[House Report 110-620]
[From the U.S. Government Publishing Office]
110th Congress Rept. 110-620
HOUSE OF REPRESENTATIVES
2d Session Part 1
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REMOVING THE AFRICAN NATIONAL CONGRESS FROM TREATMENT AS A TERRORIST
ORGANIZATION
_______
May 5, 2008.--Ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 5690]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 5690) to exempt the African National Congress from
treatment as a terrorist organization for certain acts or
events, provide relief for certain members of the African
National Congress regarding admissibility, and for other
purposes, having considered the same, report favorably thereon
with amendments and recommend that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 3
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 4
New Budget Authority and Tax Expenditures........................ 5
Congressional Budget Office Cost Estimate........................ 5
Performance Goals and Objectives................................. 6
Constitutional Authority Statement............................... 7
Advisory on Earmarks............................................. 7
Section-by-Section Analysis...................................... 7
Changes in Existing Law Made by the Bill, as Reported............ 7
Additional Views................................................. 9
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. EXEMPTION OF AFRICAN NATIONAL CONGRESS FROM TREATMENT AS
TERRORIST ORGANIZATION FOR CERTAIN ACTS OR EVENTS.
Section 691(b) of the Department of State, Foreign Operations, and
Related Programs Appropriations Act, 2008 (division J of Public Law
110-161; 121 Stat. 2365) is amended by inserting ``the African National
Congress (ANC),'' after ``the Karenni National Progressive Party,''.
SEC. 2. RELIEF FOR CERTAIN MEMBERS OF THE AFRICAN NATIONAL CONGRESS
REGARDING ADMISSIBILITY.
(a) Exemption Authority.--The Secretary of State, after consultation
with the Attorney General and the Secretary of Homeland Security, or
the Secretary of Homeland Security, after consultation with the
Secretary of State and the Attorney General, may determine in such
Secretary's sole unreviewable discretion that paragraphs (2)(A),
(2)(B), and (3)(B) of section 212(a) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)) shall not apply to an alien with respect to
activities undertaken in opposition to apartheid rule in South Africa.
(b) Sense of Congress.--It is the sense of the Congress that the
Secretary of State and the Secretary of Homeland Security should
immediately exercise in appropriate instances the authority in
subsection (a) to exempt the anti-apartheid activities of aliens who
are current or former officials of the Government of the Republic of
South Africa.
SEC. 3. REMOVAL OF CERTAIN AFFECTED INDIVIDUALS FROM CERTAIN UNITED
STATES GOVERNMENT DATABASES.
The Secretary of State, in coordination with the Attorney General,
the Secretary of Homeland Security, the Director of the Federal Bureau
of Investigation, and the Director of National Intelligence, shall take
all necessary steps to ensure that databases used to determine
admissibility to the United States are updated so that they are
consistent with the exemptions provided under section 2.
Purpose and Summary
Due to their broad scope, certain security-related
provisions within the Immigration and Nationality Act (INA)
currently require the United States to consider the African
National Congress (ANC) a terrorist organization. These
provisions also require the U.S. to consider as ``terrorist
activities'' many actions taken in opposition to apartheid rule
in South Africa. The Department of State and Department of
Homeland Security are required by law to deny admission to
persons who trigger these provisions, including many current
and former members of the government of the Republic of South
Africa.
H.R. 5690 removes the ANC from treatment as a terrorist
organization, and grants the Secretary of State and the
Secretary of Homeland Security the discretionary authority to
determine that certain criminal and security-related grounds of
inadmissibility do not apply to an alien with respect to
activities undertaken in opposition to apartheid rule in South
Africa. The bill also requires the Secretary of State, in
coordination with other agencies, to take all necessary steps
to ensure that databases used to determine admissibility to the
United States are updated so that they are consistent with the
exemptions provided in the bill.
Background and Need for the Legislation
In the wake of the attacks of September 11, 2001, Congress
enacted the USA PATRIOT Act of 2001\1\ and the REAL ID Act of
2005.\2\ Among other things, these measures sought to exclude
and remove known and suspected terrorists from the United
States by broadening the security-related grounds of
inadmissibility--especially those related to terrorism--within
the INA.
