DEPARTMENT OF STATE TESTIMONY ON ANTITERRORISM LEGISLATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B01390R000801020026-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 17
• Document Creation Date: December 27, 2016
• Document Release Date: March 7, 2011
• Sequence Number: 26
• Publication Date: March 3, 1986
• Content Type: MEMO

STAT
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OCA FILE Ys /.
? RECPT
E OFFICE OF THE PRESIDENT m 4"
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON. D.C. 10503
March 3, 1986
LEGISLATIVE REFERRAL MEMORANDUM
EXECUTIV
Department of Transportation (Collins 426-4687)
entral Intelligence Agency
Department of Justice (Copeland 633-4117)
De artment of the Treasury (Toth 566-8523)
D artment of Defense (Windus 697-1305)
SUBJECT: Department of State testimony on antiterrorism
legislation
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship to
the program of the President, in accordance with Circular A-19.
Please provide us with your views no later than
12:00 NOON -- FRIDAY -- MARCH 7, 1986
Direct your questions to Gregory Jones (395-3454), of th.s office.
James C. Murr'for
Assistant Director for
Legislative Reference
Enclosures
cc: John Cooney Karen Wilson Jim Barie Russ Neeley
Dave Hunn Jim Nix
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03%03'66 16:29 STATE/H LEG AFF
DRAFT
STATEMENT OF ABRAHAM D. SOFAER
LEGAL ADVISER, U.B. DEPARTMENT OP STATE
BEFORE THE SUBCOMMITTEE ON CRIME
OF THE ROUSE COMMITTEE ON THE JUDICIARY
MARCH A 1984
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03'03/86 16:30 STATE/H LEG AFF NO.006 003
Mr. Chairman, and Members of the Subcommittee on Crime:
I appreciate the opportunity to express the Department of
State's views on A.R. _ -- the proposed Antiterrorism Act of
1986. Regretably, the very short notice we received of this
hearing, left us little opportunity to study this complex
legislation. Thus, in my prepared testimony, apart from
tating our position in general, I will confine myself to those
aspects of the bill of greatest concern to the Department of
State. The Department of Justice will comment on some of the
more technical aspects of the bill.
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The State Department's general assessment is that this
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legislation is ill-advised. The bill has some positive
aspects, out overall it is fundamentally flawed and inferior to
current law. This committee should not attempt to rush through
comprehensive reforms in complex aret of law, crucial to
international law enforcement, such as extradition.
Two titles of the*bill are of special concerrf to the
Department of State: Title I, the Extradition Act of 1986, and
Title III, which creates a new criminal offense called
'international terrorism.' Title Ii calls for a study on 'the
threat of terrorist attack and of technological means to
control the availability and use of explosives for terrorist
and other criminal activities.' Such studies have been
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underway for some time. The substance of Title IV, offering
the sense of the Congress that an international convention to
prevent and control terrorism should be negotiated, is already
contained in S 507 of the international Security and
Development Cooperation Act of 1985.
Extradition Reform
Title I of the Act proposes a sweeping reformulation and
codification of our extradition laws and procedures. We
recognize that some extradition reform may be advisable. But
this bill is flawed in several important ways.
First, the overall approach of the bill is troublesome. To
a large extent, the Act codifies existing extradition
practices. This unnecessarily removes flexibility from the
extradition process. Some flexibility is needed for
international extradition to work effectively. One example of
this problem is section 3196, which deals with surrender of the
fugitive after. he has been determined extraditable, and the
Secretary of State's discretionary power to issue or not issue
a surrender order. The present law, 18 O.S.C. S 3186,
provides simply that the Secretary of State may order the
person . . . delivered to [the] . . . foreign government to be
tried . . . .' The proposed section replaces this simple
declaration with an elaborate scheme. This scheme does, in
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?~'r~~'rsb ib:se STATE/H LEG AFF N0.006 005
effect, codify existing practice. But codification irk this way
limits the Secretary's discretion. situations may well arise
in which the Secretary will, for good cause, want to deviate
somewhat from existing practices. We also have problems with
the substance of many of Title I's provisions. For example,
those sections of the Act dealing with bail are unacceptable.
They would drastically change current law. The Supreme Court
recognized in 1903 that bail was generally inappropriate in
cases of extradition. In Wright v. Henke , 190 U.S. 40, 62
(1903),.the Court noted that=
'The demanding government, when it has done all that
the treaty and the law require it to do, is entitled
to.the delivery of the accused . . . and the other
government is under obligation to make the surrender:
an obligation which it might be impossible to fulfill
if release on bail were permitted.'
