---

The Senate continued with the consideration of the conference report

Mrs. Feinstein: Mr. President, I thank the distinguished chairman of the Judiciary Committee for his work on this bill and the distinguished ranking member for his work on this bill.

I am particularly disappointed that the House succeeded in gutting the commonsense prohibition on distributing instructions for bomb making for criminal purposes. I will talk about that in a minute. But the good news is that the conference report also restored good provisions to this bill. I am especially gratified that the conference committee restored my amendment which gives the Secretary of Treasury the authority to require taggants for tracing explosives.

The Senator from Delaware, the distinguished ranking member, just explained what taggants are: simple little coded plastic chips that are mixed with batches of commercially available explosives. They allow law enforcement to trace a bomb that has exploded, just like one would trace a car by knowing the license plate number. That is exactly what taggants are.

It was studied 16 years ago. Everybody said go ahead with it. They have been available. And it has now happened.

Incidentally, it took the Unabomber 18 years to, quite possibly, get caught. Three people have been killed, 23 people have been wounded, in bombs that really plagued nine States. This time could have been cut in half, perhaps, if we had tagging of explosives.

Unfortunately, the bill completely exempts black powder from either tagging or study requirements. I must say, how can a bill even refute the ability to study tagging of black powder? The amendment I submitted on taggants essentially provided for its addition, taggants' addition, where explosives would be bought in larger amounts. But, where small amounts of black powder were purchased to use in antique guns and for small arms, the taggant would not be included.

The NRA opposes this. What the National Rifle Association is clearly saying is they do not want any taggants in black powder explosives period, or even a study of it. Can you imagine the power of an organization that is able to successfully say we will not even study the impact of tagging black powder, which is also used as the triggering device on major explosive bombs that are used by terrorists? I have a very hard time with that.

I heard the distinguished chairman of the Judiciary Committee just say the NRA opposed excluding alien terrorists from this country. The NRA opposed excluding alien terrorists from this country--unbelievable. I think I just heard him say the NRA opposed a prohibition on fundraising in this country by terrorist groups.

Let me tell you something, if anybody believes that Hamas is in this country raising money to use it for charitable purposes, I will sell you a bridge tomorrow. I will sell you a bridge tomorrow. That is just unbelievable to me.

Nevertheless, I thank the chairman of the Judiciary Committee for standing Utah tall in the conference committee on the issue of taggants. I would like to thank Senator Biden and Senator Kennedy for their help as well. I think this is a very important step forward and I do not mean to diminish it in any way.

I also must say that I view the habeas corpus reform also as an important step forward. Abuse of the writ of habeas corpus, most egregiously by death row inmates who file petition after petition after petition on groundless charges will come to an end with the passage and the signature of this bill. I believe it is long overdue.

For anyone who believes that habeas is not abused, let me just quickly--because it has been thrown out before, and I know others want to speak--speak about the Robert Alton Harris case. It, I think, is a classic case on what happened with Federal habeas corpus, and State habeas corpus.

Mr. Harris was convicted in 1978 for killing two 17-year-old boys in a merciless way, eating their hamburgers, and then going out and robbing a bank.

His conviction became final in October of 1981. Yet, he was able to delay enforcement of the California death penalty capital sentence until April 21, 1992--for 14 years.

Over that time, he filed no fewer than 6 Federal habeas petitions and 10 State petitions. Five execution dates--five execution dates--were set during the pendency of his case. In all, Harris and his attorneys engineered almost 14 years of delay and piecemeal litigation by misuse of habeas corpus, and, I might say, it was 14 years of unresolved grief for the parents of the children.

I think cases like that one point out the need for habeas corpus reform, and, frankly, I want to commend the Judiciary Committee, and in particular the chairman, for seeing that that is included.

Senator Hatch also just mentioned the pathogens incident. In the Judiciary Committee, we had some full hearings, that were rather chilling to many of us, on how easy it is to obtain human pathogens.

I cannot help but note that the Chair is a distinguished physician and surgeon who knows this area well. But what we found out, essentially, is that one person--namely, Larry Wayne Harris--managed to order and to receive samples of bubonic plague through the mail less than a year ago.

Incredibly, although he was caught, he could be charged with only wire and mail fraud, because there were no laws on the books prohibiting the possession of bubonic plague pathogens. In fact, he made up a letterhead and sent it in to a lab, asked to purchase the plague bacteria, and it was sent to him, no questions asked. So this bill clearly takes care of that problem.

It adds that any attempt, threat, or conspiracy to acquire dangerous biological agents for use as a weapon are crimes punishable by fines or imprisonment, up to life imprisonment.

It also asks the Secretary of HHS to establish and maintain a list of biological agents which pose a severe threat to the public safety, and it directs the Secretary to establish enforcement and safety procedures for the transfer of human pathogens.

As a matter of fact, a number of us wrote a letter to the President and urged that emergency action be taken quickly because of the potential ability of people to acquire these bacteria prior to the enactment of this statute.

I want to also express my thanks that fundraising by terrorist organizations will be prohibited in the United States of America. I think it is extraordinarily important that this take place.

I am also very pleased that there is a section, known as 330, of the conference report--which, as a matter of fact, I offered--which prohibits the United States from selling weapons and defense services to countries that the President determines are not fully cooperating with U.S. antiterrorism efforts.

This is a commonsense provision, and I am amazed that there has been nothing in law that meets it. But there certainly is no reason the United States should continue to provide weaponry to any country that refuses to do all it can to combat terrorism.

My big disappointment--and I think because the Presiding Officer is relatively new to this body, he would be interested to know--is that on the Internet today, there is a volume called The Terrorist Handbook. The Terrorist Handbook describes how you can make bombs, whether those bombs are in baby food jars, in electric light bulbs or in telephones. To my knowledge, there is no legal use for a bomb in a baby food jar, for a bomb in a light bulb, or for a bomb in a telephone. You know that once you teach somebody how to do that, their only use of the knowledge is to slaughter and to kill.

So I have a very hard time understanding why simple language, which says if you knowingly publish material with the intent of enabling someone to commit a crime, shall not be permitted.

Let me quote the February 2, 1996, New York Times Metro section. Headline: "3 Boys Used Internet to Plot School Bombing, Police Say."

