The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS” mentioning the U.S. Dept of State was published in the Senate section on pages S6202-S6217 on May 5, 1995.
The publication is reproduced in full below:
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. DASCHLE (for himself, Mr. Biden, Mr. Kohl, Mrs. Feinstein, and Mr. Dodd):
S. 761. A bill to improve the ability of the United States to respond to the international terrorist threat; read the first time.
THE OMNIBUS COUNTERTERRORISM ACT OF 1995
Mr. DASCHLE. Mr. President, since the terrible bombing in Oklahoma City more than 2 weeks ago, we have been forced to consider what the society should do in self-defense against potentially deadly maniacs who think that killing defenseless people is a way to send a political message or effect political change.
This is an enduring challenge for a democracy. We have faced it before. There is no easy answer.
We cannot afford to give the terrorists what they want to achieve--
the subversion of our free institutions--in the effort to prevent their terrorist acts. But we cannot remain complacent in the face of determined threats either.
The President has sent to Congress his proposal to give Federal law enforcement additional resources and tools to use in combating domestic and international terrorism on American soil. It includes commonsense expansion of FBI investigative authorities in counterterrorism cases, such as access to credit reports and travel and hotel records, which are routinely available to State and local law enforcement authorities in criminal investigations.
It will speed the process of adding chemical taggants to explosives, as well as moving more aggressively into taggant and related explosives research.
It will expand the FBI's ability to use trace-and-track devices and pen registers to capture the phone numbers dialed from or coming in to a particular telephone. It does not abandon the requirement of American law that no phone may be tapped without an explicit warrant, issued only when there is probable cause to suspect criminal activity.
The package of proposals includes added penalties and some broader Federal felony offenses, whose purpose is to conform the law with respect to explosives to the existing law that covers firearms.
Coupled with the President's earlier antiterrorism bill directed at international terrorism, this is a sound step to respond to a national threat without throwing overboard the civil rights of law-abiding citizens.
The consensus of those who work in this field is that, although the cold war is over, the war against terrorism is just beginning. Experts make some chilling--and compelling--arguments.
In the century preceding the Oklahoma City bombing, although terrorist groups were numerous, and although horrible murders, kidnapings, and other crimes by them were frequent, there were fewer than a dozen terrorist attacks that cost more than 100 lives.
There is reason to fear, according to experts, that this trend is shifting. Where once terrorists would take hostages and threaten the lives of 1 or 2 or 20 people if their demands were not met, they no longer issue specific demands. They take fewer and fewer hostages.
Instead, they attack more soft targets, where civilian casualties are bound to be higher. They are aiming less at a particular demand and more at terrorizing the entire society.
They build more car bombs and undertake more suicide attacks; they attack civilians in crowds--airplanes, subways, and office buildings. They make fewer explicit demands, but their broader demands are more apocalyptic.
If this trend continues, instead of a cold war atmosphere of threat and counterthreat, of massive nuclear stockpiles poised to strike each other's targets, we face the prospect of random violence--impossible to predict, impossible to counter, impossible to explain.
A civilized society can live with many fears. We lived with the fear of nuclear holocaust for almost 50 years, yet our society became freer throughout that time. The great advances in civil rights and protections against Government were postwar.
But no civilized society will survive the threat of random terror. It cannot. We must be able to feel secure as we travel to our workplaces each day, as we sit at our desks or man our service counters--that we will end the day predictably, by going home, making dinner, performing the normal pattern of tasks and duties we face.
If we ever reach the point where randomized terror can paralyze us, can make Americans distrust each other--distrust the safety of the next few hours--the terrorists will have won, because we will be what they want us to be: an atomized nation, without community, without security, without anything except fear for immediate individual survival.
That is where these people want to take us. We have to combat this, without becoming savages, without losing our perspective, without succumbing to paralyzing fear.
It is not going to be easy. If the experts are right, and apocalyptic terrorism is what the future holds, we will face challenges our system has never before been forced to face. We will have to ask ourselves questions that we have never before raised.
A growing number of terrorist groups believe they are fighting a holy war. That change has changed the nature of what they are prepared to do, the risks they themselves are prepared to run, and the damage they are prepared to inflict.
This change presents us, as a society, with a challenge as well. Americans are of diverse faiths, but we are among the
[[Page S6203]] most religious people in the industrialized world today. We respect the faith of others, and we respect the demands of their religion. Our respect for religious belief is not enshrined only in our first amendment. It is an instinctive American habit not to second-
guess the faith of your neighbor.
And yet, if terrorism comes claiming religious sanction, we have to face it. And this bill will help us.
Since 1990, 40 percent of all terrorist acts worldwide have been committed explicitly against American targets. That is, in large part, because the success of our society is a standing refutation of the beliefs of many of these groups. Unless our system can be destroyed, their vision cannot be vindicated.
This is believed by domestic groups as well as groups overseas.
Reports that some Americans think they have to shoot down military helicopters on routine training missions are surfacing. A Member of Congress has even proposed requiring Federal law enforcement agents to be formally deputized by local authorities before they can carry out their responsibilities. Reports of threats against local officials have discouraged involvement in local government meetings in some regions.
I do not believe that words alone cause terrorist acts. I do not think anyone seriously believes so. But I do believe that a culture is comprised of many factors, feeding into its hopes and fears, and I do believe that a culture changes as the factors feeding its hopes and playing on its fears change.
When people in the mainstream become careless with words, they breach barriers that create a new set of assumptions. Barriers, once breached, are permeable in both directions. The lunacy of the fringe enters the mainstream even as the careless or calculated words of the mainstream create a new defining normalcy. Senator Moynihan has spoken about a society that redefines deviancy. Those aggressively seeking to make their mark on our society should examine how they are defining normalcy.
We are warned by the Tokyo subway bombing earlier this year that weapons of mass destruction need not be explosives. Easily manufactured chemical and biological weapons can be as deadly and effective when the goal is to terrorize a community.
Before it collapsed, the Soviet Union operated the largest biological warfare production facility in the world, employing 15,000 scientists. These people had developed a form of bubonic plague that was resistant to 26 antibiotics, a form of fast-spreading meningitis, agents that could be introduced into water systems or into the air in climate-
controlled buildings.
Today, these people face the economic collapse of the system that supported them as highly paid and privileged specialists. All they need to re-create their deadly work is carried in their own brains. The temptation to sell that knowledge outside of Russian borders cannot be ignored at a time when the value of their monthly wages has fallen to less than $70.
Again, this threat is not limited to international terrorists. In August 1994, our own FBI arrested two members of a group calling itself the Patriots' Council in Minneapolis. This group was concocting ricin, a neurotoxin that can be produced from the common castor bean plant.
An equally deadly potential is the contamination of a conventional bomb with radioactivity. Since May 1994, there have been 39 separate incidents of nuclear materials diversion in Eastern and Southern Europe. It is not necessary for radioactive material to be made into an explosive device like a bomb. The contamination of a conventional bomb with radioactive materials is simpler; its terrifying effect would be as great.
These threats are not speculative. Unfortunately, they are all too real.
We cannot and must not succumb to the temptation of regarding everyone with oddball notions as a potential threat. But, unfortunately, neither can we write off all oddballs as harmless.
It is the goal of the President's counterterrorism approach that we be able to make the distinctions between the harmless and the potentially dangerous before the dangerous are able to strike again, not afterward.
I believe it is a balanced package of proposals that does not go too far. We should pass this legislation promptly, without detouring into the partisan political minefields some have suggested.
Curtailing the appellate rights of prisoners on death row is not going to change the murderous intentions of terrorist groups. The extraneous politically motivated inclusion of these kinds of provisions does a disservice to the cause of counterterrorism. It does not move us forward; it is intentionally and purposefully divisive.
I very much regret that this is on the agenda of some in the wake of a national tragedy. I would hope that these issues could be abandoned for the time being, out of respect for the families of the victims of the Oklahoma bombing and so that we may enact the necessary counterterrorism legislation expeditiously. We have plenty of time for politics later. This is a time that demands unity.
Mr. President, I ask unanimous consent that a section-by-section analysis be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
Section-by-Section Analysis
Section 1.
Section 1 states that the short title for the Act is ``The Omnibus Counterterrorism Act of 1995.''
Section 2.
Section 2 provides a Table of Contents for the Act.
Section 3.
Section 3 sets forth the congressional findings and purposes for the Act.
Section 101.
The purpose of section 101 is to provide a more certain and comprehensive basis for the Federal Government to respond to future acts of international terrorism carried out within the United States. The section creates an overarching statute
(proposed 18 U.S.C. 2332b) which would allow the Government to incorporate for purposes of a Federal prosecution any applicable Federal or State criminal statute violated by the terrorist act, so long as the Government can establish any one of a variety of jurisdictional bases delineated in proposed subsection 2332b(c).
Subsection 101(a) creates a new offense, 18 U.S.C. 2332b, entitled ``Acts of Terrorism Transcending National Boundaries.'' This statute is aimed at those terrorist acts that take place within the United States but which are in some fashion or degree instigated, commanded, or facilitated from outside the United States. It does not encompass acts of street crime or domestic terrorism which are in no way connected to overseas sources.
Subsection 2332b(a) sets forth the particular findings and purposes for the provision.
Subsection 2332b(b) sets forth the prohibited acts which relate to the killing, kidnapping, maiming, assault causing serious bodily injury, or assault with a dangerous weapon of any individual (U.S. national or alien) within the United States. It also covers destruction or damage to any structure, conveyance or other real or personal property within the United States. These are the types of violent actions that terrorists most often undertake. The provision encompasses any such activity which is in violation of the laws of the United States or any State, provided a Federal jurisdictional nexus is present.
Subsection 2332b(c) sets forth the jurisdictional bases. Except for subsections (c) (6) and (7), these bases are a compilation of jurisdictional elements which are presently utilized in federal statutes and which have been approved by the courts.
Paragraph (1) covers the situation where the offender travels in commerce. Cf. 18 U.S.C. 1952.
Paragraph (2) covers the situation where the mails or a facility utilized in any manner in commerce is used to further the commission of the offense or to effectuate an escape therefrom. Cf. 18 U.S.C. 1951.
Paragraph (3) covers the situation where the results of illegal conduct affect commerce. Cf. 18 U.S.C. 1365(c).
Paragraph (4) covers the situation where the victim is a federal official. Cf. 18 U.S.C. 115, 1114, 351, 1751. The language includes both civilians and military personnel. Moreover, it also covers any ``agent'' of a federal agency. Cf. 18 U.S.C. 1114 (i.e., assisting agent of customs or internal revenue) and 1121. It covers all branches of government, including members of the military services, as well as all independent agencies of the United States.
Paragraph (5) covers property used in commerce (cf. 18 U.S.C. 844(i)), owned by the United States (cf. 18 U.S.C. 1361), owned by an institution receiving federal financial assistance (cf. 18 U.S.C. 844(f)) or insured by the federal government (cf. 18 U.S.C. 2113).
Paragraph (6) provides a jurisdictional base which has not been tested. It should, however, fall with the federal government's commerce power. It is included to avoid the construction, given to many federal interstate commerce statutes, that a ``commercial'' aspect is required. Paragraph
(6) would cover both business and personal travel. [[Page S6204]]
Paragraph (7) covers situations where the victim or perpetrator is not a national of the United States. The victimization of an alien in a terrorist attack has the potential of affecting the relations of the United States with the country of which the alien is a citizen. Moreover, some other statutes base criminal jurisdiction on the involvement of an alien as the perpetrator or victim. E.g., see 18 U.S.C. 1203 and 1116. In addition, aliens are a special responsibility of the federal government, as it is involved in admitting aliens, establishing the conditions for their presence, adjusting them to resident alien status, deporting aliens for violating the immigration laws, and eventually naturalizing aliens as citizens.
Paragraphs (8) and (9) cover the territorial seas of the United States and other places within the special maritime and territorial jurisdiction of the United States that are located within the United States (cf. 18 U.S.C. 7).
Jurisdiction exists over the prohibited activity if at least one of the jurisdictional elements is applicable to one perpetrator. When jurisdiction exists for one perpetrator, it exists over all perpetrators even those who were never within the United States.
Subsection (d) sets forth stringent penalties. These penalties are mandatorily consecutive to any other term of imprisonment which the defendant might receive. Consecutive sentences for ``identical'' offenses brought in the same prosecution are constitutionally permissible. See Missouri v. Hunter, 459 U.S. 359, 367 (1983). However, there is no statutory mandatory minimum. The court is given the discretion to decide the penalty for this offense under the sentencing guidelines.
Subsection (e) limits the prosecutorial discretion of the Attorney General. Before an indictment is sought under section 2332b, the Attorney General, or the highest ranking subordinate of the Attorney General with responsibility for criminal prosecutions, must certify that in his or her judgment the violation of section 2332b, or the activity preparatory to its commission, transcended national boundaries. This means that the Attorney General must conclude that some connection exists between the activities and some person or entity outside the United States.
Moreover, the certification must find that the offense appears to have been intended to coerce, intimidate, or retaliate against a government or civilian population. This is similar to the certification requirement for ``terrorism'' found in 18 U.S.C. 2332(d). The term ``civilian population'' includes any segment thereof and, accordingly, is consistent with the Congressionally intended scope of section 2332(d). The certification requirement ensures that the statute will only be used against terrorists with overseas connections. Section 2332b is not aimed at purely domestic terrorism or against normal street crime as current law, both federal and state, appears to adequately address these areas. The certification of the Attorney General is not an element of the offense and, except for verification that the determination was made by an authorized official, is not subject to judicial review.
Subsection (f) states that the Attorney General shall investigate this offense and may request assistance from any other federal, state, or local agency including the military services. This latter provision, also found in several other statutes, see e.g., 18 U.S.C. 351(g) and 1751(i), is intended to overcome the restrictions of the posse comitatus statute, 18 U.S.C. 1385. It is not intended to give intelligence agencies, such as the Central Intelligence Agency, any mission that is prohibited by their charters.
Pursuant to 28 C.F.R. 0.85(a), the Attorney General automatically delegates investigative responsibility over this offense to the Director of the Federal Bureau of Investigation (FBI). Moreover, under 28 C.F.R. 0.85(l) the FBI has been designated as the lead federal law enforcement agency responsible for criminal investigation of terrorism within the United States. While local and state authorities retain their investigative authority under their respective laws, it is expected that in the authority under their respective laws, it is expected that in the event of major terrorist crimes such agencies will cooperate, consult, coordinate and work closely with the FBI, as occurred in the investigation of the World Trade Center bombing in New York City.
Subsection (g) makes express two points which are normally inferred by courts under similar statutes, namely, that no defendant has to have knowledge of any jurisdictional base and that only the elements of the state offense and not any of its provisions pertaining to procedures or evidence are adopted. Federal rules of evidence and procedure control any case brought under section 2332b.
