[Page: S14227]

The Senate continued with the consideration of the bill.

Mr. SPECTER. Mr. President, have the yeas and nays been ordered on the Levin-Hatfield substitute?

Mr. LEVIN. I ask for the yeas and nays.

The PRESIDING OFFICER. Is there a sufficient second?

There is a sufficient second.

The yeas and were ordered.

Mr. SPECTER. Mr. President, I ask for the yeas and nays on the Specter bill.

The PRESIDING OFFICER. Is there a sufficient second? There is a sufficient second.

The yeas and nays were ordered.

The PRESIDING OFFICER. Who seeks recognition?

Under the previous order of the Senate, all time having expired on both the substitute amendment and on the underlying bill, the Senate will now vote on amendment No. 1068, offered by the Senator from Oregon [Mr. Hatfield], for himself, the Senator from Michigan [Mr. Levin], and the Senator from Rhode Island [Mr. Chafee].

The question is on agreeing to the amendment.

The yeas and nays have been ordered. The clerk will call the roll.

The legislative clerk called the roll.

Mr. CRANSTON. I announce that the Senator from New York [Mr. Moynihan] is necessarily absent.

The PRESIDING OFFICER (Mr. Kerrey). Are there any other Senators in the Chamber who desire to vote?

The result was announced, yeas 29, nays 70, as follows:

Rollcall Vote No. 274 Leg.

[Rollcall Vote No. 274 Leg.]




So the amendment (No. 1068) was rejected.


Mr. D'AMATO. Mr. President, I rise today not only in support of S. 1798, a bill to provide for the death penalty for the terrorist murder of U.S. nationals abroad, but also in honor of the memory of all the victims of such murders, including: Navy diver Robert Stethem, murdered in June 1985; U.N. military observer Lt. Col. Richard Higgins, kidnaped in February 1988, whose murder we learned of this year; and Leon Klinghoffer, murdered on October 1985.

Under this bill, there must be a determination made by the Justice Department that the murder in question was a terrorist act, that is, one `intended to coerce, intimidate, or retaliate against a government or a civilian population.' (21 U.S.C. 2331(e)).

I can think of no better example of a crime that undermines the foundations of society than a murder intended to coerce, intimidate, or retaliate against a government or a civilian population.

The report of the 98th Congress, Senate Judiciary Committee on `Constitutional Procedures for the Imposition of the Capital Punishment' clearly states the justification for capital punishment:

The Committee finds that capital punishment serves the legitimate function of retribution. This is distinct from the concept of revenge in the sense of the `eye for an eye' mentality; rather through retribution society expresses its outrage and sense of revulsion toward those who undermine the foundations of civilized society by contravening it laws.

No act undermines the foundations of civilized society more than terrorist murder--no crime is more abhorrent and more deserving of the death penalty.

This bill amends section 2331(a)(1) of title 18 of the United States Code to authorize capital punishment for terrorists. It authorizes a U.S. district court to `impose a sentence of death in accordance with the procedures set forth in section 7001 of the Anti-Drug Abuse Act of 1988 (21 U.S.C. 848).'

This legislation meets all constitutional requirements. If the sentence of death is sought and imposed, the court is required to follow all the constitutional procedures set forth in the death penalty statute we enacted last year.

This bill sends a powerful message to terrorists around the world--and I urge my colleagues to vote in support of it.

This bill says that when a terrorist commits the cowardly act of murdering an American on foreign soil, he should be subject to capital punishment. This bill puts every terrorist on notice and tells him: If you murder an American, you may pay for this crime with your life.

Mr. President I urge my colleagues to support this bill overwhelmingly.


Mr. MITCHELL. Mr. President, the Senate is being asked to consider legislating on the basis of a slogan instead of reason.

This time the slogan is `death for terrorists,' a slogan so direct, so appealing and so politically unassailable that it captures the reflexive support of virtually everyone who has ever been outraged by an act of terrorism.

Americans have been so outraged for 10 years. Since the Iranian Government condoned and assisted the taking of hostages in our Teheran Embassy in November 1979 to the existing tragic captivity of innocent Americans at the hands of Mideast terrorists today, there has been no shortage of outrageous incidents and attacks by terrorists on peaceful citizens and societies for the last decade.

So it's not surprising that the idea of trying and executing the criminals who commit these crimes has broad support.

But there's a difference between a desire to retaliate, which every one of us feels instinctively, and the means of doing so in the real world.

It's the difference between a political slogan and a public policy.

