DEPARTMENT OF JUSTICE PROPOSED TESTIMONY ON EXISTING LEGAL MECHANISMS AVAILABLE TO COMBAT INTERNATIONAL TERRORISM

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87B00858R000600950006-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 14
• Document Creation Date: December 22, 2016
• Document Release Date: March 3, 2011
• Sequence Number: 6
• Publication Date: April 21, 1986
• Content Type: MEMO

Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
Actier
OCA 8u 1321
OFFICE OF CONGRESSIONAL AFFAIRS
Routing Slip
ACTION
INFO
1. D/OCA
X
2. DD/Legislation
3. DD/Senate Affairs
4. Ch/Senate Affairs
5. DD/House Affairs
6. Ch/ House Affairs
7. Admin Officer
8. Executive Officer
X
9. FOIA Officer
10. Constituent Inquiries
Officer
11.
12.
22 Apr 86
Action Officer
Remarks ~~Jo~/ co/~i~LE'r~o 'e ~l-~ie
GJ / 21 Apr 86
STAT
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
 Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0 ______
? GRESSIQNAI AFFAIRS
EXECUs IVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
rl-A$MINOTON. D.C. S MW
April 21, 1986
LEGISLATIVE REFERRAL MEMORANDUM
V Dep rtment of the Treasury - Carol Toth (566-8523)
De artment of State -Lee Ann Berkenbile (647-4463)
D artment of Defense - Werner Windus (697-1305)
entral Intelligence Agency
National Security Council
Department of Transportation - John Collins (426-4694)
Department of Energy - Bob Rabben (252-6718)
r
t ~~~~ la
SUBJECT: Department of justice proposed testimony on existing
legal mechanisms available to combat international
terrorism.
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
10:00 a.m. -- TUESDAY -- APRIL 22, 19864
Direct your questions to Gregory Jones (395-34~4, of this office.
es
Assistant Director for
Legislative Reference
Enclosures
cc: Karen Wilson Ron Peterson
Russ Neeley John Cooney
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
 04 X16 Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
J
Mr. Chairman and members of the Subcommittee, my name is
Lawrence Lippe. I am the Chief of the General Litigation and
Legal Advice Section of the Crfiminal Division of the Department
of Justice. I am pleased to be here today to discuss with you
the existing legal mechanisms available to combat international
terrorism, the use that the Department is making of these legal
mechanisms to prosecute those responsible for several of the most
recent tragic terrorist attacks against Americans and some of the
areas in which additional legislation is needed c close gaps in
our jurisdiction to prosecute terrorist atrocities abroad. In
addition, I am happy to discuss the Department's extensive
consideration of allegations that PLO leader Yassir Arafat was
involved in the planning of the March 1973 seizure by members of
the terrorist Black September Organization of the Saudi Arabian
Embassy in Khartoum, Sudan and that he personally ordered these
terrorists to savagely murder our ambassador, Cleo Noel, our
Charge d'Affaires G. Curtis Moore and Belgian diplomat Guy Eid.
The Department of Justice has received a number of letters
calling for the indictment of Arafat for the 1973 slayings and
much has been alleged about the existence of evidence that might
implicate Arafat in the operation. On the basis of such
allegations, the Department conducted an extensive search, both
within our government and from other sources, to determine if
evidence admissible in any prosecution is available.
Simultaneous with that search, the Department engaged in
exhaustive legal research to determine whether the United States
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
 e - 16, Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
2
has jurisdiction to prosecute Arafat or anyone else for these
reprehensible crimes. As a result of this research, it is the
opinion of the Department of:Ju`stice that there is no statutory
authority upon which to predicate a prosecution against any
person for the 1973 murders of Ambassador Noel and Charge
d'Affaires Moore.
In 1973, there was no federal criminal liability for the
murder of United States diplomats abroad. It was not until 1976,
when Congress amended 18 U.S.C. S 1116, that such attacks on our
diplomats abroad became a federal crime. The 1976 amendments to
S 1116 created a major substantive change in federal law: they
enlarged the class of persons protected against deadly assaults,
a class that had previously been limited to foreign officials or
foreign guests attacked while in the United States. Moreover,
these amendments created a major procedural change in our law:
they established extraterritorial jurisdiction in the courts of
the United States to prosecute the murderers of American
diplomats wherever the crime occurs if the offender is found in
the United States. Thus, while the murder of American diplomats
abroad undeniably was a condemnable act in 1973, it was not a
prosecutable crime in the United States at the time and did not
become one until 1976. Prosecuting anyone in the United States
for the 1973 Khartoum murders as a violation of 18 U.S.C. S 1116
as amended would amount to punishing persons for acts not
punishable under our law at the time they were committed. Such a
prosecution clearly would violate the ex post facto clause found
in Article Z, Section 9 of the United States Constitution.
