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Mr. LIEBERMAN. Mr. President, the war against Iraq has driven home the transcendent importance of keeping weapons of mass destruction out of the hands of radical regimes and ruthless terrorists. The use of Iraqi chemical weapons against our troops may be imminent; the unleashing of biological agents is possible. These weapons could be delivered by ballistic missiles, aircraft, or artillery shells against our troops. Israeli and Saudi population centers are also in danger.
The gulf war has shown us that the phrase `merchants of death' is not a cliche from a bygone era. European, Asian--and yes, sometimes American--firms have helped Iraq to build its chemical, biological, and nuclear weapons capabilities.
During the last 2 years, a series of hearings conducted by the Governments Affairs Committee have emphasized to me the relative ease with which these merchants of death can ply their grisly trade. I salute Senators Glenn and Roth for educating our Members and the public about the loopholes in our laws and regulations. All too often, all that is needed is money, persistence, and some expertise, and tyrants like Saddam Hussein can emerge as global threats.
As I said in this Chamber on March 29 of last year, `Ominous is the news that Iraq is seeking nuclear triggers as part of its program to develop atomic weapons. It already has missile capability. The combination of nuclear bombs and missiles in the Third World is potentially catastrophic.'
The reauthorization of the Export Administration Act is an important step toward thwarting the designs of these new merchants of dealth. The act's use of America's economic leverage to penalize any firm or any country that traffics in, and uses, weapons of mass destruction should be effective.
This act may or will encourage our European allies to place these outlaw firms and nations on an international blacklist. But we must not stop there. We must also attempt to establish a series of regular consultations with the Soviets, Latin Americans, and Chinese about the spread by these countries of these deadly technologies. In short, the governments of the developed world must control the indifference and greed that have allowed their entrepreneurs to contribute to the proliferation of these deadly weapons.
We hope that this act will also encourage the world community to explore the feasibility of a worldwide ban on chemical weapons. Although verification problems would exist, they are not necessarily insurmountable.
The stakes are very high. In the First World War, over 1 million people, both soldiers and civilians, suffered casualties from chemical weapons. As an eyewitness described at the time:
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Faces, arms, hands were a shiny gray-black. With mouths open and lead-glazed eyes, they were all swaying backwards and forwards trying to get their breaths, struggling, struggling for life.
During the war, deadly chemicals swept across Europe like rainclouds from Hell, acknowledging no boundaries. It is the responsibility of our generation to see that this never happens again.
These protective efforts must not be aimed solely at the protection of our troops. After the war, we will still be concerned about the possible use of these weapons against civilian centers in the United States. We have seen what happens when an accident occurs at a chemical plant--in Bhopal, India--where thousands were killed or maimed. One can imagine similar or even greater destruction if chemical weapons were intentionally released by terrorists in heavily populated areas. And the potential havoc from biological weapons is even greater. Water supplies, food, the very air that we breath--all these necessities of life could be transformed into transmitters of deadly disease.
What is at stake is not just the integrity of the international legal system, but the survival of civilization itself. We must ostracize those political leaders and entrepreneurs of death who are purveyors of chemical and biological weapons. While we may not be able to prevent, let us at least limit the damage that war can inflict by consigning these weapons of mass destruction to the dustbin of history.
Mr. SASSER. Mr. President, I am pleased to be a cosponsor of the Omnibus Export Amendments Act of 1991, S. 320.
The ability of U.S. exporters to effectively participate in the world economy is crucial to our economy here at home. This bill makes important strides in updating the U.S. export control system to correspond with a shifting world order and with the increasing sophistication of technology, making U.S. firms more competitive in the global marketplace.
Mr. President, S. 320 carefully considers the economic needs and benefits of increased U.S. trade, but also is mindful of national security and foreign policy concerns. This legislation imposes sanctions on Iraq for its invasion of Kuwait and addresses the growing threat of chemical and biological warfare.
Increasing U.S. exports will facilitate the Nation's recovery from the current recession, helping the United States to regain its economic preeminence. The Chairman of the President's Council of Economic Advisers, Dr. Michael Boskin, testified before the Senate Budget Committee recently that exports are `cushioning the effects of the recession.' Furthermore, Dr. Boskin said that the administration recognzies trade as a key element to the Nation's economic recovery and that the President's policy goals `lead the
world to expanded trade and more open markets.'
United States trade policy for the cold war period focused on restricting the access to United States technology by Eastern Europe and the Soviet Union. Today, countries like Czechoslovakia and Poland are swiftly converting to democracies, and this bill responds to these developments. This legislation relaxes export controls to countries that take actions to protect Western technology and enables U.S. firms to effectively access and compete for market share in Eastern Europe, as well as other parts of the world.
Mr. President, it's important to note that many of the computer and telecommunication technologies that are restricted are indeed available from sources in other countries. By restricting U.S. companies to deal in these products, the United States is not eliminating access to such products, simply denying U.S. firms from competing in the market.
The current export control system limits the capability of U.S. exporters to compete in the global marketplace. The process for licensing can be so restrictive and time-consuming that many companies don't even enter the arena.
Under the current system, the same product may be controlled by the control list and the munitions list. This bill removes these duplicative restriction. Furthermore, certain technologies on these lists once considered critical to national security or foreign policy no longer are. This bill establishes procedures for updating and periodically eliminating controls on outdated technologies as sophistication increases.
This legislation lifts certain product limitations but also recognizes that there is a need to keep certain technologies to ourselves. S. 320 gives the Defense Department the authority to review all export license application to terrorist countries like Iran, Iraq, Syria, and Libya.