Three 13-year-old boys from the Syracuse area have been charged for plotting to set off a home-made bomb in their junior high school after getting plans for the device on the Internet. The boys, all eighth graders at Pine Grove Junior High School in the suburb of Minoa, were arrested Wednesday by the police. "There is no doubt that the boys were serious," the captain said, adding that they've recently set off a test bomb in a field behind an elementary school and that it started a small fire.

This cartoon is exactly what is happening all across the United States with young people. The cartoon is a youngster, sort of a Dennis- the-Menace type sitting at his computer, wrapping dynamite and attaching a detonation and clock device to it, while his mother is on the telephone saying "History * * * astronomy * * * science * * * Bobby is learning so much on the Internet."

I have another article. The Los Angeles Times, just this past Saturday, April 13: "Four Teens Admit to Bombs in Mission Viejo School Yard."

The boys, all 15- and 16-year-olds, told investigators they learned how to build the small high-pressure explosives from friends who got it off the Internet. According to the chief, who is then quoted, "It's something they're getting off the Internet. Any time you mix volatile chemicals and have a little bit of knowledge, you put yourself and others in jeopardy."

A third article, Orange County Register, "2 Home-Made Bombs Dismantled in Orange" County.

Authorities theorize that teens are learning how to make the 2-liter bottle devices on the Internet. Ladies and gentlemen, how far do we wish to push the envelope of the first amendment?

Let me tell you what is also in this "Terrorist Handbook." People say, "Well, we have a first amendment right." There is a part on breaking into a lab. This "Terrorist Handbook," which we downloaded yesterday on the Internet, let me quote from it. The first section deals with getting chemicals legally. This section deals with procuring them.

The best place to steal chemicals is a college. Many state schools have all of their chemicals out on the shelves in the labs, and more in their chemical stockrooms. Evening is the best time to enter a lab building, as there are the least number of people in the building and most of the labs will still be unlocked. One simply takes a bookbag, wears a dress shirt and jeans, and tries to resemble a college freshman. If anyone asks what such a person is doing, the thief can simply say he's looking for the polymer chemistry lab or some other chemistry-related department other than the one they are in.

Then it goes on and it tells them how to pick the lock to break into the chem lab. It tells them what kind of chemicals to steal from the chem lab, and then to go out and how to make the bomb--baby food bomb, telephone bomb, light bulb bomb.

We know people are following this. Yet this conference committee deleted--deleted--a simple amendment which said, if you knowingly publish this kind of data with the view that someone will commit a crime, that is illegal--that is illegal. The conference committee voted it down, I would take it, at the behest of the National Rifle Association. Why? I cannot figure out why. I cannot to this day figure out why.

Let me give you one other quote that was on the Internet. It tells you where to go.

Go to the Sports Authority or Hermans sports shop and buy shotgun shells. At the Sports Authority that I go to you can actually buy shotgun shells without a parent or adult. They don't keep it behind the little glass counter or anything like that. It is $2.96 for 25 shells.

Then the computer bulletin board posting provides instructions on how to assemble and detonate the bomb. It concludes with:

If the explosion doesn't get 'em, then the glass will. If the glass doesn't get 'em, then the nails will.

This is what, by rejecting my simple amendment, the conference is saying is permissible on the Internet.

Let me give you one last thing so that it is, hopefully, indelibly etched in everybody's mind what we are doing. Following Oklahoma City, this was on the Internet.

"Are you interested in receiving information detailing the components and materials needed to construct a bomb identical to the one used in Oklahoma?" The information specifically details the construction, deployment, and detonation of high powered explosives. It also includes complete details of the bomb used in Oklahoma City and how it was used and how it could have been better.

How far are we pushing the envelope of the first amendment? What I have tried to show is that not only is this kind of thing with knowledge, with intent, on the Internet, but that youngsters are using it. They have used it within the last 2 weeks in New York, in California, and they have used it to do bodily harm to others.

So this is my big disappointment in this bill, because I believe we have as much to fear from domestic terrorism, as I think the Unabomber has pointed out, as we do from foreign terrorism. It begins right here at home. It begins with a system that lets everybody do anything they want, including telling you how to steal, break in and steal the chemicals, make the bombs, go out and deliver them.

I believe it is the job of this Congress to try to do something about it. With that in mind, I will support the amendment to recommit this to committee. I realize that that is a useless gesture, but just to make the point.

I will vote for this legislation and I will at the earliest time possible reintroduce my amendment on another bill to take another crack at saying the time has come for the United States of America to say, indeed, everything does not go. There are some restrictions and some things that we are going to do to stop criminality in this country. I thank the Chair and I yield the floor.

Mr. Thurmond: Mr. President, I served as a conferee representing the Senate, and I am pleased that the House and Senate conferees have resolved the differences between our respective bills to combat terrorism. We must send a clear message to those who engage in this heinous conduct that the American people will not tolerate cowardly acts of terrorism, in any fashion--whether their source is international or domestic.

It is important that the Congress work closely with Federal law enforcement to provide the necessary tools and authority to prevent terrorism. Yet, I am mindful that an appropriate balance between individual rights guaranteed in the Constitution and the needs of law enforcement must be achieved as we meet our responsibility. The American people appropriately look to their government to maintain a peaceable society but do not want law enforcement to stray into the private lives of law-abiding citizens. The balance is to provide reasonable authority to law enforcement to investigate and prevent terrorism while respecting the rights of the American people to form groups, gather and engage in dialog even when that dialog involves harsh antigovernment rhetoric.

Mr. President, it is my belief that this conference report will enhance law enforcement capabilities to combat terrorism while respecting our cherished rights under the Constitution. This legislation includes provisions to increase penalties for conspiracies involving explosives and the unauthorized use of explosives, enhance our ability to remove and exclude alien terrorists from U.S. territory, provide private rights of action against foreign countries who commit terrorist acts, prohibit assistance to countries that aid terrorist states financially or with military equipment, and enhance prohibitions on the use of weapons of mass destruction. Also, there are a number of other measures designed to combat terrorism which were included and detailed earlier by the able chairman of the Judiciary Committee, Senator Hatch.

Clearly, one of the most important sections included in the conference report is language designed to curb the abuse of habeas corpus appeals. In fact, we heard from families of the Oklahoma bombing victims who demand that habeas reform be included to make this a truly successful bill.

Mr. President, for years, as both chairman and ranking member of the Senate Judiciary Committee, I have worked for reform of habeas corpus appeals. The habeas appellate process has become little more than a stalling tactic used by death row inmates to avoid punishment for their crimes.

