May 26, 1995 CONGRESSIONAL RECORD — SENATE S7599

graduate this June. It took me 31 years to

get to this point in my life, so I thank God

that there was a program available to me.

Although my circumstances are different

than some of my classmates, we’re all there

for the same reasons, to get our G.E.D. or

better yet our diploma. Senator as far as I’m

concerned, I wanted this very badly, but I

have been married 27 years, have two children one of which also graduates this year

from Penn. I never had to work so my education wasn’t the top on my list. Because my

husband worked and took care of us and the

house. But most of the kids in the program

need this educational program to continue to

grow into productive adults. Our counselors

and teachers are the best, they work very

hard to keep things going well at school.

These programs need to keep going and I

know that you will do your best to keep it

going.

Now to get to the second reason I’m writing to you. I would like to take this opportunity to invite you to my graduation on

June 14 at 7:30 p.m. It will take place at Newark High School. Myself and I know all the

other students and staff would be honored to

have you there. I know you are a very, very

busy man but if you could find it in your

heart and schedule to make it, I would be

happy to have you there.

Sincerely,

MRS. JUDI ROBINSON.

Mr. President, the reason I read that

into the RECORD is I do not think we

should lose sight of the fact that there

are thousands and thousands and thousands of women and men like Judi Robinson who are going back to try to get

the basic education that for whatever

reasons they did not get when they

were children. I think our reluctance

to put as much emphasis on the educational needs in this country and the

Federal responsibility to participate in

that is a serious mistake. I am sure all

of my colleagues, and I know the Senator in the chair, the Senator from Colorado, like everyone else in here,

shares a sense of pride when there is

someone in their State like Judi Robinson who goes through that effort.

I remember discussing with my

friend from Colorado how his mother

went back and her significant educational accomplishments and what

she has done. I just thought it worthwhile to let people know that there are

a lot of people like Judi Robinson still

fighting hard, who still have faith in

this operation, still have faith in the

system, and still think they can better

themselves through education.

I thank the Chair for this time and I

yield the floor.

I suggest the absence of a quorum.

The PRESIDING OFFICER. The

clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. SPECTER. Mr. President, I ask

unanimous consent that the order for

the quorum call be rescinded.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. SPECTER. I ask unanimous consent that I may be permitted to speak

for up to 5 minutes as if in morning

business.

The PRESIDING OFFICER (Mr.

COVERDELL). Without objection, it is so

ordered.

Mr. SPECTER. I thank the Chair.

NOMINATION OF DR. HENRY

fFOSTER

Mr. SPECTER. Mr. President, I compliment the Labor and Human Resources Committee for reporting out

the nomination of Dr. Henry Foster to

be Surgeon General of the United

States.

Earlier this morning, the committee

met and by a 9-to-7 vote recommended

the confirmation of Dr. Foster for Surgeon General. Two Republicans joined

with seven Democrats in favoring his

nomination and thereby bringing the

nomination to the floor.

It is my hope that we will take up Dr.

Foster in this Chamber. It is my sense

that there are sufficient votes to bring

Dr. Foster to a vote in the face of what

has been announced to be a prospective

filibuster. There is at least one Senator

on the committee as reported who favors bringing Dr. Foster to a vote even

though that Senator voted against him

in committee.

I had occasion to meet with Dr. Foster early on, and at that time I was

convinced that the sole issue was the

issue of whether Dr. Foster should be

disqualified from being Surgeon General because he had performed abortions, a medical procedure which is

legal and authorized by the U.S. Constitution. It seemed to me at that time

that all the other matters which were

brought up were red herrings, and that

real opposition to Dr. Foster lay in the

fact that he had performed abortions, a

procedure authorized by the Constitution of the United States.

I said on the Senate floor early on

that Dr. Foster was entitled to be

heard by the committee, entitled to

have his day in court, so to speak, in

this Chamber for a vote, both out of

fairness to Dr. Foster as an individual

and really as a sign that nobody would

be railroaded out of this town without

having a day in court, a chance to have

an up-or-down vote in the Senate.

There is a very important precedent

beyond Dr. Foster as an individual as

to what he is entitled to as a matter of

fairness and that is to others who may

be interested in coming to Washington,

tempted to come to Washington to perform public service. And many would

be discouraged if Dr. Henry Foster

would not be entitled to fair treatment

by the Senate of the United States.

I thought that reasons given by our

colleague, Senator FRIST, in supporting

Dr. Foster’s nomination were very important; that Senator FRIST, a physician himself, emphasized Dr. Foster’s

commitment to try to combat teenage

pregnancy, and that may be the No. 1

social problem in America today. If

that can be brought under control,

then there is no better person to try to

do that than the Surgeon General of

the United States. And also Dr. Foster’s commitment to press for abstinence and to press for family values;

those are positions which I think are

very appropriate for the Surgeon General.

So Dr. Foster has cleared a very significant hurdle in the affirmative vote

of the Labor and Human Resources

Committee. Some predicted he would

never get that far.

From what I sense, the climate in

our body is to favor his nomination

coming to the floor for a vote. I think

a filibuster will be defeated and I think

ultimately Dr. Foster will be confirmed. That is a very positive sign of

respect for the laws of the United

States, as interpreted by the Supreme

Court, that a woman does have a right

to choose, that a nominee like Dr. Foster is not disqualified because he performed a medical procedure, albeit

abortion, authorized by the Constitution, and that men and women of character and good will can come to this

town and get a fair hearing and perform an important public service.

I thank the Chair and I yield the

floor.

COMPREHENSIVE TERRORISM

PREVENTION ACT

fThe Senate continued with the consideration of the bill.

Mr. LIEBERMAN addressed the

Chair.

The PRESIDING OFFICER. The Senator from Connecticut is recognized.

Mr. LIEBERMAN. Mr. President, I

rise to speak on the bill before the Senate at this time, S. 735, the Comprehensive Terrorism Prevention Act of 1995.

Mr. President, let me say first how

pleased I am that the leadership of

both parties has reached agreement on

so much in this bill and met President

Clinton’s challenge to reach a prompt

and bipartisan consensus on

counterterrorism legislation in the

aftermath of the tragedy in Oklahoma

City.

Most of the key provisions of the

President’s counterterrorism bill, offered earlier in the year by Senator

BIDEN and others, are included in the

measure before us. And I thank the majority leadership of the committee for

doing so. But, as Senator BIDEN mentioned last night, there are a few provisions that have not been included.

That is why this morning I will offer

two amendments which would restore

two provisions from the original bill to

this genuinely bipartisan effort, and I

am hopeful that there is an opportunity here for bipartisan support for

these two law enforcement measures,

as well.

Mr. President, in my view, and in the

view of those I have spoken to in the

Federal and State law enforcement

communities who are involved in the

daily, difficult business of pursuing terrorists, these two provisions, which

would increase law enforcement’s capacity to be involved in surveillance

through wiretapping of terrorists,

would be extremely helpful to the law

enforcement community’s efforts to

penetrate the highly secretive world of
S7600 CONGRESSIONAL RECORD — SENATE May 26, 1995

terrorists. Indeed, I can imagine a

number of situations where the power

granted by these two amendments

would provide exactly the kinds of

tools that could make a difference in

stopping terrorists before they strike.

Mr. President, since joining the Senate, I have spent a fair amount of time

and effort considering how we, as a nation, can best prepare ourselves to

counter and stop terrorists’ threats because of my fear that, though America

domestically has been relatively

spared, at least was when I began these

inquiries, from the pain of terrorist attack, certainly more so than other nations in the world, that because of political events in the world, it was inevitable that unless we directed, created

some defense there, we would suffer.

And, unfortunately, we have.

As I look back, the first hearing I

ever chaired as a Senator concerned

the coordination of our antiterrorism

efforts. And in every presentation on

hearings that I have been involved in

since, whether as a member of the Governmental Affairs Committee or involved in the ad hoc task force on terrorism, which I was privileged to organize, witness after witness, whether

they were from the State Department

or the FBI or the U.S. attorney’s offices, or think tanks around this city

or country, emphasized the special importance of surveillance and infiltration to preventing and prosecuting terrorist attacks.

Mr. President, this says the obvious,

but it needs to be said: Terrorists are

cowards. Terrorists are cowards because they strike at undefended targets. And while we are quite logically

now, in the aftermath of Oklahoma

City, attempting to rebuild our defenses around more likely targets, particularly public buildings affected, the

terrorist group that wants to create

panic in our society, wants to punish

our society, wants to strike at the

sense of order and security in our society can, as we have seen in other settings, just as easily not strike at a governmental building, but go down the

street and attack a large private building, an office building, or strike, as

some have suggested, at the water supply in a community; so that we can

never defend against all the potential

targets of terrorists.