Subsection (h) makes it clear that there is extraterritorial jurisdiction to reach defendants who were involved in crimes but who never entered the United States.
Subsection (i) sets forth definitions, many of which specifically incorporate definitions from elsewhere in the federal code, e.g., the definition of ``territorial sea'' in 18 U.S.C. 2280(e).
Subsection 101(b) makes a technical amendment to the chapter analysis for Chapter 113B of title 18, United States Code.
Subsection 101(c) amends 18 U.S.C. 3286, which was created by section 120001 of Pub. Law 103-322. Section 3286 is designed to extend the period of limitation for a series of enumerated terrorism offenses from five to eight years. The wording of the section, however, gives rise to a potential interpretation that, with respect to violations of the enumerated offenses that are capital crimes, the same eight-year period applies rather than the unlimited period that previously applied and continues to apply to capital offenses under 18 U.S.C. 3281. Section 3286's introductory language is as follows:
``Notwithstanding section 3282, no person shall be prosecuted, tried, or punished for any offense involving a violation of'' the enumerated provisions of law (emphasis supplied).
It seems clear that Congress did not intend to reduce the limitations period for offenses under the enumerated statutes that are capital due to the killing of one or more victims. Rather, the intent was (as the title of the section 120001 provision indicates to enlarge the applicable limitation period for non-capital violations of the listed offenses. Accordingly, the proposed amendment would insert ``non-capital'' after ``any'' in the above-quoted phrase. Notably, the drafters were careful to include the word ``non-capital'' when affecting a similar period of limitations extension applicable to arson offenses under 18 U.S.C. 844(i) in section 320917 of the Pub. L. 103-322.
Subsection 101(c) also corrects certain erroneous statutory references in section 3286 (i.e., changes ``36'' to ``37'',
``2331'' to ``2332'' and ``2339'' to ``2332a''). Finally, the subsection adds to section 3286 the new 18 U.S.C. 2332b.
Subsection 101(d) amends section 3142(e) of title 18, United States Code, to insure that a defendant arrested for a violation of the new 18 U.S.C. 2332b is presumed to be unreleasable pending trial. The factors, most likely to be present, i.e., an alien perpetrator who is likely to flee and who is working on behalf of or in concert with a foreign organization, makes such an individual unsuitable for release pending trial. This presumption, which is subject to rebuttal, will limit the degree of sensitive evidence that the Government must disclose to sustain its burden to deny release.
Section 102.
Section 102 is designed to complement section 101 of this bill concerning terrorist acts within the United States transcending national boundaries. Just as a better basis for addressing crimes carried out within the United States by international terrorists is needed, it also is appropriate that there should be an effective federal basis to reach conspiracies undertaken in part within the United States for the purpose of carrying out terrorist acts in foreign countries.
Section 102 covers two areas of activity involving international terrorists. The first is conspiracy in the United States to murder, kidnap, or maim a person outside of the United States. The second is conspiracy in the United States to destroy certain critical types of property, such as public buildings and conveyances, in foreign countries. The term conveyance would include cars, buses, trucks, airplanes, trains, and vessels.
Subsection 102(a) amends current 18 U.S.C. 956 in several ways. It creates a new subsection 956(a) which proscribes a conspiracy in the United States to murder, maim, or kidnap a person outside of the United States. The new section fills a void in the law that exists. Currently, subsection 956(a) only prohibits a conspiracy in the United States to commit certain types of property crimes in a foreign country with which the United States is at peace. It does not cover conspiracy to commit crimes against the person.
Subsection 102(a) thus expands on the current section 956 so that new subsection 956(a) covers conspiracy to commit one of the three listed serious crimes against any person in a foreign country or in any place outside of the jurisdiction of the United States, such as on the high seas. This type of offense is committed by terrorists and the new subsection 956(a) is intended to ensure that the government is able to punish those persons who use the United States as a base in which to plot such a crime to be carried out outside the jurisdiction of the United States.
New subsection 956(a) would apply to conspiracies to commit one of the enumerated offenses where at least one of the conspirators is inside the United States. The other member or members of the conspiracy would not have to be in the United States but at least one overt act in furtherance of the conspiracy would have to be committed in the United States. The subsection would apply, for example, to two individuals who consummated an agreement to kill a person in a foreign country where only one of the conspirators was in the United States and the agreement was reached by telephone conversations or letters, provided at least one of the overt acts was undertaken by one co-conspirator while in the United States. In such a case, the agreement would be reached at least in part in the United States. The overt act may be that of only one of the conspirators and need not itself be a crime.
Subsection 102(a) also re-enacts current section 956(a) of title 18 (dealing with a conspiracy in the United States to destroy property in a foreign country) as subsection 956(b), and expands its coverage to other forms of property. The revision adds the terms ``airport'' and ``airfield'' to the list of ``public utilities'' presently set out in section 956(a), since they are particularly attractive targets for terrorists. New subsection 956(b) also adds public conveyances (e.g., buses), public structures, and any religious, educational or cultural property to the list of targets. This makes it clear that [[Page S6205]] the statute covers a conspiracy to destroy any conveyance on which people travel and any structure where people assemble, such as a store, factory or office building. It also covers property used for purposes of tourism, education, religion or entertainment. Accordingly, the words ``public utility'' do not limit the statute's application to a conspiracy to destroy only such public utility property as transportation lines or power generating facilities.
Consequently, as amended, 18 U.S.C. 956 reaches those individuals who have conspired within the United States to commit the violent offenses overseas and who solicit money in the United States to facilitate their commission. Moreover, monetary contributors who have knowledge of the conspiracy's purpose are coconspirators subject to prosecution.
Subsection 102(a) also increases the penalties in current 18 U.S.C. 956(a). The new penalties are comparable to those proposed in section 101 of the bill for the new 18 U.S.C. 2332b. Finally, subsection 102(a) eliminates the requirement that is currently found in 18 U.S.C. 956(b) of naming in the indictment the ``specific property'' which is being targeted, as this requirement may be difficult to establish in the context of a terrorism conspiracy which does not result in a completed offense. Additionally, even in a completed conspiracy, the parties may, after agreeing that a category of property or person will be targeted, leave the actual selection of the particular target of their conspirators on the ground overseas. Hence, while an indictment must always describe its purposes with specificity, it need not allege all specific facts, especially those that were formulated at a subsequent time or which may not be completely known to some of the participants.
Section 956 is contained in chapter 45 of title 18, United States Code, relating to interference with the foreign relations of the United States. It is not intended to apply to duly authorized actions undertaken on behalf of the United States Government. Chapter 45 covers those individuals who, without appropriate governmental authorization, engage in prohibited conduct that is harmful to the foreign relations of the United States.
Section 103.
This section would correct a failure to execute fully our treaty obligations and would, in addition, clarify and expand federal jurisdiction over certain overseas acts of terrorism affecting United States interests.
Subsection 103(a) would amend 49 U.S.C. 46502(b) (former section 902(n) of the Federal Aviation Act of 1958, as amended (49 U.S.C. App. 1472(n)). Section 46502(b) currently covers those aircraft piracies that occur outside the
``special aircraft jurisdiction of the United States,'' as defined in 49 U.S.C. 46501(2). It, therefore, applies to hijackings of foreign civil aircraft which never enter United States airspace. As a State Party to the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, the United States has a treaty obligation to prosecute or extradite such offenders when they are found in the United States. This measure is based on the universal jurisdiction theory. See United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991). However, the present statute fails to make clear when federal criminal jurisdiction commences with respect to such air piracies, absent the actual presence within the United States of one of the perpetrators.
Paragraph (a)(1) would establish clear federal criminal jurisdiction over those foreign aircraft hijackings where United States nationals are victims or perpetrators. While the Hague Convention does not mandate that State Parties criminalize those situations involving their nationals as victims or perpetrators, it does allow State Parties to assert extraterritorial jurisdiction on the basis of the passive personality principle. See Paragraph 3 of Article 4. In addition, other recent international conventions dealing with terrorism, such as the United Nations Convention Against the Taking of Hostages and the International Maritime Organization Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, mandate criminal jurisdiction by a State Party when its national is a perpetrator and permit the assertion of jurisdiction when its national is a victim of an offense prohibited by those conventions. Further, experience has shown that it is often the country whose nationals were victims of the hijacking which is willing to commit the necessary resources to locate, prosecute, and incarcerate the perpetrators for a period of time commensurate with their criminal acts. For those foreign civil aircraft hijackings involving no United States nationals as victims or perpetrators, section 46502 would continue to carry out the U.S. obligation under the Convention to prosecute or extradite an airline perpetrator who was subsequently found in the United States.
Under the clarified statute, subject matter jurisdiction over the offense would vest whenever a United States national was on a hijacked flight or was the perpetrator of the hijacking. Where a United States national is the perpetrator, all perpetrators, including non-U.S. nationals, would be subject to indictment for the offense, since these non-national defendants would be either principals or aides and abettors within the meaning of 18 U.S.C. 2.
Paragraph (a)(2) amends 49 U.S.C. 46502(b)(2) to set forth the three different subject matter jurisdictional bases. It has the effect of repealing the current provision which failed to fully execute our treaty obligation. Presently, paragraph 46502(b)(2) reads: ``This subsection applies only if the place of takeoff or landing of the aircraft on which the individual commits the offense is located outside the territory of the country of registration of the aircraft.'' Paragraph (b)(2) was intended to reflect paragraph 3 of Article 3 of the Hague Convention, which states that the convention normally applies ``only if the place of take-off or the place of actual landing of the aircraft on which the offense is committed is situated outside the territory of the State or registration of that aircraft.'' However, the authors of the original legislation apparently overlooked the obligation imposed by paragraph 5 of Article 3 of the Convention which applies when the alleged aircraft hijacker is found in the territory of a State Party other than the State of registration of the hijacked aircraft. Paragraph 5 states:
``Notwithstanding paragraphs 3 and 4 of this Article, Article 6, 7, 8 and 10 shall apply whatever the place of take-off or the place of actual landing of the aircraft, if the offender or the alleged offender is found in the territory of a State other than the State of registration of that aircraft.''
For example, under the Hague Convention, the hijacking of an Air India flight that never left India is not initially covered by the Convention. (Article 3, paragraph 3.) However, the subsequent travel of the offender from India to the jurisdiction of another State Party triggers treaty obligations. Paragraph 5 makes the obligation of Article 7, to either prosecute or extradite an alleged offender found in a party's territory, applicable to a hijacker of a purely domestic air flight who flees to another State.
Paragraph (a)(3) creates a new section 46502(b)(3) which provides a definition of ``national of the United States'' that has been used in other terrorism provisions, see, e.g., 18 U.S.C. 2331(2) and 3077(2)(A).
Subsection 103(b) amends section 32(b) of title 18, United States Code. Presently, section 32(b) carries out the treaty obligation of the United States, as a State Party to the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, to prosecute or extradite offenders found in the United States who have engaged in certain acts of violence directed against foreign civil aircraft located outside the United States. The proposed amendment would fully retain current jurisdiction and would establish additional jurisdiction where a United States national was the perpetrator or a United States national was on board such aircraft when the offense was committed. Because subsection 32(b)(3) of title 18, United States Code, covers the placement of destructive devices upon such aircraft and a ``victim'' does not necessarily have to be on board the aircraft at the time of such placement, the phrase ``or would have been on board'' has been used. In such instances, the prosecution would have to establish that a United States national would have been on board a flight that such aircraft would have undertaken if the destructive device had not been placed thereon.
Subsection 103(b) is drafted in the same manner as paragraph (a)(2), above, so that once subject matter jurisdiction over the offense vests, all the perpetrators of the offense are subject to indictment for the offense.
Subsections 103 (c), (d), (e) and (f) would amend 18 U.S.C. 1116 (murder), 112 (assault), 878 (threats), and 1201
(kidnapping), respectively. The primary purpose of these proposed amendments is to extend federal jurisdiction to reach United States nationals, or those acting in concert with such a national, who commit one of the specified offenses against an internationally protected person located outside of the United States. The invocation of such jurisdiction under U.S. law is required by the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including diplomatic agents. It was apparently omitted as an oversight when the implementing federal legislation was enacted in 1976 (P.L. 94-467).
Additionally, the provisions would also clarify existing jurisdiction. The language used in the first sentence of sections 1116(e), 112(e), 878(d), and 1201(e) is ambiguous as pertains to instances in which the victim is a United States diplomat. The first sentence in each of these provisions now reads: ``If the victim of an offense under subsection (a) is an internationally protected person, the United States may exercise jurisdiction over the offense if the alleged offender is present within the United States, irrespective of the place where the offense was committed or the nationality of the victim or the alleged offender.''
This sentence could be read to require the presence of the offender in the United States even when the internationally protected person injured overseas was a United States diplomat. This would be anomalous and was likely not intended. Accordingly, subsections (c)-(f) rewrite the first sentence to read as follows:
``If the victim of an offense under subsection (a) is an internationally protected person outside the United States, the United States may exercise jurisdiction over the offense if (1) the victim is a representative, officers, employee, or agent of the United States, (2) an offender is a national of the United States, or (3) an offender is afterwards found in the United States.''
The provision is drafted, in the same manner as the aircraft piracy and aircraft destruction measures, so that once subject [[Page S6206]] matter jurisdiction over the offense is vested, all the perpetrators of the offense would be subject to indictment for the offense.
Subsections 103(c)-(f) also would incorporate in an appropriate manner the definition of ``national of the United States'' in sections 1116, 112, 878, and 1201 of title 18.
Subsection 103(g) contains an amendment similar in nature to those in the preceding subsections. It expands federal jurisdiction over extraterritorial offenses involving violence at international airports under 18 U.S.C. 37. That provision, enacted as section 60021 of Public Law 103-322, presently reaches such crimes committed outside the United States only when the offender is later found in the United States. There is, however, good reason to provide for federal jurisdiction over such terrorist crimes when an offender or a victim is a United States national. In such circumstances the interests of the United States are equal to, if not greater than, the circumstance where neither the victim nor the offender is necessarily a United States national but the offender is subsequently found in this country.
Subsection 103(h) adds the standard definition of the term
``national of the United States'' to 18 U.S.C. 178. This term is used earlier in the chapter (in 18 U.S.C. 175(a), which provides for extraterritorial jurisdiction over crimes involving biological weapons ``committed by or against a national of the United States'') but no definition is provided.
Section 201
In recent years, the Department of Justice has obtained considerable evidence of involvement in terrorism by aliens in the United States. Both legal aliens, such as lawful permanent residents and aliens here on student visas, and illegal aliens are known to have aided and to have received instructions regarding terrorist acts from various international terrorist groups. While many of these aliens would be subject to deportation proceedings under the Immigration and Nationality Act (INA), these proceedings present serious difficulties in cases involving classified information. Specifically, these procedures do not prevent disclosure of classified information where such disclosure would pose a risk to national security. Consequently, section 201 sets out a new title in the INA devoted exclusively to the removal of aliens involved in terrorist activity where classified information is used to sustain the grounds for deportation.