Unfortunately, the present system of habeas corpus review has become a game of endless litigation where the question is no longer whether the defendant is innocent or guilty of murder, but whether a prisoner can persuade a Federal court to find some kind of technical error to unduly delay justice. As it stands, the habeas process provides the death row inmate with almost inexhaustible opportunities to avoid justice. This is simply wrong.

In my home State of South Carolina, there are over 60 prisoners on death row. One has been on death row for 18 years. Two others were sentenced to death in 1980 for a murder they committed in 1977. These two men, half brothers, went into a service station in Red Bank, SC, and murdered Ralph Studemeyer as his son helplessly watched. One man stabbed Mr. Studemeyer and the other shot him. It was a brutal murder and although convicted and sentenced to death these two murderers have been on death row for 15 years and continue to sit awaiting execution.

The habeas reform provisions in this legislation will significantly reduce the delays in carrying out executions without unduly limiting the right of access to the Federal courts. This language will effectively reduce the filing of repetitive habeas corpus petitions which delays justice and undermines the deterrent value of the death penalty. Under our proposal, if adopted, death sentences will be carried out in most cases within 2 years of final State court action. This is in stark contrast to death sentences carried out in 1993 which, on average, were carried out over 9 years after the most recent sentencing date.

Mr. President, the current habeas system has robbed the State criminal justice system of any sense of finality and prolongs the pain and agony faced by the families of murder victims. Our habeas reform proposal is badly needed to restore public confidence and ensure accountability to America's criminal justice system.

We have a significant opportunity here to fight terrorism and provide certainty of punishment in our criminal justice system. The preamble to the U.S. Constitution clearly spells out the highest ideals of our system of government--one of which is to "insure domestic tranquility." The American people have a right to be safe in their homes and communities.

I am confident that this antiterrorism legislation will provide valuable assistance to our Nation's law enforcement in their dedicated efforts to uphold law and order.

I yield the floor.

Mr. Nickles addressed the Chair.

The Presiding Officer (Mr. Grams) The Senator from Oklahoma.

Mr. Nickles: Mr. President, first, I would like to thank Senator Dole for setting aside the immigration bill, the illegal immigration bill, temporarily so we can pass this terrorism conference report.

I might mention to my colleagues this is a conference report and is not really amendable. It does not mean we do not have parliamentary procedures and it does not mean people cannot delay or procrastinate or mean we cannot say we can send it back to the conference with specific amendments. They have the right to do so. But I am going to urge my colleagues not to do so. If we do so, we are not going to finish this bill. I would like to finish this bill this week.

I would really like to compliment my colleagues, Senator Hatch, and also Senator Biden, as well as our colleague in the House, Chairman Hyde, for their work in the last couple of weeks in melding the two bills together.

This is a compromise bill. I do not make any bones about it. It is probably not perfect. But it is a good bill, and it needs to pass, and it needs to pass this week. If we recommit this bill, we are not going to get it done this week. So I urge my colleagues, it might be tempting and it may be politically appealing, for whatever reason, to recommit this bill and to score some points or run against the NRA or whatever, but I urge them to set that aside.

Let us pass this bill. This is a positive bill. It is a good bill. It is a bill that has very, very strong support and a lot of emotional connections in my State. I think everybody is well aware of the fact that this Friday is the first anniversary of the Oklahoma City bombing that took 168 innocent lives of men, women, and children. The families of those victims have urged us to pass this bill. They have admitted maybe this bill is not perfect, but they think it is a good bill. I have met with several of the victims and families of the victims. They said, please pass this bill.

The No. 1 provision that they want in this bill is the so-called habeas corpus reform. They want an end to these endless appeals of people who have been convicted of atrocious crimes and murders. An end to abusing the judicial system, abusing taxpayers, filing frivolous appeals, endless, endless appeals.

In Oklahoma actually several were wearing buttons that had a 17 with a line through it. They were referring to Roger Dale Stafford. In 1978, he murdered nine individuals in my State. First he murdered the Lorenz family--he was a sergeant. Sergeant Lorenz saw a stopped car with the hood up. So he pulled over and stopped to help Stafford. Lorenz was with his wife and his child. Roger Dale Stafford murdered him, murdered his wife, and went back into the car and murdered their son; and then shortly after that murdered six people. Most of them were kids in a Sirloin Stockade restaurant. He herded them into a freezer or refrigerator and murdered them in cold blood.

That was in 1978. His execution did not happen until last year, 1995. He was on death row for 17 years. The families of the victims of the Oklahoma City bombing have said we need habeas corpus reform. This is a Federal crime. They will be tried under Federal statute. The death penalty does apply. If convicted, they would like to have the sentence carried out swiftly, not 20 years from now. They feel very, very strongly about it.

I want to thank my colleagues for working over the last couple of weeks when the Senate was in recess. We do not usually do that. It does not happen very often around here. Usually we have a break or recess for whatever reason and staffs and Senators take off and not a lot of work is done. But this time was different.

I also again want to thank Senator Dole and also Speaker Gingrich because I personally appealed to both and said I would really like to get this bill up and passed through both Houses of Congress by this anniversary date. I would like to go back to Oklahoma on Friday and tell the families that, yes, we have passed this antiterrorism bill.

It has a lot of provisions, a lot of good provisions. I realize in the legislative process we make some compromises. It has been pointed out maybe there are a couple of provisions that should not be in or have been left out. My colleague from Delaware mentioned expanded wiretaps. A lot of people in my State have real second thoughts about that. I do not know. I supported it when it passed the Senate. It may be a good provision. Maybe I was wrong. I am not sure.

I am not an expert in that area, but I know that habeas corpus reform, or death penalty reform, needs to pass. That is the foremost thing on the minds of the victims of the Oklahoma tragedy. If we send this back to committee, we will not be able to pass this bill this week. I will be more than disappointed if that happens.

We have a couple of other provisions that are very important to the people of Oklahoma. We put in a provision, and I want to thank my colleagues, both Senator Hatch and Senator Biden for supporting this provision, that will allow and actually provide for closed circuit TV viewing of the trial proceedings in the Oklahoma bombing case. Unfortunately, the trial was moved to Denver. In Denver they have a courtroom, I believe, that holds 130 people. The judge said we will have an annex for audio, so in total, maybe 260 people including press would have the opportunity to attend or hear the trial. Frankly, that is not enough. That is not near enough. Not to mention the fact that the individuals and families would have to travel over 500 miles, and be away from the rest of their family. It would be an enormous inconvenience. We have raised some money to assist them. I am sure some families would like to personally attend the trial and we will try and help them financially, as well.

