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[Senate Hearing 109-729]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 109-729
 
                   PRESERVING SACRED GROUND: SHOULD 
     CAPITAL OFFENDERS BE BURIED IN AMERICA'S NATIONAL CEMETERIES?

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

                                HEARING

                               BEFORE THE

                     COMMITTEE ON VETERANS' AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 22, 2005

                               __________

       Printed for the use of the Committee on Veterans' Affairs

 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 senate

                                 ______

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                     COMMITTEE ON VETERANS' AFFAIRS

                      LARRY CRAIG, Idaho, Chairman
ARLEN SPECTER, Pennsylvania          DANIEL AKAKA, Hawaii, Ranking 
KAY BAILEY HUTCHISON, Texas              Member
LINDSEY O. GRAHAM, South Carolina    JOHN D. ROCKEFELLER IV, West 
RICHARD BURR, North Carolina             Virginia
JOHN ENSIGN, Nevada                  JAMES M. JEFFORDS, (I) Vermont
JOHN THUNE, South Dakota             PATTY MURRAY, Washington
JOHNNY ISAKSON, Georgia              BARACK OBAMA, Illinois
                                     KEN SALAZAR, Colorado
                  Lupe Wissel, Majority Staff Director
               D. Noelani Kalipi, Minority Staff Director

                            C O N T E N T S

                              ----------                              

                           September 22, 2005
                                SENATORS

                                                                   Page
Craig, Hon. Larry, Chairman, U.S. Senator from Idaho.............     1
Mikulski, Hon. Barbara, U.S. Senator from Maryland...............     3
    Prepared statement...........................................     5
Salazar, Hon. Ken, U.S. Senator from Colorado....................     8
Thune, Hon. John, U.S. Senator from South Dakota.................    16
    Prepared statement...........................................    16

                               WITNESSES

Davis, Vernon G., Son of victims Daniel and Wilda Davis..........     6
Wannemacher, Hon. Richard A., Jr., Acting Under Secretary, 
  Memorial Affairs, National Cemetery Administration, Department 
  of Veterans Affairs; accompanied by Richard J. Hipolit, 
  Assistant General Counsel, Department of Veterans Affairs......     9
    Prepared statement...........................................    11
    Response to written questions submitted by Hon. John Thune...    13
Higginbotham, Thurman, Deputy Superintendent, Arlington National 
  Cemetery; accompanied by Craig R. Schmauder, Deputy General 
  Counsel, U.S. Army.............................................    13
    Prepared statement...........................................    15
Cullinan, Dennis M., Director, National Legislative Service, 
  Veterans of Foreign Wars of the United States; accompanied by 
  Brian Lawrence, Assistant National Legislative Director, 
  Disabled American Veterans.....................................    21
    Prepared statement...........................................    23
    Response to written questions submitted by Hon. John Thune...    24

                   PRESERVING SACRED GROUND: SHOULD 
     CAPITAL OFFENDERS BE BURIED IN AMERICA'S NATIONAL CEMETERIES?

                              ----------                              

                      THURSDAY, SEPTEMBER 22, 2005

                               U.S. Senate,
                    Committee on Veterans' Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:19 a.m., in 
room SR-418, Russell Senate Office Building, Hon. Larry E. 
Craig, Chairman of the Committee, presiding.
    Present: Senators Craig, Thune, Salazar, and Mikulski.

   OPENING STATEMENT OF HON. LARRY E. CRAIG, CHAIRMAN, U.S. 
                       SENATOR FROM IDAHO

    Chairman Craig. Good morning, everyone. The U.S. Senate 
Committee on Veterans' Affairs will come to order. We 
appreciate all of your presence this morning. We oftentimes do 
not give hearings titles, but I think this one deserves a 
title. We call it ``Preserving Sacred Ground: Should Capital 
Offenders Be Buried in America's National Cemeteries?''
    I have called this hearing to examine a very sensitive 
topic, one that the Congress first addressed in 1997. We were 
then confronted with the fact that the perpetrator of the 
Oklahoma City bombings, Timothy McVeigh, was legally entitled 
to burial and memorialization at America's national cemeteries. 
Largely in response to McVeigh's eligibility, the Congress 
passed a law to deny interment in Arlington National Cemetery 
and VA national cemeteries to any person convicted of a Federal 
capital crime or a State capital crime for which a sentence of 
death or life imprisonment without parole is given.
    The intent of the 1997 law was clear: We should not bury 
brutal murderers alongside America's honored dead. The 
circumstances surrounding the placement of a convicted double 
murderer's cremated remains at Arlington National Cemetery in 
late July caused me and many of my colleagues to wonder what 
impact the 1997 law actually had. The media coverage of the 
former Chief Justice William Rehnquist's Arlington Cemetery 
funeral only served to confirm my bewilderment. How could an 
individual who committed such heinous acts be placed in the 
same hallowed ground as Chief Justice Rehnquist, Justice 
Thurgood Marshall, President Kennedy, and hundreds upon 
hundreds of servicemen and women to whom this country owes 
eternal respect?
    Russell Wagner's two life sentence carried with them the 
possibility of parole. The 1997 law only bars national cemetery 
interment to State capital offenders sentenced to death or life 
in prison without parole. Thus, we have our first example of 
what I think we call ``the parole loophole.''
    We will hear in a moment from Mr. Vernon Davis, son of 
Daniel and Wilda Davis, the victim of Wagner's crimes. Mr. 
Davis, who himself is a veteran, will give us his thoughts 
about all this, a story, I am sure, that causes him profound 
anguish.
    To further explore how wide the parole loophole is for 
State capital offenders, I asked my staff to have the 
Congressional Research Service analyze the sentence of Dennis 
Rader, better known as the infamous BTK serial killer. BTK, 
being short for Rader's method in disposing of his ten victims, 
that is, bind, torture, and kill. Rader was given ten 
consecutive life sentences of which he must serve a minimum of 
175 years. However, because the Kansas law under which Rader 
was tried did not allow for a sentence of death, nor did it 
allow for a sentence of life without parole, the Congressional 
Research Service concluded that as an honorably discharged 
veteran of the Air Force, it would appear that he is not 
statutorily precluded from interment in a national cemetery.
    If the 1997 law cannot prevent the interment of a notorious 
serial killer, then what good is it? Answering that question is 
what I hope we can accomplish today. However, one thing is 
certain already: The parole loophole, in my opinion, must be 
closed. I will soon introduce legislation to, at a minimum, 
take that necessary reform in the 1997 law.
    Let me make a point that decisions to take away benefits 
earned by virtue of honorable military service should never be 
made without careful and reasonable deliberation. And I want to 
thank the Veterans of Foreign Wars, the American Legion, the 
Disabled American Veterans, the Vietnam Veterans of America, 
and the Paralyzed Veterans of America for agreeing to submit a 
unified testimony which drives this point home.
    The unified testimony illustrates the complexity involved 
in this sensitive, highly charged issue. It takes courage to 
recommend a path of caution and prudence when emotions are 
riding high, so I appreciate very much their testimony today. 
And, of course, as I think many of you have noted, joining Mr. 
Davis on our first panel is his able Senator and a friend of 
mine from the State of Maryland, Senator Barbara Mikulski. The 
Senator sent a forceful letter to me just days after the Wagner 
story broke, urging the Committee to act. We are fortunate to 
have her here with us this morning.
    On our second panel, we will have Richard Wannemacher, VA 
Acting Under Secretary for Memorial Affairs, and Turman 
Higginbotham, Deputy Superintendent of Arlington National 
Cemetery. Mr. Wannemacher is accompanied by Patrick Hallinan, 
Acting Director of VA National Cemetery Administration, Office 
of Field Programs, and Mr. Richard Hipolit, Assistant General 
Counsel at the Department of Veterans Affairs. Mr. Higginbotham 
is accompanied by Craig Schmauder, Army Deputy General Counsel 
for Civil Works and Environment. Mr. Wannemacher and Mr. 
Higginbotham will testify about existing law, its adequacies, 
and the process in place to determine whether individuals are 
barred as capital offenders.
    Finally, we have the unified testimony of the Veterans 
organizations. The spokesman for them today will be Dennis 
Cullinan, Director of the VA National Legislative Service. He 
is accompanied by Brian Lawrence, Assistant National 
Legislative Director with the Disabled American Veterans.
    Let me welcome all of you. Senator Akaka may be able to 
join us today, but we will now proceed and I will ask the 
Senator from the great State of Maryland to start.
    Barbara?

