I
103D CONGRESS
1ST SESSION
H. R. 1238
To establish constitutional procedures for the imposition of the death penalty
for terrorist murders and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MARCH 4, 1993
Mr. SHAW (for himself and Mr. GEKAS) introduced the following bill; which
was referred to the Committee on the Judiciary
A BILL
To establish constitutional procedures for the imposition of
the death penalty for terrorist murders and for other
purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
That this Act may be cited as the ‘‘Protection Against
Terrorism Act of 1993’’.
TITLE I—TERRORISM DEATH PENALTY
ACT OF 1993.
SEC. 101. DEATH PENALTY FOR TERRORIST ACTS.
(a) OFFENSE.—Subsections 2331 (a) through (c) of
title 18 of the United States Code are amended to read
as follows:
‘‘(a) HOMICIDE.—Whoever kills a person while such
person is inside the United States, or kills a national of
the United States, while such national is outside the Unit-
ed States, shall—
‘‘(1)(A) if the killing is a first degree murder
as defined in section 1111(a) of this title, be pun-
ished by death or imprisonment for any term of
years or for life, or be fined under this title, or both;
and
‘‘(B) if the killing is a murder other than a first
degree murder as defined in section 1111(a) of this
title, be fined under this title or imprisoned for any
term of years or for life, or both so fined and so im-
prisoned;
‘‘(2) if the killing is a voluntary manslaughter
as defined in section 1112(a) of this title, be fined
under this title or imprisoned not more than thirty
years, or both; and
‘‘(3) if the killing is an involuntary man-
slaughter as defined in section 1112(a) of this title,
be fined under this title or imprisoned not more
than ten years, or both.
‘‘(b) ATTEMPT OR CONSPIRACY WITH RESPECT TO
HOMICIDE.—Whoever attempts to kill, or engages in a
conspiracy to kill, any human being inside the United
States or any national of the United States while such
national is outside the United States shall—
‘‘(1) in the case of an attempt to commit a kill-
ing that is a murder as defined in this chapter, be
fined under this title or imprisoned not more than
thirty-five years, or both; and
‘‘(2) in the case of a conspiracy by two or more
persons to commit a killing that is a murder as de-
fined in section 1111(a) of this title, if one or more
of such persons do any overt act to effect the object
of the conspiracy, be fined under this title or im-
prisoned for any term of years or for life, or both
so fined and so imprisoned.
‘‘(c) OTHER CONDUCT.—Whoever engages in phys-
ical violence—
‘‘(1) with intent to cause serious bodily injury
to a person inside the United States, or a national
of the United States while such national is outside
the United States; or
‘‘(2) with the result that serious bodily injury is
caused to a person inside the United States, or to
a national of the United States while such national
is outside the United States;
shall be fined under this title or imprisoned not more than
ten years, or both’’.
(b) DEATH PENALTY.—Section 2331 of title 18 of
the United States Code, is amended by adding at the end
thereof the following:
‘‘(f) DEATH PENALTY PROCEDURES.—
‘‘(1) SENTENCE OF DEATH.—A defendant who
has been found guilty of an offense described in sub-
section (a)(1)(A), if the defendant, as determined
beyond a reasonable doubt at a hearing under para-
graph 3—
‘‘(A) intentionally killed the victim;
‘‘(B) intentionally inflicted serious bodily
injury that resulted in the death of the victim;
‘‘(C) intentionally participated in an act,
contemplating that the life of a person would be
taken or intending that lethal force would be
used in connection with a person, other than
one of the participants in the offense, and the
victim died as a direct result of the act; or
‘‘(D) intentionally and specifically engaged
in an act, knowing that the act created a grave
risk of death to a person, other than one of the
participants in the offense, such that participa-
tion in the act constituted a reckless disregard
for human life and the victim died as a direct
result of the act.
shall be sentenced to death if, after consideration of the
factors set forth in paragraph (2) in the course of a hear-
ing held pursuant to paragraph (3) it is determined that
imposition of a sentence of death is justified; provided that
no person may be sentenced to death who was less than
sixteen years of age at the time of the offense.
‘‘(2) FACTORS TO BE CONSIDERED IN DETER-
MINING WHETHER A SENTENCE OF DEATH IS JUSTI-
FIED—
‘‘(A) MITIGATING FACTORS.—In determin-
ing whether a sentence of death is justified, the
jury, or if there is no jury, the court, shall con-
sider each of the following mitigating factors
and determine which, if any, exist:
‘‘(i) the defendant’s mental capacity
was significantly impaired, although the
impairment was not such as to constitute
a defense to prosecution;
‘‘(ii) the defendant was under unusual
and substantial duress, although not such
duress as would constitute a defense to
prosecution; and
‘‘(iii) the defendant was an accomplice
and participation in the offense was rel-
atively minor.
The jury, or if there is no jury, the court, shall
consider whether any other mitigating factor
exists.
