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[Congressional Record Volume 141, Number 92 (Wednesday, June 7, 1995)]
[Senate]
[Pages S7803-S7880]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                 COMPREHENSIVE TERRORISM PREVENTION ACT

  The PRESIDING OFFICER. Under the previous order, the hour of 9:45 
having arrived and passed, the Senate will now resume consideration of 
S. 735, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 735) to prevent and punish acts of terrorism, 
     and for other purposes.

  The Senate resumed consideration of the bill.

       Pending:
       Hatch-Dole amendment No. 1199, in the nature of a 
     substitute.

  Mr. SPECTER. Mr. President, the time has arrived for consideration of 
the pending bill on terrorism. The issues which are going to be taken 
up this morning involve habeas corpus reform. In the absence of any 
other Senator on the floor who desires to speak or offer an amendment, 
I will address the subject in a general way.
  Mr. President, the Specter-Hatch habeas corpus reform bill, S. 623, 
is a very important piece of legislation. The provisions of that bill 
will be taken up now as part of the pending antiterrorism bill. This 
bill is an appropriate place to take up habeas corpus reform, because 
the acts of terrorism in the atrocious bombing of the Federal building 
in Oklahoma City would carry with it the death penalty, and habeas 
corpus reform is very important in order to make the death penalty an 
effective deterrent.
  In order to have an effective deterrent, the penalty has to be 
certain and the penalty has to be swift. We have seen in the course of 
the appeals taken on cases from death row that they last sometimes as 
long as 20 years. Habeas corpus proceedings arising from Federal 
convictions are handled slightly differently than those arising out of 
State convictions, because in State proceedings, after the highest 
State court affirms the death penalty on direct review, there may then 
be additional State-court review called collateral review on State 
habeas corpus before review on Federal habeas corpus. Despite this 
slight difference, this is the time to move ahead with legislation to 
reform habeas corpus in all cases.
  This is a subject that I have been working on for many years, since 
my days as an assistant district attorney in Philadelphia and later as 
district attorney of Philadelphia. Since coming to the Senate in 1981, 
I have introduced many bills directed at improving the administration 
of criminal justice, like the armed career criminal bill, which was 
enacted in 1984, and other legislation which has dealt with expanding 
the prison system, improving the chances of realistic rehabilitation, 
and strengthening deterrent value of the criminal law. The subject of 
habeas corpus reform falls into the latter category.
  I have addressed habeas corpus reform on many occasions over the 
years and succeeded in 1990 in having the Senate pass an amendment to 
the 1990 crime bill on habeas corpus reform to try to reduce the long 
appellate time. Notwithstanding its passage by the Senate in 1990, the 
provision was not passed by the House of Representatives and was 
dropped from the conference report. I continued to introduce 
legislation on habeas corpus reform in 1991, 1993, and again in 1995. 
This year, after very extended negotiations with the distinguished 
Senator from Utah, the chairman of the Judiciary Committee, we came to 
an agreement on legislation which captioned the Specter-Hatch habeas 
corpus reform bill, S. 623, the provisions of which are now pending as 
part of this antiterrorism bill.
  Preliminarily, Mr. President, I think it important to note the 
controversy over whether the death penalty is, in fact, a deterrent 
against violent crime.
  It is my view that it is a deterrent, and I base that judgment on my 
own experience in prosecuting criminal cases, prosecuting personally 
murder cases, and running the district attorney's office in 
Philadelphia which had some 500 homicides a year at the time. 
[[Page S7804]] Based on this experience, I am personally convinced that 
many professional robbers and burglars are deterred from taking weapons 
in the course of their robberies and burglaries because of the fear 
that a killing will result, and that would be murder in the first 
degree.
  One of the cases which I handled many years ago as an assistant 
district attorney on appeal has convinced me that it is, in fact, a 
deterrent, and it is an illustrative case where there are many, many 
others which have been cited in treatises and the appellate reports.
  The case I refer to involved three young hoodlums named Williams, age 
19, Cater, 18, and Rivers, age 17. The three of them decided to rob a 
grocery store in north Philadelphia. They talked it over, and the 
oldest of the group, Williams, had a revolver which he brandished in 
front of his two younger coconspirators.
  When Cater, age 18, and Rivers, age 17, saw the gun they said to 
Williams that they would not go along on the robbery if he took the gun 
because of their fear that a death might result and they might face 
capital punishment--the electric chair.
  Williams put the gun in the drawer, slammed it shut, and they all 
left the room to go to the grocery store in north Philadelphia for the 
robbery, to get some money.
  Unbeknown to Cater or Rivers, Williams had reached back into the 
drawer, pulled out the gun, took it with him, and in the course of the 
robbery in the north Philadelphia grocery store, the proprietor, Jacob 
Viner, resisted. Williams pulled out his gun and shot and killed Mr. 
Viner, and all three were caught and charged with murder in the first 
degree. All were tried. All were given the death penalty.
  We know the facts of the case from the confessions and from the 
clearly established evidence as to what happened, as I have just 
recited it.
  Ultimately, Williams was executed in 1962, the second to the last 
individual to be executed in Pennsylvania until within the past few 
months there was an execution after a 33-year lapse in carrying out the 
death penalty in the State of Pennsylvania.
  When the matter came up on hearings before the pardon board, and I 
was district attorney, I agreed that the death penalty ought not to be 
carried out as to both Cater and Rivers because of the difference in 
their approach to the offense, that although technically they were 
guilty of the acts of their coconspirator, there was a significant 
qualitative difference, because they had refused to go along when the 
gun was to be taken and it was counter to the agreement and 
conspiratorial plan and scheme which the three carried out.
   It was not an easy distinction to make because many would say that 
Cater and Rivers were equally responsible with Williams and that they 
had participated in the murder plot and should be held to the death 
penalty as well. But their sentences were commuted.
  I think that case is a good illustration of the deterrent effect of 
capital punishment. Here you had two young men, 18 and 17, with very 
marginal IQ's, but they knew enough not to go along on a robbery if a 
gun was present because they might face the death penalty if a killing 
occurred.
  Mr. President, in the current context in which habeas corpus appeals 
now run for as long as a couple of decades, the deterrent effect of 
capital punishment has been virtually eliminated.
  There are many, many cases which illustrate this point. Many cases of 
brutal murders in which the case has dragged on and on for as long as 
17 years or more.
  One of them is the case of a man named Willie Turner. On the morning 
of July 12, 1978, he walked into the Smith Jewelers in Franklin, VA, 
carrying a sawed-off shotgun, wrapped in a towel. Without saying a 
word, Turner showed his shotgun to the proprietor, a man named Mr. Jack 
Smith.
  Mr. Smith triggered the silent alarm, and a police officer, Alan 
Bain, arrived at the scene. During the course of the events, the 
defendant, Turner, pointed his shotgun at officer Bain's head and 
ordered him to remove his revolver from his holster and to put it on 
the floor. Turner then eventually shot the proprietor, Jack Smith, in 
the head. The shot was not fatal.
  Then officer Bain began talking to Turner and he offered to take 
Turner out of the store if he would agree not to shoot anyone else. The 
defendant Turner then said, ``I'm going to kill this squealer,'' 
referring to the proprietor, Smith, who lay severely wounded. Turner 
reached over the counter with his revolver and fired two close-range 
shots into the left side of Mr. Smith's chest.
  The shots caused Smith's body to jump. Medical testimony established 
that either of these two shots to the chest would have been fatal. 
Turner was tried for murder in the first degree, was convicted, and was 
sentenced to death. The appeals lasted 17 years, with the victim's 
family attending some 19 separate court proceedings.
  It is not an easy matter, Mr. President, when we talk about capital 
punishment. It is my judgment, however, that society needs this 
ultimate weapon in order to try to deal with violent crime in America. 
That has been the judgment of some 38 States in the United States. That 
is a judgment of the Congress of the United States in enacting 
legislation on the death penalty on the crime bill which was passed 
last year--a very controversial bill with many aspects going in a 
number of directions, some with gun control, others with providing more 
police, others with building more prisons.
  I supported that bill, in large part because of the death penalty and 
the strong stands taken in that bill against violent crime.
  Mr. President, there are many, many cases which illustrate the 
enormous delays in the criminal justice system and one which I have 
cited on the floor before. The Congressional Record is replete with 
citations of cases which show the deterrent effect of the death penalty 
and show the enormous delays under habeas corpus, but the Robert Alton 
Harris case is one which shows it vividly.
  Defendant Harris was arraigned for a double murder back in July of 
1978. His case wound through the courts running for some 14 years until 
1992. In the course of this case, Mr. Harris filed 10 State habeas 
corpus petitions under the laws of California, 6 Federal habeas corpus 
petitions, 4 Federal stays of executions, there were 5 petitions for 
certiorari to the Supreme Court of the United States, and the case went 
on virtually interminably. Finally, in a very unusual order, the 
Supreme Court of the United States directed the lower Federal courts 
not to issue any more stays of execution for Harris.
  There is another aspect to these very long delays, Mr. President. It 
involves the question as to whether the protracted, lengthy period of 
time defendants wait to have their death sentences carried out is 
itself, in fact, cruel and unusual punishment.
  In a case before the Supreme Court of the United States as reported 
in the Washington Post on March 28 of this year, Justice Stevens, 
joined by Justice Breyer, called upon the lower courts to begin to 
examine whether executing a prisoner who has spent many years on death 
row violates the Constitution's prohibition on cruel and unusual 
punishment.
  There was a case in 1989 where the British Government declined to 
extradite a defendant, Jens Soering, to Virginia on murder charges 
until the prosecutor agreed not to seek the death penalty because the 
European Court of Human Rights had ruled that confinement in a Virginia 
prison for 6 to 8 years awaiting execution violated the European 
Convention on Human Rights.
  So we have a situation where these long delays involve continuing 
travail and pain to the family of the victims awaiting closure and 
awaiting disposition of the case. We also have an adjudication under 
the European Convention on Human Rights that concluded that the 
practice in the State of Virginia where cases were delayed for 6 to 8 
years constitutes cruel and unusual punishment--all of these factors 
come together. Delays now average over 9 years across the United 
States. It seems to me the Congress of the United States, which has the 
authority to establish timetables and procedures for the Federal 
courts, ought to act to make the death penalty an effective deterrent. 
This legislation will move precisely in that direction.
  Under the Specter-Hatch bill there will be a time limit of 6 months 
for the defendant to file his petition for a writ [[Page S7805]] of 
habeas corpus in the Federal courts in a capital case. At the present 
time, without any statute of limitations, some of those on death row 
wait until the death penalty is imminent before filing the petition. 
This will put into effect a 6-month time limit in capital cases, where 
the State has provided adequate counsel in its post-conviction 
proceedings. So there is motivation under the pending legislation for 
adequate counsel to be appointed by the States. Not only will the 
appointment of counsel expedite the process, but it will ensure that 
the defendant will be accorded his or her rights.
  After that period of time, a U.S. district court will have a period 
of 180 days to decide a habeas corpus petition in a capital case. That 
really is a sufficient period of time. That I can personally attest to 
from my own experience as an assistant district attorney and district 
attorney handling habeas corpus cases in both the State and Federal 
courts. If that time is insufficient, a judge can extend the time by 
writing an opinion stating his or her reasons. Right now, there are 
cases that have been pending before some Federal district judges for 
years. We must act to impose some limit on the length of time such 
cases are allowed to linger.
  This deadline is not unduly burdensome to a Federal judge, to take up 
a case and decide it in 6 months. Even in the States which have the 
highest incidence of capital punishment, with the most defendants on 
death row--Florida, California, Texas--each Federal judge would not 
have a case sooner than once every 18 months or so. On appeal, the 
Federal court of appeals would have the obligation to decide the case 
within 120 days of briefing.
  If a defendant sought to file any subsequent petition for habeas 
corpus, he would not be allowed to do so unless there was newly 
discovered evidence going to his guilt which could not have been 
available at an earlier time. This is a reasonably strict standard 
against filing repetitious petitions. And a second petition would be 
allowed only if the court of appeals agrees to permit the filing of the 
petition in the district court. Because the courts of appeals act in 
panels of three judges, two judges will have to agree that a subsequent 
petition satisfies the rigorous standards of this bill before it is 
filed in the district court.
  So I think we have set forth here a timetable which is realistic and 
reasonable, and a structure which will make the death penalty a 
meaningful deterrent, cutting back the time from some 20 years, in 
extreme cases, to a reasonable timeframe which can be done with 
fairness to all parties in the course of some 2 years.
  This legislation is not crafted in a way which is totally acceptable 
to me but it has been hammered out over the course of a great many 
negotiations and discussions with the distinguished Senator from Utah, 
the chairman. While he is on the floor I would like to praise him for 
his work in this field and for his work on the committee generally. 
This has been a very, very difficult matter to come to closure on. I 
think in the posture of the terrorism problem, that we are on the 
verge, now, of really moving forward and enacting this very important 
legislation.
  I think it will pass the Senate. I believe it will pass the House. I 
think once presented to the President, it will be enacted into law and 
will very significantly improve the administration of criminal justice 
in the United States.
  Mr. HATCH. Will my colleague yield?
  Mr. SPECTER. I do.
  Mr. HATCH. Mr. President, I thank my colleague for his kindness. I 
have to say we would not be as far along here on habeas corpus and 
having it in this bill if it was not for his leadership in this area. 
He is one of the few people in the whole Congress who really 
understands this issue very fully and thoroughly, and I have to give 
him an awful lot of credit on it.
  We have worked together with the States attorneys general to have the 
language we have in this bill. I hope everybody on this floor will vote 
down these amendments that are being brought up here today because I 
think it is the only way we can make the change and get rid of these 
frivolous appeals, save taxpayers billions of dollars, and get the 
system so it works in a just and fair way, the way it should.
  The amendment we have will protect civil liberties and constitutional 
rights while at the same time protecting the citizens and the victims 
and their families from the incessant appeals that really have been the 
norm in our society.
  So I thank my colleague for his leadership on this and I just 
personally respect him and appreciate him and consider him a great 
friend.
  We are prepared to go. We are supposed to have a vote at 10:15. I 
hope we can move ahead on the bill.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Campbell). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BIDEN. 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. BIDEN. Mr. President, I apologize to my colleague for being late.

                           Amendment No. 1217

(Purpose: To amend the bill with respect to deleting habeas corpus for 
                            State prisoners)

  Mr. BIDEN. Mr. President, I call up an amendment at the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Delaware [Mr. Biden] proposes an amendment 
     numbered 1217.

   Mr. BIDEN. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Delete title 6, subtitle A, and insert the following:

        Subtitle A--Collateral Review in Federal Criminal Cases

     SEC. 601. FILING DEADLINES.

       Section 2255 of title 28, United States Code, is amended--
       (1) by striking the second and fifth paragraphs; and
       (2) by adding at the end the following new paragraphs:
       ``A one-year period of limitation shall apply to a motion 
     under this section. The limitation period shall run from the 
     latest of--
       ``(1) the date on which the judgment of conviction becomes 
     final;
       ``(2) the date on which the impediment to making a motion 
     created by governmental action in violation of the 
     Constitution or laws of the United States is removed, if the 
     movement was prevented from making a motion by such 
     governmental action;
       ``(3) the date on which the right asserted was initially 
     recognized by the Supreme Court, if that right has been newly 
     recognized by the Supreme Court and is made retroactively 
     applicable; or
       ``(4) the date on which the facts supporting the claim or 
     claims presented could have been discovered through the 
     exercise of due diligence.
       ``In a proceeding under this section before a district 
     court, the final order shall be subject to review, on appeal, 
     by the court of appeals for the circuit in which the 
     proceeding is held only if a circuit justice or judges issues 
     a certificate of appealability. A certificate of 
     appealability may issue only if the movement has made a 
     substantial showing of the denial of a constitutional right. 
     A certificate of appealability shall indicate which specific 
     issue or issues shows such a denial of a constitutional 
     right.
       ``A claim presented in a second or successive motion under 
     this section that was presented in a prior motion shall be 
     dismissed.
       ``A claim presented in a second or successive motion under 
     this section that was not presented in a prior motion shall 
     be dismissed unless--
       ``(A) the movant shows the claim relies on a new rule of 
     constitutional law, made retroactive by the Supreme Court, 
     that was previously unavailable; or
       ``(B)(i) the factual predicate for the claim could not have 
     been discovered previously through the exercise of due 
     diligence; and
       ``(ii) the facts underlying the claim, if proven and viewed 
     in light of the evidence as a whole, would be sufficient to 
     establish by clear and convincing evidence that, but for 
     constitutional error, no reasonable factfinder would have 
     found the movant guilty of the underlying offense.
       ``Before a second or successive motion under this section 
     is filed in the district court, the movant shall move in the 
     appropriate court of appeals for an order authorizing the 
     district court to consider the application. A motion in the 
     court of appeals for an order authorizing the district court 
     to consider a second or successive motion shall be determined 
     by a three-judge panel of the court of appeals. The court of 
     appeals may authorize the filing of a second or successive 
     motion only if it determines that the motion makes a prima 
     facie showing that the motion satisfies the requirements in 
     this section. The court of appeals shall grant or deny the 
     authorization to file a second or successive motion not later 
     than 30 days after the filing of the motion. [[Page S7806]] 
       ``The grant or denial of an authorization by a court of 
     appeals to file a second or successive motion shall not be 
     appealable and shall not be the subject of a petition for 
     rehearing or a writ of certiorari.
       ``A district court shall dismiss any claim presented in a 
     second or successive motion that the court of appeals has 
     authorized to be filed unless the applicant shows that the 
     claim satisfies the requirements of this section.''.
  Mr. BIDEN. Mr. President, this is the first of a series of several 
amendments relating to habeas corpus. Habeas corpus is probably the 
most time honored phrase in our English jurisprudential criminal 
justice system, referred to as the Great Writ. But it is not very well 
understood by a vast majority of people including many lawyers.
   I say at the outset here that one of the things we are going to hear 
today--we are going to hear a great deal about how the system is 
abused. We are going to be told that time and again. We will see 
charts. We have been seeing these charts for years that show that a man 
or woman, in almost every case it has been a man, who has been 
sentenced to death, because of a series of frivolous appeals and 
successive habeas corpus petitions has remained in a prison cell and 
alive for--some of the examples of 10, 12, 14, 18 years after having 
committed the crime and having been convicted by a jury of their peers 
and having exhausted their appeals--after having committed a heinous 
crime. And we are left with the impression that the choice here is a 
stark choice between a continuation of a system where everybody 
convicted of a heinous crime and sentenced to death languishes in a 
prison for a decade or more, costing the system money and avoiding 
their ultimate fate that the choice is between that system and a system 
that essentially eliminates the right of a Federal court to review the 
actions taken by a State court to determine whether or not someone had 
been granted a fair trial. That is what habeas corpus is all about. 
Habeas corpus is all about saying when so and so is convicted, they 
were deprived of certain rights and opportunities and that they were 
not given a fair shake in the system.
  Habeas corpus came about and really came in the forefront of the 
American political and legal system around 1917 when the State of 
Georgia put to death someone who by everyone's account should not have 
been put to death, and there was no ability of the Federal court to 
review the actions taken by the Georgia State court. The reason I give 
this background--and in light of the fact that I got here a few minutes 
late and there are Senators who have commitments early in the morning 
on this, I am going to shorten this particular amendment. But what we 
are told is that--and you will hear time and again this morning--the 
system is terrible, everyone abuses the system, and essentially State 
courts do a good job. Why have the Federal courts in this thing at all? 
I realize I am putting colloquial terms to this, but that is the 
essence of it.
  The amendments that I am going to offer today and others will offer 
today are not designed to maintain the system as it is. We will show in 
future amendments that, if we amend the habeas corpus law the way we 
would like to as opposed to the way it is in the Republican bill, you 
still would have a situation where someone would have to have their 
fate executed and carried out after a trial by their peers and a 
finding of guilt within a very short amount of time. You would not have 
these 12-, 14-, 16-, or 18-year delays in implementing a court's 
decision.
  As my former associate--I was his associate--a very fine trial lawyer 
in Wilmington, DE, always would say to the jury, ``I hope we keep our 
eye on the ball here.'' I want us to try to focus, if we can, this 
morning. My colleagues on the Republican side of the aisle have 
repeatedly said in this bill that we must do something to ensure swift 
punishment of those who committed the Oklahoma City bombing. That is 
supposedly why, you might wonder, in a terrorism bill there is habeas 
corpus.
  Well, the constant argument put forward is, look, we have to do this 
because once we find the person who did this awful thing in Oklahoma 
and they are convicted and sentenced to death, the death penalty must 
be carried out swiftly. I might add, a bill that the Presiding Officer 
and I voted for, the Biden crime bill, is the only reason there is a 
death penalty. Had we not voted for that bill, had that not passed last 
year, this finding of a person who committed the bombing, that person 
under Federal law would not be eligible to be put to death. There is no 
question that because of the action you and I and others took last year 
there is a death penalty now.
  So unlike the World Trade Tower, no death penalty would be there 
under Federal law had we not passed the Biden crime bill then. Now 
there is. But they say now, once we find this person, we are going to 
go put them to death, what we have to do--this will be a Federal prison 
because under Federal law they will be prosecuted, not under the 
Oklahoma law but Federal law. They are eligible for the death penalty, 
and they will be convicted--I assume, and it is our fervent hope they 
will be convicted--and now they get sentenced to death. And the 
President and the Attorney General say they want the death penalty for 
whomever is convicted. My friends say, well, what we have to do now is 
have habeas corpus changed so no one will languish in prison. I do not 
think there is anybody in the Federal system right now--and I am 
looking to my staff for confirmation--who sits on death row filing 
habeas corpus petitions. There is one habeas corpus petition that has 
been filed in the Federal system.
  So what I want to say to my friends--and I will put the rest of this 
in the Record--is this has nothing to do with terrorism. Not one of the 
horror stories Senator Hatch has given or has given us on the Senate 
floor relates to a terrorist who was prosecuted in the Federal court. 
They all relate to someone who is prosecuted in State court and has 
spent too long sitting on death row. There are useful and practical 
steps we can take to prevent future terrorist activities. We can reform 
habeas corpus petitions for State court prisoners. But in reforming 
habeas corpus petitions for State court prisoners, not one of them will 
affect terrorism because--I want to make it real clear--if we have a 
terrorist convicted under Federal law in a Federal court, then Federal 
habeas applies.
  So my amendment is very simple. It says if you want to deal with 
terrorism, that is the purpose of putting habeas corpus in this bill 
and then limit it to Federal cases; limit it to Federal prisoners. That 
is the stated purpose. Do not go back and change the whole State court 
system. Do not go back and change the whole State habeas system on this 
bill. Debate it on a bill which should be the crime bill that is coming 
up in the next couple of weeks we are told.
  There was a lot of discussion yesterday about nongermane amendments. 
This amendment strikes the 95 percent of the habeas bill that is not 
germane and keeps the 5 percent that is germane. Ninety-five percent of 
what my friends have in this bill relates to State prisoners, State 
courts, and has nothing to do with terrorism, nothing to do with 
Oklahoma City, but 5 percent arguably does.
  My amendment says let us pass the 5 percent that has to do with 
Federal prisoners held in Federal prisons convicted in Federal courts 
and change the habeas the way they want for those prisoners. That will 
deal with Oklahoma City the way they say they want it and it will not 
mess up the 95 percent of the cases that deal with the State prisoners 
in State prisons in State courts and deny essentially Federal review of 
those State decisions.
  So I will reserve the remainder of my time by saying that it is 
simple. My amendment simply says, all right, if this is about Oklahoma 
City, let us have it about Oklahoma City. The provisions in the bill 
relate to Federal prisoners and Federal habeas corpus.
  Parliamentary inquiry: How much time remains?
  The PRESIDING OFFICER. The Senator from Delaware has 5 minutes 2 
seconds.
  Mr. BIDEN. I will reserve the remainder of my time.
  I yield the floor.
  Mr. HATCH. Mr. President, I rise in opposition to the amendment 
offered to limit habeas reform exclusively to Federal cases.
  Some have argued that habeas reform as applied to the States is not 
germane to this debate. Those individuals, including my distinguished 
colleague from Delaware, contend that a [[Page S7807]] reform of the 
Federal overview of State convictions is meaningless in the context of 
the debate we are having. They are perhaps willing to admit that some 
revision of the collateral review of cases tried in Federal court may 
be in order, but they contend that reform of Federal collateral review 
of cases tried in State court is unnecessary.
  This position is simply incorrect. I would like to read from a letter 
written by Robert H. Macy, district attorney of Oklahoma City, and a 
Democrat:

       [I]mmediately following the trial or trials in federal 
     court, I shall, working in cooperation with the United States 
     Department of Justice and the Federal law enforcement 
     agencies investigating the bombing of the Alfred P. Murrah 
     Building, prosecute in Oklahoma State court the cowards 
     responsible for murdering innocent people in the area 
     surrounding the federal building. And I shall seek the death 
     penalty. We must never forget that this bombing took several 
     lives and injured dozens of persons in the neighborhood and 
     businesses near the building. The State of Oklahoma has an 
     overwhelming, compelling interest to seek, and obtain the 
     maximum penalty allowable by law for the senseless and 
     cowardly killings.

  In our reaction to the destruction of the Federal building in 
Oklahoma City, we may overlook the fact that the bombing also caused 
the death of people who were not inside the building itself, or even on 
Federal property. The State of Oklahoma, not the Federal Government, 
will thus prosecute those responsible for the bombing that killed 
people outside of the Federal building. In those instances, Federal 
jurisdiction may not obtain and it will thus be necessary to prosecute 
the killers in State, as well as
 Federal, court.

  A failure to enact a complete, meaningful, reform of habeas corpus 
proceedings may enable the individuals in this case, provided they are 
apprehended and duly convicted, to frustrate the demands of justice. 
The blood of the innocent men and women are on the hands of the evil 
cowards who committed this terrible tragedy. Justice must be, as 
President Clinton declared, ``swift, certain, and severe.''
  Moreover, failure to enact meaningful, comprehensive, habeas reform 
will permit other killers who have terrorized their communities to 
continue to frustrate the judicial system. If we adopt the proposed 
amendment, we will create a schism between State and Federal capital 
law. In other words, murders tried in Federal court will face 
imposition of their final penalty more swiftly than persons tried for 
capital crimes in State cases. Why should we adopt such a piecemeal 
approach to reform, one that will leave such a gap between State and 
Federal cases? It simply makes no sense to reform habeas proceedings 
for cases tried in Federal court but leave the current disastrous 
system in place for cases tried in State court.
  As of January 1, 1995, there were some 2,976 inmates on death row. 
Yet, only 38 prisoners were executed last year, and the States have 
executed only 263 criminals since 1973. Abuse of the habeas process 
features strongly in the extraordinary delay between sentence and the 
carrying out of that sentence.
  In my home State of Utah, for example, convicted murderer William 
Andrews delayed the imposition of a constitutionally imposed death 
sentence for over 18 years. The State had to put up millions of dollars 
in precious criminal justice resources to litigate his meritless 
claims. His guilt was never in question. He was not an innocent person 
seeking freedom from an illegal punishment. Rather, he simply wanted to 
frustrate the imposition of punishment his heinous crimes warranted.
  This abuse of habeas corpus litigation, particularly in those cases 
involving lawfully imposed death sentences, has taken a dreadful toll 
on victims' families, seriously eroded the public's confidence in our 
criminal justice system, and drained State criminal justice resources. 
This is simply not a just system.
  Justice demands that lawfully imposed sentences be carried out. 
Justice demands that we now adopt meaningful habeas corpus reform. 
Justice demands that we not permit those who would perpetuate the 
current system to steer us from our course. We must do as the victims, 
families, and friends of those who have asked us to do: enact 
meaningful, comprehensive habeas reform now.
  Mr. President, I know a number of our colleagues are ready to vote on 
this. Let me just make three or four points that I think are important 
with regard to the amendment of my friend and colleague.
  I contend that the Biden amendment--and I think anybody who reads it 
would gut the habeas corpus title of this bill by applying habeas 
corpus reform solely to Federal capital convictions thus making reform 
inapplicable to the majority of capital cases including the Oklahoma 
State prosecution for murders of some of the people killed in Oklahoma. 
I am referring to those victims who were not Federal employees but were 
killed by the blast while outside of the building. If this amendment 
passes, there would be no habeas reform that would apply to them.
  So I would like to make three additional points about why we should 
not vote for the Biden amendment before I move to table the amendment.
  First, I have made this point that where people who were not Federal 
employees were outside the building, the terrorist will be prosecuted 
in State court for those people.
  I ask unanimous consent that a letter from Robert H. Macy, a Democrat 
district attorney of Oklahoma City, be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                State of Oklahoma,

                                            District Attorney,

                                  Oklahoma City, OK, May 24, 1995.
     Senator Orrin G. Hatch,
     Chairman, Judiciary, Dirksen Senate Office, Washington, DC.
       Dear Senator Hatch: The purpose of this letter is to 
     express my support for the inclusion of the provisions for 
     reform of Federal Habeas Corpus authored by Senator Spector 
     and you in the Anti-terrorism Bill, S735. Apparently some 
     persons have raised questions about the appropriateness of 
     this measure. Specifically, I have been told that there are 
     some who do not see the importance of these reform measures 
     in cases, such as the Oklahoma City bombing, which will 
     initially be prosecuted by Federal Court.
       There are two points I would like to make in response to 
     those questions. First, immediately following the trial or 
     trials in Federal Court, I shall, working in cooperation with 
     the United States Department of Justice and the Federal law 
     enforcement agencies investigating the bombing of the Alfred 
     P. Murrah Building, prosecute in Oklahoma State Court the 
     cowards responsible for murdering innocent people in the area 
     surrounding the federal building. And I shall seek the death 
     penalty. We must never forget that this bombing took several 
     lives and injured dozens of persons in the neighborhood and 
     businesses near the building. The State of Oklahoma has an 
     overwhelming, compelling interest to seek and obtain the 
     maximum penalty allowable by law for the senseless and 
     cowardly killings. Not only is it in the interest of the 
     State, it is my sworn duty to seek those sanctions, and I 
     intend to fully carry out my responsibilities.
       The reform measures contained in the Spector, Hatch, Dole 
     Habeas Corpus Reform measures contained in S735 will in my 
     judgment significantly curb the abuse and delays inherent in 
     current habeas practice. Every day of delay represents a 
     victory for these cowardly cold blooded killers and another 
     day of defeat and suffering for the victims and all other 
     Americans who cry out for justice.
       Secondly, your reform provisions will also create 
     significant time savings during appeals from federal 
     convictions as well. Examples of this include:
       Time limitations on when habeas petitions may be filed; 
     time deadlines on when federal courts must rule on habeas 
     petitions; a requirement that federal courts prioritize 
     consideration of capital appeals; reform of the abuses 
     inherent in the probable cause process; limitations on second 
     and successive petitions.
       As Chairman of the Board of Directors of the National 
     District Attorney's Association I am proud to inform you that 
     America's prosecutors speak with one voice and that we are 
     calling upon you and your colleagues to set your priorities 
     and enact reforms which will provide to every convicted 
     murderer the rights guaranteed by the constitution, but 
     absolutely no further consideration or delay than is 
     constitutionally required.
           Respectfully,
                                                   Robert H. Macy,
                                                District Attorney.

  Mr. HATCH. Mr. President, in this letter, Mr. Macy makes it very 
clear that he intends to prosecute these terrorists under State law who 
caused the Oklahoma City bombing. If he does, the Biden amendment will 
not apply to them. So they can be on death row, even though we want 
swift, secure, and fast judgment, they would be on death row for 
anywhere up to 50 years, which is the case of one person in our society 

[[Page S7808]] today still sitting on death row almost 50 years later.
  So, first, it does not take care of those Federal employees who were 
killed outside the building should the State of Oklahoma choose to 
prosecute those responsible--as Robert Macy has stated will occur.
  Second, we do not want piecemeal reform. If a robber kills one of the 
Federal employees the night before the bombing in Oklahoma City or 
anywhere else, why should we treat that killer any differently from the 
Oklahoma terrorists simply because he would be tried in a State court 
rather than a Federal court? We need to have it apply across the board, 
and the vast majority of murders are committed in the States and 
prosecuted by the State courts, and they would not be affected by the 
Biden amendment.
  Third, let us say that the Federal Government prosecutors, for some 
reason or other, blow the prosecution. Assume we are unable to get a 
conviction against these terrorists in the Federal courts. The double 
jeopardy clause still allows the State to prosecute those terrorists or 
those murderers in State court under State law. But if they do 
prosecute them and we do not reform Federal habeas corpus review of 
State cases, then we will have the same incessant, frivolous appeals ad 
hominem, day and night, from that point on because this amendment would 
not take care of that problem. If we are going to pass habeas reform, 
let us pass real habeas reform. Let us do it straight up. Let us 
protect the constitutional rights, which our amendment does do in the 
bill. Let us protect civil liberties, but let us get some finality into 
the law so that the frivolous appeal game will be over.
  Basically, those are the three things: People killed who are not 
Federal employees outside the building, those prosecutions will be 
brought in State court. And the Biden amendment would not apply to the 
benefit of habeas reform to that case. We do not want piecemeal reform. 
If a robber kills a Federal employee the night before the bombing in 
Oklahoma City, just to give a hypothetical, and the State has to bring 
the murder action against that individual, then why should that person 
not be subject to the same rules as the murderers in the Oklahoma City 
bombing? And if the Federal prosecutor blows the prosecution, why 
should not the State prosecutor be able to bring action under the State 
laws and under those circumstances prosecute the killers and have the 
same rule apply under those circumstances as well?
  Mr. BIDEN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. BIDEN. I will be very brief in reply.
  With regard to the point that if someone is not a Federal employee 
outside the building is killed, fortunately, we passed the Biden crime 
bill last year, and under title 18, section 2332(A) ``Use of Weapons of 
Mass Destruction''--I would refer my colleague to that--anyone killed 
at all, whether sitting across the street drinking a cup of coffee, 
whether they are riding by in their automobile, whether they are a 
Federal employee or whether they are an alien, it does not matter; they 
are subject to the Federal death penalty. So the Senator is missing the 
point.
  Second, we do want universal reform of habeas corpus. Let us do it on 
a bill that we are supposed to do it on. Let us do it on the crime 
bill.
  And, No. 3, as to the idea that we are somehow going to have two 
different standards apply, the real issue is under what circumstances 
does a Federal court have a right to review a State court's judgment. 
It has nothing to do with terrorism under this provision. It has 
nothing to do with Oklahoma City. We should deal with it. We should 
discuss it. We should debate it, not on this bill.
  I am prepared, whenever the Senator wants, to move to the tabling of 
my amendment.
  Mr. HATCH. I am prepared to yield. Let me just make a point that a 
State prosecutor--a Democrat--is going to prosecute these terrorists, 
and this habeas reform, if the Biden amendment passes, will not apply 
to them. And that, in a nutshell, is the problem with this amendment. 
We ought to make our habeas reform apply to both Federal and State 
convictions.
  Mr. President, I move to table the amendment and ask for the yeas and 
nays.
  The PRESIDING OFFICER. Do Senators yield back their time?
  Mr. HATCH. I yield back the time.
  Mr. BIDEN. Mr. President, I would take issue with the last statement 
of my friend. I will not debate it now. We will have plenty of time to 
do that.
  I yield back my time.
  Mr. HATCH. I yield back my time.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
table the amendment. The yeas and nays have been ordered. The clerk 
will call the roll.
  Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm], the 
Senator from New Hampshire [Mr. Gregg], the Senator from Pennsylvania 
[Mr. Santorum], and the Senator from Wyoming [Mr. Simpson], are 
necessarily absent.
  I further announce that, if present and voting, the Senator from 
Wyoming [Mr. Simpson], would vote ``yea.''
  Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad], 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 67, nays 28, as follows:

                      [Rollcall Vote No. 237 Leg.]
                                YEAS--67
     Abraham
     Ashcroft
     Baucus
     Bennett
     Bingaman
     Bond
     Breaux
     Brown
     Bryan
     Burns
     Byrd
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Exon
     Faircloth
     Feinstein
     Ford
     Frist
     Gorton
     Graham
     Grams
     Grassley
     Hatch
     Heflin
     Helms
     Hollings
     Hutchison
     Inhofe
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kerrey
     Kyl
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Nunn
     Pressler
     Pryor
     Reid
     Robb
     Rockefeller
     Roth
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner
                                NAYS--28
     Akaka
     Biden
     Boxer
     Bradley
     Bumpers
     Daschle
     Dodd
     Dorgan
     Feingold
     Glenn
     Harkin
     Hatfield
     Inouye
     Kennedy
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Packwood
     Pell
     Sarbanes
     Simon
     Wellstone
                             NOT VOTING--5
     Conrad
     Gramm
     Gregg
     Santorum
     Simpson
  So the motion to table the amendment (No. 1217) was agreed to.
  Mr. BIDEN. Mr. President, I understand one of our colleagues thought 
this was an up-or-down vote as opposed to a tabling motion and would 
like to ask unanimous consent to change the vote which will not affect 
the outcome.
                             Change of Vote
  Mrs. BOXER. On this last rollcall vote No. 237, I voted ``yea.'' It 
was my intention to vote ``nay.'' Therefore, I ask unanimous consent 
that I be permitted to change my vote. This will in no way change the 
outcome of the vote.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  (The foregoing tally has been changed to reflect the above order.)
  Mr. KENNEDY. Mr. President, I rise to speak generally on the subject 
of habeas corpus and in support of the amendments by Senators Biden and 
Levin that will be offered to the bill.
  At the outset, I want to emphasize my support for passage of a strong 
antiterrorism bill that gives law enforcement agencies the tools they 
need to combat crimes of terror at home and abroad. I commend President 
Clinton and the Senators who brought in legislation expeditiously 
before the Senate. There is much in this legislation that deserves to 
be enacted into law as soon as possible.
  It is unfortunate, therefore, that the proponents of the bill have 
injected into it an unrelated and highly controversial subject; namely, 
drastic changes to longstanding law relating to habeas corpus.
  The manager of the bill says that habeas corpus is relevant because 
the suspects charged in the Oklahoma City 
[[Page S7809]] bombings are charged with a capital offense. But that 
fact presents absolutely no justification for changing the rules with 
regard to State prisoners.
  The inclusion of sweeping habeas corpus reform in this bill is the 
worst kind of opportunism, and I regret that it has occurred in the 
wake of this national tragedy.
  When, and if, capital punishment is imposed, it must be imposed in a 
constitutional manner. That is accomplished through the writ of habeas 
corpus--a process so central to our constitutional system of Government 
that it is often called the ``Great Writ.''
  Clearly, some form of habeas corpus is needed to avoid excessive 
litigation, repetitive reviews, and the delays that sometimes 
characterize the present system. In a series of decisions over the past 
10 years, the Supreme Court itself has imposed certain restrictions on 
the ability of death row inmates to obtain review through habeas 
corpus, and the issue has brought heated controversy to our 
congressional debates on crime bills in recent years.
  In the past, Senator Biden, among others, has proposed legislation to 
limit the number and length of death row appeals, but at the same time 
to make sure that post-conviction review in the Federal courts is 
meaningful. But he adhered to the sensible conclusion of former Justice 
Lewis Powell, who in a landmark report commissioned by Chief Justice 
Rehnquist said the following:

       Capital cases should be subject to one fair and complete 
     course of collateral review through the State and Federal 
     system. Where the death penalty is involved, fairness means a 
     searching and impartial review of the propriety of the 
     sentence.

  But the bill before us today does not strike a fair balance. It 
actually precludes the meaningful review that Justice Powell said was 
necessary, and it increases the likelihood that innocent people will be 
executed in this country.
  A principal problem is that this bill does nothing to ensure that 
death penalty defendants receive adequate legal representation at their 
original trial.
  As many as 20 percent of all death sentences are overturned after 
Federal habeas corpus review, very often because a defendant has been 
inadequately represented at trial.
  This bill also eliminates the current requirement that poor 
defendants receive appointed counsel in Federal habeas corpus 
proceedings. I reject that view. The appointment of attorneys for death 
row inmates is not a question of sympathy, it is a question of 
fundamental fairness.
  In addition, the bill limits the circumstances under which a death 
row inmate may raise a claim of innocence based on newly discovered 
evidence. The proposal to limit inmates to one bite at the apple is 
sound in principle, but surely our interest in swift executions must 
give way in the face of new evidence that an innocent person is about 
to be put to death.
  At any time prior to the execution there must be a forum in which 
non-frivolous claims of innocence can be heard. As Supreme Court 
Justice Potter Stewart once wrote, ``swift justice demands more than 
just swiftness.''
  Finally, the bill might be read to require Federal courts to defer to 
State courts on issues of Federal constitutional law. In part the bill 
states that a Federal court cannot grant a writ of habeas corpus based 
on Federal constitutional claims unless the State court judgment was an 
``unreasonable application of Federal law.''
  No one thinks that under current law the Federal courts just ignore 
State court decisions, even on questions of Federal constitutional law. 
The federal courts respect the State courts and give their decisions a 
great deal of attention. The specialists I have talked to tell me that 
the Federal courts, even now, grant relief on constitutional claims 
only when it is pretty clear that a prisoner's constitutional rights 
were violated.
  This being true, a bill that tells the Federal courts that they 
should not grant relief unless they are satisfied that a prisoner's 
clearly established rights were violated may not change things very 
much.
  I do not see the need for this kind of language in the bill, but to 
the extent it allows the Federal courts to do what they are doing now, 
it may do no great harm. I just hope that, if the bill is adopted, it 
will be interpreted correctly.
  A contrary interpretation would stand our Federal system on its head. 
Why should a Federal court defer to the judgment of a State court on a 
matter of Federal constitutional law? The notion that a Federal court 
would be rendered incapable of correcting a constitutional error 
because it was not an unreasonable constitutional error is 
unacceptable, especially in capital cases.
  Ever since the days of the great Chief Justice John Marshall, the 
Federal courts have historically served as the great defenders of 
constitutional protections. They must remain so.
  Whatever the merits of this sweeping habeas corpus reform, such 
drastic changes should not be adopted on this bill. Nothing in this 
legislation would be more detrimental to the values of the Nation and 
our Constitution than for Congress, in its rush to combat terrorism, to 
strip away venerable constitutional questions.
  The perpetrators of the Oklahoma City tragedy will have triumphed if 
their actions promote us to short-circuit the Constitution.
  This bill goes far beyond terrorism and far beyond Federal prisoners. 
It severely limits the ability of any State prisoner--not just 
terrorists, but any State prisoner--to seek Federal court review of 
constitutional rights. This is an extremely controversial, very 
complicated proposal. It is wrong to try to sneak it into an 
antiterrorism bill that we all want to pass as quickly as we reasonably 
can.
  The debate on comprehensive habeas corpus reform should take place 
when we take up the omnibus crime bill. The attempt to jam it into the 
pending bill is a cynical attempt to manipulate public concern about 
terrorism, and the Congress should reject it.
  I urge the Senate to act responsibly on this critical issue. We 
should adopt the Biden and Levin amendments on the subject, and if 
necessary resume the rest of the debate on habeas corpus when the crime 
bill comes before the Senate.
  (Mr. KYL assumed the chair.)
  Mr. DOLE. Mr. President, I wanted to indicate we now have to dispose 
of the Biden amendment No. 1217. My understanding is that the Senator 
from Delaware is prepared to offer a second.
  Mr. BIDEN. Mr. President, my intention would be to offer the second 
amendment on counsel standards required in Federal habeas corpus cases. 
I think the number is 1226.
  Then I will have one more. The most important, from my perspective, 
of the amendments I have is the one relating to the deference standard 
that is in the Republican bill.
  Senator Graham of Florida has indicated to me that he will not offer 
his amendment. Senator Levin, I believe, will be ready to offer his 
amendment shortly.
  I would respectfully request that the Presiding Officer, Mr. Kyl, 
offer his amendment sometime between that. It is my intention to offer 
my amendment last. I will offer the first three, but the last amendment 
on habeas I would like very much to be my amendment on deference.
  We will by that time have eliminated all Democratic amendments. I 
understand there is one--unless Mr. Kyl is withdrawing his--there is 
one amendment on the other side.
  Mr. DOLE. We have one, and we have 30 minutes equally divided on this 
amendment.
  Mr. BIDEN. I am happy to do that. We have apparently not reached a 
time agreement. I am prepared to enter now into a time agreement on 
this amendment of 30 minutes equally divided.
  Mr. DOLE. Mr. President, I make that request.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                Amendment No. 1226 to Amendment No. 1199

   (Purpose: To amend the bill with respect to requiring counsel for 
                      federal habeas proceedings)

  Mr. BIDEN. Mr. President, I send an amendment to the desk and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Delaware [Mr. Biden], proposes an 
     amendment numbered 1226 to amendment No. 1199.

  Mr. BIDEN. Mr. President, I ask unanimous consent further reading be 
dispensed with. [[Page S7810]] 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Delete from page 106, line 20 through all of page 125 and 
     insert the following:
       ``(h) The ineffectiveness or incompetence of counsel during 
     Federal or State collateral post-conviction proceedings shall 
     not be a ground for relief in a proceeding arising under 
     section 2254.''.

     SEC. 605. SECTION 2255 AMENDMENTS.

       Section 2255 of title 28, United States Code, is amended--
       (1) by striking the second and fifth undesignated 
     paragraphs; and
       (2) by adding at the end the following new undesignated 
     paragraphs:
       ``A 1-year period of limitation shall apply to a motion 
     under this section. The limitation period shall run from the 
     latest of--
       ``(1) the date on which the judgment of conviction becomes 
     final;
       ``(2) the date on which the impediment to making a motion 
     created by governmental action in violation of the 
     Constitution or laws of the United States is removed, if the 
     movant was prevented from making a motion by such 
     governmental action;
       ``(3) the date on which the right asserted was initially 
     recognized by the Supreme Court, if that right has been newly 
     recognized by the Supreme Court and made retroactively 
     applicable to cases on collateral review; or
       ``(4) the date on which the facts supporting the claim or 
     claims presented could have been discovered through the 
     exercise of due diligence.
       ``In all proceedings brought under this section, and any 
     subsequent proceedings on review, appointment of counsel for 
     a movant who is or becomes financially unable to afford 
     counsel shall be in the discretion of the court, except as 
     provided by a rule promulgated by the Supreme Court pursuant 
     to statutory authority. Appointment of counsel under this 
     section shall be governed by section 3006A of title 18.
       ``A second or successive motion must be certified as 
     provided in section 2244 by a panel of the appropriate court 
     of appeals to contain--
       ``(1) newly discovered evidence that, if proven and viewed 
     in light of the evidence as a whole, would be sufficient to 
     establish by clear and convincing evidence that no reasonable 
     factfinder would have found the movant guilty of the offense; 
     or
       ``(2) a new rule of constitutional law, made retroactive to 
     cases on collateral review by the Supreme Court, that was 
     previously unavailable.''.

     SEC. 606. LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS.

       (a) Conforming Amendment to Section 2244(a).--Section 
     2244(a) of title 28, United States Code, is amended by 
     striking ``and the petition'' and all that follows through 
     ``by such inquiry.'' and inserting ``, except as provided in 
     section 2255.''.
       (b) Limits on Second or Successive Applications.--Section 
     2244(b) of title 28, United States Code, is amended to read 
     as follows:
       ``(b)(1) A claim presented in a second or successive habeas 
     corpus application under section 2254 that was presented in a 
     prior application shall be dismissed.
       ``(2) A claim presented in a second or successive habeas 
     corpus application under section 2254 that was not presented 
     in a prior application shall be dismissed unless--
       ``(A) the applicant shows that the claim relies on a new 
     rule of constitutional law, made retroactive to cases on 
     collateral review by the Supreme Court, that was previously 
     unavailable; or
       ``(B)(i) the factual predicate for the claim could not have 
     been discovered previously through the exercise of due 
     diligence; and
       ``(ii) the facts underlying the claim, if proven and viewed 
     in light of the evidence as a whole, would be sufficient to 
     establish by clear and convincing evidence that, but for 
     constitutional error, no reasonable factfinder would have 
     found the applicant guilty of the underlying offense.
       ``(3)(A) Before a second or successive application 
     permitted by this section is filed in the district court, the 
     applicant shall move in the appropriate court of appeals for 
     an order authorizing the district court to consider the 
     application.
       ``(B) A motion in the court of appeals for an order 
     authorizing the district court to consider a second or 
     successive application shall be determined by a three-judge 
     panel of the court of appeals.
       ``(C) The court of appeals may authorize the filing of a 
     second or successive application only if it determines that 
     the application makes a prima facie showing that the 
     application satisfies the requirements of this subsection.
       ``(D) The court of appeals shall grant or deny the 
     authorization to file a second or successive application not 
     later than 30 days after the filing of the motion.
       ``(E) The grant or denial of an authorization by a court of 
     appeals to file a second or successive application shall not 
     be appealable and shall not be the subject of a petition for 
     rehearing or for a writ of certiorari.
       ``(4) A district court shall dismiss any claim presented in 
     a second or successive application that the court of appeals 
     has authorized to be filed unless the applicant shows that 
     the claim satisfies the requirements of this section.''.
     SEC. 607. DEATH PENALTY LITIGATION PROCEDURES.

       (a) Addition of Chapter to Title 28, United States Code.--
     Title 28, United States Code, is amended by inserting after 
     chapter 153 the following new chapter:

    ``CHAPTER 154--SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES
``Sec.
``2261. Prisoners in State custody subject to capital sentence; 
              appointment of counsel; requirement of rule of court or 
              statute; procedures for appointment.
``2262. Mandatory stay of execution; duration; limits on stays of 
              execution; successive petitions.
``2263. Filing of habeas corpus application; time requirements; tolling 
              rules.
``2264. Scope of Federal review; district court adjudications.
``2265. Application to State unitary review procedure.
``2266. Limitation periods for determining applications and motions.
     ``Sec. 2261. Prisoners in State custody subject to capital 
       sentence; appointment of counsel; requirement of rule of 
       court or statute; procedures for appointment

       ``(a) This chapter shall apply to cases arising under 
     section 2254 brought by prisoners in State custody who are 
     subject to a capital sentence. It shall apply only if the 
     provisions of subsections (b) and (c) are satisfied.
       ``(b) This chapter is applicable if a State establishes by 
     statute, rule of its court of last resort, or by another 
     agency authorized by State law, a mechanism for the 
     appointment, compensation, and payment of reasonable 
     litigation expenses of competent counsel in State post-
     conviction proceedings brought by indigent prisoners whose 
     capital convictions and sentences have been upheld on direct 
     appeal to the court of last resort in the State or have 
     otherwise become final for State law purposes. The rule of 
     court or statute must provide standards of competency for the 
     appointment of such counsel.
       ``(c) Any mechanism for the appointment, compensation, and 
     reimbursement of counsel as provided in subsection (b) must 
     offer counsel to all State prisoners under capital sentence 
     and must provide for the entry of an order by a court of 
     record--
       ``(1) appointing one or more counsels to represent the 
     prisoner upon a finding that the prisoner is indigent and 
     accepted the offer or is unable competently to decide whether 
     to accept or reject the offer;
       ``(2) finding, after a hearing if necessary, that the 
     prisoner rejected the offer of counsel and made the decision 
     with an understanding of its legal consequences; or
       ``(3) denying the appointment of counsel upon a finding 
     that the prisoner is not indigent.
       ``(d) No counsel appointed pursuant to subsections (b) and 
     (c) to represent a State prisoner under capital sentence 
     shall have previously represented the prisoner at trial or on 
     direct appeal in the case for which the appointment is made 
     unless the prisoner and counsel expressly request continued 
     representation.
       ``(e) The ineffectiveness or incompetence of counsel during 
     State or Federal post-conviction proceedings in a capital 
     case shall not be a ground for relief in a proceeding arising 
     under section 2254. This limitation shall not preclude the 
     appointment of different counsel, on the court's own motion 
     or at the request of the prisoner, at any phase of State or 
     Federal post-conviction proceedings on the basis of the 
     ineffectiveness or incompetence of counsel in such 
     proceedings.

     ``Sec. 2262. Mandatory stay of execution; duration; limits on 
       stays of execution; successive petitions

       ``(a) Upon the entry in the appropriate State court of 
     record of an order under section 2261(c), a warrant or order 
     setting an execution date for a State prisoner shall be 
     stayed upon application to any court that would have 
     jurisdiction over any proceedings filed under section 2254. 
     The application shall recite that the State has invoked the 
     post-conviction review procedures of this chapter and that 
     the scheduled execution is subject to stay.
       ``(b) A stay of execution granted pursuant to subsection 
     (a) shall expire if--
       ``(1) a State prisoner fails to file a habeas corpus 
     application under section 2254 within the time required in 
     section 2263;
       ``(2) before a court of competent jurisdiction, in the 
     presence of counsel, unless the prisoner has competently and 
     knowingly waived such counsel, and after having been advised 
     of the consequences, a State prisoner under capital sentence 
     waives the right to pursue habeas corpus review under section 
     2254; or
       ``(3) a State prisoner files a habeas corpus petition under 
     section 2254 within the time required by section 2263 and 
     fails to make a substantial showing of the denial of a 
     Federal right or is denied relief in the district court or at 
     any subsequent stage of review.
       ``(c) If one of the conditions in subsection (b) has 
     occurred, no Federal court thereafter shall have the 
     authority to enter a stay of execution in the case, unless 
     the court of appeals approves the filing of a second or 
     successive application under section 2244(b).

     ``Sec. 2263. Filing of habeas corpus application; time 
       requirements; tolling rules

       ``(a) Any application under this chapter for habeas corpus 
     relief under section 2254 must be filed in the appropriate 
     district court not later than 180 days after final State 
     court affirmance of the conviction and sentence on 
     [[Page S7811]] direct review or the expiration of the time 
     for seeking such review.
       ``(b) The time requirements established by subsection (a) 
     shall be tolled--
       ``(1) from the date that a petition for certiorari is filed 
     in the Supreme Court until the date of final disposition of 
     the petition if a State prisoner files the petition to secure 
     review by the Supreme Court of the affirmance of a capital 
     sentence on direct review by the court of last resort of the 
     State or other final State court decision on direct review;
       ``(2) from the date on which the first petition for post-
     conviction review or other collateral relief is filed until 
     the final State court disposition of such petition; and
       ``(3) during an additional period not to exceed 30 days, 
     if--
       ``(A) a motion for an extension of time is filed in the 
     Federal district court that would have jurisdiction over the 
     case upon the filing of a habeas corpus application under 
     section 2254; and
       ``(B) a showing of good cause is made for the failure to 
     file the habeas corpus application within the time period 
     established by this section.

     ``Sec. 2264. Scope of Federal review; district court 
       adjudications

       ``(a) Whenever a State prisoner under capital sentence 
     files a petition for habeas corpus relief to which this 
     chapter applies, the district court shall only consider a 
     claim or claims that have been raised and decided on the 
     merits in the State courts, unless the failure to raise the 
     claim properly is--
       ``(1) the result of State action in violation of the 
     Constitution or laws of the United States;
       ``(2) the result of the Supreme Court recognition of a new 
     Federal right made retroactively applicable to cases on 
     collateral review by the Supreme Court; or
       ``(3) based on a factual predicate that could not have been 
     discovered through the exercise of due diligence in time to 
     present the claim for State or Federal post-conviction 
     review.
       ``(b) Following review subject to subsections (a), (d), and 
     (e) of section 2254, the court shall rule on the claims 
     properly before it.

     ``Sec. 2265. Application to State unitary review procedure

       ``(a) For purposes of this section, a `unitary review' 
     procedure means a State procedure that authorizes a person 
     under sentence of death to raise, in the course of direct 
     review of the judgment, such claims as could be raised on 
     collateral attack. This chapter shall apply, as provided in 
     this section, in relation to a State unitary review procedure 
     if the State establishes by rule of its court of last resort 
     or by statute a mechanism for the appointment, compensation, 
     and payment of reasonable litigation expenses of competent 
     counsel in the unitary review proceedings, including expenses 
     relating to the litigation of collateral claims in the 
     proceedings. The rule of court or statute must provide 
     standards of competency for the appointment of such counsel.
       ``(b) To qualify under this section, a unitary review 
     procedure must include an offer of counsel following trial 
     for the purpose of representation on unitary review, and 
     entry of an order, as provided in section 2261(c), concerning 
     appointment of counsel or waiver or denial of appointment of 
     counsel for that purpose. No counsel appointed to represent 
     the prisoner in the unitary review proceedings shall have 
     previously represented the prisoner at trial in the case for 
     which the appointment is made unless the prisoner and counsel 
     expressly request continued representation.
       ``(c) Sections 2262, 2263, 2264, and 2266 shall apply in 
     relation to cases involving a sentence of death from any 
     State having a unitary review procedure that qualifies under 
     this section. References to State `post-conviction review' 
     and `direct review' in such sections shall be understood as 
     referring to unitary review under the State procedure. The 
     reference in section 2262(a) to `an order under section 
     2261(c)' shall be understood as referring to the post-trial 
     order under subsection (b) concerning representation in the 
     unitary review proceedings, but if a transcript of the trial 
     proceedings is unavailable at the time of the filing of such 
     an order in the appropriate State court, then the start of 
     the 180-day limitation period under section 2263 shall be 
     deferred until a transcript is made available to the prisoner 
     or counsel of the prisoner.

     ``Sec. 2266. Limitation periods for determining applications 
       and motions

       ``(a) The adjudication of any application under section 
     2254 that is subject to this chapter, and the adjudication of 
     any motion under section 2255 by a person under sentence of 
     death, shall be given priority by the district court and by 
     the court of appeals over all noncapital matters.
       ``(b)(1)(A) A district court shall render a final 
     determination and enter a final judgment on any application 
     for a writ of habeas corpus brought under this chapter in a 
     capital case not later than 180 days after the date on which 
     the application is filed.
       ``(B) A district court shall afford the parties at least 
     120 days in which to complete all actions, including the 
     preparation of all pleadings and briefs, and if necessary, a 
     hearing, prior to the submission of the case for decision.
       ``(C)(i) A district court may delay for not more than one 
     additional 30-day period beyond the period specified in 
     subparagraph (A), the rendering of a determination of an 
     application for a writ of habeas corpus if the court issues a 
     written order making a finding, and stating the reasons for 
     the finding, that the ends of justice that would be served by 
     allowing the delay outweigh the best interests of the public 
     and the applicant in a speedy disposition of the application.
       ``(ii) The factors, among others, that a court shall 
     consider in determining whether a delay in the disposition of 
     an application is warranted are as follows:
       ``(I) Whether the failure to allow the delay would be 
     likely to result in a miscarriage of justice.
       ``(II) Whether the case is so unusual or so complex, due to 
     the number of defendants, the nature of the prosecution, or 
     the existence of novel questions of fact or law, that it is 
     unreasonable to expect adequate briefing within the time 
     limitations established by subparagraph (A).
       ``(III) Whether the failure to allow a delay in a case, 
     that, taken as a whole, is not so unusual or so complex as 
     described in subclause (II), but would otherwise deny the 
     applicant reasonable time to obtain counsel, would 
     unreasonably deny the applicant or the government continuity 
     of counsel, or would deny counsel for the applicant or the 
     government the reasonable time necessary for effective 
     preparation, taking into account the exercise of due 
     diligence.
       ``(iii) No delay in disposition shall be permissible 
     because of general congestion of the court's calendar.
       ``(iv) The court shall transmit a copy of any order issued 
     under clause (i) to the Director of the Administrative Office 
     of the United States Courts for inclusion in the report under 
     paragraph (5).
       ``(2) The time limitations under paragraph (1) shall apply 
     to--
       ``(A) an initial application for a writ of habeas corpus;
       ``(B) any second or successive application for a writ of 
     habeas corpus; and
       ``(C) any redetermination of an application for a writ of 
     habeas corpus following a remand by the court of appeals or 
     the Supreme Court for further proceedings, in which case the 
     limitation period shall run from the date the remand is 
     ordered.
       ``(3)(A) The time limitations under this section shall not 
     be construed to entitle an applicant to a stay of execution, 
     to which the applicant would otherwise not be entitled, for 
     the purpose of litigating any application or appeal.
       ``(B) No amendment to an application for a writ of habeas 
     corpus under this chapter shall be permitted after the filing 
     of the answer to the application, except on the grounds 
     specified in section 2244(b).
       ``(4)(A) The failure of a court to meet or comply with a 
     time limitation under this section shall not be a ground for 
     granting relief from a judgment of conviction or sentence.
       ``(B) The State may enforce a time limitation under this 
     section by petitioning for a writ of mandamus to the court of 
     appeals. The court of appeals shall act on the petition for a 
     writ or mandamus not later than 30 days after the filing of 
     the petition.
       ``(5)(A) The Administrative Office of United States Courts 
     shall submit to Congress an annual report on the compliance 
     by the district courts with the time limitations under this 
     section.
       ``(B) The report described in subparagraph (A) shall 
     include copies of the orders submitted by the district courts 
     under paragraph (1)(B)(iv).
       ``(c)(1)(A) A court of appeals shall hear and render a 
     final determination of any appeal of an order granting or 
     denying, in whole or in part, an application brought under 
     this chapter in a capital case not later than 120 days after 
     the date on which the reply brief is filed, or if no reply 
     brief is filed, not later than 120 days after the date on 
     which the answering brief is filed.
       ``(B)(i) A court of appeals shall decide whether to grant a 
     petition for rehearing or other request for rehearing en banc 
     not later than 30 days after the date on which the petition 
     for rehearing is filed unless a responsive pleading is 
     required, in which case the court shall decide whether to 
     grant the petition not later than 30 days after the date on 
     which the responsive pleading is filed.
       ``(ii) If a petition for rehearing or rehearing en banc is 
     granted, the court of appeals shall hear and render a final 
     determination of the appeal not later than 120 days after the 
     date on which the order granting rehearing or rehearing en 
     banc is entered.
       ``(2) The time limitations under paragraph (1) shall apply 
     to--
       ``(A) an initial application for a writ of habeas corpus;
       ``(B) any second or successive application for a writ of 
     habeas corpus; and
       ``(C) any redetermination of an application for a writ of 
     habeas corpus or related appeal following a remand by the 
     court of appeals en banc or the Supreme Court for further 
     proceedings, in which case the limitation period shall run 
     from the date the remand is ordered.
       ``(3) The time limitations under this section shall not be 
     construed to entitle an applicant to a stay of execution, to 
     which the applicant would otherwise not be entitled, for the 
     purpose of litigating any application or appeal.
       ``(4)(A) The failure of a court to meet or comply with a 
     time limitation under this section shall not be a ground for 
     granting relief from a judgment of conviction or sentence. 
     [[Page S7812]] 
       ``(B) The State may enforce a time limitation under this 
     section by applying for a writ of mandamus to the Supreme 
     Court.
       ``(5) The Administrative Office of United States Courts 
     shall submit to Congress an annual report on the compliance 
     by the courts of appeals with the time limitations under this 
     section.''.
       (b) Technical Amendment.--The part analysis for part IV of 
     title 28, United States Code, is amended by adding after the 
     item relating to chapter 153 the following new item:

``154. Special habeas corpus procedures in capital cases...2261.''.....

       (c) Effective Date.--Chapter 154 of title 28, United States 
     Code (as added by subsection (a)) shall apply to cases 
     pending on or after the date of enactment of this Act.
  Mr. BIDEN. Mr. President, in 1988, we passed a bill which I had 
authored with several others called the Death Penalty for Drug Kingpins 
Act.
  It was the first constitutional Federal death penalty to go on the 
books after 1972 when the Supreme Court invalidated the death penalty.
  I helped write that bill, much to the dismay of many of my liberal 
friends who could not understand why I was writing such a bill. It was 
a bill strongly promoted by President Bush, and it passed by a lopsided 
vote of 65 to 29, with only six Republicans voting against the bill.
  When we passed that bill, we recognized that if the Federal 
Government was going to put a person to death, we better get it right. 
We better have the right guy and we better have had a fair trial, and 
the defendant better have had his or her day in court.
  As part of the law, we said that the capital defendant--the defendant 
accused of a crime which carried with it the death penalty--in that 
case the person should have a lawyer. Kind of axiomatic. They should 
have a lawyer if they are going to go to trial, a trial in which, if 
that person is found guilty, they will be put to death.
  That, of course, is also what the sixth amendment of the Constitution 
of the United States says. It explicitly says that ``In all criminal 
proceedings the accused shall have the assistance of counsel for his 
defense.''
  Remember Clarence Earl Gideon? The case was Gideon versus Wainwright. 
The Supreme Court held that Mr. Gideon, accused of a crime, could not 
receive a fair trial absent the right to a lawyer.
  In that case, the court said, ``The sixth amendment stands as a 
constant admonition that if the constitutional safeguards it provides 
be lost, justice will not be done. The right of one charged with a 
crime to counsel may not be deemed fundamental and essential to fair 
trials in some countries, but it is in ours.''
  Also, in the 1988 drug bill we said that prisoners, State or Federal, 
who are looking the death penalty in the eye should have a lawyer for 
their Federal habeas corpus appeals. Again, we recognize that if the 
Federal Government is going to put its stamp of approval on a man's 
execution, he should at least have a lawyer.
 But this Republican bill does something I am not sure they intended to 
do, but they did. This Republican bill changes all of that. 
Astonishingly, it changes all of that. In a section entitled 
``technical amendments''--we should all keep our eyes open when someone 
says ``this is just a technical amendment''--in a section entitled 
``technical amendments,'' this bill repeals the right to counsel in 
Federal capital cases. It says that the right to counsel is no right at 
all but a matter of discretion for the judge.

  Let me refer you back to Gideon versus Wainwright, that famous last 
sentence which says, ``The right of one charged with a crime to counsel 
may not be deemed fundamental and essential to fair trials in some 
countries, but it is in ours.''
  It does not say it is discretionary in ours. It does not say maybe it 
is all right in ours. It does not say it is OK sometimes in ours. It 
says, ``it is in ours.''
  Astonishingly, this little technical amendment says the right to 
counsel is a matter of discretion for the judge to decide.
  I do not know what my colleagues were thinking of when they wrote 
this. But what this seems to be saying is this: We do not care what the 
Constitution says. We do not care what the Supreme Court says. We think 
it is OK to deny a person who faces the Federal death penalty--and 
there are now over 60 on the books--we think it is OK to deny that 
person the assistance of counsel at his trial. I submit this 
proposition is as unthinkable as it is unconstitutional. And we should 
have nothing to do with it.
  The Republican bill also repeals the right we created in 1968 to a 
lawyer for Federal habeas corpus appeal. This bill says that there 
should be no right to a lawyer, that it should instead be a matter of 
discretion for every individual case. What is more, the Republican 
proposal is taking away this right at the very same time it is changing 
the rules of the game on habeas corpus, and placing new and sweeping 
restrictions on the right of habeas corpus itself.
  We want to change habeas corpus but they are making sweeping changes 
in the rules of the game. And in addition saying, and by the way, while 
we are at it we are going to go back and deny you your right to counsel 
when you are filing such a petition. And one more thing, we are going 
to deny you the automatic right to a lawyer at your trial, before you 
are convicted.
  It reminds me of that line that is often used, and I will paraphrase, 
``hanging first, trial later.'' What are we into here?
  I agree we should cut down the delay and abuse of the Federal habeas 
corpus and I have made a number of similar proposals over the years to 
impose strict time limits on when such petitions could be filed and 
also to limit the number that could be filed, essentially giving one 
bite out of the apple to drastically reduce the ability to have 
successive petitions unless there is some egregious action that is 
learned about after the petition is filed, the first petition.
  But I have always believed if we are going to speed up the process, 
which I wish to do, if we are going to narrow the avenues of habeas 
corpus, which I wish to do, we should at least make sure that the 
petitioner has a lawyer. That is what we said in 1988 and there has 
been no serious question raised about our wisdom in passing that law 
since then.
  Two years ago I entered into painstaking extensive negotiations with 
the Nation's district attorneys and the attorneys general of the United 
States over habeas corpus reform. We negotiated for months. We logged 
hundreds of hours, argued over scores of serious issues before we came 
up with a lengthy and comprehensive compromise--which, I might say and 
I probably should not, my staff will not like this, which the liberal 
press killed. The liberal press told us this was somehow a terrible 
thing to do.
  I kept saying we better do this or they are going to take it all 
away. But I hope everybody is listening who helped kill that 
compromise.
  But not once in all our discussions with the Nation's prosecutors, I 
was not talking with the public defenders. I was not talking with the 
defense bar. I was talking with the Nation's prosecutors, the DA's back 
home, the State's attorneys general back home. Not one time in our 
talks did the prosecutors propose the repeal of the 1988 right to a 
lawyer in a habeas corpus petition. Not once did they argue that the 
right to counsel in habeas corpus should be discretionary. Not once did 
they suggest that the right to counsel at a trial should be denied.
  As a matter of fact, what they constantly said was that the best way 
to shorten the appeals, the best way to cut down on the abuse, was to 
do it right the first time. They argued--not me--they, the prosecutors, 
Republican and Democrat--they said if you want to get this thing on 
track make sure there is a competent lawyer representing these people 
during this stage of the proceeding. Because they pointed out that most 
of the habeas corpus petitions that are granted, and the Federal courts 
grant many, most of the ones that are granted are granted because the 
court concludes that the defendant did not have adequate counsel, they 
were denied their right to know what a fair trial should be.
  So here you had the prosecutor--not the defense bar--saying, ``Make 
sure that the defendant has legal counsel and then give him one bite 
out of the apple.''
  These are experienced people. These are the people who try these 
cases. These are the people who respond to these habeas corpus 
petitions.
  I might say to those who are listening, I have to keep reminding 
people-- [[Page S7813]] habeas corpus. If a habeas corpus petition is 
granted it does not mean anyone goes free. The man or woman still stays 
behind bars. All it says is they get a new trial. This is not a 
petition for innocence that can be decided in terms of releasing 
someone. This merely says that a prisoner behind bars slips a paper 
between the bars and says: Send this to the judge, ask him to take a 
look at it because I do not think I got a fair trial.
  That is what it is. And here we had for months of negotiations--
months--worked out a compromise, and these hard-nosed prosecutors in 
our home States said make sure they have counsel. That is the best 
insurance for the public at large that we will not be wasting their 
money and their time.
  Just last year the U.S. Supreme Court, which for the most part is no 
friend of the Federal habeas petitioner, recognized the importance of 
having a lawyer. In the case of McFarland versus Scott, the Court said:

       Quality legal representation is necessary in capital habeas 
     corpus proceedings in light of the seriousness of the 
     possible penalty and the unique and complex nature of the 
     litigation.

