U.S. GOVERNMENT PRINTING OFFICE

68–017 CC WASHINGTON : 2000

S. HRG. 106–799

CLEMENCY FOR FALN MEMBERS

HEARINGS

BEFORE THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

ON

EXAMINING CERTAIN IMPLICATIONS OF THE PRESIDENT’S GRANT OF

CLEMENCY FOR MEMBERS OF THE ARMED FORCES ON NATIONAL

LIBERATION (THE FALN)

SEPTEMBER 15, AND OCTOBER 20, 1999

Serial No. J–106–46

Printed for the use of the Committee on the Judiciary

(

COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

BOB SMITH, New Hampshire

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

ROBERT G. TORRICELLI, New Jersey

CHARLES E. SCHUMER, New York

MANUS COONEY, Chief Counsel and Staff Director

BRUCE A. COHEN, Minority Chief Counsel

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(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page

Hatch, Hon. Orrin G., U.S. Senator from the State of Utah............................ 1, 89, 92

Feinstein, Hon. Dianne, U.S. Senator from the State of California .................... 5

Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont ............... 6, 105, 107

Thurmond, Hon. Strom, U.S. Senator from the State of South Carolina ........... 7, 117

Sessions, Hon. Jeff, U.S. Senator from the State of Alabama ............................. 59

Torricelli, Hon. Robert G., U.S. Senator from the State of New Jersey .............. 61

Grassley, Hon. Charles E., U.S. Senator from the State of Iowa ........................ 62

Abraham, Hon. Spencer, U.S. Senator from the State of Michigan .................... 66

Kyl, Hon. Jon, U.S. Senator from the State of Arizona ...................................... 71, 132

Specter, Hon. Arlen, U.S. Senator from the State of Pennsylvania .................... 135

CHRONOLOGICAL LIST OF WITNESSES

SEPTEMBER 15, 1999

Panel consisting of Rocco Pascarella, former New York City policeman, FALN

victim, Washingtonville, NY; William P. Newhall, FALN victim, New York,

NY; Donald R. Wofford, former FBI special agent assigned to New York

City FALN Investigation, Wilmington, NC; Richard S. Hahn, former FBI

special agent assigned to Chicago FALN investigation, Long Beach, CA;

Gilbert G. Gallegos, national president of the Grand Lodge, Fraternal Order

of Police, Washington, DC; Reverend Dr. C. Nozomi Ikuta, United Church

of Christ, Cleveland, OH; and Hon. Angel M. Cintro ́n Garcia, Majority

Leader of the House of Representatives of Puerto Rico, and Federal Affairs

Coordinator for the Republican Party of Puerto Rico, San Juan, PR .............. 19

OCTOBER 20, 1999

Panel consisting of Hon. Eric Holder, Deputy Attorney General, U.S. Department of Justice, Washington, DC; and Roger Adams, pardon attorney, U.S.

Department of Justice, Washington, DC ............................................................ 96

ALPHABETICAL LIST AND MATERIALS SUBMITTED

Abraham, Hon. Spencer: Letter and memo from Edison Misla-Aldarondo,

Republican National Committee, San Juan, Puerto Rico, dated Sept. 13,

1999 ....................................................................................................................... 66

Adams, Roger:

Testimony .......................................................................................................... 100

Prepared statement .......................................................................................... 102

Cintro ́n, Hon. Angel M.:

Testimony .......................................................................................................... 49

Prepared statement .......................................................................................... 51

Gallegos, Gilbert G.:

Testimony .......................................................................................................... 35

Prepared statement .......................................................................................... 37

Hahn, Richard S.:

Testimony .......................................................................................................... 31

Prepared statement .......................................................................................... 32

Holder, Hon. Eric:

Testimony .......................................................................................................... 96

Prepared statement .......................................................................................... 98

Page

IV

Ikuta, Rev. Dr., Nozomi C.:

Testimony .......................................................................................................... 44

Prepared statement .......................................................................................... 46

Letter to President Clinton, from Paul H. Sherry, United Church

of Christ, dated Sept. 7, 1999 ............................................................... 48

News Communication, dated Sept. 8, 1999 ............................................. 48

Kyl, Hon. Jon:

Prepared statement of Dr. Miriam Ramirez de Ferrer ................................. 73

Press Release: Puerto Ricans In Civic Action, dated Sept. 13, 1999 ............ 75

Anonymous prepared statement ...................................................................... 75

Leahy, Hon. Patrick J.:

Letter to Hon. Janet Reno, Attorney General, dated Sept. 21, 1999 ........... 139

Letter from Jon P. Jennings, Acting Assistant Attorney General, dated

Sept. 29, 1999 ................................................................................................ 139

Newhall, William P.:

Testimony .......................................................................................................... 22

Prepared statement .......................................................................................... 23

Pascarella, Rocco:

Testimony .......................................................................................................... 19

Prepared statement .......................................................................................... 21

Thurmond, Hon. Strom:

Letter from Gilbert G. Gallegos, national president, Grand Lodge, Fraternal Order of Police, dated Aug. 18, 1999 .................................................... 8

Letter from John J. Sennett, president, FBI Agents Association, dated

Aug. 24, 1999 ................................................................................................. 9

Various Newspaper Articles ............................................................................ 11

Wofford, Donald R.:

Testimony .......................................................................................................... 24

Prepared statement .......................................................................................... 26

APPENDIX

ADDITIONAL SUBMISSIONS FOR THE RECORD

OCTOBER 20, 1999

Hatch, Hon. Orrin G.: Letter and Various Documents ......................................... 149

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CLEMENCY FOR FALN MEMBERS

WEDNESDAY, SEPTEMBER 15, 1999

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC.

The committee met, pursuant to notice, at 9:40 a.m., in room

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch

(chairman of the committee) presiding.

Also present: Senators Grassley, Specter, Kyl, Abraham, Sessions, Feinstein, Torricelli, and Schumer.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S.

SENATOR FROM THE STATE OF UTAH

The CHAIRMAN. We are happy to begin this morning. I apologize

for being just a little bit late. My whole morning has been like that.

I have been here since a little after 6:00 a.m.

On January 24, 1975, during a busy lunch hour, an explosion

ripped through the historic Fraunces Tavern in New York City,

killing four people and injuring 55 others. On August 3, 1977, during the morning rush hour, a powerful bomb was detonated in a

busy New York office building, killing one man and injuring several

others. In March of 1980, armed members of the FALN entered the

Carter-Mondale campaign headquarters, bound and gagged women

and men inside, and held them at gunpoint as they ransacked the

offices.

Now, credit for these and other criminal acts was proudly taken

by a terrorist organization calling themselves the ‘‘FALN,’’ an acronym from a Spanish title meaning ‘‘the Armed Forces for Puerto

Rican National Liberation.’’ In all, the FALN has been linked to

over 150 bombings, attempted bombings, incendiary attacks, kidnaps, bomb threats, and others, which have resulted in the death

of at least six people and the injury of at least 70 others.

On August 11, 1999, President Clinton, who up to this point had

only commuted three sentences since becoming President, offered

clemency to 16 members of the FALN. This to me, and really almost every Member of Congress, was shocking. And, quite frankly,

I think I am joined by a vast majority of Americans in my failure

to understand why the President, who has spoken out so boldly in

opposition to domestic terrorism in recent years, has taken this

kind of an action.

After much public criticism of the offered clemency, the White

House spin doctors went to work. They alleged that the 16 offered

clemency were not ‘‘directly’’ involved with activities that hurt people because they were not convicted of the actual attacks that

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killed or maimed people. But this is a very poor excuse for clemency. These people were convicted of conspiring to commit acts of

terrorism which led to bloodshed. Many of these 16 were involved

in building bombs and in storing and transporting explosives, incendiary materials, and weapons. In one raid alone involving the

terrorists President Clinton has released information concerning,

law enforcement recovered 24 pounds of dynamite, 24 blasting

caps, weapons, and thousands of rounds of ammunition, as well as

disguises and false identifications. Some were actually videotaped

building bombs; others were arrested driving a van full of weapons.

Now, the administration spin doctors also argued that these prisoners received longer sentences than they would have under the

Sentencing Guidelines. Well, I will just point out that there are

thousands of people in jail who were sentenced before the guidelines. Does each of them deserve to have their sentence reduced?

The President will have to pick up the pace of clemency offers if

he is to right all those so-called wrongs in the 15 months left in

his term.

This whole episode raises a number of questions about the administration’s approach to law enforcement and the rule of law in

general. Were the normal procedures followed in the processing of

clemency opinions? What set these 16 prisoners apart from the

more than 4,000 who have petitioned the President for clemency,

or the other tens of thousands serving time across the country?

What prompted the President to make this offer of clemency? Who

recommended it? On what basis was it granted? This hearing is

thus absolutely necessary. I think we need to know whether the

Justice Department did its job. There are substantial questions as

to whether the normal process was followed in this case.

Reportedly, the President made his clemency offer over the

strong objections of prosecutors, the FBI, the Bureau of Prisons,

and the victims of these crimes. Here we have another example of

what people suspect: The Attorney General is asleep at the switch,

while the White House is running the Justice Department.

As chairman of the Senate committee with oversight of the Department of Justice, I have requested copies of all relevant documents, including the Department’s memo to the White House. Indeed, Senator Schumer, a distinguished member of this committee

from New York, and no Republican last time I looked, publicly stated that we should have these documents. But so far the administration and the Department have refused to turn over anything.

I am sorry to say that the White House and the Justice Department are hiding behind their tired old ploy of ‘‘studying’’ whether

to assert Executive privilege.

If the President has confidence that his decision was the right

one or was a just one, then he ought to be willing to hold it up to

public scrutiny. Now, there may be a legitimate argument that Executive privilege applies to some materials, although I fail to see

any at this particular time. There is no legitimate reason, however,

not to allow the Justice Department witnesses to appear before

Senator Coverdell’s hearing yesterday about the current status and

activities of the FALN. Nor is there any legitimate reason for the

Justice Department to refuse to allow the Pardon Attorney to testify today about how the clemency process works. Are the White

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House and the Department of Justice studying or are they really

just plain stonewalling? I think we know the answer to that.

At the hearing today we will hear from the law enforcement community and the victims who have been affected by this grant of

clemency. I have invited representatives of the FBI and the Justice

Department Pardon Attorney’s office. I hope the White House and

the Department of Justice will allow them to testify. But they are

not going to today, apparently.

We have to get to the bottom of this clemency fiasco. But the real

bottom line is that the President’s ill-considered offer of clemency

has now been accepted by 12 of the 16 FALN members, many of

whom are now back on the street. These are people who have been

convicted of very serious offenses, including sedition, firearms, explosives, and threats of violence. The FALN has claimed responsibility for past bombings that have killed and maimed American

citizens, and I pray with all my heart that no one else is going to

get hurt.

This is yet another example of this administration sending the

wrong message to criminals, be they foreign spies, gun offenders,

or, in this case, terrorists. I want to certainly get to the bottom of

these matters.

I might mention that just last week I read in the newspaper that

the instant check system which I have strongly supported from the

outset has uncovered 23,000 people who have unlawfully requested

ownership of guns or tried to purchase weapons in violation of the

law. Guess how many prosecutions this administration has

brought? Sixty-five. At least, that was what the article said.

Now, these are the people bad-mouthing everybody who has a

right to keep and bear arms in our society as though they are

criminals, when, in fact, the criminals have access to guns almost

regardless of what decent, law-abiding citizens are doing. I just get

tired of this type of situation.

Let me read to you the letter we got last night from the Department of Justice. This is from the Office of the Attorney General,

and this letter is signed by Jon P. Jennings, Acting Assistant Attorney General.

‘‘Dear Mr. Chairman: This is in response to a request communicated to us by committee staff that representatives of the Department of Justice, including the Federal Bureau of Investigation, testify at your hearing on September 15, 1999, on clemency for FALN

members. Although the Department appreciates your invitation to

testify on these important matters, we have regretfully concluded

that we are not in a position to provide testimony at this time.’’

Isn’t that amazing?

They go on to say, ‘‘As you know, under the Constitution the authority to grant clemency rests solely with the President.’’ I agree

with that. Then they cite a couple of cases. It says, ‘‘To the Executive alone is entrusted the power of pardon,’’ reaffirming that the

pardon power is ‘‘committed to the exclusive control of the President.’’

‘‘We wish, of course, to provide Congress with information to satisfy its oversight needs to the fullest extent possible. In light of the

importance of constitutional and institutional interests implicated

by your invitation for testimony and the fact that the hearing may,

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in significant part, address the exercise of an exclusive Presidential

prerogative, we are carefully reviewing this matter and consulting

with the White House regarding how most appropriately to proceed. Until this important issue has been resolved, we are unable

to provide an FBI witness and the Pardon Attorney with the guidance they need regarding the areas, if any, with respect to which

their testimony would be inappropriate.’’

‘‘We appreciate your willingness to limit the scope of Mr. Adams’

testimony, but we remain concerned that he would, nonetheless,

face unavoidable uncertainties in testifying at this time. We would

prefer to accommodate the committee’s request for information

about the clemency process through an informal briefing for interested members, which we would be pleased to arrange in the near

future. We understand the need to resolve promptly the issues relating to this invitation, and we are endeavoring to do so. Please

do not hesitate to contact me if you would like additional assistance

regarding this or any other matter. Sincerely, Jon P. Jennings,’’

also a copy going to the ranking member on this committee.

Now, this is pathetic. We have had trouble getting this Justice

Department to testify about anything in most instances. We have

had the Attorney General consistently raise Executive privilege,

consistently raise that a matter is in litigation, consistently raise

matters as though they are classified when, in fact, they are not

classified. When we finally took her up on holding a classified hearing in the secure room in the Capitol, my gosh, hardly a thing she

said should have been classified. Yet when we tried to release that

to the public, they redacted almost every other word in the doggone

testimony.

Now, this is not what we should have in this country. We should

have open disclosure to the American people, and especially on

something like this where there is so much heat and so much irritation and so much difference of opinion.

So we are very concerned about it, and I am very concerned that

the Justice Department thinks they can get away with this kind of

activity. So we will just have to see what happens, but they are

going to find themselves without some appropriated monies if they

keep this up.

There is a demoralization in the Justice Department today that

I have never seen since I have been in the Senate, and that is now

23 years. And I don’t blame the people down there being demoralized. They are being run by a bunch of people who don’t care

about the law or the rule of law, in my opinion, in some of these

instances—not all, but some of these instances. And it is causing

a real rift. Nobody has been more fair to this Attorney General or

this Justice Department than I have. I have bent over backwards

to try to accommodate them in every instance.

I happen to know that people in the FBI would be willing to testify if they weren’t being muzzled by the political types down there

in the Justice Department.

Well, enough said. Let me just say that we have Senator Feinstein here this morning, and we will turn to her for her remarks.

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STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR

FROM THE STATE OF CALIFORNIA

Senator FEINSTEIN. Thank you very much, Mr. Chairman. I

would like to make just a few comments about this.

Let me at the outset say that serious, thoughtful people urged

the President to offer this clemency. These people included former

President Carter, 11 Nobel Peace Prize winners, including Archbishop Desmond Tutu and Coretta Scott King, and dozens of religious leaders and organizations.

I don’t think that clemency just came out of thin air. However,

that being said, I believe strongly that the decision the President

made was the wrong one and may well have some terrible impacts

down the line.

Apparently, the reasons, as nearly as I have been able to determine, were twofold: one, these people didn’t actually plant the

bombs; and, second, the sentences were longer than they would

have been had the Sentencing Guidelines been in place. If that, in

fact, is correct, then I think we ought to take a look at the Sentencing Guidelines with respect to these particular crimes.

I am the ranking member on the Terrorism Subcommittee of this

body, and I have done what I could to assist law enforcement in

combating terrorism. There is no question in my mind that these

individuals were terrorists. And I believe very strongly that the

conviction shouldn’t just be for the person who planted the bomb.

It is one for all and all for one.

If you participate in a terrorist network, you actually participate

in the commission of the planting of the bomb, although your hand

may not have actually planted that bomb. I believe this very, very

firmly. And I think one of the things that has become very awkward is the ability to take one part of a network and say, well, they

are not as culpable as another part of the network.

The fact of the matter is that what the network plans to do is

kill and maim innocent people. And I think that came very clear

to me in Mr. Jimenez’s statements on television over the weekend

where he was asked the question: In 130 bombings, did you not believe it was possible for an innocent person to be killed? And the

answer to that question was ‘‘no.’’

Now, I think that defies any reasonable analysis of terrorism.

There isn’t anyone that would believe that you could participate in

a terrorist network, plant bombs in restaurants and office buildings

and other places and not run the risk of killing innocent people. It

simply isn’t credible.

I think granting leniency to terrorists is one of the worst things

one can do. We have tried in recent years to send a clear, unequivocal message to terrorists. If you plan or commit acts of terrorism

against the United States, we will find you, we will hunt you down,

and we will punish you severely. And I think every one of us has

heard these words being uttered.

Until this point, President Clinton’s administration carried this

message forward forcefully, including, for example, apprehending

and punishing the Oklahoma City bombers and taking retaliatory

strikes against Osama bin Laden.

Interestingly enough, when we struck at that camp, there was no

effort to see that a bomb wasn’t going to hit someone who may not

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have actually planted a bomb. We are making a strike against the

whole network. So one for all and all for one.

The President’s decision last month I believe dramatically undermines this message. Some have described these prisoners as political prisoners. I don’t believe they were. They were terrorists, pure

and simple. They were members of the FALN, the Armed Forces

for National Liberation, which sought to make Puerto Rico an independent nation, although the dominant majority of people in Puerto Rico had voted down this point of view. While some of them will

not admit it, this was alleged and it was proven in the trials

against them.

According to the FBI, ‘‘In the past, Puerto Rican terrorist groups

struggling for Puerto Rico’s independence from the United States

have been responsible for the majority of terrorist incidents perpetrated by domestic terrorist groups within the United States.’’

The FBI’s Terrorist Research and Analytical Center reported in

1996 that the ‘‘FALN has been linked to over 130 bombings which

have resulted in over $3.5 million in damages, 5 deaths, and 84 injuries.’’ The prisoners who received clemency were all active participants in this campaign of terror. One for all and all for one.

I am not going to go into the individuals, though how they participated was classic terrorist activity. And, therefore, if you separate one or two out on the basis of a technicality that they didn’t

actually do this or they didn’t actually do that or they have served

more time than * * *, I think you weaken the message that we

will seek out, we will hunt down, and we will punish severely people who practice terror against the United States of America.

This is a major weakening in this armor that the United States

had decided would be its policy. I am hopeful it will be the only

aberration. I think, Mr. Pres—Chairman—I keep calling you ‘‘Mr.

President,’’ and I don’t really mean to do that. [Laughter.]

Because I really want to keep you as the chairman of our committee.

Senator SESSIONS. That does have a nice ring.

Senator FEINSTEIN. Mr. Chairman, I really think we ought to

take a good look at the guidelines, and if there is any credibility

to the argument that they would have served less time had the

present guidelines been in place, I would respectfully submit that

we ought to strengthen those guidelines.

The CHAIRMAN. I am with you.

Senator FEINSTEIN. Thank you very much.

The CHAIRMAN. Well, thank you. Your statement I think was

very, very good.

We will include in the record at this point the prepared statements of Senators Leahy and Thurmond.

[The prepared statements of Senators Leahy and Thurmond follow:]

PREPARED STATEMENT OF SENATOR PATRICK LEAHY

I did not agree with the President’s recent clemency decision, but I recognize that

it is his decision to make. When I was State’s Attorney for Chittenden County, I

did not always, agree when the Governor of Vermont exercised his clemency power,

but I understood that it was his to exercise as he saw fit. There were numerous

exercises of this constitutional power by the Republican and Democratic presidents

with whom I have served over the last 25 years—President Carter used this power

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more than 560 times, President Reagan more than 400 times and President Bush

more than 75 times—and they have not always been matters with which I necessarily agreed.

My heart goes out to the victims appearing here today. When I was privileged to

serve as Chittenden County’s prosecutor, I had the good fortune to work alongside

a number of dedicated State and local officers. These public servants literally put

their lives on the line each day to protect all of us. Their responsibilities require

split-second judgment, dedication, timing, and guts. That members of law enforcement and their families also suffered as victims of bombings attributed to the FALN

makes these matters even more difficult.

While all are free to comment on the President’s clemency decisions—and to disagree, as I do—the Congress should focus on getting its own work done. While the

Republican leadership is hard-pressed to find the time to deal with a number of critical legislative issues, the Senate has devoted much time last week and this week

to a resolution condemning the President’s clemency decision. Yesterday a subcommittee of the Foreign Relations Committee held a hearing on the matter and

yesterday the Senate passed a substitute version of the resolution.

Earlier this week, I cautioned against the extreme rhetoric of the version of the

Lott-Coverdell resolution that was initially introduced. Through the course of the

last week some of the misstatements of fact that were contained in the original version of the resolution have been corrected and its most extreme and dangerous political rhetoric has been eliminated. Yesterday, the Senate adopted a substitute for the

resolution that deleted much of the overreaching language of the initial version.

We ought to be careful when anyone, let alone the Senate and Congress of the

United States, starts bandying about declarations that accuse the United States

Government of making ‘‘deplorable concessions to terrorists,’’ ‘‘undermining national

security’’ or ‘‘emboldening domestic and international terrorists.’’ Playing politics

with this matter and accusing the President of ‘‘undermining our national security’’

or ‘‘emboldening terrorists’’ carries significant risks and was not right. I am glad

that language was eliminated from the text of the resolution the Senate passed yesterday.

The American people can judge whether the time and energy being devoted by

the Congress to criticizing the President’s decision in hearings and in debates on

resolutions is the best use of the our legislative resources. I challenge the Senate

to make time for votes on the important legislative matters and many qualified

nominees whom the Republican majority has stalled for the last several years. The.

Senate has not completed work on 11 of the 13 appropriations bills that must be

passed before October 1. The Republican Congress cannot find time to pass campaign finance reform or a real patients’ bill of rights or a raise to the minimum

wage or Medicare reforms or the Hatch-Leahy juvenile justice bill. The long-delayed

nominees include Judge Richard Paez—whose nomination to serve on the Ninth Circuit Court of Appeals has been pending for more than 3 and one-half years—and

the nominations of Justice Ronnie White to be a federal judge in Missouri, Marsha

Berzon to be a judge on the Ninth Circuit, Bill Lann Lee to head the Civil Rights

Division and scores of other nominees pending before the Senate.

The clemency power is designated by the Constitution to the President. The Senate has already considered the substitute for S.J. Res. 33. Yesterday the Chairman

chose to reschedule the hearing to begin earlier than originally set. I was already

scheduled to be meeting with the Chief Justice and the other members of the Judicial Conference of the United States. Accordingly, other legislative responsibilities

may keep me from attending today’s hearing, but I thank the witnesses for sharing

their views with us.

PREPARED STATEMENT OF SENATOR STROM THURMOND

Mr. Chairman: I am pleased that we are holding this hearing today regarding the

President’s decision to commute the prison terms of 16 members of the FALN, a

Puerto Rican terrorist organization.

These 16 criminals were convicted of various crimes arising out of their involvement with the FALN, a militant group that killed and maimed innocent civilians

and police officers during its reign of terror. These individuals may not have personally committed murder, but they were active members, committing crimes such as

weapons and bomb offenses and armed robbery to support their deeds. Each of them

was convicted of seditious conspiracy, which involves attempting to destroy by force

the government of the United States. Crimes such as this go to the heart of our Nation.

8

America has long had a firm policy of intolerance regarding terrorism. Granting

clemency to members of the FALN sends the wrong message about America’s commitment to fighting terrorism. In fact, it sends the wrong message about America’s

commitment to fighting crime at home.

It is no wonder that news reports indicate that the law enforcement organizations

that reviewed the issue, including the FBI and Federal Bureau of Prisons, recommended against it. Moreover, law enforcement organizations have expressed

strong opposition. In that regard, I would like to place into the record a copy of a

letter from the Fraternal Order of Police and the FBI Agents Association.

The FAIN terrorists do not even appear to regret their actions. One appeared on

a Sunday news program and refused to express sorrow or remorse. It is telling that

the criminals did not immediately agree to the simple conditions that the President

placed on his generous offer. It took them weeks to agree to renounce the use of

violence and submit to standard conditions of parole. Indeed, some never did.

There is no question that the President has the Constitutional power to do what

he did. The President receives thousands of requests per year for a pardon or clemency, and the Department of Justice has a standard procedure under which the Pardon Attorney reviews these requests each year. However, all indications are that the

procedures were not followed in these cases, and that these cases were anything but

routine.

News reports indicate that the Justice Department did not make a recommendation for or against clemency in these cases like it normally does. There is no excuse

for the Department to stand neutral on very significant requests such as these. Also,

the terrorists apparently did not personally take the proper steps to seek the relief,

given that one of the conditions for clemency was that the prisoners had to sign

statements requesting it.

I am very disappointed that the Administration has chosen not to participate in

this hearing today and discuss these matters. The Congress has every right to question the Justice Department regarding the way it handles clemency petitions and

whether the procedures were modified for these terrorists. However, I am pleased

to have our other witnesses, and I commend them for their participation today.

GRAND LODGE, FRATERNAL ORDER OF POLICE,

Albuquerque, NM, August 18, 1999.

The Hon. WILLIAM JEFFERSON CLINTON,

President of the United States,

The White House,

1600 Pennsylvania Ave., NW,

Washington, DC.

DEAR MR. PRESIDENT: I am writing this letter on behalf of the more than 283,000

members of the Fraternal Order of Police to express our vehement opposition to your

offer of clemency to sixteen convicted felons involved with a wave of terrorist bomb

attacks on U.S. soil from 1974–1983. I would also like to express my own personal

confusion and anger at your decision.

Your offer of clemency would immediately release eleven convicted felons who conspired as members of the FALN to plant and explode bombs at U.S. political and

military targets. The remaining five would have their criminal fines waived and

only two would serve any additional time. These attacks killed six people, wounded

dozens and maimed three New York City police officers: Detective Anthony S. Senft

lost an eye and a finger, Detective Richard Pastorella was blinded and Officer Rocco

Pascarella lost his leg.

Your claim that none of these people were involved in any deaths is patently false.

As members of the terrorist organization that was planting these bombs, all of them

are accessories to the killings as a result of the bomb attacks. Two of the persons

to whom you have offered clemency were convicted of a $7.5 million armored truck

robbery, which undoubtedly financed the FALN’s 130 bomb attacks.

These are not Puerto Rican patriots, these are convicted felons who are guilty of

waging a war of terror against Americans on American soil to accomplish their political objectives. Why are you rewarding their efforts?

I can only assume you are again pandering for some political purpose. This time,

Mr. President, it must stop before it begins.

The ‘‘human rights advocates’’ who are so concerned about the plight of these killers have never shed a tear for the victims. These ‘‘human rights advocates’’ are the

same people and organizations who maintain that the United States routinely

abuses the rights of its citizens and who issue reports stating that our state and

local police officers are nothing more than racist thugs who enjoy brutalizing minoriVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 SEPT15.TXT SJUD2 PsN: SJUD2
9

ties. These ‘‘human rights advocates’’ are the same people and organizations who

clamor for the release for Mumia Abu-Jamal, a convicted cop-killer, and raise money

for his defense.

I do not know, Mr. President, how they decide which rights to advocate and which

to ignore, but it seems that murderers and terrorists are more entitled to them than

victims. Do not offer clemency to sixteen convicted felons to placate ‘‘human rights

advocates.’’

I would also strongly urge you to reject any inclination or polling data that indicates this will generate sympathy for you or for a Democratic presidential candidate

among Hispanic-Americans. As an Hispanic-American myself, I can assure you that

releasing violent convicted felons before they have served their full sentences and

to waive tens of thousands of dollars in criminal fines, is no way to appeal to racial

pride.

I sincerely hope, Mr. President, that this ill-conceived notion is consigned to the

pile reserved for horrendously bad ideas. Many of the best accomplishments of your

presidency stemmed from your commitment to law enforcement and to police officers. This aberration would surely eclipse all we have done to date to keep America

safe. Police officers around the country, including me, have stood side by side with

you in fighting violent crime and supporting your community policing initiatives.

Caving into these advocates is a slap in the face.

I look forward to hearing from you about this matter.

Sincerely,

GILBERT G. GALLEGOS,

National President.

FEDERAL BUREAU OF INVESTIGATION AGENTS ASSOCIATION,

A PROFESSIONAL NON-GOVERNMENT ASSOCIATION,

New Rochelle, NY, August 24, 1999.

The Hon. WILLIAM JEFFERSON CLINTON,

President of the United States,

The White House,

1600 Pennsylvania Ave.,

Washington, DC.

DEAR PRESIDENT CLINTON: The Department of Justice has very recently announced that you have offered clemency to sixteen members of Puerto Rican terrorist groups. Speaking for the more than 9,000 members of the FBI Agents Association, I strongly urge you to withdraw this offer and not have your Administration

give it any further consideration.

The announced offers of clemency would commute the sentences of thirteen who

are currently serving prison sentences and cancel the unpaid fines of three others.

Further, the clemency would be conditional on the receipt from them of signed, written renunciations of violence and other promises.

Signing a piece of paper will not put behind the individual responsibility of these

convicted criminals and terrorists. Their written promises have no worth. It has

been reported that clemency is justified for these sixteen because none of them were

specifically convicted of crimes directly involving the loss of life. There are many

criminals in federal custody for crimes that did not directly result in the taking of

human life. On that basis, are they less worthy of clemency then these sixteen? And

there are many criminals in federal penitentiaries, unlike these sixteen, who are not

affiliated with organizations that have carried out carefully planned, ruthlessly executed systematic violence against innocent people, property, and the very sovereignty of the United States for over a decade.

We appreciate that our system of justice requires that guilt must be found on specific charges. These terrorists should serve their full sentences and pay their full

fines for their own crimes, not because it can be shown that they are simply affiliated with groups whose members have committed even more serious crimes. However, in determining who should receive the very rare benefit of clemency, the least

consideration should be shown to those who are acknowledged members of an organization with so much blood and destruction for which to account.

In 1979, the FALN united with three other Puerto Rican terrorist groups and

issued a communique ́ in September of that year promising ‘‘coordinated action’’.

Within a month, these four groups conducted their first joint operation. On the

evening of October 17, 1979, a series of eight bomb attacks were conducted against

United States government facilities in Puerto Rico. The attacks were timed to coincide with a series of bombings in Chicago and New York. What followed was a

10

steady stream of bombings and attempted bombings against both civilian and military installations, two armored car robberies, the ambush murder of U.S. servicemen, and a rocket attack against a U.S. government office building and another

against a U.S. courthouse. Deaths, injuries, and millions of dollars lost were the cost

of these terrorist acts.

The sixteen people who have been offered clemency, aside from the crimes for

which they were individually convicted, all played roles in supporting the unified

Puerto Rican terrorist groups, enabling those groups to function as essentially one

effective clandestine terrorist organization. Through their active work in this terrorist network each of the sixteen contributed to some degree in its deadly and destructive mission.

There are many FBI agents who have spent a substantial portion of their careers

investigating the crimes of the Puerto Rican terrorist groups and bringing their

members to justice. One such agent suffered a serious and debilitating injury from

gunfire from one of the terrorists who remains a fugitive. The agent wrote to me

of his stunned reaction upon hearing about the clemency offer. The members of the

FBI Agents Association add our voice in opposition to the pardon offer. We see it

to be inconsistent with basic justice, and inconsistent with the intolerant stance our

country seeks to maintain in the face of terrorism.

Thank you very much, President Clinton, for giving consideration to our views

and concerns on this matter.

Very truly yours,

JOHN J. SENNETT,

President, FBI Agents Association.

11

12

13

14

15

16

17

18

The CHAIRMAN. We are pleased this morning to have a number

of outstanding witnesses who, as I said earlier, will help to shed

some light on the facts of this particular exercise of the President’s

clemency authority and the Department of Justice’s role in that

process. So if the witnesses will please take their seats, first we

will hear from Mr. Rocco Pascarella, who is a former New York

City policeman. Mr. Pascarella was one of those law enforcement

officers injured in the 1982 FALN bombing of the Police Plaza in

New York City. This particular chart shows Mr. Pascarella way

back then. As you can see, this was a photo of Mr. Pascarella and

others that appeared in the newspapers at that time.

Following Mr. Pascarella, we will hear from Mr. Bill Newhall.

Mr. Newhall was one of those injured, with three of his companions

left dead, in the famed FALN bombing of the historic Fraunces

Tavern Restaurant in New York City.

We will then turn to Mr. Donald Wofford, who is a former FBI

special agent who spent more than a decade investigating FALN

activities and was the case agent for the New York City FALN investigation at the time of the Fraunces Tavern bombing.

Following Mr. Wofford, we will hear from Mr. Richard Hahn,

who is a former FBI special agent, who, like Mr. Wofford, spent

more than a decade investigating Puerto Rican terrorist activities

and was assigned to the Chicago FALN investigation.

Next we will be pleased to hear from Mr. Gilbert Gallegos, who

is the national president of the Fraternal Order of Police, the largest organization of law enforcement professionals in the United

States, with some 283,000 members.

Following Mr. Gallegos, we will turn to Reverend Dr. C. Nozomi

Ikuta, who is an ordained minister with a Ph.D. of Ministry from

the New York Theological Seminary and a Master of Divinity from

Harvard Divinity School. She presently serves in the Division of

the American Missionary Association for the United Church of

Christ and is here representing that church.

Finally, we will hear from the Honorable Angel Cintron Garcia,

who is the majority leader of the House of Representatives of Puerto Rico and the federal affairs coordinator for the Republican Party

in Puerto Rico. Mr. Cintron is in his third term as a member of

the House of Representatives in Puerto Rico and is the chairman

of various legislative committees, including the Committee on Federal and Financial Affairs.

I just want to welcome all of you before this committee. You are

an excellent panel. We appreciate the efforts that you have made

to be here with us today. We would hope that each of you could

limit your oral testimony to 5 minutes or less, and we are just very

grateful to have all of you here, and we will turn to you first, Mr.

Pascarella.

19

PANEL CONSISTING OF ROCCO PASCARELLA, FORMER NEW

YORK CITY POLICEMAN, FALN VICTIM, WASHINGTONVILLE,

NY; WILLIAM P. NEWHALL, FALN VICTIM, NEW YORK, NY;

DONALD R. WOFFORD, FORMER FBI SPECIAL AGENT ASSIGNED TO NEW YORK CITY FALN INVESTIGATION, WILMINGTON, NC; RICHARD S. HAHN, FORMER FBI SPECIAL

AGENT ASSIGNED TO CHICAGO FALN INVESTIGATION, LONG

BEACH, CA; GILBERT G. GALLEGOS, NATIONAL PRESIDENT

OF THE GRAND LODGE, FRATERNAL ORDER OF POLICE,

WASHINGTON, DC; REVEREND DR. C. NOZOMI IKUTA,

UNITED CHURCH OF CHRIST, CLEVELAND, OH; AND HON.

ANGEL M. CINTRO ́N GARCIA, MAJORITY LEADER OF THE

HOUSE OF REPRESENTATIVES OF PUERTO RICO, AND FEDERAL AFFAIRS COORDINATOR FOR THE REPUBLICAN

PARTY OF PUERTO RICO, SAN JUAN, PR

STATEMENT OF ROCCO PASCARELLA

Mr. PASCARELLA. Good morning, Senators. My name is Detective

Rocco Pascarella.

On December 31, 1982, I was a police officer assigned to security

at police headquarters in New York City. I had joined the force at

age 21, and in my 13 years on the New York City police force, I

had worked in various precincts and assignments.

The CHAIRMAN. Could you pull the microphone over, Mr.

Pascarella, so that we can hear you better?

Mr. PASCARELLA. About 2 weeks prior to December 31, 1982, I

had been assigned to the police headquarters security detail. On

what should have been a festive evening, FALN terrorists were at

work in New York City. It was about 9:30 p.m. when my colleagues

and I heard a tremendous explosion. At first we thought it was

fireworks, but soon after, we were told that a bomb had exploded

at 26 Federal Plaza, which is two blocks from the police headquarters. I was directed by my sergeant to search the perimeter of

the headquarters building for anything suspicious that might be a

bomb. As I approached the rear unused entrance to the building,

I noticed a lot of debris. As I turned to search, the bomb went off.

The blast that shattered my life that night was the work of the

FALN. This notorious group of terrorists had been planting bombs

for some time—ostensibly to secure Puerto Rican independence.

But their criminal activity was not limited to indiscriminate bombing. It also included apolitical crimes such as weapons possession

and robbery.

That I or my colleagues was not killed that night is a fortunate

coincidence. FALN bombs were placed at locations where it was

likely that innocent people would be killed or injured. I suffered the

loss of one leg below the knee, severe scarring on my other leg, the

loss of hearing in one ear, and the loss of my eyesight to the extent

that I am no longer able to drive.

I was in the hospital for 2 months. I underwent six operations

for my leg and ears, and I received over 40 stitches to my face.

I spent a year going through rehabilitation to learn to walk again

with my artificial leg and injured right leg. Because of my injuries,

I have been unable to return to active duty in the police force. I

am on an extended medical leave. The pain and trauma of these

20

disabling injuries were multiplied by the suffering it caused my

family: my parents, my daughter, my friends, and my colleagues in

the New York City Police Department. When you consider all the

others whose lives were devastated during the FALN onslaught,

the grief and suffering grows exponentially.

Seventeen years later, the insidious cancer that is the FALN

again ulcerates American life. Forces have been at work to position

these criminals for Presidential clemency. Under ordinary circumstances the prospect of their release would be laughable. What

could motivate any President to grant a request with the blood of

American citizens?

Perhaps everyone in this room and everyone in America should

review these cases: They read the United States versus the defendants, or the State of New York versus the defendants. Rocco

Pascarella did not prosecute these cases. You did. The people did.

And when it is done and just sentences are imposed, they should

be made to stand, particularly in cases of terrorism. Because when

terrorists strike, they are not just maiming me; they are striking

at the very foundation of America. Our very freedom makes us particularly vulnerable to the demented minions of terrorists all over

the world.

In the press, their supporters describe these FALN terrorists as

freedom fighters and political prisoners. That characterization is an

abomination. The basis of American democracy is dialogue and

compromise within the political process. Democrats and Republicans do not butcher each other in the streets of Washington or

punctuate their rhetoric with bombs or bullets. The indiscriminate

killing and maiming of innocent people to make a political statement is an attack on the American political system and should be

dealt with accordingly. Nor do these misfits, as some would imply,

represent the goals and ideas of Puerto Rican people, who have

democratically rejected Puerto Rican independence and morally rejected slaughter as a means to a political end.

In this very forum, the clamor is heard for more severe sentences

for hate crimes. What greater hate than to kill, not because of some

demented distaste for another race or ethnic group, but to kill anyone, man, woman, or child, to make a merely political statement?

And, finally, what kind of message does this exercise of clemency

send to the world’s terrorists? The U.S. military is sent halfway

around the world to destroy a terrorist’s camp in a foreign nation,

while at home a vile group of criminal terrorists as exists anywhere

in the world is released upon the strength of a hard-wrought promise never to engage in violence again. A release, it appears, that

is contrary to the recommendations and warnings of every Federal

agency involved in the investigation, apprehension, trial, and incarceration of this group.

You, as elected representatives and as citizens of this Nation,

have a responsibility to the American people to expose the circumstances and motivation which led to this assault on the American political justice system and the American political system. You

owe it to yourselves. You owe it to your constituents. You owe it

to me. And you owe it to past and future victims of FALN murder

and terror.

Thank you.

21

[The prepared statement of Mr. Pascarella follows:]

PREPARED STATEMENT OF DETECTIVE ROCCO PASCARELLA

Good Morning Senators: My name is Rocco Pascarella.

On December 31, 1982, I was a police officer assigned to security at Police Headquarters in New York City. I had joined the force at age 21, and in my 13 years

on the New York City Police force I had worked in various precincts and assignments. About two weeks prior to December 31, 1982 I had been assigned to the Police Headquarters security detail. On what should have been a festive evening,

FALN terrorists were at work in New York City. It was 9:30 p.m. when my colleagues and I heard a tremendous explosion. At first we thought it was fireworks.

But soon after, we were told a bomb had exploded at 26 Federal Plaza which is two

blocks from police headquarters. I was directed by my sergeant to search the perimeter of the headquarters building for anything suspicious that might be a bomb. As

I approached the rear unused entrance to the building I noticed a lot of debris. As

I turned to search, the bomb went off.

The blast that shattered my life that night was the work of the FALN. This notorious group of terrorists had been planting bombs for some time—ostensibly to secure Puerto Rican independence. But their criminal activity was not limited to indiscriminate bombing. It also included apolitical crimes such as weapons possession

and robbery.

That I or my colleagues was not killed that night is a fortunate coincidence. FALN

bombs were placed at locations where it was likely that innocent people would be

killed or injured. I suffered the loss of one leg below the knee, severe scarring of

my other leg, the loss of hearing in one ear, and the loss of my eyesight to the extent that I am no longer able to drive. I was in the hospital for two months. I underwent six operations for my leg and ears and received over 40 stitches to my face,

ears and mouth. I spent a year going through rehabilitation to learn to walk again

with my artificial leg and injured right leg. Because of my injuries I have been unable to return to active duty in the police force. I am on an extended medical leave.

The pain and trauma of these disabling injuries were multiplied by the suffering

it caused my family: My parents, my daughter, my friends and my colleagues in the

New York City Police Department. When you consider all the others whose lives

were devastated during the FALN onslaught, the grief and suffering grows exponentially.

Seventeen years later, the insidious cancer that is the FALN again ulcerates

American life. Forces have been at work to position these criminals for presidential

clemency. Under ordinary circumstances the prospect of their release would be

laughable. What could motivate any president to grant a request with the blood of

American citizens?

Perhaps everyone in this room, and everyone in America, should review these

cases: They read the United States vs. The defendants, or the State of New York

vs. The defendants. Roc Pascarella did not prosecute these cases. You did. The people did. And when it’s done, and just sentences are imposed they should be made

to stand, particularly in cases of terrorism. Because when terrorists strike, they are

not just maiming me, they are striking at the very foundation of America. Our very

freedom makes us particularly vulnerable to the demented minions of terrorists all

over the world.

In the press, their supporters describe these FALN terrorists as freedom fighters

and political prisoners. That characterization is an abomination. The basis of American Democracy is dialogue and compromise within the political process. Democrats

and Republicans do not butcher each other in the streets of Washington, or punctuate their rhetoric with bombs and bullets. The indiscriminate killing and maiming

of innocent people to make a political statement is an attack on the American political system and should be dealt with accordingly. Nor do these misfits, as some

would imply, represent the goals and ideas of Puerto Rican people, who have democratically rejected Puerto Rican independence, and morally rejected slaughter as a

means to a political end.

In this very forum the clamor is heard for more severe sentences for hate crimes.

What greater hate than to kill, not because of some demented distaste for another

race or ethnic group, but to kill anyone; man, women, or child to make a merely

political statement?

And finally, what kind of message does this exercise of clemency send to the

world’s terrorists? The United States military is sent halfway around the world to

destroy a terrorist’s camp in a foreign nation, while at home, a vile group of criminal terrorists as exists anywhere in the world is released upon the strength of a

hard wrought promise never to engage in violence again. A release, it appears, that

22

is contrary to the recommendations and warnings of every federal agency involved

in the investigation, apprehension, trial and incarceration of this group.

You, as elected representatives and as citizens of this nation, have a responsibility

to the American people to expose the circumstances and the motivation which led

to this assault on the American political system and the American justice system.

You owe it to yourselves. You owe it to your constituents. You owe it to me. And

you owe it to past and future victims of FALN murder and terror. Thank you.

The CHAIRMAN. Well, thank you, Mr. Pascarella. We appreciate

your testimony very much.

Mr. Newhall, we will turn to you.

STATEMENT OF WILLIAM P. NEWHALL

Mr. NEWHALL. Thank you. Good morning. My name is Bill

Newhall, and I have been invited to speak before this committee

because I was injured in the FALN bombing of Fraunces Tavern

in January 1975.

On January 24 of that year, I was having lunch with two colleagues, Charlie Murray and Frank Connor, and three clients, Jim

Gezork, Alex Berger, and Dave Urskind. We were seated at a table

overlooking Broad Street, about to return to work, when a bomb

placed in a doorway next to our table was detonated, destroying

our corner with shrapnel and debris. Jim, Alex, and Frank died terrible deaths, barely recognizable to their families. Another man,

Harold Sherburne, who was upstairs at the time of the blast, was

also killed. Charlie, David, and I suffered multiple wounds, many

of them from shrapnel. I won’t describe those wounds to you here.

But more than 50 other people sustained injuries as well. With the

time limits of this hearing, it is impossible to adequately describe

the effects of this savagery on the injured and dead as well as their

families.

This bombing, a terrorist act against unarmed and unsuspecting

civilians, and its lethal results were followed by many more,

though fortunately none was as deadly as this one. I don’t recall

ever hearing any expression of remorse, concern, or contrition by

any member of the FALN for the pain and loss they caused those

directly affected, or their families, for this or any other bombing.

Why were these bombings carried out? Because the FALN was

frustrated by its inability, in any voting referendum, to persuade

a significant number of its fellow Puerto Ricans of the merits of its

cause. The resulting strategy was to murder U.S. civilians.

None of the FALN members who were recently released through

the President’s grant of clemency were ever convicted of the bombing of Fraunces Tavern, but they were proven in courts of law to

be supporters of those terrorist methods. Some were videotaped

making bombs—and those weren’t for science class—and all were

clearly committed to acts of violence against innocent people and

the U.S. Government.

The living can speak, but so can the dead, through their surviving families, friends, and our memories of them. That is why I am

here before you. We have heard recently in New York how much

these self-styled ‘‘freedom fighters’’ sacrificed and lost because of

their political beliefs. To the contrary, those who truly paid for the

FALN’s political beliefs were their dead victims. Men of character,

humor, and promise, they will never return to their loved ones or

receive a hero’s welcome the way those released this past weekend

23

did. And what about the price paid by those permanently injured

or scarred?

I understand the goal of this committee is to examine the way

in which the clemency process was carried out. I, and, I am sure,

many other citizens, including the many law enforcement personnel

who worked so hard to halt the FALN bombing campaign and to

whom we owe such deep gratitude, are curious about this as well.

I would like to know whether the views of any victims or their families were sought, much less obtained and considered.

It is easy to suspect that political grandstanding parading as

compassion was at work here. If so, not only is it an affront to

those the FALN killed and maimed, but it delivers perhaps the

worst message of all: mere indifference to terrorist activities of all

kinds and the human misery they cause.

Thank you.

[The prepared statement of Mr. Newhall follows:]

PREPARED STATEMENT OF WILLIAM P. NEWHALL

My name is Bill Newhall. I have been invited to speak before this committee because I was injured in the FALN bombing of Fraunces Tavern in January 1975.

On January 24 of that year, I was having lunch with two colleagues, Charlie Murray and Frank Connor and three clients, Jim Gezork, Alex Berger and Dave

Urskind. We were seated at a table overlooking Broad Street, about to return to

work when a bomb, placed in a doorway next to our table, detonated, destroying our

corner with shrapnel and debris. Jim, Alex, and Frank died terrible deaths, barely

recognizable to their families. Another man, Harold Sherburne, who was upstairs

at the time of the blast, was also killed. Charlie, David and I suffered multiple

wounds, many of them from shrapnel. More than fifty other people sustained injuries as well. With the time limits of this hearing, it is impossible to adequately describe the effects of this savagery on the injured and dead as well as their families.

This bombing, a terrorist act against unarmed and unsuspecting civilians and its

lethal results were followed by many more, though fortunately none was as deadly

as this one. I don’t recall ever hearing any expression of remorse, concern or contrition by any member of the FALN for the pain and loss they caused those directly

affected, or their families, for this or any other bombing.

Why were these bombings carried out? Because the FALN was frustrated by its

inability, in any voting referendum, to persuade a significant number of its fellow

Puerto Ricans of the merits of its cause. The resulting strategy was to murder U.S.

civilians.