‘‘(B) AGGRAVATING
FACTORS.—In deter-
mining whether a sentence of death is justified,
the jury, or if there is no jury, the court, shall
consider each of the following aggravating fac-
tors and determine which, if any, exist:
‘‘(i) the death, or injury resulting in
death, occurred during the commission or
attempted commission of, or during the
immediate flight from the commission of,
an offense under section 751 (prisoners in
custody of institution or officer), section
794 (gathering or delivering defense infor-
mation to aid foreign government), section
844(d) (transportation of explosives in
interstate commerce for certain purposes),
section 844(f) (destruction of Government
property in interstate commerce by explo-
sives), section 1118 (prisoners serving life
term), section 1201 (kidnaping), or section
2381 (treason) of this title, or section 902
(i) or (n) of the Federal Aviation Act of
1958, as amended (49 U.S.C. 1472 (i) or
(n)) (aircraft piracy);
‘‘(ii) the defendant has previously
been convicted of another Federal or State
offense resulting in the death of a person,
for which a sentence of life imprisonment
or a sentence of death was authorized by
statute;
‘‘(iii) the defendant has previously
been convicted of two or more Federal or
State offenses, punishable by a term of im-
prisonment of more than one year, commit-
ted on different occasions, involving the in-
fliction of, or attempted infliction of, seri-
ous bodily injury or death upon another
person;
‘‘(iv) the defendant, in the commission
of the offense, or in escaping apprehension
for the violation of the offense, knowingly
created a grave risk of death to one or
more persons in addition to the victim of
the offense;
‘‘(v) the defendant committed the of-
fense in an especially heinous, cruel, or
depraved manner;
‘‘(vi) the defendant procured the com-
mission of the offense by payment or
promise of payment of anything of pecu-
niary value;
‘‘(vii) the defendant committed the of-
fense as consideration for the receipt, or in
the expectation of the receipt, of anything
of pecuniary value;
‘‘(viii) the defendant committed the
offense after planning and premeditation
to cause the death of a person or commit
an act of terrorism;
‘‘(ix) the defendant has previously
been convicted of two or more State or
Federal offenses punishable by a term of
imprisonment of more than one year, com-
mitted on different occasions, involving the
distribution of a controlled substance;
‘‘(x) the victim was particularly vul-
nerable due to old age, youth or infirmity,
the defendant committed the offense
against—
‘‘(I) the President of the United
States, the President-elect, the Vice
President, the Vice President-elect,
the Vice-President-designate, or, if
there is no Vice President, the officer
next in order of succession to the of-
fice of the President of the United
States, or any person who is acting as
President under the Constitution and
laws of the United States;
‘‘(II) a chief of state, head of
government, or the political equiva-
lent, of a foreign nation;
‘‘(III) a foreign official listed in
section 1116(b)(3)(A) of this title, if
he is in the United States on official
business; or
‘‘(iv) a Federal public servant
who is a judge, a law enforcement of-
ficer, or an employee of a United
States penal or correctional institu-
tion—
‘‘(aa) while he is engaged in
the performance of his official
duties;
‘‘(bb) because of the per-
formance of his official duties; or
‘‘(cc) because of his status
as a public servant.
For purposes of this subparagraph, a ‘law
enforcement officer’ is a public servant au-
thorized by law or by a Government agency
or Congress to conduct or engage in the
prevention, investigation, or prosecution of
an offense.
The jury, or if there is no jury, the court, may
consider whether any other aggravating factor
exists.
‘‘(3) 
SPECIAL
HEARING
TO
DETERMINE
WHETHER A SENTENCE OF DEATH IS JUSTIFIED.—
‘‘(A) NOTICE BY THE GOVERNMENT.—If
the attorney for the Government believes that
the circumstances of the offense are such that
a sentence of death is justified under this chap-
ter, he shall, a reasonable time before the trial,
or before acceptance by the court of a plea of
guilty, or at such time thereafter as the court
may permit upon a showing of good cause, sign
and file with the court, and serve on the de-
fendant, a notice—
‘‘(i) stating that the Government be-
lieves that the circumstances of the offense
are such that, if the defendant is convicted,
a sentence of death is justified under this
chapter and that the Government will seek
the sentence of death; and
‘‘(ii) setting forth the aggravating fac-
tor or factors that the Government, if the
defendant is convicted, proposes to prove
as justifying a sentence of death.
The court may permit the attorney for the Gov-
ernment to amend the notice upon a showing of
good cause.
‘‘(B) HEARING
BEFORE
A
COURT
OR
JURY.—If the attorney for the Government has
filed a notice as required under subsection (a)
and the defendant is found guilty of or pleads
guilty to an offense described in paragraph (1),
the judge who presided at the trial or before
whom the guilty plea was entered, or another
judge if that judge is unavailable, shall conduct
a separate sentencing hearing to determine the
punishment to be imposed. The hearing shall be
conducted—
‘‘(i) before the jury that determined
the defendant’s guilt;
‘‘(ii) before a jury impaneled for the
purpose of the hearing if—
‘‘(I) the defendant was convicted
upon a plea of guilty;
‘‘(II) the defendant was convicted
after a trial before the court sitting
without a jury;
‘‘(III) the jury that determined
the defendant’s guilt was discharged
for good cause; or
‘‘(IV) after initial imposition of a
sentence under this section, reconsid-
eration of the sentence under this sec-
tion is necessary; or
‘‘(iii) before the court alone, upon the
motion of the defendant and with the ap-
proval of the attorney for the Government.
A jury impaneled pursuant to paragraph
(3)(b)(2) shall consist of twelve members, un-
less, at any time before the conclusion of the
hearing, the parties stipulate, with the approval
of the court, that it shall consist of a lesser
number.
‘‘(C) PROOF OF MITIGATING AND AGGRA-
VATING FACTORS.—Notwithstanding rule 32(c)
of the Federal Rules of Criminal Procedure,
when a defendant is found guilty or pleads
guilty to an offense under paragraph (1), no
presentence report shall be prepared. At the
sentencing hearing, information may be pre-
sented as to any matter relevant to the sen-
tence, including any mitigating or aggravating
factor permitted or required to be considered
under paragraph (2). Information presented
may include the trial transcript and exhibits if
the hearing is held before a jury or judge not
present during the trial. Any other information
relevant to a mitigating or aggravating factor
may be presented by either the attorney for the
Government or the defendant, regardless of its
admissibility under the rules governing admis-
sion of evidence at criminal trials, except that
information may be excluded if its probative
value is substantially outweighed by the danger
of creating unfair prejudice, confusing the is-
sues, or misleading the jury. The Government
and the defendant shall be permitted to rebut
any information received at the hearing, and
shall be given fair opportunity to present argu-
ment as to the adequacy of the information to
establish the existence of any aggravating or
mitigating factor, and as to the appropriateness
in the case of imposing a sentence of death.