  To say that habeas litigation is unique and complex is an 
understatement. Habeas petitions must meet tightened pleading 
requirements. They must comply with the Supreme Court's intricate 
doctrines on procedural default and waiver. Federal courts can 
summarily dismiss any petition that appears legally insufficient on its 
face. And they can deny stay of execution where petitioner fails to 
raise a substantial Federal claim. But this provision tells these 
indigent defendants who have just been sentenced to death that they 
have no right to the help of a lawyer, that they might have to navigate 
the arcane, complicated and hazardous sea of the Supreme Court 
jurisprudence and statutory rules by themselves.
  Quite apart from what I believe is the fundamental unfairness of this 
proposition, I also think at a practical level it will waste a lot of 
time and a lot of money to deny a lawyer at this point. First, ask any 
experienced lawyer or prosecutor. Almost all would rather have a 
competent adversary who can adequately frame and present issues over an 
incompetent one who does not have the first clue about how to present 
his arguments. Most experienced lawyers would tell you that having 
someone who has no training on the other side only slows things down 
because the trained lawyer and the judge end up doing a lot of extra 
work just to figure out what the untrained lawyer is trying to say and 
to make sure reversible error is not created.
  What is more, under the Republican proposal, valuable resources will 
be squandered in litigation at the outset over whether counsel should 
or should not be appointed. If the judge ends up appointing counsel, 
all that time and money will have been wasted, and if the judge does 
not appoint counsel, the indigent death row inmate will be left to find 
his own way through some of the most complicated legal doctrines 
imaginable. This just does not make sense, in my view, as a practical 
matter or as a matter of principle.
  We should not in our haste to hurry up executions lose sight of our 
commitment to constitutional values. We should not endorse proposals 
that increase the chance that, where execution is imminent, an innocent 
person be executed. We should not, I believe, sacrifice certainty in 
the name of speed, or fairness in the name of vengeance.
  Most importantly, Mr. President, I really believe that everyone 
should understand we are not talking about changing any of the ways in 
which we deal with habeas corpus in this amendment. We are not talking 
about whether the Biden approach of only one petition or their approach 
of only one petition is the best one. We are not talking about whether 
we are going to cut the delay by a year or a month or a day. What we 
are talking about is a fundamental principle, one that, as it relates 
to the trial, has been established since Gideon versus Wainwright, and 
in many instances before that, and one as it relates to Federal habeas 
corpus that was established in 1988.
  I ask my friend from Utah, because it may have been an oversight, 
whether he really intended to eliminate the right to counsel at trial 
as well as the right to counsel in a habeas corpus petition.
  So I sincerely hope my colleagues will take a close look at this. 
This does not have to do with speeding up the process; this has to do 
with the fundamental fairness. Are we going to stick with 
constitutional principle established several decades ago in this 
country saying you are entitled to a lawyer at a trial and, if you 
cannot afford one, the court will appoint one as a matter of right and 
you are entitled to a lawyer at the Federal level when you file a 
habeas corpus petition? The practical implication of all that is that 
most prosecutors will tell you that will speed the process up, not slow 
the process down.
  I yield the floor.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Of course, we will not deny counsel, nor will anybody; nor 
is it done, nor will it be done. The reason we oppose this amendment 
offered by the distinguished Senator from Delaware is this amendment 
would strike the much-needed reform in 28 U.S.C. 848(q) contained in 
the antiterrorism bill. Section 848(q), as many of our Senators and 
others are no doubt aware, provides funding for capital litigants; that 
is, people who have been convicted of capital crimes, to hire among 
other things investigators and expert witnesses to assist them with 
their habeas petitions. That just presumes that there will be a lawyer 
there as well, and there will be. I do not know of a case where a 
lawyer has not been appointed.
  What you may not be aware of, however, is that section 848(q) permits 
the defense counsel to contact the judge ex parte; that is, without the 
prosecutor being present, and requests additional funding for experts, 
investigators, researchers, and the like. In other words, defense 
counsel can approach the judge outside the prosecutors presence and 
request the appointment of additional investigators or a new 
psychiatrist. The prosecutor is given neither the opportunity to 
present nor even a chance to oppose such an appointment.
  To add insult to injury, the court can order payment and the 
appointment to run nunc pro tunc; that is, from the time the defense 
counsel initially hired the additional help. They can go way back. The 
defense counsel can go hire these people, have no way of paying them, 
and then all of a sudden have an ex parte proceeding, and the judge can 
order that they be paid back to the date that the defense counsel hired 
them. Talk about an abusive system. This means an investigator hired 6 
months before can, when approved by the judge, receive payment for all 
of that investigator's past work, and in an ex parte proceeding, 
without the right of the prosecutor to be present. The defense counsel 
can use whatever information the investigator provides as demonstrating 
the need to hire that investigator and pay him from the time that he 
actually started working on the case.
  There is absolutely no reason for ex parte proceedings on Federal 
collateral review after the judgment is final. While such an 
arrangement may arguably be appropriate at the trial level, it is not 
defensible for postconviction collateral proceedings. It is likely that 
the secrecy of these proceedings serves no other purpose than to permit 
the defense counsel to, outside of the presence of the prosecutor or 
the prosecution, argue their cases, obtain extensions of time, or 
receive additional unwarranted investigative expenses. This is simply 
indefensible.
  There should be no need for a confidential hearing at this point in 
the proceeding. They will have had the hearing already. They will be on 
appeal. They will have had all kinds of constitutional protections 
under our bill, and then to allow an ex parte proceeding to go ahead, 
they will have raised their issues at the State level or they would be 
unexhausted. By the time the claim is presented in Federal court, all 
of these issues should have seen the light of day. Thus, no reason 
exists for defense counsel to hide whatever they may be investigating, 
nor should defense counsel be permitted to argue their petitions 
outside of the presence of other counsel.
  It just makes sense that they would not. Section 848(q) has been 
greatly abused, and has resulted in enormous [[Page S7814]] cost to the 
States. The reform contained in the antiterrorism bill is thus greatly 
needed. The Supreme Court has never required counsel in collateral 
proceedings. We do not make it discretionary to appoint counsel at 
trial; counsel must be appointed at trial. I have to say that any 
argument that we do not is ridiculous. But this is a very, very 
important point.
  I hope our colleagues will vote against the Biden amendment.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. I yield time to the Senator from Pennsylvania.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I certainly agree with the distinguished 
Senator from Delaware that we have to be meticulous on right to 
counsel. We cite Gideon versus Wainwright, and I was assistant district 
attorney when that case was decided in 1963. I am glad to say that in 
our Pennsylvania courts, in Philadelphia, counsel had been provided for 
indigent defendants long before the Supreme Court of the United States 
made that a constitutional mandate in the landmark Gideon case, written 
by Justice Black, which said counsel was required for anyone who is 
hauled into court to face felony charges.
  On a very personal note, I got my introduction into criminal law when 
I was assisting defendants back in March 1958, when I took my first 
turn defending indigents going down to the prison in the city of 
Philadelphia and had, as a matter of fact, my first taste of what the 
role of the trial lawyer was, of criminal prosecutions, and of being in 
public service.
  As I understand these provisions of the bill, it will greatly improve 
the extraordinarily technical and complicated procedure that when a 
State opts into the expedited procedures, there is additional 
responsibility on the State under the provisions of section 2261(b) to 
establish a mechanism for the appointment of compensation and payment 
of reasonable litigation expenses of competent counsel at the State 
postconviction proceedings brought by indigent prisoners.
  On the point about ex parte contacts by defense counsel, I doubt that 
there is any real quarrel about the requirement that defense lawyers 
ought to make an application in the presence of opposing counsel and 
ought to make that application in advance of wanting to hire experts.
  So it seems to me that whatever the state of the law is this is an 
advancement in requiring that States under this provision that I just 
read have competent counsel.
  Mr. BIDEN. Will the Senator yield for a very brief question?
  Mr. SPECTER. I do.
  Mr. BIDEN. On page 125 of the Senator's bill, section 608, 
``Technical Amendments,'' it says ``Section 408(c) of the Controlled 
Substance Act is amended in paragraph 34(a) by striking `shall' and 
inserting `may'.''
  When you go and look at that paragraph in the law, it says, paragraph 
4(a) says ``notwithstanding any other provision of the law to the 
contrary, in every criminal action in which the defendant is charged 
with a crime,'' and then it goes on to say that the defendant, the 
present law says, ``The defendant shall be entitled to the appointment 
of one or more attorneys and'' et cetera.
  But the way it is changed in your law, it says that ``Notwithstanding 
any other provision of the law to the contrary, every criminal action 
in which a defendant is charged with a crime the defendant may be 
entitled.'' You strike the word ``shall'' and insert ``may.''
  Mr. SPECTER. I do not have the referenced section. Let me get it.
  Mr. BIDEN. All right.
  Mr. SPECTER. Even if you had a statutory provision, it would not 
alter the constitutional mandate of Gideon versus Wainwright. Not that 
we should trifle with language which would in any way suggest 
undercutting the constitutional right to counsel, but if a statute in 
error were to say that, Gideon versus Wainwright would control. You 
simply cannot have a criminal proceeding where there is not counsel 
appointed for the defendant.
  Mr. BIDEN. If the Senator will yield for 10 seconds, I think he is 
right, Mr. President, but I do not know why we should pass an 
unconstitutional statute, because this is clearly unconstitutional the 
way it is written.
  Mr. SPECTER. If I may respond further to my colleague, if that is so, 
that is something that I would certainly concur ought to be corrected. 
And I would take a look at that section right now.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The absence of a quorum has been suggested. 
The clerk will call the roll.
  Mr. HATCH. If the Senator will withhold.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, I yield time to myself.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. This certainly is not unconstitutional. This has been 
worked very carefully by top legal experts, State attorneys general and 
others. The court has never mandated counsel in collateral proceedings, 
and I think that point has to be made. But there is going to be counsel 
appointed and always has been.
  To be honest with you, what we are concerned about is that the way 
the amendment of the distinguished Senator from Delaware reads, we are 
going to wind up having nun pro tunc orders which will allow 
petitioners to have expert witness fees and investigators paid for from 
the time that the defense counsel wants to hire all these people. The 
law currently allows these payments to be made at excessive cost to the 
States on an ex parte, meaning one attorney only, proceeding. And that 
just should not be. So I hope that folks will vote this amendment down. 
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. BIDEN. 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. BIDEN. Mr. President, with the consent of my colleague--and I 
failed to do this earlier--I would send a modification of my amendment, 
a draft error correction in my amendment to the desk.
  Mr. President, I will withhold.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I ask unanimous consent that the pending amendment be laid 
aside so that we can proceed to other business and also to work on some 
of the questions we have.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. HATCH. 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. BIDEN. 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. BIDEN. Mr. President, let me very briefly state where we are 
right now. You can see the staffs scurrying around here. We have 
reached a meeting of the minds on two-thirds of the amendments that I 
have offered here. The staff is trying to get precise language that 
would accommodate the mutual agreement we have made here thus far. But 
there is going to be one part of my amendment that is still going to be 
pertinent, and I will speak to that later. But the distinguished 
Senator from Pennsylvania and I would like to enter into a brief 
colloquy on what I think will be the only remaining part of 
disagreement in the Biden amendment that was sent up.
  Very briefly, Mr. President, there were two sections of the Biden 
amendment, one relating to counsel for an indigent in the filing of a 
habeas corpus petition. The second provision is what the Senator from 
Utah spoke to, and that is the ability under present law for the 
counsel of an indigent person to go to a judge, without notifying the 
prosecutor he is going to the judge, and in private--we call it in 
camera--say, judge, I need you to authorize my ability to go hire a 
psychiatrist for the following reasons, or hire an investigator 
[[Page S7815]] for the following reasons. The distinguished Senator 
from Utah is worried about that provision and suggests that that 
portion of the law is presently being abused. I do not believe it is 
abused.
  I want to make a very brief statement now as to why I think that and 
why I am going to pursue in my follow-on amendment here the elimination 
of the provision in the Republican bill that would delete the 
possibility of an indigent defense counsel going to a judge on his own. 
The reason for that is as follows:
  Right now, if I am a prosecutor and I get a lead as to how I can make 
my case better to prove the defendant did the deed, I can hire--I can 
use--an investigator to go investigate that. If I believe there is a 
need to make a case that the defendant is, in fact, perfectly sane and 
not insane, I can hire a psychiatrist.
  I can use investigative tools without ever having to go to the 
defendant's counsel and say, ``By the way, here is what I am going to 
do. I am going to hire this psychiatrist to prove that your defendant, 
your client, is sane.'' Or, ``I am going to hire two investigators to 
go down to Second and Vine and prove that the stoplight does not exist 
there,'' or whatever.
  So no one quarrels with that. If I am a lawyer who is hired by 
private funds to defend an accused person, I am not required to 
telegraph to the prosecutor that I have hired a private detective to 
investigate a lead in a particular city. I do not have to tell the 
prosecutor that.
  My worry is that if we change the law as proposed in the core 
legislation, that what will be required for an indigent defense counsel 
is to walk into court, walk into the chambers of a judge and say, by 
the way, judge, we better call in the prosecutor, and sit the 
prosecutor down and say, now I want to say, judge, I need your 
authority to allow me to go hire an investigator. Here are the reasons 
that I want to hire the investigator. The prosecutor is sitting there 
taking notes about my case.
  Now, that is why I think we should not delete this portion of the 
law.
  Mr. SPECTER. Would the distinguished Senator from Delaware yield?
  Mr. BIDEN. I am delighted to yield.
  Mr. SPECTER. I understand the concerns that the Senator has 
expressed. I believe that the bill as drafted is preferable, 
notwithstanding the arguments the distinguished Senator has raised. I 
will come to the specific question in just a moment here.
  I think that ex parte communications are very problemsome in any kind 
of a case, but they ought to be eliminated to the maximum extent 
possible, which is why I think that it just is not a good idea to have 
one lawyer talking to the judge by himself.
  But the language which I would focus on here is that which says no ex 
parte communication request may be considered pursuant to the section 
unless a proper showing is made concerning the need for 
confidentiality.
  I concur with the Senator from Delaware when he says that there ought 
not to have to be disclosure by defense counsel in the presence of the 
prosecutor to matters which would prejudice the defendant in 
investigating the case on the facts, or as to getting expert opinion as 
to mental state and competency.
  But the question I would have, and it is not really accommodated by 
the language, is that if there is a showing of the need for 
confidentiality, that would preclude the prosecutor gaining an upper 
hand in an unfair way. As a sponsor of this language, let me state that 
it is our intent here in this legislation that there not be a 
circumstance in which the defense is compelled to reveal, in front of 
the prosecutor, matters which would be prejudicial to his opportunity 
to present a defense.
  Mr. BIDEN. Mr. President, in response to my colleague, he is coming 
awfully close to what I intend. If it is read the way in which the 
distinguished Senator from Pennsylvania reads it, which is that if 
there is a showing for the need for confidentiality, then the judge can 
meet only with the defense counsel and make his or her judgment. That, 
quite frankly, gets a lot closer to what I intend.
  As the Senator feels, as a matter of principle, that we should err on 
the side of not having ex parte proceedings, I must acknowledge in 
these days, I err on the side of allowing indigent defense counsel to 
have the maximum flexibility with the judge.
  While the staff is correcting the other portions of this, I would 
like to seek the counsel of my counsel, and determine whether or not it 
is still necessary to proceed with the last portion of this amendment.
  I see the distinguished leader is on the floor. He always comes when 
he worries things are slowing down. I can assure the Senator they are 
not slowing down, they are moving along fast. We will get this done 
before the time would have been used had a rollcall vote been called. 
We are very close. I think that can happen.
  So I do not want the Senator to get upset. We have Senator Levin 
waiting in the wings to go with his amendment.
  Mr. DOLE. If the Senator will yield, I had just sort of passed 
through the Chamber and I did not see anything happening, but there is 
a lot of precedent for that.
  As I understand, the next amendment would be the Senator from 
Michigan, Senator Levin, and there would be 50 minutes, 25 minutes on a 
side. Is that satisfactory?
  Mr. LEVIN. That would be fine.
  Mr. DOLE. Mr. President, I make that request.
  The PRESIDING OFFICER (Mr. Ashcroft). Without objection, it is so 
ordered.
  Mr. DOLE. While that debate is going on, it is my understanding that 
the Biden amendment is now pending, is that correct?
  Mr. BIDEN. Mr. President, the answer is yes.
  The reason I have counseled my friend from Michigan not to go yet is 
that the key staff people who know this issue very well, who will also 
want to be available to Senator Hatch as well as to me, are the very 
people negotiating this other item which is very close.
  Apparently, we are now ready to go. We will be able to move right 
away to Senator Levin. We may be able to dispose of this right now. 
Apparently, we have reached our agreement.
  Mr. DOLE. Does the Senator from Wisconsin have an amendment?
  Mr. BIDEN. Mr. President, I think the Senator from Wisconsin wishes 
to speak on the issue.
  Mr. FEINGOLD. That is right.
  Mr. BIDEN. Maybe we can let him do that while we nail this down.
  Mr. DOLE. If I understand, after the disposition of the pending 
amendment--if we work it out--fine; then the amendment of the Senator 
from Michigan; there would be two amendments remaining, one by the 
Presiding Officer and one by the Senator from Delaware.
  Mr. BIDEN. That is correct.
  Mr. DOLE. And as I understand, one would have a 60 minute time 
agreement, the other 90 minutes.
  Mr. BIDEN. I would say we may not use all 90 minutes, but since it is 
the last amendment, I would prefer to have that cushion.
  Mr. DOLE. The point is, we would like to complete action. We said no 
votes before 1 o'clock. I think it will be probably be before 2 
o'clock, would be my guess. there will probably not be any vote before 
2 o'clock, but we had hoped to complete action on this bill by 3 
o'clock so we could start on telecommunications. We are probably going 
into the evening tonight on that bill.
  I am told by the managers on that bill that it is a bipartisan 
effort, and may be able to complete that more quickly than we may have 
thought at the outset.
  The bottom line is we need to finish this bill, and I know the 
managers are making progress. I appreciate it very much.
  Mr. FEINGOLD. Mr. President, I wish to speak on the bill on the 
habeas corpus issue. I rise today to speak against provisions in S. 735 
that are characterized as reforms in the habeas corpus appeals process. 
These items that are being referred to as reforms, in my view, would 
hasten the implementation of the death penalty and might well have the 
result of rushing innocent people to executions.
  This is not, strictly speaking, a debate about the death penalty 
itself, but about the fundamental American right of due process.
  Mr. President, there are several ways in which this fundamental right 
may be undermined by the pending bill, including the requirement that 
Federal [[Page S7816]] judiciary defer to State courts. This is a major 
departure from more than 200 years of legal precedent, and to my mind, 
the most egregious change proposed by habeas reform supporters.
  There is also a general 1-year statute of limitations--6 months in 
some cases--for filing a petition. These time limits fail to recognize 
the time needed to develop a proper habeas petition.
  There is also a concern which the ranking member has been discussing 
about the elimination of the current absolute right of petitioners in 
capital cases to counsel for Federal habeas corpus petitions and 
replacing it with a provision that leaves assignment of counsel to the 
discretion of the court. I understand there has been some movement on 
that, some progress. I am pleased to hear it and look forward to 
reviewing it.
  Mr. President, we have heard the arguments for streamlining habeas 
corpus procedures to limit death row appeals and implement the death 
penalty more quickly.
  On a gut level, these arguments carry power; they paint a picture of 
convicted criminals contemptuously manipulating our justice system to 
avoid punishment for heinous crimes, all the while supposedly 
languishing comfortably in their prison cells. The arguments remind us 
of the lingering pain and frustration of victims' families, who are 
forced to wait, sometimes for years, before they reach the end of their 
ordeals that began with the violent death of a loved one. The arguments 
also speak to the problems of clogged courts and precious resources 
tied up in lengthy and, perhaps, duplicative habeas proceedings.
  But the supporters of so-called habeas reform usually do not tell us 
other stories--the rest of the story.
  They do not tell us about innocent defendants sent to death row 
because they could not afford competent counsel, and because some 
States do not have procedures in place to provide effective counsel to 
indigents. They do not tell us of murder defendants watching as their 
attorneys fail to properly prepare and present a defense, either 
because they lack resources or because they themselves are indifferent, 
incompetent, or inexperienced.
  They do not tell us about innocent defendants convicted because of 
sloppy investigations or prosecutorial misconduct.
  They do not seem to take into account the amount of time it takes to 
properly prepare and present a habeas petition.
  They seem ready and willing to hasten to fatal judgment in the name 
of efficiency and to accept tragic mistakes as the necessary price for 
timely justice.
  I am not willing to support this haste.
  While I completely understand the pain of victims' families, I do not 
want to create more pain, and more victims of violence, by approving 
changes in the law that could send innocent people to their deaths. 
That in itself would be a dreadful crime.
  We must be mindful that when we change the law, it applies to all, 
not just to the clever manipulators of the system that supporters of 
the habeas reform provisions of S. 735 seem to believe fill our death 
rows.
  Consider the case of Nathaniel Carter, an innocent man wrongly 
convicted in 1982 of the stabbing death of his mother-in-law.
  Mr. Carter is a man about my age. His story was told in the New York 
Times and in New York Newsday this past February. Ten witnesses placed 
Mr. Carter miles from the murder scene at the time the crime was 
committed. Nonetheless, he was sentenced to 25-years-to-life for a
 crime he did not commit, only because New York State at that time did 
not have a death penalty statute.

  It does now, and if that statute had been in effect in 1982, the 
sentencing judge made it plain that it would have been imposed, on Mr. 
Carter, an innocent man.
  Mr. Carter spent 28 months in prison before being exonerated. His 
former wife eventually admitted committing the crime.
  Nathaniel Carter was lucky, but had conditions been different, his 
luck would not have saved him. His boyhood friend, George Pataki, now 
Governor of New York, earlier this year signed that State's new death 
penalty statute into law.
  It is worth considering what would have happened if Mr. Carter had 
faced the death penalty and if he would have faced the habeas reforms 
included in S. 735. He might well be dead for a crime he did not 
commit.
  So the question today is are we willing to put Mr. Carter and others 
like him to death for the sake of hastening other deaths of some guilty 
parties?
  The U.S. Supreme Court has handed down significant habeas decisions 
this year in two separate cases, decisions that should be considered in 
this debate.
  On April 19, the Court, in Kyles versus Whitley, reversed and 
remanded the first-degree murder conviction of a Louisiana man, Curtis 
Lee Kyles. Mr. Kyles was sentenced to death.
  After his conviction, it was discovered the State had not revealed 
certain evidence favorable to Mr. Kyles' case. His appeals to State 
courts won him a remand for an evidentiary hearing, but the State trial 
court afterward denied relief. He then went to the State supreme court, 
which denied his application for discretionary review.
  However, the U.S. Supreme Court ruled that Mr. Kyles was entitled to 
a new trial because there was a ``reasonable probability'' that the 
disclosure of that evidence would have produced a different result than 
the original conviction.
  Had Mr. Kyles not been able to file his Federal habeas petition, as 
might well be the case if we pass S. 735 with its habeas reform 
provisions, which include a higher bar to habeas petitions and 
deference to State courts, he might still be sitting in a Louisiana 
prison, awaiting death.
  Earlier this year, in January, the U.S. Supreme Court handed down its 
ruling in Schlup versus Delo.
  In that case, Lloyd Schlup, a prisoner in Missouri, was convicted of 
participating in the murder of a fellow inmate and sentenced to death.
  However, Schlup, who was filing his second habeas petition, argued 
his trial deprived the jury of critical evidence that would have 
established his innocence. The U.S. district court had denied relief, 
stating Mr. Schlup had not met the ``clear and convincing evidence'' 
standard that the habeas reform provisions of S. 735 would impose.
  The U.S. Supreme Court adopted a less stringent standard, that the 
habeas petitioner need show that the constitutional violation 
complained of ``probably resulted in the conviction of one who is 
actually innocent.''
  There is a body of evidence readily available to show that putting 
limits on the habeas corpus process could well mean innocent people 
will be affected in the ultimate way.
  A 19-page staff report prepared last November for the House 
Subcommittee on the Constitution, formerly the Subcommittee on Civil 
and Constitutional Rights, found 52 cases in 20 years where innocent 
people were convicted of capital crimes and later won release, some of 
them by filing habeas petitions.
  That document, entitled, ``Innocence and the Death Penalty: Assessing 
the Danger of Mistaken Executions,'' might be worth reading before we 
decide to reform this system in this way that reminds me very much of 
something that is quite the opposite of reform.
  At one point, the report states:

       These 52 cases illustrate the flaws inherent in the death 
     sentencing systems used in the states. Some of these men were 
     convicted on the basis of perjured testimony or because the 
     prosecutor improperly withheld exculpatory evidence. In other 
     cases, racial prejudice was a determining factor. In others, 
     defense counsel failed to conduct the necessary investigation 
     that would have disclosed exculpatory information.

  I would also call to the attention of my colleagues a Yale Law School 
Journal piece entitled, ``Counsel for the Poor; the Death Sentence Not 
For The Worst Crime But For The Worst Lawyer,'' published in May 1994, 
by Stephen Bright, the director of the Southern Center for Human 
Rights, based in Atlanta, GA.
  Mr. Bright's piece is a sobering, I might even say chilling 
description of problems encountered by defendants in capital cases.
  Mr. Bright points out instances of States not providing sufficient 
resources to assigned defense counsel for proper investigation of a 
case. Compared to the resources available to an aggressive prosecutor, 
a defendant can [[Page S7817]] begin with a significant disadvantage in 
a life-or-death fight.
  Mr. Bright also describes cases of professional incompetence on the 
part of attorneys representing indigent clients in capital cases. Some 
of these defendants, after they were convicted and sentenced to death, 
were able to secure competent counsel, prove their innocence, and win 
just release.
  Capital cases are complex, and the stakes are the highest imaginable, 
so experienced counsel is needed to properly represent a defendant. 
Still, we are seeing evidence that these cases are not always tried by 
such experienced counsel. Imagine sitting in the defendant's chair, 
your life on the line, knowing you are innocent, and watching your 
attorney fail to conduct proper investigation, fail to call witnesses, 
fail to present an adequate statement to the jury. Imagine that in this 
country.
  When the day is done, that attorney walks home. You, the defendant, 
walk to death row. If you cannot find experienced, responsible counsel 
for an appeal, you walk to the gas chamber, the electric chair, or to a 
stark room with vials of poison to execute you.
  We must not forget these stories as we debate reform.
  Neither should we forget, in our frustration with the current system, 
that a habeas petitioner is not free to walk the streets while awaiting 
the ruling of the court. I think that is a misperception 
that some have. This man or woman is in prison, not sitting in a 
country club.
  Many of the stories we hear during this debate rely on their 
persuasive power on the grief and rage many of us feel after a brutal 
murder. But let me speak a word of caution to those who stir those 
feelings. Grief and rage are not good foundations for making good 
policy, and emotions that strong can lead us to bad decisions and 
unintended consequences,
 and in this case, to conclude, although it may not be very frequent 
and apparently is frequent enough, it literally can lead to the 
execution of innocent people.

  I urge that the habeas provisions of this bill be removed. I do not 
think they are appropriate to this piece of legislation. Certainly, the 
bill could go forward without them, and it would be a far better piece 
of legislation.
  I thank the Chair. I yield the floor.
  Mr. WELLSTONE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. WELLSTONE. Mr. President, I came in at the very end to hear the 
remarks of my colleague from Wisconsin. I would like to thank him for 
his eloquence. I am not a lawyer, but I do believe that the Senator 
from Wisconsin has made an essential point. I think his point about 
habeas is as follows: Actually, regardless of your position about 
capital punishment--I think all of us in very good faith can have 
profoundly different views on this question--what you certainly do not 
want to ever see happen is that someone innocent is executed, and to in 
any way, shape, or form move away from the very rights that people have 
in the appeal process, which is a frightening possibility. I think the 
Senator from Wisconsin has spoken to this in a very eloquent way.
  I thank him for his remarks.

                Amendment No. 1252 to Amendment No. 1199

  Mr. HATCH. Mr. President, I send an amendment to the desk and I ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Utah [Mr. Hatch] proposes an amendment 
     numbered 1252 to amendment numbered 1199.

  Mr. HATCH. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Delete lines 4 through 7 on page 125.
       Strike lines 20 through 24 on page 106 and insert the 
     following:
       ``(h) Except as provided in title 21, United States Code, 
     section 848, in all proceedings brought under this section, 
     and any subsequent proceedings on review, the court may 
     appoint counsel for an applicant who is or becomes 
     financially unable to afford counsel, except as
       Strike lines 9 through 11 on page 108 and insert the 
     following:
       ``Except as provided in title 21, United States Code, 
     section 848, in all proceedings brought under this section, 
     and any subsequent proceedings on review, the court may 
     appoint counsel who is or becomes financially unable

  Mr. HATCH. Mr. President, this modification will correct the text. I 
want to thank my colleague from Delaware for bringing our attention to 
it, as well as my colleague from Pennsylvania, who has worked with us 
to try to resolve this. We think we can resolve this matter so that we 
can then vote on the Senator's amendment when the time comes.
  Mr. BIDEN. I urge adoption of the modification.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 1252) was agreed to.
  Mr. BIDEN. Mr. President, I thank my friend from Utah. As usual, he 
is always reasonable.
  The effect of what the Senator has just done is to modify the 
underlying bill that he introduced, the Hatch amendment, the Hatch 
bill, the Hatch-Dole bill.
  It maintains in capital cases the requirement that counsel be 
appointed at trial and in a habeas proceeding, and it makes 
discretionary the appointment of counsel at those stages in noncapital 
cases.
  That leaves one part of my original amendment that still needs to be 
resolved. We can speak to it in a very short order.
  There was a third section of the existing bill that was attempted to 
be amended by my amendment.
  I send that modification of my amendment to the desk and ask for its 
immediate consideration.
  The PRESIDING OFFICER. Is the Senator modifying amendment 1226?
  Mr. BIDEN. No, the Senator is modifying, actually, it is a whole new 
amendment. I am attempting to modify the underlying bill.
  Mr. President, I want to make clear. I may have done something 
inadvertently here.
  I do not mean to modify, I am sending the amendment to the desk, the 
purpose of which is to amend the Hatch amendment. We need a vote on it. 
I am not seeking unanimous consent for that.
  The PRESIDING OFFICER. If there is no objection, the clerk will 
report the new amendment.
  Mr. HATCH. Parliamentary inquiry: As I understand it, this is a 
substitute that will replace the pending Biden amendment.
  Mr. BIDEN. That is correct.
  The PRESIDING OFFICER. The Senator can either withdraw the pending 
Biden amendment 1226 and send up a new amendment, or he can modify the 
Biden amendment No. 1226.
  Mr. BIDEN. That is correct.
  Mr. President, if there is one thing I have learned after years, it 
is that it is very difficult to listen to staff and the Presiding 
Officer at the same time. I apologize.
  I should have been listening to the Presiding Officer.
  Would he mind repeating his question to me?
  The PRESIDING OFFICER. The Senator could either modify amendment 1226 
or submit a new amendment, either one.
  Mr. BIDEN. I am submitting a new amendment.

                      Amendment No. 1226 withdrawn

  Mr. BIDEN. President, I would like to withdraw amendment 1226. I hate 
numbers and acronyms. But that is what I wish to withdraw.
  I send a new amendment to the desk, the number of which I have not 
the slightest idea.
  The PRESIDING OFFICER. Amendment 1226 is withdrawn
  The amendment (No. 1226) was withdrawn.

                Amendment No. 1253 to Amendment No. 1199

   (Purpose: To amend the bill with respect to requring counsel for 
                      federal habeas proceedings)

  The PRESIDING OFFICER. The clerk will report the new amendment.
  The legislative clerk read as follows:

       The Senator from Delaware [Mr. Biden] proposes an amendment 
     numbered 1253 to amendment No. 1199.

  Mr. BIDEN. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Strike lines 10-22 on page 125.

  Mr. HATCH. Mr. President, as I understand it, that amendment has been 
[[Page S7818]] set over until some time at 1 o'clock, am I correct?
  The PRESIDING OFFICER. No agreement has been reached on the 
disposition of that amendment.
  Mr. HATCH. I move to table the amendment.
  Mr. BIDEN. Mr. President, before he does that, I would like to be 
able to speak for 5 minutes to my amendment.
  Mr. HATCH. I withhold that.
  I ask unanimous consent that the vote occur on or in relation to 
amendment No. 1226, which is now 1253, at a time to be determined by 
the majority leader after consultation with the minority leader, but 
not before 1 p.m. today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BIDEN. Mr. President, if I can speak very briefly now to my new 
amendment, let me make sure that I have it straight for myself, let 
alone for all of my colleagues.
  My original amendment was designed to do three things, to change 
three provisions of the Hatch--I will call it the bill; it is 
technically an amendment--the thing we are debating, the 
counterterrorism legislation that is before us. In that 
counterterrorism legislation, there were a number of provisions, three 
of which were as follows: One deleted the existing statutory 
requirement that there be counsel appointed for an indigent at a trial. 
The second, deleted an existing statutory provision requiring counsel 
be appointed at a habeas corpus proceeding for an indigent. And the 
third amended existing law that says counsel for an indigent has the 
right to go before a Federal judge by himself without the prosecutor 
present and make a request to the Federal judge for additional 
resources in order to adequately be able to protect his client's 
constitutional interests, that is, go in to a Federal judge and say: 
Judge, I do not have the money to hire an investigator like the 
prosecutor has that I need to go to x town to interview three people.
  The way the law exists now, that lawyer for the indigent can do just 
what a lawyer for a nonindigent can do and what the prosecutor can do. 
He does not have to tip his hand to the prosecutor to say this is what 
I am about to do; this is what I am about to investigate; this is what 
I want to check out.
  It would be a little bit like in that God-awful O.J. Simpson trial in 
that if every time the defense hired someone to investigate something, 
they first had to go to the prosecutor and say: By the way, I am going 
to hire this investigator to go look at the background of one of the 
police officers, and I am going to do it on Tuesday, and I am going to 
interview the following three people.
  No one would expect defense counsel to have to do that with the 
prosecution present, would not have to tell the prosecutor that.
  Conversely, the prosecutor, when they are in the middle of a trial 
and they say: My goodness--or before a trial--we better check out a 
lead that we have; we have a lead that on September 12 the defendant 
was with Mary Jones in Oshkosh; we are going to send an investigator to 
go to see Mary Jones and find out whether that is true--if the 
prosecutor had to say: By the way, defense counsel, on October 3 we are 
going to send an investigator to meet Mary Jones in Oshkosh, that would 
prejudice the State's case because the defendant could pick up the 
phone and call Mary Jones and tell Mary Jones to leave town. It is not 
reasonable.
  What we did in the law not long ago, we said an indigent should have 
the same rights. But an indigent does not have any money. The only 
reason a poor guy's lawyer, the one that is appointed by the court, 
goes to the judge is because he does not have the money. Otherwise, he 
would not have to go to the judge. All he would have to do is say: OK, 
I am hiring a guy to go check this out. But now he is able to go to the 
judge. The reason he goes to the judge is that the judge is the guy who 
dispenses the money. The judge is the guy to say: OK, I will give you 
the money to hire that guy. You proved to me you need it. I will give 
you the money.
  Now, what my friends do here--and I understand their motivation; I 
think it is pure--is they say, wait a minute now. That is costing 
money, and should not the prosecutor, the State, have to be in that 
room when the defense attorney is in that room saying: Judge, I have no 
money, but I wish to hire an investigator to check this out.
  They say that the State prosecutor should be able to be in that room 
while that is being done. Well, they would not say that if it were a 
civil case. You would not in a civil case say, by the way, you ought to 
tell the other side that you are about to hire two people to go 
investigate a witness who says they saw your client walking around 
perfectly healthy when they claim to have a bad back. They say, well, 
you would not have to telegraph that.
  Just because somebody is poor, why should they have to give away 
their case in front of the prosecutor?
  And, by the way, to put it another way, how is the State hurt by 
this? The State is not hurt in any way by this. There is a Federal 
judge sitting there deciding whether or not there is a legitimate case 
made to need this investigator or to need this additional resource.
  And so what my amendment does is it strikes another provision in the 
underlying counterterrorism bill, the Hatch bill. It strikes the part 
that says that before a poor man's appointed counsel can ask a judge a 
question, he has to have the prosecutor in the room with him while he 
asks.
  Now, my good friend from Pennsylvania, who is, along with the 
chairman of the Judiciary Committee, one of the best trial lawyers in 
this place, and their previous records demonstrate that, says 
basically: Joe, do not worry about that because our legislation says--
and I will read it--``No ex parte proceeding, communication or request 
may be considered pursuant to this section unless a proper showing is 
made concerning the need for confidentiality.''
  I understand what they intend by that. What they intend by that is to 
solve the problem I have just raised, but under the law the use of the 
phrase ``proper showing'' means that in front of the prosecutor you are 
going to have to say: This is why I need this money, judge, to hire 
this investigator.
  The effect of that is in making your proper showing you have to make 
it in front of the prosecutor. You have now given away the very thing 
you wanted to avoid when you asked for the closed hearing. This closed 
meeting with the judge has nothing to do with the facts of the case, 
nothing to do with the outcome of the case, nothing to do with the 
evidence that can or cannot be submitted in the case, nothing to do 
with the substance of the case.
  It has to do with the resources made available to a court-appointed 
lawyer. He may go in and say: Judge, you have not given me enough money 
to be able to send out the following 20 questions to prospective 
witnesses. I want that money. Can you give me that money to send out 
those letters? Or to provide transportation to get a witness.
  Remember Rosa, that woman in the O.J. trial who was going to Mexico? 
Well, it may be a situation where he said: Look, I have an indigent 
witness who cannot get here. I do not have the money to get him here. 
Can you give us the money to get him here? The judge may say: No, I 
will not give you the money. I do not think it is essential for your 
case. But if the judge thinks it is essential, he can say: OK, you are 
authorized to buy a ticket to send that person here.
  But what you do not want to do is to necessarily have to tell that to 
the prosecution at this point because it may be a witness you turn out 
not using.
  Anyway, that is the crux of this thing, and although the intention to 
correct my concern in the underlying remaining amendment is the law 
says that ``upon a proper showing of the need for confidentiality'' you 
can have this secret hearing, or this closed hearing, it does not get 
it done because ``proper showing,'' we believe, is essentially a term 
of art in the law. You have to make your case before the other person.
  Now, the last point I will make--and this is, I think, an appropriate 
point to make--is that the mere fact they put this in here evidences 
the fact they know I am right. The mere fact they acknowledge that 
there are circumstances under which confidentiality is appropriate 
makes my case.
  Think about that now. If they thought everything I am saying here 
makes no sense, that it is not a legitimate point to raise, why would 
they [[Page S7819]] provide for any circumstance under which there 
could be a closed hearing in which only the judge and only the defense 
counsel were present? They acknowledge by implication. They try to 
correct it by saying ``proper showing.'' I spent, with my staff, 20 
minutes trying to come up with some other phrase that would get it 
done.
  But the truth of the matter is, it is real simple. It is human 
nature. If you have the prosecutor and the defense lawyer there and the 
judge, where the Presiding Officer is, and I have to make my case to 
you because you are not going to automatically grant what I request, 
you want to know why I want it. So you have to ask me, ``Joe, why do 
you want it?'' And in order for me to convince you to give me the 
resources, I have to say to you in front of the other guy, ``Well, I 
want it, Judge, because I think this witness is going to show that the 
witnesses for the prosecution are lying.'' Bingo, out of the bag.
  Now, if I could say to you, ``Judge, I can't say in front of the 
prosecutor here. Could you ask the prosecutor to step out of the room 
and I will tell you?'' If you could say that, then that will get it 
done. I do not mind the prosecutor being in there as long as when it 
comes to me to make my case as to why I need the resources that the 
prosecutor is not there.
  So I toyed with the idea of changing the law to say, ``No ex parte 
proceedings, communication, or request may be considered pursuant to 
this section unless a request is made concerning the need for 
confidentiality.'' A request is made--a request--not a showing, because 
when you move from request to showing, you are required to lay your 
cards on the table. ``The very cards I have to show you, Your Honor, in 
order to get you to allow me the money,'' I have to do it in front of 
those folks.
  We do not ask that for a defendant who can afford a lawyer. We do not 
ask that for a prosecutor. We only ask that for somebody who is poor, 
and that is a double standard. That is a double standard. To put it 
another way, Mr. President, if we wanted to make it even for everybody, 
we should require the privately paid defense lawyer to have to tell the 
prosecutor every single investigator he or she hires and why they hired 
them, and we should have to tell the prosecutor they have to tell the 
defense lawyer every single thing their investigator is doing before 
they do it. That would be fair. Now everybody is on the same playing 
field. Now poor folks are treated just like wealthy folks. Prosecutors 
are treated just like defendants. That would be fair.
  But what do we have here? We have a situation where I am poor, he is 
wealthy, and she is a prosecutor. She does not have to tell me anything 
about what she is investigating as a prosecutor. He does not have to 
tell her anything about what he is investigating as a defendant, he can 
afford it. But I have to tell everybody. It is not fair; not fair. That 
is what I am trying to correct.
  The underlying statute is 848. My amendment strikes all of their 
reference to that statute. I would be willing to do it by just 
substituting the word ``request'' for ``a proper showing'' in their 
language, but I do not think they are willing to accept that. So I am 
willing, when it is the appropriate time for my colleague to respond, 
if he wishes to, or move to table this--the bottom line, Mr. President, 
is I just think this is about fairness.
  Why should an indigent defendant have to tell the prosecutor all that 
he is investigating? You say, ``They don't have to under the law.'' 
They do practically, Mr. President, because they do not have the 
resources to hire these folks to do the investigation. Therefore, they 
have to ask for that. In order to get the judge to give them those 
resources, they have to tell him why they want those resources; 
thereby, the effect is they have to tell them. They should not have to 
do that. Wealthy defendants do not have to do it. Prosecutors do not 
have to do it. Poor people should not have to do it.
  I yield the floor and thank my colleague.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I appreciate what my colleague is saying, 
and I know he, with his experience, feels very deeply about it. The 
real problem is and the reason we have to oppose this amendment is 
because at this point in the proceedings, we have had a trial, three 
appeals, we have had other proceedings, but at this point in the 
proceedings, to which Senator Biden is referring, all claims should 
have been out in the open. At that point, they should be out in the 
open. They should not be investigating new claims at this point.
  Frankly, ex parte proceedings are simply unnecessary at this point in 
the proceedings. This is just simply another way of dragging out the 
process and the proceeding, permitting the defense counsel to argue his 
case outside the presence of the prosecutor. That is why we have to 
oppose this amendment.
  I suppose we could argue that we should never finish these 
proceedings; that there is no finality; that people who do not like the 
death penalty want these things to go on forever hoping that nobody 
ever has to live up to the judgment of the court or the jury, but that 
is what we are trying to solve here.
  The bill before the Senate protects constitutional rights. It 
protects civil liberties. We give them every chance under our bill to 
be able to pursue their claims. There is no reason why they should be 
able to walk into a court room and get an ex parte hearing without 
having counsel for the State present and having hired people to 
investigate new evidence over the last 6 months and then get a nunc pro 
tunc ruling of the court--in other words, that they should pay for 
that, the State is going to have to pay for that, from the time they 
hired them right up to the present time--in an ex parte proceeding. We 
both argued this pretty much to death.
  Mr. BIDEN. Mr. President, I would like to make one brief response.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. BIDEN. Mr. President, let me explain why, although it sounds 
reasonable what my friend said. We have gone through the factfinding 
stage, the trial, this is just on habeas appeals, and why do you want 
to dig stuff up?
  Many of the habeas appeals are premised on the following proposition: 
The defendant says, ``Hey, look, I got convicted, I got convicted 
unfairly because there was perjured testimony in my trial,'' like a 
couple trials that were mentioned here today, actually happened. I am 
not making these up, they happened.
  It turns out, for example, the prosecutor had a witness that would 
have said, ``I was with Charlie Smith and he couldn't have committed 
the crime,'' and the prosecutor never let anybody know that. 
Conversely, someone gets on the stand in the trial and lies and it is 
later found out that they lied.
  The reason why the defense attorney needs to be able to investigate 
is to be able to root that out. You have a defendant saying, ``Look, I 
am about to be put to death, but I'm telling you, Charlie Smith lied. 
If you just go find Harriet Wilson, I found out she knows he lied.''
  This is what happened. I am asking my staff to check the Carter case. 
I am not sure of the facts in the Carter case. If I am not mistaken, 
there was additional evidence found out after the trial--after the 
trial. That is why the defendant needs the same tools available to him 
or her that a wealthy defendant would need or the prosecutor needs. 
That is all I am saying. Do not be misled by the notion that the trial 
is over, therefore, there is no other factfinding to go on, you do not 
need an investigator.
  For example, in the Hurricane Carter case--I wanted to make sure I 
was right on my facts here--after the trial was over, Hurricane 
Carter's lawyers found out that there was a polygraph test given to one 
of the witnesses, and the outcome of that polygraph test sustained 
Hurricane Carter's assertion that he was innocent. It was never made 
available. They never told anybody such a test was done. Therefore, it 
took investigative work after the trial to go back and dig this out. 
They dug it out.
  Old Hurricane Carter ``ain't'' dead now, and the reason he is not 
dead now is because they dug that, among other facts, out. That is the 
investigative work we are talking about. Keep in mind now, this does 
not in any way extend the number of appeals someone [[Page S7820]] can 
make.
 This does not in any way extend the time in which appeals have to be 
filed. This is just simple fairness. Treat poor people like you treat 
wealthy people during and after the trial.

  I yield the floor.
  Mr. HATCH. One more sentence. This is after direct appeals, after 
collateral appeals have been done, after the State has decided the 
issue on perjury, or to use his hypothetical, where they would have had 
the opportunity. All we ask is that the State not be hammered. We have 
had judges that do these things. States have had inordinate expenses, 
and there is little or no justification for it.
  Mr. President, I move to table the Biden amendment and 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.
  Mr. HATCH. I ask unanimous consent that the vote on the motion to 
table the Biden amendment No. 1253 be at a time to be determined by the 
majority leader after consultation with the minority leader, but not 
before 2 p.m. today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. I ask that the Biden amendment No. 1253 be laid aside and 
that the Senator from Michigan be recognized to offer his amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. I ask unanimous consent that at the conclusion or yielding 
back of time on the Levin amendment it be set aside and the vote occur 
on or in relation to the Levin amendment No. 1245 following the vote on 
the motion to table the Biden amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. It is my understanding that the distinguished Senator from 
Oklahoma has asked for some separate time.
  I ask unanimous consent that he be given that opportunity to speak at 
this time.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. HATCH. I ask that the time not be charged to Senator Levin or our 
side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NICKLES. Mr. President, first, I wish to compliment Senator Hatch 
for his leadership on this bill, and I also compliment Senator Dole for 
his leadership in bringing this bill to the floor and his willingness 
to bring it to the Senate this early.
  Mr. HATCH. If the Senator will yield, before the Senator gets into 
his remarks, I want to also ask unanimous consent that immediately 
following the Senator from Oklahoma the Senator from Michigan be 
granted 10 minutes, without having the time count against any 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NICKLES. Mr. President, again, I thank my friend and colleague 
from Utah for his leadership on this bill and for his willingness to 
bring it to the floor so quickly. I also thank Senator Dole, because I 
remember after the tragedy of April 19 in my State, talking to Senator 
Dole either that day or the next day, he stated to me his willingness 
to bring legislation forward to the Senate as quickly as possible. He 
has met that obligation. We do not usually move very fast in the 
Senate. I appreciate his willingness to schedule this as early as 
possible. I also appreciate the fact that finally we are going to bring 
this issue to a conclusion.
  It was my hope that we were going to finish it last night. I wanted 
to be in Oklahoma today because of some base closing hearings both in 
Enid and in Oklahoma City, Vance and Tinker Air Force bases. That is 
very important. But I feel like this issue is most important for my 
State and for many people across our country. It is vitally important 
that we enact habeas corpus reform.
  On Monday of this week I was honored to meet with about a dozen 
Oklahomans who had lost family members in the Oklahoma City bombing. 
These brave individuals came to their Nation's Capital to honor their 
loved ones by asking the U.S. Senate to do one meaningful thing--enact 
tough habeas corpus reform on the antiterrorism bill.
  There are several important parts of the bill that is before us, but 
the one key element that will help the victims of the Oklahoma City 
bomber and other victims of violent crime in habeas corpus reform.
  I will read a couple of the comments that some of the victim's 
families made:

       In Oklahoma City they had a press conference and came to 
     the State capitol to urge Congress and the President to 
     implement habeas corpus legislation that would significantly 
     reduce the appeals process and expedite the imposition of 
     death sentences. In strained, choked voices, they talked of 
     the tragedy that tore at the city, leaving shattered families 
     still only beginning to absorb the depths of their losses. 
     Connie Williams wore a button with her dead son Scott's 
     picture, bearing the words ``Beloved Scott, Our Special 
     Angel.'' His pregnant wife, Nicole, said, ``I do not want his 
     daughter to be in high school wondering why his killers are 
     still on death row.''

  She is right.
  Some of the families came up to our Nation's Capitol on Monday. One 
was Diane Leonard. Her statement was, ``Our pain and anger are great.'' 
Her husband is gone, a Secret Service agent killed in the bombing in 
Oklahoma City. I might mention he was an agent of the Secret Service 
for 25 years. She added, ``But it would be much, much greater if the 
perpetrators of this crime are allowed to sit on death row for many 
years.'' She is talking about the pain and anger are great, but it 
would be much greater if the perpetrators were allowed to sit on death 
row for many years. She is a former Tulsa resident. Diane Leonard, her 
voice cracking with emotion, described in graphic detail the injuries 
her husband suffered. She urged Senators to have the courage to amend 
the law to allow death sentences to be carried out in 2 or 3 years.
  I respect the fact that some of our colleagues feel differently on 
the death penalty. We have heard some of them speak eloquently today. 
They are opposed to habeas corpus reform in large part, in many cases, 
because they do not want the death penalty to ever be carried out. I 
respect their position, but I do not think they are correct. I think 
they are wrong.
  Mr. President, I fear that our criminal justice system is in critical 
condition. The past couple of years have shown a dip in America's crime 
rate, but over the course of years our crime rate has gone up and up 
and up.
  Today, an American is about 2\1/2\ times more likely to be a victim 
of a property crime than he or she was in 1960.
  Today, an American is about four times more likely to be a victim of 
a violent crime than he or she was in 1960.
  And in the face of these sobering numbers and the numbing real-life 
stories that appear on our television sets every night, our criminal 
justice system appears less and less able to dispense justice.
  This bill, if it contains tough, new habeas corpus reforms, can be an 
essential step along the path to reform.
  No adult in Oklahoma can consider the probable prospects for the 
Oklahoma City bomber without reflecting on the man who until a few 
weeks ago was Oklahoma's most notorious killer. That man is Roger Dale 
Stafford who, in 1978, murdered nine persons in two separate incidents. 
Roger Dale Stafford was given nine death sentences for those murders, 
but he is living still.
  Roger Dale Stafford does have an execution date; it is July 1, 1995. 
But Roger Dale Stafford has had execution dates before, and they all 
have come and gone. Whether this date will be the last I do not know 
for his attorney has announced that he will seek another stay of 
execution. Incidentally, this is the same attorney who has been 
appointed to represent Timothy James McVeigh, the man being held in 
connection with the Oklahoma City bombing.
  Roger Dale Stafford's crimes are well known in Oklahoma, but the fact 
that they are well known does not reduce their ability to shock and 
sadden anyone who hears of his wickedness.
  On June 21, 1978, after searching unsuccessfully for a business to 
rob, Roger Dale Stafford, his wife, Verna, and his brother, Harold, 
decided to stop their car, raise the hood, and feign distress, in hopes 
that a wealthy and vulnerable Good Samaritan would come 
[[Page S7821]] along. They pulled their car to the side of the road, 
and Verna Stafford attempted to flag down passing cars. Roger and 
Harold Stafford lay in wait in the darkness.
  Eventually, a blue Ford pickup truck with a white camper shell pulled 
off the road, and the driver, Air Force Sgt. Melvin Lorenz approached 
Verna Stafford with an offer to help. Sergeant Lorenz looked under the 
hood of the Stafford automobile and said that he could find nothing 
wrong. At that point, the Stafford brothers confronted Sergeant Lorenz 
and demanded his wallet. Roger Stafford was armed with a pistol. 
Sergeant Lorenz informed the Staffords that he and his family were on 
their way to his mother's funeral in North Dakota, and that he could 
give the appellant some money, but not all that he had. Roger Dale 
Stafford then shot Sergeant Lorenz twice, killing him.
  Hearing the shots, Linda Lorenz, Sergeant Lorenz's wife, got out of 
the pickup truck and ran toward her husband. Verna Stafford knocked 
Mrs. Lorenz to the ground, and Roger Stafford shot her as she fell, 
killing her.
  The murderers then heard a child calling from the back of the camper. 
Roger Stafford approached the camper, cut a hole in the screen, and 
fired his pistol into the darkness, forever silencing 11-year-old 
Richard Lorenz.
  For the Lorenz murders, Roger Dale Stafford was convicted on three 
counts of first degree murder and sentenced to death for each murder.
  That was first of Roger Dale Stafford's murderous episodes in 
Oklahoma. A month later, he struck again:
  On July 16, 1978, Roger, Verna, and Harold Stafford robbed the 
Sirloin Stockade Restaurant in Oklahoma City. The trio waited in the 
restaurant's parking lot until all the customers had left, then knocked 
on the side door of the restaurant. When the manager answered, he was 
greeted by Roger and Harold Stafford pointing guns at him. They forced 
him to take them to the cash register and the office safe.
  Harold and Verna Stafford held five employees at gun-point while 
Roger Stafford had the manager empty the office safe which contained 
almost $1300. All six employees were then ordered inside the 
restaurant's walk-in freezer. Once inside, Roger Stafford shot one of 
the hostages, then both men opened fire on the remaining employees. 
Roger Stafford told Verna that it was time for her to take part. He 
placed his gun in her hand and helped her pull the trigger.
  All six Sirloin Stockade employees died as a result of the shootings. 
They were: Terri Michelle Horst, age 15; David Gregory Salsman, age 15; 
David Lindsay, age 17; Anthony Tew, age 17; Louis Zacarias, age 46; and 
Isaac Freeman, age 56.
  For the Sirloin Stockade murders, Roger Dale Stafford was convicted 
on six counts of first degree murder and sentenced to death for each 
murder.
  As I said, Mr. President, Roger Dale Stafford lives still, and each 
day his penalty becomes farther and farther removed from the crimes for 
which it is so eminently justified. Justice still waits for Roger Dale 
Stafford.
  And, why the delay? Because since his convictions, Roger Dale 
Stafford has made at least 18 reported appearances in Federal and State 
courts. He has been before the U.S. Supreme Court six times--1985, 
1985, 1985, 1984, 1984, 1984--before the U.S. Court of Appeals for the 
10th Circuit once, 1994, before the Oklahoma Supreme Court once, 1986, 
and before the Oklahoma Court of Criminal Appeals nine times, 1993, 
1992, 1991, 1990, 1987, 1985, 1985, 1983, 1983. This list does not 
include appearances which were not officially reported. It omits one 
pretrial appearance at an appellate court, 1979. And, it omits all 
activity at the trial courts.
  Mr. President, 17 years ago he murders teenagers, he murders an 
innocent family that is trying to help him out, and he is still on 
death row. That is not justice delayed, that is justice denied.
  What about the families that lost teenagers in that incident? What 
about the families that lost loved ones--178--in the Oklahoma City 
bombing incident; 178, with over 400 injured? Are we going to be 
telling them 15, 17, 20 years from now, ``Well, the appeals process is 
just very cumbersome,'' and have taxpayers paying not only the expense 
for taking care of the perpetrators of the crime, should they be 
convicted and receive the death sentences, as they surely should and 
hopefully will. What are we going to tell those families?
  I met with some of the victims that lost two children. I met with 
them Friday. A young lady in her early twenties lost both her kids. I 
met with a daughter that lost her father just last Monday. I met with 
three spouses that lost their spouse. One of the individuals that was 
here was an uncle who lost his nephew, whose wife is expecting. What 
about that child who will never see her father alive? Are we going to 
tell that child, ``Well, we are sorry, but the person that was 
responsible for murdering your dad is still in Federal court, he is 
still in prison living pretty well, watching TV; Uncle Sam, or the 
Government, is taking care of him, giving him three meals, making sure 
all his rights are protected,'' and allow him to abuse the process for 
15 years or so? I do not think so. That is not justice to the families. 
That is not justice, period.
  So we need habeas corpus reform. We have needed it for a long time. I 
am glad the President has reversed himself and now agreed that we need 
this on this bill. This will allow the families to at least have some 
knowledge that there will be justice, and hopefully we will move very 
quickly.
  Mr. President, I want to make some general comments on habeas corpus 
reform because we have needed this for a long time. First, our habeas 
system does not promote justice. The availability of habeas corpus to 
State prisoners, beyond the various remedies and layers of review 
available in State courts, has little or no value in avoiding 
injustices or ensuring that the Federal rights of criminal defendants 
are respected. The typical applicant has already secured extensive 
review of his case in State courts, having pursued a State appeal and 
often having initiated collateral attacks in State courts. The claims 
raised by such defendants are normally without substance and are likely 
to be technical, that is, to allege procedural irregularities which 
cast no real doubt on the defendant's guilt.
  Let me just mention the cases in Oklahoma City. I talked to a Federal 
judge, the first judge I was responsible for getting appointed in 
Oklahoma. 1982 was his first year on the court. They had 193 prisoner 
appeals made to the Federal courts--193. That happened to be about 10 
percent of their caseload. In 1992, 10 years later, they had 630. The 
number more than tripled, an increase to 25 percent of their caseload.
  Prisoners are finding it pretty easy to make appeals, and they are 
appealing to the Federal system. There is no limit to the number of 
appeals. They can appeal for anything. They can appeal on habeas that 
they were incorrectly convicted, or they can appeal and say that 
somebody next door is smoking or somebody next door has a radio too 
loud. And they take it all the way to the Federal court. That is 
happening hundreds of times.
  In Oklahoma City and the western district in 1992, there were 630 
prisoner petitions. Some of the prisoners are specializing in this. 
There is nothing else to do. So they have legal access, they have 
access to the library, and they can abuse this process for all it is 
worth. And so what if it ties up the court? So what if it keeps them 
kind of busy? So what if they are as guilty as they possibly can be? So 
what if they have been convicted and gone through every appeal in the 
process and been to the Supreme Court?
  Roger Dale Stafford has had his case to the Supreme Court six times, 
and every time the Supreme Court said, ``Guilty.'' Yet he files another 
petition. I expect he has another one in the typewriter right now. It 
just so happens his attorney is a very competent, very professional, 
very good attorney, Steven Jones. He also happens to be the same 
attorney that will be defending Mr. McVeigh. I do not want the victims 
of the Oklahoma City bombing to have to wait 17 or 20 years for 
justice. That is why we need habeas corpus reform.
  Second, the habeas system demeans federalism. The present system of 
review is demeaning to the State courts and pointlessly disparaging to 
the efforts to comply with Federal law in criminal proceedings. A 
single Federal judge is frequently placed in the position of reviewing 
a judgment of conviction that was entered by a State trial 
[[Page S7822]] judge, reviewed and found objectionable by a State 
appellate court, and upheld by a State supreme court. An independent 
determination of the contentions raised by the applicant is required of 
the Federal judge although he may have no doubt that the State courts 
were conscientious and fair. State judiciaries are presumed to be 
incapable of applying Federal law, or unwilling to do so.
  I know Senator Kyl will have an amendment later that would address 
that, and I compliment him for his amendment and plan to support him in 
his efforts.
  Third, habeas corpus defeats the demand for finality. The current 
system of Federal habeas corpus defeats the important objective of 
having an end to litigation. The costs of such a system were eloquently 
described by the late Justice John Harlan in Mackey v. United States, 
401 U.S. 667, 690-91 (1971):

       Both the individual criminal defendant and society have an 
     interest in insuring that there will at some point be the 
     certainty that comes with an end to litigation, and that 
     attention will ultimately be focused not on whether a 
     conviction was free from error but rather on whether the 
     prisoner can be restored to a useful place in the community. 
     * * * If law, criminal or otherwise, is worth having and 
     enforcing, it must at some time provide a definitive answer 
     to the questions litigants present or else it never provides 
     an answer at all. * * * No one, not criminal defendants, not 
     the judicial system, not society as a whole is benefitted by 
     a judgment providing a man shall tentatively go to jail 
     today, but tomorrow and every day thereafter his continued 
     incarceration shall be subject to fresh litigation on issues 
     already resolved.

  Fourth, habeas procedures are wasteful. The current system is 
wasteful of limited resources. At a time when both State and Federal 
courts face staggering criminal caseloads, we can ill afford to make 
large commitments of judicial and prosecutorial resources to procedures 
of dubious value in furthering the ends of justice. Such commitments 
come at the expense of the time available for the stages of the 
criminal process at which the questions of guilt and innocence and 
basic fairness are most directly addressed. Former Chief Justice Warren 
Burger made the following points:

       I know of no society or system of justice that takes such 
     scrupulous care as we do to give every accused person the 
     combination of procedural safeguards, free legal counsel, 
     free appeals, free records, new trials and post conviction 
     reviews of his case. I have seen cases--and this occurs in 
     many courts today--where three, four, and five trials are 
     accorded to the accused with an appeal following each trial 
     and reversal of the conviction on purely procedural grounds. 
     * * * In some of these multiple trial and appeal cases the 
     accused continued his warfare with society for eight, nine, 
     ten years and more. In one case more than 60 jurors and 
     alternates were involved in five trials, a dozen trial judges 
     heard an array of motions and presided over these trials; 
     more than 30 different lawyers participated either as court-
     appointed counsel or prosecutors and in all more than 50 
     appellate judges reviewed the case on appeals. I tried to 
     calculate the costs of all this for that one criminal act and 
     the ultimate conviction. The best estimates could not be very 
     accurate, but they added to a quarter of a million dollars. 
     The tragic aspect was the waste and futility since every 
     lawyer, every judge and every juror was fully convinced of 
     the defendant's guilt from the beginning to the end.'' 25 
     Record of the N.Y.C. Bar Assoc. 14, 15-16 (Supp. 1970).

  Fifth, the way our habeas system is used nullifies capital sentences. 
The constitutionality of the death penalty has been settled since 1976. 
Thirty-eight States now authorize capital punishment, but the 
inefficiency of current court procedures has resulted in a de facto 
nullification of capital punishment laws. The public interest 
organizations that routinely involve themselves in capital cases have 
fully exploited the system's potential for obstruction. Delay is 
maximized by deferring collateral attack until the eve of execution. 
Once a stay of execution has been obtained, the possibility of carrying 
out the sentence is foreclosed for additional years as the case works 
its way through the multiple layers of State and Federal courts.
  Mr. President, this country desperately needs reform in its criminal 
justice system. Habeas corpus reform is an important part of that 
necessary reform, and this bill is an excellent place to start 
reforming habeas corpus.
  I agree with the families of the Oklahoma City dead: Habeas corpus 
reform is an inadequate, but necessary, memorial to the memories of 
those who died in that dreadful, murderous blast.
  Again, I compliment Senator Hatch for his leadership, and Senator 
Dole for bringing this to the floor of the Senate and Senator Dole for 
pushing the Senate for the last several days, including last night.
  I am glad that finally we are going to have this bill come to a 
conclusion and have cloture, and allow us to have habeas corpus reform 
which, again, in my opinion, is the most significant element of true 
crime control that we can enact.
  I am hopeful we can send a positive signal to the families of the 
victims in the Oklahoma City bombing and tell them that, yes, we are 
going to have an end to these endless appeals, and that justice will be 
done and it will be done, as President Clinton said, in a timely manner 
as well.
  The PRESIDING OFFICER (Mr. Faircloth). The Chair recognizes the 
Senator from Michigan.
  Mr. ABRAHAM. Mr. President, I rise today in support of this 
legislation as well. I also pay tribute to my colleague from Oklahoma, 
whom I think today presented an extraordinarily strong and compelling 
argument in favor of the reforms of habeas corpus that we are looking 
at today, and against a series of amendments.
  Later in my remarks I will address some of those reforms and that 
issue, although I am unable to think of how I can address them more 
vividly and effectively than the Senator from Oklahoma has already 
done.
  Today I rise to also just indicate my overall support for this 
legislation. Clearly, the people in our country and in our State of 
Michigan in particular stand back and look at the events which took 
place in Oklahoma City with great concern. They have asked us to act. I 
believe this bill properly incorporates the best ideas as to the sorts 
of actions we should be taking at this time to address the problem of 
terrorism, wherever it may originate.
  At this point I would like, in my remarks, to highlight a series of 
provisions in the bill I have worked on with our outstanding floor 
leader and my good friend, the Senator from Utah, with the majority 
leader, and others. These provisions would facilitate the deportation 
of aliens who have committed serious crimes while in the United States.
  The provisions at issue, contained in title III, section 303(e) of 
the bill, require that aliens who are convicted of serious crimes in 
courts of law in this country be deported upon completion of their 
sentences without any further judicial review of the order of 
deportation. These expedited deportation procedures will apply to the 
almost half a million aliens currently residing in this country who are 
deportable because they have been convicted of committing serious 
felonies.
  Under the Immigration and Nationality Act, aliens who are convicted 
of felonies after entry are already deportable. They are rarely 
actually deported, however, because criminal aliens are able to request 
equitable waivers from the courts and other types of judicial review 
that were never meant to apply to convicted felons. Such abuse of 
process operates to prevent the order of deportation from becoming 
final.
  Notably, both the administration's antiterrorism bill and S. 735 
contain expedited deportation procedures for a small class of aliens 
reasonably suspected of planning future terrorist activity. The 
administration's bill, however, makes no provision for rapid 
deportation of aliens who have actually committed crimes. This, despite 
the fact that the Attorney General has said that the removal of 
criminal aliens from the United States is one of the administration's 
highest priorities and that our prisons and jails are crowded with 
criminal aliens. The substitute to S. 735 remedies that omission.
  According to the FBI, foreign terrorists have been responsible for 
exactly two terrorist incidents in the United States in the last 11 
years: the World Trade Center bombing and a trespassing incident at the 
Iranian mission to the United Nations. While the World Trade Center 
bombing was obviously a very serious matter, it should not be the 
exclusive focus of our efforts to take strong action to protect 
American citizens from criminal conduct by non-citizens.

[[Page S7823]]

  More than 53,000 crimes have been committed by aliens in this country 
recently enough to put the perpetrators in our State and Federal 
prisons right now. An estimated 20 to 25 percent of all Federal prison 
inmates are noncitizens; in California, almost one-half of the prison 
populations are noncitizens. According to a 1995 Senate Report on 
Criminal Aliens in the United States, a conservative estimate of the 
total number of deportable criminal aliens presently residing in the 
county is 450,000. All of these aliens have committed at least one 
serious crime in this country. For that reason all are deportable under 
the law. They have not been deported because they have been able to 
prevent the order of deportation from ever becoming final by seeking 
repeated judicial review.
  The grounds on which criminal aliens are legitimately entitled to 
waivers of deportation are extremely narrow. To avoid deportation, 
criminal aliens essentially must prove a case of mistaken identity--
that the alien is not who the Government thinks he is; that he is not 
an alien, at all; or that he has been pardoned or had his conviction 
overturned. Mistakes of this order do not happen often. Mistakes of 
this order certainly have not happened 450,000 times--for each of the 
deportable criminal aliens currently in the country. Rather, the 
alien's capacity to demand successive judicial review, even wholly 
merit less judicial review, grinds the deportation process to a halt.
  Meanwhile, the Immigration and Naturalization Service does not have 
adequate facilities to house this many criminal aliens. As a result, 
the great majority of these convicted felons are released back to our 
streets after serving their sentences, with instructions to report 
several months later for a hearing before the INS.
  Needless to say, the majority of criminal aliens released from 
custody do not return for their hearings. Having been returned to the 
streets to continue their criminal predation on the American citizenry, 
many are rearrested soon after their release. Thus, for example, a 
recent study by the GAO found that 77 percent of noncitizens convicted 
of felonies are rearrested at least one more time. In Los Angeles 
County alone, more than half of incarcerated illegal aliens are 
rearrested within 1 year of their release.
  The provisions at issue will put an end to this abuse of process by 
doing the following:
  First, they will prohibit the Attorney General from releasing 
criminal aliens from custody prior to deportation.
  They will also eliminate judicial review for orders of deportation 
entered against criminal aliens--although criminal aliens will still be 
entitled to challenge their orders of deportation before the Board of 
Immigration Appeals.
  In addition, these provisions will require deportation of criminal 
aliens within 30 days of the conclusion of the alien's prison sentence 
in most circumstances.
  Finally, they will apply these expedited deportation to aliens who 
have committed the ``General Crimes'' listed in section 1251 of title 8 
of the United States Code. These include crimes such as murder, rape, 
drug trafficking, espionage, sabotage, and treason.
  These reforms are extremely reasonable. Aliens in this country who 
commit these crimes will still be afforded all the due process 
protections and lengthy appellate and habeas corpus review afforded 
U.S. citizens on the underlying offense. Moreover, once those appeals 
have run and the conviction has been upheld, the alien will continue to 
be entitled to a hearing before an immigration judge to determine 
whether an order of deporatation should be entered. And if an order of 
deportation is entered, the alien will still retain the right to appeal 
the order to the Board of Immigration Appeals. The substitute to S. 735 
only eliminates additional judicial review for criminal aliens beyond 
this point.
  Without the rapid deportation provisions for criminal aliens in this 
legislation, aliens who are convicted felons will continue to be 
deported at the current pace, that is about 4 percent a year. At this 
rate--assuming no alien is ever convicted of another felony--it would 
take 23 years to deport all the aliens presently residing in the 
country who are under felony convictions. Meanwhile, many will be 
released back into society to prey on more American citizens. No 
country, no matter how civilized, should continue to tolerate this 
abuse.
  For that reason, as well as the many others that have been advanced 
over the past few days, we should enact this legislation, and quickly 
too. I urge the Senate to do just that.
  Finally, Mr. President, I would like to say a few words about another 
very important set of provisions in this bill: the sections that would 
reform habeas corpus.
  Like the provisions concerning deportation of criminal aliens, the 
habeas corpus reforms in the bill correct a common abuse of judicial 
process in our criminal justice system. In this case they correct the 
obstructive and abusive manipulation of the writ of habeas corpus by 
criminals who have been convicted of serious violent crimes.
  Right now, the delay made possible by abuse of this writ allows 
convicted criminals to essentially overrule a State's entire criminal 
justice system. By filing repetitive or frivolous habeas corpus 
petitions, criminals are able to delay the imposition of capital 
sentences indefinitely. This delay in turn seriously undercuts the 
moral authority of the people, through their elected representatives, 
to impose this punishment on people who have committed extremely 
heinous crimes.
  This is not fair to the people, who are entitled to determine the 
punishments to be accorded crimes committed in their States. Nor is it 
fair or even humane to the families of the victims of crime.
  The habeas reforms in the antiterrorism bill impose reasonable limits 
on the use of the writ--reforms that are long overdue. I support these 
reforms and I urge the Senate to enact the antiterrorism bill.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                Amendment No. 1245 to Amendment No. 1199

 (Purpose: To retain an avenue for appeal in the case of prisoners who 
                   can demonstrate actual innocence)

  Mr. LEVIN. Mr. President, I call up an amendment at the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Michigan [Mr. Levin] proposes an amendment 
     numbered 1245 to amendment No. 1199.

  Mr. LEVIN. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 106, line 12, strike ``and'' and all that follows 
     through the end of line 17 and substitute the following:
       ``or
       ``(B) the facts underlying the claim, if proven and viewed 
     in light of the evidence as a whole, would be sufficient to 
     establish that constitutional error has occurred and that 
     more likely than not, but for that constitutional effort, no 
     reasonable factfinder would have found the applicant guilty 
     of the underlying offense.''
       On page 110, line 3, strike ``and'' and all that follows 
     through the end of line 9 and substitute the following:
       ``or
       ``(ii) the facts underlying the claim, if proven and viewed 
     in light of the evidence as a whole, would be sufficient to 
     establish that constitutional error has occurred and that 
     more likely than not, but for that constitutional error no 
     reasonable factfinder would have found the applicant guilty 
     of the underlying offense.''

  Mr. LEVIN. Mr. President, it is my intention to offer and modify this 
amendment. I will do that in a moment so that the amendment clarifies 
language that more precisely tracks the Supreme Court language which is 
the subject of the amendment.
  I ask unanimous consent that the modification be in order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  [[Page S7824]]
  
         Amendment No. 1245, as Modified, to Amendment No. 1199

  Mr. LEVIN. Mr. President, I send a modification to the desk.
  The PRESIDING OFFICER. The amendment is so modified.
  The amendment (No. 1245), as modified, is as follows:

       On page 106, line 13, strike clause (B) and substitute the 
     following:
       ``(B) the facts underlying the claim, if proven and viewed 
     in light of the evidence as a whole, would be sufficient to 
     establish that a constitutional violation has probably 
     resulted in the conviction of a person who is actually 
     innocent of the underlying offense.''
       On page 110, line 4, strike clause (ii) and substitute the 
     following:
       ``(ii) the facts underlying the claim, if proven and viewed 
     in light of the evidence as a whole, would be sufficient to 
     establish that a constitutional violation has probably 
     resulted in the conviction of a person who is actually 
     innocent of the underlying offense.''

  Mr. LEVIN. Mr. President, Justice Clark, discussing the Magna Carta, 
said the following:

       Ever since the Magna Carta, the greatest right of personal 
     liberty has been guaranteed, and the procedures of the Habeas 
     Corpus Act of 1679 gave to every Englishman a prompt and 
     effective remedy for testing the legality of his 
     imprisonment. Considered by the founders as the highest 
     safeguard of liberty, it was written into the Constitution of 
     the United States that its privilege shall not be suspended 
     unless, when in cases of rebellion or invasion, the public 
     safety may require it. Its principle is embedded in the 
     fundamental law of 47 of our States.

