Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I am opposed to the amendment by the distinguished Senator from Arizona. At the outset, I acknowledge his experience in the field. But it is my view that Federal review of State criminal convictions, especially in capital cases, is very, very important in order to guarantee appropriate constitutional safeguards. I believe the death penalty is an effective deterrent against crimes of violence. I spoke earlier about my own experience as a district attorney of Philadelphia, and before that as an assistant district attorney where I tried murder cases. My thought is that it discourages many professional robbers and burglars from carrying weapons because of concern that a killing might result and they would face the possibility of first-degree murder and the death penalty. I believe that it is very, very important, Mr. President, if we are to retain the death penalty, we have to use it very, very carefully. There are some 37 States which favor the death penalty. Thirteen jurisdictions in the United States oppose it. It took many years to bring back the death penalty on the Federal level, having achieved that only last year. The news from South Africa is they have abolished the death penalty. The death penalty is not in use in many jurisdictions, in many nations. I think it is very, very important to retain the death penalty as an effective weapon. Therefore we have to use it very, very carefully. I have objections to the pending amendment both on constitutional grounds and on public policy grounds. I am well away of the contention that there is constitutional support to it. Frankly, I doubt that the constitutional support would stand up. When we are dealing with the question of jurisdiction of the Federal courts to entertain questions on Federal issues, on constitutional issues, I believe it is necessary that the Federal courts retain that jurisdiction as a constitutional matter. I am aware of ex parte McCardle and aware of the distinctions on habeas corpus where there is supposedly an adequate State habeas corpus remedy. When someone comes into the Federal courts on habeas corpus, especially in a capital case, and makes an assertion of denial of actual rights on privilege against self-incrimination or coerced confession or ineffective counsel or absence of counsel or search and seizure issues, I believe it is necessary as a constitutional matter that the Federal courts retain that kind of jurisdiction. In our Judiciary Committee hearings, this is a question which I frequently ask the nominees as to whether they believe the Congress has the authority to take away jurisdiction on constitutional issues from the Federal courts. It is too lengthy a subject to discuss at any length today. Beyond the constitutional issue is a matter of public policy. I think it is very important to have the kind of detached, objective review that the Federal courts give. In many of our States we have elected judges. I think that is, in some circumstances, perhaps in many circumstances, an impediment to the kind of review we have by judges who have life tenure. I recall reading for the first time in law school the case of Brown versus Mississippi, 1936, a decision by the Supreme Court of the United States saying that the due process clause which limited State action warranted the Supreme Court of the United States to reverse a conviction in a State court in a capital case. Without reciting the case of Brown versus Mississippi and the horrendous facts there, it was not until 1936 that the Supreme Court of this country intervened in a State criminal matter to say that it violated the U.S. Constitution. The Federal courts have been providing the safeguards on constitutional rights significantly through Federal habeas corpus. I believe that has to be maintained. In urging the adoption of the Specter-Hatch amendment, our amendment really goes to the issue of curtailing the time. Some might say that it is a restriction on defendant's rights. I think, actually, it is not, for reasons I stated earlier, on the challenge to cruel and barbarous treatment, keeping someone on death row for a protracted period of time. The international court I referred to earlier this morning, refused an extradition from England to Virginia, because Virginia kept prisoners on death row for 6 to 8 years, which was deemed a violation of cruel and barbarous treatment. I think, Mr. President, on constitutional grounds and on public policy grounds we ought not to restrict the jurisdictions of the Federal courts. Accordingly, I urge my colleagues to oppose this amendment. I yield the floor.

Mr. SPECTER. Would the distinguished Senator from Delaware yield?

Mr. SPECTER. I do.

