The Senate continued with the consideration of the conference report.

Motion to Recommit

Mr. Biden: Mr. President, I offer a motion to recommit the conference report with instructions to add provisions on wiretap authority for terrorism crimes. I send the motion to the desk.

The Presiding Officer: The clerk will report. The legislative clerk read as follows:

The Senator from Delaware [Mr. Biden] moves 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. . AUTHORIZATION FOR INTERCEPTIONS OF COMMUNICATIONS IN CERTAIN TERRORISM RELATED OFFENSES.

Section 2516(1) of title 18, United States Code, is amended--

(1) in paragraph (c)--

(A) by inserting before "or section 1992 (relating to wrecking trains)" the following: "section 2332 (relating to terrorist acts abroad), section 2332a (relating to weapons of mass destruction, section 2332b (relating to acts of terrorism transcending national boundaries), section 2339A (relating to providing material support to terrorists), section 37 (relating to violence at international airports),"; and

(B) by inserting after "section 175 (relating to biological weapons)," the following: "or a felony violation under section 1028 (relating to production of false identification documentation), sections 1541, 1542, 1543, 1544, and 1546 (relating to passport and visa offenses),";

(2) by striking "and" at the end of paragraph (o), as so redesignated by section 512(a)(2);

(3) by redesignating paragraph (p), as so redesignated by section 512(a)(2), as paragraph (s); and

(4) by inserting after paragraph (o), as so redesignated by section 512(a)(2), the following new subparagraphs:

(p) any violation of section 956 or section 960 of title 18, United States Code (relating to certain actions against foreign nations);

(q) any violation of section 46502 of title 49, United States Code; and.

The Presiding Officer: The time is 30 minutes equally divided.

Mr. Biden: Mr. President, I yield myself such time as I may consume within my allotted time.

Mr. President, before I begin on this amendment, I want to just tell you, and all of my colleagues who may be listening back in the offices, that while the last vote was going on a colleague of ours, Senator Wendell Ford, came to the floor and said, "Let me show you something my staff just downloaded from the Internet." While you were all voting on whether or not to prohibit people from being able to teach people how to make bombs knowing or intending they be used to violate the law, let me read what was downloaded. This is roughly at 3:20 p.m. today.

Attention all Unabomber wannabes. You will first have to make a mild version of thermite. Use my recipe but substitute iron filings for rust. Mix the iron with aluminum filings in a ratio of 75 percent aluminum, 25 percent iron. This mixture will burn violently in a closed space (such as an envelope). This brings us to the next ingredient. Go to the post office and buy an insulated (padded) envelope. You know, the type that is double layered. Separate the layers and place the mild thermite in the main section where the letter would go. Then place magnesium powder in the outer layer. There is your bomb!!

Now to light it. This is the tricky part, and hard to explain.

I am still quoting now.

Just keep experimenting until you get something that works. The fuse is just that torch explosive I have told you about in another one of my anarchy files. You might want to wrap it like a long cigarette, then place it at the top of the envelope in the outer layer (on top of the powdered magnesium). When the torch explosive is torn, or even squeezed hard, it will ignite the powdered magnesium (sort of a flash light) and then it will burn the mild thermite. If the thermite did not blow up, it would at least burn your enemy (it does wonders on human flesh).

You all just voted to keep that legal--to keep that legal--because of the fear, apparently, or concern that we would not be able to convince 35 recalcitrant House Members to make that illegal. That is what you did. That is what you did.

I ask unanimous consent that this be printed in the Record along with the baby food bomb by Warmaster, also taken off the Internet.

For all of you who are concerned about the pornography on the Internet, as I am, how do you explain banning that, which we should, and not this? Pornography deforms the mind. These bombs burn the flesh.

I ask unanimous consent that these recipes available to our children and the demented people out there in the public, the few that exist, be printed in the Record to know what we have just done.

There being no objection, the material was ordered to be printed in the Record, as follows:

Mr. Biden: Mr. President, what I would like to speak to in an indirect way covers this. We have had several votes on wiretaps, and I know people are asking why am I introducing the other wiretap provision that was taken out of the Senate bill. The reason I am is I refuse to believe that, if you all hear this enough, you will not eventually decide to do the right thing on this.