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
 L" 1 t: k- 1 r:: ua r r*-). iu a .) c.n.
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
3
There is no statutory authority besides 18 U.S.C. f 1116
upon which to predicate an American prosecution for the murder of
American diplomats abroad. Criminal statutes are presumed to
apply only domestically unless the language of the statute
clearly demonstrates that Congress intended it to have extra-
territorial effect. While several extraterritorial statutes
exist, many are of rather recent vintage and all expressly
reflect Congressional intent to prohibit acts occurring outside
the territory of the United States. Upon review of these
statutes, however, it is apparent that extraterritorial
jurisdiction vests in United States courts only in the case of
particular attacks against specially protected persons committed
in certain locations. No extraterritorial statute besides
18 U.S.C. S 1116 as amended would cover the savage attacks
against Ambassador Noel and Charge d'Affaires Moore.
Although the Department of Justice has determined that there
is no federal jurisdiction to prosecute anyone for the 1973
Khartoum. murders, we conducted an extensive search of agencieE
and departments within our government as well as outside our
government to see if admissible evidence exists that could
support an indictment against Arafat. We enlisted the assistance
of the State Department and various components of the
intelligence community to obtain and verify information alleging
Arafat's complicity in the planning of the embassy takeover and
the murder of our diplomats.
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
 Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
4
We reviewed extensive records and chronologies of the events
of March 1-4, 1973, the dates of the incident, as well as records
of events preceding the attack-and following the surrender of the
eight Black September Organisation terrorists to Sudanese
authorities. We even reviewed the available text of the
Magisterial Inquiry held in the Sudan between November 15, 1973
and March 9, 1974 which resulted in referring the case for trial
against the sight Black September Organization terrorists for the
premeditated murders of our diplomats. In addition, we reviewed
the embassy reporting of the trial itself, which lasted from
June 2 until June 24, 1974.
The evidence currently available is plainly insufficient for
prosecutive purposes even if there were a legal basis for
instituting charges against Arafat. Notably, after reviewing all
of this evidence, we have found no tape recording of Arafat
ordering the murders of Ambassador Noel and Charge d'Affaires
Moore, no transcript of any such tape recording and no record of
transmission of any such order to kill during the seizure of the
Saudi Arabian Embassy. Information concerning Arafat's direct
involvement in this operation is, at best, hearsay and
conjecture, much of which is entirely unverifiable. Thus, such
information would never be admissible in any trial of Arafat and
consequently, would serve no prosecutive purpose.
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
 Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
04 16 '86 18:05 7 tom. 013 e~5
5
Although neither the law nor the evidence supports a
prosecution for Arafat for the:1973 murders, the Department of
Justice does have jurisdiction 'to prosecute the international
terrorists responsible for many oa the most recent brutal attacks
on Americans abroad. Our extraterritorial jurisdiction has
expanded greatly since 1973 and we are using our enhanced
authority to investigate such barbaric attacks aggressively. We
intend to ensure the identification, apprehension and effective
prosecution of terrorists whose wanton violence targets Americans
abroad. We have commenced investigations of those responsible
for the hijacking of TWA 847, the piracy of the Achille Lauro,
the hijacking of Egyptair 646 and the bombing of TWA 840 and we
intend to prosecute them. The development of these cases has
required substantial investigation abroad and unique cooperative
initiatives with other countries that we hope share our
commitment to bring the perpetrators to justice. With your
permission, I would like to summarize our progress on each of
these cases.
In the case of the June 1985 hijacking of TWA 847 and the
cold-blooded murder of Robert Stethem, the Justice Department has
charged the three hijackers with aircraft piracy and murder in
the special aircraft jurisdiction of the United States.
Complaints against and arrest warrants for the hijackers were
filed under seal in the United States District Court for the
District of Columbia within days of the release of all passengers
and these complaints and warrants were unsealed on October 17,
,nc~ a ,-.ward of inn to $250,000 has been offered for
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
 Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP8~7yB~00858R000600950006-0
11F.J. V A" IL
6
information leading to the apprehension, effective prosecution
and punishment of those responsible for the hijacking. Witnesses
to the hijacking continue to be interviewed by the TBI and a
federal grand jury investigation remains open to receive
evidence.