More open trade with our allies is good economic policy and also good foreign policy. S. 320 streamlines the process of licensing and works toward a license-free zone for exports with our allies on the Coordinating Committee on Multilateral Export Controls [Cocom]. This step follows through on agreements made by Cocom last June. These provisions will cut down on the time for trade with Cocom countries that results from the requirements of validated licenses for certain goods and technical data.
This bill responds to the dynamic world. It imposes export sanctions on Iraq because of its invasion of Kuwait and its violation of international law for human rights. The gulf war and Saddam Hussein's arsenal of chemical and biological weapons has brought to light the threat of these inconventional weapons. This bill includes a very timely provision regarding the proliferation of chemical and biological weapons.
S. 320 contains a strong provision for mandatory 1-year sanctions on countries or companies that contribute to the proliferation of chemical or biological weapons. It is the very strength of this provision that President Bush objected to and determined his pocket veto of the bill last year. I believe that we should be sending the strongest message possible around the world that chemical and biological weapons are intolerable.
Mr. President, the competition that U.S. exporters face is great. S. 320 provides a more level playing field for U.S. export firms in an international marketplace where oftentimes, their products are available from other countries more easily and with less bureaucracy. Increased exports will fight our trade deficit. And, the chemical and biological weapons provision will fight our war on the terror that these weapons present.
Mr. President, I urge the Congress to swiftly pass S. 320. It is foremost in our Nation's interests in deterring the all too real threat of chemical and biological weapons as well as in enabling U.S. firms to compete on an equal footing in the international economy.
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Mr. SPECTER. Mr. President, I send an amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report the amendment.
The assistant legisaltive clerk read as follows:
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The Senator from Pennsylvania [Mr. Specter] proposes an amendment numbered 2.
Mr. SPECTER. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.
The PRESIDING OFFICER. Is there objection? Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place insert the following:
SEC. . CRIMINAL AND CIVIL PENALTIES FOR PRODUCTION, TRANSPORT, OR USE OF BIOLOGICAL OR CHEMICAL WEAPONS WHICH KILL, MAIM OR INJURE U.S. NATIONALS ABROAD.
(1) Section 2331 of title 18, United States Code, is amended as follows:
(a) Delete the `and' at the end of subparagraph (3) and replace the period at the end of subparagraph (4)(C) with `; and';
(b) Add the following at the end of the section:
`(5) An act which knowingly and materially contributes to the production, transport, or use of biological or chemical weapons, or a component thereof, which kill, maim, or injure a national of the United States shall be considered an act of `international terrorism' and shall not constitute an `act of war.'; and
(2) Section 2332 of title 18, United States Code, is amended as follows:
Delete the period at the end of subparagraph (e) and add instead the phrase `or constituted an act as defined in section 2331(5).'
Mr. SPECTER. Mr. President, I ask unanimous consent that the distinguished Senator from North Carolina [Mr. Helms] be added as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Pennsylvania is recognized.
Mr. SPECTER. I discussed this amendment briefly with my distinguished colleague from North Carolina, and he stated his interest in becoming a cosponsor. I hope that foretells additional support.
Mr. President, earlier this afternoon I stated my intention to add this as an amendment. The amendment which I propose would expand the definition of terrorism to provide that production of biological and chemical weapons per se constitutes an act of terrorism whether or not there is an active state of war. This amendment further would criminalize transfer or development of chemical agents for use in biological and chemical weapons which would result in charging the individuals responsible for such transfer or development as accessories to terrorism.
The low cost, ease of delivery, and psychological effectiveness of using chemical or biological weapons has made them an increasingly viable option for many Third World countries. We are seeing the effect of chemical weapons and biological weapons in the hands of Iraq today as a major threat in the gulf war.
Over 10 Third World nations now have chemical warfare programs including Iraq, Libya, and Syria. Half that number have biological warfare programs as well. Yet Iraq, Syria, and Libya are all signatories to both the Geneva protocol and the Biological Weapons Convention prohibiting the use of such weapons.
A recent study lists over 200 Western companies from 22 nations which helped Iraq and Libya with materials relating to nuclear, chemical, and biological weapons and missiles.
One reason why attempts to control this proliferation have been ineffective is that the international community has not found a way to put teeth into the international law. Even when we can prove that Western companies have supplied technology to a country like Iraq, which has used chemical weapons against its own unarmed civilians, we cannot persuade anyone to punish significantly either the users or the suppliers.
Government-to-government sanctions stated succinctly alone will not work because the political difficulties of pursing those sanctions have been too difficult.
This amendment uses an expanded definition of terrorism and provides that the production of such biological and chemical weapons in and of itself constitutes an act of terrorism. This criminalizes the transfer or development of chemical agents for use in biological and chemical weapons.
This legislation differs from the legislation now pending in that it focuses on holding individuals rather than governments criminally liable for their actions. This amendment would complement the underlying legislation by focusing criminal and civil penalties on individuals whose actions are in violation of the harmonized list of export control rules and regulations called for in the bill.
Mr. President, the pending legislation stipulates that the President shall impose sanctions against a foreign person if that person has knowingly and materially contributed to efforts by any foreign country to use, develop, produce, stockpile, or otherwise acquire chemical or biological weapons.
Those sanctions are limited to, first, procurement sanctions, which means that the United States shall not procure or enter into any contract for the procurement of any goods or services from any such persons; and second, import sanctions, which provide that the United States shall not import products into the United States produced by such persons.
I suggest, Mr. President, that such sanctions are totally insufficient when compared to the criminal sanctions provided in this amendment. These sanctions would specify that if someone violates the law by providing such chemical or bacteriological warfare, and it involves the death of a U.S. citizen and that death involves murder in the first degree, then a life sentence could be imposed; similarly, strong penalties would apply for involuntary manslaughter or voluntary manslaughter or assault or maiming of U.S. citizens.