None of the FALN members who were recently released through the President’s

grant of clemency were ever convicted of the bombing of Fraunces Tavern. But they

were proven in courts of law to be supporters of these terrorist methods, some were

videotaped making bombs, and all were clearly committed to acts of violence against

innocent people.

The living can speak and so can the dead, through their surviving families,

friends and our memories of them. That is why I am here before you. We’ve heard

recently in New York how much these self-styled ‘‘freedom fighters’’ sacrificed and

lost because of their political beliefs. To the contrary, those who truly paid for the

FALN’s political beliefs were their dead victims. Men of character, humor, and

promise, they will never return to their loved ones, or receive a hero’s welcome. And

what about the price paid by those permanently injured or scarred?

I understand the goal of this committee is to examine the way in which the clemency process was carried out. I and I’m sure many other citizens, including the

many law enforcement personnel who worked so hard to halt the FALN bombing

campaign, are curious about this as well. I would like to know whether the views

of any victims or their families were sought, much less obtained and considered.

It is easy to suspect that political grandstanding parading as compassion was at

work here. If so, not only is it an affront to those the FALN killed and maimed,

it delivers perhaps the worst message of all: near indifference to terrorist activities

of all kinds and the human misery they cause.

The CHAIRMAN. Well, thank you, Mr. Newhall. We really appreciate having your testimony here.

24

Mr. Wofford, we will turn to you.

STATEMENT OF DONALD R. WOFFORD

Mr. WOFFORD. Good morning. My name is Don Wofford. I am a

retired FBI agent after 23 years, currently living in North Carolina.

From 1974 to 1980, in Manhattan, I was the case agent for the

investigation of the FALN, the bombing of Fraunces Tavern that

Bill has so eloquently explained, which, of course, as everyone

knows, is the most magnificent and violent bombing that they ever

did. However, I think it is important for me to in a few minutes

give kind of an overview and mention some more very violent

things that they did and try to pick up on the eloquent statement

by Mrs. Feinstein that the people who support and enable these

terrorist networks to continue are just as guilty of conspiracy and

planning and doing the acts as other people.

I will just talk very quickly—since he was a victim of Fraunces

Tavern, and that was a very eloquent statement. Thank you very

much.

The person who walked in Fraunces Tavern came in there at

1:22 p.m. We know that because a waiter saw him. He had a bag

in his hand. He walked into not more than 5 feet from where his

table was in the corner of the restaurants, and he laid it down and

he left. Now, he knew, that person knew, that when that bomb

went off, he was going to kill a lot of people. He didn’t know how

many, but he knew he was going to kill a lot. It was a bustling restaurant in the middle of Wall Street. That is why he came there.

He didn’t go there to protest Puerto Rican independence. He put

that bomb down to kill people. That is all he came there to do.

Later, in the communique ́, which we have, I think, as—it will be

put up later—the FALN claims that bomb. The FALN says, ‘‘We,’’

the FALN, not ‘‘me,’’ the bomber, not ‘‘me,’’ the person who provided false identity, not ‘‘me,’’ the lookout, not ‘‘me,’’ the other

member. ‘‘We,’’ the FALN, we bombed Fraunces Tavern. And they

did. They destroyed Fraunces Tavern. It was the most unbelievable

bombing I have ever been to, and that includes Vietnam.

Prior to that, very quickly, the FALN tried to kill an NYPD officer by putting a booby trap on a door and calling 911. That was

FALN number two, and prior to that, number one, the FALN’s first

bombing in October of 1975, they put bombs all over downtown

Manhattan in major corporations—Citicorp, Marine Midland, W.R.

Grace, Fortune 500 companies. Now, they took no steps to ensure

those bombs didn’t kill anybody. They left those bombs laying there

on the sidewalk. They walked away from them. They were timing

devices. Those bombs went off. It is an act of mercy and an act of

God that nobody—a late worker, a clean-up person, a police officer,

whoever—didn’t walk by one of those bombs and get blown up. It

was not the FALN’s fault that that didn’t happen. It was God’s

grace that it did not happen.

The FALN continued this series of bombings over a period of a

couple of years, and a couple of key events happened. In 1976, in

Chicago—and by now the FALN had moved to Chicago, and they

were doing things like setting off simultaneous bombs in Chicago,

Washington, DC, and New York. Now, one or two people can’t do

25

that. That requires lots of people. You have got to have bomb makers and drivers and cars and people that call in the communique ́

s.

That is not a one- or two-man operation. And we were quickly beginning to see that this was a lot bigger operation than we first

thought it was.

A bomb factory was found in 1976 in Chicago full of dynamite

and blasting caps and everything that they needed to run their organization. That investigation led to obtaining warrants on four

people immediately. But those four people had ties, direct ties to

two people in New York who we decided were our main suspects:

William Morales and Luis Rosado. So we went to work on them.

Elizam Escobar, Adolfo Matos, and Dylcia Pagan were associates

of those people, and those were three, among others, of the people

that were released in the back of that van. So those people were

members of the FALN. They were participating in armed actions

when they were arrested in that van in 1980, and there was no

doubt that that operation was a two-city or three-city operation at

the time.

In 1978, William Morales confirmed all our suspicions. A bomb

went off in his hands, blew both his hands off, almost destroyed

one side of his face, and damaged him severely. In his bomb factory

in Queens, in an office building in the middle of a residential section, were 66 sticks of dynamite, numerous blasting cap guns and

ammunition, and absolute proof that William Morales’ bomb factory was involved in Fraunces Tavern, was involved in the attempt

to get the police officer in the first bombings, because the

communique ́s made all fit a machine sitting in that building that

they had purchased. They matched up. The FBI lab was able to say

this machine ran off these communique ́s. So William was obviously

a bomber and paid for it dearly by the injuries he received. He is

now, by the way, hiding out in Cuba as a fugitive.

Following all of these, the 1980 arrest of these individuals that

Mr. Hahn is going to pick up on and discuss was a big break for

us because it found New York people and Chicago people in a van,

and the statement that they weren’t involved in criminal violent

activities—they were in the van, all of them had guns, and we now

know that they were there to rob an armored car. So for them to

stand up now and say that they weren’t involved in violent activities—the intervention of the police officers maybe kept the event

from happening, but they were involved in violent activities.

The FALN was a terrorist group. It spent hours countersurveilling. It spent hours obtaining false identification and apartments and names that we couldn’t trace, stealing weapons, obtaining dynamite and so forth. So these breaks that we got along the

way which resulted in us getting warrants for people were very,

very important. The FALN, I certainly admit, was a very efficient

terrorist organization. Since 1982, they have not committed any

more bombings since Rocco was injured. But who knows now where

this tale will end or where this investigation will lead?

I will be glad to answer any questions later. Thank you, sir.

[The prepared statement of Mr. Wofford follows:]

26

PREPARED STATEMENT OF DONALD R. WOFFORD

My name is Donald R. Wofford and I am currently a retired FBI agent having

retired in 1995 with 23 years of service with the FBI.

During the period 1974–1980 I was assigned to the investigation of the FALN in

New York and was the Case agent for the investigation of the FALN when it

claimed the bombing of Fraunces Tavern Restaurant on January 24, 1975. During

this period I was participating in an investigative Task Force comprised of 50 FBI

agents and 50 NYCPD detectives. This task force investigated all FALN claimed

bombings and other criminal acts.

During the period 1980–1984 I was assigned to Newark, N.J. where I investigated

FALN suspects as well as other terrorist suspects.

From 1984–1987 I was assigned to Butte, Montana and was investigating the

Aryan Nations and its underground group ‘‘the order.’’ This investigation of white

supremacist criminals resulted in 23 individuals being convicted for armed robbery,

bombings, murder, and conspiracy.

During the period 1987–1989 I was assigned to FBI headquarters as a Supervisory Special Agent in the Domestic Terrorism Unit. My major duties included authorizing Domestic Terrorism investigations in accordance with the Attorney General’s guidelines.

The FALN is a clandestine terrorist organization that has dedicated itself to ‘‘liberating Puerto Rico from United States control’’ through the use of violent actions

including bombings, incendiary attacks, kidnappings, attempted prison escapes, and

threats. These actions have been financed through various illegal activities including armed robberies. The FALN has been linked to over 130 bombing-type actions

(actual bombings, attempted bombings, incendiary attacks and bomb threats) since

October 26, 1974. These incidents have resulted in over $31⁄2 million in damages,

5 deaths and 84 injuries including four police officers who were maimed. In addition, the group has perpetrated three armed takeovers in which innocent people

were restrained, robbed and terrorized. The group is convinced that armed struggle

is the only vehicle through which independence can be achieved. Unlike other independence groups that engage in violent actions on the Island of Puerto Rico itself,

the FALN has elected to stage its violent actions within the continental United

States.

The FALN publicly emerged on October 26, 1974, when the group claimed credit

for five bombings that occurred in downtown New York City. These explosive devices were believed to have been concealed in airline shoulder type flight bags containing from three to five propane tanks, a quantity of high explosives believed to

be dynamite, a detonator, a wrist watch timer, and a battery. In total, over

$1,000,000 damage was sustained in those bombings, but no injuries occurred. The

FALN claimed credit for this bombing in a communique ́ left in a phone booth which

was listed as FALN Communique ́ #1.

The next known bombing claimed by the FALN occurred on Wednesday, 12/11/

74, when an anonymous Hispanic female notified the NYCPD that a dead body was

located in a building at 336 East 110th Street, Manhattan. A radio car was dispatched and when the investigating patrolman pushed upon an outside door to an

abandoned five story tenement located at this address, the explosion occurred, seriously injuring the officer, and ultimately resulting in the loss of his eye.

An examination at this bomb site revealed that a blue colored airline flight bag

had been secured to the inside of the door, and contained what is believed to have

been three propane tanks, a large lantern type battery, and a pipe nipple approximately ten inches in length, containing what is believed to have been dynamite. The

booby trap bomb in this instance was detonated by a clothes pin type firing device

which was tied to the door with string, which detonated the bomb upon opening the

door. Almost immediately after the bombing, an unidentified Spanish accented female telephoned the Associated Press advising that she was part of the FALN and

that a communique ́ claiming responsibility could be located in a telephone booth at

Tenth Avenue and 52nd Street, New York, NY. This letter was recovered by the

NYCPD and when examined, revealed that it was identified by the FALN as

Communique ́ #2 and was determined to have been typed on identical letterhead

paper as Communique ́ #1.

The group’s next action, occurring on January 24, 1975, was even more ruthless

and resulted in four deaths, over 60 injuries, and extensive property damage. The

target was the historic Fraunces Tavern in New York City and the device exploded

during the busy lunch period at approximately 1:22 p.m. Four persons were killed,

over 50 injured, and property damage exceeding $300,000 was sustained. Shortly

after the explosion, the Associated Press in New York received a telephone call from

a male with a Spanish accent who stated that the Armed Forces of Puerto Rican

27

National Liberation (FALN) was responsible for the bombing, and a communique ́ explaining the reasons could be found in a telephone booth located at Bridge and

Water Streets in New York (which is approximately 3 or 4 blocks from the bombing

scene itself).

The communique ́ referred to by the caller was recovered by the NYCPD and,

when examined, revealed it was identified by the FALN as Communique ́ #3, and

was found to have been typed on letterhead paper of the FALN, identical to

Communique ́s #’s 1 and 2, recovered in previous bombings claimed by this group.

FBI Explosive Experts working in close coordination with the NYCPD Bomb

Squad have closely examined all the debris collected from the explosion site and

have recovered what appears to be a back plate from a watch; a severely mutilated

latch believed to have come from the case that held the bomb; pieces of black plastic

or leather from the case; miscellaneous small pieces of unidentifiable metal, and a

piece of a valve stem believed to have come from a propane tank (probably a

Bernzamatic type used for home plumbing repairs and/or camping equipment). No

information is available as to the specific explosive used, although experienced estimates indicate dynamite.

A witness has been located who observed a bag in the vestibule portion separating

the tavern from the Anglers Club entrance. He identified this bag as approximately

21⁄2 feet long, 11⁄2 feet high and 1 foot wide. He described this bag as a gray synthetic cloth type bag with black plastic piping around the outside, having 2 black

straps around the middle, and having a single black handle. He added that this bag

appeared to be new and inexpensive. The witness places the bag at the specific location in the vestibule which explosive experts indicate was the seat of the explosion.

Subsequent interviews of two other witnesses indicated that the bag was not at the

site as late as 1:10 to 1:15 p.m.

The letterhead paper recovered in all three bombings, had a five pointed star design with the letters FALN imposed thereon. Above this star were the two words

Fuerzas Armadas and below the star were the words de Liberacion Nacional

Puertorriquena (which translates as Armed Forces of Puerto Rican National Liberation). All letters were found to have been prepared on a typewriter with Smith Corona face type (available on several types of machines but probably a Smith Corona

portable). There were four copies of Communique ́ #1 recovered, but only one original

typing, although examination of recovered specimens clearly indicate two typings.

The original of the typed communique ́ was in red ink and mailed to a Spanish language newspaper in New York. All of the communique ́

s recovered have been found

to have been prepared on Gestetner watermarked paper.

In their next attack, the FALN reverted back to more ‘‘symbolic’’ bombings when

they attacked four New York City buildings in April, 1975.

The FALN first made its presence known in Chicago, Illinois, on June 15, 1975,

when they claimed credit for two powerful bombs that detonated in the downtown

Loop area. In October, 1975, the FALN attempted to display their strength by simultaneously exploding bombs in New York City, Washington, D.C., and Chicago.

During the months that followed, the FALN detonated several more devices in New

York and Chicago, causing property damage and injuring innocent bystanders; however, for some unexplained reason they did not claim credit for these incidents. One

of these attacks involved the placement of incendiary rather than explosive devices

in the downtown Chicago Marshall Field Department Store.

In late June, 1976, the FALN resumed making claims for its terrorist actions

which were, during the subsequent years, to include both explosive and incendiary

device attacks. One of these attacks was on the Hilton Hotel in New York City in

September, 1976, and resulted in $300,000 in damages. Another victim target was

the Merchandise Mart in Chicago which suffered $1,335,000 in damages from a February, 1977, bombing. An incendiary device placed in New York City’s Gimbel’s Department Store on October 11, 1977, resulted in a fire that caused $125,000 in damages. Perhaps the most violent of these attacks which occurred between June, 1976,

and July, 1978, was directed against the Mobil Oil Company employment office in

New York City. On August 3, 1977, a powerful bomb detonated inside this office

during the busy morning rush period, killing one man and injuring several other

bystanders. It was painfully clear that this bombing was designed to kill people and

was anything but ‘‘symbolic’’ in nature. Marie Haydee Beltran Torres was subsequently convicted of perpetrating this act and was sentenced to a life term in federal

prison.

In May, 1978, the FALN again expanded its scope of activity by simultaneously

placing devices in New York, New Jersey, and Washington, D.C., and threatening

to bomb Chicago targets. A month later the group placed incendiary devices in three

department stores in the Chicago suburb of Schaumburg, Illinois.

28

On November 3, 1976, the FALN suffered a serious setback when Chicago Police

discovered their ‘‘bomb factory’’ which was located in an apartment within the city’s

north side Hispanic community. This discovery led to the identification of Carlos

Alberto Torres, his wife Marie Haydee Torres, Ida Luz ‘‘Lucy’’ Rodriguez, and Oscar

Lopez-Rivera as being members of the FALN. All four individuals immediately vanished, thus ending the double lives they had been leading for several years. The four

had masqueraded as law abiding community members and had assiduously avoided

doing anything that would have drawn attention to themselves. Indeed, ‘‘Lucy’’

Rodriguez was working in an executive position with the Federal Government when

the ‘‘bomb factory’’ was uncovered.

Based on information located in the Chicago bomb factory, the New York FBI determined that Luis Rosado-Ayala and William Guillermo Morales were prime suspects in the New York bombings claimed by the FALN. In addition, it was determined by the New York FBI that Rosado-Ayala and Morales were associating closely

with, among others, Dylcia Pagan, Adolfo Matos, and Elizam Escobar.

In July, 1978, the FALN suffered still another setback—one that was destined to

drastically change the nature of the organization. On July 12, 1978, a powerful explosion occurred in a New York City apartment, maiming the resident. Subsequent

investigation determined the apartment was, in fact, an FALN ‘‘bomb factory,’’ and

the injured man who lost most of both hands was FALN member William Guillermo

Morales, who was constructing a pipe bomb when the explosion occurred. Further

investigation identified the four missing Chicago FALN members as being involved

with the New York ‘‘bomb factory.’’ As the police were clearing the debris from the

apartment, FALN incendiaries, apparently placed prior to the explosion, ignited in

several New York department stores. These were followed by a communique ́ from

the FALN that had been mailed prior to the ‘‘bomb factory’’ explosion.

FBI and NYCPD examination of the Morales ‘‘bomb factory’’ revealed that William Guillermo Morales was severely injured when a pipe bomb, which he was constructing, exploded literally in his hands, and his most severe injuries were the instant amputation of both hands. Inventory of items seized in this bomb factory include 66 sticks of dynamite and 5,000 rounds of ammunition. In addition, watches,

batteries, wires, circuits, and all types of tools were recovered among other items.

As a result, the NYCPD Bomb Squad stated at the time that the explosives and incendiaries found in this Queens bomb factory could have constructed at least 28 explosive devices and 2,632 incendiary devices of a type customarily used by the

FALN.

The FBI and NYCPD also recovered two Gestetner machines which were used to

produce stencils and for duplication. These two machines were purchased by an organization ostensibly supporting Hispanic affairs throughout the United States. It

was determined that Carlos Alberto Torres, Oscar Lopez Rivera, Luis Rosado-Ayala,

and William Guillermo Morales were members of this organization which was

headquartered in New York City. Following an exam by FBI and NYCPD experts,

it was determined that defects in the Gestetner duplicating machine found in the

Queens bomb factory were consistent with defects noted on the FALN Communique ́

#1. Communique ́s in 63 separate bombings were produced from a stencil located in

the Queens bomb factory and this stencil also produced several hundred blank

FALN communique ́s bearing the FALN logo which were also discovered in the

Queens bomb factory.

The New York ‘‘bomb factory’’ caused the FALN to change its operations and

make itself into an even more clandestine and devious organization. Rather than

attempt to stage ‘‘symbolic’’ attacks in order to ‘‘prove’’ to supporters and police that

the group continued to exist, or to send communique ́s designed to alert the world

of their continued presence, the FALN quietly and methodically constructed an ‘‘underground’’ network of members and supporters and gathered necessary supplies for

their ‘‘war of freedom.’’ Only when they felt they had developed a strong and secure

organization did the FALN resume overt political operations.

In October, 1979, explosive devices detonated in New York and Chicago in conjunction with a series of bombings on the Island of Puerto Rico. Communique ́

s

issued both in the U.S. and Puerto Rico claimed credit for these incidents in the

names of the FALN and three other island-based groups. Curiously, the FALN name

appeared first on the U.S.-issued communique ́, while that group’s name appeared

last on the island-issued document. Clearly the intent was to illustrate that the

FALN had perpetrated the mainland attacks while the other groups had done the

island bombings. The joint communique ́ also informed the world that at least four

Puerto Rican independence groups were now working in cooperation with one another. In November, 1979, the FALN struck again in Chicago with the bombings of

two military recruiting offices and an armory.

29

In mid-March, 1980, the FALN staged a new terrorist tactic when members of the

group seized the Carter-Mondale Presidential Campaign Office in Chicago and the

George Bush Campaign Office in New York and held campaign workers hostage

while ransacking the facilities and stealing supporter lists. On the days that followed these incidents, the group sent threatening letters to around 200 Carter-Mondale supporters including Demographic National Convention delegates living

throughout the State of Illinois.

On April 4, 1980, the FALN suffered its most serious setback when Evanston, Illinois, Police arrested 11 members who had assembled in that municipality for the

purpose of robbing an armored truck making a pickup at Northwestern University.

Seized with the arrestees were a stolen truck, several stolen vans and cars, 13

weapons, and various disguises and articles of false identification. Those arrested

included Carlos and Haydee Torres, Lucy Rodriguez, her sister Alicia Rodriguez,

Dylcia Pagan, the common-law wife of William Morales, Adolfo Matos, Carmen

Valentin, Luis Rosa, Dick Jimenez, Elizam Escobar, and Freddie Mendez.

Investigation arising from these arrests revealed that from the time of the discovery of the New York ‘‘bomb factory’’ in August, 1978, the FALN had developed an

intricate ‘‘underground’’ operation. ‘‘Safehouses’’ were discovered in Milwaukee, Wisconsin; Newark, New Jersey; New York City, and Chicago. Vehicles had been stolen

through various methods in several states. Quality false identifications had been established. Through investigation it became apparent that the group had developed

sources of income sufficient to easily maintain its existence. This became clear when

it was learned that their Milwaukee ‘‘safehouse’’ had been purchased for cash and

that tens of thousands of dollars in currency had been hidden there.

Good evidence was also developed to reflect that on December 24, 1979, the FALN

robbed an armored truck making a pickup at a Milwaukee supermarket. Additional

evidence showed that the FALN had invaded the Oak Creek, Wisconsin, Armory,

in January, 1980, in an unsuccessful effort to steal military arms. This invasion

failed only because the three military employees captured by the raiders refused to

open the weapons vault. Evidence was also developed to show that FALN members

were responsible for the armed robbery of the Radio Shack Store in Highland Park,

Illinois, on April 1, 1980.

The April 4, arrests undoubtedly sent shock waves through the FALN, however,

it did not end the organization and did not break the spirits of those incarcerated.

Immediately all 11 arrestees claimed to be ‘‘prisoners of war’’ and refused to cooperate with authorities. After Haydee Torres was separated from the group so that she

could be returned to New York to stand trial for her role in the fatal Mobil Oil

bombing, the remaining ten FALN members were found guilty in Illinois courts of

a variety of state violations. All were sentenced to lengthy prison terms in Illinois

maximum security penal institutions. Haydee Torres was found guilty in New York

and subsequently sentenced to serve a life term in federal custody.

On December 10, 1980, a Federal Grand Jury returned indictments in Chicago

against the ten April 4 arrestees in Illinois custody and against the still missing

Oscar Lopez, charging among other crimes Seditious Conspiracy against the U.S.

Government. During early February, 1981, trial was held for the ten in Federal

Court in Chicago. All claimed to be ‘‘prisoners of war’’ and refused to defend themselves. All were found guilty of Seditious Conspiracy, violation of the Hobbs Act, and

violation of Federal Firearms statutes. Several of the individuals were also found

guilty of interstate vehicle theft. On February 18, 1981, the ten were sentenced to

prison terms ranging from 55 to 90 years to commence after they, had completed

their Illinois prison terms that ranged from 8 to 311⁄2 years.

On the evening the federal indictments were returned, December 10, 1980, two

presumed FALN members, Luis Rosado-Ayala of New York and Felix Rosa, brother

of indictee Luis Rosa, were arrested following a high speed chase arising from the

armed robbery of a van from a Highland Park, Illinois, Ford dealer. This brazen robbery was similar to previous FALN actions. Rosado subsequently became a local and

federal fugitive when he jumped bond and Illinois authorities requested a Federal

Unlawful Flight to Avoid Prosecution (UFAP) warrant. Rosa became a fugitive when

he failed to come for the second day of his trial after having been present on the

first day. He was subsequently arrested by Illinois State Police who returned him

to court where he was found guilty of armed robbery and vehicular theft and sentenced to serve a 22 year prison term.

In the months that followed the federal convictions, all of the incarcerated FALN

members remained dedicated to their cause except for Freddie Mendez who agreed

to cooperate with the government. Mendez subsequently provided a wealth of information concerning the operations of the FALN. In discussing some of the FALN’s

terrorist activities, he mentioned that the group had been responsible for William

Morales’ escape from prison in New York during the spring of 1979. At the time

30

Morales was serving an 89 year term on charges arising from the New York ‘‘bomb

factory.’’ Mendez indicated that despite being maimed Morales returned to a leadership position with the FALN and had been one of the primary planners of the illfated April 4 armored truck robbery and of the Oak Creek Armory invasion.

On November 19, 1980, a heavily armed group of around eight individuals took

over a Texaco Service Station located at 6140 North Broadway, Chicago, in an effort

to rob an armored truck that was scheduled to make a pickup at that location. Victims of the robbery subsequently selected Felix Rosa and Eduardo Negron from a

lineup and both men were arrested and charged with this crime.

On May 29, 1981, Glenview, Illinois, Police arrested fugitive FALN member Oscar

Lopez in company with MLN member Wilfredo (Freddie) Santana after the pair was

stopped for a traffic violation. Various forms of false identification were found in

conjunction with the arrest. Subsequent investigation led the FBI to Lopez’ secret

residence at 3151 West Ainslie Street, Chicago, apartment 1B, wherein approximately six pounds of dynamite and four blasting caps were recovered along with

false identifications and FALN related materials.

Lopez was subsequently tried for Seditious Conspiracy, violation of the Hobbs Act,

illegal weapons possession, and interstate transportation of stolen motor vehicles,

and was found guilty in Federal Court in Chicago on July 31, 1981. He was sentenced to serve 55 years in federal custody on August 11, 1981.

The November 19, 1980, attempted armored truck robbery and the December 10,

1980, armed robbery of the van proved that the FALN continued to exist despite

the arrests of 11 members. 1980 through early 1982 was to be a period of rebuilding

for the FALN similar to the 16 month period that followed the explosion of the William Morales ‘‘bomb factory’’ in New York. The group made no claims of credit for

any terrorist actions during this span although its surface group, the MLN, repeatedly assured supporters that the FALN continued to be alive and well.

On the late evening of Monday, February 28, 1982, four powerful bombs detonated in front of business institutions in New York’s financial district. The FALN

claimed credit via a five page communique ́ which was found in a phone booth at

91st and Riverside Avenue after an anonymous call was received by someone claiming to be the FALN. In this communique ́

, the FALN stated that their jailed comrades and members of their organization were being mistreated in jail. The FALN

identified its jailed comrades and members as Oscar Lopez Rivera, Lucy Rodriguez,

Carlos Alberto Torres, Haydee Torres, Luis Rosa, Alicia Rodriguez, Ricardo Jimenez,

Dylcia Pagan Morales, Adolfo Matos Antongiorgi, Elizam Escobar, Carmen Valentin.

On early Monday morning, September 20, 1982, the FALN struck again in New

York detonating a bomb in front of the Bankers Trust on Park Avenue. The group

claimed that this incident was to ‘‘* * * protest the U.S. support of Israeli massacre

of Palestinian People.’’

During the evening of December 31, 1982, four powerful bombs detonated in New

York City outside police and federal buildings. Three police officers were maimed

by the blasts and considerable property damage resulted. A fifth device was disarmed by the police and was found to consist of four sticks of dynamite and components similar to those used in previous FALN devices. The FALN telephonically

claimed credit for the bombings. Various people familiar with fugitive Luis RosadoAyala subsequently identified the voice of the FALN caller as that of Rosado. Based

on this a warrant was issued for Rosado in the Eastern District of New York charging him with Conspiracy to Engage in Racketeering (Title 18, U.S. Code, Section

1962(D)) in conjunction with the bombings.

On May 26, 1983, William Morales, the maimed FALN member who escaped from

custody in New York in 1979 after being convicted of various explosives violations

in connection with the explosion of the New York ‘‘bomb factory’’ in 1978, was arrested by Mexican authorities in Puebla, Mexico. During the arrest Morales’ bodyguard and one police officer were killed and a second police officer wounded. Morales

subsequently led Mexican officials to a place where he had been staying. Another

gun battle erupted at this location when police attempted to enter same and a female resident was killed and a police officer wounded. Although U.S. authorities desire Morales be extradited to New York, Mexican authorities have charged him with

four major violations carrying prison sentences of five or more years, consequently

it appears that Morales will remain in Mexican custody for many years.

In summary, the following information has been developed concerning the operations of the FALN:

The members are totally dedicated and have expressed a willingness to spend the

remainder of their lives in prison if captured during their terrorist activities. This

is not to suggest that members will passively submit to arrest. Indeed, if escape is

believed possible, FALN members will use deadly force to avoid apprehension.

31

Membership in the FALN is not a fact that members make public. It is logical

to believe that few people within the Puerto Rican independence movement are even

aware of the membership of the FALN. Members usually function as apparent lawabiding citizens maintaining residences, families, and legitimate employments while

covertly operating in clandestine, criminal operations. It is not until positively identified as FALN members that such people vanish into full-time clandestine ‘‘underground’’ existences.

The group believes that the liberation of Puerto Rico is the paramount aspect of

their lives and that anything designed to foster this objective is proper and correct.

Armed robberies whether they be of business establishments or of common people

are justified if they bring into the organization the funds, vehicles, weapons, and

other supplies necessary to bring about the revolution. In the past the FALN has

taken advantage of naive clergymen especially people connected with the Episcopal

Church, and there is every reason to believe that they will in future attempt to

glean funds, supplies, and other support through religious institutions. The father

of Carlos Torres is the Rev. Jose Torres of Chicago’s First Congregational Church.

Security is of the utmost importance and great care is exercised to maintain confidentiality of the group’s operations. Although in the early days FALN members

tended to be somewhat careless in their false documentation, safe housing, and

other activities, such does not seem to be the case today, and their present false

identification will likely stand all but very extensive scrutiny. If arrested, FALN

members will almost certainly not cooperate regardless of promises offered to them.

Arrested FALN members know that when their cohorts, both overt and covert, learn

of their incarceration, assistance in terms of finances, attorneys, and supporters will

be made readily available to them. While such people know that escape from custody may not be immediately possible, such an option will remain open throughout

their incarceration, and they know that when the opportunity for success is greatest, necessary assistance will be available to them.

The CHAIRMAN. Thank you, Mr. Wofford.

Mr. Hahn.

STATEMENT OF RICHARD S. HAHN

Mr. HAHN. Good morning, Chairman, Mrs. Feinstein, gentlemen.

My name is Richard Hahn. I am a retired special agent of the FBI.

From January 1975 through September of 1987, I was involved almost exclusively in Puerto Rican terrorist investigations. I served

in New York for 3 years and first became involved in the FALN

investigations with the bombing of Fraunces Tavern, and then

went to Puerto Rico where I became that office’s bombing coordinator, saw the emergence of several other groups, including the

Macheteros, who ultimately claimed credit jointly with FALN actions. In December 1980, I was transferred to the Chicago office

where there, until 1987, I worked FALN cases.

Between June 1975 and November 1979, the FALN claimed credit for 19 bombings and six incendiary attacks in the Chicago area.

These included bomb targets such as a women’s washroom in a

hotel restaurant, the bombing of the city-county building, and the

bombing of offices at the Sears Tower. These bombings, credit for

which was claimed by written communique ́ or telephone calls, were

frequently coordinated with bombings in New York and eventually

with actions on the island of Puerto Rico. The communique ́s claiming credit for these stated such things as ‘‘a free and socialist Puerto Rico, if necessary, will be written in blood,’’ and that attempts

to suppress the offensive of the FALN would be met with ‘‘revolutionary violence.’’

While initially law enforcement was unable to identify the FALN,

in late 1976 a bomb factory was discovered in Chicago which was

found to be controlled by Carlos Torres and Oscar Lopez, two

32

FALN leaders. Explosives tied to FALN bombings and FALN

communique ́s were found in that bomb factory.

The next event in which FALN members were identified was in

January—I am sorry, in April 1980, when 11 FALN members were

arrested in Evanston, Illinois. Nine of those members were in a van

with 13 weapons. Of those 11 arrested at that time, one FALN

member, following conviction on Federal charges—and I would add

that the Federal charges were not only of seditious conspiracy but

also substantive weapons and explosives charges. One of those

members, Freddie Mendez, cooperated with the Government. Mr.

Mendez identifies his co-conspirators as having gone with him to

do the Carter-Mondale assault where they went into the offices of

the Carter-Mondale campaign and took hostages, held people at

gunpoint, stole the list of delegates to the convention, and sent

threatening letters subsequently to many of those delegates.

He also describes how he and his co-conspirators went into the

Oak Creek Armory in Wisconsin, the National Guard Armory, held

people at gunpoint and attempted to steal weapons from the armory vault.

Mrs. Feinstein, you mentioned the remarks of Mr. Jimenez. One

of the things that Mr. Mendez testified to at trial was the fact that

he and Mr. Jimenez together carried a bomb on public transportation throughout the city of Chicago to place it at a particular target. Mr. Mendez did not stay with Mr. Jimenez when he actually

placed the bomb. When they arrived at the target, they were not

allowed access to the bathroom that they intended to put it in. So

Mr. Jimenez dismissed Mr. Mendez and sent him on his way.

The FALN’s assertions that these people are not violent are ludicrous. They are repugnant to those of us that worked on these

cases.

In 1983, the FALN was penetrated at a safe house in Chicago;

24 pounds of dynamite, 24 detonators, several weapons, and thousands of rounds of ammunition were found and neutralized by the

FBI and other law enforcement agencies. The individuals that controlled that safe house—Edwin Cortes, Alejandrina Torres, and,

subsequently, Alberto Rodriguez—were observed building firing circuits for explosive devices, were observed making plans to break

fellow FALN members out of prison, were observed and recorded

making plans to do an armed robbery, and were observed and recorded making plans to put down bombs in the city of Chicago.

The only reason that any of those acts were not committed was

only through law enforcement intervention. I would submit to you

that of the hundreds of thousands of hours spent by law enforcement in order to solve these crimes, in order to try and identify the

individuals, that the few times that we have, in fact, succeeded in

knowing exactly who the FALN is and knowing exactly what their

activities are, they are, in fact, quite violent and that these people

are, in fact, terrorists.

Thank you.

[The prepared statement of Mr. Hahn follows:]

PREPARED STATEMENT OF RICHARD S. HAHN

I, Richard S. Hahn, am a retired FBI Special Agent. During the period of January, 1975, through September, 1987, I was involved almost exclusively in the investigation of Puerto Rican terrorist matters. I served in New York, San Juan and ChiVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 SEPT15.TXT SJUD2 PsN: SJUD2
33

cago during this period. While in New York I investigated bombings conducted by

the FALN, beginning with the bombing of Fraunce’s Tavern on January 24, 1975.

From January 1978 through December 1980 I served in San Juan as that office’s

bombing coordinator. My experiences there saw the emergence of the Macheteros as

well as other groups. From January 1981 through September 1987 I served in Chicago as one of several case agents for FALN investigations.

Between June, 1975 and November, 1979, the FALN claimed credit for nineteen

bombing and six incendiary attacks in the Chicago area. These included bomb targets such as the woman’s washroom in a hotel restaurant, (9/76), the bombing of

the city-county building, (6/77), and Sears Tower (10/75). These bombings, credit for

which was claimed by written communique ́ or telephone calls, were frequently coordinated with bombings in New York, and eventually with actions on the island

of Puerto Rico. The communique ́s stated such things as ‘‘a free and socialist Puerto

Rico, if necessary, will be written in red blood’’ and ‘‘attempts to suppress it’s offensive would be met with ‘‘revolutionary violence.’’

While initially law enforcement was unable to identify the FALN, in late 1976 a

‘‘bomb factory’’ was discovered in Chicago. This led to identification of Carlos Torres

and Oscar Lopez as persons who controlled an apartment in which explosives tied

to FALN bombings and FALN communique ́s were found.

In January, 1980, the FALN conducted an armed assault on the Oak Creek National Guard Armory in Wisconsin. Employees were threatened at gunpoint and one

round was discharged in an unsuccessful effort to obtain access to the weapons

vault.

In March, 1980 the FALN conducted a takeover of the Carter-Mondale campaign

headquarters. Workers in that office were held at gunpoint while the office was ransacked and spray painted. Lists of delegates to the convention were stolen and

threatening letters subsequently were mailed to many of them.

On April 4, 1980, eleven FALN members were captured in Evanston, Illinois as

they were preparing to conduct an armed robbery of an armored car. Among those

arrested was Carlos Alberto Torres, renter of the bomb factory found in 1976. Also

among those arrested was Freddie Mendez, a relatively new recruit to the FALN.

The arrests led to the location of numerous safehouses through out the U.S. including those in Milwaukee, Wisconsin and Newark, N.J. Searches of these safehouses

yielded weapons and explosives and bomb paraphernalia tied to the claimed FALN

bombings. Mr. Mendez, along with nine other FALN members, was tried and convicted of seditious conspiracy. Throughout the trial the FALN members refused to

participate in the proceedings, claiming that the U.S. Government had no authority

over them.

Following his conviction, but prior to sentencing, Mr. Mendez reached out for U.S.

Government authorities. Mr. Mendez subesquently cooperated with the government

and provided significant insight into the operation of the FALN. Mr. Mendez identified each of his co-defendants as individuals who participated in armed terrorist actions and/or the manufacture/delivery of FALN bombs.

It is Mr. Mendez testimony that identifies the purpose of the gathering of the

FALN members in Evanston on April 4, 1980, as well as the actions at Carter-Mondale Headquarters and the Oak Creek National Guard Armory.

In addition to his experiences in armed assaults, Mr. Mendez also provided testimony regarding being tasked, with one other FALN member, Ricardo Jimenez, to

place a bomb. Although Mr. Mendez did not ultimately participate in the placing

of the device, he did travel on public transportation through Chicago with Jimenez

and the live device to the intended target. As they arrived at the target late, they

were unable to place the device there, and Jimenez dismissed Mendez, stating that

he would take care of the matter. Mendez testified that Jimenez told him that he

put the device in the washroom of a building.

Mr. Mendez also provided information as to the functioning of the FALN. He described the FALN in court as a clandestine, revolutionary Puerto Rican organization

whose goal was to build a peoples war in Puerto Rico and the U.S. through armed

violence. Mr. Mendez also described in testimony, details of the rigors of clandestine

operations, designed to preclude one member from knowing the activities of more

than just a few others, in order to minimize risk from infiltration or government

cooperation. He provided details regarding the training he received in counter surveillance techniques, maintenance of a safehouse, false identification and disguises.

Between December 1981 and January, 1983, various agencies of Chicago law enforcement worked cooperatively to surveil FALN suspect Edwin Cortes. This led to

the identification of an active FALN safehouse maintained by Cortes and

Alejandrina Torres in an apartment at 736 W. Buena Street, Chicago. Shortly after

the identification of the specific safehouse apartment, the government sought, and

was granted Title III authority to place microphones in the apartment as well as

34

to establish video surveillance within the apartment. These were established in January, and February, 1983, respectively. On March 8, 1983, Cortes and Torres were

observed via the video surveillance, cleaning and loading weapons and subsequently

building firing circuits for explosive devices. A search of the apartment after the

subjects had left yielded approximately 24 pounds of dynamite, 24 blasting caps,

weapons, disguises, false identification and thousands of rounds of ammunition.

Law enforcement sought and was granted court authorization to neutralize and/or

seize the weapons and explosives, and maintain notice of the searches under seal.

Subsequently, law enforcement intercepted conversations between Edwin Cortes and

still unidentified co-conspirators in New York to arrange for the travel of an unknown individual to Chicago. On or about March 14, 1983, after several conversations with the unknown conspirators in New York, Cortes picked up a man at the

airport and transported him to the safehouse. The man, referred to as Benjamin,

remains unidentified. Thereafter, Cortes, and ‘‘Benjamin’’ met at the safehouse.

They were joined by Torres and were seen gathering the weapons and other materials in the safehouse, and subsequently loading bags with materials into two vehicles, one a stolen vehicle, the other a vehicle registered in a fictitious name, and

departing the safehouse apartment in the early AM hours of March 15th. Prior to

leaving the safehouse Cortes made the comment to Torres that ‘‘Yes but, she has

to have it loaded and cocked further back. If they have to shoot, they can shoot.’’

On March 18, 1983, as a result of analysis of Title III intercepts in the Chicago

safehouse, law enforcement established a surveillance outside of the ambulance entrance to Wadsworth VA hospital, where FALN leader Oscar Lopez was to be taken

that date. Lopez had complained of a malady and had been notified well in advance

that he would be taken to the hospital for tests on that date. The surveillance observed Torres, Cortes and ‘‘Benjamin’’ moving about the ambulance entrance for

over an hour, all wearing disguises. During this time, Oscar Lopez was precluded

from leaving Leavenworth Prison and the ambulance which would normally arrive

at the hospital in the morning hours never did arrive, due to law enforcement intervention. Eventually, Cortes, Torres and ‘‘Benjamin’’ left the hospital area and were

surveilled to an apartment in Kansas City which had been rented in a false name.

A fingerprint of Alberto Rodriguez was subsequently located on an item in this

apartment.

On March 19, 1983, Cortes and ‘‘Benjamin’’ returned to the Chicago safehouse at

736 W. Buena Street. While there they were observed on video studying maps of

the city of Pontiac, Illinois and Livingston County. FALN member Luis Rosa captured at Highland Park, Illinois following a robbery/kidnapping, was incarcerated at

Pontiac State Prison. ‘‘Benjamin’’ subsequently left, returning to Puerto Rico. On

March 22, 1983, Luis Rosa was moved from Pontiac Prison to Joliet State Prison.

The next day Torres and an unidentified female travelled to the Bloomington, Illinois area, not far from Pontiac, Illinois. There, they rented an apartment under a

false name. Later that same evening a telephone call between Cortes and Torres

was intercepted on the Buena safehouse phone. In the conversation Cortes and

Torres were overheard complaining about the ‘‘changes’’ made the day before.

In March, 1983, Chicago law enforcement located a second Chicago FALN

safehouse located on Lunt Avenue. Edwin Cortes and FALN member Alberto

Rodriguez were observed to meet there. This apartment was also penetrated with

court authorized microphones and video equipment. Through intercepts at this location it was determined that they were developing plans to rob a Chicago Transit

Authority (CTA), mobile safe operator of the daily collections. Cortes was subsequently observed conducting a surveillance at one of the CTA stops. In intercepted

conversations between the two, the topic of whether or not underpaid guards would

risk their lives was discussed. Escape routes and advantages of conducting the robbery at different potential sites was also discussed. In a May 15, 1983 conversation

Alberto Rodriguez was overheard discussing ways of confronting the guard, stating

they may have to ‘‘hit him upside the head’’ and that they may have to ‘‘shoot the

guard, which makes a noise.’’ This plot was also diffused by Chicago law enforcement who confronted and obtained Identification from Rodriguez as he conducted a

surveillance of a CTA station on March 16, 1983.

On May 27, 1983, Edwin Cortes and Alberto Rodriguez were observed moving materials from the Buena Street safehouse to the Lunt Avenue safehouse. Following

the move the two were observed driving around military facilities at Foster and

Kedzie, Devon and Kedzie and 74th and Pulaski in Chicago. In early June, 1983,

they were observed in the Lunt apartment working with the bomb building paraphernalia previously observed at the Buena Street safehouse. During this meeting

Cortes instructed Alberto Rodriguez in how to assemble a firing circuit for an improvised explosive device. In addition to working with the bomb building paraphernalia,

they were overheard discussing in detail the physical layout of the Army Reserve

35

Center and GSA facility at 74th and Pulaski, Chicago and talking about the military

sites, Cortes wondering aloud how to cause the greatest incendiary damage to vehicles there. Following this meeting they again were observed conducting surveillances of a Marine base, the Army Reserve Center and two military motor pools.

On June 26, 1983, Cortes met Rodriguez at the Lunt safehouse. They were observed working with watches, pipe and pipe caps. They also tried on hats and makeup during this meeting.

On June 28, 1983, Cortes inventoried bomb components at the Lunt safehouse.

These included blasting caps, dynamite, detonating cord and batteries. He and

Torres met at the apartment and prepared a communique ́. He subsequently met

Rodriguez at the apartment, outside of the presence of Torres. With Rodriguez he

drew maps and diagrams and wrapped blasting caps and the explosives which law

enforcement had inerted.

On June 29, 1983, Cortes, Torres, Alberto Rodriguez, and a fourth defendant, Jose

Luis Rodriguez, were arrested. In comments at sentencing Judge George Layton

stated, ‘‘One of the strange things about this case is that these defendants didn’t

accomplish any of their purpose. They didn’t succeed in springing Oscar Lopez. They

didn’t succeed in springing anybody from Pontiac Correctional Center. And they

didn’t even succeed in planting the bombs. Why? Because in this case, in this court’s

judgement, represents one of the finest examples of preventive law enforcement that

has ever come to this court’s attention in the 20-some odd years it has been a judge

and in the 20 years before that this Court was a practicing lawyer in criminal cases

all over the country. Good, preventive law enforcement succeeded in keeping these

defendants from doing what they were going to do. They were going to plant bombs

in public buildings during a holiday.’’

The co-conspirator(s) in New York and Puerto Rico were never identified.

Luis Rosado, a suspected FALN member from New York, remains a fugitive on

state charges in Illinois for the actions taken with Felix Rosa, brother of FALN

member Luis Rosa. Rosado failed to appear on 3/13/81.

In 1985 a plot to break FALN leader Oscar Lopez out of prison at Leavenworth

Penitentiary was brought to the attention of the FBI by a cooperative witness. In

that case co-conspirators were tasked to obtain weapons and explosives for use in

the plot. The plot was to involve forcing a helicopter pilot to land in the yard at

Leavenworth. As the escape took place, explosive charges were to be used to distract

and to deter guards from taking action to prevent the escape. Co-conspirators in

that case were audio taped via court authorized intercepts as they purchased what

they believed to be explosives to be used in the plot from an FBI undercover agent.

One co-conspirator successfully burglarized a gun store near Littleton, Colorado, to

obtain weapons for use in the escape. Due to intervention by law enforcement, none

of the plans came to fruition.

The CHAIRMAN. Thank you, Mr. Hahn. We appreciate that.

Mr. Gallegos, we are honored to have you here as well.

STATEMENT OF GILBERT G. GALLEGOS

Mr. GALLEGOS. Thank you, Mr. Chairman.

Good morning, Mr. Chairman and distinguished members of the

Senate Committee on the Judiciary. My name is Gilbert Gallegos.

I am the president of the Fraternal Order of Police, which is the

largest police organization in this country, 283,000 members.

The President has recently used his constitutional power to offer

clemency for 16 terrorists. Despite the opposition from Federal officials, from law enforcement officers throughout this country, and

the victims and the families that were affected and impacted for

the rest of their life, despite our efforts, he turned us down. And

we requested at least to consult with him, as did the victims. They

did not even receive a response, as I did not receive a response.

That was very disappointing with a President who has purported

to be pro-law enforcement and anti-crime. Thousands of police officers in this country have stood shoulder to shoulder with our President to make a statement that crime, terrorism, will not be tolerated in this country. But yet when we seek to counsel with him on

important issues that impact not only police officers of this country

36

but the millions and millions of potential victims of bombings, indiscriminate violence that has been perpetuated by this organization.

Now, we know that this organization is not a political organization. They are simply a terrorist and criminal organization. They

have displayed their power to be criminals. And to say that because

somebody wasn’t really involved in planting a bomb is ludicrous.

That is like saying that an organized group that goes out to rob a

bank and the driver doesn’t go into the bank to rob the bank, to

say that that driver is any less guilty of bank robbery than the people that actually went in to rob the bank.

So the assertion that they are not violent is a slap in the face

to the victims and law enforcement and the American people

throughout this country.

We know what the crimes are that these people committed. It

has been well documented. We have seen the pictures. But what

about the crime of deaf ear to the victims and to law enforcement

officers who really want to make a statement about how we feel

about terrorists and criminals?

And what about the mixed signals that Senator Feinstein asserted that this administration is putting out not only to the American people but to those thousands of potential terrorists out there

as to really what the position of the American Government is? And

that is exactly what we have done. We have put out a fact out

there that we are really not serious about terrorism.

A week before the clemency offer went, it was put out by the

President. Secretary of State Madeleine Albright, speaking on the

anniversary of the deadly U.S. Embassy bombings in Africa, vowed

to wage an all-out war against terrorism. A week later that policy

must have changed because we do not have an all-out war against

terrorism.

Now should the Secretary of State instead promise to wage an

all-out effort to get terrorists to repent, not to be terrorists or not

to be violent? It is ludicrous to even think that we can take a position like that.