The Government shall open the argument. The
defendant shall be permitted to reply. The Gov-
ernment shall then be permitted to reply in re-
buttal. The burden of establishing the existence
of any aggravating factor is on the Government,
and is not satisfied unless the existence of such
a factor is established beyond a reasonable
doubt. The burden of establishing the existence
of any mitigating factor is on the defendant,
and is not satisfied unless the existence of such
a factor is established by a preponderance of
the information.
‘‘(D) RETURN
OF
SPECIAL
FINDINGS.—
The jury, or if there is no jury, the court, shall
consider all the information received during the
hearing. It shall return a special finding as to
each mitigating and aggravating factor, con-
cerning which information is presented at the
hearing, required to be considered under para-
graph (2). The jury must find the existence of
an aggravating factor by a unanimous vote al-
though it is unnecessary that there be a unani-
mous vote on any specific aggravating factor if
a majority of the jury finds the existence of
such a specific factor. A finding with respect to
a mitigating factor may be made by one or
more members of the jury and any member of
the jury who finds the existence of a mitigating
factor may consider such a factor established
for purposes of this section, regardless of the
number of jurors who consider that the factor
has been established.
‘‘(E) RETURN OF A FINDING CONCERNING
A
SENTENCE
OF
DEATH.—If an aggravating
factor required to be considered under subpara-
graph (2)(c) is found to exist; the jury, or if
there is no jury, the court, shall then consider
whether all the aggravating factors found to
exist sufficiently outweigh all the mitigating
factors found to exist to justify a sentence of
death, or, in the absence of a mitigating factor,
whether the aggravating factors alone are suffi-
cient to justify a sentence of death. Based upon
this consideration, the jury by unanimous vote,
or if there is no jury, the court shall return a
finding as to whether a sentence of death is jus-
tified.
‘‘(F) SPECIAL
PRECAUTION
TO
ASSURE
AGAINST DISCRIMINATION.—In a hearing held
before a jury, the court, prior to the return of
a finding under subparagraph (E), shall in-
struct the jury that, in considering whether a
sentence of death is justified, it shall not con-
sider the race, color, national origin, creed, or
sex of the defendant. The jury, upon return of
a finding under subparagraph (E), shall also re-
turn to the court a certificate, signed by each
juror, that consideration of the race, color, na-
tional origin, creed, or sex of the defendant was
not involved in reaching the juror’s individual
decision.
‘‘(4) IMPOSITION OF A SENTENCE OF DEATH.—
Upon a finding under subparagraph (3)(E) that a
sentence of death is justified, the court shall sen-
tence the defendant to death. Upon a finding under
subparagraph (3)(E) that a sentence of death is not
justified, or under subparagraph (3)(E) that no ag-
gravating factor required to be found exsits, the
court shall impose any sentence other than death
that is authorized by law. Notwithstanding any other
provision of law, if the maximum term of imprison-
ment for the offense is life imprisonment the court
may impose a sentence of life imprisonment without
parole.
‘‘(5) REVIEW OF A SENTENCE OF DEATH.—
‘‘(A) APPEAL.—In a case in which a sen-
tence of death is imposed, the sentence shall be
subject to review by the court of appeals upon
appeal by the defendant. Notice of appeal must
be filed within the time specified for the filing
of a notice of appeal. An appeal under this sec-
tion may be consolidated with an appeal of the
judgment of conviction and shall have priority
over all other cases.
‘‘(B) REVIEW.—The court of appeals shall
review the entire record in the case, including—
‘‘(i) the evidence submitted during the
trial;
‘‘(ii) the information submitted during
the sentencing hearing;
‘‘(iii) the procedures employed in the
sentencing hearing; and
‘‘(iv) the special findings returned
under subparagraph (3)(D).
‘‘(C) DECISION AND DISPOSITION.—
‘‘(i) If the court of appeals determines
that—
‘‘(I) the sentence of death was
not imposed under the influence of
passion, prejudice, or any other arbi-
trary factor; and
‘‘(II) the information supports
the special finding of the existence of
an aggravating factor required to be
considered under paragraph (2); it
shall affirm the sentence.
‘‘(ii) In any other case, the court of
appeals shall remand the case for reconsid-
eration under paragraph (3).
‘‘(iii) The court of appeals shall state
in writing the reasons for its disposition of
an appeal of a sentence of death under this
section.
‘‘(6) IMPLEMENTATION
OF
A
SENTENCE
OF
DEATH.—A person who has been sentenced to death
pursuant to the provisions of this chapter shall be
committed to the custody of the Attorney General
until exhaustion of the procedures for appeal of the
judgment of conviction and for review of the sen-
tence. When the sentence is to be implemented, the
Attorney General shall release the person sentenced
to death to the custody of a United States marshal,
who shall supervise implementation of the sentence
in the manner prescribed by the law of the State in
which the sentence is imposed. If the law of such
State does not provide for implementation of a sen-
tence of death, the court shall designate another
State, the law of which does so provide, and the sen-
tence shall be implemented in the latter State in the
manner prescribed by such law. A sentence of death
shall not be carried out upon a woman while she is
pregnant.
‘‘(7) USE OF STATE FACILITIES.—
‘‘(A) IN GENERAL.—A United States mar-
shal charged with supervising the implementa-
tion of a sentence of death may use appropriate
State or local facilities for the purpose, may use
the services of an appropriate State or local of-
ficial or of a person such an official employs for
the purpose, and shall pay the costs thereof in
an amount approved by the Attorney General.
‘‘(B) EXCUSE OF AN EMPLOYEE ON MORAL
OR RELIGIOUS GROUNDS.—No employee of any
State department of corrections or the Federal
Bureau of Prisons and no employee providing
services to that department or bureau under
contract shall be required as a condition of that
employment, or contractual obligation to be in
attendance at or to participate in any execution
carried out under this section if such participa-
tion is contrary to the moral or religious convic-
tions of the employee. For purposes of this sub-
section, the term ‘participation in execution’ in-
cludes personal preparation of the condemned
individual and the apparatus used for execution
and supervision of the activities of other person-
nel in carrying out such activities.’’.
