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Mr. Biden: addressed the Chair.
The Presiding Officer: The Senator from Delaware is recognized.
Mr. Biden:. Mr. President, we are now going to move to a motion that I offer to recommit the conference report with instructions to add a provision on multipoint wiretaps that was in our original Senate bill.
I send it to the desk.
The Presiding Officer: The clerk will report. The legislative clerk read as follows:
Motion to recommit the conference report on the bill S. 735 to the committee of conference with instructions to the managers on the part of the Senate to disagree to the conference substitute recommended by the committee of conference and insist on inserting the following:
SEC. . REVISION TO EXISTING AUTHORITY FOR MULTIPOINT WIRETAPS.
(a) Section 2518(ll)(b)(ii) of the title 18 is amended: by deleting "of a purpose, on the part of that person, to thwart interception by changing facilities." and inserting "that the person had the intent to thwart interception or that the person's actions and conduct would have the effect of thwarting interception from a specified facility."
(b) Section 2518(ll)(b)(iii) is amended to read: "(iii) the judge finds that such showing has been adequately made."
(c) The amendments made by subsection (a) and (b) of this amendment shall be effective 1 day after the enactment of this Act.
The Presiding Officer: There will be 30 minutes equally divided.
Mr. Biden:. I yield myself 2 minutes.
Mr. President, the distinguished Senator, and former Attorney General of the State of Connecticut, is here. We are going to divide this up a little bit. I want to make in my opening statement here a clarification for anyone listening as to what we are doing here, because we are really not changing anything that is not already done in any significant way.
These multipoint wiretaps are made out to be this major new concoction that they have come up with to interfere in the lives of people. I was told in the House conference that some Members of the House thought that it meant that the FBI would be in vans roving down the street literally eavesdropping on people's homes. It is bizarre what people think this means.
Let me explain what has to happen now to get a multipoint wiretap. There are all sorts of provisions built into the law now for the Federal Government: One, the Government must convince a judge that there is probable cause to believe that a specific person is committing a specific crime, as with any other wiretap. Two, the application even to ask a Federal judge for one of these wiretaps is approved at the very top level of the Justice Department, either by the Attorney General herself, or the Deputy Attorney General, or the Assistant Attorney General for the Criminal Division. No U.S. attorney in America can go out and ask a judge for one of these. No U.S. attorney can do that. No assistant U.S. attorney can do it without the approval of the Attorney General, Deputy Attorney General, or the head of the Criminal Division.
The application submitted must identify the person involved and believed to be committing the crime, and whose communications are to be the ones intercepted. A judge then has to find that the target's action--that is, the person who they are targeting. Say, we think our reporter here is in fact committing a crime. What you have to do is get the judge to believe that there is probable cause to believe a crime has been committed, that he is engaging in an activity. And, further, when they decide that you can wiretap not only his home phone, but the mobile phone he has in his pocket, the phone he has in his car, and the pay phone he uses all the time--the judge has to believe that the person is committing the crime--and communications are intercepted, it has to be proved that he is trying to effectively thwart the tap. For example, if my phone is tapped and there is probable cause that I committed a criminal offense, and I walk every day at 2 o'clock down to the pay phone on the corner, or I use a cell phone and then get rid of the new cell phone every day and get a new one, then that effectively thwarts the ability of the Federal Government investigators to tap someone where there is probable cause that they committed a crime. So that judge has to believe all that before he grants such an order.
In addition, any interception cannot begin until the officers have clearly determined that the target in question--that is, the person they believe committed the crime--is using a particular tapped phone. Once the target is off the phone, the interception must end. It does not say, by the way, that any phone that the target uses can be tapped. It says that we have reason to believe that he is using the following phone, one, two, or three. You can tap those phones.
Once the phone is tapped, if you go to your mother-in-law's house to use the phone, and after you get off, your mother-in-law is off the phone, they cannot, under the law, tap your mother-in-law. They must end the surveillance. It must stop. It must stop.
In addition, the moment the target leaves the phone, the tap on that phone has to be disengaged. It cannot be used. Any evidence cannot be used that would come from such a tap, if it stayed on. So this is nothing new. What is new is that, under the present law, this is used for the mob and other outfits. Under the present law, you have to show that the person is intending to thwart the surveillance--intending to. So essentially what you have to get is a mobster or terrorist saying, "I cannot use this phone in my house anymore because I think it is tapped. I am going to be going other places to use other phones. I will get to you later." That is what you basically have to prove now.
What we are saying in this law is--and 77 Senators voted for it last year--if the effect of the target is to thwart the surveillance, that is all you need to prove. The effect is to thwart the surveillance. You do not have to prove that he intended to thwart the surveillance; you have to prove the effect is to thwart surveillance.
So, again, a minor change already exists with multipoint wiretaps, is already in place. I will quote Mr. McCollum, the Republican leader of the Criminal Subcommittee. When I offered this in conference, he said:
I think the reality is quite simple here--
This is McCollum speaking to me.
You are 100 percent right.
I am 100 percent right.
It is the single-most important issue we are not putting in this bill. We have got to find some way to do it. But we are not going to get the votes for this bill, and we could not get the votes for this freestanding bill, I don't think, right this minute in the House.
Get the first part: "It is the single-most important issue we are not putting in the bill." Mr. McCollum is right.
I yield the remainder of my time to the distinguished Senator from Connecticut.
Mr. Lieberman: Mr. President, I thank my colleague from Delaware. Mr. McCollum was right. Senator Biden was right in everything he said, except for where he said you could not wiretap my mother-in-law. I would like to talk to him later about that.
Mr. Biden:. If the Senator will yield for 3 seconds. His mother-in-law may be listening.
Mr. Lieberman: She probably is.
Mr. President, let me say first, both to the Senator from Delaware and the Senator from Utah, how very pleased in general I am that we have come as far as we have on this legislation. Over a year ago, President Clinton challenged us to reach a bipartisan consensus on counterterrorism legislation in the aftermath of the Oklahoma City tragedy. The Senate promptly did so, including the Dole-Hatch substitute bill we passed last spring, including in that bill most of the key provisions of the President's own counterterrorism bill offered earlier in the year by Senator Biden and others.
Unfortunately, the Senate's spirit of bipartisanship did not reach the other body and did not, as fully as I think it should, reach the conference itself. The conference has produced a report and a bill that I would term a good bill in the war against terrorism. But it could and should be better. That is why I am supporting Senator Biden's motion to recommit, particularly directing the conference committee to insert this so-called multipoint wiretapping that I was privileged to offer along with Senator Biden and which, as he has indicated, passed the Senate overwhelmingly. Not only was that amendment dropped in conference, but even what I thought was the entirely uncontroversial provision in the Senate bill that would add specific terrorism offenses to the list of crimes for which wiretaps may be authorized was dropped as well. In other words, if there is a suspected terrorist out there now and law enforcement wants to tap his or her phones, they have to do so on suspicion of a crime being committed but it cannot be a terrorist act. They have to find some other specific crime that was committed.
Mr. President, these omissions puzzle me and trouble me. I am afraid that they represent some strange left-right marriage of fear or skepticism or cynicism about the Government and about law enforcement officials particularly. As Senator Biden has said, the power to wiretap--let me say from my own experience and others in law enforcement--is a critically important tool in the hands of law enforcement, and they need that tool not to feather their own nest or build their own empires; they need it to protect us from the criminals, and in this case the terrorists. They are on our side, those who work for the U.S. attorneys, the FBI, the DEA, and the whole range of other law enforcement officials down to the State and local police. They are on our side.