The new title would create a special court, patterned after the special court created under the Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq.). When the Department of Justice believes that it has identified an alien in the United States who has engaged in terrorist activity, and that to afford such an alien a deportation hearing would reveal classified national security information, it could seek an ex parte order from the court. The order would authorize a formal hearing, called a special removal hearing, before the same court, at which the Department of Justice would seek to prove by clear and convincing evidence that the alien had in fact engaged in terrorist activity. At the hearing, classified evidence could be presented in camera and not revealed to the alien or the public, although its general nature would normally be summarized.
Enactment of section 201 would provide a valuable new tool with which to combat aliens who use the United States as a base from which to launch or fund terrorist attacks either on U.S. citizens or on persons in other countries. It is a carefully measured response to the menace posed by alien terrorists and fully comports with and exceeds all constitutional requirements applicable to aliens.
Subsection 201(a) sets out findings that aliens are committing terrorist acts in the United States and against United States citizens and interests and that the existing provisions of the INA providing for the deportation of criminal aliens are inadequate to deal with this threat. These findings are in addition to the general findings contained in section 3 of the bill. The findings explain that these inadequacies arise primarily because the INA, particularly in its requirements pertaining to deportation hearings, may require disclosure of classified information.
The findings are important in explaining Congressional intent and purpose. As noted above, section 201 creates an entirely new type of hearing to determine whether aliens believed to be terrorists should be removed from the United States. At such a ``special removal hearing.'' the government would be permitted to introduce in camera and ex parte classified evidence that the alien has engaged in terrorist activity. Such hearings would be held before Article III judges. The in camera and ex parte portion of the hearing would relate to classified information which, if provided to the alien or otherwise made public, would pose a risk to national security. Such an extraordinary type of hearing would be invoked only in a very small percentage of deportation cases, and would be applicable only in those cases in which an Article III judge has found probable cause to believe that the aliens in question are involved in terrorist activity. Although the bill provides the alien many rights equal to--and in some respects greater than--those enjoyed by aliens in ordinary deportation proceedings, the rights specified for aliens subject to a special removal hearing are deemed exclusive of any rights otherwise afforded under the INA.
It is within the power of Congress to provide for a special adjudicatory proceeding and to specify the procedural rights of aliens involved in terrorist acts. The Supreme Court has noted that ``control over matters of immigration is a sovereign prerogative, largely within the control of the Executive and the Legislature . . . . The role of the judiciary is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy.'' Landon v. Plasencia, 459 U.S. 21, 34-35 (1982). Moreover, Congress can specify what type of process is due different classes of aliens. ``[A] host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; and the class of aliens itself is a heterogeneous multitude of persons with a wide-ranging variety of ties to this country.'' Mathews v. Diaz, 426 U.S. 67, 78-79
(1976). Because the Due Process Clause does not require
``that all aliens must be placed in a single homogeneous legal classification,'' id., Congress can provide separate processes and procedures for determining whether to remove resident and nonresident alien terrorists.
Subsection 201(b) adds a new title V to the INA to provide a special process for removing alien terrorists when compliance with normal deportation procedures might adversely affect national security interests of the United States. However, the new title V is not the only way of expelling alien terrorists from the United States. In addition to proceedings under the new special removal provisions, aliens falling within 8 U.S.C. 1251(a)(4)(B) alternatively could be deported following a regular deportation hearing. Moreover, like all other aliens, alien terrorists remain subject to possible expulsion for any of the remaining deportation grounds specified in section 241 of the Act (8 U.S.C. 1251). For example, alien terrorists who violate the criminal laws of the United States remain subject to ``ordinary'' deportation proceedings on charges under INA section 241(a)(2). The special removal provisions augment, without in any way narrowing, the prosecutorial options in cases of alien terrorists.
The new title V consists of four new sections of the INA, sections 501-504 (8 U.S.C. 1601-1604). Briefly, the title provides for creation of a special court comprised of Article III judges, patterned after the special court created under the Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq.). When the Department of Justice believes it has identified an alien terrorist, that is, an alien who falls within 8 U.S.C. 1251(a)(4)(B), and determines that to disclose the evidence of that fact to the alien or the public would compromise national security, the Department may seek an order from the special court. The order would authorize the Department to present the classified portion of its evidence that the alien is a terrorist in camera and ex parte at a special removal hearing. The classified portion of the evidence would be received in chambers with only the court reporter, the counsel for the government, and the witness or document present. The general nature of such evidence, without identifying classified or sensitive particulars, would than normally be revealed to the alien, his counsel, and the public in summarized form. The summary would have to be found by the court to be sufficient to permit the alien to prepare a defense.
Where an adequate summary, as determined by the court, would pose a risk to national security, and, hence, unavailable to the alien, the special hearing would be terminated unless the court found that (1) the continued presence of the alien in the United States or (2) the preparation of the adequate summary would likely cause serious and irreparable harm to the national security or death or serious bodily injury to any person. If such a situation exists, the special removal hearing would continue, the alien would not receive a summary, and the relevant classified information could be introduced against the alien pursuant to subsection (j).
If, at the conclusion of the hearing, the judge finds that the government has established by clear and convincing evidence that the alien has engaged in terrorist activity, the judge would order the alien removed from the United States. The alien could appeal the decision to the United States Court of Appeals for the District of Columbia Circuit, and ultimately could petition for a writ of certiorari to the Supreme Court.
Use of information that is not made available to the alien for reasons of national security is a well-established concept in the existing provisions of the INA and immigration regulations. For example, section 235(c) provides for an expedited exclusion process for aliens excludable under 8 U.S.C. 1182(a)(3) (providing for the exclusion, inter alia, of alien spies, saboteurs, and terrorists), and states in relevant part:
If the Attorney General is satisfied that the alien is excludable under [paragraph 212(a)(3)] on the basis of information of a confidential nature, the disclosure of which the Attorney General, in his discretion, and after consultation with the appropriate security agencies of the Government, concludes would be prejudicial to the public interest, safety, or security, he may in his discretion order such alien to be excluded and deported without any inquiry or further inquiry by [an immigration judge].''
Thus, where it is necessary to protect sensitive information, existing law authorizes [[Page S6207]] the Attorney General to conduct exclusion proceedings outside the ordinary immigration court procedures and to rely on classified information in ordering the exclusion of alien terrorists.
In the deportation context, 8 C.F.R. 242.17 (1990) provides that in determining whether to grant discretionary relief to an otherwise deportable alien, the immigration judge ``may consider and base his decision on information not contained in the record and not made available for inspection by the
[alien], provided the Commissioner has determined that such information is relevant and is classified under Executive Order No. 12356 (47 FR 14874, April 6, 1982) as requiring protection from unauthorized disclosure in the interest of national security.''
The constitutionality of this provision has been upheld. Suciu v. INS, 755 F.2d 127 (8th Cir. 1985). The alien in that case had been in the United States for 16 years and had become deportable for overstaying his student visa, a deportation ground ordinarily susceptible to discretionary relief. Nevertheless, the court held that it was proper to deny the alien discretionary relief without disclosing to him the reasons for the denial. Sucia followed the Supreme Court's holding sustaining the constitutionality of a similar predecessor regulation in Jay v. Boyd, 351 U.S. 345 (1956).
Section 501 (Applicability).
Section 501 sets forth the applicability of the new title. Section 501(a) states that the title may, but need not, be employed by the Department of Justice whenever it has information that an alien is subject to deportation because he is an alien described in 8 U.S.C. 1251(a)(4)(B), that is, because he has engaged in terrorist activity.
Section 501(b) provides that whenever an official of the Department of Justice determines to seek the expulsion of an alien terrorist under the special removal provisions, only the provisions of the new title need be followed. This ensures that such an alien will not be deemed to have any additional rights under the other provisions of the INA. Except when specifically referenced in the special removal provisions, the remainder of the INA would be inapplicable. For example, under the special removal provisions an alien who has entered the United States (and thus is not susceptible to exclusion proceedings) need not be given a deportation hearing under section 242 of the Act, 8 U.S.C. 1252, and will not have available the rights generally afforded aliens in deportation proceedings (e.g., the opportunity for an alien out of status to correct his status).
Section 501(c) states that Congress has enacted the title upon finding that alien terrorists represent a unique threat to the security interests of the United States. Consequently, the subsection states Congress' specific intent that the Attorney General be authorized to remove such aliens without resort to a traditional deportation hearing, following an ex parte judicial determination of probable cause to believe they have engaged in terrorist activity and a further judicial determination, following a modified adversarial hearing, that the Department of Justice has established by clear and convincing evidence that the aliens in fact have engaged in terrorist activity.
Section 501(c) is designed to make clear that singling out alien terrorists for a special type of hearing rather than according them ordinary deportation hearings is a careful and deliberate policy choice by a political branch of government. This policy choice is grounded upon the legislative determination that alien terrorists seriously threaten the security interests of the United States and that the existing process for adjudicating and effecting alien removal is inadequate to meet this threat. In accordance with settled Supreme Court precedent, such a choice is well within the authority of the political branches of government to control our relationship with and response to aliens.
For example, in Mathews v. Diaz, supra, the Court held that Congress could constitutionally provide that only some aliens were entitled to Medicare benefits. The Court held that it was ``unquestionably reasonable for Congress to make an alien's eligibility depend on both the character and duration of his residence,'' and noted that the Court was ``especially reluctant to question the exercise of congressional judgment'' in matters of alien regulation. 426 U.S. at 83, 84; see Fiallo v. Bell, 430 U.S. 787, 792 (1977) (describing the regulation of aliens as a political matter ``largely immune from judicial control''). The specific findings and reference to the intent in adopting the new provisions of title V make clear the policy judgment that alien terrorists should be treated as a separate class of aliens and that this choice should not be disturbed by the courts.
Section 502 (Special Removal Hearing).
Section 502 sets out the procedure for the special removal hearing. Section 502(a) provides that whenever the Department of Justice determines to use the special removal process it must submit a written application to the special court
(established pursuant to section 503) for an order authorizing such procedure. Each application must indicate that the Attorney General or Deputy Attorney General has approved its submission and must include the identity of the Department attorney making the application, the identity of the alien against whom removal proceedings are sought, and a statement of the facts and circumstances relied upon by the Department of Justice as justifying the belief that the subject is an alien terrorist and that following normal deportation procedures would pose a risk to the national security of the United States.
Section 502(b) provides that applications for special removal proceedings shall be filed under seal with the special court established pursuant to section 503. At or after the time the application is filed, the Attorney General may take the subject alien into custody. The Attorney General's authority to retain the alien in custody is governed by the provisions of new title V which, as explained below, provide in certain circumstances for the release of the alien.
Although title V does not require the Attorney General to take the alien subject to a special removal applications into custody, it is expected that most such aliens will be apprehended and confined. The Attorney General's decision whether to take a non-resident alien into custody will not be subject to judicial review. However, a resident alien is entitled to a release hearing before the judge assigned by the special court. The resident alien may be released upon such terms and conditions prescribed by the court (including the posting of any monetary amount), if the alien demonstrates to the court that the alien, if released, is not likely to flee and that the alien's release will not endanger national security or the safety of any person or the community. Subsequent provisions (section 504(a)) authorize the Attorney General to retain custody of alien terrorists who have been ordered removed until such aliens can be physically delivered outside our borders.
Section 502(c) provides that special removal applications shall be considered by a single Article III judge in accordance with section 503. In each case, the judge shall hold an ex parte hearing to receive and consider the written information provided with the application and such other evidence, whether documentary or testimonial in form, as the Department of Justice may proffer. The judge shall grant an ex parte order authorizing the special removal hearing as provided under title V if the judge finds that, on the basis of the information and evidence presented, there is probable cause to believe that the subject of the application is an alien who falls within the definition of alien terrorist and that adherence to the ordinary deportation procedures would pose a risk to national security.
Section 502(d)(1) provides that in any case in which a special removal application is denied, the Department of Justice within 20 days may appeal the denial to the United States Court of Appeals for the District of Columbia Circuit. In the event of a timely appeal, a confined alien may be retained in custody. When the Department of Justice appeals from the denial of a special removal application, the record of proceedings will be transmitted to the Court of Appeals under seal and the court will hear the appeal ex parte. Subsequent provisions (section 502(p)) authorize the Department of Justice to petition the Supreme Court for a writ of certiorari from an adverse appellate judgment.
Section 502(d)(2) provides that if the Department of Justice does not seek appellate review of the denial of a special removal application, the subject alien must be released from custody unless, as a deportable alien, the alien may be arrested and taken into custody pursuant to title II of the INA. Thus, for example, when the judge finds that the special procedures of title V are unwarranted but the alien is subject to deportation as an overstay or for violation of status, the alien might be retained in custody but such detention would be pursuant to and governed by the provisions of title II.
Subsection 502(d)(3) provides that if a special removal application is denied because the judge finds no probable cause that the alien has engaged in terrorist activities, the alien must be released from custody during the pendency of an appeal by the government. However, section 502(d)(3) is similar to section 502(d)(2) in that it provides for the possibility of continued detention in the case of aliens who otherwise are subject to deportation under title II of the Act.
Section 502(d)(4) applies to cases in which the judge finds probable cause that the subject of a special removal application has been correctly identified as an alien terrorist, but fails to find probable cause that use of the special procedures are necessary for reasons of national security, and the Department of Justice determines to appeal. A finding that the alien has engaged in terrorist activity--a ground for deportation that would support confinement under title II of the Act--justifies retaining the alien in custody. Nevertheless, section 502(d)(4) provides that the judge must determine the question of custody based upon an assessment of the risk of flight and the danger to the community or individuals should the alien be released. The judge shall release the alien subject to the least restrictive condition(s) that will reasonably assure the alien's appearance at future proceedings, should the government prevail on its appeal, and will not endanger the community or individual members thereof. The possible release conditions are those authorized under the Bail Reform Act of 1984, 18 U.S.C. 3142 (b) and (c), and range from release on personal recognizance to release on execution of a bail bond or release limited to certain places or periods of time. As with the referenced provisions of the Bail Reform Act, the judge may deny release altogether upon determining that no condition(s) of release would assure the aliens future appearance and community safety. [[Page S6208]]
Section 502(e)(1) provides that in cases in which the special removal application is approved, the judge must then consider each piece of classified evidence that the Department of Justice proposes to introduce in camera and ex parte at the special removal hearing. The judge shall authorize the in camera and ex parte introduction of any item of classified evidence if such evidence is relevant to the deportation charge.