Therefore this amendment would build upon the pending legislation by giving the U.S. Government an additional option to pursue these criminal penalties. There are also civil penalties as well against the same individuals if as the result of their action a U.S. citizen is killed, injured or
maimed by chemical or biological weapons.
The pending legislation also states it is the policy of the United States to `adopt tougher multilateral sanctions against firms and individuals who violate controls on the export of chemical agents, precursors, and equipment.'
To achieve that, the pending legislation recommends, first, a public unclassified warning list of controlled chemical agents, precursors, and equipment; second, information exchange of channels for unsuspected proliferants; and, third, a denial list of firms and individuals who violate the Australia Group's export control provisions.
This amendment, Mr. President, would use this information to establish culpability and/or intent in pursuing criminal or civil penalties against foreign individuals by showing these individuals did knowingly and materially violate export control laws.
The pending legislation further discusses countries of concern which it describes as--
Countries other than those with whose government the United States has entered into an arrangement for the control of goods or technology on the list mentioned above, or countries other than those which the Secretary of State and Secretary of Defense shall designate consistent with the purposes of the Chemical and Biological Weapons Control and Warfare Legislation Act of 1991.
The pending amendment would also use these criteria to specify culpability and/or intent by establishing that these foreign individuals did knowingly and materially contribute to the development of chemical and biological weapons for a country that used or would use those weapons to kill, injure, or maim U.S. civilians. This would apply since the use of these chemical or biological weapons would constitute terrorism and would not be covered by an act of war.
Mr. President, there has already been considerable debate about the structure of sanctions, how they would be imposed, and what the discretion would be of the administration in the imposition of the sanctions. But I suggest the criminal penalties which would make the violators subject to the criminal law of the United States would have a much more forceful effect and a much greater deterrent effect than talking about the sanctions which are in the pending legislation.
One of the principal concerns of this Senator has been the continuation of the proliferation of these chemicals, even after the sanctions have been imposed against Iraq and even after Iraq has invaded Kuwait.
Sunday's edition of the New York Times, February 17, 1991, page 15, succinctly summarizes the situation to this effect:
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The current issue of the magazine Stern reports that in 1980 and 1981, a consortium of at least nine German concerns headed by the engineering and construction giant Thyssen Rheinstahl Klauseln built a plant south of Baghdad at which poison gas and biological weapons were developed. Thyssen reportedly won the $1 billion contract after pledging in writing that its corporate policy was to `boycott Israel economically and have no relations with Israel.'
Another magazine, Der Spiegel, reported in this week's editions that a Cologne-based construction company called Strabag has sent about 70 shipments of equipment to Iraq since August, when the United Nations declared a trade embargo against the Government of Saddam Hussein. The shipments were said to have included tools, spare parts, chemicals for purifying water and even 500 gas masks.
Mr. President, there have been numerous reports which substantiate the malicious, premeditated, calculated sale of such chemcials, which are usable against U.S. citizens. When we talk about an effective remedy, it seems to this Senator that the criminal law is much more effective in dealing with this serious problem than the sanctions contained in this bill.
The United States has, in the course of the past decade, moved decisively to utilize the U.S. criminal law to impose tough penalties on those who attack, maim, murder, hijack, or kidnap our citizens abroad. This is called extraterritorial jurisdiction. The customary rule is that the jurisdiction where the offense occurs has the authority to try a criminal case. If, for example, a robbery occurs in the District of Columbia, it is triable in the District. If a homicide occurs in the Commonwealth of Pennsylvania, it is triable there. But it is recognized under international law, and under U.S. domestic law, that the U.S. courts would have jurisdiction over acts committed against U.S. citizens abroad, even outside of the territory of the jurisdiction of the United States, because there is the nexus with U.S. interests where U.S. citizens are victims. That was the basis for the assertion of extraterritorial jurisdiction in the Omnibus Crime Control Act of 1984, when it was made a violation of U.S. law for anyone to hijack a plane of U.S. citizens or to take U.S. citizens hostage. That was the same nexus used in the Terrorist Act of 1986, which makes it a violation of U.S. law to assault, maim, or murder a U.S. citizen anywhere in the world.
It was under this extraterritorial jurisdiction that Federal agents arrested a terrorist by the name of Fawaz Yunis on the Mediterranean Sea, brought him back to the United States, Washington, DC, where he was tried in the U.S. District Court for the District of Columbia, found guilty, and sentenced to 30 years in jail. As we speak, Fawaz Yunis is in a Federal penitentiary.
It is the concern of the Colombian drug cartels of possible prosecution and imprisonment in the United States which has led to significant changes in the laws of Colombia to encourage surrenders, reduce penalties, and to promise no extradition to the United States. That policy, Mr. President, I suggest, is a very unwise policy for Colombia; but as a sovereign country, they can do as they choose. I believe that the United States is materially prejudiced by that change in Colombian policy, because there are suspects charged with murder in the United States, drug dealers, who will now not be extradited to the United States because of the change in Colombian policy.
While Colombia has the unquestioned right to act as it
chooses on a matter of national sovereignty within its own jurisdiction, it is the view of this Senator that we ought to curtail our assistance to Colombia on the drug war and any foreign aid to Colombia, a subject which will come up at a later time on the Senate floor. But the action of the Colombian Government in modifying their drug laws is relevant to show the concern that Colombian drug dealers have to being tried in a United States court.
