DEPARTMENT OF JUSTICE TESTIMONY ON ANTITERRORISM LEGISLATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90B01390R000801020027-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 26
• Document Creation Date: December 27, 2016
• Document Release Date: November 14, 2011
• Sequence Number: 27
• Publication Date: March 3, 1986
• Content Type: MEMO

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Department of Transportation (Collins 42G-4687)
entral Intelligence Agency
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
March 3, 1986
LEGISLATIVE REFERRAL MEMORANDUM
Department of State (Berkenbile 647-4463)
Department of the Treasury (Toth 566-8523)
De artment of Defense (Windus 697-1305)
Department of Justice 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 595-3454), of this office.
~~i-~
Assi~stant~ Director for
Legislative Reference
cc: John Cooney Karen Wilson Jim Barie Russ Neeley
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DRAFT
Statement of Victoria Toensing
Deputy Assistant ~lttornev Qeneral
Criminal Division
0.8. Department of Justice
eefoxe the Subcommittee on Cxime
of the Houae Committwe on the Judiciary
March ~, 198b
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Mr. Chairman and Members of the Subcommittee, I am Victoria.
Toensinq, Deputy Assistant Attorney General for the Criminal
Division of the Department of Justice. In this position, I
supervise the Criminal Division's efforts in the increasingly
challenging task of combatting terrorism.
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xt is gratifying to those of us who work daily on terrorism
and the inevitably intertwined issue of extradition to s'ee
Congress join the effort to defeat those who choose violence, and
violence most frequently directed against the innocent, over the
rule of law and democratic principles.
As Deputy Assistant Attorney General, I have come to know
all too well the extraordinary difficulties we encounter
investigating and prosecuting international terrorism. The
Administration supports vigorously enactment of strong
anti-terrorism legislation to counter the burgeoning threat of
terrorism. Thus, the Administration has strongly supported two
anti-terrorism meaaurea approved in the Senate by overwhelminq,
bi-partisan votes. These measures are S. 1429, which provides
federal juriodiction and strict penalties for murders and serious
assaults by terrorists against U.S. nationals overseas, and
S. 274, which strer-gthens our ability to safeguard nuclear
facilities from terrorist attacks.
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We studied closely the provisions of A.R. ~,_, in the hope
that it, too, would represent strong anti-terrorism legislation
that provided much needed improvements in terrorism and
extradition law. Unfortunately, it doea not. Indeed, it is our
conclusion that, on balance, this bill would make more difficult,
rather than leas, the task of federal prosecutors, particularly
in extraditing terrorists and other international fugitives, We
did not reach this conclusion lightly, for the need for strong
anti-terrorism legislation is great. Hut in these critical
times, we must move to strengthen our positions and thu? we
cannot support ~ measure which would, in our view, result overall
in a net diminution o! our effectiveness in the battle against
international terrorism.
Sy far, the greatest part of H.R. ~_ is devoted to
revision of ?xistinq extradition statutes and an expansive
codification o! aspects of ?xtradition not now addressed in our
statutes. Assurance that we can meet our treaty obligations to
other nations to return their fugitives is critical in this age
in which olfendera c:n easily flee from one country to another
and in which serious crime has taken on international dimensions.
In no instance is this truer than in the case of international
terrorism. Yet it is in the very rase of international terrorism
that the problems in achieving extradition are most difficult and
most complex.
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Most of the extradition provisions of H.R. ~?_ are quite
familiar to us, for they are either identical to, or
substantially similar to, provisions of extradition bills on
which the Department of Justice has offered extensive comments
when those bibs were considered by this Subcommittee and the
full Judiciary Committee during the 97th and 98th Congresses.,
LEGISLATION FAILS TO CLOSE THE POLITICAL OFFENSE LOOPHOLE
FOR TERRORISTS
In my eommentr today, I will speak first to the provisions
of H.R. _ which deal with the political offens? doctrine. I/
nut first let me explain the Administration's position in this
area. 2n those countries where there is a stable democracy, we
cannot permit terrorists to use their bullets and bombs in lieu
of the ballot box. To that end, we have asked the Senate to
ratify a Supplementary Treaty to the Extradition Treaty between
the United States and the United kingdom which would exclude
1/ The right of a foreign sovereign to demand and obtain
extradition of an accused criminal is created by treaty.
Although the first known extradition treatyy was in the 13th
Century S.C., the political offens? exception is more recent. It
is one hundred and fifty years old.
It was the French and American revolutions which promoted the
development of this concept. It basically excepts from
extradition those persons who commit "political" offenses.