              STATEMENT OF HON. BARBARA MIKULSKI, 
                   U.S. SENATOR FROM MARYLAND

    Senator Mikulski. Thank you very much, Senator Craig. I 
want to thank you, Mr. Chairman and Senator Akaka, for 
convening this hearing and responding to my request when I 
found out that a convicted Maryland murderer, who had died in 
prison from a heroin overdose, was about to be buried in 
Arlington Cemetery.
    I was so concerned about this that I asked you to re-
examine the restrictions on the burial of capital offenders at 
Arlington Cemetery or VA cemeteries. I thank you for holding 
this hearing because we would agree that Arlington National 
Cemetery and all of our national cemeteries are hallowed 
ground. They should not be tainted by the remains of a 
convicted murderer.
    Today, I am introducing legislation to close the loophole 
that allows convicted murderers, those convicted in State 
courts, to be honored at national cemeteries. I look forward to 
your legislation as well because it is not about my legislation 
or your legislation, it is about the right legislation. I come 
to you today not as a member of a party, but because I know how 
strongly you feel about these issues. I do, too. When it comes 
to standing up for our veterans and who should be buried at 
Arlington or other national cemeteries, we have to be the red, 
white, and blue party. I think this is what our focus is today.
    Mr. Chairman and the distinguished Senator from Colorado, 
let me tell you what brought me to this. I am joined at the 
table by one of my constituents, Mr. Vernon Davis. Mr. Davis is 
from Hagerstown. His wife and daughter and several members of 
the Davis family are here. Why are they here? Well, I found 
out--quite frankly, they brought to my attention that the 
remains of a convicted cold-blooded murderer, sentenced for two 
life sentences for his crimes, was buried at Arlington National 
Cemetery in July. This man, Russell Wagner, was convicted of 
stabbing two elderly citizens of Hagerstown: Daniel Davis, age 
84, and his wife, Wilda, age 80. They were the parents of 
Vernon, who is at this table.
    He was sentenced in State court for two life sentences for 
these despicable crimes. While serving his prison term, he died 
from a heroin overdose. Early in his life, he did serve 
honorably in Vietnam. His remains were allowed to be placed in 
Arlington with full military honors even though he had done 
this dastardly deed and died in prison unrepentant, shooting up 
heroin that he had smuggled in.
    This is not what our sacred ground is for. This episode has 
been so terribly painful for the Davis family. You can 
understand. They have had to relive the horror of what happened 
in their own family while seeing the man who took away the 
lives of these wonderful citizens being honored as a hero.
    There has been community outrage in Maryland, which I 
share, and which I shared with you in my letter. The current 
law does not apply to his case, so he's eligible to be buried 
in Arlington. But Arlington is for heroes.
    So many Marylanders--as I know in Utah and Colorado--so 
many Marylanders who have served with honor are laid at rest in 
Arlington. They are heroes from every war. There is one I 
recall very distinctly, Navy diver Michael Steadam, who was 
brutally murdered on a hijacked plane, simply because he wore a 
Navy uniform. There are countless constituents of mine from all 
wars who lie at rest in Arlington. In Iraq, 37 Marylanders have 
died, including two from the same high school just a few years 
apart. These are the heroes who deserve burial at our national 
cemeteries.
    Now, you are going to hear from the Veterans Service 
Organizations--and I salute them for standing up for the fact 
that our veterans should have benefits, health care that they 
need, honorable burying, and so on. I respect and I admire 
them. I know that their position is to be very careful when we 
limit rights, and I understand that as well. Know that I feel 
promises made to veterans should be promises kept, particularly 
in VA medical care. But you know what? This is murder. This is 
murder, and we are talking about something very different.
    You will review the Federal law, which you have already 
done in your opening statement, but there is this big loophole. 
We made sure Tim McVeigh and anyone convicted of a Federal 
crime, a Federal murder, is not buried at Arlington. Yet if 
someone is tried for the same crime in a State court, like 
Wagner was in Maryland, he can be buried at Arlington.
    This loophole enabled the man who murdered them to be 
placed alongside of our heroes. Well, we need to look at this. 
When we passed the law in 1997, it does not apply to Wagner or 
anyone else in State court, and particularly those eligible for 
parole. We need to examine the law, and we need to understand 
the position of the veterans organizations for these families. 
And we think about Arlington. You know, to all of America, 
Arlington is one of our national icons. It is like the Statue 
of Liberty. The flag over Arlington, the Eternal Flame of 
President Kennedy, the distinguished people who died there, the 
Tomb of the Unknown Soldier that honors the sacrifice. Even if 
we do not know your name, we want to salute you and honor you, 
even at death. Therefore, I believe that the people who are 
buried there should truly be those who not only served the 
Nation but also are honorable citizens of our Nation.
    Mr. Chairman, I want to thank you for looking at the 
legislation and holding the hearing. I do believe we need to 
close the loophole. I presented the story, but I do believe 
that the story is best told by the family who is most affected. 
It is indeed a story that is grim, and because of the loophole, 
it has become melancholy.
    I look forward to working with you on a bipartisan basis.
    [The prepared statement of Senator Mikulski follows:]

Prepared Statement of Hon. Barbara Mikulski, U.S. Senator from Maryland

    Thank you, Mr. Chairman and Senator Akaka, for convening today's 
hearing: to help us preserve our national cemeteries as places of honor 
for our veterans. Arlington National Cemetery and all our national 
cemeteries are hallowed ground, they should not be polluted by the 
remains of convicted murderers.
    Today, I am introducing legislation to close the loophole that 
allows convicted murders to be honored at national cemeteries.
    Mr. Chairman, in August, I brought to your attention a tragic and 
troubling circumstance regarding national cemeteries. The remains of a 
convicted cold-blooded murderer sentenced to two life sentences for his 
crimes were placed at Arlington National Cemetery on July 27, 2005.
    This man, Russell Wagner, was convicted of stabbing to death two 
elderly residents of Hagerstown, MD, Daniel Davis, 84 and his wife, 
Wilda Davis, 80.
    He was sentenced in State court to two life sentences for these 
unspeakable crimes. While serving his sentence in prison, Wagner died 
from a heroin overdose and because he served honorably in Vietnam, his 
remains were allowed to be placed in Arlington National Cemetery with 
full military honors even though he committed this terrible crime.
    This episode has been terribly painful for the Davis family 
understandably. They have had to relive the horror of their parents' 
brutal murder, while seeing the man who took away their loved ones 
being honored as a hero in our Nation's most sacred burial ground. 
There has been community outrage--which I share.
    The law that allows this disgrace must be changed.
    Arlington is for heroes. So many Marylanders who served with honor 
were laid to rest in Arlington. The heroes from every war, men like 
Navy Diver Michael Steadam, who was brutally murdered by terrorists 
simply because he was a member of our military.
    In the Iraqi conflict, 37 Marylanders have died including two from 
the same high school who died within weeks of each other. These are the 
heroes who deserve burial at our national cemeteries.
    The Committee will hear from the Veterans Service Organizations. In 
my 18 years as the head of the VA-HUD Subcommittee, I was proud to work 
closely with the veterans organizations. They are tireless advocates 
for America's veterans. I do respect and admire them.
    I know many in these groups are uncomfortable with the idea of 
Congress tinkering with the benefits our veterans have earned.
    I can understand their yellow flashing lights.
    Promises made to our veterans must be promises kept. For 18 years, 
I fought every day to safeguard these benefits--and continue to do so. 
Because they represent America's payment of a debt, we owe our brave 
veterans for their service a debt that can never be fully repaid. But 
this is murder.
    Federal law already prohibits murderers from being honored at 
Arlington and our national cemeteries. In 1997, Congress passed a law 
to restrict burial eligibility to prevent convicted Oklahoma City 
bomber Timothy McVeigh from being buried in a national cemetery 
following his execution.
    If someone is convicted of a capital crime in a Federal court--
their remains cannot be placed at Arlington. Yet, if someone is tried 
for the same kind of crime in a State court, they can be buried in 
Arlington if they are eligible for parole.
    This loophole enabled the man who murdered Mr. and Mrs. Davis to be 
placed alongside the heroes at Arlington.
    Why did Congress pass this law?
    Not to further punish the guilty, but to preserve our national 
cemeteries as places of honor for our veterans.
    So I was shocked to learn that the law we passed in 1997 doesn't 
apply in the case of the man who murdered Daniel and Wilda Davis. He 
was convicted of two life sentences. But because he was convicted in 
State court, he remained eligible for interment with honors at 
Arlington National Cemetery.
    This doesn't make any sense.
    The purpose of the 1997 law was to protect the standards our 
military men and women live by to protect the values they fight and die 
for. The cold-blooded murder of an elderly couple is certainly contrary 
to those values.
    I am here today on behalf of the Davis family. But I am also here 
on behalf of a Nation at war. Every day across this country, brave 
young soldiers are being honored and laid to rest in our national and 
veterans cemeteries.
    We have precious little to offer in comfort for their grieving 
loved ones who have made the ultimate sacrifice a nation can ask of a 
Mother or Father. But we can insist that these sacred resting places 
and the honors our Nation rightfully bestowed on those who have died in 
its service are preserved as sanctuaries and monuments to the values 
they died protecting. Placing the remains of a cold-blooded murderer in 
this hallowed ground makes a mockery of that service. And it is wrong.
    Mr. Chairman, I appreciate you taking on this difficult issue. I 
thank you and the Committee for rethinking the circumstances under 
which convicted murderers are allowed to be buried in our national 
cemeteries. I look forward to your recommendations.

    Chairman Craig. Senator, thank you very much for that very 
important and stirring testimony. I think you have said it 
clearly and said it very well.
    Before I introduce Vernon Davis, let me recognize my 
colleague, Ken Salazar from Colorado, who is here. Ken, thanks 
for joining me this morning.
    Senator Salazar. Thank you, Senator.
    Chairman Craig. Mr. Davis, thank you very much for being 
with us this morning. The microphone is yours.