Consider the recent case of Buford Furrow. We know that he

shot up the Jewish community center in California, murdered a

U.S. postal employee. His violations of the law, the firearms laws,

were very much the same as those members of FALN. Now, is that

man going to receive clemency also?

The administration has put out a mixed signal out there. Are we

going to release Mr. McVeigh for the actions that he took? He

didn’t intend to kill that many people. He wanted to make a political statement. Where does it end, ladies and gentlemen?

And it is very disappointing for law enforcement when we, as I

said before, have stood shoulder to shoulder with this President

and considered him our friend and tried to influence his decision

in the right way, just like his own FBI tried to, his own Bureau

of Prisons tried to influence his decision, and he turned a deaf ear

to them.

This is not about politics. The votes that were taken in the

House and the votes that were taken in the Senate condemned this

decision. It was a bipartisan effort, which I applaud, because this

is a bipartisan issue. And the American people are made up of

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Democrats, Republicans, and all other parties in between. And we

are made up right now as potential targets of terrorism because

tacitly the Government, the President, has said it is OK and perhaps we will even give you a pardon sometime down the road.

And I commend this Judiciary Committee and other committees

that are seriously concerned about what action we are taking. We

are not doubting the President’s authority to make this decision.

What we are doubting is the rationale for it and the rationale for

not listening to people who have sound advice on this particular

issue.

And I think we as the American people have got to take a stand.

And on behalf of law enforcement officers throughout this country,

we intend on taking a stand on this issue and against terrorists

and against criminals who are violent and intend to maim the

American people.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Gallegos follows:]

PREPARED STATEMENT OF GILBERT G. GALLEGOS

Good morning, Mr. Chairman and distinguished members of the Senate Committee on the Judiciary. My name is Gilbert G. Gallegos, National President of the

Grand Lodge, Fraternal Order of Police. The F.O.P. is the nation’s largest organization of law enforcement professionals, representing more than 283,000 rank-and-file

law enforcement officers in every region of the country.

I had hoped to appear before you today to again urge the President to withdraw

his offer of clemency to the sixteen convicted terrorists and members of the Armed

Forces of National Liberation, or FALN to use its Spanish initials. Sadly, twelve

have already accepted that clemency and eleven are at large once again. We should

make no mistake—the President has used his constitutional power to release convicted terrorists, despite the opposition of Federal law enforcement officials, despite

the objections from the law enforcement community and despite the pleas of the victims and families of the dead killed in their wave of bomb attacks.

Today, the F.O.P., instead of renewing its call to withdraw an offer of clemency

for terrorist bombers, now joins this Senate Committee and all concerned Americans

in trying to determine why this decision was made in the hopes that we can ensure

that no more murderous criminals will be released so long as they make vague

promises to abjure violence when they leave prison.

The F.O.P. strongly supported House Concurrent Resolution 180, offered by Congressman Vito Fossella (R–NY), which passed the House of Representatives last

week in an overwhelming and bipartisan vote. Only forty-three members of Congress voted against the resolution for reasons which are unclear to me and virtually

every other law enforcement officer in our country. While this resolution, or any

other act of Congress cannot reverse the President’s offer, it is important that we

make clear to the President the views of the law enforcement community and the

American public. Political considerations should never compromise the public safety,

and, as the safety of the public has been compromised in this instance, it behooves

us to learn why.

Make no mistake, the FALN is a militant terrorist organization with violent, separatist goals. Between 1974 and 1983, the FALN staged a series of bombing attacks

on United States political and military targets, mostly in New York City and Chicago. These acts of terrorism claimed the lives of six people, Mr. Chairman. Scores

were wounded and some, including three New York City police officers, were permanently maimed by the powerful explosives planted by the FALN.

Let me describe to you a series of bomb attacks which occurred on the evening

of 31 December 1982. At close to 9:30 pm, a powerful explosion rocked the building

at 26 Federal Plaza. Members of the New York City bomb squad arrived on the

scene minutes later and just as they began their investigation, a second explosion,

the blast of which could be felt blocks away, occurred at the Brooklyn Federal

Courthouse. And the night was just beginning.

Moments later a third explosion ripped into police headquarters at One Police

Plaza. The blast was so powerful that it blew out the heavy glass and frame of a

revolving door. This bomb, however, did more than several thousands of dollars

worth of structural damage to a government building. This blast hit Detective Rocco

38

Pascarella, blowing away most of his left side. Detective Pascarella survived the

blast, but he lost his left leg, his left ear and his left eye.

Detectives Anthony S. Senft and Richard Pastorella of the New York City Police

Department, who had been on the scene to investigate the aftermath of the earlier

blasts now realized that there were more bombs in the area. The streets were

clogged with New Year’s Eve revelers, many of whom did not speak English and

did not recognize the plain-clothes detectives as police. Many of these innocent bystanders had to be bodily removed from the scene.

With much precious time having elapsed, the two detectives prepared to disarm

one of the bombs. It went off in their face.

Detective Senft was blown backward eighteen feet into the air. He found himself

blind and deaf with a fractured right hip, his face riddled with concrete, metal and

other debris. Extensive surgery eventually allowed Detective Senft to recover some

of the sight in his left eye and some of the hearing in his left ear.

Detective Pastorella, was not so lucky. The explosion tossed him twenty-five feet,

blew off all the fingers on his right hand and left him blind in both eyes. He has

had thirteen major operations and twenty titanium screws inserted just to hold his

face together.

While most people watched the ball drop in Times Square or on their television

sets, these three officers were fighting for their lives in emergency surgery.

It is true that none of the sixteen terrorists offered clemency by President Clinton

were convicted of placing any of the bombs that ripped through New York City on

that tragic New Year’s Eve. Yet the claims of this White House that none of them

were involved in violence, nor directly involved in any deaths or injuries is not only

false and self-serving, but a slap in the face to the families of the six dead and the

scores of wounded and maimed victims. Law enforcement officials worked hard to

get these terrorists behind bars—not to extract a promise from them to swear off

their evil ways and send them on their way. It might be remembered that the wave

of violence and murder which ruled Chicago ended when Al Capone was convicted

of tax evasion, just as the wave of bombing attacks in the United States ended when

these sixteen were imprisoned. Should Al Capone also have been granted clemency

because he was ‘‘not directly involved’’ with any deaths?

Let me review for the record the names and crimes of these sixteen terrorists and

then allow you to judge for yourselves whether or not these individuals were ‘‘not

involved’’ with the violent acts of the group they formed.

• Elizam Escobar, convicted on 18 February 1981 of seditious conspiracy (18

U.S.C. 2384), interference with interstate commerce by threats or violence (18

U.S.C. 1951), possession of an unregistered firearm (18 U.S.C. 5861(d)), carrying firearms during the commission of seditious conspiracy and interference

with interstate commerce by violence (18 U.S.C. 924(b)), interstate transportation of firearms with the intent to commit seditious conspiracy and interference with interstate commerce by violence (18 U.S.C. 924(c)) and interstate

transportation of a stolen vehicle (18 U.S.C. 2312);

Escobar was sentenced to sixty years, and has been released. The President commuted his total effective sentence to less than twenty-five years.

• Ricardo Jimenez, convicted on 18 February 1981 of seditious conspiracy (18

U.S.C. 2384), interference with interstate commerce by threats or violence (18

U.S.C. 1951), possession of an unregistered firearm (18 U.S.C. 5861(d)), carrying firearms during the commission of seditious conspiracy and interference

with interstate commerce by violence (18 U.S.C. 924(b)), interstate transportation of firearms with the intent to commit seditious conspiracy and interference with interstate commerce by violence (18 U.S.C. 924(c)) and interstate

transportation of a stolen vehicle (18 U.S.C. 23 2);

Jimenez was sentenced to ninety years, and has been released. The President commuted his total effective sentence to twenty-five years.

• Adolfo Maltos, convicted on 18 February 1981 of seditious conspiracy (18 U.S.C.

2384), interference with interstate commerce by threats or violence (18 U.S.C.

1951), possession of an unregistered firearm (18 U.S.C. 5861(d)), carrying firearms during the commission of seditious conspiracy and interference with interstate commerce by violence (18 U.S C. 924(b)), interstate transportation of firearms with the intent to commit seditious conspiracy and interference with interstate commerce by violence (18 U.S.C. 924(c)) and interstate transportation of

a stolen vehicle (18 U.S.C. 2312);

Maltos was sentenced to seventy years, and has been released. The President commuted his total effective sentence to less than twenty-five years.

39

• Dylcia Noemi Pagan, convicted on 18 February 1981 of seditious conspiracy (18

U.S.C. 2384), interference with interstate commerce by threats or violence (18

U.S.C. 1951), possession of an unregistered firearm (18 U.S.C. 5861(d)), carrying firearms during the commission of seditious conspiracy and interference

with interstate commerce by violence (18 U.S.C. 924(b)), interstate transportation of firearms with the intent to commit seditious conspiracy and interference with interstate commerce by violence (18 U.S.C. 924(c)) and interstate

transportation of a stolen vehicle (18 U.S.C. 2312);

Pagan was sentenced to fifty-five years, and has been released. The President commuted her total effective sentence to twenty-six years.

• Alicia Rodriguez, convicted on 18 February 1981 of seditious conspiracy (18

U.S.C. 2384), interference with interstate commerce by threats or violence (18

U.S.C. 1951), possession of an unregistered firearm (18 U.S.C. 5861(d)), carrying firearms during the commission of seditious conspiracy and interference

with interstate commerce by violence (18 U.S.C. 924(b)), interstate transportation of firearms with the intent to commit seditious conspiracy and interference with interstate commerce by violence (18 U.S.C. 924(c)) and interstate

transportation of a stolen vehicle (18 U.S.C. 2312);

Alicia Rodriguez was sentenced to fifty-five years, and has been released. The President commuted her total effective sentence to four years.

• Ida Luz Rodriguez, convicted on 18 February 1981 of seditious conspiracy (18

U.S.C. 2384), interference with interstate commerce by threats or violence (18

U.S.C. 1951), possession of an unregistered firearm (18 U.S.C. 5861(d)), carrying firearms during the commission of seditious conspiracy and interference

with interstate commerce by violence (18 U.S.C. 924(b)), interstate transportation of firearms with the intent to commit seditious conspiracy and interference with interstate commerce by violence (18 U.S.C. 924(c)) and interstate

transportation of a stolen vehicle (18 U.S.C. 2312);

Ida Luz Rodriguez was sentenced to seventy-five years, and has been released. The

President commuted her total effective sentence to twenty-three years.

• Luis Rosa, convicted on 18 February 1981 of seditious conspiracy (18 U.S.C.

2384), interference with interstate commerce by threats or violence (18 U.S.C.

1951), possession of an unregistered firearm (18 U.S.C. 5861(d)), carrying firearms during the commission of seditious conspiracy and interference with interstate commerce by violence (18 U.S.C. 924(b)), interstate transportation of firearms with the intent to commit seditious conspiracy and interference with interstate commerce by violence (18 U.S.C. 924(c)), and interstate transportation of

a stolen vehicle (18 U.S.C. 2312);

Rosa was sentenced to seventy-five years, and has been released. The President

commuted his total effective sentence to less than five years.

• Carmen Valentin, convicted on 18 February 1981 of seditious conspiracy (18

U.S.C. 2384), interference with interstate commerce by threats or violence (18

U.S.C. 1951), possession of an unregistered firearm (18 U.S.C. 5861(d)), carrying firearms during the commission of seditious conspiracy and interference

with interstate commerce by violence (18 U.S.C. 924(b)), interstate transportation of firearms with the intent to commit seditious conspiracy and interference with interstate commerce by violence (18 U.S.C. 924(c)), and interstate

transportation of a stolen vehicle (18 U.S.C. 2312);

Valentin was sentenced to ninety years, and has been released. The President commuted her total effective sentence to less than twenty-five years.

• Alberto Rodriguez, convicted on 4 October 1985 of seditious conspiracy (18

U.S.C. 2384), conspiracy to make destructive devices (18 U.S.C. 371 and 26

U.S.C. 5861(f), possession of an unregistered firearm (18 U.S.C. 5861(d)), possession of a firearm without a serial number (26 U.S.C. 5861(i)), and conspiracy

to obstruct interstate commerce by robbery (18 U.S.C. 1951);

Alberto Rodriguez was sentenced to thirty-five years, and has been released. The

President commuted his total effective sentence to twenty-six years.

• Alejandrina Torres, convicted on 4 October 1985 of seditious conspiracy (18

U.S.C. 2384), possession of an unregistered firearm (18 U.S.C. 5861(d)), conspiracy to make destructive devices (18 U.S.C. 371 and 26 U.S.C. 5861(f), unlawful

storage of explosives (18 U.S.C. 842(j)), and interstate transportation of a stolen

vehicle (18 U.S.C. 2312);

Torres was sentenced to thirty-five years, and has been released. The President

commuted her total effective sentence to twenty-six years.

40

• Edwin Cortes, convicted on 4 October 1985 of seditious conspiracy (18 U.S.C.

2384), possession of an unregistered firearm (18 U.S.C. 5861(d)), conspiracy to

make destructive devices (18 U.S.C. 371 and 26 U.S.C. 5861(f), unlawful storage

of explosives (18 U.S.C. 842(j)), interstate transportation of a stolen vehicle (18

U.S.C. 2312), possession of a firearm without a serial number (26 U.S.C.

5861(i)) and conspiracy to obstruct interstate commerce by robbery (18 U.S.C.

1951);

Cortes was sentenced to thirty-five years, and has been released. The President has

commuted his total effective sentence to twenty-six years.

• Juan Enrique Segarra-Palmer, was convicted on 15 June 1989 of robbery of

bank funds (18 U.S.C. 2113(a)), transportation of stolen money in interstate and

foreign commerce (18 U.S.C. 2314), conspiracy to interfere in interstate commerce by robbery (18 U.S.C. 1951), interference with interstate commerce by

robbery (18 U.S.C. 1951), and conspiracy to rob Federally insured bank funds,

commit a theft from an interstate shipment, and transport stolen money in

interstate and foreign commerce (18 U.S.C. 371);

Segarra-Palmer was sentenced to fifty-five years and a $500,000 fine. He has been

released and the unpaid balance of his fine waived. The President commuted his

total effective sentence to less than thirty years.

• Roberto Maldonado-Rivera, was convicted on 9 June 1989 of conspiracy to rob

Federally insured bank funds, commit a theft from an interstate shipment, and

transport stolen money in interstate and foreign commerce (18 U.S.C. 371);

Maldonado-Rivera was sentenced to five years in prison and a $100,000 fine. The

President has waived the unpaid balance of this fine.

• Norman Ramirez-Talavera, was convicted on 9 June 1989 of conspiracy to rob

Federally insured bank funds, commit a theft from an interstate shipment, and

transport stolen money in interstate and foreign commerce (18 U.S.C. 371);

Maldonado-Rivera was sentenced to five years in prison and a $50,000 fine. The

President has waived the unpaid balance of this fine.

• Oscar Lopez-Rivera, was convicted on 11 August 1981 of seditious conspiracy

(18 U.S.C. 2384), interference with interstate commerce by threats or violence

(18 U.S.C. 1951), possession of an unregistered firearm (18 U.S.C. 5861(d)), carrying firearms during the commission of seditious conspiracy and interference

with interstate commerce by violence (18 U.S.C. 924(b)), interstate transportation of firearms with the intent to commit seditious conspiracy and interference with interstate commerce by violence (18 U.S.C. 924(c)) and interstate

transportation of a stolen vehicle (18 U.S.C. 2312);

• Oscar Lopez-Rivera, was convicted a second time, on 26 February 1988 of conspiracy to escape, to transport explosives with intent to kill and injure people,

and to destroy government buildings and property (18 U.S.C. 371 and

1952(a)(3)), aiding and abetting travel in interstate commerce to carry on arson

(18 U.S.C. 2 and 1952(a)(3), and using a telephone to carry on arson (18 U.S.C.

1952(a)(3));

Lopez was sentenced to fifty-five years and fifteen years, respectively. He has rejected the offer of clemency, which would commute his total effective sentence from

seventy to forty-four years.

• Antonio Camacho-Negron, was convicted on 9 June 1989 of foreign transportation of stolen money (18 U.S.C. 2314), and conspiracy to rob Federally insured

bank funds, commit a theft from an interstate shipment, and transport stolen

money in interstate and foreign commerce (18 U.S.C. 371);

Camacho-Negron was sentenced to fifteen years and a $100,000 fine. He was released on parole after serving some time, but returned to prison in February 1998

for again becoming active in the FALN. He has rejected the President’s offer of

clemency, which would have remitted the unpaid balance of his fine.

As I mention here, the last two did not accept the President’s offer. While we can

all be grateful that there are two less terrorists on the streets than the President

wanted, the very fact that they were given the opportunity to reject such an offer

is a slap in the face to law enforcement officers everywhere.

President Clinton offered these terrorists clemency on 11 August and attached

certain conditions to their release. First, each must submit a signed written statement requesting the commutation of the sentence. They must agree to abide by all

conditions of release imposed by law or the Parole Commission, and renounce the

use or threatened use of violence for any purpose.

It took them almost a month to agree to these terms. Why? Perhaps because they

were negotiating a better deal. This in and of itself is astounding—that Federal inVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 SEPT15.TXT SJUD2 PsN: SJUD2
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mates accused of such serious crimes were in a position to negotiate with the White

House about the terms of their release. While the specifics of those negotiations remain unknown, I wonder what conditions they objected to. Did they not wish to renounce violence as the means through which to achieve their separatists goals?

Let us examine for a moment, the crimes for which these terrorists were convicted, because, as the President reminds us, none of the above were convicted of

killing or injuring anyone. The first and most serious crime is seditious conspiracy.

At one time in United States history, sedition and seditious conspiracy, which is

plotting against or carrying out acts of war or sabotage against the United States,

was a hanging offense. In 1942, by order of President Roosevelt, eight men were arrested, tried and executed for seditious conspiracy and sabotage. Now, fifty years

later, sentences of less than twenty years are viewed as too harsh.

Other offenses for which these violent would-be revolutionaries were convicted include a variety of explosive and firearms offenses. This Administration cannot seem

to decide what message to send—it has continually pushed for new gun control laws,

has utterly failed to enforce the ones on the books and now, it seems, it is willing

to grant clemency even to those offenders who commit those crimes. In my opinion,

the more we examine this case the less it makes sense.

A week prior to the offer of clemency for these terrorists, Secretary of State Madeline Albright, speaking on the anniversary of the deadly U.S. Embassy bombings

in Africa, vowed to wage an all-out war against terrorism. Did that policy change

in just a week? Should our Secretary of State have instead promised to wage an

all-out effort to get terrorists to promise to renounce violence?

What message are we sending to terrorists—domestic and foreign, and what message are we sending to those violating our gun laws?

Buford O. Furrow, Jr., the man who shot and wounded five at a Jewish Community Center and murdered a U.S. Postal employee was in violation of numerous firearms laws. Yet this has not stopped the Administration or others from pointing to

this tragedy to score political points in favor of additional gun control.

Mr. Furrow is a racist who committed this heinous act as, in his words, ‘‘a wakeup call to America to kill Jews.’’ His repugnant crimes include many of the same

crimes for which the FALN terrorists were convicted—felony possession of a firearm

and car jacking to name a few. Will Mr. Furrow be granted clemency next? How

were his crimes any different than that of the FALN terrorists? Like Mr. Furrow,

they chose specific targets—government buildings and government employees. The

1975 bombing of Fraunces tavern was aimed at businessmen, whom the FALN

termed ‘‘imperialistic capitalists,’’ whose companies did business with Puerto.

These, too, are crimes of hate—a ‘‘wake-up call’’ in a war of nerves between the

Federal government and these violent Puerto Rican separatists. The Administration

is pushing hate crimes legislation with one hand, and setting free criminals guilty

of similar crimes with the other.

Consider the text of S. 1406, a bill introduced by you, Mr. Chairman to combat

hate crimes:

‘Sec. 249. Interstate travel to commit hate crime

(a) IN GENERAL—A person, whether or not acting under color of law, who—

‘(1) travels across a State line or enters or leaves Indian country in order,

by force or threat of force, to willfully injure, intimidate, or interfere with,

or by force or threat of force to attempt to injure, intimidate, or interfere

with, any person because of the person’s race, color, religion, or national origin; and

‘(2) by force or threat of force, willfully injures, intimidates, or interferes

with, or by force or threat of force attempts to willfully injure, intimidate,

or interfere with any person because of the person’s race, color, religion, or

national origin, shall be subject to a penalty under subsection (b).

‘(b) PENALTIES—A person described in subsection (a) who is subject to a penalty under this subsection—

‘(1) shall be fined under this title, imprisoned not more than 1 year, or both;

‘(2) if bodily injury results or if the violation includes the use, attempted use,

or threatened use of a dangerous weapon, explosives, or fire, shall be fined

under this title, imprisoned not more than 10 years, or both; or

‘(3) if death results or if the violation includes kidnapping or an attempt to

kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual

abuse, or an attempt to kill—

‘(A) shall be fined under this title, imprisoned for any term of years or

for life, or both; or

‘(B) may be sentenced to death.’.

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These terrorist chose their targets on the basis of national origin. They used firearms and explosives to kill Americans, whom they falsely perceived to be keeping

Puerto Rico in colonial bondage. Does the Administration want to punish hate

crimes, or release the practioners of hate crimes? If Senator Hatch’s legislation were

law, they could have been sentenced to death.

The Administration strongly supports S. 622, which also would have resulted in

life sentences for these terrorists:

SEC. 4. PROHIBITION OF CERTAIN ACTS OF VIOLENCE.

Section 245 of title 18, United States Code, is amended—

(1) by redesignating subsections (c) and (d) as subsections (d) and (e), respectively; and

(2) by inserting after subsection (b) the following:

(c)(1) Whoever, whether or not acting under color of law, willfully

causes bodily injury to any person or, through the use of fire, a firearm, or an explosive device, attempts to cause bodily injury to any

person, because of the actual or perceived race, color, religion, or national origin of any person—

‘(A) shall be imprisoned not more than 10 years, or fined in accordance

with this title, or both; and

‘(B) shall be imprisoned for any term of years or for life, or fined in accordance with this title, or both if—

‘(i) death results from the acts committed in violation of this paragraph; or

‘(ii) the acts committed in violation of this paragraph include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

Under Senator Kennedy’s legislation, these terrorists, who targeted Americans

could have been sentenced to life. Instead, all have been released by the President

after serving only a fraction of their sentences.

The President would have us believe that the sentences for the FALN bombers

were unusually harsh. The President also noted that human rights leaders like

Archbishop Desmond Tutu urged that these criminals had served enough time for

their violent crimes. I might remark at this time that Archbishop Tutu also advocates the release of Mumia Abu-Jamal, a convicted cop-killer who murdered Philadelphia Police Officer Daniel Faulkner in 1981. He was convicted in 1982, and had

Post-Conviction Relief Act (PCRA) hearings in 1995, 1996 and 1997. On each of

those three occasions, the Pennsylvania Supreme Court upheld the conviction and

the death sentence. Will he be offered clemency next? Why is it, Mr. Chairman that

these so-called ‘‘human rights’’ activists are so selective about who is entitled to

these rights? What about Danny Faulkner and his widow Maureen? What about

Tom and Joe Connor, whose father was killed by the FALN? What about Detectives

Pascarella, Senft and Pastorella? Do they not have rights in the view of these advocates? I reject, Mr. Chairman, that there was any injustice in the sentences of these

sixteen terrorists and I reject any suggestion that we ought to free those who aim

to wage a war of terror to achieve political ends. If this puts me at odds with President Clinton and others, then so be it.

It should also be remembered that President Carter pardoned three Puerto Rican

nationalists who were convicted in a 1954 shooting attack on the U.S. House of Representatives that wounded five law makers. Two Congressional pages who were on

the floor at the time of the attack were later elected to Congress—the late Bill

Emerson (R–MO) and Representative Paul E. Kanjorski (D–PA). A fourth nationalist, convicted of the murder of a Federal law enforcement officer, attempted assassination of President Harry S. Truman and assault with the attempt to kill in 1950,

was also pardoned by President Carter in 1979. We disagreed with President

Carter’s decision then, as we disagree with President Clinton’s now—nationalists

whose love of country can only be expressed by shooting sprees, assassination plots

and bombing attacks are nothing more than terrorists.

At the time of the President’s offer of clemency, Congress was out of session. I,

along with nearly four thousand members of the Fraternal Order of Police representing law enforcement officers from every region of the country, were at our

54th Biennial Conference. This Administration seems to have a penchant for making bad decisions when they know media coverage will be scarce.

In any case, in part because of the efforts of the Fraternal Order of Police, the

story, once confined to single paragraph Associated Press news bulletins, grew. By

the next week, the offer was front page headlines, with news and political commentators speculating that the offer was a calculated attempt to appeal to the 1.3

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million voters of Puerto Rican descent in the State of New York, where the First

Lady may run for a Senate seat. In my own letter to the President on 18 August,

I urged him not to play politics with terrorists and admonished him that releasing

violent criminals was no way to gain votes or appeal to racial pride. I have yet to

receive an answer or even an acknowledgement of the letter I sent.

By 25 August, the offer of clemency was a national story, prompting the White

House to issue a statement: ‘‘There is absolutely no connection between the President’s decision here and [the First Lady’s] possible campaign.’’ Ten days later, the

First Lady publicly urged the President to rescind his offer. Of course, the terrorist

accepted the offer three days later on 8 September.

Whether or not the offer of clemency was indeed made with the aim of helping

the First Lady’s potential campaign for the Senate, I cannot say. I can say that I

do not understand what possible motive the President could have—releasing terrorist to gain votes for his wife makes no more sense to me than does the claim that

it was an attempt to appease ‘‘human rights’’ advocates.

The First Lady now acknowledges that she mishandled the issue and should have

met with the supporters of the terrorists to explain her opposition before announcing it. This, too, is something I don’t understand. Supporters of these terrorists had

a sit down meeting with the Attorney General of the United States. The terrorists

themselves were permitted a conference call to discuss the President’s offer. And

yet, like me, the maimed law enforcement officers cannot even get the President or

the Department of Justice to acknowledge their letter. This, Mr. Chairman, is a disgrace.

Thus, we are still left with the question—why?

We also must factor into our consideration the clemency process, described by

Presidential spokesperson Joe Lockhart as ‘‘painstaking.’’ Be that as it may, according to published reports, the clemency offer was opposed by the Federal Bureau of

investigation and the former prosecutors, U.S. Attorneys, who brought the cases

against these terrorists. The most noteworthy news reports, however, revolve

around the position of the Bureau of Prisons, an agency which only very rarely participates in pardon or clemency debates. In this case, they did take a position and

recommended strongly against the offer. The reports of the tape recordings on which

these bombers discussed a return to their terrorist activities may or may not exist.

It is BOP policy to tape record all phone conversations which are not protected by

attorney-client privilege, but while the tapes are reviewed, they are not necessarily

retained. The truth is, we may never get to hear the tapes.

White House sources have stated that former White House Counsel Charles F.C.

Ruff recommended that the clemency be granted. Other news reports reveal that

clemency for these terrorist was the top priority of Jeffery Farrow, co-chairman of

the President’s Interagency Group on Puerto Rico. Mr. Farrow has recently been included in a Congressional probe of potential illegal activities at the Interior Department.

My question is what was so painstaking about the process? That it took Mr. Farrow from November 1997 to obtain the terrorists’ release or the political and public

safety ramifications of ignoring the recommendations of Federal law enforcement

agencies?

The President has the power to grant clemency and to grant pardons, both are

clearly spelled out in the Constitution. There is no Constitutional requirement that

the motive be pure or the decision be sound. Former President and Chief Justice

William Howard Taft, writing for the Supreme Court in Ex parte Grossman, 267,

U.S. 87 (1925), noted, ‘‘Our Constitution confers this discretion on the highest officer

in the nation in confidence that he will not abuse it.’’ I submit to you, Mr. Chairman, that my confidence has been sorely shaken. One can only hope that Timothy

McVeigh and Terry Nichols are not also on the President’s list of people to pardon

before his term ends. Perhaps McVeigh and Nichols were a bit more ‘‘successful’’ by

a terrorist’s standards, but there is very little difference in the nature of the crimes

committed.

And what about William Morales? He is the husband of one of the terrorists released last week by the President and is the self-professed leader of the FALN, described as the ‘‘bombing mastermind’’ behind the group’s wave of attacks. In 1979,

he was caught and sentenced to 89 years in prison. He served only three months

before escaping to Cuba where he now lives in relative luxury along with numerous

other violent criminals who have fled this country. Ironically, he is actively applying

for amnesty and has asked President Clinton to grant him the freedom to return

to the country he once terrorized. This is a man who once expressed that the people

left dead as a result of their bombing attacks were ‘‘casualties of war.’’ Should he,

too, be granted amnesty for his crimes as long as he promises to never, ever bomb

anyone again?

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Who else, then, is on the President’s list for pardons and clemency? The President

has exercised this power on only three previous occasions. Once to pardon a perjurer, another time to pardon a person convicted of a marijuana drug offense. The

offer of clemency to unrepentant terrorists, though, certainly seems out of place.

I say unrepentant, but perhaps I should say proud. They are proud of their actions. When given the chance to apologize to their victims, when given the chance

to disavow the actions that landed them in prison, they refused. Upon their return

to Puerto Rico, they were granted, in the words of those who were present a ‘‘hero’s

welcome.’’ Is this the message we want to send? That these terrorists triumphed

over their American enemies and returned home victorious? Regrettably, that is precisely what their freedom symbolizes—a victory for terror and a defeat for justice.

Just for the sake of comparison, the President has granted clemency to sixteen

terrorist bombers, but not to Officer Robert Couch. Officer Robert Couch, formerly

of the Covington, Kentucky Police Department, was engaged in a high-speed pursuit

in August of 1989. The driver, who admitted to being suicidal, stopped his vehicle

and assaulted the officers who had pursued him. After a fight, the driver was

charged with, among other things, assault on a police officer, and found guilty of

attempted assault.

A year and a half later, after three grand juries, Officer Couch was indicted for

violating the civil rights of the driver and obstruction of justice. They made an example out of him. They wanted to send a message.

Mr. Chairman, no person—and that includes the driver—made complaints of any

kind. Despite the indictment, Officer Couch was granted a bond of recognizance and

continued to function as a police officer in Covington.

Officer Couch was convicted, but permitted to remain free throughout the appeals

process. The ‘‘obstruction of justice’’ conviction was overturned by the Sixth Circuit,

but denied the officer a new trial. Following the exhaustion of all legal means, Officer Robert Couch was sentenced to 63 months in prison.

Mr. Chairman, I do not underestimate the situation at all when I say that this

is the very definition of manifest injustice. If there is anyone who ought to be extended an offer of Presidential clemency it is Officer Robert Couch. He is an honorable man and a good law enforcement officer. I cannot understand why the President is pardoning terrorists when the Fraternal Order of Police and thousand of others have written in to support clemency for Officer Couch. The power of the President to grant clemency and issue pardons is supposed to correct injustices, not commit them.

I do not know why the President offered clemency to sixteen Puerto Rican terrorists. I believe that even if I did know why, it would not make any sense to me. Perhaps it was a political maneuver which backfired, or perhaps it was a genuine effort

to appease ‘‘human rights’’ activists. I do know, however, that the decision was

reached and for whatever reason it was decided, it was wrong. Terribly, terribly

wrong.

Mr. Chairman, I want to thank you and the other members of this distinguished

Committee for inviting me here this morning to offer the views of the Fraternal

Order of Police on this matter. I would be pleased to answer any questions you may

have for me.

The CHAIRMAN. Well, thank you, Mr. Gallegos. We appreciate

your testimony.

Dr. Ikuta.

STATEMENT OF REV. DR. C. NOZOMI IKUTA

Rev. Ikuta. Thank you very much. My name is Nozomi Ikuta. I

am an ordained minister in the United Church of Christ.

I would like to just take a moment to acknowledge the stories we

have heard, very painful ones. I am really deeply grateful for the

opportunity to have been able to hear personally from Mr.

Pascarella and Mr. Newhall.

I would actually like to take a moment of silence just to extend

our hearts and minds to them and their friends and their families

and what they have suffered. I would pray that God’s spirit would

enfold them, and all of us, and guide us in a search for truth and

justice and life.

45

I would like to explain why I personally and the United Church

of Christ has been a leading member of the effort to release these

men and women from prison. We are certainly aware of the seriousness of their charges: seditious conspiracy, which has been

pointed out was the same charge that Nelson Mandela spent so

many years in prison for, but also other, more material charges:

the possession of firearms, in many cases also explosives, transportation of stolen vehicles across State lines. We know that these are

serious charges.

We also know the even more serious things that happened because of FALN activity. We have heard some of these stories. It

concerns me greatly, though, to hear members of this body really

advocating for a policy of guilt by association.

Now, this isn’t a real fancy copy, but it is a copy from the Internet of the U.S. Constitution and Bill of Rights. It is a document

that I understood that all of you here had sworn to uphold and protect.

The Fifth Amendment—and you guys are the experts in this—

does have this presumption of innocence: ‘‘No person shall be held

to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, * * * nor be deprived

of life, liberty, or property, without due process of law.’’

Senator Hatch, you yourself in your opening arguments talked

about the importance of law and the rule of law. And I would ask

whether all of us here are ready to abandon that precept just because somebody starts—or a lot of people start using the word ‘‘terrorism’’ and generating a lot of fear and hysteria.

What does it mean to say that none of these people were ever

charged or convicted with any of these acts of violence, and yet

they should all be given the same charges they were. I would beg

of us all to resist the urge to convict these people in a court of public opinion who were never so convicted in any court of law in this

United States for the kinds of acts that were described today.

We know terrible things are done by frail and sinful human

beings. Terrible things have been done by members of the police,

perhaps by members of the Federal Bureau of Investigation in

Waco and so forth. But I don’t think that anybody would say that

every member of any organization should be held liable for every

act committed by any member of that organization. I beg of you,

I beg of us to protect the constitutional rights that we have held

dear for centuries in this country.

Now, really, I am a minister. Mrs. Torres is a member of our

church. Carlos Alberto Torres is a member of our church. We hold

these people dear. We hold them in our hearts. We believe that the

20 years that they have already served, most of them, more than

pay the price for the things that they were indeed found guilty of.

And so these are not just any prisoners. We have documentation,

ads showing support from all over the religious community, all

these Nobel laureates, as Senator Feinstein had named.

And, in closing, I would just like to say that on August 29 I was

among the tens of thousands, perhaps a hundred thousand people

who marched in Puerto Rico in support of these prisoners. The next

morning I went to a bakery near where we were staying, and these

were the front-page headlines on every newspaper carried by this

46

little bakery in Puerto Rico. Every single one carried a full-color

photo. These folks are clearly not regarded as dangerous. They are

not regarded as violent. They are not regarded as terrorists. They

have committed themselves to non-violence. They have committed

that, many of them to me personally, and certainly all of them

have done so publicly, in writing, before the House of Congress and

in many other statements.

People do not get this kind of welcome. These are not just Timothy McVeigh. These are people who have been adopted and embraced by all of Puerto Rico, and not just some relatively small percentage that indeed has voted for independence at the polls.

I realize that my time is up. I would just like to say that we do

face, I believe, in these days, in the closing days of this century and

millennium, a challenge and an opportunity. We can face the future in a spirit of vengeance, or we can face it with hope and reconciliation and love. We can bring the same spirit to Puerto Rico

that we brought in the cases of Ireland and Palestine where other

prisoners, many of them with many more violent records, were released. It is my prayer that indeed the spirit of love and truth will

prevail and guide us all in the coming days.

Thank you.

[The prepared statement of Rev. Ikuta follows:]

PREPARED STATEMENT OF REV. DR. C. NOZOMI IKUTA

After hearing and reading of the tragedies which have befallen the victims of

FALN bomb blasts, I can only weep with you, and them, for their sufferings. Before

I begin my remarks, I would like to ask for a moment of silence, to join our hearts

with these victims, to embrace them, and comfort them, after which I would like

to offer a prayer.

Let us pray. Holy, holy, holy God; God of power and majesty; God of love and

mercy; we come before you to ask you to send your spirit to us and surround us and

enfold us. We ask you to be with all those who suffer from every form of tragedy,

especially those who were injured in the FALN bombings, and their families. We ask

you to be with them in their pain, even as we ask you to heal them in body and spirit. Be with all of us, we pray; give us a spirit of right understanding, a spirit of

truth, a spirit of justice. In the bold name of the One whom we name as Truth and

Life. Amen.

To Senator Hatch, Senator Leahy, and the other members of this important

body—thank you for allowing me to explain to you why so many of us in the United

Church of Christ have come to press so insistently for the release of these Puerto

Rican men and women from prison.

As I indicated above, certainly we are aware of some of the terrible sufferings

caused by FALN bombings, of people injured, maimed, killed. Health and life are

precious gifts of God which, once taken, can never be returned. How could I come

before you—as a minister, as a Christian, or simply as a feeling, thinking, human

being—and say otherwise?

We are equally aware of the seriousness of the charges for which the men and

women who were granted clemency by President Clinton were initially convicted.

Seditious conspiracy; possession of firearms, and in some cases, explosives; and

interstate transportation of a stolen vehicle—these are the sorts of charges for

which I could not pretend that the majority of our members would regard as minor.

Nonetheless, I would ask you—all of us—to resist the hysteria surrounding the

news of the release of these men and women from prison. Let us remember President Clinton’s explanation—that he found the sentences meted out to these men and

women to be excessively and disproportionately long. In making his clemency decision, the President was by no means ignoring the seriousness of the charges for

which these men and women were convicted. He was simply recognizing that for

charges such as these, the nearly two decades that these women and men have already served in prison are far longer than the sentences usually given out for such

offenses.

I have in my hands a copy of the Constitution of the United States of America—

a document all of you have sworn to uphold and protect. As you know, Amendment

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5 provides—and I quote exactly—that ‘‘No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand

Jury, * * * nor be deprived of life, liberty, or property, without due process of law.’’

You are probably aware that because of their political beliefs, these men and

women refused to participate in their own trials, and that this refusal enabled the

prosecution to obtain convictions for all the charges it brought. I am not asking you

to agree with the course of action that the prisoners took regarding their trials, but

only to recognize that if the prosecution had the least bit of evidence connecting the

men and women granted clemency by President Clinton to the Fraunces Tavern or

other bombing, they could have easily brought charges and obtained convictions in

light of the prisoners’ refusal to mount a legal self-defense. Instead, the prosecution

chose not to charge them with any such activity.

Can I, or anyone, prove unequivocally that the men and women released from

prison by President Clinton are completely innocent of the Fraunces Tavern or other

bombings? Of course not—any more than I can prove, unequivocally, that anyone

of you, present with me here today, are completely innocent of such events.

If we are not to allow this document, the Constitution and Bill of Rights of the

United States of America, to become a worthless piece of paper, I beg of you to not

to let yourselves be engulfed by the hysteria swirling around us. However sad, however tragic, however horrible the deaths and injuries caused by the Fraunces Tavern

bomb—and no one is denying that it was all of those things—let us not be seduced

into discarding the truth. The truth is that, unless we are willing to abandon the

5th Amendment and require these men and women to ‘‘answer for a capital, or otherwise infamous crime * * * without due process of law,’’ in short, to answer for

acts for which they were neither convicted nor charged, we dare not let our emotions

about the sufferings of the Fraunces Tavern victims, however valid they may be, to

press us, in a thirst for revenge, into holding the men and women released by President Clinton responsible for such acts. As the President noted, these men and

women have more than fulfilled any reasonable sentence for the firearms and other

charges for which they were actually convicted. I beg of you not to be a party to

convicting these men and women in the court of public opinion for crimes for which

they were never convicted in a court of law.

Please pardon, if you will, this digression into Constitutional rights. Fundamentally, I am a minister of the church of Jesus Christ, not a student of political

science, history, or law. My ministry led me to a job in the United Church of Christ

that included responsibility for these prisoners, because two of them—Alejandrina

Torres, who was released on September 11, and Carlos Alberto Torres, who remains

in prison, having been excluded from the President’s offer, have long relationships

with our church, and because our General Synod had adopted a resolution in 1991

calling for the release of all of these men and women from prison. Mrs. Torres is

the wife of one of our pastors, now retired, and Carlos Alberto is the son of that

same pastor. When I decided that I could not carry out this ministry without knowing these prisoners, I began to visit them.

In the course of the last six or seven years, I have visited 10 of the prisoners released by President Clinton’s granting of executive clemency, as well as three others

who remain behind bars. I must say that meeting them turned out to be one of the

extraordinary events of my life. Although they certainly vary in their personalities,

they are all very impressive, gifted, people, remarkable in their combination of

strength and gentleness. Dozens of church leaders have visited them, and have been

uniformly impressed by their character. All of us have come away from these visits

convinced that these men and women did not belong behind bars. And we certainly

believe their commitments to non-violence, made both to me personally and publically in a statement to the House Resources Committee in 1997, and re-affirmed

in the last month.

And now, the moment has come. On August 29, after the President’s announcement and before the prisoners’ acceptance of his offer, I was among perhaps 100,000

or more people from several different nations and every part of the Puerto Rican

religious and political spectrum, calling for the immediate release of these men and

women from prison. The next morning, when I went to the bakery near where we

stayed, these were the front-page photos carried by all four newspapers sold by that

little Puerto Rican bakery. Every single paper told the story—of thousands and

thousands and thousands of Puerto Ricans who had braved driving rains to show

their support for these men and women.

Last Friday, the Rev. Dr. Paul Sherry, our church’s president, and I took part in

the reception in Chicago for these prisoners. The mood was of joy and thanksgiving

that these women and men would now be reunited with their families. For us, the

release of these prisoners is an act blessed by the God of love and reconciliation,

for which we give God thanks and praise. So, too, the Puerto Rican people have welVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6621 SEPT15.TXT SJUD2 PsN: SJUD2
48

comed and embraced these men and women upon their return home. Such a reception would certainly never be extended to people considered violent or dangerous to

their communities.

Esteemed Senators, brothers and sisters—today we face a tremendous challenge

and opportunity. As we approach a new century and millennium, we can do so in

a spirit of hatred and revenge, seeking to blame certain people for acts in which

they were never even implicated, or we can do so in a spirit of reconciliation. It is

my prayer that the spirit of love and truth will prevail, and guide us all in the days

ahead.

UNITED CHURCH OF CHRIST,

700 Prospect Ave.,

Cleveland, OH, September 7, 1999.

President WILLIAM JEFFERSON CLINTON,

The White House,

1600 Pennsylvania Ave.,

Washington, DC.

DEAR PRESIDENT CLINTON: As President of the United Church of Christ, I write

to extend our deep appreciation to you for granting executive clemency to Puerto

Rican men and women imprisoned because of their acts and beliefs in favor of independence for Puerto Rico.

As you know, along with many other members of our church, I have had the privilege of knowing some of these prisoners personally, and have found them to be of

impressive character. They are rich human resources who will greatly benefit their

communities upon their release.

We are pleased that you agreed with so many of us—and with international

human rights leaders such as Archbishop Desmond Tutu and Coretta Scott King—

that the sentences received by these prisoners were excessive and disproportionate,

given that they were not convicted, or even accused, of any bombing, injury, or

death. With you, we affirm the Constitutional presumption of innocence and insist

that these prisoners should not be held guilty by association for violent acts for

which they were neither accused nor convicted.

Both in private conversations with members of our church and in public statements issued in 1997 and re-affirmed last week, these prisoners have clearly already renounced violence and stated their commitment to non-violent methods in

pursuit of their political goals. We urge you to help make people more aware of this

fact as you interpret your clemency decision to the general public.

We stand with the many tens of thousands of our Puerto Rican sisters and brothers, including religious and civic leaders from our church and from every denomination and political party, who marched last week in support of the release of these

prisoners. Clearly this remarkable event demonstrates the desire of the Puerto

Rican people to welcome the prisoners home.

We, too, eagerly await the return of these men and women. We must note, however, our continuing sadness that Carlos Alberto Torres, Oscar Lo ́

pez Rivera, and

Juan, Segarra Palmer still face so many more years in prison. Carlos Alberto

Torres, who was not granted executive clemency, is the son of one of our ministers,

the Rev. Jose ́ A. Torres; our joy will not be complete until he and the other prisoners

have also returned home.

Again, please know of our gratitude for granting the release of these men and

women from prison. We are anxiously awaiting their return to our communities.

Sincerely,

PAUL H. SHERRY.

UNITED CHURCH OF CHRIST, THE REV. C. NOZOMI IKUTA, Press Contact

NEWS COMMUNICATION

(For immediate release, September 8, 1999)

RELIGIOUS LEADERS SUPPORT RELEASE OF PRISONERS

CLEVELAND—In response to yesterday’s acceptance of President Clinton’s offer

of executive clemency by 12 men and women being punished for acts and beliefs in

favor of independence for Puerto Rico, religious leaders today (Sept. 8) reiterated

their support for the prisoners’ release.

49

In a letter to President Clinton, the Rev. Paul H. Sherry, president of the United

Church of Christ, said, ‘‘We are pleased that you agreed with so many of us—and

with international human rights leaders such as Archbishop Desmond Tutu and

Coretta Scott King—that the sentences received by these prisoners were excessive

and disproportionate, given that they were not convicted, or even accused, of any

bombing, injury or death. With you, we affirm, the Constitutional presumption of

innocence and insist that these prisoners should not be held guilty by association

for violent acts for which they were neither accused nor convicted.’’

The Archbishop of Puerto Rico, Roberto Gonza ́lez Nieves, agreed. When the clemency offer was announced, his only criticism was that it didn’t go far enough. ‘‘Although as Christians, we should be grateful that the wish of the Puerto Rican people was heard that our brothers and sisters return home, we lament that President

Clinton did not grant unconditional freedom to all the political prisoners,’’ he said

(translated from the original Spanish; El Nuevo Dı ́, August 11, available at

<www.endi.com>).

Others said that the prisoners’ delay in accepting the President’s offer had nothing to do with renouncing violence. In 1997, in a public statement to the House of

Representatives, they committed themselves to peaceful means, and they re-affirmed this a few days ago because so many people seemed unaware that this was

already their position,’’ said Bishop Thomas Gumbleton of Detroit, former head of

Pax Christi, a Catholic peace organization.

The Rev. Eliezer Valentı ́n-Castan ̃o

 ́

n of the United Methodist General Board for

Church and Society referred to last week’s march in Puerto Rico in favor of these

prisoners, which drew tens of thousands of people, including leaders from every religious denomination and political party. ‘‘This is obviously about peace and reconciliation. You don’t get such a broad-based consensus for releasing people who are interested in violence,’’ he said.

Sherry noted that one of the released prisoners, Alejandrina Torres, is the wife

of a United Church of Christ pastor, and that one of the prisoners who would remain in prison is the son of the same pastor. ‘‘For us, this is not only a justice issue;

it is also a pastoral one,’’ he said.

Since 1991, when its General Synod adopted a resolution in favor of release of

the prisoners, the United Church of Christ has been involved intensively in this effort ‘‘This issue has been a priority for several years, of our Council for Hispanic

Ministries, our staff and many members,’’ said Sherry. ‘‘We have visited and written

to the prisoners, called and written to the White House, published educational resources and participated in numerous protests.’’

Sherry also said that he had personally met several of the prisoners. ‘‘More than

two dozen leaders of our church have visited them and they really are remarkable

people. We are certainly looking forward to welcoming them home,’’ he said.

The United Church of Christ, with national offices in Cleveland, has more than

1.4 million members in the United States and Puerto Rico and some 6,000 local

churches. It was formed by the 1957 union of the Congregational Christian Churches and the Evangelical and Reformed Church.

The CHAIRMAN. Thank you, Dr. Ikuta.

The Honorable Cintro ́n Garcia.

STATEMENT OF HON. ANGEL M. CINTRO ́N

Mr. CINTRO ́N. Thank you, sir.

Good morning, Mr. Chairman, Mr. Leahy, members of the Committee on the Judiciary of the U.S. Senate, ladies and gentlemen.

I am Angel Cintro ́n, Puerto Rico House Republican Majority Leader. First of all, I want to express my gratitude for allowing me to

testify before this committee on such short notice.