There was a similar report when Sheik Obeid was taken into custody by the Israelis after the murder of Colonel Higgins. He was concerned about the possibility of being extradited and tried in the United States for terrorism against U.S. citizens. All of this reports a basic approach that when you deal with the crimial laws, there is a much tougher penalty available. Those in any foreign country who engage in acts of selling chemicals, which can be used for chemical or biological warfare, which then results in homicide, assault, or maiming of U.S. citizens, should be subject to very tough penalties, which could be activated by U.S. prosecutions. So I suggest that, in trying to deal with the very serious threat worldwide, we adopt this amendment that would provide these stronger and more appropriate sanctions.
I thank the Chair and yield the floor.
Mr. THURMOND. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SARBANES. Mr. President, there is an amendment pending that was offered by the distinguished Senator from Pennsylvania. I understand that he has another amendment that he is considering. In fact, he announced this morning that he was going to offer an amendment, S. 245, which is the bill which has been introduced concerning the imposition of the dealth penalty for the instances of terrorism.
I understand that on the basis of discussions that he has had with the table Senator from South Carolina [Mr. Thurmond] he has made some changes I think in the amendment he was proposing to offer which, of course, Members would like to have an opportunity to look at. We have been discussing this.
We think, perhaps, the best way to do this is to lay aside the pending amendment. The Senator from Pennsylvania would then offer an amendment of the nature of the sort that I have just been discussing and be recognized for a period of up to half an hour to explain and debate this amendment. Then the Senate would go into morning business.
Then we would go over and address the issue on tomorrow.
If that conforms with the conversation we had, I am prepared to propound the unanimous-consent request.
I yield to the Senator for a question.
Mr. SPECTER. That is entirely satisfactory, I say to my friend from Maryland.
Mr. SARBANES. Mr. President, I ask unanimous consent that the amendment pending at the desk be laid aside; that the Senator from Pennsylvania be recognized to offer an amendment dealing with the death penalty. It is a modification of S. 245, as I understand, which he earlier brought to the attention of the Senate; that it be in order for him to offer that amendment, and he be recognized then for a period for up to half an hour to explain and debate the amendment; and, at the conclusion of the half hour, or earlier if the time is not fully used for explanation and debate purposes that the Senate then go into a period for morning business.
The PRESIDING OFFICER (Mr. Lieberman). Is there objection? Without objection, it is so ordered.
Mr. SPECTER addressed the Chair.
The PRESIDING OFFICER. Pursuant to the order, the pending amendment is laid aside, and the Chair recognizes the Senator from Pennsylvania [Mr. Specter].
Mr. SPECTER. I thank the Chair.
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Mr. SPECTER. Mr. President, I send an amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
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The Senator from Pennsylvania [Mr. Specter] proposes an amendment numbered 3.
Mr. SPECTER. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place insert the following:
SEC. . TERRORIST DEATH PENALTY ACT OF 1991.
(1) Short Title: This section may be cited as the `Terrorist Death Penalty Act of 1991'.
(2) Death Penalty for Terrorists Acts: (a) Offense: Subsection 2332(a) of title 18 of the United States Code is amended to read as follows:
`(a) Homicide: Whoever kills a person while such person is inside the United States, or kills a national of the United States, while such national is outside the United States, shall--
`(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; and
`(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;'.
(b) Death Penalty.--Section 2332 of title 18, United States Code, is amended by adding at the end thereof the following:
`(f) Death Penalty:
`(1) Sentence of death: A defendant who has been found guilty of an offense under subsection (a)(1)(A), if the defendant, as determined beyond a reasonable doubt at a hearing under paragraph (3) either--
`(A) intentionally killed the victim;
`(B) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or
`(C) acting with reckless disregard for human life, engaged or substantially participated in conduct which the defendant knew would create a grave risk of death to another person or persons and death resulted from such conduct,
shall be sentenced to death if, after consideration of the factors set forth in paragraph (2) in the course of a hearing held under paragraph (3), it is determined that imposition of a sentence of death is justified, except that no person may be sentenced to death who was less than 18 years of age at the time of the offense.
`(2) Factors to be considered in determining whether a sentence of death is justified:
`(A) Mitigating factors: In determining whether a sentence of death is justified for any offense, the jury, or if there is no jury, the court, shall consider each of the following mitigating factors and determine which, if any, exist:
`(i) Mental capacity: The defendant's mental capacity to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.
`(ii) Duress: The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.
`(iii) Participation in offense minor: The defendant is punishable as a principal (as defined in section 2 of title 18 of the United States Code) in the offense, which was committed by another, but the defendant's participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge.
The jury, or if there is no jury, the court, shall consider whether any other aspect of the defendant's character or record or any other circumstances of the offense that the defendant may proffer as a mitigating factor exists.
`(B) Aggravating factors for homicide: In determining whether a sentence of death is justified for an offense described in paragraph (1), the jury, or if there is no jury, the court, shall consider each of the following aggravating factors and determine which, if any, exist:
`(i) Death occurred during commission of another crime: The death occurred during the commission or attempted commission of, or during the immediate flight from the commission of, an offense under section 751 (prisoners in custody of institution or officer), section 794 (gathering or delivering defense information to aid foreign government), section 844(d) (transportation of explosives in interstate commerce for certain purposes), section 844(f) (destruction of Government property by explosives), section 1201 (kidnapping), or section 2381 (treason) of this title, section 1826 of title 28 (persons in custody as recalcitrant witnesses or hospitalized following a finding of not guilty only by reason of insanity), or section 902 (i) or (n) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1472 (i) or (n) (aircraft piracy)).
`(ii) Involvement of firearm or previous conviction of violent felony involving firearm: The defendant--
`(I) during and in relation to the commission of the offense or in escaping apprehension used or possessed a firearm as defined in section 921 of this title; or
`(II) has previously been convicted of a Federal or State offense punishable by a term of imprisonment of more than one year, involving the use or attempted or threatened use of a firearm, as defined in section 921 of this title, against another person.