         STATEMENT OF VERNON G. DAVIS, SON OF VICTIMS 
                     DANIEL AND WILDA DAVIS

    Mr. Davis. By the way, I am Santa Claus. I do Santa Claus 
in December.
    Chairman Craig. Do you really?
    Mr. Davis. Yes, I do.
    Chairman Craig. Good for you.
    Mr. Davis. Everything gets shaved December 25th.
    Chairman Craig. Well, you are getting awfully close to 
Santa Claus right now. You will be ready. Thank you.
    Mr. Davis. On February 14, 1994, my mother and Daddy were 
getting ready for bed at 7 o'clock. My mother was talking to my 
sister. There was a knock come on the door. And my mother told 
my sister, ``Somebody is at the door. I will talk to you 
later.''
    Mom and Dad would invite anybody in their house. They 
didn't have enemies. They didn't have nobody. If you remember, 
February 14 is Valentine's Day. A fellow by the name of Russell 
Wagner was at the door. They opened the door for him. Before 
they opened the door, he knew exactly what he was going to do, 
how he was going to do it, and what he was going to do. He had 
a knife and a pair of gloves with him.
    He took Mom and Dad and sat them on the kitchen chair and 
tied their hands behind their back, put a pillowcase over their 
head, and stabbed them 14, 15 times. And then he robbed them 
and then left.
    It took a while to catch the guy. Then the case went to 
trial, while in the meantime--I am ahead of my story. So that 
was on the 14th. On the 15th, Mom and Dad's great-granddaughter 
was delivering their newspaper. As she walked in the door, she 
happened to look over and saw Mom and Dad. That little girl was 
sleeping beside her Mother and Daddy on the floor for at least 
9 years.
    We had one trial, and that was held in Oakland, Maryland. 
It was a hung jury because they could not prove that--for some 
technicality. I don't know what it was anymore. The first trial 
was in 1996. The second trial was in 2002. They found him 
guilty because of DNA evidence. Mom and Dad's blood was found 
on Russell Wagner's gloves that was used in their murder.
    He went to jail, and I tried to keep track of him. From 
what I understand, he was down in Jessup, Maryland. And then we 
heard later that he died on the the third day of the second 
month of this year. When he died, we thought it was over, and 
we didn't have to worry about him anymore.
    Then on July 27, I heard that they placed his remains in 
Arlington Cemetery. I thought that was totally wrong. That's an 
honorable place for honorable people to go, not a murderer. And 
I realized what you all have done. The law that was passed was 
only looking at one person. But you got more than one person 
out there that is like that. And what I am asking is the law to 
be changed for this reason.
    You just had a Chief Justice of the Supreme Court buried 
there, and I thought there was something wrong with that, too, 
because he is buried alongside with a murderer. And Arlington 
Cemetery is very honorable place to go.
    I have got a factory in Hagerstown, Mack truck and Volvo 
plants, drawing up petitions. I did not even know about it, and 
they presented it to me, and I got over 400 names on this 
petition. There was a guy who called me 2 days ago telling me 
that his brother in Arizona--I did not even know him--has a 
petition going, and the same thing with a guy from California. 
I was hoping to get them before that time, but I couldn't get 
them. He said he is going to send the petitions to me sometime. 
But there are people out there who are doing it on their own, 
and I don't even know who they are. But I wish you would change 
the law.
    Chairman Craig. Well, Mr. Davis, thank you very much for 
that testimony. I know it is tough in any circumstance to 
relive the tragedy that struck your family at the hands of this 
fellow.
    We will accept the petitions you have with you, and the 
others as they come to you, if you want to submit them to the 
Senator or to us, we will be happy to receive them and make 
them a part of the record of this hearing. So we thank you 
very, very much for your testimony.
    Barbara, thank you for being with him. We appreciate it, 
and we appreciate your due diligence, Barbara, on this issue.
    Senator Mikulski. You are quite welcome.
    Do you want to introduce your wife?
    Chairman Craig. Please do.
    Mr. Davis. Yes, my wife is back there. Her name is Vivian. 
Stand up, Vivian. And my daughter here, her name is Julie; my 
nephew, Lee; and my older sister, Virginia.
    Chairman Craig. Thank you all very much for being here 
today.
    Mr. Davis. And Mr. Phil Stotlemeyer, a Marine veteran. He 
wanted to come along.
    Chairman Craig. Very good. All right. Good luck at 
Christmas.
    Senator Mikulski. Mr. Chairman, just by way of background, 
Hagerstown is in western Maryland.
    Chairman Craig. Right.
    Senator Mikulski. It is one of our larger communities on 
the way to Appalachia and mountain counties, but it is rural. 
It has those rural values that you also share--hard work, 
patriotism, community. It also has a very low crime rate. This 
crime was shocking when it occurred, and also, the people of 
Hagerstown are so duty-driven that they are really behind us on 
this examination.
    Thank you.
    Chairman Craig. Thank you both very much.
    Mr. Davis. Thank you for your time.
    Chairman Craig. Yes, Senator Salazar?
    Senator Salazar. I know I was late coming into the meeting 
because I was voting, but could I make a statement regarding 
this issue?
    Chairman Craig. Please do.

                STATEMENT OF HON. KEN SALAZAR, 
                   U.S. SENATOR FROM COLORADO

    Senator Salazar. First, Senator Mikulski, I want to thank 
you for bringing this issue before the Veterans' Affairs 
Committee, and to you, Mr. Davis, for the pain that your family 
has suffered. Our thoughts and our prayers are with you.
    It is hard to believe that because of legal loopholes 
people who have committed truly atrocious crimes would be 
allowed burial next to real American heroes. It is shocking 
that the Wagner you described--and the crime that you 
described--is a real monster who bound and killed your parents 
in their home on Valentine's Day in 1994, was laid to rest at 
Arlington National Cemetery alongside Medal of Honor recipients 
and veterans going back to the American Revolution. It is 
abhorrent that a killer who died of a heroin overdose in prison 
was given the same honor as our most prominent Americans, 
including John Kennedy, William Taft, Earl Warren, Thurgood 
Marshall, Chief Justice Rehnquist, and others.
    In Colorado, we have two national cemeteries, Fort Logan 
and Fort Lyon. I have often walked through the beautiful tracts 
of land at Fort Logan and been humbled to see the seven Buffalo 
Soldiers, the Medal of Honor recipients, and the 82,000 more 
heroes who were buried in those cemeteries. Heroes like Private 
John Davis who won the Medal of Honor for capturing the 
Confederate Flag in Georgia in April of 1865. Heroes like Major 
William Adams, an Army helicopter pilot in Vietnam who died 
after volunteering to rescue three fellow soldiers from a small 
fire base under heavy attack. And heroes like First Sergeant 
Maximo Chavez, who died during a ferocious firefight in Vietnam 
during which he used his body as a shield to protect his fellow 
soldiers against a grenade attack, moved two wounded men to 
safety, and killed an enemy machine gun crew before falling 
mortally himself.
    These soldiers and millions of others who served our Nation 
honorably deserve all the honors of a military funeral. They 
also deserve the dignity of not being buried next to murderers 
and monsters like Russell Wagner and the BTK killer. I think 
that it is important for us to close this loophole. As we close 
this loophole, I think it is also important for us to make sure 
that we do not open the door to further erosion of any 
veterans' benefits. At a time when the VA is turning away 
hundreds of thousands of veterans and making it harder and 
harder for Priority 7 and 8 veterans to get care, we have to 
remember one important fact: a veteran is a veteran, no matter 
what. By serving honorably and by sacrificing to preserve our 
freedom, soldiers, sailors, airmen, and marines have all earned 
the eternal support of a grateful Nation.
    I am glad to participate in this hearing and to work with 
Senator Mikulski and Members of this Committee to close the 
loophole, preserve the sanctity of our national cemeteries, and 
protect the rights and benefits of honorably discharged 
veterans.
    Thank you very much. Thank you, Mr. Chairman.
    Chairman Craig. Ken, thank you for that excellent 
statement.
    Now we will call our second panel forward: Richard 
Wannemacher, Acting Under Secretary for Memorial Affairs, 
Department of Veterans Affairs; and Thurman M. Higginbotham, 
Deputy Superintendent, Arlington National Cemetery.
    Richard, good morning. We will let you start and--well, 
let's see. We also have Patrick--oh, Patrick Hallinan is not on 
the panel. All right. We have Craig Schmauder. Thank you for 
being here, and also Richard Hipolit, thank you. Please 
proceed.

    STATEMENT OF RICHARD A. WANNEMACHER, JR., ACTING, UNDER 
       SECRETARY FOR MEMORIAL AFFAIRS, NATIONAL CEMETERY 
ADMINISTRATION, DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY 
 RICHARD J. HIPOLIT, ASSISTANT GENERAL COUNSEL, DEPARTMENT OF 
                           VETERANS 
                            AFFAIRS

    Mr. Wannemacher. Mr. Chairman, Members of the Committee, 
good morning. Before I start my formal statement, I would also 
like to express our condolences to Mr. Davis and the tragedy 
that he and his family have experienced and the impact that it 
has had on their lives.
    In my testimony, I will discuss the Department of Veterans 
Affairs implementation of the capital crime prohibition statute 
and some of the issues that have been encountered administering 
the statute within the national cemetery system. I am 
accompanied by Richard Hipolit, Assistant General Counsel, and 
I would like to submit my written testimony for the record.
    Chairman Craig. Without objection, your full testimony will 
be a part of the record.
    Mr. Wannemacher. My office oversees the daily operations of 
VA's 121 national cemeteries and the burial eligibility 
determination process. Last year, the National Cemetery 
Administration (NCA) interred more than 93,000 veterans and 
members of their families. We issued more than 351,000 
headstones and markers and prepared more than 435,000 
Presidential Memorial Certificates commemorating the honorable 
service of those who had served in defense of a free and 
democratic Nation.
    The provisions of Public Law 105-116 prohibit burial or 
memorialization in a national cemetery of an otherwise eligible 
veteran who was convicted of a Federal capital crime and 
sentenced to death or life imprisonment or convicted of a State 
capital crime and sentenced to death or life imprisonment 
without parole, or was found to have committed a Federal or 
State capital crime but was not convicted because they were not 
available for trial due to their death or flight.
    Due to the specific requirements of the statute, this 
prohibition is used in a limited number of cases. We have 
issued regulations and procedures designed to provide 
consistent application of the capital crimes prohibition 
statute. National cemetery directors throughout the Nation 
receive training on how to identify such cases, with the NCA 
central office officials providing oversight and guidance.
    When a burial request raises suspicion that the capital 
crime prohibition may impact eligibility determination, the 
cemetery director questions the funeral director or the 
decedent's personal representative regarding the facts 
surrounding the individual's death and informs them that there 
may be a delay while eligibility is determined. If the decedent 
died while incarcerated, the cemetery director requests a 
Notice of Conviction from the Federal or State prison to assist 
in determining the individual's eligibility. When it is 
suspected that the decedent may have committed a capital crime 
but was not convicted due to death or flight to avoid 
prosecution, the cemetery director will work with the local VA 
Regional Counsel to obtain information from law enforcement 
officials on the facts of the case and interpretation of State 
law.
    Cemetery directors approve burial eligibility if there does 
not appear to be clear and convincing evidence that the 
decedent would have been convicted of a Federal or a State 
capital crime. If there does appear to be clear and convincing 
evidence, then the family or personal representative has the 
opportunity to provide additional information for VA to 
consider before the National Cemetery Administration makes a 
final determination on burial eligibility.
    When the family or personal representative elects to pursue 
the matter further, these cases are handled in accordance with 
the procedural protections associated with processing claims 
within the Department of Veterans Affairs. Under these 
guidelines, the National Cemetery Administration has been able 
to effectively process formal eligibility determination on 
capital crimes cases. While VA believes that it has a workable 
process in place, we have identified some areas in the statute 
that have been difficult for us to implement.
    First, when there is no Notice of Conviction, VA employees 
are put in the position of having to decide whether there is 
clear and convincing evidence that a capital crime took place 
and then what kind of conviction or sentence that individual 
would have faced. In such a case, we rely on the assistance of 
local and State officials who do not always have the time to 
address VA requests for information on a case that they were 
not going to prosecute since the person was no longer living.
    Second, there are significant differences between how 
individual States define and prosecute capital crimes. Due to 
this disparate treatment, it is conceivable that a veteran 
could be determined eligible or not eligible for VA benefits 
depending solely on the jurisdiction in which the crime was 
committed.
    Finally, requests for burials are time sensitive, 
especially when dealing with casketed remains. Our goal is to 
process burial eligibility determinations within 48 hours. In 
cases where there are questions about eligibility due to the 
capital crimes prohibition statute, families may opt for a 
private burial rather than interment in a VA cemetery. 
Therefore, we may have indirectly prevented an otherwise 
eligible veteran from receiving the burial benefit that he or 
she earned. We believe that aspects of the capital crimes 
prohibition statute could be strengthened, and we would be 
happy to work with VSOs, the Committee, and the community 
towards that end.
    Thank you very much for the opportunity to appear, and I 
will be glad to answer any questions.
    [The prepared statement of Mr. Wannemacher follows:]