The provision that I have proposed is not original with me. It was in the Senate bill that we passed. The provision would add a number--the bill we have before us, the conference report--would add a number of terrorism-related offenses to the law. I will go into those in a minute. What I have sent to the desk, if adopted, would instruct the conferees to add the same number of offenses that we are adding to the bill, to the law, to those categories of things for which the Government, with probable cause, can get a wiretap. It was in the Senate bill as introduced by Senators Hatch and Dole. It was part of the terrorism bill reported out of Representative Hyde's Judiciary Committee. Unfortunately, by the time the bill had made it to the House, the provision was dropped.

I think it is worth talking a moment about how a wiretap statute works, the one that is in place now in the law, for it seems there is a lot of misunderstanding about it these days. I am repeating myself again to eliminate the misunderstanding. As some people tell it, you would think the FBI and BATF and the local and State police are tapping our phones left and right, that they are riding down the streets in vans with electronic devices eavesdropping into our windows and houses--which they have the capacity to do, by the way. But that is just not the way it works.

First and foremost, it is not an FBI agent but a U.S. attorney, or even the Attorney General herself, who has the power to authorize the wiretap. No. Actually, that is not quite true. The ultimate authority to issue a wiretap sits only with a Federal judge. The U.S. attorney has the power to petition the court for a wiretap, but only a judge, a judge who cannot be fired, whose salary cannot be docked by any of us in Washington, who cannot be affected in any way, only a judge may disagree with something that the Attorney General does or does not do. It is that judge who must determine that there is probable cause to believe that a specific crime--not a general crime--a specific crime has been--not is about to--has been committed; that specific people are committing that crime, and that they are doing it at a specific place. The affidavit that the U.S. attorney takes to the court, to the judge, must also satisfy what is called the necessity requirement. The judge must be convinced that other less intrusive investigative procedures have been tried and failed--that is infiltration, that is eavesdropping in a conversation, walking by, any other method--has to be convinced that they have been tried and failed or that they are unlikely to succeed in any reasonable circumstance.

That necessity requirement is meant to ensure that wiretapping is not the normal investigative technique, like physical surveillance or the use of informants. These are very serious protections, Mr. President. I believe that interposing a court between the prosecutor and the wiretap is a citizens' best protection.

But even before we get to the judge who makes his decision, there is a very painstaking, stringent process within the Justice Department for determining when to seek a court authorization for a wiretap.

First, the agent in the field, under the supervision of his or her supervisor, must write an affidavit, a sworn affidavit, that they must sign that sets out all the particular facts relating to probable cause, because even if an order is granted based on the agent, if he is lying, then that information is gone even if the judge issued the wiretap order.

So, on the front end, you have to have a sworn law enforcement officer swear that the information they are writing down as to why they think a crime has been committed is true. They are liable. An assistant U.S. attorney then must take that affidavit from the FBI agent and draft an application and a proposed order for the court to sign. The package then must be sent from the U.S. attorney in Wilmington, DE, or in Manchester, NH, and sent down to Washington. The U.S. attorney cannot just walk into the courtroom of the Federal judge or to any of the judges, and say, "Judge, I want a wiretap." They must send it down to Washington. Once the package is sent to Washington, the Criminal Division of the Justice Department takes a look and scrutinizes the affidavit and discusses any necessary changes or additions or questions they have with the U.S. attorney that is handling the case back in Manchester, Wilmington, or Salt Lake City.

Then a detailed memorandum summarizing the facts and legal issues and addressing the application's compliance with each statutory requirement is sent to the Assistant Attorney General. All these materials are then sent to the Assistant Attorney General or Deputy Attorney General for final review and final authorization, and then it is sent back to Manchester, sent back to Wilmington, sent back to Salt Lake City. The U.S. attorney then petitions the court and then goes in and sees a judge.

This is painstaking. It is time consuming, as well it should be, for we want to make sure that wiretaps are used in only the most serious cases. We want to make sure that they are used only as a last resort when all other less intrusive techniques have failed, and we want to make sure that the Government is not making unwarranted intrusions into our privacy. But we also need to make sure that law enforcement has the tools, if they meet all these hurdles, to catch the bad guy.

