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[House Report 110-620]
[From the U.S. Government Publishing Office]

110th Congress                                            Rept. 110-620
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

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 REMOVING THE AFRICAN NATIONAL CONGRESS FROM TREATMENT AS A TERRORIST 
                              ORGANIZATION

                                _______
                                

                  May 5, 2008.--Ordered to be printed

                                _______
                                

    Mr. Conyers, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 5690]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 5690) to exempt the African National Congress from 
treatment as a terrorist organization for certain acts or 
events, provide relief for certain members of the African 
National Congress regarding admissibility, and for other 
purposes, having considered the same, report favorably thereon 
with amendments and recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     3
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     4
New Budget Authority and Tax Expenditures........................     5
Congressional Budget Office Cost Estimate........................     5
Performance Goals and Objectives.................................     6
Constitutional Authority Statement...............................     7
Advisory on Earmarks.............................................     7
Section-by-Section Analysis......................................     7
Changes in Existing Law Made by the Bill, as Reported............     7
Additional Views.................................................     9

                             The Amendment

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

SECTION 1. EXEMPTION OF AFRICAN NATIONAL CONGRESS FROM TREATMENT AS 
                    TERRORIST ORGANIZATION FOR CERTAIN ACTS OR EVENTS.

  Section 691(b) of the Department of State, Foreign Operations, and 
Related Programs Appropriations Act, 2008 (division J of Public Law 
110-161; 121 Stat. 2365) is amended by inserting ``the African National 
Congress (ANC),'' after ``the Karenni National Progressive Party,''.

SEC. 2. RELIEF FOR CERTAIN MEMBERS OF THE AFRICAN NATIONAL CONGRESS 
                    REGARDING ADMISSIBILITY.

  (a) Exemption Authority.--The Secretary of State, after consultation 
with the Attorney General and the Secretary of Homeland Security, or 
the Secretary of Homeland Security, after consultation with the 
Secretary of State and the Attorney General, may determine in such 
Secretary's sole unreviewable discretion that paragraphs (2)(A), 
(2)(B), and (3)(B) of section 212(a) of the Immigration and Nationality 
Act (8 U.S.C. 1182(a)) shall not apply to an alien with respect to 
activities undertaken in opposition to apartheid rule in South Africa.
  (b) Sense of Congress.--It is the sense of the Congress that the 
Secretary of State and the Secretary of Homeland Security should 
immediately exercise in appropriate instances the authority in 
subsection (a) to exempt the anti-apartheid activities of aliens who 
are current or former officials of the Government of the Republic of 
South Africa.

SEC. 3. REMOVAL OF CERTAIN AFFECTED INDIVIDUALS FROM CERTAIN UNITED 
                    STATES GOVERNMENT DATABASES.

  The Secretary of State, in coordination with the Attorney General, 
the Secretary of Homeland Security, the Director of the Federal Bureau 
of Investigation, and the Director of National Intelligence, shall take 
all necessary steps to ensure that databases used to determine 
admissibility to the United States are updated so that they are 
consistent with the exemptions provided under section 2.

                          Purpose and Summary

    Due to their broad scope, certain security-related 
provisions within the Immigration and Nationality Act (INA) 
currently require the United States to consider the African 
National Congress (ANC) a terrorist organization. These 
provisions also require the U.S. to consider as ``terrorist 
activities'' many actions taken in opposition to apartheid rule 
in South Africa. The Department of State and Department of 
Homeland Security are required by law to deny admission to 
persons who trigger these provisions, including many current 
and former members of the government of the Republic of South 
Africa.
    H.R. 5690 removes the ANC from treatment as a terrorist 
organization, and grants the Secretary of State and the 
Secretary of Homeland Security the discretionary authority to 
determine that certain criminal and security-related grounds of 
inadmissibility do not apply to an alien with respect to 
activities undertaken in opposition to apartheid rule in South 
Africa. The bill also requires the Secretary of State, in 
coordination with other agencies, to take all necessary steps 
to ensure that databases used to determine admissibility to the 
United States are updated so that they are consistent with the 
exemptions provided in the bill.