  Justice Clark went on to say:

       It has long been available in the Federal courts to 
     indigent prisoners . . . both the State and Federal 
     Government to test the validity of their detention. Over the 
     centuries, it has been the common law world's freedom writ. 
     We repeat what has been so truly said of the Federal writ. 
     There is no higher duty than to maintain it unimpaired and 
     unsuspended, save only the cases specified in our 
     Constitution.

  Mr. President, the right of habeas corpus over the years has been 
abused. It has been overused and excessively attempted to be utilized 
in many cases. Over the years, the Congress and the courts have 
attempted to rein in some of those excesses, and have done so. Both the 
Supreme Court and the Congress have in a number of ways attempted to 
restrict the utilization of the right of habeas corpus so that it would 
not be abused. The bill before us, in many respects, however, has 
reduced the utilization of the right of habeas corpus excessively. One 
particular that I want to address in the next few minutes would deny 
access to the writ on the part of somebody who a court believes is 
actually innocent.
  I want to repeat that because this is a very narrow group of cases 
that we are talking about. The case which this amendment addresses is 
the case where a court determines that the prisoner filing the writ is 
probably actually innocent.
  I hope that sounds startling because this is a startling subject. The 
subject is whether or not we are going to execute somebody where a 
court finds that the person is probably--that is the key word--actually 
innocent of the underlying offense. I want to go back into history in 
order to give the background of this issue.
  As I have said, the court as well as the Congress has found that the 
writs of habeas corpus have been used excessively--the petition, more 
accurately, seeking a writ, has been used excessively. This has been 
happening for many, many years.
  The court in the Schlup case, which is the case I want to discuss at 
some length, a 1995 case, went through the history of writs of habeas 
corpus, and they found that the writ had been excessively sought, that 
there had been repetitious petitions, there had been successive writs 
sought, and that the burden on the courts became too great.
  So in the Schlup case, the majority said the following about the 
history of the applications for writs of habeas corpus.

       To alleviate the increasing burdens on the Federal courts 
     and to contain the threat to finality and comity, Congress 
     attempted to fashion rules disfavoring claims raised in 
     second and subsequent petitions.

  And they then went through congressional enactments starting in 1966. 
They also then talked about what the Court has done to restrict the 
applicability and the availability of petitions for writs of habeas 
corpus, and said the following in the Schlup case.

       These same concerns--

  And that is the overutilization--

     resulted in a number of recent decisions from this Court that 
     delineate the circumstances under which a district court may 
     consider claims raised in a second or subsequent habeas 
     petition. In these decisions, the Court held that a habeas 
     court may not ordinarily reach the merits of successive 
     claims absent a showing of cause and prejudice.

  The Court then quotes an opinion written by Justice O'Connor in the 
Carrier case. And they said in Schlup that Justice O'Connor has noted 
the following:

       In appropriate cases the principles of comity and finality 
     that inform the concepts of cause and prejudice must yield to 
     the imperative of correcting a fundamentally unjust 
     incarceration.

  So there is an exception if the Court finds a fundamental miscarriage 
of justice. That is what courts are for. Courts can be abused but 
ultimately what they must seek to do is avoid a fundamentally unjust 
incarceration and a fundamental miscarriage of justice. And this is 
what the Schlup court wrote.

       To ensure that the fundamental miscarriage of justice 
     exception would remain ``rare'' and would only be applied in 
     the ``extraordinary case,'' while at the same time ensuring 
     that the exception would extend relief to those who are truly 
     deserving, this court explicitly tied the miscarriage of 
     justice exception to the petitioner's innocence.

  That is what we now must address this afternoon. It is what do we do, 
what standard do we adopt when, on a second application for a petition 
of habeas corpus raising a constitutional defect, a petitioner 
persuades a court that he or she is probably innocent of the underlying 
crime? Will we permit a second petition to be granted so that there can 
be a hearing? We are not talking about now release from prison. We are 
just talking about whether a hearing will be available to somebody who 
persuades a court that he or she is probably innocent and is awaiting 
execution.
  Now, Justice O'Connor in the previous Carrier case, which is relied 
on heavily in Schlup, said the following:

       In an extraordinary case, where a constitutional violation 
     has probably resulted in the conviction of one who is 
     actually innocent, a Federal habeas court may grant the writ 
     even in the absence of a showing of cause for the procedural 
     default.

  And the Court went on to say:

       Explicitly tying the miscarriage of justice exception to 
     innocence

  And I want to repeat that word because that is the heart of this 
amendment. We are only talking about people who are probably innocent 
as found by a court and as to whether or not they should be denied a 
hearing on the ground that their application is a second application 
for the writ and not the first application but where a court now for 
the first time, faced with new evidence, is satisfied that that 
applicant is probably innocent.
  And here is what the Court said:

       Explicitly tying the miscarriage of justice exception to 
     innocence thus accommodates both the systemic interest in 
     finality, comity, and conservation of judicial resources, and 
     the overriding individual interest in doing justice in the 
     ``extraordinary case.''

  The Court went on to say the following:

       Experience has taught us that a substantial claim that 
     constitutional error has caused the conviction of an innocent 
     person is extremely rare. To be credible, such a claim 
     requires petitioner to support his allegations of 
     constitutional error with new reliable evidence--whether it 
     be exculpatory scientific evidence, trustworthy eyewitness 
     accounts, or critical physical evidence--that was not 
     presented at trial. Because such evidence is obviously 
     unavailable in the vast majority of cases, claims of actual 
     innocence are rarely successful.

  And the Court said that:

       A petitioner does not meet the threshold requirement unless 
     he persuades the district court that, in light of the new 
     evidence, no juror, acting reasonably, would have voted to 
     find him guilty beyond a reasonable doubt.

  Now, that is a pretty strong test for being eligible for a hearing on 
a second writ, that a court must find an applicant is probably 
innocent, meaning that no reasonable juror--no reasonable juror--would 
find that person guilty beyond a reasonable doubt. And the issue 
becomes whether or not we want to require that person to be executed. 
Is that person going to be executed? Are we going to deny, as this bill 
does, a Federal court the right to grant a hearing on a second writ of 
habeas corpus when a petitioner introducing new evidence convinces a 
court [[Page S7825]] that he or she is probably innocent? Will we deny 
that court that opportunity?
  Now, what the bill does is adopts the dissent in Schlup, which has a 
higher standard--not the standard of probability but the standard of 
clear and convincing. And that is the issue on this amendment, whether 
or not we, in the Senate, are going to overturn the Supreme Court 
decision in Schlup, which said that if a court is convinced that a 
person is probably innocent, that is enough for that court to grant a 
hearing on a second or subsequent application for writ of habeas 
corpus, or will we adopt the dissent in Schlup, which says, no, 
probability of innocence is not enough. Even if somebody is probably 
innocent of the underlying offense, we are going to execute that person 
unless there is clear and convincing evidence, evidence above and 
beyond probability.
  The case itself in Schlup was a case where this man was already a 
prisoner and was convicted of first-degree murder, a murder that 
occurred in prison, and was sentenced to death. In the habeas corpus 
proceedings, he produced a videotape showing him in a cafeteria lunch 
line at the time the killing occurred in a different place, sworn 
testimony from a prison guard stating that Schlup could not have 
committed the murder, and sworn testimony of five eyewitnesses that 
Schlup was not present and did not participate in any way in the 
murder.
  The Federal court of appeals judge found--this is the court of 
appeals now, before the Supreme Court--the court of appeals judge found 
``truly persuasive evidence that Mr. Schlup is actually innocent.'' 
Despite that, the majority of the court of appeals upheld the death 
sentence and refused to grant a hearing on the new evidence. The court 
held that under the clear and convincing test, the test that they 
thought they should follow, they would not grant a hearing in his 
application.
  Earlier this year, the Supreme Court overruled that court of appeals 
saying that the clear and convincing test, which is the test in the 
bill before us, failed to provide a meaningful avenue by which to avoid 
a manifest injustice in cases of actual innocence.
  The Court ruled that the fair test for the relief sought is whether 
``a constitutional violation has probably resulted in the conviction of 
one who is actually innocent.'' I am going to repeat it because that is 
the issue in this amendment. The issue is whether we ought to adopt the 
majority in Schlup or whether we ought to reverse it. The bill reverses 
it and goes with the dissent. The amendment would allow the majority of 
the Supreme Court in Schlup to utilize that test in habeas corpus 
proceedings, the test being that whether a constitutional violation has 
probably resulted in the conviction of one who is actually innocent.
  I think most of us feel that habeas corpus has been abused, that 
technicalities have been raised by people who are guilty. This 
amendment raises the opposite issue. This amendment raises the question 
of whether or not we are going to use a technicality to deny a hearing 
to someone who is probably actually innocent.
  ``Probably actually innocent,'' is that enough for a hearing when 
someone is on death row or not? Or will the procedural technicality be 
used to deny that person--a rare case--a hearing because there had been 
a previous petition filed? And to meet the test of the Supreme Court, 
the lower court must find that it is more likely than not that no 
reasonable juror would have convicted him in light of the new evidence.
  Mr. President, we are having to face up to the narrowest group of 
cases, the case where there is a claim that a court finds probably 
correct that an applicant for the great writ is probably innocent of 
the underlying crime. We cannot avoid this by talking about 
technicalities. We are the ones who will determine whether a procedural 
technicality will stand in the way of a hearing for that small group of 
prisoners who persuade a court that they are probably innocent of the 
underlying crime.
  This may be and probably is only a very few percent of persons who 
are in prison on death row, but we know that these cases exist. There 
were two of them in 1995. In addition to the Schlup case, we had the 
case of Curtis Kyles. In that case, the Supreme Court found that the 
prosecution had improperly suppressed evidence of Mr. Kyles' innocence 
and that this evidence would have made a different result reasonably 
probable--reasonably probable. The Court agreed with Judge King of the 
fifth circuit, who expressed ``serious reservations about whether the 
State has sentenced to death the right man.''
  Mr. President, how much time do I have left?
  The PRESIDING OFFICER. The Senator has 4 minutes 7 seconds.
  Mr. LEVIN. I thank the Chair and reserve the remainder of my time.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah has 25 minutes.
  Mr. HATCH. Mr. President, again, what we are trying to do here is put 
some finality into the habeas corpus procedures. The Senator's 
amendment just allows another loophole that is unjustified and allows 
further appeals. Because liberal judges who are opposed to the death 
penalty do not want the death penalty imposed, there will be an 
incentive for them to find that there is probable innocence under this 
amendment and the whole process will have to start over again, 
regardless of whether the petitioner is truly innocent of the crime.
  The Hatch substitute, our bill, the Specter-Hatch bill, permits 
successive habeas corpus petitions in death penalty cases where the 
petitioner may be innocent. If the petitioner is innocent, he or she 
can have successive habeas corpus petitions and our bill contains a 
safety valve which permits Federal courts to hear legitimate claims. 
The Levin amendment, however, weakens the standard of review for 
determining whether someone is innocent from a ``clear and convincing'' 
standard, which is what we have in our bill, to a subjective 
``probably'' innocent standard.
  In addition, the amendment guts the bill's prohibition against 
subsequent provisions by allowing successive habeas corpus petitions 
where the death row inmate does not dispute his having committed the 
homicide in question but claims the death penalty should not be 
imposed.
  The amendment offered by Senator Levin, while it seems reasonable, is 
problematic. When the Court rules on these issues, it does not write on 
a clean slate--and I am talking about the Supreme Court. The Supreme 
Court has repeatedly held, for example, that Federal courts are not the 
forums in which to relitigate criminal cases. At the initial trial, 
society's resources have been concentrated in order to decide the 
question of guilt or innocence. Therefore, a petitioner making a claim 
of actual innocence falls well short of satisfying his burden if the 
reviewing court determines that any juror reasonably could have found 
the petitioner guilty of the crime.
  The proposed amendment attempts to follow the Supreme Court's recent 
decision in Schlup versus Delo in which the Court exacerbates the 
confusion in the lower courts, undermines the finality of lawful 
convictions and creates a greater uncertainty as to the standard under 
which a court must hold an evidentiary subsequent hearing.
  I know that I have said this many times before, but we are dealing 
with postconviction collateral proceedings, not a trial. This is 
posttrial. Habeas corpus review is a postconviction remedy. This is 
postjury verdict. This is postsentence by the court. What it means is 
the jury has already convicted the individual and his conviction and 
sentence have been upheld on appeal. The individual had at least two 
State appellate reviews which are subject to Supreme Court review. The 
individual has gone to the intermediate appellate court and has gone to 
the supreme court of the State.
  I might add, the appellate courts have upheld the conviction and the 
State habeas petitions have thus been exhausted. In other words, there 
has been the trial, there has been a review by the intermediate court, 
there has been a review by the supreme court of the State. The State 
procedures have been exhausted.
 It also means that petitions to the Supreme Court have been filed. In 
other words there have been two rounds of State review both of which 
were the subject of a petition for certiorari to the Supreme Court of 
the United States of America, and that both of those Supreme Court 
petitions [[Page S7826]] have been denied; and at least in collateral 
cases, as a general rule, the Governor also has ruled on the case 
because there has been a petition for clemency; and the Government has 
also reviewed the claim in a clemency petition and has denied it, too. 
At this point, the prisoner's conviction has been proved beyond a 
reasonable doubt. It has been upheld on direct and State collateral 
review. The conviction has also been upheld on the death row inmate's 
Federal habeas petition. It is at this point in the process--after all 
of these reviews--where my colleague from Michigan wants to give 
individual Federal judges broad, subjective authority to determine 
whether someone is innocent of the crime he or she was convicted of. We 
allow such a determination by a Federal court but we propose a more 
certain standard rather than the subjective standard employed in my 
colleague's amendment.

  The proposed amendment would require the district court to hold an 
evidentiary hearing or grant a second successive petition if it could 
be shown that a constitutional violation probably resulted in an 
erroneous conviction.
  First, what does probably mean in the law? Who knows? This standard 
will gut our habeas corpus proposal here today. Would it be a 50-
percent chance of innocence? Is that what it means? If that is so, then 
I think if the prisoner were probably innocent, his conviction would 
have been overturned long ago in all of these proceedings up through 
the State courts to the Supreme Court, to the Governor, for clemency.
  Second, the proposed amendment would let a court decide independently 
that a defendant might be innocent. We go through that every day in the 
current system. Judges who do not want the death penalty to be imposed, 
who are violently opposed to it, for any reason, decide there is 
another reason to let this be prolonged again, all at a tremendous cost 
to the States and the victims of these crimes.
  So what we are saying is, the proposed amendment would let a court 
decide independently that a defendant might be innocent, that there was 
constitutional error, and that he should not have been convicted. This 
is a wholly appropriate standard that we have in the bill.
  The Levin amendment will simply serve to permit these prisoners who 
have been duly convicted, their convictions upheld, all of their 
constitutional rights protected, their civil liberties protected to 
continue to raise new claims. It allows judges who does not like the 
death penalty to make subjective determinations, many years after the 
conviction, to proclaim the probable innocence of a long-convicted 
murderer. It simply serves to permit a prisoner to drag out his 
proceedings and further delay justice.
  Delayed justice is justice denied. We are frustrated by that all the 
time. We have a man in California sitting on death row almost for 50 
years--successive habeas corpus petitions all the time, on and on. In 
Utah, we had the Andrews case. It lasted 18 years. He filed over 30 
different habeas corpus petitions--30 different habeas corpus 
proceedings--over that 18 years before the death penalty was finally 
carried out.
  All this does is continue the old system, the old business as usual. 
Frankly, because we all know the distinguished Senator from Michigan is 
one of the most eloquent advocates against the death penalty in this 
body--and I have respect for him; I believe he is very sincere on this 
issue--I think it is fair for him to argue against the death penalty 
straight up. But to just provide a mechanism whereby there can be 
another appeal because some liberal judge decides there ought to be an 
appeal and will delay a sentence that the law allows, I think is wrong. 
I know of no case--not one--that has been cited to the Judiciary 
Committee, in its years of study on this issue, in which Federal habeas 
corpus review has been successfully employed to release an innocent 
individual from an erroneous State court conviction. It is a myth.
  This amendment is just another method to try to get another appeal 
and delay the ultimate imposition of the sentence.
  Where is the case of an innocent person needing Federal habeas corpus 
review in order to prove his or her innocence? Take Randall Dale Adams, 
the Texas death row inmate who was the subject of the documentary ``The 
Thin Blue Line.'' How did he establish his innocence after he was 
convicted? Not through Federal habeas corpus, but through the Texas 
State court proceedings--procedures similar to those available in 
virtually every State in the Union today.
  Take the case of Walter McMillan, who was wrongfully convicted and 
sentenced to die for the brutal robbery-murder of an Alabama 
convenience store clerk. Was it habeas corpus that saved his life? No, 
it was the State of Alabama. Despite being granted relief through the 
States, both of these men were called before the Senate Judiciary 
Committee by a colleague of ours, who opposes the death penalty, to 
demonstrate why our Nation needs more Federal habeas corpus review 
rather than less. Federal habeas corpus review had nothing to do with 
it.
  The State procedures were adequate and did the job in protecting 
their innocence and finding their innocence. Yet, they brought them up 
here to try and show that Federal habeas corpus review is important.
  I do not know of one case where Federal habeas corpus review has 
saved the defendant. But the State procedures have. In the Federal 
courts, the Federal direct appeal procedures have. That sort of logic, 
as in the present amendment, cannot even be called reform even when it 
expands the rights of convicted murderers.
  I mention these cases--Randall Dale Adams and Walter McMillan--not 
because I advocate abolition of Federal habeas corpus. It is clear that 
we protect it in the Specter-Hatch antiterrorism bill. I am not 
advocating abolition of Federal habeas corpus. The responsible scholars 
and lawyers and law enforcement professionals do support banning and 
getting rid of Federal habeas corpus. There are many bright people who 
think that this system is out of whack and that we do not need Federal 
habeas corpus. But I am not arguing that position.
  We have provided for protection of Federal habeas corpus, but we do 
it one time and that is it--unless, of course, they can truly come up 
with evidence of innocence that could not have been presented at trial. 
There we allow successive petitions. Any time somebody can show 
innocence, we allow that. I simply wish to provide my colleagues some 
perspective on this issue. We in the Senate, whose duty it is to enact 
into law the community's legitimate interest in seeing justice done 
within the parameters of the Constitution, should soundly reject the 
present amendment to the Dole-Hatch bill. Indeed, the Senate has a 
particular duty with respect to habeas corpus. As the inscription on 
the Dirksen Senate Office Building states, ``The Senate is the Living 
Symbol of our National Union of States.''
  The amendment before us will not only hinder and potentially defeat 
our efforts to pass a true crime bill this year, but in so doing, this 
amendment will also force an unprecedented and substantial intrusion 
into the State criminal justice system.
  So I hope that our colleagues will vote against this amendment, as 
sincere as it is and as sincere as it is being offered. It is another 
way of just delaying the process because some people do not like the 
death penalty. I understand that. I think there are good arguments on 
both sides of the death penalty. I myself would very seldom use the 
death penalty and only in the most heinous of cases. On the other hand, 
I think it is essential that we have it on the books. There are those 
who would just as sincerely argue the other side, that there should be 
no death penalty, that it is cruel and unusual--even some of our 
Supreme Court Justices of the past and maybe now and in the future. But 
do not try to do it by gumming up the procedural process posttrial that 
has plenty of protections for defendants.
  There is no reason for this expensive litigation process with 
frivolous appeals to continue. That is what we are fighting today. And 
we are acknowledging that we protect the constitutional rights and 
civil liberties of the defendants in these matters.
  I know the Senator from Michigan is very sincere and I acknowledge 
that. I have a great deal of respect for his sincerity and 
intelligence. But this amendment should not pass because I 
[[Page S7827]] think it would make this process a continuation of the 
current process, and I think that would be a tragedy.
  I reserve the remainder of my time.
  Mr. LEVIN. Mr. President, I will take 30 seconds to tell my friend 
from Utah this is not a death penalty amendment. This is a habeas 
corpus amendment. The language in the bill reverses the Supreme Court 
opinion in the Schlup case. That opinion found that the man in that 
case was probably innocent. I do not think anyone in this body wants to 
execute someone who is probably innocent and deny that person a 
hearing.
  Now, Justice O'Connor said--not your liberal judge--one of the 
majority in the Schlup case, said, ``The court today does not sow 
confusion in the law. Rather, it properly balances the dictates of 
justice with the need to ensure that the actual innocence exception 
remains a 'safety valve' in an 'extraordinary case'.''
  The issue is that the bill before the Senate reverses the Supreme 
Court. The Levin amendment is not trying to bring something new into 
this. The Levin amendment is trying to preserve a Supreme Court opinion 
of a few months ago, joined by Justice O'Connor. That is the issue.
  I yield the remainder of my time to my friend from Illinois.
  Mr. SIMON. Mr. President, I thank my colleague, and I rise in strong 
support. I think we all know that I oppose the death penalty. It is a 
penalty we reserve for those of modest means. If a person has enough 
money, that person will never get the death penalty in this country. 
That is the reality.
  That is not the question, though I find it of interest that today's 
New York Times has a story that the South African Supreme Court 
yesterday unanimously outlawed capital punishment in South Africa. We 
are one of the few countries left in the Western world that still has 
the death penalty.
  The question is whether someone who is probably innocent--that is the 
language of the Levin amendment--probably resulted in the conviction of 
a person who is actually innocent of the underlying offense.
  Now, whether a person is for the death penalty or against it, no one 
wants to send someone to prison who is probably innocent. We have done 
that.
  I can remember when we were debating this issue when I was in the 
Illinois General Assembly and a man was about to be executed, and 
suddenly someone in the State of Georgia confessed that he had 
committed the crime.
  Now, that case is clear and convincing evidence. I have to say that 
the bill without this amendment would take care of that case.
  There are a lot of other marginal cases. We are not just saying a 
marginal case. The Levin amendment says where a person is probably 
innocent, a person ought to have that chance to appeal. I cannot 
believe anyone who really looks at this--the Senator from North 
Carolina, the Senator from Utah, my colleagues--I cannot believe they 
will vote against that.
  Maybe Members will vote against it if they are not aware of what the 
amendment does, and a briefing is right at the desk on either your side 
or our side. These briefings--and I do not mean this disrespectfully to 
the fine staff--but it is very difficult to condense in a few words 
what these amendments do.
  The Levin amendment says ``If you are probably innocent, you ought to 
have the chance to appeal.'' I have a hard time believing that is not 
going to be accepted unanimously. Apparently, it may not be.
  I am pleased to support the Levin amendment, proud to support it and 
vote for it.
  I believe I have consumed my time, Mr. President. I hope I have been 
able to get the message across.
  Mr. President, I ask unanimous consent to have an article printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, June 7, 1995]

          South Africa's Supreme Court Abolishes Death Penalty

                         (By Howard W. French)

       Johannesburg, South Africa, June 6.--In its first major 
     decision, South Africa's recently created supreme court 
     abolished the death penalty today, ending a decades-old 
     practice of executing criminals convicted of serious crimes 
     that had once given the country one of the world's highest 
     rates of capital punishment.
       Announcing the unanimous decision, Arthur Chaskalson, 
     president of the Constitutional Court, said, ``Everyone, 
     including the most abominable of human beings, has a right to 
     life, and capital punishment is therefore unconstitutional.''
       That the Constitutional Court chose the death penalty issue 
     for its first major ruling underscored the importance of the 
     issue in a country where for decades execution was used not 
     just as a weapon against common crime, but as a means of 
     terror in enforcing the system of racial separation known as 
     apartheid.
       ``Retribution cannot be accorded the same weight under our 
     Constitution as the right to life and dignity,'' Mr. 
     Chaskalson said. ``It has not been shown that the death 
     sentence would be materially more effective to deter or 
     prevent murder than the alternative sentence of life 
     imprisonment would be.''
       In a strong show of support for the ruling, each of the 
     court's 11 judges issued a written opinion backing the 
     decision. The Constitutional Court was created earlier this 
     year as an equal to the executive and legislative branches.
       South Africa stopped executing prisoners in 1992 on the 
     orders of the former National Party Government. With violent 
     crime rampant, the number of prisoners awaiting execution on 
     death rows has since swollen to 443. Over 1,100 people were 
     executed in the 1980's. Death sentences were carried out by 
     hanging.
       Reacting to the ruling, Justice Minister Dullah Omar said 
     the prisoners would be quickly moved off of death row. 
     According to prison wardens, the announcement set off a round 
     of wild celebration among condemned inmates at Pretoria's 
     Central Prison.
       Elsewhere, however, comments on the ruling revealed the 
     continuing depths of political division among South Africans 
     that typically run along racial lines, one year after the 
     formal end of apartheid.
       On radio talk shows today, reactions were deeply split 
     between black and white, with the former typically applauding 
     the abolition of the death penalty, while the latter, 
     invoking high crime rates, criticized what many whites say in 
     a gradual slide away from law and order.
       ``Under the A.N.C., the message is that people can commit 
     any crime and get away with it,'' said one caller to a 
     Johannesburg radio station, referring to the African National 
     Congress, the party of President Nelsen Mandela.
       Crime has become a highly emotional issue among many whites 
     here, even though blacks are overwhelmingly represented among 
     the victims of violence. Last weekend in Johannesburg alone, 
     42 people were killed, 477 businesses and homes were broken 
     into and 34 women were reported raped.
       While whites complained of a spreading sense of impunity, 
     many blacks reacted by noting that they had been 
     disproportionately made victims of the death penalty in the 
     past through wrongful arrests and convictions.
       Moreover, with the death penalty much more likely to be 
     applied to blacks than to whites under apartheid, capital 
     punishment had become as powerfully emotional an issue for 
     many blacks as crime has become for many whites.
       Mr. Mandela himself made this point in a point in a 
     statement to the court during his trial for incitement in 
     1962. ``I have grave fears that this system of justice may 
     enable the guilty to drag the innocent before the courts,'' 
     he said. ``It enables the unjust to prosecute and demand 
     vengeance against the just. It may trend to lower the 
     standards of fairness applied in country's courts by white 
     judicial officers to black litigants.''
       Two years later, in another trial, Mr. Mandela was 
     sentenced to life imprisonment for conspiracy to overthrow 
     the government, a judgment that his supporters saw as a 
     victory because the death sentence was not imposed, even as 
     they deplored Mr. Mandela's conviction.
       Conservative white groups condemned the ruling while many 
     predominantly black political organizations portrayed it as a 
     victory for racial justice.
       The predominantly black African National Congress, the 
     country's largest political party and the leading force in 
     the fight against apartheid, hailed the ruling as a victory 
     for the country's new democracy, saying, ``never, never and 
     never again must citizens of our country be subjected to the 
     barbaric practice of capital punishment.''
       ``It's making us a civilized society,'' Archbishop Desmond 
     Tutu, the Anglican primate of Southern Africa, told the South 
     African Press Association. ``It shows we actually do mean 
     business when we say we have reverence for life.''
       Archbishop Tutu, a leading campaigner against apartheid, 
     called the death penalty ``obscenity,'' saying it, in effect, 
     said to criminals, ``We want to show you that we care about 
     life so we kill you too.''
       Amoung white political groups the reaction to the ruling 
     was typically negative, running from carefully worded 
     statements of displeasure to outright hostility.
       Saying that the overwhelming majority of South Africans 
     supported the death penalty, F.W. de Klerk, vice president in 
     the country's coalition transition Government, said that his 
     National Party, a predominantly white party that had governed 
     the country for decades under apartheid, would campaign to 
     reinstate capital punishment.
       Other conservative white groups reacted even more harshly. 
     ``The rights of murderers [[Page S7828]] and rapists are 
     being held in higher regard than those of their victims,'' 
     said one Afrikaner youth organization.
       For his part, Mr. Mandela, who served 27 years of a life 
     sentence under a succession of apartheid governments made no 
     public comment today on the ruling. The President's office, 
     however, issued a statement intended to reassure those who 
     fear a growing leniency toward crime.
       ``The President also wishes to emphasize that this decision 
     has no bearing on the commitment of the Government to tackle 
     the problem of crime, and particularly violent crime, with 
     all the resources and determination it can muster.''

  Mr. BIDEN. Mr. President, parliamentary inquiry. Is there any time 
remaining?
  The PRESIDING OFFICER. There is no time.
  Mr. BIDEN. I ask unanimous consent that I be able to speak 2 minutes 
on the Senator's amendment.
  The PRESIDING OFFICER (Mr. Inhofe). Without objection, it is so 
ordered.
  Mr. BIDEN. Mr. President, this is pretty clear here.
  What the Senator from Michigan does in his amendment is stick with 
one part of the change in the law. Right now there is no requirement in 
the law to file the successive petition that says that the defendant 
has to explain why he did not file the petition before.
  Now, under the Hatch approach and under the approach if adopted by 
Senator Levin, that is tightened up. Even Senator Levin is saying we 
have to show cause why this was not raised before. There is only one 
disagreement before the Senate. That is, what standard of proof do you 
have to bring forward to show you are innocent?
  By implication, they are agreeing a person ought to be able, if there 
is evidence of innocence, ought to be able to have another petition. 
Senator Levin says the same thing.
  I think every American would say you ought to have another crack at 
it. The difference is, they say ``clear and convincing.'' Right now, 
the Supreme Court says, no, you do not have to go that far, but you 
have to go pretty far. You have to sufficiently establish the 
constitutional violation. You said what happened to you in the lower 
court, you say your constitutional rights were violated in a way that 
probably resulted in the conviction of a person who is actually 
innocent.
  Are we going to quibble over putting someone to death on whether or 
not we abide by the Supreme Court majority that says all you have to do 
is say ``probably'' this resulted in a conviction of an innocent 
person?
  But they want to go even further. They want to say, no, ``probably'' 
is not enough. You have to show that there is clear and convincing. The 
only thing they do not say is ``beyond a reasonable doubt.''
  Keep in mind, folks, what everybody misses, when we talk about habeas 
corpus, is this is not about having a convicted person go free. That is 
not what this is about. Nobody under habeas corpus petition goes free. 
They get a new trial. That is all they are saying here. I sure think 
this is distinction with a difference that can mean the difference 
between life and death of an innocent person. I hope they will yield on 
``probably'' and not ``clear and convincing.''
  Mr. HATCH. Mr. President, I do not want to prolong this. I think I 
have 11 minutes left. I will just take a minute or two.
  What I am saying, there has been a trial, conviction, there have been 
posttrial proceedings, there has been an appeal to the intermediate 
court in the State, an appeal to the supreme court of the State, then a 
petitioner of certiorari to the Supreme Court, all of which are denied, 
and a petition for clemency to the Governor. He denies. In every case 
where we found actual innocence, or any kind of innocence, it has been 
through those proceedings, not in Federal habeas.
  I have to say that all of this is another attempt to just prolong the 
process and allow--call it what it is--a liberal judge who does not 
believe in the death penalty to prolong the process, again at a 
tremendous cost to the States, everybody concerned, and I think a cost 
to justice.
  People out there are starting to say, my goodness gracious, is there 
no finality to the decisions, the just decisions, of the court?
  I have to say the cases that we can cite where people have been 
helped, where innocence has been proven, have been through that State 
process, not through the Federal habeas process. It is just another 
layer of expense.
  I am not going to knock those who are trying to do this because they 
will sincerely do anything to stop the death penalty. I respect that.
  If I was a defense lawyer again, I would do anything to try and 
preserve somebody's life. But I have to say it would be pretty cynical 
to keep doing what is being done in some of these cases today. We can 
call it sincerity, but the fact of the matter is it is a legal 
obligation to do what you can. But there is an element out there in the 
legal community which, having failed to convince the public and the 
courts that the death penalty is wrong, has set about to eliminate the 
death penalty defect by making death penalty litigation too costly and 
protracted.
  As a lawyer I do everything I can within the law, and if we provide 
this law, I will be doing that, and so will every other defense lawyer. 
It is another appeal, another cost to the States, another frivolous 
appeal which we are trying to limit here while still giving the 
protections we need in these matters.
  The Levin amendment relies on the term ``actual innocence.'' Actual 
innocence means--and let me just read out of the leading Supreme Court 
case on it, Sawyer versus Whitney. This is what they held:

       1. To show actual innocence one must show by clear and 
     convincing evidence that but for a constitutional error no 
     reasonable juror would have found the petitioner eligible for 
     the death penalty under the applicable State law.

  The amendment before us, the Levin amendment, will not help the truly 
innocent. This amendment will further undermine the proper role of 
habeas corpus and that is the effect of the amendment. The effect of it 
is not meant to overturn the fundamental defects. The Specter-Hatch 
habeas bill has the safety valve. It has a safety valve available for 
the truly innocent. We provide successive petitions for those who prove 
innocence. The proposed amendment will do nothing to help the truly 
innocent. It is merely another means of delaying justice. There are 
plenty of procedures and mechanisms in the Specter-Hatch bill to 
protect the truly innocent. So we do not need to continue to prolong 
this.
  I move to table the Levin amendment. I ask for the yeas and nays.
  The PRESIDING OFFICER. Does the Senator yield his remaining time?
  Mr. HATCH. I yield my remaining time.
  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.
  Mr. HATCH. Mr. President, I ask unanimous consent the vote on the 
motion to table the Levin amendment be deferred to a time to be 
determined by the majority leader, after consultation with the minority 
leader, after 2 p.m. today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. I now ask the Levin amendment be laid aside so the 
distinguished Senator from Arizona can call up his amendment. I 
understand there is to be a 1-hour time agreement.
  I ask unanimous consent there be a 1-hour time agreement with the 
time equally divided--in the usual form, we will put it that way.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. I also ask unanimous consent at the conclusion or yielding 
back of the time on the Kyl amendment that it be set aside and the vote 
occur on or in relation to the Kyl amendment following the vote on the 
motion to table the Levin amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Arizona is recognized.

                           Amendment No. 1211

      (Purpose: To stop the abuse of Federal collateral remedies)

  Mr. KYL. Mr. President, I have an amendment at the desk and I ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Arizona [Mr. Kyl] proposes an amendment 
     numbered 1211.

[[Page S7829]]

       At the appropriate place, insert the following new section:

     STOPPING ABUSE OF FEDERAL COLLATERAL REMEDIES.

       (a) In General.--Chapter 153 of title 28, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 2257. Adequacy of State remedies

       ``Notwithstanding any other provision of law, an 
     application for a writ of habeas corpus in behalf of a person 
     in custody pursuant to a judgment or order of a State court 
     shall not be entertained by a court of the United States 
     unless the remedies in the courts of the State are inadequate 
     or ineffective to test the legality of the person's 
     detention.''.

  Mr. KYL. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       At the appropriate place, insert the following new section:

     SEC.   . STOPPING ABUSE OF FEDERAL COLLATERAL REMEDIES.

       (a) In General.--Chapter 153 of title 28, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 2257. Adequacy of State remedies

       ``Notwithstanding any other provision of law, an 
     application for a writ of habeas corpus in behalf of a person 
     in custody pursuant to a judgment or order of a State court 
     shall not be entertained by a court of the United States 
     unless the remedies in the courts of the State are inadequate 
     or ineffective to test the legality of the person's 
     detention.''.
       (b) Clerical Amendment.--The table of sections for chapter 
     153 of title 18, United States Code, is amended by adding at 
     the end the following:
``2257. Adequacy of State remedies.''.

  Mr. KYL. Mr. President, the reason I asked the key provision of that 
amendment be read is to illustrate its simplicity. It is very simple 
and yet I think very important and necessary as an improvement to the 
bill which is before us now.
  I want to begin by complimenting the manager of the bill, the Senator 
from Utah, for not only getting the bill to this point but for 
insisting that we have habeas corpus reform in this important piece of 
legislation.
  My amendment will improve the habeas corpus reforms by, as was just 
read, ensuring that a case in the State courts can be reviewed in the 
State court system, but that as long as the State court system provides 
adequate and effective remedies, that person does not have the 
authority to go over to the Federal courts and relitigate all of the 
same claims in the Federal courts.
  Of course, it should go without saying that there is always a review 
in the U.S. Supreme Court from any decision of the highest court of a 
State. So there is ultimately still the potential for Federal review of 
a State court decision.
  I would like to illustrate exactly what we are talking about here 
with a hypothetical and a real case. The Senator from Oklahoma is here. 
One of the reasons the Senator from Oklahoma is so interested in this 
provision is because of the recent tragedy in his State. Let us assume 
two cases in the State of Oklahoma. In the first case, there is a 
robbery and in the course of that robbery someone is shot. The person 
is tried in the State courts, there is an appeal to the appeals court 
and on up to the supreme court of the State--eventually a prosecution, 
a conviction and a sentencing.
  Thereafter that State court prisoner may file writs of habeas corpus 
in the Oklahoma State court system as often as that person can find 
grounds for doing so. Those writs can be determined legally in the 
appeals and supreme court of the State of Oklahoma, and eventually of 
course, after the supreme court of Oklahoma has ruled, they can be 
considered by the U.S. Supreme Court. So that State court prisoner has 
virtually an unlimited right to take these writs of habeas corpus up 
and down the State court system.
  In today's law he also has the right to go to the Federal court 
system and essentially relitigate the exact issues. ``I have some newly 
discovered evidence that will prove I was innocent of the crime. I have 
gone up and down the State court system, now I would like to try my 
luck in the Federal courts.'' Under existing law, that person can do 
it.
  What the bill says is we are going to put a couple of roadblocks in 
the way. It should not be quite so easy for you to you do that. You at 
least ought to have some time limits within which to file these habeas 
corpus writs in Federal court, and the Federal courts at least ought to 
give great weight to the previous decisions of the supreme court. Those 
are both sound provisions but they obviously do not preclude the State 
court prisoner from going to Federal court.
  Let us take, on the other hand, the perpetrators of the heinous 
tragedy in Oklahoma City a few weeks ago. They will probably--he or 
they--will probably be tried in the Federal district court in Oklahoma. 
If convicted, there could be an appeal to the Tenth Circuit Court of 
Appeals and eventually to the U.S. Supreme Court. But those people, 
having been convicted, will have their writs of habeas corpus reviewed 
only in the Federal district court and circuit courts of the United 
States of America. They do not have the right to go over to the 
Oklahoma State court system and relitigate those same claims. So, 
whereas the State court prisoner can use both the State system and the 
Federal system, in duplicate appeals, a Federal prisoner may only use 
the Federal system.
  The constitutionality is obviously clear. Either the State courts or 
the Federal courts are competent to adjudicate constitutional claims. 
That is established. There is no legal question about that whatsoever. 
But the Federal court prisoner has one set of options. The State court 
prisoner, under the stats quo, has two sets of options. And we are 
limiting them a little bit by the bill before us.
  My amendment says: No, a Federal court prisoner adjudicates his 
claims in Federal court. A State court prisoner adjudicates his claims 
in the State court. The only time the State court prisoner can go to a 
Federal court is from an ultimate appeal to the U.S. Supreme Court.
  This will end the duplicative appeals that we have all been 
complaining about. This and only this amendment will end those 
duplicative appeals. Because it will still be quite possible for State 
court prisoners under the bill before us to adjudicate their claims in 
State court and then go to the Federal court so long as they do it in a 
timely manner. So long as they meet the time limits we impose in this 
bill, they can still go to the Federal court and relitigate exactly the 
same claims.
  What ordinarily happens is that the Federal district courts or 
circuit courts of appeals say, ``Wait a minute, the State court has 
already decided that. Your appeal is summarily denied.'' But that takes 
time.
  I just spoke to the presiding judge of the Arizona court of appeals 
and he said we summarily dismissed many of these. But he said every one 
of them has to be considered. And that is the point. From a very small 
number to a very large number, the district courts and the circuit 
courts of appeals are having to handle these writs that have already 
been decided by the State court and, as the Federal courts have said 
over and over again, the State courts are perfectly able to resolve 
these issues.
  Mr. President, this is not just an idea that I have come up with. 
This is what is happening in the District of Columbia today, and has 
been for the last 25 years, because 25 years ago the Congress passed a 
law and established that in the District of Columbia courts--by the 
way, the District of Columbia has in effect a State court system which 
parallels the U.S. District Court and the Circuit Court of Appeals for 
the District of Columbia.
  So it is similar to States in that it has its own system of courts. 
We in the Congress 25 years ago said that prisoners in the District of 
Columbia can only use that quasi-State court system here in the 
District of Columbia. That was tested in the U.S. Supreme Court and the 
constitutionality was upheld in the case of Swain versus Pressley in 
1977. And there have also been other opinions with respect to the 
constitutionality of what was done. One judge, as a matter of fact, 
even wrote that because of this experiment in the District of Columbia, 
which has worked very well for the last 25 years, that the Congress 
ought to consider the same kind of limitation of remedies in the State 
courts, exactly what we are proposing here today with my amendment.
  So at the invitation of Judge McGowan, we are proposing an amendment 
which says in the State courts, [[Page S7830]] you do like the District 
of Columbia. You exhaust your remedies in the State court. You can go 
to the U.S. Supreme Court, but not jump over to the Federal District 
Court and the Circuit Court of Appeals to litigate the same claims.
  Judge Robert Bork has written a letter in support of my amendment. He 
writes, in part:

       Your proposed amendment to the antiterrorism bill to stop 
     the abuse of Federal collateral remedies is an excellent and 
     much-needed reform. There is no doubt about the 
     constitutionality of the provision you propose, nor is there 
     any doubt about the need for your amendment. Your amendment 
     is a sorely needed reform to a situation that is now out of 
     hand.

  Mr. President, the constitutionality of what I propose is beyond 
question. It has been tried for 25 years here in the District of 
Columbia. It is found to be very workable. Everybody agrees that we 
need to limit duplicative appeals.
  Therefore, it seems to me that, if we are to really make the 
provision of habeas corpus reform in this bill work, we do not just 
play with it at the edges by proposing some time limits and providing 
for deference to State court proceedings. We go right to the heart of 
matter and say if you have a complete and adequate remedy in the State 
courts, then that is what you will get except, of course, for your 
ultimate appeal to the U.S. Supreme Court. You cannot jump over to the 
Federal system of courts to readjudicate those very same claims.
  The Senator from Oklahoma is on his feet. I would like to yield time 
to the Senator from Oklahoma to further discuss this particular 
amendment.
  Mr. NICKLES addressed the Chair.
  The PRESIDING OFFICER (Mr. Thomas). The Senator from Oklahoma is 
recognized.
  Mr. NICKLES. Mr. President, I would like to compliment my friend and 
colleague from Arizona for his leadership. He brought this amendment to 
my attention. I told him I was not very familiar with it, but I told 
him I would do a little more homework. I have. I have become more 
convinced that he is on the right track.
  I talked to the Federal judge in the Western District of the State of 
Oklahoma, and I asked him about the number of appeals; prisoner 
petitions. We find out in the last 10 years they more than tripled, and 
have actually consumed about 25 percent of the work load in the western 
district. The court has before them hundreds of prisoner petitions and 
appeals that have to be reviewed.
  The Senator from Arizona makes an excellent point, and says the 
States have ajudicated these cases thoroughly. They have gone all the 
way through the State courts, through the appeals process, State 
supreme courts, and then all the way even--with capital punishment 
cases--to the Supreme Court.
  Yet, they continue to press, and want to run through the Federal 
court system as well where the Federal judges do not have time to go 
through the entire case, where there is almost a presumption that, if 
they have to do that, maybe the Federal Government knows better, which 
is not always correct. The Federal judges I have talked to said we are 
in serious need of habeas corpus reform.
  I compliment my friend and colleague from Arizona for, I believe, 
truly making more significant reform. I think Senator Hatch's bill has 
some good reform. I compliment him for it. The reforms in S. 735 will 
help expedite the procedures. There are time limits under the proposal 
now before us from the Senator from Utah. Senator Kyl's amendment would 
go much, much further. It would eliminate these hundreds of, in almost 
all cases--at least, in my State, frivolous petitions placed before the 
Federal courts, frivolous but yet they still take time. At 25 percent 
of the caseload, you are talking about a very significant amount of 
time and energy and dollars that now are being expended by frivolous 
appeals because many prisoners become quite good at filing petitions, 
and there is no limit whatsoever on the number of petitions that they 
can file.
  So I compliment my colleague from Arizona for his leadership and for 
coming up with very significant reform. I appreciate the fact that we 
have outstanding scholars such as Judge Bork and others who have 
endorsed the reforms in this amendment.
  I urge my colleagues to adopt the amendment.
  Mr. KYL. Mr. President, I would like to yield 7 minutes of additional 
time to the junior Senator from Oklahoma, Senator Inhofe.
  Mr. INHOFE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Thank you, Mr. President.
  First of all, let me thank the Senator from Arizona for bringing this 
up. I think it is significant for all of us to realize that had it not 
been for the bombing in Oklahoma City, we would not be here today. We 
would not even be having a discussion. There would not be a debate on 
habeas reform. There would not be a counterterrorism bill.
  Certainly, this contentious item of habeas that we have been trying 
to bring up, at least for the last 9 years that I know of, would not 
even be discussed in an open debate as it is today. So it is very 
significant for people to understand this is all precipitated by the 
tragedy that took place in April of this year in Oklahoma City.
  On Monday of this week, we had a group of people that came up from 
Oklahoma. Among others, they were Diane Leonard, whose husband, Don, a 
Secret Service agent, was killed in the bombing; we had Glenn Seidl, 
who lost his wife, Kathy; Kay Ice, who lost her brother, Paul, a 
Customs Agent; Mike Reyes, who lost his father and was injured himself; 
and Danny McKinney, Linda's husband. It goes on and on. There is not 
time to name all of them. But they were here for one reason. That 
reason is that they wanted to be sure that we had the strongest 
possible habeas reform in this bill.
  So when you stop and realize what has happened in Oklahoma, and what 
happened in Oklahoma as I mentioned once before on this floor, but I 
think it is worth bringing up again at this point because it gives you 
an insight into what the families of the victims in Oklahoma are 
thinking about because it is something that is contemporary right now--
a guy named Roger Dale Stafford is scheduled to be executed on July 1. 
I do not know whether he will be. It is hard to say. In the spring of 
1978, someone stopped to help him with his car. He was broken down in 
Oklahoma. He murdered in cold blood a Sergeant Lorenz, and the 
sergeant's wife and small son, and drove 60 miles to Oklahoma City, and 
committed a great crime known as ``The Sirloin Stockade Crime,'' where 
he rounded up six people and took them into the refrigerator, tied them 
up, and executed the six of them. He has been found guilty on all nine 
counts and has nine death sentences. That was 17 years ago.
  I might suggest that Roger Dale Stafford today is 100 pounds heavier 
than he was 17 years ago. So I am sure he is eating well. He has been 
in the cell, probably living under better conditions than he was 
before, for the past 17 years.
  I cannot help but think when anyone is considering a crime of the 
magnitude of that which we had in Oklahoma City, Mr. President, that 
they spend a lot of time thinking, ``What is the downside? What is the 
worst thing that can happen to me if I get caught and convicted? It is 
going to be that I will be executed. Wait a minute. The average time 
between conviction and execution in America is 9\1/2\ years. So I will 
be there for 10 or 15 or 20 years watching color TV in an air-
conditioned cell.''
  That loses its deterrent value for those of us who are narrow enough 
in our thinking to believe that punishment is a deterrent to crime.
  So without this, we have no way of delivering the message to other 
individuals who might be considering such a heinous crime as that which 
was committed in Oklahoma City.
  So let me just say that I am here today on behalf of multitudes of 
people in the State of Oklahoma who were killed in the brutal bombing, 
the mass murder that took place last April in Oklahoma City.
  The message they told us last Monday to deliver on the floor of this 
Senate, the loud and clear message, was yes, if this does not pass, we 
still want to support the bill as it is right now and the habeas 
element that is in the bill. That is fine. But the message was let us 
get the strongest possible habeas [[Page S7831]] reform that we can 
have. That happens to be the John Kyl amendment.
  So I am not here speaking on behalf of one U.S. Senator from the 
State of Oklahoma. I am speaking on behalf of the families of those 
individuals who were killed in that very brutal act in April of this 
year.
  Thank you, Mr. President.
  Mr. KYL. Mr. President, does the Senator reserve the remainder of his 
time?
  Mr. INHOFE. I yield.
  Mr. KYL. Both Senators from Oklahoma have conducted themselves in an 
exemplary manner following the tragedy in their State in a way both to 
help the people of their State but also to try to do everything they 
could to assist law enforcement officials to bring to justice the 
responsible parties and to see to it that there are changes in the law 
that perhaps can help prevent those kinds of things from happening in 
the future and, in the cases where they cannot be prevented, that the 
people are brought to justice.
  I very much appreciate the support of both of the Senators from 
Oklahoma.
  Mr. President, I would like to reserve the remainder of my time at 
this point should anyone from the minority wish to speak.
  Mr. BIDEN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. BIDEN. Let me say while our colleague from Oklahoma is in the 
Chamber that I, too, admire the way in which he and his senior 
colleague have conducted themselves in the wake of such a horrible 
tragedy. I do not in any way question that the victims' survivors, 
families of the victims in Oklahoma City, want what he states, and that 
is a change in the way habeas corpus works. They do not want any more 
Staffords. They cannot understand, nor can I, why Stafford is in jail 
for 17 years after having filed apparently successful petitions to 
delay his execution, and they want action.
  But I would say that we would be on habeas corpus whether or not that 
god-awful tragedy in Oklahoma had occurred. The Republican crime bill 
has the habeas corpus petition in it. We are scheduled to take up the 
Republican crime bill. We were scheduled to take up the Republican 
crime bill before we left for our Easter recess. Then we were scheduled 
to take it up before we left for Memorial Day. Now we are scheduled to 
take it up before the Fourth of July recess.
  In that Republican crime bill is the reform of habeas corpus. In the 
crime bill that I offered 2 years ago, 18 months ago, there was a 
reform of habeas corpus. So I just want to make it clear that the 
Senate's attention is not focused on habeas corpus at this moment 
because of what happened in Oklahoma and the counterterrorism bill. It 
is a convenient--and I mean that in a literal sense; I do not mean that 
in a disparaging way--it is a convenient vehicle to move up the debate 
on this issue, but the debate was necessary and inevitable.
  Let me point out there are three sort of teams in this debate. One 
team says keep habeas corpus the way it is; we do not want any changes 
in habeas corpus. I got a bite out of that apple over the last couple 
years because every time I would offer amendments on habeas corpus I 
would read in the editorial page of the New York Times about how 
Senator Biden is emasculating habeas corpus, and what a terrible thing 
he is doing, and the compromises Senator Biden is working out are--and 
it went on and on. Every liberal newspaper in America pointed out that 
wanting to change habeas corpus from the way it is to make sure that 
the Staffords of the world are executed----
  Mr. INHOFE. Just for a moment, will the Senator yield?
  Mr. BIDEN. I would be happy to yield.
  Mr. INHOFE. Let me clarify. I used the words ``at this level.'' I do 
not believe we would be having the debate at this level if it had not 
been for the fact it did not happen.
  I might also observe that the same attorney, who is a very capable 
and competent attorney in Oklahoma, Steven Jones, the one who so 
successfully got the delays in the Stafford case, is the same attorney 
that is handling Timothy McVeigh's case here, too.
  Mr. BIDEN. I thank the Senator.
  But there are basically three points of view on this floor in a broad 
sense. One is, do we maintain the status quo on habeas corpus? That is 
made up of half a dozen to a dozen Members on my side and one or two 
Members on the Republican side. And they do not want to see any change 
in habeas.
  There is a second school of thought in a broad sense represented by 
the distinguished Senator from Arizona, who is a capable and competent 
lawyer in his own right and knows this area well, as he demonstrated by 
his presentation. And that is to say, in effect, as I read what he says 
but what others have said as well, that State courts are fully 
competent to determine whether or not somebody's constitutional rights 
have been violated. And that is a respected, understood, and clearly 
articulated school of thought that has existed for some time and has 
been in a very articulate manner stated here today.
  There is a third school on this floor that says status quo is bad. We 
do not want habeas corpus to continue as it statutorily has and has 
been interpreted by the courts over the last couple decades. We want it 
changed.
  Now, we differ. There are limits to that third group, and they range 
somewhere between Senator Specter and probably me. And Senator Specter 
and I have been for years debating this issue, agreeing and 
disagreeing, but we are into that school that says, wait a minute, do 
not take the Federal courts totally out of this or, in effect, take 
them totally out of it but drastically curtail the time within which 
someone is able to file a habeas petition and how many times they are 
able to file one and what constitutes a successive petition.
  Now, I am certain that the Senator from Oklahoma was right when he 
ticked off the names of the families of the victims and said they want 
action. I would respectfully suggest that it is unlikely that they know 
the difference between a successive petition based upon probable 
innocence versus clear and convincing evidence. Most lawyers on this 
floor do not know the difference. Most lawyers who practice law do not 
know the difference; 85 percent of the highest paid lawyers in America, 
if you brought them in and sat them down in these chairs and asked them 
to define what a successive petition is, could not do it, could not do 
it. I am talking about the thousand-dollar-an-hour guys. They could not 
do it.
  Now, I do not mean that to malign the legal profession. They do not 
handle these cases. Death penalty cases, habeas cases are complicated. 
Just like I could not, if I were back in the practice of law, explain 
to you a complicated antitrust provision. I did not practice antitrust 
law.
  So with all due respect, what I am proposing and will propose --and 
my opposition to the Kyl amendment is just as likely to be acceptable 
to those folks in Oklahoma as anyone else's because the effect of what 
I wish to see happen--and I think a majority in here--is to make sure 
that we are no longer in a situation where this fellow Stafford could 
be gaining weight in an air-conditioned cell after having filed 17 
petitions.
  If we adopt the amendment that I am going to offer after this 
amendment, Stafford would be dead. No more Staffords. There is no legal 
way in which anyone could hang around, after having been convicted of a 
capital offense, for 17 years, let alone 7 years, because there are 
strict time limits and strict circumstances under which a second 
petition could be filed.
  Now, one of the problems here is that we confuse all crimes with 
apples and oranges. We hear about delay all the time, and it is true, 
with all due respect, even the Kyl amendment will not fundamentally 
change the delay. If you take a look at where the delay occurs--and 
just pick this one case that we talk about--and I will get the second 
graph, if I can, about the length of delay in State courts versus 
Federal--the case often cited is this Guerra case, to find out how long 
this fellow, after having been convicted, languished in, at the expense 
of the taxpayers, a prison avoiding the inevitable.
  Of the delays that took place, only--still, there are delays--24 
percent of them were because of what the Federal courts did. And 76 
percent, or 9 years 2 months' worth of delays had nothing to do with 
the Federal courts. They were all in the State court in the State of 
Texas. [[Page S7832]] 
  Leave that graph up for another moment, please. I want to make sure 
everybody understands. The State of Texas, under State court and State 
law, provided for 9 years 2 months' worth of delay.
  The Federal courts, having Federal habeas available, did, in fact, 
add to the delay, 2 years and 10 months. But let us eliminate, as my 
friend from Arizona wishes to do, in effect, the ability of the Federal 
courts to get into the game. There still would have been a 9-year-2-
month delay in the execution of a man who was convicted and should have 
been put to death. The point is, the end result of all this was he 
ended up with a granting of habeas in the end. The point is, it was 9 
years 2 months in the State court.
  In the State of California, we heard a lot of talk about how Federal 
habeas corpus causes all these delays. The delays in execution of the 
death penalty, much of the responsibility is in the State courts. The 
California experience: California's Supreme Court has on its docket 
four capital cases that have been fully briefed for over 7 years, but 
the State court has not even heard the argument yet. It has nothing to 
do with the Federal courts. You have four cases, as of a month ago, 
when this chart was made up for a hearing. Maybe something has happened 
in the last month, but as of a month ago, there were four capital cases 
in the California Supreme Court where the petitioners seeking redress 
filed their briefs 7 years ago, and the State court has not even acted 
yet. Translated, that means 7 years living off the taxpayers in an air-
conditioned cell because the California State Supreme Court has not 
even looked at the briefs or, if they looked at them, have not told 
anybody they looked at them.
  The California Supreme Court has taken more than 8 years to decide 24 
of the cases in which it affirmed the death penalty.
  One State habeas petition has been pending for 4\1/2\ years and 
another has been pending for 6 years. This is not even getting to the 
Federal court.
  The reason I cite this is the distinguished former Member of Congress 
and attorney general of the State of California, Mr. Lungren, came 
before our committee and said, ``The Federal courts should work like 
the State courts work. My State of California really knows what it is 
doing.'' Look at what the State of California knows.
  I understand the anger. I feel angry and aggrieved as an American 
citizen that convicted killers are in California sitting in the jails 
for 7 and 8 years because the court has not even gotten around to 
listening to what they have to say. You cannot put them to death, 
because they filed a petition but they have not gotten around to 
looking at the petition.
  What are we doing, though, when we decide that we are angry about 
that? We are saying the answer is get the Federal Government out of 
this, the Federal courts out of this. That does not solve the problem, 
but it creates another problem. The problem it creates when there is no 
Federal habeas corpus is bad decisions. Bad decisions made by State 
courts allow people who deserve another trial to not get it. Their 
constitutional rights are violated. A significant number of the habeas 
corpus petitions that are filed are granted.
  I admit I cannot change the State of California. I have no authority 
as a Federal official to tell the State of California how they should 
look at their petitions. But I can do one thing. When it gets to the 
bottom here and they finally act, under the proposal I want, they get 
one chance to get into Federal court, to say the State court judges did 
not know what they were doing on the Constitution.
  Keep in mind now, what I am proposing means when all this is done, 
within 6 months, the person in jail has to file a petition in Federal 
court. If they do not, they are out of luck, and they can only file a 
second petition under the same ground rules that my friends from the 
Republican Party, that Senator Specter and Senator Hatch's bill says, 
where we differ, which I will debate later, where we differ, Senators 
Specter, Hatch and Biden, is on what they are allowed to look at once 
they get that petition in front of them. I will speak to that later.
  But look, I really think, to quote my old friend Sid Balick again, 
``You gotta keep your eye on the ball here.'' The vast majority of us 
in this body want to and have been trying for years to change the old 
system to limit the time in which a petition can be filed and to limit 
the number of petitions that can be filed. So essentially you get one 
bite out of the apple.
  What my friend from Arizona would do would deny that one bite. I ask 
you, what damage is done to the Nation allowing a person who, after the 
fact, learns that perjured testimony was used against him; after the 
fact, learns that information was made available to the prosecution 
which went to his innocence that was never made known to him; after the 
fact, after the fact, after the trial, after the appeals?
  If you have to file it within 6 months, I do not know how much 
additional weight old Stafford would have gained in 6 months, but it 
would not have been 100 pounds. What is the alternative? The 
alternative, for example, in this Guerra case was when they finally got 
down to it, they granted his appeal. They said, ``Wait a minute, you 
did not get it right at the trial.''
  But I, with the greatest amount of respect, suggest that although I 
understand the motivation, it will not speed up the process. All it 
will do is enhance the likelihood that a person whose constitutional 
rights have been denied--and those constitutional rights usually relate 
to whether they are innocent or guilty--whether they have had a chance 
to make their case.
  Senator Kyl's amendment would bar a prisoner even from being able to 
file a habeas petition if the State court system has in place what are 
determined to be adequate and effective procedures to test the legality 
of the prisoner's detention.
  This amendment makes clear that the State court need not have gotten 
the result right in a particular case and, in fact, it need not even 
have applied its system fairly in a particular case. All it says is 
they have to have had a process, and if they had a process, even though 
it may not have been applied fairly in a particular case, even though 
it may not have gotten the result right on a constitutional basis, the 
Federal court cannot look at it.
  Everyone agrees that there is a need to end the delays in the system. 
It just does not work right now. But I also think everyone agrees that 
there should be a fair process and one that does not execute innocent 
people.
  We know most prosecutors and law enforcement officers are honorable. 
Most cases proceed fairly, and we can have confidence in the result. 
Under my approach, after the first petition, most of that will be made 
clear. They will be rejected and they will be put to death. And I 
support the death penalty. The Biden crime bill is the only reason why, 
if McVeigh is convicted in Oklahoma, he would be put to death. I wrote 
the law. If he is tried in Federal court without that law having been 
passed, he could not be put to death. I support the death penalty. But 
I do not support a reasonable ability for a person, if they have a 
strong case, to suggest they did not get a fair trial, to be able to 
have one bite out of the apple to determine in Federal court whether 
that was true.
  We all know that occasionally prosecutors or cops act in bad faith, 
as Senators do, as doctors do, as lawyers do, as housewives do. Every 
one of our professions, every one of them, has some bad apples. So, 
occasionally, prosecutors or cops act in bad faith and there are cases 
which have demonstrated that. As we all know, our judicial system will 
make honest mistakes and has done so.
  The recent case of Kirk Bloodworth is one example. Bloodworth was 
convicted and sentenced to death for the rape and murder of a young 
girl. After a new trial, he was again convicted and sentenced to life 
imprisonment. Subsequent DNA testing confirmed his innocence. 
Bloodworth lost 9 years of his life because of the error in our legal 
system. Habeas corpus has existed to correct just such errors, and to 
ensure that there will never be another Leo Frank, another innocent 
person who has been executed.
  You do not have to have 17-year delays to ensure that. You do not 
have to have any delay to ensure that. But what you have to have is the 
ability of a Federal court, on one occasion, to look at the facts in 
the petition and [[Page S7833]] make a judgment as to whether or not a 
new trial is warranted.
  So I respectfully suggest that the debate between the Senator from 
Arizona and me is not about maintaining the status quo; it is about how 
we change the status quo. I respect the Senator's intelligence and 
motivation greatly. But I also respectfully suggest that his approach, 
A, does not solve the real problem--State court delay--and, B, takes 
away the one last shot, as a practical matter, that one has to get 
before a Federal court.
  Now, I will acknowledge--and I suspect he would agree--that 75 years 
ago Federal review was probably needed much more than it is today, 
because the competence of State court justices was, in some cases, de 
minimis. And the prejudice that existed in some States--my own 
included--was real and palpable, making it very difficult for some 
people to get a fair trial and get their constitutional rights 
guaranteed. I acknowledge that. That is why the Leo Frank case 
generated a change in statutory habeas corpus. He was a Jew and he was 
put to death in large part because he was a Jew. Facts were overlooked, 
and a decade later it became clear from witnesses that he did not 
commit the crime.
  Most States do not operate that way anymore. I will pick a State so 
that I am not being parochial and bragging about my State court system, 
and I will not brag about the Arizona State court system, which is very 
good. I know several of their State supreme court justices and State 
court judges. They are first rate. I will pick a State. I would rank 
the New York State court of appeals, their highest court, over the last 
50 years, up against any Federal district court or Federal circuit 
court of appeals in the Nation. But I cannot say that for probably 20 
States that I will not name, because it would be a violation of Senate 
rules, and because I would be maligning the justices of other States. 
But I will say, as Barry Goldwater once said, ``In your heart, you know 
I am right.'' In your heart, you know there are certain States you 
would just as soon not be tried in for a capital offense as other 
States.
  So what this does--although I acknowledge that State courts get it 
right the vast majority of the times, I will put this in the negative--
what damage is done by the proposal of time limits built into the 
proposal I am making and that are made, I might add, in the underlying 
bill, that say you have to file a petition within a certain amount of 
time and there is a limited circumstance under which you can file a 
second petition.
  So for those reasons, and others which I will not take the time to 
speak to, I am going to oppose the amendment of my distinguished friend 
from Arizona.
  Mr. President, Is any time left in opposition?
  The PRESIDING OFFICER. The opposition has 12 minutes 42 seconds.
  Mr. BIDEN. I reserve the remainder of my time.
  The PRESIDING OFFICER. If I was not clear, the Senator from Arizona 
has 12 minutes. The Senator from Delaware has 4 minutes.
  Mr. BIDEN. I reserve my 4 minutes.
  Mr. KYL. Mr. President, I will yield myself 6 minutes of my remaining 
time. I would like to respond to the comments of the Senator from 
Delaware. They were well put and thoughtful, and I think they 
contribute to the debate. I am going to consider the arguments that he 
made, with the primary arguments in reverse order, if I might.
  The last argument he made essentially was what happens when, after 
the fact, the defendant finds something out that might enable him to 
win his freedom? That, of course, is the rationale for the writ of 
habeas corpus. Of course, the answer is, if you are a Federal court 
prisoner, you have the opportunity to file a writ of habeas corpus in 
the Federal courts. If you are a State court prisoner, you have the 
right to file a habeas corpus petition in the State courts. So that is 
your remedy for something that happens after the fact.
  The Senator from Delaware said it must be a fair process, and indeed 
it must be. Under my amendment, one of the things that can be 
contested, and could be contested in Federal court, is that the remedy 
of the State is not adequate or fair. Finally, with regard to this last 
point, the Senator from Delaware said he will be proposing an amendment 
that at least gives the prisoner in the State court system one shot in 
the Federal courts and primarily base that argument on the notion that 
while great strides have been made in State courts' competence over the 
years, there may still be some situations where the State court would 
not be as competent as the Federal court.
  I would like to respond to this in a couple of ways, Mr. President. 
First of all, we do have one shot in the Federal system under my 
amendment. It is directly to the U.S. Supreme Court. That right exists 
today, and it could not be taken away in our amendment, and we do not 
do that, of course. So if a State court prisoner believes that, despite 
all of the hearings he has gotten in the State court system, he still 
has not gotten a fair shake, and that he has really two things that he 
can claim--first, the State court system is not fair, and secondly, he 
can go to the U.S. Supreme Court and make his final point there.
  Let me read something that Justice Powell wrote not too long ago that 
I think goes to this point:
  He said this nearly 20 years ago:

       We are unwilling to assume that there now exists a general 
     lack of appropriate sensitivity to constitutional rights in 
     the trial and appellate courts of the several States. State 
     courts, like Federal courts, have a constitutional obligation 
     to safeguard personal liberties and to uphold Federal laws.

  That was in the case of Stone versus Powell, in 1976.
  Later, speaking to the American Bar Association, Justice Powell said:

       Another cause of overload in the Federal court system is 
     conferring Federal habeas corpus jurisdiction to review State 
     court criminal convictions. Repetitive recourse is 
     commonplace. I know of no other system of justice structured 
     in a way that assures no end to the litigation of a criminal 
     conviction. Our practice in this respect is viewed with 
     disbelief by lawyers and judges in other countries.

  So, Mr. President, I think that particular issue is disposed of by, 
among other things, the words of Justice Powell.
  A second point the Senator from Delaware said is that most of the 
delay is in State courts. He is correct, although the chart he has 
there represents one case. He has about 25 or 24 percent of the delay 
in the Federal courts, and the rest in the State court. Actually, there 
is a better figure than that, and the figure is about 40 percent in the 
Federal courts, 60 percent in the trial courts.
  This is from the Powell committee report, and it talked about overdue 
process. The Powell committee report on page 27 notes ``Federal habeas 
corpus made up 40 percent of the total delay from sentence to 
execution, in a sample of 50 cases.'' That is 50 cases as opposed to 
one case.
  The point of the matter is the Senator from Delaware is correct in 
noting that most of the delay would be State courts. I submit, however, 
that that is due to several factors. I am not sure the statistics fail 
to account for the fact that most of the cases are in State court. As a 
matter of fact, there are not that many in the Federal court.
  Say it is between 25 and 40 percent. At least under my amendment we 
are dealing with 40 percent of the problem. That is not insignificant. 
Or, the least, taking the number of the Senator from Delaware, 25 
percent of the problem.
  Whereas the Senator from Delaware would simply make it more difficult 
to get into Federal court if you are a State court prisoner, we say you 
cannot. As Federal legislators, what we can do something about, the 
Federal court, we do something. We say you cannot go there. It is up to 
the States to deal with the rest of the problem which is before them.
  Finally, Mr. President, the Senator from Delaware made a point with 
respect to Senator Inhofe's presentation, and it was a valid point. But 
I think it makes a point too far, or one point too much.
  The Senator from Delaware said it is doubtful that Senator Inhofe's 
constituents understand the difference between the Hatch and Kyl 
amendment, and mentions a lot of lawyers could not identify the 
difference. He is correct. I do not believe that makes the case.
  It is true we have to be careful about what we do here. It is also 
true that [[Page S7834]] while the common citizen may not understand 
the technicalities, the legalities, even the word habeas corpus coming 
from Latin, the common citizen does understand when something is 
broken. And the Senator from Delaware made an eloquent case for the 
proposition that something is drastically broken when people can stay 
on death row as long as they do.
  The Senator from Oklahoma made the same point, 16 or 17 years, with 
the average being over 9 years. The system is drastically broken. It 
does not take a lawyer to figure that out.
  Mr. President, let me conclude at this point that the ordinary man 
may not understand all of the technicalities we are talking about, but 
he knows something is broken here. The fix in my case is quite simple. 
Federal prisoners go to Federal court, State prisoners go to State 
court with an ultimate appeal to the U.S. Supreme Court, but State 
prisoners do not get the extra bites of the apple in the Federal court. 
It is a simple solution.
  The solution in the bill and the solution of the Senator from 
Delaware is much more complex. We will impose some limitations on how 
you get into the Federal court. That does not stop you from getting in 
the Federal court. So if you want to solve between 25 and 40 percent of 
the problem, voting for the Kyl amendment will definitely do that.
  It has been held as constitutional. It is supported by Judge Bork and 
by many others. I submit it would be a good addition to this bill. I am 
happy to yield to the Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I ask the distinguished Senator from 
Delaware to yield.
  Mr. HATCH. Mr. President, I believe the Senator from Delaware needs 
his remaining 4 minutes. How much time does the Senator need?
  Mr. SPECTER. I shall be brief, holding to 5 minutes.
  Mr. HATCH. I ask unanimous consent that the Senator be granted 5 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I am opposed to the amendment by the 
distinguished Senator from Arizona. At the outset, I acknowledge his 
experience in the field. But it is my view that Federal review of State 
criminal convictions, especially in capital cases, is very, very 
important in order to guarantee appropriate constitutional safeguards.
  I believe the death penalty is an effective deterrent against crimes 
of violence. I spoke earlier about my own experience as a district 
attorney of Philadelphia, and before that as an assistant district 
attorney where I tried murder cases. My thought is that it discourages 
many professional robbers and burglars from carrying weapons because of 
concern that a killing might result and they would face the possibility 
of first-degree murder and the death penalty.
  I believe that it is very, very important, Mr. President, if we are 
to retain the death penalty, we have to use it very, very carefully.
  There are some 37 States which favor the death penalty. Thirteen 
jurisdictions in the United States oppose it. It took many years to 
bring back the death penalty on the Federal level, having achieved that 
only last year.
  The news from South Africa is they have abolished the death penalty. 
The death penalty is not in use in many jurisdictions, in many nations. 
I think it is very, very important to retain the death penalty as an 
effective weapon. Therefore we have to use it very, very carefully.
  I have objections to the pending amendment both on constitutional 
grounds and on public policy grounds. I am well away of the contention 
that there is constitutional support to it. Frankly, I doubt that the 
constitutional support would stand up.
  When we are dealing with the question of jurisdiction of the Federal 
courts to entertain questions on Federal issues, on constitutional 
issues, I believe it is necessary that the Federal courts retain that 
jurisdiction as a constitutional matter.
  I am aware of ex parte McCardle and aware of the distinctions on 
habeas corpus where there is supposedly an adequate State habeas corpus 
remedy. When someone comes into the Federal courts on habeas corpus, 
especially in a capital case, and makes an assertion of denial of 
actual rights on privilege against self-incrimination or coerced 
confession or ineffective counsel or absence of counsel or search and 
seizure issues, I believe it is necessary as a constitutional matter 
that the Federal courts retain that kind of jurisdiction.
  In our Judiciary Committee hearings, this is a question which I 
frequently ask the nominees as to whether they believe the Congress has 
the authority to take away jurisdiction on constitutional issues from 
the Federal courts. It is too lengthy a subject to discuss at any 
length today.
  Beyond the constitutional issue is a matter of public policy. I think 
it is very important to have the kind of detached, objective review 
that the Federal courts give.
  In many of our States we have elected judges. I think that is, in 
some circumstances, perhaps in many circumstances, an impediment to the 
kind of review we have by judges who have life tenure.
  I recall reading for the first time in law school the case of Brown 
versus Mississippi, 1936, a decision by the Supreme Court of the United 
States saying that the due process clause which limited State action 
warranted the Supreme Court of the United States to reverse a 
conviction in a State court in a capital case. Without reciting the 
case of Brown versus Mississippi and the horrendous facts there, it was 
not until 1936 that the Supreme Court of this country intervened in a 
State criminal matter to say that it violated the U.S. Constitution.
  The Federal courts have been providing the safeguards on 
constitutional rights significantly through Federal habeas corpus. I 
believe that has to be maintained. In urging the adoption of the 
Specter-Hatch amendment, our amendment really goes to the issue of 
curtailing the time.
  Some might say that it is a restriction on defendant's rights. I 
think, actually, it is not, for reasons I stated earlier, on the 
challenge to cruel and barbarous treatment, keeping someone on death 
row for a protracted period of time.
  The international court I referred to earlier this morning, refused 
an extradition from England to Virginia, because Virginia kept 
prisoners on death row for 6 to 8 years, which was deemed a violation 
of cruel and barbarous treatment.
  I think, Mr. President, on constitutional grounds and on public 
policy grounds we ought not to restrict the jurisdictions of the 
Federal courts.
  Accordingly, I urge my colleagues to oppose this amendment. I yield 
the floor.
  Mr. KYL. Mr. President I appreciate the remarks of the Senator from 
Pennsylvania. He makes some good points that I would like to respond 
to, but at this point I would like to ask unanimous consent that the 
Senator from Mississippi be allotted the same amount of time that the 
Senator from Pennsylvania spoke on, so that I may utilize the remaining 
amount of my time to close the debate.
  The PRESIDING OFFICER (Mr. Inhofe) Without objection, it is so 
ordered.
  Mr. LOTT. Mr. President, I thank the distinguished Senator from 
Arizona for letting me have this time and for his effort on this 
amendment. I certainly am pleased to support it because I think it 
really does what needs to be done in this area of habeas corpus, 
because it provides that when a State--State--provides adequate and 
effective remedies for considering prisoners' claims, there is simply 
no basis for allowing additional rounds of litigation on the same 
claims in the lower Federal courts.
  I am not a constitutional expert. But let me just read what Judge 
Robert Bork has said about this particular amendment. He says:

       [This] . . . amendment to the anti-terrorism bill to stop 
     the abuse of federal collateral remedies is an excellent and 
     much-needed reform. . . . There is no doubt about the 
     constitutionality of the provision you propose. . . . Nor is 
     there any doubt about the need for [the] amendment. . . . 
     [The] amendment is a sorely needed reform to a situation that 
     is now out of hand.