Sensible public policy against terrorism requires that we think through what we are trying to accomplish.

Terrorist acts directed against Americans because they are Americans demand a response from our Government. First and foremost that response requires us to develop the practical means of capturing and extraditing the persons who commit those acts.

That means a focus on intelligence work to infiltrate the groups active in terrorism, it means the development of strong relationships with the police and intelligence forces of other nations where these crimes are committed, and finally, it means effective government-to-government agreements for the extradition of captured persons to stand trial in the United States.

These processes are primarily the responsibility of the executive branch.

These are activities carried out by our intelligence and police agencies and our diplomatic corps.

One thing Congress can do is not complicate the work of those executive branch agencies as they try to perform what is already an extremely difficult task.

But the thing Congress is now being asked to do will complicate the work of the executive branch agencies.

The reason for that is simple.

We remain virtually the only Western nation in which the death penalty is in force. None of our NATO allies and few of our Latin American neighbors are willing to extradite anyone charged with a capital crime to a jurisdiction where capital punishment is in effect.

When the 1986 law which defines the crime of terrorism was enacted, it specified, in addition to the requirement that the act occur outside the United States, that it be certified as a terrorist act by the Attorney General before it could be prosecuted under the law.

The act contains no specific penalty so as to permit our State Department the broadest possible leverage in the negotiations which are always necessary to extradite terrorists.

If we now enact the possibility of executive as one such potential penalty, all we will do is hand governments a reason for avoiding extradition when their domestic political pressures make it easier to do so.

Terrorism is effective precisely because it forces democratic, accountable governments to choose between two evils. A government whose own citizens are held hostage is placed in a difficult position when the extradition of a terrorist to the United States creates the threat of execution against its hostages.

Americans, who have seen such threats made against Americans and sometimes carried out, know directly how searing such a choice is.

We recognize that just as our Government has faced immense difficulties dealing with these threats, so other democratic governments, faced with their own outraged citizens, find it no easier to condemn one of their own to death.

So enacting the possibility of a death penalty for instances where the individual involved will almost certainly have to be extradited means only that we are reducing the chances of ever being able to bring any of these terrorists to trial in the United States.

This concern is not speculative. It is based on fact and on events that have already occurred. Just a couple of years ago, the U.S. attorney for the Southern District of Florida was attempting to gain custody of one of the most notorious drug lords in Latin America, Jorge Ochoa. Mr. Richard Gregory has testified to the Congress what happened:

[Page: S14228]

I personally traveled to Spain on two occasions in order to attempt to get Spain to extradite cocaine kingpin Jorge Ochoa to the United States. He was, instead, sent to Colombia where be bought his way out of prison within two weeks. * * *

Most of the countries in Europe and Central and South America will not extradite a defendant if that defendant faces the death penalty. In fact, in recent cases involving terrorism, the United States has had to agree to withdraw the death penalty in order to get defendants extradited to the United States. * * *

Passing legislation which provides for the death penalty would be useless in that the very defendants who might be subject to those penalties would not be extradited from the safe havens abroad.

That is the testimony of Richard Gregory who has personal experience of what he recounts.

It is counterproductive to fly in the face of that direct knowledge by one of our most experienced law enforcement people.

For that reason alone, this bill should be defeated.

The alternative of a mandatory life imprisonment with absolutely no chance of release is a sensible and effective one. It mirrors what is now in law, and enacting it will emphasize our national commitment to bringing terrorists to justice without undercutting our chances of bringing them here to stand trial in person.

The argument of deterrence against terrorism makes no sense. Despite their appearance of rationality, terrorists are fanatics. Persons who pursue political goals by means of murdering helpless civilians or terrorizing populations cannot be deterred. They are beyond the reach of civilized society, either to deter or to encourage.

This proposal, understandable in light of the outrage that terrorist killings inspire, makes no sense if we want to actually avenge those killings.

We would not undercut our chances of getting custody of any of these murderers for the sake of a slogan that makes us feel good but produces no good. This bill deserves to be defeated and I urge my colleagues to vote against it.

Mr. GRASSLEY. Mr. President, as a strong supporter of a general Federal death penalty for certain heinous and abominable acts, I rise to support the imposition of the death penalty for terrorists.

However, I must say that I find it odd that we are only considering imposing the death penalty for a narrow, yet deserving, category of capital defendant.

The Senate Judiciary Committee has recently reported a bill which has been described as widening the general Federal death penalty provisions. As a member of that committee, I take issue with that description. My views regarding our committee's actions are available in the committee's report on its passage without recommendation of S. 32.

The Judiciary Committee actually gutted the general death penalty statute with weakening amendments, such as the Racial Proportionality Act.

If that provision remains a part of a general death penalty statute, I guarantee that the death penalty will never be imposed in the United States, by either the Federal Government or by any of the States that enact death penalty provisions.

And, I look forward to taking part in the effort to improve S. 32 on the Senate floor to ensure that we enact a true general death penalty law.

In the meantime, aside from the fact that there are other procedures that must occur before we can gain personal jurisdiction over a foreign national, bring that individual to this country, try them and convict them, under the provisions of S. 1798 we are going to treat them differently than domestic capital defendants.

My colleagues may disagree with me, but I believe that the individuals responsible for the death of Leon Klinghoffer are just as guilty as John Booth and Willie Reid, the killers of Irvin and Rose Bronstein of Maryland.

If consistency is our goal, the death penalty should be imposed as this bill would impose it, or as the Judiciary Committee would impose it under its version of S. 32.

Otherwise, to impose the ultimate sanction, under different standards depending on the nature of the capital defendants, is wrong.

Mr. DURENBERGER. Mr. President, I am voting today against the legislation brought before us by the distinguished Senator from Pennsylvania, to establish a death penalty for those who engage in terrorist acts against American citizens.

Throughout my career in the Senate, I have voted against the death penalty and will continue to do so. I do not believe fallible system of jurisprudence can be entrusted with the power to end a human life. It has been said that it is better for 10 guilty people to go free than for 1 innocent person to be imprisoned. What possible recompense could there be for one improperly executed? There is none.

The only legitimate justification for the most severe penalties under our criminal system is that they will act as a deterrent to the community. It is inconceivable to me that the type of person who would engage in terrorism would be deterred by the prospect of a death penalty. Terrorists, by nature, have already renounced their own lives for their cause, and believe that they have nothing to lose. In some cases they may even prefer in some strange way to be killed in pursuit of the cause. How then would the punishment of death deter them?

I also believe that in some cases, enactment of the provision before us may have the effect of frustrating bringing a terrorist to justice. Very few nations still exercise capital punishment. Some nations may choose not to extradite a prisoner to a country which does.

I far prefer the approach proposed by the Senator from Michigan [Mr. Levin]. Life imprisonment represents an acceptable, practical means of accomplishing the goals of the bill before us.

[Page: S14229]

Mr. DOLE. Mr. President, I would like to express my support for the bill introduced today by my distinguished colleague from Pennsylvania [Mr. Specter].


If there is any crime that requires the death penalty, if there is any crime that screams out for the death penalty, it is the act of murder committed by the terrorist. Terrorist murder is cruel; it is barbaric. And it is the ultimate act of political cowardice.


Under current law, any person who murders a U.S. citizen beyond the borders of this country is subject to the possibility of life imprisonment. That is a good start--but it is not enough. It is not enough to deter the terrorist thugs who would indiscriminately attack--and kill--U.S. citizens abroad just to make a political statement and just to get on the evening news here in the United States.

Mr. President, Let us face it: We cannot negotiate with terrorists. We have learned that lesson too many times. This country has had too many Leon Klinghoffers, too many Robert Stethems, and too many people like Lt. Col. William Higgins.

The language of the law is not the language of the terrorist. Terrorists understand one thing, and one thing only: The barrel of a gun. And perhaps they will understand the meaning of the hangman's noose once the bill becomes the law of the United States.


Mr. President, I commend Senator Specter for introducing this legislation. It offers a much-needed layer of protection for American citizens residing or traveling outside the United States. And it sends the right message to the terrorists--that American life is expensive and cannot be taken `on-the-cheap.'

So I urge my colleagues to support this important death penalty legislation with their votes. The terrorist must be held fully accountable for his deadly acts of cowardice--not with a 20-year jail term, not with life imprisonment, but with the death penalty.

Mr. ADAMS. Mr. President, I intend to cast my vote in favor of this legislation. In recent years, this Nation has watched with horror as groups and individuals have carried out acts of unspeakable cruelty in the name of some alleged political objective. Frequently, innocent citizens of this country have lost their lives as hostages, or as random victims of international terrorists who feel that their political goals justify the killing and maiming of innocent American citizens. In some instances, imprisoned terrorists already convicted of crimes against society become the subject of bargaining by terrorists who take still other hostages in the hope of securing freedom for their comrades.

Under this amendment, we state firmly our belief that this society has both the moral authority and the legal right to impose the death penalty on an individual convicted of murdering a U.S. citizen, outside the

United States under circumstances where it is clear that the offense was committed with the purpose of coercing, intimidating, or retaliating against a government or civilian population. The law maintains ample safeguards for the imposition of a lesser sentence, including imprisonment or fine, or both, in appropriate circumstances. In addition, the law requires the same procedural safeguards contained in the Anti-Drug Abuse Act regarding the death penalty for drug kingpins, including a separate penalty-phase hearing, consideration of mitigating and aggravating factors, and the obligation to instruct the jury not to consider the race, color, religious beliefs, national origin, or sex of the defendant or victim.

Mr. President, it is clear to me, as a former U.S. attorney, that the death penalty as a sanction should not be lightly considered or imposed. However, I firmly believe that our diplomatic personnel and their families living abroad, and other citizens of this country who chose to travel, study, and visit in foreign countries deserve to be protected from the brutal acts of terrorists. In addition, those who consider perpetrating such unspeakable acts of cruelty and violence should be forewarned that this Nation will prosecute them to the full extent of the law.

Mr. HARKIN. Mr. President, I rise against the bill offered by the Senator from Pennsylvania which would authorize a court to impose the death sentence for persons convicted of a terrorist murder of a U.S. national outside of the United States.

Let me say at the outset that I believe that we should do all within our power to halt the awful reign of violence which terrorists are trying to impose around the world. But I do not believe that the bill before us would do anything to achieve that.

In the case of terrorism, I just cannot see how the death penalty would work as a deterrent. Many terrorists are more than willing to risk their own lives to achieve their wrong and evil purposes. To them, terrorism is a crusade. The prospect of death will not stop them in that crusade. In fact, many terrorists believe that they will go to heaven if they die in the `ceremony' of their causes.

Moreover, by subjecting these international criminals to the death penalty, we run the risk of making them martyrs. I fear that would only strengthen the resolve of their allies and comrades and other individuals engaged in terrorism to intensify their heinous activities.

Last, I understand many European nations will refuse to extradite these individuals to the United States because of the death penalty in this country.

I voted for the Levin-Hatfield amendment to impose a mandatory life sentence without parole. If this amendment had been adopted, the bill would be much stronger, which is another reason I am opposing final passage.

Mr. KERRY. Mr. President, anyone who intentionally murders an American citizen in cold blood as a political killing has committed a crime that deserves the most terrible punishment that any civilized country can impose.

The great irony of the Specter legislation is that by imposing the death penalty on terrorists who murder Americans abroad, is that we are doing the one thing that would make it most likely that they would never face justice in the United States.

As Assistant U.S. Attorney Richard Gregorie told me in testimony before the subcommittee I Chair, the Subcommittee on Terrorism and Narcotics, the death penalty would be counterproductive.

Gregorie, who brought the indictments against General Noriega, Jorge Ochoa and other members of the Medellin cartel, and who devoted a career to prosecuting the most terrible narcotics traffickers and terrorists, told the subcommittee that the death penalty would only hurt U.S. law enforcement.

Let me quote directly the testimony he gave on July 12, 1989:

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Most countries in Europe and in Latin America will not extradite anyone if the death penalty is a possible penalty as a result of that extradition, so that if we are trying to get the Colombians to send us drug lords, and we are trying to get the Germans or French to send them to us, they won't do it if they believe that the death penalty is a possibility.

I was a prosecutor. I put people behind bars for committing terrible crimes, and a lot of them are still there, which is where they should be. When a terrorist kills an American citizen, he should be tried, convicted, and put in prison for the rest of his life without any possibility of getting out. We should literally, throw away the key.

Because, in fact, I believe that there is a punishment that is worse than the death penalty--life imprisonment, at hard labor, with no possibility of parole or furlough. We should be that tough for those who commit these deplorable acts of terrorism. They should know--for certain--that every single day, for as long as they live, they will be punished and suffer for their crime. They should know every morning that they will work at hard labor, that they will have no freedom, and that every single morning they will face the same misery for as long as they are alive.

But what is the point of imposing the death penalty on terrorists if the result is the terrorist will never face trial in the United States?

This amendment would frustrate law enforcement, and interfere with the prosecution of terrorists. It would damage the very cause of prosecuting terrorists that it purports to advance. In this case, the emotional appeal of an eye-for-eye should not be permitted to obscure that fact that in passing this amendment we would actually be helping terrorists avoid the one thing they fear most--extradition to the United States to face justice.

