June 7, 1995 CONGRESSIONAL RECORD — SENATE S7803

report is a blatant attempt to save the

loophole, rather than close it.

On April 6, the Senate voted 96 to 4 to

close this unjustified tax loophole for

billionaires who renounce their American citizenship in order to avoid taxes

on the wealth they have accumulated

as Americans.

As we all know, the Senate Finance

Committee had tried to close the loophole as part of its action to restore the

health care deduction for small businesses.

The Finance Committee bill closed

the billionaires’ loophole, despite the

fact that the revenue gained was not

needed to pay for the health care deduction in the bill. In fact, the Finance

Committee recommended that the revenues be used for deficit reduction.

This is exactly the type of action

necessary if we are serious about

achieving a balanced budget.

According to the revenue estimates

at the time, closing the loophole would

raise $3.6 billion over the next 10 years.

Clearly, substantial revenues are at

stake.

Too often, we close tax loopholes

only when we need to raise revenues to

offset tax cuts. In this case, the Finance Committee closed this flagrant

loophole as soon as it was brought to

the Committee’s attention and rightly

so, because this loophole should be

closed as soon as possible.

The Senate bill did so, and all of us

thought the issue was settled.

Yet, when the legislation came back

to us from the Senate-House conference, the loophole had reappeared,

and this important tax reform had disappeared. This outrageous tax break

for a few dozen or so of the wealthiest

individuals in the country would remain open.

The provision was dropped in conference because it was felt that technical issues needed to be addressed before Congress took action on the issue.

But in the April 6 vote, the Senate

went solidly on record to close the

loophole as quickly as possible, and to

make the effective date of such legislation February 6, 1995.

This all happened, of course, at the

same time our Republican colleagues

in Congress have been proposing deep

cuts in Medicare and education in

order to pay for their new tax breaks

for the rich.

Now, the report of the Joint Tax

Committee suggests that the real purpose of the delay was to try to find a

way to save as much of the loophole as

possible.

I have several major concerns about

the report

First, the report now indicates that

the revenue gain from closing the loophole may be only about half the

amount estimated earlier—$1.9 billion,

instead of $3.6 billion. The amount is

still significant, but far less than was

expected.

Second, the report suggests that it

may be preferable simply to tinker

with the existing law and improve IRS

enforcement procedures, instead of enacting a new reform to close the loophole, as President Clinton has proposed.

But the IRS has attempted to enforce

the current law, and it has been found

to be fatally flawed. To tinker with the

current law is a thin-veiled pretext to

save the current loophole.

The IRS has been able to identify

only a handful of cases in which any

tax was collected under the defective

current law. And the total tax collected is less than $500,000.

At the same time, we have tax lawyers quoted as saying: ‘‘I talk to a new

client interested in expatriating every

week.’’

Third, the report allows an unacceptable window of opportunity to avoid

the tax. Under this proposal, wealthy

tax-evaders can still qualify for the

loophole by simply having begun, not

completed, the process of renouncing

their citizenship by the February 6

date.

When we debated this issue 2 months

ago, there were suggestions that the effective date should be postponed to accommodate certain individuals in their

tax avoidance schemes.

In my view, we should close the loophole tight, not gerrymander the effective date to let some well-connected

billionaires squeeze through.

At a time when Republicans in Congress are cutting Medicare, education,

and other essential programs in order

to pay for tax cuts for the rich, they

are also maneuvering to salvage this

unjustified loophole for the super

wealthy.

I say, this loophole should be closed

now, and it should be closed tight—no

ifs, and, or buts. I intend to do all I can

to see that it is.

COMPREHENSIVE TERRORISM

PREVENTION ACT

fThe 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 SpecterHatch 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.
S7804 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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.
S7806 CONGRESSIONAL RECORD — SENATE June 7, 1995

‘‘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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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
S7808 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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 nonfrivolous 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.
S7810 CONGRESSIONAL RECORD — SENATE June 7, 1995

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.

‘‘§ 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.

‘‘§ 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).

‘‘§ 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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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.

‘‘§ 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.

‘‘§ 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.