  Again, I am not a constitutional expert and I know when we have bills 
like this the lawyers descend on the floor and start arguing. There are 
very good merits on both sides. But let me just say what I hear from 
the American people when I go to my State and other 
[[Page S7835]] States. They think there is horrible abuse in this area. 
They think these endless appeals are totally out of control and that it 
should be cut back and cut back significantly.
  I want to emphasize, this does still allow for the Supreme Court to 
be involved. But how many rounds are we going to have? The American 
people understand how this system is being abused. That is what is so 
applicable in this case. If we have a process whereby the people who 
were involved in the bombing in Oklahoma City are found, apprehended, 
indicted, convicted and sentenced, if you will, perhaps to death, and 
then we go through a long, protracted process of appeals through the 
State courts, appeals through the Federal courts, the American people 
are going to be even more horrified at our judicial system in America.
  They are looking now at the Simpson trial and wondering what have we 
wrought? This is one small step in the right direction.
  Under current law, habeas corpus claims that are rejected after 
thorough consideration in the State courts are readjudicated in the 
lower Federal courts. It is duplicative review in the Federal courts 
and it is needless and time consuming. The habeas corpus provision in 
S. 735 reduces this redundancy, but it does not eliminate it.
  I commend the Senator from Utah, Senator Hatch, for the good work he 
has been doing in this area for years. Finally he has brought this 
issue almost to a climax. But I think now Senator Kyl will go one step 
further and that will really help in dealing with this problem of 
abuse, delay, and repetitive litigation in the lower courts, the State 
courts, and the Federal courts.
  Under current law, criminal defendants in the State present their 
claims at their trials, in State court appeals, in State collateral 
proceedings, and in applications for review by State supreme courts and 
then by the U.S. Supreme Court. After exhausting these State remedies, 
prisoners can then go back and initiate additional rounds of litigation 
through the habeas corpus proceedings in the lower Federal courts, 
presenting the same claims that have already been raised and decided in 
State court review. As a result of this redundant review, the criminal 
justice system in the United States really now is plagued with problems 
of delay and abuse.
  We talked about, I guess it was, cruel and inhuman punishment in the 
past. The Supreme Court addressed the question of people staying in 
jails awaiting final conclusion of their trials or convictions, and 
that was ruled as being wrong. What about the fact that many of them 
now sit on death row for years and years with access to libraries and 
computers and everything they could possibly need so they continue to 
drag out this process? There has to be an end to it.
  The habeas corpus provisions in the bill, S. 735, do moderate the 
redundancy of the current situation through the time limits on Federal 
habeas filings, stricter limits on the repetitive habeas filings, and 
more deferential standards of review. But they do not address the 
underlying problem of pointless readjudication in the lower Federal 
courts. The Kyl amendment addresses the root cause of the existing 
problems of delay and abuse by eliminating these habeas corpus reviews 
of the State judgments.
  I think we have seen where this has been changed in the District of 
Columbia. That has worked quite well. The experience here in DC 
demonstrates that the rights of defendants can effectively be protected 
without the redundancy of these habeas corpus reviews in the lower 
Federal courts. This amendment, as I understand it, would extend those 
benefits to all the other States.
  Punishment is intended to be a deterrent to heinous crime. Under the 
present system, however, many killers do not fear the punishment 
because they know of the delays that will be involved. The Kyl 
amendment addresses this problem, and I commend him for his efforts. I 
certainly support this amendment.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. BIDEN. Mr. President, I yield myself the remainder of the time.
  Let me respond quickly to my friend's comment in response to what I 
had said.
  First of all, he said this is about winning freedom. This is not 
about winning freedom. Habeas corpus is granted--no freedom. It means a 
new trial.
  He points out very forthrightly that he attempts to prevent folks 
from going to Federal court except as it relates to being able to go to 
the Supreme Court. It is not the Supreme Court's job to take a detailed 
look at every State court conviction. It is for the Supreme Court to 
decide weighty issues of Federal constitutional law. That is why we 
have Federal courts and that is why my committee spends so much time, a 
significant portion of it, considering the nomination of Federal 
judges. Our system depends on Federal courts, all the Federal courts, 
being the safeguarders of Federal law.
  Let us just put this in very practical terms. Let us assume he is 
right, the State courts are fully capable and do not need any Federal 
review. What you end up with is as many as 50 different interpretations 
of the Federal Constitution; 50 different ways in which 50 different 
States could interpret whether or not a constitutional right has been 
denied or not denied. Just from a very practical standpoint that is not 
good policy. Whereas, when you have the appeal to the Federal court 
system, that becomes the law, the law of the land governing all 50 
States.
  I also point out that the State--as the Senator said: Look, we allow 
folks who are convicted in State court to go to State courts for their 
appeal and folks convicted in Federal court to go to the Federal courts 
for their habeas corpus petitions. The problem is that Federal court 
judges are trained in their experiences in interpreting the Federal 
Constitution. State courts hardly deal with the Federal Constitution. 
They deal with the State constitutions. We should have the people who 
are trained and experienced in interpreting the Federal law relative to 
the Federal Constitution being able to determine whether there has been 
a violation of that Federal law or, in this case, the Federal 
Constitution.
  Last, Justice Powell, I am confident--and I am willing to bet; you 
are not allowed to bet on the floor--but figuratively speaking, I would 
be willing to bet him dinner at any restaurant in America that Justice 
Powell does not support his amendment. I can say that with certainty 
because Justice Powell's commission came forward with an explicit 
guarantee that there would be access to Federal courts; an explicit 
guarantee. They made it absolutely clear that it is essential there be 
access to the Federal courts. I do not doubt that Judge Bork would 
support this, I do not doubt that at all. In fact, I am certain he 
would and we should all keep that in mind.
  So I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. How much time remains?
  The PRESIDING OFFICER. The Senator from Arizona has 6 minutes. The 
Senator from Delaware has 1 minute 1 second.
  Mr. HATCH. Mr. President, I ask both sides to allow me to have a few 
minutes just to make--I ask unanimous consent I be given a few minutes 
just to make some short comments.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I have listened to this debate and I really 
want to compliment the distinguished Senator from Arizona. I think this 
has been one of the most spirited parts of this whole debate on the 
habeas corpus provisions of the bill. I deeply appreciate, of course, 
the frustration some have with the Federal court's micromanagement of 
State court decisions. Indeed, I think the abuses of Federal habeas 
corpus practice fuel the desire to remove the Federal courts altogether 
from the review process. The Kyl amendment would effectively end 
Federal habeas review of State convictions where the State already has 
postconviction collateral review. And I can appreciate my colleague's 
willingness to address the gross abuse that currently occurs under our 
Federal habeas process. We are all sick of it. Something has to be 
done.
  Senator Kyl's amendment would return habeas review to its original 
moorings, as a corrective process where no other real remedy exists. 
And it deserves consideration. [[Page S7836]] 
  In the early history of this country, habeas review was not available 
at common law to review by any other court a conviction of a felony 
entered by a court of competent jurisdiction. The function of the writ 
was to free people who had been imprisoned illegally. Let us understand 
what I am saying. The constitutional great writ is preconviction.
  That is the Constitution writ. The writ of habeas corpus we are 
talking about is postconviction, and it is a statutory writ that can be 
changed readily by the Congress of the United States. Senator Kyl has 
cogently pointed out that that is exactly what it is. The writ is 
guaranteed against suspension by the Constitution. The earlier great 
writ was well understood to refer to habeas for Federal prisoners, only 
Federal prisoners. The Kyl amendment appreciates the history of the 
writ and attempts to return it to its original understanding. He has 
argued that nobly and well.
  I think the proposal of the Senator from Arizona deserves close 
scrutiny, and he should be complimented for his efforts to address this 
difficult problem. I have to say that I believe there needs to be 
postconviction habeas corpus review. But I also believe that the 
Senator makes a very strong point because, as a lot of people do not 
know, the District of Columbia has done away with postconviction habeas 
corpus review, collateral review. And it has worked very well in the 
District of Columbia. All the Senator is saying perhaps is that we 
should consider doing that for the country as a whole.
  So I just wanted to make these few short comments. I have to say that 
I compliment my friend and colleague from Arizona for his intelligence 
on this issue, and for the very, very spirited debate that we have had 
here on this. I want to express that for all concerned.
  The PRESIDING OFFICER. Who yields time?
  Mr. KYL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I would like to use the remainder of my time 
and close the debate, if there are no others who wish to speak.
  Mr. President, first of all, let me compliment the Senator from 
Delaware who has conducted a very intelligent and thoughtful debate. I 
appreciate that. I very much appreciate the comments of the Senator 
from Utah just now. It is only because of his tenacity that this issue 
is before us. As he said, he has been fighting this issue for years to 
try to bring some reform to the Senate and was able to do that finally 
in the bill that he brought to the Senate floor. I appreciate very much 
his efforts.
  I also appreciate the comments he just made. He is exactly correct in 
describing my amendment as an attempt to return the habeas petition to 
its original meaning. There is a statutory postconviction remedy, as he 
points out. I believe he is very familiar, as a matter of fact, with 
Congress' law of 25 years ago under which the District of Columbia uses 
a purely quasi-State court system for the review of its writs and does 
not allow prisoners to go into the Federal system, a system which has 
worked very well and which we have been invited to consider as a result 
by Federal judges who have written on the subject.
  Let me also address briefly two points, one made by the Senator from 
Pennsylvania, and one by the Senator from Delaware. The Senator from 
Pennsylvania questioned the constitutionality of what we are doing 
here. I understand the point he was making. But I do not think that the 
constitutionality of what we are proposing here is in doubt. The U.S. 
Supreme Court has upheld this procedure unanimously in a 1977 opinion, 
Swain versus Pressley. The opinion was written by Justice Stevens. That 
was--to use the phrase--``bandied about'' a fairly liberal court in 
1977. Subsequently, the Federal courts have consistently held that the 
remedy provided in this District of Columbia court system, which does 
not permit a Federal writ of habeas corpus, is adequate and effective 
to test the legality of detention.
  Among the cases are, for example, Garris versus Lindsay in 1986, a 
D.C. Circuit Court case, and Saleh versus Braxton, a District of 
Columbia District Court case in 1992. So consistently the courts have 
upheld, and I also cited the U.S. Supreme Court decision upholding the 
constitutionality, as well.
  The Senator from Delaware argued finally that there could be 50 
different interpretations of the constitutional law, if the State court 
prisoners are relegated only to a State court habeas remedy. With all 
due respect, I do not think that is correct because, as we all know, 
those of us who are constitutional lawyers anyway, the U.S. Supreme 
Court precedents must be followed when State supreme courts--or as in 
New York's case, it is called the court of appeals, or the circuit 
courts--are adjudicating constitutional questions, they must follow 
U.S. Supreme Court precedents.
  Therefore, it is not possible for there to be 50 different 
interpretations of Federal law by State supreme courts unless those 
courts are dealing in bad faith, and I am sure that no one is 
suggesting that is the case. It has always been the case that under our 
Constitution, the Framers contemplated that State courts would be 
making these interpretations. As a matter of fact, there is an 
interesting book by Curt Sneideker who writes to this point. He said 
that in our judicial system it has been understood from the very 
beginning that State courts could pass on Federal questions. And, by 
the way, he cites Federalist Papers No. 82 for that proposition. 
Indeed, the Constitution itself expressly directs them to do so in 
article VI, clause 2.
  So very clearly, the State courts have always been thought of as a 
place where Federal constitutional issues could be resolved. As I noted 
earlier, Justice Powell has made a very convincing case, and he is not 
the only one. But he specifically has made a convincing case that the 
State courts have the competence to rule on these issues.
  Mr. President, just in summary, again I compliment both managers of 
this bill for the very intelligent way in which they have approached 
this issue. I appreciate the opportunity to debate my amendment in this 
way, and I will simply say that in summary, what I am trying to do with 
my amendment is to ensure that there is an adequate remedy for all 
habeas petitions for both Federal and State court prisoners, Federal 
prisoners in the Federal system, State court prisoners in the State 
court system, but to limit State court systems to the State just as 
Federal writs are limited to the Federal system.
  The only exception which we could not take away, even if we tried--
and, of course, we do not want to--even in the State court system, 
prisoners have the ability to go to the U.S. Supreme Court, the 
ultimate Federal court, to test the propriety of the final decision of 
the State court, in most cases called the State supreme court. So there 
is adequate ability to protect the constitutional rights of both State 
and Federal prisoners.
  My amendment simply helps to solve this problem of overburdened 
Federal courts by taking out of the Federal courts somewhere between 25 
and 40 percent perhaps of the cases that are currently adjudicated not 
only in State courts but in a duplicative way in the Federal courts, as 
well.
  I urge that my colleagues support my amendment.
  Mr. BIDEN. Mr. President, do I have any time left?
  The PRESIDING OFFICER. The Senator from Delaware has 1 minute and 19 
seconds.
  Mr. BIDEN. Mr. President, my staff pointed out to me, as I sat down 
when I said we should keep that in mind, I said in jest that we should 
keep that in mind, my reference was to Judge Bork. I believe Powell 
does not support this, the Powell Commission would not support this, 
and that Justice Bork would. We should keep in mind the distinction.
  But I would also like to point out, as my staff pointed out to me, in 
Wright versus West, the Supreme Court case decided a couple of years 
ago, where the Bush administration sought to ask the Supreme Court to 
rule on the standard of full and fair, which is what Senator Kyl is 
proposing, Justice Rehnquist, from his home State of Arizona, refused 
to adopt the standard that Senator Kyl is proposing. He is certainly no 
liberal. He refused to adopt the standard and insisted that there be 
access to the lower Federal courts. [[Page S7837]] 
  But I thank my colleagues for their indulgence.
  I yield the remainder of my time.
  Mr. KYL. Mr. President, let me again compliment both managers of the 
bill. I think this has been a good debate. I reiterate my amendment 
simply restricts the State court prisoners to the Start court as 
prisoners until they are able to go the to U.S. Supreme Court. I 
believe this will significantly reduce the number of duplicative 
appeals. That is what this is all about on the habeas corpus reform, to 
strengthen the bill. In any event, I reiterate that this is a good bill 
that we should all support.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Utah.
  Mr. HATCH. Mr. President, I compliment both Senator Kyl and Senator 
Biden. Both have presented very interesting and good arguments. They 
both deserve being listened to.
  Mr. President, I ask unanimous consent that the vote on the Kyl 
amendment be at a time to be determined by the majority leader, after 
consultation with the minority leader.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, do we first have to ask for the yeas and 
nays?
  Mr. HATCH. Yes. I ask for the yeas and nays on the Kyl amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Ms. SNOWE. Mr. President, I would like to join my colleagues in 
supporting S. 735, the Comprehensive Terrorism Prevention Act. This 
legislation contains a broad range of needed changes in law to enhance 
our country's ability to combat terrorism, both at home and from 
abroad. The managers of this bill have described its provisions in some 
detail, so I will not repeat their comments. Briefly, however, this 
bill would increase penalties: for conspiracies involving explosives, 
for terrorist conspiracies, for terrorist crimes, for transferring 
explosives, for using explosives, and for other crimes related to 
terrorist acts.
  The bill also contains habeas corpus reform to curb the abuse of 
habeas corpus and to address the acute problems of unnecessary delay 
and abuse in death penalty cases. The bill also includes provisions to 
combat international terrorism, to remove aliens, to control 
fundraising for foreign terrorists, and procedural changes to 
strengthen our counterterrorism laws. Among those strengthening laws 
are a requirement to use chemical tagging in plastic explosives, to 
criminalize a threat to use a weapon of mass destruction, and to add 
conspiracy crime to certain terrorism offenses.
  Finally, the bill authorized increased funding for Federal law 
enforcement agencies, providing $1.5 billion over 5 years for the FBI, 
DEA, assistant U.S. attorneys, the INS, and the U.S. Customs Service.
  Mr. President, I would like to concentrate the remainder of my 
comments of two provisions of mine that are included in this bill with 
the assistance of the chairman of the Judiciary Committee, Senator 
Hatch, and our distinguished majority leader, Senator Dole. These two 
provisions are the Terrorist Exclusion Act and the Law Enforcement and 
Intelligence Sources Protection Act, both of which I have introduced 
separately this session of Congress.
  Traditionally, Americans have thought of terrorism as primarily a 
European, Middle Eastern, or Latin American problem. While Americans 
abroad or U.S. diplomatic facilities have been targets, Americans have 
often considered the United States itself largely immune from acts of 
terrorism. Two events have changed this sense of safety. The first was 
the international terrorist attack of February 26, 1993, against the 
New York World Trade Center, and the second was the shocking domestic 
terrorist attack this April 19 against the Federal building in Oklahoma 
City.
  I first introduced the Terrorist Exclusion Act in the House 2 years 
ago, and this year I have reintroduced the legislation in the Senate 
with Senator Brown as my original cosponsor. The Terrorist Exclusion 
Act will close a dangerous loophole in our visa laws which was opened 
up in the Immigration Reform Act of 1990. That bill eliminated then-
existing authority to deny a U.S. visa to a known member of a violent 
terrorist organization.
  The new standards required knowledge that the individual had 
personally been involved in a past terrorist act or was coming to the 
United States to conduct such an act. This provision will restore the 
previous standard allowing denial of a U.S. visa for membership in a 
terrorist group.
  The elimination of authority to exclude a foreigner from the United 
States for mere membership in a terrorist group happened in the context 
of Congress' rewrite of the old McCarran-Walter's Act. The McCarran-
Walter's Act contained a wide range of visa exclusions for ideological 
or associational reasons. But in narrowly refocusing all visa 
exclusions on personal acts, it perhaps inadvertently treated 
foreigners who join violent terrorist organizations no differently than 
if they had merely joined a political club, or fraternal order. This 
removed a valuable tool for protecting American lives. In my view, and 
I am sure the view of the vast majority of Americans, there is a 
difference.
  I discovered this dangerous weakness in our visa laws in early 1993 
during my investigation of the State Department failures that allowed 
the radical Egyptian cleric, Sheikh Omar Abdel Rahman, to travel to and 
reside in the United States since 1990. I undertook this investigation 
in my role as ranking Republican of the House International Operations 
Subcommittee, which has jurisdiction over terrorism issues, a role I 
have continued in the Senate as chair of the International Operations 
Subcommittee of the Foreign Relations Committee.
  Sheikh Rahman is the spiritual leader of Egypt's terrorist 
organization, the Islamic Group. His followers have been convicted for 
the 1993 bombing of the World Trade Center in New York, and the sheikh 
himself is now on trial for his alleged role in planting and approving 
a second wave of terrorist acts in the New York City area.
  The significance of Sheikh Abdel Rahman is that he was clearly 
excludable from the United States under the old pre-1990 law, but the 
legal authority to exclude him ended with enactment of the Immigration 
Reform Act that year. He was admitted to this country through an 
amazing series of bureaucratic blunders.
  But then, the 1990 law came into effect, and the State Department was 
forced to try to deport him on the grounds that he once bounced a check 
in Egypt and had more than one wife, rather than the fact that he was 
the known spiritual leader of a violent terrorist organization. This 
was before the World Trade Center bombing.
  A high-ranking State Department official informed my staff during my 
investigation that if Sheikh Abdel Rahman had tried to enter after the 
1990 law went into affect, they would have had no legal authority to 
exclude him from the United States because they had no proof that he 
had ever personally committed a terrorist act, despite the fact that 
his followers were known to have been involved in the assassination of 
Anwar Sadat.
  The urgency of passing this provision comes from the sad truth that 
every day American lives continue to be put at risk out of deference to 
some imagined first amendment rights of foreign terrorists. This is an 
extreme misinterpretation of our cherished Bill of Rights, which the 
Founders of our Nation intended to protect the liberties of all 
Americans.
  In my reading of the U.S. Constitution I see much about the 
protection of the safety and welfare of Americans, but nothing about 
protecting the rights of foreign terrorists to travel freely to the 
United States whenever they choose.
  The second of my bills contained in S. 735 is the Law Enforcement and 
Intelligence Sources Protection Act. This legislation would 
significantly increase the ability of law enforcement and intelligence 
agencies to share information with the State Department for the purpose 
of denying visas to known terrorists, drug traffickers, and others 
involved in international criminal activity.
  This provision would permit denials of U.S. visas to be made without 
a detailed written explanation for individuals who are excluded for law 
enforcement reasons, which current law requires. These denials could be 
made [[Page S7838]] citing U.S. law generically, without further 
clarification or amplification. Individuals denied visas due to the 
suspicion that they are intending to immigrate would still have to be 
informed that this is the basis, to allow such an individual to compile 
additional information that may change that determination.
  Under a provision of the Immigration and Nationality Act [INA], a 
precise written justification, citing the specific provision of law, is 
required for every alien denied a U.S. visa. This requirement was 
inserted into the INA out of the belief that every non-American denied 
a U.S. visa for any reason had the right to know the precise grounds 
under which the visa was denied, even if it was for terrorist activity, 
narcotics trafficking, or other illegal acts. This has impeded the 
willingness of law enforcement and intelligence agencies to share with 
the State Department the names of excludable aliens.
  These agencies are logically concerned about impeding an 
investigation or revealing sources and methods if they submit a name of 
a person they know to be a terrorist or criminal--but who we do not 
want to know that we know about their activities--who then goes on the 
lookout list, is denied a visa, and then is informed in writing that he 
or she was denied a visa because of known drug trafficking activity. 
That drug trafficker then will know that the DEA knows about his or her 
illegal activity and may be developing a criminal case. This 
information is something the United States would want to protect, until 
the case against is completed and, hopefully, some law enforcement 
action is taken. At the same time, however, for the protection of the 
American people we should also make this information available to the 
Department of State to keep the individual out of our country.
  The key issue is that travel to the United States by noncitizens is a 
privilege, not a constitutional right. There is no fundamental right 
for extensive due process in visa decisions by our consular officers 
overseas. While I believe that our country should do what we can to be 
fair in our treatment of would-be visitors to the United States, in 
cases where providing information to an alien would harm our own 
national security, complicate potential criminal cases or potentially 
reveal sources and methods of intelligence gathering, we should err on 
the side of protecting Americans, not the convenience of foreign 
nationals.
  Mr. President, I again congratulate Senator Dole, Senator Hatch, and 
all of my other colleagues--on both sides of the aisle--who have been 
instrumental in bringing this comprehensive counterterrorism bill to 
the Senate floor for swift action. This is an example of our capacity 
to act quickly on a bipartisan basis and in cooperation with the 
administration on critical issues. It is my hope that this bill is an 
example of what we can accomplish together in this body, and I hope we 
will continue to approach issues important to the future of our Nation 
in this manner.
  I urge adoption of the bill.
  Mr. HATCH. I now ask that the Kyl amendment be laid aside and the 
Senator from Delaware be recognized to offer the last amendment to this 
bill as soon as we have a quorum call.
  Mr. President, I suggest the absence of a quorum.
  Mr. DOLE addressed the Chair.
  The PRESIDING OFFICER. The distinguished majority leader is 
recognized.
  Mr. DOLE. Mr. President, what is the pending business? Are we on the 
final amendment?
  The PRESIDING OFFICER. The Chair would observe we just dispensed with 
the Kyl amendment. There is no pending amendment at this time.
  Mr. DOLE. Is there a time agreement on the Biden amendment?
  Mr. HATCH. Mr. President, I ask unanimous consent that the amendment 
of the distinguished Senator from Arizona be laid aside; that as soon 
as the distinguished majority leader is finished, we can move to the 
final amendment, the Biden amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOLE. How much time is the Biden amendment?
  Mr. HATCH. Mr. President, I ask unanimous consent that there be 90 
minutes equally divided between Senator Biden and myself.
  Mr. COHEN. Reserving the right to object, I might indicate to the 
Senator from Utah that Senator Biden indicated he will allow me to have 
an additional 15 minutes separate and apart from this agreement.
  Mr. HATCH. Let us make it 105 minutes with 45 minutes----
  Mr. DOLE. I have a better idea. Why not the Senator from Utah give 
him 15 minutes of his 45.
  Mr. HATCH. That will be fine.
  Mr. COHEN. I do not want to take the time of Senator Hatch.
  Mr. DOLE. We want to finish this bill.
  Mr. HATCH. That is fine with me. Half-hour to me, an hour to Senator 
Biden.
  The PRESIDING OFFICER. Is there objection? Does the Senator from 
Maine object?
  Mr. COHEN. No.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOLE. Mr. President, then it would appear to me that we are not 
going to finish this bill until after 5 o'clock. But we will take up 
the telecommunications bill. We will be here late because we have 
frittered away the afternoon here. We hoped to conclude action on this 
bill by 1 o'clock. It is now 3:30, and it is going to be 5 or 6 
o'clock. So we do not have any recourse because Senator Pressler and 
Senator Hollings have been waiting all day long to take up the 
telecommunications bill, and there will be votes and there will be 
amendments probably until 10 or 11 o'clock tonight. So if we can 
finish, whenever we finish this bill, we will be on the 
telecommunications bill.
  I understand the Senator from Delaware is now prepared to offer his 
amendment, which will be the final amendment.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I see the distinguished Senator from Maine 
is prepared to speak and utilize his 15 minutes.
  Mr. COHEN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Maine.
  Mr. COHEN. Mr. President, first let me thank the Senator from Utah 
for allowing me to use 15 minutes of his time. I will try and cut it 
down if I can, because I do not want to trespass on his time, 
especially since I am going to be speaking in opposition to his 
position. So it is kind generosity on his part, superimposed by the 
majority leader, I might add, but nonetheless I appreciate it.
  Mr. President, I have in my past life been both a prosecutor and 
defense counsel. I believe firmly that some reform of habeas corpus is 
necessary. Successive and repetitive petitions, appeals and Supreme 
Court reviews have led to excessive delays and imposed costs on State 
prosecutors' offices that otherwise would be dedicated to law 
enforcement. I think these delays have rightly been perceived by the 
American people as an abuse of the judicial process by those opposed to 
the death penalty.
  I also want to point out that I oppose the death penalty, but I 
cannot support a system that allows respect for the law to be 
undermined. Consequently, I believe many of the procedural reforms 
contained in S. 735 are appropriate and necessary.
  I support limits on successive, repetitive petitions. I support a 
statute of limitations for filing habeas petitions. And I support time 
limits on judicial consideration of habeas cases. I think these reforms 
should be sufficient to eliminate the abuses of the habeas system that 
have led to decade-long delays in many capital cases.
  But the goal of habeas corpus reform ought to be that prisoners have 
one complete bite at the apple.
  The bill before the Senate gives prisoners one bite at the apple but 
changes the law so that the bite is incomplete. It weakens the 
standards under which Federal courts review constitutional errors that 
take place in State courts by requiring a Federal court to defer to a 
State court's reasonable interpretation and application of 
constitutional law.
  By weakening the effectiveness of the writ in this way, I think it is 
going to erode what has been a cherished procedure over the centuries, 
the hallmark [[Page S7839]] of Anglo-American jurisprudence. The writ 
of habeas corpus is the last line of defense for constitutional rights.
  An effective habeas remedy is especially necessary in modern times 
because of the poor caliber of legal representation capital defendants 
are being provided in capital trials.
  Many of the States that produce a large number of capital cases have 
no minimum competency standards for defense counsel. One State limits 
the compensation for court-appointed counsel to $1,000 for all pretrial 
preparation and trial proceedings--I repeat, $1,000 for all pretrial 
preparation and trial proceedings.
  Another State pays a maximum of $2,500. A survey by the Mississippi 
Trial Lawyers Association estimated that the average capital defense 
attorney is compensated at a rate of $11.75 an hour, just 2\1/2\ times 
the minimum wage.
  There are reported cases of trial counsel sleeping during trial, not 
presenting any mitigating evidence during the penalty phase of the 
trial, having only 6 months of legal experience and no criminal trial 
experience, or filing a one-page brief on appeal.
  In one of his last opinions from the bench, Justice Blackmun listed 
six egregious examples of the poor representation many capital 
defendants receive. One case Justice Blackmun described was that 
involving John Young, who was represented in his capital trial by an 
attorney who was addicted to drugs and who a few weeks after the trial 
was incarcerated on Federal drug charges. The court of appeals of the 
eleventh circuit rejected Young's ineffective assistance of counsel 
claim on Federal habeas review and the Supreme Court denied certiorari. 
Young was executed in 1985.
  In another case, Larry Heath was represented on direct appeal by 
counsel who filed a six-page brief before the Alabama Court of Criminal 
Appeals. The attorney failed to appear for the oral argument before the 
Alabama Supreme Court and filed a brief in that court containing a one-
page argument and citing a single case. The eleventh circuit found no 
prejudice, and the Supreme Court denied review. He was executed in 
1992.
  The bill before the Senate does nothing to remedy the serious problem 
of incompetent counsel in State court capital cases. But in light of 
this, I think the Biden amendment is all the more imperative to 
maintain the effectiveness of habeas under these circumstances. When 
trial counsel has done little to protect a capital defendant's 
constitutional rights at trial, at the very least, it seems to me the 
Federal Government ought to provide effective Federal court review of 
the State court conviction and sentence to ensure that the core 
constitutional requirements have been satisfied.
  Mr. President, I think Senator Biden has already talked at some 
length about the case of Rubin ``Hurricane'' Carter. I read a book that 
was written some time ago called ``The 16th Round.'' In ``The 16th 
Round,'' we have a description of what happened to Rubin ``Hurricane'' 
Carter, the one time the middleweight prizefighter. It was not a death 
penalty case, but it was a case of an innocent man being convicted for 
a crime he did not commit, primarily because he was a black man who was 
in the vicinity when a triple murder was committed.
  It was way back in June 1966. Two light-skinned black men, one 
described as thin, about 5 feet 11 inches, shot and killed three people 
in a Paterson, NJ bar. Carter, a very dark-skinned, stocky, 
prizefighter, 5 feet 8 inches tall, was driving in the vicinity with 
two other people. They were stopped by the police and then released 
because they did not match the description of the killers. Later that 
night, Carter and a man named John Artis were again picked up by the 
police, but the survivor of the shooting failed to identify them as the 
killers. They were given lie detector tests and they passed.
  In the meantime, a small-time thief who was robbing a factory nearby 
the murder site told the police he had seen the commission of the 
crimes, and in an attempt to curry favor with the police, he told them 
Rubin ``Hurricane'' Carter was the killer.
  Based on that information, Carter and Artis were tried, convicted, 
and sentenced. Carter himself was sentenced to life in prison.
  Ten years later, after the thief recanted his trial testimony, Carter 
and Artis were given new trials. Then at the time of trial the thief 
recanted his recantation. Carter and Artis were convicted again. The 
New Jersey Supreme Court affirmed Carter's conviction by a vote of 4-3.
  Then a habeas corpus petition was filed in Federal court. In 1985, 
the court issued an opinion finding two serious constitutional 
violations: The prosecutor's misuse of a lie detector test and the 
denial of equal protection due to the prosecutor's unfounded racial 
allegations against the defendants. The prosecution argued that the 
defendants were simply out to murder white people when, in fact, the 
evidence was that they both had many white friends.
  The third circuit upheld the lower court's decision to grant the 
petition. The Supreme Court denied certiorari. And the State of New 
Jersey finally dismissed the indictment.
  Here we have a situation where a person spent over 20 years in prison 
over charges that were false. The attorney for Mr. Carter has written 
to Senator Hatch to point out that if a proposal similar to the one on 
the floor right now were law today, Carter's habeas corpus petition 
would have been dismissed. He said, ``I do not see what legitimate 
criminal justice purpose would be achieved by such a result.''
  Indeed, the 16th round never would have occurred. The 15th round 
would have knocked Carter out for the rest of his life, without him 
ever having a legitimate opportunity to challenge the injustice that 
took place 20 years ago.
  So let us not fool ourselves. The substantive changes to the habeas 
bill being proposed are not designed just to eliminate frivolous cases. 
They are designed to weaken the Federal courts' role in scrutinizing 
State court verdicts for constitutional error. Prof. Henry Monaghan 
from Columbia University said it very well in a letter to Senator 
Hatch. He acknowledged that he is ``no fan of habeas corpus.'' But he 
was satisfied that the changes in the Supreme Court law and the 
procedural reforms in this bill ``would go a long way to eliminating 
abuses.'' He went on to urge that the substantive standards not be 
altered:

       I believe the writ's core function of affording independent 
     Federal review to mixed questions of law and fact should be 
     retained and that the deference provision in S. 735 should be 
     withdrawn. The deference provision in S. 735 would keep 
     habeas corpus from serving any meaningful role. Effectively, 
     it would repeal the habeas corpus statute.

  Similarly, a former State prosecutor recently wrote to me that the 
``reasonableness'' rule of deference in this bill is not the way to 
speed up habeas corpus review. It is not a way to prevent the same 
prisoner from filing more than one petition. Rather, ``it is an 
unprecedented attack on the rule, as old as the Republic, that Federal 
courts have the last word on what the Federal Constitution means and 
how it is to be applied. It would require Federal courts to stand by 
and do nothing even if presented with a State court ruling that was 
wrong, and the cause of the person being unjustly imprisoned or even 
executed.''
  So, Mr. President, I think it is important that those accused of 
serious capital crimes have one complete bite at the apple. I believe 
the Biden amendment will make sure that one bite is complete and not 
incomplete. I hope that it will receive the endorsement of the Senate, 
because habeas corpus without it will become a hollow remedy, one that 
I do not think would be worthy of the title ``the Great Writ.''
  A strong case has been made for the procedural reforms in this bill. 
They will increase respect for the law by stopping the endless delays 
and appeals of capital sentences. But no case has been made for 
changing the substantive standards applicable in federal courts for 
well over a century. When we are making such radical changes in our 
legal system, we should act prudently. We can always cut back on habeas 
in the future if the procedural reforms in this bill do not work. But 
we may never recover the habeas process once it has been effectively 
been repealed by the substantive changes being proposed.
  I yield the floor.
  Mr. BIDEN. Mr. President, I thank the Senator from Maine. The Senator 
from Maine has a reputation in this [[Page S7840]] body of being one of 
the most thoughtful, and when he speaks in debates, unlike the Senator 
from Delaware, a most measured Senator, and one whose career has been 
marked by observable high points of principle. And this is, I detect, 
from his speech, a principled issue here. This is an important issue. 
This is not one where we should, quite frankly, be guided by the 
legitimate but sometimes not fully articulated concerns of our 
constituents.
  I believe what our constituents want is what the Senator from Maine 
has outlined. I doubt whether there is a man or woman in America who 
thinks that Hurricane Carter should not be free today. I doubt whether 
there are any people in America today who would have been happy had 
this been the law and had he been denied the opportunity to make that 
final plea in Federal Court.
  Yet, if we amend the law along the lines of the Biden amendment, 
which Senator Cohen supports, we would have drastically cut down 
frivolous appeals and drastically cut down successful appeals. As a 
matter of fact, there is no difference in the time limitation for 
filing an appeal and the number of successive appeals that are allowed 
between what Senator Hatch wants and what we want. The big difference 
in what the Senator from Maine and I are saying is the standard the 
court is able to apply when the Federal court looks at, as Professor 
Monaghan states, those mixed questions of fact and law. This would 
essentially not allow them to look at fact, just theoretically the law.
  So what I propose to do is precisely what Professor Monaghan, who is 
not a fan of habeas corpus, wants done. Let us be real clear right from 
the start here what we are arguing about and what we are not arguing 
about. Again, as my old buddy Sid Balick, says, ``keep your eye on the 
ball.'' What are we arguing about and what are we not arguing about? We 
are not arguing about whether or not to speed up the process of habeas 
corpus review, and we are not arguing about reducing the current abuses 
in the system.
  I agree with my Republican colleagues from Utah and Pennsylvania that 
we have to have a strict statute of limitations and a strict limit on 
successive petitions. Put another way, how many times after that first 
one, or under what circumstance, can you file another petition if you 
are able to at all. Nothing I am trying to do today, nothing in my 
amendment would change what the Republicans propose for speeding things 
up or cutting down on abuses. They have a 6-month statute of 
limitations in their bill. I am not trying to make that 9 months or 1 
year or 2 years. I am not proposing to change a single word in the 
statute of limitations. As this chart up here shows, in the Biden 
amendment the time limits for filing a petition are the same as in the 
Specter-Hatch provision. We both set limits on time.
  Nothing in my amendment, nothing at all, would change what the 
Republicans propose for speeding things up or for cutting down on 
abuses.
  The Republicans have a new strict limit on successive petitions in 
their bill. Many of my liberal friends think these restrictions are 
excessive. I do not. I have not attempted to change a word. I have not 
attempted to change a word on their bill relating to successive 
petitions. Not a period, not a comma of their proposal is changed by my 
amendment.
  Put another way, at the end of the day, or the end of today, even if 
I were to win everything I am asking for, the statutory right of habeas 
corpus will be drastically altered from what it is today. No longer 
will we see a guy filing petition after petition. No longer will my 
friend from Utah, my distinguished friend from South Carolina, Senator 
Thurmond, my friend from Pennsylvania, my new friend and colleague from 
Oklahoma, be able to put up on a board or reference cases which are 
real and exist today where someone has sat, after having been convicted 
for a capital offense, on death row for 2, 5, 10, 12, 15, 16, or 19 
years. That will not be possible if we adopt my amendment.
  Now, usually, the Senator from Utah has a chart out here listing the 
number of petitions in several cases. I am not making light of that. 
When he brings out that chart, if he does in his response, I want 
everyone to look at it and understand that if the Biden amendment 
passes, that would be the end of charts like that.
  There would no longer be an ability for a convicted prisoner, 
convicted of a capital offense, to be able to file those successive 
petitions and delay for the number of years the charts have always 
shown.
  I also point out that we will still have the problem of irresponsible 
State courts who do not read briefs, who do not take the time to follow 
through. I cannot affect that, nor can they. At a Federal level, we 
will have eliminated the ability to have those successive petitions.
  So let the Senate be clear on what we are not arguing about. What we 
are arguing about is whether we should dismantle the habeas corpus 
process by dramatically restricting the Federal power of the Federal 
courts to decide whether a State court got it wrong, whether a State 
court wrongly convicted a person, whether a State court is wrongly 
sending a person to death. That is what we will be changing.
  That is where I part company with my Republican friends. I want to 
fix the problem. They want to do away with the right. I want to get a 
habeas corpus petitioner in and out of Federal court quickly. I do not 
want to make it practically impossible for him to get into Federal 
court. I want to say you get in, and you must get in quickly, and you 
can only get in under certain circumstances, and you are out. The 
Republicans want to slam the door of the Federal courthouse closed.
  I know there are a lot of things about Federal overreaching, but one 
thing I do not think most Americans--whether they are liberal or 
conservative, whether they are moderate, whether they are Republican or 
Democrat--I do not think they believe that is a remedy, to slam the 
Federal courthouse door. They do not want it swinging off its hinges, 
but they do not want it slammed shut.
  What I propose is--to be able to use this silly metaphor--to be able 
to open the door once, walk through the door, and say, ``Federal 
judges, experts on the Federal Constitution, listen to my plea. Make a 
decision. If you decide against me, I'm out, but listen to it.''
  As the Senator said, the lawyer for Hurricane Carter, and I suspect 
everyone else would agree he would be a man in jail the rest of his 
life were that door slammed shut, had it been slammed shut in the way I 
believe this present bill does.
  So that is what we are arguing about.

                           Amendment No. 1224

   (Purpose: To amend the bill with respect to deleting the rule of 
                      deference for habeas corpus)

  Mr. BIDEN. Mr. President, I send an amendment to the desk and ask for 
its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Delaware [Mr. Biden] proposes an amendment 
     numbered 1224.

   Mr. BIDEN. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Delete page 105, line 3, through page 105, line 17.

  Mr. BIDEN. Mr. President, let Members be clear about what we are 
talking about.
  A petition for habeas corpus--I want to complicate this--a petition 
for habeas corpus is literally and simply a piece of paper on which a 
State prisoner says, ``I have been denied my constitutional rights in 
the following way,'' and takes that paper or has his lawyer take the 
paper and file that in a Federal court.
  In almost all instances, this is after his remedies have expired in a 
State court system. The issue is whether he or she should be able to 
file that in Federal court and under what circumstances.
  The piece of paper that a habeas corpus petition is written on says 
that the prisoner claims to be held or sentenced to death in violation 
of the Federal Constitution, the U.S. Constitution. It does not ask 
that the prisoner be released, but it does ask that he be given a new 
trial.
  Habeas corpus is the means by which Federal courts ensure that State 
[[Page S7841]] courts are following the Constitution. It ensures that 
those in jail or on death row were not only not put there mistakenly, 
but that they were not put there in violation of the U.S. Constitution.
  I might add, if we, in fact, eliminate Federal habeas corpus or in 
effect eliminate Federal habeas corpus, what we do is we leave to 50 
different States the potential for 50 different interpretations of fact 
and law.
  We all know if a Federal court makes a judgment on a Constitution in 
a circuit or in a district, it usually goes to a circuit, and then to 
the Supreme Court. We get a final national judgment on how to read that 
provision and that fact/legal mixture under the Federal Constitution. 
We have a uniform application of the law.
  The writ of habeas corpus, known historically as the ``great writ,'' 
is enshrined in the Constitution itself, which provides that ``The writ 
of habeas corpus shall not be suspended,'' article I, section 9.
  Unfortunately, under the current system, guilty people can sometimes 
delay their death sentences by filing frivolous habeas petitions. There 
is no time limit on when the petition has to be filed, and there is no 
statutory limit on the number of petitions.
  I have, in years past, proposed legislation that would reform this 
system to generally limit a petitioner to one petition in Federal 
court, and to impose strict limits on when that petition had to be 
filed. But my legislation also recognized in that one round of Federal 
review, the prisoner is allowed and must be allowed a full and careful 
review to ensure that we do not execute innocent people.
  The death sentence is unlike any other. There is no turning back once 
it has been carried out; to state the obvious, a mistake cannot be 
fixed. Because of that, we cannot allow the death penalty to be used 
against innocent people and we cannot allow it to be carried out 
unfairly.
  I am certain all of my colleagues would agree that, although the 
death penalty should be applied swiftly and with certainty, the worst 
thing in the world would be for it to be applied wrongly.
  My amendment tries to preserve the important role that habeas plays, 
while reducing delays. It strikes at what I believe is the issue that 
truly rises above all else in the Republican bill. It strikes the 
provision in the Republican bill that I think is the most troublesome, 
and that is the so-called rule of deference, which has been known 
around here the last 20 years that I have been here as the full and 
fair rule.
  This, in my view, and probably in the view of advocates of both sides 
of the habeas corpus debate, is the single most important provision of 
the Republican bill and the single biggest difference between my 
approach and their approach.
  As the chart I have just had put up illustrates, when it comes to 
speeding things up, Senator Hatch and I are in the same spot. Both our 
bills have time limits on when a petition can be filed. Both our bills 
have limits on successive petitions. But our bill differs when it comes 
to the issue of deciding these petitions.
  I said the Federal courts should exercise independent review while 
the Specter-Hatch bill requires Federal courts to defer to the States.
  It is important to realize that the deference standard in the 
Specter-Hatch bill effectively makes the rest of the bill irrelevant. 
After all, what difference does it make what the time limits are if the 
Federal courts are going to be precluded from examining what the State 
courts did in any event? What difference do the time limits make? That 
is the fundamental difference in our approaches, because that is what 
the result of the Specter Hatch bill will be.
  Let me give a hypothetical example. Suppose an innocent man is 
charged with a capital crime and during the investigation one of the 
witnesses identifies someone else as having committed the crime other 
than the defendant, a fact which is concealed from the defendant. And 
there are cases where this has occurred.
  At trial the witness identifies the defendant, the innocent man, even 
though the prosecution has in its possession the evidence that another 
witness identifies someone else as having committed the crime. But at 
trial, the second witness identifies the defendant, the innocent man.
  In addition, the witness testifies that he has never met the 
defendant before when, in fact, the prosecutor knows that the witness 
harbors a grudge against the defendant, the witness who identifies the 
defendant.
  Now, the prosecutor goes ahead and does not tell the defense about 
the details of what the witness previously said, that he previously 
said, no, I identify somebody else, and where the prosecution knows 
that the identifying witness has a grudge against the defendant.
  The State courts go ahead and uphold the conviction anyway, reasoning 
that the truthful evidence would not actually prove the defendant 
innocent.
  Let me get this straight now. If in a trial the stenographer here is 
accused of killing John Doe and the prosecutor interviews me as a 
witness. I say no, he did not kill John Doe, Charlie Smith killed John 
Doe. But then I say, no, I change my mind. I think he did kill John 
Doe.
  The prosecutor investigates and finds out that the stenographer and I 
have hated one another for the last 20 years, or I have held a grudge 
against the stenographer because he took down one of my speeches 
incorrectly.
  They never do that, I might add.
  Now, the prosecutor does not tell the defendant about my grudge 
against the defendant and about the fact that I initially identified 
somebody else. So, now there is a trial and he is convicted.
  After the conviction takes place, he files a petition for the writ of 
habeas corpus and proves that this information was withheld from him; 
that it would have made a difference to the jury. And the State court 
of Delaware says: No, no, even if that is true, it does not prove that 
he is innocent. It just proves that I have a grudge against him and it 
just proves that the prosecution was not totally honest. But it does 
not prove his innocence. Therefore, hang him. Or, in Delaware, lethal 
injection.
  Now, the fact of the matter is under the language of this bill the 
State court's decision on this issue, that is the scope of the 
prosecutor's duty to turn over the information, would be the absolute 
last word because, as long as the State court decision could be 
described by a lawyer as being reasonable, the Federal court could not 
overturn it. In this example, an innocent man may be put to death 
because, under this bill's provisions, the issue before the Federal 
court would be, was it reasonable for the State court to say that they 
are upholding the conviction because the information withheld would not 
have proved his innocence?
  The probability is the Federal court would have to say that is 
reasonable. It may not be right. We might not have decided it that way, 
but it is reasonable. A reasonable man could say, all right, even if 
the jury had known this, it did not prove his innocence. They still may 
have convicted him. The Republican bill says:

       An application for writ of habeas corpus on behalf of a 
     person in custody pursuant to the judgment of a State court 
     shall not be granted with respect to any claim that was 
     adjudicated on the merits in State court proceedings unless 
     the adjudication of the claim * * * resulted in a decision 
     that * * * involved an unreasonable application of, clearly 
     established Federal law, as determined by the Supreme Court 
     of the United States.

  That is a heck of a standard to have to apply.
  So, I say goodbye to the stenographer. He is off to death row. He 
probably thinks he is off to death row when he has to come out here and 
take down my speeches. But he is off to death row. Because even 
though--even though--the prosecution withheld evidence that goes to his 
innocence, instead of the court saying, ``This would have made it 
difficult for the jury to find beyond a reasonable doubt he was 
guilty,'' which would have been a reasonable conclusion to reach as 
well, they said ``This does not prove that he is innocent so we are not 
going to overturn the conviction.'' So he is gone. Because, as long as 
the State court decision could be described by a lawyer as being 
reasonable, the Federal court has to defer to the State court.
  The effect is there is no habeas corpus review on matters of fact and 
law at a Federal level. My amendment simply strikes this language. It 
leaves in the bill the rest of the reforms--time limits, limits on 
second petitions--but it strikes the deference rule and allows 
[[Page S7842]] the current practice of independent review by the court, 
the Federal court. The Federal court should be able to say in that 
circumstance: We understand what the State court did but under our 
interpretation of the Constitution and his constitutional rights we 
believe that withholding this information was so prejudicial that he 
should get a second trial with all the facts being known. They should 
be able to do that. This would preclude them from doing that.
  I think there are four parts of this long sentence I read up here on 
the board, four parts of this long sentence which have a devastating 
effect.
  (Mr. THOMPSON assumed the chair).
  Mr. BIDEN. First, the language sets out clearly what the general 
principle is. The general principle in this language in the Hatch bill 
is that Federal courts shall not grant a claim that was adjudicated in 
State court proceedings. That is what is at the top. It seems to me 
that is what the sponsor of this bill views as the most desirable 
outcome in a habeas petition. Of course, this is directly contrary to 
the purpose of habeas corpus, which is to have Federal courts, and in 
particular the Supreme Court, decide issues of Federal constitutional 
law.
  The second problem, in this instance, the bill seems to allow an 
exception to the general rule but one that is likely to be illusory 
because a claim can be granted only if the State court's application of 
Federal law to the facts, before it was unreasonable, not merely wrong 
but unreasonable. It could be wrong but viewed as reasonable. This is 
an extraordinary deferential standard to the State courts, and I 
believe it is an inappropriate one. It puts the Federal courts in the 
difficult position of evaluating the reasonableness of a State court 
judge rather than simply deciding whether or not he correctly applied 
the law, not whether he did it reasonably. You can have a reasonable 
mistake. They could reasonably conclude that on a constitutional 
provision, it should not apply, when in fact the Supreme Court would 
rule it must apply. Reasonable people could have reached the conclusion 
prior to the application of the Miranda decision that it was reasonable 
not to tell someone their rights. That is a reasonable decision. It may 
not be born out of animus. The Supreme Court said no. You have to tell 
people their rights. A reasonable standard of review is the lowest 
standard used by Federal courts.
  In reviewing the constitutionality of statutes, for example, in cases 
where courts used the reasonable or rational standard, it looks only at 
whether there is any rational basis supporting the statute. It is a 
cursory standard of review. In fact, looking at thousands of cases 
since the late 1930's, our Supreme Court has found--to the best of my 
knowledge--no statute invalid when they have applied the reasonable 
standard.
  Reasonable people, like Senator Hatch and I, are going to be arguing 
on the floor about the regulatory reform bill and about the takings 
clause and all of those issues, right now if the U.S. Congress passes a 
law saying you cannot have more than 2 parts per billion of a 
carcinogenic substance in the liquid effluent coming out of your 
factory, the Supreme Court says not whether that does or does not cause 
cancer, they say it is reasonable for those folks in the Senate and the 
House to conclude that is dangerous and, therefore, they will uphold 
the statute.
  It is the lowest standard. It is one thing to apply that when we are 
protecting the public against environmental pollution. It is another 
thing when we are applying that standard to the application of 
constitutional rights to individuals. There we have always applied the 
highest standard. The Government has been required to meet the highest 
standard before they can put someone in jail or put them to death. This 
reasonableness standard reduces to its lowest common denominator.
  The court also uses a reasonableness standard in reviewing Federal 
agencies' interests, and the administrative statutes. I will not get 
into it now. But the Chevron case and others are cases we debated about 
whether or not, in applying civil law, which standard we should apply. 
But the bottom line is this, folks. If the standard is reasonableness, 
it is the lowest common denominator. And, if the Federal court is 
required to give deference to a State court on the grounds that it 
acted reasonably as opposed to correctly, a lot of folks--I should not 
say a lot; I do not know how many--but there will be individuals who 
will be put to death where they otherwise would not have been put to 
death if the Federal court were able to apply the standard that 
determines their ability to go back and look at the facts and the law 
and make an independent judgment.
  By the way, let me say the whole reason to have the ability of a 
defendant to go into Federal court is to allow Federal judges to apply 
the Federal Constitution and determine whether they think the State 
court applied it correctly. But if you limit what they can look at and 
the standard they use in review, you have in effect undercut the very 
rationale for allowing the defendant to get into that Federal court in 
the first place.
  The third problem with this language is the bill's reasonableness 
exception is limited not only by the requirement that the decision must 
have been unreasonable, but that it must have been unreasonable in 
light of Supreme Court law. So even if there is a Federal court 
decision directly on point, the State court could ignore it as long as 
the application of law had not been directly decided by the Supreme 
Court.
  As the Presiding Officer knows, as a former prosecutor and a first-
rate trial lawyer, there are a number of lower Federal court decisions 
that never get to the Supreme Court because no one bothers to conclude 
that they were wrongly decided. And they are accepted as Federal law. 
In this case, you could have all the districts or the circuits agreeing 
on one application of the law, and the State court ignore what the 
Federal courts have said because there is no Supreme Court decision on 
point. That seems to me to be a very dangerous precedent. Even so, if 
there is a Federal court decision directly on point, under this 
language, the State court could ignore it as long as the Supreme Court 
has not spoken to it. In other words, State courts could ignore the 
decisions of the lower U.S. courts interpreting the Constitution 
without any prospect of being corrected by Federal courts.
  For example, an appeals court recently held that a defendant cannot 
be prosecuted criminally and have his property forfeited under the 
civil forfeiture laws because of the double jeopardy clause prohibiting 
that. That ruling is clear. It is unambiguous. But it is not a Supreme 
Court ruling. Under this bill, a State court, which subsequently 
refused to follow that interpretation, could not be corrected by habeas 
corpus review because it could never get back into the Federal court 
system.
  This limitation on Supreme Court laws is particularly nonsensical 
because the Supreme Court generally does not accept for review 
decisions by circuit courts of appeal unless there is a split in the 
circuits, as the Presiding Officer knows. If all the circuits agree on 
a principle of law, the Supreme Court would have no reason to address 
it.
  So under this standard that we are about to write into the law, a 
State court could ignore a rule that all the circuit courts agreed on 
and no Federal court could correct that State decision. That is 
preposterous; maybe unintended, but that is the effect.
  Fourth, the exception to the general rule in habeas shall not be 
granted if the State court ajudicating the claim is further narrowed by 
the language in the statute requiring that the Federal law at issue 
must have been clearly established. Not only must the decision of the 
State court have been unreasonable, and not only must it have been 
unreasonable in light of Supreme Court law, not Federal law, but it 
must have been unreasonable in light of Supreme Court law that is 
clearly established.
  The one thing we know is that where lawyers are involved, there is 
little that can be said to be clearly established. So where the 
application of a U.S. Supreme Court decision to a new set of facts is 
unclear, the State court need not worry about it.
  For instance, the Supreme Court quite logically has held that the 
prosecution must give to the defendant any evidence it has that is 
favorable to him. It is called justice--justice. This is not a game. 
Prosecutors are not [[Page S7843]] there to determine whether they can 
win. They are there to do justice. And so the Supreme Court has said 
that, if the prosecution has at its disposal evidence that goes to the 
innocence of the defendant, that has to be made available to the 
defendant. But is a certain kind of evidence favorable to the accused? 
That might not be clearly established. And so the State courts will be 
free to go their own way.
  For example, a clear case would be assume that in the State court, 
the prosecutor had evidence there were two witnesses at the same time 
who said the defendant did not do it. Well, they cannot withhold that 
from him. But they may conclude at the State court level that they have 
evidence there is a motel receipt that indicated the defendant was at 
such and such a place when this crime was committed. They can 
reasonably conclude at a State court level we really do not think that 
goes to the innocence, that is not favorable to the defendant, that is 
a marginal question so we are not going to tell him.
  Now, what you have to do, if you are filing a Federal habeas corpus 
appeal to get them to go back and get them to look at that, you have to 
prove that judgment was unreasonable even though there is a Supreme 
Court decision out there saying you have to make things that are 
favorable to the defendant available to the defendant, because it is 
not clearly established law, because it is not around long enough to 
have been applied to 10, 20, 30 fact circumstances.
  Now, it seems to me that we are requiring an awful lot of hurdles and 
limitations on what a Federal judge can look at once we get to court. 
Again, keep our eye on the ball here. We are not talking about 
successive abilities to get into Federal court. We are not talking 
about extended time limits to get into Federal court. We are not 
talking about whether or not you can get into Federal court repeatedly. 
We are only talking about when you get to Federal court what is the 
Federal judge able to look at. And right now the Federal judge is able 
to look at the whole thing from ground up if he wants to. He can make 
an independent decision based on what the specific statement by the 
defendant is in his petition as to why they should be granted a new 
trial. They can go back and look at the facts in the case and the law 
and apply them in conjunction with one another.
  So let me summarize what I think this language in the Hatch bill 
says. First, it states that habeas relief cannot be granted by a 
Federal judge if a State court has adjudicated the claim, which is 
directly contrary to the entire purpose of Federal habeas corpus.
  Second, it creates what looks to be an exception but one that is 
largely illusory. It requires that a State court merely behave 
reasonably--not correctly, reasonably. It requires that a State court 
merely act reasonably in relation to a Supreme Court decision, not in 
relation to decisions of lower Federal courts in their State. And it 
requires them to act reasonably only if the Supreme Court law can be 
said to be clearly established. All this amounts to is that State 
courts in almost every case will be free to reach virtually any 
decision without any chance of Federal review later. This rule, the so-
called rule of deference, turns habeas on its head. The purpose of 
habeas is to correct State court errors. But if Federal courts have to 
defer to State court decisions, they will not be able to correct their 
mistakes except in the most egregious circumstances.
  Now, through the years we have fought in this Chamber battles over 
the so-called full and fair standard, essentially what Senator Kyl had 
introduced. At least he was straightforward and blatant about it. He 
said: Look, my purpose here is to do away with any State prisoner being 
able to get into a Federal court, period, and because the Constitution 
says you can go to the Supreme Court under rare circumstances, I am not 
going to try to eliminate it. But he said 40 percent of the delay is in 
Federal court, so what I am going to do is do away with the ability to 
get into Federal courts.
  Straightforward. This provision suggested by my Republican friend 
essentially does the same thing, making it sound like we are really 
letting someone get in.
  Admittedly, the most egregious cases, which would not be captured by 
the Kyl amendment, would be captured in this amendment. But the vast 
majority of cases are in a gray area. And again my proposal to delete 
this standard will in no way slow the process up and will in no way 
increase the number of opportunities that a prisoner has to file a 
petition.
  While this language looks different than full and fair, the language 
in this bill would have virtually the same effect. It would prevent 
Federal courts from granting relief for a violation of the Federal 
Constitution because it would require deference to the State decision 
unless that decision were unreasonable. Being wrong would not be enough 
to get it overturned. It would have to be unreasonable.
  If I can make an analogy to the Presiding Officer--who is the only 
one here at the moment and so that is why I am speaking to him, 
although I always like to speak to him--it is like this deal with good-
faith exceptions to the fourth amendment, search and seizure. All of a 
sudden, by the way, my friends on the right side of the Chamber, my 
right and on the ideological right, all of a sudden are beginning to 
realize: Wait. Maybe we do not want to do away with that so quickly. 
But at any rate, there is an exception that if a cop violates the 
fourth amendment but did it in good faith, it should be admissible in 
court.
  Well, you can theoretically argue that makes sense. But how about 
where a court wrongly but in good faith, in good faith wrongly decides 
a provision in the Constitution, wrongly decides it, the result of 
which is the person goes to death. Are we going to reward ignorance? 
Are we going to reward reasonableness just because it came from the 
State? It may be reasonable that he reached that decision but wrong. 
Wrong. This would preclude Federal courts from looking at the merits--
whether it was wrongly decided. They only get to do it if it meets the 
threshold that it was an unreasonable application of the facts and the 
law.
  When the Supreme Court announces a constitutional wrong such as the 
right of the defendant to know about evidence held by the prosecutor 
that suggests he is innocent, it necessarily leaves open the question 
of how that general rule applies to specific facts. Does that mean 
evidence that could be used to impeach a witness must be turned over? 
How strong does the evidence need to be before the requirement kicks 
in? The Supreme Court cannot possibly decide all of these issues in one 
case.
  But lawyers arguing in courts will be able to come up with all sorts 
of different ways of applying that general rule in individual cases. 
And many of those ways of applying them may be reasonable. That means 
that Federal courts will be unable to review State decisions through 
habeas corpus and begin to establish some uniform law in that portion 
of the country. Instead, virtually any decision a court reaches will 
have to be considered acceptable solely because it was reasonable.
  I ask everybody listening to this, do we want 25 different 
interpretations of what is reasonable? Do we want 25 or 50 different 
versions of what is reasonable? That flies in the face of the notion of 
a uniform application of the only unifying document that exists in our 
Nation, the U.S. Constitution. This would mean that the Federal 
Constitution would be determined by State court judges.
  Placing primary responsibility for the Federal Constitution in the 
hands of State courts is a dramatic departure from this country's 
historical principle, and that is that it is the Federal courts that 
should be the final arbiters of Federal law. It would relegate us to a 
system in which the 50 State court systems and in fact the individual 
judges within those systems are the separate and ultimate arbiters of 
what the Constitution means.
 The meaning of the Federal Constitution could be different, depending 
on what State you are in.

  Independent review is the only sensible approach, I suggest. Even 
Justice O'Connor has said in rejecting a judicially created full and 
fair rule--which is what this rule is--that:

       We have never held in the past that Federal courts must 
     presume the correctness of State court legal decisions.

  Let me stop there and read it again:

[[Page S7844]]

       We have never held in the past that Federal courts must 
     presume the correctness of State court legal decisions.

  This requires us to presume--presume--the correctness of State court 
decisions. I am not certain that the State of Mississippi would apply 
the Constitution the same way the State of New York would, as the State 
of California would, as the State of New Hampshire would. I do not know 
if anybody else is very sure of that.
  Let me go on and read the entire quote from Justice O'Connor:

       We have never held in the past that Federal courts must 
     presume the correctness of State court legal decisions or 
     that State courts' incorrect legal determination has ever 
     been allowed to stand because it was reasonable. We have 
     always held that Federal courts, even on habeas, have the 
     independent obligation to say what the law is.

  That is the Federal constitutional interpretation by the Supreme 
Court. I quote her again:

       We have never held . . . that State courts' incorrect legal 
     determination has ever been allowed to stand because it was 
     reasonable.

  This would allow incorrect State court decisions to stand because 
they are reasonable, although incorrect.
  That quote, I might add, was from Wright versus West, decided in 
1992. Even Justice Rehnquist----
  The PRESIDING OFFICER. All the time of the Senator from Delaware has 
expired.
  Mr. BIDEN. Mr. President, I ask unanimous consent, although I have 
much more, that I be allowed to have 7 more minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BIDEN. Mr. President, even Justice Rehnquist publicly stated that 
this full and fair doctrine goes further than is wise, and the Supreme 
Court, reflecting that view, has on at least five occasions refused to 
apply this doctrine. Let me give some of the cases.
  The effect of the deference rule is best illustrated, I think, by 
looking at some of the real-life cases. The last time the Federal 
courts were required to defer to State courts, we executed an innocent 
man. That was in 1915. There is a chart I have to illustrate that.
  Leo Frank, a Jewish man, had been convicted and sentenced to die by a 
jury intimidated by an angry lynch mob outside the courtroom. The mob 
could be heard inside the courtroom. Mr. Frank's lawyers were so 
intimidated that they left the courtroom at times because they feared 
for their lives.
  Nevertheless, the State court reviewing the conviction concluded the 
trial had been fair and upheld the conviction. A majority of the 
Supreme Court voted to uphold the conviction and, after determining 
that they were required to defer to the State court decision, upheld 
the conviction. The dissenters thought independent review was 
appropriate and, on that basis, they concluded that the State court 
decision was wrong.
  The Supreme Court applied the rule of deference in 1915, and Mr. 
Frank was killed in prison by an angry mob, and later the actual 
offender confessed and Frank was posthumously pardoned. But because of 
the deference rule, an innocent man was executed, and that is what is 
at stake today. We are talking about going back to the 1915 standard.
  Several years later, after the Frank case in Moore versus Dempsey, 
1923, the Supreme Court was faced with another similar case. Again, 
this time several African-American men were on trial for murder, which 
they claim was self-defense, when a mob attacked them in their church 
and set the church on fire. At the trial, the same mob armed and 
surrounded the courthouse. The State court held that there had been no 
violation of the constitutional right to a fair trial by an impartial 
jury, notwithstanding those little incidental facts.
  This time, the Supreme Court rejected the deference rule and 
concluded that independent review is required and the dissenters argued 
that the Federal court should defer to the State court decision and 
voted to uphold the conviction.
  Many years later, in the famous 1953 case of Brown versus Allen, the 
court considered a case in which the defendant had confessed after 
being subjected to psychological and physical coercion, sleep 
deprivation, and other types of pressure that put the confession and 
the resulting conviction in serious doubt.
  The State court found the confession to be voluntary, notwithstanding 
the circumstances. The Supreme Court overturned the conviction, 
applying independent review. Had they been required to apply this 
standard, they would have been required to hold that person guilty, 
even though he had been subjected to psychological and physical 
coercion and sleep deprivation before the confession was granted.
  These Supreme Court cases, and others I will not take the time to go 
into, illustrate in concrete terms what the effect of the deference 
rule is. There are also lower court cases in which habeas relief has 
been granted. These cases would be decided differently under the 
deference rule.
  Consider the recent case of Herrera, who was convicted of murder and 
sentenced to death. The State court denied his appeal and the habeas 
petition. A few months ago, a Reagan appointee of the Federal bench 
granted habeas relief because the prosecutor had threatened and 
intimidated witnesses and failed to disclose evidence that proved Mr. 
Herrera innocent and knowingly used false evidence in a closing 
argument to the jury.
  That was not some wacko liberal judge appointed by a liberal 
President. That was a judge appointed by Reagan. If, in fact, this law 
had existed at the time, he would not have been able to make that 
judgment. For instance, one woman told the police Herrera had not 
committed the killing. She was threatened by a police officer who said 
he would take away her daughter unless she cooperated. The prosecutor 
knew this. The prosecutor also insisted she change her testimony to 
implicate Herrera, and the judge found many other such violations of 
law, but the State court concluded, no, he was guilty; the conviction 
should stand.
  The Federal court corrected it. Based on this severe misconduct, this 
Reagan-appointee judge said but for the conduct of the police officer 
and the prosecutor, either Herrera would not have been charged with the 
offense or the trial would have resulted in acquittal. The prosecutor's 
misconduct was designed to obtain a conviction and another notch in 
their guns despite the overwhelming evidence that another man was the 
killer and the lack of evidence pointing to Herrera.
  This remarkable finding that a constitutional violation would put an 
innocent man on death row would not have occurred under the Hatch-
Specter bill. The same claims had been made to the State courts. There 
was nothing new in the Federal court habeas petition, but the State 
court found that they did not amount to a constitutional violation. If 
the bill's deference rule had been in effect, the Federal judge would 
have been foreclosed from correcting the State court's decision and 
saving an innocent man's life.
  Let me pose the question to Senator Hatch. In the Herrera case, the 
court was confronted with various questions, including whether the 
conduct of the police officer, when intimidating witnesses and 
withholding evidence, amounted to a violation of the Constitution.
  I would like to ask him when he comes back, would not his bill, which 
requires deference to the decisions of the State court, have prevented 
the judge from granting Federal habeas relief?
  Mr. HATCH. As I understand it, it is the Herrera case.
  Mr. BIDEN. It is the Herrera case.
  Mr. HATCH. I do not think so. The fact of the matter is, let me just 
take a second and look at that Herrera case.
  Mr. BIDEN. I would like to describe another case: Fred Macias. He was 
convicted of murdering two people in their homes. The main evidence was 
the testimony of another man who admitted having been in the house when 
the murder occurred, but who then claimed Macias was with him and 
committed the murder. Macias' lawyer did such a poor job. He did not 
investigate and discover a credible witness who provided an alibi.
  The State court rejected Macias' claim that his lawyer had failed to 
give him an effective representation. Only when a Federal court looked 
at the fact an innocent man was facing the death sentence was the 
conviction thrown out. [[Page S7845]] 
  The prosecution still tried to reindict Macias, but on being 
presented with all the evidence, a grand jury in that same jurisdiction 
refused to indict Macias again.
  Again, as I read the Hatch-Specter bill, the Federal court would have 
been forced to defer to the State court. So I would like to also point 
out another case, that of Hurricane Carter, which has been referred to.
 Carter was convicted of the murder of three people--despite the fact 
that he did not match the physical description of the killers, and was 
sentenced to life in prison.

  The prosecution used the eyewitness testimony of a thief who at first 
denied seeing Carter at the scene. But the police then showed the 
witness a manufactured lie detector test that falsely showed he was 
lying.--In the face of this pressure, the witness changed his 
testimony. The fact that the witness had been pressured into his 
testimony using a false lie detector was not disclosed to the 
defendant, and was concealed from the jury.
  The New Jersey Supreme Court upheld the conviction--but the Federal 
courts concluded that the prosecutor had unconstitutionally withheld 
evidence favorable to Carter. After habeas was granted, the State 
dismissed the indictment rather than seek a retrial in which it would 
have to give all the evidence to the defendant.
  The deference rule in this bill would have prevented the Federal 
courts from correcting the State court's decision that the prosecutors 
had not violated the Constitution.
  In fact, in that case, the State of New Jersey tried to win the case 
by arguing that the Federal court should defer to the State court. The 
Federal court instead exercised independent review, and ruled for Mr. 
Carter.
  Let me also discuss the case of Walter McMillian. McMillian was 
convicted of murder and sentenced to death. The main evidence at trial 
was the testimony of a white man who claimed to have been an 
accomplice, and who was granted immunity. Two other witnesses testified 
that they had seen McMillian's truck in front of the dry cleaners. The 
jury ignored the testimony of a number of friends and family members 
who said he was at a fish fry.
  After trial, a new investigation showed that the alleged accomplice 
who testified against McMillian at trial did not even know him at the 
time of the offense.
  That, in fact, he had denied McMillian's involvement in three 
interviews before finally fingering McMillian.
  That witnesses who claimed to have seen McMillian's low-rider truck 
could not have done so since the truck was not a low-rider at the time 
of the offense.
  That the accomplice had complained to prison doctors that he was 
being pressured to frame McMillian, and that the doctors told the 
prosecutors about this before trial.
  And that the State had interviewed other inmates who said the 
``accomplice'' had told them he was going to frame a man.
  The new investigation into the McMillian case showed that all of this 
evidence was withheld from the defendant at trial.
  Despite this new evidence, the Alabama trial court refused to grant 
relief, turning down the constitutional claims about perjured testimony 
and Government misconduct. Eventually, the Alabama Appeals Court 
reversed. But, had the Alabama Appeals Court come out the other way, 
the deference language would have barred the Federal court from 
preventing the execution of an innocent man.
  While my colleagues rightly point out the crush of repetitive 
petitions--many of which are frivolous, they leave the impression that 
habeas is no longer needed.
  The cases I have just described demonstrate how important it is to 
preserve independent Federal review. While most State courts try to 
apply the law properly, sometimes they fail because of police or 
prosecution misconduct, or simply because they make mistakes.
  Here are a few more examples of recent cases in which Federal courts 
granted habeas relief:

       In Brown versus Lynaugh (5th Cir. 1988), Habeas relief was 
     granted because the presiding judge left the bench, took the 
     witness stand and provided evidence against the defendant. 
     Even though that type of conduct seems to make the trial 
     patently unfair, the State court didn't think so. The rule of 
     deference has prevented the Federal Courts from correcting 
     that error.
       In McDowell versus Dixon (4th Cir. 1988), the conviction of 
     a dark-skinned African American was reversed because the 
     prosecutor had withheld eye-witness statements that the 
     assailant was white. The state courts found that this error 
     did not deprive the defendant of a fair trial. The Federal 
     court overruled and granted habeas relief. The deference rule 
     would have prevented the Federal courts from granting relief.