Today I come before you on behalf of the nearly 4 million U.S.

citizens who reside in Puerto Rico in order to share with you our

concerns and our viewpoints regarding the debate that has developed since President Clinton granted a conditional Presidential

pardon to a group of prisoners who share one thing in common:

membership in terrorist organizations that advocated independence

for Puerto Rico.

50

We are concerned that the debate that has developed on a national level these past few weeks has veered somewhat off track

and shed some negative light upon Puerto Rican society as a whole.

Therefore, we believe that it is absolutely necessary that we provide Congress and our fellow citizens in the mainland with an opportunity to better appreciate our commitment as a society to the

democratic ideals and values embodied in our U.S. Constitution.

Just as the illegal actions of individuals like Timothy McVeigh

or by members of anti-government organizations or militia groups

do not reflect the democratic viewpoints or approval of our fellow

citizens in Oklahoma, Texas, Michigan, or any other State of the

Union for that sake, neither do the tactics or the views of any terrorist organization mirror the democratic principles and practices

of the people of Puerto Rico.

To assume otherwise is to do great injustice to the law-abiding

U.S. citizens of our island. Puerto Rico is a society composed of

some 4 million U.S. citizens who value their civil and democratic

institutions and resolve their political problems through their vote.

Historically, Puerto Ricans have shown a total and absolute repudiation of the use of violence to further political causes.

On the contrary, Puerto Ricans profoundly respect our Government institutions and the rule of law. That is why one can see a

steadfast participation of Puerto Ricans in the social, economic, and

political development of our Nation.

Many are the thousands of Puerto Ricans who have shed their

blood on battlefields in every conflict since World War I, four of

whom have been awarded the Congressional Medal of Honor for

their heroic actions and for making the ultimate sacrifice in defense of democracy.

Many are the Puerto Ricans who have held or currently hold

prominent positions in the political and judicial arena, thus contributing to the development of our Nation, such as Judges Juan

Torruella, Jose ́ Cabranes, and Sonia Sotomayor, and former Surgeon General of the United States Antonia Coello de Novello, and

former Governors Luis Mun ̃oz Marı ́n and Luis Ferre ́, among many

others.

Therefore, it should come as no surprise that Puerto Rico has the

highest index of voter participation in all the Nation, with an average of 85 percent in the general elections held every 4 years locally.

In this regard, it surpasses and shines as an example of respect towards the electoral process for the rest of the Nation.

It is also noteworthy to point out that for the past 40 years, 97

percent of all voters in Puerto Rico favor the two parties that support permanent union and permanent citizenship with the United

States, be it either through statehood or enhanced commonwealth

as their preferred political status option. Nonetheless, the remaining 3 percent who support independence advocate their preferred

political option through the ballot box and not in any way or fashion through violent means. Therefore, the political process in Puerto Rico plays out well within the spirit and boundaries of the First

Amendment of the Constitution of the United States.

It is also important to point out that our Constitution states that

a fundamental value of our public life is our devotion to our democratic values, to our U.S. citizenship, and to peace.

51

Two nights ago, the House of Representatives of Puerto Rico

unanimously approved House Concurrent Resolution 80, which expresses a repudiation on behalf of all the nearly 4 million U.S. citizens who reside in Puerto Rico of any violent or terrorist act committed to further political or social causes.

As I am here today, let me take this opportunity to express our

deepest regret for the injuries suffered by Agents Pascarella and

Newhall in the line of duty, as well as our thoughts and our prayers to those who lost their lives in the 1975 blast at the Fraunces

Tavern and their respective families.

We abhor these kind of violent acts, just as we repudiate the killing of innocent individuals in the Oklahoma City bombing or the

killing of ATF agents and many innocent victims in the Waco incident in 1993 or the hate crimes and church fires performed by

Skinheads and members of organizations such as the Ku Klux Klan

and others.

Let me conclude by urging you to avoid misunderstanding support in our island for the conditional Presidential pardon with any

kind of support—I repeat, any kind of support for violent acts or

terrorist activities.

I also want to stress that even though a majority of people, numerous religious and civic leaders, and former recipients of the

Nobel Prize, support the granting of a conditional Presidential pardon, basically no one in our island—no one in our island—consider

them as heroes but, rather, as people that may be deserving of an

opportunity to rehabilitate themselves.

Let me reiterate to you there is no place for violent or terroristsponsored acts in our society. That is why we should always do our

share to prevent such acts from occurring ever again.

On behalf of the Speaker of the House of Representatives in

Puerto Rico and also the National Committeeman for the Republican Party, the Honorable Edison Misla, as well as on behalf of all

my fellow members of the House, I want to thank you again for the

opportunity you have given me this morning. Thank you very

much.

[The prepared statement of Mr. Cintro ́n follows:]

PREPARED STATEMENT OF HON. ANGEL M. CINTRO ́N

Good morning Mr. Chairman: Mr. Leahy, Members of the Committee on the Judiciary of the United States Senate, ladies and gentlemen. First of all, I want to express my gratitude for allowing me to testify before this Committee on such short

notice.

Today, I come before you on behalf of the nearly 4 million U.S. citizens who reside

in Puerto Rico in order to share with you our concerns and our viewpoints regarding

the debate that has developed since President Clinton granted a conditional presidential pardon to a group of prisoners who share one thing in common: membership

in terrorist organizations that advocated independence for Puerto Rico.

We are concerned, that the debate that has developed on a national level these

past few weeks, has veered somewhat off-track and shed some negative light upon

Puerto Rican society as a whole. Therefore, we believe that it is absolutely necessary

that we provide Congress and our fellow citizens in the mainland with an opportunity to better appreciate our commitment as a society to the democratic ideals and

values embodied in our U.S. Constitution.

Just as the illegal actions of individuals like Timothy McVeigh or by members of

anti-government organizations or militia groups, do not reflect the democratic views

or approval of our fellow citizens in Oklahoma, Texas, Michigan, or any other state

of the Union for that sake, neither do the tactics or the views of any terrorist organization mirror the democratic principles and practices of the people of Puerto Rico.

52

To assume otherwise, is to do great injustice to the law abiding U.S. citizens of

our Island. Puerto Rico is a society composed of some four million U.S. citizens who

value their civil and democratic institutions and resolve their political problems

through their vote. Historically, Puerto Ricans have shown a total and absolute repudiation of the use of violence to further political causes.

On the contrary, Puerto Ricans profoundly respect our government institutions

and the rule of law. That is why one can see a steadfast participation of Puerto

Ricans in the social, economic, and political development of our Nation.

Many are the thousands of Puerto Ricans who have shed their blood on battlefields in every conflict since World War I, four of whom have been awarded the Congressional Medal of Honor for their heroic actions and for making the ultimate sacrifice in defense of democracy.

Many are the Puerto Ricans who have held or currently hold prominent positions

in the political and judicial arena, thus contributing to the development of our Nation, such as Judges Juan Torruella, Jose ́ Cabranes and Sonia Sotomayor, former

Surgeon General Antonia Coello de Novello, and former governors Luis Mun ̃oz Marı ́

n and Luis Ferre ́, among many others.

Therefore, it should come as no surprise that Puerto Rico has the highest index

of voter participation in all the Nation, with an average of 85 percent in the general

elections held every four years. In this regard, it surpasses and shines as an example of respect towards the electoral process for the rest of the United States.

It is also noteworthy to point out that for the past forty years, 97 percent of all

voters in Puerto Rico favor the two parties that support permanent union and permanent citizenship with the United States, be it either through statehood or enhanced commonwealth as their preferred political status option. Nonetheless, the remaining 3 percent who support independence advocate their preferred political option through the ballot box and not in any way or fashion through violent means.

Therefore, the political process in Puerto Rico plays out well within the spirit and

boundaries of the First Amendment of the Constitution of the United States.

It is also important to point out that our Constitution states that a fundamental

value of our public life is our devotion to our democratic values, to our U.S. citizenship, and to peace.

Two nights ago, the House of Representatives of Puerto Rico unanimously approved House Concurrent Resolution 80, which expresses a repudiation on behalf of

all the nearly four million U.S. citizens who reside in Puerto Rico of any violent or

terrorist act committed to further political or social causes.

As I am here today, let me take this opportunity to express our deepest regret

for the injuries suffered by agents Pascarella and Newhall in the line of duty, as

well as our thoughts and our prayers to those who lost their lives in the 1975 blast

at the Fraunces Tavern and their respective families.

We abhor these kind of violent acts, just as we repudiate the killing of innocent

individuals in the Oklahoma City bombing or the killing of ATF agents and many

innocent victims in the Waco incident in 1993 or the hate crimes and church fires

performed by Skinheads and members of organizations such as the Ku Klux Klan.

Let me conclude by urging you to avoid misunderstanding support in our Island

for the conditional presidential pardon with any kind of support for violent acts or

terrorist activities.

I also want to stress that even though a majority of the people of Puerto Rico,

numerous religious and civic leaders, and former recipients of the Nobel Prize, support the granting of a conditional presidential pardon, basically no one in our Island

consider them as heroes but, rather as people that may be deserving of an opportunity to rehabilitate themselves.

Let me reiterate to you there is no place for violent or terrorist sponsored acts

in our society. That is why we should always do our share to prevent such acts from

occurring ever again.

On behalf of the Speaker of the House of Representatives and National Committeeman for the Republican Party of Puerto Rico, the Honorable Edison Misla, as

well as on behalf of all my fellow representatives, I want to thank you again for

the opportunity you have given me this morning. Thank you very much.

The CHAIRMAN. Thank you, Mr. Cintro ́n.

We will put Senator Leahy’s statement in the record immediately

following my statement, and we will keep the record open for other

statements until 5 o’clock today.

Now, Mr. Pascarella and Mr. Newhall, you and other victims of

the FALN will carry scars and pains with you the rest of your

lives. Witnesses who came forward to help convict these terrorists

53

now live in fear for their safety and their lives, especially now that

these people have been set free. And by comparison, the people who

supported and perpetrated the violence have their lives back and

are free.

Can you and the rest of the panelists, if you wish, comment on

whether justice has been served in this case. We’ll start with you,

Mr. Pascarella.

Mr. PASCARELLA. Well, I believe, Senator, that I was given a life

sentence because of my injuries. If I live to be 150, which I am sure

I will not, I will still be an amputee, difficulty seeing and hearing,

just even now that I am a grandfather, playing with my grandchildren, it is very difficult.

And it is tough to explain to a little child 2 years old, you know,

when they see me, they look at my artificial leg, and they ask, you

know, what happened to grandpa? It is a life that I will just have

to live with, and it will be very difficult.

The CHAIRMAN. Mr. Newhall.

Mr. NEWHALL. My concern, and I have permanent injuries as

well, and, again, I do not really want to go into how they affect me,

even though they do every day. But my concern in all of this has

been really more for those who were killed and the effects that this

has had on their families, which the effects were considerably

worse than I think on my family, for lots of different reasons.

But at the time, I did not have children. The three people who

were killed with me all had children. Actually, one of them, one of

them’s wife was pregnant with their first child. The way in which

they have been haunted by this is far more lingering and devastating than what I have had to live with.

And there were obviously many others who were injured in this

and other bombings who have residual effects that affect them in

other ways. But I am concerned more about the dead and what has

happened with them and their families personally, and really the

larger question of how these terrorist activities have been dealt

with and how severely they were considered and are not just dismissed after a certain number of years have passed for lots of complicated reasons. And I know there are a lot of complicated reasons

in this.

So whether or not justice has been done, I think justice was probably done in their trials and convictions based on what I have read

of court proceedings. The clemency proceeding or the clemency review remains a mystery to me, and I think to most people, which

is why you are having this hearing today. I do not know that—I

am certainly not opposed to the President making clemency grants

when he thinks they are just. It is absolutely his right and power.

And I am sure there are wise decisions that have been in the past

and more that will be made in the future.

But in certain cases, I think the deliberations are—they are important for people to know about, know exactly what was behind

them so that people do understand that justice and good causes are

being served and not politically expedient goals being sought.

The CHAIRMAN. Thank you.

Mr. GALLEGOS. Mr. Chairman.

The CHAIRMAN. Yes, Mr. Gallegos.

54

Mr. GALLEGOS. I really think that more an injustice has been

done. Because the law, as I understand it, regarding victims is that

victims of crime are—it is required of the Government to notify the

victims of crime whenever such actions are going to be taken by

our Government to release criminals back into the street.

And it is my understanding, and I will ask Mr. Newhall, if, in

fact, that was done in this case. My understanding from the other

detectives was that they were never consulted, the Government

never let them know that this action was going to take place, other

than what was reported in the newspaper. And so I would assert

that there was an injustice because our own Government did not

follow the law in notification to victims. And I think that needs to

be explored.

The CHAIRMAN. Thank you.

Anybody else? Dr. Ikuta.

Rev. Ikuta. I hate to be redundant, but it does seem to me that

there is a serious question, at least I have tried to raise it, as to

whether these terrible things that have been described are actually

people who were victims of any activity that was ever formally connected to anything that was done by the people released from prison. I cannot prove that they never did anything. I cannot prove

that any of you or that I did any of these things. It is very difficult

to prove innocence. In this country, we are supposed to prove guilt,

and that has not been established in the case of these people that

have been released from prison.

The CHAIRMAN. Well, would you care to respond to that, Mr.

Hahn?

Mr. HAHN. Yes, if I can. I would reiterate also that several of the

people captured at Evanston with Freddy Mendez, that Mr.

Mendez identified them as participating in several of the violent

acts, the takeover of Carter-Mondale headquarters, the assault on

the national guard armory in Wisconsin, on planting of bombs on

at least one occasion, and that the penetration of the FALN safe

house in 1983 in Chicago demonstrated, again, that some of these

people that are released from prison were building bomb components, were storing bomb components and live explosives, were

planning armed escapes from prisons and were planning armed

robberies.

There is no question as to the identity of these people involved

in those particular acts. It is videotaped, it is audiotaped, and it

has been subject to testimony at trial.

The CHAIRMAN. Care to add anything, Mr. Wofford? And then I

would like to ask just one more question.

Mr. WOFFORD. He spoke for me. That is fine.

The CHAIRMAN. I think Mr. Newhall——

Mr. NEWHALL. Yes. I just wanted to respond to the Reverend

that I do not think anyone here is asserting that these people were

directly responsible for the Fraunces Tavern bombing. Mr.

Pascarella and I are here merely to recount some of the things that

some of the people who are involved in these bombings went

through.

But it is very clear from their convictions and the remarks presented by Rick Hahn and Donald exactly what they were convicted

55

of. And that is very straightforward and simple, and I think the

statutes are pretty clear on that.

I think it—I also have difficulty making, drawing a comparison

between people like Guillermo Morales and Nelson Mandela, given

what they were both charged with. I think that is not really a good

parallel.

The CHAIRMAN. Let me just ask each of you, and then I will turn

to Senator Feinstein, were your views directly sought by the Government or did any of you have the opportunity to meet with DOJ

officials or the President prior to this decision on August 11, I believe it was.

Mr. Pascarella.

Mr. PASCARELLA. Senator Hatch, I did not find out about it until

I heard on—my brother-in-law called me up on the phone and said

he heard it on the radio about this. And at first, it was the day

it came out, I believe was August the 11, and at first I did not believe him. I did not think it would be possible. But before then, I

was never contacted by anyone.

The CHAIRMAN. Mr. Newhall.

Mr. NEWHALL. No, I was contacted by no one. And I understand

efforts made by Joe Connor, who is the son of Frank Connor, who

was killed with me, was killed alongside me, made several attempts to speak with representatives of the White House and was

not well received.

The CHAIRMAN. Mr. Wofford.

Mr. WOFFORD. No, I was never contacted. And if I could add real

quick, all of the people that have been released, all had a trial, had

a jury trial, a judge passed sentence. And to overturn all of that

whole process, which is the bedrock of our justice system, just

seems to be incredible.

The CHAIRMAN. Mr. Hahn.

Mr. HAHN. Yes, I was contacted by the U.S. Attorney’s Office in

Chicago.

The CHAIRMAN. And what was the result of that conversation?

Mr. HAHN. I am not at liberty to——

The CHAIRMAN. Did they ask you for your opinion on this?

Mr. HAHN. Yes, they solicited my comments on this, and it was

1994.

The CHAIRMAN. That was back in 1994.

Mr. HAHN. That is correct.

The CHAIRMAN. But I am talking about immediately prior to

this——

Mr. HAHN. No. Since that time, I have not been contacted at all,

sir.

The CHAIRMAN. I see.

Mr. Gallegos.

Mr. GALLEGOS. Mr. Chairman, I wrote to the President directly

on this, and my letter was hand-carried to the White House, and

I have yet to receive a response to anything that I raise in my letter. And it was strange because all of the other letters, since I have

been president almost 5 years now of the FOP, have always been

responded to by the President. And I was, I have got to say I was

very disappointed that no response, no phone call, no consultation,

in fact, was even tried by the White House.

56

The CHAIRMAN. I see.

Dr. Ikuta, did you have any contact with anybody in the administration, the White House, the Justice Department or anybody else?

Rev. Ikuta. The president of our church convened a couple of ecumenical meetings to share our views. I would like to add, parenthetically, that recently the African National Congress did submit a support statement for the release of these prisoners. I am not

saying that they would necessarily draw an exact parallel between

Nelson Mandela. I do not know if there are very many people in

the world like him and Guillermo Morales, but the ANC did see fit

to support this, as well as the U.N. Special Committee on

Decolonization.

Furthermore, just to clarify, it is my understanding that none of

these prisoners were ever even charged with planting any explosives. Now, I could be mistaken about that. I was not that close to

the legal aspects of this case, but I think that should be made

clear.

The CHAIRMAN. See, legally, I believe they were charged with

conspiracy in the——

Rev. Ikuta. Judicious conspiracy, that is correct.

The CHAIRMAN. And that is just as important as having done the

act.

Mr. Cintro ́n.

Mr. CINTRO ́N. Well, it is my understanding, sir, that we never received any contact from Federal agencies in this matter. But I

think it is important to point out that these people or these individuals were not residents of Puerto Rico. They were residents of Chicago, New Jersey and Connecticut. They were born and raised in

mainland. They never lived in Puerto Rico for the last 30, 40, 50,

60 years, except for one—I never remember his name—but except

for one, the other ones never, as a fact, most of them never speak

Spanish.

The CHAIRMAN. Dr. Ikuta, did you personally ever get contacted

by the Justice Department or the White House or anybody in the

administration? You mentioned that the head of your church did

convene an ecumenical council. But I am asking if you, personally,

were contacted.

Rev. Ikuta. Obviously, I have done a lot of the staff work in this

situation. It is, generally speaking, the head of the communion that

the officials prefer to converse with. So I did assist with the preparation of those, and I went along at some of the meetings. I was

present.

The CHAIRMAN. Was this at the White House?

Rev. Ikuta. Yes.

The CHAIRMAN. At Justice, too?

Rev. Ikuta. There was another meeting with the deputy attorney

general.

The CHAIRMAN. When was that, do you know?

Rev. Ikuta. If memory serves, we met with Mr. Quinn and——

Senator FEINSTEIN. I am sorry. Who did you meet with?

Rev. Ikuta. If memory serves, we met once with Mr. Quinn, Jack

Quinn, when he was the White House counsel. We also met with

Mr. Ruff. We also met with,—and another—these were all different

configurations. I am blurring a lot of things where—with the depVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6601 SEPT15.TXT SJUD2 PsN: SJUD2
57

uty attorney general. It is my understanding that the Puerto Rican

Congressmen were never allowed to actually meet with President

on this issue. So there are different questions of access.

The CHAIRMAN. Did you ever meet with the President himself?

Rev. Ikuta. No. Of course, not.

The CHAIRMAN. But you did meet with the Justice Department.

How late did you meet with him?

Rev. Ikuta. That was with Mr. Holder and Mr. Adams was also

present.

The CHAIRMAN. When did that occur, approximately?

Rev. Ikuta. It would have been—please do not hold me to this—

I would think about 1997. We have been at this for a very long

time. People began working for the release of these folks from the

day that they were arrested. The pardon petition was filed in 1993.

I might add, parenthetically, that the idea, given the way these

votes have gone, that the President would have done this out of

some sort of political expediency I find not very credible.

The CHAIRMAN. I see. Now, Roger Adams, who you mentioned, is

the pardon attorney; is that correct?

Rev. Ikuta. Right.

The CHAIRMAN. OK. I think my time has long been gone.

Senator Feinstein.

Senator FEINSTEIN. One of the things that disturbs me in all of

this is the honing of the truth, I must say this, by those who have

supported clemency, and honing it to the point, well, these people

really are not guilty of much. I want to do a couple of things. I

want to read from the indictments of Alejandrina Torres, Edwin

Cortes, and Alberto Rodriguez.

‘‘[O]ppose by force the authority of the Government of the United

States by means of force, terror and violence, including the construction and planting of explosive and incendiary devices at

banks, stores, office buildings and government buildings. * * * It

was a further part of the said conspiracy that the conspirators

would claim credit in the name of the FALN for certain * * *

bombings through either telephone calls or typed communique ́s.’’

Now, let me translate this into what I understand these three

did. They stockpiled dynamite, weapons, blasting caps and bulletproof vests. Together with Rodriguez, they planned to bomb U.S.

military facilities in the Chicago area. They cased the facilities.

They reviewed a communique ́ to be published in conjunction with

the planned bombings. They built bombs containing 21 pounds of

dynamite. They also planned to use explosives to free FALN leader

Oscar Lopez, who was also offered clemency, from prison, to rob a

Chicago Transit Authority facility to fund FALN operations and to

harbor another FALN leader who had escaped from prison.

Now, this is the terrorist network, and this is what has to be understood. And when people, you know, cheer them on, they are saying, essentially, this is OK. This is not OK. And I have a very hard

time because I think it is this kind of attitude, ‘‘Well, Nelson

Mandela did this.’’ Different time, different place, do not know all

of the circumstances. Or the fighters for an Israeli state did this.

Different time, different place, different circumstances. We are

talking about a group that, in order to achieve something in another area, is willing to band together to plan how to destroy peoVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6601 SEPT15.TXT SJUD2 PsN: SJUD2
58

ple in a totally different area, and all of a sudden they are some

kind of hero for this. I have a very hard time understanding that.

This is the indictment, and this is what it translates into. Now,

how do you say that is not violence?

Rev. Ikuta. For one thing, I do not mean to be technical here, but

my understanding here is that indictment is different from a conviction.

But in any case, different times——

Senator FEINSTEIN. They were convicted of these things.

Rev. Ikuta. Different times—excuse me, then. Different times

and different places I think is a very important thing. Twenty

years have now elapsed. These folks have matured. They understand that the times have very much changed. We are not in the

kind of social period of Timor. The turbulence that we were in

those days, they, in 1997, long before it looked like clemency was

even a real possibility, although many of us were laboring at it,

signed a statement indicating their intention to integrate themselves into civic life and so forth.

They have reiterated their commitment to nonviolence in the last

few weeks, when it became clear that people had not been aware

that they had made that commitment. And, again, I would say we,

in the United Church of Christ, and many people in the campaign

do not have a consensus that this was just fine. But we are saying

that they have spent nearly 20 years in prison for possessing weapons, in some cases possessing explosives. But 20 years is a very

long time to spend in prison, especially for people who were not

found guilty of concrete acts of destruction.

Senator FEINSTEIN. Would anyone like to comment on that? Mr.

Hahn.

Mr. HAHN. Yes, I would.

I would point out that these people were released without any

sort of cooperation on their part to the Government or any contrition to the victims. The significance of that, of course, is the fact

that, as the reverend here points out, these people have not been

convicted or connected by the government, specifically with the

bombings that injured these two victims here, the Fraunces Tavern

bombing or the bombings of New Year’s Eve, 1982.

The question is has anyone asked them to cooperate? If not, why

not? Could they have solved these bombs and specifically told us

who put down those bombs? I am at a loss to understand why this

Government, this President, did not seek that sort of cooperation

from these people to benefit the people of the United States, to benefit these victims.

Senator FEINSTEIN. I think that is a very good point. Are there

any other comments on this end?

Mr. Pascarella.

Mr. PASCARELLA. Well, I would just like to say that—did I—I am

a little hard of hearing, did I understand correctly that some people

from the group trying to gain clemency for these individuals, met

with somebody from Justice or the White House?

Senator FEINSTEIN. Apparently so.

Mr. PASCARELLA. Oh. Well, if that is the case, then I really think

that that has to be the most outrageous thing I have ever heard

in my life. Because as a victim, I was never contacted by anyone.

59

Senator FEINSTEIN. Thank you very much.

The CHAIRMAN. I understand only two of them applied for parole,

none of them applied for clemency.

Rev. Ikuta. Actually, three applied for parole, sir.

The CHAIRMAN. What?

Rev. Ikuta. Three applied for parole.

The CHAIRMAN. Three? My understanding was two.

We will go to Senator Sessions now.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM

THE STATE OF ALABAMA

Senator SESSIONS. Thank you, Mr. Chairman.

Justice in America is a very cornerstone of what we are about,

and it troubles me to see so much muddled thinking, really, when

we think about it. We have a Constitution, and these individuals,

these officers, the police and FBI who risk their lives to penetrate

this organization, I bet they file a brief this thick to justify their

undercover operations to the Court before they could enter that

building.

We protect individual rights, whether you are a citizen or noncitizen, no matter what your belief is, no matter what language you

speak. We all have certain constitutional rights here. But it is clear

to me, Mr. Chairman, on this question of involvement, that we

need to think carefully about it. When a person joins the U.S.

Army, the U.S. Senate, the FBI, they are not responsible if there

is some rogue Senator who commits a crime. They are not joining

an organization committed to murder, crime and theft. This organization was committed to that. They took public credit for the bombing in New York City.

The law is clear on this and real strong, as a matter of fact, with

regard to a conspiracy. The Second Circuit, that is a circuit in New

York, 1992, ‘‘A defendant who joins a conspiracy incurs liability for

the unlawful acts of the conspiracy committed before,’’ even before,

‘‘and after they became a member. If they knowingly joined the

conspiracy and knew what it was about, they affirm that and join

it morally and legally.’’

‘‘A conspiracy * * *’’ another case ‘‘* * * is like a train. When

a party knowingly steps aboard, he is part of the crew and accepts

the responsibility for the existing freight it is already carrying.’’

And there are other cases that say that. So, to me, this is just

talk about nothing. There was a trial, a jury conviction, affirments

on appeal and affirmed sentence by a judge at a time when I would

suspect, and I will ask Mr. Hahn and the other agent, was there

intense security about those trials when those cases were tried?

Mr. HAHN. Absolutely.

Senator SESSIONS. Were the prosecutors considered to be at risk

for their life?

Mr. HAHN. I am going to refrain from answering that because I

want to stay within the public record.

Senator SESSIONS. Were the judges provided special protections

and security?

Mr. HAHN. Yes, they were.

Senator SESSIONS. What about the jury?

Mr. HAHN. Yes, they were.

60

Senator SESSIONS. This was a very intense life-and-death case,

was it not?

Mr. HAHN. It was very intense, yes.

Senator SESSIONS. I have tried some intense cases, but I can

imagine this one would be far beyond anything I have been involved in. And the jury did its duty, the judge imposed a sentence.

And now we have 3,000 petitions for clemency in this country,

and the President of the United States grants three until he comes

along and grants these. It is beyond my comprehension, and it does

raise questions about the integrity of the Justice Department. The

Attorney General, in my view, should have told the President of

the United States, ‘‘I will not stay in this office if you grant this

clemency.’’ And how the pardon attorney, who recommends denial

of 2,000-plus, 3,000 petitions, I am sure every one of them more

justifiable than these, could stand in that office and allow it to continue, when this one has been granted. It just undermines the

whole basis of law, and it is a deplorable thing of which all but two

members of this Senate agreed yesterday in a resolution. So, it is

not a close question.

Now, with regard to the church’s concern, I think we ought to respect that. But the church has to respect the legal system of the

country. And we have an obligation, and these FBI agents and police officers put their—as Mr. Gallegos mentioned—they put their

lives on the line on a daily basis, and to have the President, in effect, I suggest, agree, at least in some respect, that this is a political act. They are not granting murders and bombers of other kinds

clemency. It is only these who claim they are doing something political. So I say the President has undermined our effort against

terrorism and hurt our country’s efforts.

Mr. Chairman, I have gone too far. You have done a good job in

assuming this panel. And I would just like to add one more thing.

The procedure by which the pardon attorney does his work is set

forth in Executive Order of the President of the United States in

1893.

They prepared a formal document, recommendations. Michael

Kelly of The Washington Post has been writing about what is in

it. Apparently, he knows what is in it. But this Senate is not able

to get it. We are being stonewalled by this President. there is an

Executive Order that sets forth an official procedure for the granting of the clemency.

As U.S. attorney, I was often asked did I agree or not, as these

FBI agents should have been in this case. And I think we need to

insist that we obtain the public documents that are pertinent to

this procedure. And if there is some reason some of it should be

kept secret, that is one thing, but I cannot imagine that there is.

The CHAIRMAN. I cannot either.

Senator SESSIONS. And I appreciate your willingness to demand

that, and I would support you totally in it.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you. I might say we do have a blow-up of

the Fraunces Tavern communique ́—can you put that back up

there—where the FALN took full credit for the bombings. Now,

people ought to read that. This is not some little itty-bitty thing.

They were convicted, and they were justly convicted.

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Let us turn to Senator Torricelli.

STATEMENT OF HON. ROBERT G. TORRICELLI, A U.S. SENATOR

FROM THE STATE OF NEW JERSEY

Senator TORRICELLI. Thank you, Mr. Chairman. First, I want to

thank you for holding this hearing today.

Mr. Chairman, two of the seven people who were murdered by

the FALN lived in the State of New Jersey. As a member of the

U.S. Congress, I feel some responsibility to the families of the victims, to those in law enforcement who risked their lives attempting

to protect us from these terrorists, to offer an apology. This is a

better Government and those of who serve in this Congress are better people than this outrageous action would indicate.

There are no words sufficient to apologize to those who will live

their lives with these wounds to explain this release from prison,

other than simply to tell you that reaction against this clemency

is deep, it is broad, it is bipartisan, it crosses all ideological divisions in this Congress. It should not have happened, and for the

fact that it did happen, each of you have at least my apologies,

which I intend to express to the people in New Jersey whose families were lost directly.

I do not know of any political cause that has less merits than

those of the FALN. This is not the African National Congress. It

is not any legitimate effort at national liberation. The people of

Puerto Rico are in voluntary political association with the United

States. They have voted repeatedly and overwhelmingly to be in

voluntary political association with the United States. The day, the

hour, the moment the people of Puerto Rico decide they do not

want political association with the United States, they will have

their independence.

From abject poverty, the people of Puerto Rico now enjoy the

highest standard of living of anyone living in Latin America. They

freely elect their own leaders. The economy of Puerto Rico is subsidized by hundreds of millions of dollars of transfers from the U.S.

Government each year.

I am very proud that the people of Puerto Rico are in association

and enjoy the citizenship of the United States. I believe it is a rich

culture, and they are wonderful people, and I am proud of the association. But for anyone to believe that there is any legitimacy in

taking armed action against the United States because of this political association is outrageous.

And frankly, Reverend, I do not say this lightly because I respect

your position and your being a person of God, but it is not right,

and it is not fair to invoke the name of Nelson Mandela in the

same breath as the FALN. His fight against apartheid and the outrageous political relationship of the people of South Africa with

their Government, has no bearing and no relationship with the free

association of the people of Puerto Rico and the United States.

I regret greatly the actions of President Clinton in this matter.

I hope the committee will learn more about its motivation and the

process so that it is never repeated. I also, Mr. Chairman, am

greatly concerned, as someone who has been very involved because

of the numbers of victims from my State who were lost in the Pan

Am 103 bombing, about the credibility of the U.S. Government in

62

fighting terrorism, in compelling other governments to bring to justice those who were involved in terrorism and the impact this may

have on our foreign policy going forward.

I am also very concerned, as one who admires the people of Puerto Rico, about the misimpressions that other Americans are going

to have about Puerto Ricans. The people of Puerto Rico have been

good and loyal Americans. They have not only fought in every war

and defended this country, they have done so in disproportionate

numbers compared with other Americans. They have a rich culture

that respects the law and democracy and the processes of this Government.

The people of the FALN are not heroes, they are cowards. They

hid in the night, they planned bombings against innocent people

for a cause that has no merits. Now, I hope every American recognizes that this is not typical of the people of Puerto Rico, it is not

a part of their culture. This has no political basis among the people

of Puerto Rico. And I just wish, in every way, the people of the

United States could come to understand that about the lovely and

extraordinary people who live on that island.

Mr. Chairman, I have no questions to offer. But I did want to

make that statement simply because I wanted the people here to

understand how deeply all of us feel about this action and about

the pain they have had to endure through the years.

Mr. Chairman, thank you very much.

The CHAIRMAN. Thank you.

Senator Grassley.

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR

FROM THE STATE OF IOWA

Senator GRASSLEY. I think we need to reflect on some of the outrageous points of view that have been expressed in support of the

prisoners who have been released now.

We have been asked to approach this issue with a spirit of reconciliation and forgiveness. I think it would have been very helpful

to reconciliation and forgiveness if the Executive Branch had at

least asked the victims what their view was on the issue. What we

have kind of in the final analysis is a take it or leave it deal. And

it does not seem to me that that sort of an approach by the President of the United States is going to lead us down the road of reconciliation on this issue.

Some have said that the terrorists should be released because

they have served a long time already in prison, longer than others

in similar circumstances. But we have been told that the defenders,

the prisoners’ defenders, have been working for the release since

the time of their arrest, before they served any time, in fact. So it

seems to me the effort to get the terrorists out of jail is not based

upon the length of time that they served, the length of time served

seems like an excuse, rather than a reason.

I would hope that those of you who have not been asked, as victims, by the President—you said you were not asked—I would hope

that you would want to have been asked. Is that fair to say that

you would have wanted to have been asked?

Mr. PASCARELLA. It is very fair to say that, Senator.

63

Senator GRASSLEY. Do you think that it would be wise for Congress to enact a law requiring consultation with crime victims before granting clemency?

Mr. PASCARELLA. Yes, sir.

Mr. NEWHALL. Yes, I do.

Senator GRASSLEY. Mr. Chairman, in closing, I know you have

worked hard as chairman to get the proper people here to testify.

I know you have been turned down by Government agencies for requests for information and people to come here and testify. And I

just think in your leadership position, because this is such an important issue, that you ought to consider holding up nominees for

certain Department of Justice posts.

I think that we need public testimony and not informal private

briefings on this. I think, Mr. Chairman, that you cannot stand to

be snubbed with private briefings, when you have asked for this information to be made public.

The CHAIRMAN. You have got that right. I think I am going to

ask the committee to issue subpoenas for this information. We have

very reluctantly never done that. But this Justice Department just

has not been doing the job, and they have not been cooperative

with this committee. And I am hoping that it will be bipartisan, my

colleagues on both sides will support this, because I am just sick

of it. I am sick of being stiffed by the Justice Department. I am sick

of them ignoring reasonable requests to understand these matters.

And if they have not abided by the law, by gosh, they ought to

admit it.

And I am tired of getting the information from the media—information they claim that they cannot give to us, yet suddenly shows

up in the media. And so I am going to—I think we will have on

the agenda tomorrow a request for an authorization for subpoenas

so that we can start telling the Justice Department that this committee is a bipartisan committee that is not going to be stiffed any

more. And frankly, we are just sick and tired of it. I am tired of

it. I am tired of the way it is run down there. I am tired of the

way that it is politicized.

All I want to do is get the facts out so the American people can

see them, and they can make their own judgments about this. And

I will tell you, this testimony here today has been forceful, as far

as I am concerned.

We will go to Senator Abraham.

Senator ABRAHAM. Thank you, Mr. Chairman.

Let me begin, Mr. Gallegos, we have learned today that Reverend Ikuta and others were part of the discussions. We have also

learned that, I guess, that you attempted to have some impact on

this and did not even receive a response.

We have heard what the victims’ response is to learning this information. Could you tell us what your response is to learning that

not only were your views not sought, but that even your correspondence was not even responded to now that you have learned

that others had these opportunities.

Mr. GALLEGOS. Mr. Chairman, yesterday, there was testimony in

another committee where the victims of this act, of the various

acts, tried to correspond with the Department of Justice and the

President for several years. This is not a new thing. In our attempt

64

to address it, we tried the same thing, too, to try and address it

with the President.

My reaction is that, as I testified to, that it is a slap in the face

to law enforcement and especially to the American people that we

do not know all of the facts as to why this was done. But I would

also like to say something else. Me, as a law enforcement officer,

I am especially angered that we would follow through, we as a Government, would follow through on these clemency or these kinds of

criminals. And as an Hispanic, I am embarrassed that these fellow

Hispanics, Puerto Ricans—I am not Puerto Rican. Maybe I do not

understand that—were given a hero’s welcome in Puerto Rico. And

the reverend speaks to that as if it is something glorious.

And Mr. Cintro ́n indicated that these people were not even born

or never lived in Puerto Rico. Well, why were they repatriated to

Puerto Rico? They should have been sent back to New York or Chicago if that is really where they were from. So that is what causes

the anger from law enforcement. And we have worked hard in the

last few years to try and address all of the problems of law enforcement, and we have worked with this President to do that. And that

is why we take it as—it is like getting a punch to the stomach, and

that is the way I feel, Mr. Abraham.

Senator ABRAHAM. Reverend Ikuta, you indicated that you were

involved in a number of these meetings with White House and Justice Department officials that went into this decision. What did

they tell you?

Rev. Ikuta. Thank you very much for commenting. We hear your

concerns.

I think Washington officials get very good at really not saying

very much about what they have in mind, you know. I mean, I

think it is part of——

Senator ABRAHAM. If I can associate with that, please—[Laughter.]

Rev. Ikuta. It is part of the assignment. I would just, I know I

am speaking——

Senator ABRAHAM. I am really trying to get, we are having a

hard time trying to figure out exactly why the administration acted

as it did, what their rationale was. You seem to be the only person

here who had a conversation with them and meetings with them.

And so I am hoping maybe you can shed some light on this because

no one else seems to be able to. And those who were members of

the administration are apparently not being allowed to. So I am

wondering if you could.

Rev. Ikuta. Well, I will do my best.

Senator ABRAHAM. Sure. Please.

Rev. Ikuta. It is a little lonely up here, but I will do my best.

I would like to just reiterate some of these things. Mr. Torricelli,

in his comments when he was here, talked about how the reaction

has been deep and broad and has crossed ideological lines.

Senator ABRAHAM. I am not asking you to critique the fairness

of the Senators. I am asking you what the administration may

have told you that helped shed light on their rationale.

Rev. Ikuta. They really gave us very, very—all I can tell you is

what we told them. We never told them, for example, whether or

65

not they should—who—others’ opinions that they should seek out.

We only offered ours.

Senator ABRAHAM. Well, I know they did not sit there like potted

plants, to use the old joke, so they must have been indicating some

areas where they thought your case had merit. Which were those,

can you tell us?

Rev. Ikuta. I am really not trying to be evasive.

Senator ABRAHAM. I am not accusing you of that.

Rev. Ikuta. All I can tell you is what we told them. Because they

did not—they really were not—we tried to press them, actually,

‘‘Well, what do you think?’’ and the reaction was pretty much what

I think I have to admit a responsible Government reaction would

be of taking in information until—in the process of formulating decision.

Again, I cannot speak to their own consultative process. I can

only speak to what we went through to put forward our concerns.

But we did talk about the deep, broad support for this, particularly

in Puerto Rico, across ideological lines. I mean, the very same kind

of language—and that is the only reason I was referencing that——

Senator ABRAHAM. Were they interested in that in terms of the

political support?

Rev. Ikuta. What we are trying to do is show that this is not

something that is limited to a few people. Certainly, the people who

began working for their release in 1980, and I was not among

them, came from a very narrow ideological sector. As the time went

on, as it became clear how excessively long or disproportionately

long these sentences were, people who were not convicted of any—

of these violent things, but were serving sentences 4 to 6 times

longer than served by people who were convicted of murder. Let us

say they were guilty for Fraunces Tavern or the other, and I might

say I keep—the numbers keep going up. At first, I heard about five

deaths caused by the FALN, and then six and then seven.

Senator ABRAHAM. Well, listen, you have answered my question,

which was that you cannot answer——

Rev. Ikuta. I cannot tell you how they responded because they

really did not give a lot——

Senator ABRAHAM. All right. Thank you.

Let me just—I am over. I just want to say, in summary, I had

hoped maybe you could help us because we are trying to get this

information. Clearly, you cannot provide it either and, therefore,

Mr. Chairman, I certainly will be supportive of any efforts that you

want to undertake to get more information.

I would just say that I guess I just have to share the views of

Senator Torricelli, and Senator Sessions and others here that I

have a very, very—I get very frustrated hearing these apologies

and explanations. I believe that every member of Congress should

stand up on this issue and absolutely and strongly take a firm position against what I think is a misuse of the President’s clemency

powers, and I think we ought to find out exactly what the process

was that reached this. Because you do not get 98 to 2 votes in the

U.S. Senate that often.

And when there is that overwhelming a sense of agreement in

the U.S. Senate and almost a similar percentage in the House of

Representatives, then I think it clearly reflects a consensus of the

66

American people, and we have a responsibility, Mr. Chairman, to

support your efforts to try to get to the bottom of this.

Thank you very much.

[The prepared statement of Senator Abraham follows:]

PREPARED STATEMENT OF SENATOR SPENCER ABRAHAM

Mr. Chairman, let me first thank you for holding this hearing. The victims of terrorism and their families, the law enforcement community, and the people of the

United States deserve an explanation of this indefensible action.

By granting clemency to terrorists, President Clinton has, I believe, shown disrespect for those who put their lives on the line in the fight against terrorism, and

for the people of Puerto Rico, who have overwhelmingly rejected both the evil methods and the goals of the FALN or, in English, the Armed Forces of National Liberation.

Mr. Chairman, I think every member of Congress should stand up and take a firm

position against this because it undermines our continuing war against terrorism

and puts our freedom and our families at risk.

Over the years, this administration has shown a great willingness to spend American funds and risk American lives in the fight against terrorism worldwide.

By freeing these unrepentant terrorists, President Clinton has undermined any

progress he might have made on this front. His action could re-legitimize the evil

practice of targeting innocent civilians for political violence. It sends the signal to

would-be terrorists that, even if they are caught, convicted and sentenced, they can

escape full and just punishment for their crimes.

It tells our citizens that they cannot depend on their government to fulfill its central, indispensable function of protecting them from acts of violence.

Of all the thousands of people serving sentences in prisons around this country,

these 12 would seem among the least deserving of clemency. Yet President Clinton

has chosen to reduce their sentences, freeing most of them immediately.

I must admit that I am somewhat at a loss to explain the President’s decision

in this matter. Indeed, Mr. Chairman, I wish that the administration had sent a

representative to this hearing. I wish I had an opportunity to ask that representative a number of questions concerning the clemency decision.

For example: Why did the President ignore the recommendations of his own Federal Bureau of Investigation, his Bureau of Prisons and his U.S. Attorney’s Office,

all of which opposed this clemency?

Moreover, why didn’t the President consult with the victims of these terrorists?

Didn’t he care what effects his decision would have on the families of the 6 people

murdered by the FALN?

Did the President not care about the suffering of the dozens of people maimed for

life in the name of ‘‘liberation?’’

These are tough questions, Mr. Chairman. But I can’t help but believe that they

should be asked.

We cannot undo the President’s deeply unfortunate act. But it is my hope that

we may, through this hearing, throw light on this great travesty of justice, that we

may prevent its like from happening again.

We owe no less to the brave men and women in the front lines of the war against

terrorism, and to the people of America, who have a right to be free from the kind

of mindless violence perpetrated by groups like the FALN. Thank you.

REPUBLICAN NATIONAL COMMITTEE,

San Juan, PR, September 13, 1999.

Open letter to the REPUBLICAN LEADERSHIP IN CONGRESS.

As Speaker of the House of Representatives and National Committeeman of the

Republican Party of Puerto Rico, I want to express my outrage today at the politically self-serving fashion in which President Clinton handled the release of the

Puerto Rican prisoners.

The case of the prisoners has been under discussion for several years. President

Clinton had been asked to resolve this issue, going back to 1993, yet he failed to

make a timely decision and waited to do so when he thought it would help his wife

in her race for the U.S. Senate seat of New York.

Deserving of even more outrage and censure is the flip/flop position assumed by

Hillary Clinton in taking advantage of the Executive Pardon to further her political

aspirations. When the debate exploded, she quickly withdrew her support of the parVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6621 SEPT15.TXT SJUD2 PsN: SJUD2
67

don, then tried to reverse herself a few days later. All of this was done in a callous

effort to influence the Hispanic vote in New York.

The actions of the first couple have again tarnished the Presidency and challenged

our democratic system, weakened the cause of the prisoners and insulted the Hispanic voters in New York. This issue should have been carefully discussed with the

Bureau of Prisons and other law enforcement agencies, rather than creating political

leverage in order to help the cause of Hillary Clinton’s Senate aspirations.

The people of Puerto Rico are proud of their United States citizenship and of the

ties that bind us as Americans. We abhor violence and ask not to be judged by the

actions of a few. At the same time, we are offended and dismayed with this issue

which has been taken out of context due to the incredible political gaffe committed

at the presidential level. We ask the President to apologize to the Hispanic voters

in New York and call on Congress for a full investigation into the decision making

process by the President in this case. I stand ready to assist Congress and give testimony as may be required on this or any other important issue concerning Puerto

Rico.

EDISON MISLA-ALDARONDO,

National Committeeman for Puerto Rico.

PUERTO RICO: AMERICA’S BULWARK OF DEMOCRACY 9/14/99

The controversy surrounding the Presidential clemency to members of the terrorist organization FALN provides Congress and the American public an opportunity

to better appreciate the 101 year commitment to democratic ideals embodied in the

U.S. Constitution on the part of Puerto Rico’s four million American citizens.

Just as the illegal actions of individuals like Timothy McViegh and other anti-government organizations do not reflect the democratic views or approval of the American people, the tactics employed by the independence minded FALN do not mirror

the democratic principles and practices of the people of Puerto Rico. To assume otherwise, is to do a great injustice to the 99.5 percent of the law abiding U.S. citizens

of Puerto Rico. It also besmirches the honor of the thousands of brave Puerto Rican

men and woman who have fought to defend this nation in every conflict since World

War I.

Puerto Rico has truly been the living ideal of democracy since its inclusion as a

U.S. Territory in 1898. There is no other American jurisdiction as committed to

democratic principles as Puerto Rico. Traditionally, 85 percent of registered Puerto

Rican voters cast ballots in every election. This is two and one half times higher

than stateside counterparts. Puerto Rico’s Constitution closely follows the national

model and is similar to most, every other State, granting universal suffrage and allowing for representation in its governing bodies even by parties that would otherwise not garner enough votes on their own. One at-large member represents the

Independence Party in both of Puerto Rico’s legislative chambers even though it regularly receives less than 3 percent of the votes cast island wide.

Puerto Rico’s democratic system allows for all views on the island’s current and

future status options; independence, statehood, and commonwealth, to be aired in

democratic and legislative forums. Individuals and organizations acting outside

these institutions on behalf of any of these options are not encouraged or legally

countenanced.

Equally telling is Puerto Rico’s defense of American democracy. With one of the

highest military enlistment rates, over 197,000 Puerto Rican men and women have

defended American principles in every conflict abroad from World War I to Kosovo.

Some 6,220 have been wounded and 1,228 have been killed in the service of the

United States. Four Puerto Rican soldiers have been awarded the Congressional

Medal of Honor.

Puerto Ricans are proud of their U.S. citizenship, and stand with all Americans

in defense of our liberty and with respect for law and order. We condemn the actions

of the FALN or anyone else who would resort to violence in a tenuous defense of

their cause.

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The CHAIRMAN. Well, thank you, Senator.

Yes, I have no desire to embarrass anybody. I just want to know

what is going on down there in our jurisdiction. We have overview

of that group. And by gosh it is time to get some cooperation.

