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The Senate continued with the consideration of the bill.

Mr. SPECTER. Mr. President, there is one other document I wish to add to the Record. I ask unanimous consent that this table showing the number of terrorist acts from 1968 through April of 1989 be printed in the Record, showing worldwide terrorism, the number killed, wounded, and the number of U.S. citizens killed and wounded.

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

Year             Worldwide         Americans         
                    Killed Wounded    Killed Wounded 
1989 (to Apr. 1)        59     106         0       5 
1988                   658   1,131       192      40 
1987                   612   2,293         7      47 
1986                   604   1,717        12     100 
1985                   825   1,217        38     157 
1984                   312     967        11      31 
1983                   637   1,267       271     115 
1982                   128     755         8      11 
1981                   168     804         7      40 
1980                   507   1,062         9      17 
1979                   697     542        15      21 
1978                   435     629         9      21 
1977                   230     404         4       7 
1976                   409     806         7      32 
1975                   266     516        18      78 
1974                   311     879        42      17 
1973                   121     199        23       2 
1972                   151     390        23      33 
1971                    36     225         4      23 
1970                   127     209         6      14 
1969                    56     190         3       3 
1968                    34     207         5      10 
Total                7,383  16,515       714     824 

[Footnote] 1Source: State Department's Office of Counterterrorism.

Mr. SPECTER. Mr. President, how much time is remaining allocable to each side.

The PRESIDING OFFICER. The Senator from Pennsylvania has 14- 1/2 minutes. The Senator from Michigan has 15 minutes.

Mr. SPECTER. I thank the Chair.

Mr. President, let me express regret that we have not used all of the time. We had expected others to come to the floor to discuss this issue. There has not been a yielding back of time because Senators had expected that we would not vote until 4 hours from 11 o'clock, which was why the 3 o'clock time was established. So that accounts for why we have had the quorum calls here this afternoon.

Mr. President, I wish to comment on a few of the issues raised regarding this issue, before coming down really to the central aspect of the matter now before the Senate, which succinctly stated is, should there be a death penalty, or is it sufficient to provide for a mandatory penalty for life imprisonment?

The arguments have been advanced that the death penalty applies disproportionately to the poor. I believe that does not really apply in the situation of terrorism.

There has been argument advanced that there may be errors, and you cannot go back on a situation where somebody has been executed. I suggest, Mr. President, that given the procedure now at hand, that the likelihood of error is very, very minimal. When it comes to terrorism, given our procedures, and finally the terrorists, sometimes photographs like in the Stethem case, identifying Hamadei, that we are dealing with a phase of capital punishment on terrorism where errors are very remote.

One assertion was made that the death penalty advances a simple solution to a complex problem. There is no representation made here that there is any real effort or expectation of a solution, but this is an important arsenal in the weapon against terrorism, just another weapon.

A consideration was raised as to whether second-degree murder would call for the death penalty, and that is not realistic or possible, where terrorism is involved, Mr. President. As a matter of statutory construction of the two reasons, first, the murder statute defines murder in the first degree as willful, deliberate, malicious and premeditated killing. Senator Biden and I had a discussion regarding this matter.

Terrorism by its very definition is a premeditated, willful, calculated act. So that under the definition of murder under title 18 U.S. Code,

section 1111, there is no aspect of terrorism where you can have second-degree murder. That is made more emphatic under the provisions of the terrorism bill itself, which has a special limitation on prosecutions in section E, which says that it will apply only where there has been the determination that the conduct of the terrorist was to coerce, intimidate, or retaliate against the Government or a civilian population.

That is the definition of terrorism, and that has to be premeditation, to coerce, intimidate or retaliate. So that first-degree murder is all that is comprehended, obviously, when you deal with the question of terrorism. Mr. President, now we come to the nub of the case, and that is, whether there ought to be the opportunity for the death penalty. The bill before us today provides that it is up to a jury to provide the death penalty, it is not mandated, or you fall short with a mandatory life sentence.

One of the opponents said that the death penalty is soft on terrorism, and another said that mandatory life is tougher. Anybody who believes that, ought to vote for the Levin-Hatfield amendment and ought to vote against the Specter bill.

By definition, the death penalty is the toughest penalty. Let there be no mistake about that. Had the Levin-Hatfield amendment sought to toughen up the terrorism penalties, they had full latitude to bring it up at any time in the past many months or years. But this amendment was offered by Senator Levin and Senator Hatfield in order to defeat the death penalty provision. That is it, pure and simple. The issue is whether you are going to have the possibility of a death penalty or not. When we talk about extradiction, it is a red herring. The United States of America can always waive extradiction.

Mr. President, the most succinct definition of why you call for the death penalty was that from Justice Stewart, which is worth repeating:

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The decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the death penalty.

The only adequate response may be the death penalty. I ask my colleagues and the people in the gallery, and I ask America watching on C-SPAN II, whether that penalty ought to be possible for the perpetrators of the Pan Am 103 terrorist act, where 259 innocent passengers were blown out of the sky.

I ask my colleagues whether the death penalty ought to be present for the perpetrators at the Rome airport, where 15 people were killed and 73 wounded in an airport lobby by a machinegun and grenade attack.

I ask whether the death penalty ought to be available where Pan Am 73 at Karachi, where terrorists held passengers for 17 hours, and gunmen indiscriminately exploded grenades and fired machineguns wounding 100 people and killing 21 people.

I ask whether the death penalty ought to be a possibility when Leon Klinghoffer, in a wheelchair, was shot and pushed into the Mediterranean.

If anybody says life imprisonment is tougher, let them vote for Senator Levin's amendment. For anybody who wants the death penalty to be an option, to be imposed by an American jury, I say vote for this bill and make the death penalty a possibility to deter terrorism.

How much time do I have left, Mr. President?

The PRESIDING OFFICER. The Senator has 6 minutes, 45 seconds.

Mr. SPECTER. I thank the Chair and yield the floor.

The PRESIDING OFFICER. Who seeks recognition?

Mr. LEVIN addressed the Chair.

The PRESIDING OFFICER. The Senator from Michigan.

Mr. LEVIN. Mr. President, the substitute which Senator Hatfield and I have offered is a stronger and tougher approach than that of Senator Specter for two reasons. First, our approach provides for a certainty of life imprisonment. No release, no parole. If you murder an American in the course of a terrorist act, you are going away, and we are throwing away the key.

Under Senator Specter's approach, he leaves the law with four options. Yes, one of them is capital punishment, but that is one of four options. He also leaves the option of a few years in prison or probation or even a fine for the act of murder against Americans in the course of a terrorist act.

So just as my friend from Pennsylvania asks our colleagues questions, so I would frame the question this way: Do any of us really believe that a few years in prison is an adequate response to the Klinghoffer murder or to the Pan Am terrorist acts? Will any of us accept that as adequate? That is permitted under Senator Specter's approach. It is not permitted under the Hatfield-Levin approach.

So ours is tougher, because we mandate life behind bars with no possibility of parole for murdering an American in the course of a terrorist act. If you want to allow a few years in prison for the terrorist who killed Leon Klinghoffer, then you vote for the Specter approach, because that is allowed under the Specter approach. As a matter of fact, a fine would still be permitted as the sole punishment under the law if Senator Specter's bill is adopted.

I find that totally abhorrent and believe that the strongest approach to terrorist acts is to have a mandatory sentence, not to have four options which is the Specter approach, all the way from a fine, to a few years in prison, to life in prison, to capital punishment--four options without any certainty that someone will spend at least the rest of his life in prison. There is no certainty of that under the Specter approach. Either go with the four-option uncertainty of the Senator from Pennsylvania or the certainty under Senator Hatfield's and my approach, that if you commit a murder against an American, you are going away for life, and we are throwing away the key. That is tougher than a four-option uncertainty which is provided by the underlying bill.

There is another reason why our approach is tougher and that is that the key to getting your hands on terrorists is to extradite them. And if you have even the possibility of a death penalty, we are not going to be able to extradite terrorists.

We put in the Record a list of the countries which will not allow for extradition, if capital punishment is a possibility under American law.

Those countries include Colombia. We are not going to be able to extradite people who commit murder in the course of a terrorist act if they are Colombian nationals, if the act of murder in the course of a terrorist act is subject to capital punishment. We are going to defeat our very purpose.

Our purpose is to get our hands on these terrorists and to put them through the American justice system, the thing they fear most. And I agree with my friend from Pennsylvania on that issue that the thing that the terrorists and the drug kingpins who commit murder fear the most is the American system of justice and extradition to America to face the music. They will not have to face the music if the option of capital punishment is there, because they are not extraditable if they face the possibility of capital punishment.

Those countries, as I say, include Colombia which will not extradite. They include other Central and South American countries--Argentina, Brazil, Colombia, Mexico, Uruguay, Paraguay, and a whole host of other countries throughout the world.

While I commend my friend from Pennsylvania for raising an issue which is important, that being the current inadequacy of our law against terrorism and our efforts to get our hands on persons who commit murders of Americans in the course of a terrorist act, I believe that our approach is a far stronger, a far tougher approach to handling those terrorists than is the approach that has been offered in the underlying bill by our friend from Pennsylvania.

On the extradition issue, I read here just a portion of an article written by Richard Cohen in the Washington Post. The article is dated January 1987:

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Last week, German police arrested a man at the Frankfurt airport carrying liquid explosives in his luggage. He turned out to be Mohammed Ali Hamadei, one of four men indicted by the United States following the 1985 hijacking of a TWA jetliner and the murder of a passenger. The Germans, to their credit, refused to extradite Hamadei until the United States agreed not to seek capital punishment. Almost 42 years after the Nazi era, it is the Germans who instruct us in the morality of the death penalty.

If guilty, Hamadei would seem the perfect candidate for execution. Not only was the TWA passenger, Navy diver Robert D. Stethem, killed in cold blood, but 39 other passengers were forced to spend 17 harrowing days as hostages in Beirut. And now there is additional evidence that Hamadei was intent on even more killing. At only 22 years of age, he is a man to be reckoned with.

Then Richard Cohen goes on to say the following:

Terrorists court death. They do not put much of a premium on their own lives, not to mention the lives of others. Some of them willingly sacrifice themselves to further their cause.

He then describes the Marine barracks in Beirut.

The point of this article is the point of a letter from which I am going to read a part, from a former assistant U.S. attorney in Florida. Unless we waive the possibility of capital punishment we are not going to be able to extradite the perpetrators of these terrorist acts. The presence of that option is going to make it more difficult for us to extradite the terrorists we are seeking to put through the American system of justice.

Mr. President, I would like to read a letter from Richard Gregorie who was chief assistant U.S. attorney for the Southern District of Florida dated August 5, 1988. Here is what he wrote me:

Most of the countries in Europe and South and Central 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. Colombia has abrogated its extradition treaty with the United States and no Colombians are being extradited at this time. In order to get the cooperation of countries in Europe and South and Central America, the United States must extend its diplomatic efforts. Passing legislation which provides for the death penalty would be useless in that they very defendants who might be subject to those penalties would not be extradited from their safe havens abroad.

This is the key point:

Further the existence of the death penalty may provide an excuse to countries in Central and South America and Europe to refuse to cooperate in sending drug kingpins to the United States for trial.

It is my position that it should be the priority of both the State Department and the Justice Department that drug kingpins be indicted and brought to the United States for trial. I am opposed to any legislation which may interfere with that priority. It is for that reason that I have testified that capital punishment for drug kingpins would not be productive legislation.

That is precisely the same reasoning that applies here, which is that if we have the option of capital punishment, we are going to provide the excuse to countries not to extradite the very terrorists that we are trying to get into our criminal justice system.

In summary, we have got two options to correct a weak law relative to terrorists. One is the underlying bill of Senator Specter which gives four options--from a fine, to a term of years, to life imprisonment, to death penalty. It is a four-option approach with all the uncertainty that is involved.

The other approach is mandatory life in prison without parole, no options. If you are convicted of murder--and those are key words because obviously you could be convicted for something less or plead guilty to something less--of an American citizen during the course of a terrorist act, your going away and you are never going to see `daylight' again, in the words of Senator Biden. That is strength. That is certainty. That is toughness, compared to the uncertainty which will exist if we adopt the underlying bill.

And the other point, which is a critical point in our approach, is we avoid the problem of the Specter bill which is that the very presence of the option of capital punishment is going to make it more difficult to extradite people, and many countries, including key countries from which we are currently extraditing people, will not extradite terrorists to the United States if the death penalty option is present in our laws.

So for both of those principal reasons I would urge that the better, tougher, stronger, clearer option that faces us to correct the current flaws in our statutes relative to the treatment of people who commit murders during the course of a terrorist act, the better approach and stronger approach is the Hatfield-Levin substitute.

I yield the floor.

The PRESIDING OFFICER. Who yields time?

Mr. SPECTER. How much time remains, Mr. President?

The PRESIDING OFFICER. The Senator from Pennsylvania has 6 minutes 39 seconds. The Senator from Michigan has 3 minutes 35 seconds.

Mr. SPECTER. Mr. President, the repetition of the argument about extradition continues to be, if I may say, a red herring.

I am glad that the distinguished Senator from Michigan quoted the Richard Cohen column, because Richard Cohen answers Senator Levin's argument. Richard Cohen says in the article quoted that Germany was correct in refusing to extradite Hamadei until the United States assured that there would not be any use of the death penalty. That is the conclusive answer to that extradition argument.

In many situations, Mr. President, the United States acquires custody through our own efforts without the extradition. For example, Fawaz Yunis, the terrorist seized in the Mediterranean, was brought back to the United States for trial, and sentenced and convicted in a court in Washington, DC. We almost secured the terrorist in the Achille Lauro case when U.S. Navy fighter planes forced down the Egyptian airliner. We almost gained custody of Abu Abbas until the Italian authorities insisted on primacy. So we had the opportunity to gain custody in many situations without extradition.

When the distinguished Senator from Michigan says that the Specter approach has four options it simply is not true. My bill offers one amendment to existing law to provide for the opportunity of the death penalty.

With all due respect, Mr. President, it is disingenuous to say that the Levin substitute was brought to toughen up the terrorist bill. The Levin substitute has been advanced here in an effort to derail the death penalty. Ample time existed if there were really an effort to tighten up the penalties for terrorism, and it was not attempted.

The crystal argument, Mr. President, in a candid way was offered by Senator Hatfield earlier this afternoon when he said, `Even if capital punishment were to deter and were universally accepted, the death penalty is wrong.'

The opposition to the death penalty provision comes from that conclusion and not as a motivation to offer the substitute bill, Mr. President.

When we talk about the kinds of offenses which are an affront to humanity, they could not be more clearly categorized than the kinds of atrocities committed against American citizens which warrant the death penalty.

I yield the floor and ask how much time remains, Mr. President?

The PRESIDING OFFICER. The Senator from Pennsylvania has 3 minutes and 33 seconds. The Senator from Michigan has 3 minutes and 35 seconds.

Who yields time?

Mr. MITCHELL. Mr. President, will the distinguished Senator from Pennsylvania yield to me for the purpose of obtaining a unanimous-consent agreement?

Mr. SPECTER. Yes, of course, I am delighted to yield.