There is somehow a feeling that has grown at the extremes of our political discourse that we have a lot to fear from them. This provision, as Senator Biden has said, incorporates the classically American due process rules to make sure that any wiretap that is obtained is approved by a judge and is applied and used in narrowly and clearly circumscribed ways.
Mr. President, for everything I know about terrorism, the ability to penetrate the highly secretive world of terrorists is the single most effective tool law enforcement officials have to prevent terrorism acts from happening and then to bring the terrorists to justice. We can build barriers around Federal buildings. We can increase law enforcement presence and try to fortify obvious targets. But we can never defend all of the targets of terrorists, because they are cowards. They will look for and strike undefended targets without remorse about killing innocent civilians. You simply cannot protect every target. They will strike everywhere. The object of the terrorist is to create terror and panic. So, the best defense we have against them is an offense, to penetrate their operations and to know that they are about to strike before they strike so we can cut them off. If there was ever a category of crime that warranted the full range of wiretap capacities that law enforcement officials have today, it is terrorism. That is what this amendment would do.
Look. In a way, by not including this amendment that the Senate passed overwhelmingly, more essentially, allowing the terrorist to use all of the tools of modern technology, leave the house phone, go to the cell phone, go to the car phone, go to the phone booth, and we are saying to law enforcement, "Oh, no, you cannot. We are going to make it hard for you to follow them. You are going to have to prove that they are moving with an intent to thwart that wiretap."
Senator Biden's example is so perfect. Basically we are saying to the law enforcement folks, you have to hear a terrorist say on the phone that, "I got to hang up, John. I'm afraid the FBI is listening to me. I am going to move out to my cell phone." You need that kind of proof of intent to get, under the current law, this multipoint wiretap.
So we are saying to the bad guys, the criminals, the terrorists, you can use all of this modern telecommunications equipment, but we are going to stop law enforcement from trailing them. It is as if we said during the cold war that we had intelligence information that the Soviet Union had developed some very strong new weapon, that the Pentagon had the ability to counteract that weapon with a defense, but we are going to put strictures on them from using that weapon. It does not make sense. It is why I think it is so important to adopt this amendment.
Mr. President, multipoint wiretaps are used very sparingly because of the requirements that Senator Biden set out. They have proved, however, according to testimony submitted by Deputy Attorney General Jamie Gorelick to the Judiciary Committee, highly effective tools in prosecuting today's highly mobile criminals and terrorists who may switch phones frequently for any number of reasons. Again, as we have asked before on other measures, why allow ease of obtaining a multipoint wiretap against other criminals, including organized crime criminals, and not allow it against terrorists who threaten us in such a devastating way?
Mr. President, the aim of this motion to recommit is a simple one. We want to be sure that our law enforcement officials receive the tools they need, the tools that will be there for them so that swift and effective action can be taken to prevent the World Trade Center explosion, to prevent Oklahoma City, to prevent any future disaster of that kind. We owe our Federal law enforcement officials that authority, that capacity, those tools. But the truth is we owe it to ourselves. They are out there trying to protect us and our families from being innocent victims of a terrorist. Every counterterrorism expert that I have ever talked to or ever heard, within the Government and without, will emphasize the importance of infiltration and surveillance in countering terrorists and bringing them to justice. Given the devastating effects of these acts, not only the maiming and death of men, women, and children, but these acts are assaults on the institutions of our Government, on the democratic processes which we cherish, and on our fundamental liberty to move safely and confidently throughout our society. They create the kind of fear that undercuts the freedom that we have fought for.
So I do not understand why we would not want to give the law enforcement officials the same authority to obtain wiretaps when pursuing terrorists that they have under current law to pursue other kinds of criminals, and why we do not want to improve their ability to track all criminals, including terrorists, as they move from phone to phone and from place to place with the obvious intent of thwarting surveillance and covering their treacherous, deadly deeds.
Mr. President, finally, I say we need to give the conferees another chance to strengthen this bill. As I said at the outset, it is a good bill, but it can and should be a better bill. I fear that, if we do not include a power like this one, that we are going to come to a day when we are going to look back and regret it--a terrorist act that will occur that could have been stopped if law enforcement had this authority.
I know we want to pass this bill and have the President sign it by the first anniversary of the Oklahoma City tragedy, but the truth is that I would rather see us do this right, do it as strongly and effectively as we can. And if it takes a few more days, so be it. We have waited this long. We can wait a little longer to protect ourselves, our society, the institutions of our Government, and the basic freedom to live and move around in our great country from the horrible acts of terrorists within our midst.
I thank the Chair. I yield the floor.
Mr. Hatch: Mr. President, how much time remains?
The Presiding Officer: The Senator from Utah has 15 minutes and the Senator from Delaware has 1 minute and 54 seconds.
Mr. Hatch: Mr. President, I do not disagree with my two distinguished colleagues on that side that this might be a useful provision. After all, I wrote it, and we put it in the Senate bill. I drafted the multipoint language in the Senate bill. However, since that time, some have raised, in their eyes, serious questions as to whether this expanded authority to wiretap American citizens and others is necessary.
Because of that, we have worked out this bill through a long series of meetings for over a year, culminating Monday night in a conference where we put everything in this bill we could possibly get into it. We brought it very close to what the original Senate bill was. I think it is a darned good bill. We could not get the other side to agree on this provision. It comes down to whether we want a bill or we do not.
To this end, because of that, then I insisted we at least put in a study, a balanced study to look at the excesses of law enforcement with regard to wiretapping and the needs of law enforcement with regard to wiretapping and the applications of it. The distinguished Senator from Connecticut and I both understand how important it is, and so does, of course, the ranking Democrat on the committee. We will require the Justice Department to review its law enforcement surveillance needs and report back to Congress.
On that basis, I just want to say that I am committed to working with both Senator Biden and Senator Lieberman to craft legislation which will provide law enforcement with the electronic surveillance capabilities it needs, wiretap authority it needs. I am going to get this done one way or the other in an appropriate way, but the study is important in the eyes of those on the other side. It is important in my eyes.
I do not want to go into this thing halfcocked, nor do I want to lose this bill because others feel we may be moving into it halfcocked without having looked at it in a balanced way. So I will work with both of my colleagues to craft legislation to provide law enforcement with whatever wiretap authority, expanded wiretap authority it needs beyond what it has today. I give my colleagues my assurance that we will move in this direction with dispatch. I think they both know, when I say that, I mean it. The truth, however, is that this provision would have done nothing--and I repeat nothing--to stop the Oklahoma bombing. This is not antiterrorism legislation that would have been necessary to stop the Oklahoma bombing. While multipoint wiretaps may be useful in crime investigation, we simply do not need to put them in this particular legislation at this time.
Last evening, Israel was bombed in another bombing attack. I personally do not believe we should wait one more day--knowing that is going on over there and knowing that we have at least 1,500 known terrorists and organizations in this Nation, I do not think we should wait one more day, not one more hour in my book, in voting for final passage of this bill. We want to assure that terrorist funding is prohibited and stopped, and this bill goes a long way toward doing that.
Let me mention for the record the letters of support that we have for this bill. They are wide ranging and across the political spectrum: The National Association of Attorneys General, the National Association of Police Officers, the National District Attorneys Association, the Anti- Defamation League, Survivors of the Oklahoma Bombing, Citizens for Law and Order, the International Association of Chiefs of Police, the National Sheriffs Association, the National Troopers Association, the Law Enforcement Alliance of America, 34 individual State attorneys general including the California attorney general, California's District Attorneys Association, the National Government Association with regard to the habeas corpus provision, and various Governors, and so forth. It is okayed by the Governor of Oklahoma, who is a Republican, Frank Keating, and by the Democrat attorney general, with whom I have had a great deal of joy working, Drew Edmonson. I have a lot of respect for him, and he has been willing to work with us to try to get this done.