Although there io no international agreement about the definition
of the term, it is fairly well accepted that there are two
categories of political offenses: "pure political offenses" and
"relative political offenses." "Pure political offenses" are
those are aimed directly at the government and include such
crimes as treason, sedition, and espionage. The "relative
political offenses" usually include common crimes committed for
political motives or in a political context.
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crimes of violence from the category of "political offences"
which can be used to defeat extradition.
Cast in the simplest of terms, the political offence
doctrine provides that a person may not be extradited for an
offense determined to be of a "political" nature. Yet, a? the
political offense doctrine has Come to be Construed in our
courts, it has become the most complex and disputed aspect .of
extradition law. Most importantly, it has become the terrorist's
moat valuable tool in unjustly defeating extradition.
While the term "political offense" has defied comprehensive
definition, "uneriran courts have uniformly construed 'political
offenses' to mean those that are incidental to ^evere
disturbances such as Mar, revolution, and rebellion." Sindona v.
Gr~an_t, 619 F.2d 167 at 173 (2d Cir. 1980). This definition comes
from a test first adopted by the British courts in In Re
~.~..
Castioni, [1891] Q.e. 149 and has been th? litmus test in united
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States extradition jurisprudence since 1894. Moreover, in recent
year the federal courts have appeared to expand this test so
that terrorists have managed to avoid extradition by succeasful2y
arguing to the courts that their heinous crimes were political
o!lenses.
For example, the fugitive whose extradition is sought in In
Re Doherty, S99 F. Bupp. 270 (S.D.N.Y. 1984), is a member of the
Irish Republican Army [IRA) who, along with several of hie IRA
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associntee, planned an ambush of a British army convoy. Zn
furtherance of that scheme they commandeered the home of a
Northern Irish family whose house overlooked the route to be
followed by the convoy. Members of the family were in the house
and were held hostage. Alerted to the proposed ambush, the
British 6ecurity Forces stormed the house. burinq the e~suinq
melee Doherty shot and killed a British officer. Doherty was
Caught, convicted, and sentenced to life imprisonment. However,
he became one of twelve jailed IRA members who somehow obtained
weapons and escaped from H.M. Prison, Crwalin Road, Selfaat.
They left behind sevsrai severely wounded guards. 9ecause the
court deter~ained that Doherty'? crimes were political in nature,
it denied his extradition.
The factors which gave rise to the political offense
exception in the eighteenth century are hardly operative as we
appsoach the twenty-first century. Our review of the political
offense language proposed in this.legislation leads tt? to believe
that it would further hamper the already limited ability of the
United States to extradite to foreign governments fugitives
accused or convicted of having committed acts of tezrorirm.
Though there are numerous problems with the proposed language, Z
shall focus on only a few o! them today.
First, the lint of offenses that would be excluded from the
purview of the political offense exception, is very limited,
leaving many violent crimes that could be doomed by the courts to
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be political in nature. For example, murder, manslaughter,
kidnapping, bombings, and arson, some of the wort common forms of
terrorism, could still be Considered political offenses. The
recent events in Sweden provide us with an example of the
legislation's limitations an4 benefits. Because Prime Minister
Palma was within 6weden when murdered, h? Could not be defined as
an internationally psotected person under either Title 18, United
Staten Code, 6ection 1116 or the Convention for the Prevention
and Punishment of Crime? Agafnat Internationally protected
Persons, including Diplomatic Agents, signed at New York December
14, 1973. Consequently, if his assassin(s) were to flee to the
United States, it is conceivable that extradition could be denied
on the basis of the political offense exception. On the other
hand, if Prime Minister Pa1me had been assassinated outside of
Sweden and if his murderer(s) were to flee to the United States,
the legislation would not permit the fugitive(s) to claim the
political offense exception. This heinous crime should be
axtraditabi? under all eircwastar~ces.
In short, some crimes could never be considered political
of lenses under the legislation. Those crimes are few in number.
However, there are many other crimes violent crimeo ?
that terrorists could claim to be political in nature. The
factors that the courts could use to determine whether crimes
such as murder, kidnapping, bombings and arson are political
offenses are so broad under this legislation, that a terrorist
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having committed any such crime could almost be certain that he
or she would never be extradited from the United States.
One of the provisions attempts to remove crimes of violence
from the political offense exception. It wads as follows:
Por the purposes of this section, a
political offense does not include --
. an offense that consists of
intentional, dizect participation in a
wanton or indiscriminate act of violence
with extreme indifference to the risk of
causing death or serious bodily injuryy to
persons not taking part in arn-ed hostl~iities.