`(iii) Previous conviction of offense for which a sentence of death or life imprisonment was authorized: The defendant has previously been convicted of another Federal or State offense resulting in the death of a person, for which a sentence of life imprisonment or death was authorized by statute.
`(iv) Previous conviction of other serious offenses: The defendant has previously been convicted of 2 or more Federal or State offenses, each punishable by a term of imprisonment of more than one year, committed on different occasions, involving the importation, manufacture, or distribution of a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) or the infliction of, or attempted infliction of, serious bodily injury or death upon another person.
`(v) Grave risk of death to additional persons: The defendant, in the commission of the offense or in escaping apprehension, knowingly created a grave risk of death to one or more persons in addition to the victim of the offense.
`(vi) Heinous, cruel, or depraved manner of commission: The defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim.
`(vii) Procurement of offense by payment: The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.
`(viii) Commission of the offense for pecuniary gain: The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.
`(ix) Substantial planning and premeditation: The defendant committed the offense after substantial planning and premeditation.
`(x) Vulnerability of victim: The victim was particularly vulnerable due to old age, youth, or infirmity.
`(xi) Type of victim: The defendant committed the offense against--
`(I) the President of the United States, the President-elect, the Vice President, the Vice President-elect, the Vice President-designate, or, if there is no Vice President, the officer next in order of succession to the office of the President of the United States, or any person who is acting as President under the Constitution and laws of the United States;
`(II) a chief of state, head of government, or the political equivalent, of a foreign nation;
`(III) a foreign official listed in section 1116(b)(3)(A) of this title, if that official is in the United States on official business; or
`(IV) a public servant who is a Federal judge, a Federal law enforcement officer, an employee (including a volunteer or contract employee) of a Federal prison, or an official of the Federal Bureau of Prisons--
`(aa) while such public servant is engaged in the performance of the public servant's official duties;
`(bb) because of the performance of such public servant's official duties; or
`(cc) because of such public servant's status as a public servant.
For purposes of this clause, the terms `President-elect' and `Vice President-elect' mean such persons as are the apparent successful candidates for the offices of President and Vice President, respectively, as ascertained from the results of the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2; a `Federal law enforcement officer' is a public servant authorized by law or by a government agency or Congress to conduct or engage in the prevention, investigation, or prosecution of an offense; `Federal prison' means a Federal correctional, detention, or penal facility, Federal community treatment center, or Federal halfway house, or any such prison operated under contract with the Federal Government; and `Federal judge' means any judicial officer of the United States, and includes a justice of the Supreme Court and a magistrate.
The jury, or if there is no jury, the court, may consider whether any other aggravating factor exists.
`(3) Special hearing to determine whether a sentence of death is justified:
`(A) Notice by the government: Whenever the Government intends to seek the death penalty for an offense described in paragraph (1), the attorney for the Government, a reasonable time before the trial, or before acceptance by the court of a plea of guilty, or at such time thereafter as the court may permit upon a showing of good cause, shall sign and file with the court, and serve on the defendant, a notice--
`(i) that the Government in the event of conviction will seek the sentence of death; and
`(ii) setting forth the aggravating factor or factors enumerated in paragraph (2) and any other aggravating factor not specifically enumerated in paragraph (2), that the Government, if the defendant is convicted, will seek to prove as the basis for the death penalty.
The court may permit the attorney for the Government to amend the notice upon a showing of good cause.
`(B) Hearing before a court or jury: When the attorney for the Government has filed a notice as required under subparagraph (A) and the defendant is found guilty of an offense described in paragraph (1), the judge who presided at the trial or before whom the guilty plea was entered, or another judge if that judge is unavailable, shall conduct a separate sentencing hearing to determine the punishment to be imposed. Before such a hearing, no presentence report shall be prepared by the United States Probation Service, notwithstanding the Federal Rules of Criminal Procedure. The hearing shall be conducted--
`(i) before the jury that determined the defendant's guilt;
`(ii) before a jury impaneled for the purpose of the hearing if--
`(I) the defendant was convicted upon a plea of guilty;
`(II) the defendant was convicted after a trial before the court sitting without a jury;
`(III) the jury that determined the defendant's guilt was discharged for good cause; or
`(IV) after initial imposition of a sentence under this paragraph, reconsideration of the sentence under the section is necessary; or
`(iii) before the court alone, upon motion of the defendant and with the approval of the attorney for the Government.
A jury impaneled pursuant to clause (ii) shall consist of 12 members, unless, at any time before the conclusion of the hearing, the parties stipulate, with the approval of the court, that it shall consist of a lesser number.
`(C) Proof of mitigating and aggravating factors: At the hearing, information may be presented as to--
`(i) any matter relating to any mitigating factor listed in paragraph (2) and any other mitigating factor; and
`(ii) any matter relating to any aggravating factor listed in paragraph (2) for which notice has been provided under subparagraph (A)(ii) and (if information is presented relating to such a listed factor) any other aggravating factor for which notice has been so provided.
Information presented may include the trial transcript and exhibits. Any other information relevant to such mitigating or aggravating factors may be presented by either the government or the defendant, regardless of its admissibility under the rules governing admission of evidence at criminal trials, except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. The attorney for the Government and for the defendant shall be permitted to rebut any information received at the hearing, and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any aggravating or mitigating factor, and as to the appropriateness in that case of imposing a sentence of death. The attorney for the Government shall open the argument. The defendant shall be permitted to reply. The Government shall then be permitted to reply in rebuttal. The burden of establishing the existence of an aggravating factor is on the Government, and is not satisfied unless the existence of such a factor is established beyond a reasonable doubt. The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless the existence of such a factor is established by a preponderance of the evidence.