                Background and Need for the Legislation

    In the wake of the attacks of September 11, 2001, Congress 
enacted the USA PATRIOT Act of 2001\1\ and the REAL ID Act of 
2005.\2\ Among other things, these measures sought to exclude 
and remove known and suspected terrorists from the United 
States by broadening the security-related grounds of 
inadmissibility--especially those related to terrorism--within 
the INA.
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    \1\Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 
107-56).
    \2\Division B of the Emergency Supplemental Appropriations Act for 
Defense, the Global War on Terror, and Tsunami Relief, 2005 (Public Law 
109-13).
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    These measures, however, broadened the security-related 
grounds of inadmissibility to such an extent that they were 
triggered by numerous groups and individuals whom Congress did 
not intend to affect. These groups and individuals included 
freedom-fighters, such as the Hmong and Montagnards in 
southeast Asia, who fought side-by-side with U.S. military 
units or were otherwise supported by the U.S. Government. They 
included persons who used armed resistance to defend themselves 
against brutal and repressive regimes, such as the Castro 
regime in Cuba or the military government in Burma. They even 
included women who were raped and enslaved by armed militia in 
Liberia; victims of extortion forced to pay armed rebels in 
Colombia to protect their lives and those of their families; 
and nurses and missionaries who were kidnapped, assaulted, and 
forced to provide medical treatment to guerilla fighters. These 
provisions have had severe consequences for non-citizens of all 
types, including refugees, asylum seekers, lawful permanent 
residents, and foreign government officials. Among other 
things, the provisions have resulted in a significant drop in 
the number of resettled refugees for fiscal years 2006 and 
2007, as well as denials or delays of thousands of asylum and 
permanent residence applications. They have also resulted in 
embarrassing denials of visas for foreign heads of state, as 
well as other foreign government officials and dignitaries.
    Over the last 2 years, Congress has recognized the 
unintended consequences of the terrorism provisions and has 
begun to take corrective action. Most recently, Congress 
created a series of exemptions to the terrorism provisions in 
the Department of State, Foreign Operations, and Related 
Programs Appropriations Act, 2008 (``Foreign Operations 
Act'').\3\ In this Act, Congress automatically removed numerous 
groups from treatment as terrorist organizations, including:
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    \3\Section 691, Division J of Public Law 110-161.

        The Karen National Union/Karen Liberation Army (KNU/
        KNLA), the Chin National Front/Chin National Army (CNF/
        CNA), the Chin National League for Democracy (CNLD), 
        the Kayan New Land Party (KNLP), the Arakan Liberation 
        Party (ALP), the Mustangs, the Alzados, the Karenni 
        National Progressive Party, and appropriate groups 
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        affiliated with the Hmong and the Montagnards.

Congress also gave the Secretary of State and the Secretary of 
Homeland Security discretionary authority to determine that the 
security-related grounds of inadmissibility do not apply to an 
individual or group with respect to certain actions.
    Despite these corrective actions, further legislation is 
necessary to correct the unintended application of the 
terrorism provisions to the ANC and its members. Current law 
continues to regard the ANC as a terrorist organization, and to 
deny entry to members based solely on their affiliation to the 
ANC, because the ANC used armed force as part of its ultimately 
successful political effort to overturn the repressive 
apartheid system in South Africa. The law also requires the 
U.S. to deny entry to South Africans for their activities in 
opposition to apartheid rule and for convictions related to 
such activities.
    These residual restrictions in the INA are an affront to 
relations between the United States and the Republic of South 
Africa. Today, South Africa is an ally in the war on terror and 
the leading trading partner of the United States on the African 
continent, yet South African officials and dignitaries are 
often denied visas or forced to obtain special waivers when 
seeking admission to the United States. Even former President 
Nelson Mandela must seek a waiver to enter the United States 
due to his anti-apartheid activities and a 1962 conviction for 
sabotage.
    H.R. 5690 would remove the ANC from treatment as a 
terrorist organization, and allow the Secretary of State and 
Secretary of Homeland Security to admit individuals 
irrespective of any activities undertaken in opposition to 
apartheid rule in South Africa. The bill would also require the 
Secretary of State, in coordination with other agencies, to 
take all necessary steps to ensure that databases used to 
determine admissibility to the United States are updated so 
that they are consistent with the exemptions provided in the 
bill.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
5690.

                        Committee Consideration

    On April 30, 2008, the Committee met in open session and 
ordered the bill H.R. 5690 favorably reported with an 
amendment, by voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that there 
were no recorded votes during the Committee's consideration of 
H.R. 5690.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 5690, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                       Washington, DC, May 2, 2008.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 5690, a bill to 
exempt the African National Congress from treatment as a 
terrorist organization for certain acts or events, provide 
relief for certain members of the African National Congress 
regarding admissibility, and for other purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                           Peter R. Orszag,
                                                          Director.