Frankly, we do not have a letter, but we do have the verbal support of AIPAC, and I might say other attorneys general in this country who have written to us and want to be mentioned. We will put that all in the Record.
This is important. This bill is important. I know my colleagues know I am sincere when I say I will find some way of resolving these multipoint wiretap problems. Unfortunately, they were called roving wiretaps when they came up, and just that rhetorical term has caused us some difficulties and has caused some of the people who feel, after Waco, Ruby Ridge, Good Ol' Boys Roundup, et cetera, that even law enforcement sometimes is too intrusive into all of our lives, and at this particular time of the year, at tax time, with the feelings about the IRS, there are some who literally feel this is going too far and it will kill this bill if we put it in.
So I will move ahead. We will have the study, but I will move ahead even while the study is being conducted and do everything I can with my two colleagues here to get this problem resolved. I intend to do it, and we will get it done.
I am going to move to table this. I hope folks will vote for the motion to table so that we can continue to preserve this bill and get it done, quit playing around with it and get it done. I yield the floor.
Mr. Biden: addressed the Chair.
The Presiding Officer: The Senator from Delaware has 1 minute 54 seconds remaining.
Mr. Biden:. Mr. President, if the problem is people misunderstand because this is a roving wiretap, one thing that will get everybody's attention is we amend it, send it back, and it will become real clear. In about 20 minutes of discussion, we can have it back here, and it will not kill the bill--if that is the reason.
No. 2, in the letter from the chiefs, the president of the International Association of Chiefs of Police, they do support the bill but they are very clear. Let me quote. They say:
This legislation does not deal with the ability of law enforcement to use roving wiretaps or 48-hour wiretaps in the case of terrorism even though this later type of wiretap is already authorized in other special situations.
They list what they do not like about the bill. They do not like the fact that this is not in the bill. They strongly support this wiretap authority. And if we cannot get it done now in this bill, I respectfully suggest to my friend that no matter how much he wishes to fix this, there will be no ability to get it done standing alone.
I yield back whatever seconds I may have remaining.
Mr. Hatch addressed the Chair.
The Presiding Officer: The Senator from Utah.
Mr. Hatch: The fact is that we have to pass this bill. Frankly, I think we can get this problem solved. It is kind of a world turned upside down. When I got here 20 years ago, it was the conservatives who wanted expanded wiretap authority and the liberals fought it with everything they had. But now all of a sudden we have the liberals fighting for wiretap authority and conservatives concerned about it.
The fact is it is not just the rhetoric. There is some sincere concern on the part of some Members of the House who are crucial to the passage of this bill about putting this in at this time. I believe we can resolve this problem in the future, and I will work hard to do it with my colleagues, but it really cannot be in this bill if we want a terrorism bill at this time.
I yield back the remainder of my time. On behalf of Senator Dole and myself, I move to table the motion and ask for the yeas and nays.
The Presiding Officer: Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
The Presiding Officer: The question is on agreeing to the motion to table the motion to recommit. The yeas and nays have been ordered. The clerk will call the roll.
The legislative clerk called the roll.
Mr. Lott: I announce that the Senator from Florida [Mr. Mack] is necessarily absent.
Mr. Ford: I announce that the Senator from Louisiana [Mr. Breaux] is necessarily absent.
The Presiding Officer: Are there any other Senators in the Chamber who desire to vote?
The result was announced--yeas 58, nays 40, as follows:
| Roll No. 65 Leg. | ||||
|---|---|---|---|---|
| YEAS--58 | ||||
| Abraham | Ashcroft | Bennett | Bond | Brown |
| Bryan | Burns | Campbell | Chafee | Coats |
| Cochran | Cohen | Coverdell | Craig | D'Amato |
| DeWine | Dole | Domenici | Dorgan | Faircloth |
| Feingold | Frist | Gorton | Gramm | Grams |
| Grassley | Gregg | Hatch | Hatfield | Helms |
| Hutchison | Inhofe | Jeffords | Kassebaum | Kempthorne |
| Kyl | Lott | Lugar | McCain | McConnell |
| Murkowski | Nickles | Pressler | Reid | Roth |
| Santorum | Shelby | Simon | Simpson | Smith |
| Snowe | Specter | Stevens | Thomas | Thompson |
| Thurmond | Warner | Wellstone | ||
| Nays--40 | ||||
| Akaka | Baucus | Biden | Bingaman | Boxer |
| Bradley | Bumpers | Byrd | Conrad | Daschle |
| Dodd | Exon | Feinstein | Ford | Glenn |
| Graham | Harkin | Heflin | Hollings | Inouye |
| Johnston | Kennedy | Kerrey | Kerry | Kohl |
| Lautenberg | Leahy | Levin | Lieberman | Mikulski |
| Moseley-Braun | Moynihan | Murray | Nunn | Pell |
| Pryor | Robb | Rockefeller | Sarbanes | Wyden |
| NOT VOTING--2 | ||||
| Breaux | Mack | |||
So the motion to table the motion to recommit was agreed to.
Mr. Moynihan: I move to reconsider the vote.
Mr. Hatch: I move to lay that motion on the table. The motion to lay on the table was agreed to.
Mr. Moynihan addressed the Chair.
The Presiding Officer: The Senator from New York.
Mr. Moynihan: Mr. President, I send to the desk a motion and ask for its immediate consideration.
The Presiding Officer: The clerk will report. The bill clerk read as follows:
The Senator from New York [Mr. Moynihan] moves to recommit the conference report on the bill S. 735.
Mr. Moynihan: Mr. President, I ask unanimous consent reading of the motion be dispensed with.
The Presiding Officer: Without objection, it is so ordered. The text of the motion to recommit is as follows:
Motion to recommit the conference report on the bill S. 735 to the committee of conference with instructions to the managers on the part of the Senate to disagree to the conference substitute recommended by the committee of conference and insist on deleting the following:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.";
from section 104 of the conference report".
Mr. Moynihan: Mr. President, I ask for the yeas and nays.
The Presiding Officer: Is there a sufficient second? There is a sufficient second. The yeas and nays were ordered.
Mr. Moynihan: Mr. President, the distinguished ranking member and manager have asked that I yield myself such time as I may require, and I add with the proviso, as much time as he wishes. I will obviously yield to him.
The Presiding Officer: The Senator has 15 minutes.
Mr. Moynihan: Mr. President, this is a proposal to strike an unprecedented provision--unprecedented until the 104th Congress--to tamper with the constitutional protection of habeas corpus.
The provision reads:
(d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--"(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or "(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
We are about to enact a statute which would hold that constitutional protections do not exist unless they have been unreasonably violated, an idea that would have confounded the framers. Thus we introduce a virus that will surely spread throughout our system of laws.
Article I, section 9, clause 2 of the Constitution stipulates, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
We are at this moment mightily and properly concerned about the public safety, which is why we have before the Senate the conference report on the counterterrorism bill. But we have not been invaded, Mr. President, and the only rebellion at hand appears to be against the Constitution itself. We are dealing here, sir, with a fundamental provision of law, one of those essential civil liberties which precede and are the basis of political liberties.
