1995 Congressional Hearings
Intelligence and Security

                          STATEMENT

                             OF

                      JAMIE S. GORELICK

                   DEPUTY ATTORNEY GENERAL

                           BEFORE

                             THE

                 COMMITTEE ON THE JUDICIARY

                U.S. HOUSE OF REPRESENTATIVES

                         CONCERNING

                COUNTERTERRORISM LEGISLATION

                        PRESENTED ON

                        JUNE 12, 1995



     Mr. Chairman and members of the Committee, I appreciate

the opportunity to testify before you today on your bill,

H.R. 1710, the "Comprehensive Anti terrorism Act of 1995."

The tragic bombing of the Murrah Building in Oklahoma City

on April 19 underscores the need for swift action by both

the Executive and Legislative Branches to ensure that our

law enforcement agencies have the legal tools and resources

to investigate, prosecute, and deter terrorist activity,

both at home and abroad.



     When I appeared before Mr. McCollum's Subcommittee on

Crime on May 3, I stressed that the threat posed by

terrorism required the Administration and the Congress to

work together in a bipartisan manner to achieve a tough,

comprehensive, and effective response. This bipartisan

approach has resulted, already, in the passage of impressive

anti-terrorism legislation in the Senate which contained

virtually every proposal put forth by the President.



     The Administration remains equally committed to working

with the House to move effective anti-terrorism legislation,

with broad, bipartisan support, to the House floor and to

the President's desk as soon as possible. And, as we proceed

through the remaining, sometimes difficult, stages of the

legislative process, we must not lose sight of the critical

fact that we all share a common goal in this effort, and

that the matters on which we differ are far, far outweighed

by those upon which we agree.



     The Administration's bills contain a total of 38

legislative proposals. All but five of those proposals are

addressed in Chairman Hyde's bill, in identical or

substantially similar form. Both bills:



     -Create broad-based Federal criminal jurisdiction for

     terrorism crimes



     -Expand jurisdiction of the United States courts to

     cover terrorism cases outside the United States where

     the victim or perpetrator is a U.S. national



     -Ban financial support to foreign organizations which

     the President has designated as terrorist organizations



     -Require, in foreign counterintelligence

     investigations, the disclosure of certain consumer

     credit reports, as well as access to common carrier,

     public accommodation, storage rental and vehicle rental

     records upon the presentation of an administratively

     obtained National Security Letter



     -Permit the use of "pen register" and "trap and trace"

     devices in foreign counterintelligence cases under the

     same standard as those devices are currently available

     in routine criminal cases



     -Authorize the use of "multi-point" wiretaps when the

     subject of an investigation, by frequently switching

     phones, avoids surveillance pursuant to a standard,

     single-point wiretap



     -Permit the use of existing "emergency wiretap

     authority" in terrorism cases



     -Expand penalties for transferring firearms or

     explosives knowing they will be used in a crime of

     violence



     -Allow the military to provide assistance to civilian

     law enforcement personnel in dealing with chemical and

     biological weapons,



     -Require a study of the addition of taggants to

     explosive materials to permit post-explosion tracing,

     and



     -Increase protection for federal employees and their

     families



     And I'm pleased to note that this is only a partial

list of the provisions those two bills have in common.



     Keeping in mind the overwhelming similarity between our

approaches, let me summarize briefly how our bills differ.

First, there are five provisions which appeared in the

Administration proposals but which are not a part of

Chairman Hyde's bill:



(1)  the addition of terrorism offenses as predicate

acts under the RICO statute;



(2) amendment of the Foreign Assistance Act of 1961 to

facilitate enhanced anti-terrorism training to

appropriate personnel of other nations;



(3) authority for the government to seek a

court-ordered wiretap in any felony certified by the

Attorney General to be related to terrorism; and



(4) authority for the Secretary of Treasury to

promulgate regulations prohibiting the possession or

transfer of explosive materials without taggants



(5) an increase in the time period within which

criminal prosecutions can be initiated under the

National Firearms Act, making the statute of

limitations for the illegal use of machine guns and

bombs as long as the statute of limitations for the

misuse of the Smokey the Bear logo. We believe that

each of these provisions is meritorious, and we would

encourage the Committee to consider adding them to H.R.

1710.

     

     Second, H.R. 1710 includes a few legislative provisions

that were not in the Administration's proposals. Three new

provisions in the area of criminal law and procedure relate

to enhanced sentencing for certain explosives offenses;

directions to the Sentencing Commission for a guidelines

adjustment relating to domestic terrorism; and a technical

amendment to the existing pretrial detention statute

relating to the computation of time deadlines. The

Administration welcomes each of these additions and joins

with you, Mr. Chairman, in supporting their enactment.



     H.R. 1710 also includes several new provisions related

to immigration law. Five of those provisions focus

specifically on alien terrorists --



-Providing funding for the detention and deportation of

such aliens;



-Denying asylum to such aliens;



-Denying certain other forms of immigration relief to

alien terrorists;and



-Providing "special attorneys" in alien terrorist

deportation or exclusion proceedings who will serve as

an aid to the court in handling and interpreting

classified information when an unclassified summary of

the evidence against the alien is not provided to the

alien.



-Providing for the exclusion of those who are merely

members -- as opposed to representatives -- of

designated foreign terrorist organizations, along with

Attorney General authority to waive the provision. 