Enclosure.

cc:
        Honorable Lamar S. Smith.
        Ranking Member

H.R. 5690--A bill to exempt the African National Congress from 
        treatment as a terrorist organization for certain acts or 
        events, provide relief for certain members of the African 
        National Congress regarding admissibility, and for other 
        purposes

    CBO estimates that implementing H.R. 5690 would have no 
significant cost to the Federal Government. Enacting the bill 
could affect direct spending, but CBO estimates that any such 
effects would not be significant in any year. In addition, we 
estimate that enacting H.R. 5690 could increase revenues by 
less than $500,000 a year over the 2009-2018 period. This 
legislation contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The bill would broaden the authority of the Department of 
State and the Department of Homeland Security (DHS) to permit 
certain members of the African National Congress to enter the 
United States.
    The Department of State collects fees from persons who 
apply for immigrant and nonimmigrant visas from overseas. Under 
current law, some application and issuance fees for visas are 
deposited in the Treasury as revenues (applicants for immigrant 
visas pay a $355 fee and South African citizens who receive 
certain nonimmigrant visas pay an $85 issuance fee). Based on 
information from the Department of State, CBO estimates that, 
under the bill, the department would process few additional 
applications annually and that enacting H.R. 5690 would 
increase revenues by less than $500,000 a year over the 2009-
2018 period.
    The Department of State also charges individuals entering 
the country other visa fees: a $131 application fee for 
nonimmigrant visas, a $45 security surcharge for immigrant 
visas, and depending on the type of visa petition, additional 
fees for fingerprinting or affidavits of support. In addition, 
DHS would collect fees ranging from $100 to $500 to process 
visa applications from most individuals affected by H.R. 5690. 
All of those fees are classified as offsetting collections (for 
the Department of State) or offsetting receipts (for DHS) and 
are retained and spent by the departments. CBO estimates that 
the net budgetary effect of those increased collections would 
be less than $500,000 a year.
    Finally, some of the individuals admitted under this 
legislation could become eligible for certain Federal benefits, 
but CBO expects that any increase in direct spending for 
benefit programs would not be significant over the 2009-2018 
period.
    The CBO staff contacts for this estimate are Mark Grabowicz 
(for DHS's costs), and Sunita D'Monte (for the Department of 
State's costs). This estimate was approved by Theresa Gullo, 
Deputy Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
5690 is intended to ensure that the African National Congress 
is not considered a foreign terrorist organization under the 
Immigration and Nationality Act (INA), and that members of the 
ANC are not inadmissible solely because of their affiliation to 
the organization. The bill also provides the Secretary of State 
and the Secretary of Homeland Security with the discretionary 
authority to determine that an individual's acts in opposition 
to apartheid rule in South Africa do not trigger the bars to 
admissibility in sections 212(a)(2) or 212(a)(3) of the INA. 
Once such a determination is made, it should be reflected in 
all relevant databases used to determine admissibility to the 
United States so that subsequent attempts to enter do not 
require exercise of such discretion. Congress intends that the 
Secretary of State will coordinate with all relevant Federal 
departments and agencies to ensure that such database changes 
are made. Finally, as is expressed in the sense of Congress, 
Congress intends that the Secretary of State and Secretary of 
Homeland Security immediately begin to exercise their 
discretionary authority on behalf of current and former 
officials of the government of the Republic of South Africa. 
Congress expects that this new authority will be exercised sua 
sponte and without petition from such government officials, so 
that upon application for entry to the United States, the 
relevant determination has already been made.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, clause 4 of the 
Constitution.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 5690 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Exemption of African National Congress from 
Treatment as Terrorist Organization for Certain Acts or Events. 
This section revises section 691(b) of the Department of State, 
Foreign Operations, and Related Programs Appropriations Act, 
2008 (division J of Public Law 110-161) by adding the African 
National Congress (ANC) to a list of organizations that shall 
not be considered terrorist organizations on the basis of past 
acts or events. Pursuant to this amendment, members of the ANC 
will no longer trigger security-related bars to admission under 
the immigration laws merely by virtue of their membership in or 
affiliation to the ANC.
    Section 2. Relief for Certain Members of the African 
National Congress Regarding Admissibility. Subsection (a) of 
this section provides discretionary authority to the Secretary 
of State and the Secretary of Homeland Security to determine 
that certain criminal and security-related grounds of 
inadmissibility do not apply to an alien with respect to acts 
in opposition to apartheid rule in South Africa. Subsection (b) 
of this section states the sense of Congress that such 
discretionary authority should immediately be exercised in 
appropriate circumstances with respect to the anti-apartheid 
activities of current or former officials of the government of 
the Republic of South Africa.
    Section 3. Removal of Certain Affected Individuals from 
Certain United States Government Databases. This section 
instructs the Secretary of State, in coordination with the 
Department of Justice, the Department of Homeland Security, the 
Federal Bureau of Investigation, and the Director of National 
Intelligence, to take all necessary steps to ensure that 
databases used to determine admissibility to the United States 
are updated so that they are consistent with the exemptions 
provided in section 2 of the bill.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