Senator SESSIONS. Mr. Chairman, may I make one point?

The CHAIRMAN. Sure.

Senator SESSIONS. On the sentencing guidelines, as the Senator

asked, these cases were tried before the sentencing guidelines took

effect. So it did not have the mandatory sentences at all, number

one. But that means they are eligible for parole through an official

legal parole proceeding if they ask for it, and apparently they have.

The CHAIRMAN. No, they have not. According to the Parole Commission, two asked for parole. Now, Reverend Ikuta said——

Rev. Ikuta. I could tell you their names.

The CHAIRMAN [continuing]. She believes three. But we asked

the Parole Commission, and they said two. Be that as it may, even

if it is three, it is relatively few of them have asked for parole or

clemency. None of them have asked for clemency, as far as I know.

Senator SESSIONS. Well, I guess my point is, under the sentencing guidelines, there is no parole. So if you get 20 years, you serve

20 years. If you got 20 years under the previous parole system, as

these people were sentenced, they would normally serve one-third,

unless it was a particularly heinous crime, as this one might be,

and they may serve more than one-third. But they are eligible to

be released in one-third.

So comparing the numbers, you have got to be careful. That is

all I am saying. Which is a greater sentence? A 60-year sentence

under the new law is—or under the old law is no more than a 20-

year sentence under the no parole law, in most cases.

The CHAIRMAN. Senator Kyl.

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE

STATE OF ARIZONA

Senator KYL. Thank you, Mr. Chairman, and thank you for holding this hearing. I associate myself with the comments that have

been made by other members of the committee on both sides of the

aisle.

I think there are three questions posed by the President’s action

here. The first is what it says about our country’s position with respect to terrorism. Now, both the President and we have had much

to say about that. It is of a concern to me. I have been advised by

people who are in Puerto Rico that it has had a tendency to reignite what was a movement in hibernation. The independence

movement, of course, has always been active, but never been supported by more than a very small percentage of the people of Puerto Rico.

Now, Senator Torricelli pointed out, at the very moment that the

people of Puerto Rico should choose independence, that is precisely

what they would have. But this is different. This is the FALN. This

is the group that says the only way to achieve our goal is through

terrorism against innocent people in the United States, and that

makes absolutely no sense. And for this action to have reignited

that movement seems to me to be the worst of the consequences

of what was done here.

72

Mr. Chairman, as you know, I chair the Subcommittee on Terrorism of this committee, and I will stand ready to conduct hearings,

to conduct investigations or in any other way to cooperate with you

and with the full committee as we continue to monitor the situation. Because, clearly, if that is what the effect of this has been,

we are going to have to know about it and, clearly, our law enforcement people are going to have to be able to deal with it as well.

In that regard, let me also second what I have heard from many

people now in that this does not represent the views of the law enforcement of Puerto Rico at large. In that respect, Mr. Chairman,

I would like to submit for the record three statements. One is

anonymous, but the other two come from Dr. Miriam Ramirez, a

candidate for office, a respected citizen of Puerto Rico and the

United States, and I would like to submit those for the record at

this time.

The CHAIRMAN. Without objection, we will put them in the

record.

Senator KYL. So that is the first question, what does this say

about our response to our terrorism?

The second is why were the unanimous recommendations of law

enforcement ignored? And this pertains directly to our oversight of

the Department of Justice, precisely what you, Mr. Chairman, and

others have pointed out here. We will have to continue to deal with

that. Because as Reverend Ikuta could have pointed out, her group,

just one of many, has met with Messrs. Holder, Quinn, Ruff and

others, where the victims have not had that opportunity. And obviously we will have to continue to pursue that.

Finally, the third question is, why were the victims not notified?

The 1990 Federal Victims’ Rights statute pertains to this. It is unclear, in some respects, and it is inadequate because it does not

provide fundamental rights, a point that Senator Feinstein and I

have tried to make many times. There are some things that you

just cannot do by statute. It requires a constitutional amendment.

And I think this is a perfect example of where the Federal statute failed. Because the Department of Justice ignored it, it may

have violated the letter, but it clearly violated the spirit of the law.

And that is what happens far too often in our society. We have

statutes that say you should notify victims. But even well-meaning

people forget to do it, do not think about it, find it to be an inconvenience, find reasons not to do it, find the law does not clearly require them to do something, therefore, they are not going to take

the effort to do it.

All of those are reasons why statutes do not work. And this Federal statute failed in this case, notwithstanding a Department of

Justice which professes, and I think there are good intentions involved here, to care about the rights of victims. Even there they

failed. It did not happen.

And it seems to me that that is a very good argument for why

we need a Federal constitutional amendment to protect the rights

of victims of crime. We are talking about violent crime. We are

talking about family members of those deceased, like Mr. O’Connor,

who I heard yesterday when I attended the Foreign Relations Committee hearing, other victims of the crime, the police officers, as

well as the officers who are testifying here today.

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1Miriam Ramirez is the President and founder of Puerto Ricans in Civic Action, a non-partisan civic organization promoting equal citizenship rights and full participation in the national

economic and fiscal system for the 3.8 million U.S. citizens residing in Puerto Rico. Ramirez also

has served as President of the Republican Women of Puerto Rico, a chapter of the National Federation of Republican Women. She was an elected Delegate to the Republican National Convention in 1984, 1988 and 1992, and was selected by President Bush in 1990 to serve as a member

of the U.S. delegation to observe presidential elections in El Salvador.

Dr. Ramirez is a practicing physician in Puerto Rico. She received her medical degree from

the University of Madrid in 1968, and her undergraduate degree from the University of Maryland.

So it seems to me that these are the three questions. It clearly

suggests the need for continuing jurisdiction by this committee,

and it clearly suggests, also, the need for a Federal constitutional

amendment to protect the rights of victims which include being informed of a potential release for clemency or pardon and having

the opportunity to speak to the issue.

I appreciate the testimony of all of you here at this time of the

day. Thank you.

[The prepared statements of Ms. Ramirez and an anonymous

statement follow:]

PREPARED STATEMENT OF DR. MIRIAM RAMIREZ DE FERRER 1

They declared war on United States and struck without mercy in Puerto Rico,

New York, Connecticut, Illinois and anywhere else they could target innocent victims.

Now President Clinton has decided that—instead of doing anything serious or significant to resolve the political status of Puerto Rico—his legacy to 3.8 million lawabiding United States citizens of Puerto Rico is to set terrorists free to once again

be a menace and a threat among us.

On August 11, 1999, President Clinton gave the keys to the jailhouse door to 16

felons convicted of crimes linked to domestic terrorism committed in the name of

independence for Puerto Rico. Now they are parading around from New York to

Puerto Rico comparing themselves to Nelson Mandela. Is anyone in the press going

to remind them that Mandela was fighting a regime of apartheid that outlawed majority rule, while the FALN committed murders in defiance of majority rule after

a majority of Puerto Ricans repeatedly rejected independence?

The presidential commutation offer followed years of lobbying by supporters of the

prisoners and celebrities persuaded that the ideological motives of these criminals

justify special political treatment not available to other convicts. Clinton’s offer took

the choice on whether these convicts constitute a threat out of the hands of federal

pardon and parole authorities and gave the choice on their release to the convicts.

Regrettably, Clinton’s offer politicizes these criminal cases by offering special

treatment, but the conditions for release do not promote a sense of justice and reconciliation for the victims or the 3.9 million, law-abiding, loyal and patriotic United

States citizens of Puerto Rico. Perhaps the ‘‘third path’’ of political compromise that

Clinton likes to talk about works in some cases, but in this case Clinton’s action

is the moral equivalent to Solomon going ahead and cutting the baby in half. Mr.

Clinton would have done better to simply allow the issue to be determined by the

normal criminal justice process through which convicts are released when they are

eligible and no longer a threat to society.

Those who support an unconditional pardon for these convicts argue they have

been incarcerated longer than others who committed comparable crimes. This ignores the fact that other inmates who were paroled or pardoned accepted responsibility and expressed remorse for their crimes years before the federal prison authorities released them. The inmates from Puerto Rico refused for decades to express remorse for their crimes, or even to renounce violence, and that is why they

stayed in jail longer than they otherwise might have.

The survivors of the dead and the disabled victims of their terrorist attacks—including four innocent people murdered in the bombing of Fraunces Tavern in New

York City—are appalled at the use of pardon powers based on politics instead of

rehabilitation and remorse. President Clinton’s offer to commute the sentences of

these terrorists on condition that they renounce violence ignores the real reason

these terrorists have remained in jail so long, which is that they seek political vindication rather than forgiveness and reconciliation. The lack of remorse for victims

74

alone should have precluded special treatment for these terrorists, and the conditions prescribed in the commutation offer do not even address that moral issue.

History teaches that irresponsible leniency does not promote healing. Terrorists

who ambushed members on the House floor in 1956, later pardoned by President

Carter, to this day proudly stand by their conduct and refuse to repudiate their

treachery on the grounds that the U.S. ‘‘occupies’’ Puerto Rico against the will of

the people. Release of more unrepentant terrorists is likely only to further delay political reconciliation for Puerto Rico. Indeed, to politicize their status or give them

special treatment could set a precedent that may encourage terror in Puerto Rico

and elsewhere by other zealots with ideological motives.

All federal prisoners should be treated fairly, and released when their debt to society has been paid. Accordingly, President Clinton should have responded to the

clemency appeal for these prisoners by explaining the standards and conditions for

release of federal prisoners when their sentences are complete or they are good candidates for a pardon. To offer to commute their sentences if they go through the motions of acting like good candidates for parole or pardon lends unfounded credence

to the ridiculous claim that these people are ‘‘political prisoners’’.

President Clinton has recognized the reality that these people acted illegally, but

he has not made a strong enough statement that armed action and violence is not

morally justified or politically legitimate in this the nation that has done more than

any nation in the history of the world to promote liberty, justice and self-determination. The failure of the U.S. and Puerto Rico to resolve the question of that territory’s political status in this century falls far short of the anti-colonial values for

which this nation stands, but that does not justify terrorism by the small minority

in Puerto Rico who do not want U.S. sovereignty, nationality and citizenship to continue.

Indeed, beginning in 1953, when the current form of local self-government was established under U.S. federal law, President Eisenhower and every president since

has made it clear that independence for Puerto Rico is there for the asking. However, more than 95 percent of the voters consistently have expressed a desire for

permanent political union and U.S. citizenship. This means that ending the current

disenfranchisement of 3.8 million U.S. citizens in Puerto Rico and delivering on the

promise of the American dream, rather than reacting to radicals espousing independence, is the first order of business if U.S. policy is to be consistent with the

principles of self-determination.

At the same time, the U.S. is not under any obligation to coddle the U.S. citizens

of Puerto Rico as the process of self-determination unfolds. It is absurd to argue

that the U.S. should act as if we as a nation have no self-interest, and devote U.S.

resources into supporting Puerto Rico’s development without expecting Puerto Rico’s

U.S. citizens to embrace equal rights and duties of citizenship. Rather, U.S. policy

has been based on the fair assumption that our fellow citizens in the commonwealth

territory want to be part of this nation, will demand equality eventually when they

get tired of being a territory and petition for statehood, and find ways to preserve

their own cultural identity and language without being hostile to the diverse cultures and languages of the nation.

The alternative to statehood is independence. The tough choices required to implement one of those options seem too harsh to some, so the notion of a permanent

territory with special rights to make up for the lack of equality was introduced

under the ‘‘commonwealth’’ label. That has delayed the day of reckoning, but will

never solve the underlying problem that federal supremacy comes with U.S. nationality and citizenship. U.S. federalism simply can not operate on the basis of permanent disenfranchisement and second class citizenship for U.S. nationals, and the

less than equal status of Puerto Rico will end only when the territory becomes a

state of the union or a separate nation.

So now every issue that arises in Puerto Rico ultimately relates to the status

question. No important public policy issue—taxation, voting rights, federal and local

sovereignty, trade policy, the territory’s role in our national defense, citizenship

rights—can be finally resolved until status is resolved. There is one set of solutions

if Puerto Rico is a state, and there is another set of solutions if Puerto Rico is to

be an independent nation. It is the difference between the Philippines and Alaska.

Congress and the status quo faction in Puerto Rico may want to delay the choice

a little longer, but ultimately it will have to be one way or the other. U.S. sovereignty in Puerto Rico is legal, but not legitimate until there is real self-determination on the question of statehood or independence.

When the day of reckoning comes, it will be clear that the problem these 15 radicals in jail face is with their own people, not the United States. President Clinton

should have just said as much, and referred all correspondence about these prisoners to the federal pardon.

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2 A version of this paper was issued before the commutation. Authors remain anonymous due

to fear of reprisal.

PRESS RELEASE: PUERTO RICANS IN CIVIC ACTION

(September 13, 1999, Washington, DC)

Dr. Miriam Ramirez de Ferrer today released the following statement on President Clinton’s release of terrorists who seek by violence to impose their ideology as

to Puerto Rico’s political status on the people of the United States, including the

3.8 million U.S. citizens of Puerto Rico:

• This controversy is about the President’s policy on terrorism. The President decided to listen to Jimmy Carter and other celebrities who do not know the facts

in these cases. Mr. Clinton should have listened to law enforcement authorities

and the victims instead. Jimmy Carter was wrong in releasing some of these

terrorists in 1979, and he was wrong in supporting the release of these prisoners in 1999. The President’s duty in using the clemency power is to do justice,

and in this case he has done an injustice to past and future victims of domestic

terrorism.

• Until Congress establishes a mechanism to resolve the political status of Puerto

Rico and end the disenfranchisement of 3.8 million U.S. citizens, there will be

a small percentage of individuals and radical groups in Puerto Rico and the

U.S. mainland who will support the warped view of history espoused by these

terrorists. No other large and populous territory in U.S. history has ever been

granted U.S. citizenship and then denied the right of self-determination for a

full century. Until Congress defines the terms for a permanent status through

statehood or independence, a small percentage of Puerto Ricans in the mainland

and in Puerto Rico will seek to make Puerto Rico a nation-within-a-nation, demanding the benefits of both statehood and independence, through a pseudo nationalist ideology that rejects the full duties and responsibilities of either statehood or independence.

• These terrorists were based in New York and Illinois, not in Puerto Rico. They

no more represent the people of Puerto Rico than Timothy McVeigh or Charles

Manson represent their home states. These terrorists are as much a threat to

the law-abiding U.S. citizens of Puerto Rico as to communities in the mainland,

and to be sure they are a continuing threat to innocent people everywhere in

the United States. Their release will have a chilling effect on free and open political debate in Puerto Rico, where it is well understood they renounced violence to get out of jail. Their release will encourage more violence to alienate

Puerto Rico from the rest of the nation—against the clear will of the people in

every status vote since 1952. President Clinton has taken sides with a radical

elite in Puerto Rico who mislead our young people.

• The character, loyalty and patriotism of the U.S. citizens of Puerto Rico can be

judged by our valor in every war of this century, by the ranks of those among

us who have been awarded the Congressional Medal of Honor, the Silver Star,

and the Purple Heart. The pilot shot down in President Reagan’s raid on Libya,

the first Marine killed in Somalia, the brave soldier who risked his life to save

his comrades from the barracks bombing in Saudi Arabia—these are the Puerto

Ricans who, along with average hard working citizens, represent our community

in the U.S. national family.

ANONYMOUS PREPARED STATEMENT SUBMITTED BY SENATOR KYL

FEDERAL PRISONERS FROM PUERTO RICO SHOULD HAVE BEEN TREATED THE SAME AS

CONVICTS FROM OTHER STATES OR TERRITORIES 2

There are 3.8 million U.S. citizens in Puerto Rico—America’s last large and populous unincorporated territory. U.S. nationality for Puerto Rico was established after

the Spanish American War in 1898. In 1917 the Congress offered U.S. citizenship

to residents of Puerto Rico, and less than 400 chose to remain nationals but not citizens. The U.S. citizens of Puerto Rico are now an integral part of this nation, and

Puerto Rico is on a path of political convergence with the United States as a whole.

As Congress in recent years debated legislation to resolve the political status of

Puerto Rico, an effort began to divert attention away from self-determination to the

self-created predicament of a few domestic terrorists from Puerto Rico who are not

at all representative of our fellow Americans in the territory. This culminated in a

well-orchestrated publicity and propaganda campaign promoting ‘‘amnesty’’ for a

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small group of convicted criminals in federal prisons who want Puerto Rico to be

independent.

Thus, on December 17, 1996, an advertisement appeared in the Washington Post

sponsored by several members of the clergy in this country seeking ‘‘amnesty’’ for

the 15 jailed convicts who claim to be soldiers in an undeclared war to forcibly separate Puerto Rico from the United States. As recently as December 14, 1998 a new

letter-writing campaign began with appeals by clearly misinformed advocates of

‘‘clemency for political prisoners’’ from Puerto Rico.

Several celebrities and respected leaders have been solicited to support the appeal

to simply release these duly convicted extremists as a political gesture. Scores of average citizens have been recruited for letter-writing duties to demand a pardon. Instead of leaving it to formal pardon procedures in the Department of Justice available for these convicts to seek relief from their sentences based on standards applied

to all prisoners, President Clinton now has responded to the political campaign for

release of these prisoners by commuting the sentences in these cases.

Unfortunately, both the misguided amnesty appeal itself and the President’s response send a signal that politically motivated crimes can and should be politicized.

This paper evaluates the substance of appeals for special treatment in these cases,

and evaluates the moral and legal premise of the on-going attempt to make terrorists out as martyrs. Even though President Clinton attempted to confirm that the

prisoners were the perpetrators of crimes not justified by arguments about ‘‘U.S. imperialism’’, the terms of the commutation still constitute special treatment that

should not have been extended in these cases.

President Clinton should have taken the time to examine more closely the premises of the 1996 and 1998 political advertising for this so-called amnesty appeal. For

it is based on an unpersuasive attempt to put the spin of ‘‘idealism’’ on actions in

the past which crossed the line between legitimate protest and criminality. This socalled ‘‘amnesty’’ appeal was first presented in 1996 for 16 former agents of the

‘‘Armed Forces for National Liberation’’ (FALN) and ‘‘Macheteros’’ factions in Puerto

Rico. The newspaper ads on behalf of the convicts attempted to sanitize their violent

crimes as ‘‘actions on behalf of the cause of independence.’’ The appeal also details

good deeds of these convicts in the jailhouse.

Conspicuously omitted from this public appeal addressed to President Clinton are

details reported in the San Juan Star coverage of the issue, such as FALN’s 1975

bombing of Fraunces Tavern in New York City killing 4 people and injuring 44. Nor

was there any mention of the ‘‘Macheteros’’ role in the $7.1 million Wells Fargo robbery in Connecticut back in 1983, the apparent diversion of that stolen money to

radicals based in Cuba, or the convictions of the 15 FALN and Macheteros members

for sedition and terrorist conspiracy.

What is particularly troubling is that the 1996 message to the President states

that the sponsors of this campaign for release of federal prisoners ‘‘* * * are not

united * * * about the means employed by these fifteen women and men in their

quest for an independent Puerto Rico * * *’’ The first premise for any ethically

credible pardon request in these cases would have to be that the inmates and their

supporters are united in recognizing as unconscionable the actions for which they

were duly convicted. In the absence of genuine contrition, this appeal has profoundly

disturbing moral implications.

Not only is there no convincing remorse among this group of conspirators, on January 21, 1997, an Associated Press wire story on the appeal reports that the prisoners refuse to cooperate with federal authorities in solving the Fraunces Tavern

case and other crimes connected to over 130 FALN bombings. Those attacks killed

six people (including a 6 year child who died when an FALN bomb went off in a

restaurant in Puerto Rico), and wounded or maimed many others (including an

NYPD officer who lost an eye and was disabled for life after FALN tipped off police

on location of a bomb, which was detonated only after officers were on the scene).

According to the 1997 AP story, the FAIN prisoners refused even that recently

to renounce further violence against the United States. One of the imprisoned FALN

leaders is quoted as saying, ‘‘We cannot renounce the right to defend ourselves.’’

That, along with lack of remorse for victims or cooperation with authorities in solving crimes they committed, should have precluded an invitation by the President for

release based on an obviously insincere renunciation of violence.

Indeed, reports that the prisoners were prepared to renounce violence and statements made by some of the prisoners which included equivocal and ambiguous repudiations of violence now appear to have been the bait offered to Clinton to intervene

politically, and the U.S. President took the bait. Does anyone really believe that people who will only renounce violence when it is made a condition for release are sincere? The repudiation of violence should have come long before an offer of commutaVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6621 SEPT15.TXT SJUD2 PsN: SJUD2
77

tion, and it should have been convincing enough that parole and pardon authorities

would have been able to support the commutation offer, which was not the case.

The 1998 propaganda campaign that was apparently orchestrated with some on

the White House staff repeats the same ethical mistakes of the 1996 campaign by

arguing that the convicts should be treated as political prisoners because they did

not ‘‘recognize the authority of the United States’’ in Puerto Rico. The notion that

it would promote ‘‘reconciliation’’ to treat these prisoners and their victims by a different standard than that applied in the cases of other violent offenders because

they had ideological motivation for their crimes is both naive and dangerous. Are

these same organizations seeking the release of the Oklahoma City bombers and

abortion-clinic terrorists as political prisoners?

The following observations must be considered carefully in evaluating this ill-conceived amnesty appeal:

• There is a legitimate independence party in Puerto Rico, though independence

historically has garnered only around 3–4 percent of the vote in plebiscites and

polls. Supporters of independence are free to pursue their aspirations with ballots, but not with bullets. Those who commit violence in the name of Puerto

Rican independence are not only enemies of the U.S., but also enemies of democratic self-determination for the people of Puerto Rico, who are U.S. citizens. • In 1952 the voters of Puerto Rico approved the current federal and local constitutional arrangements under the present territorial relationship, but because

the territorial commonwealth status is not full self-government the U.S. recognizes Puerto Rico’s right to self-determination in favor of a new self-governing

status—including statehood or independence if that is what the voters decide

in a free and informed vote. Thus, by comparing the political status process in

Puerto Rico to Northern Ireland or the Middle East, this amnesty appeal distorted history and trivializes the real struggle for liberty and peace in the modern era. • To call these convicts ‘‘political prisoners’’ makes a mockery of the suffering of

those all around the world who truly are being punished for their political ideas

in non-democratic societies. These 16 inmates are not in jail for ‘‘crimes of conscience,’’ but for crimes that shock the conscience. • In several elections and referenda the people of Puerto Rico consistently have

expressed the desire for continued union with the United States. Indeed, in an

inconclusive but important political status vote in 1993, the combined majority

of those voting for status options based on continued union and U.S. citizenship

exceeded 95 percent of the voters. In another non-binding local plebiscite in

1998 the vote for options other than independence exceeded 97 percent. • In addition, even Puerto Rico’s separatists acknowledge that U.S. leaders have

offered to take the path to independence, but that at critical moments in the

history of Puerto Rico’s political status process the elected leadership in Puerto

Rico chose to seek an accommodation based on continued U.S. sovereignty, nationality and citizenship. Thus, democracy is working in Puerto Rico, underscoring the already self-evident reality that the ideological and political explanations for these crimes fall far short of legal, intellectual or historical validity,

much less moral justification. • Celebrities, religious figures, and persons associated with great leaders martyred in the cause of liberty often are recruited for propaganda campaigns they

may not fully understand. For prominent people who support the legitimate

struggle for freedom around the world to lend their good names to this amnesty

appeal is best compared to the case of a television or sports star unknowingly

endorsing products made by exploited foreign workers. It teaches us that political leaders, and even our cultural heroes, can be misled in a way that places

them unwittingly in opposition to the rational and orderly administration of justice. • For example, the AP story on January 21 quotes one of the earlier generation

of Puerto Rican terrorists, who opened fire on the assembled Members of Congress from the gallery of the House chamber in 1954, as stating that he has

‘‘nothing to regret.’’ President Carter pardoned that prisoner in the name of

compassion and reconciliation, even though the compassion and reconciliation

in these cases obviously does not involve any moral reciprocity. Thus, President

Carter’s compassion in that case appears to have been misdirected, but instead

of learning from Carter’s mistake Clinton apparently has been sandbagged by

closet left-wingers on his staff into another inappropriate political abuse of the

power to pardon. It is a sad day when White House staffers accept the premise

of Jesse Jackson and Jimmy Carter that these criminals who were free to try

to convince voters to support independence, but chose bullets when ballots were

available, needed to be rescued from the United States the same way captives

78

of Saddam Hussein or Slobodon Milosovic have been freed through celebrity humanitarian appeals. This commutation offer was concocted by people in the

Clinton White House who were clearly sympathetic with the ludicrous notion

that these people were being held in violation of civilized standards of justice. • While the media campaign for this political propaganda effort in 1996 and 1998

was timed to coincide with holidays when we are in a spirit of reconciliation,

as Pope John Paul explained after meeting in prison with the man who shot

him, forgiveness does not diminish the need for justice. Instead of equating forgiveness with amnesty, the Pope recognized the redemptive power of justice in

the form of punishment humanely administered in the name of the people acting collectively through the courts and criminal system to protect society and

recognize the rights and needs of the victims. • To describe violent crimes committed with malice and reckless disregard for the

lives of other human beings as ‘‘means employed’’ in a ‘‘quest for independence’’

is as callous toward the real victims as it is misleading. To argue that equity

requires sentences for violent life-threatening crimes that could have but did

not result in murder to be less than the time done by some persons convicted

of murder ignores the stark reality that these were cold-blooded crimes committed by people with intent to inflict random death and injury on still more innocent people through a campaign of terrorism. In addition, it should not be surprising that a person who committed murder may be released before a person

who conspired to kill if the convicted murderer expresses remorse and vows

never to kill again but the conspirator refuses to renounce terror in the future. • When it is proved that people have sedition on their minds and murder in their

hearts, society does not have to wait until they strike and kill again before locking them up. That is what conspiracy convictions are all about. If the conspirator is unrepentant, then society has a right to protect itself by keeping that person behind bars. • The appeal for compassion argued that 15 years served on sentences of 35 to

90 years is too long and represents abuse of federal power. Ironically, on December 18, 1996, the day the San Juan Star published the first article about the

‘‘amnesty’’ appeal, another article appeared about the 99 year prison sentence

imposed by a local court in Puerto Rico on an 18 year old accomplice in a local

murder case. Apparently the Puerto Rico justice system also recognizes that

conspiracy and complicity in murder can warrant severe punishment even

though the accomplice was not caught or convicted for pulling the trigger. • As with any violent criminal group, regardless of a political agenda, if the U.S.

or the people of Puerto Rico had allowed criminal elements to seize power

through violence, it could have ushered in an era of intolerance and totalitarianism. Instead of finally realizing the goal of full democratic self-government and

a successful end to territorial status, in the political order these terrorists would

have created those who dissented or elected allegiance to the U.S. might have

joined the ranks of victims of ‘‘revolutionary justice.’’ It might have come in the

form of a death sentence summarily executed in the dark of night, or by a terrorist bomb attack. Thus, in the apprehension and prosecution of these conspirators we truly saw God’s mercy and grace sparing the lives of the innocent

people who surely would have become the next victims of their ruthless plots.

• It is common for those in prison to do good works, and the good that prisoners

do is worthy of recognition. No one is against rehabilitation of criminals. If the

corrections system had determined that the 16 criminals in these cases should

be released on the same basis that any other criminals might be released, no

one will begrudge them their freedom after paying their debt to society. However, it could be an invitation for other criminals to target their neighbors or

our nation for crime, and then claim a political motive when caught, if we accept the flawed premise of this so-called ‘‘amnesty’’ appeal and the President’s

mistaken offer to commute.

• Indeed, the cause of liberty, justice, peace and self-determination is demeaned

by an appeal based on the offensive notion that releasing these convicts somehow will advance that cause. For liberty, justice, peace and self-determination

were the very values and beliefs in our civilization that these criminals cast

aside in order to impose their will on others. They were willing to take freedom

and life itself away from their victims forever, and that must not be forgotten.

• Overt and deadly terrorism and the crimes of conspiracy and sedition for which

these prisoners were convicted simply did not need to take place in this most

democratic of all nations in the history of the world. Instead of working at the

grass-roots level to promote popular support for their cause, these criminals

chose to emulate the right wing thugs and left-wing gangsters who brought totalitarianism to so many countries in this century.

79

• In the name of justice we also must never forget the real victims of FALN and

‘‘Macheteros’’ crimes which have not been solved. There is no appeal from the

death sentence already executed by the FALN against the Fraunces Tavern

bombing victims. Indeed, there is no power on earth that can grant amnesty to

those innocent murder victims so they can return home to their families. Not

this year, not ever. The six-year-old child the FALN murdered in Mayaguez in

1975 (blaming their ‘‘mistake’’ on the CIA) has missed every school event, family gathering and birthday party for the last 25 years. The sentence being

served by that child’s family is for life, with no possibility of parole.

• Against this backdrop, the attempt of some commentators to suggest that the

time had come to release the remaining 16 jailed convicts to give legitimacy to

the self-determination process is offensive. The illegitimacy of the terrorist ideology, not need for a self-determination process, is what is at issue here. There

should have been no politically motivated release, but pardon should have been

considered only if in the routine process of the Federal corrections system it was

determined by the same standards applied to all other prisoners that these prisoners had paid their debt to society and are no longer a threat.

Now President Clinton tells us he was not really paying close attention when he

signed the commutation offer. How can he be so good at the details and complicated

moral and political equations when he is trying to define his way out of a scandal,

but when he is releasing terrorists into our communities he portrays himself as detached and not really a hands-on sort of guy?

Clearly, there is much more that must be contemplated as we search for the wisdom to show ethically purposeful compassion in these sorry affairs. A morally complete reckoning in this matter is more complicated than the apologists for these terrorists, or the foolish policy that led to their release, have been able to address.

80

81

82

83

84

85

86

The CHAIRMAN. Well, thank you, Senator.

Let me, just in closing, this deal with a terrorist episode would

serve to undermine future law enforcement investigations and encourage future acts of domestic terrorism. To quote New York City

Police Commissioner Howard Safir, ‘‘President Clinton has committed an ill-advised and egregious error. He has broken the fundamental rule in addressing terrorism. Never negotiate deals with

terrorists.’’

Now, 2 weeks have passed since I requested that the Department

of Justice provide this committee with relevant documents. The call

for review of some of these items has been bipartisan. Yet, the Department tells us that the White House is still studying this matter. In fairness, there may be a legitimate argument that executive

privilege applies to some materials. But executive privilege has not

been asserted, nor does the privilege apply, were it to be asserted,

to every document or testimony associated with the FALN, nor is

there any legitimate reason to refuse to allow the pardon attorney

to testify today about how the clemency process works. That is all

we ask.

Let me assure the administration that this committee will perform its oversight responsibilities. Now, this clemency deal is yet

another example of this administration sending the wrong message

to criminals, be they foreign spies, gun offenders or, as in this case,

terrorists. At the very least, I hope that through our efforts these

last several days Congress can do its part to help to restore the

principle and send the message that the United States does not

make deals with terrorists.

I want to thank our witnesses here today. The President’s decision to offer clemency to terrorists has grave negative consequences. And I appreciate the witnesses’ testimony here today

and their efforts to help us to understand those principles.

I think the testimony here today has refuted the administration’s

claim that these people were not involved in violent acts of terrorism. And to the extent any may still believe that these people were

not the actual killers and that that is relevant to the question of

clemency, it is only because of the vigilance by law enforcement

community that we know what we know today.

And I think the judge in the Illinois trial had it right when he

said that the particular bombings at issue in that trial did not happen because of ‘‘one of the finest examples of preventive law enforcement that has ever come to this Court’s attention in the 20-

some odd years he has been a judge. Good preventive law enforcement succeeded in keeping these defendants from doing what they

were going to do. They were going to plant bombs in public buildings during a holiday.’’

Now, I, for one, am personally glad that law enforcement was

successful in preventing more tragedies than that case, and I hope

that the President’s clemency offer does not undermine law enforcement’s good work and the safety of our citizens.

I think there are people that are really worried about what’s

happened here, especially those who testified, those who were jurors and others who I believe are very worried because of this type

of an action.

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Now, I want to thank each of you witnesses for appearing here

today. It is not easy for any of you to have appeared, I understand

that. And it is awfully difficult to talk about these things, as we

could see. But you have done our community, our country, a service, in my opinion, each and every one of you. And we are very

much in your debt and in your gratitude.

And you folks at the FBI, the FBI comes under a lot of criticism

from time to time, but for those of us who work regularly with the

FBI, we realize we would really be in trouble in this country if it

was not for the efforts of the FBI against terrorists. It is one of the

things I have to say the administration is holding its own on. But

it has been primarily because the FBI and the police people in our

society, the police forces in this society, that work in conjunction

to try and prevent acts of terrorism in our country.

But this is something that we are going to have to face in much

more escalated terms over the coming years, and I do not want to

see more victims like those who have died, like Mr. Pascarella, Mr.

Newhall, their friends who were killed and injured in these matters, and I do not want to see that happen. So I want to thank you

FBI folks for the good work that you have done in the past. You

deserve your retirement. You have earned it. And our current FBI

is doing an excellent job, in spite of some of the criticisms that

come their way. And law enforcement, in general, is doing a very

good job.

And, Mr. Gallegos, I am very proud to work with you, as we always have and will continue to do so on this committee.

Mr. GALLEGOS. Thank you, Mr. Chairman.

The CHAIRMAN. With that, we will recess until further notice,

thanking all of you for being here.

[Whereupon, at 11:42 a.m., the committee was adjourned.]

(89)

THE JUSTICE DEPARTMENT’S ROLE

AND THE FALN

WEDNESDAY, OCTOBER 20, 1999

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC.

The committee met, pursuant to notice, at 9:15 a.m., in room

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch

(chairman of the committee) presiding.

Also present: Senators Thurmond, Grassley, Specter, Kyl,

Ashcroft, Abraham, Sessions, and Leahy.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM

THE STATE OF UTAH

The CHAIRMAN. Well, I apologize for not being here exactly on

time, but I am in the middle of a number of conferences, and it

takes a great deal of my time every morning just to keep up with

everything.

Over the past several weeks, this committee has examined hundreds of documents and other materials provided by the Department of Justice, the White House, and other law enforcement officials. We also have spoken with law enforcement persons knowledgeable about the FALN and Los Macheteros organizations and

the cases involved in this controversy. Our investigation has led us

to three troubling conclusions:

First, the President’s proffered reasons in support of the clemency do not survive scrutiny;

Second, the Justice Department appears to have ignored its own

rules for handling clemency matters and modified its original recommendation against clemency; and

Third, the Justice Department itself has concluded that the release of these individuals may well increase the risk of domestic

terrorism.

The President’s stated rationales for the clemency have been,

first, that the prisoners were not directly charged with crimes that

resulted in bodily injury; second, that they had received unduly

harsh sentences that were more severe than those set forth by today’s Sentencing Guidelines; and, third, that they have renounced

violence. The evidence, in my view, tells a different story.

Our review has uncovered documents which clearly demonstrate

the violent nature of the charges against the individuals who received clemency. As the first chart here shows, paragraph 3 of the

December 1980 Federal indictment out of Chicago, IL, reads as follows:

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‘‘It was further part of the said conspiracy that the conspirators

would seek to achieve their goals and thereby oppose by force the

authority of the United States by means of force, terror and violence, including the construction and planting of explosive and incendiary devices at banks, stores, office buildings and government

buildings, including the following locations and dates * * *’’

Now, the list of bombings then goes on for more than two pages.

The defendants were charged with completing these specific bombings as overt acts in their seditious conspiracy—just like the World

Trade Center bombers and those who conspired with them. There

can be no dispute; these were violent crimes committed by violent

people.

The second unconvincing justification given for the clemency decision—cited by both the President and the Department of Justice—is the assertion that the prison sentences served by the FALN

terrorists exceeded the sentences that the same people would receive if convicted of the same crimes today. Again, this is false.

Under today’s Sentencing Guidelines, the FALN prisoners would

receive sentences equal to, if not greater than, the sentences they

received for their crimes. The U.S. Sentencing Commission has provided us with an analysis of the relevant Guideline provisions. The

Commission concludes that the defendants convicted of seditious

conspiracy ‘‘would be in a guideline range of at least 360 months

to life,’’ a 30-year minimum sentence. This is the equivalent of a

much longer pre-Guidelines sentence because parole has been

eliminated under the Guidelines. Under the Guidelines, a 30-year

sentence means 30 years. None of the terrorists here served 30

years.

Finally, the President also stated that a key factor was the fact

that these individuals had renounced violence. Their own statements and notes produced from meetings with their representatives suggest otherwise. As the next chart shows, in a transcribed

prison telephone conversation on September 7, 1999—3 weeks after

the offer of clemency—Adolfo Matos stated that ‘‘I have nothing to

be ashamed of, or feel that I have to ask for forgiveness. I don’t

have to ask for forgiveness because my conscience is at peace with

itself.’’ He also stated that his ‘‘desire has gotten stronger, to the

point where I want to continue. Continue to fight and get involved

with my people.’’ This is not remorse, yet he was set free.

Given the Department’s recognition of the threat these individuals pose to our national security, the committee set out to examine the process undertaken by the Department of Justice to consider the merits of these particular clemency petitions and examine

whether the Department followed its own rules or bowed to pressure and softened its recommendation regarding clemency.

Our investigation has uncovered evidence that longstanding policies and rules for the consideration of clemency were apparently ignored. The U.S. Attorney’s Manual states that, ‘‘Commutation

* * * is an extraordinary remedy that is rarely granted,’’ and that

‘‘Appropriate grounds for considering commutation have traditionally included disparity or undue severity of sentence, critical illness

or old age, and meritorious service rendered to the government,’’

such as ‘‘cooperation with investigative or prosecutive efforts * * *’’

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There was no medical reason for any of the clemency offers. The

sentences received by these defendants are consistent with the sentences they would have received under the Sentencing Guidelines.

Finally, nothing produced by the Department to date gives any

suggestion that any of the 16 offered clemency ever cooperated with

law enforcement regarding open cases or the apprehension of fugitives.

Moreover, despite the Department’s rules requiring a formal petition for clemency, no personal petitions for clemency were filed in

this matter prior to the clemency offer made by the President. This

was not a mere oversight. The FALN prisoners refused to file such

a petition because they do not recognize the authority of the United

States. The Department may assert that this was not unusual or

unprecedented, but as they stated in talking points they prepared

and sent to the White House, it was ‘‘very unusual.’’

Another unusual departure from the standard case is the Justice

Department’s submission of two reports to the President.

The evidence shows that the Justice Department initially fulfilled its obligation—and complied with its internal regulations—

when some 3 years ago the Department submitted to the White

House a report recommending against clemency for the prisoners.

As part of its production to the committee, the Department produced a letter that Pardon Attorney Margaret Love sent to White

House Counsel Charles Ruff referencing a report sent December

16, 1996, ‘‘recommending denial of clemency for 17 Puerto Rican

prisoners.’’ The Department also produced documents indicating

that the two U.S. attorneys offices involved in prosecuting the prisoners strongly supported the recommendation against clemency.

The privilege log and other documents the Department produced

to the committee indicate that the Department submitted another

report in the summer of 1999. Public news reports indicate that

this report, rather than offering the required recommendation in

favor of or against clemency, ‘‘made no specific recommendation.’’

Instead, ‘‘the report contained what law enforcement officials said

was a more carefully worded analysis.’’

What happened between the first report in December 1996 and

the second one in the summer of 1999 that justified a re-examination and apparent change in the Department’s recommendation?

A vigorous lobbying and public relations campaign by various political and religious groups seems to have persuaded someone to

have changed their mind. While victims were shut out of the process, those groups supporting clemency were granted access to some

of the highest-level officials in both the White House and the Department on at least nine different occasions. Notes of some of

those meetings suggest the Department provided advice to the supporters on how to create a record to justify clemency.

More troubling than the one-sided public relations campaign by

the friends of the FALN is the clear evidence that the Department

knew better. The Justice Department knew that the U.S. attorneys

who were consulted all recommended against clemency. The Department knew that there were open investigations involving the

FALN and Los Macheteros and that none of the people being considered for clemency had provided any cooperation toward solving

those cases. The Department knew that there were dangerous fugiVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00095 Fmt 6601 Sfmt 6601 SEPT15.TXT SJUD2 PsN: SJUD2
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tives still at large who were associated with the clemency petitioners.

For example, as this next poster shows, Victor Manuel Gerena

was a co-defendant with Juan Segara Palmer and the others who

received clemency in the Wells Fargo robbery in Connecticut.

Gerena is still listed as one of the FBI’s 10 Most Wanted. Yet,

inexplicably, clemency—or a change in the Department’s recommendation—was apparently never conditioned on Segara Palmer

or the others providing truthful information about Gerena’s whereabouts. Now, I find that personally very disturbing.

While the friends of the FALN were lobbying for clemency with

the Justice Department and the White House, the victims of the

FALN were kept in the dark. Even worse, in 1998, Joseph Conner,

whose father the FALN killed in the Fraunces Tavern bombing,

was told by the Justice Department that, ‘‘The Federal Bureau of

Investigation remains committed in its investigative efforts to apprehend William Morales. It is our hope that by aggressively pursuing and prosecuting terrorists, we will deter others who might

contemplate committing such crimes.’’ Now, that is the FBI, and

that is in 1998.

Now, how can we tolerate the Justice Department’s decision to

deliver this message to FALN victims when at the same time members and leaders of the FALN and Los Macheteros are being actively considered for clemency without being required to provide

any cooperation with respect to open investigations and fugitives

like Morales?

Finally, as recently as September 1999, the Attorney General

herself identified the FALN and Los Macheteros as terrorist organizations posing an ongoing threat to our Nation. As you can see

on the next chart, in the Attorney General’s Five-Year Interagency

Counterterrorism and Technology Crime Plan, the Justice Department concludes that, ‘‘Factors which increase the present threat

from these groups’’—that is, the FALN and Los Macheteros—‘‘include * * * the impending release from prison of members of these

groups jailed for prior violence.’’ The Clinton administration

agrees—the President’s offer of clemency increased the current terrorist threat to the American people by their own words.

In closing, the New York Times noted in an editorial last month,

‘‘President Clinton has not adequately explained how he concluded

that the release posed no danger to the public.’’ My hope is that

our witnesses today can provide us with an answer to this and

other important questions.

In the end, my goal is to ensure that the Department of Justice

is not party to a travesty of this sort in the future, and I hope today’s witnesses will pledge their cooperation in developing reforms

to accomplish this objective. And I have great hopes that that is

going to be the case.

[The prepared statement of Senator Hatch follows:]

PREPARED STATEMENT OF SENATOR ORRIN G. HATCH

In granting clemency to 16 convicted terrorists and members of the FALN and

Los Macheteros, President Clinton set free individuals who had engaged in sedition

and openly advocated war against the United States and its citizens. The FALN and

Los Macheteros—including the clemency recipients—have actively waged such a

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1DoJ #002149–152.

2DoJ #10140144–45.

3Letter from Tom McGrath to Chairman Orrin G. Hatch, dated October 19, 1999, at 1.

4 Id.

5DoJ #10120001.

6 Id.

war by, among other acts, planting over 130 bombs in public places including shopping malls and restaurants.

Over the past several weeks, this Committee has examined hundreds of documents and other materials provided by the Department of Justice, the White House,

and other law enforcement officials. We also have spoken with law enforcement persons knowledgeable about the FALN and Los Macheteros organizations and the

cases involved in this controversy. Our investigation has led us to three troubling

conclusions:

• First, the President’s proffered reasons in support of the clemency do not survive scrutiny;

• Second, the Justice Department appears to have ignored its own rules for handling clemency matters and modified its original recommendation against clemency; and

• Third, the Justice Department itself has concluded that the release of these individuals may well increase the risk of domestic terrorism.

A. THE PRESIDENT’S FLAWED JUSTIFICATION FOR CLEMENCY

The President’s stated rationales for the clemency have been, first, that the prisoners were not directly charged with crimes that resulted in bodily injury; second,

that they had received unduly harsh sentences that were more severe than those

set forth by today’s Sentencing Guidelines: and third, that they have renounced violence. The evidence tells a different story.

Our review has uncovered documents which clearly demonstrate the violent nature of the charges against the individuals who received clemency. Paragraph three

of the December 1980 indictment out of Chicago, Illinois reads as follows:

It was further part of the said conspiracy that the conspirators would seek to

achieve their goals and thereby oppose by force the authority of the United

States by means of force, terror and violence, including the construction and

planting of explosive and incendiary devices at banks, stores, office buildings

and government buildings, including the following locations and dates:

The list of bombings then goes on for more than 2 pages.1 The defendants were

charged with completing these specific bombings as overt acts in their seditious conspiracy—just like the World Trade Center bombers and those who conspired with

them. The Department knew that these bombings resulted in immense property

damage and at least one fatality.2 There can be no dispute; these were violent

crimes committed by violent people. It is no mere coincidence that the FALN’s decade-long bombing campaign ceased immediately after these FALN members were

locked behind bars.

The second unconvincing justification given for the clemency decision—cited by

both the President and the Department of Justice—is the assertion that the prison

sentences served by the FALN terrorists exceeded the sentences that the same people would receive if convicted of the same crimes today. This is false. Under today’s

sentencing guidelines, the FALN prisoners would receive sentences equal to, if not

greater than, the sentences they received for their crimes. The United States Sentencing Commission has provided us with an analysis of the relevant Guideline provisions.3 The Commission concludes that the defendants convicted of seditious conspiracy would be in a guideline range of at least 360 months to life.4 This is the

equivalent of a much longer pre-Guidelines sentence because parole has been eliminated under the Guidelines. Under the Guidelines, a 30-year sentence means 30

years. None of the terrorists here served 30 years.

Finally, the President also stated that a key factor was the fact that these individuals had renounced violence. Their own statements, and notes produced from meetings with their representatives, suggest otherwise. In a transcribed prison telephone

conversation on September 7, 1999—three weeks after the offer of clemency—Adolfo

Matos stated that ‘‘I have nothing to be ashamed of, or feel that I have to ask for

forgiveness. I don’t have to ask for forgiveness because my conscience is at peace

with itself.’’ 5 He also stated that his ‘‘desire has gotten stronger, to the point where

I want to continue. Continue to fight and get involved with my people.’’ 6 The FALN,

and the clemency recipients, far from renouncing their beliefs favoring violent atVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00097 Fmt 6601 Sfmt 6621 SEPT15.TXT SJUD2 PsN: SJUD2
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7 U.S.A.M. § 1–2.113. 8 28 C.F.R. § 1.1. 9DoJ #1040102–05.

10 28 C.F.R. § 1.6; see also United States Attorneys’ Manual (‘‘U.S.A.M’’) § 1–2.110. 11DoJ #1041964. 12DoJ #10140137–41. 13DoJ #1041926.

tacks against the United States, have re-affirmed their pledge to achieve their political goals by any means.

B. VIOLATIONS OF DEPARTMENT OF JUSTICE CLEMENCY GUIDELINES

Given the Department’s recognition of the threat these individuals pose to our national security, the Committee set out to examine the process undertaken by the Department of Justice to consider the merits of this particular clemency request and

examine whether the Department followed its own rules or bowed to pressure and

softened its recommendation regarding clemency.

Our investigation has uncovered evidence that longstanding policies and rules for

the consideration of clemency were apparently ignored. The United States Attorneys’ Manual states that:

Generally, commutation of sentence is an extraordinary remedy that is rarely

granted. Appropriate grounds for considering commutation have traditionally

included disparity or undue severity of sentence, critical illness or old age, and

meritorious service rendered to the government by the petitioner, e.g., cooperation with investigative or prosecutive efforts that has not been adequately rewarded by other official action. A combination of these and/or other equitable

factors may also provide a basis for recommending commutation in the context

of a particular case.7

For starters, I am not aware of any information that suggests there was a medical

reason for any of the clemency offers, so that factor does not apply. Second, as will

be demonstrated, the sentences received by these defendants are consistent with the

sentences they would have received under the Sentencing Guidelines. Moreover,

they are consistent with the sentences of other people who have been convicted of

seditious conspiracy. Finally, nothing produced by the Department to date gives any

suggestion that any of the 16 offered clemency ever cooperated with law enforcement regarding open cases or the apprehension of fugitives.