The best defense is an offense. And

the offense in this case, as this bill carries out in many ways, is to be watching people who indicate by their own

behavior that they are capable of violent acts. I am not talking about inhibiting political freedoms here. We are

not talking about prohibiting anybody

from writing or speaking or demonstrating in a way that they believe,

even if we find it abhorrent. But if they

act in a way that indicates they may

be capable of violent acts, criminal

acts, then we, the people, should have

our law enforcement agents there

watching them, listening to them, infiltrating their groups to see to it that

whenever possible we can stop them;

we can strike before they strike at the

heart of our society to prevent more

death and destruction.

The witnesses that spoke to committees that I have been on were commenting mostly on internationally inspired terrorism, but they focused

again on the importance of electronic

surveillance as a component of the

overall approach of stopping terrorist

acts whenever possible before they are

committed, and electronic surveillance

is part of that.

I would argue that electronic surveillance may be more important with domestically based terrorists than with

international terrorism. So far as we

know, they are not generally reliant on

outside State sponsors who, at some

point, may be vulnerable to political or

military pressure.

Our weapons here are limited to effective law enforcement, including one

of the most powerful tools law enforcement has, which is carefully circumscribed, legally authorized electronic surveillance, particularly in this

high-technology communication age.

AMENDMENT NO. 1200 TO AMENDMENT NO. 1199

(Purpose: To amend the bill with respect to

emergency wiretap authority)

Mr. LIEBERMAN. So, Mr. President,

the first amendment I am offering

today would add the words ‘‘domestic

or international terrorism’’ to the limited number of situations in which the

Attorney General, the Deputy Attorney General, or the Assistant Attorney

General can obtain an emergency 48-

hour wiretap without having to go

court in that first period of time.

Under current law, those three Justice

Department officials and no others

may authorize emergency electronic

surveillance where there is ‘‘first, immediate danger of death or serious

physical injury to any person; second,

conspiratorial activities threatening

the national security; and third, conspiratorial activities characteristic of

organized crime.’’

This all is when there is not, in the

opinion of the law enforcement officials, time to get a court order. But the

important condition in this law is that

within 48 hours of that emergency authorization for electronic surveillance

from within the Justice Department,

law enforcement officers must obtain a

court order for the wiretap under the

normal proceedings for court orders.

They must submit the same affidavits and documents establishing probable cause that are required for any

other wiretap.

The top three Justice Department officials who can make these emergency

authorizations have a strong incentive

to be cautious and correct in authorizing emergency wiretaps without a

court order, because if a judge does not

issue a court order supporting a wiretap within 48 hours, any information

obtained via the emergency wiretap is

inadmissible in court.

Mr. President, this amendment,

therefore, would simply add the words

‘‘activities characteristic of domestic

or international terrorism’’ to the list

of emergency situations where law enforcement has hours, and not days, to

get the evidence needed to make an arrest, find a chemical weapon, diffuse a

bomb or perhaps rapidly clear a building that may be the target of a terrorist attack.

Given the devastating effects of these

terrorist acts, which are assaults not

only on individuals but on whole communities—in fact on our Nation and on

the democratic processes and the liberties that we have—do we not want to

give our law enforcement officials the

same authority to obtain temporary

emergency wiretaps they have under

current law when pursuing organized

crime cases? I think so, and I believe

the American people would think so as

well.

Mr. President, I, therefore, have an

amendment which I send to the desk at

this time.

The PRESIDING OFFICER. The

clerk will report.

The assistant legislative clerk read

as follows:

The Senator from Connecticut [Mr.

LIEBERMAN] proposes an amendment numbered 1200 to amendment No. 1199.

Mr. LIEBERMAN. Mr. President, I

ask unanimous consent that the reading of the amendment be dispensed

with.

The PRESIDING OFFICER. Without

objection, it is so ordered.

The amendment is as follows:

Insert at the appropriate place the following new section:

SEC. . REVISION TO EXISTING AUTHORITY FOR

EMERGENCY WIRETAPS.

(a) Section 2518(7)(a)(iii) of title 18, United

States Code, is amended by inserting ‘‘or domestic terrorism or international terrorism

(as those terms are defined in 18 U.S.C. 2331),

for offenses described in section 2516 of this

title.’’ after ‘‘organized crime’’.

(b) Section 2331 of title 18, United States

Code, is amended by inserting the following

words after subsection (4)—

‘‘(5) the term ‘domestic terrorism’ means

any activities that involve violent acts or

acts dangerous to human life that are a violation of the criminal laws of the United

States or of any State and which appear to

be intended to intimidate or coerce a civilian

population or to influence the policy of a

government by intimidation or coercion; or

to affect the conduct of a government by assassination or kidnapping.’’.

(c) Section 2518(7) of title 18 is amended by

adding after ‘‘Notwithstanding any other

provision of this chapter,’’ ‘‘but subject to

section 2516,’’.

Mr. LIEBERMAN. Mr. President, I

want to finally, before yielding the

floor, indicate for the RECORD that the

amendment does not change the underlying crimes for which an emergency

wiretap can be authorized in title 18,

United States Code, section 2516. It just

says that if those crimes are part of a

domestic terrorist plot, an emergency

wiretap can be ordered. And these

crimes include: Any offense punishable

by death or imprisonment for more

than 1 year, including violations of the

Atomic Energy Act relating to sabotage of nuclear facilities and fuel or espionage and treason.
May 26, 1995 CONGRESSIONAL RECORD — SENATE S7601

Also, let me point out that the definition of ‘‘terrorism’’ covers violent

acts or acts dangerous to human life.

Mr. President, I urge adoption of the

amendment. I yield the floor.

The PRESIDING OFFICER. Is there

further debate on the amendment?

Mr. STEVENS addressed the Chair.

The PRESIDING OFFICER. The

Chair recognizes the Senator from

Alaska.

Mr. STEVENS. Mr. President, I ask

unanimous consent to proceed as in

morning business for the purpose of explaining a bill which I would like to introduce at this time.

The PRESIDING OFFICER. Without

objection, it is so ordered.

Mr. STEVENS. I thank the Chair.

(The remarks of Mr. STEVENS pertaining to the introduction of S. 868 are

located in today’s RECORD under

‘‘Statements on Introduced Bills and

Joint Resolutions.’’)

Mr. HATCH addressed the Chair.

The PRESIDING OFFICER. The Senator from Utah.

Mr. HATCH. Mr. President, I understand what my dear colleague from

Connecticut is trying to do with this

expansion of the emergency wiretap

authority, but I apologize to him because I have to rise to oppose this

amendment which would expand emergency wiretap authority permitting

the Government to begin a wiretap

prior to obtaining court approval in a

greater range of cases than the law

presently allows.

I find this proposal troubling, and let

me list some reasons. I am concerned

that this provision, if enacted, would

unnecessarily broaden emergency wiretap authority. Under current law, such

authority exists when life is in danger,

when the national security is threatened, or when an organized crime conspiracy is involved. That is title 18,

United States Code, section 2518(7).

This authority is constrained by a requirement that the surveillance be approved by a court within 48 hours. The

President’s proposal contained in this

amendment would expand these powers

to any conspiratorial activity characteristic of domestic or international

terrorism. I personally do not believe

that this expansion is necessary to effectively battle the threat of terrorism.

Virtually every act of terrorism one

can imagine which would require an

emergency wiretap—that is, the threat

is so immediate that the Government

cannot obtain a court order before instituting the wiretap—will certainly

also involve ‘‘an immediate danger of

death or serious physical injury,’’ or ‘‘a

conspiratorial activity threatening the

national interest,’’ as defined in current law. Thus, expanding the Government’s emergency wiretap powers to

any conspiratorial activity characteristic of domestic or international

terrorism would add little to existing

authority. However, the little that it

does add or will add is particularly

troubling.

This amendment defines domestic

terrorism in an unwise and extremely

broad manner. The amendment defines

domestic terrorism, in part, as ‘‘any

activities that involve violent acts or

acts dangerous to human life and

which appear to be intended to intimidate or coerce a civilian population or

to influence the policy of Government

by intimidation or coercion.’’

That is a potentially vague and very

loose standard. There are legitimate

acts of protest that could be caught up

in this definition, because they, in

some way, pose a danger or are viewed

as ‘‘intimidating.’’

No one, of course, would contend that

activities that truly threaten the public safety or an individual should go

uninvestigated or unpunished. However, the standard for initiating a wiretap without a court order should certainly be higher than this amendment

proposes.

Mr. President, a wiretap order is deliberately somewhat difficult to obtain. It is more difficult because it is

more difficult to get the Justice Department to approve it than it is to get

a judge or magistrate to approve it. Because wiretaps are so intrusive and

conducted in secret by the Government

in circumstances under which the subject has a reasonable expectation of

privacy, the courts and Congress have

required that the Government meet a

heightened burden of necessity before

using a wiretap to ensure that civil liberties are secure.