     

     The Administration also joins in general support of

these provisions, although in some cases, certain minor

modifications to these provisions would be beneficial. For

example, the funding for detention and deportation of alien

terrorists would more appropriately be made available to the

Justice Department as a whole, rather than the Immigration

and Naturalization Service, since many of the costs of such

activity extend to various Justice Department components

along with the INS.



     The remainder of the new immigration provisions

contained in H.R. 1710 are not terrorism-specific, but

rather would relate to immigration matters generally.

Specifically, one section would provide for an expedited

exclusion process that is similar to that proposed by the

Administration. We believe our approach, under which the

Attorney General has the discretion to impose expedited

exclusion for extraordinary migration situations, addresses

the need for an expedited process while limiting the effect

that a universally applied process would have on INS asylum

officer resources.



     Another section of the Chairman's bill would

fundamentally reform the "entry" doctrine which controls the

extent of procedural rights that aliens receive in exclusion

and deportation proceedings. We support the notion of

amending the "entry" distinction between deportation and

exclusion proceedings, but this is not an easy change. It

should be accompanied by a number of conforming amendments

to other sections of the Immigration and Nationality Act,

some of which raise policy implications. Such an amendment

would eliminate relief from deportation currently available

to aliens who have developed significant ties to the United

States over a long period and whose removal would work a

hardship in U.S. citizens or permanent resident relatives.

It may be appropriate to carve out an exception for the most

compelling of those situations, for example, where the alien

came to the United States as a child. In addition, some

changes should be made regarding judicial review and the

permissibility of aliens who would be subject to exclusion

to depart the United States voluntarily without the need for

a hearing.



     We understand that the Subcommittee on Immigration and

Claims is preparing a bill that may address this issue in a

more comprehensive way. Given the difficulty of the issues

involved, we suggest that this amendment is better addressed

in the context of a broader immigration reform bill.



     Finally, I would like to focus briefly on the few areas

of real, substantive difference which exist between the

Administration's proposal and H.R. 1710. First, while both

Chairman Hyde's bill and the President's proposals

criminalize the provision of material support to

presidentially designated terrorist organizations,

the Administration's proposal also provides a procedure

under which U.S.-based fund raisers for foreign terrorist

organizations could raise funds for certain humanitarian or

charitable purposes pursuant to a licensing scheme. An

additional benefit of such a provision is that it will

assist in monitoring of fund-raising in the United States by

some terrorist organizations. With respect to the

designation of terrorist organizations for the purpose of

fund raising restrictions, the Administration believes that

such a designation is better made as part of the new fund

raising restriction provisions, rather than as an amendment

to the Immigration and Nationality Act.



     The Chairman's bill and the Administration proposals

also both provide authority to access common carrier, public

accommodation, storage facility, and vehicle rental facility

records through the use of a National Security Letter in

foreign counterintelligence cases. The Hyde bill adds a

requirement that these records be publicly disclosed within

180 days. Such a requirement jeopardizes lengthy, ongoing

investigations and the Administration strongly urges that it

be dropped.



     Next, HR 1710 lacks a definition of the terms "national

security" and "terrorist". We recommend the use of the

definitions for these terms contained in the

Administration's proposals.



     Finally, there are a few areas of difference between

H.R. 1710 and the Administration's program with respect to

funding. Your proposal, Mr. Chairman, authorizes

appropriations for enhanced funding only of FBI operations

relating to domestic and international terrorism. We have

proposed additional authorizations for costs which will also

be incurred by the Criminal Division and the United States

Attorneys offices around the country.



     In addition, as is reflected in our supplemental

appropriation request, we also support the establishment of

a counter terrorism and counterintelligence fund under the

direct control of the Attorney General, rather than a

particular Justice agency. Such a fund would provide her

with the authority to reimburse any Justice agency or

component that incurs costs in response to a terrorist

activity.



     I also would like to address the need to provide an

assured funding source for the Administration's digital

telephony initiative. We need to ensure that law enforcement

will continue to have access to court authorized

interceptions of communications. On that front -- at the

urging of the President -- Congress last year passed the

Communications Assistance for Law Enforcement Act, which

authorized the Government to cover the costs incurred by the

telecommunications carriers to retrofit their equipment. In

the President's counter terrorism legislation transmitted to

Congress we proposed a 40% surcharge against all non-lRS

civil monetary penalties to pay for this cost. After a

thorough review, we believe this legislation can withstand

any constitutional challenges, and we urge your support for

this funding mechanism.



     It is clear from this brief comparison of the

Administration's anti terrorism proposals with H.R. 1710

that the overwhelming substance of the respective proposals

is consistent and that there is sound basis for the prompt 

enactment of comprehensive and effective anti terrorism

legislation. In my testimony today, I have suggested some

potential improvements to the Hyde bill which we hope you

will consider. Other, more technical proposed amendments,

will be submitted in writing shortly and in all likelihood

can be resolved at the staff level.



               To conclude, Mr. Chairman, I want to thank you for

this opportunity to address this issue and for the spirit of

cooperation you have shown throughout this process. We look

forward to working with the Committee and the Congress to

achieve the prompt enactment of comprehensive and effective

antiterrorism legislation.