TITLE II—TERRORIST ALIEN REMOVAL
SEC. 201. This Act may be cited as the ‘‘Terrorist
Alien Removal Act of 1991’’.
SEC. 2. The Congress finds that (a) Terrorist groups
have been able to create significant infrastructures and
cells in the United States among persons who are in the
United States either temporarily, as students or in other
capacities, or as permanent resident aliens.
(b) International terrorist groups that sponsor these
infrastructures were responsible for—
(1) conspiring to bomb the Turkish Honorary
Consulate in Philadelphia, Pennsylvania in 1982;
(2) hijacking Trans World Airlines Flight 847
during which a United States Navy diver was mur-
dered in 1985;
(3) hijacking Egypt Air Flight 648 during
which three Americans were killed in 1985;
(4) murdering an American citizen aboard the
Achille Lauro cruise liner in 1985;
(5) hijacking Pan Am Flight 73 in Karachi,
Pakistan, in which forty-four Americans were held
hostage and two were killed in 1986;
(6) conspiring to bomb an Air India aircraft in
New York City in 1986;
(7) attempting to bomb the Air Canada cargo
facility at the Los Angeles International airport in
1986; and
(8) numerous bombings and murders in North-
ern Ireland over the past decade.
(c) Certain governments and organizations have di-
rected their assets in the United States to take measures
in preparation for the commission of terrorist acts in this
country.
(d) Present immigration laws have not been used to
any significant degree by law enforcement officials to de-
port alien terrorists because compliance with these laws
with respect to such aliens would compromise classified
intelligence sources and information. Moreover, appellate
procedures routinely afforded aliens following a deporta-
tion hearing frequently extend over several years resulting
in an inability to remove expeditiously aliens engaging in
terrorist activity.
(e) Present immigration laws are inadequate to pro-
tect the national security of the United States from terror-
ist attacks by certain aliens. Therefore, new procedures
are needed to remove alien terrorists from the United
States and thus reduce the threat that such aliens pose
to the national security and other vital interests of the
United States.
SEC. 203. (a) Subsection 241(a) of the Immigration
and Nationality Act (8 U.S.C. 1251(a)) is amended by
adding at the end thereof a new paragraph 21 as follows:
‘‘(21) either prior or subsequent to entry is en-
gaging in or has engaged in terrorist activity.’’.
(b) Subsection 101(a) of the Immigration and Na-
tionality Act (8 U.S.C. 1101(a)) is amended by adding at
the end thereof the following new paragraphs:
‘‘(43) The term ‘terrorist activity’ means any activity
which is unlawful under the laws of the place where it
is committed, or which, if committed in the United States
would have been unlawful under the laws of the United
States or of any State and which involves—
‘‘(A) the hijacking of an aircraft, vessel, or
vehicle;
‘‘(B) the sabotage of an aircraft, vessel, or
vehicle;
‘‘(C) the seizing or detaining and threatening to
kill, injure, or continue to detain another person in
order to compel a third person or governmental or-
ganization to do or abstain from doing any act as
an explicit or implicit condition for the release of the
person detained or seized;
‘‘(D) a violent attack upon the person or liberty
of an ‘internationally protected person’ as defined in
18 U.S.C. 1116(b)(4);
‘‘(E) the use of any explosive, biological agent,
chemical agent, nuclear weapon or device, or fire-
arm with intent to endanger, directly or indirectly,
the safety of people or cause substantial damage to
property;
‘‘(F) an assassination; or
‘‘(G) any threat, attempt, or conspiracy to do
any of the foregoing.
‘‘(44) The term ‘engage in a terrorist activity’ means
to commit an act of terrorist activity or to do an act which
the actor knows, or reasonably should know, affords mate-
rial support to any individual or enterprise in conducting
terrorist activity at any time including, but not limited
to—
‘‘(A) the preparation and planning of terrorist
activity;
‘‘(B) the gathering of intelligence on potential
targets for terrorist activity;
‘‘(C) the providing of any type of material sup-
port including but not limited to a safe house, trans-
portation, funds, false identification, weapon, or ex-
plosive to any individual who the actor knows or has
reason to believe has committed or plans to commit
an act of terrorist activity;
‘‘(D) the soliciting of funds or other things of
value for terrorist activity or for any organization
which engages in or which has engaged in terrorist
activity; or
‘‘(E) the solicitation of any individual for mem-
bership in a terrorist enterprise;
The term does not include lawful speeches, writings, or
attendance and participation in peaceful public assemblies;
Provided, however, That evidence of any speech, writing,
or participation in any public assembly may be used to
show the actor’s awareness of the unlawful methods of an
individual or enterprise conducting terrorist activity.
‘‘(45) The term ‘individual’ means a human being.
‘‘(46) The term ‘enterprise’ means an organization
or government.’’.
SEC. 204. The Immigration and Nationality Act is
amended by adding at the end thereof a new title V as
follows:
‘‘TITLE V—REMOVAL OF ALIEN
TERRORISTS
‘‘Sec.
‘‘501 (adds 8 U.S.C. 1601). Applicability.
‘‘502 (adds 8 U.S.C. 1602). Special Removal Hearing.
‘‘503 (adds 8 U.S.C. 1603). Designation of Judges.
‘‘504 (adds 8 U.S.C. 1604). Miscellaneous Provisions.
‘‘§ 501. Applicability
‘‘(a) The provisions of this title may be followed in
the discretion of the Department of Justice whenever the
Department of Justice has information that an alien de-
scribed in paragraph 21 of subsection 241(a) of this Act
(8 U.S.C. 1251(a)(21)) is subject to deportation because
of that paragraph.