Now, this provision that I have offered, that we already voted on, will provide an important tool. Let me just point out there is currently a very long list of crimes for which a wiretap can be authorized. Let me make this point because a lot of nonlawyers or people who do not practice criminal law are not aware of this as well.

You cannot get a wiretap, even if you do all the things I just said, unless you turn to the Criminal Code, and you have all these crimes listed in the Criminal Code. OK. You may find a crime in one section, and then you have to turn to another section, section 251, of the Criminal Code entitled, "Authorization for Interception of Wire, Oral or Electronic Communications." And then you have to find there in subsection (c) the list of offenses for which you can get a wiretap. Not every crime is entitled to have a wiretap attached to it.

So it is a two-step process. First, you have to prove there is a crime being committed that is a violation of the Federal law. Second, you have to go through all these procedures that I outlined to safeguard that it is not willingly used by the Government to intrude on your privacy. And then, in that process, you have to make sure it is a listed crime for which you can seek a wiretap. OK.

Now, some of those crimes for which you can seek a wiretap are murder, kidnaping, robbery, extortion, bribing public officials, witnesses, or bank officials, obstructing justice, criminal investigations or law enforcement, all manner of fraud and embezzlement, destroying cars, wrecking trains. They are all listed, all listed. And this list goes on.

The provision I am suggesting here does only one minor thing: It would add a very serious and potentially deadly terrorism offense to that list, including new offenses that are added in this legislation. The legislation we are voting on, the conference report is this thing, and in here, to the credit of the chairman and I believe to me and others who worked on this, we add new crimes, new Federal crimes, terrorism crimes for which the Federal Government can go after you if you do these bad things. But we miss one important step. We do not take these new laws and add them to the list of those things for which you can get a wiretap. This would do that, would allow wiretaps with all the procedures for the new crimes of terrorism we have in here.

It is ironic. At first I thought it was an oversight, but obviously it is intended that you not be able to use wiretaps to deal with terrorism as we outlined in the bill.

I assume my time has expired.

The Presiding Officer: The time of the Senator has expired.

Mr. Biden: I thank the Chair.

Mr. Hatch addressed the Chair.

The Presiding Officer: The Senator from Utah is recognized for 15 minutes.

Mr. Hatch: We have been doing this for a year. We are trying to pass a bill here that will make a difference against terrorist crimes. I can say categorically that there is virtually always a way to get wiretaps if the prosecution wants it, if the law enforcement people want it. To just add the word terrorism, that would be efficacious, but it still would not stop anybody--if you do not add it, it still would not stop anybody from getting the necessary wiretaps in the case of suspected terrorists.

We can overdue these technicalities to the end of the doggone Congress. The fact is, this bill contains alien terrorist removal provisions that will make a real difference. It contains designation of terrorist organizations that we do not have right now, neither of these provisions, that will make a real difference today. We have Hamas people in this country who want to murder our Jewish citizens, just to mention a few. We have Abu Nidal people in this country who want to murder our Jewish citizens and others, do anything to disrupt our economy. We have other terrorist organizations in this country. We have at least 1,500 known terrorists and organizations in this country. And we are standing here debating whether or not we should put a word into the bill.

Now, I agree I would love to put it in, but in this year-long set of negotiations and work with the other body, they did not want it put in that way. They are concerned that we are expanding wiretapping too far. It is a legitimate concern.

This world is turned upside down. When I got here 20 years ago, the conservatives wanted the wiretapping because they wanted to stop all crimes. The liberals did not want it because they were concerned about civil liberties. I can remember the battles we had in the Judiciary Committee, and they were heated and intense.

Today, it is the opposite. The conservatives, some conservatives, especially those on the far right--and I might add, the far left liberals still do not want wiretapping, but the far right conservatives are concerned because they feel like justice went awry in Waco and Ruby Ridge, the Good Ol' Boys roundup and other matters. Those are legitimate concerns that they bring.

Let me just say this. I would not mind putting this in the bill if I could at this point, but I cannot and still have a bill. We have a bill that has alien terrorist removal provisions. It would help this country all over the world. It would help other countries all over the world. Designation of terrorist organizations, we start to put a stop to terrorist organizations. It would certainly stop the fundraising. We have language that will stop the raising of funds in the United States of America that are sponsoring terrorism all over this world.

