Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I am truly gratified at the action that I believe the Senate is about to take. Passage of this legislation is urgently needed. This bill, passing at this time, will be a memorial to the victims of terrorism. I was so moved the other day, when survivors of terrorism came here to Washington to plead again for enactment of this legislation. Since the Senate first acted last June, we have been working to reach this point. The result of that effort is a conference report that, in my view, deserves the support of every Member here. This legislation represents a landmark effort to address an issue of grave national importance--the prevention and punishment of acts of terrorism. This bill includes long-needed reforms to Federal habeas corpus procedures and provides vital provisions for victims of terrorism and other Federal crimes. It also adds important tools to the Government's fight against terrorism, and does so in a temperate manner that is protective of civil liberties. I have insisted from the beginning that this bill address the needs of the victims of terrorist acts, so I am particularly pleased about the provisions we have included for them. Our commitment to the victims of terrorism is evident from the first two titles of the conference report. These provisions are the heart and soul of this bill, and are the only provisions which can provide solace to the victims of past acts of terrorism, such as Oklahoma City and Lockerbie: Habeas corpus reform: This legislation includes tough, fair, and effective reform of Federal habeas corpus procedures. I have been fighting, along with crime victims across our Nation, for the enactment of this legislation for nearly 20 years. Finally, heinous criminals will no longer be able to thwart justice and avoid just punishment by filing frivolous appeals for years on end. Finally, crime and terrorism victims will know that our justice system means what it says. Mandatory victim restitution: The mandatory victim restitution section of this bill is the Hatch-Biden measure, and will ensure for the first time that Federal courts must order violent criminals and terrorists to pay restitution to their victims. We all know that a price can never be placed on the terrible costs these crimes inflict. We also know that in far too many cases, repayment will fall far short of the cost we can calculate. However, with this bill, victims will finally have the solace of knowing that the justice system recognizes their loss, and that the perpetrators of evil are held accountable. Terrorism by foreign countries: This bill takes the important step of ensuring that Americans who are harmed by foreign governments committing or directing terrorists acts can sue those governments in American courts. Lawless nations will no longer be able to hide their terrorist acts behind the rules of international law that they otherwise flaunt. Oklahoma City trial: Finally, by providing for closed circuit viewing of the Oklahoma City trial by the bombing's victims and survivors, this bill also will ensure that these courageous people can observe justice being done, while still ensuring a fair and just trial for the accused. The terrorism bill we are about to finalize also is a tough, effective measure. With its enactment, we will be better able to prevent and deter future terrorist acts. Moreover, we will be better equipped to respond to and punish these heinous acts should they occur. First, for the first time since the tragic bombing of Pan Am flight 103, it will be required that all plastic explosives manufactured, sold, imported into, or exported from the United States include chemicals to make them detectable by airport security. This provision will help protect airline passengers from terrorist attacks and fulfill our obligations under international agreements. Second, this legislation include important new measures to ensure that access to dangerous human pathogens--like the agent that causes bubonic plague--is properly limited. This will help ensure that the American people are not victimized by terrorists engaging in such tactics, such as the Japanese cult Aum Shinri Kyo that released cyanide gas in a crowded Tokyo subway. Third, the bill we will send to the President provides law enforcement with the tools necessary to combat the threat of nuclear contamination and proliferation that may result from illegal possession of nuclear materials. Fourth, this antiterrorism bill will prohibit, in a constitutional manner, fundraising in this country by specific, designated foreign terrorist groups. Once designated, these groups will no longer be permitted to use American-raised funds to spread terror here and abroad. Fifth, this bill provides the Federal Government with the tools it needs to exclude representatives and members of foreign terrorist groups from the United States, and provides the Government with the ability, within the bounds of due process, to deport alien terrorists without compromising national security. This bill also: Increases the penalties for crimes committed with explosives, as well as conspiracies to commit such crimes; curtails the use of domestic and foreign use of weapons of mass destruction; addresses the increasingly global nature of terrorism, increasing penalties for terrorist acts that transcend national boundaries; imposes strict penalties for retaliatory assaults or murders of Federal officers or employees; provides emergency response training to State and local law enforcement; and harmonizes security measures to provide Americans flying to and from the United States on foreign airlines with the same level of protection they receive for domestic flights. In short, this bill reflects the unity of purpose and clarity of resolve with which we must meet the terrorist threat. I am proud of the bill we have crafted. It is time for us to finish the job, and pass this conference report. In doing so, it is my hope that we recall the Americans who died at the hands of terrorists, not only last month, but over the last 15 years or more. In Beirut, in Lockerbie, in New York, and in Oklahoma City, victims of terrorism have had their lives stolen by evil persons pursuing selfish and twisted agendas. We can honor these victims by completing the task at hand.