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\1\Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law
107-56).
\2\Division B of the Emergency Supplemental Appropriations Act for
Defense, the Global War on Terror, and Tsunami Relief, 2005 (Public Law
109-13).
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These measures, however, broadened the security-related
grounds of inadmissibility to such an extent that they were
triggered by numerous groups and individuals whom Congress did
not intend to affect. These groups and individuals included
freedom-fighters, such as the Hmong and Montagnards in
southeast Asia, who fought side-by-side with U.S. military
units or were otherwise supported by the U.S. Government. They
included persons who used armed resistance to defend themselves
against brutal and repressive regimes, such as the Castro
regime in Cuba or the military government in Burma. They even
included women who were raped and enslaved by armed militia in
Liberia; victims of extortion forced to pay armed rebels in
Colombia to protect their lives and those of their families;
and nurses and missionaries who were kidnapped, assaulted, and
forced to provide medical treatment to guerilla fighters. These
provisions have had severe consequences for non-citizens of all
types, including refugees, asylum seekers, lawful permanent
residents, and foreign government officials. Among other
things, the provisions have resulted in a significant drop in
the number of resettled refugees for fiscal years 2006 and
2007, as well as denials or delays of thousands of asylum and
permanent residence applications. They have also resulted in
embarrassing denials of visas for foreign heads of state, as
well as other foreign government officials and dignitaries.
Over the last 2 years, Congress has recognized the
unintended consequences of the terrorism provisions and has
begun to take corrective action. Most recently, Congress
created a series of exemptions to the terrorism provisions in
the Department of State, Foreign Operations, and Related
Programs Appropriations Act, 2008 (``Foreign Operations
Act'').\3\ In this Act, Congress automatically removed numerous
groups from treatment as terrorist organizations, including:
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\3\Section 691, Division J of Public Law 110-161.
The Karen National Union/Karen Liberation Army (KNU/
KNLA), the Chin National Front/Chin National Army (CNF/
CNA), the Chin National League for Democracy (CNLD),
the Kayan New Land Party (KNLP), the Arakan Liberation
Party (ALP), the Mustangs, the Alzados, the Karenni
National Progressive Party, and appropriate groups
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affiliated with the Hmong and the Montagnards.
Congress also gave the Secretary of State and the Secretary of
Homeland Security discretionary authority to determine that the
security-related grounds of inadmissibility do not apply to an
individual or group with respect to certain actions.
Despite these corrective actions, further legislation is
necessary to correct the unintended application of the
terrorism provisions to the ANC and its members. Current law
continues to regard the ANC as a terrorist organization, and to
deny entry to members based solely on their affiliation to the
ANC, because the ANC used armed force as part of its ultimately
successful political effort to overturn the repressive
apartheid system in South Africa. The law also requires the
U.S. to deny entry to South Africans for their activities in
opposition to apartheid rule and for convictions related to
such activities.
These residual restrictions in the INA are an affront to
relations between the United States and the Republic of South
Africa. Today, South Africa is an ally in the war on terror and
the leading trading partner of the United States on the African
continent, yet South African officials and dignitaries are
often denied visas or forced to obtain special waivers when
seeking admission to the United States. Even former President
Nelson Mandela must seek a waiver to enter the United States
due to his anti-apartheid activities and a 1962 conviction for
sabotage.
H.R. 5690 would remove the ANC from treatment as a
terrorist organization, and allow the Secretary of State and
Secretary of Homeland Security to admit individuals
irrespective of any activities undertaken in opposition to
apartheid rule in South Africa. The bill would also require the
Secretary of State, in coordination with other agencies, to
take all necessary steps to ensure that databases used to
determine admissibility to the United States are updated so
that they are consistent with the exemptions provided in the
bill.
Hearings
The Committee on the Judiciary held no hearings on H.R.
5690.
Committee Consideration
On April 30, 2008, the Committee met in open session and
ordered the bill H.R. 5690 favorably reported with an
amendment, by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 5690.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises 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. 5690, 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, May 2, 2008.