The law also, of course, recognizes

exigent circumstances, because in a

true emergency, when lives are at risk,

we would not want law enforcement to

wait for court-approved wiretaps any

more than we expect a police officer to

obtain a search warrant before chasing

an armed and fleeing suspect into a

house. Our present wiretap statute recognizes this with its emergency provision and expanding the exception

should give us pause. We must ensure

that in our response to recent terrorist

acts, we do not destroy the freedom

that we cherish. I fear that the amendment does take us a step down that

road, and for these reasons, I oppose

the amendment.

Let me mention one other thing. The

distinguished Senator from Connecticut is very sincere and well-intentioned

with this amendment. I acknowledge

that. And he is an acknowledged authority on law enforcement. But I have

to question whether this amendment

would permit the Government to obtain emergency wiretaps; in other

words, a wiretap without a court

order—let me repeat that; a wiretap

obtained without a court order—of, let

us say, some of these groups in our society today, ranging from the right to

the left. Take a gay rights group like

Act Up, or an environmental group like

some of the more vociferous environmental groups; or you could take some

groups on the right that are vociferous

that stage a sit-in that may violate

some State property or some loitering

felony. It seems to me that a demonstration blocking a busy street or

entrance to a church or hospital could

endanger human life under certain circumstances, and certainly a demonstration of this nature would be intended to change the Government’s

policy. This amendment could thus

permit the Government to listen to the

conversations of such groups without

obtaining a court order.

This is deeply troubling to me, and I

think to anybody who believes in the

Bill of Rights and in the important

protections the Constitution affords us.

It is easy to come up with circumstances that would justify a wiretap, but then you meet the emergency

requirements already in law. So I

would rather stick with the current

law.

So I urge my fellow Senators to vote

against this. That is with a full understanding of what the distinguished

Senator from Connecticut is trying to

do, and with some sympathy toward

what he is trying to do, except I do not

think we should expand the wiretap

laws any further.

Mr. BIDEN addressed the Chair.

The PRESIDING OFFICER. The Senator from Delaware is recognized.

Mr. BIDEN. I rise to support Senator

LIEBERMAN’s amendment on emergency

wiretap authority. Quite frankly, Mr.

President, this amendment would add

to this bill the President’s proposal in

the President’s original bill to extend

authority for emergency wiretaps—

which are already available, I might

add, for organized crime cases—to terrorism crimes. And I am sure people

looking at this debate are probably

thinking: Wait a minute. Senator

ORRIN HATCH is arguing against this on

civil liberties grounds, and BIDEN being

for this—I was going to facetiously say

something, but I will not say it. This is

no time for humor.

At any rate, the reason I am for this

bill—and I have a pretty long record

and history here of being as vigilant in

the civil liberties of Americans and

constitutional rights as anyone in this

body—is that I do not see a lot of distinction between crimes of terrorism

and organized crime. It is kind of basic

to me. If the justification exists for organized crime, why would it not exist

for crimes of terrorism?

Now, let me explain first what probably my friend from Connecticut has

already explained—I apologize if I am

going over old ground; I will be brief—

what an emergency wiretap is and how

limited an emergency wiretap is.

In almost all cases, the Government

has to get a court order to initiate a

wiretap, under stringent standards set

out in current law. The emergency

wiretap authority allows the Government to initiate a wiretap without a

court order in emergency situations involving, one, immediate danger of

death or serious physical injury to any

person; conspiratorial activities

threatening national security; or conspiratorial activities characteristic of

organized crime activities. Only the

top three Justice Department officials—the Attorney General, Deputy
S7602 CONGRESSIONAL RECORD — SENATE May 26, 1995

Attorney General, and Associate Attorney General—can organize an emergency wiretap.

Now, if it stopped there, I could see

why a lot of people would say, even

with that, that is still too dangerous,

and there is still too much exposure for

Americans of their civil liberties. But

even in those emergency situations,

the law requires the Government to

seek judicial approval of the wiretap

within 48 hours.

So it is not like there can be an

emergency wiretap placed on the authority of the top three Justice Department officials, the top three, and left

on and then the information used.

Within 48 hours, they have to get a

court order or cease and desist. That is

the second requirement.

First, it has to fit the criteria of immediate danger, death, and so on,

which I read. Second, within 48 hours,

there has to be a court order. Third, if

when they go for the court order, the

judge disagrees or declines, the wiretap

has to end, and any evidence that has

been gotten in that 48 hours cannot be

used. It is sort of an exclusionary rule,

if you will. It cannot be used.

So Senator LIEBERMAN’s amendment,

consistent with what the President

asked for, would add to the list of

emergency situations the following:

Conspiratorial activities characteristic

of domestic or international terrorism.

It seems to me no less broad than conspiratorial activities characteristic of

organized crime activities.

Now, the consistent position for my

friends to take here, if they are going

to take on the amendment of the Senator from Connecticut, would be to

amend the existing law to strike conspiratorial activities characteristic of

organized crime. I doubt whether they

would want to do that. So I am kind of

at a loss that if they think that is a

good idea, why not conspiratorial activities characteristic of domestic or

international terrorism? Is someone

going to tell me that they are more at

jeopardy or less at jeopardy from the

Gambino family than we are from some

bunch of screwballs running around in

the woods who are planning on blowing

up a building? When is the last time

the Mafia blew up a building? They are

not good guys; they are all bad guys.

But I do not quite understand the logic

here. I do not understand the logic.

Of course, a wiretap is a powerful and

intrusive investigative tool. We have to

be careful to guard against its abuses.

There are several statutory restrictions that prevent the abuse of emergency wiretaps, none of which would be

changed by this amendment.

Now, there is much more that I am

inclined to say, but I will not. I will

conclude by saying, if a wiretap is authorized and the Government then goes

to court within 48 hours, if the order is

not granted, the interception is treated

as a violation of title III and is inadmissible in trial. This provision, in my

view, works no great expansion on the

wiretap statute. The Government is

still required to get a judicial order.

But it is simply allowed to get an order

after the fact when there is an emergency situation. The amendment simply extends the emergency wiretap authority to terrorism offenses and, surely, terrorism is as great a threat as organized crime. This is a narrow and

sensible amendment. I urge my colleagues to support it.

Let me emphasize that the amendment does not expand the list of offenses which can be investigated using

a wiretap. By the way, most Americans—and I know my friend was a distinguished prosecutor and attorney

general of his State. He knows full well

—but even most practicing lawyers do

not know—that you cannot, under the

Federal law, get a wiretap for all felonies. You cannot get them for every

crime. Most people think that if the

FBI has reason to believe any felony is

being committed, they can go get a

wiretap. That is not true. They cannot

even ask for a wiretap for certain

crimes.

This does not expand the list of

things for which they can have an

emergency wiretap. Nor does it expand

the list that a judge, when it is 48

hours later and we say, ‘‘Judge, make

this real,’’ the judge cannot say, ‘‘Well,

it is not covered as subject matter for

wiretap under the law now, but I will

let you do it because the change of the

law allows it.’’ It does not do that.

It does not expand offenses which can

be investigated using a wiretap. All it

does is allow an emergency wiretap for

those domestic and international terrorist offenses which involve violent

acts and acts dangerous to human life.

The wiretap must then be approved by

the court. Quite frankly, I do not see

how it could be construed to cover a

simple political demonstration, as my

friend from Utah fears.

What I fear is that we are not making a false distinction between acts of

terrorism and organized crime. I do not

hear anybody suggesting that if the

Gambino family gets together for a

picnic, we are worried about whether

or not an emergency wiretap may impact on their right to have a picnic. I

do not hear them saying that.

If a bunch of wackos get together

talking about the Federal Government,

and the Government has reason to believe they are preparing for or engaging in acts of violence, why not them,

too?

To put it in crass terms, if we can

mess up the Gambino picnic, we should

be able to mess up the screwball picnic,

if there is evidence—if there is evidence—that there is a likelihood of a

violent act or violent crime to be committed.

I do not know who we are protecting,

but it does not seem to make any sense

to me. No safeguards that exist now

are being reduced. We are adding an additional category, the category seems

reasonable to me.

I compliment the Senator on his

amendment. I yield the floor.

Mr. SPECTER. Mr. President, I oppose the pending amendment, and I do

so with a deference to my colleague

from Connecticut because of his experience as Attorney General.

I believe that we ought to be very

circumspect and very careful before expanding wiretapping authority at all

until there has been an opportunity for

very careful study. That opportunity is

not present here.

As I have listened to the very abbreviated arguments in the course of less

than 30 minutes, there may be no expansion beyond the current law. Nobody has cited an illustration as to

what would be subject to wiretap under

Senator LIEBERMAN’s amendment that

would not be subject to wiretap under

existing law. It may well be that there

are sufficient vagaries in the language

of the amendment which could render

it overbroad.

This bill has not been subjected to

the usual legislative process of a markup, which is where the committee sits

down and goes over the bill and considers amendments in a more deliberative

fashion than an amendment being presented and debated on the floor over

the course of 30 minutes, or a few minutes more.

In saying this, I do not fault, at all,

the distinguished Senator from Connecticut, because these are the rules of

procedure in the Senate. I do say that

it ought to give Members some pause.