Mr. SPECTER. Mr. President, the time has arrived for consideration of the pending bill on terrorism. The issues which are going to be taken up this morning involve habeas corpus reform. In the absence of any other Senator on the floor who desires to speak or offer an amendment, I will address the subject in a general way. Mr. President, the Specter-Hatch habeas corpus reform bill, S. 623, is a very important piece of legislation. The provisions of that bill will be taken up now as part of the pending antiterrorism bill. This bill is an appropriate place to take up habeas corpus reform, because the acts of terrorism in the atrocious bombing of the Federal building in Oklahoma City would carry with it the death penalty, and habeas corpus reform is very important in order to make the death penalty an effective deterrent. In order to have an effective deterrent, the penalty has to be certain and the penalty has to be swift. We have seen in the course of the appeals taken on cases from death row that they last sometimes as long as 20 years. Habeas corpus proceedings arising from Federal convictions are handled slightly differently than those arising out of State convictions, because in State proceedings, after the highest State court affirms the death penalty on direct review, there may then be additional State-court review called collateral review on State habeas corpus before review on Federal habeas corpus. Despite this slight difference, this is the time to move ahead with legislation to reform habeas corpus in all cases. This is a subject that I have been working on for many years, since my days as an assistant district attorney in Philadelphia and later as district attorney of Philadelphia. Since coming to the Senate in 1981, I have introduced many bills directed at improving the administration of criminal justice, like the armed career criminal bill, which was enacted in 1984, and other legislation which has dealt with expanding the prison system, improving the chances of realistic rehabilitation, and strengthening deterrent value of the criminal law. The subject of habeas corpus reform falls into the latter category. I have addressed habeas corpus reform on many occasions over the years and succeeded in 1990 in having the Senate pass an amendment to the 1990 crime bill on habeas corpus reform to try to reduce the long appellate time. Notwithstanding its passage by the Senate in 1990, the provision was not passed by the House of Representatives and was dropped from the conference report. I continued to introduce legislation on habeas corpus reform in 1991, 1993, and again in 1995. This year, after very extended negotiations with the distinguished Senator from Utah, the chairman of the Judiciary Committee, we came to an agreement on legislation which captioned the Specter-Hatch habeas corpus reform bill, S. 623, the provisions of which are now pending as part of this antiterrorism bill. Preliminarily, Mr. President, I think it important to note the controversy over whether the death penalty is, in fact, a deterrent against violent crime. It is my view that it is a deterrent, and I base that judgment on my own experience in prosecuting criminal cases, prosecuting personally murder cases, and running the district attorney's office in Philadelphia which had some 500 homicides a year at the time. many professional robbers and burglars are deterred from taking weapons in the course of their robberies and burglaries because of the fear that a killing will result, and that would be murder in the first degree. One of the cases which I handled many years ago as an assistant district attorney on appeal has convinced me that it is, in fact, a deterrent, and it is an illustrative case where there are many, many others which have been cited in treatises and the appellate reports. The case I refer to involved three young hoodlums named Williams, age 19, Cater, 18, and Rivers, age 17. The three of them decided to rob a grocery store in north Philadelphia. They talked it over, and the oldest of the group, Williams, had a revolver which he brandished in front of his two younger coconspirators. When Cater, age 18, and Rivers, age 17, saw the gun they said to Williams that they would not go along on the robbery if he took the gun because of their fear that a death might result and they might face capital punishment--the electric chair. Williams put the gun in the drawer, slammed it shut, and they all left the room to go to the grocery store in north Philadelphia for the robbery, to get some money. Unbeknown to Cater or Rivers, Williams had reached back into the drawer, pulled out the gun, took it with him, and in the course of the robbery in the north Philadelphia grocery store, the proprietor, Jacob Viner, resisted. Williams pulled out his gun and shot and killed Mr. Viner, and all three were caught and charged with murder in the first degree. All were tried. All were given the death penalty. We know the facts of the case from the confessions and from the clearly established evidence as to what happened, as I have just recited it. Ultimately, Williams was executed in 1962, the second to the last individual to be executed in Pennsylvania until within the past few months there was an execution after a 33-year lapse in carrying out the death penalty in the State of Pennsylvania. When the matter came up on hearings before the pardon board, and I was district attorney, I agreed that the death penalty ought not to be carried out as to both Cater and Rivers because of the difference in their approach to the offense, that although technically they were guilty of the acts of their coconspirator, there was a significant qualitative difference, because they had refused to go along when the gun was to be taken and it was counter to the agreement and conspiratorial plan and scheme which the three carried out. It was not an easy distinction to make because many would say that Cater and Rivers were equally responsible with Williams and that they had participated in the murder plot and should be held to the death penalty as well. But their sentences were commuted. I think that case is a good illustration of the deterrent effect of capital punishment. Here you had two young men, 18 and 17, with very marginal IQ's, but they knew enough not to go along on a robbery if a gun was present because they might face the death penalty if a killing occurred. Mr. President, in the current context in which habeas corpus appeals now run for as long as a couple of decades, the deterrent effect of capital punishment has been virtually eliminated. There are many, many cases which illustrate this point. Many cases of brutal murders in which the case has dragged on and on for as long as 17 years or more. One of them is the case of a man named Willie Turner. On the morning of July 12, 1978, he walked into the Smith Jewelers in Franklin, VA, carrying a sawed-off shotgun, wrapped in a towel. Without saying a word, Turner showed his shotgun to the proprietor, a man named Mr. Jack Smith. Mr. Smith triggered the silent alarm, and a police officer, Alan Bain, arrived at the scene. During the course of the events, the defendant, Turner, pointed his shotgun at officer Bain's head and ordered him to remove his revolver from his holster and to put it on the floor. Turner then eventually shot the proprietor, Jack Smith, in the head. The shot was not fatal. Then officer Bain began talking to Turner and he offered to take Turner out of the store if he would agree not to shoot anyone else. The defendant Turner then said, ``I'm going to kill this squealer,'' referring to the proprietor, Smith, who lay severely wounded. Turner reached over the counter with his revolver and fired two close-range shots into the left side of Mr. Smith's chest. The shots caused Smith's body to jump. Medical testimony established that either of these two shots to the chest would have been fatal. Turner was tried for murder in the first degree, was convicted, and was sentenced to death. The appeals lasted 17 years, with the victim's family attending some 19 separate court proceedings. It is not an easy matter, Mr. President, when we talk about capital punishment. It is my judgment, however, that society needs this ultimate weapon in order to try to deal with violent crime in America. That has been the judgment of some 38 States in the United States. That is a judgment of the Congress of the United States in enacting legislation on the death penalty on the crime bill which was passed last year--a very controversial bill with many aspects going in a number of directions, some with gun control, others with providing more police, others with building more prisons. I supported that bill, in large part because of the death penalty and the strong stands taken in that bill against violent crime. Mr. President, there are many, many cases which illustrate the enormous delays in the criminal justice system and one which I have cited on the floor before. The Congressional Record is replete with citations of cases which show the deterrent effect of the death penalty and show the enormous delays under habeas corpus, but the Robert Alton Harris case is one which shows it vividly. Defendant Harris was arraigned for a double murder back in July of 1978. His case wound through the courts running for some 14 years until 1992. In the course of this case, Mr. Harris filed 10 State habeas corpus petitions under the laws of California, 6 Federal habeas corpus petitions, 4 Federal stays of executions, there were 5 petitions for certiorari to the Supreme Court of the United States, and the case went on virtually interminably. Finally, in a very unusual order, the Supreme Court of the United States directed the lower Federal courts not to issue any more stays of execution for Harris. There is another aspect to these very long delays, Mr. President. It involves the question as to whether the protracted, lengthy period of time defendants wait to have their death sentences carried out is itself, in fact, cruel and unusual punishment. In a case before the Supreme Court of the United States as reported in the Washington Post on March 28 of this year, Justice Stevens, joined by Justice Breyer, called upon the lower courts to begin to examine whether executing a prisoner who has spent many years on death row violates the Constitution's prohibition on cruel and unusual punishment. There was a case in 1989 where the British Government declined to extradite a defendant, Jens Soering, to Virginia on murder charges until the prosecutor agreed not to seek the death penalty because the European Court of Human Rights had ruled that confinement in a Virginia prison for 6 to 8 years awaiting execution violated the European Convention on Human Rights. So we have a situation where these long delays involve continuing travail and pain to the family of the victims awaiting closure and awaiting disposition of the case. We also have an adjudication under the European Convention on Human Rights that concluded that the practice in the State of Virginia where cases were delayed for 6 to 8 years constitutes cruel and unusual punishment--all of these factors come together. Delays now average over 9 years across the United States. It seems to me the Congress of the United States, which has the authority to establish timetables and procedures for the Federal courts, ought to act to make the death penalty an effective deterrent. This legislation will move precisely in that direction. Under the Specter-Hatch bill there will be a time limit of 6 months for the defendant to file his petition for a writ [[Page S7805]] of habeas corpus in the Federal courts in a capital case. At the present time, without any statute of limitations, some of those on death row wait until the death penalty is imminent before filing the petition. This will put into effect a 6-month time limit in capital cases, where the State has provided adequate counsel in its post-conviction proceedings. So there is motivation under the pending legislation for adequate counsel to be appointed by the States. Not only will the appointment of counsel expedite the process, but it will ensure that the defendant will be accorded his or her rights. After that period of time, a U.S. district court will have a period of 180 days to decide a habeas corpus petition in a capital case. That really is a sufficient period of time. That I can personally attest to from my own experience as an assistant district attorney and district attorney handling habeas corpus cases in both the State and Federal courts. If that time is insufficient, a judge can extend the time by writing an opinion stating his or her reasons. Right now, there are cases that have been pending before some Federal district judges for years. We must act to impose some limit on the length of time such cases are allowed to linger. This deadline is not unduly burdensome to a Federal judge, to take up a case and decide it in 6 months. Even in the States which have the highest incidence of capital punishment, with the most defendants on death row--Florida, California, Texas--each Federal judge would not have a case sooner than once every 18 months or so. On appeal, the Federal court of appeals would have the obligation to decide the case within 120 days of briefing. If a defendant sought to file any subsequent petition for habeas corpus, he would not be allowed to do so unless there was newly discovered evidence going to his guilt which could not have been available at an earlier time. This is a reasonably strict standard against filing repetitious petitions. And a second petition would be allowed only if the court of appeals agrees to permit the filing of the petition in the district court. Because the courts of appeals act in panels of three judges, two judges will have to agree that a subsequent petition satisfies the rigorous standards of this bill before it is filed in the district court. So I think we have set forth here a timetable which is realistic and reasonable, and a structure which will make the death penalty a meaningful deterrent, cutting back the time from some 20 years, in extreme cases, to a reasonable timeframe which can be done with fairness to all parties in the course of some 2 years. This legislation is not crafted in a way which is totally acceptable to me but it has been hammered out over the course of a great many negotiations and discussions with the distinguished Senator from Utah, the chairman. While he is on the floor I would like to praise him for his work in this field and for his work on the committee generally. This has been a very, very difficult matter to come to closure on. I think in the posture of the terrorism problem, that we are on the verge, now, of really moving forward and enacting this very important legislation. I think it will pass the Senate. I believe it will pass the House. I think once presented to the President, it will be enacted into law and will very significantly improve the administration of criminal justice in the United States.