Section 502(e)(1) also provides that with respect to any evidence authorized to be introduced in camera and ex parte, the judge must consider how the alien subject to the proceedings is to be advised regarding such evidence. The Department of Justice must prepare a summary of the classified information. The court must find the summary to be sufficient to inform the alien of the general nature of the evidence that he has engaged in terrorist activity, and to permit the alien to prepare a defense. A summary, however,
``shall not pose a risk to the national security.'' In considering the summary to be provided to the alien of the government's proffered evidence, it is intended that the judge balance the alien's interest in having an opportunity to hear and respond to the case against him against the government's extraordinarily strong interest in protecting the national security. The Department of Justice shall provide the alien a copy of the court approved summary.
In situations where the court does not approve the proposed summary, the Department of Justice can amend the summary to meet specific concerns raised by the court. Subsection (e)(2) provides that if such submission is still found unacceptable, the special removal proceeding is to be terminated unless the court finds that the continued presence of the alien in the United States or the preparation of an adequate summary would likely cause serious and irreparable harm to the national security or death or serious bodily injury to any person. If such a situation exists, the special removal hearing would continue, the alien would be notified that no summary is possible, and relevant classified information could be introduced against the alien pursuant to subsection (j).
Section 502(e)(3) provides that, in certain situations, the Department of Justice may take an interlocutory appeal to the United States Court of Appeals for the District of Columbia Circuit from the judge's rulings regarding the in camera and ex parte admission and summarization of particular items of evidence. Interlocutory appeal is authorized if the judge rules that a piece of classified information may not be introduced in camera and ex parte because it is not relevant; or if the Department disagrees with the judge regarding the wording of a summary (that is, if the Department believes that the scope of summary required by the court will compromise national security). Interlocutory appeal is also authorized when the court refuses to make the finding permitted by subsection (e)(2). Because the alien is to remain in custody during such an appeal, the Court of Appeals must hear the matter as expeditiously as possible. When the Department appeals, the entire record must be transmitted to the Court of Appeals under seal and the court shall hear the matter ex parte.
Section 502(f) provides that in any case in which the Department's application is approved, the court shall order a special removal hearing for the purpose of determining whether the alien in question has engaged in terrorist activity. Subsection (f) provides that ``[i]n accordance with subsection (e), the alien shall be given reasonable notice of the nature of the charges against him and a general account of the basis for the charges.'' This cross-reference is intended to make clear that subsection (f) is not to be construed as requiring that information be given to the alien about the nature of the charges if such information would reveal the matters that are to be introduced in camera. The special removal hearing must be held as expeditiously as possible.
Section 502(g) provides that the special removal hearing shall be held before the same judge who approved the Department of Justice's application unless the judge becomes unavailable due to illness or disability.
Section 502(h) sets out the rights to be afforded to the alien at the special removal hearing. The hearing shall be open to the public, the alien shall have the right to be represented by counsel (at government expense if he cannot afford representation), and to introduce evidence in his own behalf. Except as provided in section 502(j) regarding presentation of evidence in camera and ex parte, the alien also shall have a reasonable opportunity to examine the evidence against him and to cross-examine adverse witnesses. As in the case of administrative proceedings under the INA and civil proceedings generally, the alien may be called as a witness by the Department of Justice. A verbatim record of the proceedings and of all evidence and testimony shall be kept.
Section 502(i) provides that either the alien or the government may request the issuance of a subpoena for witnesses and documents. A subpoena request may be made ex parte, except that the judge must inform the Department of Justice where the subpoena sought by the alien threatens disclosure of evidence or the source of evidence which the Department of Justice has introduced or proffered for introduction in camera and ex parte. In such cases, the Department of Justice shall be given a reasonable opportunity to oppose the issuance of a subpoena and, if necessary to protect the confidentiality of the evidence or its source, the judge may, in his discretion, hear such opposition in camera. A subpoena under section 502(i) may be served anywhere in the United States. Where the alien shows an inability to pay for the appearance of a necessary witness, the court may order the costs of the subpoena and witness fee to be paid by the government from funds appropriated for the enforcement of title II of the INA. Section 502(i) states that it is not intended to allow the alien access to classified information.
Section 502(j) provides that any evidence which has been summarized pursuant to section 502(e)(1) may be introduced into the record, in documentary or testimonial form, in camera and ex parte. The section also permits the introduction of relevant classified information if the court has made the finding permitted by subsection (e)(2). While the alien and members of the public would be aware that evidence was being submitted in camera and ex parte, neither the alien nor the public would be informed of the nature of the evidence except as set out in section 502(e)(1). For example, if the Department of Justice sought to present in camera and ex parte evidence through live testimony, the courtroom could be cleared of the alien, his counsel, and the public while the testimony is presented. Alternatively, the court might hear the testimony in chambers attended by only the reporter, the government's counsel, and the witness. In the case of documentary evidence, sealed documents could be presented to the court without examination by the alien or his counsel (or access by the public).
While the Department of Justice does not have to present evidence in camera and ex parte, even if it previously has received authorization to do so, it is contemplated that ordinarily much of the government's evidence (or at least the crucial portions thereof) will be presented in this fashion rather than in open court. The right to present evidence in camera and ex parte will have been determined in the ex parte proceedings before the court pursuant to subsections (a) through (c) of section 502.
Section 502(k) provides that evidence introduced in open session or in camera and ex parte may include all or part of the information that was presented at the earlier ex parte proceedings. If the evidence is to be introduced in camera and ex parte, the attorney for the Department of Justice could refer the judge to such evidence in the transcript of the ex parte hearing and ask that it be considered as evidence at the removal hearing itself. The Department might present evidence in open court rather than in camera and ex parte as a result of changed circumstances, for example, where the source whose life was at risk had died before the hearing or if the Department believes that a public presentation of the evidence might have a deterrent effect on other terrorists. In any event, once the Department of Justice has received authorization to present evidence in camera and ex parte, its decision whether to do so is purely discretionary and is not subject to review at the time of the special removal hearing. Of course, the disclosure of any classified information requires appropriate consultation with the originating agency.
Section 502(l) provides that following the introduction of evidence, the attorney for the Department of Justice and the attorney for the alien shall be given fair opportunity to present argument as to whether the evidence is sufficient to justify the alien's removal. At the judge's discretion, in camera and ex parte argument by the Department of Justice attorney may be heard regarding evidence received in camera and ex parte.
Section 502(m) provides that the Department of Justice has the burden of showing that the evidence is sufficient. This burden is not satisfied unless the Department establishes by clear and convincing evidence--the standard of proof applicable in a deportation hearing--that the alien has engaged in terrorist activity. If the judge finds that the Department has met that burden, the judge must order the alien removed. In cases in which the alien has been shown to have engaged in terrorist activity, the judge has no authority to decide that removal would be unwarranted. If the alien was a resident alien granted release, the court is to order the Attorney General to take the alien into custody.
Section 502(n)(1) provides that the judge must render his decision as to the alien's removal in the form of a written order. The order must state the facts found and the conclusions of law reached, but shall not reveal the substance of any evidence received in camera or ex parte.
Section 502(n)(2) provides that either the alien or the Department of Justice may appeal the judge's decision to the United States Court of Appeals for the District of Columbia Circuit. Any such appeal must be filed within 20 days, and during this period the order shall not be executed. Information received in camera and ex parte at the special removal hearing shall be transmitted to the Court of Appeals under seal. The Court of Appeals must hear the appeal as expeditiously as possible.
Section 502(n)(3) sets out the standard of review for proceedings in the Court of Appeals. Questions of law are to be reviewed de novo, but findings of fact may not be overturned unless clearly erroneous. This is the usual standard in civil cases.
Section 502(o) provides that in cases in which the judge decides that the alien should not be removed, the alien must be released [[Page S6209]] from custody. There is an exception for aliens who may be arrested and taken into custody pursuant to title II of the INA as aliens subject to deportation. For such aliens, the issues of release and/or circumstances of continued detention would be governed by the pertinent provisions of the INA.
Section 502(p) provides that following a decision by the Court of Appeals, either the alien or the government may seek a writ of certiorari in the Supreme Court. In such cases, information submitted to the Court of Appeals under seal shall, if transmitted to the Supreme Court, remain under seal.
Section 502(q) sets forth the normal right the Government has to dismiss a removal action at any stage of the proceeding.
Section 502(r) acknowledges that the United States retains its common law privileges.
Section 503 (Designation of Judges)
Section 503 establishes the special court to consider terrorist removal cases under section 502, patterned on the special court created under the Foreign Intelligence Surveillance Act, 50 U.S.C. 1801 et seq. Section 503(a) provides that the court will consist of five federal district judges chosen by the Chief Justice of the United States from five different judicial circuits. One of these judges shall be designated as the chief or presiding judge. Should the Chief Justice determine it appropriate, he could designate as judges under this section some of those that he has designated pursuant to section 1803(a) of title 50, United States Code for the Foreign Intelligence Surveillance Court. The presiding judge shall promulgate rules for the functioning of the special court. The presiding judge also shall be responsible for assigning cases to the various judges. Section 503(c) provides that judges shall be appointed to the special court for terms of five years, except for the initial appointments the terms of which shall vary from one to five years so that one new judge will be appointed each year. Judges may be reappointed to the special court.
Section 503(b) provides that all proceedings under section 502 are to be held as expeditiously as possible. Section 503(b) also provides that the Chief Justice, in consultation with the Attorney General, the Director of Central Intelligence and other appropriate officials, shall provide for the maintenance of appropriate security measures to protect the ex parte special removal applications, the orders entered in response to such applications, and the evidence received in camera and ex parte sufficient to prevent disclosures which could compromise national security.
Section 504 (Miscellaneous Provisions)
Section 504 contains the title's miscellaneous provisions. Section 504(a) provides that following a final determination that the alien terrorist should be removed (that is, after the special removal hearing and completion of any appellate review), the Attorney General may retain the alien in custody
(or if the alien was released, apprehend and place the alien in custody) until he can be removed from the United States. The alien is provided the right to choose the country to which he will be removed, subject to the Attorney General's authority, in consultation with the Secretary of State, to designate another country if the alien's choice would impair a United States treaty obligation (such as an obligation under an extradition treaty) or would adversely affect the foreign policy of the United States. If the alien does not choose a country or if he choose a country deemed unacceptable, the Attorney General, in coordination with the Secretary of State, must make efforts to find a country that will take the alien. The alien may, at the Attorney General's discretion, be kept in custody until an appropriate country can be found, and the Attorney General shall provide the alien with a written report regarding such efforts at least once every six months. The Attorney General's determinations and actions regarding execution of the removal order are not subject to direct or collateral judicial review, except for a claim that continued detention violates the alien's constitutional rights. The alien terrorist shall be photographed and fingerprinted and advised of the special penalty provisions for unlawful return before he is removed from the United States.
Section 504(b) provides that, notwithstanding section 504(a), the Attorney General may defer the actual removal of the alien terrorist to allow the alien to face trial on any State or federal criminal charge (whether or not related to his terrorist activity) and, if convicted, to serve a sentence of confinement. Section 504(b)(2) provides that pending the service of a State or federal sentence of confinement, the alien terrorist is to remain in the Attorney General's custody unless the Attorney General determines that the alien can be released to the custody of State authorities for pretrial confinement in a State facility without endangering national security or public safety. It is intended that where the alien terrorist could possibly secure pretrial release, the Attorney General shall not release the alien to a State for pretrial confinement. Section 503(b)(3) provides that if an alien terrorist released to State authorities is subsequently to be released from state custody because of an acquittal in the collateral trial, completion of the alien's sentence of confinement, or otherwise, the alien shall immediately be returned to the custody of the Attorney General who shall then proceed to effect the alien's removal from the United States.
Section 504(c) provides that for purposes of sections 751 and 752 of title 18 (punishing escape from confinement and aiding such an escape), an alien in the Attorney General's custody pursuant to this new title--whether awaiting or after completion of a special removal hearing--shall be treated as if in custody by virture of a felony arrest. Accordingly, escape by a or aiding the escape of an alien terrorist will be punishable by imprisonment for up to five years.
Section 504(d) provides that an alien in the Attorney General's custody pursuant to this new title--whether awaiting or after completion of a special removal hearing--shall be given reasonable opportunity to receive visits from relatives and friends and to consult with his attorney. Determination of what is ``reasonable'' usually will follow the ordinary rules of the facility in which the alien is confined.
Section 504(d) also provides that when an alien is confined pursuant to this new title, he shall have the right to contact appropriate dipomatic or consular officers of his country of citizenship or nationality. Moreover, even if the alien makes no such request, subsection (d) directs the Attorney General to notify the appropriate embassy of the alien's detention.
Subsection 201(c) sets out three conforming amendments to the INA. First, section 106 of the INA, 8 U.S.C. Sec. 1105a, is amended to provide that appeals from orders entered pursuant to section 235(c) of the Act (pertaining to summary exclusion proceedings for alien spies, saboteurs, and terrorists) shall be to the United States Court of Appeals for the District of Columbia Circuit. Thus, in cases involving alien terrorists, the same court of appeals shall hear both exclusion and deportation appeals and will develop unique expertise concerning such cases.
Second, section 276 of the INA, 8 U.S.C. Sec. 1326, is amended to add increased penalties for an alien entering or attempting to enter the United States without permission after removal under the new title or exclusion under section 235(c) for terrorist activity. For aliens unlawfully re-entering or attempting to reenter the United States, the section presently provides for a fine pursuant to title 18 and/or imprisonment for up to two years (five years when the alien has been convicted of a felony in the United States, or 15 years when convicted of an ``aggravated felony''); the bill increases to a mandatory ten years the term of imprisonment for re-entering alien terrorists.
Finally, section 106 of the INA, 8 U.S.C. Sec. 1105a, is amended to strike subsection (a)(1) regarding habeas corpus review of deportation orders. Originally enacted in 1961 to make clear that the exclusive provision for review of final deportation orders through petition to the courts of appeals was not intended to extinguish traditional writs of habeas corpus in cases of wrongful detention, the subsection has been the source of confusion and duplicative litigation in the courts. Congress never intended that habeas corpus proceedings be an alternative to the process of petitioning the courts of appeals for review of deportation orders. Elimination of subsection (a)(10) will make clear that any review of the merits of a deportation order or the denial of relief from deportation is available only through petition for review in the courts of appeals, while leaving unchanged the traditional writ of habeas corpus to examine challenges to detention arising from asserted errors of constitutional proportions.
Subsection 201(d) provides that the new provisions are effective upon enactment and ``apply to all aliens without regard to the date of entry or attempted entry into the United States.'' Aliens may not avoid the special removal process on the grounds that either their involvement in terrorist activity or their entry into the United States occurred before enactment of the new title. Upon enactment, the new title will be available to the Attorney General for removal of any and all alien terrorists when classified information is involved.
Section 202.
This section makes additional changes to the Immigration and Naturalization Act (INA) besides those contained in section 201. It improves the government's ability to deny visas to alien terrorist leaders and to deport non-resident alien terrorists under the INA.