`(D) Return of special findings: The jury, or if there is no jury, the court, shall consider all the information received during the hearing. It shall return special findings identifying any aggravating factor or factors set forth in paragraph (2) of this title found to exist and any other aggravating factor for which notice has been provided under subparagraph (A) found to exist. A finding with respect to a mitigating factor may be made by one or more members of the jury, and any member of the jury who finds the existence of a mitigating factor may consider such factor established for purposes of this section regardless of the number of jurors who concur that the factor has been established. A finding with respect to any aggravating factor must be unanimous. If no aggravating factor set forth in paragraph (2) is found to exist, the court shall impose a sentence other than death authorized by law.
`(E) Return of a finding concerning a sentence of death: If an aggravating factor required to be considered under paragraph (2)(C) is found to exist the jury, or if there is no jury, the court, shall then consider whether the aggravating factor or factors found to exist outweigh any mitigating factor or factors. The jury, or if there is no jury, the court, shall recommend a sentence of death if it unanimously finds at least one aggravating factor and no mitigating factor or if it finds one or more aggravating factors which outweigh any mitigating factors. In any other case, it shall not recommend a sentence of death. The jury shall be instructed that it must avoid any influence of sympathy, sentiment, passion, prejudice, or other arbitrary factors in its decision, and should make such a recommendation as the information warrants.
`(F) Special precaution to assure against discrimination.--In a hearing held before a jury, the court, before the return of a finding under subparagraph (E), shall instruct the jury that, in considering whether a sentence of death is justified, it shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or of any victim and that the jury is not to recommend a sentence of death unless it has concluded that it would recommend a sentence of death for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or of any victim may be. The jury, upon return of a finding under subparagraph (E), shall also return to the court a certificate, signed by each juror, that consideration of the race, color, religious beliefs, national origin, or sex of the defendant or any victim was not involved in reaching the juror's individual decision and that the individual juror would have made the same recommendation regarding a sentence for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or any victim may be.
`(4) Imposition of a sentence of death: Upon the recommendation under paragraph (3)(E) that a sentence of death be imposed, the court shall sentence the defendant to death. Otherwise the court shall impose a sentence, other than death, authorized by law. Notwithstanding any other provision of law, if the maximum term of imprisonment for the offense is life imprisonment, the court may impose a sentence of life imprisonment without the possibility of release or furlough.
(5) Review of a sentence of death:
`(A) Appeal.--In a case in which a sentence of death is imposed, the sentence shall be subject to review by the court of appeals upon appeal by the defendant. Notice of appeal of the sentence must be filed within the time specified for the filing of a notice of appeal of the judgment of conviction. An appeal of the sentence under this paragraph may be consolidated with an appeal of the judgment of conviction and shall have priority over all other cases.
`(B) Review.--The court of appeals shall review the entire record in the case, including--
`(i) the evidence submitted during the trial;
`(ii) the information submitted during the sentencing hearing;
`(iii) the procedures employed in the sentencing hearing; and
`(iv) the special findings returned under paragraph (3)(D).
`(C) Decision and disposition.--
`(i) If the court of appeals determines that--
`(I) the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor; and
`(II) the evidence and information support the special findings of the existence of an aggravating factor or factors;
it shall affirm the sentence.
`(ii) In any other case, the court of appeals shall remand the case for reconsideration under paragraph (3) of this title or for imposition of another authorized sentence as appropriate.
`(iii) The court of appeals shall state in writing the reasons for its disposition of an appeal of sentence of death under this paragraph.
`(6) Implementation of a sentence of death:
`(A) In general: A person who has been sentenced to death pursuant to this subsection shall be committed to the custody of the Attorney General until exhaustion of the procedures for appeal of the judgment of conviction and for review of the sentence. When the sentence is to be implemented, the Attorney General shall release the person sentenced to death to the custody of a United States marshal, who shall supervise implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed. If the law of such State does not provide for implementation of a sentence of death, the court shall designate another State, the law of which does so provide, and the sentence shall be implemented in the manner prescribed by such law.
`(B) Impaired mental capacity, age, or pregnancy: A sentence of death shall not be carried out upon a person who is under 18 years of age at the time the crime was committed.
A sentence of death shall not be carried out upon a woman while she is pregnant.
`(C) Employees may decline to participate: No employee of any State department of corrections or the Federal Bureau of Prisons and no employee providing services to that department or bureau under contract shall be required, as a condition of that employment or contractual obligation, to be in attendance at or to participate in any execution carried out under this paragraph, if such participation is contrary to the moral or religious convictions of the employee. For purposes of this subparagraph, the term `participate in any execution' includes personal preparation of the condemned individual and the apparatus used for the execution, and supervision of the activities of other personnel in carrying out such activities.
`(7) Use of state facilities: A United States marshal charged with supervising the implementation of a sentence of death may use appropriate State or local facilities for the purpose, may use the services of an appropriate State or local official or of a person such as an official employed for the purpose, and shall pay the costs thereof in an amount approved by the Attorney General.
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Mr. SPECTER. Mr. President, I thank the distinguished Senator from Maryland for working out this arrangement. I had submitted the earlier arrangement which provided for criminal sanctions for those who sell chemicals which are used for chemical or bacteriological warfare, and since debate is incomplete on that amendment, it seemed to the Senator from Maryland and myself that it would be useful for the time of the Senate to lay that amendment aside and take up the amendment on the death penalty which, as this Senator had stated earlier today in morning business, would be offered in sequence, so we can use the next 30 minutes profitably for this and then proceed tomorrow with both the earlier amendment and this amendment.