I thank the Attorney General for helping in that manner. She wrote me a letter saying they were contributing the travel fund. I asked the Attorney General's assistance so that those who could not travel to Denver could view the trial through closed circuit TV coverage. We think that a decision to permit this by the court is discretionary and it should happen. Unfortunately, she has declined to help us with the closed circuit TV provision. This bill says that the court must provide closed circuit coverage of the trial for victims and their families. It will be closely monitored. The court will have complete control over the coverage. This is not for public viewing but for the families, so they can view the trial without leaving their home, without leaving the rest of their families, maybe without having to take several months off from their jobs or their workplaces. This is going to be a very traumatic time for them and it would be much better for them as individuals to be able to view this at home and still be able to be with their family members and friends instead of dislocating them for several months, sending them to Denver, and only a very small percentage of them being able to even be present in court, and be more than frustrated by being so close yet so far away because they would not have access to the proceedings in the trial.

I am appreciative of this one provision, and again I thank my colleague from Utah and my colleague from Delaware for inserting this provision. There is a comparable provision in the House bill. This is most important to the families of the victims of the Oklahoma City bombing.

Finally, I want to comment on one other provision. This bill provides for mandatory restitution for victims of Federal violent crimes, property crimes, and product tampering crimes. This is a measure that we have spoken about on the floor of the Senate countless times. This is a measure that has passed the Senate three or four times. This is a measure that has bipartisan support. Senator Biden, Senator Hatch, myself, and others have worked to put this in. We have passed it in various crime control packages in the past. Unfortunately, when we have had a conference it has not remained in the conference package. This is a most important provision where we do give respect, treatment and assistance for the victims of crime--mandatory restitution for victims. We should pay more attention to victims instead of to the criminals, as we have done in the past. I am most appreciative. This is a very important provision.

I think our colleagues have put together a good bill. It may not be perfect. I have heard my colleague from Utah say, well, as far as some of the other provisions, maybe the provision that was alluded to by our colleague from California dealing with Internet and directions for explosives, that may be a good provision. I may well support it. It does not have to be in this package. I hope that if there are other good provisions not included in this bill, we can garner overwhelming support in the Senate, we can take them up separately and pass them this year. I would like to think that we have a window of opportunity of a couple of months where we can pass substantive legislation without playing politics. I hope we do not play politics with this bill.

I keep hearing statements about the NRA and others, there are a lot of people that are concerned about expanding wiretap authority and they do not have anything to do with the NRA. Maybe that is a good provision. I am not debating that. Maybe it should be debated, but debate it separately. If we put some of those provisions in, there will be problems in the House and we will not pass this bill this week. To me that would be a real shame. That would be something that we should not do. This is an important bill. This is a good bill, a bill that should pass, that should pass tonight. I would hope that my colleagues would join together, resist the temptation to send this back to conference, knowing it would delay it. Hopefully, they would join us in saying, "Let's pass this bill," and if we want to consider separate measures dealing with taggants or anything else that was originally in the House bill or originally in the Senate bill, or maybe originally in the President's bill, we can consider that independently.

This is a conference report. Most of our colleagues are aware of the fact we do not usually amend conference reports, and if we do, we could put unnecessary delay on this legislation which would be a serious mistake. On behalf of the victims of the tragedy that happened on April 19, 1995, in Oklahoma City, on behalf of the families and the countless number of people who were impacted directly, I urge my colleagues, let Members pass this bill, pass this bill tonight, no later than tomorrow, get it through the House, as well, so we can let them know that we have listened to them, we have heard them, and we have passed a good antiterrorism bill with real habeas corpus reform, with real death penalty reform, with a provision allowing them to have closed circuit TV viewing of the trial. I think they will be most appreciative. I know they will be most appreciative.

I yield the floor.

Mr. Inhofe: Mr. President, I have listened to the debate not just today but the debate on this for the past year. I remember so well the incident, when my fellow Senator from Oklahoma, Senator Nickles, and I were in Oklahoma City right after it happened for the days following that, talking to families and the ones who actually had their own loved ones that were still in the building, not knowing whether they were alive or dead.

It is very difficult to get the full emotional impact watching TV of some remote place like Oklahoma from outside. When you are there, you feel differently about it. This is why Senator Nickles and I have such strong feelings about this bill.

There is some opposition in this bill even in the State of Oklahoma by many people who felt that perhaps the wiretapping provisions went a little bit too far, the invasion of civil rights and privacy, perhaps was a little too strong. Many of my conservative friends did not want me to support it.

I was very pleased when the conference came out with its report. I believe the bill we have today is better than the House bill was. It is better than the Senate bill that we sent to them. I feel much stronger about it now and much more supportive than I did before. I think Senator Nickles has covered most of the things that people in Oklahoma are concerned with. I can just tell you it is not a laughing matter that these people do want an opportunity. These are not wealthy people. They feel they should participate, at least be able to view the trial taking place. That is something that is in this bill. It will allow them to do it. Many of them could not sustain the hardship of making a trip to Denver.

There are a lot of things in here that I think are better than they were when we sent it over. The one area I want to concentrate on and just emphasize again is the habeas reform. My concern, and in fact, I can tell you, if that had been taken out I probably would have opposed the bill. Two months after the tragedy, the bombing tragedy in Oklahoma City, we had the families of the victims up here, in Washington, DC. I personally took them to many Senators' offices. They expressed to them that of all the provisions that would come out in an antiterrorism bill, the one that was the most significant to them was the habeas reform.

It happened to coincide with something that Senator Nickles and I are very familiar with, a murder that had taken place 20 years ago, by a man named Roger Dale Stafford. Roger Dale Stafford murdered nine Oklahomans in cold blood. He sat on death row for 20 years. We just finally carried out that execution. These families are looking and saying, "Here is a guy that sat on death row. He gained over 100 pounds, so the food was not too bad. He was in an air-conditioned cell and watched color TV." They are thinking about what happened to their own members of their family. I look at it behind that. If you get someone with a terrorist mentality, and particularly, someone, perhaps, from the Middle East who has a different value on life than we do, if he is looking at the down side and saying, should I do this act, should I perform this act, and the worst thing that can happen to me is that I will sit in an air-conditioned cell and watch color TV for 15 years, punishment ceases to be a deterrent to crime.

So I think that is a very significant provision that has to be saved. I think any chance on sending this back might jeopardize the chances of having that type of reform. Again, that was the one thing that was in this bill that the families of the victims in Oklahoma said we really have to have; that is the one thing that has to be in there that is going to give us any relief at all. Once the person is apprehended and the trials and sentence are over, and if it is an execution, they want to go ahead and go through with it and not have the perpetrator of the crime that murdered their families sitting on death row for most of their lifetimes.

So I think this is a very good bill. I will just repeat an emotional appeal from the victims and families of the victims in Oklahoma. Let us get this passed and let us get it passed before April 19, on Friday. It is very, very important for us, and I hope we move along on this. We have been considering this for quite a period of time. We started right after the bombing. So we have had adequate time to be deliberative--as deliberative as this body is famous for being. I think it is time to go ahead and pass it.

I yield the floor.

Mr. Faircloth addressed the Chair.

The Presiding Officer: The Senator from North Carolina.

Mr. Faircloth: Mr. President, I rise in strong support of the antiterrorism conference report.

First, it is with great sadness that we approach the first anniversary of the bombing in Oklahoma City. It was truly a tragic event carried out by premeditated and dreadful murderers. I just hope that the people that carried out that act get the justice they so deserve.

Mr. President, one of the most important reforms made by this bill are those reforms to our death penalty procedures. For too long, murderers have been on death row, filing appeal after appeal, in the hopes of finding some small legal loophole--anything they can find that will nullify their sentence.

The people of this country are sick and tired of murderers being put on death row and then sitting there, as Senator Inhofe said, watching television, getting fat, and at an enormous cost to the American taxpayers.

Mr. President, since the death penalty was reestablished in 1977, over 400,000 people have been murdered. But only 200 have been executed. This is hardly a message that our justice system is swift or sure to those that break the law.

In my home State of North Carolina, we have over 100 people on death row, with an estimated cost of close to $50,000 a year to keep them there--per person. Yet, in the last 16 years, only 5 people have had the death sentence carried out in North Carolina, with 100 waiting. There have been delays, delays, and more delays, simply using one loophole behind another. Simply, the executions have not been carried out, at an enormous cost to the State of North Carolina for attorneys to fight these endless appeals.

In the United States, as a whole, there are over 2,700 people on death row. Over half have been there longer than 6 years. Further, of those on death row, over half were on probation or parole when they were arrested for murder. What does this say about the justice system?

Is it any wonder that crime has increased 41 percent in the last 20 years? Is it any wonder that violent crime has increased by 100 percent in the last 20 years? Our judicial system has been made a mockery by those who set out to break the law.

For those that carried out the Oklahoma City bombing, they probably never thought they would get caught. Fortunately, and luckily, with good police work, they were caught. But they probably believe that they can beat the system. I hope not, but I am sure they believe it. They probably think they can make a mockery of the justice system, as so many others have. Certainly, we will be hiring the most expensive lawyers out there to help them to beat the system.

In this country, we need to reestablish a respect for the law. Criminals need to know that if they commit murder, they will receive the death penalty. And, more importantly, they need to know that it will be carried out, and they will not be held on death row with endless delays.

With this bill, we finally have broken the logjam on the issue. We keep passing bill after bill that increases penalties and provides new capital offenses; yet, we do nothing to reform our justice system to see that the punishment is carried out.

Finally, we have done something to end the frivolous appeals filed by death row inmates.

Mr. President, I support this conference report. I thank Senator Hatch, and others, who have pushed death penalty reform to the forefront in this bill.

I yield the floor.

Mr. Biden: Mr. President, I hope both of my friends from Oklahoma and my friend from North Carolina--speaking to my friends from Oklahoma-- understand that we do not want the delay in this bill. This bill got delayed in the House of Representatives for close to 6 months. I did not hear people coming to the floor with me and saying, "Where is the bill, where is the bill, where is the bill, where is the bill?" Now we are told to make this bill workable, and we should not attempt to do better.

I cannot believe the Senator from North Carolina would support a provision allowing, for example, someone to be taught how to make another fertilizer bomb to blow up another Federal building--maybe this one in North Carolina--and maybe learn how over the Internet. He would not want that to happen. Yet, he is probably going to vote against adding that provision back into the bill. He will probably vote, "No, I will not send it back to the conference and have them include that provision."

We had a provision saying you cannot teach people how to make fertilizer bombs, plastic bombs, and baby food bombs on the Internet, when you know the intent is for that person to use it. Yet, they are all going to stand here and vote against me on that. I find that fascinating.

I hope the folks in every one of our districts remember this. They are going to vote against me when I say we want to prevent future Oklahomas. We want to take care of those victims of Oklahoma and make sure retribution is had. That is why the crime bill I authored set the death penalty for it. And there would not even be a death penalty had President Clinton's crime bill not passed. Those people in Oklahoma would not be able to get the death penalty.

Some of my colleagues voted against the crime bill, and now they are hailing the death penalty. The only reason why those people are being tried and, if convicted, will get death, is because of the crime bill they voted against. I find this kind of fascinating logic going on here.

The third thing I point out, and that was tried in Federal court--and then I will yield to my friend from Georgia, who has a very important amendment or very important motion to make--I also point out that we should be worried about future victims. Future victims.

The comment was made--and a legitimate comment--by one of my colleagues a moment ago, when he said, "On behalf of the victims of the bombing in Oklahoma, please pass this bill." On behalf of the tens of millions of Americans who may be the next victims, on behalf of them, please give the police the authority they need to enhance their ability to prevent future Oklahomas by allowing them to wiretap these suspected terrorists under probable cause, just like we do the Mafia. What is good enough for the Mafia ought to be good enough for a bunch of whacko terrorists.

So not only mourn those who died, which I do, but pray for those who are living that they continue to be able to live. I mean, how in the Lord's name can we, after Oklahoma, stand here on the floor and vote against the motion I predict they will vote against which says you cannot teach someone how to make a fertilizer bomb on the Internet when you know it is going to be used? They are going to vote against that. What about future Oklahomas?

I see my friend form Georgia is ready to proceed. So I will yield the floor for the purpose of his making his motion after I make a concluding statement.

In each of these amendments that I offered yesterday, Chairman Hyde in the transcript of yesterday's proceedings said--this is what this is all about--and I quote. He said:

Mr. Chairman, [Chairman Hyde speaking] may I say something?

Mr. Chairman, let us cut to the chase. I agree with the Senator [i.e. Senator Biden] and have always agreed with the Senator on this issue, the wiretap issue. The facts of life are that we lose about 35 votes in the House if we pass the wiretap provision.

That is what this is about--35 folks in the House who do not like it. That is why we are going to vote against our interest probably in the next couple of hours.

I yield the floor.

Mr. Hatch: Mr. President, if I could take a second.

The Presiding Officer (Mr. Brown): The Senator from Utah.

Mr. Hatch: I agree with the 35, but all of those oppose the bill anyway. But it is a lot more than 35 people who will vote. I just wanted to make that statement.

I thank the Senator from Georgia.

Mr. Nunn: Mr. President, I urge my colleagues to support Senator Biden's motion which he will, I understand, make in a few minutes--I do not think it has yet been made--to recommit the conference report because it fails to address a very significant gap in the law which we corrected when we passed the Senate bill regarding the use of chemical and biological weapons of mass destruction in criminal terrorist activities.

The Armed Forces have special capabilities, and they are the only people that have special capabilities to counter nuclear, biological, and chemical weapons. They are trained and equipped to detect, suppress, and contain these dangerous materials in hostile situations. The police authorities of our country and the fire departments of our country do not have the capability to deal with chemical and biological attacks or the threat of those attacks. They do not have the equipment. They do not have the protective gear.

We have had four hearings in the last 6 weeks in the Permanent Subcommittee on Investigations, of which I am the ranking member and Senator Roth is the chairman. Let us be very clear. With the testimony from law enforcement officials, from fire officials, from city officials, State officials, and from our own people in the Federal Government, that, if there were a chemical or biological attack in this country, we would have as the first victims those who came to the rescue. It would be those personnel coming to the rescue of those innocent victims who are caught in that situation that would also become victims themselves because they are not equipped to detect. They are not equipped to really deal with and they certainly are not equipped to withstand the lethal capability of chemical and biological weapons. Over a period of time they may be able to.

One of the things I am going to be talking about in the weeks ahead is a package of legislation which I hope Senator Lugar and I will be sponsoring. One of the things we are going to need to do is to give, I think, our military both the capability with funding and also the authority and responsibility to help begin training our police and law enforcement officials around the country. It is going to take a long time.

We are in a different era now, Mr. President. One of the things that many people do not recognize after the attack in Tokyo where the avowed goal of the group that had really prepared very extensive capabilities for chemical warfare on their own people is that if they had the kind of delivery system that a few weeks later they might have had, instead of 15 or 20 people being killed and several hundred being injured, there literally would have been tens of thousands of deaths right there in Tokyo. We are in that era now.

A lot of people do not also understand that in the World Trade Center bombing there was really very strong evidence that a chemical component was in the explosive material. There was an attempted effort at chemical attack there also, but the chemical element was consumed by the huge fire and explosion. So we have had that attempt also in this country.

My point is that it is a very dangerous omission in not giving the kind of clear authority in this conference report that we had in the Senate bill.

At the present time the statutory authority to use the Armed Forces in situations involving the criminal use of weapons of mass destruction extends only to nuclear material. Section 831 of title 18, United States Code, permits the Armed Forces to assist in dealing with crimes involving nuclear materials when the Attorney General and the Secretary of Defense jointly determine that there is an emergency situation requiring military assistance. There is no similar authority to use a special expertise in the Armed Forces in circumstances involving the use of chemical and biological weapons of mass destruction.

In the wake of the devastating bombing of the Federal building in Oklahoma City and also the World Trade Center, with the tragic loss of life in Oklahoma and the disruption of governmental facilities, I think it is appropriate and absolutely necessary to reexamine Federal counterterrorism capabilities, including the role of the Armed Forces.

For more than 100 years, military participation in civilian law enforcement activities has been governed by the Posse Comitatus Act. The act precludes military participation in the execution of laws except as expressly authorized by Congress. That landmark legislation was the result of congressional concern about increasing use of the military for law enforcement purposes in post-Civil War era, particularly terms of enforcing the reconstruction laws in the South and suppressing labor activities in the North.

There are about a dozen express statutory exceptions to the Posse Comitatus Act, which permit military participation in arrests, searches, and seizures. Some of the exceptions, such as the permissible use of the Armed Forces to protect the discoverer of Guano Islands, reflect historical anachronisms. Others, such as the authority to suppress domestic disorders when civilian officials cannot do so, have continuing relevance--as shown most recently in the 1992 Los Angeles riots.

It is important to remember that the act does not bar all military assistance to civilian law enforcement officials, even in the absence of a statutory exception. The act has long been interpreted as not restricting use of the Armed Forces to prevent loss of life or wanton destruction of property in the event of sudden and unexpected circumstances. In addition, the act has been interpreted to apply only to direct participation in civilian law enforcement activities--that is, arrest, search, and seizure. Indirect activities, such as the loan of equipment, have been viewed as not within the prohibition against using the Armed Forces to execute the law.

Over the years, the administrative and judicial interpretation of the act, however, created a number of gray areas, including issues involving the provision of expert advice during investigations and the use of military equipment and facilities during ongoing law enforcement operations.

During the late 1970's and early 1980's, I became concerned that the lack of clarity was inhibiting useful indirect assistance, particularly in counterdrug operations. I initiated legislation, which was enacted in 1981 as chapter 18 of title 10, United States Code, to clarify the rules governing military support to civilian law enforcement agencies.

Chapter 18, as enacted and subsequently amended, generally retains the prohibitions on arrest, search, and seizure, but clarifies various forms of assistance involving loan and operation of equipment, provision of advice, and aerial surveillance. Chapter 18 does not authorize military confrontations with civilians in terms of arrests, searches, and seizures. Chapter 18 also ensures that DOD receives reimbursement for military assistance that does not serve provide a training benefit that is substantially equivalent to that which would otherwise be provided by military training or operations.