The Department’s rules also require that an individual seeking clemency submit

a petition to the Pardon Attorney.8 Here, however, the Department began entertaining the possibility of clemency for the FALN prisoners even though no personal petitions for clemency had been filed. Indeed, none of the prisoners ever submitted a

clemency petition prior to being offered clemency by the President. And as the Department recognized, the absence of a petition was not a mere oversight: the FALN

prisoners refused to file such a petition because they do not recognize the authority

of the United States. Yet, despite the absence of those petitions, the Department

went forward with the clemency process. The Department may assert that this was

not unusual or unprecedented, but as they stated in talking points they sent to the

White House, it was ‘‘very unusual.’’ 9

Another unusual departure from the standard case is the Justice Department’s

submission of two reports to the President—one that recommended against granting

clemency, and a subsequent report that apparently withdrew that recommendation

and reportedly took no position for or against clemency. Justice Department rules

require that in every clemency case the Department ‘‘shall report in writing [its]

recommendation to the President, stating whether in [its] judgment the President

should grant or deny the petition.’’ 10 The rules do not contemplate the reopening

of a completed review—and certainly do not contemplate a report that does not contain an up or down recommendation on clemency.

The evidence shows that the Justice Department initially fulfilled its obligation—

and complied with its internal regulations—when, some three years ago, the Department submitted to the White House a report recommending against clemency for

the prisoners. As part of its production to the Committee the Department produced

a letter that Pardon Attorney Margaret Love sent White House Counsel Charles

Ruff referencing a report sent December 16, 1996 ‘‘recommending denial of clemency

for 17 Puerto Rican prisoners.’’ 11 The Department also produced documents indicating that the two U.S. Attorneys’ offices involved in prosecuting the prisoners strongly supported the recommendation against clemency.12

The privilege log and other documents the Department produced to the Committee indicate that the Department submitted another report in the summer of 1999.13

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14David Johnston, Clinton Went Against Advice on Clemency, 7he President Agreed to Free 16

Puerto Rican Nationalists Even Though Top Law Enforcers Were Against It, New York Times,

August 27, 1999 at A1. 15 Id. 16DoJ #1041847–53. 17Letter dated January 6, 1998 to Mr. Joseph F. Conner, from Ronnie L. Edelman, Department of Justice, Principal Deputy Chief of the Terrorism and Violent Crimes Section.

Public reports in the New York Times indicate that this report, rather than offering

the required recommendation in favor of or against clemency, ‘‘made no specific recommendation.’’ 14 Instead, ‘‘the report contained what law enforcement officials said

was a more carefully worded analysis.’’ 15 According to the Times, the report set out

various options for the President without making a recommendation.

What happened between the first report in December 1996 and the second one

in the summer of 1999 that justified a reexamination and apparent change or softening of the Department’s recommendation?

Neither the acts for which the prisoners were convicted, nor the sentences imposed, changed between the December 1996 report and the new report issued by the

Department last summer, so neither explains why the Department would issue a

second report.

It disturbs me greatly to report that, although nothing new developed in the cases

of the FALN members during that time, a vigorous lobbying and public relations

campaign by various political and religious groups seems to have persuaded someone to change their mind. While victims were shut out of the process, those groups

supporting clemency were granted access to some of the highest-level officials in

both the White House and the Department on at least 9 occasions. Notes of some

of those meetings suggest the Department provided advice to the supporters on how

to create a record to justify clemency.16

More troubling than the one-sided public relations campaign by the friends of the

FALN is the clear evidence that the Department knew better. The Justice Department knew that the U.S. Attorneys who were consulted all recommended against

clemency. The Department knew that there were open investigations involving the

FALN and Los Macheteros, and that none of the people being considered for clemency had provided any cooperation toward solving those cases. The Department

knew that there were dangerous fugitives still at large who were associated with

the clemency petitioners. William Morales, one of the leaders of the FALN is reportedly hiding out in Cuba. Victor Manuel Gerena, was a co-defendant with Juan

Segara Palmer and the others charged with the Wells Fargo robbery in Connecticut.

Gerena is still listed as one of the FBI’s 10 Most Wanted. Yet, inexplicably, clemency—or a change in the Department’s recommendation—was apparently never conditioned on Segara Palmer or the others providing truthful information about

Gerena’s whereabouts. I find that profoundly disturbing.

While the friends of the FALN were lobbying for clemency with the Justice Department and the White House, the victims of the FALN were kept in the dark. The

Department allowed the many victims of the FALN bombs to learn of their

attackers’ release just like the rest of us did: by seeing it on the evening news. Even

worse, Joseph Conner, whose father the FALN killed in the Fraunces Tavern bombing, was told by the Justice Department that: ‘‘the Federal Bureau of Investigation

remains committed in its investigative efforts to apprehend William Morales. It is

our hope that by aggressively pursuing and prosecuting terrorists, we will deter others who might contemplate committing such crimes.’’ 17

How can we tolerate the Justice Department’s decision to deliver this message to

FALN victims when, at the same time, members and leaders of the FALN and Los

Macheteros are being considered for clemency without being required to provide any

cooperation with respect to open investigations and fugitives like Morales?

C. THE EFFECT OF THE CLEMENCY ON TERRORIST ACTIVITY

Finally, we must ask, what message does the clemency send to terrorists about

how seriously we take our ‘‘policy of vigorously investigating and prosecuting those

acts of terrorism when we release those whom we prosecute?

The impact this will have on terrorism is disturbing. As the draft letter from Director Freeh to Chairman Henry Hyde indicates, the FBI advised the Justice Department that ‘‘the release of these individuals would psychologically and operationally enhance’’ the ongoing violent and criminal activities of Puerto Rican terrorist

groups. The FBI also pointed out that any such pardon of the ‘‘currently incarcerVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00099 Fmt 6601 Sfmt 6621 SEPT15.TXT SJUD2 PsN: SJUD2
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18Draft letter from FBI Director Louis Freeh to Representative Henry J. Hyde. 19Five-Year Interagency Counterterrorism and Technology Crime Plan, September 1999, at 11

(emphasis added).

ated terrorists would likely return committed, experienced, sophisticated and hardened terrorists to the clandestine movement.’’ 18

Finally, as recently as September 1999, the Attorney General herself identified

the FALN and Los Macheteros as terrorist organizations posing an ongoing threat

to our nation. In the Attorney General’s Five-Year Interagency Counterterrorism

and Technology Crime Plan, the Justice Department concludes that ‘‘Factors which

increase the present threat from these groups [the FALN and Los Macheteros] include renewed activity by a small minority advocating Puerto Rican statehood, the

100-year anniversary of the U.S. presence in Puerto Rico, and the impending release

from prison of members of these groups jailed for prior violence.’’ 19 The Clinton Administration agrees—the President’s offer of clemency increased the current terrorist threat to the American people.

In closing, the New York Times noted in a editorial last month, ‘‘President Clinton

has not adequately explained how he concluded that the release posed no danger

to the public.’’ [N.Y. Times, Sept. 23, 1999] My hope is that our witnesses can provide us with an answer to this and other important questions.

In the end, my goal is to ensure that the Department of Justice is not party to

a travesty of this sort in the future. I hope today’s witnesses will pledge their cooperation in developing reforms to accomplish this objective.

The CHAIRMAN. We will wait for the ranking member to come,

and while we are waiting, we will now turn to these important

issues before the committee today. I would like to thank all panelists for coming here today and would introduce them to the committee.

Our first witness is the Deputy Attorney General, the Honorable

Eric Holder. As part of his duties as Deputy Attorney General, he

supervises the work of the Office of Pardon Attorney.

Our second witness is the Pardon Attorney, Mr. Roger Adams.

Welcome, Mr. Adams. Mr. Adams heads the Office of Pardon Attorney which processes and investigates applications for clemency.

So we will turn to you first, Mr. Holder, and then we will have

some questions for you.

PANEL CONSISTING OF HON. ERIC HOLDER, DEPUTY ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC; AND ROGER ADAMS, PARDON ATTORNEY, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

STATEMENT OF HON. ERIC HOLDER

Mr. HOLDER. Thank you, Mr. Chairman.

Mr. Chairman, Senator Sessions, I welcome the opportunity to

appear before you today. With me, as was indicated, is Roger

Adams, who is the Pardon Attorney. We will do our best to address

the questions that you have relating to the conditional offers of

clemency that the President recently granted to 16 Puerto Rican

nationalists.

I wish to begin my remarks, however, by extending my heartfelt

sympathy to those victims and their families whose lives were tragically affected by the criminal conduct of the FALN. It is difficult

to fully comprehend the extent of the pain and suffering these victims were forced to endure. I have spent my career as a prosecutor

and as a judge. And as U.S. attorney, I met frequently with victims

of violence, and as Deputy Attorney General, I have done my best

to ensure that crime victims are treated properly and respectfully

throughout the criminal justice system. And one of the most imporVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00100 Fmt 6601 Sfmt 6601 SEPT15.TXT SJUD2 PsN: SJUD2
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tant points that I have learned from my 23-year career is that

every tragic story of victimization is unique and unforgettable. And

so I want the victims of FALN violence to know that our thoughts

and prayers remain with them now and in the future.

As the committee is aware, the President has asserted executive

privilege in regard to his grant of conditional clemency to the nationalists. We at the Justice Department have reviewed this assertion of privilege, and we have concluded that there is a firm legal

basis and a historical precedent for such an act. As a consequence,

we are not able to discuss with you advice and other deliberative

communications to the President regarding his clemency decision,

and we are not able to provide you with copies of deliberative documents and written communications generated within and between

the Department of Justice and the White House in connection with

the preparation of that advice. Moreover, because the underlying

facts of the FALN case are inextricably interwoven into the analysis of the clemency request, I generally will not be able to comment

on the facts of this matter. I want you to know that we at the Justice Department are being and will continue to be as responsive to

your requests and inquiries as is possible, consistent with the constitutional constraints that have been placed upon us.

Within 24 hours of this committee passing its resolution regarding the conditional clemency, I sent a memorandum to all 47 Department components and divisions and to all 93 U.S. attorneys

throughout this country directing them to immediately engage in

a thorough review of their files for responsive records. As a result

of that massive search, we have delivered to you more than 22,000

pages of documents pertaining to this matter. The documents include records from the U.S. Parole Commission, the Bureau of Prisons, the Office of the Pardon Attorney, the Criminal Division, the

Civil Division, and the Justice Management Division. Further, we

are in the process of duplicating approximately 1,200 hours of taperecorded telephone conversations obtained from the Bureau of Prisons. Our search for documents is continuing, and we will produce

additional responsive material as it is located and processed.

Additionally, the Department has provided to the committee a

privilege log identifying those documents which are subject to the

President’s assertion of executive privilege. From the log you can

see that in 1996, in accordance with Department of Justice regulations, the Department submitted a written report and a recommendation to the White House regarding whether the President

should grant or deny the petition for clemency, and that there were

subsequent communications between the Department and the

White House on the subject of clemency for the Puerto Rican nationalists as recently as 2 months ago. However, because of the

President’s assertion of privilege, I am not at liberty to disclose the

contents or the substance of the report, recommendations, or communications. Nevertheless, consistent with these constitutional

constraints, we at the Justice Department will continue to make

every effort to provide this committee with as many responsive documents and as much relevant information as we can.

That being said, I believe that it is incumbent upon all of us to

ensure that congressional inquiries do not have a chilling effect

upon the pardon process. If key participants in the formulation of

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the Department’s pardon advice to the President were to know that

their views could be subject to the intense public scrutiny of a congressional investigation, there is a very significant risk that these

people would hesitate to share their candid, objective, and perhaps

unpopular opinions in certain cases.

Now, this is just not a theoretical concern. In the past, individuals have asked for strict assurances that their views would remain confidential before they offered their thoughts on pardon requests by politically powerful figures. I would only ask that we all

be mindful of this concern as we begin this hearing today.

I would now like to have, with the chairman’s permission, the

Pardon Attorney, Roger Adams, describe for you the Department’s

procedures with respect to the handling of clemency petitions.

[The prepared statement of Mr. Holder follows:]

PREPARED STATEMENT OF DEPUTY ATTORNEY GENERAL ERIC HOLDER

Mr. Chairman and distinguished Members of the Judiciary Committee, I welcome

the opportunity to appear before you today. With me is Roger Adams, the Pardon

Attorney. We will do our best to address the questions you have relating to the conditional offers of clemency that the President recently granted to sixteen Puerto

Rican nationalists.

I wish to begin by extending my heartfelt sympathy to those victims and their

families whose lives were tragically affected by the criminal conduct of the FALN.

It is difficult to fully comprehend the extent of the pain and suffering these victims

were forced to endure. I have spent my career as a prosecutor and a judge. As

United States Attorney, I met frequently with victims of violence and, as Deputy

Attorney General, I have done my best to ensure that crime victims are treated

properly and respectfully throughout the criminal justice system. And one of the

most important points I have learned from my 23-year career is that every tragic

story of victimization is unique and unforgettable. And so, I want the victims of

FALN violence to know that our thoughts and prayers remain with them now and

in the future.

I would like to briefly address the Department’s procedures for reviewing and

making recommendations to the President on clemency petitions. Mr. Adams will

discuss these issues in more detail in his testimony.

In general terms, the Office of the Pardon Attorney reviews in the first instance

petitions for clemency filed by federal prisoners. If it appears that the petitioner is

eligible to apply for clemency and the petition contains sufficient information, the

Pardon Attorney begins an investigation into the facts and circumstances of the petitioner’s case. Official records such as the presentence report that was prepared for

the sentencing judge, reports from the Bureau of Prisons on the petitioner’s behavior while incarcerated are checked for relevant information. On occasion, the Pardon

Attorney also contacts the component of the Department of Justice which prosecuted

the case, for example the Criminal Division or a particular U.S. Attorney’s Office.

After completing his investigation, the Pardon Attorney prepares a report and recommendation for the White House. These reports are sent to the Office of the Deputy Attorney General for review. After that review, the report and recommendation

are transmitted to the White House over my signature as Deputy Attorney General.

It is the exclusive prerogative of the President to decide what actions he will then

take regarding the petition for clemency.

You have also asked me to address what steps the Department took in order to

obtain the records that the Committee sought pursuant to the resolution which was

passed on September 23. On September 24, I sent a memorandum to the heads of

all 47 Department components and divisions and all 93 United States Attorneys.

That memorandum directed the component heads and U.S. Attorneys to immediately undertake a prompt and thorough review of their files for responsive records.

In addition to my memorandum, every U.S. Attorney and each component head received the text of the Resolution for reference. Each Department component, division, and United States Attorney’s office designated an attorney responsible for

searching for responsive documents. The recipients were directed to identify, obtain,

review, and, as appropriate, produce documents that you requested, and they did

so.

We have produced over 22,000 pages of responsive documents for you. The documents include records from the U.S. Parole Commission, the Bureau of Prisons, the

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Office of the Pardon Attorney (OPA), the Criminal Division, the Civil Division, and

the Justice Management Division, among other components. We have provided over

seven hundred audio tapes of recorded telephone conversations obtained from the

Bureau of Prisons. Our efforts are continuing and we will produce additional responsive materials as they are located and processed.

Additionally, the Department has provided to the Committee a ‘‘privilege log’’

identifying those documents which are subject to the President’s assertion of executive privilege. From the log you can see that in 1996, in accordance with Department regulations, the Department submitted a written report and recommendation

to the White House regarding whether the President should grant or deny the petition for clemency, and that there were subsequent communications between the Department and the White House on the subject of clemency for the Puerto Rican nationalists as recently as two months ago. However, because of the President’s assertion of privilege, I am not at liberty to disclose the contents or substance of the report, recommendations, or communications. Nevertheless, consistent with these constitutional constraints, we at the Department of Justice have made, and will continue to make, every effort to provide this Committee with as many responsive documents and as much relevant information as we can.

I would like to address in more detail the issue of executive privilege. As you

know, the President has asserted executive privilege with respect to documents and

testimony that reflect advice sought by and provided to the White House with respect to the offers of clemency and the deliberations within the Department in connection with the preparation of that advice. The Department of Justice is obligated

to respect and follow that assertion of the privilege.

We believe that there is a solid legal basis for the President’s assertion of executive privilege here. Executive privilege is a necessary corollary of the executive function vested in the President by Article II of the Constitution. This privilege, which

protects, among other things, the confidentiality of presidential communications and

the deliberative processes of the executive branch, has been asserted by numerous

Presidents from the earliest days of our Nation, and has been explicitly recognized

by the Supreme Court. The privilege is properly asserted where, as here, the President’s need to maintain the confidential nature of presidential communications and

executive branch deliberations outweighs Congress’s need for the information contained in privileged documents.

The Committee’s request for the documents generated during the deliberations relating to the President’s recent grant of clemency presents a particularly compelling

legal basis for the assertion of executive privilege. Under the Constitution, the

granting of clemency pursuant to the pardon power is unquestionably an exclusive

province of the executive branch. Thus, while the Committee has undoubted authority to oversee this Department’s discharge of its statutory duties, the Department

was not discharging any statutory duty or exercising any statutory authority when

it conducted an evaluation of the petition for clemency made on behalf of the Puerto

Rican nationalist prisoners. Rather, the Department was providing advice and assistance to the President in the discharge of his exclusive constitutional prerogative.

The Department has long declined to share with Congress information concerning

the advice and assistance it provides to the President on pardon matters.

The documents in the Department’s files that are the subject of the President’s

assertion of privilege fall squarely within the well-recognized scope of executive

privilege. First, the documents include the Department’s advice to the President and

his staff on these clemency petitions. Advice provided to the President unquestionably falls within the scope of executive privilege. In its 1974 decision in United

States v. Nixon, the Supreme Court recognized the necessity for protection of the

public interest in candid, objective, and even blunt or harsh opinions in Presidential

decision making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in

a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the

separation of powers under the Constitution. (418 U.S. at 708).

Executive privilege is not limited to advice and other communications made to the

President. Rather, it is well-established that the privilege also applies to intra-agency deliberations, such as the deliberative communications within the Department of

Justice in connection with the preparation of advice to the White House on this

clemency matter. The Supreme Court also recognized in United States v. Nixon that

executive privilege covers ‘‘communications between high Government officials and

those who advise and assist them in the performance of their manifold duties.’’ 418

U.S. at 705. The Court has stated that ‘‘the importance of this confidentiality is too

plain to require further discussion.’’ Id. The Department has provided the CommitVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00103 Fmt 6601 Sfmt 6621 SEPT15.TXT SJUD2 PsN: SJUD2
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tee with a copy of a letter we sent to a Member of the Committee in 1991. That

letter surveyed the precedents supporting the longstanding executive branch position that executive privilege ‘‘extends not only to communications to and from the

President, but [also] to deliberative communications between the President’s subordinates and those who, in turn, advise them.’’ Letter to Senator Howard M. Metzenbaum, from W. Lee Rawls, Assistant Attorney General, Office of Legislative Affairs,

at 1 (July 1, 1991). Indeed, more assertions of executive privilege have concerned

deliberations between and within agencies than have concerned actual presidential

communications.

Disclosure of the documents that are subject to the President’s assertion of privilege would have precisely the chilling effect that the privilege is designed to prevent.

There is a significant risk that the Office of the Pardon Attorney will not be able

to obtain ‘‘candid, objective, and even blunt or harsh opinions’’ (United States v.

Nixon, 418 U.S. at 708) from other components within the Department or freely provide such opinions and views to senior Department officials if the key participants

in the formulation of the Department’s advice know that their views will be subject

to the intense public scrutiny of a congressional investigation. Similarly, senior Department officials will not be able to convey such opinions to the Counsel for the

President, nor will they be ‘‘free to explore alternatives,’’ id., if their communications

with the White House and with their staffs are not protected from disclosure. Such

a chilling effect would be particularly troublesome here, where Department officials

are formulating advice to assist the President in the discharge of an exclusive presidential prerogative, and Congress therefore has no authority to regulate the nature

of the advice that the President seeks or receives.

Thank you again for the opportunity to appear before you on this important matter. The Department of Justice wants to continue to work with the Committee to

appropriately address any issues relating to this matter.

The CHAIRMAN. Thank you.

Mr. Adams, we will take your statement.

STATEMENT OF ROGER ADAMS

Mr. ADAMS. Good morning, Mr. Chairman and members of the

committee. As Mr. Holder has indicated and as you have indicated,

Mr. Chairman, my name is Roger Adams, and I am the Pardon Attorney at the Department of Justice.

Initially, Mr. Chairman, let me add my voice to those who have

expressed sympathy for the victims of FALN bombings. For most

of my time in the Department, I was in the Criminal Division, and

a good part of that was in a section involved with the enforcement

of firearms and explosives laws. And I know what bombs and what

illegal firearms can do, and I know that the victims of FALN bombings and the survivors of those victims are suffering to this very

day, and they have my sympathy.

Mr. Chairman, the office that I head has the unique and singular

mission of assisting the President in exercising his powers in executive clemency matters. My small staff and I do this largely

through written memoranda signed by the Deputy Attorney General and sent to the White House.

I understand one of the things in which the committee is interested is how a request for a commutation of sentence is processed

by my office. As I did for the committee staff a few weeks ago, I

will go through the process we follow.

First, a Federal inmate files a petition for commutation of his

sentence with the Office of the Pardon Attorney. He is eligible to

apply as long as he had actually reported to prison and begun serving his sentence and is not challenging his conviction or sentence

through appeal or collateral attack. The petition form requires the

inmate or his attorney—if he is represented by counsel—to state

such information as the institution in which he is being held, the

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offenses of which he has been convicted, and the circumstances

leading to his conviction. The petitioner is free to append to the application or to submit at a later date any additional documentation

he believes will support his request.

When my office receives a petition, we review it to ensure the applicant is eligible to apply, and we begin our investigation. The

first step is to contact the warden at the Federal prison where the

inmate is being held and request copies of the judgment of conviction, the pre-sentence report, and his most recent prison progress

report. The judgment of conviction gives us the official record of the

offense or offenses of which the person was convicted. The pre-sentence report, prepared by the U.S. Probation Office prior to sentencing, gives a good and contemporaneous account of the crime

and a description of the rest of the defendant’s criminal history.

The progress report, prepared periodically by the Bureau of Prisons, details such things as the prisoner’s adjustment to incarceration, his progress on paying fines or restitution, and disciplinary

history while in prison.

At this stage of our investigation, we also check legal databases

for reported court opinions concerning the petitioner’s conviction

and other crimes for which he has been convicted. In the large majority of cases, this information is sufficient to enable my office to

prepare a brief report—usually around 500 words—to the White

House. These reports are sent to the Deputy Attorney General’s Office, reviewed by his staff, and transmitted under the Deputy Attorney General’s signature to the Office of the White House Counsel. The vast majority of commutation petitions are denied.

In a minority of cases, when my office’s initial review of the information raises questions of material fact or suggests that the application for commutation may have some merit or if the case presents significant issues or is likely to attract wide attention, my office does some additional work. We contact the U.S. Attorney’s Office whose office prosecuted the case. When we go to the U.S. attorney, we request comments and recommendations on the commutation request, and we may ask for additional factual information

concerning the case. We also send along to the U.S. attorney a copy

of the provision in the U.S. Attorney’s Manual concerning the role

of the U.S. attorney in clemency matters. One of the things the

U.S. attorney can provide, and which is expressly mentioned in the

manual, is information concerning victim impact of the petitioner’s

crime.

In cases in which we solicit the views of the U.S. attorney, we

also contact the sentencing judge, either directly or through the

U.S. attorney, for his or her comments and recommendations on

the clemency request, if the judge is willing to share them. While

we are doing this, my office also receives and maintains for consideration in the petitioner’s file correspondence sent by the petitioner

and third parties, including, in many cases, Members of Congress,

either to the Department or the White House regarding the commutation application. If representatives of the prisoner, either his

attorney or a family member, seek a meeting and are willing to

travel to meet in my office, we will meet with their representatives

and listen to whatever additional information they care to make on

the prisoner’s behalf.

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After we have gathered the information I have described, my office then drafts a report and recommendation as to the merits of

the commutation request. The report is actually a memorandum for

the Deputy Attorney General’s signature. The report is sent to the

Deputy Attorney General’s Office where it is typically reviewed by

a member of his staff and is signed by the Deputy. Of course, the

Deputy Attorney General is free to make changes in the report, but

once it meets with his approval, he signs it and it is transmitted

to the White House Counsel’s Office.

Thereafter, when he deems it appropriate, the President acts on

the commutation petition and either grants it or denies it, as he

sees fit. Once the President acts on the petition, my office is notified, and we notify the petitioner through the warden of his institution or through his attorney, if he was represented by counsel. If

the President has decided to grant clemency, we also prepare a

warrant of commutation. Once the warrant is signed by the President, we would transmit it or a copy to the Bureau of Prisons to

accomplish the actual release or to allow the Bureau of Prisons to

re-compute the prisoner’s release date in cases where the commutation is something other than time served. After any Presidential

decision, either to grant or deny commutation, my office notifies the

U.S. attorney, and the sentencing judge, if he has been asked to

comment, of the nature of the President’s decision.

I know, Mr. Chairman, my time has about elapsed, but let me

say that in my prepared statement I have included, to the extent

I can do so, consistent with the President’s assertion of privilege,

a discussion of some matters concerning the recent grant of clemency in the Puerto Rican cases that the media has indicated are

of concern to the committee.

That concludes my statement, Mr. Chairman. I would be pleased

to answer any questions.

[The prepared statement of Mr. Adams follows:]

PREPARED STATEMENT OF ROGER ADAMS

Good morning Mr. Chairman and Members of the Committee. My name is Roger

Adams and I am the Pardon Attorney at the Department of Justice. The Office that

I head has the mission of assisting the President in exercising his powers in executive clemency matters. My small staff and I do this largely through written memoranda signed by the Deputy Attorney General and sent to the White House.

I understand one of the things in which the Committee is interested is how a request for a commutation of sentence is processed by my office. I will briefly outline

the procedures and, to the extent I can, will describe what we did with respect to

the cases of the 16 Puerto Rican persons to whom the President offered clemency

on August 11, 1999. As you know, however, much of that information is covered by

the President’s assertion of privilege. Consequently, I cannot discuss it.

A few weeks ago, I met with a number of Committee staff to go over the procedure

the Department follows in handling a commutation case—the type of case in which

the President recently granted clemency. Let me now describe the way that process

works:

First, a federal inmate files a petition for commutation of his sentence with the

Office of the Pardon Attorney. He is eligible to apply as long as he has actually reported to prison and begun serving his sentence, and is not challenging his conviction or sentence through appeal or collateral attack. The petition form requires the

inmate or his attorney—if he is represented by counsel—to state such information

as the institution in which he is being held, the offenses of which he has been convicted, and the circumstances leading to his conviction. The petitioner is free to append to the application, or to submit at a later date, any additional documentation

he believes will support his request.

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When my office receives a petition, we review it to ensure the applicant is eligible

to apply and begin an investigation. The first step is to contact the warden at the

federal prison where the inmate is being held and request copies of the judgment

of conviction, the presentence report, and his most recent prison progress report.

The judgment of conviction gives us the official record of the offense or offenses of

which the person was convicted. The presentence report, prepared by the U.S. Probation Office prior to sentencing, gives a good, contemporaneous account of the

crime, and a description of the rest of the defendant’s criminal history. The progress

report, prepared periodically by the Bureau of Prisons (BOP), details such things as

the prisoner’s adjustment to incarceration, his progress on paying fines or restitution, and disciplinary history while in prison. At this stage of our investigation, we

also check legal databases for reported court opinions concerning the petitioner’s

conviction and other crimes for which he has been convicted. In the large majority

of cases, this information is sufficient to enable my office to prepare a brief report—

500 to 700 words, usually—to the White House. These reports are sent to the Deputy Attorney General’s Office, reviewed by his staff and transmitted under the Deputy Attorney General’s signature to the Office of the White House Counsel. The vast

majority of petitions are denied.

In a minority of cases, when my office’s initial review of the information raises

questions of material fact, or suggests that the application for commutation may

have some merit, or if the case presents significant issues or is likely to attract wide

attention, my office contacts the United States Attorney whose office prosecuted the

case. We would also contact the prosecuting division of the Justice Department—

usually the Criminal Division or Civil Rights Division—if one of these divisions was

significantly involved in the prosecution. When we go to the United States Attorney

or another component of the Department, we request comments and recommendations on the commutation request, and we may ask for additional factual information concerning the case. When we contact the United States Attorney, we send

along a copy of the provision in the U.S. Attorney’s Manual concerning the role of

the U.S. Attorney in clemency matters. One of the things the United States Attorney can provide, and which is expressly mentioned in the Manual, is information

concerning victim impact of the prisoner’s crime, in appropriate cases.

In cases in which we solicit the views of the United States Attorney, we also contact the sentencing judge, either directly or through the United States Attorney, for

his or her comments and recommendations on the clemency request, if the judge is

willing to share them. While we are doing this, my office receives and maintains

for consideration in the petitioner’s file correspondence sent by the petitioner and

third parties—including Members of Congress—either to the Department or the

White House regarding the commutation application. If representatives of the prisoner, either his attorney or a family member, seek a meeting and are willing to

travel to meet in my office, we will meet with them and listen to whatever additional information they care to provide on the prisoner’s behalf.

After we have gathered the information I have described, my office drafts a report

and recommendation as to the merits of the commutation request. The report is actually a memorandum for the Deputy Attorney General’s signature. The report is

sent to the Deputy Attorney General’s Office where it is typically reviewed by a

member of his staff and is signed by the Deputy. Of course, the Deputy Attorney

General is free to make changes in the report, but once it meets with his approval,

he signs it and it is transmitted to the White House Counsel’s Office.

Thereafter, when he deems it appropriate, the President acts on the commutation

petition and either grants it or denies it, as he sees fit. Once the President acts on

the petition, my office is notified, and we notify the petitioner or his attorney, if he

was represented by counsel. We also prepare a warrant of commutation if necessary.

Once the warrant is signed, we would transmit it, or a copy, to the Bureau of Prisons to accomplish the actual release, or to allow BOP to re-compute the prisoner’s

release date in cases where the commutation is to something other than time

served. After any Presidential decision, either to grant or deny commutation, my office notifies the United States Attorney, and the sentencing judge, if he has been

asked to comment, of the nature of the President’s decision.

Let me now turn briefly to some matters concerning the Puerto Rican cases that

I can discuss. One matter that the media has mentioned as of interest to you, Mr.

Chairman, is how the petition for these persons was filed. The prisoners did not sign

and submit individual petitions. Rather, by letter to the Pardon Attorney dated November 9, 1993, the attorneys for these persons wrote to make application on their

behalf. The 13 page letter and its numerous supporting documents have been given

to the Committee. They are identified by Bates Stamp Numbers 000259–000421.

This material contained the crucial information required on the standard application for commutation of sentence, such as a description of the offenses, the prisons

104

in which the applicants were incarcerated, and the asserted reasons for clemency.

My predecessor as Pardon Attorney decided to accept these documents as the petition. Let me underscore, Mr. Chairman, that my predecessor did this with the full

knowledge of, and support of, the Deputy Attorney General’s Office. I was then in

the Deputy Attorney General’s Office and one of my areas of responsibility was the

Office of the Pardon Attorney. So, the Pardon Attorney discussed this with me, and

I, in turn, discussed it with then Deputy Attorney General Phil Heymann.

While this procedure differs from the usual procedure in commutation cases, to

accept a request from the legal representatives of these persons was neither unreasonable, nor unprecedented. There have been other occasions when the Department

accepted applications signed by an attorney for the prisoner rather than the applicant himself. In this case, the Office of the Pardon Attorney knew that the issue

of commutations of the sentences of these Puerto Rican prisoners was one that

would likely be raised with the President. At some point, the White House would

likely want input and advice from the Department of Justice. The best way for the

Department to become prepared to present a thorough report and provide sound advice was to open cases for these persons and begin the comprehensive investigative

process I have described.

Just as the Department expected, the White House did indeed want a report, and

in the Fall of 1996, asked for it. Accordingly, on December 16, 1996, the Department

submitted its written report and recommendation. I know there has been considerable discussion in the media about whether the Department made a recommendation in these cases. The answer is we did, in December 1996. Although the President’s assertion of executive privilege prevents me from saying what that recommendation was, or discussing what was in the report, there was a recommendation, as provided for in Section 1.6(b) of the Department’s Clemency Rules.

Permit me, Mr. Chairman, to talk about the clemency rules, and a concern of

some, at least as reported in the media, that the Department violated the rules by

not making a recommendation in these cases. The fact of the matter, of course, is

that the Department did make a recommendation. But even if we had not made a

recommendation in 1996 and, instead, the President acted in a case in which the

Department had not made a recommendation, that would not have violated the rule,

and it would not have invalidated the President’s action. The power to grant clemency, as you know, is vested solely in the President. Historically, Presidents have

called upon the Justice Department to assist them with the exercise of the clemency

power. The Clemency Rules, which the President approves, set forth a description

of how the Justice Department is to perform its tasks on the President’s behalf The

Clemency Rules exist to facilitate his consideration of clemency cases and, by their

very terms, are advisory only. If the President, believed that some different procedure would better facilitate his consideration of a particular case or group of cases,

he could certainly ask the Department to follow a different rule or procedure for

those cases, and we in the Department would have a responsibility to do so. As a

matter of fact, twice in fairly recent history, Presidents have acted in clemency cases

with no input at all from the Department of Justice (or at least not from the Office

of the Pardon Attorney)—no recommendation, no report, and even no knowledge. I

refer to President Ford’s pardon of former President Nixon in 1974 for crimes that

he may have committed but for which he had not even been indicted, and to President Bush’s pardons in December 1992 of the so-called ‘‘Iran Contra’’ figures for

crimes for which they had been indicted, but not tried.

Finally, Mr. Chairman, I’d like to address another issue that the media has indicated is of concern to you: the opinions of the FBI and the Bureau of Prisons. The

President’s assertion of executive privilege precludes me from explaining what information the Department provided the White House. The President has indicated,

however, in a recent letter that he was aware of the FBI’s views. With respect to

the Bureau of Prisons, that part of the Department does not take positions on clemency matters, at least in the vast majority of cases. BOP considers itself the ‘‘keeper

of the keys’’ of the federal prison system and its most senior officials have made it

clear that they do not want to be in the position of recommending which of the inmates they are supposed to be keeping in custody are to be released early. That is

not to say that in an appropriate case I would not ask BOP for an opinion, but it

would typically be in a case where clemency might be considered on the grounds

that the inmate had done something extraordinary while in prison—for example

saving the life of a BOP employee during a riot. But in the vast majority of cases,

there is no need for BOP’s input, beyond its furnishing of the inmate’s prison

progress reports which detail such matters as disciplinary incidents and escape attempts, all of which are invariably reflected in any report my office prepares for the

Deputy Attorney General to send to the White House. So, while there have indeed

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ency, and that may well be the personal view of various BOP employees, in accordance with its preference for not making recommendations in commutation cases,

BOP’s leadership never informed my office of its views.

I hope the foregoing has given the Committee some understanding of the work

of the Office of the Pardon Attorney, and to the extent possible, what my Office did

in the Puerto Rican cases. That concludes my statement, Mr. Chairman, and, so far

as I may do so consistent with the President’s assertion of executive privilege, I

would be pleased to try to answer questions.

The CHAIRMAN. Thank you. We will put both your full statements in the record.

Let me turn to the ranking member for any statement he would

care to make at this point.

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR

FROM THE STATE OF VERMONT

Senator LEAHY. Thank you very much, Mr. Chairman, and, General Holder and Mr. Adams, thank you for your statements.

As the committee knows, I did not agree with the President’s recent clemency decision, but I do recognize that it is his decision to

make, as it is always the decision of any President to grant clemency. When I was State’s attorney for Chittenden County in Vermont, I didn’t always agree with the Governor of Vermont when he

or she used the clemency power. But I understood that it was

theirs to exercise as they saw fit, even if it was on cases I had prosecuted.

There were numerous exercises of this constitutional power by

the Republican and Democratic Presidents with whom I have

served in the past 25 years. President Carter used his power more

than 560 times, President Reagan more than 400 times, President

Bush more than 75 times. And they have not always been instances with which I have agreed with any of those Presidents.

Now, this is the committee’s second hearing on the President’s

decision to offer clemency to 16 defendants who had served time or

were serving time for crimes they committed regarding Puerto

Rican independence, and I am sure that we will hear some rhetoric, as we have already, about how the grants of clemency to these

defendants suggest the administration is soft on crime and has coddled terrorists.

Well, one can disagree, as I do, with the exercise of clemency, but

still reject that kind of hyperbole. The President has granted a significantly lower percentage of clemency requests than any of his

predecessors. The calculations I have is that President Clinton has

granted 2.7 percent of the requests he has acted upon; President

Bush granted 4.2 percent; President Reagan granted 12.6 percent;

President Carter, 21.6 percent; President Ford, 31.2 percent; and

President Nixon, 26.2 percent.

Earlier this week the FBI released its 1998 crime statistics report, some very good news. Serious violent and property crimes

have dropped for the seventh year in a row. I have not seen that

certainly in my adult life when anything comparable has happened.

It shows the lowest national crime rate since 1985. The violent

crime rate alone is 21 percent lower than the 1994 rate, 15 percent

lower than the 1989 rate. I mention this because the administration can take credit for doing a lot of things to bring down our violent crime rate. The kind of trends that had been going up in our

106

communities and plagued our States and our communities for decades have been reversed.

We are having our second hearing. A number of hearings have

been held on this, and that is legitimate. But I would also hope

that we would go on and get some of our other work done before

we go out this year.

We saw the original S.J. Res. 33, the Lott-Coverdell resolution,

condemning the clemency decision. The original one was flawed

with the language, and I have cautioned a lot of people before, especially if it is the Senate or the Congress, when we start bandying

about declarations that accuse the U.S. Government of making deplorable concessions to terrorists or undermining national security

or emboldening domestic and international terrorists, to be careful

what they say. Extreme sports might be fine in the recreational

field, but their political equivalent has no responsible place in the

halls of government. If you strap on a political bungee cord to play

reckless games like this, accusing the President of undermining national security or emboldening terrorists, I think it carries a very

significant risk and we may end up getting what we wish for, and

none of us would want that. It is irresponsible. It is wrong. And

I am glad that cooler minds prevailed and the over-reaching and

inflammatory rhetoric was removed and that we had a resolution

that could pass unanimously.

I would like to see us working, if we are going to be doing things

in the House and the Senate, for example—I mean, the House

passed their resolution, we passed ours, and then we kind of ignored them after that, didn’t try to work out the difference in language. If we are going to work out differences in language, let’s

work out the Hatch-Leahy juvenile justice bill that passed the Senate in May almost 3 to 1, and the House also passed a juvenile justice bill. We ought to be working out the differences between those.

We held one meeting of the conference. I believe that was in August, the first part of August—August 5, in fact. We wanted to finish this up before children went to school. Well, it has been more

than 2 months that they have been in school, 6 months since the

Columbine High School tragedy. We ought to get on to that. We

ought to get on to some of these long-delayed nominations.

Now, I will note an area in which I am troubled. I am troubled

by the fact that victims of the criminal activity engaged in by the

FALN and by the 16 prisoners offered clemency apparently were

not consulted during the pendency of the clemency petition. And I

think that is wrong. I think victims should be consulted.

When I was privileged to serve as a prosecutor, I had the good

fortune to work alongside a number of extremely dedicated State

and local police officers, and these are public servants that literally

put their lives on the line every day to protect the rest of us. Their

responsibilities require split-second judgment and dedication and

timing, a lot of guts.

Now, members of law enforcement and their families also suffered as victims of these bombings attributed to the FALN, to make

the matters even more difficult. I think victims should be consulted

in such things. They should at least be heard.

I wrote to the Attorney General last month. I asked her whether

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spect to the clemency offers and whether there are procedures and

policies in place to ensure that the rights of crime victims are respected in the clemency process. And Department officials assured

me that the impact of a crime on a victim is important in considering a petition for executive clemency, but they acknowledged, ‘‘The

Department’s clemency regulations do not presently require victim

notification before a clemency recommendation is made.’’

Well, we all have to appreciate that even if the Department’s

clemency regulations were perfected to require victim notification,

this President and any other President would remain free to grant

clemency outside the regular process, as President Ford did when

he pardoned President Nixon by proclamation and President Bush

did when he pardoned six persons in the Iran-Contra matter by

proclamation. But I still feel victims ought to be allowed to be

heard during the process. We should examine the legal requirements in current law about notifying victims of crimes of changes

in the status of offenders due to clemency petitions. The Victims’

Rights and Restitution Act of 1990, 42 U.S.C. 10607(b)(5) and (8),

requires a responsible official to provide the victim with the earliest possible notice of any other form of release from custody of the

offender and general information regarding the corrections process,

including information about work release, furlough, probation, and

eligibility for each. Executive clemency is not noticed in that statute as triggering a duty to notify a victim.

Mr. Chairman, I would like to work with you and with the Department of Justice on this. I think we ought to find some way that

we may be able to alert victims of the pendency of clemency petitions.

Again, I understand any President, just as a Governor in a State,

has a right to grant clemency. I may well disagree with that exercise, as I do here. But I cannot help but think in most of these

clemency matters that if victims were heard, too, it would help.

And whoever the President is, just as with Governors, whoever the

Governor might be, they would have a better idea of what is involved. I don’t think there should be—just as I don’t think there

should be sentencing hearings without hearing from the victims, I

don’t think there should be clemency hearings without hearing

from them.

I will put my whole statement in the record, Mr. Chairman.

[The prepared statement of Senator Leahy follows:]

PREPARED STATEMENT OF SENATOR PATRICK J. LEAHY

I did not agree with the President’s recent clemency decision, but I recognize that

it is his decision to make. When I was State’s Attorney for Chittenden County, I

did not always agree when the Governor of Vermont used his clemency power, but

I understood that it was his to exercise as he saw fit. There were numerous exercises of this constitutional power by the Republican and Democratic presidents with

whom I have served over the last 25 years: President Carter used this power more

than 560 times, President Reagan more than 400 times and President Bush more

than 75 times—and they have not always been instances with which I necessarily

agreed.

This is the Committee’s second hearing on the President’s decision to offer clemency to 16 defendants who had served or were serving time for crimes they committed purportedly for the cause of Puerto Rican independence. I am sure we will hear

repeated today strong rhetoric about how the grants of clemency to these defendants

suggests that this administration is soft on crime and has coddled terrorists. One

can disagree with the President’s clemency decision and still reject such hyperbole.

108

This president has granted a significantly lower percentage of clemency requests

than any of his predecessors. In fact, by my calculations, President Clinton has

granted only 2.7 percent of the requests he has acted upon, while President Bush

granted 4.2 percent, President Reagan granted 12.6 percent, President Carter granted 21.6 percent, President Ford granted 31.2 percent, and President Nixon granted

26.2 percent.

Moreover, earlier this week, the FBI released its 1998 crime statistics report and

it is full of good news. Serious violent and property crimes have dropped for the sev- enth year in a row, showing the lowest national violent crime rate since 1985. The

violent crime rate alone is 21 percent lower than the 1994 rate and 15 percent lower

than the 1989 rate. These cold, hard facts speak for themselves: This Administration

is doing many things right to bring our violent crime rate down. Upward trends in

violent crime that have plagued our communities and our citizens for decades have

been reversed.

This Committee is holding its second hearing on this matter, following hearings

on September 14, 1999, by a subcommittee of the Foreign Relations Committee and

on September 21, 1999, by a subcommittee of the Appropriations Committee. Similarly, the House Committee on Government Reform has held a hearing on this matter. All are free to comment on the President’s clemency decisions—and to disagree

with those decisions, as I do—but the Congress also needs to focus on getting its

own work done.

While the Republican leadership is hard-pressed to find the time to deal with a

lengthening list of critical legislative issues, the Congress has spent precious time

and energy on the clemency decision, even though we have no power to change,

modify or overrule that decision. The House of Representatives and the Senate devoted much time in September to separate resolutions condemning the President’s

clemency decision.

The original version of S.J. Res. 33, the Lott-Coverdell resolution condemning the

clemency decision, was blemished by extreme and dangerous political rhetoric that

was ultimately eliminated from the final substitute, which was then adopted virtually unanimously by the Senate. I have cautioned before that we ought to be careful when anyone, let alone the Senate and Congress of the United States, starts

bandying about declarations that accuse the United States Government of making

‘‘deplorable concessions to terrorists,’’ of ‘‘undermining national security’’ or of

‘‘emboldening domestic and international terrorists.’’ Extreme sports may have a

place in the world of recreation, but their political equivalent has no responsible

place in the halls of government. Strapping on political bungee cords to play reckless games like this, accusing the President of ‘‘undermining our national security’’

or ‘‘emboldening terrorists,’’ carries significant risks and was irresponsible and

wrong. I am glad that cooler minds prevailed in the Senate and over-reaching, inflammatory rhetoric was eliminated from the text of the resolution the Senate

passed on September 14.

The House passed a different resolution, but regular legislative practice has been

ignored since no effort has been made by the leadership to take any steps to resolve

the differences in the House and Senate resolutions. Once the political points are

scored, this Congress apparently leaves the substantive expression of congressional

disapproval as unfinished business—the shells of spent political bullets.

The American people can judge whether the time and energy being devoted by

the Congress to criticizing the President’s decision in hearings and in debates on

resolutions is the best use of the our legislative resources. I challenge the Senate

to make time for votes on the important legislative matters and many qualified

nominees whom the Republican majority has stalled for the last several years. Because the Senate failed to complete work on all the appropriations bills that must

be passed before October 1, our government is currently operating under a temporary continuing resolution. The Republican Congress cannot find time to finish

work on campaign finance reform or a real patients’ bill of rights or a raise to the

minimum wage or Medicare reforms.

Moreover, we should be working hard on resolving differences between the HatchLeahy juvenile justice bill that passed the Senate in May, and the House-passed juvenile justice bill. We have held only one meeting of the conference, on August 5,

and we did not get our work done even though children have now been in school

for more than two months and six months have passed since the tragedy at Columbine High School.

Long-delayed nominees continue to languish on the Senate calendar, including

Judge Richard Paez—whose nomination to serve on the Ninth Circuit Court of Appeals has been pending for more than three-and-one-half years—and the nominations of Marsha Berzon to be a judge on the Ninth Circuit, Bill Lann Lee to head

the Civil Rights Division, and scores of other nominees pending before the Senate.

109

These are weighty legislative responsibilities on which we should be focusing our

attention.

On a final note, I remain troubled by the fact that victims of the criminal activity

engaged in by the FALN and by the 16 prisoners offered clemency apparently were

not consulted during the pendency of the clemency petitions. When I was privileged

to serve as Chittenden County’s prosecutor, I had the good fortune to work alongside a number of dedicated State and local officers. These public servants literally

put their lives on the line each day to protect all of us. Their responsibilities require

split-second judgment, dedication, timing, and guts. That members of law enforcement and their families also suffered as victims of bombings attributed to the FALN

makes these matters even more difficult.

I wrote to the Attorney General last month and asked her whether the views of

any victims of FALN violence were considered with respect to the clemency offers,

and whether there are procedures and policies in place to ensure that the rights of

crime victims are respected in the clemency process. Department officials assured

me that the impact of a crime on a victim is important in considering a petition

for executive clemency, but they acknowledged that the ‘‘Department’s clemency regulations do not presently require victim notification before a clemency recommendation is made.’’

We all must appreciate that even if the Department’s clemency regulations were

perfected to require victim notification, this president and any other president

would remain free to grant clemency outside the regular process, as President Ford

did when he pardoned President Nixon by proclamation and President Bush did

when he pardoned six persons in the Iran-Contra matter by proclamation.

We should examine the legal requirements in current law on notifying victims of

crime of changes in the status of offenders due to clemency petitions. The Victims’

Rights and Restitution Act of 1990, 42 U.S.C. § 10607(b)(5) & (8), requires a ‘‘responsible official’’ to provide the victim with ‘‘the earliest possible notice of * * * any

other form of release from custody of the offender’’ and ‘‘general information regarding the corrections process, including information about work release, furlough, probation and eligibility for each.’’ Executive clemency decisions are not specified in the

statute as triggering a duty to notify a victim.