  These cases demonstrate that habeas corpus is still needed--and that 
injustices continue to occur. Without habeas, those injustices would be 
left to stand uncorrected.

                               conclusion

  Everyone agrees that there is a need to end the delays and that the 
current system just doesn't work right. But I also think everyone would 
agree that we should have a fair process--one that does not execute 
innocent people.
  We know that most prosecutors and most law enforcement officers are 
honorable. Most cases proceed fairly, and we can have confidence in the 
result.
  But occasionally, prosecutors or cops act in bad faith--and there are 
cases which have demonstrated that. And, as we all know, our judicial 
system can make mistakes--and has done so.
  The recent case of Kirk Bloodsworth is one example. Bloodsworth was 
convicted and sentenced to death for the rape and murder of a young 
girl. After a new trial, he was again convicted and sentenced to life 
in prison. Subsequent DNA testing confirmed his innocence. Bloodsworth 
lost 9 years out of his life because of an error in our legal system. 
He was lucky to escape with his life.
  Mistakes do happen. Innocent people are convicted and sentenced to 
die.
  Habeas corpus has existed to correct such errors--and to ensure that 
there will never be another Leo Frank--that there will never be another 
innocent person--man who is executed.
  I urge my colleagues to support this amendment.
  I hope that the Senator from Utah, when he gets an opportunity, will 
respond to my question relating to the case I raise. I thank the Chair 
for the time.
  I yield the floor.
  Mr. HATCH. Mr. President, this chart, I think, says about everything 
that needs to be said on this. Everything that Senator Biden has said 
can be answered by the Specter-Hatch bill. These are the inmates on 
death row versus the actual executions. There were 2,976 inmates on 
death row as of January 1995. The yellow bar on the chart shows 281 
executions since 1977. There are multiple frivolous appeals in almost 
every one of these almost 3,000 death row cases. If they lose on one, 
they conjure up another one, and then they conjure up another one, and 
they conjure up another one, just like Andrews in Utah--18 years, 30 
appeals. Every one of them were frivolous; every one was denied. No 
question of guilt. No question of problems. No question he did the 
murders. Yet, it took 18 years. And every time he brought up a habeas 
corpus petition, the victims and their families had to relive the whole 
murder situation again. You wonder why people in this country are 
worried about the laws and do not believe in them.
  There is no finality, no way of solving these problems. It is a 
farce. Why is it? Because liberal judges--and I have to say active 
defense lawyers who are doing their jobs under a system that allows 
this charade to go on and on--continue to allow this to happen because 
they do not like the death penalty.
  I think we ought to face that death penalty straight up and down. If 
you have arguments against the death penalty, I understand that. I know 
there are two sides to it. I do not like it myself, except in the most 
heinous of cases. I would never use it unless it was a really heinous 
case, like the Andrews case, or like any number of other cases, like 
the Manson case. He was saved by the Furman case, the Supreme Court 
case where we had a temporary law on whether or not the death penalty 
is to be inflicted. There are many others you can talk about.
  Mr. President, I have to oppose this amendment. It is offered to 
modify the standard of habeas corpus reform that we have proposed in 
this antiterrorism [[Page S7846]] bill. Our present system of 
multilayered State and Federal and collateral appeal has resulted in 
enormous delays. I have just made the case between sentencing and 
judicial resolution as to whether the sentence was lawful, without any 
improvement in the quality of the adjudication. The resulting lack of 
finality saps public confidence in our criminal justice system and 
undermines the proper roles of the State and Federal Government. I know 
there are people here who believe that only the Federal courts tell the 
truth. That just is not true. State courts, in many respects, are just 
as good, if not better, than the Federal courts--in these areas, just 
as good. I get a little tired of the Federal courts being demeaned and 
maligned because, basically, people do not like the death penalty.
  A system incapable of enforcing legally imposed sentences cannot be 
called just and must be reformed. I mentioned in my home State of Utah, 
for example, the William Andrews case. He delayed imposition of a 
constitutionally imposed death sentence for 18 years, and we went 
through 30 appeals, and the survivors--I think there was one where they 
poured Drano down his throat. There were others, too, and they would 
drive pencils through their eardrums before killing them. This survivor 
had to be there each time and had to go through it each time, had to 
have it recollected each time. There was no question of guilt, no 
question of the sentence, and no question it was constitutional. Yet, 
it took 18 years and 30 appeals and millions of dollars to get done. He 
was not an innocent person seeking freedom from an illegal punishment. 
Rather, he committed a particularly heinous crime and simply wanted to 
frustrate the demands of justice.
  The Andrews case is hardly an isolated example. As I have said, as of 
January 1995 there were almost 3,000 people on death row. Yet the 
States have executed only 263 since 1973--38 last year. Now, Federal 
habeas corpus proceedings have become, in effect, a second round of 
appeals in which convicted criminals are afforded the opportunity to 
relitigate claims already considered and rejected by the State courts.
  The abuse of habeas corpus litigation, particularly in those cases 
involving lawfully imposed death sentences, has seriously eroded the 
public's confidence in our criminal justice system. It has drained our 
State criminal justice resources and has taken a dreadful toll on the 
victims' families and those who have to live through that every time 
there is a habeas petition found.
  The single most important provision contained in the habeas reform 
proposal in S. 735, the bill today, is the standard of review that this 
provision has. It determines the degree of deference the Federal court 
will give to the decisions of a State court.
  I notice the standard of review on the habeas proposals by the Biden 
staff-prepared poster. It says that Specter-Hatch requires Federal 
courts to defer to State courts in almost all cases, even if the State 
is wrong about the U.S. Constitution. That is absolutely false. The 
fact of the matter is, currently, Federal courts have virtual de novo 
review of a State court's legal determination. Under our change, 
Federal courts would be required to defer to the determination of State 
courts, unless the State court's decision was ``contrary to or involved 
in an unreasonable application of clearly established Federal laws as 
determined by the Supreme Court.'' I will read that again.

       An application for a writ of habeas corpus on behalf of a 
     person in custody pursuant to the judgment of a State court 
     shall not be granted with respect to any claim adjudicated on 
     the merits in a State court proceedings unless the 
     adjudication of that claim (1) resulted in a decision that 
     was contrary to or involved an unreasonable application of 
     clearly established Federal laws as determined by the Supreme 
     Court of the United States or (2) resulted in a decision that 
     was based on an unreasonable determination of the facts in 
     light of the evidence presented in the State court 
     proceeding.

  This is a wholly appropriate standard. It enables the Federal court 
to overturn State court positions that clearly contravene Federal law. 
It further allows the Federal courts to review State court decisions 
that improperly apply clearly established Federal law. The standard 
also ends the improper review of the State court decisions.
  After all, State courts are constrained to uphold the Constitution 
and faithfully apply Federal law as well. There is simply no reason 
that Federal courts should have the ability to virtually retry cases 
that have been properly adjudicated by our State courts. There is no 
reason to allow Federal courts to do that. If you talk to your State 
attorneys general, they will tell you that a review standard is the 
single most important provision of our bill. Meaningful reform will 
stop repeated assaults upon fair and valid State convictions through 
spurious petitions filed in the Federal courts. We cannot stop the 
spurious petitions without changing the standard under which these 
petitions are reviewed.
  If the Biden amendment passes, we are back to business as usual, 
except for some time constraints. Even then it is business as usual, 
because there will be repetitive frivolous appeals allowed by the 
liberal judges in almost every case brought to them where they can make 
any kind of a claim, regardless of whether it is legitimate or not.
  It happens all the time now. People are fed up to here with it and 
are sick of it. That is why this issue is so important. We have the 
balance of the procedural protections afforded to defendants against 
the need for maintaining the integrity of the finality of decisions of 
our State courts.
  Mr. President, I think that part of the disagreement we have with 
respect to the appropriate standard of review in habeas petitions 
involves differing visions as to the proper role of habeas review. 
Federal habeas review takes place only after there has been a trial.
  A direct review by the State appellate court, usually in intermediate 
court, another direct review by the State supreme court, then a third 
review or fourth review by the U.S. Supreme Court on a petition for 
certiorari. Thus we have a trial in at least three levels of appellate 
review, four different ways of protecting the rights of the defendant.
  In a capital case, the petitioner often files a clemency petition, so 
the State executive branch also has an opportunity. That is five: The 
trial, the initial appeal to the intermediate court, the State supreme 
court, the petition to the Federal Supreme Court, and the petition for 
clemency to the Governor. Five different protections for the defendant. 
Those are the direct appeals.
  Then we give them separate habeas appeals all the way up to the State 
courts again, all the way up to through the Federal court again.
  I notice the distinguished Senator from Pennsylvania was at an 
Intelligence Committee hearing and needs to get back there. So I will 
interrupt my remarks to grant him 5 minutes for his remarks on this 
very important issue.
  Mr. SPECTER. Mr. President, I thank my distinguished colleague, the 
chairman of the committee, for yielding to me at this time. I have 
worked with him intimately on this legislation.
  As he has noted and I noted earlier, we are in the midst of an 
Intelligence Committee meeting, a committee which I chair, so I 
appreciate his yielding to me for a few moments.
  I have sought recognition to support Senator Hatch and to oppose the 
amendment offered by the distinguished Senator from Delaware.
  This legislation is the result of a great deal of work over many, 
many years. It has been going on since the 1980's. As I commented 
earlier, a habeas corpus reform bill was passed by the U.S. Senate in 
1990, but it did not survive a conference with the House of 
Representatives.
  Legislation to reform habeas corpus has been considered and 
reconsidered each year for many years. The provision which is being 
debated now, I think, is a reasonable compromise. It is not my absolute 
preference on the kind of language that I would have chosen had I 
written the bill alone, but I think it is a reasonable compromise.
  Part of my concern is that when we change the standards it breeds a 
lot of new litigation to have interpretations of untested language. I 
think there is substantial latitude here for interpretation. 
[[Page S7847]] 
  Current law gives significant deference on questions of law and on 
factual determination to State court determinations. Under the current 
bill, I think there is still a good bit of latitude which the Federal 
judge will have when he makes a determination under a habeas corpus 
petition. There will be deference to the determinations of the State 
court, but the Federal judge will still have latitude to alter the 
State court decision in any case in which the Federal judge determines 
that it was contrary to or involved an unreasonable application of 
clearly established Federal law as determined by the Supreme Court of 
the United States, or resulted in a decision that was based on an 
unreasonable determination of the facts in light of the evidence 
presented in the State court proceedings.
  So there still is latitude for the Federal judge to disagree with the 
determination made by the State court judge. It is my sense, having 
litigated these cases as an assistant district attorney years ago, in 
the Federal and State courts, that where there is a miscarriage of 
justice, the Federal court can come to a different decision than was 
made in the State court proceedings.
  The language in the habeas corpus reform bill passed earlier this 
year by the House is even more restrictive than the language in the 
Senate bill. The House bill contains a provision that precludes the 
granting of a writ of habeas corpus unless the State court's decision 
is arbitrary. This is an even more restrictive standard than that in 
the Senate bill.
  Mr. President, in the legislation which is pending before us, there 
are provisions which I consider a step backward from the bill which 
passed the Senate in 1990, which would have eliminated the requirement 
of exhaustion of State court remedies.
  Were I to craft a bill myself, I would not require an exhaustion of 
State court remedies before the filing of a Federal habeas corpus 
petition because if that exhaustion requirement were not present there 
would be a much more orderly and a prompt disposition of these 
contested issues.
  Were exhaustion of State remedies not necessary, we would not have 
the interminable tennis match back and forth between the State and 
Federal courts as illustrated by the Pennsylvania case of Peoples 
versus Castille, which is illustrative of the complexity of bouncing 
back and forth between the courts.
  In the Peoples case, the defendant was convicted in the State court 
of aggravated assault. The conviction was reviewed and upheld by the 
Pennsylvania superior court, an intermediate appellate court. Then the 
case went to the Supreme Court of Pennsylvania on what is called an 
allocatur application, a request for review. The Supreme Court of 
Pennsylvania denied the petition for allocatur but the court may do so 
either considering the case on the merits or refusing to hear it as a 
discretionary matter.
  The defendant then sought a writ of habeas corpus from the U.S. 
District Court for the Eastern District of Pennsylvania, which sent the 
case back to the State court, holding that Peoples had failed to 
exhaust his available State remedies because it was unclear whether the 
Pennsylvania Supreme Court had considered the merits in denying 
allocatur.
  The case then went from the district court to the court of appeals 
which reversed the district court, saying that there had been an 
adequate exhaustion of State court remedies.
  The PRESIDING OFFICER. The time has expired.
  Mr. HATCH. I yield an additional 3 minutes.
  Mr. SPECTER. The State then went to the Supreme Court of the United 
States which hears few cases. Thousands apply and the year in which the 
court agreed to hear this appeal only about 150 cases were heard. They 
took this case. The Supreme Court of the United States then reversed 
the circuit court and sent the case back to the district court.
  Now, had there been no requirement for an exhaustion of State court 
remedies, the case could have had one hearing in the Federal court, all 
of the issues would have been decided, and I think decided about the 
same way if we did not have State court proceedings, bearing in mind 
that there had already been a full decision by a State appellate court 
which had upheld the judgment of conviction in the first instance.
  What we are really looking at with about 2,900 inmates on death row, 
there were only 38 cases in which the death penalty was carried out. It 
would be very much in the interests of the objective of swiftness and 
certainty to put an end to the long delays. Eliminating the requirement 
of exhaustion of State remedies would go a long way to achieving these 
goals.
  The State prosecutors and the attorneys general, however, disagree 
with my view as to what is in the public interest on the issue of 
exhaustion. We have the same objective. That is, to make the punishment 
swift and certain, to eliminate the long delays which are a detriment 
to law enforcement and undermine the deterrent effect of the death 
penalty, not to have the matter come to closure for the families of the 
victims, and not to harm the interests of the defendants, as 
interpreted by some international tribunals, which say it is cruel and 
unusual punishment to have the cases last longer than 6 to 8 years, an 
issue also raised by two of the current Justices of the Supreme Court, 
as I mentioned earlier today. I will not go into that because of the 
limitation of time.
  The issue of exhaustion of State remedies has been eliminated, 
however, because this bill does not abolish to exhaustion requirement. 
Unlie the resolution of this issue in the 1990 legislation, which 
passed the Senate, which eliminated the requirement of exhaustion of 
State remedies, that provision is not in this bill.
  I refer to that to illustrate how uniformity and consensus cannot be 
achieved on these difficult issues, and different people will have 
different views. But what we come down to at bottom in this legislation 
that is currently crafted, I think, is a realistic compromise. I think 
defendants' rights are protected. There are increased protections in 
this legislation with the appointment of counsel. We have the 
requirement that there are timetables and limitations periods so the 
defendants' rights, the States rights, and the victims' rights are all 
protected.
  I think it is a carefully crafted compromise which ought to be 
enacted to promote the interests of all parties involved. That is why I 
urge my colleagues to reject the amendment offered by the distinguished 
Senator from Delaware on this state of the record.
  I thank my colleague for yielding to me at this time.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I thank my colleague. I have enjoyed 
working with him on this Specter-Hatch habeas corpus reform. Without 
him I do not think we would be nearly as far along as we are, so I want 
to personally thank him for the efforts he has put forward.
  Let me get back to what I was saying. Look at all the reviews these 
cases have: The trial, the direct review to the intermediate court, the 
direct review to the State supreme court, the direct review to the 
Supreme Court of the United States of America, petition to the Governor 
for clemency.
  But that is not the end. In virtually every State a postconviction 
collateral proceeding exists. In other words, the petitioner can file a 
habeas corpus petition in State court. The petition is routinely 
subject to appellate review by an intermediate court and the State 
supreme court. The prisoner then may file a second petition in the U.S. 
Supreme Court and may also, of course, seek a second review of that by 
the Governor. So after conviction we have at least six levels of review 
by State courts, two rounds of review at least in capital cases by the 
State executive.
  Contrary to the impression that may be left by some of my colleagues 
on the other side of this issue, Federal habeas review does not take 
place until well after conviction and numerous rounds of direct and 
collateral review.
  The Supreme Court has clearly held in Goeke versus Branch that habeas 
review is not an essential prerequisite to conviction. Indeed, this 
very term the Supreme Court reaffirmed that principle that the 
Constitution does not even require direct review as a prerequisite for 
a valid conviction, and that is the Goeke case. [[Page S7848]] 
  Now that we have the proper context for this debate, let us look at 
the proposed standard again. Under the standard contained in S. 735, 
Federal courts would be required to defer to the determinations of 
State courts unless the State court's decision was ``contrary to or 
involved an unreasonable application of clearly established Federal law 
as determined by the Supreme Court.''
  That is a wholly appropriate standard. It enables the Federal court 
to overturn State court decisions that clearly contravene Federal law. 
Indeed, this standard essentially gives the Federal court the authority 
to review de novo whether the State court decided the claim in 
contravention of Federal law.
  Moreover, the Federal standard, this review standard proposed in S. 
735, allows the Federal court to review State court decisions that 
improperly apply clearly established Federal law. In other words, if 
the State court unreasonably applied Federal law its determination is 
subject to review by the Federal courts.
  What does this mean? It means that if the State court reasonably 
applied Federal law, its decision must be upheld. Why is that a 
problematic standard? After all, Federal habeas review exists to 
correct fundamental defects in the law. If the State court has 
reasonably applied Federal law it is hard to say that a fundamental 
defect exists.
  The Supreme Court in Harlow versus Fitzgerald has held that if the 
police officer's conduct was reasonable, no claim for damages under 
Bivens versus Six Unknown Agents can be maintained.
  In Leon versus United States, the Supreme Court held if the police 
officer's conduct in conducting a search was reasonable, no fourth 
amendment violation ensues or would obtain, and the court could not 
order suppression of the evidence obtained as a result of the search.
  The Supreme Court has repeatedly endorsed the principle that no 
remedy is available where the Government acts reasonably. Why, then, 
given this preference for reasonableness in the law, should we empower 
a Federal court to reverse a State court's reasonable application of 
Federal law to the facts? If we give that power that Senator Biden will 
give, we have hundreds of judges who do not like the death penalty, who 
are just going to give repeated habeas corpus reviews any time some 
clever defense lawyer demands it--which is exactly what we have today.
  Our proposed standard simply ends the improper review of State court 
decisions. After all, State courts are required to uphold the 
Constitution and to faithfully apply Federal law so there is no reason 
for what the distinguished Senator from Delaware is arguing for.
  He does not believe in the death penalty. I understand that. I 
respect him for that. But the arguments against meaningful habeas 
reform, like we have in this bill, are in reality arguments against the 
death penalty. If that is so, then let us debate the efficacy of the 
death penalty. Let us not continue frivolous appeal after frivolous 
appeal at a cost of billions of dollars in this society, just because 
we do not like the death penalty. Let us decide whether death is the 
appropriate sanction for people like those who murdered 168 individuals 
in Oklahoma City, for whom I am wearing this memorial set of ribbons 
pinned on me by the daughter of one of the victims, somebody, I have to 
say, by whom I was very moved.
  I am prepared to debate the point on whether or not the death penalty 
is an appropriate penalty. But let us not disguise the argument under 
the guise of phony habeas corpus.
  The second argument I think my friends are making is that they 
fundamentally distrust the decisions of the State courts. It is an 
insult to all of the wonderful, fine State court judges around this 
country. They cannot show cases that literally show that the State 
courts cannot do the job.
  Let me just give an illustration. We have heard a lot about the Rubin 
Carter case, ``Hurricane'' Carter. The fact of the matter is we have 
heard all kinds of arguments relating to that case.
  He is supposed to be an innocent individual, falsely held in prison 
despite his innocence. As a trial lawyer, I know that you should always 
be suspicious of alleged evidence offered at the last minute by your 
opponents. And this Carter case is no different.
  Here, at the last minute, we hear about still one more apocryphal, 
highly disputed case on which there is absolutely no agreement 
whatsoever about the guilt or innocence of the defendant.
  First we are told that Carter was falsely convicted in New York--
well, he was convicted for murder--twice, but in New Jersey. Then we 
are told that he served 28 months, when, in fact, he served for nearly 
20 years. And now, we are told, without any supporting proof, that he 
is innocent of the very murders that two juries have found--beyond a 
reasonable doubt--that he committed. And we are supposed to believe 
these unsupported allegations of innocence--allegations made by 
Senators who don't even know what State Rubin Carter was tried in?
  These allegations are directly disputed by the prosecutors in New 
Jersey who know this case best. They are directly disputed by every 
jury and every court that has reviewed this case. And we should 
remember that it was Judge Lee Sarokin--
 a very liberal judge--who was the district judge that released Rubin 
Carter, after nearly 20 years in jail. And he released him not because 
he was innocent, but because of a procedural objection to the 
composition of the jury. An objection raised 20 years after the fact.

  The Carter case does not show the value of Federal habeas corpus--the 
Carter case is a fresh indictment of the current system. It shows more 
clearly than ever, that if you can get your habeas petition before the 
right liberal Federal judge, you can get out of State prison, 
regardless of your innocence or guilt.
  Here is what the New York Times--one of the most liberal papers in 
our Nation--said about Judge Sarokin's decision in the Carter case: it 
said that the judge's decision was ``flawed by excessive lecturing on 
the need for `compassion' and the injustice of a possible third trial'' 
for Rubin Carter. Well, I submit that the Federal courts are not 
empaneled to provide compassion, they are there to provide justice. In 
the area of habeas, they are there to provide a constitutional back-up 
for constitutional issues. The Hatch/Dole bill preserves that function 
of the Federal courts.
  The floor of the U.S. Senate is not the place to determine the guilt 
or innocence of persons involved in highly disputed cases. That is what 
hearings are for.
  Where were these defenders of the alleged innocence of this three-
time murderer when the Judiciary Committee held hearing after hearing 
on the specific question of whether habeas corpus was needed to protect 
innocent prisoners? They were nowhere.
  I have asked witness after witness to show me a case--even one case--
where Federal habeas corpus has been used to free an innocent man or 
woman, and not one case has been cited. Specifically, I asked Chief 
Judge Charles Clark of the fifth circuit if he could name even one case 
that he had ever seen in which Federal habeas corpus had resulted in 
the release or retrial of an innocent man. And he could not. Yet he was 
the chief judge of the largest circuit in the Nation--running from 
Texas to Florida in those days. Not one case.
  So forgive me if I am a bit reluctant to accept today the unsupported 
allegations made on the Senate floor as to the alleged innocence of 
prisoners who have long been held to be guilty of serious crimes.`
  It should also be pointed out that the Carter case rebuts entirely 
the point that the Senator from Delaware has made several times to the 
effect that habeas petitions only result in retrials--they do not 
result in release. So he says. But there was no retrial for Rubin 
Carter--nor could there be after 20 years. He was released outright--
despite the jury verdict that he murdered three individuals.
  (Ms. SNOWE assumed the chair.)
  Mr. HATCH. We can go on and on. There are a number of others. 
Virtually every case brought up--I do not know the Garrett case, but 
every case brought up can be distinguished.
  The Frank case, cited by Senator Biden, involved a lynching. There 
was nothing State or Federal corrective process could have done to help 
Mr. Frank. It was wrong that they lynched [[Page S7849]] him, but it 
happened. That case, decided in 1915, occurred at a very different time 
and under very different circumstances. That is not applicable to this 
debate. We can go on and on.
  Madam President, this is the most important stage in criminal law in 
the last 30 years, and maybe in our lifetime. This is a change to stop 
the incessant frivolous appeals that are eating our country alive. We 
have the chance to really, really do something about this while at the 
same time protecting constitutional rights and civil liberties for 
everybody, and doing it in an appropriate, legally sound manner. This 
amendment will do that.
  I hope we will vote down all of these amendments that we have heard 
debated here today.
  I am prepared to yield back the remainder of my time.
  I yield the remainder of my time.
  I ask unanimous consent that the rollcall vote on the motion to table 
the Biden amendment No. 1253 be the standard 15-minute vote and that 
all remaining stacked votes be limited to 10 minutes each.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Madam President, I ask unanimous consent--I have the 
approval of Senator Biden to do this--on behalf of myself and Senator 
Biden, that all action on amendment No. 1241 be vitiated, the Heflin 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Madam President, do we have rollcall votes ordered on 
every one of the amendments?
  The PRESIDING OFFICER. We have rollcall votes ordered on the first 
three with the exception of 1224.
  Mr. HATCH. I move to table the Biden amendment, and 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.
  Mr. HATCH. Madam President, a rollcall vote is ordered on one which 
is not a motion to table, and the rest are motions to table?
  The PRESIDING OFFICER. The Senator is correct.

               Vote on Motion to Table Amendment No. 1253

  The PRESIDING OFFICER. The question is on agreeing to the motion of 
the Senator from Utah to lay on the table amendment No. 1253 offered by 
the Senator from Delaware [Mr. Biden]. On this question, the yeas and 
nays have been ordered, and the clerk will call the roll.
  The bill clerk called the roll.
  Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad] 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 65, nays 34, as follows:

                      [Rollcall Vote No. 238 Leg.]

                                YEAS--65

     Abraham
     Ashcroft
     Baucus
     Bennett
     Bond
     Brown
     Bryan
     Burns
     Byrd
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Exon
     Faircloth
     Feinstein
     Ford
     Frist
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Helms
     Hutchison
     Inhofe
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Nunn
     Pressler
     Reid
     Robb
     Rockefeller
     Roth
     Santorum
     Shelby
     Simpson
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--34

     Akaka
     Biden
     Bingaman
     Boxer
     Bradley
     Breaux
     Bumpers
     Daschle
     Dodd
     Dorgan
     Feingold
     Glenn
     Harkin
     Heflin
     Hollings
     Inouye
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Packwood
     Pell
     Pryor
     Sarbanes
     Simon
     Wellstone

                             NOT VOTING--1

       
     Conrad
       
  So, the motion to lay on the table the amendment (No. 1253) was 
agreed to.
        vote on motion to table amendment no. 1245, as modified

  The PRESIDING OFFICER. The question now occurs on agreeing to the 
motion to table amendment No. 1245, as modified, offered by the Senator 
from Michigan, Senator Levin. The yeas and nays have been ordered. The 
clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad] 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 62, nays 37, as follows:

                      [Rollcall Vote No. 239 Leg.]

                                YEAS--62

     Abraham
     Ashcroft
     Baucus
     Bennett
     Bond
     Breaux
     Brown
     Burns
     Byrd
     Campbell
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Exon
     Faircloth
     Feinstein
     Ford
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Helms
     Hutchison
     Inhofe
     Johnston
     Kassebaum
     Kempthorne
     Kerrey
     Kyl
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Nunn
     Pressler
     Reid
     Robb
     Rockefeller
     Roth
     Santorum
     Shelby
     Simpson
     Smith
     Snowe
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--37

     Akaka
     Biden
     Bingaman
     Boxer
     Bradley
     Bryan
     Bumpers
     Chafee
     Daschle
     Dodd
     Dorgan
     Feingold
     Glenn
     Graham
     Harkin
     Hatfield
     Heflin
     Hollings
     Inouye
     Jeffords
     Kennedy
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Packwood
     Pell
     Pryor
     Sarbanes
     Simon
     Specter
     Wellstone

                             NOT VOTING--1

       
     Conrad
       
  So the motion to lay on the table the amendment (No. 1245), as 
modified, was agreed to.
                       vote on amendment no. 1211

  The PRESIDING OFFICER. The question is on agreeing to the amendment 
offered by the Senator from Arizona, Senator Kyl.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad] 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 38, nays 61, as follows:

                      [Rollcall Vote No. 240 Leg.]

                                YEAS--38

     Ashcroft
     Brown
     Burns
     Campbell
     Coats
     Cochran
     Coverdell
     Craig
     D'Amato
     Dole
     Domenici
     Faircloth
     Gramm
     Grams
     Grassley
     Gregg
     Helms
     Hutchison
     Inhofe
     Kassebaum
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Pressler
     Santorum
     Shelby
     Simpson
     Smith
     Stevens
     Thomas
     Thurmond
     Warner

                                NAYS--61

     Abraham
     Akaka
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Byrd
     Chafee
     Cohen
     Daschle
     DeWine
     Dodd
     Dorgan
     Exon
     Feingold
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Harkin
     Hatch
     Hatfield
     Heflin
     Hollings
     Inouye
     Jeffords
     Johnston
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Packwood
     Pell
     Pryor
     Reid
     Robb
     Rockefeller
     Roth
     Sarbanes
     Simon
     Snowe
     Specter
     Thompson
     Wellstone

                             NOT VOTING--1

       
     Conrad
       
  So the amendment (No. 1211) was rejected.
               Vote On Motion To Table Amendment No. 1224

  The PRESIDING OFFICER. The question now occurs on the motion to table 
amendment No. 1224, offered by the Senator from Delaware [Mr. Biden]. 
The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad] 
is necessarily absent. [[Page S7850]] 
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced, yeas 53, nays 46, as follows:

                      [Rollcall Vote No. 241 Leg.]

                                YEAS--53

     Abraham
     Ashcroft
     Baucus
     Bennett
     Bond
     Brown
     Burns
     Byrd
     Campbell
     Coats
     Cochran
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Faircloth
     Feinstein
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Helms
     Hutchison
     Inhofe
     Kempthorne
     Kyl
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Pressler
     Reid
     Rockefeller
     Roth
     Santorum
     Shelby
     Simpson
     Smith
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--46

     Akaka
     Biden
     Bingaman
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Chafee
     Cohen
     Daschle
     Dodd
     Dorgan
     Exon
     Feingold
     Ford
     Glenn
     Graham
     Harkin
     Hatfield
     Heflin
     Hollings
     Inouye
     Jeffords
     Johnston
     Kassebaum
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Packwood
     Pell
     Pryor
     Robb
     Sarbanes
     Simon
     Snowe
     Wellstone

                             NOT VOTING--1

       
     Conrad
       
  So the motion to lay on the table the amendment (No. 1224) was agreed 
to.
  Mr. HATCH. Madam President, I move to reconsider the vote by which 
the motion to lay on the table was agreed to.
  The PRESIDING OFFICER. Without objection, the motion to lay on the 
table is agreed to.
  Mr. HATCH. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Madam President, I ask unanimous consent that the quorum 
call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                Amendment No. 1254 to Amendment No. 1199

  Mr. HATCH. Madam President, on behalf of Senator Biden and myself, I 
send a managers' amendment to the desk, which is agreed to by us, and 
ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from Utah [Mr. Hatch], for himself and Mr. 
     Biden, proposes an amendment No. 1254 to amendment No. 1199.

  Mr. HATCH. I ask unanimous consent that further reading of the 
amendment dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       On page 5, lines 8 and 9, strike ``113 (a), (b), (c), or 
     (f)'' and insert ``113(a) (1), (2), (3), (6), or (7)''.
       On page 5, line 20, strike ``destructs'' and insert 
     ``obstructs''.
       On page 7, line 11, insert ``intent to commit murder or any 
     other felony or with'' after ``assault with''.
       On page 9, line 12, strike ``any manner in'' and insert 
     ``interstate''.
       On page 10, between lines 18 and 19, insert the following 
     new subsection:
       (f) Expansion of Provision Relating to Destruction or 
     Injury of Property Within Special Maritime and Territorial 
     Jurisdiction.--Section 1363 of title 18, United States Code, 
     is amended by striking ``any building, structure or vessel, 
     any machinery or building materials and supplies, military or 
     naval stores, munitions of war or any structural aids or 
     appliances for navigation or shipping'' and inserting ``any 
     structure, conveyance, or other real or personal property''.
       On page 13, strike lines 5 through 8 and insert the 
     following:
       (b) Penalty for Carrying Weapons or Explosives on an 
     Aircraft.--Section 46505 of title 49, United States Code, is 
     amended--
       (1) in subsection (b), by striking ``one'' and inserting 
     ``10''; and
       (2) in subsection (c), by striking ``5'' and inserting 
     ``15''.
       On page 23, line 23, strike ``2339A)'' and insert ``2339A 
     of title 18, United States Code)''.
       On page 29, line 25, strike ``determined'' and insert 
     ``designated''.
       On page 36, line 2, strike ``item of''.
       On page 48, lines 21 and 22, strike ``Notwithstanding any 
     other provision of law,''.
       On page 60, strike lines 1 and 2, and insert ``Columbia not 
     later than 30 days after receipt of actual notice under 
     subsection (b)(6).''
       On page 57, strike lines 18 and 20, and insert ``The 
     designation shall take effect 30 days after the receipt of 
     actual notice under subsection (b)(6), unless otherwise 
     provided by law.''
       On page 93, lines 22 through 24, strike ``to--'' and all 
     that follows through ``(ii) expand'' and insert ``to 
     expand''.
       On page 95, line 15, strike ``shall provide'' and insert 
     ``shall provide to appropriate State law enforcement 
     officials, as designated by the chief executive officer of 
     the State,''.
       On page 95, strike line 23 and all that follows through 
     page 96, line 2 and insert the following:
       (D) Allocation.--(i) Of the total amount appropriated 
     pursuant to this section in a fiscal year--
       (I) $500,000 or 0.25 percent, whichever is greater, shall 
     be allocated to each of the participating States; and
       (II) of the total funds remaining after the allocation 
     under subclause (I), there shall be allocated to each State 
     an amount which bears the same ratio to the amount of 
     remaining funds described in this subparagraph as the 
     population of such State bears to the population of all 
     States.
       (ii) Definition.--For purposes of this subparagraph, the 
     term ``State'' means any State of the United States, the 
     District of Columbia, the Commonwealth of Puerto Rico, the 
     Virgin Islands, American Samoa, Guam, and the Northern 
     Mariana Islands, except that for purposes of the allocation 
     under this subparagraph, American Samoa and the Commonwealth 
     of the Northern Mariana Islands shall be considered as one 
     State and that for these purposes, 67 percent of the amounts 
     allocated shall be allocated to American Samoa, and 33 
     percent to the Commonwealth of the Northern Mariana Islands.
       On page 99, line 19, insert after ``Attorneys'' the 
     following: ``and personnel for the Criminal Division of the 
     Department of Justice''.
       On page 99, between lines 21 and 22, insert the following:
       ``(c) Availability of Funds.--Funds made available pursuant 
     to this section, in any fiscal year, shall remain available 
     until expended.
       On page 117, lines 3 and 4, strike ``right made 
     retroactively applicable to cases on collateral review by the 
     Supreme Court'' and insert ``right that is made retroactively 
     applicable''.
       On page 133, line 3, strike ``(a) In General.--''.
       On page 133, strike lines 8 through 10 and insert the 
     following:
       (B) in paragraph (2), by striking ``; or'' and inserting 
     the following: ``and the results of such use affect 
     interstate or foreign commerce or, in the case of a threat, 
     attempt, or conspiracy, would have affected interstate or 
     foreign commerce if such use had occurred;'';
       (C) by redesignating paragraph (3) as paragraph (4);
       (D) by inserting after paragraph (2) the following:
       ``(3) against a victim, or intended victim, that is the 
     United States Government, a member of the uniformed services, 
     or any official, officer, employee, or agent of the 
     legislative, executive, or judicial branches, or any 
     department or agency, of the United States; and''; and
       (E) in paragraph (4), as redesignated, by inserting before 
     the comma at the end the following: ``, or is within the 
     United States and is used in any activity affecting 
     interstate or foreign commerce''.
       On page 133, line 21, before the end quotation marks insert 
     the following: ``The preceding sentence does not apply to a 
     person performing an act that, as performed, is within the 
     scope of the person's official duties as an officer or 
     employee of the United States or as a member of the Armed 
     Forces of the United States, or to a person employed by a 
     contractor of the United States for performing an act that, 
     as performed, is authorized under the contract.''.
       On page 134, strike lines 1 through 8.
       On page 140, line 20, insert after ``employee,'' the 
     following: ``or any person assisting such an officer or 
     employer in the performance of official duties,''.
       On page 140, line 21, strike ``their official duties,'' and 
     insert ``such duties or the provision of such assistance,''.
       On page 141, line 1, insert ``or manslaughter as provided 
     in section 1113'' after ``murder''.
       On page 143, between lines 15 and 16, insert the following:
       (i) Clarification of Maritime Violence Jurisdiction.--
     Section 2280(b)(1)(A) of title 18, United States Code, is 
     amended--
       (1) in clause (ii), by striking ``and the activity is not 
     prohibited as a crime by the State in which the activity 
     takes place''; and
       (2) in clause (iii), by striking ``the activity takes place 
     on a ship flying the flag of a foreign country or outside the 
     United States,''.
       On page 147, line 19, strike ``effective date of section 
     801'' and insert ``date of enactment of title VII''.
       On page 148, line 13, insert ``of title VII'' after ``date 
     of enactment''.
       On page 148, line 18, insert ``of title VII'' after ``date 
     of enactment''.
       On page 149, lines 6 and 7, strike ``effective date of 
     section 801'' and insert ``date of enactment of title VII''.
       On page 152, strike lines 3 through 5 and insert the 
     following: ``Except as otherwise provided in this title, this 
     title and the amendments made by this title shall take effect 
     1 year after the date of enactment of this Act.''.
       On page 160, between lines 11 and 12, insert the following:
     [[Page S7851]]
     
     SEC. 902. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE 
                   UNITED STATES PARK POLICE.

       (a) In General.--There are authorized to be appropriated 
     from the General Fund of the Treasury for the activities of 
     the United States Park Police, to help meet the increased 
     needs of the United States Park Police, $1,000,000 for each 
     of the fiscal years 1996, 1997, 1998, 1999, and 2000.
       (b) Availability of Funds.--Funds made available pursuant 
     to this section, in any fiscal year, shall remain available 
     until expended.

     SEC. 903. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE 
                   ADMINISTRATIVE OFFICE OF THE UNITED STATES 
                   COURTS.

       (a) In General.--There are authorized to be appropriated 
     from the General Fund of the Treasury for the activities of 
     the Administrative Office of the United States Courts, to 
     help meet the increased needs of the Administrative Office of 
     the United States Courts, $4,000,000 for each of the fiscal 
     years 1996, 1997, 1998, 1999, and 2000.
       (b) Availability of Funds.--Funds made available pursuant 
     to this section, in any fiscal year, shall remain available 
     until expended.

     SEC. 904. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE 
                   UNITED STATES CUSTOMS SERVICE.

       (a) In General.--There are authorized to be appropriated 
     from the General Fund of the Treasury for the activities of 
     the United States Customs Service, to help meet the increased 
     needs of the United States Customs Service, $10,000,000 for 
     each of the fiscal years 1996, 1997, 1998, 1999, and 2000.
       (b) Availability of Funds.--Funds made available pursuant 
     to this section, in any fiscal year, shall remain available 
     until expended.
       On page 51, line 10, replace ``1252(a)'' with ``1252a''.
       On page 51, line 14, insert ``of this title'' after 
     ``section 101(a)(43)''.

  Mr. HATCH. Madam President, I urge adoption of the amendment.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  So the amendment (No. 1254) was agreed to.
  Mr. HATCH. I move to reconsider.
  Mr. DOLE. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. BRADLEY. Madam President, I rise in support of the Comprehensive 
Terrorism Prevention Act. The Oklahoma City bombing brought into sharp 
focus the reality and horror of domestic terrorism in America. The 
death toll of the bombing now stands at 167, making it the deadliest 
mass murder in the history of the United States. This legislation will 
enhance the ability of law enforcement to combat both foreign and 
domestic terrorism. It is a strong, adequate response to the serious 
problem of terrorism, and will provide the United States with the 
necessary tools to respond to the international and domestic terrorist 
threats and prosecute these despicable acts to the fullest extent of 
the law.
  Madam President, I had wanted to offer an amendment to this bill that 
was designed to make a technical correction to the existing law banning 
handgun bullets capable of piercing body armor. Law enforcement 
represents the first line of defense against threats to our internal 
security. My amendment therefore was designed to give the maximum level 
of protection to our police officers by extending the current 
composition-based ban on cop-killing bullets to provide that any bullet 
capable of penetrating body armor will be banned, regardless of the 
bullet's physical composition. I decided not to pursue adoption of the 
amendment, however, because of my concern that it would slow action on 
this important bill. I intend to offer this amendment to the next 
appropriate vehicle.
  Madam President, the provisions in this bill are vitally important to 
our efforts to respond to international and domestic threats of 
terrorism. I, therefore, fully support this bill, and I am confident 
that because of our actions today, America will be more fortified 
against the evils of terrorism.
  Mr. PELL. Madam President. Today, as the Senate considers final 
passage of S. 735, legislation designed to combat domestic and 
international terrorism, I regret that I must oppose the final version 
of the bill. I regret it because I believe that appropriate steps can 
be taken by this Congress to add to the tools currently available to 
law enforcement to combat terrorism. Especially in light of the recent, 
horrific tragedy in Oklahoma City, enhancement of the ability to combat 
the growing menace of terrorism is timely and necessary.
  However, as Congress rushes to respond, we can not let our fervor for 
action allow us to unwisely circumscribe basic protections long 
enshrined in our Constitution. Unfortunately, I believe that as the 
bill stands, the Senate has gone too far in changing and restricting 
the application and availability of the right to appeal court decisions 
under the writ of habeas corpus. This writ has been a fundamental part 
of our jurisprudence since our country's founding. It is a critical 
part of the means by which our system of justice guarantees that 
everyone has the opportunity for a fair trial and that the rights 
granted under the U.S. Constitution will be respected and enforced.
  With this time-honored tradition of habeas corpus so much a part of 
the bedrock legal principles which underpin our society, why are we 
considering changing it all? The answer is clear and has been readily 
acknowledged by the proponents of this so-called reform: they want to 
expedite the execution of those who have received the death penalty. It 
is that simple. There is no other driving force behind these efforts; 
efforts which incidentally have been around for years now. Those who 
favor the death penalty are frustrated that appeals under habeas corpus 
are available for those who protest their innocence and claim they were 
denied a fair trial. They argue that with an appeals process that lasts 
for years, the deterrent effect of the death penalty is lost. Thus, 
they want to drastically limit the ability of those convicted of crimes 
and given the death penalty to appeal their convictions, despite the 
fact that the sentence, if carried out, is irreversible and final.
  Let me be clear. I harbor no sympathy for those appropriately found 
guilty of murder and strongly believe that it is critical that they 
face certain and severe punishment, including life in prison without 
parole. The victims deserve no less, the criminal deserves no more. 
However, I do oppose the death penalty. I do so because I believe that 
the death penalty is not a conscionable punishment in a civilized 
society. The reason is obvious; the death penalty once carried out 
cannot be reversed if turns out that an individual really was innocent. 
Indeed, I note that the last time an individual was executed in my 
state of Rhode Island, it was later proved that he did not commit the 
crime. It strikes me as remarkable that in a legal system which has the 
death penalty, such as ours, that procedures would be sought which 
limit the opportunities otherwise available for an individual to prove 
his innocence. If anything, I believe that additional avenues should be 
available for the proof of innocence, not fewer. But the bill before us 
today does just that--it limits the rights of the accused to have their 
convictions reviewed for error. This is wrong and in my opinion, a sad 
day in the U.S. Senate.
  Accordingly, I feel that the limited good done by the bill--by which 
I mean the commendable efforts to fight terrorism--is outweighed by the 
attack on habeas corpus which has been included. Interestingly enough, 
efforts to limit the changes in habeas corpus to apply only to Federal 
terrorism cases, the supposed reason for this bill, were rejected. The 
entire habeas corpus system, meaning for both those cases brought in 
State and Federal courts, has been changed. It brings into question the 
true motivations behind attaching this language to this bill--a bill 
that on its face has great public appeal and is being moved by a sense 
of urgency given the events in Oklahoma City in April. But despite my 
profound sympathy for the victims of the bombing in Oklahoma City--
indeed as well as all terrorist acts--and my desire to do something 
about relieving the pain they suffer, I believe that in good 
conscience, I cannot support the bill as it stands given the changes it 
contains to habeas corpus.
                JUDICIAL REVIEW OF CRIMINAL ALIEN CASES

  Mr. KENNEDY. Madam President, section 303(e) broadens the class of 
criminal aliens subject to special expedited deportation procedures and 
eliminates all judicial review.
  Every Member of this body is willing to take every reasonable step to 
punish criminal aliens and deport them from the United States.
  But the Justice Department reports that this provision is a step 
backward [[Page S7852]] in our fight against crime. It disrupts strong 
provisions against criminal aliens enacted in last year's crime bill 
and only recently implemented through regulation. It ties the Attorney 
General's hands in obtaining convictions against criminal aliens. And 
it eliminates all judicial review in these cases--a major departure 
from fundamental principles of due process.
  This provision harms our crime fighting efforts in at least three 
ways.
  First, it eliminates the Attorney General's ability to target the 
removal of the most serious offenders within the resources she has 
available. It applies to all criminal aliens, regardless of the gravity 
of their offense. Under current law, only aggravated felons--those 
committing the most serious offenses--are placed in expedited 
proceedings. Under this section, however, all criminal aliens must be 
removed within 30 days, whether they are murderers or petty 
shoplifters.
  An immigrant with an American citizen wife and children sentenced to 
1-year probation for minor tax evasion and fraud would be subject to 
this procedure. And under this provision, he would be treated the same 
as ax murderers and drug lords. INS is required to detain him. He gets 
a quick deportation hearing from an immigration judge in the Justice 
Department and he is out within 30 days--no judicial review, no 
nothing.
  Over the past 2 years, the President and Congress have increased 
substantially the number of immigration officers and immigration judges 
to handle these cases. As a result, over the next year, the 
administration will double the number of criminal aliens deported to 
more than 58,000.
  But even with the additional funds, resources are still limited. The 
Justice Department would be required to divert resources from the 
Border Patrol, from naturalization, and from other important activities 
to accommodate this provision.
  The Immigration Subcommittee is now considering legislation which 
will reform the criminal alien definitions. We should allow that 
process to proceed, rather than make premature and drastic changes in 
the current definition and due process.
  The second way in which this provision harms law enforcement is that 
it requires the Attorney General to detain all those in this broadened 
category of criminal aliens, with no allowance for those whose home 
countries will not or cannot take them back. This is the case today 
with Cuba, Vietnam, and Bosnia. In these cases, the Attorney General 
would be required to keep the alien in indefinite detention, even if 
the offense is relatively light and the Attorney General believes the 
alien would pose no danger to the community.
  This is a drastic and unnecessary expense to the taxpayer. It takes 
jail space and resources away from more pressing criminal enforcement.
  Under this provision, a Cuban refugee convicted of shoplifting in 
certain States could face life imprisonment in an INS jail.
  Finally, by providing that all criminal aliens be removed within 30 
days of the issuance of a deportation order, the provision ignores real 
law enforcement needs. The 30-day requirement may be waived where 
criminal aliens are cooperating with law enforcement as witnesses. 
However, there is no allowance for other law enforcement purposes. For 
example, an alien convicted and ordered deported for one offense could 
not be held in the United States for trial under other offenses for 
which the alien may subsequently be charged.
  In the World Trade Center bombing, for example, one of the suspected 
conspirators in the case was already in jail for another crime. Under 
this provision, he would be subjected to mandatory deportation within 
30 days of the issuance of a deportation order for the first crime, and 
would not be available for prosecution under the second--and far more 
serious--crime.
  In addition to undermining the war on crime, this amendment virtually 
eliminates the Attorney General's flexibility to grant discretionary 
relief from deportation for long-time permanent residents convicted of 
lesser crimes. This discretionary relief is available to permanent 
residents who have resided here for at least 7 years. It is granted if 
the immigration judge believes their equities in the United States--
such as American citizen spouses or children or contributions to their 
communities--outweigh the gravity of their offense.
  Under current law, permanent residents with aggravated felony 
convictions who serve at least 5 years in prison are ineligible for 
this discretionary relief from deportation. However, under this 
provision, this discretionary relief would be denied to permanent 
residents for carrying a concealed firearm, drug abuse, or addiction, 
in which no conviction would even be required, any drug
 offense involving more than 30 grams of marijuana, and other such 
crimes. They could live here productively for 30 years and have an 
American citizen wife and children. But for them, it is one strike and 
you are out.

  Similarly, refugees could also be deported to the hands of their 
persecutors for relatively small offenses.
  Under this provision, for example, a refugee from Rwanda could put a 
bill in the mailbox and realize he forgot to put a stamp on it. When he 
innocently tries to remove the letter from the mailbox and he is 
arrested for tampering with the mail--a felony. Due to poor 
representation, he accepts a plea bargained sentence of 1 year. To his 
surprise, he is suddenly subject to expedited deportation with no 
judicial review.
  Under this provision, an older immigrant who came to the United 
States as a child but was never naturalized gets tired of a rash of 
robberies on her store and buys a firearm which she doesn't realize is 
illegal. She is convicted of a felony. Even though she is married to an 
American and has four U.S.-citizen children, she must be placed in 
expedited deportation proceedings with no recourse to the courts.
  A long-time permanent resident could decide to go fishing. He hooks 
and kills what he does not realize is a rare fish, which is a strict 
liability felony with a mandatory minimum of 1 year. Even though he is 
married to an American and has U.S.-citizen children, he is convicted, 
serves his time, and is immediately deported with no prospect for 
judicial review.
  These are the kinds of cases which can easily happen if this drastic 
provision is allowed to stand.
  Even if we accept--as this provision proposes--that virtually any 
offense results in automatic deportation, the elimination of judicial 
review alone would be grounds for opposing this provision. This is a 
major departure from fair principles of due process.
  The need for judicial review in this instance is obvious. Immigration 
judges in the Justice Department make mistakes.
  For example, in a recent ninth circuit case, the panel reviewed an 
immigration judge's deportation order against someone convicted of drug 
trafficking who claimed to be a U.S. citizen but did not have a lawyer. 
The court found that the immigration judge's order was ``not based on 
substantial evidence.'' In this case, a possible U.S. citizen could 
have been erroneously deported if the court had not intervened.
  It is because of cases such as these that the standing policy of the 
American Bar Association is that legislation should not:

       Limit the availability and scope of judicial review of 
     administrative decisions under the Immigration and 
     Nationality Act to less than what is provided . . . in the 
     Administrative Procedures Act: in particular judicial review 
     of . . . denials of stays of execution of exclusion or 
     deportation orders . . . and constitutional and statutory 
     writs of habeas corpus.

  I had intended to offer an amendment to the counter-terrorism bill 
which would correct these problems. While I will not offer the 
amendment at this time, it is my hope that the grave problems of the 
current language will be addressed as the bill proceeds.
  The provision in the pending bill would do nothing to enhance our 
ability to exclude suspected terrorists. It would impede current 
efforts to remove dangerous criminal aliens. And I hope it will be 
addressed at a later stage.
                      alien terrorist removal act

  Mr. SMITH. Madam President, I rise this afternoon to commend Senators 
Dole and Hatch for incorporating my bill, S. 270, the Alien Terrorist 
Removal Act of 1995, into S. 735, the comprehensive antiterrorism 
legislation now before the Senate. [[Page S7853]] 
  I also want to thank Senator Specter again for the opportunity to 
testify before his Terrorism Subcommittee last month regarding my alien 
terrorist removal bill.
  My bill--now the alien terrorist removal title of S. 735--essentially 
embodies the Smith-Simpson amendment that the Senate passed unanimously 
as part of the crime bill in the last Congress. Unfortunately, certain 
House Members of the conference committee insisted on the removal of 
the Smith-Simpson amendment from the 1994 crime bill.
  This year, however, Madam President, the Clinton administration 
proposed its own substantially identical version of my bill as a part 
of its omnibus antiterrorism legislation. Thus, I am confident that the 
alien terrorist removal title of S. 735 will enjoy broad bipartisan 
support here in the Senate, will be supported by the House as well, and 
will be signed into law by the President in the next few weeks.
  Let me summarize briefly for the benefit of my colleagues what the 
alien terrorist removal title of S. 735 is all about. The alien 
terrorist removal provisions of the bill would establish a new, 
special, judicial procedure under which classified information can be 
used to establish the deportability of alien terrorists.
  The new procedures provided under title III of S. 735 are carefully 
designed to safeguard national security interests, while at the same 
time according appropriate protection to the necessarily limited 
constitutional due process rights of aliens.
  Under current law, Madam President, classified information cannot be 
used to establish the deportability of terrorist aliens. Thus, when 
there is insufficient unclassified information available to establish 
the deportability of a terrorist alien, the Government faces two 
equally unacceptable choices.
  First, the Justice Department could declassify enough of its evidence 
against the alien in question to establish his deportability.
  Sometimes, however, that simply cannot be done because the classified 
information in question is so sensitive that its disclosure would 
endanger the lives of human sources or compromise highly sensitive 
methods of intelligence gathering.
  The Government's second, and equally untenable, choice would be 
simply to let the terrorist alien involved remain in the United States.
  Unfortunately, that is not just a hypothetical situation. It happens 
in real cases. That is why the Department of
 Justice--under both Republican and Democratic Presidents and Attorneys 
General--has been asking for the authority granted by my bill--now 
title III of S. 735--since 1988.

  Utilizing the existing definitions of terrorism in the Immigration 
Act of 1990 and of classified information in the Classified Information 
Procedures Act, title III of S. 735 would establish a special alien 
terrorist removal court made up of sitting U.S. District Judges that is 
modeled on the special court that was created by the Foreign 
Intelligence Surveillance Act.
  Under title III of S. 735, the U.S. district judge sitting as the 
special court would personally review the classified information 
involved.
  Without the compromising classified information, the alien in 
question would be provided an unclassified summary of the classified 
information involved.
  Ultimately, the special court would determine whether, considering 
the record as a whole, the Justice Department has proven, by clear and 
convincing evidence, that the alien is a terrorist and should be 
removed from the United States.
  Finally, any alien ordered removed under the provisions of title III 
of S. 735 would have the right to appeal to the full U.S. Court of 
Appeals for the District of Columbia Circuit.
  In closing, let me say that the most serious threat that our Nation 
faces in the post-cold-war world is the scourge of terrorism.
  Foreign terrorism came to our shores in 1993 with the World Trade 
Center bombing. Tragically, with the Oklahoma City bombing in April, we 
learned the bitter lesson that we face the threat of terrorism from 
domestic extremists as well.
  Now, this historic 104th Congress is doing its job by moving quickly 
to respond to those twin threats. I urge the prompt passage of S. 735 
and, once again, I commend the sponsors for incorporating my alien 
terrorist removal bill into their landmark legislation.
  Mr. FEINGOLD. Madam President, after the despicable attack on the 
Murrah Federal building in Oklahoma City almost 2 months ago, I reacted 
with the same feelings of shock and outrage as millions of other 
Americans.
  Those feelings run deeper than language can adequately describe. The 
pictures of the ravaged building, the stories of the victims and the 
families will never be forgotten.
  Madam President, there should be absolutely no debate about our 
national resolve to fight terrorism and to keep it from our shores. No 
American wants to fear that the kind of thing that happened in Oklahoma 
or at the World Trade Center in New York will occur in their hometown 
or that one of their loved ones will be hurt by this kind of heinous 
act.
  Fighting terrorism requires that we take strong and forceful steps to 
stop terrorists before they strike, and if they do strike, to 
prosecute, convict and punish them.
  We need to make sure that law enforcement officers have the resources 
to investigate and prosecute terrorist acts; we need to give them tools 
to apprehend terrorists before they strike.
  There are a number of provisions of this legislation that are aimed 
at achieving that goal, and I strongly support those proposals.
  The bill would make available about $1.2 billion to increase law 
enforcement resources to carry out these tasks. There are provisions 
added during floor consideration to provide for tracer elements to be 
placed in explosives to help identify where these materials are likely 
to have originated. There are other provisions included in this bill 
that are also likely to help us fight terrorist threats.
  Nevertheless, I intend to vote against this legislation. I believe 
that in the haste to respond to a national tragedy, we may be making 
mistakes that will be difficult to undo.
  There are a number of provisions in this legislation that are 
problematic, and quite frankly, I am equally concerned about the 
process which brought this measure to the floor of the Senate, the 
hasty debate, and the pressure to clear the measure without 
understanding the implications of what is being proposed.
  The Administration proposed legislation to deal with international 
terrorism earlier this year; that initial proposal was quickly reshaped 
as a result of the Oklahoma City tragedy into a bill to deal with 
domestic terrorism. Although hearings were held in the Judiciary 
Committee, the Committee never met to debate the bill, there is no 
committee report, and the measure which was called up by the leader was 
drafted in private and introduced shortly before many Members left town 
for the Memorial Day recess.
  It has also become the vehicle for what is called ``habeas corpus 
reform.'' What is described as ``reform'' is in fact an attempt to 
rewrite and weaken what is known as the ``Great Writ''--the common law 
instrument that allowed citizens to challenge the lawfulness of their 
detention by the crown. Suddenly, habeas reform has become a tool for 
fighting terrorism. I find that a stretch of the imagination. What we 
have is a classic, political move to get another agenda wrapped into an 
emotionally charged, moving vehicle.
  In the past year, many of our basic, fundamental protections against 
government intrusion contained in the Bill of Rights have been under 
assault. I think many Americans are unaware that these reform movements 
are in fact assaults upon fundamental rights--not just the rights of 
criminals, but the rights of all Americans to be free from government 
overreaching and harassment.
  I spoke at some length earlier today on my very grave concerns about 
how the so-called habeas reforms engrafted into this bill aimed at 
speeding up executions threaten the rights of the innocent and raise 
the spectre of gross miscarriage of justice taking place.
  There are also a number of other provisions of this bill that I 
believe are either not well thought out or misguided.
  For example, last night the Senate adopted by a voice vote an 
amendment [[Page S7854]] authorizing a greater role for the military in 
domestic antiterrorism activities.
  Provisions dealing with this issue were included in the 
administration's original proposal and they were of great concern to me 
and a number of Senators who do not believe that the military should be 
playing a role in domestic law enforcement efforts.
  Madam President, one of the hallmarks of a democratic society is the 
separation of the military--whose primary function is to defend the 
Nation from outside threats--from internal law enforcement 
responsibilities. Military dictatorships use soldiers to enforce their 
laws; democracies do not.
  This country has a very closely defined set of rules, arising out of 
the Bill of Rights itself and applied by our judicial system, which 
guarantee due process and fairness in the administration of justice. 
Law enforcement personnel are trained in carrying out these rules; 
soldiers are not.
  I recognized, Madam President, that a very sincere effort was made by 
a number of the principal authors of these provisions to craft a very 
narrow exception to the posse comitatus law, the 1878 statute which 
limits the role of the military in domestic law enforcement activities.
  However, I believe that both the process used to craft this amendment 
and the substance of this amendment are flawed. This broadening of the 
authority of the military, albeit in a narrow area, was not part of a 
bill reported by the committees of jurisdiction, but rather was 
introduced and voice voted within the span of a few hours last night. 
There were no hearings on this specific proposal, no committee report 
filed outlining the expectations of how it will operate, and no real 
public debate over its provisions. Rather, we had a voice vote on 
language most of us had first seen a few hours earlier.
  That is not the way to deal with such a fundamental issue. There is 
no reason for this hasty disposition of this kind of important issue.
  Beyond the process used, I have concerns about whether the amendment 
itself may operate to open the door to perhaps an even broader role for 
the military than even the administration had initially proposed. The 
administration's proposal did not explicitly give the military the 
authority to make an arrest, although it had language about disabling 
and disarming individuals that was troublesome. The amendment adopted 
last night gives the Department of Justice and the Department of 
Defense the
 authority to promulgate regulations governing the role of the military 
and provides that those regulations shall not authorize arrests by the 
military except under ``exigent circumstances'' or as otherwise 
authorized by law. In other words, the military is given the power to 
make arrests, but the regulations will limit that authority to certain 
circumstances.

  Madam President, while I recognize the authority being created is 
limited to cases involving biological or chemical weapons, I am 
concerned that we have opened a door that may be hard to close in the 
future when the case is made that the military can play a greater role, 
for example, in the war on drugs or other areas which have been the 
subject of heightened public concern. I do not believe that it is 
necessary to give the military arrest powers within the U.S. If 
military needs to be involved in a domestic investigation, I believe 
that civilian law enforcement officials should be present and available 
to make any arrests needed. The notion that military personnel will be 
operating without accompanying civilian officials is very troubling. If 
authority is needed to detain an individual until a civilian law 
enforcement official arrives, arguments can be made for that authority, 
but that does not justify, in my mind, granting a direct power to make 
an arrest under any type of circumstances.
  Madam President, in a similar vein, I am concerned about the 
amendment adopted yesterday which loosens the requirements in current 
law for issuance of a warrant for what is called a ``roaming'' or 
``roving'' wiretap. The Fourth Amendment, in very explicit language, 
requires that no search warrant may issue unless ``particularly 
describing the place to be searched, and the persons or things to be 
seized.''
  The Fourth Amendment was written in such precise terms because the 
drafters of the Constitution were aware of the practice of British 
authorities of obtaining sweeping search warrants that allowed them to 
search wherever and whenever they pleased. The rights of the people to 
be secure in their homes from government officials barging in was not a 
right recognized before the American revolution. It is perhaps a unique 
American right, but it is one that many of us regard as sacrosanct.
  The requirement for specificity is especially important with respect 
to wire tap authority because a wire tap is particularly invasive--no 
one knows that a government agent is listening to your private 
conversations. The law has long required that a wire tap warrant be 
very narrowly and carefully drawn. Current law allows a roaming wire 
tap--that is one that moves from place to place--only where there is an 
allegation that the suspect is moving form place to place with the 
intent to avoid interception of the communication. The amendment 
adopted strikes the ``intent'' requirement and allows such a wiretap 
where the person's actions and conduct would have the effect of 
thwarting interception from a specified facility. Again, this provision 
opens the door to greater government powers. I am not convinced that an 
adequate case has been made that this broader and potentially abusive 
authority is needed.
  There are other provisions of the bill that may also have problems 
that I will not take the time to outline here. In sum, I
 think the bill was hastily crafted and goes beyond what is needed to 
deal with a terrorist threat.

  Madam President, less than a year ago, I confronted this same 
situation when the Clinton administration's crime bill came to a final 
vote on the floor of the Senate.
  Just as with this bill, there were a number of provisions in that 
legislation that I supported. I supported the concept of putting more 
police officers on the streets. I supported prevention programs as 
sensible and cost-effective ways to head off criminal activity.
  But I objected to other provisions.
  I objected to the expansion of the death penalty, a form of state-
sponsored violence that few civilized nations practice. I note in 
today's papers that the Supreme Court of South Africa, a nation that 
has executed people for 350 years has ruled that the death penalty 
violates that nation's constitution.
  The pending legislation would also add new death penalties to federal 
law. I oppose those provisions as well.
  I also opposed some of the provisions of last year's crime bill that 
I believed amounted to unnecessary and counterproductive Federal 
intrusion into the war on crime, which is best fought at the State and 
local level.
  Because of these objections, I voted against that bill.
  Because of my objections today, I am voting against this one.
  I believe that we are acting in haste, making law from outrage and 
not from deliberation.
  I believe that despite good intentions and provisions of the bill 
that would provide additional resources to law enforcement personnel 
fighting terrorists, that we are not passing a thoughtful, meaningful 
response to a real threat. Instead, we are rewriting habeas corpus law 
because some proponents of these changes saw an opportunity in this 
bill to move their agenda. We are opening the door to a greater role 
for Federal Government take actions that will invade the lives of our 
constituents without reasonable grounds.
  When we act in haste, we multiply our chances of error and I see 
errors in this bill. I cannot support it.
  Mrs. MURRAY. Madam President, I rise today to speak in support of S. 
735, the antiterrorism bill.
  This bill poses serious dilemmas for me, and for this Congress. It 
requires us to face some of the real dangers that exist in the modern 
world, and it motivates us to act in the interest of protecting the 
people. But it also makes us face the cost of freedoms we enjoy as 
Americans.
  It is disturbing to me when the Congress is faced with a decision to 
increase protection for the people by chipping away at the edges of 
freedom.
  But in this case, the imperative is clear. We have heard many 
compelling [[Page S7855]] stories on this floor about the horrors of 
Oklahoma City, the tragedy of the World Trade Center. These stories are 
real; they involved real Americans in today's world. I need not repeat 
these stories here. Let me simply acknowledge what we all feel: These 
events have shaken every American to the core of their being. To reduce 
the likelihood of such events occurring in the future, and to preserve 
a peaceful existence for Americans, we must act.
  We must empower our law enforcement officials to zero in on terrorist 
organizations, at home and abroad. This bill does that.
  We must make these crimes a high priority within the judicial system, 
and clearly subject terrorist activities to prosecution. This bill does 
that.
  We must cripple the ability of terrorists to finance their activities 
in our own backyard. This bill does that.
  We must draw on all the expertise of the Government, including the 
military where appropriate. This bill does that.
  This bill contains many provisions that will improve our ability as a 
nation to prevent, combat, and prosecute against terrorist activities. 
As a result of the World Trade Center and Oklahoma City bombings, we 
owe it to the victims to act. As Senators in an increasingly dangerous 
world, we owe it to all citizens to protect the quality of life unique 
to the United States of America. Therefore, I will support S. 735.
  Madam President, having said that, I must add a few concerns. I do 
not think it is ever a good idea to legislate in the heat of the 
moment. Cases like this are most susceptible to the laws of unintended 
consequences. As we broaden the reach of law enforcement, and as we 
broaden the application of penalties, we as elected officials have an 
equal obligation to keep from unnerving the people we are trying to 
protect. We have no idea what kind of mistakes will be made, or whose 
rights will be infringed, when this bill is implemented. It will be 
critically important for law enforcement officials of all types to keep 
in mind the responsibilities to protect the citizens that go along with 
the kind of broad new powers we are bestowing on them.
  Likewise, we have to recognize the dangers of internal hatred and 
anger. If there is one thing we can conclude from recent tragedies, it 
is this: We must remain vigilant against extremism of all types. These 
are forces that may be motivated by legitimate feelings of frustration 
with the Government. But there are very clear lines that we must not 
cross. Our system of Government is geared toward discourse and debate; 
if we lose the ability to air out our differences through honest 
debate, and if we cannot agree to disagree when we have to, the entire 
country will suffer. We all have a responsibility to zealously defend 
our collective rights to democratic government.
  To this end, I feel strongly that all of us--politicians, activists, 
citizens--have a contribution to make toward maintaining civil 
discourse. We can improve the environment dramatically by simply toning 
down the rhetoric. If we are going to protect constitutional democracy 
and our rights as citizens to express our opinions, we have to learn to 
respect each other as people.
  Finally, Madam President, I would like to add a comment regarding the 
amendment offered by the ranking member of the Judiciary Committee, 
Senator Biden. He rightfully pointed out that this legislation takes on 
an issue that is far too complicated to resolve here: habeas corpus 
reform. This is the wrong time and the wrong bill on which to attempt 
to resolve a debate that has raged in this country for years. As I said 
before, I believe it is unwise to legislate in the heat of the moment. 
By including the limits on habeas corpus in this bill, the majority is 
doing just that. I believe the Senate should instead have a thorough, 
thoughtful debate about habeas corpus independent of this legislation. 
It is simply too important to run through the Senate on a bill narrowly 
targeting antiterrorism activities.
  Therefore, I support the Biden amendment. While it is obvious the 
votes are not there to postpone the debate over habeas corpus to a 
later time, at least the point has been made on the Senate floor.
  Madam President, I hope my remarks are persuasive in pointing out the 
dilemmas in passing this legislation. While we can take comfort knowing 
this bill strengthens the hand of law enforcement to aggressively 
pursue terrorists, none of us should take comfort in what it might mean 
for innocents caught in the middle as the antiterrorism effort 
intensifies. I support S. 735 with some reluctance, and sincerely hope 
that authorities will use their new powers as judiciously as the spirit 
of freedom implores.
  Madam President, on Monday, June 5, the Senate adopted by a vote of 
90-0 an amendment by the Senator from California, Senator Feinstein, to 
require the use of taggants to mark materials used in the construction 
of explosives. I was unavoidably detained, and therefore not present 
for that vote. I apologize to the leaders for my absence; had I been 
present, I would have voted ``aye'' on the Feinstein amendment. If 
there is one straight-forward thing we can do to help law enforcement 
investigate bombings, it is requiring the use of taggants.
  Mr. WARNER. Madam President, the horrific April 19 bombing of the 
Alfred P. Murrah Federal Building in Oklahoma City shocked and stunned 
Americans. Every single one of us has been forced to confront the risks 
and the vulnerability of our open society. The United States needs a 
systematic and comprehensive counterterrorism policy to detect, deter, 
prevent, and punish terrorist acts.
   Congress must consider and pass an effective antiterrorism bill; we 
must do so on a bipartisan basis. The problem is too dangerous to be 
treated in a partisan manner. We must stand together to protect the 
citizens of the United States.
  One of the greatest fears that we all have for the safety of our 
citizens is the use of weapons of mass destruction by terrorist 
elements. As demonstrated by the recent Tokyo subway tragedy, even very 
limited use of chemical agents can cause widespread death and disaster. 
We must ensure that our Nation has the ability to marshall all 
available assets and expertise to deal with the potential use of mass 
destruction by terrorists.
  For that reason, I am pleased to join in cosponsoring an amendment to 
authorize Department of Defense assistance to law enforcement 
authorities in emergency situations involving biological and chemical 
weapons. This amendment is patterned on authority which currently 
exists for the Department of Defense to provide technical assistance to 
incidents involving nuclear weapons and materiel. The amendment has 
been carefully drawn to limit the involvement of the military in law 
enforcement activities. Indeed, we have focused on the critical need to 
marshall the unique expertise of the military for use in these 
catastrophic situations.
  The legislation pending before the Senate today will lay the 
foundation for an antiterrorism plan for America.
  As the Senate considers legislation directed at antiterrorism, I am 
aware that we will also consider subsequently during this session 
modified anticrime legislation. I will continue to support measures 
that will provide local and State officials, and law enforcement 
personnel, the appropriate resources needed to combat the rising crime 
rate. This week, the Federal Bureau of Investigation released 
preliminary crime reports for 1994. The reports showed crime rates 
dropping from the year before. The crime rate may appear to decrease 
slightly, but not enough to calm the fears of many citizens. Crime will 
continue to terrorize Americans until the Congress can assist the 
States with adequate funds and legal tools necessary to make a drastic 
reduction in the crime rate.
  I have no doubt that the General Services Administration has stepped 
up security at our Federal buildings as a result of the tragic events 
which occurred in Oklahoma City. The House held hearings on Federal 
building security shortly after the event.
  As the chairman of the Subcommittee on Transportation and 
Infrastructure, it is my intention to hold a hearing soon regarding 
building security under the auspices of the Federal Protective Service 
of the GSA.
  I am increasingly concerned by recent reports which have indicated 
that memos produced within GSA have indicated internal skepticism about 
how reductions in the Federal Protective [[Page S7856]] Service of the 
GSA could adversely affect the agency's ability to assess and analyze 
Federal building security in the District of Columbia, Maryland, and 
Virginia.
  It is my intention to review this matter for the Senate.
   Madam President, while the Senate debates the legislation before us 
today, we must all realize that no legislation can make America totally 
safe. An open, democratic society simply will not allow for total and 
absolute security for our Nation.
  Because of the freedom our society demands, we must be evervigilant 
concerning possible threats to our citizens. I have always been totally 
committed to maintaining the readiness of our Armed Forces whenever a 
threat to our national security becomes imminent. I am also totally 
committed to maintaining the readiness of our Federal, State, and local 
law enforcement personnel to confront any domestic threat which may 
arise anywhere in the United States.
  I do have a major concern with this legislation: we must ensure that 
its provisions do not violate the Constitution or place inappropriate 
restrictions on the personal freedoms protected by the first amendment. 
I will not support provisions which will prohibit free exercise of 
religion or speech, or which impinge on the freedom of association.
  Mr. CRAIG. Madam President, I abhor and condemn terrorism in any 
form. Our Nation cannot tolerate terrorism--be it foreign or domestic--
and our Nation's law enforcement must have the tools it needs to fight 
this menace.
  There are some very important reforms in this bill that would be 
helpful. They include habeas corpus reform, which is the only change 
that will really have an impact in the Oklahoma City case.
  I will vote for this bill in order to send a strong message of 
support for those reforms to the House and any future House-Senate 
conference working on this legislation.
  However, for the record, my vote is not an endorsement of each and 
every provision of this bill. I am not convinced that the bill before 
us today is the best we can do to assist law enforcement in fighting 
against terrorism, and I would like to discuss some of the specific 
reservations I have.
  First and foremost are potential constitutional problems such as 
those relating to the sections on restricting fundraising, excluding 
and deporting aliens, the new wiretapping authority we adopted last 
night, and acquisition of information including consumer records.
  In all fairness, there are conflicting opinions even among my 
colleagues who are lawyers about whether some of these provisions will 
survive court review. I have been assured that the safeguards contained 
in the bill are sufficient to overcome potential constitutional 
problems. For that reason, I have decided not to oppose the entire bill 
on this basis. However, I remain concerned about these provisions and 
would hope they can be further improved before the Senate takes action 
on a final bill.
  Another section of the bill that I think could be improved is the new 
language relating to taggants in explosives. Although I joined a 
unanimous Senate in voting for changes made on the floor during debate, 
I am not by any means convinced this is the best way to approach that 
issue. After the Senate acted, I was contacted by several resource-
based industries in my State suggesting concerns that had not been 
raised or reviewed previously. I hope the House and any future 
conference will take a close look at that section and make improvements 
that will balance the interests of law enforcement with those of the 
affected industries.
  There are other items in this bill that I question, but those are 
some of the most important, I do not think we would be sacrificing any 
tools needed by law enforcement if we were to make improvements in 
these sections.
  I commend the majority leader and Senator Hatch for their hard work 
to deliver a bill that will strengthen the hand of law enforcement in 
fighting terrorism. I hope the bill will be improved as it moves 
through the remaining steps of the legislative process, so that I can 
vote for a truly effective package.
  Mr. BIDEN. Madam President, the Oklahoma City bombing and the earlier 
bombing of the World Trade Center demonstrate clearly that the United 
States must respond seriously to those--whether foreign or domestic--
who seek to make their point through the mass killing of Americans.
  These events demand that we examine our current laws and practices to 
ensure that we are doing everything that is necessary and appropriate 
to guard against the threat. We must take strong action to counteract 
terrorism, both foreign and domestic.
  There are steps we can take and should take.
  Let me outline the key terrorism proposals from the President's bill 
that are contained in the substitute we will vote on shortly. These 
provisions include:
  A new offense to assure Federal jurisdiction over all violent acts 
which are motivated by international terrorism.
  This provision will cover gaps in current Federal law--for example, a 
terrorist who commits mass murder on private or State-owned property 
may now be subject only to State court jurisdiction.
  This offense carries a new death penalty, complementing the terrorism 
death penalty in last year's crime bill.
  The bill will implement an international treaty to require a 
detection agent to be added to plastic explosives.
  It will enhance the Government's ability to obtain consumer credit 
reports and hotel/motel and vehicle rental records in foreign 
intelligence investigations. It does not change the law governing such 
information for domestic investigations.
  It gives the Government greater ability to exclude from entering the 
United States those aliens who are involved in terrorist activities.
  Let me also mention the amendments offered by Democrats to add tough 
law enforcement provisions to the Republican bill.
  The Lieberman amendment, which was adopted, expands wiretap 
authority. It gives new authority for multiple-point wiretaps provided 
to Federal law enforcement.
  Another Lieberman amendment, which was defeated, with no Republicans 
voting for it, gives authority for emergency wiretaps--identical to 
authority currently available for organized crime investigations--in 
terrorist investigations.
  The Feinstein amendment, which was adopted, requires taggants. It 
gives authority to Secretary of the Treasury to require taggants in 
explosives. Taggants assist law enforcement by providing a means to 
trace the source of an explosive.
  The Nunn-Thurmond-Biden-Warner amendment, also adopted, gives new 
assistance against chemical and biological weapons. The posse comitatus 
exception to allow the use of military to assist in the investigations 
of chemical and biological weapons.
  The Kerrey amendment, also adopted, increases funding for Federal 
antiterrorist enforcement. It adds $262 million for ATF new explosives 
investigators and for Secret Service security initiatives.
  The Boxer amendment, again, adopted, increases penalties for gun and 
explosives crimes. It extends statute of limitations for National 
Firearms Act offenses.
  A Levin amendment, adopted by the Senate, increases penalties for the 
use of explosives.
  A Feinstein amendment, again, adopted, prohibits the distribution of 
bombmaking material intended to be used for a crime.
  A Leahy amendment, first as adopted, assists victims of terrorist 
attacks. It provides assistance and compensation for victims of 
terrorist attacks.
  The Leahy-McCain amendment, as adopted, raises special assessment on 
criminal penalties.
  The Specter-Simon-Kennedy amendment, as adopted, deports criminal 
aliens. It enhances protection of classified information when deporting 
alien terrorists.
  Another Feinstein amendment, also adopted, increases international 
efforts against terrorism. It prohibits arms sales to countries who are 
not cooperating fully with U.S. antiterrorist efforts.
  Particularly with these tough amendments now added to the bill, this 
counterterrorism is a big step forward [[Page S7857]] in giving law 
enforcement new tools to fight and prevent terrorism. I urge my 
colleagues to support the bill.
  The PRESIDING OFFICER. The Senator majority leader.
  Mr. DOLE. Let me announce for my colleagues, we are going to move to 
the telecommunications bill after this vote, and I understand Senator 
Hollings and Senator Pressler are ready to do that. We will have 
opening statements. I have an amendment that I will offer. I think the 
distinguished Democratic leader has an amendment he may offer. These 
amendments may be accepted. But we are trying to find a couple of bona 
fide amendments that can be offered tonight and voted on in the 
morning.
  If that is the case, if we have a couple, we can debate those 
amendments tonight and not have any more votes tonight and have those 
votes in the morning.
  I will assume we can find one additional amendment so this will be 
the last vote tonight. Any votes that are ordered tonight will occur 
probably fairly early in the morning, around 9 o'clock.
  Mr. HATCH. Madam President, are the yeas and nays ordered?
  The PRESIDING OFFICER. No, they have not been ordered.
  Mr. HATCH. I ask for the yeas and nays on final passage.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question now occurs on agreeing to 
amendment No. 1199, as amended.
  So the amendment (No. 1199), as amended, was agreed to.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  The PRESIDING OFFICER. The bill having been read the third time, the 
question is, shall it pass? The yeas and nays have been ordered. The 
clerk will call the roll.
  The legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from North Dakota [Mr. Conrad] 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 91, nays 8, as follows:

                      [Rollcall Vote No. 242 Leg.]