The administration requested legislation that would permit direct military participation in specific law enforcement activities relating to chemical and biological weapons of mass destruction similar to the exception that already exists under current law that permits the direct military participation in the enforcement of the laws concerning the improper use of nuclear materials.

Mr. President, the nuclear kind of incident is entirely possible. We have to be prepared for it. We are much better prepared to deal with nuclear than we are with chemical or biological. We have the capability in the Department of Energy with a team that has been training and working on this for years, and they are much better prepared. We do not have a similar capability for chemical or biological.

So by the omission of this specific authority in this bill, we are taking the most likely avenue of attack for terrorism in this country with mass-destruction weapons--and that is chemical or biological--and we are not putting that in the same category as nuclear, which is possible, and we must be prepared for it. But a nuclear attack is not as likely to happen as a chemical or biological attack.

Last June, the Senate included such legislation in the counterterrorism bill with safeguards to ensure that it would only be used in cases of emergency and under certain specific, carefully drawn limitations. In my judgment, the question of whether we should create a further exception for chemical and biological weapons should be addressed in light of the two enduring themes reflected in the history and practice and experience of the Posse Comitatus Act and related statutes:

First, the strong and traditional reluctance of the American people to permit any military intrusion into civilian affairs.

Second, the concept of any exception the Posse Comitatus Act should be narrowly drawn to meet the specific needs that cannot be addressed by civilian law enforcement authority. The record is abundantly clear that we are talking about exactly that. These are cases where local law enforcement and State law enforcement simply could not handle the job.

These issues were examined at a hearing before the Judiciary Committee on May 10, led by the chairman of the committee, Senator Hatch, and the ranking minority member, Senator Biden. At the hearing, five major themes emerged:

First, we should be very cautious about establishing exceptions to the Posse Comitatus Act, which reflects enduring principles concerning historic separation between civilian and military functions in our democratic society.

Second, exceptions to the Posse Comitatus Act should not be created for the purpose of using the Armed Forces to routinely supplement civilian law enforcement capabilities with respect to ongoing, continuous law enforcement problems.

Third, exceptions may be appropriate when law enforcement officials do not possess the special capabilities of the Armed Forces in specific circumstances, such as the capability to counter chemical and biological weapons of mass destruction in a hostile situation.

Fourth, any statute which authorizes military assistance should be narrowly drawn to address with specific criteria to ensure that the authority will be used only when senior officials, such as the Secretary of Defense and the Attorney General, determine that there is an emergency situation which can be effectively addressed only with the assistance of military forces.

Fifth, any assistance which authorizes military assistance should not place artificial constraints on the actions military officials may take that might compromise their safety or the success of the operation.

The Senate provision was drafted to reflect the traditional purposes of the Posse Comitatus Act and the limited nature of the exceptions to that act. The motion to recommit that we will be voting on in a few minutes would require the conferees to reinstate that provision with a minor technical clarification that has come to our attention since the Senate bill was passed.

Under the motion to recommit, the Attorney General would be authorized to request the assistance of the Department of Defense to enforce the prohibitions concerning biological and chemical weapons of mass destruction in an emergency situation.

The Secretary of Defense could provide assistance upon a joint determination by the Secretary of Defense and the Attorney General that there is an emergency situation, and a further determination by the Secretary of Defense that the provisions of such assistance would not adversely affect military preparedness. Military assistance could be provided under the motion to recommit only if the Attorney General and the Secretary of Defense jointly determined that each of the following five conditions is present. This is very narrowly drawn.

First, the situation involves a biological or chemical weapon of mass destruction.

Second, the situation poses a serious threat to the interests of the United States.

Third, that civilian law enforcement expertise is not readily available to counter the threat posed by the biological or chemical weapon of mass destruction involved.

Fourth, that the Department of Defense special capabilities and expertise are needed to counter the threat posed by the biological or chemical weapon of mass destruction involved.

Fifth, that the enforcement of the law would be seriously impaired if Department of Defense assistance were not provided.

I have a very hard time understanding why the House of Representatives would not accept this provision. Maybe there is a reason, but I certainly have not heard that reason. Nothing that I have heard indicates why our military could not be used, when we have a biological or chemical weapon of mass destruction involved in the situation, a serious threat is posed to the interests of the United States, civilian law enforcement expertise is not available to counter the threat, Department of Defense capabilities are needed to counter the threat, and law enforcement would be seriously impaired if DOD assistance is not provided.

I think the American people would expect us to be involved in that with the military, to protect the lives of American citizens.

The types of assistance that could be provided during an emergency situation would involve operation of equipment to monitor, to detect, to contain, to disable or dispose of a biological or chemical weapon of mass destruction or elements of such a weapon. The authority would include the authority to search for and seize the weapons or elements of the weapons.

We may get into a situation where it is not entirely clear whether there is a chemical or biological weapon but someone has threatened that that kind of weapon is contained in a basement somewhere in a city.

If the President of the United States does not have this statutory authority, he is going to be very reluctant to put the military into downtown New York to look for chemical or biological weapons. It would be extremely dangerous for law enforcement to undertake that task, but the President will be on the very conservative side and very reluctant to take that step unless he has absolute belief that there is such a weapon and a disaster is impending.

Unfortunately we are not going to have that kind of clarity, in my view, in the future. So it is important for Congress to speak to this issue.

If the Biden amendment is agreed to and it goes back to conference, and this becomes law, the Attorney General and the Secretary of Defense would issue joint regulations defining the type of assistance that could be provided. The regulations would also describe the actions that the Department of Defense personnel may take in circumstances incidental to the provision of assistance under this section, including the collection of evidence. This would not include the power of arrest or search or seizure, except for the immediate protection of life or as otherwise authorized by this provision or other applicable law.

This provision is set forth in the motion to recommit. If it is agreed to, and I hope it is, it would make it clear that nothing in this provision would be construed to limit the existing authority of the executive branch to use the Armed Forces in addressing the dangers posed by chemical and biological weapons and materials.

The motion to recommit would address two important concerns. First, as a general principle, the types of assistance provided by the Department of Defense should consist primarily in operating equipment designed to deal with the chemical and biological agents involved, and that the primary responsibility for arrest would remain with the civilian officials. As a law enforcement situation unfolds, however, military personnel must be able to deal with circumstances in which they may confront hostile opposition. In such circumstances their safety and the safety of others and the law enforcement mission cannot be compromised by putting our military in that dangerous situation and then precluding them from exercising the power of arrest or the use of force.