In the case of the October 1985 piracy of the cruise ship
Achille Lauro and the cowardly murder of Leon Tlinghoffer, the
Department of Justice obtained a complaint and arrest warrant in
the United States District Court for the District of Columbia for
Abu el-Abbas, the mastermind of the attack, ever, before the
ship's American passengers returned to the United States after
their release from captivity. Abbas has been charged with
hostage-taking, piracy and conspiracy. The United States issued
provisional arrest requests for Abbas to Italy and Yugoslavia in
efforts to capture him before he departed those countries after
the apprehension on Sicily of the four terrorists who carried out
the piracy. The Department of Justice also obtained complaints
against and arrest warrants for these four terrorists, charging
them with hostage-taking, piracy and conspiracy. As you know,
the Egyptian aircraft carrying these terrorists to safety out of
Egypt was diverted by United States aircraft to Sigonella, Sicily
on October 11, 1985 to ensure the apprehension of the terrorists.
A reward of up to $250,000 has been offered by the United States
for information leading to the apprehension, effective prosecution
and punishment of Abbas, who remains at large. A federal grand
jury investigation is continuing into the matter. Meanwhile,
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
 ll.y -. 'Lem . r.. n^+
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
7
the four terrorists apprehended on Sicily are in Italian
custody. Last fall, they were tried and convicted by the
Italian authorities for weapons offenses related to the piracy.
They have been sentenced to between four and nine years for those
crimes alone. They are in prison awaiting trial in Italy on
charges of piracy and murder. At this time, the trial against
the four terrorists in custody and ten other persons not in
custody is anticipated to begin in June.
In the case of the November 1985 hijacking of Egyptair 648
and the brutal murder of Scarlett Rogenkamp and the attempted
murders of Scott Patrick Baker and Jackie Pflug, the Department
of Justice has obtained a complaint against and an arrest warrant
for the hijacker who survived the Egyptian rescue mission
conducted in Malta to end the crisis. Based upon this complaint,
the United States submitted a request to Malta for the
provisional arrest of that hijacker currently in custody and
awaiting trial there. This request was submitted to ensure that
if he ever becomes eligible for release from Maltese custody, he
can be placed in our custody. A federal grand jury investigation
into this case is continuing. The Maltese authorities began a
"compilation of evidence" procedure in their courts in January.
This procedure is similar to an American preliminary hearing and
has thus far included the live testimony of members of the
Egyptair flight crew as well as the live testimony of Mr. Baker,
who travelled to Malta specifically for that purpose. The
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
 Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
ew iF rtc 2L~:V-11 7 NL).Oia W?. -
8
Department of Justice is monitoring the Maltese proceedings and
has been informed that the trial of the hijacker will commence at
the conclusion of the "compilation of evidence' procedure,
perhaps as early as next month.
Finally, the Department of Justice has been aggressively
involved in the investigation of the savage bombing of TWA 840
earlier this month, which killed four Americans: Alberto Ospina,
Maria plug, her baby, Demetra plug and her mother, Demetra
Stylian. A federal grand jury investigation has commenced to
receive evidence concerning this attack. In its efforts to
preserve and obtain evidence located abroad and to track down the
perpetrators, the United States has prepared requests for
judicial assistance to transmit to Greece and Egypt seeking all
relevant evidence and information. FBI agents have conducted
preliminary interviews of key witnesses in Athens and Cairc and
are continuing to gather critical investigative data.
Thus, as you can see from the foregoing, the United States
does have adequate legal mechanisms by which to prosecute these
recent terrorist acts. We are, however, very grateful for the
efforts of this Subcommittee, its Chairman, and the full Senate
for the attention they have given and continue to give to several
legislative efforts that are needed to confront terrorism. While
there are numerous matters presently pending in the Congress
relating to terrorism, I will comment only upon those in the
Senate which we believe will be the most beneficial.