As we speak, we are on a Friday near

noon and many Senators are waiting to

catch planes. The distinguished clerk is

nodding in the affirmative. I do not

think we ought to legislate in this kind

of a rush. Expanding wiretap authority

may have a very, very serious impact

on civil liberties. No compelling need

has been shown for adopting this

amendment and, therefore, I think the

amendment ought not to be enacted.

Under these procedures and time constraints, I am sure of that. I yield the

floor.

The PRESIDING OFFICER (Mr. BENNETT). The Senator from Connecticut.

Mr. LIEBERMAN. Mr. President, let

me assure my friend and colleague

from Pennsylvania that I am in no

rush.

I have been following this question of

how we can best counter terrorism for

a long time, and I have been working

with people in the FBI, the U.S. attorney offices, and the Justice Department. They tell me that that is an expanded authority that will help them

combat terrorism.

I have spent a fair amount of time

thinking about this amendment. I have

concluded that it gives one more weapon to the folks that are fighting on our

side against the terrorists.

Mr. President, I must say I am a little bit surprised by some of the objections which suggest that this authority, limited as it is, as the Senator

from Delaware made clear, 48-hour

emergency wiretap, three officials at

the Justice Department, can authorize

on a showing of necessity the same
May 26, 1995 CONGRESSIONAL RECORD — SENATE S7603

grounds that a court would use if a

court does not similarly authorize the

wiretap within 48 hours, it is over, and

the evidence seized in between is inadmissible.

Let me go to the concern about

whether this authority might be used

against domestic political groups compromising their civil liberties. There is

nowhere in the language of the proposal, let alone the underlying law

which it amends, to suggest that that

is possible. It is certainly not my intention.

The term ‘‘domestic terrorism’’

which as Senator BIDEN has indicated

is what this is about, we take the language here, conspiratorial activities

characteristic of organized crime,

which an emergency wiretap can be

grounded, and add conspiratorial activities characteristic of domestic terrorism.

How do we define ‘‘domestic terrorism?’’ It means any activities that involve violent acts, or acts dangerous to

human life, that are criminal—that are

a violation of the criminal laws of the

United States or any State; and on top

of that, which appear to be intended to

intimidate or coerce a civilian population or influence the policy of the

Government by intimidation and coercion.

It takes more than the intention to

intimidate or coerce the Government

or the American people, one must be

contemplating or involved in violent

acts or criminal acts with that purpose.

Now, there is no mainstream or out

of the mainstream political group that

just is expressing points of view that is

by any stretch of the imagination

going to be subject to an emergency

wiretap under this provision.

There is a general point, and I will

make it as my final point. It does cover

international terrorism as well. We are

not talking just domestic political

groups, but people or agents of foreign

governments, agents of foreign groups

that may be on our soil, moving

around, attempting or planning acts of

violence against us.

The general point in terms of the

concern of civil liberties. As is true in

so many of these questions of law and

order and maintaining that basic order

that is the precondition of our liberties, the question is, who do we give

the benefit of the doubt? Are we going

to side with the potential victims of a

terrorist act? Are we going to stretch

over so far backward in our concern

about civil liberties that we give the

benefit of the doubt to the would-be

terrorists? To me there ought to be a

simple answer to that equation.

It is, in another sense, do we trust

those in positions of authority? I have

had the privilege of working in law enforcement. The U.S. attorneys, the

FBI, the Secret Service—they are not

perfect. They are just people. But by

and large these are people who are out

there every day, as we have seen too

often, putting their lives on the line for

Government to maintain the order that

does protect our liberty.

Give me a choice of giving them another narrowly circumscribed authority to use to stop terrorism, I am going

to give it to them with the confidence

that in almost every case I can think

of, they will use it in an appropriate

way. If for some reason they do not,

within 48 hours a judge is going to

come along and say ‘‘That is it, take

the wiretap off.’’ And not only that, everything that has been gathered in the

48 hours is inadmissible in court.

This power, incidentally, that has existed under this statute regarding national security and organized crime

cases, has rarely been used because of

the standard set up in the law and because of the deterrent that if a judge

does not confirm the original authorization by the Justice Department, evidence is inadmissible.

Mr. President, I think this is just one

smart tool, another smart tool, to give

the folks who are out there fighting

terrorists on our side to make sure we

stop the terrorists before they stop us.

I yield the floor.

The PRESIDING OFFICER. The Senator from Utah.

Mr. HATCH. Mr. President, I understand the distinguished Senator from

Delaware would like to speak?

Mr. BIDEN. Mr. President, I ask

unanimous consent that a letter and

testimony regarding this bill be printed in the RECORD.

There being no objection, the material was ordered to be printed in the

RECORD, as follows:

GUN OWNERS OF AMERICA,

Springfield, VA, May 18, 1995.

DEAR SENATOR: The tragic bombing in

Oklahoma City has, unfortunately, provoked

a ‘‘feeding frenzy’’ of efforts to manipulate

the unfortunate victims for the political advantage of certain special interests and ideological points of view. These efforts have

been embodied in attempts to blame pro-Second Amendment organizations, pro-life

groups, or Republicans in general for what

appear to be the actions of isolated madmen.

In this climate, it is particularly important that we not over-react or react foolishly

to the heart-rending events which we, as a

nation, have witnessed. On April 27, S. 735

was introduced by the Majority Leader and

the Chairman of the Senate Judiciary Committee, and was brought directly onto the

Senate calendar. While avoiding some of the

most extreme proposals which have been posited for political advantage in the wake of

the bombing, S. 735 nevertheless contains

some provisions which are far too dangerous

to be considered without hearings, markup,

and the normal checks and balances of the

legislative process.

As introduced, Gun Owners of America

would oppose S. 735, and would rate any vote

for that legislation as an anti-gun vote. In

particular, we object to provisions of S. 735

which would:

Allow the BATF to go after gun dealers for

far-reaching ‘‘conspiracy’’ charges involving

no overt act at all;

Significantly broaden the materials which

the Secretary of the Treasury could require

from law-abiding businesses, groups and individuals;

Preempt state law enforcement efforts in

many circumstances which are primarily of

local concern,

Broaden the authority of the FBI to make

demands of citizens not suspected of crimes,

and, in general, increase the ability of government to intrude on the privacy and rights

of individuals.

It may well be the Congress, after due consideration, will decide that some changes in

federal law are necessary. But this is not an

area where legislation should be adopted

prior to full consideration of the ramifications of that legislation. I therefore urge you

to step back, hold hearings, and take time to

consider what, if any, changes in federal law

would genuinely address the issue of terrorism, rather than merely serving as a political placebo. The country and the Constitution will both be healthier as a result of your

efforts.

Sincerely,

LARRY PRATT,

Executive Director.

EXCERPTS FROM WRITTEN TESTIMONY BEFORE

THE U.S. SENATE COMMITTEE ON THE JUDICIARY, SUBMITTED BY DAVID B. KOPEL, ASSOCIATE POLICY ANALYST

WIRETAPPING

Various proposals have been offered to expand dramatically the scope of wiretapping.

For example, the Clinton bill defines almost

all violent and property crime (down to

petty offenses below misdemeanors) as ‘‘terrorism’’ and also allow wiretaps for ‘‘terrorism’’ investigations.

Other proposals would allow wiretaps for

all federal felonies, rather than for the special subet of felonies for which wiretaps have

been determined to be especially necessary.

Notably, wiretaps are already available for

the fundamental terrorist offenses: arson and

homicide. Authorizing wiretaps for evasion

of federal vitamin regulations, gun registration requirements, or wetlands regulations is

hardly a serious contribution to anti-terrorism, but amounts to a bait-and-switch on the

American people.

Currently, FBI wiretapping, bugging, and

secret break-ins of the property of American

groups is allowed after approval from a

seven-member federal court which meets in

secret. Of the 7,554 applications which the

FBI has submitted in since 1978, 7,553 have

been approved.

Making the request for vast new wiretap

powers all the more unconvincing is how

poorly wiretap powers have been used in the

past. Terrorists are, of course, already subject to being wiretapped. Yet as federal wiretaps set new record highs every year, wiretaps are used almost exclusively for gambling, racketeering, and drugs. The last

known wiretap for a bombing investigation

was in 1998. Of the 976 federal electronic

eavesdropping applications in 1993, not a single one was for arson, explosives, or firearms, let alone terrorism. From 1983 to 1993,

of the 8,800 applications for eavesdropping,

only 16 were for arson, explosives, or firearms. In short, requests for vast new wiretapping powers because of terrorism are akin

to a carpenter asking for a pile driver to

hammer a nail, while a hammer lies nearby,

unused.

Even more disturbing than proposals to expand the jurisdictional base for wiretaps are

efforts to remove legal controls on wiretaps.