The writ of habeas corpus is often referred to as the "Great Writ of Liberty." William Blackstone called it "the most celebrated writ in English law, and the great and efficacious writ in all manner of illegal imprisonment." It is at the very foundation of the legal system designed to safeguard our liberties.
I repeat what I have said previously here on the Senate floor: If I had to choose between living in a country with habeas corpus but without free elections, or a country with free elections but without habeas corpus, I would choose habeas corpus every time. To say again, this is one of the fundamental civil liberties on which every democratic society of the world has built political liberties that have come subsequently.
I make the point that the abuse of habeas corpus--appeals of capital sentences--is hugely overstated. A 1995 study by the Department of Justice's Bureau of Justice Statistics determined that habeas corpus appeals by death row inmates constitute 1 percent of all Federal habeas filings. Total habeas filings make up 4 percent of the caseload of Federal district courts. And most Federal habeas petitions are disposed of in less than 1 year. The serious delays occur in State courts, which take an average of 5 years to dispose of habeas petitions. If there is delay, the delay is with the State courts.
It is troubling that Congress has undertaken to tamper with the Great Writ in a bill designed to respond to the tragic circumstances of the Oklahoma City bombing last year. Habeas corpus has little to do with terrorism. The Oklahoma City bombing was a Federal crime and will be tried in Federal court.
Nothing in our present circumstance requires the suspension of habeas corpus, which is the practical effect of the provision in this bill. To require a Federal court to defer to a State court's judgment unless the State court's decision is unreasonably wrong effectively precludes Federal review. I find this disorienting.
Anthony Lewis has written of the habeas provision in this bill: "It is a new and remarkable concept in law: that mere wrongness in a constitutional decision is not to be noticed." If we agree to this, to what will we be agreeing next? I restate Mr. Lewis' observation, a person of great experience, a long student of the courts, "It is a new and remarkable concept in law: that mere wrongness in a constitutional decision is not to be noticed." Backward reels the mind.
On December 8, four United States attorneys general, two Republicans and two Democrats, all persons with whom I have the honor to be acquainted, Benjamin R. Civiletti, Jr., Edward H. Levi, Nicholas Katzenbach, and Elliot Richardson--I served in administrations with Mr. Levi, Mr. Katzenbach, and Mr. Richardson; I have the deepest regard for them--wrote President Clinton. I ask unanimous consent that the full text be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
Dear Mr. President: The habeas corpus provisions in the Senate terrorism bill, which the House will soon take up, are unconstitutional. Though intended in large part to expedite the death penalty review process, the litigation and constitutional rulings will in fact delay and frustrate the imposition of the death penalty. We strongly urge you to communicate to the Congress your resolve, and your duty under the Constitution, to prevent the enactment of such unconstitutional legislation and the consequent disruption of so critical a part of our criminal punishment system.
The constitutional infirmities reside in three provisions of the legislation: one requiring federal courts to defer to erroneous state court rulings on federal constitutional matters, one imposing time limits which could operate to completely bar any federal habeas corpus review at all, and one preventing the federal courts from hearing the evidence necessary to decide a federal constitutional question. They violate the Habeas Corpus Suspension Clause, the judicial powers of Article III, and due process. None of these provisions appeared in the bill that you and Senator Biden worked out in the last Congress together with representatives of prosecutors' organizations.
The deference requirement would bar any federal court from granting habeas corpus relief where a state court has misapplied the United States Constitution, unless the constitutional error rose to a level of "unreasonableness." The time-limits provisions set a single period for the filing of both state and federal post-conviction petitions (six months in a capital case and one year in other cases), commencing with the date a state conviction becomes final on direct review. Under these provisions, the entire period could be consumed in the state process, through no fault of the prisoner or counsel, thus creating an absolute bar to the filing of a federal habeas corpus petition. Indeed, the period could be consumed before counsel had even been appointed in the state process, so that the inmate would have no notice of the time limit or the fatal consequences of consuming all of it before filing a state petition.
Both of these provisions, by flatly barring federal habeas corpus review under certain circumstances, violate the Constitution's Suspension Clause, which provides: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in the cases of rebellion or invasion the public safety may require it" (Art. I, Sec. 9, cl. 1). Any doubt as to whether this guarantee applies to persons held in state as well as federal custody was removed by the passage of the Fourteenth Amendment and by the amendment's framers' frequent mention of habeas corpus as one of the privileges and immunities so protected.
The preclusion of access to habeas corpus also violates Due Process. A measure is subject to proscription under the due process clause if it "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental," as viewed by "historical practice." Medina v. California, 112 S.Ct. 2572, 2577 (1992). Independent federal court review of the constitutionality of state criminal judgments has existed since the founding of the Nation, first by writ of error, and since 1867 by writ of habeas corpus. Nothing else is more deeply rooted in America's legal traditions and conscience. There is no case in which "a state court's incorrect legal determination has ever been allowed to stand because it was reasonable," Justice O'Connor found in Wright v. West, 112 S.Ct. 2482, 2497; "We have always held that federal courts, even on habeas, have an independent obligation to say what the law is." Indeed, Alexander Hamilton argued, in The Federalist No. 84, that the existence of just two protections--habeas corpus and the prohibition against ex post facto laws--obviated the need to add a Bill of Rights to the Constitution.
The deference requirement may also violate the powers granted to the judiciary under Article III. By stripping the federal courts of authority to exercise independent judgment and forcing them to defer to previous judgments made by state courts, this provision runs afoul of the oldest constitutional mission of the federal courts: "the duty . . . to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). Although Congress is free to alter the federal courts' jurisdiction, it cannot order them how to interpret the Constitution, or dictate any outcome on the merits. United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). Earlier this year, the Supreme Court reiterated that Congress has no power to assign "rubber stamp work" to an Article III court. "Congress may be free to establish a . . . scheme that operates without court participation," the Court said, "but that is a matter quite different from instructing a court automatically to enter a judgment pursuant to a decision the court has not authority to evaluate." Gutierrez de Martinez v. Lamagno, 115 S.Ct 2227, 2234.
Finally, in prohibiting evidentiary hearings where the constitutional issue raised does not go to guilt or innocence, the legislation again violates Due Process. A violation of constitutional rights cannot be judged in a vacuum. The determination of the facts assumes" and importance fully as great as the validity of the substantive rule of law to be applied." Wingo v. Wedding, 418 U.S. 461, 474 (1974).
The last time habeas corpus legislation was debated at length in constitutional terms was in 1968. A bill substantially eliminating federal habeas corpus review for state prisoners was defeated because, as Republican Senator Hugh Scott put it at the end of debate, "if Congress tampers with the great writ, its action would have about as much chance of being held constitutional as the celebrated celluloid dog chasing the asbestos cat through hell." In more recent years, the habeas reform debate has been viewed as a mere adjunct of the debate over the death penalty. But when the Senate took up the terrorism bill this year, Senator Moynihan sought to reconnect with the large framework of constitutional liberties: "If I had to live in a country which had habeas corpus but not free elections," he said, "I would take habeas corpus every time." Senator Chafee noted that his uncle, a Harvard law scholar, has called habeas corpus "the most important human rights provision in the Constitution." With the debate back on constitutional grounds, Senator Biden's amendment to delete the deference requirement nearly passed, with 46 votes.
We respectfully ask that you insist, first and foremost, on the preservation of independent federal review, i.e., on the rejection of any requirement that federal courts defer to state court judgments on federal constitutional questions. We also urge that separate time limits be set for filing federal and state habeas corpus petitions--a modest change which need not interfere with the setting of strict time limits--and that they begin to run only upon the appointment of competent counsel. And we urge that evidentiary hearings be permitted wherever the factual record is deficient on an important constitutional issue.