Subsection 202(a) amends the excludability provisions of the INA relating to terrorism activities (section 212(a)(3)(B) of the INA (8 U.S.C. 1182(a)(3)(B)). Most of the changes are clarifying in nature, but a few are substantive. The changes are:
(1) ``Terrorist'' is changed to ``terrorism'' in most instances in order to direct focus on the nature of the activity itself and not the character of the particular individual perpetrator.
(2) Definitions of ``terrorist organization'' and
``terrorism'' are added. The definition of ``terrorist organization'' includes subgroups. Although a terrorist organization may perform certain charitable activities, e.g., run a hospital, this does not remove its characterization or being a terrorist organization if it, or any of its subgroups, engages in terrorist organization if it, or any of its subgroups, engages in terrorism activity. The definition of ``terrorism'' describes terrorism as the ``premeditated politically motivated violence perpetrated against noncombat targets.'' This is consistent with existing law found elsewhere in the federal code. See, e.g., 22 U.S.C. 2656f(d).
(3) In order to make ``representatives'' of certain specified terrorist organizations excludable, the term has been expanded to [[Page S6210]] cover any person who directs, counsels, commands or induces the organization or its members to engage in terrorism activity. The terms ``counsels, commands, or induces'' are used in 18 U.S.C. 2. Presently, only the officers, officials, representatives and spokesman are deemed to be excludable. This change expands coverage to encompass those leaders of the group who may not hold formal titles and those who are closely associated with the group and exert leadership over the group but may not technically be a member. This is not a mere membership provision.
(4) In order to make the ``leaders'' of more terrorist organizations excludable without having to establish that they personally have engaged in terrorist activity, the revision gives the President authority to designate terrorist organizations based on a finding that they are detrimental to the interests of the United States. (Presently, only the PLO is expressly cited in the existing statute.) Implicit with the right to designate is the authority to remove an organization that the President has previously designated. By giving the President this authority, which is similar to subsection (f) of section 212 (8 U.S.C. 212(f)), the President can impose stricter travel limitations on the leaders of terrorist organizations who desire to visit the United States. For a leader of a designated terrorist organization to obtain a visa, he would have to solicit a waiver from the Attorney General under subsection 212(d)(3) (8 U.S.C. 1182(d)(3)) to obtain temporary admission. In deciding whether or not to grant the waiver, the Attorney General could, should he/she decide to grant a waiver, impose whatever restrictions are warranted on the alien's presence in the United States.
(5) The words ``it had been'' are inserted in the first sentence of the definition of ``terrorism activity'' in order to make clear that it is United States law (federal or state) which is used to determine whether overseas violent activity is considered criminal.
(6) The term ``weapon'' is added to clause (V)(b) in the definition of ``terrorist activity'' in order to cover those murders carried out by deadly and dangerous devices other than firearms or explosives (e.g., a knife).
(7) The knowledge requirement in clause (III) of the definition of ``engage in terrorism activity'' was deleted as unnecessary, as similar language has been added in the beginning of the definition.
(8) The term ``documentation or'' has been add to ``false identification'' in clause (III) of the definition of
``engage in terrorism activity'' to encompass other forms of false documentation that might be provided to facilitate terrorism activity. The term ``false identification'' would include stolen, counterfeit, forged and falsely made identification documents.
Subsection 202(b) amends section 241(a)(4)(B) of the INA (8 U.S.C. 1251(a)(4)(B)) to reflect the change in section 212(a)(3)(B) (8 U.S.C. 1182(a)(3)(B)) from ``terrorist'' to
``terrorism.''
Subsection 202(c) adds a sentence to section 291 of the INA
(8 U.S.C. 1361) to clarify that discovery by the alien in a deportation proceeding is limited only to those documents in the INS file relating to the alien's entry. Section 291 was never intended to authorized discovery beyond this limited category of documents.
Subsection 202(d) makes an important change to section 242(b)(3) of the INA (8 U.S.C. 1252(b)(3)). First, in the case of non-resident aliens it precludes the alien's access to any classified information that is being used to deport them. Secondly, it denies non-resident aliens any rights under 18 U.S.C. 3504 (relating to access concerning sources of evidence) and 50 U.S.C. 1801 et seq. (relating to the Foreign Intelligence Surveillance Act) during their deportation.
Section 203.
Section 203 amends the confidentiality provisions contained in the Immigration and Nationality Act (INA) for an alien's application relating to legalization (section 245A(c)(5) of the INA (8 U.S.C. 1255(a)(c)(5)) or special agricultural worker status (section 210(b) (5) and (6) of the INA (8 U.S.C. 1160(b) (5) and (6)). At present, it is very difficult to obtain crucial information contained in these files, such as fingerprints, photographs, addresses, etc., when the alien becomes a subject of a criminal investigation. In both the World Trade Center bombing and the killing of CIA personnel on their way to work at CIA Headquarters, the existing confidentiality provisions hindered law enforcement efforts.
Subsection 203(a) amends the confidential provisions for legalization files. It permits access to the file if a federal court finds that the file relates to an alien who has been killed or severely incapacitated or is the suspect of an aggravated felony. Subsection 203(b) makes comparable amendments to the confidentiality requirements relating to special agricultural worker status.
Section 301.
Section 301 authorizes the government to regulate of prohibit any person or organization within the United States and any person subject to the jurisdiction of the United States anywhere from raising or providing funds for use by any foreign organization which the President has designated to be engaged in terrorism activities. Such designation would be based on a Presidential finding that the organization (1) engages in terrorism activity as defined in the Immigration and Nationality Act and (2) its terrorism activities threaten the national security, foreign policy, or economy of the United States.
The fund-raising provision provides a licensing mechanism under which funds may be provided to a designated organization based on a showing that the money will be used exclusively for religious, charitable, literary, or educational purposes. It includes both administrative and judicial enforcement procedures, as well as a special classified information procedures applicable to certain types of civil litigation. The term ``person'' is defined to include individuals, partnerships, associations, groups, corporations or other organizations.
Subsection 301(a) creates a new section 2339B in title 18, United States Code, entitled ``Fund-raising for terrorist organizations.''
Subsection 2339B(a) sets forth the congressional findings and purposes for the fund-raising statute.
Subsection 2339B(b) gives the President the authority to issue regulations to regulate or prohibit any person within the United States or any person subject to the jurisdiction of the United States anywhere from raising or providing funds for use by, or from engaging in financial transactions with, any foreign organization which the President, pursuant to subsection 2339B(c), has designated to be engaged in terrorism activities.
Subsection 2339B(c)(1) grants the President the authority to designate any foreign organization, if he finds that (1) the organization engages in terrorism activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act
(8 U.S.C. 1182(a)(3)(B)) and (2) the organization's terrorism activities threaten the national security, foreign policy or economy of the United States. Subsection 2339B(c)(2) grants the President the authority to designate persons who are raising funds for or are acting for or on behalf of a foreign organization designated pursuant to subsection (c)(1).
Such designations must be published in the Federal Register. The President is authorized to revoke any designation. A designation under subsection (c)(1) is conclusive and is not reviewable by a court in a criminal prosecution.
Subsection 2339B(d) sets forth the prohibited activities. Paragraph (1) makes it unlawful for any person within the United States, or any person subject to the jurisdiction of the United States anywhere in the world, to raise, receive, or collect funds on behalf of or to furnish, give, transmit, transfer, or provide funds to or for a organization designated by the President unless such activity is done in accordance with a license granted under subsection 2339B(e). Paragraph (2) makes it unlawful for any person within the United States or any person subject to the jurisdiction of the United States anywhere in the world, acting for or on behalf of a designated organization, (1) to transmit, transfer, or receive any funds raised in violation of subsection 2339B(d)(1); (2) to transmit, transfer or dispose of any funds in which any designated organization has an interest; or (3) to attempt to do any of the foregoing. The latter provision serves to make it a crime for any person within the United States, or any person subject to the jurisdiction of the United States anywhere, to transmit, transfer or dispose of on behalf of a designated organization any funds in which such organization has an interest until after a license has been issued.
Subsection 2339B(e) requires that any person who desires to solicit funds or transfer funds to any designated organization must obtain a license from the Secretary of the Treasury. Any license issued by the Secretary shall be granted only when the Secretary is satisfied that the funds are intended exclusively for religious, charitable, literacy, or educational purposes and that any recipient in any fund-raising chain has effective procedures in place to insure that the funds will be used exclusively for religious, charitable, literacy, or educational purposes and will not be used to affect a transfer of funds to be used in terrorism activity. The burden is on the license applicant to convince the Secetary that such procedures do in fact exist. A licensee is required to keep books and records and make such books available for inspection upon the Secretary's request. A licensee is also required to have an agreement with any recipient which permits the Secretary to inspect the recipient's records.
Subsection 2339B(f) requires that a financial institution which becomes aware that it is in possession of or that it has control over funds in which a designated organization has an interest must ``freeze'' such funds and notify the Secretary of the Treasury. A civil penalty is provided for failure to freeze such funds or report the required information to the Secretary. The term ``financial institution'' has the meaning prescribed in 31 U.S.C. 5312(a)(2) and regulations promulgated thereunder. It is the same definition as utilized in the money laundering statute, see 18 U.S.C. 1956(c)(6).
Subsection 2339B(g) divides investigative responsibility for the section between the Secretary of the Treasury and the Attorney General. This provision thus permits the combination of the administrative and financial expertise of Treasury's Office of Foreign Assets Control (OFAC) and the intelligence capabilities and criminal investigative techniques of the Federal Bureau of Investigation (FBI) to be combined together in a highly coordinated manner in order to effectively enforce the requirements of this section while protecting the equities of the nation's national security intelligence gathering community. The provision reflects, as does
[[Page S6211]] section 407 of the bill, the FBI's role as the lead federal agency for the investigation and prosecution of terrorist activity as well as the prime federal intelligence agency for gathering national security information within the United States.
Section 2339B(h) gives authority to the Secretary of the Treasury and the Attorney General to require recordkeeping, hold hearings, issue subpoenas, administer oaths and receive evidence.
Subsection 2339B(i) sets forth the penalties for section 2339B. Any person who knowingly violates subsection 2339B(d) can be fined under title 18, United States Code, or imprisoned for up to ten years, or both. A person who fails to keep records or make records available to the Secretary of the Treasury upon his/her request is subject to a civil penalty of the greater of $50,000 or twice the amount of money which would have been documented had the books and records been properly maintained. A financial institution which fails to take the actions required pursuant to subsection (f)(1) is subject to civil penalty of the greater of $50,000 or twice the amount of money of which the financial institution was required to retain possession or control. Any person who violates any license, order, direction, or regulation issued pursuant to the section is subject to a civil penalty of the greater of $50,000 per violation or twice the value of the violation. A person who intentionally fails to maintain or make available the required books or records also commits a crime subject to a fine under title 18, United States Code, or imprisonment for up to five years, or both. Any organization convicted of an offense under subsections 2339B(i)(1) or (3) shall forfeit any charitable designation it might have received under the Internal Revenue Code.
Subsection 2339B(j)(1) gives the Attorney General the right to seek an injunction to block any violation of section 2339B. An injunctive proceeding is normally governed by the Federal Rules of Civil Procedure, but if the respondent is under indictment, discovery is to be governed by the Federal Rules of Criminal Procedure.
Subsection 2339B(k) states that there is extraterritorial jurisdiction over activity prohibited by section 2339B which is conducted outside the United States. This insures that foreign persons outside the United States are covered by this statute if they aid, assist, counsel, command, induce or procure, or conspire with, persons within the United States or persons subject to the jurisdiction of the United States anywhere in the world to violate the fund-raising prohibition
(18 U.S.C. 2339B, 2, and 371).
Subsection 2339B(l) sets forth a special process to protect classified information when the government is the plaintiff in civil proceedings to enforce section 2339B.
Subsection 2339B(m) sets forth the definition of
``classified information,'' ``financial institution,''
``funds,'' ``national security,'' ``person,'' and ``United States.'' Funds are defined to include all currency, coin, and any negotiable or registered security that can be used as a method of transferring money.
Subsection 301(c) further amends section 212(a)(3)(B)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)) to include leaders of any terrorist organization designated under the fund-raising statute (18 U.S.C. 2339B) as an aliens deemed to be excludable under the immigration laws.
Subsection 301(d) makes the special classified information provisions of 18 U.S.C. 2339B(k) applicable to similar civil proceedings under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.).
Section 401.
This section states that title IV may be cited as the
``Marking of Plastic Explosives for Detection Act.''
Section 402.
This section sets forth the congressional findings concerning the criminal use of plastic explosives and the prevention of such use through the marking of plastic explosives for the purpose of detection. This section also states that the purpose of the legislation is to implement the Convention on the Marking of Plastic Explosives for the Purpose of Detection, Done at Montreal on 1 March 1991 (the Convention).
Section 403.
This section sets forth three new definitions for 18 U.S.C. 841. It amends 18 U.S.C. 841 by adding a new subsection (o) which defines the term ``Convention on the Marking of Plastic Explosives.'' The definition provides the full title of the Convention, ``Convention on the Marking of Plastic Explosives for the Purpose of Detection, Done at Montreal on 1 March 1991.'' The definition eliminates the need to repeat the full title of the Convention each time it is used in the bill.
Section 403 also amends section 841 by adding a new subsection (p) which defines the term ``detection agent.'' The term has been defined to include four specified chemical substances and any other substance specified by the Secretary of the Treasury by regulation. The four specified chemical substances, ethylene glycol dinitrate (EGDN), 2,3-dimethyl-2-3-dinitrobutane (DMNB), paramononitrotoluene (p-MNT), and ortho-mononitrotoluene (o-MNT), are in Part 2 of the Technical Annex to the Convention. The required minimum concentration of the four substances in the finished plastic explosives was also taken from the Technical Annex. The definition of ``detection agent'' has been drafted to require that the particular substance be introduced into a plastic explosive in such a manner as to achieve homogeneous distribution in the finished explosive. The purpose of homogeneous distribution is to assure that the detection agent can be detected by vapor detection equipment.
New section 841(p)(5) would permit the Secretary of the Treasury to add other substances to the list of approved detection agents by regulation, in consultation with the Secretaries of State and Defense. Permitting the Secretary to designate detection agents other than the four listed in the statute would facilitate the use of other substances without the need for legislation. Only those substances which have been added to the table in Part 2 of the Technical Annex, pursuant to Articles VI and VII of the Convention, may be designated as approved detection agents under section 841(p)(5). Since the Department of Defense (DOD) is the largest domestic consumer of plastic explosives (over 95 percent of domestic production), it is appropriate that DOD provide guidance to the Treasury Department in approving substances as detection agents.
Finally, section 403 adds a new subsection (q) to section 841 which defines the term ``plastic explosive.'' The definition is based on the definition of ``explosives'' in Article I of the Convention and Part I of the Technical Annex.