Mr. HATCH. Mr. President, I move to reconsider the vote.

Mr. HATCH. Right.

Mr. HATCH. Divided between Senator Biden and myself, and I make sure the----

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

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

Mr. HATCH

Mr. HATCH. Mr. President, I hear the Senator. I do really think, though, we ought to consider winding this up. Personally, I think there comes a time when enough is enough on these motions to recommit because what we are trying to do is to get this bill through. Frankly, we have people in the House on both extremes, both the far left and far right, who disagree on some of these things. I do not think it is unreasonable to request a study so that we look at this matter, consider the first amendment implications and other implications and do it right, although I have some sympathy with what the Senator said. I am prepared to yield back the remainder of my time, and I move to table.

Mr. HATCH. Mr. President, I will only take a couple of minutes, and then I am prepared to yield back the remainder of my time. The constitution of conspiracy to use an explosive to commit a felony is already provided for in precedent law, 18 U.S.C. 844(h). Thus, anyone who trains a terrorist to make a bomb as part of such a conspiracy would certainly be prosecuted under current law. I want to make it clear that I do not entirely disagree with Senator Biden's position. However, we have been facing down this problem for a year now. Friday is the day where we commemorate this awful tragedy. Frankly, we have gone through every detail in this bill, and we have not been able to get it exactly to Senator Biden's desire, or even mine, but this is it. This is the bill. And anything short of this is going to amount to losing the bill. Like I said, I do not entirely disagree with Senator Biden's position. However, there are many who have raised first amendment and intellectual property concerns about this provision. They are legitimate concerns. As the chairman of the Judiciary Committee, which handles all of the patents, copyrights, and trademark issues, I can say they are legitimate. So, consequently, we have included a study in the bill to ensure that we can criminalize efforts to distribute bombmaking materials without impinging upon constitutional freedoms. Besides, there is little doubt that anyone who knowingly transmits information to use explosives to commit a felony is already subject to Federal law; 18 U.S.C. 844(h) does that. So, frankly, I would like to accommodate the distinguished Senator from Delaware, but we tried to and we have been unable to accommodate him. Frankly, I contend that any return to the conference will kill this bill. I am prepared to yield. I apologize for not being able to do more. But we think we have brought this bill back to a very, very strong level, and we have had a lot of cooperation with Members of the House in doing so and the leadership on the Judiciary Committee--both Democrats and Republicans. Yes, it is not a bill that any one of us in here thinks is totally what we want, but I think the vast majority of us will believe that it is a pretty darned good bill that is going to make a real dent in terrorist activities in the future and will, I think, correct some inequities of terrorist activities in the past. So I am prepared to yield the remainder of my time.

Mr. HATCH. Mr. President, if I can have 30 seconds. The Great Writ will not be affected by this one bit. I appreciate his concerns, and I believe he will find this provision will help us in fighting violent criminals. So I move to table the motion. I believe we have the yeas and nays.