Moreover, Mr. President, given the nature of international terrorism that we see in the world today is it not likely that inflicting the death penalty on terrorists would simply fan the flames of passion that are the spawning places of terrorism in the first place? Would not foreign terrorists put to death in America, quickly become the martyrs whose deaths would be avenged with untold additional atrocities? Do we really believe that imposing the death penalty on a terrorist will not simply multiply the killing and maiming on all sides?

In addition, won't terrorist organizations whipped into a frenzy by a U.S.-imposed death penalty, or one of the faithful, thirsts for revenge until it is quenched? Americans are far more likely to be targets of expanded terrorism if we impose a death penalty than if we do not.

Mr. President, we should make life a living hell for any terrorist who kills an American. Ironically, this legislation may instead cause the terrorist and those who share his cause, whatever it might be, to be seen as a martyr and that is certainly not in America's interest, the interest of humanity, or the interest of the victim.

Accordingly, I will vote against the Specter amendment.

Mr. BIDEN. Mr. President, earlier today the Senator from Pennsylvania and I were discussing whether this bill would permit the imposition of the death penalty for the offense of second degree murder.

As currently drafted, the bill appears to permit the imposition of the death penalty for that offense. If it were possible to do so, I would offer an amendment at this time to make clear that the death penalty could only be imposed for a violation of section 2331(a)(1) of title 18 where the jury found that the killing was murder in the first degree as defined in section 1111(a). the unanimous consent agreement governing the debate on this bill unfortunately does not permit such an amendment to be offered.

But I want the Senator from Pennsylvania to know that I will urge our colleagues in the House of Representatives to amend the bill in that fashion, and if that is not done, that I will seek to add such an amendment myself in conference.

The amendment would simply insert into S. 1798 the language in section 219 of S. 1225, one of the other death penalty bills now pending in the Judiciary Committee, which makes it clear that the death penalty would only be available for this offense where first degree murder was involved. I ask unanimous consent that section 219 of S. 1225 be printed at this point in the Record.

I hope that the Senator from Pennsylvania would consider supporting that amendment.

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


Paragraph (1) of subsection 2331(a) of title 18 of the United States Code is amended to read as follows:

`(1)(A) if the killing is a first degree murder as defined in section 1111(a) of this title, be punished by death or imprisonment for any term of years or for life, or be fined under this title, or both;

`(B) if the killing is a murder other than a first degree murder as defined in section 1111(a) of this title, be fined under this title or imprisoned for any term of years or for life, or both so fined and so imprisoned;'.

Mr. SPECTER. Mr. President, I would be willing to support such an amendment in order to remove any conceivable ambiguity even though I do not believe it to be necessary for reasons I have specified in the floor debate.

As I said earlier in the debate, S. 1798 is intended to authorize the death penalty in cases of premeditated terrorist homicides. As a practical matter, only premeditated murders will be prosecuted under 18 U.S.C. 2331 because of the very nature of terrorism and in light of the `limitation on prosecution' contained in subsection (e). That subsection bars prosecution under section 2331 unless the Attorney General certifies to the court that the offense `was intended to coerce, intimidate, or retaliate against a government or a civilian population.' Thus, premediation is mandated.

To the extent that there is any question about the scope of S. 1798, I welcome efforts by the distinguished chairman of the Judiciary Committee to clarify that the death penalty would only be available in the case of terrorist murders constituting murder in the first degree.

Mr. BIDEN. I thank my friend from Pennsylvania. And I add that if the Senator offers to add this bill, with such a clarifying amendment, to the Thurmond death penalty bill, S. 32, when it comes to the floor, I will support that amendment. I think it would be a good idea to do that so that all of the procedural protections included in S. 32 would apply to the imposition of a death sentence for this offense.

The PRESIDING OFFICER. The question is on the engrossment and third reading of the bill.

The bill was ordered to be engrossed for a third reading, and was read the third time.

The PRESIDING OFFICER. The bill having been read the third time, the question is, Shall the bill pass? The yeas and nays have been ordered. The clerk will call the roll.

The bill clerk called the roll.

Mr. CRANSTON. I announce that the Senator from New York [Mr. Moynihan] is necessarily absent.

The PRESIDING OFFICER. Are there any other Senators in the Chamber who desire to vote?

The result was announced--yeas 79, nays 20, as follows:

Rollcall Vote No. 275 Leg.

[Rollcall Vote No. 275 Leg.]



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So the bill (S.1798) was passed.