A ? ? ~ M
ti4hile to the lay person this language might sound helpful at
first blush, to those of us experienced in the area of
extradition and international law ft is far too ambiguous to be
of help in our fight against terrorism. Certain key phrases in
the provision, including those such ?s "extreme indifference" and
"armed hostilities," are so vague as to render the provision
extremely difficult to apply. For instance, are we engaged in
armed hostilities in Puerto Rico within the meaning of this
provision, and would a foreign court, if it were applying this
language with regard to our request to extradite an !'11LN
terrorist whose bomb had killed a policeman and a civilian, come
to the same conclusion as we?
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Finally, it is importar-t to note that a United States law
has no effect on a foreign government's obligation to extradite
fugitives to the United 6tates. If 1ve wish to enhance our
ability to have our fugitives returned to th? United States under
extradition procedures, it is necessary to have bilateral
extradition treaties which specify those offenses which are
excepted from the purview of the political offense doctrine. Our
legislation, which is necessarily unilateral, does not affict the
obligations of other countries to honor our requests to them.
To summarise, the political offence portion of the
legislation could, in some instances, make it even more difficult
for the United States to extradite from this country fugitives
accused or convicted of ~ommittinq crime^ o! terrorism.
In addition to our serious reservations about the political
offense provisions of Title I of th? bill, it is our firm view
that other aspects of its ?xtradition sections create, rather
than ameliorate, difficulties in meeting our solemn treaty
obligations to extradite international fugitives. On many
occasions during the last two Congresses, th? Department has
commented on the virtually identical provisions of prior
extradition bills. On those occasions, we identified a number of
serious problems with these provisions. Indeed, after careful
analysis, the bepartment of Justice has concluded, as we 'did in
the 98th Congress, that these problems are so aeriou? that they
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significantly outweigh whatever benefits might be obtained by the
bill's other extradition provisions.
Since we have in the past extensively discussed our
objections to various provisions of Titie One, I will limit my
testimony today to a discussion of those items that are moat
problematic.
LEGISLATION'S BAIL PROVISIONS MOULD
MAKE IT EASIER FOR TERRORISTS TO 8S FREE ON $OND
~~~
On? of our gravest concerns with this bill is that, like its
predecessors, it would reverse the Current standard for bail.
Under current law, a fugitive is to bs detained pending
extradition unless .he shows "special circumstances" that justify
his conditional release. This means that the fugitive must
establish some exceptional factor, such as physical hardship or
the prospect of a manifest injustice, in order to overcome the
Government's motion fez his detention.
The "speoial circumstances" test, established by the Supreme
Court at the beginning of this century, has been applied wisely
by the courts, and we have seldom been in the position of being
unable to surrender a fugitive whose extradition has been
ordered. Yet, at the same time, the courts have used this test
to permit the conditional release of a fugitive when he has
established that detention would be manifestly unfair aiid
problems concerning flight, dangerousness and injury to our
txeaty relations are not present.
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eut this bill presumes that the fugitive should be free on
bond. It would reverse the "special circumstances" test, and
permit detention of an international fugitive o~y if the
government met a heavy burden of proving by clear and corvfncinq
evidence that no forth of conditional release would be adequate to
assure the appearance of th? fugitive or to assure the safety of
another person or the community. In other words, this bill makes
it easier for those who are fugitives from Committing terrorist
acts in another Country and go on the lam again. This change in
the law would seriously undenaine our ability to meet our
commitment to treaty partners to guarantee the surrender of
fugitives found extraditable.
First and foremost, extradition, by definition, deals with a
class of persons who are fugitives from justice in foreign
countries. Most of them have fled from foreign countries knowing
charges hav been, or were likely to be, brought against them.
Thus, the typical subject of an extradition request has
demonstrated a propensity to flee rather than to face charges.
Second, unlike the situation in ordinary pretrial bail
hearings, the Govertuaent does not have access to significant
information about the accused or to law enforcement officials
familiar with the accused and his eziminal history, and thus
would not be able, in many cases, to meet the proposed heavy
burden for detention.
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Third, traditional remedies for bail jurnpinq -- forfeiture
of bond ox our own prosecution -- are wholly inadequate to
redress the injurios to our treaty partners and to our own
extradition relations with those treaty partners. Indeed,
prosecuting a fugitive for bail jumping only further delays the
his or her extradition.