Hon. John Conyers, 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. 5690, a bill to
exempt the African National Congress from treatment as a
terrorist organization for certain acts or events, provide
relief for certain members of the African National Congress
regarding admissibility, and for other purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Peter R. Orszag,
Director.
Enclosure.
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 5690--A bill to exempt the African National Congress from
treatment as a terrorist organization for certain acts or
events, provide relief for certain members of the African
National Congress regarding admissibility, and for other
purposes
CBO estimates that implementing H.R. 5690 would have no
significant cost to the Federal Government. Enacting the bill
could affect direct spending, but CBO estimates that any such
effects would not be significant in any year. In addition, we
estimate that enacting H.R. 5690 could increase revenues by
less than $500,000 a year over the 2009-2018 period. This
legislation 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.
The bill would broaden the authority of the Department of
State and the Department of Homeland Security (DHS) to permit
certain members of the African National Congress to enter the
United States.
The Department of State collects fees from persons who
apply for immigrant and nonimmigrant visas from overseas. Under
current law, some application and issuance fees for visas are
deposited in the Treasury as revenues (applicants for immigrant
visas pay a $355 fee and South African citizens who receive
certain nonimmigrant visas pay an $85 issuance fee). Based on
information from the Department of State, CBO estimates that,
under the bill, the department would process few additional
applications annually and that enacting H.R. 5690 would
increase revenues by less than $500,000 a year over the 2009-
2018 period.
The Department of State also charges individuals entering
the country other visa fees: a $131 application fee for
nonimmigrant visas, a $45 security surcharge for immigrant
visas, and depending on the type of visa petition, additional
fees for fingerprinting or affidavits of support. In addition,
DHS would collect fees ranging from $100 to $500 to process
visa applications from most individuals affected by H.R. 5690.
All of those fees are classified as offsetting collections (for
the Department of State) or offsetting receipts (for DHS) and
are retained and spent by the departments. CBO estimates that
the net budgetary effect of those increased collections would
be less than $500,000 a year.
Finally, some of the individuals admitted under this
legislation could become eligible for certain Federal benefits,
but CBO expects that any increase in direct spending for
benefit programs would not be significant over the 2009-2018
period.
The CBO staff contacts for this estimate are Mark Grabowicz
(for DHS's costs), and Sunita D'Monte (for the Department of
State's costs). This estimate was approved by Theresa Gullo,
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.
5690 is intended to ensure that the African National Congress
is not considered a foreign terrorist organization under the
Immigration and Nationality Act (INA), and that members of the
ANC are not inadmissible solely because of their affiliation to
the organization. The bill also provides the Secretary of State
and the Secretary of Homeland Security with the discretionary
authority to determine that an individual's acts in opposition
to apartheid rule in South Africa do not trigger the bars to
admissibility in sections 212(a)(2) or 212(a)(3) of the INA.
Once such a determination is made, it should be reflected in
all relevant databases used to determine admissibility to the
United States so that subsequent attempts to enter do not
require exercise of such discretion. Congress intends that the
Secretary of State will coordinate with all relevant Federal
departments and agencies to ensure that such database changes
are made. Finally, as is expressed in the sense of Congress,
Congress intends that the Secretary of State and Secretary of
Homeland Security immediately begin to exercise their
discretionary authority on behalf of current and former
officials of the government of the Republic of South Africa.
Congress expects that this new authority will be exercised sua
sponte and without petition from such government officials, so
that upon application for entry to the United States, the
relevant determination has already been made.
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, clause 4 of the
Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 5690 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Exemption of African National Congress from
Treatment as Terrorist Organization for Certain Acts or Events.
This section revises section 691(b) of the Department of State,
Foreign Operations, and Related Programs Appropriations Act,
2008 (division J of Public Law 110-161) by adding the African
National Congress (ANC) to a list of organizations that shall
not be considered terrorist organizations on the basis of past
acts or events. Pursuant to this amendment, members of the ANC
will no longer trigger security-related bars to admission under
the immigration laws merely by virtue of their membership in or
affiliation to the ANC.