Mr. SPECTER. The State then went to the Supreme Court of the United States which hears few cases. Thousands apply and the year in which the court agreed to hear this appeal only about 150 cases were heard. They took this case. The Supreme Court of the United States then reversed the circuit court and sent the case back to the district court. Now, had there been no requirement for an exhaustion of State court remedies, the case could have had one hearing in the Federal court, all of the issues would have been decided, and I think decided about the same way if we did not have State court proceedings, bearing in mind that there had already been a full decision by a State appellate court which had upheld the judgment of conviction in the first instance. What we are really looking at with about 2,900 inmates on death row, there were only 38 cases in which the death penalty was carried out. It would be very much in the interests of the objective of swiftness and certainty to put an end to the long delays. Eliminating the requirement of exhaustion of State remedies would go a long way to achieving these goals. The State prosecutors and the attorneys general, however, disagree with my view as to what is in the public interest on the issue of exhaustion. We have the same objective. That is, to make the punishment swift and certain, to eliminate the long delays which are a detriment to law enforcement and undermine the deterrent effect of the death penalty, not to have the matter come to closure for the families of the victims, and not to harm the interests of the defendants, as interpreted by some international tribunals, which say it is cruel and unusual punishment to have the cases last longer than 6 to 8 years, an issue also raised by two of the current Justices of the Supreme Court, as I mentioned earlier today. I will not go into that because of the limitation of time. The issue of exhaustion of State remedies has been eliminated, however, because this bill does not abolish to exhaustion requirement. Unlie the resolution of this issue in the 1990 legislation, which passed the Senate, which eliminated the requirement of exhaustion of State remedies, that provision is not in this bill. I refer to that to illustrate how uniformity and consensus cannot be achieved on these difficult issues, and different people will have different views. But what we come down to at bottom in this legislation that is currently crafted, I think, is a realistic compromise. I think defendants' rights are protected. There are increased protections in this legislation with the appointment of counsel. We have the requirement that there are timetables and limitations periods so the defendants' rights, the States rights, and the victims' rights are all protected. I think it is a carefully crafted compromise which ought to be enacted to promote the interests of all parties involved. That is why I urge my colleagues to reject the amendment offered by the distinguished Senator from Delaware on this state of the record. I thank my colleague for yielding to me at this time.