This amendment, as noted by the Senator from Maryland, is a bill which has already been introduced, S. 245, which provides for the death penalty for terrorists.
This Senator has already notified the distinguished chairman of the Judiciary Committee, the Senator from Delaware [Mr. Biden], and the distinguished Senator from Michigan [Mr. Levin], who has a special interest in this proposed legislation, as well as the distinguished Senator from Oregon [Mr. Hatfield], because both Senator Hatfield and Senator Levin were principal opponents of this legislation when it was debated in the 101st Congress and ultimately adopted by a vote of 79 to 20.
This amendment would provide that the death penalty would be a possible penalty for murder committed by a terrorist against a U.S. citizen, either in the United States or abroad.
This amendment follows the legislation which this Senator introduced in 1986, which makes it a violation of U.S. law for a terrorist to maim, assault, or murder a U.S. citizen anywhere in the world.
This is an illustration of extraterritorial jurisdiction, on which the U.S. Congress acted in 1984 under the omnibus crime control bill of 1984, where we made it a violation of U.S. law for a terrorist to hijack a plane carrying U.S. citizens or take a U.S. citizen as a hostage. Then when we had the experience in the Rome and Vienna airports in December 1985, where there was a blatant act of murder by terrorists against citizens from many countries, including citizens from the United States. We thought it appropriate to enact legislation which would make it a violation of the U.S. law to assault, maim, or murder a U.S. citizen anywhere in the world.
The penalty was limited at that time to life imprisonment because of the practical difficulty of getting legislation enacted which would carry the death penalty. Many people will be surprised to learn, Mr. President, that the death penalty has been nonexistent for Federal offenses since the Supreme Court of the United States declared the death penalty unconstitutional in the 1970's case of Furman versus Georgia, where it was required by that Supreme Court decision that extensive procedures be established on aggravating and mitigating circumstances, and except for the Code of Military Justice and the Drug Act of 1988, the death penalty is not available on any Federal prosecution.
This is a change from the law before Furman where the death penalty had been available under Federal law for treason, espionage, murder, assassination of an American President, explosives causing death, train wrecks causing death, which are just illustrative situations.
Since Furman versus Georgia, there has essentially been no Federal death penalty in the United States. It is the view of this Senator that the death penalty is a deterrent and has to be very carefully used and has to be very, very carefully applied; but based on the extent of the experience that I have had as a prosecuting attorney, the death penalty is an effective deterrent.
Of all of the categories of murder, none is more heinous or outrageous than terrorism; wanton acts of individuals who act by stealth, who hijack planes, who riddle innocent tourists in airplane lobbies, and in a most egregious manner.
A few examples will call to mind many of the horrendous acts of terrorism which have taken place around the world. On December 21, 1988, in the famous Pan Am 103 tragedy, that plane was blown up by a terrorist bomb over Lockerbie, Scotland and 259 passengers were brutally murdered, 79 being women, 189 United States citizens.
Earlier that year, Lieutenant Colonel Higgins was reportedly hanged by the Hezbollah captors in retaliation for the Sheik Obeid incident, bringing outrage in world reaction.
In 1986, on April 2, TWA flight 840 was en route to Athens, Greece. A bomb was placed under a passenger seat by terrorists, exploding, causing four U.S. citizens, including a mother and her infant child and the grandmother to be sucked out of the aircraft, falling to their deaths.
Later that year, on September 5, 1986, Pan Am 73 at Karachi, Pakistan, was held by terrorists for 17 hours. Gunmen were indiscriminately exploding grenades and firing machine guns; 21 people died, 100 people were wounded; 2 U.S. citizens were killed.
In 1985, on June 14, the 17-day ordeal occurred on TWA flight 847 where three U.S. citizens were severely and repeatedly beaten by terrorists. Robert Stethem, a Navy diver, was not only savagly beaten, but executed with a shot to his head,
and his body was dumped out of a plane onto an airfield in an egregious and reprehensible act of murder as a result of a terrorist plot.
On October 7, 1985, Leon Klinghoffer, an American citizen, was taking a pleasure cruise on the ship Achille Lauro. He was confined to a wheelchair and was rolled onto an open deck of the cruise ship where he was hit in the head and chest by terrorists and his body dumped unceremoniously into the Mediterranean Sea.
On December 27, 1985, at the Rome Airport, 15 people were murdered, including 5 U.S. citizens, and 73 were wounded in a grenade and machinegun attack by the Abu Nidal terrorist organization.
Mr. President, I could go on at some considerable length on a recitation of horrible terrorist attacks around the world.
The thrust of this amendment would say that the death penalty ought to be available as an option to life imprisonment for this kind of horrendous killing, murders in the first degree. That is not to say that it is mandatory, because it is a matter of discretion of juries under U.S. law, but it ought to be available.
The thrust of extraterritorial jurisdiction, Mr. President, has been successful. The celebrated case of Fawaz Yunis is an illustration where that terrorist was apprehended on a James Bond type of maneuver in the Mediterranean Sea, where FBI agents brought Mr. Yunis on to a fishing boat where he was taken into custody, brought back to the United States and tried in a Federal court here in Washington, DC, accorded full constitutional protections, the whole gamut, including suppression motions on his statements, legalistic challenges to the propriety of his arrest. Ultimately, he was sentenced to 30 years in prison.
Mr. President, there are many who oppose the death penalty on moral grounds, but I believe the deterrent value of the death penalty has been established. And there are leading jurists around the world, commenting on the propriety of the death penalty, who have upheld its application.
A cogent statement was made by Chief Justice Earl Warren in the celebrated case of Trop versus Dulles, to this effect:
At the outset let us put to one side the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment both on moral grounds and in terms of accomplishing the purpose of punishment, and they are forceful, the death penalty has been employed throughout our history and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.