The fact that this bill provides a ten-day "grace period"
(with only limited opportunities for extension) during which the
defendant would bear the burden of showing that he is neither a
significant flight rick or danger to others, is inadequate to
address the problems we have cited. First, this test for release
is still more liberal than the current "special circwnstances"
test. Second, the extraordinary practical problems of the
Government's coming forward with significant amounts of
information about the offender are only delayed, even though
neither our extradition treaties nor current international
?xtraditfon practice contempiate?such exacting burdens.
Moreover, it must be noted that extensive periods of
pre-hearing detention are not the rule in current extradition
cases. The United States reserves provisional arrest for those
cases in which there is a real need to detain a fugitive pending
presentation of formal extradition documents. Lven when
provisional arrest does take place, the period of provisional
arrest is strictly limited by the terms of our ?xtraditfon
treaties.
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LEGISLATION WOULD MAKE OBTAINING PROVISIONAL ARREST
WARRANTS FOR TERRORISTS MUCH MORE DIFFICULT
Another very serious problem posed by this bill and its
predecessors, is it would make it far more difficult, if not
virtually impossible, to obtain a warrant for th? provisional
arrest of a fugitive. Provisional arrest is a well known and
often used aspect of extradition law. It permits the immediate
arrest of a fugitive on a certain standard of proof less than
probable cause, if there is a promise that soon thereafter the
foreign country will submit what are often voluminous documents
which provide the ?videnc? supporting tht extradition request. 2/
The primary purpose of this documentary submission is to supply
information necessary to meet th? single most in-portant oriterion
for extradition: full probable cause to believe that the person
Z/ In order to provisionally arrest a fugitive, the Gnited
states must receive a formal provisional arrest request from the
foreign country and obtain an arrest warrant from a United 6tates
Magiotrate or District Court Judge. In applying for the warrant,
our prosecutor files a sworn complaint which provides specific
information about the foreign charges, when and where the foreign
arrest warrant was issued, and assertions (1) that there is a
treaty in force between the foreign country and the United States
and that the foreign country has requested provisional arrest
pending extradition within the terms of that tzeatyj (2) that the
offen8e is covered by the treaty and (3) that the foreign country
will submit the required documents within whatever time period is
specified by the treaty. In addition, we provide whatever
additional information ws may have about the details of the crime
and the underlying evidence. If the foreign country does not
submit these documents within the time specified by the treaty
tgenerally between 30 and 60 days), the fugitive must beset at
liberty.
It is not infrequent that we deny a foreign country's provisional
arrest request, either because there is no urgent need to arrest
the fugitive, or because of inadequate information.
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before the court has committed the offense with which h? has been
charged in the foreign country.
Probable cause as we know it in the context of United States
criminal law is very standard for ult_ imamate determination of
extraditablity. Yet, B.R. ~ would require that this same high
standard be met in order to obtain a provisional arrest warrant.
In affect, it requires that the Government meet its ultimate
evidentiary burden for the extradition hearing at the preliminary
stage o! provisional arrest.
As a practical matter, we will rarely be in a position to
meet this burden at the provisional arrest stage. To meet a full
probable cause tact, we must be able to produce n significant
amount of information not only about the facts of the crime, but
also, morn importantly, about the evidence underlying the
charges. In the fast-paced settings in which urgent provisional
arrest requests are made, it will. in many cases be impossible for
foreign government treaty partners to produce quickly the same
full range of infonaation required for obtaining arrest warrants
for crimes committed within the United States.
We all recall when we made a provisional arrest request to
Italy for Abu Abbas after the Achille Lauro hijacking. Ztaly let
him go in those 24 hours, saying that we had provided -
insufficient evidence, even though a United States District Court
had ordered his arrest. our two government have since resolved
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the provisional arrest issues that brought about this most
unfortunate result. We do not pow want to be in a potation
where, under the provisions of this bill, we would have to refuse
the request of a foreign country for a person like Abu Abbas.
Two additional important factors must be borne in mind.
First, provisional arrest is permissible only 3f there is already
in existence a valid warrant for the arrest of that fugitiv_e:in
the country requesting extradition. IYn the Achille Lauro case,
I supervised our acquiring a warrant for the arrest of Abu Abbas
in the District Court.} Second, probable cause is a concept
unique to our legal system. Those experienced in extradition
know it fa a perplexing concept to most foreign law enforcement
and judicial authorities. Thus, tasking foreign authorities to
meet this alien, difficult standard in the emergency setting in
which provisional arrests meat be made, particularly when a valid
warrant has already been issued in conformity with their own
legal requirements, is unworkable and unwarranted.