These are big provisions. These are things that can make a difference. We can get around these other technicalities, and we can get wiretaps if we need them. But we cannot get these things without this bill.

Summary exclusion of alien terrorists, we have a right to do it because of this bill. These were provisions we had to fight to get back into the bill that we had written in the Senate, provisions that will make a difference, not some technicality that is important and I would like to have in, that the Senator from Delaware would like to have in, and rightly so. I do not have any problem with that. We have not been able to get those technicalities in, but there are ways around those technicalities today without having them in. There are no ways around these provisions, none. We cannot do these things without this bill. Without this bill we could not stop many major terrorist problems in this country that could happen in the future.

We have language in here on biological weaponry, something that is critical. Every one of us is concerned about that, and rightly so. We succeeded in getting the House to tighten up and toughen up those provisions dealing with the transportation and sale of human biological agents. That needs to be done. We should not wait a day longer; we should not wait an hour longer to get that done. We have criminal alien removal procedures. When these criminal aliens get convicted, the minute their sentence is over, they are moved. We get them out of this country so they cannot just waltz out of the jail and go and start doing further terrorist activities.

We have $1 billion in authorization money in this bill, to go to work tomorrow, if we pass this bill and as soon as the President signs it, to go to work to fight against this terrorist activity.

We have language in here that goes a long way toward tagging explosives. I could go on and on. I could talk for 4 or 5 hours on what is in this bill and why it is going to make a difference against terrorism.

I have to say my colleague from Delaware deserves his reputation as a very fine lawyer and somebody who is bringing up very good points here. Most of the language he has brought up, I wrote. Naturally, some of it I would like to have in the bill. But we can get around most of those problems with current criminal law. We cannot get around these problems I am discussing with regard to terrorism.

Let me just say on wiretapping alone, just so people understand how serious this is, in 18 United States Code, section 2518, it says:

Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, [any, by the way] specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that--

(a) an emergency situation exists that involves--

(i) immediate danger of death or serious physical injury to any person,

(ii) conspiratorial activities threatening the national security interest, or

(iii) conspiratorial activities characteristic of organized crime, that requires a wire, oral, or electronic communication to be intercepted before an order authorizing such interception can, with due diligence, be obtained. . . .

I would like all this clarifying language in. I would not mind having it. We had it in the Senate bill and we have worked for a year to try to get it back in and almost every major, big provision we have gotten back in. Some of this we have not. But we have ways to get around those problems.

I will repeat it. Talking in real terms, realistically, there is always a way to do it if it has to be done, to get a wiretap. But there is not always a way to remove terrorist aliens. There is not a way right now to designate terrorist organizations as terrorists and to start branding them for what they are all over the world and start using the force of American power and law against them. There is no real way to stop fundraising today for terrorist organizations in this country.

I might say there is no summary exclusion of alien terrorists today. We do not have any aspects against biological weapons.

I was the one who held the hearing just a month or so ago, showing where you could get--anybody if they were clever enough, could get human pathogens that could cause major diseases all over this country.

I might add, we do not have any current criminal alien removal procedures. This bill grants all of that.

We do not have habeas corpus reform, death penalty reform in this country. That alone, the people who have suffered, the victims of the Oklahoma City bombing would be enough to justify this bill. But I am giving you big-time stuff that will make a difference against terrorism. These other matters, we can get around those in most instances.

I am telling you, I will just say one other thing. I am committing right here on the floor today I will do everything in my power, as chairman of the Judiciary Committee and as one of 100 Senators here, to try to correct some of these matters in the future, after we have these studies that help us to know how to correct them and after we can get rid of some of these perceptions that law enforcement is too intrusive and is not protective of the civil rights and liberties of people in this country.

I believe it is. I believe our law enforcement people are the best in the world. We have occasional mistakes, but I think the FBI is the best in the world. I think our Justice Department is the best in the world. I think ATF does a very good job and they are cleaning up a lot of problems that have existed in the past in the eyes of most people who own guns in this country, and they are doing it, I think, in an expeditious and good way. I am proud of the law enforcement in this country. I want to give them the tools and I want to work hard to make sure we have them. But we have to give them these tools now. We have to start fighting terrorism, instead of really babbling, here, on the floor of the U.S. Senate.

