open record allows the distinguished 
gentleman to submit any materials into the record, but I would 
like to ask the Chairman to allow me to do additional research 
and to be able to counter the distinguished gentleman's one 
statement by the former Attorney General with overwhelming 
evidence, and I will be proud to cite, when I say proud with 
qualification, the State of Texas as a prime example that there 
is disparate treatment not only in the State of Texas but 
around the nation, and we should counter that, and I would 
welcome the opportunity to hold full hearings on that very 
question about the disparity of treatment of minorities in the 
death sentencing but more importantly----
    Chairman Sensenbrenner. If the gentlewoman would yield.
    Ms. Jackson Lee. If I just may finish the sentence; more 
importantly, also, in the sentencing process, and I'll be happy 
to yield to the distinguished gentleman.
    Chairman Sensenbrenner. The problem of the gentlewoman's 
request is that in two calendar days, we have to file the 
Committee report, so the Committee report has got to be 
complete.
    Ms. Jackson Lee. Yes, sir.
    Chairman Sensenbrenner. I am certain that the gentlewoman 
will have further opportunities to spread whatever she wants to 
spread on the record. But if this bill is favorably reported, I 
do not think that the rules will allow us more than 2 days. She 
can utilize her prerogatives to file dissenting views to 
include this in the record.
    Ms. Jackson Lee. Within the 2 days, sir.
    Chairman Sensenbrenner. Yes, and this may be the way to do 
that without bending the rules.
    Ms. Jackson Lee. I thank the Chairman. If I am able to find 
some additional materials within that time frame to get into 
this record, I would be able to submit it within the 2-day 
period?
    Chairman Sensenbrenner. Yes, as dissenting views.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Chairman Sensenbrenner. Okay; are there further amendments?
    If there are no further amendments, without objection, the 
Subcommittee amendment in the nature of a substitute laid down 
as the base text as amended is adopted. A reporting quorum is 
present.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. Yes.
    Mr. Nadler. I move to postpone consideration of this bill 
until July 7.
    Chairman Sensenbrenner. The question is on postponing the 
bill until July 7.
    Those in favor will say aye.
    Opposed no.
    The noes appear to have it. The noes have it, and the 
motion to postpone is not agreed to.
    The question now occurs on the motion to report the bill 
H.R. 2934 favorably as amended.
    All in favor will say aye.
    Opposed, no.
    The ayes appear to have it, the ayes have it, 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 moved--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, and all Members will be given 
2 days as provided by the rules in which to submit additional 
dissenting supplemental or minority views.
    The measures that have been noticed having been completed, 
the Committee stands adjourned.
    [Whereupon, at 11:29 a.m., the Committee was adjourned.]