LEGISLATION WOULD i]NILATERALLY CHANGE OUR BILATERAL TREATIES
Another significant problem with this bill, like earlier
bills considered by the Subcommittee, is that it would
unilaterally revise substa?tive provisions of our existing
extradition treaties in two areas: first, the minimum penalty by
which an offense must be punishable before extradition may be
granted, and second, the criteria to be used in resolving
Competing extradition requests from more than one country.
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There is no need for codification in either of these areas.
cut more importantly, such a unilateral revision would
justifiably be viewed as highly offensive by our treaty partners.
Our obligntion to abide by the terms of existing treaties is a
very serious one. To abrogate unilaterally such treaty terms,
absent the most compelling of reasons, i^ wholly unwarranted.
There is no such compelling reason for the codification scheme .~
set out in this bill.
LEGISLATION WOULD COMPLICATE AND DELAY
SURRENDER OF FUGITIVES WAIVING EXTRADITION
Yet another serious concern we have with the extradition
provisions of thio bill lies in its treatment of waivers of
?xtradition. Waivers of extradition occur quite frequently.
They per~pit th? immediate surrender of the fugitive after hit or
her execution of a judicially approved, knowing, and voluntary
waiver of the procedures and righto provided under the
extradition treaty. Waiver is the most satisfactory resolution
of extradition cases from the perspective of both the [Tnited
Btatss and its treaty partners. This bill, however, would
complicate current waiver practice and unnecessarily delay the
surrender of the fugitive.
Under current law and practice, once a fugitive has executed
a waiver, the court directs his or her surrender to the foreign
country as soon as possible. The court's order is the final
stage in the proceeding. Removal of the defendant i? not
contingent on issuance of a surrender warrant by the Secretary of
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Stets, since the fugitive has waived this and other procedures
applicable to the extradition processes.
H.R. ~,_ would revise the waiVlr procedure by requiring the
court to certify and transmit to the Secretary of State a
transcript of the prooeeding. 6urrendez of the fugitive would
then have to await a decision by the Secretary. These extra
procedures will serve only to Complicate and delay surrender of a
fugitive who has willingly consented to an expeditious return.
Current procedure is efficient, thorough, and fair. it need not
be changed.
Moreover, the proposed changes raise disturbing ambiguities
about the effect of a waiver. From a legal perspective, the
distinction between extradition and surrender pursuant to a
waiver of extradition can be an extremely important one. Because
this bill's waiver provisions add an "order of extradition" and
the is:uance of a surrender warrant by the 6ecretary, and these
procedures are tow required only in the case of a full
extradition proceeding, they suggest that surrender pursuant to
waiver would now acquire ali the same legal characteristics as
extradition.
The most serious problem flowing from such an interpretation
would be that persons waiving extradition would automatically,
and in all eases, benefit from the rule of speciality. (This
rule provides that a person may be prosecuted or punished only
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for those offenses for which his extradition was granted.) Not
only do we believe this results in a significantly qualified
waiver in every ease, which is inappropriate, but also certain of
our treaties now specifically provide that the rule of speciality
is not to apply i? waivers of extradition.
LEGISLATION 1PILL FURTHER DELAY 8URRENDER OF FUGITIVES
BECAUSE OF INADEQUATE L2MITS ON COLLATERAL REVIEW
A final serious problem we have cited in the past concerns
collateral review of extradition decisions. Under current law, a
person found extraditable may seek review of the court's decision
only through the ffling of a ha_,b,~ cor,~us petition. in cases of
decisions adverse to the Government, our only remedy is to refiie
the extradition case. In other words, the government cannot
appeal an adverse decision.
H.R. ~_ would provide for direct appeal of extradition
decisions by either the fugitive.or the Government. We would
welcome that provision if it stopped theta. However, by
permitting direct appeal, we should then strictly limit
collateral review. Sven under current law, where the habeas
.~._-
cor us process is the sale means of review, it is not uncommon
for exhaustion of this process to delay surrender for n year or
more.
Finality of judgment is a critical principle in all~criminai
proce.dings, but in th? context of extradition, it has
?xttaordinary importance. Not until the surrender of the
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18
fugitive are our treaty obligations fulfilled and the interests
of our treaty partner in prosecuting or punishing the otfender
met. Extensive delays arising during the current ha= a? review
process are already a major source of friction with our treaty
partners. To permit yet further delays by providing les? than
the most stringent standards for access to ha~ relief
following an opportunity for direct appeal Mould be most
detrimental to our interests.