4
The proposed legislation would erase this longstanding
doctrine, and in several instances establish a presumption in
favor of bail. Sections 3192(f) and 3195(a)(3), for example,
state that individuals detained for an extradition hearing or
appealing an extradition order should be released on bail
unless the government can show by a preponderance of the
evidence that the person presents 'a substantial risk of
flight' or a 'danger to any other person or the community.'
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03/03'86 16:31 STATE'H LEG AFF NO.006 006
The nature of extradition proceedings makes it difficult
for the Government to meet the proposed burden. We usually
lack access to the type of extensive information needed to
establish a serious risk of flight or danger to the community.
Moreover, an individual sought for extradition is by definition
already a fugitive from justice. Such individuals thus should
be, and under current law are, considered likely to flee.
More significantly, as the Court noted in Wr i v. Bey n,
permitting bail too readily may put the United States in a
position where it cannot fulfill its treaty obligations. if a
requesting country concludes that the United States is not
meeting its treaty obligations, it may be unwilling to
cooperate when we seek extradition of a fugitive from that
country. The remedies for bail jumping -- forfeiture of bond
and imposition of criminal penalties under U.B. law -- do
nothing to rectify the injury to a foreign natiqp sustained
when that country does all it can to secure extradition and we
'let the fugitive slip through our hands. We should not build
such problems into the law.
The second, and even more significant, area of concern to
the Department is the political offense exception. Some of the
language in this section reads more like it belongs in a
Pro-Terrorism Act of 1986 than in an act that purports to be
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0:.,lU,J.DO Lo..--)l STRTE/H LEG AFF NO.006 007
designed to combat terror.
The Act directs that a person may not be extradited if he
establishes, by a preponderance of the evidence, that the
offense for which his extradition is sought is a 'political
offense.' The Act then limits to an extent the crimes that may
be considered 'political offenses.' The operative provision,
section 3194, has two basic parts. Subsection 2 lists six
offenses that are absolutely excluded from the exception --
that is, the listed offense can never be held 'political.'
Subsection 3 provides that other crimes may also be excluded
from the political offense category, listing six factors a
court 'shall consider' in 'determining whether an offense is a
political offense.'
Subsection 2's exclusion of offenses like forcible sexual
assault or acts proscribed by a multilateral convention, for
example, the convention against hostage-taking, is certainly
appropriate. We also agree with the exclusion of?'wanton or
indiscriminate act(s) of violence' from the reach of the
poltical offense exception. This so-called 'wanton crimes
exception was upheld in gain v. Wilkes. 641 F.2d 504 (2d Cir.
1981), but has not been universally adopted by other courts.
Subsection 2 is fine as far as it goes, but we should not
stop there. With respect to certain of our extradition treaty
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ems, oo 1b:.51 STATE/H LEG AFF N0.006 008 ?~
partners, additional offenses should be excepted from the reach
of the 'political offense' doctrine. But because this
legislation is by definition applicable to every country with
which we have extradition relations, it reflects the lowest
common denominator. The lowest common denominator may be
correct for certain countries, but this list of offenses that
can never be considered 'political' is too limited with respect
to stable democracies. This is exactly why the Administration
has determined that treaty-by-treaty revision of the exception
is a more careful, tailored approach to modifying the political
offense doctrine, permitting a more extensive exclusion of
offenses from the doctrine. With stable democracies such as
the United Kingdom, we must go beyond the meager list of
offenses in subsection 2, and, for example, agree that murder,
manalaugher, and bombing also should never be considered
appropriate political conduct.
Subsection 3's flaws run deeper than merely excluding too
few crimes from treatment as political. This subsection lists
six factors a court should consider in determining whether an
offense is political. But no guidance is provided regarding
what 'consider' means. What weight should be given to each
factor? Which way do the factors cut? Do these factors
replace or supplement existing tests for determining an
offense's political character? The courts are left to sort out
the answers to these and other such questions, adding to the
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confusion already present in this area.
More substantively, some of the factors that the Act
directs the courts to consider should not always be part of an
appropriate analysis under the political offense doctrine. For
example, the first factor listed is the status of the victim.
This invites courts to draw conclusions regarding the
appropriateness of a terrorist act depending upon who the
terrorists happened to hit. Presumably, the murder of a
policeman may be construed as'more 'political' than the murder
of a civilian. Such a distinction may make sense in analyzing
the conduct of an individual in a repressive, totalitarian
regime. But these proposed factors would apply to all
countries with which we have extradition relations. in a
democracy such as the U.K. or the U.S., the distinction is an
abomination. Inviting the murder of policemen in a democracy,
by offering a possible safe haven to perpetrators with
political purposes, is a notion we cannot believe this
Committee would support.