Mr. HATCH. Mr. President, for my friend from New York, I will just move to table this amendment. But I think, because he approaches things in such a scholarly manner, I should take just a few minutes to explain why we cannot accept his amendment and why I will move to table. Mr. President, I think that part of the disagreement we have with respect to the appropriate standard of review in habeas petitions involves differing visions as to the proper role of habeas review. Federal habeas review takes place only after there has been a trial, direct review by a State appellate court, a second review by a State supreme court, and than a petition to the U.S. Supreme Court. Thus we have a trial and at least three levels of appellate review. In a capital case, the petitioner often files a clemency petition, so the State executive branch also has an opportunity to review the case. But that is not the end. In virtually every State, a postconviction collateral proceeding exists. In other words, the prisoner can file a habeas corpus petition in State court. That petition is routinely subject to appellate review by an intermediate court and the State supreme court. The prisoner may then file a second petition in the U.S. Supreme Court, and may also, of course, seek a second review by the Governor. So, after conviction, we have at least six levels of review by State courts and two rounds of review--at least in capital cases--by the State executive. Contrary to the impression that may be left by some of my colleagues, Federal habeas review does not take place until well after conviction and numerous rounds of direct and collateral review. The Supreme Court has clearly held that habeas review is not an essential prerequisite to conviction. Indeed, this very term, the Supreme Court reaffirmed the principle that the Constitution does not even require direct review as a prerequisite for a valid conviction. Now that we have set the proper context for this debate, let us just look at the proposed standard. Under the standard contained in the bill, Federal courts would be required to defer to the determinations of State courts unless the State court's decision was ``contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court . . . .'' This is a wholly appropriate standard. It enables the Federal court to overturn State court decisions that clearly contravene Federal law. Indeed, this standard essentially gives the Federal court the authority to review, de novo, whether the State court decided the claim in contravention of Federal law. Moreover, the review standard proposed allows the Federal courts to review State court decisions that improperly apply clearly established Federal law. In other words, if the State court unreasonably applied Federal laws, its determination is subject to review by the Federal courts. What does this mean? It means that if the State court reasonably applied Federal law, its decision must be upheld. Why is this a problematic standard? After all, Federal habeas review exists to correct fundamental defects in the law. After the State court has reasonably applied Federal law, it is hard to say that a fundamental defect exists. The Supreme Court, in Harlow versus Fitzgerald, has held that if the police officers' conduct was reasonable, no claim for damages under Bivens can be maintained. In Leon versus United States, the Supreme Court held that if the police officers' conduct in conducting a search was reasonable, no fourth amendment violation would obtain and the Court could not order suppression of evidence obtained as a result of the search. The Supreme Court has repeatedly endorsed the principal that no remedy is available where the Government acts reasonably. Why then, given this preference for reasonableness in the law, should we empower a Federal court to reverse a State court's reasonable application of Federal law to the facts? Our proposed standard simply ends the improper review of State court decisions. After all, State courts are required to uphold the Constitution and to faithfully apply Federal laws. There is simply no reason that Federal courts should have the ability to virtually retry cases that have been properly adjudicated by our State courts. I think that once we cut away the camouflage surrounding the arguments against our proposed habeas reform package, we find two things: First, a disagreement with the death penalty as a punishment. That is a legitimate disagreement. I, personally, am in favor of the death penalty, but I would very sparingly use it. But there are others who very sincerely believe that the death penalty is wrong. I can understand that. Many people have moral or ethical concerns about the death penalty, and many more in this country, the vast majority, believe we should have a death penalty for the most heinous murders and crimes in our society. I am appreciative, though, and sensitive to the concerns of others who feel otherwise. Many of my colleagues have heartfelt views on this matter, and I respect the sincerity of those views. But if the arguments against meaningful habeas reform are in reality arguments against the death penalty, then let us debate the efficacy of the death penalty. Let us decide whether death is the appropriate sanction for people like those who murdered the 168 individuals in Oklahoma City. I am prepared to debate the point. But let us not disguise this argument. The second argument I think my friends are making is that they fundamentally distrust the decisions of State courts. They believe that State courts are somehow incompetent to try important cases. They believe that State juries are somehow not as good as Federal juries; that State court judges are not as qualified as Federal judges; that State prosecutors and defense attorneys are not as adept as their Federal counterparts. Although I generally disagree with this argument, I can understand it. I can debate it. I can argue about the merits of having State criminal justice systems at all. I can debate the issue of whether something magical happens when a State court judge becomes a Federal judge. But if this is what really concerns the opponents to the habeas reform, then let us debate the point straight up. We should not allow this debate to be derailed. My good friend, the Senator from New York, referred to the Great Writ, which is part of the Constitution. He need not fear for the Great Writ, if this proposal is enacted, in other words, if our bill is enacted. The Great Writ of Habeas Corpus contained in the Constitution applied to only two circumstances: No. 1, to challenge an illegal imprisonment before trial; and, No. 2, to determine whether the trial court had jurisdiction to hear the case. The habeas corpus we are reforming is the statutory form of habeas corpus. There are some in this body who oppose such reform. I believe they are motivated in part, in major part, by their desire to stop the death penalty or to oppose the death penalty. I can understand that position, although I disagree with it, and I think the vast majority of Americans disagree with it. I believe convicted killers should be punished, and the particularly heinous killings ought to be punished with the death penalty. I think the survivors and family, the victims of this type of heinous murder, have a right to see that those who killed their loved ones are justly punished. That is why we have to pass this provision. It is long overdue. To me, and I think to many others, almost everybody in law enforcement today, the habeas corpus provision that we have in this bill is a good one. The standard is a good one. The deference to State law is good, because it just means that we defer to them if they have properly applied Federal law. We should not give some judge who hates the death penalty a right to disrupt that whole process when there is no legal justification for doing so. Frankly, we have allowed the procedural justifications to exist for far too long and that is what this is all about. So, having said that, I have letters from all kinds of law enforcement organizations, including some organizations that have fought for civil liberties all of their existence, that support our habeas corpus reform because it is time to have that in law. It is time to get rid of the charade. They support the habeas corpus reform more than any--or the death penalty reform, more than any other provision in this bill, although there are many good provisions in this bill. Having said all that, I am prepared to yield back the remainder of my time, and, on behalf of Senator Dole and myself, I move to table the amendment and ask for the yeas and nays.