SECTION 691 OF THE DEPARTMENT OF STATE, FOREIGN OPERATIONS, AND RELATED 
                   PROGRAMS APPROPRIATIONS ACT, 2008

                   (Division J of Public Law 110-161)

  Sec. 691. (a) * * *
  (b) Automatic Relief for the Hmong and Other Groups That Do 
Not Pose a Threat to the United States.--For purposes of 
section 212(a)(3)(B) of the Immigration and Nationality Act (8 
U.S.C. 1182(a)(3)(B)), the Karen National Union/Karen 
Liberation Army (KNU/KNLA), the Chin National Front/Chin 
National Army (CNF/CNA), the Chin National League for Democracy 
(CNLD), the Kayan New Land Party (KNLP), the Arakan Liberation 
Party (ALP), the Mustangs, the Alzados, the Karenni National 
Progressive Party, the African National Congress (ANC), and 
appropriate groups affiliated with the Hmong and the 
Montagnards shall not be considered to be a terrorist 
organization on the basis of any act or event occurring before 
the date of enactment of this section. Nothing in this 
subsection may be construed to alter or limit the authority of 
the Secretary of State or the Secretary of Homeland Security to 
exercise his discretionary authority pursuant to section 
212(d)(3)(B)(i) of the Immigration and Nationality Act (8 
U.S.C. 1182(d)(3)(B)(i)).

           *       *       *       *       *       *       *

                            ADDITIONAL VIEWS

    The African National Congress played a significant role in 
history. Nelson Mandela and the ANC for many years fought 
against the unjust apartheid system in South Africa. Through a 
largely peaceful transfer of power, apartheid is a thing of the 
past and South Africa now has a representative democratic 
government. Many ANC officials are now officials of South 
Africa's government. South Africa provides hope that genuine 
reconciliation between historically at-odds groups can be 
achieved.
    H.R. 5690 adds the ANC to the list of groups that are not 
considered terrorist organizations under the Immigration and 
Nationality Act.\1\ Such a list was created in order to shield 
certain organizations from the overbreath of the Immigration 
Act of 1990. As discussed below, under the 1990 legislation, 
any guerilla group would find itself encompassed within the 
definition of terrorist organization. The groups currently on 
the exempt list include Hmong and Montagnard guerillas that 
fought alongside U.S. soldiers in the Vietnam War and groups 
that are fighting against the repressive Burmese government. It 
is understandable that the ANC be added to this list.
---------------------------------------------------------------------------
    \1\This list was established in the fiscal year 2008 omnibus 
appropriations bill (Pub. L. No. 110-161).
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    However, we have to recognize that real terrorist acts were 
committed as part of the struggle against apartheid. There were 
deadly bombings of civilians.\2\ There were so-called 
``necklacings,'' in which car tires were put around persons's 
necks and set on fire.
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    \2\See, e.g., U.S. Department of Defense, Terrorist Group Profiles 
129 (1988).
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    It is not a simple matter of stating that this bill is only 
directed at members of the ANC. Terrorist acts were carried out 
in the name of the ANC and supported by at least some ANC 
officials. Let me quote from the New York Times from 1988:

          Leaders of the ANC have for the first time accepted 
        responsibility for some recent bombing attacks on 
        civilians and said they have taken the first steps to 
        prevent a recurrence. . . . [A] score of bombing 
        attacks appear to have been deliberately aimed at 
        civilian targets like amusement arcades, fast-food 
        outlets, sports stadiums and shopping centers in and 
        near Johannesburg and Pretoria. The [ANC] had avoided 
        either taking or denying responsibility. Criticism 
        reached a climax with a car-bomb explosion outside a 
        Johannesburg stadium early last month, in which 2 
        people died and 67 were hurt. The attacks have been 
        widely condemned by anti-apartheid leaders and church 
        groups normally sympathetic to the ANC. . . . [The 
        removal of an ANC political commissar] was widely 
        regarded as something of an exercise in damage control. 
        . . . [He] had publicly spoken in favor of striking at 
        civilian targets, arousing debate within the 
        organization over military tactics.\3\
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    \3\John Battersby, A.N.C. Acts to Halt Civilian Attacks, New York 
Times, August 21, 1988.

    The ends do not justify the means. As unjust as apartheid 
was, that was not a rationale to carry out terrible crimes. 
Therefore, I could not support that part of the bill as 
introduced under which members of the ANC are not considered 
inadmissible on the basis of any anti-apartheid activities in 
which they engaged no matter what their nature. However, the 
bill as reported by the Judiciary Committee provides 
appropriate relief to the ANC without excusing the perpetrators 
of terrorist acts. I appreciate the willingness of Mr. Conyers, 
Mr. Berman and Ms. Lofgren to address my concerns.
    I must respond to the characterizations of the REAL ID made 
in the Committee Report. The REAL ID Act modified the grounds 
of inadmissibility and deportability for contributing funds or 
other material support to terrorist organizations.\4\ The 
Immigration and Nationality Act as it existed before the 
enactment of the REAL ID Act provided that if aliens provided 
funding or other material support to a terrorist organization 
that for whatever reason had not yet been designated by the 
Secretary of State as a terrorist organization (pursuant to 
section 219 of the Immigration and Nationality Act), the aliens 
were only inadmissible or deportable if they knew that the 
support would further the organization's terrorist activities, 
i.e., to buy a bomb. However, money given to terrorist 
organizations is fungible. As Senator Dianne Feinstein has 
stated:
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    \4\Section 103 of Title 1 of Division B of Pub. L. No. 109-13.

          Some have raised the objection that certain groups, 
        that may conduct terrorist operations, also run 
        humanitarian or social service operations, like schools 
        and clinics. But I simply do not accept that so-called 
        humanitarian works by terrorist groups can be kept 
        separate from their other operations. I think the money 
        will ultimately go to bombs and bullets, rather than 
        babies, or, because money is fungible, it will free up 
---------------------------------------------------------------------------
        other funds to be used on terrorist activities.

    Based on this understanding of how terrorist organizations 
work, the REAL ID Act provided that aliens who provide funds or 
other material support to any organization that commits 
terrorist acts would be inadmissible and deportable--unless 
they did not know, and should not reasonably have known, that 
the organization was a terrorist organization. Similar changes 
were made in the context of aliens who were members or 
representatives of terrorist groups that had not been 
designated as such by the Secretary of State.
    The definition of what is considered a terrorist act under 
the Immigration and Nationality Act was written in the 
Immigration Act of 1990. The definition was written broadly so 
as to give maximum flexibility to the Immigration and 
Naturalization Service and because of the difficulty of 
precisely defining terrorism. Essentially, any armed attack 
other than for mere personal monetary gain with intent to 
endanger the safety of one or more individuals or to cause 
substantial damage to property is considered a terrorist 
act.\5\ Because such a broad definition of terrorist act would 
in certain instances encompass armed groups that did not target 
civilians and thus should not be considered terrorist 
organizations, the REAL ID Act included a provision allowing 
the Administration to waive the material support bar on 
admissibility and deportability in appropriate cases.\6\ As 
discussed above, Congress decided to establish a statutory list 
of organizations to be deemed not terrorist organizations for 
immigration purposes in the fiscal year 2008 omnibus 
appropriations bill. H.R. 5690 adds the ANC to this list, and 
is thus consistent with the goals of the REAL ID Act.
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    \5\Section 212(a)(3)(B)(iii) of the Immigration and Nationality 
Act.
    \6\Section 104 of Title 1 of Division B of Pub. L. No. 109-13.

                                                       Lamar Smith.

                                  
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