                                YEAS--91

     Abraham
     Akaka
     Ashcroft
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Bradley
     Breaux
     Brown
     Bryan
     Bumpers
     Burns
     Byrd
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Exon
     Faircloth
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Harkin
     Hatch
     Heflin
     Helms
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Murkowski
     Murray
     Nickles
     Nunn
     Pressler
     Pryor
     Reid
     Robb
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Shelby
     Simpson
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--8

     Feingold
     Hatfield
     Moseley-Braun
     Moynihan
     Packwood
     Pell
     Simon
     Wellstone

                             NOT VOTING--1

       
     Conrad
       
  So the bill (S. 735), as amended, was passed as follows:
                                 S. 735
       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Comprehensive Terrorism 
     Prevention Act of 1995''.

     SEC. 2. TABLE OF CONTENTS.

       The table of contents of this Act is as follows:

Sec. 1. Short title.
Sec. 2. Table of contents.

             TITLE I--SUBSTANTIVE CRIMINAL LAW ENHANCEMENTS

Sec. 101. Increased penalty for conspiracies involving explosives.
Sec. 102. Acts of terrorism transcending national boundaries.
Sec. 103. Conspiracy to harm people and property overseas.
Sec. 104. Increased penalties for certain terrorism crimes.
Sec. 105. Mandatory penalty for transferring an explosive material 
              knowing that it will be used to commit a crime of 
              violence.
Sec. 106. Penalty for possession of stolen explosives.
Sec. 107. Enhanced penalties for use of explosives or arson crimes.
Sec. 108. Increased periods of limitation for National Firearms Act 
              violations.

              TITLE II--COMBATING INTERNATIONAL TERRORISM

Sec. 201. Findings.
Sec. 202. Prohibition on assistance to countries that aid terrorist 
              states.
Sec. 203. Prohibition on assistance to countries that provide military 
              equipment to terrorist states.
Sec. 204. Opposition to assistance by international financial 
              institutions to terrorist states.
Sec. 205. Antiterrorism assistance.
Sec. 206. Jurisdiction for lawsuits against terrorist states.
Sec. 207. Report on support for international terrorists.
Sec. 208. Definition of assistance.
Sec. 209. Waiver authority concerning notice of denial of application 
              for visas.
Sec. 210. Membership in a terrorist organization as a basis for 
              exclusion from the United States under the Immigration 
              and Nationality Act.

                        TITLE III--ALIEN REMOVAL

Sec. 301. Alien terrorist removal.
Sec. 302. Extradition of aliens.
Sec. 303. Changes to the Immigration and Nationality Act to facilitate 
              removal of alien terrorists.
Sec. 304. Access to certain confidential immigration and naturalization 
              files through court order.

       TITLE IV--CONTROL OF FUNDRAISING FOR TERRORISM ACTIVITIES

Sec. 401. Prohibition on terrorist fundraising.
Sec. 402. Correction to material support provision.

        TITLE V--ASSISTANCE TO FEDERAL LAW ENFORCEMENT AGENCIES

                  Subtitle A--Antiterrorism Assistance

Sec. 501. Disclosure of certain consumer reports to the Federal Bureau 
              of Investigation for foreign counterintelligence 
              investigations.
Sec. 502. Access to records of common carriers, public accommodation 
              facilities, physical storage facilities, and vehicle 
              rental facilities in foreign counterintelligence and 
              counterterrorism cases.
Sec. 503. Increase in maximum rewards for information concerning 
              international terrorism.

        Subtitle B--Intelligence and Investigation Enhancements

Sec. 511. Study and report on electronic surveillance.
Sec. 512. Authorization for interceptions of communications in certain 
              terrorism related offenses.
Sec. 513. Requirement to preserve evidence.

           Subtitle C--Additional Funding for Law Enforcement

Sec. 521. Federal Bureau of Investigation assistance to combat 
              terrorism.
Sec. 522. Authorization of additional appropriations for the United 
              States Customs Service.
Sec. 523. Authorization of additional appropriations for the 
              Immigration and Naturalization Service.
Sec. 524. Drug Enforcement Administration.
Sec. 525. Department of Justice.
Sec. 526. Authorization of additional appropriations for the Department 
              of the Treasury.
Sec. 527. Funding source.
Sec. 528. Deterrent against Terrorist Activity Damaging a Federal 
              Interest Computer.

               TITLE VI--CRIMINAL PROCEDURAL IMPROVEMENTS

                    Subtitle A--Habeas Corpus Reform

Sec. 601. Filing deadlines.
Sec. 602. Appeal.
Sec. 603. Amendment of Federal Rules of Appellate Procedure.
Sec. 604. Section 2254 amendments.
Sec. 605. Section 2255 amendments.
Sec. 606. Limits on second or successive applications.
Sec. 607. Death penalty litigation procedures.
Sec. 608. Technical amendment.

              Subtitle B--Criminal Procedural Improvements

Sec. 621. Clarification and extension of criminal jurisdiction over 
              certain terrorism offenses overseas.
Sec. 622. Expansion of territorial sea.
Sec. 623. Expansion of weapons of mass destruction statute.
Sec. 624. Addition of terrorism offenses to the RICO statute.
Sec. 625. Addition of terrorism offenses to the money laundering 
              statute. [[Page S7858]] 
Sec. 626. Protection of current or former officials, officers, or 
              employees of the United States.
Sec. 627. Addition of conspiracy to terrorism offenses.
Sec. 628. Clarification of Federal jurisdiction over bomb threats.

                TITLE VII--MARKING OF PLASTIC EXPLOSIVES

Sec. 701. Findings and purposes.
Sec. 702. Definitions.
Sec. 703. Requirement of detection agents for plastic explosives.
Sec. 704. Criminal sanctions.
Sec. 705. Exceptions.
Sec. 706. Investigative authority.
Sec. 707. Effective date.
Sec. 708. Study and requirements for tagging of explosive materials, 
              and study and recommendations for rendering explosive 
              components inert and imposing controls on precursors of 
              explosives.

                     TITLE VIII--NUCLEAR MATERIALS

Sec. 801. Findings and purpose.
Sec. 802. Expansion of scope and jurisdictional bases of nuclear 
              materials prohibitions.

                   TITLE IX--MISCELLANEOUS PROVISIONS

Sec. 901. Prohibition on distribution of information relating to 
              explosive materials for a criminal purpose.
Sec. 902. Designation of Cartney Koch McRaven Child Development Center.
Sec. 903. Foreign air travel safety.
Sec. 904. Proof of citizenship.
Sec. 905. Cooperation of fertilizer research centers.
Sec. 906. Special assessments on convicted persons.
Sec. 907. Prohibition on assistance under Arms Export Control Act for 
              countries not cooperating fully with United States 
              antiterrorism efforts.
Sec. 908. Authority to request military assistance with respect to 
              offenses involving biological and chemical weapons.
Sec. 909. Revision to existing authority for multipoint wiretaps.
Sec. 910. Authorization of additional appropriations for the United 
              States Park Police.
Sec. 911. Authorization of additional appropriations for the 
              Administrative Office of the United States Courts.
Sec. 912. Authorization of additional appropriations for the United 
              States Customs Service.
Sec. 913. Severability.

                   TITLE X--VICTIMS OF TERRORISM ACT

Sec. 1001. Title.
Sec. 1002. Authority to provide assistance and compensation to victims 
              of terrorism.
Sec. 1003. Funding of compensation and assistance to victims of 
              terrorism, mass violence, and crime.
Sec. 1004. Crime victims fund amendments.
             TITLE I--SUBSTANTIVE CRIMINAL LAW ENHANCEMENTS

     SEC. 101. INCREASED PENALTY FOR CONSPIRACIES INVOLVING 
                   EXPLOSIVES.

       Section 844 of title 18, United States Code, is amended by 
     adding at the end the following new subsection:
       ``(n) Except as otherwise provided in this section, a 
     person who conspires to commit any offense defined in this 
     chapter shall be subject to the same penalties (other than 
     the penalty of death) as those prescribed for the offense the 
     commission of which was the object of the conspiracy.''.

     SEC. 102. ACTS OF TERRORISM TRANSCENDING NATIONAL BOUNDARIES.

       (a) Redesignation.--(1) Chapter 113B of title 18, United 
     States Code (relating to torture) is redesignated as chapter 
     113C.
       (2) The chapter analysis of title 18, United States Code, 
     is amended by striking ``113B'' the second place it appears 
     and inserting ``113C''.
       (b) Offense.--Chapter 113B of title 18, United States Code, 
     is amended by inserting after section 2332a the following new 
     section:

     ``Sec. 2332b. Acts of terrorism transcending national 
       boundaries

       ``(a) Prohibited Acts.--
       ``(1) Whoever, in a circumstance described in subsection 
     (b), commits an act within the United States that if 
     committed within the special maritime and territorial 
     jurisdiction of the United States would be in violation of 
     section 113(a), (1), (2), (3), (6), or (7), 114, 1111, 1112, 
     1201, or 1363 shall be punished as prescribed in subsection 
     (c).
       ``(2) Whoever threatens, attempts, or conspires to commit 
     an offense under paragraph (1) shall be punished under 
     subsection (c).
       ``(b) Jurisdictional Bases.--
       ``(1) This section applies to conduct described in 
     subsection (a) if--
       ``(A) the mail, or any facility utilized in interstate 
     commerce, is used in furtherance of the commission of the 
     offense;
       ``(B) the offense obstructs, delays, or affects interstate 
     or foreign commerce in any way or degree, or would have 
     obstructed, delayed, or affected interstate or foreign 
     commerce if the offense had been consummated;
       ``(C) the victim or intended victim is the United States 
     Government or any official, officer, employee, or agent of 
     the legislative, executive, or judicial branches, or of any 
     department or agency, of the United States;
       ``(D) the structure, conveyance, or other real or personal 
     property was in whole or in part owned, possessed, or used 
     by, or leased to the United States, or any department or 
     agency thereof;
       ``(E) the offense is committed in the territorial sea 
     (including the airspace above and the seabed and subsoil 
     below, and artificial islands and fixed structures erected 
     thereon) of the United States; or
       ``(F) the offense is committed in places within the United 
     States that are in the special maritime and territorial 
     jurisdiction of the United States.
       ``(2) Jurisdiction shall exist over all principals, 
     coconspirators, and accessories after the fact, of an offense 
     under subsection (a) if at least one of the circumstances 
     described in paragraph (1) is applicable to at least one 
     offender.
       ``(c) Penalties.--
       ``(1) Whoever violates this section shall, in addition to 
     the punishment provided for any other crime charged in the 
     indictment, be punished--
       ``(A) if death results to any person, by death, or by 
     imprisonment for any term of years or for life;
       ``(B) for kidnapping, by imprisonment for any term of years 
     or for life;
       ``(C) for maiming, by imprisonment for not more than 35 
     years;
       ``(D) for assault with intent to commit murder or any other 
     felony or with a dangerous weapon or assault resulting in 
     serious bodily injury, by imprisonment for not more than 30 
     years;
       ``(E) for destroying or damaging any structure, conveyance, 
     or other real or personal property, by imprisonment for not 
     more than 25 years;
       ``(F) for attempting or conspiring to commit the offense, 
     for any term of years up to the maximum punishment that would 
     have applied had the offense been completed; and
       ``(G) for threatening to commit the offense, by 
     imprisonment for not more than 10 years.
       ``(2) Notwithstanding any other provision of law, the court 
     shall not place on probation any person convicted of a 
     violation of this section.
       ``(d) Limitation on Prosecution.--No indictment for any 
     offense described in this section shall be sought by the 
     United States except after the Attorney General, or the 
     highest ranking subordinate of the Attorney General with 
     responsibility for criminal prosecutions, has made a written 
     certification that, in the judgment of the certifying 
     official--
       ``(1) such offense, or any activity preparatory to its 
     commission, transcended national boundaries; and
       ``(2) the offense appears to have been intended to coerce, 
     intimidate, or retaliate against a government or a civilian 
     population, including any segment thereof.
       ``(e) Investigative Responsibility.--Violations of this 
     section shall be investigated by the Federal Bureau of 
     Investigation. Nothing in this section shall be construed to 
     interfere with the authority of the United States Secret 
     Service under section 3056, or with its investigative 
     authority with respect to sections 871 and 879.
       ``(f) Evidence.--In a prosecution under this section, the 
     United States shall not be required to prove knowledge by any 
     defendant of a jurisdictional base alleged in the indictment.
       ``(g) Extraterritorial Jurisdiction.--There is 
     extraterritorial Federal jurisdiction over--
       ``(1) any offense under subsection (a); and
       ``(2) conduct that, under section 3, renders any person an 
     accessory after the fact to an offense under subsection (a).
       ``(h) Definitions.--As used in this section--
       ``(1) the term `commerce' has the meaning given such term 
     in section 1951(b)(3);
       ``(2) the term `facility utilized in interstate commerce' 
     includes means of transportation, communication, and 
     transmission;
       ``(3) the term `national of the United States' has the 
     meaning given such term in section 101(a)(22) of the 
     Immigration and Nationality Act (8 U.S.C. 1101(a)(22));
       ``(4) the term `serious bodily injury' has the meaning 
     given such term in section 1365(g)(3); and
       ``(5) the term `territorial sea of the United States' means 
     all waters extending seaward to 12 nautical miles from the 
     baselines of the United States determined in accordance with 
     international law.''.
       (c) Technical Amendment.--The chapter analysis for Chapter 
     113B of title 18, United States Code, is amended by inserting 
     after the item relating to section 2332a, the following new 
     item:

``2332b. Acts of terrorism transcending national boundaries.''.
       (d) Statute of Limitations Amendment.--Section 3286 of 
     title 18, United States Code, is amended--
       (1) by striking ``any offense'' and inserting ``any 
     noncapital offense'';
       (2) by striking ``36'' and inserting ``37'';
       (3) by striking ``2331'' and inserting ``2332'';
       (4) by striking ``2339'' and inserting ``2332a''; and
       (5) by inserting ``2332b (acts of terrorism transcending 
     national boundaries),'' after ``(use of weapons of mass 
     destruction),''.
       (e) Presumptive Detention.--Section 3142(e) of title 18, 
     United States Code, is amended by inserting ``or section 
     2332b'' after ``section 924(c)''.
       (f) Expansion of Provision Relating to Destruction or 
     Injury of Property Within [[Page S7859]] Special Maritime and 
     Territorial Jurisdiction.--Section 1363 of title 18, United 
     States Code, is amended by striking ``any building, structure 
     or vessel, any machinery or building materials and supplies, 
     military or naval stores, munitions of war or any structural 
     aids or appliances for navigation or shipping'' and inserting 
     ``any structure, conveyance, or other real or personal 
     property''.

     SEC. 103. CONSPIRACY TO HARM PEOPLE AND PROPERTY OVERSEAS.

       (a) In General.--Section 956 of title 18, United States 
     Code, is amended to read as follows:

     ``Sec. 956. Conspiracy to kill, kidnap, maim, or injure 
       certain property in a foreign country

       ``(a)(1) Whoever, within the jurisdiction of the United 
     States, conspires with one or more other persons, regardless 
     of where such other person or persons is located, to commit 
     at any place outside the United States an act that would 
     constitute the offense of murder, kidnapping, or maiming if 
     committed in the special maritime and territorial 
     jurisdiction of the United States, shall, if he or any such 
     other person commits an act within the jurisdiction of the 
     United States to effect any object of the conspiracy, be 
     punished as provided in paragraph (2).
       ``(2) The punishment for an offense under paragraph (1) 
     is--
       ``(A) imprisonment for any term of years or for life if the 
     offense is conspiracy to murder or kidnap; and
       ``(B) imprisonment for not more than 35 years if the 
     offense is conspiracy to maim.
       ``(b) Whoever, within the jurisdiction of the United 
     States, conspires with one or more persons, regardless of 
     where such other person or persons is located, to injure or 
     destroy specific property situated within a foreign country 
     and belonging to a foreign government or to any political 
     subdivision thereof with which the United States is at peace, 
     or any railroad, canal, bridge, airport, airfield, or other 
     public utility, public conveyance, or public structure, or 
     any religious, educational, or cultural property so situated, 
     shall, if he or any such other person commits an act within 
     the jurisdiction of the United States to effect any object of 
     the conspiracy, be imprisoned not more than 25 years.''.
       (b) Clerical Amendment.--The chapter analysis for chapter 
     45 of title 18, United States Code, is amended by striking 
     the item relating to section 956 and inserting the following:

``956. Conspiracy to kill, kidnap, maim, or injure certain property in 
              a foreign country.''.
     SEC. 104. INCREASED PENALTIES FOR CERTAIN TERRORISM CRIMES.

       (a) In General.--Title 18, United States Code, is amended--
       (1) in section 114, by striking ``maim or disfigure'' and 
     inserting ``torture (as defined in section 2340), maim, or 
     disfigure'';
       (2) in section 755, by striking ``two years'' and inserting 
     ``five years'';
       (3) in section 756, by striking ``one year'' and inserting 
     ``five years'';
       (4) in section 878(a), by striking ``by killing, 
     kidnapping, or assaulting a foreign official, official guest, 
     or internationally protected person'';
       (5) in section 1113, by striking ``three years or fined'' 
     and inserting ``seven years''; and
       (6) in section 2332(c), by striking ``five'' and inserting 
     ``ten''.
       (b) Penalty for Carrying Weapons or Explosives on an 
     Aircraft.--Section 46505 of title 49, United States Code, is 
     amended--
       (1) in subsection (b), by striking ``one'' and inserting 
     ``10''; and
       (2) in subsection (c), by striking ``5'' and inserting 
     ``15''.

     SEC. 105. MANDATORY PENALTY FOR TRANSFERRING AN EXPLOSIVE 
                   MATERIAL KNOWING THAT IT WILL BE USED TO COMMIT 
                   A CRIME OF VIOLENCE.

       Section 844 of title 18, United States Code, is amended by 
     adding at the end the following new subsection:
       ``(n) Whoever knowingly transfers an explosive material, 
     knowing or having reasonable cause to believe that such 
     explosive material will be used to commit a crime of violence 
     (as defined in section 924(c)(3)) or drug trafficking crime 
     (as defined in section 924(c)(2)) shall be imprisoned for not 
     less than 10 years, fined under this title, or both.''.

     SEC. 106. PENALTY FOR POSSESSION OF STOLEN EXPLOSIVES.

       Section 842(h) of title 18, United States Code, is amended 
     to read as follows:
       ``(h) It shall be unlawful for any person to receive, 
     possess, transport, ship, conceal, store, barter, sell, 
     dispose of, pledge, or accept as security for a loan, any 
     stolen explosive material that is moving in, part of, 
     constitutes, or has been shipped or transported in, 
     interstate or foreign commerce, either before or after such 
     material was stolen, knowing or having reasonable cause to 
     believe that the explosive material was stolen.''.

     SEC. 107. ENHANCED PENALTIES FOR USE OF EXPLOSIVES OR ARSON 
                   CRIMES.

       Section 844 of title 18, United States Code, is amended--
       (1) in subsection (e), by striking ``five'' and inserting 
     ``10'';
       (2) by amending subsection (f) to read as follows:
       ``(f)(1) Whoever maliciously damages or destroys, or 
     attempts to damage or destroy, by means of fire or an 
     explosive, any building, vehicle, or other personal or real 
     property in whole or in part owned or possessed by, or leased 
     to, the United States, or any department or agency thereof, 
     shall be imprisoned for not less than 5 years and not more 
     than 20 years. The court may order a fine of not more than 
     the greater of $100,000 or the cost of repairing or replacing 
     any property that is damaged or destroyed.
       ``(2) Whoever engages in conduct prohibited by this 
     subsection, and as a result of such conduct directly or 
     proximately causes personal injury to any person, including 
     any public safety officer performing duties, shall be 
     imprisoned not less than 7 years and not more than 40 years. 
     The court may order a fine of not more than the greater of 
     $200,000 or the cost of repairing or replacing any property 
     that is damaged or destroyed.
       ``(3) Whoever engages in conduct prohibited by this 
     subsection, and as a result of such conduct directly or 
     proximately causes the death of any person, including any 
     public safety officer performing duties, shall be imprisoned 
     for a term of years or for life, or sentenced to death. The 
     court may order a fine of not more than the greater of 
     $200,000 or the cost of repairing or replacing any property 
     that is damaged or destroyed.''.
       (4) in subsection (h)--
       (A) in the first sentence by striking ``5 years but not 
     more than 15 years'' and inserting ``10 years''; and
       (B) in the second sentence by striking ``10 years but not 
     more than 25 years'' and inserting ``20 years''; and
       (5) in subsection (i)--
       (A) by striking ``not more than 20 years, fined the greater 
     of a fine under this title or the cost of repairing or 
     replacing any property that is damaged or destroyed,'' and 
     inserting ``not less than 5 years and not more than 20 years, 
     fined the greater of $100,000 or the cost of repairing or 
     replacing any property that is damaged or destroyed'';
       (B) by striking ``not more than 40 years, fined the greater 
     of a fine under this title or the cost of repairing or 
     replacing any property that is damaged or destroyed,'' and 
     inserting ``not less than 7 years and not more than 40 years, 
     fined the greater of $200,000 or the cost of repairing or 
     replacing any property that is damaged or destroyed''; and
       (C) by striking ``7 years'' and inserting ``10 years''.

     SEC. 108. INCREASED PERIODS OF LIMITATION FOR NATIONAL 
                   FIREARMS ACT VIOLATIONS.

       Section 6531 of the Internal Revenue Code of 1986 is 
     amended--
       (1) by redesignating paragraphs (1) through (8) as 
     subparagraphs (A) through (H), respectively; and
       (2) by amending the matter immediately preceding 
     subparagraph (A), as redesignated, to read as follows: ``No 
     person shall be prosecuted, tried, or punished for any 
     criminal offense under the internal revenue laws unless the 
     indictment is found or the information instituted not later 
     than 3 years after the commission of the offense, except that 
     the period of limitation shall be--
       ``(1) 5 years for offenses described in section 5861 
     (relating to firearms and other devices); and
       ``(2) 6 years--.''.
              TITLE II--COMBATING INTERNATIONAL TERRORISM

     SEC. 201. FINDINGS.

       The Congress finds that--
       (1) international terrorism is among the most serious 
     transnational threats faced by the United States and its 
     allies, far eclipsing the dangers posed by population growth 
     or pollution;
       (2) the President should continue to make efforts to 
     counter international terrorism a national security priority;
       (3) because the United Nations has been an inadequate forum 
     for the discussion of cooperative, multilateral responses to 
     the threat of international terrorism, the President should 
     undertake immediate efforts to develop effective multilateral 
     responses to international terrorism as a complement to 
     national counterterrorist efforts;
       (4) the President should use all necessary means, including 
     covert action and military force, to disrupt, dismantle, and 
     destroy international infrastructure used by international 
     terrorists, including overseas terrorist training facilities 
     and safe havens;
       (5) the Congress deplores decisions to ease, evade, or end 
     international sanctions on state sponsors of terrorism, 
     including the recent decision by the United Nations Sanctions 
     Committee to allow airline flights to and from Libya despite 
     Libya's noncompliance with United Nations resolutions; and
       (6) the President should continue to undertake efforts to 
     increase the international isolation of state sponsors of 
     international terrorism, including efforts to strengthen 
     international sanctions, and should oppose any future 
     initiatives to ease sanctions on Libya or other state 
     sponsors of terrorism.

     SEC. 202. PROHIBITION ON ASSISTANCE TO COUNTRIES THAT AID 
                   TERRORIST STATES.

       The Foreign Assistance Act of 1961 (22 U.S.C. 151 et seq.) 
     is amended by adding immediately after section 620F the 
     following new section:

     ``SEC. 620G. PROHIBITION ON ASSISTANCE TO COUNTRIES THAT AID 
                   TERRORIST STATES.

       ``(a) Prohibition.--No assistance under this Act shall be 
     provided to the government of any country that provides 
     assistance to the government of any other country for which 
     the Secretary of State has made a determination under section 
     620A''. [[Page S7860]] 
       ``(b) Waiver.--Assistance prohibited by this section may be 
     furnished to a foreign government described in subsection (a) 
     if the President determines that furnishing such assistance 
     is important to the national interests of the United States 
     and, not later than 15 days before obligating such 
     assistance, furnishes a report to the appropriate committees 
     of Congress including--
       ``(1) a statement of the determination;
       ``(2) a detailed explanation of the assistance to be 
     provided;
       ``(3) the estimated dollar amount of the assistance; and
       ``(4) an explanation of how the assistance furthers United 
     States national interests.''.

     SEC. 203. PROHIBITION ON ASSISTANCE TO COUNTRIES THAT PROVIDE 
                   MILITARY EQUIPMENT TO TERRORIST STATES.

       The Foreign Assistance Act of 1961 (22 U.S.C. 151 et seq.) 
     is amended by adding immediately after section 620G the 
     following new section:

     ``SEC. 620H. PROHIBITION ON ASSISTANCE TO COUNTRIES THAT 
                   PROVIDE MILITARY EQUIPMENT TO TERRORIST STATES.

       ``(a) Prohibition.--
       ``(1) In general.--No assistance under this Act shall be 
     provided to the government of any country that provides 
     lethal military equipment to a country the government of 
     which the Secretary of State has determined is a terrorist 
     government for the purposes of 6(j) of the Export 
     Administration Act of 1979 (50 U.S.C. App. 2405(j)), or 620A 
     of the Foreign Assistance Act of 1961 (22 U.S.C. 2371).
       ``(2) Applicability.--The prohibition under this section 
     with respect to a foreign government shall terminate 1 year 
     after that government ceases to provide lethal military 
     equipment. This section applies with respect to lethal 
     military equipment provided under a contract entered into 
     after the date of enactment of this Act.
       ``(b) Waiver.--Notwithstanding any other provision of law, 
     assistance may be furnished to a foreign government described 
     in subsection (a) if the President determines that furnishing 
     such assistance is important to the national interests of the 
     United States and, not later than 15 days before obligating 
     such assistance, furnishes a report to the appropriate 
     committees of Congress including--
       ``(1) a statement of the determination;
       ``(2) a detailed explanation of the assistance to be 
     provided;
       ``(3) the estimated dollar amount of the assistance; and
       ``(4) an explanation of how the assistance furthers United 
     States national interests.''.

     SEC. 204. OPPOSITION TO ASSISTANCE BY INTERNATIONAL FINANCIAL 
                   INSTITUTIONS TO TERRORIST STATES.

       The International Financial Institutions Act (22 U.S.C. 
     262c et seq.) is amended by inserting after section 1620 the 
     following new section:

     ``SEC. 1621. OPPOSITION TO ASSISTANCE BY INTERNATIONAL 
                   FINANCIAL INSTITUTIONS TO TERRORIST STATES.

       ``(a) In General.--The Secretary of the Treasury shall 
     instruct the United States executive director of each 
     international financial institution to vote against any loan 
     or other use of the funds of the respective institution to or 
     for a country for which the Secretary of State has made a 
     determination under section 6(j) of the Export Administration 
     Act of 1979 (50 U.S.C. App. 2405(j)) or section 620A of the 
     Foreign Assistance Act of 1961 (22 U.S.C. 2371).
       ``(b) Definition.--For purposes of this section, the term 
     `international financial institution' includes--
       ``(1) the International Bank for Reconstruction and 
     Development, the International Development Association, and 
     the International Monetary Fund;
       ``(2) wherever applicable, the Inter-American Bank, the 
     Asian Development Bank, the European Bank for Reconstruction 
     and Development, the African Development Bank, and the 
     African Development Fund; and
       ``(3) any similar institution established after the date of 
     enactment of this section.''.

     SEC. 205. ANTITERRORISM ASSISTANCE.

       (a) Foreign Assistance Act.--Section 573 of the Foreign 
     Assistance Act of 1961 (22 U.S.C. 2349aa-2) is amended--
       (1) in subsection (c), by striking ``development and 
     implementation of the antiterrorism assistance program under 
     this chapter, including'';
       (2) by amending subsection (d) to read as follows:
       ``(d)(1) Arms and ammunition may be provided under this 
     chapter only if they are directly related to antiterrorism 
     assistance.
       ``(2) The value (in terms of original acquisition cost) of 
     all equipment and commodities provided under this chapter in 
     any fiscal year shall not exceed 30 percent of the funds made 
     available to carry out this chapter for that fiscal year.''; 
     and
       (3) by striking subsection (f).
       (b) Assistance to Foreign Countries To Procure Explosives 
     Detection Devices and Other Counterterrorism Technology.--(1) 
     Subject to section 575(b), up to $3,000,000 in any fiscal 
     year may be made available--
       (A) to procure explosives detection devices and other 
     counterterrorism technology; and
       (B) for joint counterterrorism research and development 
     projects on such technology conducted with NATO and major 
     non-NATO allies under the auspices of the Technical Support 
     Working Group of the Department of State.
       (2) As used in this subsection, the term ``major non-NATO 
     allies'' means those countries designated as major non-NATO 
     allies for purposes of section 2350a(i)(3) of title 10, 
     United States Code.
       (c) Assistance to Foreign Countries.--Notwithstanding any 
     other provision of law (except section 620A of the Foreign 
     Assistance Act of 1961) up to $1,000,000 in assistance may be 
     provided to a foreign country for counterterrorism efforts in 
     any fiscal year if--
       (1) such assistance is provided for the purpose of 
     protecting the property of the United States Government or 
     the life and property of any United States citizen, or 
     furthering the apprehension of any individual involved in any 
     act of terrorism against such property or persons; and
       (2) the appropriate committees of Congress are notified not 
     later than 15 days prior to the provision of such assistance.

     SEC. 206. JURISDICTION FOR LAWSUITS AGAINST TERRORIST STATES.

       (a) Exception to Foreign Sovereign Immunity for Certain 
     Cases.--Section 1605 of title 28, United States Code, is 
     amended--
       (1) in subsection (a)--
       (A) by striking the period at the end of paragraph (6) and 
     inserting ``; or'' and
       (B) by adding at the end the following new paragraph:
       ``(7) not otherwise covered by paragraph (2) in which money 
     damages are sought against a foreign government for personal 
     injury or death that was caused by an act of torture, 
     extrajudicial killing, aircraft sabotage, hostage taking, or 
     the provision of material support or resources (as defined in 
     section 2339A of title 18, United States Code) for a person 
     carrying out such an act, by a foreign state or by any 
     official, employee, or agent of such foreign state while 
     acting within the scope of his or her office, employment, or 
     agency, except that--
       ``(A) the claimant must first afford the foreign state a 
     reasonable opportunity to arbitrate the claim in accordance 
     with accepted international rules of arbitration; and
       ``(B) an action under this paragraph shall not be 
     maintained unless the act upon which the claim is based--
       ``(i) occurred while the individual bringing the claim was 
     a national of the United States (as that term is defined in 
     section 101(a)(2) of the Immigration and Nationality Act); 
     and
       ``(ii) occurred while the foreign state was designated as a 
     state sponsor of terrorism under section 6(j) of the Export 
     Administration Act of 1979 (50 App. U.S.C. 2405(j)) or 
     section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 
     2371).''; and
       (2) by adding at the end the following new subsection:
       ``(e) For purposes of paragraph (7)--
       ``(1) the terms `torture' and `extrajudicial killing' have 
     the meaning given those terms in section 3 of the Torture 
     Victim Protection Act of 1991 (28 U.S.C. 350 note);
       ``(2) the term `hostage taking' has the meaning given such 
     term in Article 1 of the International Convention Against the 
     Taking of Hostages; and
       ``(3) the term `aircraft sabotage' has the meaning given 
     such term in Article 1 of the Convention for the Suppression 
     of Unlawful Acts Against the Safety of Civil Aviation.''.
       (b) Exception to Immunity From Attachment.--
       (1) Foreign state.--Section 1610(a) of title 28, United 
     States Code, is amended--
       (A) by striking the period at the end of paragraph (6) and 
     inserting ``, or''; and
       (B) by adding at the end the following new paragraph:
       ``(7) the judgment relates to a claim for which the foreign 
     state is not immune under section 1605(a)(7), regardless of 
     whether the property is or was involved with the act upon 
     which the claim is based.''.
       (2) Agency or instrumentality.--Section 1610(b)(2) of such 
     title is amended--
       (A) by striking ``or (5)'' and inserting ``(5), or (7)''; 
     and
       (B) by striking ``used for the activity'' and inserting 
     ``involved in the act''.
       (c) Applicability.--The amendments made by this title shall 
     apply to any cause of action arising before, on, or after the 
     date of the enactment of this Act.

     SEC. 207. REPORT ON SUPPORT FOR INTERNATIONAL TERRORISTS.

       Not later than 60 days after the date of enactment of this 
     Act, and annually thereafter in the report required by 
     section 140 of the Foreign Relations Authorization Act, 
     Fiscal Years 1988 and 1989 (22 U.S.C. 2656f), the Secretary 
     of State shall submit a report to the Speaker of the House of 
     Representatives and the Committee on Foreign Relations of the 
     Senate that includes--
       (1) a detailed assessment of international terrorist groups 
     including their--
       (A) size, leadership, and sources of financial and 
     logistical support;
       (B) goals, doctrine, and strategy;
       (C) nature, scope, and location of human and technical 
     infrastructure;
       (D) level of education and training;
       (E) bases of operation and recruitment;
       (F) operational capabilities; and
       (G) linkages with state and non-state actors such as ethnic 
     groups, religious communities, or criminal organizations;
       (2) a detailed assessment of any country that provided 
     support of any type for international terrorism, terrorist 
     groups, or individual terrorists, including countries that 
     knowingly allowed terrorist groups or individuals to transit 
     or reside in their territory, regardless of whether terrorist 
     acts were [[Page S7861]] committed on their territory by such 
     individuals;
       (3) a detailed assessment of individual country efforts to 
     take effective action against countries named in section 6(j) 
     of the Export Administration Act of 1979 (50 U.S.C. App. 
     2405(j)), including the status of compliance with 
     international sanctions and the status of bilateral economic 
     relations; and
       (4) United States Government efforts to implement this 
     title.

     SEC. 208. DEFINITION OF ASSISTANCE.

       For purposes of this title--
       (1) the term ``assistance'' means assistance to or for the 
     benefit of a government of any country that is provided by 
     grant, concessional sale, guaranty, insurance, or by any 
     other means on terms more favorable than generally available 
     in the applicable market, whether in the form of a loan, 
     lease, credit, debt relief, or otherwise, including subsidies 
     for exports to such country and favorable tariff treatment of 
     articles that are the growth, product, or manufacture of such 
     country; and
       (2) the term ``assistance'' does not include assistance of 
     the type authorized under chapter 9 of part 1 of the Foreign 
     Assistance Act of 1961 (relating to international disaster 
     assistance).

     SEC. 209. WAIVER AUTHORITY CONCERNING NOTICE OF DENIAL OF 
                   APPLICATION FOR VISAS.

       Section 212(b) of the Immigration and Nationality Act (8 
     U.S.C. 1182(b)) is amended--
       (1) by redesignating paragraphs (1) and (2) as 
     subparagraphs (A) and (B), respectively;
       (2) by striking ``If'' and inserting ``(1) Subject to 
     paragraph (2), if''; and
       (3) by inserting at the end the following paragraph:
       ``(2) With respect to applications for visas, the Secretary 
     of State may waive the application of paragraph (1) in the 
     case of a particular alien or any class or classes of 
     excludable aliens, except in cases of intent to immigrate.''.

     SEC. 210. MEMBERSHIP IN A TERRORIST ORGANIZATION AS A BASIS 
                   FOR EXCLUSION FROM THE UNITED STATES UNDER THE 
                   IMMIGRATION AND NATIONALITY ACT.

       Section 212(a)(3)(B) of the Immigration and Nationality Act 
     (8 U.S.C. 1182(a)(3)(B)) is amended--
       (1) in clause (i)--
       (A) by striking ``or'' at the end of subclause (I);
       (B) by inserting ``or'' at the end of subclause (II); and
       (C) by inserting after subclause (II) the following new 
     subclause:

       ``(III) is a member of a terrorist organization or who 
     actively supports or advocates terrorist activity,''; and

       (2) by adding at the end the following new clause:
       ``(iv) Terrorist organization defined.--As used in this 
     subparagraph, the term `terrorist organization' means an 
     organization that engages in, or has engaged in, terrorist 
     activity as designated by the Secretary of State, after 
     consultation with the Secretary of the Treasury.''.
                        TITLE III--ALIEN REMOVAL

     SEC. 301. ALIEN TERRORIST REMOVAL.

       (a) Table of Contents.--The Immigration and Nationality Act 
     is amended by adding at the end of the table of contents the 
     following:

             ``TITLE V--ALIEN TERRORIST REMOVAL PROCEDURES

``501. Definitions.
``502. Applicability.
``503. Removal of alien terrorists.''.
       (b) Alien Terrorist Removal.--The Immigration and 
     Nationality Act is amended by adding at the end the following 
     new title:
             ``TITLE V--ALIEN TERRORIST REMOVAL PROCEDURES

     ``SEC. 501. DEFINITIONS.

       ``As used in this title--
       ``(1) the term `alien terrorist' means any alien described 
     in section 241(a)(4)(B);
       ``(2) the term `classified information' has the same 
     meaning as defined in section 1(a) of the Classified 
     Information Procedures Act (18 U.S.C. App. IV);
       ``(3) the term `national security' has the same meaning as 
     defined in section 1(b) of the Classified Information 
     Procedures Act (18 U.S.C. App. IV);
       ``(4) the term `special court' means the court described in 
     section 503(c); and
       ``(5) the term `special removal hearing' means the hearing 
     described in section 503(e).

     ``SEC. 502. APPLICABILITY.

       ``(a) In General.--The provisions of this title may be 
     followed in the discretion of the Attorney General whenever 
     the Department of Justice has classified information that an 
     alien described in section 241(a)(4)(B) is subject to 
     deportation because of such section.
       ``(b) Procedures.--Whenever an official of the Department 
     of Justice files, under section 503(a), an application with 
     the court established under section 503(c) for authorization 
     to seek removal pursuant to this title, the alien's rights 
     regarding removal and expulsion shall be governed solely by 
     the provisions of this title, except as specifically 
     provided.

     ``SEC. 503. REMOVAL OF ALIEN TERRORISTS.

       ``(a) Application for Use of Procedures.--This section 
     shall apply whenever the Attorney General certifies under 
     seal to the special court that--
       ``(1) the Attorney General or Deputy Attorney General has 
     approved of the proceeding under this section;
       ``(2) an alien terrorist is physically present in the 
     United States; and
       ``(3) removal of such alien terrorist by deportation 
     proceedings described in sections 242, 242A, or 242B would 
     pose a risk to the national security of the United States 
     because such proceedings would disclose classified 
     information.
       ``(b) Custody and Release Pending Hearing.--(1) The 
     Attorney General may take into custody any alien with respect 
     to whom a certification has been made under subsection (a), 
     and notwithstanding any other provision of law, may retain 
     such alien in custody in accordance with this subsection.
       ``(2)(A) An alien with respect to whom a certification has 
     been made under subsection (a) shall be given a release 
     hearing before the special court designated pursuant to 
     subsection (c).
       ``(B) The judge shall grant the alien release, subject to 
     such terms and conditions prescribed by the court (including 
     the posting of any monetary amount), pending the special 
     removal hearing if--
       ``(i) the alien is lawfully present in the United States;
       ``(ii) the alien demonstrates that the alien, if released, 
     is not likely to flee; and
       ``(iii) the alien demonstrates that release of the alien 
     will not endanger national security or the safety of any 
     person or the community.
       ``(C) The judge may consider classified information 
     submitted in camera and ex parte in making a determination 
     whether to release an alien pending the special hearing.
       ``(c) Special Court.--(1) The Chief Justice of the United 
     States shall publicly designate not more than 5 judges from 
     up to 5 United States judicial districts to hear and decide 
     cases arising under this section, in a manner consistent with 
     the designation of judges described in section 103(a) of the 
     Foreign Intelligence Surveillance Act (50 U.S.C. 1803(a)).
       ``(2) The Chief Justice may, in the Chief Justice's 
     discretion, designate the same judges under this section as 
     are designated pursuant to section 103(a) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)).
       ``(d) Invocation of Special Court Procedure.--(1) When the 
     Attorney General makes the application described in 
     subsection (a), a single judge of the special court shall 
     consider the application in camera and ex parte.
       ``(2) The judge shall invoke the procedures of subsection 
     (e) if the judge determines that there is probable cause to 
     believe that--
       ``(A) the alien who is the subject of the application has 
     been correctly identified and is an alien as described in 
     section 241(a)(4)(B); and
       ``(B) a deportation proceeding described in section 242, 
     242A, or 242B would pose a risk to the national security of 
     the United States because such proceedings would disclose 
     classified information.
       ``(e) Special Removal Hearing.--(1) Except as provided in 
     paragraph (5), the special removal hearing authorized by a 
     showing of probable cause described in subsection (d)(2) 
     shall be open to the public.
       ``(2) The alien shall have a reasonable opportunity to be 
     present at such hearing and to be represented by counsel. Any 
     alien financially unable to obtain counsel shall be entitled 
     to have counsel assigned to represent such alien. Counsel may 
     be appointed as described in section 3006A of title 18, 
     United States Code.
       ``(3) The alien shall have a reasonable opportunity to 
     introduce evidence on his own behalf, and except as provided 
     in paragraph (5), shall have a reasonable opportunity to 
     cross-examine any witness or request that the judge issue a 
     subpoena for the presence of a named witness.
       ``(4)(A) An alien subject to removal under this section 
     shall have no right--
       ``(i) of discovery of information derived from electronic 
     surveillance authorized under the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 801 et seq.) or otherwise 
     for national security purposes if disclosure would present a 
     risk to the national security; or
       ``(ii) to seek the suppression of evidence that the alien 
     alleges was unlawfully obtained, except on grounds of 
     credibility or relevance.
       ``(B) The Government is authorized to use, in the removal 
     proceedings, the fruits of electronic surveillance and 
     unconsented physical searches authorized under the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 801 et seq.) 
     without regard to subsections 106 (c), (e), (f), (g), and (h) 
     of such Act.
       ``(C) Section 3504 of title 18, United States Code, shall 
     not apply to procedures under this section if the Attorney 
     General determines that public disclosure would pose a risk 
     to the national security of the United States because it 
     would disclose classified information.
       ``(5) The judge shall authorize the introduction in camera 
     and ex parte of any evidence for which the Attorney General 
     determines that public disclosure would pose a risk to the 
     national security of the United States because it would 
     disclose classified information. With respect to such 
     evidence, the Attorney General shall submit to the court an 
     unclassified summary of the specific evidence prepared in 
     accordance with paragraph (6).
       ``(6)(A) The information submitted under paragraph (5)(B) 
     shall contain an unclassified summary of the classified 
     information [[Page S7862]] that does not pose a risk to 
     national security.
       ``(B) The judge shall approve the summary within 15 days of 
     submission if the judge finds that it is sufficient to inform 
     the alien of the nature of the evidence that such person is 
     an alien as described in section 241(a), and to provide the 
     alien with substantially the same ability to make his defense 
     as would disclosure of the classified information.
       ``(C) The Attorney General shall cause to be delivered to 
     the alien a copy of the unclassified summary approved under 
     subparagraph (B).
       ``(D) If the written unclassified summary is not approved 
     by the court pursuant to subparagraph (B), the Department of 
     Justice shall be afforded 15 days to correct the deficiencies 
     identified by the court and submit a revised unclassified 
     summary.
       ``(E) If the revised unclassified summary is not approved 
     by the court within 15 days of its submission pursuant to 
     subparagraph (B), the special removal hearing shall be 
     terminated unless the court, within that time, after 
     reviewing the classified information in camera and ex parte, 
     issues written findings that--
       ``(i) the alien's continued presence in the United States 
     would likely cause--
       ``(I) serious and irreparable harm to the national 
     security; or
       ``(II) death or serious bodily injury to any person; and
       ``(ii) provision of either the classified information or an 
     unclassified summary that meets the standard set forth in 
     subparagraph (B) would likely cause--
       ``(I) serious and irreparable harm to the national 
     security; or
       ``(II) death or serious bodily injury to any person; and
       ``(iii) the unclassified summary prepared by the Justice 
     Department is adequate to allow the alien to prepare a 
     defense.
       ``(F) If the court issues such findings, the special 
     removal proceeding shall continue, and the Attorney General 
     shall cause to be delivered to the alien within 15 days of 
     the issuance of such findings a copy of the unclassified 
     summary together with a statement that it meets the standard 
     set forth in subparagraph (E)(iii).
       ``(G)(i) Within 10 days of filing of the appealable order 
     the Department of Justice may take an interlocutory appeal to 
     the United States Court of Appeals for the District of 
     Columbia Circuit of--
       ``(I) any determination made by the judge concerning the 
     requirements set forth in subparagraph (B).
       ``(II) any determination made by the judge concerning the 
     requirements set forth in subparagraph (E).
       ``(ii) In an interlocutory appeal taken under this 
     paragraph, the entire record, including any proposed order of 
     the judge or summary of evidence, shall be transmitted to the 
     Court of Appeals under seal, and the matter shall be heard ex 
     parte. The Court of Appeals shall consider the appeal as 
     expeditiously as possible, but no later than 30 days after 
     filing of the appeal.
       ``(f) Determination of Deportation.--The judge shall, 
     considering the evidence on the record as a whole (in camera 
     and otherwise), require that the alien be deported if the 
     Attorney General proves, by clear and convincing evidence, 
     that the alien is subject to deportation because such alien 
     is an alien as described in section 241(a)(4)(B). If the 
     judge finds that the Department of Justice has met this 
     burden, the judge shall order the alien removed and, if the 
     alien was released pending the special removal proceeding, 
     order the Attorney General to take the alien into custody.
       ``(g) Appeals.--(1) The alien may appeal a final 
     determination under subsection (f) to the United States Court 
     of Appeals for the District of Columbia Circuit, by filing a 
     notice of appeal with such court not later than 30 days after 
     the determination is made. An appeal under this section shall 
     be heard by the Court of Appeals sitting en banc.
       ``(2) The Attorney General may appeal a determination under 
     subsection (d), (e), or (f) to the Court of Appeals for the 
     District of Columbia Circuit, by filing a notice of appeal 
     with such court not later than 20 days after the 
     determination is made under any one of such subsections.
       ``(3) If the Department of Justice does not seek review, 
     the alien shall be released from custody, unless such alien 
     may be arrested and taken into custody pursuant to title II 
     as an alien subject to deportation, in which case such alien 
     shall be treated in accordance with the provisions of this 
     Act concerning the deportation of aliens.
       ``(4) If the application for the order is denied because 
     the judge has not found probable cause to believe that the 
     alien who is the subject of the application has been 
     correctly identified or is an alien as described in paragraph 
     4(B) of section 241(a), and the Department of Justice seeks 
     review, the alien shall be released from custody unless such 
     alien may be arrested and taken into custody pursuant to 
     title II as an alien subject to deportation, in which case 
     such alien shall be treated in accordance with the provisions 
     of this Act concerning the deportation of aliens 
     simultaneously with the application of this title.
       ``(5)(A) If the application for the order is denied based 
     on a finding that no probable cause exists to find that 
     adherence to the provisions of title II regarding the 
     deportation of the identified alien would pose a risk of 
     irreparable harm to the national security of the United 
     States, or death or serious bodily injury to any person, the 
     judge shall release the alien from custody subject to the 
     least restrictive condition or combination of conditions of 
     release described in section 3142(b) and (c)(1)(B) (i) 
     through (xiv) of title 18, United States Code, that will 
     reasonably ensure the appearance of the alien at any future 
     proceeding pursuant to this title and will not endanger the 
     safety of any other person or the Community.
       ``(B) The alien shall remain in custody if the court fails 
     to make a finding under subparagraph (A), until the 
     completion of any appeal authorized by this title. Sections 
     3145 through 3148 of title 18, United States Code, pertaining 
     to review and appeal of a release or detention order, 
     penalties for failure to appear, penalties for an offense 
     committed while on release, and sanctions for violation of a 
     release condition, shall apply to an alien to whom the 
     previous sentence applies and--
       ``(i) for purposes of section 3145 of such title, an appeal 
     shall be taken to the United States Court of Appeals for the 
     District of Columbia Circuit; and
       ``(ii) for purposes of section 3146 of such title the alien 
     shall be considered released in connection with a charge of 
     an offense punishable by life imprisonment.
       ``(6) When requested by the Attorney General, the entire 
     record of the proceeding under this section shall be 
     transmitted to the court of appeals or the Supreme Court 
     under seal. The court of appeals or Supreme Court may 
     consider such appeal in camera.''.

     SEC. 302. EXTRADITION OF ALIENS.

       (a) Scope.--Section 3181 of title 18, United States Code, 
     is amended--
       (1) by inserting ``(a)'' before ``The provisions of this 
     chapter''; and
       (2) by adding at the end the following new subsections:
       ``(b) The provisions of this chapter shall be construed to 
     permit, in the exercise of comity, the surrender of persons, 
     other than citizens, nationals, or permanent residents of the 
     United States, who have committed crimes of violence against 
     nationals of the United States in foreign countries without 
     regard to the existence of any treaty of extradition with 
     such foreign government if the Attorney General certifies, in 
     writing, that--
       ``(1) evidence has been presented by the foreign government 
     that indicates that had the offenses been committed in the 
     United States, they would constitute crimes of violence as 
     defined under section 16 of this title; and
       ``(2) the offenses charged are not of a political nature.
       ``(c) As used in this section, the term `national of the 
     United States' has the meaning given such term in section 
     101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 
     1101(a)(22)).''.
       (b) Fugitives.--Section 3184 of title 18, United States 
     Code, is amended--
       (1) in the first sentence by inserting after ``United 
     States and any foreign government,'' the following: ``or in 
     cases arising under section 3181(b),'';
       (2) in the first sentence by inserting after ``treaty or 
     convention,'' the following: ``or provided for under section 
     3181(b),''; and
       (3) in the third sentence by inserting after ``treaty or 
     convention,'' the following: ``or under section 3181(b),''.

     SEC. 303. CHANGES TO THE IMMIGRATION AND NATIONALITY ACT TO 
                   FACILITATE REMOVAL OF ALIEN TERRORISTS.

       (a) Terrorism Activities.--Section 212(a)(3)(B) of the 
     Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)) is 
     amended to read as follows:
       ``(B) Terrorism activities.--
       ``(i) In general.--Any alien who--

       ``(I) has engaged in a terrorism activity, or
       ``(II) a consular officer or the Attorney General knows, or 
     has reason to believe, is likely to engage after entry in any 
     terrorism activity (as defined in clause (iii)),

     is excludable. An alien who is an officer, official, 
     representative, or spokesman of any terrorist organization 
     designated as a terrorist organization by proclamation by the 
     President after finding such organization to be detrimental 
     to the interest of the United States, or any person who 
     directs, counsels, commands, or induces such organization or 
     its members to engage in terrorism activity, shall be 
     considered, for purposes of this Act, to be engaged in 
     terrorism activity.
       ``(ii) Terrorism activity defined.--As used in this Act, 
     the term `terrorism activity' means any activity that is 
     unlawful under the laws of the place where it is committed 
     (or which, if it had been committed in the United States, 
     would be unlawful under the laws of the United States or any 
     State), and that involves any of the following:

       ``(I) The hijacking or sabotage of any conveyance 
     (including an aircraft, vessel, or vehicle).
       ``(II) The seizing or detaining, and threatening to kill, 
     injure, or continue to detain, another individual to compel a 
     third person (including a governmental organization) to do or 
     abstain from doing any act as an explicit or implicit 
     condition for the release of the individual seized or 
     detained.
       ``(III) A violent attack upon an internationally protected 
     person (as defined in section 1116(b)(4) of title 18, United 
     States Code) or upon the liberty of such a person.
       ``(IV) An assassination.
       ``(V) The use of any--

       ``(aa) biological agent, chemical agent, or nuclear weapon 
     or device, or [[Page S7863]] 
       ``(bb) explosive, firearm, or other weapon (other than for 
     mere personal monetary gain),

     with intent to endanger, directly, or indirectly, the safety 
     of one or more individuals or to cause substantial damage to 
     property.
       ``(VI) A threat, attempt, or conspiracy to do any of the 
     foregoing.

       ``(iii) Engage in terrorism activity defined.--As used in 
     this Act, the term `engage in terrorism activity' means to 
     commit, in an individual capacity or as a member of an 
     organization, an act of terrorism activity, or an act that 
     the actor knows affords material support to any individual, 
     organization, or government that the actor knows plans to 
     commit terrorism activity, including any of the following 
     acts:

       ``(I) The preparation or planning of terrorism activity.
       ``(II) The gathering of information on potential targets 
     for terrorism activity.
       ``(III) The providing of any type of material support, 
     including a safe house, transportation, communications, 
     funds, false documentation or identification, weapons, 
     explosives, or training.
       ``(IV) The soliciting of funds or other things of value for 
     terrorism activity or for any terrorist organization.
       ``(V) The solicitation of any individual for membership in 
     a terrorist organization, terrorist government, or to engage 
     in a terrorism activity.

       ``(iv) Terrorist organization defined.--As used in this 
     Act, the term `terrorist organization' means--

       ``(I) an organization engaged in, or that has a significant 
     subgroup that engages in, terrorism activity, regardless of 
     any legitimate activities conducted by the organization or 
     its subgroups; and
       ``(II) an organization designated by the Secretary of State 
     under section 2339B of title 18.''.

       (b) Deportable Aliens.--Section 241(a)(4)(B) of the 
     Immigration and Nationality Act (8 U.S.C. 1251(a)(4)(B)) is 
     amended to read as follows:
       ``(B) Terrorism activities.--Any alien who is engaged, or 
     at any time after entry engages in, any terrorism activity 
     (as defined in section 212(a)(3)(B)) is deportable.''.
       (c) Burden of Proof.--Section 291 of the Immigration and 
     Nationality Act (8 U.S.C. 1361) is amended by inserting after 
     ``custody of the Service.'' the following new sentence: ``The 
     limited production authorized by this provision shall not 
     extend to the records of any other agency or department of 
     the Government or to any documents that do not pertain to the 
     respondent's entry.''.
       (d) Apprehension and Deportation of Aliens.--Section 242(b) 
     of the Immigration and Nationality Act (8 U.S.C. 1252(b)(3)) 
     is amended by inserting immediately after paragraph (4) the 
     following: ``For purposes of paragraph (3), in the case of an 
     alien who is not lawfully admitted for permanent residence 
     and notwithstanding the provisions of any other law, 
     reasonable opportunity shall not include access to classified 
     information, whether or not introduced in evidence against 
     the alien, except that any proceeding conducted under this 
     section which involves the use of classified evidence shall 
     be conducted in accordance with the procedures of section 
     501. Section 3504 of title 18, United States Code, and 18 
     U.S.C. 3504 and the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1801 et seq.) shall not apply in such 
     cases.''.
       (e) Criminal Alien Removal.--
       (1) Judicial review.--Section 106 of the Immigration and 
     Nationality Act (8 U.S.C. 1105a(a)(10)) is amended to read as 
     follows:
       ``(10) Any final order of deportation against an alien who 
     is deportable by reason of having committed a criminal 
     offense covered in section 241(a)(2) (A)(iii), (B), (C), or 
     (D), or any offense covered by section 241(a)(2)(A)(ii) for 
     which both predicate offenses are covered by section 
     241(a)(2)(A)(i), shall not be subject to review by any 
     court.''.
       (2) Final order of deportation defined.--Section 101(a) of 
     such Act (8 U.S.C. 1101(a)) is amended by adding at the end 
     the following new paragraph:
       ``(47)(A) The term `order of deportation' means the order 
     of the special inquiry officer, or other such administrative 
     officer to whom the Attorney General has delegated the 
     responsibility for determining whether an alien is 
     deportable, concluding that the alien is deportable or 
     ordering deportation.
       ``(B) The order described under subparagraph (A) shall 
     become final upon the earlier of--
       ``(i) a determination by the Board of Immigration Appeals 
     affirming such order; or
       ``(ii) the expiration of the period in which the alien is 
     permitted to seek review of such order by the Board of 
     Immigration Appeals.''.
       (3) Arrest and custody.--Section 242(a)(2) of such Act is 
     amended--
       (A) in subparagraph (A)--
       (i) by striking ``(2)(A) The Attorney'' and inserting ``(2) 
     The Attorney'';
       (ii) by striking ``an aggravated felony upon'' and all that 
     follows through ``of the same offense)'' and inserting ``any 
     criminal offense covered in section 241(a)(2) (A)(iii), (B), 
     (C), or (D), or any offense covered by section 
     241(a)(2)(A)(ii) for which both predicate offenses are 
     covered by section 241(a)(2)(A)(i), upon release of the alien 
     from incarceration, shall deport the alien as expeditiously 
     as possible''; and
       (iii) by striking ``but subject to subparagraph (B)''; and
       (B) by striking subparagraph (B).
       (4) Classes of excludable aliens.--Section 212(c) of such 
     Act (8 U.S.C. 1182(c)) is amended--
       (A) by striking ``The first sentence of this'' and 
     inserting ``This''; and
       (B) by striking ``has been convicted of one or more 
     aggravated felonies'' and all that follows through the end 
     and inserting ``is deportable by reason of having committed 
     any criminal offense covered in section 241(a)(2) (A)(iii), 
     (B), (C), or (D), or any offense covered by section 
     241(a)(2)(A)(ii) for which both predicate offenses are 
     covered by section 241(a)(2)(A)(i).''.
       (5) Aggravated felony defined.--Section 101(a)(43) of such 
     Act is amended--
       (A) in subparagraph (F)--
       (i) by inserting ``, including forcible rape,'' after 
     ``offense)''; and
       (ii) by striking ``5 years'' and inserting ``1 year''; and
       (B) in subparagraph (G) by striking ``5 years'' and 
     inserting ``1 year''.
       (6) Deportation of criminal aliens.--Section 242A(a) of 
     such Act (8 U.S.C. 1252a) is amended--
       (A) in paragraph (1)--
       (i) by striking ``aggravated felonies (as defined in 
     section 101(a)(43) of this title)'' and inserting ``any 
     criminal offense covered in section 241(a)(2) (A)(iii), (B), 
     (C), or (D), or any offense covered by section 
     241(a)(2)(A)(ii) for which both predicate offenses are 
     covered by section 241(a)(2)(A)(i).''; and
       (ii) by striking ``, where warranted,'';
       (B) in paragraph (2), by striking ``aggravated felony'' and 
     all that follows through ``before any scheduled hearings.'' 
     and inserting ``any criminal offense covered in section 
     241(a)(2) (A)(iii), (B), (C), or (D), or any offense covered 
     by section 241(a)(2)(A)(ii) for which both predicate offenses 
     are covered by section 241(a)(2)(A)(i).''.
       (7) Deadlines for deporting alien.--Section 242(c) of such 
     Act (8 U.S.C. 1252(c)) is amended--
       (A) by striking ``(c) When a final order'' and inserting 
     ``(c)(1) Subject to paragraph (2), when a final order''; and
       (B) by inserting at the end the following new paragraph:
       ``(2) When a final order of deportation under 
     administrative process is made against any alien who is 
     deportable by reason of having committed a criminal offense 
     covered in section 241(a)(2) (A)(iii), (B), (C), or (D) or 
     any offense covered by section 241(a)(2)(A)(ii) for which 
     both predicate offenses are covered by section 
     241(a)(2)(A)(i), the Attorney General shall have 30 days from 
     the date of the order within which to effect the alien's 
     departure from the United States. The Attorney General shall 
     have sole and unreviewable discretion to waive the foregoing 
     provision for aliens who are cooperating with law enforcement 
     authorities or for purposes of national security.''.
       (f) Effective Date.--The amendments made by this section 
     shall take effect on the date of enactment of this Act and 
     shall apply to cases pending before, on, or after such date 
     of enactment.

     SEC. 304. ACCESS TO CERTAIN CONFIDENTIAL IMMIGRATION AND 
                   NATURALIZATION FILES THROUGH COURT ORDER.

       (a) Confidentiality of Information.--Section 245A(c)(5) of 
     the Immigration and Nationality Act (8 U.S.C. 1255a(c)(5)) is 
     amended--
       (1) by inserting ``(i)'' after ``except the Attorney 
     General''; and
       (2) by inserting after ``Title 13'' the following: ``and 
     (ii) may authorize an application to a Federal court of 
     competent jurisdiction for, and a judge of such court may 
     grant, an order authorizing disclosure of information 
     contained in the application of the alien to be used--
       ``(I) for identification of the alien when there is reason 
     to believe that the alien has been killed or severely 
     incapacitated; or
       ``(II) for criminal law enforcement purposes against the 
     alien whose application is to be disclosed.''.
       (b) Applications for Adjustment of Status.--Section 210(b) 
     of the Immigration and Nationality Act (8 U.S.C. 1160(b)) is 
     amended--
       (1) in paragraph (5), by inserting ``, except as allowed by 
     a court order issued pursuant to paragraph (6) of this 
     subsection'' after ``consent of the alien''; and
       (2) in paragraph (6), by inserting the following sentence 
     before ``Anyone who uses'': ``Notwithstanding the preceding 
     sentence, the Attorney General may authorize an application 
     to a Federal court of competent jurisdiction for, and a judge 
     of such court may grant an order authorizing, disclosure of 
     information contained in the application of the alien to be 
     used for identification of the alien when there is reason to 
     believe that the alien has been killed or severely 
     incapacitated, or for criminal law enforcement purposes 
     against the alien whose application is to be disclosed or to 
     discover information leading to the location or identity of 
     the alien.''.
       TITLE IV--CONTROL OF FUNDRAISING FOR TERRORISM ACTIVITIES

     SEC. 401. PROHIBITION ON TERRORIST FUNDRAISING.