    Prepared Statement of Richard A. Wannemacher, Jr., Acting Under 
   Secretary for Memorial Affairs, National Cemetery Administration, 
                     Department of Veterans Affairs

    Mr. Chairman and Members of the Committee, good morning. I 
appreciate the opportunity to be here today to discuss with you the 
Department of Veterans Affairs (VA) implementation of the capital crime 
prohibition statute. I am accompanied by Richard Hipolit, Assistant 
General Counsel.
    My office oversees the daily operations of the National Cemetery 
Administration (NCA) 121 national cemeteries and the burial eligibility 
determination process. As you know, the provisions of Public Law 105-
116 were enacted into law on November 21, 1997, and subsequently 
codified at 38, U.S.C. Sec.  2411 and 38, U.S.C. Sec.  2408(d). The 
provisions apply to requests for burials that occur on or after 
November 21, 1997. Under this law, an otherwise eligible person who was 
convicted of a Federal capital crime and sentenced to death or life 
imprisonment, or was convicted of a State capital crime, and sentenced 
to death or life imprisonment without parole, or was found to have 
committed a Federal or State capital crime but was not convicted by 
reason of not being available for trial due to death or flight to avoid 
prosecution, is not eligible for burial or memorialization in a VA 
national cemetery. Memorialization refers to the provision of a 
headstone, marker, memorial marker, burial flag, or Presidential 
Memorial Certificate.
    Due to the rather specific requirements of 38 U.S.C. Sec.  2411, 
this prohibition is used in a limited number of cases. The practical 
effect of this provision on NCA is that in most cases where the 
prohibition would apply the individual's family opts for a private 
burial. Nevertheless, as a means of implementing the capital crime 
prohibition, VA has issued regulations as well as program policy 
guidance outlining specific steps for NCA employees to follow when they 
believe the capital crime prohibition may impact a request for benefits 
from NCA. These regulations, which are codified at 38 CFR 38.617 and 
38.618, serve as a framework for NCA actions in such matters. In 
addition, NCA has prepared standard letters based on these regulations 
for use by NCA personnel in communicating with a decedent's personal 
representative on such cases. Such standard letters are designed, to 
the extent possible, to provide for a consistent application of policy 
throughout NCA concerning the application of the capital crime 
prohibition. On all requests involving the capital crime statute, NCA 
Central Office officials provide oversight and guidance to the cemetery 
directors as eligibility is determined.
    NCA most often becomes aware of potential capital crime prohibition 
cases through the funeral director, a member of the public, or media 
reports. NCA staff also can be made aware of such cases through a 
flagged name in NCA's burial operations database, or through a review 
of eligibility information in Veterans Benefits Administration (VBA) 
databases. NCA cemetery directors receive periodic training, which has 
included a review of the ways to identify such cases.
    When a request for burial or memorialization raises a suspicion 
that the capital crime prohibition may impact an eligibility 
determination, the cemetery director makes an inquiry to the funeral 
home or with the decedent's personal representative about the facts 
surrounding the individual's death. If necessary, the cemetery director 
informs the funeral director or the decedent's personal representative 
about the prohibitions contained in this law and that there may be a 
delay while eligibility is being considered.
    If the decedent died while incarcerated, the cemetery director 
requests a Notice of Conviction from the Federal or State prison; he or 
she may contact the local VA Regional Counsel to assist in obtaining 
the Notice. If the Notice indicates the decedent is not eligible, then 
the request for burial is denied; otherwise, the request is approved.
    When it is suspected that a decedent may have committed a capital 
crime, but was not convicted due to death or flight to avoid 
prosecution, the cemetery director will take steps to obtain 
information from law enforcement officials in the jurisdiction where 
the crime was committed. Again, the VA Regional Counsel may assist the 
cemetery director in obtaining information from Federal or State 
Attorney General's offices as to how the case would have been 
potentially prosecuted.
    After collecting the available evidence, the VA Regional Counsel 
provides a written summary of events and a description on how the case 
would have been prosecuted allowing the cemetery director to make an 
initial decision on whether or not there ``appears to be clear and 
convincing evidence that a capital crime took place.'' If there does 
not appear to be clear and convincing evidence, the cemetery director 
approves burial. If the family decides on private burial during the 
period the cemetery director is collecting information, NCA interprets 
this as a withdrawal of the request for a VA burial benefit and no 
further action is taken.
    If no decision to bury elsewhere has occurred and there appears to 
be clear and convincing evidence that the decedent was convicted of a 
Federal or State capital crime, or was not convicted due to flight or 
death, the cemetery director sends the personal representative a 
certified letter outlining the steps that can be taken to provide 
additional information for consideration. The option to end the process 
at this point is also available. Cases where the personal 
representative elects to pursue the matter further are handled 
consistent with procedures contained in 38 CFR 38.617 and 38.618. 
Because these regulations are designed to provide the procedural 
protections associated with processing of claims for veterans benefits, 
they are somewhat complex. Nevertheless, our experience has been that 
NCA staff has been able to effectively and efficiently process capital 
crimes burial cases where a formal eligibility determination is 
required.
    While VA feels that it has a workable process in place, allowing us 
to implement the current statute, we have identified several areas of 
the statute which have been difficult to implement.
    In particular, we have found the requirement contained in 38 U.S.C. 
Sec.  2411(b)(3), which prohibits an individual from receiving burial 
benefits if the individual ``has not been convicted of such a crime by 
reason of the person not being available for trial due to death or 
flight to avoid prosecution'' somewhat difficult to administer. In 
these cases, because there is no Notice of Conviction, VA employees are 
put in the position of making decisions that typically would go through 
the judicial process. The employee has to decide not only if there 
appears to be clear and convincing evidence that a capital crime took 
place, but what kind of conviction and sentence would have resulted. 
Also, these cases put employees in the position of having to rely on 
local and/or state officials to assist in providing information 
necessary to make a decision. Some local and state officials have not 
responded to VA requests for information; in several cases we have been 
told that the local or state law officials did not have the time to 
spend on a case that they were not going to prosecute since the person 
was no longer living.
    Another area that has created problems is that each state defines 
``capital crimes'' differently, and there are significant differences 
between individual states regarding the imposition of the death 
sentence. For example, two individuals could commit similar crimes but 
in two different states; however, one State may prosecute as a capital 
crime and the other may not. One person would then be eligible for VA 
burial benefits and the other would not. While we strive to apply the 
requirement of this law as consistently as possible, the disparity in 
State law leads to an inequity that is built into the current system.
    Finally, requests for burials are time sensitive, particularly if 
you are dealing with casketed remains. We strive to process all capital 
crime burial eligibility determinations as quickly as possible. 
Nevertheless, some delay is inherent in this process. If the cemetery 
director has to tell a funeral director that an eligibility 
determination must be delayed since the case has to be reviewed, a 
family may decide to go elsewhere for burial. In such a case, we may be 
indirectly preventing an otherwise eligible veteran from receiving the 
burial benefit that he or she has earned.
    While there are aspects of the capital crimes prohibition statute 
we believe could be clarified and possibly strengthened, we do not 
currently have any specific suggestions. We would, however, be happy to 
work with the Committee on this matter. Such a discussion should not 
just look at the capital crime statute language, but also consider VA's 
statutory provisions governing the forfeiture of benefits. We note 
that, as part of the Veterans Benefits Act of 2003, Congress recently 
amended 38 U.S.C. Sec.  6105 (Forfeiture for subversive activities), to 
add prohibitions against payment of VA benefits in cases where a 
veteran has been convicted of six additional offenses. The offenses 
included within the section 6105 forfeiture provision now include 
crimes involving the misuse of biological and chemical weapons and the 
use weapons of mass destruction, acts of terrorism, and genocide.
    Thank you, again, for the opportunity to share with you an overview 
of NCA's current processes as related to the capital crime prohibition. 
I look forward to working with the Committee on this issue.
                                 ______
                                 
 Response to Written Questions Submitted by Hon. John Thune to Richard 
                          A. Wannemacher, Jr.

    . Question. It seems to me the situation that has arisen in the 
case of Russell Wagner could be prevented by simply changing the law to 
say that those convicted of murder but eligible for parole shall not be 
allowed to be buried in a national cemetery. Wouldn't this close the 
loophole and prevent this situation from arising again. It seems like 
an obvious remedy.
    Answer. Failed to respond within allotted time.

    Chairman Craig. Thank you very much, Richard.
    Now let us turn to Superintendent Higginbotham. Welcome 
before the Committee.

           STATEMENT OF THURMAN HIGGINBOTHAM, DEPUTY 
         SUPERINTENDENT, ARLINGTON NATIONAL CEMETERY; 
ACCOMPANIED BY CRAIG R. SCHMAUDER, DEPUTY GENERAL COUNSEL, U.S. 
                              ARMY