                            DISSENTING VIEWS

    These views dissent to the Committee Report on H.R. 2934, 
the ``Terrorist Penalty Enhancement Act.'' This bill provides 
for a massive expansion of the federal death penalty, both for 
crimes that supporters of the death penalty might think warrant 
the death penalty, as well as crimes many may not expect to be 
associated with this most severe of penalties. The bill creates 
23 new death penalties by making all 43 ``federal crimes of 
terrorism'' under 18 U.S.C. 2332b(g)(5) death penalty eligible, 
if a death results in the commission of any one of them. 
Currently, 20 of the 43 crimes are death penalty eligible, if 
death results.
    And this bill does not limit crimes for death penalty 
eligibility to heinous offenses or those severe enough to 
require either a death penalty or life without parole. In 
addition to deaths that occur as a result of a direct intent to 
murder, maim, kidnap, destroy a nuclear facility or other such 
heinous crimes, crimes such as financial or other material 
support to terrorists or terrorist organizations, and 
protection of computers, are also included. And they are 
included whether these crimes occur in the context of an effort 
to violently overthrow the government or terrorize people, or 
in a context of protest against government policies considered 
despicable. If a death results, even if it was not a 
specifically intended result, anyone who was involved in 
committing, or who attempted or conspired to commit one of the 
covered offenses, would be death penalty eligible.
    Several of the added crimes of terrorism are so broad that 
they could cover civil disobedience activities by a diverse 
group of protest organizations, such as Operation Rescue, 
Greenpeace, and the anti-globalization movement, should a death 
result from illegal protest activities, particularly since 
attempts and conspiracies to commit these crimes are also death 
penalty eligible. Bombarding an abortion clinic or government 
computer with spam to shut a particular activity down as a 
protest to affect changes in abortion or war policies and 
practices is illegal and should be punished, but should not 
carry a potential death sentence to those who participated in 
the act, or planned or attempted it, should an unintentional 
death result in conjunction with such crimes.
    Some recognition of these concerns was accorded by the 
Committee through its passage of two amendments. One amendment 
eliminated the ``catch-all'' expansion of the death penalty to 
be applicable to virtually any felony if a death results and it 
could be placed under the broad definitions of international or 
domestic terrorism. The other amendment removed from death 
penalty eligibility under the bill the provision under 
2332(b)(g)(5) which makes it a crime to cause ``injury to 
buildings or property'' under federal control. While this is 
some recognition and some improvement, the bill still allows 
what are relatively minor crimes to result in a death penalty 
prosecution should a death occur, albeit it unintentional. The 
provisions of this bill create a death penalty liability 
tantamount to a federal ``felony murder'' rule. This presents 
constitutional issues as to the appropriateness of the death 
penalty under these circumstances.
    The bill provides too much latitude for abusive 
prosecutions. The Attorney General, who ultimately approves 
death penalty cases, has issued a broad directive to federal 
prosecutors to pursue the most severe penalties, including more 
death penalties. With the broad expansion of death penalty 
eligible offenses in this bill, he could pick and chose death 
penalty cases not necessarily on what someone did, but on who 
they are or how they are labeled, using nationality, citizen 
status, or other subjective factors.
    There are any number of reasons to charge a death penalty 
offense under a provision such as this bill--to scare the 
defendant into pleading guilty even though the evidence is 
shaky, to get tough-on-crime points, or simply to get a more 
prosecutor favorable jury. On a death penalty qualified jury, 
anyone opposed to capital punishment would be stricken, if not 
for cause, by peremptory strike.
    And the provisions of this bill will be duplicative of 
State jurisdiction in many instances and conflicting in some. 
One such conflict would be where the residents of a particular 
State have chosen not to authorize capital punishment and, as a 
consequence of the State requesting or acceding to federal 
involvement, the federal government pursues a death penalty 
against the State's wishes.
    Another concern with this significant expansion of the 
death penalty is our frequent error rate in applying it in this 
country. A 23-year study conducted by Professor James Liebman 
of Columbia University, involving over 4,500 capital cases in 
34 States revealed that the courts found serious, reversible 
error in 68 percent of the capital cases. In the last 10 years, 
more than 100 people on death row have been found innocent of 
the crime for which they received the death penalty. With this 
kind of record of administering existing death penalty laws, we 
should await the passage of the Innocence Protection Act before 
we add anymore death penalties.
    Several studies have reflected that racial, ethnic and 
economic biases permeate administration of the death penalty in 
this country, including the federal death penalty. While 
Attorney General Ashcroft found no bias in federal death 
penalty administration from a 6-month review of the issue 
(Representative Feeney mistakenly referred to this report at 
the markup of this bill as a report by former Attorney General 
Reno), Attorney General Reno, in a more extensive analysis, did 
find that the federal death penalty was applied 
disproportionately against minorities and called for a more in-
depth study and analysis by the National Institute of Justice 
(NIJ). As a result of this finding, President Clinton stayed 
the execution of Juan Garza to allow for the more in-depth 
analysis. NIJ has not been directed to do the study and the 
questions raised by the Reno analysis have not been addressed 
through an empirical study of ``possible racial and regional 
bias'' in the federal system. Without a thorough analysis of 
the issue, there is every reason for concern that bias remains 
in the administration of the federal death penalty.
    Yet, another area of conflict or difficulty will arise in 
our efforts to further international cooperation in pursuing 
suspected terrorists. We are already experiencing difficulties 
in securing the cooperation of the rest of the civilized world 
in bringing terrorists to justice due to our existing 
proliferation of death penalty offenses. When these 
difficulties are over controversial issues such as whether 
someone who supports an organization's social or humanitarian 
programs knows it has been designated a terrorist organization, 
it can only exacerbate such difficulties and further undermine 
US efforts.
    Finally, other than the uses we have expressed concerns 
about above, it is not clear what this expansion of the death 
penalty will add that will be of any significant use. We note 
that Timothy McVeigh was not sentenced to death for a crime of 
terrorism, but under other provisions for murder. And, at the 
recent hearing on this bill, no witness was able to conclude 
that the provisions under the bill would apply to the 9/11 
hijackers, had any lived. For all of these reasons, this bill 
is unnecessary and unjustified at this time, and should be 
defeated.

                                   John Conyers, Jr.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Tammy Baldwin.

                            ADDITIONAL VIEWS

    These views have been submitted in response to a statement 
made by a Majority Member during the Full Judiciary Committee 
Markup of H.R. 2934 on June 23, 2004:

          Mr. Chairman, during the Subcommittee meeting on 
        April 24, the record includes a suggestion that there 
        may be, in quotes, disparate treatment of African-
        Americans in the judicial system and the large numbers 
        of those on death row. Contrary to the suggestion in 
        the record, empirical evidence shows that there is no 
        disparate treatment, and according to a June 6, 2001, 
        report by Attorney General Janet Reno, after an 
        extensive review of all Federal death penalty 
        procedures, there was, according to the report in 
        quotes, no evidence that the minority defendants are 
        subjected to bias or otherwise disfavored in decisions 
        concerning capital punishment. To the contrary, the 
        report reflects that at each stage of the process, 
        white defendants and not minorities were 
        disproportionately recommended for the death penalty.
          Mr. Chairman, I would ask that the Attorney General's 
        June 6, 2001, report, as well as a September 12, 2000, 
        report concerning the same matter be inserted into the 
        record at this time.