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
 pa 1 Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
1. The reinstitution of capital punishment in the federal
system for crimes relating to murder, espionage, and treason is a
priority of this AdministratioP. The full Senate now has S. 239,
which was reported favorably by the Judiciary: Committee, pending
before it. While the full Senate will likely consider floor
amendments to S. 239, -- one of which we anticipate will be an
amendment to add the death penalty to 18 U.S.C. 1203 if the death
of any person results from a hostage-taking situation -- we are
confidant that the Senate will produce a bill that contains the
necessary procedures that will permit the constitutional
imposition of a death sentence. Unfortunately, prior bills
which have passed the Senate to constitutionally impose the death
sentence have languished in the House. Accordingly, we urge that
the Senate give serious consideration to include the substance of
S. 239, as it is finally passed, in a relevant measure upon which
the full House is likely to vote.
2. The murder of and serious assaults upon United States
nationals overseas by terrorists remains the area where the
biggest gap in current federal criminal jurisdiction exists.
Under current law, we cannot prosecute someone for the murder of
Americans who are not internationally protected, unless the
murder takes place in our special maritime, territorial, or
aircraft jurisdiction. Senator Specter and this Subconmittee
recognized this serious gap and led the effort in the Senate's
passage of S. 1429 by a vote of 92 to 0 on February 19, 1986.
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
 Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
tiu 1b 'tit 1W: uc -r W-). 01a
10
Unfortunately, the House Judiciary Comm not disposed to
act upon S. 1429. We believe that the taken by S. 1429
is the most productive and workable array :n this difficult
area. As with the death penalty, we ur: ; the Senate take
steps to include the substance of S. 14: -easure likely to
reach the full House for a vote.
3. On March 18, 1986, the House = ..R. 4151, the
Omnibus Diplomatic Security and Anti-1 Act of 1986.
Presently, the Senate is carefully re-_- this measure.
H.R. 4151 has many sections that the Ad-_ ==on believes will
be beneficial to fight terrorism. One .-ze is Section 508
which creates a mechanism to control t.. -_sion of certain
services to the military, police, and :.-_-ence agencies of
certain designated countries that s= nternational
terrorism. This measure is the essenc- "services' bills
submitted to the 98th Congress (i.e., . -.nd E.R. 5613) by
the President to close the gape ir, fede: that came to light
in the Wilson-Terpil investigations. ection 508 has
somewhat limited the scope of the p:: -_a of the 98th
Congress, we believe it represents the -s: coverage likely
to be granted by the Congress. We v:_., zcest, however,
that Section 508 include appropriate lc= -c clearly indicate
that authorized undercover activities States Government
personnel and their agents are not enc:-~: within the scope
of the provision and that investiga:- =-=rity for any
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
 Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
04 '1b-M iis:Ly 12 NO. 014 0D
offenses be vested in both the Attorney General and the Secretary
of the Treasury. Because the prohibited services would involve
regulatory, export-type violations, which are more within the
investigative expertise of the U. S. Customs Service, and could
at times involve known terrorists, which is the primary
responsibility of the FBI, it is essential that both agencies
have the necessary authority to investigate these cases either
jointly or separately, depending upon the circumstances. We
anticipate that investigative understandings between both agencies
will be readily reached to ensure a coordinated law enforcement
response.
(4) As you well know, recent decisions of U. S. courts have
blocked the extradition of persons accused or convicted of
terrorist acts abroad on the ground that their violent crimes,
including murder, were political offenses. Moreover, similar
provisions in foreign extradition laws have frustrated efforts to
bring accused terrorists to this country for trial. To correct
this situation, the United States has begun negotiations with
selected countries to revise our extradition treaties to preclude
the use of the political offense exception in cases involving
violent crime. The first country with which we have concluded
such a revision in the United Kingdom. The Supplemental United
States-United Kingdom extradition treaty has beer. submitted to
the Senate for ratification and is pending before the Senate
Committee on Foreign Relations. We are hopeful of favorable
consideration of this important anti-terrorism measure by the
Senate within the near future.
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
 Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0
-bt 1t: Vy 7 PC. 014 eel
12
There are, of course, other important anti-terroriarr, matters
of a preventive nature such as -6. 274, the Nuclear Power Plant
Security and Anti-Terrorism Act' of 1985, which was drafted and
sponsored by the Chairman of this Subcommittee and which was
overwhelmingly passed by the Senate last October. The
Administration has also submitted a bill to further improve
airport security. These important measures, if enacted, will
help to further protect Americans from possible terrorist
attacks, especially attacks here in the United States.
Sanitized Copy Approved for Release 2011/03/22 : CIA-RDP87B00858R000600950006-0