    Mr. Higginbotham. Good morning, sir. Thank you very much, 
sir. I, too, would also like to applaud Mr. Davis's courage 
here this morning. Mr. Davis and I had a conversation in my 
office a few months ago concerning this matter, and I share his 
grief deeply.
    Mr. Chairman and distinguished Members of the Committee, 
thank you for inviting the Department of the Army to discuss 
the 1997 law intended to prohibit capital offenders from 
interment or memorialization in Arlington National Cemetery. 
Thank you for the opportunity to testify before this Committee 
in support of the Department of the Army's Arlington National 
Cemetery and Soldiers' and Airmen's Home National Cemetery 
program. I am testifying on behalf of the Secretary of the 
Army, who is responsible for operating and maintaining 
Arlington and Soldiers' and Airmen's Home National cemeteries, 
as well as establishing the Army's eligibility policy for 
interment, inurnment, and memorialization.
    Arlington National Cemetery is the Nation's preeminent 
military cemetery. It is an honor to represent this cemetery 
and the Soldiers' and Airmen's Home National Cemetery, which 
are both national cemeteries under the jurisdiction of the 
Department of the Army and are civil works activities. On 
behalf of these two cemeteries and the Department of the Army, 
I would like to express our appreciation for the exceptional 
support that Congress has provided over the years.
    In fiscal year 2004, there were 3,858 interments and 2,517 
inurnments in Arlington National Cemetery. To date in fiscal 
year 2005, we have performed a total of 6,300 interment and 
inurnments services. We anticipate at a minimum an equal number 
of services in fiscal year 2006.
    Additionally, millions of visitors, both foreign and 
American, come to Arlington National Cemetery each year to view 
the cemetery and participate in and observe ceremonial events. 
During 2004 and 2005, over 3,000 ceremonies were conducted in 
those years to include the President of the United States at 
ceremonies on Veterans Day and Memorial Day.
    During fiscal year 2004, Arlington National Cemetery also 
accommodated approximately 4 million guests, making it one of 
the most visited historic sites in the National Capital Region.
    One of the Army's paramount objectives is to steadfastly 
maintain the integrity of Arlington National Cemetery by 
ensuring only those eligible under applicable law and Army 
policy are buried, inurned, or memorialized. There are two 
sections of the United States Code that address the burial of 
certain convicted criminals in Arlington National Cemetery.
    Enacted in 1997, 10 U.S.C. Sec.  985, disqualifies persons 
convicted of a Federal capital offense, an offense for which 
the death penalty may be imposed, from burial or inurnment in 
Arlington National Cemetery.
    Also enacted in 1997, 38 U.S.C. Sec.  2411, prohibits the 
interment, to include inurnment, or memorialization of a person 
who has been convicted of a Federal capital crime and sentenced 
to death or life imprisonment, or a person convicted of a State 
crime and sentenced to death or life imprisonment without 
parole. However, this statute does not address those who commit 
other heinous crimes and limits State capital crimes to the 
willful, deliberate, or premeditated killing of another human 
being.
    Under 38 U.S.C. Sec.  2411, the prohibition shall not apply 
unless written notice of a conviction is received by the 
Arlington National Cemetery before approval of an application 
for interment or memorialization of such person. Pursuant to 
the statute, such written notice shall be furnished to such 
official by the Attorney General in the case of a Federal 
capital crime, or by an appropriate State official, in the case 
of a State capital crime.
    Since these laws were enacted in 1997, Arlington National 
Cemetery has interred, inurned, or memorialized over 50,000 
veterans and/or eligible family members. In not one of these 
cases were we timely notified in writing of a Federal or State 
conviction in accordance with the statute's requirements. 
National media extensively reported on the recent inurnment in 
Arlington National Cemetery of Russell W. Wagner, an eligible 
veteran who was also a convicted murderer. Arlington National 
Cemetery was neither notified nor aware until after his 
inurnment service that he had been convicted in a Maryland 
State court of two murders. However, under 38 U.S.C. Sec.  
2411, he was not barred from inurnment in Arlington National 
Cemetery, as his life sentences included the possibility of 
parole. The disqualification contained in 10 U.S.C. Sec.  985 
did not apply because Mr. Wagner was not convicted of a Federal 
capital offense.
    Arlington National Cemetery's process relies on receiving 
proper notification from the appropriate State or Federal 
official that an individual was convicted of a State or Federal 
capital offense and is prohibited from interment, inurnment, or 
memorialization in Arlington National Cemetery, as specified in 
38 U.S.C. Sec.  2411. Again, to date, no such timely 
notification has been received by the Cemetery from any State 
or Federal officials.
    I note the prohibitions of 38 U.S.C. Sec.  2411 do not 
apply in cases where notification was not made prior to 
approval of the interment, inurnment, or memorialization, which 
contemplates that eligible veterans who have been convicted of 
a State or Federal capital offense may be interred, inurned, or 
memorialized in Arlington if notice is not timely received.
    The Army and Arlington National Cemetery recognize the 
significance of the issues involved in this matter, will 
continue to follow the current law, and look forward to working 
with this Committee and the Congress in maintaining the 
integrity of the cemetery. The Army thanks the Committee and 
the Congress again for its longstanding commitment to and 
support for Arlington National Cemetery.
    [The prepared statement of Mr. Higginbotham follows:]

  Prepared Statement of Thurman Higginbotham, Deputy Superintendent, 
                      Arlington National Cemetery

    Mr. Chairman and distinguished Members of the Committee, thank you 
for inviting the Department of the Army to discuss the 1997 law 
intended to prohibit certain capital offenders from interment or 
memorialization in Arlington National Cemetery. Thank you for the 
opportunity to testify before this Committee in support of the 
Department of the Army's Arlington National Cemetery and Soldiers' and 
Airmen's Home National Cemetery Program. I am testifying on behalf of 
the Secretary of the Army, who is responsible for operating and 
maintaining Arlington and Soldiers' and Airmen's Home National 
Cemeteries, as well as establishing the Army's eligibility policy for 
interment, inurnment, and memorialization.
    Arlington National Cemetery is the Nation's preeminent military 
cemetery. It is an honor to represent this cemetery and the Soldiers' 
and Airmen's Home National Cemetery, which are both national cemeteries 
under the jurisdiction of the Department of the Army and are civil 
works activities. On behalf of these two cemeteries and the Department 
of the Army, I would like to express our appreciation for the 
exceptional support that Congress has provided over the years.
    In fiscal year (FY) 2004, there were 3,858 interments and 2,517 
inurnments in Arlington National Cemetery. To date in fiscal year 2005, 
we have performed a total of over 6,300 interment and inurnment 
services. We anticipate, at a minimum, an equal number of services in 
fiscal year 2006.
    Additionally, millions of visitors, both foreign and American, come 
to Arlington National Cemetery each year to view the Cemetery and both 
participate in and observe ceremonial events. During fiscal year 2004 
and fiscal year 2005, over 3,000 ceremonies were conducted each year, 
with the President of the United States attending the ceremonies on 
both Veterans Day and Memorial Day.
    During fiscal year 2004, Arlington National Cemetery accommodated 
approximately 4 million guests, making it one of the most visited 
historic sites in the National Capitol Region.
    One of the Army's paramount objectives is to steadfastly maintain 
the integrity of Arlington National Cemetery by ensuring only those 
eligible under applicable law and Army policy are buried, inurned, or 
memorialized. There are two sections of the United States Code (U.S.C.) 
that address the burial of certain convicted criminals in Arlington 
National Cemetery. 10 U.S.C. Sec.  985, enacted in 1997, disqualifies 
persons convicted of a Federal capital offense, an offense for which 
the death penalty may be imposed, from burial or inurnment in Arlington 
National Cemetery.
    38 U.S.C. Sec.  2411, also enacted in 1997, prohibits the 
interment, to include inurnment, or memorialization of a person who has 
been convicted of a Federal capital crime and sentenced to death or 
life imprisonment, or a person convicted of a state capital crime and 
sentenced to death or life imprisonment without parole. However, this 
statute does not address those who commit other heinous crimes, and 
limits State capital crimes to the willful, deliberate, or premeditated 
killing of another human being.
    Under 38 U.S.C. Sec.  2411, the prohibition shall not apply unless 
written notice of a conviction is received by the Arlington National 
Cemetery before approval of an application for the interment or 
memorialization of such person. Pursuant to the statute, such written 
notice shall be furnished to such official by the Attorney General, in 
the case of a Federal capital crime, or by an appropriate State 
official, in the case of a State capital crime.
    Since these laws were enacted in 1997, Arlington National Cemetery 
has interred, inurned, or memorialized over 50,000 veterans and/or 
eligible family members. In not one of these cases were we timely 
notified in writing of a Federal or State conviction in accordance with 
the statute's requirements. National media extensively reported on the 
recent inurnment in Arlington National Cemetery of Russell W. Wagner, 
an eligible veteran who was also a convicted murderer. Arlington 
National Cemetery was neither notified nor aware until after his 
inurnment service that he had been convicted in a Maryland state court 
of two murders. However, under 38 U.S.C Sec.  2411, he was not barred 
from inurnment in Arlington National Cemetery, as his life sentences 
included the possibility of parole. The disqualification contained in 
10 U.S.C. Sec.  985 did not apply because Mr. Wagner was not convicted 
of a Federal capital offense.
    Arlington National Cemetery's process relies on receiving proper 
notification from the appropriate state or Federal official that an 
individual was convicted of a state or Federal capital offense and is 
prohibited from interment, inurnment, or memorialization in Arlington 
National Cemetery, as specified in 38 U.S.C. Sec.  2411. Again, to 
date, no such timely notification has been received by the Cemetery 
from any state or Federal officials.
    I note that the prohibitions of 38 U.S.C. Sec.  2411 do not apply 
in cases where notification was not made prior to approval of 
interment, inurnment, or memorialization, which contemplates that 
eligible veterans who have been convicted of a state or Federal capital 
offense may be interred, inurned, or memorialized in Arlington if 
notice is not timely received.
    The Army and Arlington National Cemetery recognize the significance 
of the issues involved in this matter, will continue to follow current 
law, and look forward to working with this Committee and the Congress 
in maintaining the integrity of the Cemetery. The Army thanks the 
Committee and the Congress for its long-standing commitment to, and 
support for, Arlington National Cemetery.

    Chairman Craig. Superintendent, thank you very much.
    We have been joined by Senator Thune. John, do you have any 
opening statement you want to make prior to questions?