An opinion by the distinguished Supreme Court Justice, Potter Stewart, is worth noting in the case of Gregg versus Georgia, where Justice Stewart wrote as follows:
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Indeed, 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 penalty of death.
In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.
Justice Stewart then quoted from Lord Justice Denning, Master of the Rolls of the Court of Appeal in England, when Lord Justice Denning spoke to the British Royal Commission on Capital Punishment in what I think is an important statement:
Punishment is the way in which society expresses its denunciation of wrong doing: and in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else. The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.
Mr. President, there was a very distinguished opinion in the California Supreme Court by Justice McComb, who referred to a great many cases showing the deterrent effect of capital punishment. Rather than take the time to recite them now, because there are others who will want to utilize time in morning business, suffice it to refer to the Congressional Record of January 23, 1991, page S1075, and following pages, which contain a recitation of the case citations by Justice McComb.
Mr. President, there is an issue as to whether deterrence really works on terrorists where emotion or fervor motivates the terrorist, and no one can say that capital punishment will be a deterrent in all cases. But even those who operate in the terrorist mode are concerned about punishment in a U.S. court, illustrated by Fawaz Yunis.
Although the death penalty was not available when Sheik Obeid was apprehended by the Israelis after the murder of Colonel Higgins in retaliation, reliable reports suggested that Sheik Obeid was very apprehensive about being brought to a United States court to be tried. Even though he would not face the death penalty, he was very apprehensive about that kind of punishment.
Those who murdered Colonel Higgins were terrorists of the first and worst order. And there is much to suggest that the terrorists involved in the cases which I have recited are very much concerned about punishment, and that the possibility of the death penalty, realistically viewed, is an effective deterrent or at least the possibility of a deterrent. As long as that possibility is present, the U.S. Government ought to be armed with every reasonable weapon at its disposal, and the death penalty is one such weapon.
Mr. President, I think that outlines, as an overall purpose, the thrust of this amendment, which is to call for the death penalty for terrorism. There will doubtless be those who will speak against this amendment, as they did last year. But the overwhelming support of the Senate was present, as a vote of 79 to 20 ultimately approved this amendment.
But I think that it is sufficient for the present purposes, and those who oppose the amendment are on notice. We can return at a later time, when consideration of this bill is taken up tomorrow.
I thank the Chair, and I yield the floor.
Mr. THURMOND. Mr. President, the Senator from Pennsylvania proposes a measure which authorizes the death penalty for terrorist acts against U.S. nationals abroad. We worked to improve this amendment by incorporating a vast number of provisons from a terrorism death penalty bill I introduced. This amendment now authorizes the death penalty for terrorist murders--committed either here in the United States or abroad. I strongly support this proposal.
Saddam Hussein, in the first days following Desert Storm, called for the international network of terrorists to strike out against the United States and its people. Congress must respond to this threat. Acts of international terrorism against the citizens of the United States must not be permitted to go unpunished. Terrorism--the heinous, politically motivated acts carried out against the world's innocent--must be brought to an end. We must not allow these vicious murderers to hide behind a veil of political struggle and spill innocent American blood without facing severe punishment.
Mr. President, this amendment would amend title 18 to authorize a sentence of death for a terrorist murder committed against any person inside the United States or committed against U.S. nationals outside the United States. In
order for the death penalty to be sought, the Attorney General would have to certify that the murder was a terrorist act intended to coerce, intimidate, or retaliate against a government or a civilian population.
Currently, numerous Federal statutes provide that a sentence of death may be imposed if a person is found guilty. However, the reality is that the death penalty may not be imposed for these offenses because constitutional procedures for imposing such a sentence have not existed. On the first day of this Congress, I introduced a measure which would establish the necessary constitutional procedures for the implementation of a comprehensive Federal death penalty. Although I strongly believe that Congress should pass a comprehensive death penalty measure, the unique situation which confronts this Nation dictates that we move swiftly to pass a terrorism death penalty bill. Although I differ with my colleague from Pennsylvania on certain procedures to implement the death penalty, it is important that we act swiftly on a terrorist death penalty bill. Congress should ensure that those who respond to Saddam's calls for terrorism pay the ultimate price.
In summary, terrorism has plagued the world for many years. Increasingly, the United States has been the focus of such acts. For example, no one can forget the 241 United States military servicemen killed in Beirut by a suicide truck bomber in October 1983, or the innocent Americans killed in the December 1988 bombing of Pan Am flight 103 over Scotland. Just last month, a terrorist accidentally detonated a bomb, killing himself, on his way to plant it in a United States Government building in Manila. All of these incidents, combined with the Butcher of Baghdad's call to terrorism, clearly illustrate the fact that there is, indeed, an increased threat of terrorism against our people.
Mr. President, this amendment will send a strong signal to those international terrorist groups that choose to make victims of innocent Americans. That message is, `If you choose to prey upon innocent Americans, you will pay the supreme price--your life!' We simply cannot hesitate any longer to ensure that terrorist acts will be dealt with harshly.
In closing, Saddam Hussein has made it clear that he is unmoved by human decency and encourages acts of terrorism. His amoral acts of gassing his own people, dropping Scud missiles on Israeli civilians, and threatening to use American POW's as human shields illustrate his barbarism. Congress must act to deter and punish those who commit terrorism and take the lives of innocent Americans.
For these reasons, I urge my colleagues to support this amendment.
Mr. SPECTER. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SARBANES. Mr. President, I ask unanimous consent that the order for the qourum call be rescinded.
The PRESIDING OFFICER (Mr. Robb). Without objection, it is so ordered.
END