Section 404.
This section adds subsections (l)-(o) to 18 U.S.C. Sec. 842 proscribing certain conduct relating to unmarked plastic explosives.
Section 842(l) would make it unlawful for any person to manufacture within the United States any plastic explosive which does not contain a detection agent.
Section 842(m) would make it unlawful for any person to import into the United States or export from the United States any plastic explosive which does not contain a detection agent. However, importations and exportations of plastic explosives imported into or manufactured in the United States prior to the effective date of the Act by Federal law enforcement agencies or the National Guard of any State, or by any person acting on behalf of such entities, would be exempted from this prohibition for a period of 15 years after the Convention is entered into force with respect to the United States. This provision implements Article IV, paragraph 3, of the Convention. Section 842(m) is drafted to specifically include the National Guard of any State and military reserve units within the 15-year exemption.
The purpose of the 15-year exemption is to give the military and Federal law enforcement agencies a period of 15 years to use up the considerable stock of unmarked plastic explosives they now have on hand. This exception would also permit DOD to export its unmarked plastic explosives to United States forces in other countries during the 15-year period.
Section 842(n)(1) would make it unlawful for any person to ship, transport, transfer, receive, or possess any plastic explosive which does not contain a detection agent. Section 842(n)(2)(A) would provide an exception to the prohibition of section 842(n)(1) for any plastic explosive which was imported, brought into, or manufactured in the United States prior to the effective date of the Act by any person during a period not exceeding three years after the effective date of the Act. This provision implements Article IV, paragraph 2, of the Convention, and provides an exemption from the prohibitions of section 842(n)(1) for any person, including State and local governmental entities and other Federal agencies, for a period of three years after the effective date of the Act.
Section 842(n)(2)(B) would provide an exception to the prohibition of section 842(n)(1) for any plastic explosive which was imported, brought into, or manufactured in the United States prior to the effective date of the Act by any Federal law enforcement agency or the United States military or by any person acting on behalf of such entities for a period of 15 years after the date of entry into force of the Convention with respect to the United States. This provision implements Article IV, paragraph 3, of the Convention. The provision was drafted to specifically include the National Guard of any State and military reserve units within the 15-year exemption.
Section 842(o) would make it unlawful for any person, other than a Federal agency possessing any plastic explosive on the effective date of the Act, to fail to report to the Secretary of the Treasury within 120 days from the effective date of the Act the quantity of plastic explosive possessed, the manufacturer or importer of the explosive, any identifying markings on the explosive, and any other information as required by regulation. This provision implements Article IV, paragraph 1, of the Convention, which requires each State Party to take all necessary measures to exercise control over the possession and transfer of possession of unmarked explosives which have been manufactured in or imported into its territory prior to the entry into force of the Convention with respect to that State. This provision was drafted to specifically include the National Guard of any State and military reserve units as agencies which are exempt from the reporting requirement.
Section 405.
This section amends 18 U.S.C. 844(a), which provides penalties for violating certain provisions of 18 U.S.C. 842. The amended section would add sections 842(l)-(o) to the list of offenses punishable by a fine under 18 U.S.C. 3571 of not more than $250,000 in the case of [[Page S6212]] an individual, and $500,000 in the case of an organization, or by imprisonment for not more than 10 years, or both.
Section 406.
This section amends 18 U.S.C. 845(a)(1), which excepts from the provisions of 18 U.S.C. Chapter 40 any aspect of the transportation of explosive materials regulated by the United States Department of Transportation. The purpose of the amendment is to make it clear that the exception in section 845(a)(1) applies only to those aspects of such transportation relating to safety. This amendment would overcome the effect of the adverse decisions in United States v. Petrykievicz, 809 F. Supp. 794 (W.D. Wash. 1992), and United States v. Illingworth, 489 F.2d 264
(10th Cir. 1973). In those cases, the court held that the language of section 845(a)(1) resulted in the defendant's exemption from all the provisions of the chapter, including the requirement of a license or permit to ship, transport, or receive explosives in interstate or foreign commerce.
The list of offenses which are not subject to the exceptions of section 845(a) has also been amended to include the new plastic explosives offenses in sections 842(l)-(m).
Section 406 also adds a new subsection (c) to 18 U.S.C. 845 to provide certain affirmative defenses to the new plastic explosives offenses in sections 842(l)-(o). This provision implements Part 1, paragraph II, of the Technical Annex to the Convention, which relates to exceptions for limited quantities of explosives. The affirmative defenses of 18 U.S.C. 845(c) could be asserted by defendants in criminal prosecutions, persons having an interest in explosive materials seized and forfeited pursuant to 18 U.S.C. 844(c), and persons challenging the revocation or denial of their explosives licenses or permits pursuant to 18 U.S.C. 845(c).
The three affirmative defenses specified in section 845(c)(1) all relate to research, training, and testing, and require that the proponent provide evidence that there was a
``small amount'' of plastic explosive intended for and utilized solely in the specified activities. The representatives to the Conference which resulted in the Convention agreed that the amount of unmarked explosive permitted to be used for these purposes should be
``limited,'' but were unable to agree on a specific quantity. The Secretary of the Treasury may issue regulations defining what quantity of plastic explosives is a ``small amount'' or may leave it up to the proponent of the affirmative defense to prove that a ``small amount'' of explosives was imported, manufactured, possessed, etc. The statute is drafted to require that the proponent establish the affirmative defense by a preponderance of the evidence.
Section 845(c)(2) would create another affirmative defense to the plastic explosives offenses, which implements Article IV of the Convention, and Part I, Paragraph II(d), of the Technical Annex. This provision would require that proponent to prove, by a preponderance of the evidence, that the plastic explosive was, within three years after the date of entry into force of the Convention with respect to the United States, incorporated in a military device that is intended to become or has become the property of any Federal military or law enforcement agency. Furthermore, the proponent must prove that the plastic explosive has remained an integral part of the military device for the exemption to apply. This requirement would discourage the removal of unmarked plastic explosives from bombs, mines, and other military devices manufactured for the United States military during the three-year period. The provision was drafted to specifically include the National Guard of any State and military reserve units within the exemption. The term
``military device'' has been defined in accordance with the definition of that term in Article I of the Convention.
Requiring that the exceptions of section 845(c) be established as an affirmative defense would facilitate the prosecution of violations of the new plastic explosives provisions by terrorists and other dangerous criminals in that the Government would not have to bear the difficult, if not impossible, burden of proving that the explosives were not used in one of the research, training, testing, or military device exceptions specified in the statute. The proponent to establish the existence of one of the exceptions.
The approach taken in section 845(c) is patterned after the affirmative defense provision in 18 U.S.C. 176 and 177, relating to the use of biological weapons.
Section 407.
This section provides the Attorney General investigative authority over new subsections (m) and (n) of section 842, relating to the importation, exportation, shipping, transferring, receipt or possession of unmarked plastic explosives, when such provisions are violated by terrorist/revolutionary groups or individuals. This authority is consistent with the existing March 1, 1973, memorandum of understanding on the investigation of explosives violations between the Departments of Justice and the Treasury and the United States Postal Service. The section also makes it clear that, consistent with current national policy, the Federal Bureau of Investigation (FBI) is the lead Federal agency for investigating all violations of Federal law involving terrorism when the FBI has been given by statute or regulation investigative authority over the relevant offense. See 28 U.S.C. 523 and 28 C.F.R. 0.85(1).
Section 408.
This section provides that the amendments made by title IV shall take effect one year after the date of enactment. The one year delay should be adequate for manufacturers to obtain sources of one of the specified detection agents and to reformulate the plastic explosives they manufacture to include a detection agent.
Section 501.
Section 501 expands the scope and jurisdictional bases under 18 U.S.C. 831 (prohibited transactions involving nuclear materials). It is an effort to modify current law to deal with the increased risk stemming from the destruction of certain nuclear weapons that were once in the arsenal of the former Soviet Union and the lessening of security controls over peaceful nuclear materials in the former Soviet Union. Among other things, the bill expands the definition of nuclear materials to include those materials which are less than weapons grade but are dangerous to human life and/or the environment. It also expands the jurisdictional bases to reach all situations where a U.S. national or corporation is the victim or perpetrator of an offense. The bill expressly covers those situations where a treat to do some form of prohibited activity is directed at the United States Government.
Subsection 501(a)(1) sets forth a series of findings. Subsection 501(a)(2) sets forth the purpose.
Subsection 501(b) makes many technical changes to section 831 of title 18, United States Code. The ones of substance are:
(1) Paragraph (1) adds ``nuclear byproduct material'' to the scope of subsection 831(a).
(2) Paragraph (2) ensures coverage of situations under subsection 831(a)(1)(A) where there is substantial damage to the environment.
(3) Paragraph (3) rewrites subsection 831(a)(1)(B) in the following ways:
(A) drops the requirement that the defendant ``know'' that circumstances exist which the dangerous to life or property. If such circumstances are created through the intentional actions of the defendant, criminal sanctions are appropriate due to the inherently dangerous nature of nuclear material and the extraordinary risk of harm created.
(B) adds substantial damage to the environment; and
(C) adds language (i.e., ``such circumstances are represented to the defendant to exist'') to cover the situation of sales by undercover law enforcement to prospective buyers of materials purported to be nuclear materials. This is comparable to the new 18 U.S.C. 21 created by section 320910 of Pub. L. 103-322 for undercover operations.
(4) Paragraph (4) expands the threat provision of subsection 831(a)(6) to cover threats to do substantial damage to the environment.
(5) Paragraph (5) expands the jurisdiction in subsection 831(c)(2) beyond those situations where the offender is a United States national. As revised, it includes all situations, anywhere in the world where a United States national is the victim of an offense or where the perpetrator or victim of the offense is a ``United States corporation or other legal entity.''
(6) Paragraph (6) drops the requirement in subsection 831(c)(3) that the nuclear material be for ``peaceful purposes'', i.e., non-military, and that it be in use, storage, or transport. Hence, the provision now reaches any alien who commits an offense under subsection 831(a) overseas and is subsequently found in the United States. Of course, if the target of the offense was a U.S. national or corporation or the U.S. Government there would be jurisdiction of the offense under another provision of subsection 831(c), even when the perpetrator is still overseas. The activities prohibited by subsection 831(a) are so serious that all civilized nations have recognized their obligations to confront this growing problem because of its inherent dangerousness.
(7) Paragraph (8) deletes the requirement for subsection 831(c)(4) that the nuclear materials being shipped to or from the United States be for peaceful purposes. Hence, military nuclear materials are now encompassed under subsection 831(c)(4). It also adds nuclear byproduct material to the provision.
(8) Paragraph (10) adds a new paragraph (5) to subsection 831(c) to ensure that there is federal jurisdiction when the governmental entity being threatened under subsection 831(a)(5) is the United States and when the threat under subsection 831(a)(6) is directed at the United States.
(9) Paragraph (11) deletes an outmoded requirement, so that all plutonium is now covered.
(10) Paragraph (14) adds ``nuclear byproduct material'' to the definitions as a new subsection 831(f)(2). Nuclear byproduct material means any material containing any radioactive isotope created through an irradiation process in the operation of a nuclear reactor or accelerator. This will extend the prohibitions of this statute to materials that are not capable of creating a nuclear explosion, but which, nevertheless, could be used to create a radioactive dispersal device capable of spreading highly dangerous radioactive material throughout an area.
(11) Paragraph (17) adds to subsection 831(f) the definitions for the terms ``national of the United States'' and ``United States corporation or other legal entity.''
Section 601.
This section deletes subsection (c) of the material support statute (18 U.S.C. 2339A(c)) enacted as part of the 1994 crime bill (Pub. L. 103-322). It would also correct erroneous statutory references and typographical errors (i.e., changes
``36'' to ``37,'' ``2331'' to ``2332,''
[[Page S6213]] ``2339'' to ``2332a,'' and ``of an escape'' to
``or an escape'').
Subsection 2339A(c) of title 18, United States Code, imposes an unprecedented and impractical burden on law enforcement concerning the initiation and continuation of criminal investigations under 18 U.S.C. 2339A. Specifically, subsection (c) provides that the government may not initiate or continue an investigation under this statute unless the existing facts reasonably indicate that the target knowingly and intentionally has engaged, is engaged, or will engage in a violation of federal criminal law. In other words, the government must have facts that reasonably indicate each element of the offense before it even initiates
(or continues) an investigation. The normal investigative practice is that the government obtains evidence which indicates that a violation may exist if certain other elements of the offense, particularly the knowledge or intent elements, are also present. The government then seeks to obtain evidence which establishes or negates the existence of the other elements. If such evidence is found to exist, the investigation continues to obtain the necessary evidence to prove its case beyond a reasonable doubt on every element.
As drafted, however, subsection (c) reverses the natural flow of a criminal investigation. It is an impediment to the effective use of section 2339A. Moreover, the provision would generate unproductive litigation which would only serve to delay the prosecution of any offender, drain limited investigative and prosecutive resources, and hinder efforts to thwart terrorism. It is the position of the Department of Justice that the investigative guidelines issued by the Attorney General adequately protect individual rights while providing for effective law enforcement.
Section 601 deletes subsection (c) retroactive to September 13, 1994, the date that the 1994 crime bill was signed into law. Since subsection (c) is procedural in nature, the retroactive nature of the proposed deletion does not pose a constitutional problem. It should suffice, however, to preclude a defendant from availing himself of subsection (c) in the event that the conduct charged in a subsequent indictment arose between September 13, 1994, and the enactment of section 601.
Section 102(c) of this Act also proposes to broaden the scope of the material support statute by incorporating, as one of the predicate offenses, the proposed statute relating to conspiracies within the United States to commit terrorist acts abroad.
Section 602.
This section would add coverage for threats to the weapons of mass destruction statute (18 U.S.C. 2332a). The offense of using a weapon of mass destruction (or attempting or conspiring to use such a weapon) was created by section 60023 of the Violent Crime Control and Law Enforcement Act of 1994
(P.L. 103-322). However, no threat offense was included. A threat to use such a weapon is a foreseeable tactic to be employed by a terrorist group. Further, it could necessitate a serious and costly government response, e.g. efforts to eliminate the threat, evacuation of a city or facility, etc. Accordingly, it seems clearly appropriate to make threatening to use a weapon of mass destruction a federal offense.
This section amends subsection (a) to include threats among the proscribed offenders. Further, it redesignates subsection
(b) of section 2332a as subsection (c) and provides a new subsection (b). The new subsection (b) ensures jurisdiction when a national of the United States outside the United States is the perpetrator of the threat offense.
Section 603.