Mr. President, some people wanted to pass a statute saying the military could do everything but they could never make an arrest. I think they ought to defer to civilians in almost all circumstances. But we do not want to have our military team out there in chemical gear, looking for chemical weapons, some of which may already be escaping, no policemen being able to go in because they do not have the equipment, no fire authority able to go in, run right into the people perpetrating the act and not be able to do anything about it. So we have to give them that kind of limited authority in unusual, and hopefully circumstances which, God forbid--I hope they will never occur. But I must say the likelihood of something like this occurring in the next 5 to 10 years in America is, in my view, very high.

The motion to recommit would require the Department of Defense to be reimbursed for assistance provided under this section in accordance with section 377 of title 10, the general statute governing reimbursement of the Department of Defense for law enforcement assistance. This means that if DOD does not get a training or operational benefit substantially equivalent to DOD training, then DOD must be reimbursed.

Under the motion to recommit, the functions of the Attorney General and the Secretary of Defense may be exercised, respectively, by the Deputy Attorney General and the Deputy Secretary of Defense, each of whom serves as the alter ego to the head of the Department concerned. These functions could be delegated to another official only if that official has been designated to exercise the general powers of the head of the agency. This would include, for example, an Under Secretary of Defense who has been designated to act for the Secretary in the absence of the Secretary and the Deputy.

The limitations set forth in the motion to recommit would address the appropriate allocation of resources and functions within the Federal Government; and are not designed to provide the basis for excluding evidence or challenging an indictment.

The motion to recommit, which reflects the Senate-passed provision, is prudent and narrowly drafted. It was strongly supported in the Senate by the chairman of the Armed Services Committee, Senator Thurmond. It was unanimously adopted by the Senate. The administration, both the Department of Defense and Department of Justice, have testified that current law is inadequate and they need authority to deal with chemical and biological terrorism similar to the authority they now have for nuclear terrorism. It is irresponsible to leave our law enforcement officials and military personnel without clear authority to deal with these dangers.

I know the argument is made that we already have the insurrection statute on the books, which possibly could cover this situation. I would like to just share with my colleagues, before I close, a reading of that statute so they will understand why we need to have clarification.

Under the insurrection statute, sections 331-335, title 10 United States Code, the President can use the military in the following situations.

To suppress an "insurrection" at the request of a State.

To suppress "unlawful obstructions, combinations, or assemblages, or rebellion [that] make it impractical to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings."

To suppress "any insurrection, domestic violence, unlawful combination, or conspiracy" if it "so hinders the execution of laws" that a State or the Federal Government cannot enforce the laws.

Before using these authorities, the President must issue a proclamation that, "order[s] the insurgents to disperse and retire peacefully to their abodes within a limited time."

Can you imagine somebody coming into the President saying, "Mr. President, we expect an attack. We cannot prove this but we expect a chemical attack in New York City or Chicago in the next 12 to 24 hours. We desperately need our military teams to go to a potentially hostile situation with protective gear to detect and determine if that kind of material is present within certain areas of New York."

And the President says, "How do I do that?"

They say, "Mr. President, what you first have to do is issue a proclamation, saying that the insurgents should disperse and retire peacefully to their abodes within a limited time."

Mr. President, can you imagine a President saying to his staff, "You mean you want me to issue that? We have a terrorist group in New York City running around and you want me to issue a proclamation for the whole world to see and for the American people to laugh at, saying that the insurgents must disperse and retire peacefully to their abodes within a limited time? I will be laughed out of the White House if I do that."

Any President would be extremely reluctant to use that kind of authority. Besides that, this is not an insurrection. It is not an unlawful combination or conspiracy designed to hinder execution of the laws. To fit chemical or biological terrorism under the insurrection statute would require an extremely awkward and very stretched application. I think the President would only use that if he was absolutely convinced that being scoffed at and made fun of all over the world by issuing such a "disperse and retire peacefully" order would be outweighed by almost the certainty that that kind of calamity was about to happen.

These statutes are designed to deal with civil disorders, not terrorism. When the terrorists are on the subway with chemical or biological agents of mass destruction, must we await the President's issuing of a proclamation and ordering the terrorists to "retire peacefully to their abodes?"

The reason we have the statute that allows military assistance in the event of nuclear offenses is to provide for prompt and effective employment of military personnel to address the emergency, without the need to interpret the law or determine whether there is some inherent authority to assist. Chemical and biological weapons are more likely to be used, and they present the same problems of mass catastrophe as do nuclear weapons, and we should not delay clarification of the authority of the military personnel to provide specific assistance in emergency situations.

I do not understand why people oppose this. I cannot understand why the House opposes it. I think it is irresponsible not to proceed as the Senator from Delaware is urging us to proceed with his motion.

I know there is one other argument that says, because of a Supreme Court decision, there is inherent authority for the President to act with the military or with whatever he has to use to protect against the immediate threat to life. I would not deny that in certain situations the President might use this authority. Certainly in desperate situations he might. This is not statutory authority. It requires him to exercise constitutional, inherent authority. This is a very difficult situation and the military personnel involved, if the President is wrong in his assessment of inherent and immediate threat to life, would be at risk. They would be at risk of lawsuits and liability. They would be at risk of all sorts of problems if the President is wrong because they would not be acting under color of law.

So this immediate-threat-to-life inherent authority, though possibly available in desperate situations, is simply not the way to proceed. It would be a classic lawyers' debate. What we are doing now, if we leave the law as it is, as this bill before us will do unless it is amended, unless it is sent back to conference and amended, we are basically saying we are going to have one big furious debate among lawyers as to what authority would be used in what could be a matter of urgency, extreme urgency where every minute and every hour counted for the military to get into the business where we have a true emergency and American life is threatened.

So the present law is inadequate. The constitutional inherent authority of the President is inadequate in this situation, and the insurrection law would be, I think, resisted fiercely by any President where you would have to basically make an almost preposterous-type plea for the people who are perpetrating this act of terrorism to disperse and retire peacefully to their abodes within a limited time.

I would like to hear someone explain why this is not part of this conference report. I know that the Senate supported it. My colleague, Senator Hatch, I am sure, urged its adoption in the House of Representatives. I do not understand why this has been taken out of this bill.

Mr. President, I urge the adoption of the Biden amendment.