                 STATEMENT OF HON. JOHN THUNE, 
                 U.S. SENATOR FROM SOUTH DAKOTA

    Senator Thune. Mr. Chairman, I do have an opening statement 
I would like to have included in the record, and I appreciate 
you very much for holding this important hearing. This is a 
complicated and sensitive issue, but clearly one that needs a 
remedy. I support your efforts, and I understand you are 
intending to introduce legislation that would correct this 
loophole.
    So I have got a statement I would like to have included in 
the record in its entirety.
    Chairman Craig. Without objection, it will become a part of 
the Committee record.
    Senator Thune. Thank you. And I thank the panel for your 
testimony this morning as well.
    Chairman Craig. John, thank you for being here.
    [The prepared statement of Senator Thune follows:]
    Prepared Statement of John Thune, U.S. Senator from South Dakota
    I would like to thank the Chairman for holding this important 
hearing on the complicated and sensitive issue of whether an honorably 
discharged veteran convicted of murder can be buried in a national 
cemetery. On the one hand, this seems like an easy issue to resolve. It 
seems almost intuitive that people convicted of murder should not be 
allowed to be buried with full military honors in a place like 
Arlington. On the other hand, we're talking about veterans who were 
honorably discharged, and faithfully served this country, usually long 
before they committed a heinous crime. If a person has been honorably 
discharged from the military, that person deserves the respect and the 
gratitude of the United States Government and the American people. But, 
I think it is an unwritten creed among veterans in this country that 
throughout their life they follow a path of honor, integrity, service 
to their community and, above all preserve the dignity of their status 
as American military veterans. When a few commit unspeakable crimes 
against their fellow citizens and the country that they had once sworn 
to protect, they break that creed of honor.
    Therefore, I believe that that those veterans convicted of murder 
should not be buried at a national cemetery. Because the law we passed 
in 1997 to prevent those convicted of murder from being buried at 
Arlington has been circumvented in the case of Russell Wagner, I 
believe we must work to close the loophole.
    I was a Member of the House in 1997 when the Congress passed this 
law. One of the reasons Congress passed this law was to prevent the 
possibility of Timothy McVeigh, the Oklahoma City bomber who was a 
decorated and honorably discharged veteran, from being buried at 
Arlington. I understand from the prepared testimony offered today that 
under the current law, the BTK killer in Wichita, KS, is entitled to be 
buried in Arlington because his conviction does not explicitly rule out 
the possibility of parole. Clearly, we need to change the law to 
prevent situations like this from happening.
    Again, I understand the complexity of this issue, and I appreciate 
the Chairman holding this hearing to examine this issue. I think it is 
obvious we need to fix the law we currently have on the books, and I 
look forward to the testimony to be offered today.

    Chairman Craig. Let me ask the question of both of you. It 
would seem that what we have with the parole loophole is a 
situation where the same crime committed in one State is 
treated differently for purposes of national cemetery burial 
eligibility than if it were committed in other States. Is that 
a circumstance of the situation based on State law or 
procedure? Please proceed.
    Mr. Hipolit. Mr. Chairman, I think part of the problem 
there is that the law now focuses on what sentence the person 
actually received rather than what sentence they could have 
received. The way it is written, the person actually has to 
have been convicted and sentenced to life without parole or 
death. That puts us at the will of the sentencing authorities, 
if one person might get a different sentence than another, the 
sentence received would be controlling. That would, I think, 
lead to variance from State to State depending on where they 
were prosecuted. I think that is the main issue. The law 
focuses on what sentence was actually received rather than what 
sentence could have been received.
    Chairman Craig. Any additional reaction to that?
    Mr. Schmauder. No, sir. I might add, though, in the Title 
10 provision, the sentence requirement is not found, and it is 
simply a conviction of a Federal capital offense for which the 
death penalty or life imprisonment may have been imposed. So 
there is a distinction between the Title 10 and the Title 38 
provision.
    Chairman Craig. So how could the Congress amend the burial 
prohibition law so that it reflects State sentencing for those 
who commit the same or similar atrocities? How do we create the 
uniformity that I think all of us want to seek here?
    Mr. Hipolit. I think there are a couple of ways as a 
technical matter that could be done. It would be possible to 
amend 38 U.S.C. Sec.  2411(b) to keep the existing language but 
add a reference to ``without regard to parole.'' That would be 
one way of addressing this issue.
    Another way, which would be, I think, probably a clean way, 
would be to just remove the reference in 2411(b) to the 
sentence that was received. That would throw us back on the 
definition of capital crime in 2411(d), which just refers to 
the sentence that could have been received rather than what was 
actually received. I think as a technical matter it could be 
done that way.
    Chairman Craig. But in that last response you provided, 
without clarity--clarity sometimes also confuses in the 
instance of trying to apply it to a variety of laws. Are we now 
creating a general environment from which interpretation then 
rests on the part of those who have to make the decision of the 
right of interment?
    Mr. Hipolit. I think in the second example I gave, it would 
be pretty clear. It would be a fairly bright-line rule because 
we would be able to look at the State law to see the crime with 
which the person was charged and what sentence was available 
for that crime; that would be something we could find in the 
statute books. I think it would be pretty clear to apply that.
    Mr. Schmauder. I would agree with my counsel that it does 
create an issue, if, in fact, we are relying simply on what 
could have been the conviction. That certainly will bring into 
issue plea bargain situations where someone may have been--
could have been charged with a death offense and then pleads 
down in and is convicted of a subsequent----
    Chairman Craig. Well, you have anticipated my next 
question, and that is the question of plea bargaining. How do 
we deal with those cases where the sentence can be reduced for 
capital crimes even though the underlying act merits burial 
disqualification? You would have to look at the total package, 
the total picture of the situation, I guess.
    Mr. Schmauder. I agree, Senator.
    Chairman Craig. I am also concerned about obviously the 
number of interment or inurnment services on an annual basis 
and the process of a clear, thorough, but hopefully relatively 
uncomplicated review. You spoke, certainly, Superintendent 
Higginbotham, to the timeliness of it and the importance of 
being able to do it in a timely way, and, of course, the 
absence of notification, and assure the thoroughness of the 
process to disallow the kind of thing that just happened.
    Mr. Higginbotham. I would think that probably what we need 
to do, we need to just look at that further to see how we can 
explore a way to find an avenue if we are not getting it from 
the Attorney General or the State Attorneys General. There must 
be another process we have to pursue. What that is right now, I 
don't know.
    Mr. Wannemacher. At the National Cemetery Administration, 
we have published regulations and guidelines for our directors 
to follow and the clarity makes it more efficient. But we have 
specific se not.guidelines to follow.
    Chairman Craig. Under what conditions could remains of 
capital offenders be disinterred from Arlington National 
Cemetery or VA national cemeteries?
    Mr. Hipolit. Speaking for the VA cemeteries, the way the 
law is currently written, if we don't receive notification of a 
conviction in advance of burial, then the capital crimes 
prohibition does not apply, so the person would have been 
eligible for burial. In that case, if we later found out that 
there had been a conviction, we wouldn't go back and disinter 
because the person----
    Chairman Craig. There is no requirement to do that.
    Mr. Hipolit. That is correct.
    Mr. Higginbotham. That is the same at Arlington, Senator.
    Chairman Craig. So, in other words--well, you have answered 
the question, then.
    If the action were directed by an act of Congress to 
preserve the dignity of those places and not as an act of 
punishment, might that avoid questions of constitutionality 
under an ex post facto or bill of attainder considerations?
    Mr. Hipolit. Mr. Chairman, I think you are correct about 
that. The ex post facto clause would apply in a case where 
Congress would add an additional punishment for a crime that 
was already committed or would criminalize conduct that was 
legal when it was committed. I think the controlling factor is 
whether the intention of Congress is to punish past conduct or 
whether it is to regulate current activities. I think Congress 
was very careful in enacting the original capital crimes law to 
make clear that what it was doing was preserving the sanctity 
of the cemeteries. The purpose was to address a current need 
rather than go back and punish people that had committed 
crimes. I think if it is done to that end, you would avoid a 
problem with ex post facto.
    Chairman Craig. Any reaction?
    Mr. Schmauder. Other than I am not a constitutional lawyer, 
I think that is a correct approach, and I think that is the 
intent.
    Chairman Craig. I am trying to get an idea about how 
pervasive the parole loophole is. How many Federal and State 
capital offenders have been denied burial because of the 
existing prohibition? Do you have that figure?
    Mr. Wannemacher. At the National Cemetery Administration in 
cases of denial, we do not collect explicit data on what 
eligibility criteria triggered the burial denial and we do not 
know if the request for burial has been withdrawn simply 
because we have been asking questions as to eligibility under 
the capital crimes prohibition statute. The National Cemetery 
Administration is averaging about 2 cases a month across the 
system nationwide, which we know are being reviewed under the 
capital crimes prohibition statute and regulation.
    Mr. Higginbotham. In my more than near 40 years at 
Arlington, I know of several that I can recall.
    Chairman Craig. How many cases did you have no authority to 
deny burial to because of sentences like the Russell Wagner 
situation or even the BTK killer situation? Do you know that?
    Mr. Higginbotham. No, sir.
    Chairman Craig. You don't have that figure either?
    Mr. Wannemacher. I don't have that figure either, sir.
    Chairman Craig. The law requires that you obtain a written 
Notice of Conviction from either Federal or State officials 
before burial eligibility can be barred. How workable is that 
requirement?
    Mr. Wannemacher. Because of the time limitations, it is 
workable, but we have to get local jurisdictions to cooperate, 
and we rely on our regional general counsel to assist in these 
cases. Sometimes it depends on the jurisdiction, really.
    Mr. Hipolit. If we have reason to believe that there may 
have been a conviction, we will go out and seek information 
from the appropriate authorities.
    Chairman Craig. Well, the question is: How would you even 
know? How do you develop a reason to believe?
    Mr. Hipolit. I think in many cases we have acquired 
information from the news media or reports from individuals. We 
have found out about cases on our own. I can't say that system 
is infallible by any means. There may be cases that we do not 
find out about.
    Mr. Wannemacher. Word of mouth is usually the way that we 
are notified of such cases. When we are notified, we put a flag 
in our computer burial operations system database which serves 
the national cemetery system and the State veterans cemeteries 
as well. This flag indicates an individual may be involved in a 
possible capital crimes case, and alerts staff to initiate 
procedures, such as asking specific questions, in accordance 
with the statute and regulation.
    Chairman Craig. So the question is not asked up front.
    Mr. Wannemacher. Right. That is correct.
    Chairman Craig. ``Has this person ever been convicted of a 
capital crime?'' That question is not asked of either----
    Mr. Wannemacher. No, sir.
    Mr. Higginbotham. No, sir.
    Chairman Craig. At Arlington or any of the rest of them.
    Mr. Higginbotham. We may become aware--there are some 
triggers while our representatives are taking the application 
from funeral directors. If the person died in a penitentiary, 
OK, then the flag goes up. Maybe we better look at this and see 
if the law might apply.
    Chairman Craig. I would think it should.
    Mr. Higginbotham. If that does not happen, then they just 
say the State of Maryland, like in the case of Mr. Wagner, if I 
am not mistaken, his death was in March, and the application 
was not made with us until months later. We received a 
cremation certificate, which only indicated the death occurred 
in Maryland. There was no place of death so there was nothing 
for us to put our arms around to even take a step further.
    Chairman Craig. Richard, your testimony suggests there has 
been a lack of cooperation from Federal and State officials 
with respect to those cases requiring a finding by VA that an 
individual would have been convicted of a State or Federal 
capital crime. Has the result of that lack of cooperation been 
that individuals who have committed murders but who died before 
being convicted are now buried at VA national cemeteries? Has 
that been the result?
    Mr. Wannemacher. As I said in my statement, the National 
Cemetery Administration always errs on the veteran's side. So 
if there is a situation where NCA does not have absolute proof 
that a capital crime as defined by the statute has been 
committed, then we err in favor of the veteran.
    Chairman Craig. Mr. Higginbotham, military funeral honors 
are denied to capital offenders even when a burial occurs at a 
private cemetery. What process is used by the military services 
to ensure that no funeral honors are provided to capital 
offenders at private cemeteries, do you know?
    Mr. Higginbotham. Private cemeteries?
    Chairman Craig. Yes.
    Mr. Higginbotham. No, I don't know what that process is.
    Chairman Craig. Mr. Higginbotham, it would appear from your 
testimony that Arlington has a passive process by which it 
identifies capital offenders. Unless Arlington officials 
receive a notice of conviction from a Federal or State 
official, no action is taken. That is what we have heard today.
    Why doesn't Arlington have a more formal active process in 
place?
    Mr. Higginbotham. Well, we relied on the law and the State 
and the Federal officials.
    Chairman Craig. But you don't ask the question up front.
    Mr. Higginbotham. No, we do not.
    Chairman Craig. Well, gentlemen, thank you all for being 
here today as we gather information and understand the process 
here and attempt to clarify this law. I think it is going to be 
the wishes of Congress that we do that, and we are certainly 
going to proceed in that direction.
    But we also want something that is workable. We do not want 
to have to be dealing with these kinds of things after the 
fact. We need to work together to make sure there is a process 
in place that is not cumbersome, but is responsible in ensuring 
the sanctity of our cemeteries for those who are buried there. 
So we thank you very much, and we will stay in contact with you 
as we refine this legislation.
    Mr. Higginbotham. Thank you, sir.
    Mr. Wannemacher. Thank you, Senator.
    Chairman Craig. Thank you.
    Chairman Craig. Now we will ask our last panelist to come 
forward: Dennis Cullinan, Director, National Legislative 
Service, Veterans of Foreign Wars, accompanied by Brian 
Lawrence, Assistant National Legislative Director, Disabled 
American Veterans.
    Dennis, welcome. Please proceed.