Mr. SPECTER. Mr. President, I thank my distinguished colleague, the chairman of the committee, for yielding to me at this time. I have worked with him intimately on this legislation. As he has noted and I noted earlier, we are in the midst of an Intelligence Committee meeting, a committee which I chair, so I appreciate his yielding to me for a few moments. I have sought recognition to support Senator Hatch and to oppose the amendment offered by the distinguished Senator from Delaware. This legislation is the result of a great deal of work over many, many years. It has been going on since the 1980's. As I commented earlier, a habeas corpus reform bill was passed by the U.S. Senate in 1990, but it did not survive a conference with the House of Representatives. Legislation to reform habeas corpus has been considered and reconsidered each year for many years. The provision which is being debated now, I think, is a reasonable compromise. It is not my absolute preference on the kind of language that I would have chosen had I written the bill alone, but I think it is a reasonable compromise. Part of my concern is that when we change the standards it breeds a lot of new litigation to have interpretations of untested language. I think there is substantial latitude here for interpretation. Current law gives significant deference on questions of law and on factual determination to State court determinations. Under the current bill, I think there is still a good bit of latitude which the Federal judge will have when he makes a determination under a habeas corpus petition. There will be deference to the determinations of the State court, but the Federal judge will still have latitude to alter the State court decision in any case in which the Federal judge determines that it was contrary to or involved an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. So there still is latitude for the Federal judge to disagree with the determination made by the State court judge. It is my sense, having litigated these cases as an assistant district attorney years ago, in the Federal and State courts, that where there is a miscarriage of justice, the Federal court can come to a different decision than was made in the State court proceedings. The language in the habeas corpus reform bill passed earlier this year by the House is even more restrictive than the language in the Senate bill. The House bill contains a provision that precludes the granting of a writ of habeas corpus unless the State court's decision is arbitrary. This is an even more restrictive standard than that in the Senate bill. Mr. President, in the legislation which is pending before us, there are provisions which I consider a step backward from the bill which passed the Senate in 1990, which would have eliminated the requirement of exhaustion of State court remedies. Were I to craft a bill myself, I would not require an exhaustion of State court remedies before the filing of a Federal habeas corpus petition because if that exhaustion requirement were not present there would be a much more orderly and a prompt disposition of these contested issues. Were exhaustion of State remedies not necessary, we would not have the interminable tennis match back and forth between the State and Federal courts as illustrated by the Pennsylvania case of Peoples versus Castille, which is illustrative of the complexity of bouncing back and forth between the courts. In the Peoples case, the defendant was convicted in the State court of aggravated assault. The conviction was reviewed and upheld by the Pennsylvania superior court, an intermediate appellate court. Then the case went to the Supreme Court of Pennsylvania on what is called an allocatur application, a request for review. The Supreme Court of Pennsylvania denied the petition for allocatur but the court may do so either considering the case on the merits or refusing to hear it as a discretionary matter. The defendant then sought a writ of habeas corpus from the U.S. District Court for the Eastern District of Pennsylvania, which sent the case back to the State court, holding that Peoples had failed to exhaust his available State remedies because it was unclear whether the Pennsylvania Supreme Court had considered the merits in denying allocatur. The case then went from the district court to the court of appeals which reversed the district court, saying that there had been an adequate exhaustion of State court remedies.

Mr. SPECTER. I understand the concerns that the Senator has expressed. I believe that the bill as drafted is preferable, notwithstanding the arguments the distinguished Senator has raised. I will come to the specific question in just a moment here. I think that ex parte communications are very problemsome in any kind of a case, but they ought to be eliminated to the maximum extent possible, which is why I think that it just is not a good idea to have one lawyer talking to the judge by himself. But the language which I would focus on here is that which says no ex parte communication request may be considered pursuant to the section unless a proper showing is made concerning the need for confidentiality. I concur with the Senator from Delaware when he says that there ought not to have to be disclosure by defense counsel in the presence of the prosecutor to matters which would prejudice the defendant in investigating the case on the facts, or as to getting expert opinion as to mental state and competency. But the question I would have, and it is not really accommodated by the language, is that if there is a showing of the need for confidentiality, that would preclude the prosecutor gaining an upper hand in an unfair way. As a sponsor of this language, let me state that it is our intent here in this legislation that there not be a circumstance in which the defense is compelled to reveal, in front of the prosecutor, matters which would be prejudicial to his opportunity to present a defense.