The longer we go the more difficult it is to get this through over in the House. If we change one word of this and go back to conference, I can tell you right now we are in danger of losing the bill. So, sure I can improve any bill. Just make me a dictator and let me write whatever I want to and I guarantee you it will be perfect. At least that is the idea of some people in this body. But we have to live in the real world of bringing 100 Senators, 435 Representatives--535 minds together and, by gosh, we have done a pretty good job.

When the Senator read the Internet bomb description, had his idea-- and I might add even I would agree with the idea--been the law, he might have been in violation of his own law. The fact of the matter is, there are still ways of getting around that problem. We can go after bomb makers, under this bill. We can make a difference.

I just wanted to mention a few things that we are really fighting for here, major issues, major issues that can help us against crime, against terrorism, that will help to prevent future terrorist activities. Do we have everything in this bill? I said from the beginning, no, we do not, because we have to bring together at least half of the 535 people serving in both Houses of Congress. But we have a lot of things in this bill I never thought we would get there, through 535 people. This is a bipartisan bill. It is a bill that both Republicans and Democrats have fashioned. Frankly, I am proud of it and I would like to get about passing it.

In that regard, then, on behalf of Senator Dole and myself, I move to table the Senator's motion and I ask for the yeas and nays.

The Presiding Officer (Mr. Kempthorne). Is there a sufficient second?

There is a sufficient second.

The yeas and nays were ordered.

The Presiding Officer: The Senator from Delaware.

Mr. Biden: Mr. President, may I make a suggestion? There are several colleagues who apparently will have difficulty getting here in the next 5 minutes for this vote. Senator Kennedy is on the floor, ready to proceed with an amendment. Maybe we could just stack the two? I have been opposing stacking them all day.

Mr. Hatch: Mr. President, I ask unanimous consent we stack the next two votes to occur immediately after the time expires on Senator Kennedy's amendment.

The Presiding Officer: Without objection, it is so ordered.

The Senator from Delaware.

Mr. Biden: Mr. President, I yield myself 60 seconds on the bill. I have two responses.

My distinguished and able colleague has mixed up apples and oranges here. The section he read from the wiretap statute related to emergency wiretaps that do not require a court order at the front end.

What we are talking about are wiretaps where they want to go in and we want to prove they have probable cause to get the wiretap in the first case.

Second, I agree with everything that he says about the good parts of the bill. They were in the same bill I introduced, most of those things. I am for them. But the problem is, he mentioned there are 1,500 terrorists out there, or whatever the number. Under the bill now we create a new crime relating to providing material support for terrorists, if you send money to Hamas and provide material support or an automobile or a train ticket or whatever it is, and it is not a crime. It is a Federal crime now, but one for which you cannot get a wiretap. That seems to make no sense to me and that is why I have introduced this amendment.

I yield the floor to my friend from Massachusetts.

Mr. Hatch: Mr. President, if my friend from Massachusetts will just allow me to respond for 15 seconds, I will just make the statement again. Realistically, in this real world, if law enforcement wants to get a wiretap, whether emergency or otherwise, it is going to be able to get it. That has been my experience and I think it has been the experience of every prosecutor, I think, in this country.

Mr. Biden: I yield myself 15 more seconds on the bill. That is the very thing we do not want to happen. We want prosecutors to operate under the law. We do not want to further ignite the imagination of those folks over in the House. We want them to do it by the numbers, not with imagination.

Mr. Hatch: Mr. President, I would just add, they will do it by the law, but realistically they can do it. I have also said that I will work with the distinguished Senator from Delaware to try to resolve these problems in a formal bill in the future, as we examine this more carefully. I think we can do that job. But it is misleading, to think the American people are not going to be protected, from a wiretap standpoint, when I know the law enforcement officials can use wiretaps and can get them, realistically, in almost every situation.

The Presiding Officer: The Senator from Massachusetts.

Mr. Kennedy: Mr. President, I ask unanimous consent that I may speak on the conference report without the time being charged to the remaining 20 minutes of the general debate.

The Presiding Officer: Is there objection? Without objection, it is so ordered.

Mr. Kennedy: Mr. President, it is a year since the tragic bombing of the Federal building in Oklahoma City, and 10 months since the Senate passed a bill to give Federal law enforcement agencies the effective assistance they need to deal with these crimes.