This bill provides that collateral review toay be sought only
when all appellate remedies are exhausted. This concept is "
significantly flaweds the exhaustion requirement can be
circumvented through application of the bill's overly broad "good
cause" exception. 3/ In our view, collateral review should be
permitted only ff the fugitive demonstrates that the issue he is
advancing is one that could not have been raised at an earlier
stage.
3/ The bill would permit a defendant who has foregone his
opportunity for direct appeal to pursue habeas comer u~s relief on
the eve of his surrender upon a mere "goo cause'- owing. This
sort of disruption of the extradition process and the prospect of
lengthy delays while the habeas process is exnaustea, should be
permitted only in those rar' o cases in which the defendant can
make a compelling showing that he could not have raised his
current claim for review during the appellate process provided in
the bill. Other criteria encompassed by the bill's broad "good
cause" exception, are not, in our view, tulficient to justify
what should be, in this setting, the extraordinary remedy of
collateral review.
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r 19 w
Because of these major problems, K.R. _~ would make it
more difficult for us to extradite terrorists and other
international fugitives. These serious concerns lad us, in the
98th Congress, to oppose virtually identical extradition
legislation approved by the House Judiciary Committee. Since
that tim?, the difficulties in addressing international terrorism
and meeting our extradition treaty obligations have only
increased. Consequently, our grave Concerns about these
measures, which we view as potentially hindering our efforts
against terrors:ts, have similarly increased. In sum, we should
not make it more difficult to extradite terroristat we should
make it less difficult.
I will now comment briefly on the remait~inq three Titles of
the this bill.
Tittle III - prasident3al Reoort,on Somb Deta_ c_ tio_
The Department of Justice supports this provision.
Detection of bombs and other weaponr before they explode or are
used is important not only to the police and security officials
but also to the general public who utilise the facilities under
attack. Because many federal agencies investigate crime
employing such devices and/or are already researching this area,
it is fitting that the overall responsibility for preparing the
report be vested in the President. however, we believe that the
1@0 days time period may be too short. While much research has
been done, none of it, according to our understanding, has been
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as comprehensive as contemplated by this bill. Accordingly, we
would recommend that the time period be expanded to 12 or 18
months. In addition, any meaningful study in this area will
probably require additional lunds not currently available to
federal agencies. Adequate authorization and appropriation is
necessary. The exact amount of fioney needed can be worked out as
the scope of this measure is fully developed by the Subcommittee.
Title ZIZ - Terrorism Crime
Titl? III would create a new crime of "international
terrorism" in ^ection 971 of chapter 45 of title 16, United
States Code. iPhile proposed section 971 appears to be a simple
provision, it is fraught with problems, some constitutional and
many practical.
Instead of proposed section 971, we would prefer H.R. 4288
introduced on Friday, February 28, 1986, by Congressman Ronald
Wyden. H.R. 4288 fs identical to S. 1429, sponsored by
Senator Arlen Specter, which passed the Senate on February 19,
1986, by a vot? of 92 to 0. I have attached a copy of S. 1429 to
my statement. Sn our judgement A.R. 4286 and S. 1429 best close
the major gap in current federal law concerning overseas
terrorism directed against United States interests. Nhile
admittedly overseas terrorism fs a difficult area in which to
legislate, N.R. 4288 and 8. 1429 minimize the prosecutive burdens
while protecting all the valid national interests.
We have numerous concsrnr about proposed section 971 as
drafted, including its breadth, its possible vagueness, and its
penalty structure. Our major concern, however, is its inclusion
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or motive as an element of the offense. Motive i? often an
extremely difficult element to prove. The tact that the proposed
criminal conduct would occur overseas will only compound the
d
ifficulty. Moreover, the motive required to be proven beyond a
reasonable doubt is a political one. As such, it needlessly
seises first amendment concsrn? in what should really and solely
b
e treated as a prosecution for violent acts, not political
ideas. Proposed section 971 will give the terrorist a~showcase
at the expense of the American taxpayer. This is precisely what
h
t
e terrorist craves - a highly visible platform from which to
expound on the aims and purposes of his/her group. Regrettably,
th
i
e
nclusion of a political element in the actual offense will
moat likely make extradition more difficult it not impossible.
For all these reasons, we strongly urge the Bubcommittee to
substitute the language of Ii.R. 4288 and B. is29 for proposed
section 971. S. 1429 had strong bipartisan support in the
Senate. It has no constitutional problem and it hat been dratted
in a manner so that the practical problems in effectively
prosecuting overseas terrorist conduct acs reduced.
Tit_. 1._ ~ W -International Terrorism Convention
The Department of Justice fully supports efforts to combat
terrorism at all levels. international cooperation is a crucial
aspect. The President has already undertaken steps to implement
Section 507 of the International Security and Development
Cooperation Act of 1985, pub. yaw 99-83, August 8, 1985,.99 Stat.