I would like to work with the Chairman and the Department of Justice on constructive steps we may be able to take to alert victims of the pendency of clemency

petitions. Achieving this would ensure that this hearing is not just a political exercise but a substantive one as well.

The CHAIRMAN. Thank you, Senator Leahy.

In your opening statements, you apparently extend sympathy to

the victims and their families, yet neither you nor anybody else, to

my knowledge, involved in the clemency review process saw fit to

seek the input of those people, the victims themselves, in determining whether or not clemency was justified.

Would you agree with the victims, then, that it was a mistake

not to involve the victims and their families in the clemency review

process?

Mr. HOLDER. Well, I think that generally we do a good job in getting victim input, notifying victims when pardons and clemency decisions are being made. I think we could have done a better job

here. I think we could do a better job generally.

The CHAIRMAN. You didn’t do anything here. You didn’t do anything here, according to the records I have.

Mr. HOLDER. Well, we——

The CHAIRMAN. You didn’t even talk to the victims.

Mr. HOLDER. What we generally do is we seek to interact with

the victims through the U.S. attorneys.

The CHAIRMAN. But I am not talking about generally. I am talking about what you did in this case. You didn’t even talk to them.

You didn’t even go to the victims. You didn’t ask them for their advice. You didn’t give them any input at all. They are up in arms

about this, and I don’t blame them. And I don’t think my Democrat

colleague blames them, either.

110

Mr. ADAMS. Mr. Chairman, could I offer an observation?

The CHAIRMAN. Sure.

Mr. ADAMS. There was discussion between the Office of the Pardon Attorney and the U.S. Attorney’s Office in Chicago about contacting victims. I think, too, when we are——

The CHAIRMAN. What took place in that discussion?

Mr. ADAMS. I am not at liberty to discuss——

The CHAIRMAN. You can’t tell us whether or not you—you asked

the U.S. attorney whether you could talk to victims or you didn’t

ask him?

Mr. ADAMS. The U.S. attorney contacted the Office of the Pardon

Attorney and asked—and discussed about talking with victims.

The CHAIRMAN. They asked you to talk to victims, right?

Mr. ADAMS. He indicated that he would like to talk to victims.

That is right.

The CHAIRMAN. Well, what did you say?

Mr. ADAMS. I said it was fine, he could go ahead and talk to

them.

The CHAIRMAN. Did he?

Mr. ADAMS. That is covered by the President’s assertion of privilege.

The CHAIRMAN. Did he ask you to talk to victims, the U.S. attorney? Did anybody ask you to talk to victims? Did anybody in your

office talk to victims?

Mr. ADAMS. My office is a very small office, Senator.

The CHAIRMAN. Fine.

Mr. ADAMS. We rely on U.S. attorneys to provide us the views

of victims.

The CHAIRMAN. And you told the U.S. attorney to go ahead and

talk to victims?

Mr. ADAMS. Yes.

The CHAIRMAN. And that very same U.S. attorney said that he

recommended against clemency after doing so, I guess. Is that

right? Right or wrong?

Mr. ADAMS. The President has acknowledged that the U.S. attorneys opposed clemency, yes.

The CHAIRMAN. The President had knowledge that the U.S. attorney opposed clemency.

Mr. ADAMS. He has acknowledged that they opposed——

The CHAIRMAN. So if anybody talked to victims, it was that U.S.

attorney, and he recommended against clemency, right?

Mr. ADAMS. The President has acknowledged that he did, yes.

The CHAIRMAN. Well, another generally recognized criterion for

granting clemency is to reward the prisoner for cooperation with

law enforcement agencies by giving information related to other investigations. Now, there are several investigations that could possibly benefit from information known to a number of these FALN

prisoners, not the least of which is the Fraunces Tavern bombing

in New York City which killed four people and maimed several others, a number of police people at that.

Another example is the whereabouts of several fugitives, including one current member of the FBI’s 10 Most Wanted List.

Now, Mr. Holder or Mr. Adams, or both, did anyone from the Department of Justice seek any information from the FALN prisoners

111

concerning these or any other ongoing investigations before these

releases? If so, tell us about it. If not, why didn’t they?

Mr. HOLDER. Well, as you indicate, Mr. Chairman, there are a

variety of reasons for which clemency, commutation of sentences

should be considered or can be considered by the President. This

is an exclusive power of the President.

The CHAIRMAN. No, I acknowledge all that. There are a variety

of reasons. My question goes beyond that. That is, did you try to

obtain information before you granted clemency concerning these

fugitives and these other matters that will help us to put some of

these problems to bed with the FALN?

Mr. HOLDER. To my knowledge, those kinds of requests were not

made to these prisoners.

The CHAIRMAN. In other words, nobody even talked to these fellows or these FALN prisoners about fugitives like Gerena and others who are still at large? Nobody asked them if they had any information, nobody asked them to cooperate, nobody asked them to

help enlighten us in these areas?

Mr. HOLDER. As I indicated, I don’t think that happened. But as

I also indicated, the President’s power to commute sentences can

take into account a variety of things.

The CHAIRMAN. He doesn’t have to consider that. The question—

the problem that I am having is that he should have considered it,

and law enforcement people, one of the first things, it seems to me,

law enforcement people ought to be interested in, and certainly the

Department of Justice, ought to be trying to get to the bottom of

fugitives who were part of this seditious conspiracy that these people were convicted of. And you are saying nobody even asked a

question about that.

Mr. HOLDER. Well, I mean, I think, you know, being realistic

here, these are people who——

The CHAIRMAN. I am being realistic, Mr. Holder.

Mr. HOLDER. Well, I am——

The CHAIRMAN. You are a former prosecutor. I mean, don’t you

want to get to the bottom of these things?

Mr. HOLDER. Sure.

The CHAIRMAN. Well, then why weren’t the questions asked?

Mr. HOLDER. Because it seems to me you are talking about a

group of people who did not recognize in the first instance the right

of the American Government to even——

The CHAIRMAN. What has that got to do with it? The point is——

Mr. HOLDER. I am saying, Mr. Chairman——

The CHAIRMAN [continuing]. If they are going to be given clemency, why don’t we ask them to help us to get other people who

are fugitives? At least they should be asked. I doubt that they were

going to cooperate. But then, again, that might have some bearing

on whether or not clemency should have been extended.

Mr. HOLDER. As I said, the power of the President is absolute in

these areas and can take into consideration a variety of things. The

President has indicated that on the basis of what he terms ‘‘equity

and fairness,’’ he thought that the extension of the commutation

here was appropriate, understanding that there were people who

would disagree with his decision.

112

The CHAIRMAN. Well, this FALN member, Gerena, is on the

FBI’s 10 Most Wanted fugitive list—the 10 Most Wanted List, let

alone fugitive. Doesn’t it seem logical to you that before you give

clemency to people like this who have been convicted of seditious

conspiracy and of all these other matters involving terrorism, that

the least law enforcement people should do is ask them to cooperate in finding one of the 10 most wanted people on the FBI’s list?

Mr. HOLDER. Well, again, it is for the President to decide——

The CHAIRMAN. No, it isn’t. It is for the Justice Department to

make this determination whether they ask these people these

things.

Mr. HOLDER. Well, no, that is not—I respectfully disagree. It is

for the President to decide exactly what he is or is not going to consider in making that determination.

The CHAIRMAN. You are saying the President just didn’t ask you

to do that, you didn’t think of doing it, or you decided not to do

it, even though you had every right to do that, to ask for cooperation by these FALN members in finding Gerena, to just give one

illustration, who is on the FBI’s 10 Most Wanted List.

Mr. HOLDER. I mean, there are a variety of things that can be

done in any pardon decision, in any commutation decision. Again,

I come back to the fact, however, that it is up to the President to

decide those things that are relevant in his decisionmaking process.

The CHAIRMAN. But, Mr. Holder, wouldn’t it have helped the

President for you to say that you can condition clemency—we recommend you condition clemency on cooperation by these people in

helping us to find one of the 10 Most Wanted criminals in the

United States on the FBI’s list, and others as well? But I just center on Gerena because that is so noticeable. Isn’t that the Justice

Department’s job to help the President to make these decisions?

Mr. HOLDER. That is generally not the way the process works. I

mean, we don’t suggest to the President things that he ought to

consider in making the pardon or commutation decisions.

The CHAIRMAN. Well, let me ask it a different way. Don’t you

think it would have been important for you and members of the

Justice Department, whoever they may have been, whether Mr.

Adams or whoever was in the Pardon Office, to have said to the

President, before you grant clemency, let’s at least try to get some

of these criminals located, let’s at least try to get to the bottom of

some of this criminal activity, let’s at least ask some questions of

these people, let’s condition clemency on whether or not they cooperate with us or whether or not we believe they are telling the

truth?

Don’t you think that would have been a wise thing to do?

Mr. HOLDER. I don’t know. I mean, the President exercised his

power here and made these pardons conditional on the renunciation of violence. He put into the conditional aspects of the

commutations those things that he considered appropriate. And it

is not my position, it seems to me, to disagree with that.

The CHAIRMAN. Well, as Senator Leahy said, while we cannot

change the decision, hopefully we can help reform the process. You

know, I would like to give the Department a greater voice, especially to victims, give victims a greater voice in this process than

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ency applicants—and none of these people applied for clemency.

That is right, isn’t it? They didn’t apply for clemency.

Mr. HOLDER. Well, clemency petitions were filed on their behalf

by their attorney.

The CHAIRMAN. OK. But don’t you think we should get the Justice Department to do more to get the applicants for clemency to

cooperate and provide information on open cases like fugitives?

Don’t you think that would be just a good process for the law enforcement people in this country? If Gerena is a dangerous criminal

and he is listed as one of the 10 most wanted criminals in the

United States by the FBI, don’t you think it is incumbent upon law

enforcement people, before they grant clemency, to get to the bottom of whatever they can with those to whom they are going to

give this tremendous honor?

Mr. HOLDER. The Constitution defines exactly what the President has got to do in terms of the exercise of that authority. And

it is pretty unlimited. There are a variety of things, I think, that

we could talk about as to what a President should hypothetically

do. The Constitution, however, is pretty clear that the President’s

authority in this regard is, as I said, pretty unrestricted. And any

President can take into consideration a whole variety of factors in

making those kinds of decisions.

The CHAIRMAN. I don’t want to beat this to death, Mr. Holder,

but you seem to be blaming the President for making this decision.

Mr. HOLDER. No, I am not blaming the President at all. Not at

all. No, I am not doing that. Please do not take my remarks that

way.

The CHAIRMAN. Well, I am blaming him. But I am also blaming

you for not doing the minimum that any law—not necessarily you,

but the Justice Department for not doing the very minimum that

seems to me law enforcement would demand, and that is, ask questions of these people before you let them out of jail. These people

are considered by their conviction terrorists. And there are people

at large whom they might have helped to locate for us so that we

could knock one more off the 10 Most Wanted List of the FBI.

When I met the Attorney General a few weeks ago, she told me

that the Department made a recommendation to the White House

concerning clemency in December 1996. You are aware of that.

Mr. HOLDER. Yes.

The CHAIRMAN. More recently, the Department produced to the

committee a letter from the then Pardon Attorney Margaret Love

which indicates that her recommendation, the recommendation of

the Pardon Attorney at that time, was to deny clemency. That is

right, isn’t it?

Mr. HOLDER. The letter—I am not exactly sure how the letter

was produced. Letters should not have been produced. It seems to

me that the information contained in that letter is clearly within

the bounds of executive privilege.

The CHAIRMAN. Seriously?

Mr. HOLDER. Excuse me?

The CHAIRMAN. Seriously? You really believe that?

Mr. HOLDER. Oh, absolutely.

The CHAIRMAN. Well, we have a copy of the letter, and you are

aware that she recommended against clemency.

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Mr. HOLDER. I really would not comment on what recommendations were made by the Pardon Attorney. As I said, I think that

falls well within the bounds of executive privilege.

The CHAIRMAN. Well, let me take a second here. I don’t mean to

beat this to death.

[Pause.]

Senator SESSIONS. Do you have it there? Mr. Chairman, I have

it if you don’t.

The CHAIRMAN. Why don’t you read it?

Senator SESSIONS. July 25, 1997, from Margaret Love, Pardon

Attorney, to Mr. Ruff. She said, ‘‘On December 16, 1996, a report

recommending denial of clemency for 17 Puerto Rican prisoners

was forwarded to you.’’

The CHAIRMAN. That is what the letter says. It is stamped July

25, 1997, by the Justice Department, but it was dated—well, it

isn’t dated. It just said, ‘‘Dear Mr. Ruff: On December 16, 1996, a

report recommending denial of clemency for 17 Puerto Rican prisoners was forwarded to you.’’ It even goes further. It says, ‘‘Since

that time, the Department of Justice received a letter from former

President Jimmy Carter supporting commutation of sentence for

these prisoners. As you know, President Carter granted commutation of sentence to a number of Puerto Rican Nationalists during

his term of office. We thought you might wish to consider his letter

in connection with your deliberations on this matter, and are therefore enclosing a copy of it.’’

In other words, they even gave the letter of President Carter,

former President Carter, but did not change the opinion. You are

aware of that letter?

Mr. HOLDER. Well, as I said, with regard to—we have indicated

that, in fact, a recommendation was made in December 1996. We

have never said and I don’t think it is appropriate for us to indicate

what—even though this letter does now exist, to say what the recommendation was from the Pardon Attorney.

The CHAIRMAN. I didn’t realize there was a vote on. Perhaps I

wouldn’t have taken so long. Let me turn to you, Senator Leahy.

I have some more questions, but I will ask them later.

Senator LEAHY. Mr. Chairman, one, I agree with Mr. Holder that

this would be a matter of executive privilege, and let me say this:

I have made some recommendations of making sure that victims

can be heard in clemency procedures. I have an enormous amount

of respect for the office and how it is handled on clemency matters.

Mr. Adams is a distinguished professional who served here in various administrations and is certainly of a non-political background

and works as a professional, and I think any administration, Republican or Democrat, should be happy to have him. And, Mr.

Holder, you know of my high regard for you.

Even if we——

The CHAIRMAN. Could I interrupt you for one second? I am going

to go vote. Senator Leahy will finish, and if he wants more time,

we will give him more. Then Senator Grassley has already voted,

so we will turn to him next, and he will continue.

Senator LEAHY. I think no matter what you say, though, on all

these procedures, the fact is a President doesn’t have to pay any

attention to them. Is that correct?

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Mr. HOLDER. That is correct, Senator. As I said, the Constitution

defines what the power of the President is.

Senator LEAHY. And I say this because we have had—on this

committee alone, we have presently or in the past six different

members who have run for the Presidency, two currently running

for the Presidency, four others who did run for the Presidency, of

those who are serving right now. Since I have been here, this

seems to be—you know, they talk about babe magnets. I guess this

is Presidential magnets. I have had about 10 different people I

have served with on this committee that have run for the Presidency at one time or another. I will take a Sherman-esque position

right now. I will never be one of those.

But the fact is, whoever is President—and I would say we should

know this on this committee, especially. Whoever is President can

ignore any recommendation and grant clemency. Certainly President Ford didn’t have a clemency board on President Nixon’s pardon. President Bush didn’t on the Iran-Contra people. And, again,

while I may disagree with the President’s pardon, as I do in the

FALN, no matter what procedures we put in, the bottom line is a

President can ignore them. Is that correct?

Mr. HOLDER. That is correct.

Senator LEAHY. And I have a number of questions. If I do not

come back, I will submit them for the record. I am told we have

about 12 seconds left on this vote. I would like to maintain a record

of voting, so I am going to go. But as I have said before, I would

hope whatever disagreements people may have with the President’s

decision, let’s not take it out on either one of the two of you. You

are both professionals who serve this Nation very well. I just wanted that on the record.

Thank you.

Senator GRASSLEY. [Presiding.] Thank you. I have voted, so I will

stay and ask some questions. I suppose either one could answer,

but I would direct, first of all, to Mr. Holder.

The President offered conditional clemency to the Puerto Rican

terrorists. If the terrorists are later found to be in violation of any

of these conditions, is it your view that clemency can be revoked?

And if not, is there any mechanism for enforcing compliance with

the conditions?

Mr. HOLDER. I think that there are—the executive branch does

maintain or does have the power if the conditions were not met to

essentially yank them off the street and throw them back in jail.

Senator GRASSLEY. So then the normal process of arresting people who violate a policy would be the mechanism for doing that?

Mr. HOLDER. Yes, I mean, I meant—you know, I didn’t mean to

be flip there. Obviously there have to be procedural things that one

would have to go through. They would be afforded due process.

Senator GRASSLEY. Due process, yes.

Mr. ADAMS. Could I interject something, Senator Grassley?

Senator GRASSLEY. Yes, you may do that. Go ahead.

Mr. ADAMS. The conditions that they have to follow or that they

fulfill a condition, if they don’t fulfill the conditions, any of the conditions of mandatory release or if they commit another crime, then

the first thing that would happen would be their mandatory release—there would be a hearing for the purpose of revoking their

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mandatory release by the Parole Commission. That would provide

a mechanism for their arrest and their incarceration.

Senator GRASSLEY. OK.

Mr. ADAMS. What would happen then, assuming that the Parole

Commission at a hearing found that there was reason to believe

that they had committed another crime or had violated a condition

of mandatory release, and that the violation was so serious that

they should be reincarcerated, they would be reincarcerated for the

remainder of their sentence as commuted by the President. But the

commutation warrant specifically provides that if they violate any

of the conditions, the conditions of mandatory release or if they

commit another crime, that they can be reincarcerated for the entire length of their original sentences, which ranged in most cases

from 35 to 90 years.

So the mechanism to do that is—that has rarely been done, and

the mechanism to do that is imperfect, but there is the ability in

place for the President—this President or a future President—to

say I find that individual whose sentence was commuted has violated the conditions of the commutation and he is incarcerated for

the entire length of the sentence as originally imposed.

Senator GRASSLEY. Mr. Holder, have any of the conditions set by

the President been changed or modified? Are there any plans to

modify or delete any conditions?

Mr. HOLDER. No, Senator, not to my knowledge. The conditions

have all been set out. They have been explained to the prisoners

before they were released, and they would remain in effect.

Senator GRASSLEY. At a prior hearing, I asked whether the victims thought it would be a good idea to require the President to

consult with victims prior to granting clemency. Would you, Mr.

Holder, support doing this? The President, of course, could still

grant clemency to anyone, even terrorists, but he would be required

to consult with the victims first.

Mr. HOLDER. I think that we do a pretty good job in consulting

with victims, but I think that we can do a better job. And I think

we ought to think about ways in which we can put mechanisms in

place so that the Justice Department—and I say the Justice Department as opposed to the Office of the Pardon Attorney—makes

contact with victims and makes that perhaps a part of our recommendation.

I wouldn’t want to put it all on the Office of the Pardon Attorney.

They have a rather small staff. And given the volume of cases that

they work with, I would want to exactly think about what mechanism we might use to do a better job of getting in touch with victims.

Senator GRASSLEY. I think this would be appropriate for you, Mr.

Adams, as a follow-up on this, and it is also a point that Senator

Hatch made earlier regarding the role of victims in the pardon

process generally and in this case particularly. Both of you have indicated that victims are generally involved and that victims were

somewhat involved in this case. But we got some information provided to us by you, Mr. Adams. You indicate that victims were not

involved in this case, and generally speaking, it would cause a big

change in the way things are evidently handled.

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We have a communication from you August 23, 1999, to Mr.

Jamie Orenstein that says along this line that, ‘‘Any requirement,

either a constitutional amendment that actually makes it to enactment or revision of our regulations that requires us to consult, even

perfunctorily, with victims, will cause a big change in the way we

operate. My preference would be to wait for a while and see how

likely Congress is to actually pass a resolution or whatever is required to begin the process to amend the Constitution before we

race forward and offer to adopt.’’ So that signals to me maybe you

have some question about the consulting of victims.

Mr. ADAMS. I think what it signifies to me, Senator Grassley, is

the sort of parochial concern of my office, as the Deputy Attorney

General just alluded to. We have a pretty small staff. I have six

attorneys, counting myself. What I was referring to in that memo

to Mr. Orenstein, who is a member of Mr. Holder’s staff—they were

considering the victims’ rights amendment and the position the Department should take on that. I was merely expressing the view

that if the procedures were changed to require my office to reach

out to victims in any large number of cases that that would certainly—it would, as I think you just said, and I don’t have the

memo in front of me. I think you said that I said it would cause

a change in the way we operate. It would certainly cause a change

in the way my office operates. Now——

Senator GRASSLEY. You both are saying you would need a lot

more staff.

Mr. ADAMS. If the burden were to be put on the Office of the Pardon Attorney, yes, sir, we certainly would.

I think as Mr. Holder indicated, though, there may well be ways

to do that without putting the burden on the Office of the Pardon

Attorney.

Senator GRASSLEY. I thank you for answering my questions, and

I think, Senator Thurmond, Senator Hatch is over for a vote now,

and if you are ready to ask questions, I think it would be appropriate to do that. Otherwise, we are going to have to have a momentary lull here.

Senator THURMOND. I have a statement first I would like to

make.

Senator GRASSLEY. And I am going to have to excuse myself to

go to the Finance Committee, so you are in charge now.

Senator THURMOND. Make sure you come back. [Laughter.]

Senator GRASSLEY. Mr. Hatch will be back in just a few minutes.

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR

FROM THE STATE OF SOUTH CAROLINA

Senator THURMOND. I am pleased that we are holding this hearing today regarding the President’s decision to commute the prison

terms of members of the FALN, a militant group that has killed

and maimed innocent civilians and police officers during its reign

of terror.

The individuals granted clemency were active participants in

many serious crimes such as weapons and bomb offenses and

armed robbery as part of their overall terrorist activities. They attempted to wage war on our Nation. They were convicted of seditious conspiracy, which involves attempting to destroy by force the

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Government of the United States. Crimes such as this go to the

heart of our Nation.

The purpose of this hearing is to permit us to get a better understanding of the clemency process and how it resulted in the release

of these terrorists. Although the President has the absolute power

to grant clemency, this committee has an important oversight role

over the clemency process.

These commutations did not have the support of law enforcement. It appears that these criminals were not required to assist

law enforcement in ongoing investigations of the FALN or other

criminal activity. Indeed, such investigations are one reason the

committee has been denied some information.

Contrary to what we have heard, it is clear that the sentences

these terrorists received were not unduly severe, as can be seen

from the Sentencing Guidelines. If these terrorists were sentenced

today under the Guidelines, they probably would receive 30 years

to life. Parole was an option for these defendants, making them eligible for release after serving one-third of their sentences or less.

However, parole is not available today under these Guidelines.

Today, 30 years means 30 years and life means life.

These criminals should have remained in prison. Although they

eventually signed documents renouncing violence, their statements

in recent years give no indication of a change of heart. They have

never shown remorse or regret for their conduct, even to this day.

I am concerned that the release of the prisoners may only invigorate terrorism. Clearly, granting clemency here has sent the

wrong message about America’s commitment to fighting terrorism.

I welcome our witnesses here today to discuss this most serious

matter.

I have a few questions here I would like to propound if there are

no other statements to be made.

Mr. HOLDER AND MR. Adams, I understand that while the clemency petitions for the 16 FALN defendants were being considered,

Federal law enforcement maintained open investigations regarding

the FALN. Are the individuals who seek clemency normally required to cooperate with Federal law enforcement as a condition of

clemency being considered, or were the FALN members here required to cooperate?

Mr. HOLDER. Well, as I was indicating earlier, the President’s

power is absolute in this area, and the President can do a variety

of things or require a variety of things from anybody to whom he

was thinking about giving a pardon or commuting a sentence. I

would defer to Mr. Adams with regard to what the practice generally is.

Mr. ADAMS. Senator, there is no general requirement that a person seeking a commutation of sentence pledge to cooperate with

law enforcement. As to what we did to investigate these cases, as

to what information we provided to the White House, that is all

privileged, and I really can’t discuss it with you.

Senator THURMOND. Mr. Holder and Mr. Adams, Justice Department regulations indicate that the availability of other remedies

such as parole is a factor in considering clemency. It appears that

while some of the FALN members requested parole and were denied, others did not even apply. Why is the availability of parole

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an appropriate consideration for clemency? And was the availability of parole considered in the Department’s recommendations in

these cases?

Mr. ADAMS. Senator Thurmond, the reason that the availability

of parole is one factor that is considered is because going to the

President and asking him to commute a sentence is extraordinary.

It doesn’t happen very often. It is certainly a factor that a President would want to consider, whether or not the person was eligible for parole.

As for whether or not we considered that in making our report

to the President, that, too, I would have to respectfully submit, is

covered by the President’s assertion of privilege and I can’t discuss

it with you.

Senator THURMOND. Mr. Holder and Mr. Adams, as you know,

the U.S. Attorney’s Manual indicates that remorse is a factor that

is considered in whether to grant clemency. It is my understanding

that to this day the FALN members who were granted clemency

have not expressed remorse or regret for their past criminal conduct.

Why is remorse or regret an appropriate factor to consider, or did

your evaluation of the FALN members consider this issue?

Mr. ADAMS. I think, Senator, that the reason why remorse or regret is a factor is fairly obvious. It would be the type of thing that

the President would like to know in deciding whether to exercise

his very personal power of executive clemency.

Again, Senator, I can’t tell you what we said with respect to remorse or regret in any of the communications we made to the

White House because that is also covered by the President’s assertion of privilege.

Senator THURMOND. Mr. Holder and Mr. Adams, I understand

that a factor in considering clemency is undue disparity in sentencing. In this matter, it appears that under the Sentencing Guidelines, the 16 FALN members would have received 30 years to life.

For a defendant that was sentenced prior to the Guidelines, do you

normally consider what they would have received under the Guidelines? And did you consider what the FALN members would have

received if they had been convicted under the Guidelines?

Mr. HOLDER. Well, maybe with regard to regular practice, I could

let Mr. Adams handle that. We were handed, I guess, this letter

at the beginning of the proceeding. It is a letter dated October 19,

and I guess it is from somebody at the Sentencing Commission, I

guess the interim staff director at the Sentencing Commission, and

it indicates that a guideline range for these folks would range from

360 months to life.

With all due respect to the person who prepared this, it seems

to me that, you know, there are a whole variety of things that a

judge would have to consider after a contested hearing in deciding

exactly where the Guidelines fell with regard to these folks. It may

be that this determination by Mr. McGrath is, in fact, right. But

I would say that what is contained in here should not be treated

as absolutely correct.

There are a variety of things that, as I said, would have to be

considered by a sentencing judge before a determination was made.

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Mr. ADAMS. Yes, let me just amplify on that a little bit, Senator

Thurmond. With respect to the regular process, as you know, there

are very few or comparatively few old-law prisoners still in the

Federal prison system. Most of the commutation petitions that we

get in my office are from prisoners serving new-law sentences.

However, when we get a petition from prisoners serving an oldlaw sentence, the possible disparity between what the person

would get under—what the person got under old law and what he

might get under the Guidelines, that is something that we might

well consider.

Again, whether we considered it in this case, I have to respectfully state to you, Senator, is covered by the President’s assertion

of privilege, and I can’t discuss it with you.

Senator THURMOND. Mr. Holder, as you know, the United States

has had a strong policy of intolerance regarding terrorism for many

years. Are you concerned that granting clemency to the FALN terrorists in this matter sends the wrong message about America’s

commitment against terrorism?

Mr. HOLDER. No, I am not, Senator. I think that the stand that

this Government has consistently taken, under Republican and

Democratic Presidents, is one that I think the world understands,

that terrorists understand. I don’t think that anything that has

been done by this President in connection with this case has in any

way weakened our resolve to fight terrorism, and beyond that, I

think we have to keep in mind that although people might disagree

about the decision, the people who were released did serve substantial amounts of time, between 16 and 19 years. Some might say

they should have served longer, but the sentences were still substantial ones, and I think the message that we have sent to those

who might consider harming our citizens, harming our facilities

around the world, that that message is undiluted by the President’s

actions here.

Senator THURMOND. Thank you, Mr. Chairman.

The CHAIRMAN. Thank you, Senator Thurmond.

Senator would you let me just finish up what I was doing before

I turn to you?

Senator SESSIONS. Please.

The CHAIRMAN. Because I would like to be able to do that. I feel

badly I hadn’t turned to the ranking member before then.

We understand from the published reports that in the summer

of 1999 the Pardon Attorney sent a second report to the President

that did not recommend either a grant or a denial of clemency,

which, in essence—in other words, did not effectively reverse the

1996 recommendation by the then Pardon Attorney.

Now, Mr. Holder and Mr. Adams, you both drafted the 1999 report. Why was that second report prepared? Why did you prepare

that? And then did the second report contain a recommendation of

whether the President should or should not grant clemency?

Mr. HOLDER. Mr. Chairman, with respect to those questions, it

seems to me that the answers to those questions are prohibited by

the assertion of privilege that the——

The CHAIRMAN. How? Tell me. And then where in the law do you

find that? Because, first of all, you don’t—I can see where executive

privilege can be raised with regard to Mr. Ruff, who was the perVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00124 Fmt 6601 Sfmt 6601 SEPT15.TXT SJUD2 PsN: SJUD2
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sonal counsel to the President, White House counsel, in giving his

opinions. But you represent the people of this country. Now, why

is that such a question that requires an assertion of privilege?

Mr. HOLDER. Well, executive privilege has been seen to cover

substantially more than just the communications between the

counsel to the President and the President. Communications between the Justice Department and——

The CHAIRMAN. I am not asking you to tell me everything you

did. I am just asking you for a yes or no answer about whether or

not there was recommendation made at that time. Was there?

Mr. HOLDER. As I said, I respectfully do not feel I can answer

that question given the President’s assertion.

The CHAIRMAN. So you are not willing to say that you made a

recommendation of clemency or you didn’t make a recommendation

for clemency, or you just punted?

Mr. HOLDER. No, I am not punting. What we have said is that,

consistent with our regulations in December of 1996, we made a

recommendation, and that there were subsequent communications

with the White House after that recommendation. But given the

assertion of executive privilege, we do not feel that we are at liberty to discuss the specifics of those communications.

The CHAIRMAN. So we can presume then that there was no recommendation for clemency?

Mr. HOLDER. No, I don’t think you can presume that. As I say,

I just cannot answer that question. And you would be presuming

something on the basis of a non-answer.

The CHAIRMAN. Presume then that there was a recommendation

not to grant clemency?

Mr. HOLDER. Well, again, Mr. Chairman, I don’t think you

should presume anything from my answer other than what I have

said, which is that executive privilege——

The CHAIRMAN. Isn’t it true that under Justice Department

guidelines the Pardon Attorney is supposed to give a recommendation one way or the other in these matters, that that is a part of

the guidelines of the Justice Department? Right?

Mr. HOLDER. That is correct, and we complied with that regulation in December 1996.

The CHAIRMAN. Now, in your opening remarks, you answered the

question yes—or no for the 1996 report. Why not for the 1999 report? You admitted in your opening remarks—didn’t he?—yes, that

there was a recommendation. That is all I am asking you. Was

there a recommendation or was there not a recommendation in

1999?

Mr. HOLDER. Well, as I said, Mr. Chairman, we have talked

about this question, we have considered it, and we do not think

that given the assertion——

The CHAIRMAN. You don’t think the American people are entitled

to know whether or not the Pardon Attorney, who is set up within

the Department to make a recommendation to the President, obligated by departmental rules to make a recommendation, you don’t

think the American people deserve to know whether or not he

made that recommendation, and if so, what?

Mr. HOLDER. Well, the American people——

The CHAIRMAN. You think that is covered by executive privilege?

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Mr. HOLDER. The American people should rest assured that, in

fact, pursuant to our regulations, a recommendation was made to

the President in December 1996 and that there were subsequent

communications thereafter.

The CHAIRMAN. But you are unwilling to tell us whether a recommendation one way or the other was made?

Mr. HOLDER. I have to respect the assertion of executive privilege, and I don’t think, as I said, that I can go beyond that which

I have said.

The CHAIRMAN. Well, I want you to know I don’t respect it. I

don’t think there is a reason for an assertion of executive privilege

under those circumstances.

Mr. Adams, the Department produced some notes and talking

points where you appear to be counseling a Member of Congress

and an advocate for clemency in this very matter on how to respond or how to improve the chances for a favorable decision. Now,

is it the practice of the Department of Justice to provide advice to

petitioners and their advocates on how to improve the chances for

a favorable decision? And if not, why did you do it in this particular case?

Mr. ADAMS. It is definitely not the practice of the Office of the

Pardon Attorney to provide advice to petitioners on how to proceed.

I would have to see the document to which you are referring, Mr.

Chairman.

The CHAIRMAN. I am talking about these talking points that you

had written down. And here is what it said—this is a document

you provided for us, at least the Department provided for us. Are

you aware of this document?

Mr. ADAMS. I think so. If I could see it, it would help me.

The CHAIRMAN. Well, I would be glad to—could you give him a

copy of this?

Let me read it to you while we are waiting and then try and get

a copy to you, or else I will send you this one down. It says—these

were talking points for a call to Congressman Gutierrez, I believe.

‘‘Yesterday the Deputy asked me to contact your office to see where

we stood on getting such a statement.’’ In fact, let me just—do you

have a copy of that? Let me just read it from the top.

‘‘Doug Scofield, Chief of Staff for Congressman Gutierrez * * *

referred me to Enrique Fernandez.’’

‘‘Back on November 5, Deputy Attorney General Eric Holder met

with Congressman Gutierrez, and also with Congressman Serrano

and Congresswoman Vela ́zquez about commutations for the 17 persons serving federal time for various offenses that they and their

supporters describe as having been undertaken for the cause of

Puerto Rican independence. You might have been there—not sure?’’

‘‘I am the Pardon Attorney at the Department, and I was at the

meeting with Mr. Holder—and we are still working on a recommendation to send over to the White House.’’

Now, did you ever send that recommendation, a recommendation

of any kind?

Mr. ADAMS. I would have to agree with what the Deputy Attorney General said——

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The CHAIRMAN. So you are not even willing to say whether or not

you sent a recommendation without even saying what it was? Yes

or no.

Mr. ADAMS. I have to——

The CHAIRMAN. The American people are entitled to that.

Mr. ADAMS. No, Senator, I am sorry. Mr. Chairman, I am sorry.

I have to respect the President’s assertion of privilege, and I am

not allowed to discuss it.

The CHAIRMAN. Why can’t this White House just be open and

just tell the truth? I mean, my gosh, this isn’t something that is

that tough. Let me just read the rest of it.

‘‘At the November meeting, the Deputy Attorney General asked

about the fact that these persons had not applied for a commutation themselves indicated lack of repentance.’’

Let me read that again. ‘‘At the November meeting, the Deputy

Attorney General asked about the fact that these persons had not

applied for a commutation themselves indicated lack of repentance.

I think that Congressman Gutierrez in responding to this said that

we would be provided with something in writing addressing the

issue of repentance and how these persons have changed while in

prison. Actually the Congressman may have mentioned a second

time that we would be provided something in writing.’’

And then this bottom paragraph, and make sure I read it correctly. ‘‘Yesterday the Deputy asked me to contact your office’’—I

presume that is Congressman Gutierrez’s office, right?

Mr. ADAMS. Yes.

The CHAIRMAN. OK. ‘‘Yesterday the Deputy asked me to contact

your office to see where we stood on getting such a statement. We

are ready to finish up our report and recommendation fairly soon,

and would like to have the statement on repentance to include, if

it’s likely to be forthcoming anytime soon.’’

Did you do that? Did you——

Mr. ADAMS. I did write that.

The CHAIRMAN. Those were your talking points?

Mr. ADAMS. They were notes to myself for a telephone conversation that I was going to have with a member of Congressman

Gutierrez’s staff as a follow-up to a meeting that I had attended

with Congressman Gutierrez along with Deputy Attorney General

Holder.

The CHAIRMAN. Well, let me just sum up here. We have a letter

from Margaret Colgate Love, Pardon Attorney, which has a stamp

on it, July 25, 1997. ‘‘Dear Mr. Ruff: On December 16, 1996, a report recommending denial of clemency for 17 Puerto Rican prisoners was forwarded to you.’’ And then the rest of it. We will put

that in the record.

So we have a recommendation against clemency by the then Pardon Attorney. Now, we also know that, ‘‘The U.S. Attorney for the

Northern District of Illinois recommended strongly against the

commutation of sentence. Also, one of the sentencing judges of the

Northern District of Illinois was quoted in the print media as opposing clemency.’’ This was from the documents—these are from

documents that you provided or the Justice Department has provided for us.

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Then another document regarding the pardon—and I will put

these all in the record in this order. Pardon of Puerto Rican Nationalists. This is the Deputy Attorney General call to Stephen

Robinson, U.S. Attorney for the District of Connecticut. In background, it says, ‘‘The U.S. attorney strongly opposed clemency in

these cases. The sentencing judge also expressed the view that the

sentences should stand.’’

Then in another document, ‘‘Pardon of Puerto Rican Nationalists:

DAG Call to FBI Director Louis Freeh. Background: The FBI was

the investigating agency in these cases, and continues to pursue a

number of fugitives. Specifically, there is an ongoing fugitive investigation concerning Victor Gerena, a suspect in the Wells Fargo

robbery in Connecticut and a subject on the FBI’s 10 Most Wanted

List.’’

‘‘The U.S. Attorney in the Southern District of New York is still

pursuing FALN member William Morales, currently a fugitive, for

his role in the 1975 Fraunces Tavern bombing that killed four people.’’

‘‘Director Freeh testified before Congress in 1998 that the FALN

was one of the sources of domestic terrorism in the United States.’’

That is another one.

Then another one with the same heading. Let me just read one

paragraph from that, and I will put these all in the record. ‘‘The

FALN bombing at the Fraunces Tavern in New York in 1975, in

which four people were killed and 50 injured, is still under investigation. According to a May 1998 newspaper article in a New Jersey newspaper and a June 1998 article in the Houston Chronicle,

the Justice Department continues to pursue William Morales, a fugitive reportedly living in Cuba, for the bombing.’’

I will put the indictment list of violations into the record at this

point, too, which show that these people were involved in terrorism, according to this indictment.

Then I will put in an August 10, 1999, stamped matter regarding

a briefing of the U.S. attorneys on commutation of the sentences

of Puerto Rican nationalists, including a document on page 2 from

the Northern District of Illinois where ‘‘The U.S. Attorney’s Office

recommended strongly against commutation of sentence’’; and from

the District of Connecticut where, ‘‘The U.S. Attorney’s Office

strongly opposed clemency in these cases.’’ And then another one

from the Southern District of New York, and then one with the

Federal Bureau of Investigation.

I would like to put into the record the United States Sentencing

Commission information for us that makes it clear that this argument that these sentences were disproportionate is not a valid argument.

Then we will put into the record the over-hear of the conversation in Spanish of Inmate Adolfo Matos, which makes it clear, at

least in my mind, that he didn’t feel any particular remorse over

what had happened.

And then I would like to put in the Five-Year Interagency

Counterterrorism and Technology Crime Plan, Unclassified Edition, prepared by the Attorney General, which says this, among

other things, but let me just read this one paragraph: ‘‘The end of

the Cold War and subsequent fall of the Soviet Union have drasVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00128 Fmt 6601 Sfmt 6601 SEPT15.TXT SJUD2 PsN: SJUD2
125

tically reduced the political underpinnings of left-wing organizations. Puerto Rican terrorist groups, such as the Fuertas Armadas

de Liberacion Nacional Puertorriquena (FALNP) and the’’—I am

going to have to get my glasses, I can’t read—‘‘Ejercito Popular

Boricua Macheteros (EPB-Macheteros), are an exception and represent an ongoing threat. They have previously used violence in an

attempt to achieve independence for Puerto Rico. In an 11-year

span, Puerto Rican terrorists were responsible for more than 100

bombings and arsons, in both Puerto Rico and on the U.S. mainland. Factors which increase the present threat from these groups

include renewed activity by a small minority advocating Puerto

Rican statehood, the 100-year anniversary of the U.S. presence in

Puerto Rico, and the impending release from prison of members of

these groups jailed for prior violence.’’

[The letter and documents referred to are located in the appendix:]

Now, that was prepared September 1999, indicating that these

people are still dangerous and still threats and still capable of terrorism.

I have to say that I am very concerned about the failure to answer some of these questions here today, and I am very concerned

about what has happened here.

Senator THURMOND. Senator, there is a vote on.

The CHAIRMAN. I understand, Senator Thurmond. I will try and

make it. How much time is left on that vote? OK.

Let me just say this: Mr. Holder and Mr. Adams, I am very disappointed in the way this administration and you on behalf of the

administration have chosen to keep the truth from the American

people on this issue. And I am especially disheartened because I

have been more than fair with the Department and with both of

you. As you know, the committee did not rush ahead with subpoenas the moment that clemency was granted; rather, I did my best

to work with you. But the Department’s response was to deny the

committee access to witnesses and documents.

Even after an overwhelming bipartisan vote for a subpoena, I

still went out of my way to work with you by agreeing to withhold

the subpoena based on your assurances that you would produce

documents and that you would come here and answer any questions or our questions.

Now, your response to our document requests have been late, incomplete, and inadequate, and now you are refusing to respond to

perfectly fair questions that the American people have a right to

know or that they have a right to ask of their public servants.

I can’t tell you how disappointed this makes me to see this kind

of tactic from our Justice Department. I can see executive privilege

raised for Mr. Ruff and others who are directly involved with the

President in the White House and are serving the White House

themselves. Part of the problem, I realize, is the President’s decision to invoke executive privilege to prevent the public from knowing the facts, and I guess you have to abide by that since he has

directed you to abide by that. Although you yourselves have said

that you believe that you can back that up with law, I don’t think

you can.

126

I just ask: Why can’t we get straight answers from the administration? The President has the power to do this. The question is:

Should he have done it? Should you have acted differently? You

have guidelines that say that you have to give a recommendation

in these matters. We are pretty darn sure—and I don’t know anybody who would rebut this—that a recommendation really wasn’t

given by you, Mr. Adams, even though the guidelines say you must

give a recommendation.

I think the President needs to consider whether the public has

a right to know why he chose to set these terrorists free. I think

that is the least that could be done. And to me, if it is a mistake,

it is a mistake. Certainly he has gotten away with a few of those

in his day.

But the point is that we are talking about law enforcement here.

We are talking about a failure to even ask basic questions about

outstanding fugitives that the FBI lists on their 10 Most Wanted

List, and letting these people go without even making the effort to

do it.

Now, I am really concerned about it. I just don’t feel good about

what is happening here today. I don’t feel good about what happened then. I acknowledge the President’s right to do this. But I

am questioning the Justice Department and the way they have

handled it, you have handled this. And I am questioning whether

or not there shouldn’t be a tremendous tightening up down there

so that this never happens again.

That doesn’t mean the President couldn’t ignore your advice. He

could do that under the law and under the Constitution. And I

would uphold his right to do that. But the fact of the matter is that

there should have been a process followed here, and add it all up,

the most heinous thing about all this is the victims weren’t even

consulted, as this seemingly sloppy, slip-shod, ridiculous, I think

inadvisable process took place.

Now, Senator Sessions is going to come back and ask some questions, so I am going to have a short recess while I go vote, and

when he comes back, he will be given the time to ask any questions

he wants.

So, with that, we will recess until he gets back.

[Recess from 10:44 to 10:53 a.m.]

Senator SESSIONS [presiding]. I think Senator Hatch asked that

I chair the meeting and that we go on forward. I think Mr. Holder

will be here shortly. And I thought perhaps—there is Mr. Holder.

Good to see you—that I would ask a couple of questions to Mr.

Adams before we started.

Mr. Adams, was there a formal petition for clemency filed by

each and signed by each and every one of the people who were

given clemency?

Mr. ADAMS. No, Senator Sessions.

Senator SESSIONS. Is that unusual?

Mr. ADAMS. That is unusual, yes.

Senator SESSIONS. That is very unusual. I would say it is pretty

astounding to me that we have clemency given I guess through political contacts and not even a petition filed by the individuals requesting it.

127

Mr. ADAMS. There was a petition filed by their attorneys, Senator

Sessions.

Senator SESSIONS. Was it signed by the individuals?

Mr. ADAMS. No. And that, as I said, it is unusual, but it is not

unprecedented.

Mr. HOLDER. I would also take a little exception, Senator, with

all due respect, to the notion this was done through I think you

said political contacts.

Senator SESSIONS. Well, we know that Congressmen and others

were involved in contacting the White House, don’t we?

Mr. HOLDER. But I talk to Congressmen and Senators all of the

time about a variety of things. I don’t think there is anything untoward about those contacts.

Senator SESSIONS. Well, I am saying they were contacting the

Department of Justice and the White House, but the petitioners

themselves, the people who were asking to be given clemency,

didn’t even sign a petition asking for it.

Mr. HOLDER. Right. And as Mr. Adams indicated, that is unusual, but it is not unprecedented.

Senator SESSIONS. I think it is also interesting to note, and I

think this ought to be stressed because it blows out of the water,

it seems to me, and I will ask you to respond to it, doesn’t it blow

out of the water the stated spin of the White House that this, they

had served already an unusually long time?

Senator Hatch asked from the Sentencing Commission, the Commission that sets proper sentences in America, to analyze what

kind of sentence these offenders would have received had they been

sentenced subsequent to the establishment, now over a decade, of

sentencing guidelines. And they concluded that they would serve 30

years to life. That is without parole.

So, Mr. Holder, I know you questioned that that might not be exactly totally accurate. But those sentencing guidelines are pretty

specific, aren’t they?

Mr. HOLDER. Yeah, they are pretty specific. But, I mean, as you

know, Senator, from your days as a U.S. attorney, I mean, there

is a whole process that you have to go through before a judge ultimately decides in what range a particular person will end up. And

we have some pretty contested hearings in that regard.

Senator SESSIONS. Well, you do. But in my opinion, and based on

this report, I think there is no doubt that under present law, these

defendants would have received substantially longer sentences

than they have served before they were released. And I think 30

years to life, and that is without parole, indicates that this spin

that these people have served too long a period of time is bogus,

fraudulent and a sham. That is just my 2 cents’ worth. I know you

disagree with it.

Let me mention this to you. You noted, Mr. Holder, that nothing

done by this pardon would weaken our effort against terrorists. Are

you familiar with Attorney General Janet Reno? She is your boss,

I assume.

Mr. HOLDER. I see her pretty frequently.

Senator SESSIONS. Are you familiar with the 5-year Interagency

Counterterrorism and Technology Plan produced September, last

month, of 1999? Are you familiar with that report?

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Mr. HOLDER. Yep. It was run out of my office.

Senator SESSIONS. Are you aware that it finds in there, talking

about the increased threat of terrorism, and this is quoting from

her report, your boss, ‘‘Factors which increase the present threat

from these groups include renewed activity by a small minority advocating Puerto Rican statehood—the implementing statehood, the

100-year anniversary of the U.S. presence in Puerto Rico and the

impending release from prison of members of these groups jailed

for prior violence’’?

Now, let me ask you, can we conclude anything other than that

the Attorney General herself in her report last month has concluded that releasing these people has increased the likelihood of

violence by Puerto Rican terrorists?

Mr. HOLDER. Well, I think given the terms under which these

folks were released, which is where they had to indicate that they

renounced violence, makes the report language that you cited it

seems inapplicable. We are talking about people who as a condition

of release have pledged not to engage in violence. And if they engage in violence or even if they interact with people who they

should not, they can be put back in jail.

Senator SESSIONS. Mr. Holder, I would disagree. I do not see a

clear, consistent, sustained, unequivocal renunciation of violence by

these individuals. That is one of the things that makes this such

a shocking clemency act.

But I would just say to you that the Attorney General has made

her statement after they were released, after they made this ‘‘renunciation of violence,’’ as you said, and she still said it is going

to increase the likelihood of terrorist activity. Would you disagree

with that?