‘‘(b) Whenever an official of the Department of Jus-
tice files, under section 502, an application with the court
established under section 503 for authorization to seek re-
moval pursuant to the provisions of this title, the alien’s
rights regarding removal and expulsion shall be governed
solely by the provisions of this title. Except as they are
specifically referenced, no other provisions of the Immigra-
tion and Nationality Act shall be applicable. An alien sub-
ject to removal under these provisions shall have no right
of discovery of information derived from electronic surveil-
lance authorized under the Foreign Intelligence Surveil-
lance Act or otherwise for national security purposes, nor
shall such alien have the right to seek suppression of evi-
dence derived in such manner. Further, the Government
is authorized to use, in the removal proceeding, the fruits
of electronic surveillance authorized under the Foreign In-
telligence Surveillance Act without regard to subsections
106 (c), (e), (f), (g), and (h) of that Act.
‘‘(c) This title is enacted in response to findings of
Congress that aliens described in paragraph 21 of sub-
section 241(a) of this Act (8 U.S.C. 1251(a)(21)) rep-
resent a unique threat to the security of the United States.
It is the intention of Congress that such aliens be prompt-
ly removed from the United States following—
‘‘(1) a judicial determination of probable cause
to believe that a person is such an alien; and
‘‘(2) a judicial determination pursuant to the
provisions of this title that an alien is removable on
the grounds that he is an alien described in para-
graph 
of 
subsection 
241(a) 
(8 
U.S.C.
1251(a)(21));
and that such aliens not be given a deportation hearing
and are ineligible for any discretionary relief from deporta-
tion and for relief under subsection 243(h) of the Immi-
gration and Nationality Act.
‘‘§ 502. Special Removal Hearing
‘‘(a) Whenever removal of an alien is sought pursuant
to the provisions of this title, a written application upon
oath or affirmation shall be submitted in camera and ex
parte to the court established under section 503 for an
order authorizing such a procedure. Each application shall
require the approval of the Attorney General, the Deputy
Attorney General, or the Associate Attorney General based
upon his finding that it satisfies the criteria and require-
ments for such application as set forth in this title. Each
application shall include—
‘‘(1) the identity of the Department of Justice
attorney making the application;
‘‘(2) the approval of the Attorney General, the
Deputy Attorney General, or the Associate Attorney
General for the making of the application;
‘‘(3) the identity of the alien for whom author-
ization for the special removal procedure is sought;
and
‘‘(4) a statement of facts and circumstances re-
lied on by the Department of Justice to establish
that—
‘‘(A) an alien as described in paragraph 21
of subsection 241(a) of this Act (8 U.S.C.
1251(a)(21)) is physically present in the United
States, and
‘‘(B) with respect to such alien, adherence
to the provisions of title II of this Act regarding
the deportation of aliens would tend to harm
the national security of the United States, ad-
versely affect foreign relations, reveal an inves-
tigative technique important to efficient law en-
forcement, or disclose a confidential source of
information.
‘‘(b) The application shall be filed under seal with
the court established under section 503. The Attorney
General may take into custody any alien with respect to
whom such an application has been filed and, notwith-
standing any other provision of law, may retain such an
alien in custody in accordance with the procedures author-
ized by this title.
‘‘(c) In accordance with the rules of the court estab-
lished under section 503, the judge shall consider the ap-
plication and may consider other information presented
under oath or affirmation at an in camera and ex parte
hearing on the application. A verbatim record shall be
maintained of such a hearing. The application and any
other evidence shall be considered by a single judge of that
court who shall enter an ex parte order as requested if
he finds, on the basis of the facts submitted in the applica-
tion and any other information provided by the Depart-
ment of Justice at the in camera and ex parte hearing,
there is probable cause to believe that—
‘‘(1) the alien who is the subject of the applica-
tion has been correctly identified and is an alien as
described in paragraph 21 of subsection 241(a) of
this Act (8 U.S.C. 1251(a)); and
‘‘(2) adherence to the provisions of title II of
this Act regarding the deportation of the identified
alien would tend to harm the national security of the
United States, adversely affect foreign relations, re-
veal an investigative technique important to efficient
law enforcement or disclose a confidential source of
information.
‘‘(d)(1) In any case in which the application for the
order is denied, the judge shall prepare a written state-
ment of his reasons for the denial and the Department
of Justice may seek a review of the denial by the Court
of Appeals for the Federal Circuit by notice of appeal
which must be filed within twenty days. In such a case
the entire record of the proceeding shall be transmitted
to the Court of Appeals under seal and the Court of Ap-
peals shall hear the matter ex parte.
‘‘(2) If the Department of Justice does not seek re-
view, the alien shall be released from custody unless such
alien may be arrested and taken into custody pursuant
to title II of this Act 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.
‘‘(3) 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 cor-
rectly identified or is an alien as described in paragraph
21 of subsection 241(a) of this Act (8 U.S.C. 1251(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 of this Act
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.
‘‘(4) If the application for the order is denied be-
cause, although the judge found probable cause to believe
that the alien who is the subject of the application has
been correctly identified and is an alien as described in
paragraph 21 of subsection 241(a) of this Act (8 U.S.C.
1251(a)), the judge has found that there is not probable
cause to believe that adherence to the provisions of title
II of this Act regarding the deportation of the identified
alien would tend to harm the national security of the Unit-
ed States, adversely affect foreign relations, reveal an in-
vestigative technique important to efficient law enforce-
ment, or disclose a confidential source of information, the
judge shall release the alien from custody subject to the
least restrictive condition or combination of conditions of
release described in subsection 3142 (b) and (c)(1)(B)(i)–
(xiv) of title 18 that will reasonably assure 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, but if the judge finds no such condition
or combination of conditions the alien shall remain in cus-
tody until the completion of any appeal authorized by this
title. The provisions of sections 3145–3148 of title 18 per-
taining to review and appeal of a release or detention
order, penalties for failure to appear, penalties for an of-
fense committed while on release, and sanctions for viola-
tions of a release condition shall apply to an alien to whom
the previous sentence applies and—
‘‘(A) for purposes of section 3145 an appeal
shall be taken to the Court of Appeals for the Fed-
eral Circuit; and
‘‘(B) for purposes of section 3146 the alien
shall be considered released in connection with a
charge of an offense punishable by life imprison-
ment.