For example, wiretaps are authorized for the

interception of particular speakers on particular phone lines. If the interception target

keeps switching telephones (as by using a variety of pay phones), the government may

ask the court for a ‘‘roving wiretap,’’ authorizing interception of any phone line the target is using. Yet while roving wiretaps are

currently available when the government

shows the court a need, the Clinton and Dole

bills allow roving wiretaps for ‘‘terrorism’’
S7604 CONGRESSIONAL RECORD — SENATE May 26, 1995

without court order. (Again, remember that

both bills define ‘‘terrorism’’ as almost all

violent or property crime.)

The Foreign Intelligence Surveillance Act

(FISA) provides procedures for authorizing

wiretaps in various cases. These procedures

have worked in the most serious foreign espionage cases. Yet the Clinton and Dole bills

would authorize use of evidence gathered in

violation of FISA in certain deportation proceedings.

WARRANTLESS DATA GATHERING

Proposals have also been offered to require

credit card companies, financial reporting

services, hotels, airlines, and bus companies

to turn over customer information whenever

demanded by the federal government. Document subpoenas are currently available

whenever the government wishes to coerce a

company into disclosing private customer

information. Thus, the proposals do not increase the type of private information that

the government can obtain; the proposals

simply allow the government to obtain the

information even when the government cannot show a court that there is probable cause

to believe that the documents contain evidence of illegal activity.

Similar analysis may be applied to proposals to increase the use of pen registers

(which record phone numbers called, but do

not record conversations, and thus do not require a warrant). If a phone company has a

high enough regard for its customers’ privacy so as to not allow pen registers to be

used without any controls, the government

may obtain a court order to place a pen register. Business respect for customer privacy

ought to be encouraged, not outlawed.

CURTAILING FIRST AMENDMENT RIGHTS OF

COMPUTER USERS

For some government agencies, the Oklahoma City tragedy has become a vehicle for

enactment of ‘‘wish list’’ legislation that has

nothing to do with Oklahoma City, but

which it is apparently hoped the ‘‘do something’’ imperative of the moment will not

examine carefully.

One prominent example is legislation to

drastically curtail the right of habeas corpus. Although Supreme Court decisions in

recent years have already sharply limited

habeas corpus, prosecutors’ lobbies want to

go even further. Two obvious points should

be made: First, habeas corpus has nothing to

do with apprehending criminals; by definition, anyone who files a habeas corpus petition is already in prison. Second, habeas corpus has nothing to do with Oklahoma City in

particular, or terrorism in general.

A second example, of piggybacking irrelevant legislation designed to reduce civil liberties are current FBI efforts to outlaw computer privacy.

If a person writes a letter to another person, he can write the letter in a secret code.

If the government intercepts the letter, and

cannot figure out the secret code, the government is out of luck. These basic First

Amendment principles have never been questioned.

But, if instead of writing the letter with

pen and paper, the letter is written electronically, and mailed over a computer network rather than postal mail, do privacy interests suddenly vanish? According to FBI

director Louis Freeh, the answer is apparently ‘‘yes.’’

Testifying before the Senate Judiciary

Committee about Oklahoma City, director

Freeh complained that people can communicate over the internet ‘‘in encrypted conversations for which we have no available

means to read and understand unless that

encryption problem is dealt with immediately.’’ ‘‘That encryption problem’’ (i.e.

people being able to communicate privately)

could only be solved by outlawing high quality encryption software like Pretty Good

Privacy.

First of all, shareware versions of Pretty

Good Privacy are ubiquitous throughout

American computer networks. The cat cannot be put back in the bag. More fundamentally, the potential that a criminal, including a terrorist, might misuse private communications is no reason to abolish private

communications per se. After all, people

whose homes are lawfully bugged can communicate privately by writing with an Etcha-Sketch. That is no reason to outlaw Etcha-Sketch.

Although Mr. Freeh apparently wants to

outlaw encryption entirely, the Clinton administration has been proposing the ‘‘Clipper

Chip.’’ The federal government has begun requiring that all vendors supplying phones to

the federal government include the ‘‘Clipper’’ chip. Using the federal government’s

enormous purchasing clout, the Clinton administration is attempting to make the Clipper Chip into a de facto national standard.

The clipper chips provides a low level of

privacy protection against casual snoopers.

But some computer scientists have already

announced that the chip can be defeated.

Moreover, the ‘‘key’’—which allows the private phone conversation, computer file, or

electronic mail to be opened up by unauthorized third parties—will be held by the federal

government.

The federal government promises that it

will keep the key carefully guarded, and only

use the key to snoop when absolutely necessary. This is the same federal government

that promised that social security numbers

would only be used to administer the social

security system, and that the Internal Revenue Service would never be used for political

purposes.

Proposals for the federal government’s acquisition of a key to everyone’s electronic

data, which the government promises never

to misuse, might be compared to the federal

government’s proposing to acquire a key to

everyone’s home. Currently, people can buy

door locks and other security devices that

are of such high quality that covert entry by

the government is impossible; the government might be able to break the door down,

but the government would not be able to

enter discretely, place an electronic surveillance device, and then leave. Thus, highquality locks can defeat a lawful government

attempt to read a person’s electronic correspondence or data.

Similarly, it is legal for the government to

search through somebody’s garbage without

a warrant; but there is nothing wrong with

the privacy-conscious people and businesses

using paper shredders to defeat any potential

garbage snooping. Even if high-quality

shredders make it impossible for documents

to be pieced back together, such shredders

should not be illegal.

Likewise, while wiretaps or government

surveillance of computer communications

may be legal, there should be no obligation

of individuals or businesses to make wiretapping easy. Simply put, Americans should

not be required to live their lives in a manner so that the government can spy on them

when necessary.

Thus, although proposals to outlaw or

emasculate computer privacy are sometimes

defended as maintaining the status quo (easy

government wiretaps), the true status quo in

America is that manufacturers and consumers have never been required to buy products

which are custom-designed to facilitate government snooping.

The point is no less valid for electronic

keys than it is for front-door keys. The only

reason that electronic privacy invasions are

even discussed (whereas their counterparts

for ‘‘old-fashioned’’ privacy invasions are too

absurd to even be contemplated), is the tendency of new technologies to be more highly

restricted than old technologies. For example, the Supreme Court in the 1920’s began

allowing searches of drivers and automobiles

that would never have been allowed for persons riding horses.

But the better Supreme Court decisions

recognize that the Constitution defines a relationship between individuals and the government that is applied to every new technology. For example, in United States v.

Katz, the Court applied the privacy principle

underlying the Fourth Amendment to prohibit warrantless eavesdropping on telephone

calls made from a public phone booth—even

though telephones had not been invented at

the time of the Fourth Amendment. Likewise, the principle underlying freedom of the

press—that an unfettered press is an important check on secretive and abusive governments—remains the same whether a publisher uses a Franklin press to produce a

hundred copies of a pamphlet, or laser printers to produce a hundred thousand. Privacy

rights for mail remain the same whether the

letter is written with a quill pen and a paper

encryption ‘‘wheel,’’ or with a computer and

Pretty Good Privacy.

Efforts to limit electronic privacy will

harm not just the First Amendment, but

also American commerce. Genuinely secure

public-key encryption (like Pretty Good Privacy) gives users the safety and convenience

of electronic files plus the security features

of paper envelopes and signatures. A good

encryption program can authenticate the

creator of a particular electronic document—just as a written signature authenticates (more or less) the creator of a particular paper document.

Public-key encryption can greatly reduce

the need for paper. With secure public-key

encryption, businesses could distribute catalogs, take orders, pay with digital cash, and

enforce contracts with veriable signatures—

all without paper.

Conversely the Clinton administration’s

weak privacy protection (giving the federal

government the ability to spy everywhere)

means that confidential business secrets will

be easily stolen by business competitors who

can bribe local or federal law enforcement

officials to divulge the ‘‘secret’’ codes for

breaking into private conversations and

files, or who can hack the clipper chips.

* * * * *

RIGHT TO KEEP AND BEAR ARMS

Cracking down on militias

Equating all militias with white supremacists is nonsense. Like the Los Angeles Police Department, some militias may have

members, or even officers, who are racist,

but that does not mean that the organization

as a whole, or the vast majority of its members are racists. Most militias are composed

of people with jobs and families; people who

are seeking to protect what they have, not to

inflict revenge on others for their own

failings.

The frenzy of hatred being whipped up

against law-abiding militia members is not

unlike the hatred to which law-abiding ArabAmericans would have been subjected, had

Oklahoma City been perpetrated by the Libyan secret service. It is not unlike the hatred to which Japanese-Americans were subjected after World War II. Ironically, some

politicians who complain about the coarse,

angry tone of American politics do so in

speeches in which they heap hate-filled invective upon anyone and everyone who belongs to a militia.