Congress can either fix the constitutional flaws now, or wait through several years of litigation and confusion before being sent back to the drawing board. Ultimately, it is the public's interest in the prompt and fair disposition of criminal cases which will suffer. The passage of an unconstitutional bill helps no one.
We respectfully urge you, as both President and a former professor of constitutional law, to call upon Congress to remedy these flaws before sending the terrorism bill to your desk. We request an opportunity to meet with you personally to discuss this matter so vital to the future of the Republic and the liberties we all hold dear.
Sincerely,
Mr. Moynihan: Mr. President, let me read excerpts from the letter:
The habeas corpus provisions in the Senate bill . . . are unconstitutional. Though intended in large part to expedite the death penalty review process, the litigation and constitutional rulings will in fact delay and frustrate the imposition of the death penalty . . .
The constitutional infirmities . . . violate the Habeas Corpus Suspension Clause, the judicial powers of Article III and due process . . .
. . . A measure is subject to proscription under the due process clause if it "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental," as viewed by "historical practice."
That is Medina versus California, a 1992 decision. To continue,
Independent federal court review of the constitutionality of state criminal judgments has existed since the founding of the Nation, first by writ of error, and since 1867 by writ of habeas corpus.
Nothing else is more deeply rooted in America's legal traditions and conscience. There is no clause in which "a state court's incorrect legal determination has ever been allowed to stand because it was reasonable."
That is Justice O'Connor, in Wright versus West. She goes on, as the attorneys general quote,
We have always held that federal courts, even on habeas, have an independent obligation to say what the law is.
If I may interpolate, she is repeating the famous injunction of Justice Marshall in Marbury versus Madison.
The attorneys general go on to say:
Indeed, Alexander Hamilton argued, in The Federalist No. 84, that the existence of just two protections--habeas corpus and the prohibition against ex post facto laws--obviated the need to add a Bill of Rights to the Constitution.
The letter from the attorneys general continues, but that is the gist of it. I might point out that there was, originally, an objection to ratification of the Constitution, with those objecting arguing that there had to be a Bill of Rights added. Madison wisely added one during the first session of the first Congress. But he and Hamilton and Jay, as authors of the Federalist papers, argued that with habeas corpus and the prohibition against ex post facto laws in the Constitution, there would be no need even for a Bill of Rights. We are glad that, in the end, we do have one. But their case was surely strong, and it was so felt by the Framers.
To cite Justice O'Connor again:
A state court's incorrect legal determination has never been allowed to stand because it was reasonable.
Justice O'Connor went on:
We have always held that Federal courts, even on habeas, have an independent obligation to say what the law is.
Mr. President, we can fix this now. Or, as the attorneys general state, we can "wait through several years of litigation and confusion before being sent back to the drawing board." I fear that we will not fix it now. The last time this bill was before us, there were only eight Senators who voted against final passage.
We Americans think of ourselves as a new nation. We are not. Of the countries that existed in 1914, there are only eight which have not had their form of government changed by violence since then. Only the United Kingdom goes back to 1787 when the delegates who drafted our Constitution established this Nation, which continues to exist. In those other nations, sir, a compelling struggle took place, from the middle of the 18th century until the middle of the 19th century, and beyond into the 20th, and even to the end of the 20th in some countries, to establish those basic civil liberties which are the foundation of political liberties and, of those, none is so precious as habeas corpus, the "Great Writ."
Here we are trivializing this treasure, putting in jeopardy a tradition of protection of individual rights by Federal courts that goes back to our earliest foundation. And the virus will spread. Why are we in such a rush to amend our Constitution? Eighty-three amendments have been offered in this Congress alone. Why do we tamper with provisions as profound to our traditions and liberty as habeas corpus? The Federal courts do not complain. It may be that if we enact this, there will be some prisoners who are executed sooner than they otherwise would have been. You may take satisfaction in that or not, as you choose, but we will have begun to weaken a tenet of justice at the very base of our liberties. The virus will spread.
This is new. It is profoundly disturbing. It is terribly dangerous. If I may have the presumption to join in the judgment of four attorneys general, Mr. Civiletti, Mr. Levi, Mr. Katzenbach, and Mr. Richardson-- and I repeat that I have served in administrations with three of them-- this matter is unconstitutional and should be stricken from this measure.
Fourteen years ago, June 6, 1982, to be precise, I gave the commencement address at St. John University Law School in Brooklyn. I spoke of the proliferation of court-curbing bills, at that time, but what I said is, I feel, relevant to today's discussion. I remarked,
. . . some people--indeed, a great many people--have decided that they do not agree with the Supreme Court and that they are not satisfied to Debate, Legislate, Litigate.
They have embarked upon an altogether new and I believe quite dangerous course of action. A new triumvirate hierarchy has emerged. Convene (meaning the calling of a constitutional convention), Overrule (the passage of legislation designed to overrule a particular Court ruling, when the Court's ruling was based on an interpretation of the Constitution), and Restrict (to restrict the jurisdiction of certain courts to decide particular kinds of cases).
Perhaps the most pernicious of these is the attempt to restrict courts' jurisdictions, for it is . . . profoundly at odds with our nation's customs and political philosophy.
It is a commonplace that our democracy is characterized by majority rule and minority rights. Our Constitution vests majority rule in the Congress and the President while the courts protect the rights of the minority.
While the legislature makes the laws, and the executive enforces them, it is the courts that tell us what the laws say and whether they conform to the Constitution.
This notion of judicial review has been part of our heritage for nearly two hundred years. There is not a more famous case in American jurisprudence than Marbury v. Madison and few more famous dicta than Chief Justice Marshall's that
It is emphatically the province and the duty of the judicial department to say what the law is.
But in order for the court to interpret the law, it must decide cases. If it cannot hear certain cases, then it cannot protect certain rights.
Mr. President, I am going to ask unanimous consent that a number of materials appear in the Record following my remarks. I apologize for the length, but if we are going to trifle with the Great Writ of Liberty, the record needs to be complete. The materials are as follows: a May 23, 1995 letter from the Emergency Committee to Save Habeas Corpus to the President and a one-page attachment; a June 1, 1995 letter from the Emergency Committee to me; a March 13, 1996 New York Times editorial entitled, "The Wrong Answer to Terrorism"; an April 8, 1996 Times editorial entitled, "Grave Trouble for the Great Writ"; three Anthony Lewis op-eds which appeared in the Times on July 7, 1995, December 8, 1995, and April 15, 1996 entitled "Mr. Clinton's Betrayal", Is It A Zeal To Kill?", and "Stand Up For Liberty", respectively; and the third paragraph of the March 12, 1996 "Statement of Administration Policy" concerning H.R. 2703--the House version of the counter-terrorism bill--which reads, in part: "H.R. 2703 would establish a standard of review for Federal courts on constitutional issues that is excessively narrow and subject to potentially meritorious constitutional challenge."
Mr. President, I ask unanimous consent that these materials be printed in the Record following my remarks.
The Presiding Officer: Without objection, it is so ordered.
(See exhibit 1.)
Mr. Moynihan: Mr. President, we need to deal resolutely with terrorism. And we will. But if, in the guise of combating terrorism, we diminish the fundamental civil liberties that Americans have enjoyed for two centuries, then the terrorists will have won. With deep regret, but with a clear conscience, I will vote against the conference report to S. 735 as now presented.