Mr. HATCH. I move to reconsider the vote.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Rules and Administration be authorized to meet during the session of the Senate on Wednesday, April 17, 1996, beginning at 10 a.m. until business is completed, to hold a hearing on campaign finance reform.

Mr. HATCH. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on Wednesday, April 17, 1996, at 2 p.m., to hold a closed hearing on intelligence matters.

Mr. HATCH. Mr. President, I ask unanimous consent that the Subcommittee on Readiness of the Committee on Armed Services be authorized to meet at 9:30 a.m. on Wednesday, April 17, 1996, in open session, to receive testimony on the privatization of Department of Defense depot maintenance and other commercial activities.

Mr. HATCH

Mr. HATCH. Mr. President, this is a motion to table, is it not?

Mr. HATCH. I am prepared to yield back the balance of my time.

Mr. HATCH. Mr. President, I ask unanimous consent that the pending Leahy motion to recommit be temporarily set aside with the vote to occur on or in relation to the Leahy motion after completion of debate on the next motion to recommit.

Mr. HATCH. Senators should be aware there will be two consecutive rollcall votes following completion of all debate on the next motion. Mr. President, I also ask unanimous consent to move to table the Leahy amendment and ask for the yeas and nays.

Mr. HATCH. Mr. President, on behalf of Senator Dole and myself, I also move to table the Biden-Boxer motion, and ask for the yeas and nays as well.

Mr. HATCH. I will be happy to withhold.

Mr. HATCH. Mr. President, regarding the motion to recommit the conference report by the distinguished Senator from Vermont, now, look, this bill is a tough bipartisan measure. Stated simply, it is a landmark piece of legislation. My colleagues on the other side of the aisle know it. We have crafted a bill that puts the Nation's interests above partisan politics. Some of my colleagues however have criticized this bill for not being tough enough on terrorists. In truth, many oppose this bill because it is too tough on vicious, convicted murderers--not my friend from Vermont, but others. My colleagues are aware that this motion to recommit will not improve the bill. Instead, if it passes it will scuttle the antiterrorism bill. In other words, it will kill it. Accordingly, on behalf of Senator Dole and myself, I move to table the pending motion and ask for the yeas and nays.

Mr. HATCH. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HATCH. Mr. President, I do not really have anything more to say other than this is a very important piece of legislation. It is a key piece of legislation. It is desired by almost everybody who wants to do anything against terrorism. It is effective and strong. Even though we acknowledge we do not have everything everybody wants in this bill, it is a darn good bill that will make a real difference. If this motion or any motion to recommit passes, this bill is dead, it will be killed. So we simply have to defeat any and all motions to recommit. I will move to table the amendment at the appropriate time. I am prepared to yield back the balance of my time on this amendment. Mr. BIDEN addressed the Chair.

Mr. HATCH

Mr. HATCH. Did the Senator want to comment on the Moynihan amendment?

Mr. HATCH

Mr. HATCH. Soon we will proceed on that. But while we are waiting for Senator Biden to come, I want to say that I have sat on the Whitewater committee. I have to say I think it has been conducted very fairly. Senator D'Amato has bent over backward to do it fairly. I know our counsel has done a fair and decent job. In fact, I have never seen two better counsel than the two we have on both the minority and majority sides on the Whitewater matter. I also have to say that I hope it is resolved in favor of the President and First Lady. But there are a lot of things that are very much up in the air, matters over which we have a great deal of concern. You cannot just sweep them under the rug because it has taken time. There have been obfuscation, delays, and there have been deliberate refusals to give documents, and documents have suddenly appeared. These types of things do not ordinarily happen. It has been filled with all kinds of incidents and occurrences that literally would cause anybody to say, ``What is going on here? If there is nothing wrong, why all these problems?'' Personally, it is bothering me. I have to say that I am glad we are getting this on the way to a resolution. I hope we can expedite it and do it in a fair and proper way, and get it over with one way or the other. I intend to do what I can to insist on doing that. With that, I would like to go to the regular order, and I yield to Senator Biden.