222, calling for the development of an international terrorism
control treaty. The evolution o! international law to ?ncompasa
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03i03iB6 17:08 ? N0.007 024
under the law of nations snore of the Crimes committed by
terrorists is an admirable goal. While we realize that progress.
will come in small steps, we must still push ahead. Governments
alone, however, must not pursue the development of international
law relating to terrorism. The private legal bar and the schools
of law and political science in the world's universities also
must join this effort. Accordingly, we ?ndors? the purposes of
title IV and urge that the necessary funding for this effort be
authorized and appropriated. As with the study on bomb
detection the exact amount of the money needed can be worked out
as the scope of this measure is fully developed by the
6ubcommittee.
This completes my prepared remarks. I would be happy to
answer any questions you may have.
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~Jebrttary Id, idd6 OONG1tSSSIONAL 1t8CORD ?- iBNATE 81387
ihece dari to ? chtuiltetl world tlstld! I also n:wour~oe that the Retlator threstatin~ btaslnesr trevtl end bltrletrf u
.
bttl Y betotre the /mate ttwd Open to ~' ~" the ONtN sous o! efts aatisetal~ of the
further aalaldflteat. tt ther! be ao /o the Opt ts. itllil. r aaldl0ed ~~ ttute+~ Ott ~ aunirhed rs padded
further areerldmeat b be propoNd. ?wM as ldbws: bi setgso ill! et thtr tole ttataithetsr+dine
tLe soestlott t. oo !be wlOsolmoss-t, L 1VS that file eftaeee eeturrod tfutsidr the
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lsirl0a th! reM4h ttt th! AmlriOarl M+d ieilbr t.tbH~ ~Kteltre eereurred etttsfde the tTnrted
eeimirlal ~ttetke tgstem m w atterRrreaen -th) Ml>toaer otttaiae tht tlttfted Otatet.
~ ~~ thief btf~ba[tC Oflmivalt b ~~ trttb ttttaAt to tiattre seriph bod-IY hsrtn or
11>rtke. ttr. TnddeIIt. I ttede wpport tt)l+em lia.wrra r.er sisditaanc few d Itbertr. er.u)ts. atrtta.
Ot 8. I4Z9. It V a t!!at /t!D bward tf:- ~ ~ troana~, Imprirpat. or auto anl~ ether .so-
ri0t'lttr ksal molts m a world trllmR >De.r.rtl~ s.+t- I~lt ettact noon theve rson or liberty of
d+om taror?vioieitot. =t aeraes tsotloe ouoaiew t{.rste~,b.t twpta aer aattooal d tee tlmad titans or, u
ten terrorists aae vloltelt?wrollttdOttf ps~ee Ws ~~ r~ikw ~rfeka~utaehs~ t~wort h~ bussnes~
be etmled ~~ ~~tbt will root ~ t~ ~irswrr yrsmfsr. airete teooatmotbuocr. er teeans
kr. pADL"T~R lilt. >rrcttdwt, i her t w w~i.p w ~?rt' ~ att~ata to t~erasut anl? of
iWUttatp ~~ tfw taeesolns. tdlell M tlaed flat more than
lief-e we are r+ecds b vote. N.toO a lmoresoned toot recto than that
The 1D7t>18IDDKl Ol?iClR. Tlse nrcwa+?) ev ~? stars, r ilete. vVboeter m t!-e eoeunluion
Nation s. op tlpree!!lp b the OOmmlt- wl1e~ W ~~"~ ~- e~~n M ~ ao~iaon thanb o oa-
~ irraeaQmeat fa the aatetre o~ a Ott ~_~ ~ 'LsaeO oral score then ten >nar+s. er
Tile ODtmdtltt!! atmentwlt b the ~ teC? ?C?OIO.-i ?'u) reerar, etrteide of let tfnitrd
nature of ? ttubstJtute was aRaed to. ~ or.,,r awe~ea ~tstsr. ern b eomn,se warder, v dt?
TM ~ftrBIDINO O>!J!iC'~i?
Tbt iron b.itr. ~tntnl flnsd !m arotioa 3tllta) e! thlr dtk 1litltin
blood Or b allot polltjeal lanatla b a ii is ~'k?" ~ flat oral asare titan trentr rear, and for
~~b." ~y'k !?OW~f be PunWted Y aro~'lded by iee?