Section 2. Relief for Certain Members of the African
National Congress Regarding Admissibility. Subsection (a) of
this section provides discretionary authority to the Secretary
of State and the Secretary of Homeland Security to determine
that certain criminal and security-related grounds of
inadmissibility do not apply to an alien with respect to acts
in opposition to apartheid rule in South Africa. Subsection (b)
of this section states the sense of Congress that such
discretionary authority should immediately be exercised in
appropriate circumstances with respect to the anti-apartheid
activities of current or former officials of the government of
the Republic of South Africa.
Section 3. Removal of Certain Affected Individuals from
Certain United States Government Databases. This section
instructs the Secretary of State, in coordination with the
Department of Justice, the Department of Homeland Security, the
Federal Bureau of Investigation, and the Director of National
Intelligence, to take all necessary steps to ensure that
databases used to determine admissibility to the United States
are updated so that they are consistent with the exemptions
provided in section 2 of the bill.
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):
SECTION 691 OF THE DEPARTMENT OF STATE, FOREIGN OPERATIONS, AND RELATED
PROGRAMS APPROPRIATIONS ACT, 2008
(Division J of Public Law 110-161)
Sec. 691. (a) * * *
(b) Automatic Relief for the Hmong and Other Groups That Do
Not Pose a Threat to the United States.--For purposes of
section 212(a)(3)(B) of the Immigration and Nationality Act (8
U.S.C. 1182(a)(3)(B)), the Karen National Union/Karen
Liberation Army (KNU/KNLA), the Chin National Front/Chin
National Army (CNF/CNA), the Chin National League for Democracy
(CNLD), the Kayan New Land Party (KNLP), the Arakan Liberation
Party (ALP), the Mustangs, the Alzados, the Karenni National
Progressive Party, the African National Congress (ANC), and
appropriate groups affiliated with the Hmong and the
Montagnards shall not be considered to be a terrorist
organization on the basis of any act or event occurring before
the date of enactment of this section. Nothing in this
subsection may be construed to alter or limit the authority of
the Secretary of State or the Secretary of Homeland Security to
exercise his discretionary authority pursuant to section
212(d)(3)(B)(i) of the Immigration and Nationality Act (8
U.S.C. 1182(d)(3)(B)(i)).
* * * * * * *
ADDITIONAL VIEWS
The African National Congress played a significant role in
history. Nelson Mandela and the ANC for many years fought
against the unjust apartheid system in South Africa. Through a
largely peaceful transfer of power, apartheid is a thing of the
past and South Africa now has a representative democratic
government. Many ANC officials are now officials of South
Africa's government. South Africa provides hope that genuine
reconciliation between historically at-odds groups can be
achieved.
H.R. 5690 adds the ANC to the list of groups that are not
considered terrorist organizations under the Immigration and
Nationality Act.\1\ Such a list was created in order to shield
certain organizations from the overbreath of the Immigration
Act of 1990. As discussed below, under the 1990 legislation,
any guerilla group would find itself encompassed within the
definition of terrorist organization. The groups currently on
the exempt list include Hmong and Montagnard guerillas that
fought alongside U.S. soldiers in the Vietnam War and groups
that are fighting against the repressive Burmese government. It
is understandable that the ANC be added to this list.
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\1\This list was established in the fiscal year 2008 omnibus
appropriations bill (Pub. L. No. 110-161).
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However, we have to recognize that real terrorist acts were
committed as part of the struggle against apartheid. There were
deadly bombings of civilians.\2\ There were so-called
``necklacings,'' in which car tires were put around persons's
necks and set on fire.
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\2\See, e.g., U.S. Department of Defense, Terrorist Group Profiles
129 (1988).