    Markup transcript, Business Meeting, May 5, 2004 at 56 
(emphasis added).
    The Member erroneously cited a report issued by the 
Department of Justice initiated by Attorney General John 
Ashcroft entitled ``The Federal Death Penalty System: 
Supplementary Data, Analysis and Revised Protocols for Capital 
Case Review (2001 Report).'' Attorney General John Ashcroft 
gave testimony before the House Judiciary Committee on June 6, 
2001 \1\ that gives the impression that there is no racially 
disparate application of the death penalty in the federal 
criminal justice system. Mr. Ashcroft's statement was based on 
the 2001 Report. The 2001 Report followed up a study initiated 
by the previous Attorney General Janet Reno and was released in 
December of 2000 (2000 Report), the same month in which Juan 
Raul Garza, a Mexican-American from Texas was scheduled for 
execution.\2\ This report initiated by Ms. Reno, contrary to 
the Member's suggestion, revealed that both Hispanics and 
persons in Texas were disproportionately subjected to the 
federal death penalty as compared to Whites and people living 
in other parts of the country.
---------------------------------------------------------------------------
    \1\ On June 6, 2001 before the House Judiciary, Attorney General 
Ashcroft stated that there is ``substantial basis for confidence'' that 
there is an ``absence of any evidence of bias or racial discrimination 
in the federal death penalty.''
    \2\ After given a 6-month stay of execution until June 19, 2001 by 
the Clinton administration because ``the examination of possible racial 
and regional bias should [have been] completed before the United States 
[went] forward with an execution in a case that may [have] implicate[d] 
the very questions raised by the Justice Department's continued 
study,'' Garza was executed by lethal injection in Terre Haute, Indiana 
after a clemency plea to President Bush failed. During the year of Mr. 
Garza's execution, U.S. Attorneys in Texas had only brought federal 
capital cases against Hispanics. ``Second federal inmate executed in 
Indiana (CNN.com, June 20, 2001).''
---------------------------------------------------------------------------
    Relying on incomplete data, the 2001 Report makes sweeping 
conclusions about the lack of racial bias in the federal 
system. Mr. Garza was executed despite the fact that the 2001 
Report had not responded to the questions posed by President 
Clinton Administration when he granted a 6-month stay of 
execution.
    The 2001 report has the following flaws: \3\
---------------------------------------------------------------------------
    \3\ ``Analysis of June 6 Justice Department Report of Federal Death 
Penalty, ACLU (June 14, 2001, http://www.aclu.org/DeathPenalty/
DeathPenalty.cfm?ID=10905&c=62).

         LIt does not include any data explaining why 
        U.S. Attorneys prosecute cases in the federal system or 
---------------------------------------------------------------------------
        defer to the states;

         LThe data are not reflective of all 
        potentially eligible federal capital defendants;

         LMissing information about each case makes it 
        impossible to determine whether charging and plea 
        decisions were fair; and

         LBecause the 2001 Report does not provide the 
        detailed underlying data it used to draw its 
        conclusions, there is no way to understand if there are 
        any national patterns requiring further analysis.

    Furthermore, it is important to note that, subsequent to 
the issuance of the 2000 Report and prior to the issuance of 
the 2001 Report, Attorney General Janet Reno requested the 
collection of additional data and a more in-depth study to be 
conducted by the National Institute of Justice (NIJ). In fact, 
President Clinton stayed the execution of Juan Raul Garza, in 
large part, to allow the Department of Justice and NIJ time to 
complete their review and study. The data that would be yielded 
from the NIJ study, according to Ms. Reno, is critical to the 
proper analysis of whether and to what extent there exists 
discrimination in the administration of capital punishment in 
the federal system.\4\ During his Senate confirmation hearing, 
Attorney General Ashcroft stated that he would ``support the 
effort of the National Institute of Justice already under way 
to undertake the study of racial and regional disparities in 
the federal death penalty system that President Clinton had 
deemed necessary.'' Three years later, this study still has not 
been completed. Because the current Administration has not 
facilitated the completion of the NIJ study, the important data 
that it would yield will not be made a part of the DOJ 
review.\5\
---------------------------------------------------------------------------
    \4\ Senator Russell Feingold (D-WI), Statement on the Federal Death 
Penalty Study (June 7, 2001).
    \5\ Id. Rather, the Attorney General now believes apparently it 
would take much too long to conduct this in-depth analysis of 
disparities and that it would provide indefinite answers.''
---------------------------------------------------------------------------
    The 2001 Report, as erroneously cited and relied upon by 
the Member in making his statement, is an incomplete analysis 
of the issue and the report fails to refute or rebut the 2000 
Report. Since no efforts have been made to institute changes to 
the death penalty system, it is fair to assume that the 
problems identified in 2000 still exist.

                                   Sheila Jackson Lee.

                                 
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