       (a) In General.--Chapter 113B of title 18, United States 
     Code, is amended by adding at the end the following new 
     section:

     ``Sec. 2339B. Fundraising for terrorist organizations

       ``(a) Findings and Purpose.--
       ``(1) The Congress finds that--
       ``(A) terrorism is a serious and deadly problem which 
     threatens the interests of the [[Page S7864]] United States 
     overseas and within our territory;
       ``(B) the Nation's security interests are gravely affected 
     by the terrorist attacks carried out overseas against United 
     States Government facilities and officials, and against 
     American citizens present in foreign countries;
       ``(C) United States foreign policy and economic interests 
     are profoundly affected by terrorist acts overseas directed 
     against foreign governments and their people;
       ``(D) international cooperation is required for an 
     effective response to terrorism, as demonstrated by the 
     numerous multilateral conventions in force providing 
     universal prosecutive jurisdiction over persons involved in a 
     variety of terrorist acts, including hostage taking, murder 
     of an internationally protected person, and aircraft piracy 
     and sabotage;
       ``(E) some foreign terrorist organizations, acting through 
     affiliated groups or individuals, raise significant funds 
     within the United States or use the United States as a 
     conduit for the receipt of funds raised in other nations; and
       ``(F) the provision of funds to organizations that engage 
     in terrorism serves to facilitate their terrorist endeavors, 
     regardless of whether the funds, in whole or in part, are 
     intended or claimed to be used for nonviolent purposes.
       ``(2) The purpose of this section is to provide the Federal 
     Government the fullest possible basis, consistent with the 
     Constitution, to prevent persons within the United States or 
     subject to the jurisdiction of the United States from 
     providing funds, directly or indirectly, to foreign 
     organizations, including subordinate or affiliated persons, 
     that engage in terrorism activities.
       ``(b) Designation.--
       ``(1) The Secretary of State, after consultation with the 
     Secretary of the Treasury, is authorized to designate under 
     this section any foreign organization based on finding that--
       ``(A) the organization engages in terrorism activity as 
     defined in section 212(a)(3)(B) of the Immigration and 
     Nationality Act (8 U.S.C. 1182(a)(3)(B)); and
       ``(B) the organization's terrorism activities threaten the 
     security of United States citizens, national security, 
     foreign policy, or the economy of the United States.
       ``(2) Not later than 7 days after making a designation 
     under paragraph (1), the Secretary of State shall prepare and 
     transmit to Congress a report containing a list of the 
     designated organizations and a summary of the facts 
     underlying the designation. The designation shall take effect 
     30 days after the receipt of actual notice under subsection 
     (b)(6), unless otherwise provided by law.
       ``(3) A designation or redesignation under this subsection 
     shall be in effect for 1 year following its effective date, 
     unless revoked under paragraph (4).
       ``(4)(A) If the Secretary of State, after consultation with 
     the Secretary of the Treasury, finds that the conditions that 
     were the basis for any designation issued under this 
     subsection have changed in such a manner as to warrant 
     revocation of such designation, or that the national 
     security, foreign relations, or economic interests of the 
     United States so warrant, the Secretary of State may revoke 
     such designation in whole or in part.
       ``(B) Not later than 7 calendar days after the Secretary of 
     State finds that an organization no longer engages in, or 
     supports, terrorism activity, the Secretary of State shall 
     prepare and transmit to Congress a supplemental report 
     stating the reasons for the finding.
       ``(5) Any designation, or revocation of a designation, 
     issued under this subsection shall be published in the 
     Federal Register not later than 7 calendar days after the 
     Secretary of State makes the designation.
       ``(6) Not later than 7 calendar days after making a 
     designation under this subsection, the Secretary of State 
     shall give the organization actual notice of--
       ``(A) the designation;
       ``(B) the consequences of the designation for the 
     organization's ability to raise funds in the United States; 
     and
       ``(C) the availability of judicial review.
       ``(7) Any revocation or lapsing of a designation shall not 
     affect any action or proceeding based on any conduct 
     committed prior to the effective date of such revocation or 
     lapsing.
       ``(8) Classified information may be used in making a 
     designation under this subsection. Such information shall not 
     be disclosed to the public or to any party, but may be 
     disclosed to a court ex parte and in camera.
       ``(9) No question concerning the validity of the issuance 
     of a designation issued under this subsection may be raised 
     by a defendant in a criminal prosecution as a defense in or 
     as an objection to any trial or hearing if such designation 
     was issued and published in the Federal Register.
       ``(c) Judicial Review.--
       ``(1) Organizations designated by the Secretary of State as 
     engaging in, or supporting, terrorism activities under this 
     section may seek review of the designation in the District 
     Court for the District of Columbia not later than 30 days 
     after receipt of actual notice under subsection (b)(6).
       ``(2) In reviewing a designation under this subsection, the 
     court shall receive relevant oral or documentary evidence, 
     unless the court finds that the probative value is 
     substantially outweighed by the danger of unfair prejudice, 
     confusion of the issues, or considerations of undue delay, 
     waste of time, or needless presentation of cumulative 
     evidence, or unless its introduction or consideration is 
     prohibited by a common law privilege or by the Constitution 
     or laws of the United States. A party shall be entitled to 
     present its case or defense by oral or documentary evidence, 
     to submit rebuttal evidence, and to conduct such cross-
     examination as may be required for a full and true disclosure 
     of the facts.
       ``(3) The judge shall authorize the introduction in camera 
     and ex parte of any item of evidence containing classified 
     information for which the Attorney General determines that 
     public disclosure would pose a risk to the national security 
     of the United States. With respect to such evidence, the 
     Attorney General shall submit to the court either--
       ``(A) a statement identifying relevant facts that the 
     specific evidence would tend to prove; or
       ``(B) an unclassified summary of the specific evidence 
     prepared in accordance with paragraph (5).
       ``(4)(A)(i) The Secretary of State shall have the burden of 
     demonstrating that there are specific and articulable facts 
     giving reason to believe that the organization engages in or 
     supports terrorism activity (as that term is defined in 
     section 212(a)(3)(B)).
       ``(ii) The organization shall have the burden of proving 
     that its purpose is to engage in religious, charitable, 
     literary, educational, or nonterrorism activities and that it 
     engages in such activities.
       ``(iii) The Secretary shall have the burden of proving that 
     the control group of the organization has actual knowledge 
     that the organization or its resources are being used for 
     terrorism activities.
       ``(iv) If any portion of the Secretary's evidence consists 
     of classified information that cannot be revealed to the 
     organization for national security reasons, the Secretary 
     must prove these elements by clear and convincing evidence.
       ``(B) If the court finds, under the standards stated in 
     subparagraph (A) that the control group of the organization 
     has actual knowledge that the organization or its resources 
     are being used for terrorism activities, the court shall 
     affirm the designation of the Secretary.
       ``(C)(i) If the court finds by a preponderance of the 
     evidence that the organization or its resources have been 
     used for terrorism activities without the knowledge of the 
     control group, but that the control group is now aware of 
     these facts, the court may condition revocation of the 
     designation on the control group's undertaking or completing 
     all steps within its power to prevent the organization or its 
     resources from being used for terrorism activities. Such 
     steps may include--
       ``(I) maintaining financial records adequate to document 
     the use of the organization's resources; and
       ``(II) making records available to the Secretary for 
     inspection.
       ``(ii) If a designation is revoked under subsection (B)(4) 
     and the organization fails to comply with any condition 
     imposed, the designation may be reinstated by the Secretary 
     of State upon a showing that the organization failed to 
     comply with the condition.
       ``(5)(A) The information submitted under paragraph (3)(B) 
     shall contain an unclassified summary of the classified 
     information that does not pose a risk to national security.
       ``(B) The judge shall approve the unclassified summary if 
     the judge finds that the summary is sufficient to inform the 
     organization of the activities described in section 
     212(a)(3)(B) in which the organization is alleged to engage, 
     and to permit the organization to defend against the 
     designation.
       ``(C) The Attorney General shall cause to be delivered to 
     the organization a copy of the unclassified summary approved 
     under subparagraph (B).
       ``(6) The court shall decide the case on the basis of the 
     evidence on the record as a whole, in camera or otherwise.
       ``(d) Prohibited Activities.--It shall be unlawful for any 
     person within the United States, or any person subject to the 
     jurisdiction of the United States anywhere, to directly or 
     indirectly, raise, receive, or collect on behalf of, or 
     furnish, give, transmit, transfer, or provide funds to or for 
     an organization or person designated by the Secretary of 
     State under subsection (b), or to attempt to do any of the 
     foregoing.
       ``(e) Special Requirements for Financial Institutions.--
       ``(1) Except as authorized by the Secretary of State, after 
     consultation with the Secretary of the Treasury, by means of 
     directives, regulations, or licenses, any financial 
     institution that becomes aware that it has possession of or 
     control over any funds in which an organization or person 
     designated under subsection (b) has an interest, shall--
       ``(A) retain possession of or maintain control over such 
     funds; and
       ``(B) report to the Secretary the existence of such funds 
     in accordance with the regulations prescribed by the 
     Secretary.
       ``(2) Any financial institution that knowingly fails to 
     report to the Secretary the existence of such funds shall be 
     subject to a civil penalty of $250 per day for each day that 
     it fails to report to the Secretary--
       ``(A) in the case of funds being possessed or controlled at 
     the time of the designation of the organization or person, 
     within 10 days after the designation; and
       ``(B) in the case of funds whose possession of or control 
     over arose after the designation of the organization or 
     person, within 10 days [[Page S7865]] after the financial 
     institution obtained possession of or control over the funds.
       ``(f) Investigations.--Any investigation emanating from a 
     possible violation of this section shall be conducted by the 
     Attorney General, except that investigations relating to--
       ``(1) a financial institution's compliance with the 
     requirements of subsection (e); and
       ``(2) civil penalty proceedings authorized pursuant to 
     subsection (g)(2),

     shall be conducted in coordination with the Attorney General 
     by the office within the Department of the Treasury 
     responsible for civil penalty proceedings authorized by this 
     section. Any evidence of a criminal violation of this section 
     arising in the course of an investigation by the Secretary or 
     any other Federal agency shall be referred immediately to the 
     Attorney General for further investigation. The Attorney 
     General shall timely notify the Secretary of any action taken 
     on referrals from the Secretary, and may refer investigations 
     to the Secretary for remedial licensing or civil penalty 
     action.
       ``(g) Penalties.--
       ``(1) Any person who, with knowledge that the donee is a 
     designated entity, violates subsection (d) shall be fined 
     under this title, or imprisoned for up to ten years, or both.
       ``(2) Any financial institution that knowingly fails to 
     comply with subsection (e), or by regulations promulgated 
     thereunder, shall be subject to a civil penalty of $50,000 
     per violation, or twice the amount of money of which the 
     financial institution was required to retain possession or 
     control, whichever is greater.
       ``(h) Injunction.--
       ``(1) Whenever it appears to the Secretary or the Attorney 
     General that any person is engaged in, or is about to engage 
     in, any act which constitutes, or would constitute, a 
     violation of this section, the Attorney General may initiate 
     civil action in a district court of the United States to 
     enjoin such violation.
       ``(2) A proceeding under this subsection is governed by the 
     Federal Rules of Civil Procedure, except that, if an 
     indictment has been returned against the respondent, 
     discovery is governed by the Federal Rules of Criminal 
     Procedure.
       ``(i) Extraterritorial Jurisdiction.--There is 
     extraterritorial Federal jurisdiction over an offense under 
     this section.
       ``(j) Classified Information in Civil Proceedings Brought 
     by the United States.--
       ``(1) Discovery of classified information by defendants.--A 
     court, upon a sufficient showing, may authorize the United 
     States to delete specified items of classified information 
     from documents to be introduced into evidence or made 
     available to the defendant through discovery under the 
     Federal Rules of Civil Procedure, to substitute an 
     unclassified summary of the information for such classified 
     documents, or to substitute a statement admitting relevant 
     facts that the classified information would tend to prove. 
     The court shall permit the United States to make a request 
     for such authorization in the form of a written statement to 
     be inspected by the court alone. If the court enters an order 
     granting relief following such an ex parte showing, the 
     entire text of the statement of the United States shall be 
     sealed and preserved in the records of the court to be made 
     available to the appellate court in the event of an appeal. 
     If the court enters an order denying relief to the United 
     States under this paragraph, the United States may take an 
     immediate, interlocutory appeal in accordance with the 
     provisions of paragraph (3). For purposes of such an appeal, 
     the entire text of the underlying written statement of the 
     United States, together with any transcripts of arguments 
     made ex parte to the court in connection therewith, shall be 
     maintained under seal and delivered to the appellate court.
       ``(2) Introduction of classified information; precautions 
     by court.--
       ``(A) Exhibits.--The United States, to prevent unnecessary 
     or inadvertent disclosure of classified information in a 
     civil trial or other proceeding brought by the United States 
     under this section, may petition the court ex parte to admit, 
     in lieu of classified writings, recordings or photographs, 
     one or more of the following:
       ``(i) copies of those items from which classified 
     information has been deleted;
       ``(ii) stipulations admitting relevant facts that specific 
     classified information would tend to prove; or
       ``(iii) an unclassified summary of the specific classified 
     information.

     The court shall grant such a motion of the United States if 
     the court finds that the redacted item, stipulation, or 
     unclassified summary will provide the defendant with 
     substantially the same ability to make his defense as would 
     disclosure of the specific classified information.
       ``(B) Taking of trial testimony.--During the examination of 
     a witness in any civil proceeding brought by the United 
     States under this section, the United States may object to 
     any question or line of inquiry that may require the witness 
     to disclose classified information not previously found to be 
     admissible. Following such an objection, the court shall take 
     suitable action to determine whether the response is 
     admissible and, in doing so, shall take precautions to guard 
     against the compromise of any classified information. Such 
     action may include permitting the United States to provide 
     the court, ex parte, with a proffer of the witness's response 
     to the question or line of inquiry, and requiring the 
     defendant to provide the court with a proffer of the nature 
     of the information the defendant seeks to elicit.
       ``(C) Appeal.--If the court enters an order denying relief 
     to the United States under this subsection, the United States 
     may take an immediate interlocutory appeal in accordance with 
     paragraph (3).
       ``(3) Interlocutory appeal.--
       ``(A) An interlocutory appeal by the United States shall 
     lie to a court of appeals from a decision or order of a 
     district court--
       ``(i) authorizing the disclosure of classified information;
       ``(ii) imposing sanctions for nondisclosure of classified 
     information; or
       ``(iii) refusing a protective order sought by the United 
     States to prevent the disclosure of classified information.
       ``(B) An appeal taken pursuant to this paragraph either 
     before or during trial shall be expedited by the court of 
     appeals. Prior to trial, an appeal shall be taken not later 
     than 10 days after the decision or order appealed from, and 
     the trial shall not commence until the appeal is resolved. If 
     an appeal is taken during trial, the trial court shall 
     adjourn the trial until the appeal is resolved. The court of 
     appeals--
       ``(i) shall hear argument on such appeal not later than 4 
     days after the adjournment of the trial;
       ``(ii) may dispense with written briefs other than the 
     supporting materials previously submitted to the trial court;
       ``(iii) shall render its decision not later than 4 days 
     after argument on appeal; and
       ``(iv) may dispense with the issuance of a written opinion 
     in rendering its decision.
       ``(C) An interlocutory appeal and decision under this 
     paragraph shall not affect the right of the defendant, in a 
     subsequent appeal from a final judgment, to claim as error, 
     reversal by the trial court on remand of a ruling appealed 
     from during trial.
       ``(4) Construction.--Nothing in this subsection shall 
     prevent the United States from seeking protective orders or 
     asserting privileges ordinarily available to the United 
     States to protect against the disclosure of classified 
     information, including the invocation of the military and 
     State secrets privilege.
       ``(k) Definitions.--As used in this section--
       ``(1) the term `classified information' means any 
     information or material that has been determined by the 
     United States Government pursuant to an Executive order, 
     statute, or regulation, to require protection against 
     unauthorized disclosure for reasons of national security and 
     any restricted data, as defined in paragraph (r) of section 
     11 of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y));
       ``(2)(A) the term `control group' means the officers or 
     agents charged with directing the affairs of the 
     organization;
       ``(B) if a single officer or agent is authorized to conduct 
     the affairs of the organization, the knowledge of the officer 
     or agent that the organization or its resources are being 
     used for terrorism activities shall constitute knowledge of 
     the control group;
       ``(C) if a single officer or agent is a member of a group 
     empowered to conduct the affairs of the organization but 
     cannot conduct the affairs of the organization on his or her 
     own authority, that person's knowledge shall not constitute 
     knowledge by the control group unless that person's knowledge 
     is shared by a sufficient number of members of the group so 
     that the group with knowledge has the authority to conduct 
     the affairs of the organization;
       ``(3) the term `financial institution' has the meaning 
     prescribed in section 5312(a)(2) of title 31, United States 
     Code, including any regulations promulgated thereunder;
       ``(4) the term `funds' includes coin or currency of the 
     United States or any other country, traveler's checks, 
     personal checks, bank checks, money orders, stocks, bonds, 
     debentures, drafts, letters of credit, any other negotiable 
     instrument, and any electronic representation of any of the 
     foregoing;
       ``(5) the term `national security' means the national 
     defense and foreign relations of the United States;
       ``(6) the term `person' includes an individual, 
     partnership, association, group, corporation, or other 
     organization;
       ``(7) the term `Secretary' means the Secretary of the 
     Treasury; and
       ``(8) the term `United States', when used in a geographical 
     sense, includes all commonwealths, territories, and 
     possessions of the United States.''.
       (b) Technical Amendment.--The analysis for chapter 113B of 
     title 18, United States Code, is amended by adding at the end 
     the following new item:

``2339B. Fundraising for terrorist organizations.''.

       (c) Classified Information in Civil Proceedings.--Section 
     2339B(k) of title 18, United States Code (relating to 
     classified information in civil proceedings brought by the 
     United States), shall also be applicable to civil proceedings 
     brought by the United States under the International 
     Emergency Economic Powers Act (50 U.S.C. 1701 et seq.).

     SEC. 402. CORRECTION TO MATERIAL SUPPORT PROVISION.

       Section 2339A of title 18, United States Code, is amended 
     to read as follows:

     ``Sec. 2339A. Providing material support to terrorists

       ``(a) Definition.--In this section, `material support or 
     resources' means currency or [[Page S7866]] other financial 
     securities, financial services, lodging, training, 
     safehouses, false documentation or identification, 
     communications equipment, facilities, weapons, lethal 
     substances, explosives, personnel, transportation, and other 
     physical assets, but does not include humanitarian assistance 
     to persons not directly involved in such violations.
       ``(b) Offense.--A person who, within the United States, 
     provides material support or resources or conceals or 
     disguises the nature, location, source, or ownership of 
     material support or resources, knowing or intending that they 
     are to be used in preparation for, or in carrying out, a 
     violation of section 32, 37, 351, 844(f) or (i), 956, 1114, 
     1116, 1203, 1361, 1363, 1751, 2280, 2281, 2332, or 2332a of 
     this title or section 46502 of title 49, or in preparation 
     for or carrying out the concealment or an escape from the 
     commission of any such violation, shall be fined under this 
     title, imprisoned not more than 10 years, or both.''.
        TITLE V--ASSISTANCE TO FEDERAL LAW ENFORCEMENT AGENCIES
                  Subtitle A--Antiterrorism Assistance

     SEC. 501. DISCLOSURE OF CERTAIN CONSUMER REPORTS TO THE 
                   FEDERAL BUREAU OF INVESTIGATION FOR FOREIGN 
                   COUNTERINTELLIGENCE INVESTIGATIONS.

       (a) In General.--The Fair Credit Reporting Act (15 U.S.C. 
     1681 et seq.) is amended by adding after section 623 the 
     following new section:

     ``SEC. 624. DISCLOSURES TO THE FEDERAL BUREAU OF 
                   INVESTIGATION FOR FOREIGN COUNTERINTELLIGENCE 
                   PURPOSES.

       ``(a) Identity of Financial Institutions.--(1) 
     Notwithstanding section 604 or any other provision of this 
     title, a court or magistrate judge may issue an order ex 
     parte directing a consumer reporting agency to furnish to the 
     Federal Bureau of Investigation the names and addresses of 
     all financial institutions (as that term is defined in 
     section 1101 of the Right to Financial Privacy Act of 1978) 
     at which a consumer maintains or has maintained an account, 
     to the extent that information is in the files of the agency. 
     The court or magistrate judge shall issue the order if the 
     Director of the Federal Bureau of Investigation, or the 
     Director's designee, certifies in writing to the court or 
     magistrate judge that--
       ``(A) such information is necessary for the conduct of an 
     authorized foreign counterintelligence investigation; and
       ``(B) there are specific and articulable facts giving 
     reason to believe that the consumer--
       ``(i) is a foreign power (as defined in section 101 of the 
     Foreign Intelligence Surveillance Act of 1978) or a person 
     who is not a United States person (as defined in such section 
     101) and is an official of a foreign power; or
       ``(ii) is an agent of a foreign power and is engaging or 
     has engaged in international terrorism (as that term is 
     defined in section 101(c) of the Foreign Intelligence 
     Surveillance Act of 1978) or clandestine intelligence 
     activities that involve or may involve a violation of 
     criminal statutes of the United States.
       ``(2) An order issued under this subsection shall not 
     disclose that it is issued for purposes of a 
     counterintelligence investigation.
       ``(b) Identifying Information.--(1) Notwithstanding section 
     604 or any other provision of this title, a court or 
     magistrate judge shall issue an order ex parte directing a 
     consumer reporting agency to furnish identifying information 
     respecting a consumer, limited to name, address, former 
     addresses, places of employment, or former places of 
     employment, to the Federal Bureau of Investigation. The court 
     or magistrate judge shall issue the order if the Director or 
     the Director's designee, certifies in writing that--
       ``(A) such information is necessary to the conduct of an 
     authorized foreign counterintelligence investigation; and
       ``(B) there is information giving reason to believe that 
     the consumer has been, or is about to be, in contact with a 
     foreign power or an agent of a foreign power (as defined in 
     section 101 of the Foreign Intelligence Surveillance Act of 
     1978).
       ``(2) An order issued under this subsection shall not 
     disclose that it is issued for purposes of a 
     counterintelligence investigation.
       ``(c) Court Order for Disclosure of Consumer Reports.--(1) 
     Notwithstanding section 604 or any other provision of this 
     title, if requested in writing by the Director of the Federal 
     Bureau of Investigation, or an authorized designee of the 
     Director, a court may issue an order ex parte directing a 
     consumer reporting agency to furnish a consumer report to the 
     Federal Bureau of Investigation, upon a showing in camera 
     that--
       ``(A) the consumer report is necessary for the conduct of 
     an authorized foreign counterintelligence investigation; and
       ``(B) there are specific and articulable facts giving 
     reason to believe that the consumer whose consumer report is 
     sought--
       ``(i) is an agent of a foreign power; and
       ``(ii) is engaging or has engaged in international 
     terrorism (as that term is defined in section 101(c) of the 
     Foreign Intelligence Surveillance Act of 1978) or clandestine 
     intelligence activities that involve or may involve a 
     violation of criminal statutes of the United States.
       ``(2) An order issued under this subsection shall not 
     disclose that it is issued for purposes of a 
     counterintelligence investigation.
       ``(d) Confidentiality.--(1) No consumer reporting agency or 
     officer, employee, or agent of a consumer reporting agency 
     shall disclose to any person, other than officers, employees, 
     or agents of a consumer reporting agency necessary to fulfill 
     the requirement to disclose information to the Federal Bureau 
     of Investigation under this section, that the Federal Bureau 
     of Investigation has sought or obtained the identity of 
     financial institutions or a consumer report respecting any 
     consumer under subsection (a), (b), or (c).
       ``(2) No consumer reporting agency or officer, employee, or 
     agent of a consumer reporting agency shall include in any 
     consumer report any information that would indicate that the 
     Federal Bureau of Investigation has sought or obtained such 
     information or a consumer report.
       ``(e) Payment of Fees.--The Federal Bureau of Investigation 
     is authorized, subject to the availability of appropriations, 
     pay to the consumer reporting agency assembling or providing 
     reports or information in accordance with procedures 
     established under this section, a fee for reimbursement for 
     such costs as are reasonably necessary and which have been 
     directly incurred in searching, reproducing, or transporting 
     books, papers, records, or other data required or requested 
     to be produced under this section.
       ``(f) Limit on Dissemination.--The Federal Bureau of 
     Investigation may not disseminate information obtained 
     pursuant to this section outside of the Federal Bureau of 
     Investigation, except--
       ``(1) to the Department of Justice, as may be necessary for 
     the approval or conduct of a foreign counterintelligence 
     investigation; or
       ``(2) where the information concerns a person subject to 
     the Uniform Code of Military Justice, to appropriate 
     investigative authorities within the military department 
     concerned as may be necessary for the conduct of a joint 
     foreign counterintelligence investigation.
       ``(g) Rules of Construction.--Nothing in this section shall 
     be construed to prohibit information from being furnished by 
     the Federal Bureau of Investigation pursuant to a subpoena or 
     court order, or in connection with a judicial or 
     administrative proceeding to enforce the provisions of this 
     Act. Nothing in this section shall be construed to authorize 
     or permit the withholding of information from the Congress.
       ``(h) Reports to Congress.--On an annual basis, the 
     Attorney General shall fully inform the Permanent Select 
     Committee on Intelligence and the Committee on Banking and 
     Financial Services of the House of Representatives, and the 
     Select Committee on Intelligence and the Committee on 
     Banking, Housing, and Urban Affairs of the Senate concerning 
     all requests made pursuant to subsections (a), (b), and (c).
       ``(i) Damages.--Any agency or department of the United 
     States obtaining or disclosing any consumer reports, records, 
     or information contained therein in violation of this section 
     is liable to the consumer to whom such consumer reports, 
     records, or information relate in an amount equal to the sum 
     of--
       ``(1) $100, without regard to the volume of consumer 
     reports, records, or information involved;
       ``(2) any actual damages sustained by the consumer as a 
     result of the disclosure;
       ``(3) if the violation is found to have been willful or 
     intentional, such punitive damages as a court may allow; and
       ``(4) in the case of any successful action to enforce 
     liability under this subsection, the costs of the action, 
     together with reasonable attorney fees, as determined by the 
     court.
       ``(j) Disciplinary Actions for Violations.--If a court 
     determines that any agency or department of the United States 
     has violated any provision of this section and the court 
     finds that the circumstances surrounding the violation raise 
     questions of whether or not an officer or employee of the 
     agency or department acted willfully or intentionally with 
     respect to the violation, the agency or department shall 
     promptly initiate a proceeding to determine whether or not 
     disciplinary action is warranted against the officer or 
     employee who was responsible for the violation.
       ``(k) Good-Faith Exception.--Notwithstanding any other 
     provision of this title, any consumer reporting agency or 
     agent or employee thereof making disclosure of consumer 
     reports or identifying information pursuant to this 
     subsection in good-faith reliance upon a certification of the 
     Federal Bureau of Investigation pursuant to provisions of 
     this section shall not be liable to any person for such 
     disclosure under this title, the constitution of any State, 
     or any law or regulation of any State or any political 
     subdivision of any State notwithstanding.
       ``(l) Injunctive Relief.--In addition to any other remedy 
     contained in this section, injunctive relief shall be 
     available to require compliance with the procedures of this 
     section. In the event of any successful action under this 
     subsection, costs together with reasonable attorney fees, as 
     determined by the court, may be recovered.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of the Fair Credit Reporting Act (15 U.S.C. 1681a 
     et seq.) is amended by adding after the item relating to 
     section 623 the following new item:

``624. Disclosures to the Federal Bureau of Investigation for foreign 
              counterintelligence purposes.''.

[[Page S7867]]

     SEC. 502. ACCESS TO RECORDS OF COMMON CARRIERS, PUBLIC 
                   ACCOMMODATION FACILITIES, PHYSICAL STORAGE 
                   FACILITIES, AND VEHICLE RENTAL FACILITIES IN 
                   FOREIGN COUNTERINTELLIGENCE AND 
                   COUNTERTERRORISM CASES.

       Title 18, United States Code, is amended by inserting after 
     chapter 121 the following new chapter:

                ``CHAPTER 122--ACCESS TO CERTAIN RECORDS

     ``Sec. 2720. Access to records of common carriers, public 
       accommodation facilities, physical storage facilities, and 
       vehicle rental facilities in counterintelligence and 
       counterterrorism cases

       ``(a)(1) A court or magistrate judge may issue an order ex 
     parte directing any common carrier, public accommodation 
     facility, physical storage facility, or vehicle rental 
     facility to furnish any records in its possession to the 
     Federal Bureau of Investigation. The court or magistrate 
     judge shall issue the order if the Director of the Federal 
     Bureau of Investigation or the Director's designee (whose 
     rank shall be no lower than Assistant Special Agent in 
     Charge) certifies in writing that--
       ``(A) such records are sought for foreign 
     counterintelligence purposes; and
       ``(B) there are specific and articulable facts giving 
     reason to believe that the person to whom the records pertain 
     is a foreign power or an agent of a foreign power as defined 
     in section 101 of the Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 801).
       ``(2) An order issued under this subsection shall not 
     disclose that it is issued for purposes of a 
     counterintelligence investigation.
       ``(b) No common carrier, public accommodation facility, 
     physical storage facility, or vehicle rental facility, or any 
     officer, employee, or agent of such common carrier, public 
     accommodation facility, physical storage facility, or vehicle 
     rental facility, shall disclose to any person, other than 
     those officers, agents, or employees of the common carrier, 
     public accommodation facility, physical storage facility, or 
     vehicle rental facility necessary to fulfill the requirement 
     to disclose the information to the Federal Bureau of 
     Investigation under this section.
       ``(c) As used in this chapter--
       ``(1) the term `common carrier' means a locomotive, rail 
     carrier, bus carrying passengers, water common carrier, air 
     common carrier, or private commercial interstate carrier for 
     the delivery of packages and other objects;
       ``(2) the term `public accommodation facility' means any 
     inn, hotel, motel, or other establishment that provides 
     lodging to transient guests;
       ``(3) the term `physical storage facility' means any 
     business or entity that provides space for the storage of 
     goods or materials, or services related to the storage of 
     goods or materials, to the public or any segment thereof; and
       ``(4) the term `vehicle rental facility' means any person 
     or entity that provides vehicles for rent, lease, loan, or 
     other similar use, to the public or any segment thereof.''.

     SEC. 503. INCREASE IN MAXIMUM REWARDS FOR INFORMATION 
                   CONCERNING INTERNATIONAL TERRORISM.

       (a) Terrorism Abroad.--Section 36 of the State Department 
     Basic Authorities Act of 1956 (22 U.S.C. 2708) is amended--
       (1) in subsection (c), by striking ``$2,000,000'' and 
     inserting ``$10,000,000''; and
       (2) in subsection (g), by striking ``$5,000,000'' and 
     inserting ``$10,000,000.
       (b) Domestic Terrorism.--Title 18, United States Code, is 
     amended--
       (1) in section 3072, by striking ``$500,000'' and inserting 
     ``$10,000,000''; and
       (2) in section 3075, by striking ``$5,000,000'' and 
     inserting ``$10,000,000''.
       (c) General Reward Authority of the Attorney General.--
       (1) In general.--Chapter 203 of title 18, United States 
     Code, is amended by adding immediately after section 3059A 
     the following section:

     ``Sec. 3059B. General reward authority

       ``(a) Notwithstanding any other provision of law, the 
     Attorney General may pay rewards and receive from any 
     department or agency funds for the payment of rewards under 
     this section to any individual who assists the Department of 
     Justice in performing its functions.
       ``(b) Not later than 30 days after authorizing a reward 
     under this section that exceeds $100,000, the Attorney 
     General shall give notice to the respective chairmen of the 
     Committees on Appropriations and the Committees on the 
     Judiciary of the Senate and the House of Representatives.
       ``(c) A determination made by the Attorney General to 
     authorize an award under this section and the amount of any 
     reward authorized shall be final and conclusive, and not 
     subject to judicial review.''.
        Subtitle B--Intelligence and Investigation Enhancements

     SEC. 511. STUDY AND REPORT ON ELECTRONIC SURVEILLANCE.

       (a) Study.--The Attorney General and the Director of the 
     Federal Bureau of Investigation shall study all applicable 
     laws and guidelines relating to electronic surveillance and 
     the use of pen registers and other trap and trace devices.
       (b) Report.--Not later than 90 days after the date of 
     enactment of this Act, the Attorney General shall submit a 
     report to the Congress that includes--
       (1) the findings of the study conducted pursuant to 
     subsection (a);
       (2) recommendations for the use of electronic devices in 
     conducting surveillance of terrorist or other criminal 
     organizations, and for any modifications in the law necessary 
     to enable the Federal Government to fulfill its law 
     enforcement responsibilities within appropriate 
     constitutional parameters; and
       (3) a summary of efforts to use current wiretap authority, 
     including detailed examples of situations in which expanded 
     authority would have enabled law enforcement authorities to 
     fulfill their responsibilities.

     SEC. 512. AUTHORIZATION FOR INTERCEPTIONS OF COMMUNICATIONS 
                   IN CERTAIN TERRORISM RELATED OFFENSES.

       Section 2516(1) of title 18, United States Code, is 
     amended--
       (1) in paragraph (c)--
       (A) by inserting before ``or section 1992 (relating to 
     wrecking trains)'' the following: ``section 2332 (relating to 
     terrorist acts abroad), section 2332a (relating to weapons of 
     mass destruction, section 2332b (relating to acts of 
     terrorism transcending national boundaries), section 2339A 
     (relating to providing material support to terrorists), 
     section 37 (relating to violence at international 
     airports),''; and
       (B) by inserting after ``section 175 (relating to 
     biological weapons),'' the following: ``or a felony violation 
     under section 1028 (relating to production of false 
     identification documentation), sections 1541, 1542, 1543, 
     1544, and 1546 (relating to passport and visa offenses),'';
       (2) by striking ``and'' at the end of paragraph (o), as so 
     redesignated by section 512(a)(2);
       (3) by redesignating paragraph (p), as so redesignated by 
     section 512(a)(2), as paragraph (s); and
       (4) by inserting after paragraph (o), as so redesignated by 
     section 512(a)(2), the following new subparagraphs:
       ``(p) any violation of section 956 or section 960 of title 
     18, United States Code (relating to certain actions against 
     foreign nations);
       ``(q) any violation of section 46502 of title 49, United 
     States Code; and''.

     SEC. 513. REQUIREMENT TO PRESERVE EVIDENCE.

       Section 2703 of title 18, United States Code, is amended by 
     adding at the end the following new subsection:
       ``(f) Requirement To Preserve Evidence.--A provider of wire 
     or electronic communication services or a remote computing 
     service, upon the request of a governmental entity, shall 
     take all necessary steps to preserve records and other 
     evidence in its possession pending the issuance of a court 
     order or other process. Such records shall be retained for a 
     period of 90 days, which period shall be extended for an 
     additional 90-day period upon a renewed request by the 
     governmental entity.''.
           Subtitle C--Additional Funding for Law Enforcement

     SEC. 521. FEDERAL BUREAU OF INVESTIGATION ASSISTANCE TO 
                   COMBAT TERRORISM.

       (a) In General.--With funds made available pursuant to 
     subsection (b), the Attorney General shall--
       (1) develop digital telephony technology;
       (2) support and enhance the technical support center and 
     tactical operations;
       (3) create a Federal Bureau of Investigation 
     counterterrorism and counterintelligence fund for costs 
     associated with terrorism cases;
       (4) expand and improve the instructional, operational 
     support, and construction of the Federal Bureau of 
     Investigation academy;
       (5) construct an FBI laboratory, provide laboratory 
     examination support, and provide for a Command Center;
       (6) make funds available to the chief executive officer of 
     each State to carry out the activities described in 
     subsection (d); and
       (7) enhance personnel to support counterterrorism 
     activities.
       (b) Authorization of Appropriations.--There are authorized 
     to be appropriated for the activities of the Federal Bureau 
     of Investigation, to help meet the increased demands for 
     activities to combat terrorism--
       (1) $300,000,000 for fiscal year 1996;
       (2) $225,000,000 for fiscal year 1997;
       (3) $328,000,000 for fiscal year 1998;
       (4) $190,000,000 for fiscal year 1999; and
       (5) $183,000,000 for fiscal year 2000.
       (c) Availability of Funds.--
       (1) In general.--Funds made available pursuant to 
     subsection (b), in any fiscal year, shall remain available 
     until expended.
       (d) State Grants.--
       (1) In general.--Any funds made available for purposes of 
     subsection (a)(6) may be expended--
       (A) by the Director of the Federal Bureau of Investigation 
     to expand the combined DNA Identification System (CODIS) to 
     include Federal crimes and crimes committed in the District 
     of Columbia; and
       (B) by the Attorney General, in consultation with the 
     Director of the Federal Bureau of Investigation to make funds 
     available to the chief executive officer of each State to 
     carry out the activities described in paragraph (2).
       (2) Grant program.--
       (A) Use of funds.--The executive officer of each State 
     shall use any funds made available under paragraph (1)(B) in 
     conjunction with units of local government, other States, or 
     combinations thereof, to carry out all or part of a program 
     to establish, develop, update, or upgrade-- [[Page S7868]] 
       (i) computerized identification systems that are compatible 
     and integrated with the databases of the National Crime 
     Information Center of the Federal Bureau of Investigation;
       (ii) ballistics identification programs that are compatible 
     and integrated with the Drugfire Program of the Federal 
     Bureau of Investigation;
       (iii) the capability to analyze deoxyribonucleic acid (DNA) 
     in a forensic laboratory in ways that are compatible and 
     integrated with the combined DNA Identification System 
     (CODIS) of the Federal Bureau of Investigation; and
       (iv) automated fingerprint identification systems that are 
     compatible and integrated with the Integrated Automated 
     Fingerprint Identification System (IAFIS) of the Federal 
     Bureau of Investigation.
       (B) Eligibility.--To be eligible to receive funds under 
     this paragraph, a State shall require that each person 
     convicted of a felony of a sexual nature shall provide to 
     appropriate State law enforcement officials, as designated by 
     the chief executive officer of the State, a sample of blood, 
     saliva, or other specimen necessary to conduct a DNA analysis 
     consistent with the standards established for DNA testing by 
     the Director of the Federal Bureau of Investigation.
       (C) Interstate compacts.--A State may enter into a compact 
     or compacts with another State or States to carry out this 
     subsection.
       (D) Allocation.--(i) Of the total amount appropriated 
     pursuant to this section in a fiscal year--
       (I) $500,000 or 0.25 percent, whichever is greater, shall 
     be allocated to each of the participating States; and
       (II) of the total funds remaining after the allocation 
     under subclause (I), there shall be allocated to each State 
     an amount which bears the same ratio to the amount of 
     remaining funds described in this subparagraph as the 
     population of such State bears to the population of all 
     States.
       (ii) Definition.--For purposes of this subparagraph, the 
     term ``State'' means any State of the United States, the 
     District of Columbia, the Commonwealth of Puerto Rico, the 
     Virgin Islands, American Samoa, Guam, and the Northern 
     Mariana Islands, except that for purposes of the allocation 
     under this subparagraph, American Samoa and the Commonwealth 
     of the Northern Mariana Islands shall be considered as one 
     State and that for these purposes, 67 percent of the amounts 
     allocated shall be allocated to American Samoa, and 33 
     percent to the Commonwealth of the Northern Mariana Islands.

     SEC. 522. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE 
                   UNITED STATES CUSTOMS SERVICE.

       (a) In General.--There are authorized to be appropriated 
     for the activities of the United States Customs Service, to 
     help meet the increased needs of the United States Customs 
     Service--
       (1) $6,000,000 for fiscal year 1996;
       (2) $6,000,000 for fiscal year 1997;
       (3) $6,000,000 for fiscal year 1998;
       (4) $5,000,000 for fiscal year 1999; and
       (5) $5,000,000 for fiscal year 2000.
       (b) Availability of Funds.--Funds made available pursuant 
     to subsection (a), in any fiscal year, shall remain available 
     until expended.

     SEC. 523. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE 
                   IMMIGRATION AND NATURALIZATION SERVICE.

       (a) In General.--There are authorized to be appropriated 
     for the activities of the Immigration and Naturalization 
     Service, to help meet the increased needs of the Immigration 
     and Naturalization Service $5,000,000 for each of the fiscal 
     years 1996, 1997, 1998, 1999, and 2000.
       (b) Availability of Funds.--Funds made available pursuant 
     to subsection (a), in any fiscal year, shall remain available 
     until expended.

     SEC. 524. DRUG ENFORCEMENT ADMINISTRATION.

       (a) Activities of Drug Enforcement Administration.--With 
     funds made available pursuant to subsection (b), the Attorney 
     General shall--
       (1) fund antiviolence crime initiatives;
       (2) fund major violators' initiatives; and
       (3) enhance or replace infrastructure.
       (b) Authorization of Appropriations.--There are authorized 
     to be appropriated to the Drug Enforcement Administration, to 
     help meet the increased needs of the Drug Enforcement 
     Administration--
       (1) $60,000,000 for fiscal year 1996;
       (2) $70,000,000 for fiscal year 1997;
       (3) $80,000,000 for fiscal year 1998;
       (4) $90,000,000 for fiscal year 1999; and
       (5) $100,000,000 for fiscal year 2000.
       (c) Availability of Funds.--Funds made available pursuant 
     to this section, in any fiscal year, shall remain available 
     until expended.

     SEC. 525. DEPARTMENT OF JUSTICE.

       (a) In General.--Subject to the availability of 
     appropriations, the Attorney General shall--
       (1) hire additional Assistant United States Attorneys, and
       (2) provide for increased security at courthouses and other 
     facilities housing Federal workers.
       (b) Authorization of Additional Appropriations.--There are 
     authorized to be appropriated for the activities of the 
     Department of Justice, to hire additional Assistant United 
     States Attorneys and personnel for the Criminal Division of 
     the Department of Justice and provide increased security to 
     meet the needs resulting from this Act $20,000,000 for each 
     of the fiscal years 1996, 1997, 1998, 1999, and 2000.
       (c) Availability of Funds.--Funds made available pursuant 
     to this section, in any fiscal year, shall remain available 
     until expended.

     SEC. 526. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE 
                   DEPARTMENT OF THE TREASURY.

       (a) In General.--There are authorized to be appropriated 
     for the activities of the Bureau of Alcohol, Tobacco and 
     Firearms, to augment counterterrorism efforts--
       (1) $20,000,000 for fiscal year 1996;
       (2) $20,000,000 for fiscal year 1997;
       (3) $20,000,000 for fiscal year 1998;
       (4) $20,000,000 for fiscal year 1999; and
       (5) $20,000,000 for fiscal year 2000.
       (b) In General.--There are authorized to be appropriated 
     for the activities of the United States Secret Service, to 
     augment White House security and expand Presidential 
     protection activities--
       (1) $62,000,000 for fiscal year 1996;
       (2) $25,000,000 for fiscal year 1997;
       (3) $25,000,000 for fiscal year 1998;
       (4) $25,000,000 for fiscal year 1999; and
       (5) $25,000,000 for fiscal year 2000.

     SEC. 527. FUNDING SOURCE.

       Notwithstanding any other provision of law, funding for 
     authorizations provided in this subtitle may be paid for out 
     of the Violent Crime Reduction Trust Fund.

     SEC. 528. DETERRENT AGAINST TERRORIST ACTIVITY DAMAGING A 
                   FEDERAL INTEREST COMPUTER.

       The United States Sentencing Commission shall review 
     existing guideline levels as they apply to sections 
     1030(a)(4) and 1030(a)(5) of title 18, United States Code, 
     and report to Congress on their findings as to their 
     deterrent effect within 60 calendar days. Furthermore, the 
     Commission shall promulgate guideline amendments that will 
     ensure that individuals convicted under sections 1030(a)(4) 
     and 1030(a)(5) of title 18, United States Code, are 
     incarcerated for not less than 6 months.
               TITLE VI--CRIMINAL PROCEDURAL IMPROVEMENTS
                    Subtitle A--Habeas Corpus Reform

     SEC. 601. FILING DEADLINES.

       Section 2244 of title 28, United States Code, is amended by 
     adding at the end the following new subsection:
       ``(d)(1) A 1-year period of limitation shall apply to an 
     application for a writ of habeas corpus by a person in 
     custody pursuant to the judgment of a State court. The 
     limitation period shall run from the latest of--
       ``(A) the date on which the judgment became final by the 
     conclusion of direct review or the expiration of the time for 
     seeking such review;
       ``(B) the date on which the impediment to filing an 
     application created by State action in violation of the 
     Constitution or laws of the United States is removed, if the 
     applicant was prevented from filing by such State action;
       ``(C) the date on which the constitutional right asserted 
     was initially recognized by the Supreme Court, if the right 
     has been newly recognized by the Supreme Court and made 
     retroactively applicable to cases on collateral review; or
       ``(D) the date on which the factual predicate of the claim 
     or claims presented could have been discovered through the 
     exercise of due diligence.
       ``(2) The time during which a properly filed application 
     for State post-conviction or other collateral review with 
     respect to the pertinent judgment or claim shall not be 
     counted toward any period of limitation under this 
     subsection.''.

     SEC. 602. APPEAL.

       Section 2253 of title 28, United States Code, is amended to 
     read as follows:

     ``Sec. 2253. Appeal

       ``(a) In a habeas corpus proceeding or a proceeding under 
     section 2255 before a district judge, the final order shall 
     be subject to review, on appeal, by the court of appeals for 
     the circuit in which the proceeding is held.
       ``(b) There shall be no right of appeal from a final order 
     in a proceeding to test the validity of a warrant to remove 
     to another district or place for commitment or trial a person 
     charged with a criminal offense against the United States, or 
     to test the validity of such person's detention pending 
     removal proceedings.
       ``(c)(1) Unless a circuit justice or judge issues a 
     certificate of appealability, an appeal may not be taken to 
     the court of appeals from--
       ``(A) the final order in a habeas corpus proceeding in 
     which the detention complained of arises out of process 
     issued by a State court; or
       ``(B) the final order in a proceeding under section 2255.
       ``(2) A certificate of appealability may issue under 
     paragraph (1) only if the applicant has made a substantial 
     showing of the denial of a constitutional right.
       ``(3) The certificate of appealability under paragraph (1) 
     shall indicate which specific issue or issues satisfy the 
     showing required by paragraph (2).''.

     SEC. 603. AMENDMENT OF FEDERAL RULES OF APPELLATE PROCEDURE.

       Rule 22 of the Federal Rules of Appellate Procedure is 
     amended to read as follows:
     ``Rule 22. Habeas corpus and section 2255 
     proceedings [[Page S7869]] 
       ``(a) Application for the Original Writ.--An application 
     for a writ of habeas corpus shall be made to the appropriate 
     district court. If application is made to a circuit judge, 
     the application shall be transferred to the appropriate 
     district court. If an application is made to or transferred 
     to the district court and denied, renewal of the application 
     before a circuit judge shall not be permitted. The applicant 
     may, pursuant to section 2253 of title 28, United States 
     Code, appeal to the appropriate court of appeals from the 
     order of the district court denying the writ.
       ``(b) Certificate of Appealability.--In a habeas corpus 
     proceeding in which the detention complained of arises out of 
     process issued by a State court, an appeal by the applicant 
     for the writ may not proceed unless a district or a circuit 
     judge issues a certificate of appealability pursuant to 
     section 2253(c) of title 28, United States Code. If an appeal 
     is taken by the applicant, the district judge who rendered 
     the judgment shall either issue a certificate of 
     appealability or state the reasons why such a certificate 
     should not issue. The certificate or the statement shall be 
     forwarded to the court of appeals with the notice of appeal 
     and the file of the proceedings in the district court. If the 
     district judge has denied the certificate, the applicant for 
     the writ may then request issuance of the certificate by a 
     circuit judge. If such a request is addressed to the court of 
     appeals, it shall be deemed addressed to the judges thereof 
     and shall be considered by a circuit judge or judges as the 
     court deems appropriate. If no express request for a 
     certificate is filed, the notice of appeal shall be deemed to 
     constitute a request addressed to the judges of the court of 
     appeals. If an appeal is taken by a State or its 
     representative, a certificate of appealability is not 
     required.''.

     SEC. 604. SECTION 2254 AMENDMENTS.

       Section 2254 of title 28, United States Code, is amended--
       (1) by amending subsection (b) to read as follows:
       ``(b)(1) An application for a writ of habeas corpus on 
     behalf of a person in custody pursuant to the judgment of a 
     State court shall not be granted unless it appears that--
       ``(A) the applicant has exhausted the remedies available in 
     the courts of the State; or
       ``(B)(i) there is an absence of available State corrective 
     process; or
       ``(ii) circumstances exist that render such process 
     ineffective to protect the rights of the applicant.
       ``(2) An application for a writ of habeas corpus may be 
     denied on the merits, notwithstanding the failure of the 
     applicant to exhaust the remedies available in the courts of 
     the State.
       ``(3) A State shall not be deemed to have waived the 
     exhaustion requirement or be estopped from reliance upon the 
     requirement unless the State, through counsel, expressly 
     waives the requirement.'';
       (2) by redesignating subsections (d), (e), and (f) as 
     subsections (e), (f), and (g), respectively;
       (3) by inserting after subsection (c) the following new 
     subsection:
       ``(d) An application for a writ of habeas corpus on behalf 
     of a person in custody pursuant to the judgment of a State 
     court shall not be granted with respect to any claim that was 
     adjudicated on the merits in State court proceedings unless 
     the adjudication of the claim--
       ``(1) resulted in a decision that was contrary to, or 
     involved an unreasonable application of, clearly established 
     Federal law, as determined by the Supreme Court of the United 
     States; or
       ``(2) resulted in a decision that was based on an 
     unreasonable determination of the facts in light of the 
     evidence presented in the State court proceeding.'';
       (4) by amending subsection (e), as redesignated by 
     paragraph (2), to read as follows:
       ``(e)(1) In a proceeding instituted by an application for a 
     writ of habeas corpus by a person in custody pursuant to the 
     judgment of a State court, a determination of a factual issue 
     made by a State court shall be presumed to be correct. The 
     applicant shall have the burden of rebutting the presumption 
     of correctness by clear and convincing evidence.
       ``(2) If the applicant has failed to develop the factual 
     basis of a claim in State court proceedings, the court shall 
     not hold an evidentiary hearing on the claim unless the 
     applicant shows that--
       ``(A) the claim relies on--
       ``(i) a new rule of constitutional law, made retroactive to 
     cases on collateral review by the Supreme Court, that was 
     previously unavailable; or
       ``(ii) a factual predicate that could not have been 
     previously discovered through the exercise of due diligence; 
     and
       ``(B) the facts underlying the claim would be sufficient to 
     establish by clear and convincing evidence that but for 
     constitutional error, no reasonable factfinder would have 
     found the applicant guilty of the underlying offense.''; and
       (5) by adding at the end the following new subsections:
       ``(h) Except as provided in title 21, United States Code, 
     section 848, in all proceedings brought under this section, 
     and any subsequent proceedings on review, the court may 
     appoint counsel for an applicant who is or becomes 
     financially unable to afford counsel, except as provided by a 
     rule promulgated by the Supreme Court pursuant to statutory 
     authority. Appointment of counsel under this section shall be 
     governed by section 3006A of title 18.
       ``(i) The ineffectiveness or incompetence of counsel during 
     Federal or State collateral post-conviction proceedings shall 
     not be a ground for relief in a proceeding arising under 
     section 2254.''.

     SEC. 605. SECTION 2255 AMENDMENTS.

       Section 2255 of title 28, United States Code, is amended--
       (1) by striking the second and fifth undesignated 
     paragraphs; and
       (2) by adding at the end the following new undesignated 
     paragraphs:
       ``A 1-year period of limitation shall apply to a motion 
     under this section. The limitation period shall run from the 
     latest of--
       ``(1) the date on which the judgment of conviction becomes 
     final;
       ``(2) the date on which the impediment to making a motion 
     created by governmental action in violation of the 
     Constitution or laws of the United States is removed, if the 
     movant was prevented from making a motion by such 
     governmental action;
       ``(3) the date on which the right asserted was initially 
     recognized by the Supreme Court, if that right has been newly 
     recognized by the Supreme Court and made retroactively 
     applicable to cases on collateral review; or
       ``(4) the date on which the facts supporting the claim or 
     claims presented could have been discovered through the 
     exercise of due diligence.
       ``Except as provided in title 21, United States Code, 
     section 848, in all proceedings brought under this section, 
     and any subsequent proceedings on review, the court may 
     appoint counsel for a movant who is or becomes financially 
     unable to afford counsel shall be in the discretion of the 
     court, except as provided by a rule promulgated by the 
     Supreme Court pursuant to statutory authority. Appointment of 
     counsel under this section shall be governed by section 3006A 
     of title 18.
       ``A second or successive motion must be certified as 
     provided in section 2244 by a panel of the appropriate court 
     of appeals to contain--
       ``(1) newly discovered evidence that, if proven and viewed 
     in light of the evidence as a whole, would be sufficient to 
     establish by clear and convincing evidence that no reasonable 
     factfinder would have found the movant guilty of the offense; 
     or
       ``(2) a new rule of constitutional law, made retroactive to 
     cases on collateral review by the Supreme Court, that was 
     previously unavailable.''.

     SEC. 606. LIMITS ON SECOND OR SUCCESSIVE APPLICATIONS.

       (a) Conforming Amendment to Section 2244(a).--Section 
     2244(a) of title 28, United States Code, is amended by 
     striking ``and the petition'' and all that follows through 
     ``by such inquiry.'' and inserting ``, except as provided in 
     section 2255.''.
       (b) Limits on Second or Successive Applications.--Section 
     2244(b) of title 28, United States Code, is amended to read 
     as follows:
       ``(b)(1) A claim presented in a second or successive habeas 
     corpus application under section 2254 that was presented in a 
     prior application shall be dismissed.
       ``(2) A claim presented in a second or successive habeas 
     corpus application under section 2254 that was not presented 
     in a prior application shall be dismissed unless--
       ``(A) the applicant shows that the claim relies on a new 
     rule of constitutional law, made retroactive to cases on 
     collateral review by the Supreme Court, that was previously 
     unavailable; or
       ``(B)(i) the factual predicate for the claim could not have 
     been discovered previously through the exercise of due 
     diligence; and
       ``(ii) the facts underlying the claim, if proven and viewed 
     in light of the evidence as a whole, would be sufficient to 
     establish by clear and convincing evidence that, but for 
     constitutional error, no reasonable factfinder would have 
     found the applicant guilty of the underlying offense.
       ``(3)(A) Before a second or successive application 
     permitted by this section is filed in the district court, the 
     applicant shall move in the appropriate court of appeals for 
     an order authorizing the district court to consider the 
     application.
       ``(B) A motion in the court of appeals for an order 
     authorizing the district court to consider a second or 
     successive application shall be determined by a three-judge 
     panel of the court of appeals.
       ``(C) The court of appeals may authorize the filing of a 
     second or successive application only if it determines that 
     the application makes a prima facie showing that the 
     application satisfies the requirements of this subsection.
       ``(D) The court of appeals shall grant or deny the 
     authorization to file a second or successive application not 
     later than 30 days after the filing of the motion.
       ``(E) The grant or denial of an authorization by a court of 
     appeals to file a second or successive application shall not 
     be appealable and shall not be the subject of a petition for 
     rehearing or for a writ of certiorari.
       ``(4) A district court shall dismiss any claim presented in 
     a second or successive application that the court of appeals 
     has authorized to be filed unless the applicant shows that 
     the claim satisfies the requirements of this section.''.

     SEC. 607. DEATH PENALTY LITIGATION PROCEDURES.

       (a) Addition of Chapter to Title 28, United States Code.--
     Title 28, United States [[Page S7870]] Code, is amended by 
     inserting after chapter 153 the following new chapter:

    ``CHAPTER 154--SPECIAL HABEAS CORPUS PROCEDURES IN CAPITAL CASES
``Sec.
``2261. Prisoners in State custody subject to capital sentence; 
              appointment of counsel; requirement of rule of court or 
              statute; procedures for appointment.
``2262. Mandatory stay of execution; duration; limits on stays of 
              execution; successive petitions.
``2263. Filing of habeas corpus application; time requirements; tolling 
              rules.
``2264. Scope of Federal review; district court adjudications.
``2265. Application to State unitary review procedure.
``2266. Limitation periods for determining applications and motions.
     ``Sec. 2261. Prisoners in State custody subject to capital 
       sentence; appointment of counsel; requirement of rule of 
       court or statute; procedures for appointment

       ``(a) This chapter shall apply to cases arising under 
     section 2254 brought by prisoners in State custody who are 
     subject to a capital sentence. It shall apply only if the 
     provisions of subsections (b) and (c) are satisfied.
       ``(b) This chapter is applicable if a State establishes by 
     statute, rule of its court of last resort, or by another 
     agency authorized by State law, a mechanism for the 
     appointment, compensation, and payment of reasonable 
     litigation expenses of competent counsel in State post-
     conviction proceedings brought by indigent prisoners whose 
     capital convictions and sentences have been upheld on direct 
     appeal to the court of last resort in the State or have 
     otherwise become final for State law purposes. The rule of 
     court or statute must provide standards of competency for the 
     appointment of such counsel.
       ``(c) Any mechanism for the appointment, compensation, and 
     reimbursement of counsel as provided in subsection (b) must 
     offer counsel to all State prisoners under capital sentence 
     and must provide for the entry of an order by a court of 
     record--
       ``(1) appointing one or more counsels to represent the 
     prisoner upon a finding that the prisoner is indigent and 
     accepted the offer or is unable competently to decide whether 
     to accept or reject the offer;
       ``(2) finding, after a hearing if necessary, that the 
     prisoner rejected the offer of counsel and made the decision 
     with an understanding of its legal consequences; or
       ``(3) denying the appointment of counsel upon a finding 
     that the prisoner is not indigent.
       ``(d) No counsel appointed pursuant to subsections (b) and 
     (c) to represent a State prisoner under capital sentence 
     shall have previously represented the prisoner at trial or on 
     direct appeal in the case for which the appointment is made 
     unless the prisoner and counsel expressly request continued 
     representation.
       ``(e) The ineffectiveness or incompetence of counsel during 
     State or Federal post-conviction proceedings in a capital 
     case shall not be a ground for relief in a proceeding arising 
     under section 2254. This limitation shall not preclude the 
     appointment of different counsel, on the court's own motion 
     or at the request of the prisoner, at any phase of State or 
     Federal post-conviction proceedings on the basis of the 
     ineffectiveness or incompetence of counsel in such 
     proceedings.

     ``Sec. 2262. Mandatory stay of execution; duration; limits on 
       stays of execution; successive petitions

       ``(a) Upon the entry in the appropriate State court of 
     record of an order under section 2261(c), a warrant or order 
     setting an execution date for a State prisoner shall be 
     stayed upon application to any court that would have 
     jurisdiction over any proceedings filed under section 2254. 
     The application shall recite that the State has invoked the 
     post-conviction review procedures of this chapter and that 
     the scheduled execution is subject to stay.
       ``(b) A stay of execution granted pursuant to subsection 
     (a) shall expire if--
       ``(1) a State prisoner fails to file a habeas corpus 
     application under section 2254 within the time required in 
     section 2263;
       ``(2) before a court of competent jurisdiction, in the 
     presence of counsel, unless the prisoner has competently and 
     knowingly waived such counsel, and after having been advised 
     of the consequences, a State prisoner under capital sentence 
     waives the right to pursue habeas corpus review under section 
     2254; or
       ``(3) a State prisoner files a habeas corpus petition under 
     section 2254 within the time required by section 2263 and 
     fails to make a substantial showing of the denial of a 
     Federal right or is denied relief in the district court or at 
     any subsequent stage of review.
       ``(c) If one of the conditions in subsection (b) has 
     occurred, no Federal court thereafter shall have the 
     authority to enter a stay of execution in the case, unless 
     the court of appeals approves the filing of a second or 
     successive application under section 2244(b).

     ``Sec. 2263. Filing of habeas corpus application; time 
       requirements; tolling rules

       ``(a) Any application under this chapter for habeas corpus 
     relief under section 2254 must be filed in the appropriate 
     district court not later than 180 days after final State 
     court affirmance of the conviction and sentence on direct 
     review or the expiration of the time for seeking such review.
       ``(b) The time requirements established by subsection (a) 
     shall be tolled--
       ``(1) from the date that a petition for certiorari is filed 
     in the Supreme Court until the date of final disposition of 
     the petition if a State prisoner files the petition to secure 
     review by the Supreme Court of the affirmance of a capital 
     sentence on direct review by the court of last resort of the 
     State or other final State court decision on direct review;
       ``(2) from the date on which the first petition for post-
     conviction review or other collateral relief is filed until 
     the final State court disposition of such petition; and
       ``(3) during an additional period not to exceed 30 days, 
     if--
       ``(A) a motion for an extension of time is filed in the 
     Federal district court that would have jurisdiction over the 
     case upon the filing of a habeas corpus application under 
     section 2254; and
       ``(B) a showing of good cause is made for the failure to 
     file the habeas corpus application within the time period 
     established by this section.

     ``Sec. 2264. Scope of Federal review; district court 
       adjudications

       ``(a) Whenever a State prisoner under capital sentence 
     files a petition for habeas corpus relief to which this 
     chapter applies, the district court shall only consider a 
     claim or claims that have been raised and decided on the 
     merits in the State courts, unless the failure to raise the 
     claim properly is--
       ``(1) the result of State action in violation of the 
     Constitution or laws of the United States;
       ``(2) the result of the Supreme Court recognition of a new 
     Federal right that is made retroactively applicable; or
       ``(3) based on a factual predicate that could not have been 
     discovered through the exercise of due diligence in time to 
     present the claim for State or Federal post-conviction 
     review.
       ``(b) Following review subject to subsections (a), (d), and 
     (e) of section 2254, the court shall rule on the claims 
     properly before it.
     ``Sec. 2265. Application to State unitary review procedure

       ``(a) For purposes of this section, a `unitary review' 
     procedure means a State procedure that authorizes a person 
     under sentence of death to raise, in the course of direct 
     review of the judgment, such claims as could be raised on 
     collateral attack. This chapter shall apply, as provided in 
     this section, in relation to a State unitary review procedure 
     if the State establishes by rule of its court of last resort 
     or by statute a mechanism for the appointment, compensation, 
     and payment of reasonable litigation expenses of competent 
     counsel in the unitary review proceedings, including expenses 
     relating to the litigation of collateral claims in the 
     proceedings. The rule of court or statute must provide 
     standards of competency for the appointment of such counsel.
       ``(b) To qualify under this section, a unitary review 
     procedure must include an offer of counsel following trial 
     for the purpose of representation on unitary review, and 
     entry of an order, as provided in section 2261(c), concerning 
     appointment of counsel or waiver or denial of appointment of 
     counsel for that purpose. No counsel appointed to represent 
     the prisoner in the unitary review proceedings shall have 
     previously represented the prisoner at trial in the case for 
     which the appointment is made unless the prisoner and counsel 
     expressly request continued representation.
       ``(c) Sections 2262, 2263, 2264, and 2266 shall apply in 
     relation to cases involving a sentence of death from any 
     State having a unitary review procedure that qualifies under 
     this section. References to State `post-conviction review' 
     and `direct review' in such sections shall be understood as 
     referring to unitary review under the State procedure. The 
     reference in section 2262(a) to `an order under section 
     2261(c)' shall be understood as referring to the post-trial 
     order under subsection (b) concerning representation in the 
     unitary review proceedings, but if a transcript of the trial 
     proceedings is unavailable at the time of the filing of such 
     an order in the appropriate State court, then the start of 
     the 180-day limitation period under section 2263 shall be 
     deferred until a transcript is made available to the prisoner 
     or counsel of the prisoner.

     ``Sec. 2266. Limitation periods for determining applications 
       and motions

       ``(a) The adjudication of any application under section 
     2254 that is subject to this chapter, and the adjudication of 
     any motion under section 2255 by a person under sentence of 
     death, shall be given priority by the district court and by 
     the court of appeals over all noncapital matters.
       ``(b)(1)(A) A district court shall render a final 
     determination and enter a final judgment on any application 
     for a writ of habeas corpus brought under this chapter in a 
     capital case not later than 180 days after the date on which 
     the application is filed.
       ``(B) A district court shall afford the parties at least 
     120 days in which to complete all actions, including the 
     preparation of all pleadings and briefs, and if necessary, a 
     hearing, prior to the submission of the case for decision.
       ``(C)(i) A district court may delay for not more than one 
     additional 30-day period beyond the period specified in 
     subparagraph (A), the rendering of a determination of an 
     application for a writ of habeas corpus if the court issues a 
     written order making a finding, and stating the reasons for 
     the finding, [[Page S7871]] that the ends of justice that 
     would be served by allowing the delay outweigh the best 
     interests of the public and the applicant in a speedy 
     disposition of the application.
       ``(ii) The factors, among others, that a court shall 
     consider in determining whether a delay in the disposition of 
     an application is warranted are as follows:
       ``(I) Whether the failure to allow the delay would be 
     likely to result in a miscarriage of justice.
       ``(II) Whether the case is so unusual or so complex, due to 
     the number of defendants, the nature of the prosecution, or 
     the existence of novel questions of fact or law, that it is 
     unreasonable to expect adequate briefing within the time 
     limitations established by subparagraph (A).
       ``(III) Whether the failure to allow a delay in a case, 
     that, taken as a whole, is not so unusual or so complex as 
     described in subclause (II), but would otherwise deny the 
     applicant reasonable time to obtain counsel, would 
     unreasonably deny the applicant or the government continuity 
     of counsel, or would deny counsel for the applicant or the 
     government the reasonable time necessary for effective 
     preparation, taking into account the exercise of due 
     diligence.
       ``(iii) No delay in disposition shall be permissible 
     because of general congestion of the court's calendar.
       ``(iv) The court shall transmit a copy of any order issued 
     under clause (i) to the Director of the Administrative Office 
     of the United States Courts for inclusion in the report under 
     paragraph (5).
       ``(2) The time limitations under paragraph (1) shall apply 
     to--
       ``(A) an initial application for a writ of habeas corpus;
       ``(B) any second or successive application for a writ of 
     habeas corpus; and
       ``(C) any redetermination of an application for a writ of 
     habeas corpus following a remand by the court of appeals or 
     the Supreme Court for further proceedings, in which case the 
     limitation period shall run from the date the remand is 
     ordered.
       ``(3)(A) The time limitations under this section shall not 
     be construed to entitle an applicant to a stay of execution, 
     to which the applicant would otherwise not be entitled, for 
     the purpose of litigating any application or appeal.
       ``(B) No amendment to an application for a writ of habeas 
     corpus under this chapter shall be permitted after the filing 
     of the answer to the application, except on the grounds 
     specified in section 2244(b).
       ``(4)(A) The failure of a court to meet or comply with a 
     time limitation under this section shall not be a ground for 
     granting relief from a judgment of conviction or sentence.
       ``(B) The State may enforce a time limitation under this 
     section by petitioning for a writ of mandamus to the court of 
     appeals. The court of appeals shall act on the petition for a 
     writ or mandamus not later than 30 days after the filing of 
     the petition.
       ``(5)(A) The Administrative Office of United States Courts 
     shall submit to Congress an annual report on the compliance 
     by the district courts with the time limitations under this 
     section.
       ``(B) The report described in subparagraph (A) shall 
     include copies of the orders submitted by the district courts 
     under paragraph (1)(B)(iv).
       ``(c)(1)(A) A court of appeals shall hear and render a 
     final determination of any appeal of an order granting or 
     denying, in whole or in part, an application brought under 
     this chapter in a capital case not later than 120 days after 
     the date on which the reply brief is filed, or if no reply 
     brief is filed, not later than 120 days after the date on 
     which the answering brief is filed.
       ``(B)(i) A court of appeals shall decide whether to grant a 
     petition for rehearing or other request for rehearing en banc 
     not later than 30 days after the date on which the petition 
     for rehearing is filed unless a responsive pleading is 
     required, in which case the court shall decide whether to 
     grant the petition not later than 30 days after the date on 
     which the responsive pleading is filed.
       ``(ii) If a petition for rehearing or rehearing en banc is 
     granted, the court of appeals shall hear and render a final 
     determination of the appeal not later than 120 days after the 
     date on which the order granting rehearing or rehearing en 
     banc is entered.
       ``(2) The time limitations under paragraph (1) shall apply 
     to--
       ``(A) an initial application for a writ of habeas corpus;
       ``(B) any second or successive application for a writ of 
     habeas corpus; and
       ``(C) any redetermination of an application for a writ of 
     habeas corpus or related appeal following a remand by the 
     court of appeals en banc or the Supreme Court for further 
     proceedings, in which case the limitation period shall run 
     from the date the remand is ordered.
       ``(3) The time limitations under this section shall not be 
     construed to entitle an applicant to a stay of execution, to 
     which the applicant would otherwise not be entitled, for the 
     purpose of litigating any application or appeal.
       ``(4)(A) The failure of a court to meet or comply with a 
     time limitation under this section shall not be a ground for 
     granting relief from a judgment of conviction or sentence.
       ``(B) The State may enforce a time limitation under this 
     section by applying for a writ of mandamus to the Supreme 
     Court.
       ``(5) The Administrative Office of United States Courts 
     shall submit to Congress an annual report on the compliance 
     by the courts of appeals with the time limitations under this 
     section.''.
       (b) Technical Amendment.--The part analysis for part IV of 
     title 28, United States Code, is amended by adding after the 
     item relating to chapter 153 the following new item:

``154. Special habeas corpus procedures in capital cases...2261.''.....

       (c) Effective Date.--Chapter 154 of title 28, United States 
     Code (as added by subsection (a)) shall apply to cases 
     pending on or after the date of enactment of this Act.

     SEC. 608. TECHNICAL AMENDMENT.

       Section 408(q) of the Controlled Substances Act (21 U.S.C. 
     848(q)) is amended by amending paragraph (9) to read as 
     follows:
       ``(9) Upon a finding that investigative, expert, or other 
     services are reasonably necessary for the representation of 
     the defendant, whether in connection with issues relating to 
     guilt or the sentence, the court may authorize the 
     defendant's attorneys to obtain such services on behalf of 
     the defendant and, if so authorized, shall order the payment 
     of fees and expenses therefor under paragraph (10). No ex 
     parte proceeding, communication, or request may be considered 
     pursuant to this section unless a proper showing is made 
     concerning the need for confidentiality. Any such proceeding, 
     communication, or request shall be transcribed and made a 
     part of the record available for appellate review.''.
              Subtitle B--Criminal Procedural Improvements

     SEC. 621. CLARIFICATION AND EXTENSION OF CRIMINAL 
                   JURISDICTION OVER CERTAIN TERRORISM OFFENSES 
                   OVERSEAS.

       (a) Aircraft Piracy.--Section 46502(b) of title 49, United 
     States Code, is amended--
       (1) in paragraph (1), by striking ``and later found in the 
     United States'';
       (2) by amending paragraph (2) to read as follows:
       ``(2) The courts of the United States have jurisdiction 
     over the offense in paragraph (1) if--
       ``(A) a national of the United States was aboard the 
     aircraft;
       ``(B) an offender is a national of the United States; or
       ``(C) an offender is afterwards found in the United 
     States.''; and
       (3) by adding at the end the following new paragraph:
       ``(3) For purposes of this subsection, the term `national 
     of the United States' has the meaning given such term in 
     section 101(a)(22) of the Immigration and Nationality Act (8 
     U.S.C. 1101(a)(22)).''.
       (b) Destruction of Aircraft or Aircraft Facilities.--
     Section 32(b) of title 18, United States Code, is amended--
       (1) by striking ``(b) Whoever'' and inserting ``(b)(1) 
     Whoever'';
       (2) by redesignating paragraphs (1) through (4) as 
     subparagraphs (A) through (D), respectively;
       (3) by striking ``, if the offender is later found in the 
     United States,''; and
       (4) by adding at the end the following new paragraphs:
       ``(2) The courts of the United States have jurisdiction 
     over an offense described in this subsection if--
       ``(A) a national of the United States was on board, or 
     would have been on board, the aircraft;
       ``(B) an offender is a national of the United States; or
       ``(C) an offender is afterwards found in the United States.
       ``(3) For purposes of this subsection, the term `national 
     of the United States' has the meaning given such term in 
     section 101(a)(22) of the Immigration and Nationality Act (8 
     U.S.C. 1101(a)(22)).''.
       (c) Murder or Manslaughter of Internationally Protected 
     Persons.--Section 1116 of title 18, United States Code, is 
     amended--
       (1) in subsection (a), by striking ``, except that'';
       (2) in subsection (b), by adding at the end the following 
     new paragraph:
       ``(7) `National of the United States' has the meaning given 
     such term in section 101(a)(22) of the Immigration and 
     Nationality Act (8 U.S.C. 1101(a)(22)).''; and
       (3) in subsection (c), by striking the first sentence and 
     inserting the following: ``If the victim of an offense under 
     subsection (a) is an internationally protected person outside 
     the United States, the United States may exercise 
     jurisdiction over the offense if (1) the victim is a 
     representative, officer, employee, or agent of the United 
     States, (2) an offender is a national of the United States, 
     or (3) an offender is afterwards found in the United 
     States.''.
       (d) Protection of Internationally Protected Persons.--
     Section 112 of title 18, United States Code, is amended--
       (1) in subsection (c), by inserting ``national of the 
     United States,'' before ``and''; and
       (2) in subsection (e), by striking the first sentence and 
     inserting the following: ``If the victim of an offense under 
     subsection (a) is an internationally protected person outside 
     the United States, the United States may exercise 
     jurisdiction over the offense if (1) the victim is a 
     representative, officer, employee, or agent of the United 
     States, (2) an offender is a national of the United States, 
     or (3) an offender is afterwards found in the United 
     States.''. [[Page S7872]] 
       (e) Threats Against Internationally Protected Persons.--
     Section 878 of title 18, United States Code, is amended--
       (1) in subsection (c), by inserting ``national of the 
     United States,'' before ``and''; and
       (2) in subsection (d), by striking the first sentence and 
     inserting the following: ``If the victim of an offense under 
     subsection (a) is an internationally protected person outside 
     the United States, the United States may exercise 
     jurisdiction over the offense if (1) the victim is a 
     representative, officer, employee, or agent of the United 
     States, (2) an offender is a national of the United States, 
     or (3) an offender is afterwards found in the United 
     States.''.
       (f) Kidnapping of Internationally Protected Persons.--
     Section 1201(e) of title 18, United States Code, is amended--
       (1) by striking the first sentence and inserting the 
     following: ``If the victim of an offense under subsection (a) 
     is an internationally protected person outside the United 
     States, the United States may exercise jurisdiction over the 
     offense if (1) the victim is a representative, officer, 
     employee, or agent of the United States, (2) an offender is a 
     national of the United States, or (3) an offender is 
     afterwards found in the United States.''; and
       (2) by adding at the end the following: ``For purposes of 
     this subsection, the term `national of the United States' has 
     the meaning given such term in section 101(a)(22) of the 
     Immigration and Nationality Act (8 U.S.C. 1101(a)(22).''.
       (g) Violence at International Airports.--Section 37(b)(2) 
     of title 18, United States Code, is amended to read as 
     follows:
       ``(2) the prohibited activity takes place outside the 
     United States, and--
       ``(A) the offender is later found in the United States; or
       ``(B) an offender or a victim is a national of the United 
     States (as defined in section 101(a)(22) of the Immigration 
     and Nationality Act (8 U.S.C. 1101(a)(22))).''.
       (h) National of the United States Defined.--Section 178 of 
     title 18, United States Code, is amended--
       (1) by striking the ``and'' at the end of paragraph (3);
       (2) by striking the period at the end of paragraph (4) and 
     inserting ``; and''; and
       (3) by adding at the end the following new paragraph:
       ``(5) the term `national of the United States' has the 
     meaning given such term in section 101(a)(22) of the 
     Immigration and Nationality Act (8 U.S.C. 1101(a)(22)).''.