As this Issue Brief is written, no evidence

has developed which ties any militia (let
May 26, 1995 CONGRESSIONAL RECORD — SENATE S7605

alone all of them) to the Oklahoma City

crime. At most, two suspects are said to

have attended a few militia meetings and

left because the militias did not share their

goals. This fact no more proves a militia

conspiracy than the hypothetical fact that

the suspects went to church a few times

would prove that the Pope and Jerry Falwell

masterminded the Oklahoma City bombing.

That someone who perpetrated a crime

may have attended a militia meeting is

hardly proof that all militias should be destroyed. The step-father of Susan Smith (the

alleged South Carolina child murderer) sexually molested her one night after he returned

from putting up posters for the Pat Robertson presidential campaign. What if someone

suggested that the ‘‘radical’’ patriarchal

theories espoused by Robertson and the

Christian Coalition created the ‘‘atmosphere’’ which led to the incestuous rape, and

that therefore all Christian Coalition members were responsible for the crime, and the

FBI should ‘‘crack down’’ on them? The

claim would be dismissed in a second; equally outrageous claims about gun owners

should likewise be dismissed.

It is a sad testament to the bigotry of certain segments of the media that totally unsubstantiated, vicious conspiracy theories of

the type which were once employed against

Catholics and Jews are now being trotted out

against militia members, patriots, and gun

owners.

No militia group was involved with the

Oklahoma City bombing. Despite the hatemongering of the media, the ‘‘need’’ to start

spying on militia groups is a totally implausible basis for expansion of federal government powers.

Moreover, militia groups hold public meetings, sometimes advertising in local newspapers. There is hardly a need for greater

‘‘surveillance’’ of such public groups.

To respond intelligently to the militia and

patriot movements, we must acknowledge

that, although the movements are permeated

with implausible conspiracy theories, the

movements are a reaction to increasing militarization, lawlessness, and violence of federal law enforcement, a genuine problem

which should concern all Americans.

We must also remember that it is lawful in

the United States to exercise freedom of

speech and the right to bear arms. Spending

one’s weekends in the woods practicing with

firearms and listening to right-wing political

speeches is not my idea of a good time, but

there is not, and should not, be anything illegal about it.

If we want to shrink the militia movement, the surest way is to reduce criminal

and abusive behavior by the federal government, and to require a thorough, open investigation by a Special Prosecutor of what

happened at Waco and at Ruby Ridge, Idaho.

If, as the evidence strongly suggests, the law

was broken, the law-breakers should be prosecuted, even if they happen to be government employees.

Conversely, the persons responsible for the

deaths of innocent Americans should not be

promoted to even-higher positions in the FBI

or federal law enforcement. If the Clinton

administration were trying to fan the flames

of paranoia, it could hardly do better than to

have appointed Larry Potts second-in-command at the FBI.

Militias and patriot groups have been understandably ridiculed for a paranoid worldview centered on the United Nations and

international banking. But ironically, many

of the people doing the ridiculing share an

equally paranoid world-view. Most members

of the establishment media and the gun control movement have no more idea what a

real militia member is like than militia

members have about what a real international banker is like. In both cases, stereotyping substitutes for understanding, and familiar devils (the United Nations for the militia, the National Rifle Association for the

establishment media) are claimed to be the

motive force behind the actions of a man

who (allegedly) believes that the government

put a microchip in his buttocks.

Nearly twenty years ago, an article in the

Public Interest explained the American gun

control conflict:

‘‘[U]nderlying the gun control struggle is a

fundamental division in our nation. The intensity of passion on this issue suggests to

me that we are experiencing a sort of lowgrade war going on between two alternative

views of what America is and ought to be. On

the one side are those who take bourgeois

Europe as a model of a civilized society: a society just, equitable, and democratic; but

well ordered, with the lines of authority

clearly drawn, and with decisions made rationally and correctly by intelligent men for

the entire nation. To such people, hunting is

atavistic, personal violence is shameful, and

uncontrolled gun ownership is a blot upon

civilization.

‘‘On the other side is a group of people who

do not tend to be especially articulate or literate, and whose world view is rarely expressed in print. Their model is that of the

independent frontiersman who takes care of

himself and his family with no interference

from the state. They are ‘conservative’ in

the sense that they cling to America’s

unique pre-modern tradition—a non-feudal

society with a sort of medieval liberty at

large for every man. To these people, ‘sociological’ is an epithet. Life is tough and competitive. Manhood means responsibility and

caring for your own.’’

The author explained the disaster that

America will create for itself if fearful in

government attempt to ‘‘crack down’’ on

fearful gun-owners, thereby fulfilling the

worst fears that each group has of the other:

‘‘As they [the gun-owners] say to a man,

‘I’ll bury my guns in the wall first.’ They

ask, because they do not understand the

other side, ‘Why do these people want to disarm us?’ They consider themselves no threat

to anyone; they are not criminals, not revolutionaries. But slowly, as they become politicized, they find an analysis that fits the

phenomenon they experience: Someone fears

their having guns, someone is afraid of their

defending their families, property, and liberty. Nasty things may happen if these people begin to feel that they are concerned.

It would be useful, therefore, if some of the

mindless passion, on both side, could be

drained out of the gun-control issue. Gun

control is no solution to the crime problem,

to the assassination problem, to the terrorist

problem. . . . [S]o long as the issue is kept at

a white heat, with everyone having some

ground to suspect everyone else’s ultimate

intentions, the rule of reasonableness has little chance to assert itself.’’

ASSAULT WEAPONS

Perhaps the most cynical effort to exploit

the Oklahoma City tragedy is the effort of

gun prohibition advocates to use the murders as a pretext for preserving the federal

ban on so-called ‘‘assault weapons.’’ To state

the obvious, the Oklahoma City bombing was

perpetrated with a bomb, not a gun. The

bombers may have attended meetings of

groups which support the right to keep and

bear arms, but that does not prove that gun

rights groups were coconspirators, despite

the vicious insinuations of some gun prohibition advocates.

The reasons for repealing the gun ban remain as strong as ever. First of all, Congress

has no Constitutional power (under the Constitution’s text and original intent) to ban

the simple possession (as opposed to sale in

interstate commerce) of anything.

Second, if one looks at actual police data

(rather than unsupported claims from antigun police administrators), ‘‘assault weapons’’ constitute only about one percent of

crime guns.

Third, despite the menacing looks of socalled ‘‘assault weapons,’’ they are not more

powerful or more deadly than firearms with

a more conventional appearance. Instead,

the ‘‘assault weapon’’ ban is based on cosmetics, such as whether a gun has a bayonet

lug—as if criminals were perpetrating driveby bayonetings.

Finally, the ban has already been nullified

for all practical purposes. Since the law defines an ‘‘assault weapon’’ based on trivial

characteristics like bayonet lugs, gun manufacturers have already brought ought new

versions of the banned guns, minus the

cosmetically offensive bayonet lugs and

similar components.

Repeal of the ‘‘assault weapon’’ ban makes

sense as a move towards a more rational federal criminal justice policy. It makes even

more sense when its social impact is considered. Many gun control advocates acknowledged that ‘‘assault weapons’’ were a tiny

component of the gun crime problem, but

they still liked the ban because of its symbolic value. A great many other people, however, were very upset by the symbolic message of the gun ban. Some of them have

joined militias, patriot groups, or similar organizations. Indeed, it would be no exaggeration to say that President Clinton, Representative Schumer, and Senator Feinstein

have, through pushing the gun ban through

Congress, done more to promote the surge in

militia membership than anyone else in the

nation.

If we want to reduce the number of people

who are frightened by the federal government, the federal government should stop

frightening so many people. Given the irrelevance of the ‘‘assault weapon’’ ban to actual

crime control, repeal of the ban would be a

very important step that the federal government could take to convincing millions of

Americans that it is not a menace to their

liberty. Conversely, retention of a ban on

cosmetically-incorrect firearms by law-abiding citizens would be a strong statement to

the American people that their federal government does not trust them; and if so, why

should they trust it?

BAN ON TRAINING

Morris Dees of the Southern Poverty Law

Center has begun promoting a federal ban on

group firearms training which is not authorized by state law. First of all, state governments are perfectly capable of banning or authorizing whatever they want. The proposal

for a federal ban amounts to asking Washington for legislation similar to that which

various allies of Mr. Dees promoted at the

state level in the 1980s, with little success.

The vast majority of states having rejected a

training ban, the federal government should

hardly impose the will of the small minority

on the rest of the states.

A former direct-mail fundraiser for the

antigun lobby, Mr. Dees may be forgiven for

a low level of concern for the exercise of the

right to keep and bear arms. But the right to

keep and bear arms necessarily includes the

right to practice with them, just as the Constitutional right to read a newspaper editorial about political events necessarily includes the right to learn how to read. Just as

the government may not forbid people from

learning how to read in groups, it may not

forbid people from learning how to use firearms in groups.

‘‘Organizing, arming, and training in conjunction with a political agenda would be
S7606 CONGRESSIONAL RECORD — SENATE May 26, 1995

seen as dangerous in any other society but

our own,’’ a private security consultant recently told Congress, demanding that ‘‘these

groups be flatly dealt with as ‘enemies of our

society.’’’