‘‘(e)(1) In any case in which the application for the
order authorizing the special procedures of this title is ap-
proved, the judge who granted the order shall consider
separately each item of evidence the Department of Jus-
tice proposes to introduce in camera and ex parte at the
special removal hearing. The judge shall authorize the in-
troduction in camera and ex parte of any item of evidence
for which the judge determines that the introduction other
than in camera and ex parte would tend to harm the na-
tional security of the United States, adversely affect for-
eign relations, reveal an investigative technique important
to efficient law enforcement, or disclose a confidential
source of information. With respect to any evidence which
the judge authorizes to be introduced in camera and ex
parte, the judge shall cause to be prepared and shall sign,
and the Department of Justice shall cause to be delivered
to the alien, either—
‘‘(A) a written summary which shall be suffi-
cient to inform the alien of the general nature of the
evidence that he is an alien as described in para-
graph 21 of subsection 241(a) of this Act (8 U.S.C.
1251(a)(21)) and to permit the alien to marshal the
facts and prepare a defense, but which shall not
tend to harm the national security, adversely affect
foreign relations, reveal an investigative technique
important to efficient law enforcement, or disclose a
confidential source; or
‘‘(B) if necessary to prevent serious harm to the
national security or death or serious bodily injury to
any person, a statement informing the alien that no
such summary is possible.
‘‘(2) The Department of Justice may take an
interlocutory appeal to the United States Court of
Appeals for the Federal Circuit of any determination
by the judge pursuant to paragraph (1)—
‘‘(A) concerning whether an item of evidence
may be introduced in camera and ex parte;
‘‘(B) concerning the contents of any summary
of evidence to be introduced in camera and ex parte
prepared pursuant to subparagraph (e)(1)(A); or
‘‘(C) ruling that no summary of evidence to be
introduced in camera and ex parte is possible pursu-
ant to subparagraph (e)(1)(B).
In any interlocutory appeal taken pursuant to this para-
graph, the entire record, including any proposed order of
the judge or summary of evidence, shall be transmitted
to the Court of Appeals under seal which shall hear the
matter ex parte. The Court of Appeals shall consider the
appeal as expeditiously as possible.
‘‘(f) In any case in which the application for the order
is approved the special removal hearing authorized by this
section shall be conducted for the purpose of determining
if the alien to whom the order pertains should be removed
from the United States on the grounds that he is an alien
as described in paragraph 21 of subsection 241(a) of this
Act (8 U.S.C. 1251(a)(21)). In accordance with subsection
(e), the alien shall be given reasonable notice of the nature
of the charges against him. The alien shall be given notice,
reasonable under all the circumstances, of the time and
place at which the hearing will be held. The hearing shall
be held as expeditiously as possible.
‘‘(g) The special removal hearing shall be held before
the same judge who granted the order pursuant to sub-
section (e) unless that judge is deemed unavailable due
to illness or disability by the chief judge of the court estab-
lished pursuant to section 503, or has died. A decision
by the chief judge pursuant to the preceding sentence shall
not be subject to review by either the alien or the Depart-
ment of Justice.
‘‘(h) The hearing shall be open to the public. The
alien shall have a right to be present as such hearing and
to be represented by counsel. Any alien financially unable
to obtain counsel shall be entitled to have counsel assigned
to represent him. Such counsel shall be appointed by the
judge pursuant to the plan for furnishing representation
for any person financially unable to obtain adequate rep-
resentation for the district in which the hearing is con-
ducted as provided for in section 3006A of title 18, all
provisions of that section shall apply, and for purposes of
determining the maximum amount of compensation, the
matter shall be treated as if a felony was charged. The
alien may be called as a witness by the Department of
Justice. The alien shall have a right to introduce evidence
on his own behalf. Except as provided in subsection (j),
the alien shall have a reasonable opportunity to examine
the evidence against him and to cross-examine any wit-
nesses. A verbatim record of the proceedings and of all
testimony and evidence offered or produced at such a
hearing shall be kept. The decision of the judge shall be
based only on the evidence introduced at the hearing, in-
cluding evidence introduced under subsection (j).
‘‘(i) At any time prior to the conclusion of the hear-
ing, either the alien or the Department of Justice may
request the judge to issue a subpoena for the presence of
a named witness (which subpoena may also command the
person to whom it is directed to produce books, papers,
documents, or other objects designated therein) upon a
satisfactory showing that the presence of the witness is
necessary for the determination of any material matter.
Such a request may be made ex parte except that the
judge shall inform the Department of Justice of any re-
quest for a subpoena by the alien for a witness or material
if compliance with such a subpoena would reveal evidence
or the source of evidence which has been introduced, or
which the Department of Justice has received permission
to introduce, in camera and ex parte pursuant to sub-
section (j), and the Department of Justice shall be given
a reasonable opportunity to oppose the issuance of such
a subpoena. If an application for a subpoena by the alien
also makes a showing that the alien is financially unable
to pay for the attendance of a witness so requested, the
court may order the costs incurred by the process and the
fees of the witness so subpoenaed to be paid for from
funds appropriated for the enforcement of title II of this
Act. A subpoena under this subsection may be served any-
where in the United States. A witness subpoenaed under
this subsection shall receive the same fees and expenses
as a witness subpoenaed in connection with a civil proceed-
ing in a court of the United States. Nothing in this sub-
section is intended to allow an alien to have access to clas-
sified information.
‘‘(j) Evidence which has either been summarized pur-
suant to subsection (e)(1)(A) or for which no summary
has been deemed possible pursuant to subsection (e)(1)(B)
shall be introduced (either in writing or through testi-
mony) in camera and ex parte and neither the alien, nor
the public shall be informed of such evidence or its source
other than through reference to the summary provided
pursuant to subsection (e)(1)(A) or to the explanation that
no summary could be provided pursuant to subsection
(e)(1)(B). Notwithstanding the previous sentence, the De-
partment of Justice may, in its discretion, elect to intro-
duce such evidence in open session.