Section 603 adds to the Racketeer Influenced and Corrupt Organizations (RICO) statute certain federal violent crimes relating to murder and destruction of property. These are the offenses most often committed by terrorists. Many violent crimes committed within the United States are encompassed as predicate acts for the RICO statute. However, RICO does not presently reach most terrorist acts directed against United States interests overseas. Hence, this section adds to RICO extraterritorial terrorism violations. When an organization commits a series of terrorist acts, a RICO theory of prosecution may be the optimal means of proceeding.
The offenses being added to as predicate acts to RICO are: 18 U.S.C. (relating to the destruction of aircraft), 37
(relating to violence at international airports), 115
(relating to influencing, impeding or retaliating against a federal official by threatening or injuring a family member), 351 (relating to Congressional or Cabinet officer assassination), 831 (relating to prohibited transactions involving nuclear materials as amended by section 501 of this bill), 844 (f) or (i) (relating to destruction by explosives or fire of government property or property affecting interstate or foreign commerce), 956 (relating to conspiracy to kill, kidnap, maim or injure property certain property in a foreign country as amended by section 102 of this bill), 1111 (relating to murder), 1114 (relating to murder of United States law enforcement officials,), 1116 (relating to murder of foreign officials, official guests, or internationally protected persons), 1203 (relating to hostage taking), 1361 (relating to willful injury of government property), 1363 (relating to destruction of property within the special maritime and territorial jurisdiction), 1751 (relating to Presidential assassination), 2280 (relating to violence against maritime navigation as amended by section 606 of this bill), 2281 (relating to violence against maritime fixed platforms), 2332 (relating to terrorist acts abroad against United States nationals), 2332a (relating to use of weapons of mass destruction as amended by section 602 of this bill), 2332b (relating to acts of terrorism transcending national boundaries created by section 101 of this bill), and 2339A (relating to providing material support to terrorists as amended by sections 102(c) and 601 of this bill), and 49 U.S.C. 46502 (relating to aircraft piracy.)
Section 604.
18 U.S.C. 1956(a)(2)(A) makes it a felony to transfer funds from the United States to a place outside the United States if the transfer is done with the intent to promote the carrying on of ``specified unlawful activity.'' The term
``specified unlawful activity'' is defined in section 1956(c)(7)(B) to include an offense against a foreign nation involving kidnapping, robbery, or extortion as well as certain offenses involving controlled substances and fraud by or against a foreign bank. It does not, however, include murder or the destruction of property by means of explosive or fire.
In recent investigations of international terrorist organizations, it has been discovered that certain of these organizations collect money in the United States and then transfer the money outside the United States for use in connection with acts of terrorism which may involve murder or destruction of property in foreign nations.
In order to prevent terrorist organizations from collecting money inside the United States which is used to finance murders and destruction of property, subsection (a) would add
``murder and destruction of property by explosive or fire'' to the list of specified unlawful activity in section 1956(c)(7)(B)(ii). This amendment would also apply to cases where the proceeds of any such murder or property destruction would be laundered in the United States.
Subsection (b) would add to the definitions of ``specified unlawful activity'' in section 1956(c)(7)(D) of title 18, United States Code, those violent federal offenses most likely to be violated by terrorists overseas. Hence, if during the course of perpetrating these violent offenses the terrorists transferred funds in interstate or foreign commerce to promote the carrying on of any of these offenses, they would also violate the money laundering statute. The offenses added are the same as those added to the RICO statute by section 603 of this bill, except for 18 U.S.C. 1203 (relating to hostage taking) which is already contained as a money laundering predicate. It should be noted that if section 603 of this bill is enacted, subsection 604(b) need not be enacted because any offense which is included as a RICO predicate is automatically a predicate also under the money laundering statute.
Section 605.
This section would add a number of terrorism-related offenses to 18 U.S.C. 2516, thereby permitting court-authorized interception of wire, oral, and electronic communications when the rigorous requirements of chapter 119
(including section 2516) are met. Presently, section 2516 contains a long list of felony offenses for which electronic surveillance is authorized. The list has grown periodically since the initial enactment of the section in 1968. As a result, coverage of terrorism-related offenses is not comprehensive. Section 2516 already includes such offenses as hostage taking under 18 U.S.C. 1203, train wrecking under 18 U.S.C. 1992, and sabotage of nuclear facilities or fuel under 42 U.S.C. 2284.
The instant proposal would add 18 U.S.C. 956, as amended by section 103 of this bill, and 960 (proscribing conspiracies to harm people or damage certain property of a foreign nation with which the United States is not at war and organizing or participating in from within the United States an expedition against a friendly nation), 49 U.S.C. 46502 (relating to aircraft piracy), and 18 U.S.C. 2332 (relating to killing United States nationals abroad with intent to coerce the government or a civilian population). It would also add 18 U.S.C. 2332a (relating to offenses involving weapons of mass destruction), 18 U.S.C. 2332b (relating to acts of terrorism transcending national boundaries, which offense is created by section 101 of this bill), 18 U.S.C. 2339A (relating to providing material support to terrorists), and 18 U.S.C. 37
(relating to violence at airports).
Terrorism offenses frequently require the use of court-authorized electronic surveillance techniques because of the clandestine and violent nature of the groups that commit such crimes. Adding the proposed predicate offenses to 18 U.S.C. 2516 would therefore facilitate the ability of law enforcement successfully to investigate, and sometimes prevent, such offenses in the future.
Section 606.
In considering legislative proposals which were incorporated into the 1994 crime bill (Pub. L. 103-322), Congress altered the Department's proposed formulation of the jurisdictional provisions of the Maritime Violence legislation, the Violence Against Maritime Fixed Platforms legislation, and Violence at International Airports legislation, because of a concern over possible federal coverage of violence stemming from labor disputes. The altered language created uncertainties which were brought to the attention of Congress. Subsequently, the labor violence concern was addressed by adoption of the bar to prosecution contained in 18 U.S.C. 37(c), 2280(c) and 2281(c). With the adoption of [[Page S6214]] this bar, the sections were to revert to their original wording, as submitted by the Department of Justice. While sections 37 and 2281 were properly corrected, the disturbing altered language was inadvertently left in section 2280.
Consequently, as clauses (ii) and (iii) of subsection 2280(b)(1)(A) of title 18, United States Code, are presently written, there would be no federal jurisdiction over a prohibited act within the United States by anyone (alien or citizen) if there was a state crime, regardless of whether the state crime is a felony. Moreover, the Maritime Convention mandated that the United States assert jurisdiction when a United States national does a prohibited act anywhere against any covered ship. Limiting jurisdiction over prohibited acts committed by United States nationals to those directed against only foreign ships and ships outside the United States does not fulfill our treaty responsibilities to guard against all wrongful conduct by our own nationals.
Moreover, as presently drafted, there is no federal jurisdiction over alien attacks against foreign vessels within the United States, except in the unlikely situation that no state crime is involved. This is a potentially serious gap. Finally, until the federal criminal jurisdiction over the expanded portion of the territorial sea of the United States is clarified, there remains some doubt about federal criminal jurisdiction over aliens committing prohibited acts against foreign vessels in the expanded portion of the territorial sea of the United States (i.e., from 3 to 12 nautical miles out). Consequently, striking the limiting phrases in clauses (ii) and (iii) ensures federal jurisdiction, unless the bar to prosecution under subsection 2280(c) relating to labor disputes is applicable, in all situations that are required by the Maritime Convention.
Section 607.
This section expands federal jurisdiction over certain bomb threats or hoaxes. Presently, 18 U.S.C. 844(e), covers threats to damage by fire or explosive property protected by 18 U.S.C. 844 (f) or (i), if the United States mails, the telephone or some other instrument of commerce is used to convey the threat or the false information. Section 607 removes any jurisdictional nexus for the means used to convey the threat or false information. A sufficient jurisdictional nexus is contained in the targeted property itself, i.e., the property (1) belongs to the United States Government, (2) is owned by an organization receiving federal funds, or (3) is used in or affects interstate or foreign commerce. The threat provision has also been drafted to cover a threat to commit an arson in violation of 18 U.S.C. 81 against property located in the special maritime and territorial jurisdiction of the United States.
Section 608.
This section would amend the explosives chapter of title 18 to provide generally that a conspiracy to commit an offense under that chapter is punishable by the same maximum term as that applicable to the substantive offense that was the object of the conspiracy. In contrast, the general conspiracy statute, 18 U.S.C. 371, provides for a maximum of five years' imprisonment. This provision accords with several recent Congressional enactments, including 21 U.S.C. 846 (applicable to drug conspiracies) and 18 U.S.C. 1956(h) (applicable to money laundering conspiracies). See also section 320105 of Pub. Law 103-322, which raised the penalty for the offense of conspiracy to travel interstate with intent to commit murder for hire (18 U.S.C. 1958). This trend in federal law, which is emulated in the penal codes of many States, recognizes that, as the Supreme Court has observed, ``collective criminal agreement--partnership in crime--presents a greater potential threat to the public than individual delicts.'' Callanan v. United States, 364 U.S. 587, 593 (1961); accord United States v. Feola, 420 U.S. 671, 693-4 (1975).
Section 608 includes the introductory phrase ``[e]xcept as provided in this section'' in order to take account of one area where a different maximum penalty will apply. Section 110518(b) of Pub. Law 103-322 enacted a special twenty-year maximum prison penalty (18 U.S.C. 844(m)) for conspiracies to violate 18 U.S.C. 844(h), which prohibits using an explosive to commit certain crimes and which carries a mandatory five-year prison term for the completed crime. Like section 844(m), the proposed amendment exempts the penalty of death for a conspiracy offense.
Section 609.
Section 609 would cure an anomaly in 18 U.S.C. 115. The statute presently punishes violent crimes against the immediate families of certain former federal officials and law enforcement officers (including prosecutors) in retaliation for acts undertaken while the former official was in office. However, the former official is not protected against such crimes. Federal investigators, prosecutors, and judges who are involved in terrorism cases are often the subject of death threats. The danger posed to the safety of such officers does not necessarily abate when they leave government service. Former United States officials should be protected by federal law against retaliation directed at the past performance of their official duties. Section 609 would provide such protection.
Section 610.
The changes made by this section are similar to that made by section 608 for explosives conspiracies.
This section adds ``conspiracy'' to several offenses likely to be committed by terrorists. Conspiracy is added to the offense itself to ensure that coconspirators are subject to the same penalty applicable to those perpetrators who attempt or complete the offense. Presently, the maximum possible imprisonment provided under the general conspiracy statute, 18 U.S.C. 371, is only five years. The offenses for which conspiracy is being added are: 18 U.S.C. 32 (destruction of aircraft), 37 (violence at airports serving international civil aviation), 115 (certain violent crimes against former federal officials, added by section 609, and family members of current or former federal officials), 175 (prohibitions with respect to biological weapons), 1203 (hostage taking), 2280 (violence against maritime navigation), and 2281
(violence against maritime fixed platforms), and 49 U.S.C. 46502 (relating to aircraft piracy).
Section 701.
This section sets forth the congressional findings for title VII.
Section 702.
Amending subsection 573(d) of chapter 8 of the Foreign Assistance Act of 1961 (22 U.S.C. 2349aa2) would allow more flexibility and efficiency in the Department of State's Antiterrorism Training Assistance (ATA) program by permitting more courses to be taught overseas and allowing for instructors to teach overseas for up to 180 days. Current law allows training overseas for only certain specified types of courses and only for up to 30 days. Deleting subsection (f) of section 573 would allow for some personnel expenses for administering the ATA program to be met through the foreign aid appropriation. Currently, all such costs are paid from the Department of State's Salaries and Expenses account.
title viii--substantive investigative enhancements
Sec. 801. Pen registers and trap and trace devices in foreign counterintelligence and counterterrorism investigations.
Section 801 permits the FBI to use pen register and trap and trace device statutes--already available in routine criminal cases--in foreign counterintelligence investigations. Pen registers are devices which record signals pulsed or toned--simply put, the number dialed, while trap and trade devices record the number from which a call originates, simply put, Caller ID. Neither device permits the monitoring of the actual conversation taking place.
Sec. 802. Disclosure of information and consumer reports to FBI for foreign counterintelligence purposes.
Section 802 permits the FBI to obtain access to consumer credit reports in foreign counterintelligence matters. These are the same reports available on request to car salesmen and real estate agents and to the FBI, by grand jury subpoena, in routine criminal cases. Without the information in these reports, the FBI cannot determine where terrorists hold their assets and accordingly a major part of the investigations is lost. The grand jury subpoena process is not available in foreign counterintelligence matters because these are not necessarily criminal in nature.
Sec. 803. Study and requirements for tagging of explosive materials, and study and recommendations for rendering explosive components inert and imposing controls on precursors of explosives
Section 803 requires the Department of the Treasury to study the action of taggants--microscopic particles which will survive combustion and which are unique by manufacture and date and which therefore will serve to identify the source of an explosive--as well as whether it is possible to render certain chemicals inert and whether certain explosives precursors can be controlled. The study must be completed within one year of enactment.
The provision also requires Treasury to promulgate regulations regarding the addition of these taggants by private manufacturers and criminalizes possession, transfer and other conduct respecting explosives not containing taggants. The criminal provision does not become effective until 90 days after the promulgation of the regulation requiring the taggant addition.
Sec. 804. Access to records of common carriers, public accommodation facilities, physical storage facilities and vehicle rental facilities in foreign counterintelligence and counterterrorism cases.
Section 804 permits the FBI access to the same records already available to the DEA by administrative subpoena in routine narcotics investigations and which are available to the FBI and all other law enforcement agencies in criminal cases where a grand jury subpoena may properly be obtained.
Hotels and motels, storage facilities, airlines, trains and vehicle rental companies all provide services and maintain records which are often of extraordinary value to law enforcement--no less in foreign counterintelligence and counterterrorism cases.
Records would be produced pursuant to a special written request which would be signed by a person with a title no lower than Assistant Special Agent In Charge. Such an individual is generally a senior person considered middle-management within the FBI structure.
Sec. 805. Limitation of statutory exclusionary rule.
Section 805 would simply extend to warrants issued to conduct electronic surveillance, the same ``good faith'' standard which [[Page S6215]] already exists by Supreme Court decision as to routine search warrants. There is no policy basis to apply a different standard to electronic surveillance warrants than is applied to other warrants.
Sec. 806. Authority for wiretaps in any terrorism-related or explosives felony.
Section 806 would expand the circumstances under which electronic surveillance orders for oral and/or wire intercepts could be issued by a court, to include any felony when an appropriate high-ranking Department of Justice official certifies that the ``felony involves or may involve domestic or international terrorism.'' While most such felonies are already covered in the Electronic Communications Privacy Act of 1986 (ECPA), 18 U.S.C. Sec. 2510, et seq., there are occasions when those engaged in terrorism may have violated statutes which are not enumerated. In such instances, although the statute may not ordinarily merit status as a predicate under ECPA, the specific actions of the target(s) may raise the seriousness of the statute to a level where an ECPA order is appropriate.