Dear Mr. President: We understand that the Senate may act, as soon as tomorrow, on the habeas corpus provisions in Senator Dole's terrorism legislation. Among these provisions is a requirement that federal courts must defer to state courts incorrectly applying federal constitutional law, unless it can be said that the state ruling was "unreasonable" incorrect. This is a variation of the proposal by the Reagan and Bush administrations to strip the federal courts of the power to enforce the Constitution when the state court's interpretation of it, though clearly wrong, had been issued after a "full and fair adjudication."
The Emergency Committee was formed in 1991 to fight this extreme proposal. Our membership consists of both supporters and opponents of the death penalty, Republicans and Democrats, united in the belief that the federal habeas corpus process can be dramatically streamlined without jeopardizing its constitutional core. At a time when proposals to curtail civil liberties in the name of national security are being widely viewed with suspicion, we believe it is vital to ensure that habeas corpus--the means by which all civil liberties are enforced--is not substantially diminished.
The habeas corpus reform bill you and Senator Biden proposed in 1993, drafted in close cooperation with the nation's district attorneys and state attorneys general, appropriately recognizes this point. It would codify the long-standing principle of independent federal review of constitutional questions, and specifically reject the "full and fair" deference standard.
Independent federal review of state court judgments has existed since the founding of the Republic, whether through writ of error or writ of habeas corpus. It has a proud history of guarding against injustices born of racial prejudice and intolerance, of saving the innocent from imprisonment or execution, and in the process, ensuring the rights of all law-abiding citizens. We in the Emergency Committee have fought against proposals to strip the federal courts of power to correct unconstitutional state court actions, alongside other distinguished groups such as the NAACP Legal Defense Fund, the Southern Christian Leadership Conference, the American Bar Association, former prosecutors, and the committee chaired by Justice Powell on which all subsequent reform proposals have been based. We have met with Attorney General Reno, testified in Congress, and successfully argued in the Supreme Court against the adoption of a deference standard, in Wright v. West.
We hope you will use the power of your office to ensure that the worthwhile goal of streamlining the review of criminal cases is accomplished without diminishing constitutional liberties. If it would be helpful, we would be pleased to meet with you to discuss this vitally important matter personally.
Sincerely,
Statements on Proposals Requiring Federal Courts in Habeas Corpus Cases To Defer to State Courts on Federal Constitutional Questions
"Capital cases should be subject to one fair and complete course of collateral review through the state and federal system. . . . Where the death penalty is involved, fairness means a searching and impartial review of the propriety of the sentence."--Justice Lewis F. Powell, Jr., presenting the 1989 report of the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, chaired by him and appointed by Chief Justice William Rehnquist
"The federal courts should continue to review de novo mixed and pure questions of federal law. Congress should codify this review standard. . . . Senator Dole's bill [containing the "full and fair" deference requirement] would rather straightforwardly eliminate federal habeas jurisdiction over most constitutional claims by state inmates."--150 former state and federal prosecutors, in a December 7, 1993 letter to Judiciary Committee Chairmen Biden and Brooks
"Racial distinctions are evident in every aspect of the process that leads to execution. . . . [W]e fervently and respectfully urge a steadfast review by federal judiciary in state death penalties as absolutely essential to ensure justice."--Rev. Dr. Joseph E. Lowery, President, Southern Christian Leadership Conference, U.S. House Judiciary Committee hearing on capital habeas corpus reform, June 6, 1990
"The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right."--Justice Felix Frankfurter, for the Court, in Brown v. Allen, 344 U.S. 443, 508 (1953)
"[There is no case in which] a state court's incorrect legal determination has ever been allowed to stand because it was reasonable. We have always held that federal courts, even on habeas, have an independent obligation to say what the law is."--Justice Sandra Day O'Connor, concurring in Wright v. West, 112 S.Ct. 2482 (1992), citing 29 Supreme Court cases and "many others" to reject the urging of Justices Thomas, Scalia and Rehnquist to adopt a standard of deference to state courts on federal constitutional matters.
Dear Senator Moynihan: We understand that the Senate may act next week on the habeas corpus provisions in Senator Dole's terrorism legislation. Among these provisions is a requirement that federal courts must defer to state courts incorrectly applying federal constitutional law, unless it can be said that the state ruling was "unreasonably" incorrect. This is a variation of past proposals to strip the federal courts of the power to enforce the Constitution when the state court's interpretation of it, though clearly wrong, had been issued after a "full and fair" hearing.
The Emergency Committee was formed in 1991 to fight this extreme proposal. Our membership consists of both supporters and opponents of the death penalty, Republicans and Democrats, united in the belief that the federal hebeas corpus process can be dramatically streamlined without jeopardizing its constitutional core. At a time when proposals to curtail civil liberties in the name of national security are being widely viewed with suspicion, we believe it is vital to ensure that habeas corpus--the means by which all civil liberties are enforced--is not substantively diminished.
The hebeas corpus reform bill President Clinton proposed in 1993, drafted in close cooperation with the nation's district attorneys and state attorneys general, appropriately recognizes this point. It would codify the long-standing principle of independent federal review of constitutional questions, and specifically reject the "full and fair" deference standard.
Independent federal review of state court judgments has existed since the founding of the Republic, whether through writ of error or writ of hebeas corpus. It has a proud history of guarding against injustices born of racial prejudice and intolerance, of saving the innocent from imprisonment or execution, and in the process, ensuring the rights of all law-abiding citizens. Independent federal review was endorsed by the committee chaired by Justice Powell on which all subsequent reform proposals have been based, and the Supreme Court itself specifically considered but declined to require deference to the states, in Wright v. West in 1992.
We must emphasize that this issue of deference to state rulings has absolutely no bearing on the swift processing of terrorism offenses in the federal system. For federal inmates, the pending habeas reform legislation proposes dramatic procedural reforms but appropriately avoids any curtailment of the federal courts' power to decide federal constitutional issues. This same framework of reform will produce equally dramatic results in state cases. Cutting back the enforcement of constitutional liberties for people unlawfully held in state custody is neither necessary to habeas reform nor relevant to terrorism.
We are confident that the worthwhile goal of streamlining the review of criminal cases can be accomplished without diminishing constitutional liberties. Please support the continuation of independent federal review of federal constitutional claims through habeas corpus.
Sincerely,
[From the New York Times, Mar. 13, 1996.]
With the first anniversary of the Oklahoma City bombing approaching next month, Congress and the White House are pressing to complete action on new antiterrorism legislation. In haste to demonstrate their resolve in an election year, President Clinton and lawmakers from both parties are ready to approve steps that would dangerously erode American liberties. Combating terrorism is vitally important, but it should not threaten long-established rights of privacy, free speech and due process.
Last June the Senate rashly passed the Comprehensive Terrorism Protection Act of 1995. The bill contained some reasonable measures, including an increase in F.B.I. staff and revisions in Federal law that would make it easier to trace bombs and impose harsher penalties for dealing in explosives.
But the legislation also authorized intrusive new surveillance powers for law enforcement agencies, crackdown on suspect aliens and an ill-advised blurring of the line between military and police forces. To assure passage, Mr. Clinton unwisely agreed to withdraw his objections to incorporating a change in habeas corpus standards that would limit death row appeals in Federal courts.
A corresponding bill under consideration in the House this week does not include some of the most troubling Senate provisions, including the expanded role for military forces in domestic law enforcement. But House members who take their constitutional vows seriously should eliminate or modify other damaging provisions in the bill.