Similarly, the motive of the actor is irrelevant in a
democratic regime. Our own courts have repeatedly held that a
crime is a crime, regardless of any purported good intentions.
As the Third Circuit Court of Appeals said in United States V.
Berri`, 482 ?.2d 171 tad Cir. 1973), 'however idealistic and
sincere, the motives of those who would violate federal law are
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03'03%86 16:32 STATE/H LEG AFF NO.006 010
immaterial." The same principle applies on an international
scale.
Moreover, the proposed legislation significantly expands
the potential reach of the political offense exception. Under
present law, before a court can hold an offense to be
'political" it must determine that an 'uprising" exists and
that the crime was 'incidental' to that uprising. The proposed
section reduces these components from requirements to more
factors a court should consider, opening up the field for those
who would justify their conduct as political. For example, if
the other five factors weighed in favor of a political offense,
the fugitive would presumably not need to demonstrate that an
uprising exists.
A case close to home should graphically demonstrate our
concern. On December 31t'1982, the FALN planted bombs in
certain buildings in New York City. The explosions severely
injured some of New York's "finest"; one officer was blinded.
Under the proposed legislation's reworked political offense
doctrine, these terrorists bombers could be found by a foreign
court applying the proposed factors to have committed a
"political' offense and thus be immune from extradition. Their
attack was arguably not indiscriminate, since only policemen
were injured and they picked their targets carefully: New York
City police headquarters and three federal buildings. Thus,
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since their bombing is not excluded by subsection 2, the
factors of subsection 3 would have to be evaluated. The
victims were 'only' policemen= the offenders belonged to a
political organization: and the terrorists' had a political
motive. A court might well therefore find their acts
'political.' Similarly, PIRA terrorists could find their
crimes labeled political under this proposed legislation's
formulation. They often choose to attack policemen and have
'political' motivations. Indeed, any terrorist can claim
membership in some 'political' organization, factor 3(B), and a
'political' motive related to his group's goals, factors 3(D)
and 3(B). All he need do is be a discriminating killer.
In sum, the political offense provisions of this Act are
unacceptable. By listing factors such as the status of the
victim and, the motive of the actor, section 3194(e) plays into
the hands of terrorists and terrorist organizations seeking to
twist our laws against us and legitimize their abhorrent
conduct. ?
Crime of International Terrorism
Title IV of the Act would create a new crime,
'international terrorism.' while an initiative of this sort
may be helpful, we need to be careful when we seek
extraterritorial application of our laws. This Title has
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several serious flaws.
The most prominent defects are in the section defining the
offense. Terrorism cannot be defined in any manner that is
generally acceptable for a criminal statute, where precision is
required. Prior efforts have led to.tortured results, and the
present attempt also fails. Thus, the bill has a three part
definition of 'international terrorism.' First, the conduct
must be 'a crime of violence.' Second, it must be intended to
intimidate or coerce a civilian population, to influence a
government's policy or conduct, or to retaliate against a
government or government employee for the policies or conduct
of that government. Third, the act must be 'directed against
the United States or a national of the United States.'
We cannot possibly know all that is covered within the
first factor, a 'crime of violence.' Is a threat to blow up an
airplane a crime of violence? The legislation offers no
guidance. Nor are we told when a crime is 'directed' against
the United States, Would the recent Rome and Vienna attacks
meet this requirement? Several U.S. nationals were killed in
the attacks, but, apparently, only because they were on the
scene. Does this make the attack directed against the United
States? Similarly, would a hostage-taking in which no American
was involved, but in which demands are made of the U.S.", be an
act 'directed against the United States?'
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We would have great difficulty, moreover, in seeking to
extradite individuals for the crime of 'international
terrorism.' An individual can be extradited only for offenses
which are crimes in both countries. This 'dual criminality'
requirement would be difficult to satisfy for the
'international terrorism' crime, since unlike offenses which
are covered by mulitlateral law enforcement treaties, such as
aircraft hijacking, or traditional crimes of violence, few if
any foreign countries have a similar offense on the books.
R.I. 4125 is amore appropriate antiterrorist effort,
addressing the same gap in our criminal laws as Title III, yet
in a manner free of the defects noted above.
Conclusion
The Department of State understands and appreciates this
Committee's desire to do something about terrorism. It is a
problem that confronts and frustrates us all. We should
enhance our laws to give them a ,more effective and important
role in the battle. Congress has already contributed greatly
to this process, and we are counting on you to support our
efforts in Central America and the Inman Supplemental to
increase security at diplomatic posts abroad. But the issues
you have addressed in this proposed legislation are complex and
the several proposed reforms in the legislation will hurt, not
help, our international law enforcement efforts.
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