Section 106 would also expand the list of predicate crimes to include felony explosives violations. Such violations are key to terrorism and violent crime prosecutions and accordingly a key predicate to ECPA orders which may be required in such cases.
Sec. 807. Temporary emergency wiretap authority involving terroristic crimes.
Section 807 would simply permit the issuance of emergency wiretap orders--already available in organized crime cases--to situations involving domestic or international terrorism. Such orders are only valid for 48 hours but are essential because this period of time is sufficient to permit the FBI to obtain a court-ordered warrant, a process which may take as long as the 48 hours permitted.
Sec. 808. Expanded authority for roving wiretaps.
Section 808 removes a needless impediment to the issuance of roving wiretaps--wiretaps which protect individual rights because the ``tap'' follows the target from phone to phone rather than remaining on one phone which others may use--by deleting the requirement that the government, which must show that the target is using multiple phones lines, is doing so in order to avoid routine surveillance.
This is a hard standard to meet and bears no direct relevance to whether the roving wiretap ought to be authorized by a court. Although roving wiretaps have been authorized since at least 1986, the additional requirement of proof of motive has foiled several major investigations.
Sec. 809. Enhanced access to telephone billing records.
Section 809 would allow the FBI to obtain telephone billing information already available in routine cases by way of grand jury subpoena. Although toll records are already available, information such as address, length of service and local calling information is essential in many investigations and the very same information is used by many telephone companies for routine marketing and sales promotion programs.
Sec. 810. Requirement to preserve evidence.
Section 810 would require telephone companies to preserve their records on demand, for at least 90 days, possibly more, until a court order to preserve records can be obtained. Although most mainstream phone companies already preserve their records for more than this period of time, the growth of small companies in the industry has resulted in services which discard records after very short periods of time. Such information is of critical importance in a wide variety of investigations.
Sec. 811. Permission to request military assistance with respect to offenses involving chemical and biological weapons.
Section 811 would permit the Attorney General to request military assistance in cases involving chemical and biological weapons. New subsections enacted by section 811 and codified at Sec. Sec. 175(c) and 2332b(c) would provide a limited exception to the Posse Comitatus Act to permit the military to provide technical assistance to federal law enforcement officials in enforcing these subsections. Technical assistance could include assistance in investigations, in conducting searches, in evidence collection, and in disarming and disabling individuals but would not include authority to arrest. Further, these subsections do not authorize any intelligence agency to engage in any activity that is not otherwise authorized by law or executive order.
Section 811 would also amend current law concerning chemical weapons to include all chemical weapons, whether in gaseous form or not. Under existing law, chemical weapons are covered, only if in gaseous form. Accordingly, an individual who poisoned a city's water supply with a pellet of dioxin would not be chargeable under current law because the pellet was not in gaseous form until it was dropped into the water
Sec. 812. General reward authority of the Attorney General.
Section 812 would remove the existing $500,000 cap on the Attorney General's reward authority and would also permit the Attorney General to receive funds from other agencies so as to permit ``pooled'' awards when multiple agencies are involved. The Administration intends to submit complementary appropriations language on this subject.
title ix--substantive prosecutive enhancements
Sec. 901. Possession of stolen explosives.
Section 901 would expand federal statutes which already criminalize the knowing possession of stolen firearms to include stolen explosive materials.
Sec. 902. Protection of Federal employees on account of the performance of their official duties.
Section 902 would expand federal criminal murder and assault jurisdiction to include all federal employees and their immediate families. The provision would also include the uniformed services of the military. Under existing federal law, only certain enumerated federal employees are protected under federal law and as federal employees become targets--not only as the result of their specific job titles, but merely because they are federal employees--the need for federal protection grows.
title x--criminal penalties
Sec. 1001. Mandatory penalty for transferring a firearm knowing that it will be used to commit a crime of violence.
Section 1001 would increase from a maximum to a minimum of 10 years, the sentence of imprisonment which must be imposed when an individual transfers a firearm knowing that the firearm material will be used to commit a crime of violence or a drug trafficking crime. Because such knowledge makes the crime more serious, there is a greater need for punishment.
Sec. 1002. Mandatory penalty for transferring an explosive material knowing that it will be used to commit a crime of violence.
Section 1002 would create a parallel offense to that involving firearms when an individual transfers explosives material knowing that the material will be used to commit a crime of violence or a drug trafficking crime.
Sec. 1003. Increased period of limitations for National Firearms Act.
Section 1003 would extend the current three-year statute of limitations which applies to certain serious weapons offenses, to five years, the same statute of limitations as applies to virtually all other felony offenses under federal criminal law. Some of the offenses covered include the possession of machineguns, sawed-off shotguns, silencers and explosive devices.
title xi--funding
Sec. 1101. Civil monetary penalty surcharge and telecommunications carrier compliance payments.
Section 1101 creates a mechanism to pay for the costs of implementing digital telephony programs. Subject to appropriations action, a surcharge of 40 percent is added to each civil monetary penalty at the time it is assessed by the United States or an agency thereof. The Administration intends to submit complementary appropriations language on this subject.
Mr. BIDEN. Mr. President, 2 weeks ago, terrorists destroyed the Federal building in Oklahoma City, took hundreds of lives, and destroyed the lives of thousands of others. Federal, State, and local investigators continue the search for those responsible for that heinous act.
In the weeks since the attack, there has been renewed focus on S. 390, the President's comprehensive counterterrorism bill I introducing in February with Senators Specter and Kohl.
Today, I am pleased to join with Senator Daschle and others in introducing expanded counterterrorism legislation, which contains additional proposals to assist law enforcement in the fight against terrorism.
As I said in February, I believe we must take strong action to counteract terrorism. Now, in the wake of the Oklahoma City bombing, it is clear that we must focus our attention not just on foreign terrorists, but on domestic American terrorists as well.
There are steps we can take, and this bill combines them. We should ensure that law enforcement has the tools and resources it needs to effectively investigate and prevent terrorist acts, whatever their origin.
At the same time, we should not, in the heat of the moment, pass legislation that we--and the American public--will later regret. Our freedoms and our Constitution are simply too valuable to be put at risk in a hurried rush to respond to this terrible tragedy.
Several important provisions in this bill come from S. 390, introduced earlier this year. For instance, the bill expands the circumstances in which we can prosecute crimes committed overseas which affect our interests.
It also prohibits persons from raising funds for foreign terrorist organizations, implements treaties on plastic explosives, and takes a number of other important actions.
New provisions in this bill add to that effort by providing enhanced authority to obtain records in foreign counterintelligence investigations through letter requests from the FBI. This allows access to records such as consumer credit reports and hotel/motel records.
[[Page S6216]]
Because foreign counter-intelligence investigations may not involve a criminal prosecution, a grand jury subpoena may not be an option in these cases.
This bill now also revises current wiretap laws to provide authorization for wiretaps in connection with any felony if the Department of Justice certifies that it is connected to foreign or domestic terrorism, and it allows for emergency wiretaps in terrorism investigations.
The bill also alters the standards to obtain a so-called roving wiretap--targeted at a person moving from phone to phone or using pay phones.
In addition, the bill allows use of the military to investigate offenses involving chemical and biological weapons.
And it allows the Department of the Treasury to promulgate regulations requiring explosives manufacturers to use methods making the explosives traceable, known as taggants.
While I believe many of the provisions now under consideration in this bill are useful and desirable, I do share some of the concerns about the bill.
Specifically, I want to examine closely the need for and the full scope of the additional authority sought for law enforcement in wiretapping and in collecting records, particularly where domestic groups are targeted.
As I said in February, I am also concerned about the alien terrorist removal provisions, which would allow secret evidence to be used to deport a person.
Our judicial system generally requires that a defendant be given the evidence to be used against him--so that he can prepare a defense. Unseen, unheard evidence simply cannot be defended against, and raises the possibility of erroneous decisions.
I also believe we should look closely at proposals which would ban fundraising for organizations which the President designates as terrorist.
The first amendment rights of association and free speech are at the heart of our system of government. While we should not allow people to knowingly support terrorism, we also must ensure that legitimate political activities are not curtailed.
We must examine these and other issues closely before acting on terrorism legislation.
But I do believe we should act. Americans enjoy freedoms unlike those in any other country on the planet. But freedoms bring responsibilities.
Incidents like the Oklahoma City bombing have no place in our free and democratic society, which allows full expression of all types of political views through legitimate means. There is simply no excuse for turning to violence in a society with open airwaves, uncensored newspapers, and regular and free elections of the peoples' representatives.
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By Mr. HARKIN:
S. 762. A bill to implement General Accounting Office recommendations regarding the use of commercial software to detect billing code abuse in Medicare claims processing, and for other purposes; to the Committee on Finance.
the medicare billing abuse preventon act of 1995
Mr. HARKIN. Mr. President, I am introducing the Medicare Billing Abuse Prevention Act to implement recommendations of the General Accounting Office concerning abusive and improper billing practices that are costing the American taxpayer and individual Medicare beneficiaries billions of dollars. There is controversy over what should be done concerning Medicare. But, I am hopeful that we will all agree that medical providers should receive what they are entitled to and should not receive payments based on improper billings.
Last year, I along with the chairman and ranking member of the Budget Committee asked the GAO to look at how much Medicare loses because of its inability to prevent and detect abusive and inappropriate billings by health care providers. We specifically asked them what savings the taxpayers and Medicare beneficiaries might realize if Medicare was to use the commercially available state of the art computer programs to detect and stop abusive payments.
GAO has done their usual excellent work. The results of their review are dramatic. Medicare's system for detecting abuse is failing and it's costing American taxpayers and senior citizens millions every day. Taxpayers and those on Medicare could save roughly $4 billion over the next 5 years if Medicare harnessed the power of the private sector and used state of the art anti-abuse equipment.
Although I believed we had a problem, the GAO has uncovered losses from improper billings that are far larger than I expected. They also suggested a straightforward solution that will conservatively save the Medicare trust fund about $640 million per year and Medicare beneficiaries over $140 million a year in their out of pocket costs. Those estimates are based on four separate samples of 200,000 actual filed claims each that were processed with commercially available software developed by four separate computer companies that now provide the software to commercial users, primarily insurance companies.
I was pleased to hear that the great majority of medical care providers billed the Government correctly. The losses were the results of billings submitted by 8 percent of providers. I do want to point out that all errors are not purposeful. But, whatever the reason, the Medicare trust fund should have the best protections against improper payments.
In a hearing held by the Subcommittee on Labor, Health and Human Services, Education and Related Agencies today, I believe that a solid case was made for immediate action. Losses are mounting by about $2 million for every day we wait.
Many in Congress are proposing dramatic cuts in Medicare and Medicaid to pay for tax cuts and reduce the deficit. They are suggesting that senior citizens and the disabled, most of whom live on limited, fixed incomes, pay more for Medicare. And they are suggesting dramatic cuts in payments to doctors, hospitals, and other health care providers--
cuts that will either reduce health care access and quality of care for older Americans, or simply be shifted on to the millions of working Americans who have private health insurance.
While Medicare for years led the health care field in technology, today it has been left in the dust. While most of the Nation's leading private health insurers and managed care plans are saving billions by using this state of the art equipment, Medicare lags behind. In fact, many of the same private health insurers that Medicare contracts with to process its claims use this new technology on their private sector business but can't use the same to bring American taxpayers and seniors Medicare savings. This is part of the reason why Medicare's costs are rising faster than private sector health care costs.
The GAO had four private companies that have developed sophisticated computer technology to detect and stop billing abuse run a representative sample of doctors bills Medicare had already checked and paid through their systems. The private sector systems found instance after instance where Medicare, with its outdated computer technology, paid abusive or inappropriate bills that should have been denied. The most common form of billing abuse identified was unbundling, where a doctor performs a procedure and bills Medicare not only for the full procedure, but also for components of the procedure. For example, a doctor bills Medicare $5,000 for gall bladder surgery, but also bills Medicare $1,000 for the incision and closing the wound. Medicare is paying twice for the same service. Other examples of unbundling abuses identified include: billing for multiple visits to the same patient on the same day; billing separately for injections and chemotherapy administration when those injections are simply a component of the chemotherapy administration; and, billing for excessive numbers of Pap smears for the same woman on the same day.
Billing abuses that the commercial computer systems would identify include mutually exclusive procedures, the use of an inappropriate assistant at surgery, duplicate billings, and global fee period violations where one charge might cover a physician's services for 30 days after surgery and the doctor separately charges for services provided during that time period. [[Page S6217]]
The GAO indicates that it would cost around $20 million or less to install the private sector technology in Medicare. And they have clearly demonstrated that such an investment would save Medicare taxpayers and beneficiaries over $3.9 billion in 5 years. So, for every dollar we invest, taxpayers will get a $200 return. I call that a bargain. I want to reiterate: for every day we fail to invest, taxpayers will lose about $2 million. And more will be lost by individual Medicare patients, sometimes thousands of dollars by a single individual. I call that a scandal.
The Billing Abuse Prevention Act will do three things.
First, it will provide a definite time when commercially available computer systems shall be in actual use to catch billing code abuses by all of the 32 Medicare contractors who examine Medicare billings so errors and abusive billing practices can be caught. HCFA has been given 90 days from the date of enactment to set out the exact requirements under which the 32 Medicare contractors shall have a computer checking system in place. And, it requires that the contractors actually have the system in use within 180 days after enactment.
It is my hope and expectation that this can be done more quickly than that. HCFA should now begin the process to develop the criteria without waiting for the legislation to pass. With the full cooperation of the agency, I am hopeful that the HCFA implementing requirements could be ready by the time the President signs the bill. That will allow the contractors to move more quickly as well.
Many of the 32 contractors are already using the commercially available systems to review private insurance claims. But, some modifications of the systems will be needed to modify the program to match HCFA billing practices. And, the contractors will want to review all of the systems that are available that meet HCFA's criteria and go through the appropriate procurement practices.
Second, the legislation provides that the Secretary of Health and Human Services may keep information about the system confidential. If that is not done, detailed information about the system could be used, to some degree, to get around the system's safeguards. The legislation also provides that the proprietary information about the systems are not to be released. If it became available, the companies that created it might lose a significant part of their investment since other companies could acquire the technical details of the systems. The Secretary is expected to release appropriate information about the system which is in the public interest.
It is important to use commercially available systems because we already know they work and we can put them into place relatively quickly with minor modifications. We save time which results in real savings and we avoid what might be a large development cost if HCFA tried to create their own system. Another advantage of commercial systems is that they will be continually improved as the private development companies work to further improve their systems to acquire a larger share of the private marketplace.
Third, the Secretary shall order a review of all of the existing regulations and guidelines governing Medicare payment policies and billing code abuse to see what modifications might be appropriate to maximize the benefits of the computer checking systems and avoiding improper payments.
I urge that this legislation be rapidly considered and passed.
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