STATEMENT OF DENNIS M. CULLINAN, DIRECTOR, NATIONAL LEGISLATIVE 
    SERVICE, VETERANS OF FOREIGN WARS OF THE UNITED STATES; 
 ACCOMPANIED BY BRIAN LAWRENCE, ASSISTANT NATIONAL LEGISLATIVE 
              DIRECTOR, DISABLED AMERICAN VETERANS

    Mr. Cullinan. Thank you very much, Mr. Chairman.
    On behalf of the American Legion, the Disabled American 
Veterans, the Paralyzed Veterans of America, the Vietnam 
Veterans of America, and the Veterans of Foreign Wars of the 
United States, it is my privilege to address this forum today 
regarding an issue fraught with considerable legal, 
philosophical, and emotional implications and complexity. It is 
an issue that goes to the heart of the rules and rationale for 
the granting and, in some most unfortunate circumstances, 
taking away the benefits and entitlements conferred on this 
Nation's defenders by a grateful Nation.
    The situation that has again brought the rules governing 
burial or inurnment in Arlington or within the National 
Cemetery Administration are, as discussed today, the 
circumstances surrounding the placement of Russell Wayne 
Wagner's remains in Arlington Cemetery earlier this year.
    The propriety or correctness of the statutory language 
allowing Russell Wagner's Arlington service is now being called 
into question. It is this, along with certain other inequities 
under this law, that we will address here today.
    When Public Law 105-116 was under consideration in 1997, 
the Veterans Service Organizations represented here today, 
among others, testified before the House Veterans' Affairs 
Committee that, ``No group of citizens has invested more in the 
preservation of our national interests than veterans.'' And to 
that extent today, we continue to uphold most strongly the rule 
of law and the preservation of civilized conduct.
    It is our concern, however, that just as veterans must face 
the same justice as other citizens, that they are not subject 
to more severe or stringent penalties as a consequence of 
having served the Nation in uniform.
    Prior to the enactment of this law, the burial prohibition 
applied only to individuals who had perpetrated acts of mutiny, 
treason, sabotage, or subversive activities. Inasmuch as such 
actions effectively undid or negated their contributions while 
serving in uniform, the continuation of veteran's benefits, in 
our view, was clearly unwarranted and, indeed, improper.
    With respect to denying such benefits as a consequence of 
having committed certain other capital crimes, as was directed 
under this Public Law, we were then compelled to look at the 
implications or effect that allowing this honor to be conferred 
upon such nefarious individuals would have on burial in 
national cemeteries as a whole. It was our collective 
conclusion that permitting individuals so undeserving of such 
honor to be buried in veterans' cemeteries would diminish the 
dignity and service of other veterans and their survivors who 
are fully deserving of the honor. It is for this reason that we 
assented to the Act.
    However, in addressing burial eligibility, to now further 
extend the criteria or legal basis for revoking veterans' 
earned benefits and entitlements could well promote a cascading 
march of personal opinion regarding the severity or turpitude 
of various crimes leading to statutory renderings that would 
unjustly deny veterans that which this Nation has conferred 
upon them. As we testified in 1997, ``equal treatment [under 
law for veterans] demands a firm general rule that penalties 
should correlate to the crime and should not go beyond to 
revoke unrelated rights earned through service to the Nation.''
    As abhorrent the crimes committed by Russell Wayne Wagner 
subsequent to his honorable discharge from the military, he was 
and remains qualified for inurnment in Arlington National 
Cemetery. As unpalatable as this is for all of us here today, 
to allow this situation to result in an injudicious legislative 
assault on the costly bought prerogatives of all those who 
have, with honor and dignity, guarded our democratic liberties 
while serving in uniform would be a profoundly unfortunate 
outcome.
    One recommendation we would offer with respect to Public 
Law 105-116 pertains to a matter of fairness and equity. While 
its application with respect to Federal capital crimes is 
equitable, there is an anomaly in its language on State capital 
crimes. Applicable Federal capital crime is defined as ``an 
offense . . . for which the death penalty or life imprisonment 
may be imposed.'' State capital crime is defined as that for 
which `` . . . the death penalty or life imprisonment without 
parole may be imposed.''
    Due to the fact that some States explicitly stipulate 
sentences without parole in their sentencing language on 
capital crimes and others do not, with the inference that 
parole is then possible if improbable, a capital crime in one 
State will result in the prohibition on burial in a national 
cemetery, whereas conviction in another State of the very same 
crime will not. And the potential for burial of the BTK killer 
is a startling example of this. This is clearly something that 
this Congress should address and rectify.
    The last observation we will share here today is that on 
December 21, 2004, VA's Under Secretary for Memorial Affairs 
reissued guidelines and procedures for determining eligibility 
for burial benefits in potential capital crime cases. While we 
do not comment on the particulars of these guidelines today, it 
is our contention that the application of a uniform policy does 
provide an additional measure of certainty and equity in 
determining the outcome of these difficult and oftentimes 
unclear cases. It is our understanding that Arlington National 
Cemetery does not have a similar policy. We strongly recommend 
that the Superintendent of our National Veterans Cemetery 
devise and apply a similar coherent policy directive. This will 
help ensure a greater measure of fairness in determining burial 
eligibility and potentially help avoid some of the acrimony and 
ambiguity that has accompanied the inurnment of Russell Wagner.
    Mr. Chairman, that concludes our statement.
    [The prepared statement of Mr. Cullinan follows:]

     Prepared Statement of Dennis M. Cullinan, Director, National 
   Legislative Service, Veterans of Foreign Wars of the United States
    Mr. Chairman and Members of the Committee:

    On behalf of the American Legion, Disabled American Veterans, 
Paralyzed Veterans of America, Vietnam Veterans of America and the 
Veterans of Foreign Wars of the United States it is my privilege to 
address this forum today regarding an issue fraught with considerable 
legal, philosophical and emotional implications and complexity. It is 
an issue that goes to the heart of the rules and rational for the 
granting and, in some most unfortunate circumstances, taking away the 
benefits and entitlements conferred on this Nation's defenders by a 
grateful Nation.
    The situation that has again brought the rules governing burial or 
inurnment in Arlington or within the National Cemetery Administration 
are the circumstances surrounding the placement of Russell Wayne 
Wagner's remains in Arlington Cemetery early this year.
    A 52-year-old Vietnam War-era veteran, Russell Wayne Wagner died 
February 7 of a heroin overdose in prison. In 2002, he was convicted by 
the State of Maryland of the Valentine's Day 1994 murders of Daniel 
Davis, 84, and Wilda Davis, 80, and was sentenced to two consecutive 
life terms. The victims were found bound and stabbed in their home in 
Hagerstown, Md.
    Wagner's cremated remains were placed at the cemetery July 27 of 
this year. Wagner had been in the Army from 1969 to 1972 and was 
honorably discharged, service that qualified him for inurnment at 
Arlington.
    Congress passed a law in 1997 prohibiting people convicted of 
Federal or state capital crimes and sentenced to death or life 
imprisonment without parole from being interred at Arlington and other 
military cemeteries. Wagner would have become eligible in 2017 for a 
review that could have led to parole, according to the Maryland 
Division of Corrections. Under these guidelines, he was eligible for an 
Arlington service.
    The propriety or correctness of the statutory language allowing 
Russell Wagner's Arlington service is now being called into question. 
It is this, along with certain inequities under this law, that we will 
address today.
    When this law was under consideration in 1997, the Veterans Service 
Organizations represented here today, among others, testified before 
the House Veterans' Affairs Committee. ``No group of citizens has 
invested more in the preservation of our national interests than 
veterans.'' And, to that extent today, we continue to uphold mostly 
strongly the rule of law and the preservation of civilized conduct.
    Generally, as a group, we tend to expect more from veterans, to 
hold ourselves to a higher standard of behavior. Yet we must also 
realize that, just as in other segments of society, individuals will 
violate the rule of law, do unjustified harm to others, at times of the 
most abhorrent kind. Under these circumstances, justice must be met 
out, and all appropriate punishment under law applied. It is our 
concern, however, that just as veterans must face the same justice as 
other citizens, that they not are subject to more severe or stringent 
penalties as a consequence of having served the Nation in uniform.
    Prior to the enactment of Public Law 105-116, prohibiting the 
interment or memorialization in national cemeteries of individuals 
committing Federal or State capital crimes, this prohibition applied 
only to individuals who had perpetrated acts of mutiny, treason, 
sabotage or subversive activities. In as much as such actions 
effectively undid or negated their contributions while serving in the 
military, the continuation of veteran's benefits, in our view, was 
clearly unwarranted and, indeed, improper.
    With respect to denying such benefits as a consequence of having 
committed certain other capital crimes, as was directed under PL 105-
116, we were then compelled to look at the implications or affect that 
allowing this honor to be conferred upon such nefarious individuals 
would have on burial in national cemeteries as a whole. It was our 
collective conclusion that permitting individuals so undeserving of 
such honor to be buried in veteran's cemeteries would diminish the 
dignity and service of other veterans and their survivors who are fully 
deserving of the honor. It is for this reason that we assented to this 
Act.
    However, in addressing burial eligibility, to extend further the 
criteria or legal basis for revoking veteran's earned benefits and 
entitlements could well promote a cascading march of personal opinion 
regarding the severity or turpitude of various crimes leading to 
statutory renderings that would unjustly deny veterans that which this 
Nation has conferred upon them. As we testified in 1997, ``equal 
treatment [under law for veterans] demands a firm general rule that 
penalties should correlate to the crime and should not go beyond to 
revoke unrelated rights earned through service to the Nation.''
    As abhorrent the crimes committed by Russell Wayne Wagner 
subsequent to his honorable discharge from the military, he was and 
remains qualified for inurnment in Arlington National Cemetery. As 
unpalatable as this is for all of us here today, to allow this 
situation to result in an injudicious legislative assault on the costly 
bought prerogatives of all of those who have with honor and dignity 
guarded our democratic liberties while serving in uniform, would be a 
profoundly unfortunate outcome.
    One recommendation we would offer with respect to the language of 
PL 105-116 pertains to a matter of fairness and equity. While its 
application with respect to Federal capital crimes is equitable, there 
is an anomaly in its language on State capital crimes. Applicable 
Federal capital crime is defined as ``an offense'' for which the death 
penalty or life imprisonment may be imposed. State capital crime is 
defined as that for which ``. . . the death penalty or life 
imprisonment without parole may be imposed.''
    Due to the fact that some states explicitly stipulate sentences 
without parole in their sentencing language on capital crimes and 
others do not, with the inference that parole is then possible if 
improbable, a capital crime in one state will result in the prohibition 
on burial in a national cemetery whereas conviction in another state of 
the very same crime will not. One striking example of this is in the 
State of Kansas where without parole is not stipulated in sentencing 
and, for this reason, the infamous BTK killer, Dennis Rader, an 
honorably discharged veteran, who has been sentenced to 175 years in 
prison, will under current law be eligible upon his demise for burial 
in a National Cemetery or inurnment in Arlington National Cemetery. 
This is clearly something that this Congress should address and 
rectify.
    The last observation we will share here today is that on December 
21, 2004, VA's Under Secretary for Memorial Affairs reissued guidelines 
and procedures for determining eligibility for burial benefits in 
potential capital crimes cases. While we will not comment on the 
particulars of these guidelines today, it is our contention that the 
application of this uniform policy does provide an additional measure 
of certainty and equity in determining the outcome of these difficult 
and often times unclear cases. It is our understanding that Arlington 
National Cemetery does not have a similar policy. We strongly recommend 
that the Superintendent of our National Veterans Cemetery devise and 
apply a similar coherent policy directive. This will help ensure a 
greater measure of fairness in determining burial eligibility and 
potentially help avoid the acrimony and ambiguity that has accompanied 
the inurnment of Russell Wagner.
    Mr. Chairman and distinguished Members of the Committee, this 
concludes my testimony. I will be happy to respond to any questions you 
may have.
                                 ______
                                 
Response to Written Questions Submitted by Hon. John Thune to Dennis M. 
                                Cullinan

    1. Question. It seems to me a loophole in the law was exploited in 
the case of Russell Wagner that violates the spirit of the law 
prohibiting convicted murderers from being buried in a national 
cemetery. Do you believe Russell Wagner should have been buried at 
Arlington National Cemetery?
    Answer. Failed to respond within allotted time.
    2. Question. Russell Wagner was able to be buried in Arlington for 
essentially the same reason that BTK killer will be able to be buried 
there--because their convictions explicitly or implicitly leave open 
the possibility for parole. Should the BTK killer be allowed to be 
buried at Arlington?
    Answer. Failed to respond within allotted time.

    Chairman Craig. Dennis, thank you, and as I ask these 
questions, both of you may choose to respond to them.
    Your testimony points out that there are some actions 
committed after service that essentially negate an individual's 
honorable military service and that, therefore, the 
continuation of veterans' benefits is unwarranted in those 
cases. Many would argue that capital murder and even other 
post-service crimes might fall in the category of negating 
honorable military service. Where would you draw the line?
    Mr. Cullinan. Mr. Chairman, when we testified in 1997, we 
had to pay great attention to protecting the sanctity of our 
national cemeteries and preserving the benefits of our Nation's 
veterans. One of the key issues with respect to this is the 
fact that burial in a national cemetery is a shared honor, and 
to allow someone of the kind of the BTK killer to be buried in 
a national cemetery brings shame and dishonor to all of those 
who are buried there, and their survivors. On the other hand, 
there are certain other crimes that, as abhorrent as they may 
be, do not rise to that level of infamy.
    In preparing this testimony, we noted that along with the 
severity, the evil of the crime, there is the issue of how 
infamous it is, how widely known, how widely understood. And 
that is the crux of the problem. It is not just the crime 
itself. It is actually how widely known the crime is, how evil 
it is.
    So having said that, we would be very reluctant, other than 
perhaps making certain corrections in the application of the 
current law, to go farther than that.
    Chairman Craig. Well, you are caught in a very difficult 
situation, as are we. Obviously, you are and you should be the 
guardian of our veterans' rights, and certainly burial in a 
national or State cemetery is viewed as a very important right. 
And the debate that we are going through right now and, I 
understand, the debate that you are all going through, as it 
relates to how heinous a crime, you are talking infamous versus 
heinous.
    Mr. Cullinan. Right.
    Chairman Craig. Let me walk you through a couple of 
thoughts here. Your testimony addressed the concerns that 
emotionally fired cases like Wagner's could well promote a 
cascading march of personal opinion regarding the severity or 
turpitude of various crimes that would have the effect of 
unjustly revoking veterans' earned benefits. Again, some might 
argue that there exist some actions that are objectively so 
grievous so as to remove any debate about their severity or 
turpitude from the realm of personal opinion. Capital murder is 
one example.
    What about rape? What about child abduction, molestation? 
Should the complexity of where the line is drawn cause us to 
draw a very thin line or no line at all?
    Mr. Cullinan. Mr. Chairman, we would have to say that a 
line would have to be drawn, but in preparing for this 
testimony, one of the first things that was apparent in the 
Public Law under discussion today is the fact that it goes to 
sentencing as opposed to the crime itself. At first, that did 
not make sense to me. Upon further reflection, it makes perfect 
sense because, as a Nation, in adjudicating such matters we are 
not only governed by a code of law, but by the decisions of a 
judge and a jury. And that is the method by which the 
heinousness, the evil is adjudicated. It is certainly not a 
perfect method, but other than that, we would be in a situation 
where we would try and define evil through regulations. Would 
the Director of the Cemetery Service at the Department of 
Veterans Affairs be called upon to somehow ascribe a level of 
evil to various acts? And that is our concern.
    Chairman Craig. Well, the reason I am walking you through 
these questions is not only for us to better understand your 
thoughts, but I think those who are here or those who are 
interested in what we are attempting to do have to understand 
the complexity of our concern and how you draw the line in the 
clear and definable way.
    A primary criterion for eligibility to all veterans' 
benefits, including burial, is that there be an honorable 
discharge. I would imagine there are numerous criminal actions 
that, if committed in the service, would hasten a dishonorable 
discharge. Why, then, if those same actions were to be 
committed after service should there not be a similar 
revocation of benefits? Let me give you an example.
    Why should a rape, let's say, the day before discharge or 
prior to discharge that would create a dishonorable discharge 
from the service not be reacted to in the same way in civilian 
life and, therefore, bring about an ineligibility? Because if 
that person obviously committed that crime while in the service 
and were convicted, they would receive a dishonorable 
discharge, and they would not be eligible.
    Is that a double standard?
    Mr. Cullinan. Mr. Chairman, I do not believe that it is a 
double standard. With respect to the revocation of a veteran's 
burial entitlement, that is one of the very rare instances, 
other than through acts of treason, sabotage, and certain acts 
of terrorism, where subsequent behavior is predicative on the 
bestowment and possible revocation of the benefit. It is only 
veterans then who are sort of subject--not to double jeopardy, 
but to the fact that behavior subsequent to their having earned 
a given benefit under law could be taken away.
    Chairman Craig. Any additional comments, Brian?
    Mr. Lawrence. Our purpose here is just to make sure that an 
injustice does not occur 180 degrees opposite to this, where 
somebody that should rightfully be buried at Arlington is 
barred, because it is very hard to draw that threshold of 
separation. And it is hard to tailor that threshold or law to 
fit every conceivable situation. I thought you summarized our 
point more eloquently than I could have in your introduction 
and that we just would urge the greatest caution in adjusting 
the law.
    Chairman Craig. Well, gentlemen, thank you both. We will 
stay in very close contact with you as we craft the language 
and work with you in its crafting. It is obvious, in my 
opinion, that the sentiment of the Congress is to make an 
adjustment here. At the same time, I think the Congress would 
approach it with the same kind of caution that you have. And 
yet it really has to meet a public test. And obviously what 
happened has not, in the case of the Wagner situation. This is 
a hearing that is not intended to lay blame in any respect. It 
is intended to correct what appears to be as I expressed 
earlier and as others have, a loophole in the law based on the 
way the law is applied State by State and nationally.
    So we thank you very much for being with us today.
    Mr. Cullinan. Thank you very much, Mr. Chairman.
    Chairman Craig. Thank you all for attending today. I think 
you sense the sentiment of those of the Senate's, at least, and 
those who are here and others. We will move expeditiously but 
cautiously to make a change in the law to attempt to assure 
that this kind of action does not happen again.
    Thank you all very much. The Committee will stand 
adjourned.
    [Whereupon, at 11:30 a.m., the Committee was adjourned.]
  

                                  
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