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>e~ed~ Yon 1117 e! tLir gtlc, aotvltlutandlnt that
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~ the tlrrorlat threat. tenet put w qtr. K~.tl would tote " oa." t)ktfter. eealhesh tdelent eetaclu upon Atntrl?
worde mb ttetds. Thle Y the ottiy way '1'w !1!f>s>aINO O!'!'i~. Are aver ettestdr the naiad tutor or comp+-e
b serve tsotlot Otl it::oetat etteeders there any other ?enab? m the Pham? eutdee ei the tTdtee Nate: b murder
that the IIdted itatcs wi11 ao lcoret Mr b volt! AAlerfosar trtthtn oho Vnitse ?tsta.
tallow than to eenepe the aoslee4tse:loee The tM t was announced-trrs ~!. ~ M~ ~q~t~ ecvx +wAI~~T l'anr:~~
tot their bloody tiota. ~Ow we Obtata Of Oy-t 0. M t0110Ni; Rdlp IidTltt%A{a AiettAD.
apprehend the terrorNt oftondlr M ptdtau vote 110. t1 tas.l. "~- w>sgrttt eutaide tM flailed lut.s
titrwtiler outtstltxl. t slate that ma11r of ~,,,,y ttorslt0 aal~ rureer a, iefintd N rreti4n
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Tile brill was Ordered b bt ttlQased lpraontlsttsw tl /1e trtttlstt stela tl tieael o/ tM tlnhsd ltttoY ear the e-esnine
- for a third reedhy allA waa read the /reetta a Ctiynrn era+aaled, That tw ~1ore talch tsfe- m rretiao 101taltrsl of the
thh+d dale. del mar M sttec r tAo "~rrarlst >rresoaf? >I~trratlos W 1lattoeeliV ~t tt t).i.C?
'The >'it>6'hIDINCi O>"~it~t. Ilse IMaAetltltat?'.' - iltltsxt!)).
bp! haviftp been read the third dale. ~. ~ tp) iwt t ~r tittr It, t1nNN thaw 'its) >wlo YlAlcUaeat for th{s rectfon orn bt
the puation k shall tt peest Oe this t~sds h ~?~ k' ~~ sttsr alnptsr treturned tNtJsout tee trepan aapretYl of
awatloa. the t-ae and nays have hem flat cite tolMwto~ the Attortsey twnl er air deslsnet."
ardtred and t1l! dirt will call the ttpll. "L9AT1l1t 11L-~~' ~C'1'ij tN'!ae fable d Naplers for part 1 Of tillc
Tbt act3ataDt 1eR41atlte ttw't flailed ~~~! witi7ip #t'~l'J!'i l1tATit~1t- lt. tfdtM later Oede. t. astteded bl In-
ih~ rO1L Ail V11QaD alter tAe Msa for t:hrater 1171. the
"tli>t[arslend qtr. I4ssise7 M Yeov u:rettlra, ear b nor esMUa M station on the table.
tittlaacco? tlen~ k~ that a apttetrs ttw ~sareetttr ~. Otet`ONN~W.. btr. Tf+eridKnt, I
is [~? Dvxi~osl wovld tone wts.. eoseeNeted riatide w wMeNS aw dare0 the senate voted by such a
~7m?" that an O4aotM etwttt !tor etfn araurets err Mlde ~ b ellpport thk kstsla?
Itr. t:'1tAtfrO'PON. I aitnotalot that ~el met ~se.e ~~A~or. flan I commend the dedicated effort
the senator from Ohio ptr. Oiarstl. tlurateo a Itoererecotal wtw et etrr let tiiV o0i3Mdue. iellator 8rutsit, fn
the serlabr trt>tta >ttalrte qt{r. i[tr~- Ooactwsrnt: teat st seetacttoc w sltlserr; ~ flits dQJ ehrouth the Ju?
sf.s). and the 6erlator from t[lsdssippl .td) stl~ atwe. afro twee tw abwes ~' Oomntittee and to the floor.
qtr. Brofsrul ars aeearlrarils abarlst. ? t~ tldtse lfatsr w replaDeatt eM i ~~ It crae surArWrli to etany of
I tttrther annotteoe that the senator eralnfaie ~ rt{tettrc ~~; rs that there was tiMr open w Indoa? to
trtren itfttvali qtt. Isovlt>h >. abcaot wcf ~~ attaats Ntpr rtartt~ our Lw. It !r dltflt:Wt to fatastne ~vhy.
Oeosua of J1Llcas to the taelpy. tattb tatcntete ed fwcipl eswrraras. the attttdlrttra oiT ~.i. dtkens t?vei-
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