‘‘(k) Evidence introduced at the hearing, either in
open session or in camera and ex parte may, in the discre-
tion of the Department of Justice, include all or part of
the information presented under subsections (a) through
(c) used to obtain the order for the hearing under this
section.
‘‘(l) Following the receipt of evidence, the attorney
for the Department of Justice and for the alien shall be
given fair opportunity to present argument as to whether
the evidence is sufficient to justify the removal of the
alien. The attorney for the Department of Justice shall
open the argument. The attorney for the alien shall be
permitted to reply. The attorney for the Department of
Justice shall then be permitted to reply in rebuttal. The
judge may allow any part of the argument that refers to
evidence received in camera and ex parte to be heard in
camera and ex parte.
‘‘(m) The Department of Justice has the burden of
showing by clear and convincing evidence that the alien
is subject to removal because he is an alien as described
in paragraph 21 of subsection 241(a) of this Act (8 U.S.C.
1251(a)(21)). If the judge finds that the Department of
Justice has met this burden, the judge shall order the
alien removed.
‘‘(n)(1) At the time of rendering a decision as to
whether the alien shall be removed, the judge shall prepare
a written order containing a statement of facts found and
conclusions of law. Any portion of the order that would
reveal the substance or source of evidence received in cam-
era and ex parte pursuant to subsection (j) shall not be
made available to the alien or the public.
‘‘(2) The decision of the judge may be appealed by
either the alien or the Department of Justice to the Court
of Appeals for the Federal Circuit by notice of appeal
which must be filed within twenty days, during which time
such order shall not be executed. In any case appealed
pursuant to this subsection, the entire record shall be
transmitted to the Court of Appeals and information re-
ceived pursuant to subsection (j), and any portion of the
judge’s order that would reveal such information or its
source, shall be transmitted under seal. The Court of Ap-
peals shall consider the case as expeditiously as possible.
‘‘(3) In an appeal to the Court of Appeals pursuant
to either subsections (d) or (e) or this subsection, the
Court of Appeals shall review questions of law de novo
but a prior finding on any question of fact shall not be
set aside unless such finding was clearly erroneous.
‘‘(o) If the judge decides, pursuant to subsection (n),
that the alien should not be removed, the alien shall be
released from custody unless such alien may be arrested
and taken into custody pursuant to title II of this Act
as an alien subject to deportation in which case, for pur-
poses of detention, such alien may be treated in accord-
ance with the provisions of this Act concerning the depor-
tation of aliens.
‘‘(p) Following a decision by the Court of Appeals
pursuant to either subsection (d) or subsection (n), either
the alien or the Department of Justice may petition the
Supreme Court for a writ of certiorari. In any such case,
any information transmitted to the Court of Appeals
under seal shall, if such information is also submitted to
the Supreme Court, be transmitted under seal.
‘‘§ 503. Designation of Judges
‘‘(a) The Chief Justice of the United States shall
publicly designate five district court judges from five of
the United States judicial circuits who shall constitute a
court which shall have jurisdiction to conduct all matters
and proceedings authorized by section 502. One of the
judges so appointed shall be publicly designated as the
presiding judge by the Chief Justice. The presiding judge
shall promulgate rules to facilitate the functioning of the
court and shall be responsible for assigning the consider-
ation of cases to the various judges.
‘‘(b) Proceedings under section 502 shall be con-
ducted as expeditiously as possible. The Chief Justice, in
consultation with the Attorney General and other appro-
priate Federal officials, shall, consistent with the objec-
tives of this title, provide for the maintenance of appro-
priate security measures for applications for ex parte or-
ders to conduct the special removal hearing authorized by
section 502, the orders themselves, evidence received in
camera and ex parte, and other matters as necessary to
protect information concerning matters before the court
from harming the national security of the United States,
adversely affecting foreign relations, revealing investiga-
tive techniques, or disclosing confidential sources of infor-
mation.
‘‘(c) Each judge designated under this section shall
serve for a term of five years and shall be eligible for re-
designation except that the four associate judges first des-
ignated under subsection (a) shall be designated for terms
of from one to four years so that one term expires each
year.
‘‘§ 504. Miscellaneous Provisions
‘‘(a)(1) Following a determination pursuant to this
title that an alien shall be removed, and after the conclu-
sion of any judicial review thereof, the Attorney General
may retain the alien in custody, or if the alien was released
pursuant to subsection 502(o) may return the alien to cus-
tody, and shall cause the alien to be transported to any
country which the alien shall designate provided such des-
ignation does not, in the Attorney General’s judgment, im-
pair any treaty (including a treaty pertaining to extra-
dition) obligation of the United States or otherwise ad-
versely affect the foreign policy of the United States.
‘‘(2) If the alien refuses to chose a country to which
he wishes to be transported, or if the Attorney General
determines that removal of the alien to a selected country
would impair a treaty obligation or adversely affect foreign
policy, the Attorney General shall cause the alien to be
transported to any country willing to receive such alien.
‘‘(3) Before an alien is transported out of the United
States pursuant to paragraph (1) or (2) or pursuant to
an order of exclusion because such alien is excludable
under paragraph 34 of subsection 212(a) of this Act (8
U.S.C. 1182(a)(34)), he or she shall be photographed and
fingerprinted, and shall be advised of the provisions of
subsection 276(b) of this Act (8 U.S.C. 1326(b)).
‘‘(4) If no country is willing to receive such an alien,
the Attorney General may, notwithstanding any other pro-
vision of law, retain the alien in custody. The Attorney
General shall make periodic efforts to reach agreement
with other countries to accept such an alien and shall sub-
mit a written report on his efforts to obtain such an agree-
ment to the alien at least every six months. Any alien in
custody pursuant to this subsection shall be released from
custody solely at the discretion of the Attorney General
and subject to such conditions as the Attorney General
shall deem appropriate. The actions of the Attorney Gen-
eral pursuant to this subsection shall not be subject to
judicial review, including application for a writ of habeas
corpus except for a claim that his rights under the Con-
stitution are being violated by continued detention. Juris-
diction over any such challenge shall lie exclusively in the
Court of Appeals for the Federal Circuit.