Mr. SPECTER

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

Mr. SPECTER

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

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

Mr. SPECTER. Mr. President, during the period of May 26-29, 1995, my colleague on the Senate Intelligence Committee, Michael DeWine, and I traveled to Guatemala, Colombia, and Haiti for a firsthand view on matters of concern to the Intelligence Committee and to the Senate. The following represents my own personal impressions of the facts learned and my own judgments. Our first stop was Guatemala. On April 5, 1995 the Senate Intelligence committee held an open hearing on the role of the CIA in two human rights cases. In one case, the committee learned that a Guatemalan, Col. Roberto Alpirez, might be implicated in the murder of American farmer and innkeeper Michael DeVine on June 8, 1990. During the open hearing, Acting Director of Central Intelligence, Adm. Bill Studeman acknowledged that the CIA received information in October 1991 that shed light on the possible presence of Colonel Alpirez in the interrogation of Mr. DeVine. Admiral Studeman also acknowledged that the CIA failed to inform the intelligence committees of the House and the Senate regarding this information which should have been done. In the second human rights case, Ms. Jennifer Harbury, the widow of a Guatemalan guerrilla Commander, Efraim Bamaca, repeatedly sought to learn the fate of her husband. Both Jennifer Harbury and Carole DeVine, the widow of Michael DeVine, were eloquent and dynamic hearing witnesses. They pleaded for our assistance to learn the facts of their husband's deaths, and, in the case of Ms. Harbury, the location of his remains. We were also interested to learn what happened in the cases of Nicholas Blake, Sister Diana Ortiz and Helen Mack. While the committee's staff is analyzing many documents pertaining to these cases, we traveled to Guatemala to learn more about these matters and to determine the willingness of the Guatemalan government to prosecute anyone legally responsible for these deaths. Our visit also sought to convince the Guatemalan Government that human rights are a top United States Government priority. Our first meeting was with Guatemala's President Ramirez deLeon Carpio, where we focussed on the Guatemala peace process and pressed hard on human rights, particularly the DeVine and Bamaca cases. President deLeon is the former human rights ombudsman in Guatemala. We expressed the U.S.'s wish to assist the peace process and our strong interest in resolving the DeVine and Bamaca cases. President deLeon responded by noting the serious challenges his government has had to face since he took power. He also stated he had confronted serious corruption in the Congress and the Courts by changing them through legal means. Finally he noted that he had succeeded in achieving a 5 percent economic growth and had to persevere in a confrontation with powerful interests in the private sector to achieve major fiscal reform which he characterized as being tougher than dealing with the Army, the guerrillas, and corrupt politicians combined. When we pressed on the DeVine and Bamaca cases, President deLeon said that both represented part of the general problem of impunity in Guatemala. He noted a difference between the cases. He characterized the DeVine case as a common crime. Six soldiers and a Captain Contreras had been convicted. It is widely believed that Captain Contreras was the leader of the group that murdered Michael DeVine, but after his sentencing to 20 years in jail, he escaped, perhaps with the complicity of the Guatemalan Army which had him in custody. Therefore, to cast this as strictly a common case of crime appears inaccurate in that the involvement of the Guatemalan military points to more than a common crime. In my view, not enough has been done to apprehend him in spite of the fact that the government of Guatemala had placed a $17,000 reward for the Captain's recapture. President deLeon stated that he would be calling Venezuelan President Caldera about the possibility that the Captain is a fugitive in that country and that the FBI and Interpol have been asked to join in the search for him abroad. The President added that he expected to send a special commission to Venezuela to pursue this and thought that President Caldera would be willing to cooperate. Later we met with Defense Minister General Mario Enriquez. The DeVine and Bamaca murders figured preeminently in our discussions. We underscored several times the importance of the cases to bilateral relations. General Enriquez stated investigations into both killings were going forward, but he drew a distinction between Bamaca and DeVine. General Enriquez also reported to us that he was hopeful that Captain Contreras had been captured just prior to our meeting. The next day, May 27, the newspapers were filled with front page stories of the capture of Captain Contreras. But a check with our Embassy in Venezuela did not shed any more light in the veracity of this reporting. The capture of Captain Contreras would be a critical element in the resolution of this crime. It might shed light on why and whether other military officers were involved. President deLeon noted that he had suspended Colonels Catalan and Alpirez pending investigation of their involvement in a crime, a step basically unprecedented in Guatemala. We also learned of the rumored existence of a tape reportedly held by Colonel Alpirez which allegedly recorded instructions to him to cover up the DeVine case. President deLeon asserted that he would go as far as necessary in pursuing the DeVine case which he added would benefit the army as an institution in Guatemala. In regard to Guatemalan guerrilla commander, Efraim Bamaca, President deLeon made the same distinction between this case and the DeVine matter as did General Enriquez. In President deLeon's view Bamaca was a product of war and to push prosecution of that case would de-stabilize the army. He felt the Bamaca case should be referred to the Historical Clarification Commission, otherwise known as the ``truth commission,'' established by agreement between the government of Guatemala and the URNG guerrillas to deal with the many abuses committed during the war once it was over. Nonetheless, we continued to press hard. We asked the President to make an example of the Bamaca case as a human rights violation. It was important to the relations between the government of the United States and the government of Guatemala. I noted that this is a special case and added that if the body of Efraim Bamaca were found, it would represent a big step forward. I noted how the testimony of both Jennifer Harbury and Carole DeVine to the Intelligence Committee on April 5th had been very moving and, how Colonel Alpirez was linked to both cases. President deLeon acknowledged as a former human rights ombudsman he knew that there was no excuse for torture even in war. Many priests had also been murdered. He stated he wished to strengthen the bi-lateral relations with the U.S. and improve Guatemala's image. However to pursue the Bamaca case would threaten the peace process and the stability of the government. In his words, it would put a ``sword of Damocles'' over the head of all 2,500 Guatemalan military officers who had seen hundreds of their comrades die in the 34 years of the conflict. What was needed, he added, was a peace agreement and genuine reconciliation, not recriminations. We also met with human rights activists, including Ronald Ochaeta, Director of the Archbishop's Human Rights Office; Helen Mack, sister of the slain Myrna Mack; and Karen Fisher de Carpio, the daughter-in-law of the slain two-time Presidential candidate and newspaper publisher Jorge Carpio. Jorge Carpio was a cousin of the President deLeon Carpio. They requested that the United States government reveal all the intelligence about Guatemalan military people who may have been involved in human rights crimes. They also expressed the fear that, after the Guatemalan army returns Captain Contreras to justice in Guatemala, that the United States Government and human rights pressure will diminish; and absent that pressure, the Guatemalan Army will no longer even remotely respond to human rights concerns. They termed the Guatemalan justice system as being dysfunctional. Within the Army, they felt that there is brotherhood in which only some individual members are involved in a variety of illegal activities: human rights violations; stealing of cars; and drug trafficking, etc. They expressed the view that while most members of the army may not have been involved in these activities, all have taken ``a blood pact'' not to disclose any details on their fellow military comrades. I agree with the human rights activists and monitors that only with the pressure of the U.S. Government and the international community will cause the Army to improve its human rights performance in the future and to shed light and sanctions on past crimes. Our next stop took us to Colombia where we met with President Ernesto Samper, his Foreign Affairs Minister, Rodrigo Pardo, and his Defense Minister, Fernando Botero. We met the leaders of this country in Cartagena. Our discussions centered on narcotics trafficking and terrorism. While the United States has been riveted for years over the taking of hostages in the Middle East, scant attention has been paid to hostage taking in South America, particularly in Colombia where presently seven Americans are being held by the terrorist group known as FARC. I raised these issues with our Ambassador Myles Frechette and with President Samper. The view of both of them is this hostage taking is different in the sense that it is financially motivated. Terrorists have been taking Americans and other foreign nationals captive for ransom purposes. In meetings with President Samper, Senator DeWine and I pressed for more action to prevent the taking of these hostages and greater efforts to release them. In my view, not enough has been done in this area. Of paramount importance were our discussions regarding narcotics trafficking. The conditional certification of Colombia by the President on February 28, 1995 has clearly had an impact on the government on Colombia. Prior to February 1995, there had been sporadic support by some quarters of the Colombian political establishment in preventing significant damage to the Colombian drug syndicates. For example, in 1994 the government of Colombia took no legislative steps to reverse its 1993 criminal procedures code which made it very difficult to bring mid-level and senior syndicate heads to justice. As a result, following the trend set in 1993, there were no arrests, incarcerations, or fines imposed on such traffickers. In addition, a number of frequently convicted traffickers were able to benefit in significant reductions to their sentences pursuant to Colombia's woefully inadequate sentencing laws. In 1994, total drug seizures through interdiction efforts were above those of 1993 but didn't reach the levels accomplished in 1991 as the U.S. Government has recommended. Performance on eradications has supposedly improved; but results have not met expectations. In 1994 there were no senior government officials indicted for corruption. The Colombian Congress did not pass bills introduced by the Samper administration to counter money laundering activities. There was insufficient progress to detect and remove corrupt officials. There continues to be a problem with drug syndicate control of foreign soil such as San Andreas Island. The conditional certification by the Administration on March 1, 1995 of Colombia's counter-narcotics effort appears to have changed Colombia's attitude. Since that date, Colombia has conducted over 170 operations against the Cali cartel