Among other dubious steps, the House bill would grant the Secretary of State expansive authority to brand foreign groups and their domestic affiliates as terrorists, thereby making it a crime for Americans to support the group's activities, even if they are perfectly legal. Members of designated terrorist groups would be barred from entering the country to speak, reviving a discredited practice that was discarded in 1990 with repeal of the McCarthy-era McCarran- Walter Act.
Under the House legislation, the Attorney General would be given unchecked authority to elevate ordinary state and Federal crimes to acts of terrorism, carrying sentences ranging up to death. The F.B.I., which already has ample authority to pursue terrorists, would get new powers to obtain phone and travel records without having to establish that a suspect seemed to be engaging in criminal activity. Government wiretap authority would be expanded, with reduced judicial oversight.
The proposed change in habeas corpus would undermine the historic role of the Federal courts in correcting unconstitutional state court convictions and sentences. If Congress is determined to make this alteration, it should at least address the question separately and carefully, rather than tagging it onto an antiterrorism bill.
These objectionable measures are not included in a promising alternative bill proposed by three Democratic representatives--John Conyers Jr. of Michigan, Jerrold Nadler of New York and Howard Berman of California.
Americans were shaken and angered by the explosion that shattered the Federal building in Oklahoma City and killed 169 people. Congress is right to give Federal law enforcement agencies more money and manpower. Diminishing American liberties is not the solution to terrorism.
[From the New York Times, Apr. 8, 1996]
Members of Congress are exploiting public concerns about terrorism to threaten basic civil liberties. Of these, not one is more precious than the writ of habeas corpus--the venerable Great Writ devised by English judges to guard against arbitrary imprisonment and, in modern terms, a vital shield against unfair trials.
Both the House and Senate have voted to weaken the modern version of habeas corpus beyond recognition. Invading the province of the independent Federal judiciary, their proposals would forbid judges from rendering their own findings of fact and law, virtually instructing the judges to decide cases against the petitioning prisoner. President Clinton, who has waffled on the issue, needs to warn Congress that he will not sign this unconstitutional measure just to get a terrorism law.
The writ has long been available in America to tell sheriffs and wardens to "produce the body" of the prisoner and justify the jailing in court. Congress applied the habeas corpus power in 1867 to give Federal district courts the power to review state criminal convictions. Since then, judges have set aside many sentences of prisoners who failed to receive fair trials, including some condemned to die because prosecutors concealed evidence of their innocence.
The antiterrorism bills contain provisions that would accelerate the executions of condemned prisoners, at great risk to their fundamental rights. These provisions have survived Congressional debate even though other provisions that might actually have done something about terrorism-- banning bullets that pierce police vests and tagging explosives to enable law enforcement to trace terrorist bombs--were scrapped on the House floor.
The most pernicious legal change would instruct Federal judges that they are bound by state court findings when determining the fairness of a prisoner's criminal trial. Only when those findings are "unreasonable" or flatly contradict clearly announced Supreme Court rulings can the Federal court overturn them. State courts rarely disobey the high court openly. But they still make serious mistakes. Federal judges have often found state court judgments woefully sloppy though masked in neutral language the new proposals would insulate from review.
A Supreme Court case from last year makes the point. By a distressingly thin 5-to-4 margin, the Court set aside the death sentence of a man whose murder conviction rested on the word of an informant whose potential motives for falsely accusing him were known to the police but concealed from the defense. The condemned man's conviction survived many layers of state and Federal judicial review before reaching the Supreme Court. Under the proposal in Congress, the defendant, instead of getting a new trial, would get the chair.
By essentially telling independent Federal judges how to decide cases, the bill unconstitutionally infringes on the jurisdiction of a coordinate branch of government and potentially violates the Constitution's stricture that the writ of habeas corpus shall not be suspended except in time of war or dire emergency. It also includes unrealistic deadlines for filing court petitions and undue restraints on legal resources available to prisoners. Unless a Senate-House conference committee can disentangle habeas corpus from terrorism, Mr. Clinton has a duty to warn that he will veto the entire package.
[From the New York Times, July 7, 1995]
Boston.--For Bill Clinton's natural supporters, the most painful realization of his Presidency is that he is a man without a bottom line. He may abandon any seeming belief, any principle. You cannot rely on him.
There is a telling example to hand. As the Senate debated a counterterrorism bill last month, Mr. Clinton changed his position on the power of Federal courts to issue writs of habeas corpus. The Senate then approved a provision that may effectively eliminate that power.
The issue may sound legalistic, but habeas corpus has been the great historic remedy for injustice. By the Great Writ, as it is called, Federal courts have set aside the convictions of state prisoners because they were tortured into confessing or convicted by other unconstitutional means.
In recent years conservatives in Congress have attacked the habeas corpus process because it delays the execution of state prisoners on death row. Some prisoners do file frivolous petitions. But in other cases conservative Federal judges have found grave violations of constitutional rights-- ones not found in state courts, often because the defendants had such incompetent lawyers.
After the Oklahoma City bombing, Senate Republicans decided to attach a crippling habeas provision to the counterterrorism bill. On May 23 four former Attorneys General, Democrats and Republicans--Benjamin Civiletti, Nicholas deB. Katzenbach, Edward H. Levi and Elliot L. Richardson--wrote President Clinton urging him to oppose it.
"It is vital," they wrote, "to insure that habeas corpus--the means by which all civil liberties are enforced-- is not substantively diminished.
. . . It has a proud history of guarding against injustices born of racial prejudice and intolerance, of saving the innocent from imprisonment or execution and in the process insuring the rights of all law-abiding citizens."
Two days later President Clinton wrote the Senate majority leader, Bob Dole, to say that he favored habeas corpus reform so long as it preserved "the historic right to meaningful Federal review." The issue should be addressed later, he said, not in the counterterrorism bill.
Then, on June 5, Mr. Clinton appeared on television on CNN's "Larry King Live." Asked about habeas corpus, he said reform "ought to be done in the context of this terrorism legislation."
It was a complete switch from his position of less than two weeks before. And it had the effect of undermining Senate supporters of habeas corpus.
Two days later the Senate approved the Republican measure. The House has also passed stringent restrictions on habeas corpus, so almost certainly there will be legislation putting a drastic crimp on the historic writ.
The Senate bill says that no Federal court may grant habeas corpus to a state prisoner if state courts had decided his or her claim on the merits--unless the state decision was "contrary to, or involved an unreasonable application of" Federal constitutional law as determined by the Supreme Court.
That language seems to mean that Federal judges must overlook even incorrect state rulings on constitutional claims, so long as they are not "unreasonably" incorrect. It is a new and remarkable concept in law; that mere wrongness in a constitutional decision is not to be noticed.
Experts in the field say the provision may effectively eliminate Federal habeas corpus. It signals Federal judges to stay their hands. And what Federal judge will want to say that his state colleagues have been not just wrong but "unreasonable"?
The President explained to Larry King that attaching the habeas corpus provision to the counterterrorism bill would speed proceedings in the prosecutions brought over the Oklahoma bombing. But those are Federal prosecutions, not covered by this bill.
No, the reason for President Clinton's turnabout is clear enough. He thinks there is political mileage in looking tough on crime. Compared with that, the Great Writ is unimportant.
In 1953 Justice Hugo L. Black wrote: "It is never too late for courts in habeas corpus proceedings . . . to prevent forfeiture of life or liberty in flagrant defiance of the Constitution." Now, thanks to Bill Clinton and the Republicans in Congress, it may be.
[From the New York Times, Dec. 8, 1995]
An Illinois man who had been on death row for 11 years, Orlando Cruz, had a new trial last month and was acquitted of murder. The record, including police perjury, was so rank that the Justice Department has begun investigating possible civil rights violations.
In the last 20 years, 54 Americans under sentence of death have been released from prison because of evidence of their innocence. In an important pending case, a U.S. Court of Appeals has scheduled a hearing for Paris Carriger, an Arizona death row inmate who some usually skeptical criminologists believe is probably innocent.
Congress is now preparing to deal with the fact that innocent men and women are occasionally sentenced to death in this country. Congress's answer is: Execute them anyway, guilty or innocent.
That result will follow, inevitably, from legislation that is heading for the floor of the House and has already passed the Senate. It would limit Federal habeas corpus, the legal procedure by which state prisoners can go to Federal courts to argue that they were unconstitutionally convicted or sentenced.
Federal habeas corpus has played a crucial part in saving wrongly convicted men and women from execution. One reason is that state judges, most of them elected, want to look strongly in favor of capital punishment. For example, Alabama judges have rejected 47 jury recommendations for life sentences, imposing death instead, while reducing jury death sentences to life only 5 times.
The habeas corpus restrictions moving through Congress would increase the chance of an innocent person being executed in two main ways.
The first deals with the right to bring in newly discovered evidence of innocence in a fresh habeas corpus petition. There are legal rules against successive petitions, but there is an escape hatch for genuine evidence of innocence.
Today a prisoner is entitled to a habeas corpus hearing, despite the rules against repeated petitions, if his new evidence makes it "more likely than not that no reasonable juror would have convicted him." The pending legislation would change the "more likely" standard to the far more demanding one of "clear and convincing evidence."
Second, the legislation as passed by the Senate raises a new obstacle. Federal courts would be forbidden to grant habeas corpus if a claim had been decided by state courts-- unless the state decision was "an arbitrary or unreasonable" interpretation of established Federal constitutional law.
Apparently, a Federal judge could not free a probably innocent state prisoner if he had been convicted as the result of a state court constitutional ruling that was merely wrong. It would have to be "unreasonably" wrong--a remarkable new concept.
Why would members of Congress want to increase the chances of innocent men and women being gassed or electrocuted or given lethal injections? Perhaps I am naive, but I find that difficult to understand.
The country's agitated mood about crime, fed by demagogic politicians, makes Congress--and Presidents--want to look tough on crime. One result is zeal for the death penalty.
But that cannot explain a zeal to cut off newly discovered evidence of a prisoner's likely innocence and execute him, guilty or innocent. Can our political leaders really be so cynical that they put the tactical advantage of looking tough on crime ahead of an innocent human life?
It is a question for, among others, Senator Orrin Hatch and Representative Henry Hyde, chairmen of the Senate and House Judiciary Committees. Whatever their political outlook, I have never thought them indifferent to claims of humanity.
President Clinton must also face the reality of what this legislation would do. Last May he wrote Senator Bob Dole that he favored habeas corpus reform so long as it preserved "the historic right to meaningful Federal review." He opposed adding a habeas corpus provision to counterterrorism legislation--but a few days later he abandoned that position.
In the House the clampdown on habeas corpus is going to be part of a counterterrorism bill coming out of the Judiciary Committee. The bill has many other problems, of fairness and free speech. But the attack on habeas corpus is a question of life and death.
[From the New York Times, Apr. 15, 1996]
Washington.--In one significant respect, Bill Clinton's Presidency has been a surprising disappointment and a grievous one. That is in his record on civil liberties.
This week Congress is likely to finish work on legislation gutting Federal habeas corpus, the historic power of Federal courts to look into the constitutionality of state criminal proceedings. Innocent men and women, convicted of murder in flawed trials, will be executed if that protection is gone.
And President Clinton made it possible. With a nod and a wink, he allowed the habeas corpus measure to be attached to a counterterrorism bill that he wanted--a bill that has nothing to do with state prosecutions.
House and Senate conferees are likely to finish work on the terrorism bill this week, and both houses to act on it. Last week Attorney General Janet Reno sent a long letter to the conferees. Reading it, one is struck by how insensitive the Clinton Administration is to one after another long- established principle of civil liberties.
The letter demands, for example, that the Government be given power to deport aliens as suspected terrorists without letting them see the evidence against them--arguing for even harsher secrecy provisions than ones the House struck from the bill last month. It says there is no constitutional right to see the evidence in deportation proceedings, though the Supreme Court has held that there is.
Ms. Reno denounces the House for rejecting a Clinton proposal that the Attorney General be allowed to convert an ordinary crime into "terrorism" by certifying that it transcended national boundaries and was intended to coerce a government. Instead, in the House bill, the Government would have to prove those charges to a judge and jury--a burden the Clinton Administration does not want to bear.
The Reno letter objects to "terrorists" being given rights. But that assumes guilt. The whole idea of our constitutional system is that people should have a fair chance to answer charges before they are convicted. Does Janet Reno think we should ignore the Fourth and Fifth and Sixth Amendments because they protect "criminals"? Does Bill Clinton?
Even before the terrorism bill, with its habeas corpus and numerous other repressive provisions, the Administration had shown a cavalier disregard for civil liberties. The Clinton record is bleak, for example, in the area of privacy.
President Clinton supported the F.B.I.'s demands for legislation requiring that new digital telephone technology be shaped to assure easy access for government eavesdroppers. That legislation passed, and then the Administration asked for broader wiretap authority in the counterterrorism bill. (That is one proposal Congress seems unwilling to swallow.)
The President also supported intrusive F.B.I. demands for ways to penetrate methods used by businesses and individuals to assure the privacy of their communications. He called for all encryption methods to have a decoder key to which law- enforcement officials would have access.
Recently Mr. Clinton issued an executive order authorizing physical searches without a court order to get suspected foreign intelligence information. That is an extraordinary assertion of power, without legislation, to override the Constitution's protection of individuals' privacy.
He has also called for a national identity card, which people would have to provide on seeking a job to prove they are not illegal aliens. That idea is opposed by many conservatives and liberals as a step toward an authoritarian state.
Beyond the particular issues, Mr. Clinton has failed as an educator. He has utterly failed to articulate the reasons why Americans should care about civil liberties: the reasons of history and of our deepest values. This country was born, after all, in a struggle for those liberties.
His record is so disappointing because he knows better. Why has he been so insensitive to the claims of liberty?
The answer is politics: politics of a narrow and dubious kind. The President wants to look tough on terrorism and aliens and crime. So he demands action where there is no need or public demand. Without his push, the excesses of the terrorism bill would have no meaningful constituency.
He would do better for himself, as for the country, if he stood up for our liberties. And there is history. Does Bill Clinton really want to be remembered as the President who sold out habeas corpus?
Finally, H.R. 2703 contains provisions to reform Federal habeas corpus procedures. The Administration has consistently and strongly supported habeas corpus reform in order to assure that criminal offenders receive swift and certain punishment. Indeed, the Administration believes that the bill could be improved to provide additional guarantees that offenders have only "one bite at the apple" and complete the process even more expeditiously. These further limitations should be accompanied by necessary changes in the scope of review afforded to such petitions. H.R. 2703 would establish a standard of review for Federal courts on constitutional issues that is excessively narrow and subject to potentially meritorious constitutional challenges. To achieve the twin goals of finality and fairness. H.R. 2703 should shorten the duration and reduce the number of reviews for each criminal conviction while preserving the full scope of habeas review so that it can continue to serve its historic function as the last protection against wrongful conviction. The Administration hopes to work with the House and the conferees to achieve these ends.
Mr. DOLE. Mr. President, is leader time reserved?
The Presiding Officer: Yes.