Unfortunately, the conference report before us is a far weaker bill than the measure we passed last year. All that is left now is the hollow shell of a terrorism bill, a mockery of the strong bipartisan legislation passed by the Senate. Most of the meaningful antiterrorism measures passed by the Senate have been stripped out by the House, so that this bill is far less likely to deter terrorist crimes or aid in the apprehension of terrorists.

Using the phony label of antiterrorism, the bill achieves two reprehensible goals: it denies meaningful habeas corpus review to State death row inmates, and it makes it easier to turn away refugees and victims of political persecution from America's shores.

Everyone knows what happened to this bill. It fell victim to the anti-Government assault of the National Rifle Association. After the Senate passed a tough, effective terrorism bill, the NRA stepped in and prevented House action for months. Then the NRA's supporters in the House stripped the bill of key provisions to strengthen Federal law enforcement.

As a result of the NRA's maneuvering, the conference report before us is completely inadequate to meet the needs of law enforcement. The Senate still has a chance to insist on a real terrorism bill, and not a sham bill. We should send this bill back to conference, and insist that the conferees restore the tough Senate provisions.

There are numerous glaring gaps in the conference report:

It does not include the expanded wiretapping authority that the FBI has said is necessary to keep up with current telecommunications technology.

It does not address the dangerous reality that bomb-making information is now freely disseminated on the Internet.

It does not include a Senate-passed provision extending the statute of limitations for serious firearms offenses.

It does not include a necessary exception to the posse comitatus laws so that military experts can provide technical assistance to law enforcement in terrorist attacks involving chemical or biological warfare.

Each of these measures was included in the Senate bill, but has been stripped out of the conference report at the insistence of the NRA.

And while the bill is clearly deficient in these respects, it includes other provisions that are too extreme in limiting the rights and liberties of individuals:

It eviscerates the ancient Writ of Habeas Corpus, denying death row inmates the opportunity to obtain even one meaningful Federal review of the constitutionality of their convictions.

It returns to the discredited cold war guilt-by-association policy of the McCarran-Walter law, excluding individuals from our shores based on mere membership in an organization. Current law already contains authority to exclude members of known terrorist organizations. The far broader sweep of this bill is unnecessary and excessive.

It places excessive restrictions on the ability of refugees to obtain asylum in the United States. This provision was never considered by the full Senate, and it ought to be debated on the immigration bill, not the terrorism legislation.

Mr. President, I point out here what has been happening. Asylum claims decline 57 percent as productivity doubles in 1995. What we have seen is the dramatic reduction in terms of the asylum claims. In 1994, there were 122,000; 60,000 completed.

In 1995, 53,000; 126,000 were completed. The Justice Department has a handle on this issue. It is doing it in a conscientious, fair, and disciplined way, and we ought to retain it and not be caught up with other facts and figures.

Every omnibus bill requires Members of Congress to weigh the good provisions against the bad ones. I voted for the Senate bill even though it included the objectionable limits on habeas corpus. But the balance has changed, now that the Senate bill has been seriously weakened. There is too little to place on the scale against the shameful trashing of the writ of habeas corpus and the Nation's asylum system.

It is unfortunate that the unrelated and controversial subject of habeas corpus was injected into this bill in the first place. Proponents say that habeas corpus is relevant because the suspects in the Oklahoma City bombing are charged with a Federal capital offense. But that fact is no justification for changing the rules with regard to State prisoners.

The habeas corpus proposals do not strike a fair balance. The bill denies death row inmates a full opportunity to raise claims of innocence based on newly discovered evidence. It will therefore increase the likelihood that innocent people will be executed. The proposal to limit inmates to one bite at the apple is sound in principle. But surely the interest in swift executions must yield to new evidence that an innocent person is about to be put to death. As Supreme Court Justice Potter Stewart once wrote, "Swift justice demands more than just swiftness."

Also, the proposal would unwisely require Federal courts to defer to State courts on issues of Federal constitutional law. A Federal court could not grant a writ habeas corpus based on Federal constitutional claims, unless the State court's judgment was "an unreasonable application of Federal law."