‘‘§ 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.
S7812 CONGRESSIONAL RECORD — SENATE June 7, 1995

‘‘(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—
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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
S7814 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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 followon 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
S7816 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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 HatchDole 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
S7818 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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
S7820 CONGRESSIONAL RECORD — SENATE June 7, 1995

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 21⁄2

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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
S7822 CONGRESSIONAL RECORD — SENATE June 7, 1995

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 courtappointed 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. Thirtyeight 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 noncitizens.
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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 onehalf 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.
S7824 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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
S7826 CONGRESSIONAL RECORD — SENATE June 7, 1995

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 robberymurder 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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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
S7828 CONGRESSIONAL RECORD — SENATE June 7, 1995

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.
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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:

‘‘§ 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:

‘‘§ 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,
S7830 CONGRESSIONAL RECORD — SENATE June 7, 1995

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 91⁄2 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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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 godawful 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-anhour 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.
S7832 CONGRESSIONAL RECORD — SENATE June 7, 1995

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 41⁄2 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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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
S7834 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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.
S7836 CONGRESSIONAL RECORD — SENATE June 7, 1995

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.
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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 McCarranWalter’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
S7838 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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 21⁄2 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
S7840 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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 SpecterHatch 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
S7842 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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:
S7844 CONGRESSIONAL RECORD — SENATE June 7, 1995

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.
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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
S7846 CONGRESSIONAL RECORD — SENATE June 7, 1995

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 staffprepared poster. It says that SpecterHatch 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.
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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.
S7848 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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.
S7850 CONGRESSIONAL RECORD — SENATE June 7, 1995

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:
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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 copkilling 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
S7852 CONGRESSIONAL RECORD — SENATE June 7, 1995

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.
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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 SmithSimpson 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
S7854 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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
S7856 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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.
S7858 CONGRESSIONAL RECORD — SENATE June 7, 1995

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:

‘‘§ 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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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:

‘‘§ 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’’.
S7860 CONGRESSIONAL RECORD — SENATE June 7, 1995

‘‘(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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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
S7862 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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:

‘‘§ 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
S7864 CONGRESSIONAL RECORD — SENATE June 7, 1995

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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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:

‘‘§ 2339A. Providing material support to terrorists

‘‘(a) DEFINITION.—In this section, ‘material

support or resources’ means currency or
S7866 CONGRESSIONAL RECORD — SENATE June 7, 1995

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.’’.
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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

‘‘§ 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:

‘‘§ 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—
S7868 CONGRESSIONAL RECORD — SENATE June 7, 1995

(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:

‘‘§ 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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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
S7870 CONGRESSIONAL RECORD — SENATE June 7, 1995

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.

‘‘§ 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.

‘‘§ 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).

‘‘§ 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.

‘‘§ 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.

‘‘§ 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.

‘‘§ 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,
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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.’’.
S7872 CONGRESSIONAL RECORD — SENATE June 7, 1995

(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),’’;
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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:

‘‘§ 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°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.
S7874 CONGRESSIONAL RECORD — SENATE June 7, 1995

‘‘(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
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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:

‘‘§ 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
S7876 CONGRESSIONAL RECORD — SENATE June 7, 1995

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:

‘‘§ 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.’’.
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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
S7878 CONGRESSIONAL RECORD — SENATE June 7, 1995

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 longtime 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.
June 7, 1995 CONGRESSIONAL RECORD — SENATE 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.
S7880 CONGRESSIONAL RECORD — SENATE June 7, 1995

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.’’)

PRESIDENT CLINTON’S VETO OF

THE RESCISSIONS BILL

fMr. KENNEDY. Madam President, I

commend President Clinton for his

veto of the rescissions bill this afternoon. Once again, the President has

made clear his strong commitment to

education and to the students and

working families of the Nation.

By vetoing this bill, the President

has said ‘‘no’’ to the elimination of violence and drug prevention programs for

20 million students in 90 percent of our

schools.

He has said ‘‘no’’ to the elimination

of school reform grants to 2,000 schools

in 47 States.

He has said ‘‘no’’ to the drastic cuts

in reading and math assistance for

135,000 pupils.

He has said ‘‘no’’ to the elimination

of community service support for 15,000

young men and women ready, willing,

and able to serve their communities

and earn money for their education.

He has said ‘‘no’’ to the elimination

of opportunities for thousands of young

high school students to participate in

school-to-work programs.

He has said ‘‘no’’ to ending the promising start we have made on putting

modern technology in schools.

He has said ‘‘no’’ to deep cuts like

this to pay for tax cuts for the rich.

The battle has now been squarely

joined against drastic anti-education

Republican budget proposals that

would mean the largest education cuts

in the Nation’s history.

These Republican budgets are indefensible—they would cut 33 percent of

the Federal investment in education by

the year 2002, and slash over $30 billion

in Federal aid to college students.

Every student, every parent, every

American understands that education

is the indispensable foundation of a

better life for themselves and their

children. Deep Republican cuts in education are a betrayal of the hopes and

dreams of families for their children.

They undermine the Nation’s future

strength. Our schools, colleges, and

students deserve a helping Federal

hand—not the back of Republican

hands.

This veto is right, and I am confident

it will be sustained by the Congress.

ADMINISTRATION POLICY ON

fBOSNIA

Mr. DOLE. Madam President, it is indeed ironic that the Clinton administration—whose policy on Bosnia needs

to be checked hourly—is on the attack

against those in Congress like myself

who have consistently argued for a policy that candidate Clinton advocated.

Maybe administration officials are

tired of attacking each other in the

press and have decided to take their

frustration out on the Congress.

The administration’s arguments

against withdrawing the U.N. protection forces and lifting the arms embargo are neither based on fact nor on

American experience.

First we have a statement from the

Secretary of Defense today that withdrawing U.N. forces would lead to a humanitarian disaster. I do not know if

the Pentagon has been keeping up with

the news over the last few months, but

the situation in Bosnia is and has been

a humanitarian disaster for the last

couple of years, despite the presence of

22,000 U.N. troops. The U.N. mission in

Bosnia has failed. Bandages like the

quick reaction force will not change

that fact.

Secretary Perry also told the Armed

Services Committee today that the

casualty rate in Bosnia dramatically

dropped, which he attributed to the

presence of U.N. forces. As the recent

hostage taking has painfully demonstrated, the U.N. forces cannot even

protect themselves let alone the

Bosnians. And I say this understanding

the bravery of each of the individuals

who are there. They are in a very, very

difficult situation. They cannot protect

themselves. They are placed there by

their governments.

Furthermore, the heaviest Bosnian

casualties were in areas where U.N.

forces were either not deployed or deployed too late—in northern and eastern Bosnia.

So it seems to me that the real reason casualties dropped is because the

Bosnians, over time, have acquired

more weapons and have been able to

better defend themselves. That is why

the casualty rate has gone down.

The second argument made by the

administration is that the lifting of the

arms embargo would Americanize the

war and make the United States responsible for events in Bosnia.

Let us not fool ourselves—America is

responsible now. We already have a responsibility. America is responsible because it has not been a leader, rather it

has meekly followed the Europeans’

failed approach.

As for the accusation that lifting the

arms embargo would ‘‘Americanize’’

the conflict, it seems to me that the

United States has plenty of experience

from Central America to Afghanistan

in providing military assistance without being drawn into a quagmire with

American troops on the ground. The

real recipe for getting bogged down is

to send United States ground troops

into Bosnia without a mission, which is

why the resolution I intend to submit

would authorize, with strict conditions, the use of United States ground

forces for the clearly stated purpose of

withdrawing U.N. protection forces

from Bosnia—not for peacekeeping, not

for reconfiguration, not for strengthening, or any other proposed deployments

supported by the Clinton administration.

Furthermore, Bosnian officials have

repeated time and time again that they

do not want United States ground

troops. Just a couple days ago, in response to news that a European quick

reaction force would be created,

Bosnian Prime Minister Haris Silajdzic

said ‘‘Please untie our hands, arm the

Bosnians. We do not want your boys to

die for us’’—British boys, French boys,

or American boys.

Finally, when those of us who advocate lifting the arms embargo—and I

am talking about Republicans and

Democrats; this has never been a partisan issue on this floor, it has been

supported by many Democrats and a

great number of Republicans—point

out that other countries would also

participate in arming the Bosnians, we

are told this would allow Iran to arm

the Bosnians. The fact is the arms embargo has guaranteed that Iran is a key

supplier of arms to Bosnia and administration officials have actually used

that fact to argue that there is no need

to lift the arms embargo.

What other choices do the Bosnians

have? They are going to find weapons

where they can find weapons.

From statements made by State Department officials to the press, one

gets the impression that Iran is the

Clinton administration’s preferred provider of weapons to the Bosnians. If the

administration has a problem with Iran

arming Bosnia, it should be prepared to

do something about it.

We can do something about it. It

would not take very long.

If the arms embargo is lifted, America would not be the only country to

provide assistance. Countries like Turkey, Malaysia, Saudi Arabia, Kuwait,

and Pakistan would offer financial and

military assistance. In addition, former

Warsaw Pact countries would be free to

sell their vast arsenal of Soviet-style

weapons that have been designated for

export pursuant to the Conventional

Forces in Europe Treaty. Since the

Bosnians presently use Soviet-style

equipment, acquiring former Soviet

bloc equipment would minimize the

amount of training they would require.

Furthermore, any training, whether by

United States military advisers or

other country military advisers, could