     SEC. 622. EXPANSION OF TERRITORIAL SEA.

       (a) Territorial Sea Extending to Twelve Miles Included in 
     Special Maritime and Territorial Jurisdiction.--The Congress 
     declares that all the territorial sea of the United States, 
     as defined by Presidential Proclamation 5928 of December 27, 
     1988, for purposes of criminal jurisdiction is part of the 
     United States, subject to its sovereignty, and, for purposes 
     of Federal criminal jurisdiction, is within the special 
     maritime and territorial jurisdiction of the United States 
     wherever that term is used in title 18, United States Code.
       (b) Assimilated Crimes in Extended Territorial Sea.--
     Section 13 of title 18, United States Code (relating to the 
     adoption of State laws for areas within Federal 
     jurisdiction), is amended--
       (1) in subsection (a), by inserting after ``title,'' the 
     following: ``or on, above, or below any portion of the 
     territorial sea of the United States not within the 
     jurisdiction of any State, Commonwealth, territory, 
     possession, or district''; and
       (2) by adding at the end the following new subsection:
       ``(c) Whenever any waters of the territorial sea of the 
     United States lie outside the territory of any State, 
     Commonwealth, territory, possession, or district, such waters 
     (including the airspace above and the seabed and subsoil 
     below, and artificial islands and fixed structures erected 
     thereon) shall be deemed for purposes of subsection (a) to 
     lie within the area of that State, Commonwealth, territory, 
     possession, or district it would lie within if the boundaries 
     of such State, Commonwealth, territory, possession, or 
     district were extended seaward to the outer limit of the 
     territorial sea of the United States.''.

     SEC. 623. EXPANSION OF WEAPONS OF MASS DESTRUCTION STATUTE.

       Section 2332a of title 18, United States Code, is amended--
       (1) in subsection (a)--
       (A) by inserting ``threatens,'' before ``attempts'';
       (B) in paragraph (2), by striking ``; or'' and inserting 
     the following: ``and the results of such use affect 
     interstate or foreign commerce or, in the case of a threat, 
     attempt, or conspiracy, would have affected interstate or 
     foreign commerce if such use had occurred;'';
       (C) by redesignating paragraph (3) as paragraph (4);
       (D) by inserting after paragraph (2) the following:
       ``(3) against a victim, or intended victim, that is the 
     United States Government, a member of the uniformed services, 
     or any official, officer, employee, or agent of the 
     legislative, executive, or judicial branches, or any 
     department or agency, of the United States; and''; and
       (E) in paragraph (4), as redesignated, by inserting before 
     the comma at the end the following: ``, or is within the 
     United States and is used in any activity affecting 
     interstate or foreign commerce''.
       (2) by redesignating subsection (b) as subsection (c);
       (3) by adding immediately after subsection (a) the 
     following new subsection:
       ``(b) Use Outside United States.--Any national of the 
     United States who outside of the United States uses, 
     threatens, attempts, or conspires to use, a weapon of mass 
     destruction, shall be imprisoned for any term of years or for 
     life, and if death results, shall be punished by death or 
     imprisonment for any term of years or for life. The preceding 
     sentence does not apply to a person performing an act that, 
     as performed, is within the scope of the person's official 
     duties as an officer or employee of the United States or as a 
     member of the Armed Forces of the United States, or to a 
     person employed by a contractor of the United States for 
     performing an act that, as performed, is authorized under the 
     contract.''; and
       (4) by amending subsection (c)(2)(B), as redesignated by 
     paragraph (3), by striking ``poison gas'' and inserting ``any 
     poisonous chemical agent or substance, regardless of form or 
     delivery system, designed for causing widespread death or 
     injury;''.

     SEC. 624. ADDITION OF TERRORISM OFFENSES TO THE RICO STATUTE.

       Section 1961(1) of title 18, United States Code, is 
     amended--
       (1) in subparagraph (B)--
       (A) by inserting after ``Section'' the following: ``32 
     (relating to the destruction of aircraft), section 37 
     (relating to violence at international airports), section 115 
     (relating to influencing, impeding, or retaliating against a 
     Federal official by threatening or injuring a family member), 
     section'';
       (B) by inserting after ``section 224 (relating to sports 
     bribery),'' the following: ``section 351 (relating to 
     congressional or Cabinet officer assassination),'';
       (C) by inserting after ``section 664 (relating to 
     embezzlement from pension and welfare funds),'' the 
     following: ``section 831 (relating to prohibited transactions 
     involving nuclear materials), section 844 (f) or (i) 
     (relating to destruction by explosives or fire of government 
     property or property affecting interstate or foreign 
     commerce),'';
       (D) by inserting after ``sections 891-894 (relating to 
     extortionate credit transactions),'' the following: ``section 
     956 (relating to conspiracy to kill, kidnap, maim, or injure 
     certain property in a foreign country),'';
       (E) by inserting after ``section 1084 (relating to the 
     transmission of gambling information),'' the following: 
     ``section 1111 (relating to murder), section 1114 (relating 
     to murder of United States law enforcement officials), 
     section 1116 (relating to murder of foreign officials, 
     official guests, or internationally protected persons), 
     section 1203 (relating to hostage taking),'';
       (F) by inserting after ``section 1344 (relating to 
     financial institution fraud),'' the following: ``section 1361 
     (relating to willful injury of government property within the 
     special maritime and territorial jurisdiction),'';
       (G) by inserting after ``section 1513 (relating to 
     retaliating against a witness, victim, or an informant),'' 
     the following: ``section 1751 (relating to Presidential 
     assassination),'';
       (H) by inserting after ``section 1958 (relating to use of 
     interstate commerce facilities in the commission of murder-
     for-hire),'' the following: ``section 2280 (relating to 
     violence against maritime navigation), section 2281 (relating 
     to violence against maritime fixed platforms),''; and
       (I) by inserting after ``2321 (relating to trafficking in 
     certain motor vehicles or motor vehicle parts),'' the 
     following: ``section 2332 (relating to terrorist acts abroad 
     against United States nationals), section 2332a (relating to 
     use of weapons of mass destruction), section 2332b (relating 
     to acts of terrorism transcending national boundaries), 
     section 2339A (relating to providing material support to 
     terrorists),'';
       (2) by striking ``or'' before ``(E)''; and
       (3) by inserting before the semicolon at the end the 
     following: ``, or (F) section 46502 of title 49, United 
     States Code''.

     SEC. 625. ADDITION OF TERRORISM OFFENSES TO THE MONEY 
                   LAUNDERING STATUTE.

       Section 1956(c)(7) of title 18, United States Code, is 
     amended--
       (1) in subparagraph (B), by amending clause (ii) to read as 
     follows:
       ``(ii) murder, kidnapping, robbery, extortion, or 
     destruction of property by means of explosive or fire;''; and
       (2) in subparagraph (D)--
       (A) by inserting after ``an offense under'' the following: 
     ``section 32 (relating to the destruction of aircraft), 
     section 37 (relating to violence at international airports), 
     section 115 (relating to influencing, impeding, or 
     retaliating against a Federal official by threatening or 
     injuring a family member),'';
       (B) by inserting after ``section 215 (relating to 
     commissions or gifts for procuring loans),'' the following: 
     ``section 351 (relating to congressional or Cabinet officer 
     assassination),'';
       (C) by inserting after ``section 798 (relating to 
     espionage),'' the following: ``section 831 (relating to 
     prohibited transactions involving nuclear materials), section 
     844 (f) or (i) (relating to destruction by explosives or fire 
     of Government property or property affecting interstate or 
     foreign commerce),'';
       (D) by inserting after ``section 875 (relating to 
     interstate communications),'' the following: ``section 956 
     (relating to conspiracy to kill, kidnap, maim, or injure 
     certain property in a foreign country),''; [[Page S7873]] 
       (E) by inserting after ``section 1032 (relating to 
     concealment of assets from conservator, receiver, or 
     liquidating agent of financial institution),'' the following: 
     ``section 1111 (relating to murder), section 1114 (relating 
     to murder of United States law enforcement officials), 
     section 1116 (relating to murder of foreign officials, 
     official guests, or internationally protected persons),'';
       (F) by inserting after ``section 1203 (relating to hostage 
     taking)'' the following: ``section 1361 (relating to willful 
     injury of Government property), section 1363 (relating to 
     destruction of property within the special maritime and 
     territorial jurisdiction),'';
       (G) by inserting after ``section 1708 (relating to theft 
     from the mail)'' the following: ``section 1751 (relating to 
     Presidential assassination),'';
       (H) by inserting after ``2114 (relating to bank and postal 
     robbery and theft),'' the following: ``section 2280 (relating 
     to violence against maritime navigation), section 2281 
     (relating to violence against maritime fixed platforms),''; 
     and
       (I) by striking ``of this title'' and inserting the 
     following: ``section 2332 (relating to terrorist acts abroad 
     against United States nationals), section 2332a (relating to 
     use of weapons of mass destruction), section 2332b (relating 
     to international terrorist acts transcending national 
     boundaries), 2339A (relating to providing material support to 
     terrorists) of this title, section 46502 of title 49, United 
     States Code,''.

     SEC. 626. PROTECTION OF CURRENT OR FORMER OFFICIALS, 
                   OFFICERS, OR EMPLOYEES OF THE UNITED STATES.

       (a) Amendment To Include Assaults, Murders, and Threats 
     Against Families of Federal Officials.--Section 115(a)(2) of 
     title 18, United States Code, is amended by inserting ``, or 
     threatens to assault, kidnap, or murder, any person who 
     formerly served as a person designated in paragraph (1), or'' 
     after ``assaults, kidnaps, or murders, or attempts to kidnap 
     or murder''.
       (b) Murder or Attempts To Murder Current or Former Federal 
     Officers or Employees.--Section 1114 of title 18, United 
     States Code, is amended to read as follows:

     ``Sec. 1114. Protection of officers and employees of the 
       United States

       ``Whoever kills or attempts to kill a current or former 
     officer or employee of the United States or its 
     instrumentalities, or an immediate family member of such 
     officer or employee, or any person assisting such an officer 
     or employee in the performance of official duties, during or 
     on account of the performance of such duties or the provision 
     of such assistance, shall be punished--
       ``(1) in the case of murder, as provided under section 
     1111;
       ``(2) in the case of manslaughter, as provided under 
     section 1112; and
       ``(3) in the case of attempted murder or manslaughter as 
     provided in section 1113, not more than 20 years.''.
       (c) Amendment To Clarify the Meaning of the Term Deadly or 
     Dangerous Weapon in the Prohibition on Assault on Federal 
     Officers or Employees.--Section 111(b) of title 18, United 
     States Code, is amended by inserting after ``deadly or 
     dangerous weapon'' the following: ``(including a weapon 
     intended to cause death or danger but that fails to do so by 
     reason of a defective or missing component)''.

     SEC. 627. ADDITION OF CONSPIRACY TO TERRORISM OFFENSES.

       (a) Destruction of Aircraft or Aircraft Facilities.--(1) 
     Section 32(a)(7) of title 18, United States Code, is amended 
     by inserting ``or conspires'' after ``attempts''.
       (2) Section 32(b)(D) of title 18, United States Code, as 
     redesignated by section 721(b)(2), is amended by inserting 
     ``or conspires'' after ``attempts''.
       (b) Violence at International Airports.--Section 37(a) of 
     title 18, United States Code, is amended by inserting ``or 
     conspires'' after ``attempts''.
       (c) Influencing, Impeding, or Retaliating Against a Federal 
     Official by Threatening or Injuring a Family Member.--(1) 
     Section 115(a)(1)(A) of title 18, United States Code, is 
     amended by inserting ``or conspires'' after ``attempts''.
       (2) Section 115(a)(2) of title 18, United States Code, as 
     amended by section 729, is further amended by inserting ``or 
     conspires'' after ``attempts''.
       (3) Section 115(b)(2) of title 18, United States Code, is 
     amended by striking both times it appears ``or attempted 
     kidnapping'' and inserting both times ``, attempted 
     kidnapping or conspiracy to kidnap''.
       (4)(A) Section 115(b)(3) of title 18, United States Code, 
     is amended by striking ``or attempted murder'' and inserting 
     ``, attempted murder or conspiracy to murder''.
       (B) Section 115(b)(3) of title 18, United States Code, is 
     further amended by striking ``and 1113'' and inserting ``, 
     1113, and 1117''.
       (d) Prohibitions With Respect to Biological Weapons.--
     Section 175(a) of title 18, United States Code, is amended by 
     inserting ``, or conspires to do so,'' after ``any 
     organization to do so,''.
       (e) Hostage Taking.--Section 1203(a) of title 18, United 
     States Code, is amended by inserting ``or conspires'' after 
     ``attempts''.
       (f) Violence Against Maritime Navigation.--Section 
     2280(a)(1)(H) of title 18, United States Code, is amended by 
     inserting ``or conspires'' after ``attempts''.
       (g) Violence Against Maritime Fixed Platforms.--Section 
     2281(a)(1)(F) of title 18, United States Code, is amended by 
     inserting ``or conspires'' after ``attempts''.
       (h) Aircraft Piracy.--Section 46502 of title 49, United 
     States Code, is amended--
       (1) in subsection (a)(2), by inserting ``, conspiring,'' 
     after ``committing'' and
       (2) in subsection (b)--
       (A) in paragraph (1), by inserting ``or conspiring to 
     commit'' after ``committing'';
       (B) in paragraph (2), by inserting ``conspired or'' after 
     ``has placed,''; and
       (C) in paragraph (3), by inserting ``conspired or'' after 
     ``has placed,''.
       (i) Clarification of Maritime Violence Jurisdiction.--
     Section 2280(b)(1)(A) of title 18, United States Code, is 
     amended--
       (1) in clause (ii), by striking ``and the activity is not 
     prohibited as a crime by the State in which the activity 
     takes place''; and
       (2) in clause (iii), by striking ``the activity takes place 
     on a ship flying the flag of a foreign country or outside the 
     United States,''.

     SEC. 628. CLARIFICATION OF FEDERAL JURISDICTION OVER BOMB 
                   THREATS.

       Section 844(e) of title 18, United States Code, is 
     amended--
       (1) by striking ``(e) Whoever'' and inserting ``(e)(1) 
     Whoever''; and
       (2) by adding at the end the following new paragraph:
       ``(2) Whoever willfully makes any threat, or maliciously 
     conveys false information knowing the same to be false, 
     concerning an attempt or alleged attempt being made, or to be 
     made to violate subsection (f) or (i) of this section or 
     section 81 of this title shall be fined under this title, 
     imprisoned for not more than 5 years, or both.''.
                TITLE VII--MARKING OF PLASTIC EXPLOSIVES

     SEC. 701. FINDINGS AND PURPOSES.

       (a) Findings.--The Congress finds that--
       (1) plastic explosives were used by terrorists in the 
     bombings of Pan Am flight 103 in December 1988 and UTA flight 
     722 in September 1989;
       (2) plastic explosives can be used with little likelihood 
     of detection for acts of unlawful interference with civil 
     aviation, maritime navigation, and other modes of 
     transportation;
       (3) the criminal use of plastic explosives places innocent 
     lives in jeopardy, endangers national security, affects 
     domestic tranquility, and gravely affects interstate and 
     foreign commerce;
       (4) the marking of plastic explosives for the purpose of 
     detection would contribute significantly to the prevention 
     and punishment of such unlawful acts; and
       (5) for the purpose of deterring and detecting such 
     unlawful acts, the Convention on the Marking of Plastic 
     Explosives for the Purpose of Detection, Done at Montreal on 
     1 March 1991, requires each contracting State to adopt 
     appropriate measures to ensure that plastic explosives are 
     duly marked and controlled.
       (b) Purpose.--The purpose of this title is to fully 
     implement the Convention on the Marking of Plastic Explosives 
     for the Purpose of Detection, Done at Montreal on 1 March 
     1991.

     SEC. 702. DEFINITIONS.

       Section 841 of title 18, United States Code, is amended by 
     adding at the end the following new subsections:
       ``(o) `Convention on the Marking of Plastic Explosives' 
     means the Convention on the Marking of Plastic Explosives for 
     the Purpose of Detection, Done at Montreal on 1 March 1991.
       ``(p) `Detection agent' means any one of the substances 
     specified in this subsection when introduced into a plastic 
     explosive or formulated in such explosive as a part of the 
     manufacturing process in such a manner as to achieve 
     homogeneous distribution in the finished explosive, 
     including--
       ``(1) Ethylene glycol dinitrate (EGDN), 
     C2H4(NO3)2, molecular weight 152, when 
     the minimum concentration in the finished explosive is 0.2 
     percent by mass;
       ``(2) 2,3-Dimethyl-2,3-dinitrobutane (DMNB), 
     C6H12(NO2)2, molecular weight 176, when 
     the minimum concentration in the finished explosive is 0.1 
     percent by mass;
       ``(3) Para-Mononitrotoluene (p-MNT), 
     C7H7NO2, molecular weight 137, when the 
     minimum concentration in the finished explosive is 0.5 
     percent by mass;
       ``(4) Ortho-Mononitrotoluene (o-MNT), 
     C7H7NO2, molecular weight 137, when the 
     minimum concentration in the finished explosive is 0.5 
     percent by mass; and
       ``(5) any other substance in the concentration specified by 
     the Secretary, after consultation with the Secretary of State 
     and the Secretary of Defense, which has been added to the 
     table in part 2 of the Technical Annex to the Convention on 
     the Marking of Plastic Explosives.
       ``(q) `Plastic explosive' means an explosive material in 
     flexible or elastic sheet form formulated with one or more 
     high explosives which in their pure form have a vapor 
     pressure less than 10-4 Pa at a temperature of 
     25 deg.C., is formulated with a binder material, and is as a 
     mixture malleable or flexible at normal room temperature.''.

     SEC. 703. REQUIREMENT OF DETECTION AGENTS FOR PLASTIC 
                   EXPLOSIVES.

       Section 842 of title 18, United States Code, is amended by 
     adding after subsection (k) the following new subsections:
       ``(l) It shall be unlawful for any person to manufacture 
     any plastic explosive that does not contain a detection 
     agent.
       ``(m)(1) It shall be unlawful for any person to import or 
     bring into the United States, or export from the United 
     States, any plastic explosive that does not contain a 
     detection agent. [[Page S7874]] 
       ``(2) This subsection does not apply to the importation or 
     bringing into the United States, or the exportation from the 
     United States, of any plastic explosive that was imported, 
     brought into, or manufactured in the United States prior to 
     the date of enactment of title VII of the Comprehensive 
     Terrorism Prevention Act of 1995 by or on behalf of any 
     agency of the United States performing military or police 
     functions (including any military reserve component) or by or 
     on behalf of the National Guard of any State, not later than 
     15 years after the date of entry into force of the Convention 
     on the Marking of Plastic Explosives, with respect to the 
     United States.
       ``(n)(1) It shall be unlawful for any person to ship, 
     transport, transfer, receive, or possess any plastic 
     explosive that does not contain a detection agent.
       ``(2) This subsection does not apply to--
       ``(A) the shipment, transportation, transfer, receipt, or 
     possession of any plastic explosive that was imported, 
     brought into, or manufactured in the United States prior to 
     the date of enactment of the Comprehensive Terrorism 
     Prevention Act of 1995 by any person during a period not 
     exceeding 3 years after the date of enactment of title VII of 
     the Comprehensive Terrorism Prevention Act of 1995; or
       ``(B) the shipment, transportation, transfer, receipt, or 
     possession of any plastic explosive that was imported, 
     brought into, or manufactured in the United States prior to 
     the date of enactment of title VII of the Comprehensive 
     Terrorism Prevention Act of 1995 by or on behalf of any 
     agency of the United States performing a military or police 
     function (including any military reserve component) or by or 
     on behalf of the National Guard of any State, not later than 
     15 years after the date of entry into force of the Convention 
     on the Marking of Plastic Explosives, with respect to the 
     United States.
       ``(o) It shall be unlawful for any person, other than an 
     agency of the United States (including any military reserve 
     component) or the National Guard of any State, possessing any 
     plastic explosive on the date of enactment of title VII of 
     the Comprehensive Terrorism Prevention Act of 1995, to fail 
     to report to the Secretary within 120 days after such 
     effective date the quantity of such explosives possessed, the 
     manufacturer or importer, any marks of identification on such 
     explosives, and such other information as the Secretary may 
     by regulations prescribe.''.

     SEC. 704. CRIMINAL SANCTIONS.

       Section 844(a) of title 18, United States Code, is amended 
     to read as follows:
       ``(a) Any person who violates any of subsections (a) 
     through (i) or (l) through (o) of section 842 shall be fined 
     under this title or imprisoned not more than 10 years, or 
     both.''.

     SEC. 705. EXCEPTIONS.

       Section 845 of title 18, United States Code, is amended--
       (1) in subsection (a), by inserting ``(l), (m), (n), or (o) 
     of section 842 and subsections'' after ``subsections'';
       (2) in paragraph (1), by inserting before the semicolon ``, 
     and which pertain to safety''; and
       (3) by adding at the end the following new subsection:
       ``(c) It is an affirmative defense against any proceeding 
     involving subsections (l) through (o) of section 842 if the 
     proponent proves by a preponderance of the evidence that the 
     plastic explosive--
       ``(1) consisted of a small amount of plastic explosive 
     intended for and utilized solely in lawful--
       ``(A) research, development, or testing of new or modified 
     explosive materials;
       ``(B) training in explosives detection or development or 
     testing of explosives detection equipment; or
       ``(C) forensic science purposes; or
       ``(2) was plastic explosive that, within 3 years after the 
     date of enactment of the Comprehensive Terrorism Prevention 
     Act of 1995, will be or is incorporated in a military device 
     within the territory of the United States and remains an 
     integral part of such military device, or is intended to be, 
     or is incorporated in, and remains an integral part of a 
     military device that is intended to become, or has become, 
     the property of any agency of the United States performing 
     military or police functions (including any military reserve 
     component) or the National Guard of any State, wherever such 
     device is located.
       ``(3) For purposes of this subsection, the term `military 
     device' includes, but is not restricted to, shells, bombs, 
     projectiles, mines, missiles, rockets, shaped charges, 
     grenades, perforators, and similar devices lawfully 
     manufactured exclusively for military or police purposes.''.

     SEC. 706. INVESTIGATIVE AUTHORITY.

       Section 846 of title 18, United States Code, is amended--
       (1) in the last sentence, by inserting in the last sentence 
     before ``subsection'' the phrase ``subsection (m) or (n) of 
     section 842 or;'', and
       (2) by adding at the end the following: ``The Attorney 
     General shall exercise authority over violations of 
     subsection (m) or (n) of section 842 only when they are 
     committed by a member of a terrorist or revolutionary group. 
     In any matter involving a terrorist or revolutionary group or 
     individual, as determined by the Attorney General, the 
     Attorney General shall have primary investigative 
     responsibility and the Secretary shall assist the Attorney 
     General as requested.''.

     SEC. 707. EFFECTIVE DATE.

       Except as otherwise provided in this title, this title and 
     the amendments made by this title shall take effect 1 year 
     after the date of enactment of this Act.

     SEC. 708. STUDY AND REQUIREMENTS FOR TAGGING OF EXPLOSIVE 
                   MATERIALS, AND STUDY AND RECOMMENDATIONS FOR 
                   RENDERING EXPLOSIVE COMPONENTS INERT AND 
                   IMPOSING CONTROLS ON PRECURSORS OF EXPLOSIVES.

       (a) The Secretary of the Treasury shall conduct a study and 
     make recommendations concerning--
       (1) the tagging of explosive materials for purposes of 
     detection and identification;
       (2) whether common chemicals used to manufacture explosive 
     materials can be rendered inert and whether it is feasible to 
     require it; and
       (3) whether controls can be imposed on certain precursor 
     chemicals used to manufacture explosive materials and whether 
     it is feasible and cost-effective to require it.

     In conducting the study, the Secretary shall consult with 
     other Federal, State and local officials with expertise in 
     this area and such other individuals as shall be deemed 
     necessary. Such study shall be completed within twelve months 
     after the enactment of this Act and shall be submitted to the 
     Congress and made available to the public. Such study may 
     include, if appropriate, recommendations for legislation.
       (b) There are authorized to be appropriated for the study 
     and recommendations contained in paragraph (a) such sums as 
     may be necessary.
       (c) Section 842, of title 18, United States Code, is 
     amended by inserting after subsection (k), a new subsection 
     (l) which reads as follows:
       ``(l)(1) It shall be unlawful for any person to 
     manufacture, import, ship, transport, receive, possess, 
     transfer, or distribute any explosive material that does not 
     contain a tracer element as prescribed by the Secretary 
     pursuant to regulation, knowing or having reasonable cause to 
     believe that the explosive material does not contain the 
     required tracer element.
       ``(2) For purposes of this subsection, explosive material 
     does not include smokeless or black powder manufactured for 
     uses set forth in section 845(a) (4) and (5) of this 
     chapter.''.
       (d) Section 844, of title 18, United States Code, is 
     amended by inserting after ``(a) through (i)'' the phrase 
     ``and (l)''.
       (e) Section 846, of title 18, United States Code, is 
     amended by designating the present section as ``(a)'' and by 
     adding a new subsection (b) reading as follows:
       ``(b) to facilitate the enforcement of this chapter the 
     Secretary shall, within 6 months after submission of the 
     study required by subsection (a), promulgate regulations for 
     the addition of tracer elements to explosive materials 
     manufactured in or imported into the United States. Tracer 
     elements to be added to explosive materials under provisions 
     of this subsection shall be of such character and in such 
     quantity as the Secretary may authorize or require, and such 
     as will not substantially impair the quality of the explosive 
     materials for their intended lawful use, adversely affect the 
     safety of these explosives, or have a substantially adverse 
     effect on the environment.''.
       (f) The penalties provided herein shall not take effect 
     until ninety days after the date of promulgation of the 
     regulations provided for herein.
                     TITLE VIII--NUCLEAR MATERIALS

     SEC. 801. FINDINGS AND PURPOSE.

       (a) Findings.--The Congress finds that--
       (1) nuclear materials, including byproduct materials, can 
     be used to create radioactive dispersal devices that are 
     capable of causing serious bodily injury as well as 
     substantial damage to property and the environment;
       (2) the potential use of nuclear materials, including 
     byproduct materials, enhances the threat posed by terrorist 
     activities and thereby has a greater effect on the security 
     interests of the United States;
       (3) due to the widespread hazards presented by the threat 
     of nuclear contamination, as well as nuclear bombs, the 
     United States has a strong interest in ensuring that persons 
     who are engaged in the illegal acquisition and use of nuclear 
     materials, including byproduct materials, are prosecuted for 
     their offenses;
       (4) the threat that nuclear materials will be obtained and 
     used by terrorist and other criminal organizations has 
     increased substantially since the enactment in 1982 of the 
     legislation that implemented the Convention on the Physical 
     Protection of Nuclear Material, codified at section 831 of 
     title 18, United States Code;
       (5) the successful efforts to obtain agreements from other 
     countries to dismantle nuclear weapons have resulted in 
     increased packaging and transportation of nuclear materials, 
     thereby decreasing the security of such materials by 
     increasing the opportunity for unlawful diversion and theft;
       (6) the illicit trafficking in the relatively more common, 
     commercially available and usable nuclear and byproduct 
     materials poses a potential to cause significant loss of life 
     and environmental damage;
       (7) reported trafficking incidents in the early 1990's 
     suggest that the individuals involved in trafficking these 
     materials from Eurasia and Eastern Europe frequently 
     conducted their black market sales of these materials within 
     the Federal Republic of Germany, the Baltic States, the 
     former Soviet [[Page S7875]] Union, Central Europe, and to a 
     lesser extent in the Middle European countries;
       (8) the international community has become increasingly 
     concerned over the illegal possession of nuclear and nuclear 
     byproduct materials;
       (9) the potentially disastrous ramifications of increased 
     access to nuclear and nuclear byproduct materials pose such a 
     significant future threat that the United States must use all 
     lawful methods available to combat the illegal use of such 
     materials;
       (10) the United States has an interest in encouraging 
     United States corporations to do business in the countries 
     that comprised the former Soviet Union, and in other 
     developing democracies;
       (11) protection of such United States corporations from 
     threats created by the unlawful use of nuclear materials is 
     important to the success of the effort to encourage such 
     business ventures, and to further the foreign relations and 
     commerce of the United States;
       (12) the nature of nuclear contamination is such that it 
     may affect the health, environment, and property of United 
     States nationals even if the acts that constitute the illegal 
     activity occur outside the territory of the United States, 
     and are primarily directed toward foreign nationals; and
       (13) there is presently no Federal criminal statute that 
     provides adequate protection to United States interests from 
     nonweapons grade, yet hazardous radioactive material, and 
     from the illegal diversion of nuclear materials that are held 
     for other than peaceful purposes.
       (b) Purpose.--The purpose of this title is to provide 
     Federal law enforcement agencies the necessary tools and 
     fullest possible basis allowed under the Constitution to 
     combat the threat of nuclear contamination and proliferation 
     that may result from illegal possession and use of 
     radioactive materials.

     SEC. 802. EXPANSION OF SCOPE AND JURISDICTIONAL BASES OF 
                   NUCLEAR MATERIALS PROHIBITIONS.

       Section 831 of title 18, United States Code, is amended--
       (1) in subsection (a)--
       (A) by striking ``nuclear material'' each place it appears 
     and inserting ``nuclear material or nuclear byproduct 
     material'';
       (B) in paragraph (1)--
       (i) in subparagraph (A), by inserting ``or the 
     environment'' after ``property''; and
       (ii) by amending subparagraph (B) to read as follows:
       ``(B)(i) circumstances exist that are likely to cause the 
     death or serious bodily injury to any person or substantial 
     damage to property or the environment, or such circumstances 
     have been represented to the defendant to exist;''; and
       (C) in paragraph (6), by inserting ``or the environment'' 
     after ``property'';
       (2) in subsection (c)--
       (A) by amending paragraph (2) to read as follows:
       ``(2) an offender or a victim is a national of the United 
     States or a United States corporation or other legal 
     entity;'';
       (B) in paragraph (3)--
       (i) by striking ``at the time of the offense the nuclear 
     material is in use, storage, or transport, for peaceful 
     purposes, and''; and
       (ii) by striking ``or'' at the end of the paragraph;
       (C) in paragraph (4)--
       (i) by striking ``nuclear material for peaceful purposes'' 
     and inserting ``nuclear material or nuclear byproduct 
     material''; and
       (ii) by striking the period at the end of the paragraph and 
     inserting ``; or''; and
       (D) by adding at the end the following new paragraph:
       ``(5) the governmental entity under subsection (a)(5) is 
     the United States or the threat under subsection (a)(6) is 
     directed at the United States.''; and
       (3) in subsection (f)--
       (A) in paragraph (1)--
       (i) in subparagraph (A), by striking ``with an isotopic 
     concentration not in excess of 80 percent plutonium 238''; 
     and
       (ii) in subparagraph (C), by striking ``(C) uranium'' and 
     inserting ``(C) enriched uranium, defined as uranium'';
       (B) by redesignating paragraphs (2), (3), and (4) as 
     paragraphs (4), (5), and (6), respectively;
       (C) by inserting after paragraph (1) the following new 
     paragraph:
       ``(2) the term `nuclear byproduct material' means any 
     material containing any radioactive isotope created through 
     an irradiation process in the operation of a nuclear reactor 
     or accelerator;'';
       (D) by striking ``and'' at the end of paragraph (4), as 
     redesignated;
       (E) by striking the period at the end of subsection (f)(5), 
     as redesignated, and inserting a semicolon; and
       (F) by adding at the end the following new paragraphs:
       ``(6) the term `national of the United States' has the 
     meaning given such term in section 101(a)(22) of the 
     Immigration and Nationality Act (8 U.S.C. 1101(a)(22)); and
       ``(7) the term `United States corporation or other legal 
     entity' means any corporation or other entity organized under 
     the laws of the United States or any State, Commonwealth, 
     territory, possession, or district of the United States.''.
                   TITLE IX--MISCELLANEOUS PROVISIONS

     SEC. 901. PROHIBITION ON DISTRIBUTION OF INFORMATION RELATING 
                   TO EXPLOSIVE MATERIALS FOR A CRIMINAL PURPOSE.

       (a) Section 842 of title 18, United States Code, is amended 
     by adding at the end the following new subsection:
       ``(l) It shall be unlawful for any person to teach or 
     demonstrate the making of explosive materials, or to 
     distribute by any means information pertaining to, in whole 
     or in part, the manufacture of explosive materials, if the 
     person intends or knows, that such explosive materials or 
     information will be used for, or in furtherance of, an 
     activity that constitutes a Federal criminal offense or a 
     criminal purpose affecting interstate commerce.''.
       (b) Section 844 of title 18, United States Code, is amended 
     by designating subsection (a) as subsection (a)(1) and by 
     adding the following new subsection:
       ``(a)(2) Any person who violates subsection (l) of section 
     842 of this chapter shall be fined under this title or 
     imprisoned not more than twenty years, or both.''.

     SEC. 902. DESIGNATION OF CARTNEY KOCH MCRAVEN CHILD 
                   DEVELOPMENT CENTER.

       (a) Designation.--
       (1) In general.--The Federal building at 1314 LeMay 
     Boulevard, Ellsworth Air Force Base, South Dakota, shall be 
     known and designated as the ``Cartney Koch McRaven Child 
     Development Center''.
       (2) Replacement building.--If, after the date of enactment 
     of this Act, a new Federal building is built at the location 
     described in paragraph (1) to replace the building described 
     in the paragraph, the new Federal building shall be known and 
     designated as the ``Cartney Koch McRaven Child Development 
     Center''.
       (b) References.--Any reference in a law, map, regulation, 
     document, paper, or other record of the United States to a 
     Federal building referred to in subsection (a) shall be 
     deemed to be a reference to the ``Cartney Koch McRaven Child 
     Development Center''.

     SEC. 903. FOREIGN AIR TRAVEL SAFETY.

       Section 44906 of title 49, United States Code, is amended 
     to read as follows:

     ``Sec. 44906. Foreign air carrier security programs

       ``The Administrator of the Federal Aviation Administration 
     shall continue in effect the requirement of section 129.25 of 
     title 14, Code of Federal Regulations, that a foreign air 
     carrier must adopt and use a security program approved by the 
     Administrator. The Administrator shall only approve a 
     security program of a foreign air carrier under section 
     129.25, or any successor regulation, if the Administrator 
     decides the security program provides passengers of the 
     foreign air carrier a level of protection identical to the 
     level those passengers would receive under the security 
     programs of air carriers serving the same airport. The 
     Administrator shall prescribe regulations to carry out this 
     section.''.

     SEC. 904. PROOF OF CITIZENSHIP.

       Notwithstanding any other provision of law, a Federal, 
     State, or local government agency may not use a voter 
     registration card (or other related document) that evidences 
     registration for an election for Federal office, as evidence 
     to prove United States citizenship.

     SEC. 905. COOPERATION OF FERTILIZER RESEARCH CENTERS.

       In conducting any portion of the study relating to the 
     regulation and use of fertilizer as a pre-explosive material, 
     the Secretary of the Treasury shall consult with and receive 
     input from non-profit fertilizer research centers and include 
     their opinions and findings in the report required under 
     subsection (c).

     SEC. 906. SPECIAL ASSESSMENTS ON CONVICTED PERSONS.

       Section 3013(a)(2) of title 18, United States Code, is 
     amended--
       (A) in subparagraph (A), by striking ``$50'' and inserting 
     ``not less than $100''; and
       (B) in subparagraph (B), by striking ``$200'' and inserting 
     ``not less than $400''.

     SEC. 907. PROHIBITION ON ASSISTANCE UNDER ARMS EXPORT CONTROL 
                   ACT FOR COUNTRIES NOT COOPERATING FULLY WITH 
                   UNITED STATES ANTITERRORISM EFFORTS.

       Chapter 3 of the Arms Export Control Act (22 U.S.C. 2771 et 
     seq.) is amended by adding at the end the following:
       ``Sec. 40A. Transactions with Countries Not Fully 
     Cooperating with United States Antiterrorism Efforts.
       ``(a) Prohibited Transactions.--No defense article or 
     defense service may be sold or licensed for export under this 
     Act to a foreign country in a fiscal year unless the 
     President determines and certifies to Congress at the 
     beginning of that fiscal year, or at any other time in that 
     fiscal year before such sale or license, that the country is 
     cooperating fully with United States antiterrorism efforts.
       ``(b) Waiver.--The President may waive the prohibition set 
     forth in subsection (a) with respect to a specific 
     transaction if the President determines that the transaction 
     is essential to the national security interests of the United 
     States.''.

     SEC. 908. AUTHORITY TO REQUEST MILITARY ASSISTANCE WITH 
                   RESPECT TO OFFENSES INVOLVING BIOLOGICAL AND 
                   CHEMICAL WEAPONS.

       (a) Biological Weapons of Mass Destruction.--Section 175 of 
     title 18, United States Code, is amended by adding at the end 
     the following:
       ``(c)(1) Military Assistance.--The Attorney General may 
     request that the Secretary of Defense provide assistance in 
     support of [[Page S7876]] Department of Justice activities 
     relating to the enforcement of this section in an emergency 
     situation involving biological weapons of mass destruction. 
     Department of Defense resources, including personnel of the 
     Department of Defense, may be used to provide such assistance 
     if--
       ``(A) the Secretary of Defense and the Attorney General 
     determine that an emergency situation involving biological 
     weapons of mass destruction exists; and
       ``(B) the Secretary of Defense determines that the 
     provision of such assistance will not adversely affect the 
     military preparedness of the United States.
       ``(2) As used in this section, `emergency situation 
     involving biological weapons of mass destruction' means a 
     circumstance involving a biological weapon of mass 
     destruction--
       ``(A) that poses a serious threat to the interests of the 
     United States; and
       ``(B) in which--
       ``(i) civilian expertise is not readily available to 
     provide the required assistance to counter the threat posed 
     by the biological weapon of mass destruction involved;
       ``(ii) Department of Defense special capabilities and 
     expertise are needed to counter the threat posed by the 
     biological weapon of mass destruction involved; and
       ``(iii) enforcement of the law would be seriously impaired 
     if the Department of Defense assistance were not provided.
       ``(3) The assistance referred to in paragraph (1) includes 
     the operation of equipment (including equipment made 
     available under section 372 of title 10) to monitor, contain, 
     disable, or dispose of a biological weapon of mass 
     destruction or elements of the weapon.
       ``(4) The Attorney General and the Secretary of Defense 
     shall jointly issue regulations concerning the types of 
     assistance that may be provided under this subsection. Such 
     regulations shall also describe the actions that Department 
     of Defense personnel may take in circumstances incident to 
     the provision of assistance under this subsection. Such 
     regulations shall not authorize arrest or any assistance in 
     conducting searches and seizures that seek evidence related 
     to violations of this section, except for the immediate 
     protection of human life.
       ``(5) The Secretary of Defense shall require reimbursement 
     as a condition for providing assistance under this subsection 
     in accordance with section 377 of title 10.
       ``(6)(A) Except to the extent otherwise provided by the 
     Attorney General, the Deputy Attorney General may exercise 
     the authority of the Attorney General under this subsection. 
     The Attorney General may delegate the Attorney General's 
     authority under this subsection only to the Associate 
     Attorney General or an Assistant Attorney General and only if 
     the Associate Attorney General or Assistant Attorney General 
     to whom delegated has been designated by the Attorney General 
     to act for, and to exercise the general powers of, the 
     Attorney General.
       ``(B) Except to the extent otherwise provided by the 
     Secretary of Defense, the Deputy Secretary of Defense may 
     exercise the authority of the Secretary of Defense under this 
     subsection. The Secretary of Defense may delegate the 
     Secretary's authority under this subsection only to an Under 
     Secretary of Defense or an Assistant Secretary of Defense and 
     only if the Under Secretary or Assistant Secretary to whom 
     delegated has been designated by the Secretary to act for, 
     and to exercise the general powers of, the Secretary.''.
       (b) Chemical Weapons of Mass Destruction.--The chapter 113B 
     of title 18, United States Code, that relates to terrorism, 
     is amended by inserting after section 2332a the following:

     ``Sec. 2332b. Use of chemical weapons

       ``(a) Offense.--A person who without lawful authority uses, 
     or attempts or conspires to use, a chemical weapon--
       ``(1) against a national of the United States while such 
     national is outside of the United States;
       ``(2) against any person within the United States; or
       ``(3) against any property that is owned, leased or used by 
     the United States or by any department or agency of the 
     United States, whether the property is within or outside of 
     the United States,

     shall be imprisoned for any term of years or for life, and if 
     death results, shall be punished by death or imprisoned for 
     any term of years or for life.
       ``(b) Definitions.--For purposes of this section--
       ``(1) the term `national of the United States' has the 
     meaning given in section 101(a)(22) of the Immigration and 
     Nationality Act (8 U.S.C. 1101(a)(22)); and
       ``(2) the term `chemical weapon' means any weapon that is 
     designed to cause widespread death or serious bodily injury 
     through the release, dissemination, or impact of toxic or 
     poisonous chemicals or their precursors.
       ``(c)(1) Military Assistance.--The Attorney General may 
     request that the Secretary of Defense provide assistance in 
     support of Department of Justice activities relating to the 
     enforcement of this section in an emergency situation 
     involving chemical weapons of mass destruction. Department of 
     Defense resources, including personnel of the Department of 
     Defense, may be used to provide such assistance if--
       ``(A) the Secretary of Defense and the Attorney General 
     determine that an emergency situation involving chemical 
     weapons of mass destruction exists; and
       ``(B) the Secretary of Defense determines that the 
     provision of such assistance will not adversely affect the 
     military preparedness of the United States.
       ``(2) As used in this section, `emergency situation 
     involving chemical weapons of mass destruction' means a 
     circumstance involving a chemical weapon of mass 
     destruction--
       ``(A) that poses a serious threat to the interests of the 
     United States; and
       ``(B) in which--
       ``(i) civilian expertise is not readily available to 
     provide the required assistance to counter the threat posed 
     by the chemical weapon of mass destruction involved;
       ``(ii) Department of Defense special capabilities and 
     expertise are needed to counter the threat posed by the 
     biological weapon of mass destruction involved; and
       ``(iii) enforcement of the law would be seriously impaired 
     if the Department of Defense assistance were not provided.
       ``(3) The assistance referred to in paragraph (1) includes 
     the operation of equipment (including equipment made 
     available under section 372 of title 10) to monitor, contain, 
     disable, or dispose of a chemical weapon of mass destruction 
     or elements of the weapon.
       ``(4) The Attorney General and the Secretary of Defense 
     shall jointly issue regulations concerning the types of 
     assistance that may be provided under this subsection. Such 
     regulations shall also describe the actions that Department 
     of Defense personnel may take in circumstances incident to 
     the provision of assistance under this subsection. Such 
     regulations shall not authorize arrest or any assistance in 
     conducting searches and seizures that seek evidence related 
     to violations of this section, except for the immediate 
     protection of human life.
       ``(5) The Secretary of Defense shall require reimbursement 
     as a condition for providing assistance under this subsection 
     in accordance with section 377 of title 10.
       ``(6)(A) Except to the extent otherwise provided by the 
     Attorney General, the Deputy Attorney General may exercise 
     the authority of the Attorney General under this subsection. 
     The Attorney General may delegate the Attorney General's 
     authority under this subsection only to the Associate 
     Attorney General or an Assistant Attorney General and only if 
     the Associate Attorney General or Assistant Attorney General 
     to whom delegated has been designated by the Attorney General 
     to act for, and to exercise the general powers of, the 
     Attorney General.
       ``(B) Except to the extent otherwise provided by the 
     Secretary of Defense, the Deputy Secretary of Defense may 
     exercise the authority of the Secretary of Defense under this 
     subsection. The Secretary of Defense may delegate the 
     Secretary's authority under this subsection only to an Under 
     Secretary of Defense or an Assistant Secretary of Defense and 
     only if the Under Secretary or Assistant Secretary to whom 
     delegated has been designated by the Secretary to act for, 
     and to exercise the general powers of, the Secretary.''.
       (c)(1) Civilian expertise.--The President shall take 
     reasonable measures to reduce civilian law enforcement 
     officials' reliance on Department of Defense resources to 
     counter the threat posed by the use or potential use of 
     biological and chemical weapons of mass destruction within 
     the United States, including--
       (A) increasing civilian law enforcement expertise to 
     counter such threat;
       (B) improving coordination between civilian law enforcement 
     officials and other civilian sources of expertise, both 
     within and outside the Federal Government, to counter such 
     threat.
       (2) Report requirement.--The President shall submit to the 
     Congress--
       (A) ninety days after the date of enactment of this Act, a 
     report describing the respective policy functions and 
     operational roles of Federal agencies in countering the 
     threat posed by the use or potential use of biological and 
     chemical weapons of mass destruction within the United 
     States;
       (B) one year after the date of enactment of this Act, a 
     report describing the actions planned to be taken and the 
     attendant cost pertaining to paragraph (1); and
       (C) three years after the date of enactment of this Act, a 
     report updating the information provided in the reports 
     submitted pursuant to subparagraphs (A) and (B), including 
     measures taken pursuant to paragraph (1).
       (d) Clerical Amendment.--The chapter analysis for chapter 
     113B of title 18, United States Code, is amended by inserting 
     after the item relating to section 2332a the following:

``2332b. Use of chemical weapons.''.
       (e) Use of Weapons of Mass Destruction.--Section 2332a(a) 
     of title 18, United States Code, is amended by inserting 
     ``without lawful authority'' after ``A person who''.

     SEC. 909. REVISION TO EXISTING AUTHORITY FOR MULTIPOINT 
                   WIRETAPS.

       (a) Section 2518(11)(b)(ii) of title 18 is amended: by 
     deleting ``of a purpose, on the part of that person, to 
     thwart interception by changing facilities.'' and inserting 
     ``that the person had the intent to thwart interception or 
     that the person's actions and conduct would have the effect 
     of thwarting interception from a specified facility.''.
       (b) Section 2518(11)(b)(iii) is amended to read:
       ``(iii) the judge finds that such showing has been 
     adequately made.''.
     [[Page S7877]]
     
     SEC. 910. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE 
                   UNITED STATES PARK POLICE.

       (a) In General.--There are authorized to be appropriated 
     from the General Fund of the Treasury for the activities of 
     the United States Park Police, to help meet the increased 
     needs of the United States Park Police, $1,000,000 for each 
     of the fiscal years 1996, 1997, 1998, 1999, and 2000.
       (b) Availability of Funds.--Funds made available pursuant 
     to this section, in any fiscal year, shall remain available 
     until expended.

     SEC. 911. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE 
                   ADMINISTRATIVE OFFICE OF THE UNITED STATES 
                   COURTS.

       (a) In General.--There are authorized to be appropriated 
     from the General Fund of the Treasury for the activities of 
     the Administrative Office of the United States Courts, to 
     help meet the increased needs of the Administrative Office of 
     the United States Courts, $4,000,000 for each of the fiscal 
     years 1996, 1997, 1998, 1999, and 2000.
       (b) Availability of Funds.--Funds made available pursuant 
     to this section, in any fiscal year, shall remain available 
     until expended.

     SEC. 912. AUTHORIZATION OF ADDITIONAL APPROPRIATIONS FOR THE 
                   UNITED STATES CUSTOMS SERVICE.

       (a) In General.--There are authorized to be appropriated 
     from the General Fund of the Treasury for the activities of 
     the United States Customs Service, to help meet the increased 
     needs of the United States Customs Service, $10,000,000 for 
     each of the fiscal years 1996, 1997, 1998, 1999, and 2000.
       (b) Availability of Funds.--Funds made available pursuant 
     to this section, in any fiscal year, shall remain available 
     until expended.

     SEC. 913. SEVERABILITY.

       If any provision of this Act, an amendment made by this 
     Act, or the application of such provision or amendment to any 
     person or circumstance is held to be unconstitutional, the 
     remainder of this Act, the amendments made by this Act, and 
     the application of the provisions of such to any person or 
     circumstance shall not be affected thereby.
                   TITLE X--VICTIMS OF TERRORISM ACT

     SEC. 1001. TITLE.

       This title may be cited as the ``Victims of Terrorism Act 
     of 1995''.

     SEC. 1002. AUTHORITY TO PROVIDE ASSISTANCE AND COMPENSATION 
                   TO VICTIMS OF TERRORISM.

       The Victims of Crime Act of 1984 (42 U.S.C. 10601 et seq.) 
     is amended by inserting after section 1404A the following new 
     section:

     ``SEC. 1404B. COMPENSATION AND ASSISTANCE TO VICTIMS OF 
                   TERRORISM OR MASS VIOLENCE.

       ``(a) Victims of Acts of Terrorism Outside the United 
     States.--The Director may make supplemental grants to States 
     to provide compensation and assistance to the residents of 
     such States who, while outside the territorial boundaries of 
     the United States, are victims of a terrorist act or mass 
     violence and are not persons eligible for compensation under 
     title VIII of the Omnibus Diplomatic Security and 
     Antiterrorism Act of 1986.
       ``(b) Victims of Domestic Terrorism.--The Director may make 
     supplemental grants to States for eligible crime victim 
     compensation and assistance programs to provide emergency 
     relief, including crisis response efforts, assistance, 
     training, and technical assistance, for the benefit of 
     victims of terrorist acts or mass violence occurring within 
     the United States and may provide funding to United States 
     Attorney's Offices for use in coordination with State victims 
     compensation and assistance efforts in providing emergency 
     relief.''.

     SEC. 1003. FUNDING OF COMPENSATION AND ASSISTANCE TO VICTIMS 
                   OF TERRORISM, MASS VIOLENCE, AND CRIME.

       Section 1402(d)(4) of the Victims of Crime Act of 1984 (42 
     U.S.C. 10601(d)(4)) is amended to read as follows:
       ``(4)(A) If the sums available in the Fund are sufficient 
     to fully provide grants to the States pursuant to section 
     1403(a)(1), the Director may retain any portion of the Fund 
     that was deposited during a fiscal year that was in excess of 
     110 percent of the total amount deposited in the Fund during 
     the preceding fiscal year as an emergency reserve. Such 
     reserve shall not exceed $50,000,000.
       ``(B) The emergency reserve may be used for supplemental 
     grants under section 1404B and to supplement the funds 
     available to provide grants to States for compensation and 
     assistance in accordance with sections 1403 and 1404 in years 
     in which supplemental grants are needed.''.

     SEC. 1004. CRIME VICTIMS FUND AMENDMENTS.

       (a) Unobligated Funds.--Section 1402 of the Victims of 
     Crime Act of 1984 (42 U.S.C. 10601) is amended--
       (1) in subsection (c), by striking ``subsection'' and 
     inserting ``chapter''; and
       (2) by amending subsection (e) to read as follows:
       ``(e) Amounts Awarded and Unspent.--Any amount awarded as 
     part of a grant under this chapter that remains unspent at 
     the end of a fiscal year in which the grant is made may be 
     expended for the purpose for which the grant is made at any 
     time during the 2 succeeding fiscal years, at the end of 
     which period, any remaining unobligated sums shall be 
     returned to the Fund.''.
       (b) Base Amount.--Section 1404(a)(5) of such Act (42 U.S.C. 
     10603(a)(5)) is amended to read as follows:
       ``(5) As used in this subsection, the term `base amount' 
     means--
       ``(A) except as provided in subparagraph (B), $500,000; and
       ``(B) for the territories of the Northern Mariana Islands, 
     Guam, American Samoa, and Palau, $200,000.''.

  Mr. HATCH. Madam President, I would like to thank Bob Dole for his 
strong leadership. It was an honor to work with him. Arlen Specter for 
his legal acumen, Joe Biden for his statesmanship and Don Nickles and 
James Inhofe for their able input. All of these Senators were vital to 
the passage of this bill.
  I would also like to commend the following staffers for their long, 
hard work:
  Democrats: Cynthia Hogan, Ankor Gouel, Chris Putals, Demetra Lambros, 
Mimi Murphy, Tracy Doherty, and Mike O'Leary.
  Republicans: Mike O'Neill and Mike Kennedy. These two men worked, 
literally, around the clock. Also, Ashley Disque, John Gibbons, Dennis 
Shea, Richard Hertling, Lee Otis, Eric Mayfield, and Manus Cooney.
  All of these people helped make this bill possible. The President 
called on Congress for swift action, and we delivered.
  Mr. DOLE. Madam President, immediately after the Oklahoma City 
tragedy, President Clinton was right on target when he said that the 
perpetrators of this vicious crime should face justice that was 
``swift, certain, and severe.''
  I am pleased to report to the American people and to the President 
that, with today's passage of the antiterrorism bill, we are one giant 
step closer to achieving this important goal.
  The most critical element of this bill, and the one that bears most 
directly on the tragic events in Oklahoma City, is the provision 
reforming the so-called habeas corpus rules.
  By imposing filing deadlines on all death row inmates, and by 
limiting condemned killers convicted in State or Federal court to one 
Federal habeas petition--one bite of the apple--these landmark reforms 
will go a long, long way to streamline the lengthy appeals process and 
bridge the gap between crime and punishment in America.
  It is dead wrong that we must wait 8, or 9, or even 10 years before a 
capital sentence is actually carried out. And, of course, it is 
terribly unjust to the innocent victims of violent crime and their 
families.
  As I said yesterday, if the Federal Government prosecutes the 
Oklahoma City case and the death penalty is sought and imposed, the 
execution of the sentence could take as a little as 1 year once these 
reforms are enacted into law.
  I want to thank President Clinton for his efforts this past week in 
discrouraging Democratic amendments. No doubt about it, the President's 
involvement has helped speed up the process here in the Senate. I 
particularly commend the President for finally coming around to the 
view that habeas reform is an essential ingredient of any serious anti-
terrorism plan.
  I want to thank the two managers, Senator Hatch and Senator Biden, 
for their persistence in guiding this legislation through the Senate. 
On this side of aisle, Senator Hatch has provided the intellectual glue 
that has kept this effort together. And, of course, I want to thank my 
two colleagues from Oklahoma, Senator Nickles and Senator Inhofee, 
whose help in this process has also been invaluable.
  Finally, I commend the good people of Oklahoma City, who self-
sacrifice and resiliency during this very difficult time has been an 
inspiration for us all. The families of some of the bombing victims 
travelled all the way to Washington this past Monday to let us know 
that we must take action now to put an end to the endless delays and 
appeals that have done so much to weaken public confidence in our 
system of criminal justice. It is gratifying to see that their efforts 
have had such a profound impact here in the Senate.
  Mr. HATFIELD. Madam President, it has been a difficult process, but 
we have now reached the conclusion of this worthy debate. I want to 
commend Majority Leader Dole and Minority Leader Daschle and the 
managers of this legislation, Chairman Hatch and [[Page S7878]] Senator 
Biden, the ranking member of the Judiciary Committee, for their skill 
and resolve in moving this important and complex measure through the 
Senate.
  It is proper for the Senate, at the request of the President, to 
undertake this legislative action to put in place safeguards to ensure, 
to the extent we can, that terrorism does not occur in the future. It 
is my hope that this legislation will provide one more avenue toward 
the national healing that is needed in the aftermath of one of the most 
senseless and disturbing acts in the history of man.
  I have joined with all my colleagues to condemn this act in the 
harshest terms. However, despite my abhorrence of this horrible crime, 
I am unable to support this legislation. As many of my colleagues are 
aware, I am a long-time opponent of capital punishment. This 
legislation, under section 2332b, on page 7 of the bill, provides for 
the imposition of the death penalty in the following manner:

       (1) Whoever violates this section shall, in addition to the 
     punishment provided for any other crime charged in the 
     indictment, be punished--
       (A) if death results to any person, by death, or by life 
     imprisonment for any term of years or for life;

  Madam President, I could support this provision if the clause ``by 
death'' were excluded. Because it has not been deleted, and because the 
death penalty is so repugnant me, I am unable to support this 
legislation which has many meritorious provisions.
  I would like my colleagues to take note of a recent event in the 
country of South Africa. I am informed that the highest court in South 
Africa has struck down the death penalty in that country on the basis 
that it constitutes cruel and inhumane punishment. In his opinion, 
Chief Justice Arthur Chaskalson said, ``Retribution cannot be accorded 
the same weight under our constitution as the right to life and 
dignity.'' He went on to make a point made by death penalty opponents 
on this floor many times: ``It has not been shown that the death 
sentence would be materially more effective to deter or prevent murder 
than the alternative sentence of life imprisonment.''
  I believe it is time for this country to follow the lead of the South 
Africans. I have long held that capital punishment is a barbaric 
penalty, certainly one that should be abhorrent to a society such as 
our own.
  I have marveled at the strides the South Africans have made over the 
past decade. It was not too many years ago that the United States put 
great pressure on the Government of South Africa to improve their 
horrible human rights record. While this new decision is being met with 
the expected cries of opposition, it now appears to me that the South 
Africans are setting an example for us on human rights.
  I merely make note of this enlightenment in South Africa as this body 
continues down the road of support for capital punishment. It is my 
hope that some day my colleagues will realize this is a failed, 
primitive and sickening policy. I regret that, on that basis, I am 
unable to support S. 735.

               the comprehensive terrorism prevention act
  Mr. MOYNIHAN. Madam President, I am deeply concerned that the Senate 
has chosen in this legislation to radically alter the ancient writ of 
habeas corpus an subjiciendum. Four separate Democratic amendments that 
would have moderated the bill's extreme habeas corpus provisions were 
rejected today.
  It is troubling that the Senate has undertaken to revise the Great 
Writ of Liberty in a bill designed as a response to the Oklahoma City 
bombing. Habeas corpus reform has very little to do with terrorism. The 
Oklahoma City bombing was a Federal crime and will be tried in Federal 
courts. The controversy over habeas corpus is a result of excess 
litigation by State court prisoners who believe they were wrongly 
convicted in State courts. According to the Emergency Committee to Save 
Habeas Corpus, a group of 100 of the Nation's most distinguished 
attorneys, scholars, and civic leaders, ``Cutting back the enforcement 
of constitutional liberties for people unlawfully held in State custody 
is neither necessary to habeas reform nor relevant to terrorism.''
  Article I, section 9 of the U.S. Constitution provides that:

       The Privilege of the Writ of Habeas Corpus shall not be 
     suspended, unless when in Cases of Rebellion or Invasion the 
     public Safety may require it.

  The Habeas Corpus Act of 1867 permitted State prisoners convicted in 
State courts to challenge the constitutionality of their imprisonment 
in Federal district court. This is a right we have honored in the 
United States for well over a century.
  The legislation before us will require our Federal courts to defer to 
State court judgments unless a State court's application of Federal law 
is unreasonable. Our Federal courts will be powerless to correct State 
court decisions--even if a State court decision is wrong. The bill 
requires deference by the Federal courts unless a State court's 
decision is unreasonably wrong. This is a standard that will 
effectively preclude Federal review.
  This Senator understands the need for habeas corpus reform, and I 
would support legislation to impose reasonable limitations on appeals. 
But this bill goes far too far. It will in many cases transform the 
State courts--not the Federal courts established under article III of 
the U.S. Constitution--into the arbiters of Federal constitutionality.
  This legislation will eviscerate the writ of habeas corpus, and that 
is something this Senator in good conscience must oppose. Mr. 
President, I ask unanimous consent that a letter from the Emergency 
Committee to Save Habeas Corpus, and the list of its members, be 
printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                               Emergency Committee

                                        To Save Habeas Corpus,

                                     Washington, DC, June 1, 1995.
     Hon. Daniel Patrick Moynihan,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Moynihan: We understand that the Senate may 
     act next week on the habeas corpus provisions in Senator 
     Dole's terrorism legislation. Among these provisions is a 
     requirement that federal courts must defer to state courts 
     incorrectly applying federal constitutional law, unless it 
     can be said that the state ruling was ``unreasonably'' 
     incorrect. This is a variation of past proposals to strip the 
     federal courts of the power to enforce the Constitution when 
     the state court's interpretation of it, though clearly wrong, 
     had been issued after a ``full and fair'' hearing.
       The Emergency Committee was formed in 1991 to fight this 
     extreme proposal. Our membership consists of both supporters 
     and opponents of the death penalty, Republicans and 
     Democrats, united in the belief that the federal habeas 
     corpus process can be dramatically streamlined without 
     jeopardizing its constitutional core. At a time when 
     proposals to curtail civil liberties in the name of national 
     security are being widely viewed with suspicion, we believe 
     it is vital to ensure that habeas corpus--the means by which 
     all civil liberties are enforced--is not substantively 
     diminished.
       The habeas corpus reform bill President Clinton proposed in 
     1993, drafted in close cooperation with the nation's district 
     attorneys and state attorneys general, appropriately 
     recognizes this point. It would codify the long-standing 
     principal of independent federal review of constitutional 
     questions, and specifically reject the ``full and fair'' 
     deference standard.
       Independent federal review of state court judgments has 
     existed since the founding of the Republic, whether through 
     writ of error or writ of habeas corpus. It has a proud 
     history of guarding against injustices born of racial 
     prejudice and intolerance, of saving the innocent from 
     imprisonment or execution, and in the process, ensuring the 
     rights of all law-abiding citizens. Independent federal 
     review was endorsed by the committee chaired by Justice 
     Powell on which all subsequent reform proposals have been 
     based, and the Supreme Court itself specifically considered 
     but declined to require deference to the states, in Wright v. 
     West in 1992.
       We must emphasize that this issue of deference to state 
     rulings has absolutely no bearing on the swift processing of 
     terrorism offenses in the federal system. For federal 
     inmates, the pending habeas reform legislation proposes 
     dramatic procedural reforms but appropriately avoids any 
     curtailment of the federal courts' power to decide federal 
     constitutional issues. This same framework of reform will 
     produce equally dramatic results in state cases. Cutting back 
     the enforcement of constitutional liberties for people 
     unlawfully held in state custody is neither necessary to 
     habeas reform nor relevant to terrorism.
       We are confident that the worthwhile goal of streamlining 
     the review of criminal cases can be accomplished without 
     diminishing constitutional liberties. Please support the 
     continuation of independent federal review of federal 
     constitutional claims through habeas corpus.
           Sincerely,
     Benjamin Civiletti. [[Page S7879]] 
     Edward H. Levi.
     Nicholas DeB. Katzenbach.
     Elliot L. Richardson.
                                                                    ____

Statements on Proposals Requiring Federal Courts in Habeas Corpus Cases 
      to Defer to State Courts on Federal Constitutional Questions

       Capital cases should be subject to one fair and complete 
     course of collateral review through the state and federal 
     system * * * . Where the death penalty is involved, fairness 
     means a searching and impartial review of the propriety of 
     the sentence--Justice Lewis F. Powell, Jr., presenting the 
     1989 report of the Ad Hoc Committee on Federal Habeas Corpus 
     in Capital Cases, chaired by him and appointed by Chief 
     Justice William Rehnquist.
       The federal courts should continue to review de novo mixed 
     and pure questions of federal law. Congress should codify 
     this review standard * * *. Senator Dole's bill [containing 
     the ``full and fair'' deference requirement' would rather 
     straightforwardly eliminate federal habeas jurisdiction over 
     most constitutional claims by state inmates--150 former state 
     and federal prosecutors, in a December 7, 1993 letter to 
     Judiciary Committee Chairman Biden and Brooks.
       Racial distinctions are evident in every aspect of the 
     process that leads to execution * * *. [W]e feverently and 
     respectfully urge a steadfast review by federal judiciary in 
     state death penalties as absolutely essential to ensure 
     justice--Rev. Dr. Joseph E. Lowery, President, Southern 
     Christian Leadership Conference, U.S. House Judiciary 
     Committee hearing on capital habeas corpus reform, June 6, 
     1990.
       The State court cannot have the last say when it, though on 
     fair consideration and what procedurally may be deemed 
     fairness, may have misconceived a federal constitutional 
     right--Justice Felix Frankfurter, for the Court, in Brown v. 
     Allen, 344 U.S. 443, 508(1953)
       [There is no case in which] a state court's incorrect legal 
     determination has ever been allowed to stand because it was 
     reasonable. We have always held that federal courts, even on 
     habeas, have an independent obligation to say what the law 
     is--Justice Sandra Day O'Connor, concurring in Wright v. 
     West, 112 S.Ct. 2482(1992), citing 29 Supreme Court cases and 
     ``many others'' to reject the urging of Justices Thomas, 
     Scalia and Rhenquist to adopt a standard of deference to 
     state courts on federal constitutional matters.
                                                                    ____

               Emergency Committee To Save Habeas Corpus

                                 chairs

       Benjamin Civiletti, Former Attorney General of the United 
     States.
       Nicholas DeB. Katzenbach, Former Attorney General of the 
     United States.
       Edward H. Levi, Former Attorney General of the United 
     States.
       Elliot L. Richardson, Former Attorney General of the United 
     States.

                                members

       Floyd Abrams, Attorney.
       Robert Abrams, Former Attorney General, New York.
       Philip S. Anderson, Attorney.
       Dennis W. Archer, Mayor of Detroit; Former Justice, 
     Michigan Supreme Court.
       Birch Bayh, Former U.S. Senator, Indiana.
       Francis X. Bellotti, Former Attorney General, 
     Massachusetts.
       Lindy Boggs, Former Member of Congress, Louisiana.
       Hyman Bookbinder, Washington Representative Emeritus, 
     American Jewish Committee.
       Albert Brewer, Former Governor of Alabama.
       Allen E. Broussard, Former Justice, California Supreme 
     Court.
       John Buchanan, Former Member of Congress, Alabama.
       Haywood Burns, Dean, City University of New York Law 
     School.
       Guido Calabresi, Dean, Yale Law School.
       Julius Chambers, Director-Counsel, NAACP Legal Defense and 
     Educational Fund.
       L. Stanley Chauvin, Jr., Former President, American Bar 
     Association.
       Dick Clark, Former United States Senator, Iowa.
       W.J. Michael Cody, Former Attorney General, Tennessee.
       William T. Coleman, Jr., Former U.S. Secretary of 
     Transportation.
       Joseph Curran, Attorney General, Maryland.
       John J. Curtin, Jr., Former President, American Bar 
     Association.
       Lloyd N. Cutler, Former Counsel to the President.
       Talbot D'Alemberte, Former President, American Bar 
     Association.
       Samuel Dash, Professor, Georgetown Law School; Former Chief 
     Counsel, Senate Watergate Committee; Former District Attorney 
     of Philadelphia.
       John A. Dixon, Jr., Former Chief Justice, Louisiana Supreme 
     Court.
       John Douglas, Former Assistant Attorney General of the 
     United States.
       Father Robert Drinan, Former Member of Congress, 
     Massachusetts.
       Thomas Eagleton, Former U.S. Senator, Missouri.
       Raymond Ehrlich, Former Chief Justice, Florida Supreme 
     Court.
       Arthur J. England, Jr., Former Justice, Florida Supreme 
     Court.
       Marvin Frankel, Former U.S. District Judge, New York.
       John Hope Franklin, Historian.
       Donald Fraser, Mayor of Minneapolis; Former Member of 
     Congress, Minnesota.
       Stanley H. Fuld, Former Chief Judge, New York Court of 
     Appeals.
       Susan Getzendanner, Former U.S. District Judge, Illinois.
       Joseph I. Giarrusso, Former Superintendent, New Orleans 
     Police Department.
       John J. Gibbons, Former Chief Judge, United States Court of 
     Appeals for the Third Circuit.
       William A. Grimes, Former Justice, New Hampshire Supreme 
     Court.
       Joseph R. Grodin, Former Justice, California Supreme Court.
       Gerald Gunther, Professor, Stanford Law School.
       William J. Guste, Former Attorney General, Louisiana.
       Reverend Theodore Hesburgh, C.S.C., President Emeritus, 
     University of Notre Dame.
       L. Eades Hogue, Former Trial Attorney, Criminal Division, 
     U.S. Department of Justice.
       Elizabeth Holtzman, New York City Comptroller; Former 
     Member of Congress, New York.
       Shirley Hufstedler, Former Judge, United States Court of 
     Appeals for the Ninth Circuit, Former U.S. Secretary of 
     Education.
       Richard J. Hughes, Former Governor and Supreme Court Chief 
     Justice, New Jersey (deceased).
       Charles J. Hynes, District Attorney for Kings County 
     (Brooklyn), New York.
       Thomas Johnson, Former County Attorney, Hennepin County, 
     Minnesota.
       Barbara Jordan, former Member of Congress, Texas.
       Robert W. Kastenmeier, former Member of Congress, 
     Wisconsin.
       William W. Kilgarlin, former Justice, Supreme Court of 
     Texas.
       Coretta Scott King, President, Martin Luther King Center.
       Lane Kirkland, President, AFL-CIO.
       Richard H. Kuh, former Manhattan District Attorney.
       Phillip Kurland, Professor, University of Chicago Law 
     School.
       Phillip Lacovara, former Deputy Solicitor General of the 
     United States.
       Shelby Lanier, Jr., Chairman, National Black Police 
     Association.
       William Leech, former Attorney General, Tennessee.
       George N. Leighton, former U.S. District Judge, Illinois.
       Arthur Liman, former Chief Counsel, U.S. Senate Iran/Contra 
     Committee.
       Hans Linde, former Justice, Oregon Supreme Court.
       Robert MacCrate, former President, American Bar 
     Association.
       Charles McC. Mathias, former U.S. Senator, Maryland.
       Darrell McGraw, Attorney General, West Virginia.
       Robert S. McNamara, former U.S. Secretary of Defense; 
     former President, World Bank.
       Jim Mattox, former Attorney General and Member of Congress, 
     Texas.
       Harry McPherson, former Counsel to the President.
       Walter F. Mondale, former U.S. Vice President; former U.S. 
     Senator and Attorney General, Minnesota.
       James Neal, former Chief Watergate Special Prosecutor; 
     former United States Attorney.
       William G. Paul, General Counsel, Phillips Petroleum 
     Company.
       John H. Pickering, Attorney.
       Jack Pope, former Chief Justice, Texas Supreme Court.
       Edward E. Pringle, former Chief Justice, Colorado Supreme 
     Court.
       Thomas Railsback, former Member of Congress, Illinois.
       Joseph Rauh, Attorney (deceased).
       Robert Raven, former President, American Bar Association.
       Cruz Reynoso, former Justice, California Supreme Court.
       Leroy C. Richie, Vice President, General Counsel, Chrysler 
     Corporation.
       Peter W. Rodino, Jr., former Chairman, U.S. House Judiciary 
     Committee.
       Stephen Sachs, former Attorney General and former United 
     States Attorney, Maryland.
       Carl Sagan, Astronomer.
       Whitney North Seymour, Jr., former United States Attorney, 
     New York.
       James Shannon, former Attorney General, Massachusetts.
       Robert L. Shevin, former Attorney General, Florida.
       Seymour Simon, former Justice, Illinois Supreme Court.
       Chesterfield Smith, former President, American Bar 
     Association.
       Nicholas Spaeth, former Attorney General, North Dakota.
       Robert Spire, former Attorney General, Nebraska (deceased).
       Geoffrey Stone, Dean, University of Chicago Law School.
       Alan Sundberg, former Chief Justice, Florida Supreme Court.
       Leonard v.B. Sutton, former Chief Justice, Colorado Supreme 
     Court.
       Telford Taylor, Professor, Columbia Law School; former 
     Prosecutor, Nuremburg War Crimes Tribunal.
       James Tierney, former Attorney General, Maine.
       Joseph D. Tydings, former U.S. Senator and United States 
     Attorney, Maryland. [[Page S7880]] 
       Harold R. Tyler, Jr., former U.S. District Judge, New York; 
     former Deputy Attorney General of the United States.
       Cyrus Vance, former U.S. Secretry of State.
       James Vollers, former Judge, Texas Court of Criminal 
     Appeals.
       Andrew Young, former Ambassador to the United Nations, 
     former Mayor, Atlanta, Georgia.

                           executive director

       H. Scott Wallace, 1625 K Street, N.W., Suite 800, 
     Washington, D.C. 20006.

  Mr. GRASSLEY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. GRASSLEY. I ask unanimous consent to speak as in morning business 
briefly for the purpose of introducing a bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Grassley pertaining to the introduction of S.  
888 are located in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')

                          ____________________
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