‘‘(b)(1) Notwithstanding the provisions of subsection
(a), the Attorney General may hold in abeyance the re-
moval of an alien who has been ordered removed pursuant
to this title to allow the trial of such alien on any federal
or State criminal charge and the service of any sentence
of confinement resulting from such a trial.
‘‘(2) Pending the commencement of any service of a
sentence of confinement, by an alien described in para-
graph (1), such an alien shall remain in the custody of
the Attorney General, unless the Attorney General deter-
mines that temporary release of the alien to the custody
of State authorities for confinement in a State facility is
appropriate and would not endanger national security or
public safety.
‘‘(3) Following the completion of a sentence of con-
finement by an alien described in paragraph (1) or follow-
ing the completion of State criminal proceedings which do
not result in a sentence of confinement of an alien released
to the custody of State authorities pursuant to paragraph
(2), such an alien shall be returned to the custody of the
Attorney General who shall proceed to carry out the provi-
sions of subsection (a) concerning removal of the alien.
‘‘(c) For the purposes of sections 751 and 752 of title
18, an alien in the custody of the Attorney General pursu-
ant to this title shall be considered as being committed
to the custody of the Attorney General by virtue of an
arrest on a charge of felony.
‘‘(d)(1) An alien in the custody of the Attorney Gen-
eral pursuant to this title shall be given reasonable oppor-
tunities to communicate with and receive visits from mem-
bers of his or her family, and to contact, retain, and com-
municate with an attorney.
‘‘(2) An alien in the custody of the Attorney General
pursuant to this title shall have the right to contact an
appropriate diplomatic or consular official of the alien’s
country, or an official of any country providing representa-
tion services for that country. The Attorney General shall
notify the appropriate embassy of the alien’s detention.’’.
SEC. 205. Subsection 212(a) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)) is amended by adding
at the end thereof a new paragraph 34 as follows:
‘‘(34) Aliens with respect to whom the consular offi-
cer or the Attorney General knows or has reasonable
ground to believe are engaging in, have engaged in, or
probably would, after entry, engage in terrorist activity.’’.
SEC. 206. (a) Subsection 235(c) of the Immigration
and Nationality Act (8 U.S.C. 1225(c)) is amended by
striking out ‘‘or (29)’’ and inserting in lieu thereof ‘‘(29),
or (34)’’.
(b) Section 106(b) (8 U.S.C. 1105a(b)) of the Immi-
gration and Nationality Act is amended by adding at the
end thereof the following sentence: ‘‘Jurisdiction to review
an order entered pursuant to the provisions of section
235(c) of this Act concerning an alien excludable under
paragraph 34 of subsection 212(a) (8 U.S.C. 1182(a))
shall rest exclusively in the United States Court of Appeals
for the Federal Circuit.’’.
SEC. 207. Section 276 of the Immigration and Na-
tionality Act (8 U.S.C. 1326) is amended by inserting
‘‘(a)’’ before the phrase ‘‘Any alien who’’ at the beginning
thereof and by adding a new subsection (b) as follows:
‘‘(b) Any alien who has been excluded from the Unit-
ed States pursuant to subsection 235(c) of the Immigra-
tion and Nationality Act (8 U.S.C. 1225(c)) because such
alien was excludable under paragraph 34 of subsection
212(a) of said Act (8 U.S.C. 1182(a)(34)) or has been
removed from the United States pursuant to the provi-
sions of title V of the Immigration and Nationality Act
and who thereafter, without the permission of the Attor-
ney General, enters the United States or attempts to do
so shall be imprisoned for a period of ten years which sen-
tence shall not run concurrently with any other sentence
and fined in accordance with the provisions of title 18,
United States Code.’’.
SEC. 208. Subsection 106(a) (8 U.S.C. 1105a(a)) of
the Immigration and Nationality Act is amended by—
(1) striking from the end of paragraph 8 ‘‘;
and’’ and inserting a period; and
(2) striking paragraph (9).
TITLE 
III—COUNTERINTELLIGENCE 
AC-
CESS 
TO 
TELEPHONE 
TOLL 
AND
TRANSACTIONAL RECORDS
SEC. 301. Section 2709 of title 18 of the United
States Code is amended by—
(1) striking out subsections (b) and (c); and
(2) inserting the following new subsections (b)
and (c).
‘‘(b) REQUIRED CERTIFICATION.—The Director of
the Federal Bureau of Investigation (or an individual
within the Federal Bureau of Investigation designated for
this purpose by the Director) may:
‘‘(1) request any such information and records
if the Director (or the Director’s designee) certifies
in writing to the wire or electronic communication
service provider to which the request is made that—
‘‘(A) the information sought is relevant to
an authorized foreign counterintelligence inves-
tigation; and
‘‘(B) there are specific and articulable
facts giving reason to believe that the person or
entity about whom information is sought or per-
tains 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. 1801); and
‘‘(2) request subscriber information regarding a
person or entity if the Director certifies in writing
to the wire or electronic communications service pro-
vider to which the request is made that—
‘‘(A) the information sought is relevant to
an authorized foreign counterintelligence inves-
tigation; and
‘‘(B) that information available to the Fed-
eral Bureau of Investigation indicates there is
reason to believe that communication facilities
registered in the name of the person or entity
have been used; through the services of such
provider, in communication with a foreign
power or an agent of a foreign power as defined
in section 101 of the Foreign Intelligence Sur-
veillance Act of 1978 (50 U.S.C. 1801).’’.
‘‘(c) PENALTY FOR DISCLOSURE.—No wire or elec-
tronic communication service provider, or officer, em-
ployee, or agent thereof, shall disclose to any person that
the Federal Bureau of Investigation has sought or ob-
tained access to information under this section. Violators
of this section shall be subject to penalty under section
3571 of this title.’’.
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