Of course the United States was founded by

‘‘religious nuts with guns,’’ and later

achieved independence as a result of a war

instigated by people who organized, armed,

and trained with a political agenda. The

spark of the revolutionary war, the battle of

Lexington and Concord, was prompted by the

ruling government’s attempts to confiscate

the ‘‘assault weapons’’ of the day held by

local militias. It was at the Concord Bridge

where militiamen were ordered to ‘‘wait

until you see the whites of their eyes’’ and

then shot government employees who were

coming to arrest them for possessing an illegal ‘‘assault weapon’’ (a cannon). The Texan

revolution against Mexico likewise began

over civilian possession of ‘‘military’’ arms,

when the Mexican government demanded

that settlers hand over a cannon, and the

Texans replied, ‘‘Come and take it!’’

The militiamen of Concord Bridge and

Texas may have broken the law, but they

were great men, worthy of admiration by

every schoolchild, and every other American.

‘‘You need only reflect that one of the best

ways to get yourself a reputation as a dangerous citizen these days is to go around repeating the very phrases which our founding

fathers used in their struggle for independence,’’ observed American historian Charles

A. Beard.

BUREAU OF ALCOHOL, TOBACCO AND FIREARMS

Some people have claimed that criticism of

an alleged pattern of criminal conduct at the

Bureau of Alcohol, Tobacco and Firearms is

tantamount to complicity in the Oklahoma

City bombing. If so, then the United States

Senate is the party ultimately at fault. In

1982, the Senate Subcommittee on the Constitution investigated the BATF and unanimously concluded that the agency had habitually engaged in:

‘‘. . . conduct which borders on the criminal. . . . [E]nforcement tactics made possible

by current firearms laws are constitutionally, legally and practically reprehensible. . . . [A]pproximately 75 percent of

BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by

agents into unknowing technical violations.’’

If it is legitimate for a United States Senate subcommittee to find that BATF operations consist of ‘‘conduct which borders on

the criminal,’’ it is hardly inappropriate for

other persons to point out similar conduct.

The Waco raid was the most spectacular,

but hardly the only instance of abuse of

power by BATF in conducting search warrants.

On December 16, 1991 (the first day of the

third century of the Bill of Rights), sixty

BATF agents, accompanied by two television

crews, broke into the Oklahoma home of

John Lawmaster. Acting on a tip (suspected

to be from Lawmaster’s ex-wife) that

Lawmaster had illegally converted a semiautomatic to full automatic, BATF worked

with the ex-wife to lure Lawmaster away

from his home before the raid. With

Lawmaster absent, BATF knocked down his

front door with a battering ram. While some

agents stood guard with weapons drawn,

other agents broke open his gun safe, scattered his personal papers, spilled boxes of

ammunition onto the floor, and broke into a

small, locked box that contained precious

coins. To look through some ceiling tiles,

one agent stood on a table, breaking the

table in the process.

Neighbors who asked what BATF was

doing were threatened with arrest. Having

found nothing illegal, BATF left weapons

and ammunition strewn about the home, and

departed. They closed the doors, but since

BATF had broken the doors on the way in,

the doors could not be latched or locked.

Upon returning to the shambles that remained of his home, Lawmaster found a note

from BATF: ‘‘Nothing found.’’ Utility company representatives arrived, and told

Lawmaster that they had been told to shut

off all his utilities.

One of the field commanders of the Waco

raid was Ted Royster, head of BATF operations for Texas, Oklahoma, and New Mexico. Royster also supervised the Lawmaster

‘‘raid,’’ watching the operation from a

parked vehicle with tinted windows.

On February 5, 1993—23 days before the

Waco raid—BATF ransacked the home of

Janice Hart, a black woman in Portland, Oregon, terrorizing her and her three children

for hours, destroying her furniture, slamming a door on a child’s foot, forcing two

children to wait outside in a car while Ms.

Hart was interrogated inside, and refusing to

allow her to call an attorney, until BATF

discovered that there was a case of mistaken

identity. (BATF had been looking for Janice

Harold, who bears no resemblance to Mrs.

Hart.) In this case, unlike most others,

BATF did at least send a check for damages,

although no apology was offered.

As reported by the Washington Times:

‘‘In 1990, [Louis Katona] lent a militarystyle grenade launcher to ATF for use in an

unrelated prosecution, but it was never returned.

‘‘In May 1992, ATF executed a search warrant at his home. During the search, Mr.

Katona said his car’s tires were flattened, his

firearms were intentionally damaged and his

pregnant wife was manhandled so roughly

that she had a miscarriage.

‘‘In September, he was charged with 19

felonies * * * When the case went to trial in

April 1994, U.S. District Judge George W.

White directed a verdict of not guilty—asking on the record, ‘Where’s the beef?’’’

In a case which is widely known among the

gun community, but which has been ignored

by the national press, except for the Washington Times, the home of gun show promoters Harry and Theresa Lamplugh was raided

by BATF in 1994. At least fifteen BATF

agents, armed with machine guns, burst into

Lamplugh’s home one morning. Mr.

Lamplugh asked the men, most of whom

were not wearing uniforms, if they had a

warrant. ‘‘Shut the fxxxx up mother fxxxer;

do you want more trouble than you already

have?’’ they responded, sticking a machine

gun in his face.

Over the next six and half hours, BATF

agents demolished the home, refused to let

the Lamplughs get dressed, held a pizza

party, killed three house cats (including a

Manx kitten which was stomped to death),

scattered Mr. Lamplugh’s cancer pills all

over the floor, and carted off over eighteen

thousand dollars worth of the Lamplugh’s

property, plus their medical records. Nearly

a year later, the government has neither

filed any criminal charges, nor returned any

property, even the medical records.

The first of BATF’s notorious raids came

on June 7, 1971, when agents broke into the

home of Kenyon Ballew. A burglar had told

the police that Ballew owned grenades.

Ballew did own empty grenade hulls, which

are entirely legal and unregulated. Wearing

ski masks and displaying no identification,

BATF agents broke down Ballew’s door with

a battering ram. Responding to his wife’s

screams, Ballew took out an antique

blackpowder pistol, and was promptly shot

by BATF. Nothing illegal was found. He remains confined to a wheelchair as a result of

the shooting, and now subsists on welfare.

If the sear (the catch that holds the hammer at cock) on a semiautomatic rifle wears

out, the rifle may malfunction and repeat

fire. The BATF arrested and prosecuted a

smalltown Tennessee police chief for possession of an automatic weapon (actually a

semiautomatic with a worn-out sear), even

though the BATF conceded that the police

chief had not deliberately altered the weapon. In March and April of 1988, BATF pressed

similar charges for a worn-out sear against a

Pennsylvania state police sergeant. After a

12-day trial, the federal district judge directed a verdict of not guilty and called the

prosecution ‘‘a severe miscarriage of justice.’’

Today, observes Robert E. Sanders, a

former head of BATF’s criminal division, the

bureau’s leaders, to the great dismay of

many high-quality field agents, have ‘‘shifted from the criminal to the gun,’’ and are

now waging ‘‘an all-out war against the

gun.’’ Sanders noted that ‘‘Instead of focusing on selected criminals, there is an indiscriminate focus on anyone who owns guns.

They are in total consonance with the Clinton administration’s anti-gun position and

with the gun control groups.’’

BATF’s management has consistently

proven itself unwilling to obey statutory

law. The Firearm Owners’ Protection Act

specifically forbids BATF to gather registration information about guns to gun owners,

except in connection with a criminal investigation. Nevertheless, BATF is implementing ‘‘Project Forward Trace’’ to register the

owners of certain legal semiautomatic firearms.

The Treasury Department defends the

Waco attack on the basis that ‘‘the raid fit

within an historic, well-established and welldefended government interest in prohibiting

and breaking up all organized groups that

sought to arm or defend themselves.’’ The

candid admission of BATF’s objective, however, conflicts with the fact that nothing in

existing law makes it illegal for persons,

alone or in groups, to collect large number of

weapons and to defend themselves. To the

contrary, the ownership of large numbers of

weapons is specifically protected by federal

statute, by federal case law, and of course by

the Second Amendment.

One approach to improving BATF’s conduct would be incremental reforms of the

statutes governing BATF. Such an approach

was attempted by the Firearm Owners’ Protection Act, signed into law in 1986. The 1986

reforms, pushed by the National Rifle Association and other pro-gun organizations, reduced BATF search authority, especially for

paperwork technicalities, and increased penalties for armed career criminals. Yet even

today, the armed career criminal statutes

are often enforced in a manner targeting

small-scale, unarmed offenders.

The Bureau of Alcohol, Tobacco and Firearms (a descendant of the Bureau of Prohibition) enforces the federal alcohol laws in a

manner also characterized by administrative

abuse, over-reaching beyond statutory

power, and selective enforcement against

persons or companies who dare to criticize

BATF.