by attempting the capture of drug king pins and by the efforts to disrupt their operations. Nonetheless, it appears that only the surface has been scratched. The Cali cartel is well financed and sophisticated. A captured warehouse disclosed a great amount of electronic equipment ranging from computers to direction finders. In addition, the cartel is controlling the phone companies and conducting telephone taps to uncover counter-narcotics directed against it. The bottom line is that Colombia still is the largest supplier of cocaine into the United States. Much more needs to be done to counter this trafficking. For one, legal cooperation between the United States and Colombia needs to be reinvigorated. We have been forced to shut down evidence sharing because Colombia has been misusing what we have provided to date; and, as a result, families of witnesses have been killed. We raised directly with President Samper, the need for extradition and reform of Colombia's legal system. While Colombian law now prohibits extradition, we urged President Samper to revisit this issue. If extradition is not re-instated, Colombia should consider seriously the proposal to allow drug traffickers to be tried in the United States and then serve their sentence in Colombia. This would serve to preserve evidence and remove the case from the inadequate Colombian code of criminal law. A longer range alternative is for Colombia to transfer proceedings to an international criminal court which could be established. President Samper acknowledged that drugs are a major problem not only in Colombia, but also internationally. He said that he intends to make every effort to stop the Cali cartel. It is not enough to destroy the fields, labs and aircraft used in trafficking, but also to have effective interdiction and to counter money laundering. When I raised the need for reinstating extradition, he noted the past ramifications: drug traffickers countered by killing four Presidential candidates and 63 magistrates in a reign of terror. In his view, extradition would come at a high cost. He was frank in stating he supported the Constitutional amendment to stop extradition to the U.S. If his judicial reform does not work in the next 2 to 3 years, he stated that he would consider other alternatives such as extradition. He was also confident that he will dismantle the Cali cartel within 2 years. He also found the idea of an international criminal court worth considering. On Monday, May 29, 1995 we met with Ambassador William Swing in Haiti along with Maj. Gen. Joe Kinzer. General Kinzer is Commander of the United Nations mission in Haiti as well as senior commander of U.S. forces there. To gain some perspective on Haiti, it is instructive to note the volatility of this country over its last 190 years. It has had 21 constitutions, 41 heads of state, 7 of whom have served more than 10 years, 9 of whom have declared themselves heads of state for life, and 29 of whom were assassinated or overthrown. It has been a country of great political and economic instability, over-populated, possessing limited resources and having the worst environmental degradation in the hemisphere. It is the poorest nation in the western hemisphere. Prior to the return of President Aristide, the country had 3 years of illegal, military de facto government, 8 years of chronic instability and some 30 years of Duvalier family dictatorship. Since the 1991 coup, the country has suffered a 30 percent loss of its gross domestic product and its treasury has been emptied. It has the highest birth rate in the western hemisphere. Between September 30, 1991 and the return of Aristide in October 1994, imposed severe sanctions and the toughest embargo ever in the western hemisphere. The human rights violations by the Cedras regime escalated. This resulted in many Haitians attempting to escape the politically oppressive climate. On July 4, 1994 over three thousand Haitians fled in one day. On September 19, 1994 over 21,000 U.S. troops were deployed there without [[Page S7765]] any loss of life. Paramilitary forces of Haiti were disbanded and its leaders were arrested. General Cedras departed in exile on October 13, 1994. President Aristide returned on October 15, 1994. General Kinzer noted that he is operating under Presidential Decision Directive 25, U.N. Security Council Resolution 940 and Chapter 6 of the U.N.'s charter which technically limits him to observing, reporting, and verifying. It does not give him full authority for peacekeeping. Nonetheless, General Kinzer has set up rules of engagement which, in essence, give him the ability to carry out peacekeeping. General Kinzer did point out the importance of intelligence support to the U.S. forces there and also to the United Nations forces. While such intelligence was not as critical as in Somalia, he warned that any efforts to restrict the flow of intelligence of U.N. forces would not be in the best interests of U.S. forces who are participating. Ambassador Swing emphasized the serious challenges which lie ahead. First, there is a need to create a credible security force by February 1996 when the mandate for U.N. forces ends. There is a need to stimulate badly needed economic development in the country. Third, the electoral process must be fair for the parliamentary elections in June, and the Presidential elections in December. Finally, there needs to be improvement in Haiti's justice system. We met with President Aristide who pointed out the need for security forces in the number of about 7,000, which he expects to have ready by February 1996. Given the rate of training timetable, it is dubious that this can be achieved. President Aristide represented that the machinery is in place for a fair and democratic process for the forthcoming elections. There are some rumors that President Aristide may not comply with the Haitian Constitution and step down when his term ends. We questioned him on this. When asked if there were any circumstances under which he would stay on as President, his response was ``no''. He stated that the Constitution requires him to leave no matter what the majority of Haitians might say. In response to what more he would want from the United States, he responded by saying he would be ashamed to ask for more money. What is needed, in his view, is more economic development, more job opportunities, and a need for a free market. Mr. President, in the absence of any further proceedings on the pending legislation, I thought this might be a good time to make a brief report on a trip which Senator Michael DeWine and I made on behalf of the Senate Intelligence Committee to Guatemala, Colombia, and Haiti over a 4-day period, May 26 through May 29, with the principal focus in Guatemala being to determine the civil rights abuses on the murder of an American innkeeper, Mr. Michael DeVine, and a Guatemalan soldier, Commander Bamaca. These deaths had been the subject of an Intelligence Committee hearing where there were very, very substantial questions of violations of human rights. At that Intelligence Committee hearing in April, Mrs. Carol DeVine testified about the brutality with respect to her husband, Michael DeVine, and the perpetrators have not yet been brought to justice. Ms. Jennifer Harbury, the wife of Commander Bamaca, testified as to the difficulties in determining what had happened to her husband and even to finding his body. On our trip, we talked about the matter with President deLeon of Guatemala and also with the Minister of Defense and urged that every effort be made by the Guatemalan Government to find out exactly what had happened to the American citizen, Michael DeVine, and Commander Bamaca. President deLeon pledged the full efforts of the Guatemalan Government as to the murder of Mr. DeVine but had a difference of opinion with respect to Commander Bamaca, which he classified as a military incident. We urged in the strongest possible terms President deLeon proceed to vindicate human rights and make a thorough investigation as to both of their matters. In Colombia, we had extensive discussion with ranking Colombian officials, including President Samper, principally on the issues of terrorism and narcotics trade. I must say, Mr. President, that there is insufficient evidence being taken by the Colombian Government on the very serious problems of narcotics traffic which comes to the United States. Since efforts had been undertaken with some success in the mid to late 1980's, those efforts have materially decreased with Colombia now refusing to have extradition. It is my judgment that our efforts in interdiction and the funds which we are expending in that direction could much more usefully be placed on the so-called demand side in the United States on education and on rehabilitation. It seems that the more acreage or hectares of ground taken away from the growth of cocaine or drugs in Latin America, in Colombia, illustratively, or Ecuador or Peru, the more replacement drug growth occurs in those States. Although we are spending a tremendous sum of money, there has been no significant lessening of the source of supply. We have to maintain a very active and vigorous law enforcement program in the United States to combat supply. But our efforts of international interdiction have been largely unsuccessful, and I think the Government of Colombia is doing much less than ought to be done. Senator DeWine and I finished our short trip with a one-day stay in Haiti, where we had an opportunity to visit with President Aristide and visit with General Kinzer. There a real effort has been made by the U.N. forces to establish order, and U.N. forces are scheduled to leave in February of next year. There will have to be significant accomplishments by the Haitian Government to have a local police force to handle the issue. Rumors had come to our attention that there might be a question as to whether President Aristide would step aside after a new President is elected late this year when his term is set to expire in February. Senator DeWine and I were very direct and blunt in asking the question as to whether he did intend to step down, and he was unequivocal in stating that he would do so. We noted that a real sign of progress in Haiti would be whether there would be an orderly transition of government from one elected President to his successor. In light of what has happened in Haiti historically, that would really be a remarkable achievement. Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. SPECTER. Mr. President, we have now completed the drafting of the amendment which had been discussed earlier. I now send this to the desk on behalf of myself, Mr. Simon, and Mr. Kennedy. This amendment provides that under circumstances where the Department of Justice is unwilling to present a witness or witnesses to establish that an alien is a terrorist, that there will be an unclassified summary presented, sufficient to enable the alien to prepare a defense. It has provisions which protect the government in a number of directions, and ultimately in the situation where there is a threat that the alien's continued presence in the United States would likely cause serious or irreparable harm to the national security, or death or serious bodily injury to any person, and the provision of either classified information or classified summary that meets a higher standard would cause, again, irreparable harm or the possibility of death or serious injury, then there may be an unclassified summary prepared by the Justice Department sufficient to allow the alien to prepare a defense. There is a provision here for an interlocutory appeal. It would be my hope this might be acceptable on both sides, or if not, that it would receive an affirmative vote by the Senate. I send this amendment to the desk and ask for its immediate consideration.