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It is not a simple matter of stating that this bill is only
directed at members of the ANC. Terrorist acts were carried out
in the name of the ANC and supported by at least some ANC
officials. Let me quote from the New York Times from 1988:
Leaders of the ANC have for the first time accepted
responsibility for some recent bombing attacks on
civilians and said they have taken the first steps to
prevent a recurrence. . . . [A] score of bombing
attacks appear to have been deliberately aimed at
civilian targets like amusement arcades, fast-food
outlets, sports stadiums and shopping centers in and
near Johannesburg and Pretoria. The [ANC] had avoided
either taking or denying responsibility. Criticism
reached a climax with a car-bomb explosion outside a
Johannesburg stadium early last month, in which 2
people died and 67 were hurt. The attacks have been
widely condemned by anti-apartheid leaders and church
groups normally sympathetic to the ANC. . . . [The
removal of an ANC political commissar] was widely
regarded as something of an exercise in damage control.
. . . [He] had publicly spoken in favor of striking at
civilian targets, arousing debate within the
organization over military tactics.\3\
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\3\John Battersby, A.N.C. Acts to Halt Civilian Attacks, New York
Times, August 21, 1988.
The ends do not justify the means. As unjust as apartheid
was, that was not a rationale to carry out terrible crimes.
Therefore, I could not support that part of the bill as
introduced under which members of the ANC are not considered
inadmissible on the basis of any anti-apartheid activities in
which they engaged no matter what their nature. However, the
bill as reported by the Judiciary Committee provides
appropriate relief to the ANC without excusing the perpetrators
of terrorist acts. I appreciate the willingness of Mr. Conyers,
Mr. Berman and Ms. Lofgren to address my concerns.
I must respond to the characterizations of the REAL ID made
in the Committee Report. The REAL ID Act modified the grounds
of inadmissibility and deportability for contributing funds or
other material support to terrorist organizations.\4\ The
Immigration and Nationality Act as it existed before the
enactment of the REAL ID Act provided that if aliens provided
funding or other material support to a terrorist organization
that for whatever reason had not yet been designated by the
Secretary of State as a terrorist organization (pursuant to
section 219 of the Immigration and Nationality Act), the aliens
were only inadmissible or deportable if they knew that the
support would further the organization's terrorist activities,
i.e., to buy a bomb. However, money given to terrorist
organizations is fungible. As Senator Dianne Feinstein has
stated:
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\4\Section 103 of Title 1 of Division B of Pub. L. No. 109-13.
Some have raised the objection that certain groups,
that may conduct terrorist operations, also run
humanitarian or social service operations, like schools
and clinics. But I simply do not accept that so-called
humanitarian works by terrorist groups can be kept
separate from their other operations. I think the money
will ultimately go to bombs and bullets, rather than
babies, or, because money is fungible, it will free up
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other funds to be used on terrorist activities.
Based on this understanding of how terrorist organizations
work, the REAL ID Act provided that aliens who provide funds or
other material support to any organization that commits
terrorist acts would be inadmissible and deportable--unless
they did not know, and should not reasonably have known, that
the organization was a terrorist organization. Similar changes
were made in the context of aliens who were members or
representatives of terrorist groups that had not been
designated as such by the Secretary of State.
The definition of what is considered a terrorist act under
the Immigration and Nationality Act was written in the
Immigration Act of 1990. The definition was written broadly so
as to give maximum flexibility to the Immigration and
Naturalization Service and because of the difficulty of
precisely defining terrorism. Essentially, any armed attack
other than for mere personal monetary gain with intent to
endanger the safety of one or more individuals or to cause
substantial damage to property is considered a terrorist
act.\5\ Because such a broad definition of terrorist act would
in certain instances encompass armed groups that did not target
civilians and thus should not be considered terrorist
organizations, the REAL ID Act included a provision allowing
the Administration to waive the material support bar on
admissibility and deportability in appropriate cases.\6\ As
discussed above, Congress decided to establish a statutory list
of organizations to be deemed not terrorist organizations for
immigration purposes in the fiscal year 2008 omnibus
appropriations bill. H.R. 5690 adds the ANC to this list, and
is thus consistent with the goals of the REAL ID Act.
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\5\Section 212(a)(3)(B)(iii) of the Immigration and Nationality
Act.
\6\Section 104 of Title 1 of Division B of Pub. L. No. 109-13.
Lamar Smith.