It is a serious mistake to require a Federal court to defer to the judgment of a State court on matters of Federal constitutional law. The notion that a Federal court should be prevented from correcting a constitutional error because it was a reasonable error is unacceptable, especially in a capital case. Ever since the days of Chief Justice John Marshall, the Federal courts have served as the great defenders of constitutional protections, and they should remain so.

The asylum provisions in this bill are equally misguided.

The Senate-passed bill did not address this subject, because it is more appropriately dealt with as part of immigration reform. But the conferees adopted House-passed language that drastically limits the ability of refugees to claim asylum if they arrive without proper documents. This provision undermines the fundamental treaty obligations of the United States by subjecting legitimate refugees to persecution and even torture.

It is often impossible for asylum seekers fleeing persecution to obtain a valid passport or travel document before they leave. Even the effort to obtain a travel document from the same government that is the persecutor may result in further danger to the asylum seeker. People may die or may be tortured while waiting for the proper papers. Accepting this reality, the U.N. High Commission on Refugees has recognized that circumstances may compel a refugee to use fraudulent documents to escape persecution.

This fact has long been recognized under international law. The United States has international obligations to protect refugees and asylum seekers who use fraudulent documents to escape persecution abroad. Article 31 of the U.N. Convention Relating to the Status of Refugees imposes an obligation on the United States not to penalize refugees and asylum seekers who are fleeing persecution, and who present fraudulent documents or no documents at all.

Under current practice, when asylum seekers arrive in the United States without valid travel documents or a passport, they are placed in detention. Generally, they are released from detention only if an asylum prescreening officer believes they have a sound case. That is the dramatic change in the way the Justice Department is considering the asylum seekers at the present time and how they were considered a number of months ago. Otherwise, they must pursue their asylum claim while in detention.

The pending bill significantly changes this process. It gives the prescreening officer the authority to deport an asylum seeker who enters with false or no documents. The office can deport the asylum seeker without a full hearing. An immigration judge never sees the case. In addition, the asylum seeker has no access to the assistance of counsel or even an interpreter.

As we consider this unprecedented proposal, we should remind ourselves of Raoul Wallenberg, the hero who saved countless lives during the Holocaust by issuing false travel documents so that Jews could escape Hitler's persecution. If this bill had been law in 1946, those Jews could have been returned to Europe without so much as a hearing.

Finally, the bill is flawed because it excludes foreigners from our shores based on mere membership in a disfavored organization.

In the days of the cold war, distinguished writers, professors, and others were excluded from the United States based on their mere membership in a Communist organization. Finally in 1990, we repealed the notorious McCarran-Walter law and set exclusion criteria based on individual actions, not their words.

This bill is a giant step backward. It explicitly sets excessive exclusion criteria based on membership in an organization, even though it would be grossly unfair to assume that all or even most members of the organization are terrorists.

Current law already gives broad authority to exclude members of terrorist organizations in such cases, and the blunderbuss provision in this bill is unneeded. If applied to American citizens, it would be a violation of the first amendment.

The harm caused by the habeas corpus, asylum, and exclusion provisions of this bill is severe, and the good accomplished by the antiterrorism sections of the bill is minor. I urge the Senate to send this defective bill back to conference with instructions to do the job right--and produce a real antiterrorism bill that gives law enforcement the tools it needs to get the job done.

I thank the chairman and the ranking minority member of the committee for letting me address the Senate on this issue.

The Presiding Officer: The Senator from Utah.

Mr. Hatch: Mr. President, I have listened to my distinguished colleague and friend, and he would like to restore the Senate bill. We just cannot do that. I was very proud of that Senate bill. I wrote most of it and, frankly, I think our colleagues worked together to come up with a good bill. When it went to the House, the House enacted a bill which really was much less than the Senate bill. We have gone to conference and have brought most all of the Senate bill back.

The distinguished Senator from Massachusetts says that this bill we have today is a hollow shell. Now, come on. Let me just go through some highlights of this bill.

We have most everything back, and the things we do not have back, we can probably, in the real world, solve anyway, under current existing law. I have to say, yes, I would prefer the original Senate bill, but let me give you one illustration.

In the fundraising provisions, I might add that the Antidefamation League, and others of similar mind--and I am of similar mind--believe that our fundraising language is far superior in this bill than it was in the Senate bill. I know it is far superior.

We were able to work that out with our colleagues in the House. That alone is a reason for preferring this bill over the Senate bill, plus the added promise that I have made here that I will try to work out these wiretap and other issues, or at least the wiretap issues, in the Senate Judiciary Committee.

But just look at the highlights of this antiterrorism bill. Capital punishment reform, death penalty reform, something that has been needed for years, decades. It is being abused all over the country. There are better than 3,000 people who have been living on death row for years with the sentences never carried out, the victims going through the pain every time they turn around. This will solve that problem while still protecting their constitutional rights and every right of appeal that they really should have. It is written well.

The international terrorism prohibitions, prohibitions on international terrorist fundraising. As I have said, the Anti- Defamation League, AIPAC, and a whole raft of others that are concerned in this area, like the language in this bill much better than the language in the Senate bill.

This subtitle adds to Federal law prohibitions which provide material support to, or raise funds for, foreign organizations designated by the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, to be terrorist organizations.

We have the Terrorist and Criminal Alien Removal and Exclusion Act in this bill. We remove alien terrorists, and we provide very good language that was very much the same as the Senate language.

We have the exclusion of members or representatives of terrorist organizations, the alien terrorists exclusion, if you will. This permits, as a new legal basis for alien exclusion, the denial of entry into the United States of any person who is a representative or member of a designated terrorist organization.

We have a whole title on nuclear, biological, and chemical weapons restrictions. These are not picayune provisions. This is big-time stuff. This is something this country has needed for years and the whole world needs. We have it in this bill.

We have the expansion of scope and jurisdictional bases of nuclear materials prohibitions and a report to Congress on thefts of explosive materials from armories. We require the Attorney General, together with the Secretary of Defense, to undertake a study of the number of thefts of firearms, explosives, and other terrorist-type materials from military arsenals. We will make them get on these things.

We have biological weapons restrictions, enhanced penalties, and control of biological agents. We have chemical weapons restrictions, chemical weapons, and biological weapons of mass destruction. We provide for a study of the facility for training and the evaluation of personnel who respond to the use of chemical or biological weapons in urban or suburban areas.

We have the implementation of the Plastic Explosives Convention in here. We have the marking of plastic explosives. We have studies on the marking of other explosives and putting taggants on them.

We have made a whole bunch of modifications in criminal law to counterterrorism, increased penalties for conspiracies involving explosives. All this talk about explosives. We provide language in here that will help to solve those problems.

Acts of terrorism transcending national boundaries, we have language on that. We have criminal procedure changes in here that would make a real difference with regard to certain terrorism offenses overseas, the clarification of maritime violence jurisdiction, increased and alternate conspiracy penalties for terrorism offenses, clarification of Federal jurisdiction over bomb threats. The expansion and modification of weapons of mass destruction statute is in here, the addition of terrorism offenses to the money laundering statute.

We have the protection of Federal employees in here mainly because it is needed now in this day and age with some of the vicious people we have to put up with in our society. We have the protection of current and former officials in here, officers, employees of the United States.

We have the death penalty as an aggravating factor. We solve that and add multiple killings to the list of aggravating factors in the imposition of the death penalty. We have detention hearing language in here and directions to the sentencing commission.

I have to say, we have a whole raft of other things that I do not have time to mention. Look, it is time to pass this terrorism bill. It is time to let the people in Oklahoma City know we mean business here.

Is the time expired on both sides? On behalf of the majority leader and I, I move that we table the Kennedy amendment and ask for the yeas and nays.

The Presiding Officer: The yeas and nays have been ordered. The question occurs on agreeing to the motion to table.

Mr. Hatch: Mr. President, do we have motions to table on both of these amendments? And will they be back to back?

The Presiding Officer: There is only one amendment. The Senator from Massachusetts did not offer an amendment.

Mr. Hatch: He did not. I am happy to then proceed with the vote on the Biden amendment.

The Presiding Officer: The question occurs 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

The Presiding Officer: Are there any other Senators in the Chamber desiring to vote?

The result was announced--yeas 56, nays 43, as follows:

The motion to lay on the table the motion to recommit was agreed to.

Mr. Hatch: Mr. President, I move to reconsider the vote.

Mr. Dole: I move to lay that motion on the table.

The motion to lay on the table was agreed to.