Mr. SPECTER

Mr. SPECTER. That is correct.

Mr. SPECTER. Mr. President, I have expressed in the past concern about the provisions of the pending legislation which authorize secret proceedings in certain instances. It had been my hope that we might have been able to deal with the problem of suspected terrorists without being involved in secret proceedings. I had been working on an amendment which would have dealt with people who were in the United States illegally, who could be proceeded against and deported because of their illegal status without the need for the government to rely on secret evidence. I have very grave concerns about the constitutionality of any deportation proceeding in which secret evidence is used and there is not a right of confrontation. Technically, deportation proceedings are civil in nature and therefore do not require the full scope of confrontation rights which are available in criminal cases. Notwithstanding the fact that deportation proceedings are civil in nature, the courts have held that due process does attach to a deportation proceeding. It may well be when the case reaches the Supreme Court of the United States that this due process requirement will be found to pick up the right of confrontation under the sixth amendment. Certainly, the due process clause of the 14th amendment, which is applied to the States, does pick up the confrontation provision of the sixth amendment. By analogy, it may well pick up confrontation rights as it is applies to deportation proceedings, as well. But in reviewing the existing deportation laws, there would be a much broader change necessary to deport those who are here simply illegally without getting into the question of evidence as to terrorism. There is obviously a grave concern about disclosure of confidential information involving terrorism, because sources and methods could be compromised. I understand the Senator from Illinois, Senator Simon, is going to offer an amendment which will require a summary of the classified information being relied on by the government in the deportation proceeding. Frankly, that does not go as far as I would like to see the protections go, but that may be all that can be accomplished under the current bill. We will subsequently be taking up the immigration laws generally and it may be that at that time we can craft procedures which will protect the public interest of getting out of the country people who are known terrorists, where there is substantial evidence to that effect, even though that evidence cannot be produced in a context of confrontation, which someone would be entitled to under a criminal proceeding. I am also concerned about the reliance on classified evidence in cases involving the Secretary of the Treasury's designation of foreign organizations as terrorist organizations. The substitute represents a substantial improvement to the bill as introduced. Under the procedures in the substitute, there is de novo review by the courts of the Secretary's designation. That means a court will take a fresh look to see if the designation by the Secretary of the Treasury of an organization as a terrorist organization is, in fact, well founded. Under the provisions which have been added to the substitute, a summary of the classified evidence presented to the judge will be provided to the organization, and in such cases there will be a requirement that the evidence be clear and convincing that the organization is, in fact, a terrorist organization. The summary will have to be sufficient to allow the organization an opportunity to defend. I think that these provisions have gone about as far as is possible with the practicalities at hand, and that they would really be risking very sensitive information and sources and methods if full confrontation was possible where someone is to be deported, and where the witnesses would have to be produced where there is a designation by the Secretary of the Treasury of an organization as being engaged in or supporting terrorist activities. I think, Mr. President, we really are dealing as much as we can under the present legislation. A good bit of this bill will have to be tested in court, and I do express these concerns about the constitutionality of some of these provisions. I yield the floor. Amendment No. 1203 Withdrawn

Mr. SPECTER. Mr. President, in comments a few moments ago before the distinguished Senator from Illinois came to the floor, I had referred to my concerns about deportation with secret evidence. I had referred at that time to an amendment which Senator Simon was considering. We have since conferred and are really joining forces in the amendment which I had filed with the amendment which Senator Simon has just referred to. I believe this amendment goes a substantial distance in protecting the rights of someone who is subject to deportation. As I had said earlier this evening, I have great concerns about the fairness of the procedure where [[Page S7762]] there was not confrontation, that is where the evidence is alleged to be present that the person is a terrorist but that evidence is not presented because it would disclose a source very injurious to the Government. So what we are trying to do here is to find an accommodation. If this were a criminal proceeding, there is no doubt that there would be a requirement of confrontation under the U.S. Constitution. But deportation proceedings are classified as civil proceedings. But notwithstanding the classification of deportation proceedings as civil, the courts have also said that there has to be due process even in a civil proceeding. It is entirely possible when this provision is reviewed in court that it may be determined that due process will require confrontation just as the due process clause of the 14th amendment is applicable. The States picks up the requirement of confrontation applicable to the Federal Government in a criminal proceeding. But I think that the amendment which Senator Simon and I will be offering will go a long way to raising the standard of fairness. The one item which we are still wrestling with on the drafting is whether there will be a requirement that the evidence be clear and convincing in order to deport someone without confrontation on the evidence which is presented as to terrorism. But however we work out that last detail, we are in the process of having the drafting finalized now. We are doing this because Senator Simon and I have just put these two amendments together trying to work them out. Perhaps it might be even be acceptable to the managers. But that remains to be seen. But that is the sense of what we are doing at this moment.

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

Mr. SPECTER. That is correct.

Mr. SPECTER. Mr. President, as I had commented earlier, I am satisfied now that the revision of the bill is about as far as we can go in providing the addition of the de novo hearing by the court, that the classifications of terrorist organizations is well-founded factually, and there again that the evidence which is not subject to confrontation meets a similar standard with respect to Specter-Simon.

Mr. SPECTER. Mr. President, I ask unanimous consent that I may be permitted to proceed for 5 minutes as in morning business.

Mr. SPECTER. Mr. President, the referenced amendment would provide U.S. assistance to other countries to procure explosives detection devices and other counterterrorism technology. At the request of the State Department, it has been broadened to include support for joint counterterrorism research and development with allied countries. This amendment would be very effective for counterterrorism internationally by providing up to $3 million in assistance to foreign governments to work on counterterrorism technologies. Obviously, when you talk about counterterrorism and explosives- detection devices at airports, U.S. citizens, for that matter citizens and residents all over the world, will be affected by the availability of the sort of counterterrorism technology that will be supported under this amendment. It has very broad support. I am pleased that the distinguished chairman of the committee and the distinguished ranking member are prepared to accept it. The amendment has been modified to limit the amount of support to $3 million annually because the total authorization under the program is $15 million. I urge the adoption of the amendment.

Mr. SPECTER. I send the modification to the desk, Mr. President.

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

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to submit a resolution which would prohibit the President from using ground forces in Bosnia without prior consent of the Congress because, in my view, there is ample time for the Congress of the United States to deliberate on this matter and to make a decision. And such a resolution, I submit, is necessary as a constitutional matter to preserve the constitutional prerogatives of the Congress and really to stop further erosion by the executive branch. The events of the past week in Bosnia and Herzegovina have been very, very disturbing, as they have been for the better part of 2 to 3 years now. As I have said on the floor of the U.S. Senate in the past, it is my view that the mission of the U.N. peacekeepers was realistically Mission Impossible because there was no peace to keep. In the past I have supported the resolutions and the amendments on the floor of the U.S. Senate to lift the arms embargo so that the Bosnian Moslems could defend themselves in accordance with article 51 of the U.N. Charter. We have had the position taken by the President in a speech last week at the Air Force Academy where he has said that U.S. forces would be used to relocate U.N. peacekeepers, sent on a temporary basis. But we know, as a practical matter, what happens when there is temporary action taken. There has been consistent analysis of the terrain in Bosnia, and fighting of a ground war there is on absolute marsh and swamp, and we are realistically unable to undertake that without assurances that it is to be done on a limited basis. It is my view that, before there ought to be an entry by the United States of our own ground forces, we ought to have an exit plan as well; that, realistically viewed, the United States does not have vital national interests at stake there on this state of the record; that before even consideration ought to be given there ought to be a comprehensive plan; and that there ought to be a detailed statement as to what the European participation would be because it is much more in their interest than ours. These matters ought to be submitted--Mr. President, the Senate is not in order.

Mr. SPECTER. There ought to be a comprehensive plan, we ought to know exactly what has happened, and the matter ought to be deliberated upon and voted upon by the Congress of the United States. We have seen an erosion of constitutional authority of the U.S. Congress as the sole agent which is authorized to involve the United States in war. We fought a war in Korea without constitutional authorization. We fought a war in Vietnam without constitutional authorization. And these matters ought to come to the Congress unless there is an emergency, and on the face of the resolution which I have proposed the President could use the deployment of forces if there is a situation ``vital to the national security interests of the United States, including the protection of American citizens in Bosnia and Herzegovina where there is not sufficient time to seek and receive congressional authorization,'' and then the President report as soon as practical to the Congress of the United States. When the use of force was authorized in the Gulf, that was done only after the matter was brought to the floor of the U.S. Congress, the U.S. Senate. We had extensive debate going on on this floor on January 10, 11, and 12, 1991 when there was a resolution passed by the Senate authorizing the use of force by a 52-to-47 vote, and a similar resolution of authorization was passed by the House of Representatives. But until and unless the Congress makes that decision reflecting the will of the American people, it is my view that there ought not to be the use of ground forces in Bosnia.

Mr. SPECTER

Mr. SPECTER. I thank the Chair. (The remarks of Mr. Specter pertaining to the submission of Senate Resolution 128 are located in today's Record under ``Submission of Concurrent and Senate Joint Resolutions.'')