Mr. HOLDER. I would not necessarily disagree with it, but I don’t

think we are talking—we are talking about apples and oranges

here. I think the fact that, and it is clearly stated. I don’t think

it is not clear. I think it is very clear that, as a condition of release,

they had to agree not to engage in violent activities, and there are

mechanisms, as I guess Mr. Adams described before, to make sure

that if they don’t live up to those agreements, those pronouncements, that they can be placed back in jail.

Senator SESSIONS. Well, anyone in prison, if you ask them not to

commit a crime if you let them go, will you promise not to commit

another crime, will say yes; wouldn’t you agree, Mr. Holder?

Mr. HOLDER. Well, two people to whom clemency, I guess, or

commutations were offered in this case did not decide to do that.

So I think you are generally right. But with regard to these folks,

at least two of the people who had the ability, if they said the right

things, to get out decided not to.

And I have to indicate also that in the time that they have been

out, these prisoners have been making a lot of contact with people

who are supervising them and asking them questions about whether or not they can meet with certain people. So it seems to me that

at least for now they are taking seriously the agreements that they

made.

Senator SESSIONS. Let me be frank with you. I am disturbed

about a lot of things about this, but I will tell you the thing that

most deeply troubles me, Mr. Adams, and both of you are involved

129

in this critically, and that is that the President has had over 3,000

requests for clemency since he has been in office. Prior to these

grants, only three had been granted.

Now, I have been a professional in the Department of Justice for

15 years prosecuting a lot of people. I have no doubt that probably

99 percent of those 3,000 were more deserving of a clemency than

these 16 terrorists.

And let me ask you this, Mr. Adams: Does it make you uncomfortable, when you have to look into a petition for clemency from

some mother and family of a young man who did something wrong

and now has got 15 years for a drug offense, and you say no to

them, and the President goes along and grants a pardon for these

people? Does that bother you?

Mr. ADAMS. All I can say to you, Senator Sessions, is we try to—

and I try to evaluate each case on its merits.

Senator SESSIONS. Well, don’t you try to be consistent? Don’t you

believe that you have a duty as a member of the Department of

Justice to try to, every person that comes before you, whether they

have got political influence or congressional friends or money or

power, but a poor person has the same chance when he comes before you as persons with influence?

Mr. ADAMS. I do try to be fair and consistent, yes.

Senator SESSIONS. And does not this trouble you that this decision was made, apparently at least over the opposition of your

predecessor, as pardon attorney?

Mr. ADAMS. All I can say to you, Senator Sessions, is that the

duty of my office is to investigate each case that comes in and write

a report on each case that comes in. The deciding authority——

Senator SESSIONS. Well, I think it is more than that, Mr. Adams.

Mr. ADAMS [continuing]. As you know, Senator, is the President.

Senator SESSIONS. I think it is more than just writing a report.

And I will tell you what I said on the floor, when this happened,

of the Senate, and right to your face and Mr. Holder’s face, what

you should have done, what Mr. Holder should have done and the

Attorney General should have done is said, ‘‘No, Mr. President.

This is not just. We cannot continue to deny pardons day after day

for more deserving persons, far more deserving persons some of

them, and at the same time you grant this. And if you do it, we

are out of here. You cannot do it, and we cannot serve in this administration or serve as your pardon attorney.’’

Did you ever think about that?

Mr. ADAMS. Are you asking would I think of resigning over this?

Senator SESSIONS. Yes.

Mr. ADAMS. I think that the only way I would consider resigning,

Senator Sessions, would be if I could conclude that I had done an

inadequate job in this case or some other case or my office had

done an inadequate job in this case or some other case. I cannot

make that conclusion. I believe that I, personally, and my staff did

a more than adequate job in this case, and we do that in other

cases, too.

Senator SESSIONS. Well, I would say technically that is correct.

I wish and believe on occasions that the leaders in the Department

of Justice just have to tell Presidents, ‘‘No, we just cannot do this.

130

You don’t understand what we are doing every day, Mr. President.

This is too bizarre. This is too unjustified.’’

And I will just finish up with this comment: Mr. Holder, you

have insisted that the President’s power in this regard is absolute.

But I would suggest that there is a power in the Congress for oversight, would you not agree?

Mr. HOLDER. Not with regard to the President’s power to grant

pardons, no. I would not agree with that.

Senator SESSIONS. Well, are you familiar with Professor Akhil

Amar and his article in the New Republic, no right-wing journal

that? Are you familiar with that article?

Mr. HOLDER. No right-wing journal, and I am familiar with

Professor——

Senator SESSIONS. This is what Professor Akhil Amar, says,

‘‘Congress has a strong claim of oversight, ‘since it is both democratically accountable and specifically tasked to watch over the Executive Branch.’’’ And I am quoting. ‘‘The argument that Congress

has no proper role in investigating suspicious pardons or grants of

clemency is constitutionally cockeyed. True, the Constitution vests

with the President alone the pardon power. But the same is true

of the powers to veto laws, to appoint Cabinet officers, to command

the armed services, to negotiate treaties and to do a great many

other things. These powers are not immune from congressional

oversight. Why should the pardon power be any different?’’

He goes on to say, ‘‘Congress surely has a legitimate role in assessing whether the Justice Department’s general system for processing pardon requests needs revamping.’’

Do you disagree with that?

Mr. HOLDER. In that regard, yeah, I think there is a legitimate

basis for this hearing, and that is to ask us questions about the

way in which the Justice Department performed. But if you ask the

more general question about whether there can be oversight of the

President, and for instance calling in the White House counsel to

ask about the way in which that person interacted with the President, I don’t think that that would be——

Senator SESSIONS. What if there were a corrupt basis for this

President’s decision? Who is going to inquire about that?

Mr. HOLDER. People in law enforcement.

Senator SESSIONS. Well, has anyone inquired about that? Have

you investigated whether or not the President had a corrupt motive

in this?

Mr. HOLDER. We don’t have any basis to start that kind of an

investigation. I have not seen any allegations in that regard.

Senator SESSIONS. Well, I would just say—I know my time is

up—that there is no, it wasn’t done because these individuals gave

cooperation; it wasn’t done because they served too much time; it

wasn’t done because the victims recommended it; it wasn’t done because the prosecutors had recommended it, they all opposed it, as

did the FBI and the Bureau of Prisons; it wasn’t done for a whole

lot of other legitimate law enforcement reasons; it wasn’t done because they had too long a sentence, if you considered it, so I do not

know what the motive is. I think we have a right to inquire about

it.

131

I think the President jeopardizes the integrity of the Department

of Justice when he leaves a record this bizarre on the table and refuses to provide a fundamental basis for his acts. And I feel strongly about it. This is one of the most disturbing hearings that I have

seen since I have been in this Congress, the most disturbing.

And I think the reasons for this action are just totally without

merit, and it is just not justified, and it undermines the rule of law

and the respect for justice. And how can young, innocent people

who—not innocent people—who really made errors of judgment, be

denied repeatedly clemencies and have these granted? It just does

not make sense to me.

Mr. HOLDER. Well, obviously, Senator, with all due respect——

Senator SESSIONS. And please respond. I have taken advantage

of my time.

Mr. HOLDER. That is fine. I would disagree with substantial

parts of what you said there.

And I can understand how people could disagree with what the

President has done here. I mean, he has indicated in his letter I

guess of September 21 to Congressman Waxman that he understands that this decision might be unpopular.

What concerns me, though, is that we ascribe some kind of improper motive to what the President has done here. Disagree with

him and disagree with him vehemently. In the absence of some

kind of specific proof, some kind of real indication that something

improper, inappropriate has occurred here, I think we should be

very careful about ascribing those kinds of motives to the President’s actions. It is something that I think we do, to be very honest

with you, we do too often here in Washington nowadays. And why

can’t we simply say that he was wrong, say it in the strongest

terms that you want, but not say necessarily that somebody was

corrupt or acting inappropriately.

The Justice Department, I believe, has acted here in an appropriate fashion. With regard to I guess what Chairman Hatch was

saying earlier, we have tried to do the best we can in turning over

substantial amounts of documents. People in the Justice Department have worked huge numbers of hours in trying to respond to

what I think are legitimate requests of this committee.

The decisions made by the people in the Pardon Attorney’s Office

I think are, in fact, honorable ones. They followed the regulations,

as they have been—as they are given to us, as they have been set

out.

Again, disagree with the decision, disagree with the way in

which perhaps we have conducted ourselves, but I think we should

be very cautious in trying to ascribe inappropriate motives to the

actions that were taken by the President or people in the Justice

Department.

Senator SESSIONS. Well, I just didn’t ascribe it. I suggested at

least people to believe that that is possible when we don’t have any

other reasonable basis for it, that I can see, and you are refusing

to tell the complete story. But I would yield.

132

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE

STATE OF ARIZONA

Senator KYL [presiding]. Thank you. Chairman Hatch asked me

to take the meeting at this point.

I think, just to conclude this point and then I want to move to

another point, that suggests to me the Department of Justice has

not done a good job in this case. But when it appears that all or

most of the recommendations from professionals were not to do

this, and the President has not seen fit to explain publicly certain

things that he has claimed privilege for, then it raises the questions, not only in Senator Sessions’ mind, but in my mind as well.

And I think that if the President is going to take an action like

this that he knows is going to be unpopular, where his motives

would be questioned, that he may need to consider that he needs

to lay everything out on the table and be able to respond to the fact

that the professional recommendations were against the action that

he took.

I would like to move over to the issue of the victims. I understand the chairman asked one brief question on this, but my understanding is that neither DOJ, generally, nor your office, Mr.

Adams, notified the victims of the various crimes that were involved in the actions for which the conspiracies were prosecuted

prior to the action that the President took in this case; is that correct?

Mr. ADAMS. There was a discussion, Senator Kyl, between my office and the U.S. Attorney’s Office in Chicago about their contacting victims. The U.S. Attorney’s Office were told they were free to

contact victims if they wanted to.

Senator KYL. Is it correct that there was no contact?

Mr. ADAMS. I can’t say that.

Senator KYL. Well, let me quote, I have a lot of records, personal

notes that were taken, ‘‘Did not contact any victims, didn’t show

any copy to any victims, don’t think USAO contacted victims, emails.’’

Who is Chris Watney?

Mr. ADAMS. She is an employee of the Public Affairs Office of the

Department.

Senator KYL. And Myron Marlin?

Mr. ADAMS. He is the director of that office.

Senator KYL. Are you aware of an August 25 e-mail from Watney

to Marlin which, among other things, says, ‘‘Also, Roger Adams

wanted me to point out to you that Reno once said that victims are

consulted in our pardon review process. This is not always true,

and it isn’t true in this case. He wanted to make sure Reno stayed

away from questions about victims.’’

Are you familiar with that e-mail or do you contest that you

made that point to Myron Marlin?

Mr. ADAMS. I don’t contest that I made that point, no.

Senator KYL. All right. Who is Jamie Orenstein?

Mr. ADAMS. Jamie Oren——

Mr. HOLDER. An attorney in the Deputy Attorney General’s Office.

Senator KYL. Do you recall, Mr. Adams, a memo sent on August

23 to Jamie Orenstein, in which, among other things, you said—

133

you are talking about the small percentage of pardons involving

victims of crime, particularly violent crimes, you said, ‘‘Any requirement, either in a constitutional amendment that actually

makes it to enactment or revision of our regulations that requires

us to consult, even perfunctorily, with victims, will cause a big

change in the way we operate.’’

I am skipping down now. You conclude by saying, ‘‘Media hostile

to the commutations will inevitably raise the fact that the Department did not consult with victims in the FALN cases.’’

Are you familiar with that memo?

Mr. ADAMS. Yes, I am.

Senator KYL. Do you contest that you wrote that?

Mr. ADAMS. No, I don’t.

Senator KYL. So ‘‘the fact that the Department did not consult

with the victims in the FALN cases.’’

Mr. ADAMS. I am still—I have sent that memo. I am still not 100

percent sure what the U.S. Attorney’s Office in Chicago——

Senator KYL. Do you have any information to suggest that anybody ever did, in the U.S. Attorney’s Office, ever did contact the

victims?

Mr. ADAMS. It was a discussion between——

Senator KYL. Do you have any evidence to suggest that anyone

ever did?

Mr. ADAMS. Other than that discussion, no.

Senator KYL. OK. And that discussion simply involved one situation in which somebody said, ‘‘You are free to do so.’’ But you also

point out that it was a fact that the Department did not consult

with the victims.

The U.S. Attorney’s Office in Chicago is part of the Department,

isn’t it?

Mr. ADAMS. Yes.

Senator KYL. Thank you.

Mr. HOLDER. Senator, we have conceded that—or I have conceded—that the Department I think, generally, as I said before,

does a pretty good job in contacting victims, but we can do a better

job and that we need to I think work on ways in which we make

sure that we contact victims as part of this process.

Senator KYL. This is a pretty big case not to contact the victims,

though, isn’t it? I mean, this is a—pretty big mistakes were made.

Mr. HOLDER. I’m sorry, pretty big?

Senator KYL. You say sometimes mistakes are made. You know,

we do a pretty good job, but we don’t always do our job. This is

a very big case for there not to be contact with victims, especially

considering all of the contacts with various groups that supported

the petition for clemency, is it not?

Mr. HOLDER. Yes. I wish that I would be in a position to tell you

that we had contacted A, B, C and D. I am not in a position to say

that. I cannot say, I don’t know exactly what kinds of contacts were

made by the various offices with the victims. But I think in this

particular case, and generally, we could have done a better job.

Senator KYL. Yes. All of the evidence I have is that there was

no contact. And if somebody will come forth and say that there

was, let me know. But all of the victims say they weren’t contacted.

So I don’t think we should leave pregnant out there the notion that

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maybe somebody was contacted. All of the suggestion is that there

was no contact.

Now, the failure of contact was not because the Department

made an explicit decision that, under the law, it should not do so

or didn’t have to do so, was it?

Mr. ADAMS. No.

Mr. HOLDER. No.

Senator KYL. In other words, it would have been better had it

been done in this case is the position that you are taking.

Mr. HOLDER. Yeah. I mean, I think, yeah, I think clearly it would

be better. It would certainly make this hearing a lot more pleasant

if we had had an ability to say that victims had been contacted.

Senator KYL. Right.

Mr. HOLDER [continuing]. Or victims had been contacted or if victims had been contacted.

Senator KYL. Let me just ask you, I am sure you have thought

about this, do you believe that under the current statutory framework, a couple of statutes involved, that somebody, either at the

Department or the Office of the President, had an obligation to contact victims?

Mr. HOLDER. As I understand it, I think that is an issue actually

being considered by our Office of Legal Counsel. I am not at all certain that under the statutes that exist right now that there is that

obligation. I do think, however, that we ought to look at the regulations that exist and maybe tinker with them so that that does become something that is, if not statutorily required, but at least

something that is required of us in the process.

Senator KYL. Would you argue that because the clemency power

is specifically a presidential constitutional power that the President

is above the law, that he would not have an obligation, notwithstanding Department policy or binding statutes on other DOJ personnel?

Mr. HOLDER. I am not sure I would characterize it as the President being above the law. But I think a President, any President,

quite frankly, is, I think, free to make pardon-commutation decisions on whatever he or she wants to make them on.

Senator KYL. Right. What I am saying is, and let me rephrase

the question, and then I will turn to Senator Specter. Off the top

of your head, would it be your legal judgment that Congress could

impose a requirement of notification in a clemency case, where we

understand the power is actually exercised by, of deciding to do it

or not, is exercised by the President, but there are statutory procedures under which the Department is involved in the process, including the clemency——

Mr. HOLDER. Again, this would be off the top of my head, but I

do not think that Congress would have an ability to do that, with

regard to how the President exercises his authority in the pardoncommutation process.

Senator KYL. So for there to be a requirement of notice in a case

like this then, it would require a constitutional amendment?

Mr. HOLDER. Well, if you want to circumscribe how the President

acts, I think that might be right. On the other hand, there are regulations that we have in place that specify how the Justice DepartVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00138 Fmt 6601 Sfmt 6601 SEPT15.TXT SJUD2 PsN: SJUD2
135

ment should do its job and how we should interact with the President.

Senator KYL. This will be my last point. Since Department regulations didn’t work in this case, and the Congress might want to

take this a little bit more seriously than the Department of Justice

did, if we adopted legislation that specifically requires notice in a

case like this by the Department of Justice, clearer than it already

is, although it is pretty clear, you would concede then that, in a

case of presidential pardon or clemency, the Department of Justice

could be required by Congress to provide that kind of notice to victims.

Mr. HOLDER. The Justice Department could be required to provide the President notice.

Senator KYL. No, victims notice.

Mr. HOLDER. Victims notice. I am not sure about that, off the top

of my head, Senator.

Senator KYL. All right. Well, then, would you please inform the

committee with your legal opinion.

Mr. HOLDER. That is fine.

Senator KYL. We are trying to do this one way or the other, by

statute or by constitutional requirement, and whatever it takes, we

want to get it done because obviously departmental procedure

didn’t work in this case.

Mr. HOLDER. That is fine. We will get back to the folks who are

I think discussing this question in the Department now and get

something back to you.

The CHAIRMAN. Thank you, Senator.

Senator Specter.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM

THE STATE OF PENNSYLVANIA

Senator SPECTER. Thank you, Mr. Chairman.

Mr. HOLDER AND MR. Adams, I am concerned about a number of

factors, but especially about the overall oversight function of the

Congress and the Senate on executive action, and I understand

that there are constitutional issues here which have some bearing.

But I note the Attorney General’s report in September 1999, where

she focuses on this issue at page 11 and says, ‘‘Puerto Rican terrorist groups such as the FALN and EPB are an exception and

present an ongoing threat.’’ That is in the discussion of terrorism.

I note further that the regulations relating to the pardoning

power of the President, 1.5 on disclosure, and I believe this would

apply to memoranda prepared by the pardon attorney, talks about

petitions, memoranda, communications, et cetera, ‘‘may be made

available for inspection, in whole or in part, when in the judgment

of the Attorney General, their disclosure is required by law or the

ends of justice.’’

Now, that suggests to me that where you have the pardon attorney functioning in an office created by statute, funded by the Congress, that you have a little different situation here with the regulations, leaving it to the Attorney General.

In your prepared statement, Mr. Holder, you make this statement, ‘‘The privilege is properly asserted. Whereas, here, the President’s need to maintain the confidential nature of presidential comVerDate 11-MAY-2000 14:50 Dec 13, 2000 Jkt 000000 PO 00000 Frm 00139 Fmt 6601 Sfmt 6601 SEPT15.TXT SJUD2 PsN: SJUD2
136

munications at Executive Branch deliberations outweighs

Congress’s needs for the information contained in executive privilege.’’

I think that what purports to be a statement of law is weighted

a little heavily in favor of the President, which I am not surprised

he would make. I think the Congress has broader authority on the

issue of executive privilege. But taking the language which you are

articulate here, you have a balancing test; confidential nature of

presidential communications and Executive Branch deliberations

outweighs Congress’s need for the information contained in privileged documents.

Now, where Congress seeks to exercise oversight over the pardoning authority, and we have a statement by the Attorney General after the commutation about these terrorist groups representing ‘‘an ongoing threat,’’ it seems to me that the kind of inquiries

which are being made here, especially by Senator Sessions, is pretty direct, but a little more direct this morning than I have seen

him in a while, and you have a resolution by the Congress, where

I think it was 97 to 3, an overwhelming number to show, including

almost all of the members of the President’s own party, and I don’t

read this as a matter for partisanship at all, that there has been

a very emphatic statement by the Congress of our need to know

what went on here.

There may be some area for legislative change or maybe there

would be an area for constitutional amendment. But sticking with

the legislative oversight, and I raise this issue not only for this

matter, but for ongoing assertions of privilege and refusal to turn

over documents, where this committee tries to exercise oversight,

wouldn’t the President be better advised, and this gets into advice

to the President, but perhaps I ought to put it in terms of the Attorney General’s authority on the disclosure here.

Wouldn’t the Attorney General be better advised to leave a little

more leeway for the Congress to see what happened here and to

hear from Mr. Adams what his recommendation was?

Mr. HOLDER. Well, I think that we have done a fairly extraordinary job here in providing to this committee substantial numbers

of documents, tapes. We are obviously here making ourselves available and answering questions to the best of our ability.

Senator SPECTER. Well, you are available, but you are not answering the question as to what was the recommendation.

Mr. HOLDER. Well, we are answering any question that we think

we can, and the only ones that we are not answering are those that

we think are—we cannot answer because of the assertion of executive privilege. Beyond that, we have made ourselves open to the

questions and, as I said, provided documents in that regard as well,

and tapes as well.

Senator SPECTER. Mr. Holder, how does the President exert executive privilege? Is it something that he must do personally?

Mr. HOLDER. Well, the Justice Department will express an opinion as to whether or not an assertion of executive privilege is appropriate in a particular instance, and then the President actually

asserts executive privilege.

Senator SPECTER. Well, how has he asserted executive privilege

here?

137

Mr. HOLDER. I will be honest with you. Mechanically, I am not

sure exactly what happened here.

Senator SPECTER. Well, I think it is an important point that the

President ought to focus specifically on the parameters of the

issues, which would be in part defined by the overwhelming vote,

more than 90 members of the Senate concurring, and the precise

nature of the regulations with the Attorney General on their face—

the regulations’ face, having authority to make the disclosure.

What I would ask you to do is to return to the President with

the strong sense you have had here today and acquaint him with

your balancing test—I am sure he knows about the resolution

which was passed overwhelmingly—and make a determination if

he might not think that we have some legitimate need, as you articulate it in your balancing test, Congress’ need for information

contained in privileged documents. And I would like to focus with

particularity on exactly how he asserts it, that it is a personal assertion from him.

Mr. HOLDER. We will certainly convey those feelings to the President, although I think, as you indicate, based on the vote of Congress and in anticipation of the hearing here, I think the President

is probably pretty well aware of the feelings of the members of this

body.

Senator SPECTER. Well, I would also like you to specify to him

the Attorney General’s finding. He may not know of all of that, but

that is a pretty tough finding, categorizing FALN as, ‘‘representing

an ongoing threat,’’ especially after the President has made the

declaration of clemency. I think there is a fair need to pursue this

in some specification.

Thank you very much.

Mr. HOLDER. Well, I just would say that we should not read the

Attorney General’s statement in the Five-Year Plan as indicating

that the release of these prisoners, given the conditions upon which

they were released—that that statement refers to those people,

given those conditions. That is not the way I read the Attorney

General’s statement in the September 1999 document.

The CHAIRMAN. Then what does it mean?

Senator SPECTER. Well, why not, Mr. Holder?

The CHAIRMAN. What does it mean?

Senator SPECTER. This is a statement which she has made after

the grant of clemency. This is a statement which deals specifically

with the FALN, ‘‘representing an ongoing threat.’’ It seems to me

that where you have people who are part of the FALN and you are

talking about deterrence and whether they are going to engage in

terrorist activities in the future, there is an unquestionable impact

upon members of the FALN in thinking, in effect, they can get

away with it if executive clemency has been granted, and where

she identifies this specific group—characterizes them as an ongoing

threat. It seems to me it is very relevant and very probative on the

issues we are discussing here.

Mr. HOLDER. I mean, I would certainly say it is relevant, but I

don’t think that this statement can be read in quite the way that

you have indicated. As I said, this is a September 1999 document.

That is true, but I do think that given the fact that we are talking

about the release of people here on the conditions that have been

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specified that that in some way modifies that which we see on the

page here.

Senator SPECTER. Well, Mr. Holder, I think that there is a fair

amount of latitude for varying opinions on executive privilege and

a balancing. Staff has very adroitly produced a chart here which

puts the language before everyone to see, including C-SPAN, and

you have the Attorney General commenting about, ‘‘represent an

ongoing threat,’’ this specific group.

It seems to me there is little room for argument that granting

clemency to members of that group has an impact in the context

of an Attorney General’s report which talks about terrorism as an

effort to obtain political gain. You have this issue of Puerto Rico

still before the public, a matter which is still pending, and you

have an ongoing threat by this terrorist group and you have specific members being commuted. That has to have an impact on the

threat from that group.

What is wrong with that reasoning, Mr. Holder?

Mr. HOLDER. Well, I do not think that the language, ‘‘impending

release from prison of members of these groups jailed for prior violence,’’ quite frankly refers to the people whom we are talking

about here today, given the way in which they were released.

Now, this is a document that has a date of September 1999 on

it. I don’t know exactly when that language was prepared and I

don’t know exactly——

Senator SPECTER. Who cares when it was prepared? If it is

issued in September 1999, it is issued after the fact. And I didn’t

take the time to read the other language: ‘‘They have previously

used violence in an attempt to achieve independence from Puerto

Rico, arsons in both Puerto Rico and on the U.S. mainland. The

factors which increase the present threat from these groups include

renewed activity by a small minority advocating Puerto Rican

statehood, the 100-year anniversary of U.S. presence in Puerto

Rico, and the impending release from prison of members of these

groups jailed for prior violence.’’

Let me make one addendum. I voted in favor of statehood for

Puerto Rico. I don’t think this really implicates the broader issues

involved, and people who want statehood for Puerto Rico should

not be branded with this terrorism. But there you have an elaborated statement by the Attorney General about the threat by the

FALN, and here you have the President having granted clemency

and the Attorney General releases a report after the clemency is

granted.

I think that the Attorney General has to be bound, and the administration does, by a September 1999 date, unless we are to conclude that these reports are written and not read and issued.

The CHAIRMAN. Well, let me interrupt here. I think that last line

does kind of make it pretty clear that you can’t just blow this off,

in your own report just a month ago.

Senator SPECTER. A pretty impressive last line, ‘‘impending release from prison of members of these groups jailed for prior violence.’’

The CHAIRMAN. Yes, I don’t see how you get around that.

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Senator SESSIONS. ‘‘Factors which increase the present threat include the release from prison of these members.’’ That is the Attorney General’s own finding.

Senator SPECTER. Mr. Holder, that is pretty close to a confession.

It is more than an admission.

Mr. HOLDER. I have not confessed or admitted anything. I do not

read it that way. You know, we can disagree on that, but——

Senator SPECTER. Let me ask you if you had read it.

Mr. HOLDER. What?

Senator SPECTER. You said you didn’t read it that way, but had

you read it before today? Had you read it before the report came

out?

Mr. HOLDER. I have got it right here, underlined in my book.

Page 11, I think, right?

Senator SPECTER. Well, there is some corroborating evidence.

Thank you very much, Mr. Chairman.

The CHAIRMAN. Thank you, Senator Specter.

Without objection, I will put two letters from Senator Leahy in

the record right after his remarks, if I can.

[The letters referred to follow:]

UNITED STATE SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC, September 21, 1999.

The Hon. JANET RENO,

Attorney General,

Department of Justice,

10th Street & Constitution Ave., NW,

Washington, DC.

DEAR JANET: I was troubled to learn through both press reports and testimony

at a recent committee hearing that victims of some of the bombings perpetrated by

the FALN were not consulted or even contacted with regard to the clemency offers

made to some members of that organization. Indeed, one victim reported that he

learned of the clemency offers through a relative who had heard media reports.

I would appreciate being advised as to whether the views of any victims of FALN

violence were considered with respect to the clemency offers. I would also like to

know whether there are procedures and policies in place to ensure that the rights

of crime victims are respected in the clemency process.

Thank you for your assistance.

Sincerely,

PATRICK LEAHY,

United States Senator.

U.S. DEPARTMENT OF JUSTICE,

OFFICE OF LEGISLATIVE AFFAIRS,

Washinglon, DC, September 29, 1999.

The Hon. PATRICK LEAHY,

United States Senate,

Washington, DC.

DEAR SENATOR LEAHY: I am writing in response to your letter concerning consideration of victims during the clemency process. The Department appreciates the opportunity to provide you with some general information concerning existing policies

and procedures for ensuring that the interests of crime victims are respected in the

clemency process.

The impact of a crime on a victim(s) is important not only throughout the trial

and sentencing, but also in considering a petition for executive clemency. In connection with the evaluation of clemency petitions that appear to have some merit or

that raise complex factual or legal issues, the Pardon Attorney routinely requests

information, comments, and recommendations from United States Attorneys, including, where appropriate, information on the victim impact of a petitioner’s crime. In

140

describing the role of the United States Attorney in clemency matters, the United

States Attorneys Manual expressly advises that ‘‘[t]he United States Attorney can

contribute significantly to the clemency process by providing factual information and

perspectives about the offense of conviction that may not be reflected in the

presentence or background investigation reports or other sources, e.g., * * * the victim impact of the petitioner’s crime.’’ U.S.A.M. § 1–2.111. Furthermore, a significant

factor that is taken into account in determining whether to recommend clemency

is the extent to which the petitioner has made restitution to the victim(s) of his or

her conduct. U.S.A.M. §§ 1–2.112, 1–2.113. When requesting comments on a clemency petition, the Pardon Attorney routinely directs the United States Attorney to

these provisions for guidance in preparing a recommendation.

Finally, the Department’s clemency regulations do not presently require victim

notification before a clemency recommendation is made. We will, however, explore

this concept with the White House. We believe that presidentially approved guidelines or regulations are the most appropriate way to address this issue.

I hope this letter responds to your concerns. We look forward to working with you

on this and other issues involving the Department.

Sincerely,

JON P. JENNINGS,

Acting Assistant Attorney General.

The CHAIRMAN. Let me turn to Senator Ashcroft at this time.

Senator ASHCROFT. Thank you, Mr. Chairman.

Mr. Holder, are you aware that the Justice Department has now

taken the position that it opposes any aspect of a victims rights

constitutional amendment that would require notice to victims before clemency would be granted?

Mr. HOLDER. That we have taken a position against that?

Senator ASHCROFT. Is it your view that you don’t take such a position against it?

Mr. HOLDER. I was going to say that is not—I am not aware that

we have taken that position. I believe that we are in the process

of interacting with members of Congress on that and discussing

that internally. I am not aware that we have taken that position.

Senator ASHCROFT. Well, the Justice Department has contacted

a number of Senate staff, including mine, and I think Senator Kyl’s

and others, and I think Senator Feinstein’s, to that effect.

Is it the position of the Justice Department that you want to be

on record as saying that victims of violent crime have no role or

say in whether criminals who victimize them should be sent back

out on the street? Do you want a situation where there is no requirement for consultation or information?

Mr. HOLDER. Clearly not. We have, I think, been in the forefront

of getting victims more actively involved in the process. It has been

a failing of our criminal justice system, I think, over the years that

we have not listened to victims.

Senator ASHCROFT. So is it your view that the policy of the Department is to consult with victims?

Mr. HOLDER. Yes, that is certainly the policy of the Justice Department. As I have said, with regard to the pardon process, I

think there are ways in which we can do our job better than we

have done in the past.

Senator ASHCROFT. But if that is the policy, I wonder about this

memo to Jamie Orenstein from Roger Adams which says that any

requirement, either in a constitutional amendment that actually

makes it to enactment or a revision of our regulations that requires

us to consult even perfunctorily with victims, will cause a big

change in the way we operate.

141

If it is your policy to consult with victims, why would it be a big

change——

Mr. HOLDER. Well, I think the memo——

Senator ASHCROFT [continuing]. If you were just to even have to

consult with them on a perfunctory basis, let alone in a substantive

way?

Mr. ADAMS. Senator Ashcroft, what I was attempting to convey

in that memo was any requirement that we had to consult with

any large number of victims in pardon and/or commutation cases

would require a big change in the way my office operates. I have

a very small office; I only have six attorneys, counting myself. I

simply was saying we don’t have the staff to do this ourselves. The

way the Department——

Senator ASHCROFT. How many commutations and pardons, prior

to these FALN pardons, did your six attorneys participate in since

January 1993?

Mr. ADAMS. How many were granted?

Senator ASHCROFT. Yes.

Mr. ADAMS. Before this, there were three commutations and 108

pardons.

Senator ASHCROFT. So you would have had 111 situations for six

attorneys to give notice on over the course of 61⁄2 years?

Mr. ADAMS. We have had several hundred cases, Senator

Ashcroft. We get several hundred petitions a year.

Senator ASHCROFT. My view is—let me just say this—that I am

not saying before you considered anything at all that you would

have to involve people in the consultation. What we are saying is

before you grant a pardon, it seems to me that you could go

through quite a bit before you decided it was a serious enough matter to consider.

But for six people to handle 111 cases—I happen to have spent

8 years as attorney general of a State and we had attorneys that

were writing 30 appellate briefs a year, and 6 times 30 would be

180. You are talking about 111 cases over the course of 6 years for

six people, and you are saying even a perfunctory contact—well,

first of all, I find this to be a contradiction. If it is a policy of the

Department to try and contact them, and now you say even a perfunctory contact would change your practice, and then you say,

well, while we do want to do it, it would be burdensome for us to

do it for six people to handle 111 cases of additional contact in 6

years, I find that very difficult to understand.

Mr. ADAMS. Well, just to put this in some context, Senator

Ashcroft, it is not 111 cases. Since 1993, my office has received almost 5,000 clemency petitions, counting both pardon and commutation petitions. What I was saying in that memo was it would be

a big change for my office. There may well be a lot more effective

ways for the Department to contact victims, such as through the

U.S. attorneys’ offices. There may be other ways. Whether we

should do that more is an open question.

When I was writing that memo to Mr. Orenstein, who is a member of Mr. Holder’s staff, I was looking at it——

Senator ASHCROFT. Well, then maybe I just need to get this clear.

I think Mr. Holder just said to me very clearly, and I want to affirm this, that the Department of Justice does not oppose clemency

142

notice provisions in the victims rights amendment which it otherwise had expressed support for.

Mr. HOLDER. We have not taken a—I think you asked have we

taken a position in opposition and I had said we have not done

that. We are in the process of talking about that.

Senator ASHCROFT. So you do not oppose it?

Mr. HOLDER. We were in the process, I think, of deciding what

our policy was going to be.

Senator ASHCROFT. Have you opposed it?

Mr. HOLDER. Senator, I think I just answered the question. We

are in the process——

Senator ASHCROFT. Well, maybe you could just answer it with a

yes or no. Have you opposed it, and if you haven’t opposed it, do

you now oppose it?

Mr. HOLDER. I would say that we have not opposed it. I would

not say that we have endorsed it either. I would say we are in the

process of——

Senator ASHCROFT. Maybe I could ask you just to answer the

question.

Mr. HOLDER. I am; I am answering the question that you are

asking me in the best way that I can.

Senator ASHCROFT. OK.

Mr. HOLDER. That is not maybe conducive to a yes or no answer.

I am doing the best I can, Senator.

Senator ASHCROFT. Well, I think whether or not you have opposed it should be conducive to a yes or no answer. Have you opposed it?

Mr. HOLDER. We have not opposed it.

Senator ASHCROFT. And do you now oppose it?

Mr. HOLDER. We do not now oppose it.

Senator ASHCROFT. Thank you very much.

Mr. HOLDER. We have not established a position.

Senator ASHCROFT. That was easy. I think that was painless. I

mean, that is all I really wanted to ask you if that was the case.

Is it your view that the President’s pardoning power is subject

to no review by the Congress, that it is an outright, arbitrary

power?

Mr. ADAMS. Could I respond to that, Senator?

Senator ASHCROFT. May I ask Mr. Holder a question, please?

Mr. HOLDER. I would not say that it is without some degree of

oversight in the sense that we are here today as you are asking

members of the Justice Department about our roles in the process.

Senator ASHCROFT. I guess what I am really trying to find out

is whether you believe that the President has no limit on his power

to grant pardons.

Mr. HOLDER. I am not sure that I find in the Constitution, subject obviously, of course, to the notion that one cannot do things illegally in the sense that, you know, take bribes or something along

those lines——

Senator ASHCROFT. Is it your view, then, if the President were

to receive a bribe for issuing a pardon, that would be wrong and

that is outside his constitutional authority?

Mr. HOLDER. That would be wrong and illegal, yes.

143

Senator ASHCROFT. So that if the Congress wanted to discover

that, the Congress would have to ask the President to answer for

motives about his pardon because one of the motives might be improper?

Mr. HOLDER. It might just be that Congress does not have that

power. It might simply be that a U.S. attorney or somebody would

have to investigate that case.

Senator ASHCROFT. And on what would you base your idea that

there are supervisors to the President in his responsibility there

that wouldn’t be congressional? I thought we spent a good deal of

the last couple of years saying that the only thing that could ever

supervise the conduct of a President was the Congress.

Mr. HOLDER. I mean, if a President engaged in illegal activities,

the President is like any other citizen.

Senator ASHCROFT. He is, so he should be prosecuted and impeachment doesn’t have anything to do with it, like any other citizen, Mr. Holder?

Mr. HOLDER. No, no. There are certain things that obviously

would have to happen first.

Senator ASHCROFT. I mean, we spent a lot of time last year with

people from the Justice Department suggesting to us that prosecution of a President is sort of an impossibility, that the rightful

thing is for congressional oversight to evaluate whether something

illegal has taken place.

Mr. HOLDER. And I am saying——

Senator ASHCROFT. I want to make a point here, and I think you

have helped me make it. It is that there are real questions about

whether a President has a totally arbitrary right to pardon. And

in the context of the lack of a totally arbitrary right, the oversight

agency for the President would be the Congress to evaluate whether anything improper, out of line, has taken place. For that reason,

I think there is a valuable line of questioning for the oversight authority of the Congress to ask why, and that is really what this

Congress has sought to do, is to ask why of this President. Frankly,

that is a question that I wanted to resolve.

I also wanted to get clearly from you that you do not oppose

clemency provisions in the victims rights amendment, and frankly

I am interested to know that you agree that Mr. Adams did not

state the position of the Justice Department that it would be a big

change for you to have to give notice.

Mr. HOLDER. Well, I mean the ‘‘we’’ in that memo that you were

talking about, I think, refers to the Office of the Pardon Attorney.

It is a much more restricted statement there. It doesn’t refer to the

Justice Department generally.

With regard to the question of the President doing something illegal, I think that a prosecutor would have the ability to investigate allegations involving the President. You could not charge a

President until the President had been impeached or had left office.

Senator ASHCROFT. Maybe I should then ask this question. Is it

your view that until a prosecutor had investigated the President,

the Congress would not have authority to inquire of his motives?

Mr. HOLDER. Through impeachment, clearly, I think the Congress would. I think that is clear, through the impeachment process.

144

Senator ASHCROFT. First, I want to make one thing very clear.

I am not suggesting that here. I am talking about the theory of the

Constitution. But when you talk about the President’s ability to

shield his communications and to exert privilege—and I really

think Senator Specter made very interesting questions about

whether the privilege can spring as a result of its existence from

the Department and not have to be asserted by the President himself, is a kind of interesting thing.

But I don’t want to suggest that we are involved in a situation

that is in any way related to impeachment. I just want to sort of

set the boundaries that even in rights that a President pretty clearly has, very broad rights, there is a role for congressional oversight,

and I think the kinds of things that we have discussed demonstrate

that.

The CHAIRMAN. Thank you.

Senator Abraham, we will turn to you.

Senator ABRAHAM. Thank you, Mr. Chairman.

I want to return back, Mr. Adams and Mr. Holder, to this issue

of trying to elicit information and the views of victims, and try to

get a sense of your position on this a little more clearly as we

might contemplate ways we might proceed.

It seems to me—and I suspect from your perspective after this

hearing you feel the same way—that there is at least a fair amount

of congressional sentiment that there ought to be some solicitation

of views as part of your process. And I guess I am trying to be constructive, or I am at least going to try to be constructive here in

thinking through ways that could happen.

Now, my impression from your memo here that dealt with this

issue, Mr. Adams, is that there is some concern in your office in

terms of the manpower to cover some type of victim contact if every

single case or petition that came to you required that. But it seems

to me that from what I gather in your testimony, and so on, that

there is a sort of a cut made by you folks before you go to the U.S.

attorneys, that you make some determination initially based on

issues of whether an issue of material fact is raised or any suggestion that the application may have some merit or if the case presents significant issues, et cetera, which precede any determination

to start the process toward the U.S. attorney. Isn’t that right?

Mr. ADAMS. That is correct, Senator.

Senator ABRAHAM. Now, that reduces a fair number. As I understand it, more than half of the cases essentially don’t get to that

stage.

Mr. ADAMS. A significant number are handled without going to

the U.S. attorney because we realize that——

Senator ABRAHAM. The merits just don’t——

Mr. ADAMS [continuing]. The merits are not there. We realize

U.S. attorneys are very busy; U.S. attorneys personally and U.S.

attorneys’ offices are very busy places. We try not to bother them

with cases that are meritless.

Senator ABRAHAM. I am wondering, I guess, if we can then

maybe hone this process in on only those instances where there is

a victim involved and it goes to the stage where you have passed

it on. I am wondering, do you feel that it would be feasible either

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to have your shop or the relevant U.S. attorney involved take an

action at that point to solicit the views of the victims?

Mr. ADAMS. It is still not feasible for my shop to do that because

I have got six people sitting here in Washington. I don’t really have

the ability. It would indeed be feasible, given an unlimited amount

of money and willingness on the part of U.S. attorneys to impose

some sort of requirement through regulation.

And, you know, let me point out, too, the regulations are approved by the President. The President would have to say that this

is what he wants done. But, yes, in a perfect world, with unlimited

funds and unlimited willingness on the part of U.S. attorneys, it

would indeed be possible to have a regulation requiring——

Senator ABRAHAM. Well, obviously——

Mr. HOLDER. Senator, I disagree respectfully with my colleague

here because I am not sure we need quite a perfect world. I think

we could craft a way, given even the resources that we have. It

would have to involve more than the people in the Pardon Attorney’s Office, but I think that we have ways in which we could, in

an appropriate number of cases—and these are not the cases, I

guess, that we would call summary denials. I think there are ways

in which, if we put our minds to it, we could probably come up with

ways to contact victims.

Senator ABRAHAM. Well, it seems to me we could, too, and I

guess I would say I appreciate your interjection, Mr. Holder, because I was going to say to you, Mr. Adams, that everybody who

comes before us can say in a perfect world we could do this, and

so on. We always have to make some assessment of priorities, and

so does the Department of Justice and so do the U.S. attorneys.

But it seems to me inconceivable that the position of your office,

an office which is charged with the responsibility ultimately of

making these fairly significant recommendations as to the granting

of pardons, would evoke those kinds of considerations to totally

deny victims a role here and not sense that there might be a tremendous amount of public and congressional, and I would suspect

within the Department support for having a balance to this. I

mean, clearly, the process is set up right now toward the incarcerated criminal having a great deal of say. And the notion that we

would say, well, the resources—it troubles me.

I appreciate your comments, Mr. Holder, and I guess my next

question is do you feel that some type of statutory requirement

would be helpful to you, on which we would perhaps work together

with you to frame it—would be helpful here to provide the kind of

authorization that would get this moving. Is that something we

should work on?

Mr. HOLDER. I think we should, to the extent that we can work

together on this. I guess the only concern I have is, again, dealing

with a privilege that I think really does rest with the President.

Exactly how we can work with this Congress in this regard is my

only concern.

Senator ABRAHAM. Well, I understand, and I guess I would raise

here, obviously not to be totally resolved today, it seems to me that

at least—you know, I understand that the ultimate decision a

President makes, as well as his decision as to what he takes into

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account, is obviously protected constitutionally in the privilege that

we have talked about, as well as in the duties of the office.

But it does seem to me that we can statutorily regulate the Department’s role in the process as an exercise of our powers under

the Constitution to make all laws which are necessary and proper

for carrying into execution all powers vested by the Constitution.

I mean, I think that we have that authority. And if the President

says, well, I have decided I don’t care about the victims and I am

not going to look at this part of the report, I think that is his

choice. I think if he decides to commute without looking at anything, it his choice. And we can get into separately the debate that

Senator Ashcroft raised as to how Congress might have any kind

of capacity to reexamine it.

But the notion that we couldn’t require statutorily the Department of Justice to prepare this information ultimately up to the

President to decide whether he uses it—I am not sure that we are

precluded from doing that. I mean, I don’t see why we would be

constitutionally.

Mr. HOLDER. I share your concern about making sure that we

make victims a part of the process. To be very honest with you, I

am just not sure off the top of my head, without doing a little more

research and talking with people at OLC at the Justice Department, whether or not Congress would indeed have that power. I

just don’t know.

Senator ABRAHAM. OK. Let me ask separately on the issue of victims being noticed and notified whether or not you feel that there

is any constitutional bar to a statute that would at least provide

or require notification of any early release before the release actually takes place but after the decision of the President.

Mr. ADAMS. After the President——

Senator ABRAHAM. In other words, after the President——

Mr. ADAMS. No pre-decisional requirement, but a requirement

that after——

Senator ABRAHAM. In other words, let’s shift gears here from the

collection of information to the decision of the President. The President makes the decision to commute or pardon. Would you see any

argument that would prevent us from statutorily or otherwise at

least requiring notice to the victims at that point? I know there

have been situations where people indicate they didn’t know what

happened even after it happened because not all of them necessarily receive the same attention as the case that brings us here

today.

Mr. HOLDER. Again, this is not something I have really considered.

Senator ABRAHAM. In other words, after-the-fact notice is what I

am getting at here.

Mr. HOLDER. I am less troubled by that, but again there may be

people far brighter than me at the Justice Department in the Office

of Legal Counsel who would say, well, Eric, you know, you should

remember there is this case that says you can’t do that. I don’t

know.

Senator ABRAHAM. Let me ask you, Mr. Adams, what is the Department’s policy now? Do you have a policy of providing notice to

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victims after the President has made these decisions in the 111 or

so cases that you mention?

Mr. ADAMS. No, my office does not.

Senator ABRAHAM. Does the Department in any way, in any

other of the offices?

Mr. ADAMS. I would have to join with Mr. Holder and say I don’t

know. There may be a provision in commutation cases; there may

be a provision under which the Bureau of Prisons is required to notify people before at least certain types of inmates are released, regardless of the way the release was ordered. But I just don’t know

off the top of my head.

Senator ABRAHAM. I will be very interested in that aspect of it,

too. I wanted to focus on these two components because it seems

to me you have got two situations here where some constructive

improvements are possible. We may debate how that happens,

whether it is in the executive context only or through a statutory

action, although again I don’t see how we are barred from statutorily putting in place a system of information collection which may

or may not then be used by the President in making these decisions. But it does seem that is part of it, and a second part of it

certainly would be the issue of assuring some type of after-the-fact

notice.

And so, Mr. Chairman, I thank you for convening the hearing.

I want to work with you on these two issues that I have raised

here today as we move forward. We may have some questions for

our witnesses aimed at trying to get specifically to the bottom of

these issues that have not been fully resolved, and I thank the witnesses.

The CHAIRMAN. Thank you.

Just to clarify this matter and to clear up some misunderstandings that some people may have, other than the White House

Counsel’s Office, did you chat with anybody else in the White

House about this decision the President made?

Mr. ADAMS. Mr. Chairman, I only talk with people in the White

House Counsel’s Office. Neither I nor anyone on my staff is authorized to talk with anyone other than people in the White House

Counsel’s Office.

The CHAIRMAN. How about you, Mr. Holder? Anybody in the Justice Department?

Mr. HOLDER. Not to my knowledge.

The CHAIRMAN. In conclusion, let me just say that I am very disturbed by what we have heard about this FALN controversy. This

issue has troubled me from the outset, and nothing I have heard

here today has alleviated those concerns in the least.

As I said in my opening remarks, I will be working to craft reforms which will assure that the Pardon Attorney’s Office complies

with its own regulations and weighs the views of victims in the

process. In addition, I believe that the Senate Judiciary Committee

must do more to assess the threat created by the President’s decision.

In the days ahead, I am going to work to produce a complete, expedited assessment of the threat created by the President’s decision

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nesses involved in the FALN prosecutions. So I am very concerned

about it.

Naturally, this has not been the most pleasant hearing for you,

but it is something that I think is essential so that we don’t have

something like this happen again without full consideration and

full observance of the rules and the procedures of the Justice Department, and, of course, that everybody realize that the public at

large is very concerned about these issues, and especially in this

particular FALN case.

So with that, I appreciate having you both here and we will adjourn until further notice.

[Whereupon, at 11:56 a.m., the committee was adjourned.]

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