Nor are people outside of BATF the only

victims. Planning for the BATF raid on the

Mount Carmel Center in Waco began shortly

after the Bureau found out that Sixty Minutes was working on a story about sexual

harassment at BATF. Months later, Sixty

Minutes host Mike Wallace opined ‘‘Almost

all the agents we talked to said that they believe the initial attack on that cult in Waco

was a publicity stunt—the main goal of

which was to improve AFT’s tarnished

image.’’ (The codeword for the beginning of

the BATF raid was ‘‘showtime.’’)
May 26, 1995 CONGRESSIONAL RECORD — SENATE S7607

The Sixty Minutes report was devastating.

BATF agent Michelle Roberts told the television program that after she and some male

agents finished a surveillance in a parking

lot, ‘‘I was held against the hood of my car

and had my clothes ripped at by two other

agents.’’ Agent Roberts claimed she was in

fear of her life. The agent who verified Ms.

Roberts’ complaints claims that he was pressured to resign from BATF. Another agent,

Sandra Hernandez, said her complaints about

sexual harassment were at first ignored by

BATF, and she was then demoted to file

clerk and transferred to a lower-ranking office. BATF agent Bob Hoffman said ‘‘[T]he

people I put in jail have more honor than the

top administration in this organization.’’

Agent Lou Tomasello said, ‘‘I took an oath.

And the thing I find totally abhorrent and

disgusting is these higher-level people took

that same oath and they violate the basic

principles and tenets of the Constitution and

the laws and simple ethics and morality.’’

Black BATF agents have complained about

discrimination in assignments.

Abolishing BATF is no solution, for abolition would leave in place the federal alcohol,

tobacco and firearms laws, and transfer their

enforcement responsibility to some other

agency. It is the very nature of the

victimless crimes—such as laws criminalizing the peaceful possession or manufacture

of alcohol or firearms—which lead to enforcement abuses. As long as the consensual

offense laws remain in the U.S. Code, abusive

enforcement is likely, as has been the historical norm since the enactment of such laws.

Removing most firearm (and alcohol and tobacco) laws from the federal statutes does

not imply that alcohol, tobacco, and firearms should be subject to no legal controls.

Rather, the control of those objects can continue to be achieved at the state level, without a redundant layer of federal control and

the manifold temptations of federal abuse.

Since 1985, BATF’s size has increased 50%,

from 2,900 employees to 4,300. In a time of

vast budget deficits, simply restoring BATF

to its former size might save both taxpayer

dollars and taxpayer lives.

While BATF’s performance at Waco was

disgraceful, two facts should be kept in

mind: First, the BATF has a large number of

honorable, admirable employees who have

quietly gone about their work for years enforcing federal regulations applicable to gun

dealers, and enforcing federal laws against

possession of guns by persons with felony

convictions for violent crime. Misbehavior of

some BATF staff (and some BATF leadership) should not be taken as proof that all

BATF employees are bad.

The PRESIDING OFFICER. The Senator from Utah.

Mr. HATCH. Mr. President, the current United States Code provides emergency authority that is totally adequate to resolve the problems that are

raised by the distinguished Senator

from Connecticut. I have chatted with

him about the fact that I am going to

move to table his amendment.

I do so move to table his amendment.

Mr. President, I ask for the yeas and

nays.

The PRESIDING OFFICER. Is there a

sufficient second?

There is a sufficient second.

The yeas and nays were ordered.

The PRESIDING OFFICER. The

question occurs on the motion to table

amendment No. 1200, offered by the

Senator from Connecticut [Mr.

LIEBERMAN].

The yeas and nays have been ordered

and the clerk will call the roll.

The legislative clerk called the roll.

Mr. LOTT. I announce that the Senator from New Mexico [Mr. DOMENICI],

the Senator from Texas [Mr. GRAMM],

the Senator from North Carolina [Mr.

HELMS], the Senator from Texas [Mrs.

HUTCHISON], the Senator from Oklahoma [Mr. INHOFE], the Senator from

Arizona [Mr. KYL], the Senator from

Arizona [Mr. MCCAIN], the Senator

from Alaska [Mr. MURKOWSKI], and the

Senator from Delaware [Mr. ROTH] are

necessarily absent.

Mr. FORD. I announce that the Senator from California [Mrs. BOXER], the

Senator from New Jersey [Mr. BRADLEY], the Senator from Nebraska [Mr.

BRYAN], the Senator from California

[Mrs. FEINSTEIN], the Senator from Nebraska [Mr. KERREY], the Senator from

Massachusetts [Mr. KERRY], the Senator from Vermont [Mr. LEAHY], and

the Senator from Arkansas [Mr.

PRYOR] are necessarily absent.

I also announce that the Senator

from Wisconsin [Mr. FEINGOLD], the

Senator from Wisconsin [Mr. KOHL],

and the Senator from Georgia [Mr.

NUNN] are absent because of attending

funeral.

The PRESIDING OFFICER. Are there

any other Senators in the Chamber

who desire to vote?

The result was announced—yeas 52,

nays 28, as follows:

[Rollcall Vote No. 233 Leg.]

YEAS—52

Abraham

Ashcroft

Baucus

Bennett

Bond

Brown

Burns

Byrd

Campbell

Chafee

Coats

Cochran

Cohen

Coverdell

Craig

D’Amato

DeWine

Dole

Faircloth

Frist

Gorton

Grams

Grassley

Gregg

Hatch

Hatfield

Heflin

Jeffords

Kassebaum

Kempthorne

Lott

Lugar

Mack

McConnell

Moseley-Braun

Nickles

Packwood

Pressler

Reid

Santorum

Sarbanes

Shelby

Simon

Simpson

Smith

Snowe

Specter

Stevens

Thomas

Thompson

Thurmond

Warner

NAYS—28

Akaka

Biden

Bingaman

Breaux

Bumpers

Conrad

Daschle

Dodd

Dorgan

Exon

Ford

Glenn

Graham

Harkin

Hollings

Inouye

Johnston

Kennedy

Lautenberg

Levin

Lieberman

Mikulski

Moynihan

Murray

Pell

Robb

Rockefeller

Wellstone

NOT VOTING—20

Boxer

Bradley

Bryan

Domenici

Feingold

Feinstein

Gramm

Helms

Hutchison

Inhofe

Kerrey

Kerry

Kohl

Kyl

Leahy

McCain

Murkowski

Nunn

Pryor

Roth

So the motion to lay on the table the

amendment (No. 1200) was agreed to.

Mr. BYRD addressed the Chair.

The PRESIDING OFFICER. The Senator from West Virginia.

Mr. BYRD. Mr. President, has the

time expired on the Pastore rule?

The PRESIDING OFFICER. The Senate is still operating under the Pastore

rule.

Mr. BYRD. I ask unanimous consent

that I may speak out of order for not to

exceed 4 minutes.

The PRESIDING OFFICER. Is there

objection? Without objection, the Senator is recognized to speak out of order

for 4 minutes.

Mr. BYRD. I thank the Chair.

Mr. BYRD. Mr. President, I address

MEDIA DOUBLE STANDARD

fthe Senate today with respect to the

May 22, 1995, Washington Post style

section story by Howard Kurtz. The

substance of the article was to highlight the double standard adopted by

columnist George Will in criticizing

the Clinton administration’s decision

to add tariffs to Japanese luxury cars.

In lampooning the Clinton White

House for taking the tough trade stand

with Japan, Mr. Will failed to mention

his wife’s relationship as a lobbyist for

the Japanese automobile industry. According to the article, Mr. Will was

quite indignant to think that anyone

would suspect his motives. If a Member

of Congress or an administration official in a similar situation had taken

such a position, you can be sure that

the press, including Mr. Will, would

have taken him or her to task. Tomes

would have been written about the

abuse of power and corruption of the

system. Efforts would have been made

to discredit and to embarrass the individual. This railing would have gone on

until either an apology was forthcoming or, in some cases, until a resignation was tendered.

It is exactly this type of lack of an

ethical barometer on the part of the

media that tips the scales of fairness in

reporting. Members of the legislative,

executive, and judicial branches must

file regular financial reports and must

abide by stringent rules of ethics. This

is only proper in matters involving the

public’s trust.

My argument rests with the total

lack of parity in the communications

industry. There are no comparable ethical standards or rules which govern

the media. This is true despite the fact

that the levels of power and persuasion

are as great or greater with the press

than they are with those in public service. Until some effort is made to level

the playing field and throw out the

bias, the rampant cynicism and distrust on the part of the people will continue. Nothing points more dramatically to the need for change than Mr.

Will’s arrogance and lack of candor in

this instance.

I thank Mr. Kurtz for bringing this

matter to the attention of the American public, and I ask unanimous consent that the Washington Post article

be printed in the RECORD. I suggest

that all Senators who have not read it,

do so.

I yield the floor.

There being no objection, the article

was ordered to be printed in the

RECORD, as follows: