SPEAKERS       CONTENTS       INSERTS    Tables

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63–125

2000
MISCELLANEOUS IMMIGRATION AND CLAIMS ISSUES: BLACKHAWK FRIENDLY FIRE INCIDENT PAYMENTS; REMOVAL OF ALIENS ASSOCIATED WITH TERRORISTS; INCREASING PENALTIES FOR ALIEN SMUGGLING; AND ASYLUM IN GUAM

HEARING

BEFORE THE

SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

ON
H.R. 456, H.R. 1745, H.R. 238 and H.R. 945

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MAY 18, 1999

Serial No. 21

Printed for the use of the Committee on the Judiciary

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
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CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida

JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York

THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
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JULIAN EPSTEIN, Minority Chief Counsel and Staff Director

Subcommittee on Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
BILL McCOLLUM, Florida
ELTON GALLEGLY, California
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
JOE SCARBOROUGH, Florida

SHEILA JACKSON LEE, Texas
HOWARD L. BERMAN, California
ZOE LOFGREN, California
BARNEY FRANK, Massachusetts
MARTIN T. MEEHAN, Massachusetts

GEORGE FISHMAN, Chief Counsel
JIM WILON, Counsel
LAURA BAXTER, Counsel
CINDY BLACKSTON, Professional Staff
LEON BUCK, Minority Counsel

C O N T E N T S
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HEARING DATE
    May 18, 1999

TEXT OF BILLS

    H.R. 456
    H.R. 1745
    H.R. 238
    H.R. 945

OPENING STATEMENT

    Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims

WITNESSES

    Bergmann, Georgia

    Bloxom, Captain Elliott L., U.S. Department of Defense

    Collins, Hon. Mac, a Representative in Congress from the State of Georgia

    Cooper, Bo, Acting General Counsel, Immigration and Naturalization Service, U.S. Department of Justice L26, 45, 62
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    Rogan, Hon. James E., a Representative in Congress from the State of California

    Tangeman, Captain Anthony S., U.S. Coast Guard

    Udall, Hon. Mark, a Representative in Congress from the State of Colorado

    Underwood, Hon. Robert A., a Delegate to Congress from the Territory of Guam

    Wildes, Michael J., U.S. Immigration Attorney, Wildes & Weinberg, P.C., New York, NY

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Andrews, Hon. Robert E., a Representative in Congress from the State of New Jersey: Prepared statement

    Bergmann, Georgia: Prepared statement

    Bloxom, Captain Elliott L., U.S. Department of Defense: Prepared statement

    Collins, Hon. Mac, a Representative in Congress from the State of Georgia: Prepared statement
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    Cooper, Bo, Acting General Counsel, Immigration and Naturalization Service, U.S. Department of Justice: Prepared statement L28, 46, 64

    Gutierrez, Carl T.C., Governor of Guam: Prepared statement

    Remy, Donald M., Deputy Assistant Attorney General, Civil Division, U.S. Department of Justice: Prepared statement

    Rogan, Hon. James E., a Representative in Congress from the State of California: Prepared statement

    Tangeman, Captain Anthony S., U.S. Coast Guard: Prepared statement

    Udall, Hon. Mark, a Representative in Congress from the State of Colorado: Prepared statement

    Underwood, Hon. Robert A., a Delegate to Congress from the Territory of Guam: Prepared statement

    Wildes, Michael J., U.S. Immigration Attorney, Wildes & Weinberg, P.C., New York, NY: Prepared statement

APPENDIX
    Material submitted for the record
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MISCELLANEOUS IMMIGRATION AND CLAIMS ISSUES: BLACKHAWK FRIENDLY FIRE INCIDENT PAYMENTS; REMOVAL OF ALIENS ASSOCIATED WITH TERRORISTS; INCREASING PENALTIES FOR ALIEN SMUGGLING; AND ASYLUM IN GUAM

TUESDAY, MAY 18, 1999

House of Representatives,
Subcommittee on Immigration
and Claims,
Committee on the Judiciary,
Washington, DC.

    The subcommittee met, pursuant to call, at 10 a.m., in Room 2226, Rayburn House Office Building, Hon. Lamar Smith [chairman of the subcommittee] presiding.

    Present: Representatives Lamar Smith, Edward A. Pease, Charles T. Canady, Bob Goodlatte, Sheila Jackson Lee and Howard Berman.

    Staff present: George Fishman, Chief Counsel; Laura Baxter, Counsel; Jim Wilon, Counsel; Cynthia Blackston, Professional Staff Member; Judy Knott, Staff Assistant; and Leon Buck, Minority Counsel.

OPENING STATEMENT OF CHAIRMAN SMITH

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    Mr. SMITH. The Subcommittee on Immigration and Claims will come to order.

    We appreciate the amount of interest that these four hearings on four individual bills have generated. We do have four different panels, and I will introduce the first panel, but then I do want to yield to myself, the ranking member, and other members of the subcommittee who are nice enough to come here on an early morning when we don't have votes, time to make any statements they want to as well.

    On the first panel, we have the Honorable Mac Collins, Member of Congress. Joining him is the Honorable Tom Udall, as well, a Member of Congress, Captain Bloxom with the Department of Defense, Ms. Georgia Bergmann, and Mr. Donald Remy with the Department of Justice. We welcome you all.

    Let me briefly introduce the bill that we are going to consider first.

    That is H.R. 456 that was introduced by our colleague Mac Collins.

    This bill would provide the same compensation to the American families of victims of the tragic shootdown of two U.S. Blackhawk helicopters in the northern Iraq no-fly zone as was provided by the Secretary of Defense to families of foreign nationals who were also on board those helicopters.

    On April 14, 1994, two American Blackhawk helicopters on a humanitarian mission in the no-fly zone of Iraq were shot down by two American F–15 fighter planes when the helicopters were mistakenly identified as Iraqi helicopters. There were 15 Americans and 11 foreign nationals aboard the helicopters, and there were no survivors.
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    After extensive investigation, the Department of Defense found that the deaths of these 26 individuals were attributable to a series of avoidable errors and to the failure of safeguards in place at the time of the shootdown.

    The Kurd foreign nationals killed in the shootdown were employed by the United States. Their families received compensation under the Federal Employees Compensation Act. A decision was made by the Secretary of Defense under authority provided by 10 U.S.C. 127, to provide compensation beyond those benefits that, when combined with their FECA benefits, would total $100,000.

    The foreign military families received a payment of $100,000 from the Secretary of Defense with no offset for any other benefits. No such payments were made to the families of the Americans killed in the shootdown.

    Last year, this subcommittee held a hearing on this matter. From the testimony received at that hearing, it became clear that when the Department chose to make ex gratia payments to the families of foreign nationals killed in the same incident with Americans, it placed the government in a position of appearing to value foreign nationals' lives more than American lives.

    We are conducting this hearing today in order to bring the basis for this action to the attention of our subcommittee membership. We will hear from Congressman Collins, the Administration, Ms. Georgia Bergmann, the Department of Defense and Congressman Udall as well. I should note that Ms. Georgia Bergmann is the mother of one of the American soldiers killed in this incident.
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    The ranking member, Ms. Sheila Jackson Lee, is recognized for her opening statement.

    Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Good morning to everyone. Thank you for holding this hearing on four very important bills brought today by four different outstanding Members of Congress. The first bill is H.R. 456 by Congressman Collins. I call that R–E–L–I–E–F. This is a relief; and I am delighted we can hear this bill, and I hope we can move this legislation along.

    H.R. 456 provides for the relief of survivors of the 14 members of the armed forces and the one United States civilian Federal employee killed on April 14, 1994, when United States aircraft mistakenly shot down two United States helicopters over Iraq.

    On April 14, 1994, 15 Americans and 15 military personnel, one civilian Federal employee and 11 foreign nationals were killed when their Army Blackhawk helicopters were shot out of the air by two Air Force F–15s. According to the General Accounting Office, this horrible tragedy resulted from 130 separate mistakes by the Air Force and the Army. After this incident, the Department of Defense made a $100,000 payment to the families of the foreign nationals in addition to the other death benefits they received from their own countries. Unfortunately, the Department of Defense was not able nor willing to compensate the American families for the loss of their loved ones.

    I am fully aware, Mr. Chairman, of the Military Claims Act, which bars a claim for injury or death by or on behalf of U.S. active duty personnel if that injury or death is an incident of service. This is known as the Feres doctrine, as articulated by the U.S. Supreme Court.
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    In 1946 Congress passed the Federal Tort Claims Act which states that the United States is liable and can be sued for injury or death caused by the negligent or wrongful act of any employee of the government. However, the court ruled in Feres that the drafters of the Federal Tort Claims Act could not possibly have intended for the FTCA to apply to military personnel, since it would permit suits using State and local laws.

    Perhaps we need to change the law, like Mr. Watt tried to do last year with H.R. 3022, which would have allowed the U.S. Government to make comparable payments to U.S. military personnel who have been injured or killed in the same incident. Sadly, that legislation went nowhere, and here we are again as the U.S. Department of Justice comes before us to oppose this legislation.

    This incident particularly hits home to us in the Congress and those of us who serve on the Committee on the Judiciary. As a full committee ranking member, Congressman John Conyers had a family member who went down in this accident, Anthony Bass, the son of his cousin, and he knows full well the pain, suffering and agony that the Basses have had to undergo.

    This is not just a tragic loss of life, but a loss of life that is a direct result of the U.S. Government's negligence. I hope we will listen attentively to the members presenting this particular legislation.

    Mr. Chairman, I hope we will also be able to move along legislation dealing with the terrible tragedy of the loss of Secretary Ron Brown. I support this legislation and call on the Department of Defense to compensate the families of these innocent victims.
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    Mr. SMITH. Thank you. Are there any other opening statements?

    If not, we will go to our first witness, the Honorable Matt Collins, if you will begin.

STATEMENT OF HON. MAC COLLINS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA

    Mr. COLLINS. Thank you, Mr. Chairman. Many of my comments will be repeating the statements of both you and Ms. Jackson Lee. However, with the injustices that have been performed here, I think those comments are worth repeating.

    Thank you, Mr. Chairman, for the interest and concern you have demonstrated in scheduling today's hearing on legislation providing relief, as Ms. Jackson Lee so well stated, to the victims of one of the most tragic events subsequent to the war of the Persian Gulf.

    I appreciate the opportunity to testify here regarding legislation I have introduced to assist families whose lives have been shattered by the events of April 14, 1994.

    I appear today in strong support of the families of 15 Americans who made the ultimate sacrifice serving their country. On April 14, 1994, two U.S. Army Blackhawk helicopters transporting foreign and U.S. personnel to northern Iraq were shot down by two U.S. Air Force F–15s. Many disturbing factors contributed to this incident and many questions remain regarding the Department of Defense's handling of the Blackhawk incident and investigation.
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    I commend the families of the American victims, particularly Mr. and Mrs. Robert McKenna, who reside in Georgia's Third District, and Ms. Georgia Bergmann, who is testifying before us today, for their tireless efforts to bring an open, honest and just closure to this incident. I only regret that the Federal Government has not been more diligent and responsive in addressing their concerns.

    The families of the 11 foreign victims of the disaster received not only condolences from our government, but also received payments of some $100,000 from the U.S. Treasury, while the American families received no such compensation.

    In defending its determination not to make payments to the American families, the Department of Defense has argued that the laws of the United States, as well as many other countries, do not contemplate recompensing for damage, injury or death caused during an armed conflict.

    For these hazards of war, military personnel and their families generally look to the system of benefits and compensation provided to them by their governments.

    The legal foundation for this policy is founded in the 1950 case of Feres v. the United States in which the Supreme Court ruled there is no legal basis for a member of the armed forces to receive Federal compensation for death or injury that is incident to service.

    However, in a brief prepared on this issue, the Department of Defense has acknowledged that payments to foreign military personnel for losses incident to military service would also be contrary to the Feres doctrine even if such losses were determined not to be combat related.
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    Notwithstanding the Feres doctrine implications of such payments, Secretary of Defense William Perry made payments in the amount of $100,000 each to the families of the foreign personnel killed in the incident, as a humanitarian gesture; unfortunately, the same gesture was not provided to our own American families.

    It is clear in this case, however, that any damage to the Feres doctrine has already been done by the DOD's own account. Feres applies to both foreign and domestic personnel equally in this situation. Therefore, in terms of precedent, paying all of the victims' families should have no more impact than paying only some of the families.

    While I stand and strongly support the underlying justifications of the Feres doctrine, I also believe that American families that suffered the ultimate sacrifice in the name of freedom should know that their Federal Government will give their needs and concerns priority over those of foreign nationals. Therefore, I have introduced H.R. 456 to ensure that the American families who were victims of the Blackhawk shootdown receive the same benefits already provided to the foreign families.

    [The information referred to follows:]

106TH CONGRESS
    1ST SESSION
  H. R. 456

For the relief of the survivors of the 14 members of the Armed Forces and the one United States civilian Federal employee who were killed on April 14, 1994, when United States fighter aircraft mistakenly shot down 2 United States helicopters over Iraq.
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IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 2, 1999
Mr. COLLINS introduced the following bill; which was referred to the Committee on the Judiciary
     
A BILL
For the relief of the survivors of the 14 members of the Armed Forces and the one United States civilian Federal employee who were killed on April 14, 1994, when United States fighter aircraft mistakenly shot down 2 United States helicopters over Iraq.
    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. PAYMENT.
    (a) PAYMENT AUTHORIZATION.—The Secretary of the Treasury shall pay, out of funds not otherwise appropriated, $100,000 to the survivor, or collectively the survivors, of each of the 14 members of the Armed Forces and the one United States civilian Federal employee who were killed on April 14, 1994, when United States F–15 fighter aircraft mistakenly shot down two UH–60 Black Hawk helicopters over Iraq.

    (b) SURVIVOR STATUS.—
    (1) MEMBERS OF THE ARMED FORCES INSURED BY SGLI.—In the case of a member of the Armed Forces described in subsection (a) who was insured by a Servicemembers' Group Life Insurance policy (issued under chapter 19 of title 38, United States Code), a survivor of such member for the purposes of subsection (a) shall be any person designated as a beneficiary on the individual's policy.
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    (2) INDIVIDUALS NOT INSURED BY SGLI.—In the case of a member of the Armed Forces described in subsection (a) who was not insured by a Servicemembers' Group Life Insurance policy (issued under chapter 19 of title 38, United States Code) or the civilian Federal employee described in subsection (a), a survivor of such member or employee for the purposes of subsection (a) shall be any person determined to be a survivor by the Secretary of the Treasury using the provisions of section 5582(b) of title 5, United States Code.

SEC. 2. LIMITATION ON TOTAL AMOUNT OF PAYMENT.
    Not more than a total of $1,500,000 may be paid to survivors under section 1.
SEC. 3. LIMITATION ON ATTORNEY FEES.
    Notwithstanding any contract, no representative of a survivor may receive more than 10 percent of a payment made under section 1 for services rendered in connection with the survivor's claim for such payment. Any person who violates this section shall be guilty of an infraction and shall be subject to a fine in the amount provided in title 18, United States Code.
SEC. 4. REPORT.
    Not later than 6 months after the date of the enactment of this Act, the Secretary of the Treasury shall transmit to the Congress a report describing the payments made under section 1.

    Mr. COLLINS. This legislation would make $100,000 payments to survivors of the 14 members of the U.S. armed forces and the one U.S. civilian Federal employee who perished in the friendly-fire incident.

    Mr. Chairman, before my closing paragraph, I would like to yield to Mr. Udall, who is the Congressman from Colorado who represents the district of Ms. Bergmann.
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    Mr. SMITH. Thank you, Mr. Collins.

    On the way to yielding to Mr. Udall, let me correct myself and the record. I think I said a while ago Tom Udall; I meant to say Mark Udall. There are just lots of Udalls around, beside your dad, Stewart, and Mo Udall, and a cousin from New Mexico. I apologize for the confusion. I know the Congressman well, and he is recognized.

STATEMENT OF HON. MARK UDALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO

    Mr. UDALL. I thank the Chairman for that acknowledgment. I fear that you have flattered me and insulted my cousin. You will have to deal with that situation.

    Mr. Chairman and members of the subcommittee, thank you for holding this hearing on H.R. 456. I want to commend Representative Collins for his leadership in introducing this important bill and to thank him for adding me as a cosponsor.

    H.R. 456 is a bill for the relief of the survivors of the 15 Americans, 14 members of the armed forces and one civilian who were killed in 1994 when United States aircraft mistakenly shot down two of our helicopters in Iraq. A number of foreign nationals were also killed.

    One of the victims of this tragic example of friendly fire was Mark Anthony, or ''Tony,'' Ellner, from Northglenn, Colorado. Today you will hear from his mother, my constituent, Ms. Georgia Bergmann. Tony Ellner, an honor student and a leader at Northglenn High School, joined the Army shortly after his high school graduation. He had served only 11 months and 3 weeks at the time of his death. A public memorial service was held for him at Denver's Civic Center, and he was buried with full military honors at Fort Logan National Cemetery.
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    As you will hear, Mr. Chairman, after the tragic incident in Iraq, the United States decided it was appropriate to make ex gratia payments to the survivors of the foreign victims. I certainly have no quarrel with that decision, but I would note that Ms. Bergmann and family members of the other American victims have had a difficult time with their efforts to establish responsibility for the incident and to secure what they believe is appropriate and equitable treatment.

    For example, I understand that there was considerable resistance within the Defense Department before Purple Hearts were finally awarded to recognize the sacrifices of the victims. As for accountability, it took until November 1997 for the General Accounting Office to finally issue its report concerning the details of the incident and how it occurred.

    Today your subcommittee will take an important step toward closure by considering this legislation which provides for payments to the American survivors on the same basis as the payments already provided to the survivors of the foreign nationals who were killed.

    I understand that there are concerns about setting a precedent. I understand those concerns, but I don't think they should keep the subcommittee from approving the bill. For one thing, I would expect that friendly-fire incidents affecting American servicemen and civilians will be infrequent. For another, in a way, the precedent was already set when the United States decided to make payments to the survivors of the other victims.

    In conclusion, I again thank you for holding this hearing, and I urge approval of this legislation. Thank you.
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    Mr. SMITH. Thank you, Mr. Udall.

    [The prepared statement of Mr. Udall follows:]

PREPARED STATEMENT OF HON. MARK UDALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO

    Mr. Chairman and Members of the Subcommittee, thank you for holding this hearing on H.R. 456. I want to commend Representative Collins for his leadership in introducing this important bill, and to thank him for adding me as cosponsor.

    H.R. 456 is a bill for the relief of the survivors of the 15 Americans—14 members of the Armed Forces and one civilian—who were killed in 1994 when United States aircraft mistakenly shot down two of our helicopters in Iraq. A number of foreign nationals were also killed.

    One of the victims of this tragic example of ''friendly fire'' was Mark Anthony (''Tony'') Ellner, from Northglenn, Colorado. Today you will hear from his mother, my constituent, Mrs. Georgia Bergmann.

    Tony Ellner, an honor student and a leader at Northglenn High School, joined the Army shortly after his high school graduation. He had served only 11 months and 3 weeks at the time of his death. A public memorial service for him was held at Denver's Civic Center, and he was buried with full military honors at Fort Logan National Cemetery.

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    As you will hear, Mr. Chairman, after the tragic incident in Iraq, the United States decided it was appropriate to make ex gratia payments to the survivors of the foreign victims. I certainly have no quarrel with that decision, but I would note that Mrs. Bergmann and family members of the other American victims have had a difficult time with their efforts to establish responsibility for the incident and to secure what they believe is appropriate and equitable treatment.

    For example, I understand that there was considerable resistance within the Defense Department before Purple Hearts were finally awarded to recognize the sacrifices of the victims. And, as for accountability, it took until November of 1997 for the General Accounting Office to finally issue its report concerning the details of the incident and how it occurred.

    Today, your subcommittee will take an important step toward closure by considering this legislation, which provides for payments to the Americans' survivors on the same basis as the payments already provided to the survivors of the foreign nationals who were killed.

    I understand that there may be concerns about setting a precedent. I understand those concerns, but I don't think they should keep the subcommittee from approving the bill. For one thing, I would expect that such ''friendly fire'' incidents affecting American servicemen and civilians will be infrequent. For another, in a way the precedent was already set when the United States decided to make payments to the survivors of the other victims.

    So, in conclusion, I thank you again for holding this hearing and I urge approval of this legislation.

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    Mr. SMITH. Captain Bloxom, Mr. Remy, has it been decided who from the administration will defend?

    Mr. BLOXOM. I will, sir.

    Mr. COLLINS. Mr. Chairman, if I could, please, just in closing, Mr. Chairman, this committee will soon have the opportunity to begin to set our priorities straight. I urge each of you to join in support of H.R. 456 ensuring that these grieving American families receive the same consideration as that that was provided to victims, other victims, of this tragedy. I thank you for allowing me to appear.

    Thank you, sir.

    [The prepared statement of Mr. Collins follows:]

PREPARED STATEMENT OF HON. MAC COLLINS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA

    Thank you, Mr. Chairman, for the interest and concern you have demonstrated in scheduling today's hearing on legislation providing relief to the victims of one of the most tragic events subsequent to the war in the Persian Gulf. I appreciate the opportunity to testify here today regarding legislation that I have introduced to assist families whose lives have been shattered by the events of April 14, 1994.

    I appear today in strong support of the families of fifteen Americans who made the ultimate sacrifice serving their country. On April 14, 1994, two U.S. Army Black Hawk helicopters transporting foreign and U.S. personnel to Irbil, Iraq, were shot down by two U.S. Air Force F–15s. Many disturbing factors contributed to the this incident, and many questions remain regarding the Department of Defense's handling of the Black Hawk incident and investigation. I commend the families of the American victims—particularly Mr. and Mrs. Robert McKenna who reside in Georgia's Third District and Mrs. Georgia Bergmann who is testifying today—for their tireless efforts to bring an open, honest, and just closure to the incident. I only regret that the Federal government has not been more diligent and responsive in addressing their concerns.
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    The families of the eleven foreign victims of the disaster received not only condolences from our government, but also received payments of $100,000 from the U.S. Treasury, while the American families received no such compensation. In defending its determination not to make payments to American families, the Department of Defense has argued that ''the laws of the United States (as well as many other countries) do not contemplate recompensing for damage, injury or death caused during armed conflict. For these hazards of war, military personnel and their families generally look to the system of benefits and compensation provided to them by their governments.'' The legal foundation for this policy is found in the 1950 case Feres v. United States in which the Supreme Court ruled that there is no legal basis for a member of the Armed Forces to receive federal compensation for death or injury that is ''incident to service.''

    However, in a brief prepared on this issue, the D.O.D. has acknowledged that payment to foreign military personnel for losses incident to military service would also be ''contrary'' to the Feres doctrine, even if such losses were determined not to be ''combat-related.'' Notwithstanding the Feres doctrine implications of such payments, Secretary of Defense William Perry made payments in the amount of $100,000 to the families of the foreign personnel killed in the incident as a ''humanitarian gesture.'' Unfortunately, the same gesture was not provided to our own American families. It is clear in this case, however, that any damage to the Feres doctrine has already been done. By the D.O.D's own account, Feres applies to both domestic personnel equally in this situation. Therefore, in terms of precedent, paying all of the victims' families should have no more impact than paying only some of the families.

    While I understand and strongly support the underlying justifications for the Feres doctrine, I also believe that American families that suffer the ultimate sacrifice in the name of freedom should know that their Federal government will give their needs and concerns priority over those of foreign nationals. Therefore, I have introduced H.R. 456 to insure that the American families who were victims of the Black Hawk shoot down receive the same benefits already provided to the foreign families. This legislation would make $100,000 payments to the survivors of the 14 members of the U.S. Armed Forces and one U.S. civilian Federal employee who perished in the friendly-fire incident.
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    In closing, this committee will soon have the opportunity to begin to set our priorities straight. I urge each of you to join me in support of H.R. 456, insuring that these grieving American families receive the same consideration as that provided to the foreign victims of this tragedy.

    Mr. SMITH. Captain Bloxom.

STATEMENT OF CAPTAIN ELLIOTT L. BLOXOM, U.S. DEPARTMENT OF DEFENSE

    Mr. BLOXOM. Mr. Chairman, members of the subcommittee, I am pleased to appear before the subcommittee again to present the views of the Department of Defense on H.R. 456.

    As I stated a year ago, in any tragedy we would always like to do as much as possible for the survivors. However, this bill would provide relief through increased benefits to only a small number, while many other survivors would not receive similar relief despite facing other tragic circumstances. Accordingly, the Department of Defense cannot support enactment of this bill.

    Members of the military and their civilian counterparts join the armed forces and the Department of Defense voluntarily, knowing that military operations are inherently dangerous and that they could be exposed to situations which might result in a serious injury or even death.
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    Injury to, or death of, a service member or civilian employee is always tragic. The deaths of 14 military members and one civilian employee on the two Blackhawk helicopters in Iraq on 14 April, 1994, was especially distressing as it resulted from a series of unfortunate events.

    We regret the loss of these dedicated individuals and extend our deepest sympathies to their families.

    While the death of any service member or civilian employee while in service to his Nation is tragic, the Department of Defense believes that the current system of benefits is the appropriate means of compensating survivors of all accidents occurring in the line of duty. These benefits are tailored to the person who would rely on the members' income for economic security and, in some cases, can endure for the lifetime of the survivor.

    It has always been the Department's policy, and we believe the will of Congress, to provide these benefits uniformly for all military members and civilian employees. We believe providing extra benefits would create inequities.

    When Congress has considered modifying the benefits available for either military or civilian personnel, it has done so uniformly on behalf of all. The proposed legislation would be a significant deviation from the current swift, uniform and comprehensive system provided for all military personnel and civilian employees injured or killed incident to their service.

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    In summary, the Department of Defense opposes this bill not because the underlying circumstances are not regrettable and tragic, but because it would cause inequities for our people and would place the Department in the awkward position of explaining to the survivors of those not covered by this bill why their loved ones are somehow less worthy of recovering the additional benefits available to the few who would be covered.

    If Congress believes the current system of compensation for military and civilian employees is inadequate, then such deficiencies should be addressed by revising benefits for all military members and all civilian employees, no matter where they might perish or be injured during their service to our Nation. The sacrifice of a soldier, sailor, airman, Marine or civilian employee is tragic. However, for the reasons I have discussed, the Department of Defense does not support passage of this bill.

    Again, I appreciate the opportunity to be here today and I would be happy to respond to the subcommittee's questions.

    Mr. SMITH. Thank you, Captain Bloxom.

    [The prepared statement of Captain Bloxom follows:]

PREPARED STATEMENT OF CAPTAIN ELLIOTT L. BLOXOM, U.S. DEPARTMENT OF DEFENSE

    Chairman Smith and Members of the Subcommittee

    I am pleased to appear before the subcommittee today to present the views of the Department of Defense on H.R. 456. This bill is intended to authorize payment to survivors of each of the 14 members of the Armed Forces and one Department of Defense civilian employee who were killed on April 14, 1994, when United States fighter aircraft mistakenly shot down two helicopters in Iraq. Due to the limited time available to prepare for this hearing, my statement mirrors that provided last year to this committee, but the facts regarding the Department's compensation for survivors remain relevant.
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    Military operations are inherently dangerous, whether they occur in peacetime training, in combat, or in operations other than war. Members of the military and civilian employees of the Department of Defense serve voluntarily, knowing that they may be exposed to dangerous situations, which could cause them serious injury or even death.

    Injury to, or death of, a service member or civilian employee is always tragic. Particularly tragic are unexpected deaths caused by accidents or errors that sometime occur when performing service for the national defense. The deaths of 14 military members and one Department of Defense civilian employee on board two Blackhawk helicopters in Iraq on April 14, 1994, were especially distressing, as they resulted from a series of unfortunate events. Their service to their nation is greatly appreciated. We regret the loss of these dedicated indivduals and extend our deepest sympathy to their families.

    The death of any service member or civilian employee while in service to this nation is tragic. The Nation's laws, however, do not differentiate between service-related deaths of this type. The Department of Defense believes that the current benefit system is the appropriate means of compensating the survivors of all accidents and opposes providing increased benefits to a small number. Accordingly, the Department of Defense does not support enactment of this bill.

    The nation provides a comprehensive system of benefits to military members as well as its civilian employees. While there are differences between the military and civilian programs, both are primarily based on the continuing need of the survivors, not on the circumstances of death. These benefits are extended to the persons who would have relied on the member's or employee's income for their economic security. Some of these benefits can endure for the lifetime of the survivor and total in the hundreds of thousands of dollars.
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    The following is a list of compensation and benefits provided survivors of military personnel under U.S. law:

Death Gratuity—A $6,000 death gratuity (10 U.S.C. §1477–1478) is intended to provide immediate cash to meet the needs of survivors.

Government Housing or Allowances and Relocation Assistance—Survivors are provided rent-free Government housing for 180 days or the tax-free allowances for housing appropriate to the member's grade for any portion of the 180 day period while not in quarters (37 U.S.C. §403(l)). Survivors are also entitled to transportation, per diem, and shipment of household goods and baggage (37 U.S.C. §406(f)).

Burial Costs—The Government will reimburse up to $4,850 of expenses for the member's burial, depending on the type of arrangements and will provide travel for next-of-kin under invitational travel orders (10 U.S.C. §1482, ASD(FM&P) memorandum dated March 21, 1991, and 38 U.S.C. §2301–2308). Additional benefits may be provided by the Department of Veterans Affairs (DVA) and may depend on whether the death was service-connected. DVA benefits include eligibility for burial in National cemeteries, headstones and markers, flags, and limited reimbursement of burial expenses for service-connected deaths.

Unused Leave—Payment of accrued leave is made to the survivor for all the member's unused accrued leave (37 U.S.C. §501).

Servicemembers' Group Life Insurance (SGLI)—Service members are automatically insured for $200,000 through the SGLI program, but may reduce or decline coverage as desired (38 U.S.C. §1965–1979).
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Dependency and Indemnity Compensation (DIC)—The Department of Veterans Affairs (DVA) pays a tax-free monthly amount to an unremarried surviving spouse of a Service member who dies from a service-connected disability (38 U.S.C. §1310–1318). The basic spouse DIC is a flat-rate annuity of $850 per month (Public Law 103–418). An additional $215 is paid for each dependent child until age 18. The law provides special additional amounts to meet specific needs. A surviving 30-year-old spouse with a life expectancy of 80 years may receive DIC benefits of more than $500,000 based on current rates.

Uniformed Services Survivor Benefit Plan (SBP)—Eligible spouses and children of service members who were retirement eligible at the time of death are entitled to monthly payments under the SBP (10 U.S.C. §1447–1460b). The annuity amount for a spouse under age 62 is equal to 55 percent of the retired pay that would be payable if the member retired on the date of death. When the spouse is age 62, the benefit is reduced to 35 percent. By law, a spouse's DIC entitlement is offset from SBP.

Social Security—Death benefits are provided for a spouse caring for the member's dependent children under age 16, a surviving spouse during old age, and for eligible minor children of an insured service member (26 U.S.C. §3101, 3111, 3121). Benefits depend on the family status of the deceased member and are the same as for the family of any deceased civilian worker insured under the same circumstances. Monthly entitlement is a percentage of the deceased member's ''Primary Insurance Amount (PIA)''. The full PIA is paid to a surviving spouse who begins payments at age 65. Reduced amounts are payable as early as age 60. The mother's/father's and children's benefit is 75 percent of the PIA, subject to a family maximum.

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Health Care—A surviving spouse and minor dependents of the member in the normal case are eligible for space-available medical care at military medical facilities or are covered by TRICARE (MEDICARE after age 65). Dental insurance coverage and TRICARE benefit levels for dependent survivors of active duty members are extended for one year after the member's death. (10 U.S.C. chapter 55)

Commissary and Exchange Privileges—The unmarried surviving spouse and qualified dependents are eligible to shop at military commissaries and exchanges, normally providing a savings over similar goods sold in private commercial establishments (DoD Directive 1330.17, ''Armed Services Commissary Regulations'' and DoD Directive 1330.9, ''Armed Services Exchange Regulations'').

Tax Benefits—The next-of-kin of a service member whose death occurs overseas in a terrorist or military action is exempt from paying the decedent's income tax for at least the year in which the death occurred (26 U.S.C. §692). SBP payments are taxable as income. Payments made by the VA are tax exempt (38 U.S.C. §5301). SGLI payments are not taxable.

    A similarly robust and comprehensive system of benefits is available to civilian employees under U.S. law:

Federal Employees Group Life Insurance (FEGLI)—Life insurance proceeds are payable under FEGLI if death occurs while an employee is insured no matter how death is caused. An increased accidental death benefit is payable, unless the cause of death falls under one of the expressed exceptions. Unless the employee designates a specific beneficiary, the FEGLI benefit is paid according to the order of precedence mandated by law. (5 U.S.C. Chapter 87)
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Civil Service Retirement System (CSRS)—A monthly survivor annuity is payable to an eligible spouse if an employee had completed at least 18 months of creditable civilian service and died while subject to CSRS deductions. The guaranteed minimum amount of survivor annuity is 55% of the lesser of 40% of employee's high-3 average salary at date of death or the amount the annuity would have been had employee worked until 60 years old at the same high-3. When the widow's or widower's annuity based on the employee's actual service would be more than the amount under the guaranteed minimum provision, the spouse receives 55% of the annuity that would have been earned by the employee at date of death. (5 U.S.C. Chapter 83)

Federal Employees' Retirement System (FERS)—The basic employee death benefit is payable if the employee had completed at least 18 months of creditable civilian service and died while subject to FERS deductions. If the deceased employee had more than 18 months but less than 10 years of service, the basic death benefit amount is a lump sum payment (currently $22,066.52) plus a lump sum equal to the higher of half of the annual basic pay at the time of death or half of the employee's high-3 average salary. If the deceased employee had 10 or more years of service, the surviving spouse is entitled to a survivor annuity equal to one-half of the employee's earned annuity (5 U.S.C. Chapter 84).

Social Security Benefits—Social Security benefits are payable to survivors if the deceased employee had earned sufficient credit.

Leave, Final Pay & Thrift Savings Plan—A DoD civilian employee beneficiary receives a lump-sum payment for unpaid compensation and all unused annual leave accrued (5 U.S.C. §6303). The sick leave balance is applied in the calculation of a survivor annuity if the employee was under CSRS. The employee's designated beneficiary receives any amount in the employee's Thrift Savings Plan account. (5 U.S.C. §8433)
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Federal Employees' Compensation Act (FECA)—If death occurs from injury sustained in the performance of duty, survivors of civilian employees of the Federal government are entitled to tax-exempt compensation payments. The surviving spouse is compensated at a rate of 50% of the deceased employee's salary. If children are eligible in addition to the spouse, compensation is 45% plus an additional 15% for each child, to a maximum of 75% of the employee's regular pay. FECA benefits are not available if the survivor elects to receive an annuity under CSRS/FERS. Also, under FECA, the government pays up to $800 funeral and burial expenses. If an employee dies away from the area of residence, the cost of transporting the body to a place of burial is also paid. In addition, a $200 allowance is paid in consideration of terminating the deceased's status as a Federal employee. (5 U.S.C. §8133–8137)

Death Gratuity Payment—A death gratuity of $10,000 is paid when a civilian employee dies from an injury sustained in the line of duty. The amount payable under the Federal Employees' Compensation Act (which normally equates to $1,000) is subtracted from the $10,000 payment. (Section 651 of P.L. 104–208)

Federal Employees Health Benefits Program (FEHBP)—A survivor may continue enrollment in the FEHBP if the deceased employee was enrolled for self and family at the time of death and at least one family member is entitled to a monthly annuity as the survivor of the deceased employee. If the surviving spouse of a deceased FERS employee is not eligible for monthly survivor annuity benefits (because the employee had less than 10 years of creditable service), he or she may, nonetheless, elect to continue coverage provided the surviving spouse is eligible for the basic death benefit. (5 U.S.C. Chapter 89)

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Tax Benefits—Proceeds of FEGLI policies that are paid as a death benefit to a designated beneficiary are not taxable as income to the beneficiary. Survivor benefit payments under CSRS and FERS are taxable as income.

    We object to H.R. 456 because we are convinced that survivors of similarly situated individuals should receive the same level of compensation. The existing uniform system of benefits provided when a service member or employee is killed in government service supports unit cohesion and high morale.

    When Congress has considered modifying the benefits available for either military or civilian personnel, it has done so uniformly, on behalf of all. For example, in 1994, Congress improved the medical, dental, and housing entitlements for dependents of all service members who die while on active duty. Last year, Congress authorized the payment of a death gratuity for the beneficiaries of all Federal civilian employees for death resulting from injuries sustained in the line-of-duty. In both cases, Congress applied these increased benefits retroactively.

    In summary, the Department of Defense opposes this bill because it would be a significant deviation from the current swift, uniform, and comprehensive system of compensation provided for all military personnel and civilian employees injured or killed incident to their service. This system treats similarly situated individuals fairly and equitably. The proposed bill would supplement these uniform benefits for only a select few and contradicts the express intent of Congress in the Military Claims Act to bar claims by service members for injury or death occurring incident to service.

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    I appreciate the opportunity to present the Department's views on this bill and would be happy to respond to your questions.

    [The prepared statement of Mr. Remy follows:]

PREPARED STATEMENT OF DONALD M. REMY, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE

    My name is Donald M. Remy. I am the Deputy Assistant Attorney General in charge of the Torts Branch of the Justice Department's Civil Division. This statement presents the views of the Department of Justice on H.R. 456. Mr. Chairman, as you may recall, almost one year ago I testified for the Department on a similar bill, H.R. 2986, which was offered in the 105th Congress. Since that time, the Administration's position opposing this legislation has not changed, and I will recall the rationale for that position for you today.

    H.R. 456 would authorize the Secretary of the Treasury to pay $100,000 to the survivor, or collectively the survivors, of each of the fourteen members of the Armed Forces and the one civilian who were tragically killed on April 14, 1994, when United States fighter aircraft mistakenly shot down two United States helicopters over Iraq. If enacted, this bill would single out for special treatment fifteen families whose loved ones died in one highly publicized, unfortunate incident. We extend our sympathy to our soldiers' and employees' relatives and friends on their loss in this accident. We are constrained to oppose this bill, however, because it unfairly discriminates between these survivors and all other individuals suffering similar losses, and because it is inconsistent with the rational and well established framework for compensation in such circumstances.
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    Each of the fifteen individuals who died in the April 14, 1994, incident had substantial death benefits which are created by Federal law. The survivors of the fourteen service members are entitled to death gratuity benefits established by Congress for the families of members of the armed forces who die while on active duty (10 U.S.C. §1475–1482), as well as benefits from the unique, subsidized insurance or insurance-type plans created for service members. 10 U.S.C. §1447 et seq.; 38 U.S.C. §1965. Likewise, the survivors of the civilian employee are entitled to benefits under the Federal Employees' Compensation Act, 5 U.S.C. §8102, 8133. The benefits provided by these statutes are certain and not fault based; they are not subject to chance or disparate treatment. They provide uniform remedies for service members or Federal employees who are injured or killed while serving our country.

    In its seminal decision in Feres v. United States, 340 U.S. 135, 144 (1950), the Supreme Court recognized that Congress had created a system of ''simple, certain, and uniform compensation for injuries or death of those in armed services.'' In United States v. Johnson, 481 U.S. 681, 690 (1987), the Supreme Court noted that these ''benefits . . . 'compare extremely favorably with those provided by most workmen's compensation statutes'. . . .'' Under this system, compensation is awarded uniformly to all service members who are similarly situated, without regard to whether their injuries were incurred in training or in combat, in isolation or in large groups, in highly visible incidents or in little known, but equally tragic circumstances.

    The same holds true for civilian employees of the government who are provided uniform compensation under the Federal Employees' Compensation Act. Survivors of similarly situated individuals receive the same level of compensation when their loved ones are killed in government service. This is so whether the death occurred in a traffic accident, in a plane crash, at a shooting in a postal facility, or in a battlefield accident.
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    The bill would establish an unwarranted precedent of preferential treatment for favored individuals. Singling out the survivors of individuals who died in the April 14, 1994, incident would undermine the well-established principle of American jurisprudence which requires the uniform application of the law to all persons. When service members or Federal civilian employees give their lives while serving the United States they are provided with a specific, uniform remedy established by statute. To provide an extraordinary payment to service members and civilian employees who die in highly publicized incidents would break faith with the families of others who have died in the nation's service. Moreover, if legislation such as H.R. 456 is enacted, it fairly can be anticipated that survivors of future high-profile tragedies will seek similar legislation, thereby further undermining the basic principle that all families should be treated in the same fashion. Families of previous, less visible tragedies will no doubt ask this government why their loved ones' lives were worth less. For these reasons, the Department of Justice opposes enactment of H.R. 456.

    I appreciate the opportunity to present the Department's views on H.R. 456.

    Mr. SMITH. Ms. Bergmann.

STATEMENT OF GEORGIA BERGMANN

    Ms. BERGMANN. Before I begin my testimony, I would like to thank my Congressman, Mark Udall, for his introduction and kind words, and also for Congressman Mac Collins for championing our cause and introducing this bill. Also Mac Collins' constituents, Army Lieutenant Colonel Bob McKenna and his wife Maureen of Georgia were not able to be here, because we thought it would be too taxing on Mr. McKenna's health. So I am glad to be here today.
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    I am honored to be here to speak to you on behalf of the McKennas, as well as my own and other Blackhawk families. I am here today seeking equity, that is, equal treatment to that given the foreign families whose loved ones were killed with ours. The Americans who died on April 14, 1994, were some of the best and brightest our country had to offer.

    Mr. Chairman, Congress should keep in mind that an internal Defense Department investigation concluded some 65 errors were committed causing this tragedy. In addition, a separate GAO report quoted an Air Force officer stating that over 130 errors were made.

    As I said in my testimony before this committee last June, when we asked the DOD about the ex gratia payments, we were told, ''Due to the exceptional circumstance of this accident, the Secretary of Defense determined that this payment was appropriate to convey the United States' regret over this unfortunate loss of life. In addition, this humanitarian gesture is important in enabling the United States to retain the trust and goodwill and support of our allies.''

    Again, I ask you, how much does the Defense Department regret the loss of life of those who volunteered to serve their country? What can possibly be more important to our government than to maintain the trust, goodwill and support of its own citizens?

    The Pentagon has repeatedly emphasized the exceptional nature of this tragedy to justify the $100,000 ex gratia payments. We do not question the appropriateness of the decision to authorize these payments. What we do question is the inherent inequity of preferential treatment of the foreign nationals over the Americans killed on board the Blackhawks. The ex gratia payments were made over and above the benefit packages provided by the respective foreign governments.
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    This bill is necessary because the Pentagon's unequal treatment of the families of the Blackhawk victims sends a message to all Americans that the lives of our loved ones are somehow less valuable and their loss less grievous than the lives of our foreign allies with whom they serve. It seems to the families, the Pentagon cares more about preserving foreign relations than the loss of its own soldiers.

    The DOD claims that equitable treatment in this situation would cause an imbalance of uniform compensation awards to all service personnel who are similarly situated. Yet to use their own words, the Blackhawk incident was an ''exceptional circumstance.''

    We are not asking you to set a new precedent. The Pentagon has already set the precedent. We are asking for fairness.

    Although the 15 primary next-of-kin of the Blackhawk shootdown victims embarked in this effort together, the issue is highly personal for each of us. The chain of events following the tragedy have caused unspeakable stress added to the burden and trauma of losing our loved ones.

    In previous visits to the Senate and Congress, the other Blackhawk families and I have visited many of your offices. To each of you, we wish to express our appreciation for the continued support you have given us over the past 5 years. Without your help, we wouldn't have received the Purple Heart, seen the GAO investigation, or be here today to discuss equitable treatment. ''Thank you'' seems inadequate to express the depth of our gratitude.

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    For those of you who we have not had the privilege to meet, let me put a face on this tragedy. The McKenna's son, Captain Patrick McKenna, was the Army Eagle Flight commander and lead helicopter pilot. The stress of their son's death led Bob McKenna to retire after 44 years of service.

    Army Sergeant Cornelius Anthony Bass was the youngest of three boys. His father, Air Force Captain Cleon Bass, decided to retire with 19 years of service, because the Air Force uniform became too painful to put on every day.

    Colonel Jerry Thompson was 2 days shy of coming home to his wife and family.

    Colonel Richard Mulhern had just arrived to take Colonel Thompson's place as the MCC commander for Operation Provide Comfort.

    First Lieutenant Laura Piper was the only Air Force personnel killed in the shootdown. She and her father graduated from the Air Force Academy. Shortly after her death, her brother, Dan, also became an Air Force Academy graduate.

    Specialist Jeffrey Colbert's youngest daughter was diagnosed with acute leukemia 1 week after the first anniversary date of his death. Her medical benefits had just changed from ''active duty'' to ''retiree'' status, increasing the already burdensome cost of critical care.

    Chief Warrant Officer Eric Mounsey is the second son lost by his parents, Ray and Sarah Mounsey. A drunk driver killed their first child at the age of 4.
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    I am a single, divorced mother who raised three children on my own without court-ordered financial support. Army Specialist Mark A. Ellner, Tony, age 21, was my oldest child and only son. He had never left home before he joined the Army. He was in the service 11 months and 3 weeks when he was killed.

    Our request for passage of Private Relief Bill H.R. 456 is not about money; it is about equity. If the DOD had not seen fit to place a value on human lives by allowing unequal compensation, we would not have come to you with this appeal. Please show us that our government considers its own citizens at least as valuable as those of our foreign allies.

    Someday I will see Tony again. I have to be able to look him in the eye and say I did everything I knew to do, to the best of my ability, to defend and restore his honor because he was unable to be here to fight for himself.

    The other surviving families and I have been standing in the gap for our husbands, sons, wife and daughter since April 14, 1994. Help me, so when the day comes that I see my son again, I can look Tony in the eye and tell him his honor has been restored.

    Thank you.

    Mr. SMITH. Thank you, Ms. Bergmann.

    [The prepared statement of Ms. Bergmann follows:]

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PREPARED STATEMENT OF GEORGIA BERGMANN

    Chairman Smith and honorable members of the committee, thank you for holding this hearing today and allowing me to testify on HR 456. Congressman Mac Collins' constituents, retired Army LTC Bob McKenna and his wife Maureen of Columbus, GA regret they were unable to be here today. There was concern that the journey would be too taxing on Mr. McKenna's health. I am honored to be here to speak to you on their behalf as well as my own and the other Black Hawk families. I am here today to get equity for the Black Hawk families—that is—equal treatment to that which was given the foreign families whose loved ones were killed with ours. The Americans who died on April 14, 1994, were some of the best and brightest our country had to offer. In a letter following the tragedy, then Secretary of the Joint Chief's of Staff, John Shalikashivili wrote: ''The loss of these men and women touches the very fabric of our institution, whose code and passion is to take care of each other and protect one another from danger.'' The words sound good, but the actions taken by the Defense Department tells me this simply is not true. It is impossible to reconcile this statement with the fact that our military has shown more concern with preserving foreign relations than the loss of its own soldiers.

    As I stated in my testimony before this committee on June 18, 1998, when we asked the Defense Department about the ex gratia payments we've were told, and I quote, ''Due to the exceptional circumstances of this accident, the Secretary of Defense determined that this payment was appropriate to convey the United States' regret over this unfortunate loss of life. In addition, this humanitarian gesture is important in enabling the United States to retain the trust and goodwill and support of our allies.'' Again, I ask you, how much does the Defense Department regret the loss of life of those who volunteered to serve their country? What can possibly be more important to our government than to maintain the trust, goodwill and support of its own citizens?
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    The Pentagon has repeatedly emphasized the exceptional nature of this tragedy to justify the $100,000 ex gratia payments. We do not question the appropriateness of Defense Secretary Perry's decision to authorize these payments. What we do question is the inherent inequity of preferential treatment to the families of the foreign nationals over the families of the Americans killed on board the Black Hawks. The ex gratia payments were made over and above the benefit packages provided by the respective foreign governments. Our loved ones were serving side by side with those foreign personnel. The Pentagon's unequal treatment of the families of the Black Hawk victims sends a message to all Americans that the lives of our loved ones are somehow less valuable, and their loss less sorrowful, than the lives of our foreign allies with whom they serve.

    The Defense Department claims that equitable treatment in this situation would cause an imbalance of uniform compensation awards to all service personnel who are ''similarly situated.'' Yet to use the Defense Department's own words, the Black Hawk incident was an ''exceptional circumstance.'' We are not asking you to set a new precedent, the Pentagon has already set the precedent. We are asking for fairness. This bill is necessary because the Department of Defense chose to pay $100,000 to the survivors of the foreign victims of the Black Hawk tragedy—but not to the families of the American victims.

    In January, 1995, several of the family members met in San Antonio, Texas to do an ABC ''Prime Time Live'' interview with Sam Donaldson. It was the first time most of us had met each other face to face. We soon discovered that we had individually been writing letters which centered around three topics: 1) requesting the Purple Heart award 2) Air Force accountability for the shootdown; 3) equal treatment of the Americans. I remember telling the family members then, Some day I'll see Tony again. I have to be able to look him in the eye and tell him I did everything I knew to do, to the best of my ability, to defend and restore his honor because he was unable to be here to fight for himself. The other surviving families and I have been standing in the gap for our husbands, sons, wife and daughter since April 14, 1994.
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    Although the 15 primary next of kin, of the Black Hawk shootdown victims, embarked in this effort together, the issue is highly personal for each of us. The chain of events following the tragedy have caused unspeakable stress added to the burden and trauma of losing our loved ones.

    In previous visits to the Senate and Congress I, and other Black Hawk families, have visited many of your offices. Sometimes we were fortunate enough to meet you in person; and at other times the hard working members of your staff were kind and generous to interrupt their busy schedules to speak to us. To each of you we wish to express our appreciation for the continued support you've given us over the past 5 years. Without your help we wouldn't have received the Purple Heart in 1995, or seen the Government Accounting Office investigative report released in 1997, or be here today to discuss equitable treatment. Thank you seems inadequate to express the depth of our gratitude.

    For those of you who we've not had the privilege to meet, let me tell you a little about some of us:

    I am a single divorced mom. My ex-husband is an alcoholic who did not provide the court ordered financial support. I raised our three children on my own. Army SPC Mark A. Ellner (Tony), age 21, was my oldest child and only son. He had never left home before joining the Army. He was in the service 11 months and three weeks when he was killed.

    Laura Colbert is the widow of Jeffrey Colbert. They have two beautiful daughters one of which was diagnosed with acute leukemia one week after the first anniversary date of the shootdown. Her medical benefits had just changed from active duty to retiree status. Retired Army LTC Robert & Maureen McKenna's son Cpt. Patrick McKenna was the Army Eagle Flight commander, lead helicopter pilot, and a Citadel graduate. The stress of their son's death led Bob McKenna to retire after 44 years of service.
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    Retired Air Force Cpt. Cleon & Corenelia Bass' son, Sgt. Cornelius Anthony Bass, was the youngest of three boys. Cleon Bass decided to retire with 19 years of service because the Air Force uniform became too painful to put on everyday.

    Eileen Thompson's husband, Col Jerry Thompson, was two days shy of coming home to his wife and family.

    Nell Mulhern's husband, Col. Richard Mulhern, had just arrived to take Col. Thompson's place as the MCC Commander for Operation Provide Comfort.

    Retired Air Force Col. Danny & Joan Piper's daughter, 1LT Laura Piper, was the only Air Force personnel killed in the shootdown. Danny Piper and Laura graduated from the Air Force Academy. Shortly after the tragedy the Piper's son, Dan, also became an Air Force Academy graduate.

    CW01 Eric Mounsey is the second son lost by his parents, Ray & Sarah Mounsey. A drunk driver killed their first child at the age of 4.

    Our request for passage of private relief bill HR 456 is not about money, its about equity. Thomas Jefferson wrote that, ''the foundation on which all our constitutions are built is the natural equality of man.'' This equality extends not only between citizens of the United States but also among our citizens in relation to those from other countries. If the Defense Department had not seen fit to place a value on human lives by allowing unequal compensation, we would not have come to you with this appeal. Please show us that our government considers it's own citizens at least as valuable as those of our foreign allies.
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    Help me so when the day comes that I see my son again, I can look Tony in the eye and tell him his honor has been restored.

    Mr. SMITH. Congressman Collins and Congressman Udall, I don't have any direct questions for you all, but feel free to add anything you want to the responses from the other witnesses as we go along.

    Captain Bloxom and Mr. Remy, let me direct my first question to you. It seems to me that the implication of what you have heard the other witnesses say is that there appears to be a double standard, which is to say, individuals who were foreign nationals were treated differently from individuals who were American military personnel.

    Doesn't that appear to be the case, regardless of your decision not to treat them equally? Doesn't there appear to be a double standard there?

    Mr. BLOXOM. Sir, there are two different cases in the fact that we did provide the ex gratia payments to the foreign survivors as a token of humanitarian gesture and to maintain the support and goodwill of our allies.

    On the other hand, with regard to the U.S. survivors, we are consistent in the fact that we have a good compensation package that provides for the economic security of those members. So there is—you can point the way that we have dealt with the foreign nationals and the way that we have dealt with our own survivors.

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    Mr. SMITH. In this case, though, as I understand it, most of the American military personnel who were killed were not married, didn't have children, and may or may not have had insurance. So the only benefit they received was the cost of burial; is that correct?

    Mr. BLOXOM. As I understand it, sir, there was one member of the Americans who did not have insurance. The remainder did. The amount of benefit that would be paid to each survivor would vary based upon marital status, the number of children, and how the various compensation benefits were figured.

    Mr. SMITH. But $100,000 provided to the foreign nationals' families was $100,000 regardless of whether or not they had insurance; is that correct?

    Mr. BLOXOM. That is correct. The only exception was with the Kurds, who were employees of the United States, and the amount of their $100,000 was offset by the amount they received under the Federal Employees Compensation Act.

    Mr. SMITH. Mr. Remy, if you and the Defense Department are concerned about violating a precedent, or setting a precedent, or going against current regulations that might exist, even if that were granted to be a legitimate concern, why would you not at least in this one particular case do as Ms. Bergmann has suggested and the Congressmen have suggested, and that is, treat all the individuals the same?

    There is the equity argument.

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    In other words, I hope that the Defense Department would not take such actions again as far as treating one individual differently from another. Assuming that that is the case and they have it within their power to make sure they don't do it, why won't, in this one instance, there be an exception? As I recall from our hearing a year ago, there is the power to make this exception and pay these American families the $100,000 as well.

    Mr. REMY. Mr. Chairman, there are two issues of equity here. There is the issue of equity that you described and the issue of equitable treatment for similarly situated Americans in similar circumstances.

    Mr. SMITH. Are there any other known instances where the administration has paid $100,000 to foreign nationals and not paid the same amount to American families?

    Mr. REMY. That payment was made under 10 U.S.C. 127, and Captain Bloxom would probably be better equipped to answer the issue of whether or not any other humanitarian payments were made under that statute.

    That statute allows the Secretary of Defense the discretion to make humanitarian payments.

    Mr. SMITH. Captain Bloxom, you are welcome to answer that if you want to. Have there been any other instances like this one?

    Mr. BLOXOM. Sir, I am not aware of any other instances where ex gratia payments have been made to foreigners and equal amounts made to Americans.
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    Mr. SMITH. I am not either. Therefore, Mr. Remy, your answer about being concerned about the precedent doesn't seem to have much basis. Why not, in this one instance—again to go back to my original question—treat all individuals the same?

    Mr. REMY. My focus, Mr. Chairman, was not on the payment made under the humanitarian statute, but a payment made in the form of a private relief compensation by the Congress. The Federal Tort Claims Act system and the Feres doctrine are long established principles which are founded on the basis of equitable treatment for all Americans in similar circumstances.

    There have been other occurrences where individuals have sought private relief from the Congress when the Department of Justice has appeared before you and has been opposed to bills because of the fact that we would not want individuals to be given special treatment in special circumstances.

    Mr. SMITH. I understand your past objections. But I also heard what Captain Bloxom just said, that there is no similar instance to this one.

    Once again, since you have it within the power to do so, or the administration has it within its power, why not treat these individuals the same?

    Mr. REMY. Again, I will fall back on my answer.

    Mr. SMITH. We have heard your answer and my question before. My time is up. We will go to Ms. Jackson Lee.
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    Ms. JACKSON LEE. Thank you very much, Mr. Chairman.

    Again, I want to thank my colleagues, Mr. Udall and Mr. Collins, for their leadership on this issue; and, as well, Ms. Bergmann. Let me offer my deepest sympathy to you and all of the families.

    I do understand the position that the Department of Defense and the Department of Justice are here to make in an obligatory way, and have to make. But I believe that this Nation is, as well, a country of laws. It is, as well, a country of justice. So although Congress has been known often to be a problem maker, I would like us now to be a problem solver.

    We have a mess, and I think Congress needs to fix it. The reason why I say this, Mr. Remy and Captain Bloxom, if you might, in the law we are always—if we are looking at a court of equity, I think we can find ourselves there by distinguishing features or factors.

    In this instance, I would offer to say to you that your own GAO report has indicated that the Air Combat Command official familiar with the military investigation found over 130 separate mistakes were involved in this shootdown. So if you had to distinguish this particular case as to why the families should be compensated, in addition to the humanitarian aid, you will find, I think, maybe the balance of scales of justice where there is heavy weight on the fact that unfortunately—and again this is not characterizing our military personnel, whom I hold in high esteem—there was an enormous number of errors. In fact, the Air Force Chief of Staff disqualified the two F–15 pilots from aviation service for 3 years and disqualified three members of the Airborne Warning and Control Systems crew from any assignment involving aircraft control for 3 years.
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    We can fix that part of it in enhancing our training and reviewing what happened and hoping we don't have that happen again. But if you had to find a basis upon which you could support this legislation and find merit in this legislation, could you not find merit in the distinguishing features of the enormous mistakes that were attributable to this accident, and thereby say that in addition to your desire to keep good foreign relations with our allies and/or our world friends, if you will, why not respond to the imbalance that is happening to our American citizens and the fact that we were egregiously negligent that brought about this particular accident?

    Captain Bloxom?

    Mr. BLOXOM. We would not refute the fact that it was a tragic accident which was caused by a series of errors. Our concern is that providing relief through this type of bill will cause a set of inequities between the way we treat our survivors. Do we then make the assumption that 130 errors is the threshold at which we are going to provide additional compensation, while the next accident, which may have been caused by 10 errors, but be equally egregious, does not receive the same benefit?

    We do not doubt the tragic nature of this. Our goal is to provide a uniform and equal compensation system to the survivors of any accident. Any death caused by whatever reason or how many contributing factors is tragic. We would view any death as equally tragic, and feel the survivors ought to be compensated in an equitable fashion.

    Ms. JACKSON LEE. I think, Captain, your point is obviously an internal mechanism in the DOD, which is to present an image that you are treating everyone fairly. But I think 130 mistakes is a mountain of mistakes. The treatment of the F–15 pilots and the others suggest that I think even your military personnel thought that it was egregious.
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    Let me ask Congressman Collins to answer the question. Does this open the door, Congressman Collins, for a myriad of individuals lining up to receive compensation? Doesn't it argue more for the point you have made on equity and the Chairman has made on equity inasmuch as the military voluntarily gave $100,000 to the other families?

    Mr. COLLINS. Ms. Jackson Lee, I think the Department of Defense itself has set the precedent in this particular incident by declaring that the payment to the foreign nationals was in violation of the Feres doctrine, and therefore it is my and many other members' stands that equal treatment should be given to our own service personnel and one civilian involved in this incident.

    If there are other incidents, they will stand on their own merit, and hopefully they will not be; but I don't see that this particular incident, equal treatment of all involved, will have anything to do with any future incidents that may occur.

    Ms. JACKSON LEE. Thank you, Congressman Collins.

    Congressman Udall?

    Mr. UDALL. I couldn't say it any better than my colleague from Georgia just did. I stand exactly on the ground that he is standing on, which is that each incident would have to be in front of us, each specific situation, and I think it is important to make this situation right.

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    Thank you.

    Mr. SMITH. Thank you.

    The gentleman from Indiana, Mr. Pease, is recognized.

    Mr. PEASE. Thank you, Mr. Chairman.

    Captain Bloxom, again, I understand and in fact agree with the philosophy that underpins the decision that was made by the Department of Defense. However, I have trouble justifying that decision, which I think is a matter of good public policy to ensure that all American survivors are treated the same, squaring that with the glaring difference of treatment between foreign nationals and American citizens.

    Can you can explain to us the reason for the DOD decision to compensate survivors of the foreign nationals?

    Mr. BLOXOM. That determination was made by then Secretary Perry. My belief is that the determination to pay the foreign nationals was meant as a humanitarian gesture to those foreign governments and the decision to pay them all equally was to provide equitable treatment and establishing that humanitarian gesture to foreign governments.

    Again, I fall back on the fact that our compensation system that we have, that is provided under statutory authority for our American survivors, we feel provides that uniform system that provides the equitable treatment among our service members.
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    Mr. PEASE. I don't disagree about equitable treatment among our service members. My concern is the obviously disparate treatment between American survivors and the survivors of foreign nationals. Surely I would assume the Secretary must have thought of the appearance of disparate treatment between foreign nationals and American citizens in making that decision and decided there was some reason that would warrant the disparate treatment.

    Can you tell us what that was?

    Mr. BLOXOM. It would be inappropriate for me to try to guess what the Secretary's thought processes were when he made that decision.

    Mr. PEASE. What—aside from what the Secretary's thinking may have been—what is the DOD's stated reason for the difference?

    Mr. BLOXOM. I thought I had made that clear in my testimony, sir. But, again, the payment to the foreign national survivors was a humanitarian gesture from the government. We do not see the inconsistency between the amount paid to the foreign survivors and the compensation that is provided for through our current system for U.S. survivors.

    Mr. PEASE. Thank you.

    I have no further questions, Mr. Chairman.

    Mr. SMITH. Thank you, Mr. Pease.
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    The gentleman from Florida, Mr. Canady, is recognized.

    Mr. CANADY. Thank you, Mr. Chairman. I want to thank all of the witnesses for your testimony.

    Ms. Bergmann, we appreciate your being here.

    This is not an easy situation to deal with because we all agree that there should be equal treatment. But as the discussion has indicated, it is a question of who you are comparing the treatment of. I guess I am not quite as optimistic as my colleagues that this would not serve as a precedent in future cases where American military personnel are the victims of friendly fire.

    I don't really think it makes a whole lot of sense to talk about the number of mistakes. If friendly fire killed somebody and that shouldn't have happened, I think quantifying the number of mistakes doesn't really get you to the bottom line point of the tragedy that has occurred.

    So it does concern me somewhat that we will 1 day, or someone will be sitting in this same room 1 day, listening to a panel of people saying, well, the Congress has already established the principle that in cases where there is loss of life due to friendly fire, compensation will be paid because they paid it pursuant to this bill. That is an argument that would have some force.

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    I also very much understand the other side of this, and that is why I think it is not an easy issue to deal with.

    In connection with this, let me ask the Captain, was any consideration given to making a payment, not to the individual foreign nationals involved, but to the government? Was that considered at all?

    Mr. BLOXOM. I am not aware of that. I would have to take that question for the record, sir.

    Mr. CANADY. I would be interested in having some response to that subsequent to the hearing, if that is possible.

    [The information referred to was not submitted.]

    Mr. CANADY. Let me say I think that whatever we do here, we need to make it very clear that any action that we take in connection with this is not because—and I have to differ with my colleague from Texas, Ms. Jackson Lee, it is not related to the number of errors involved because that can apply to any situation of friendly fire, but it is related to this disparity in the treatment of foreign nationals and American citizens involved in the same incident. I think that has to be the rationale for this.

    If you expand beyond that, then we really are opening ourselves up. I am concerned, no matter what we say here today, we would be opening ourselves up anyway.

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    I am sympathetic to the concern that this bill raises and the argument that we are treating—that we in effect would be treating foreign nationals better than Americans. So if any of you would like to respond to those random observations.

    Mr. COLLINS. Well, Congressman Canady, I understand your concern, and I understand the concern about setting a precedent.

    Congress is not setting this precedent; the Department of Defense set this precedent in this incident. The Congress is just trying to bring equity.

    As the Captain, in his comments, said, we believe providing other benefits would create inequities. Sir, the only equity to be determined here is equal treatment among the families of all victims.

    There will never be an equity measured by money that will equal the loss of a life.

    Now, having said that, in this incident, I think whatever happens here will have an effect on any decision the Department of Defense makes in the future of any future incident, but it will have no effect on this one. Only this piece of legislation will bring equity that the Department of Defense has set as a precedent in this incident.

    Mr. CANADY. All right. Well, I appreciate that, and I think that probably there is no good answer to this, and maybe the best answer is to pass the bill. But it does concern me that 1 day we will see people sitting here saying that for us to have equity, that future point, a payment must be made because other Americans were compensated for the loss of life in similar circumstances.
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    But I appreciate your leadership on this, and I think this is an issue that we should be dealing with.

    Ms. JACKSON LEE. Will the gentleman yield?

    Mr. CANADY. I don't have any time, but I will be happy to yield.

    Mr. SMITH. The gentlewoman is recognized.

    Ms. JACKSON LEE. I thank the chairman. I appreciate the comments and thoughts of the gentleman from Florida. Let me enhance, just very briefly, my comments. I know the gentleman didn't intend to misunderstand me.

    I was not relying upon the idea of what I thought was the large number of mistakes and the results of what happened to the individuals involved. I was giving to the military a balanced perspective, taking into consideration many elements. But I think the key here is the question of equity, as I stated, that we are a nation of laws, but also justice, and the balance in this legislation, why it is freestanding—and I appreciate it—is the equity question as it relates to what happened to the foreign families and what did not happen to the American families.

    I thank the gentleman for yielding.

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    Mr. SMITH. Mr. Canady, you have made a good point which I just want to refer back to, and that is the distinction between paying the survivors of these American families on the basis of payments to the families of foreign nationals, not on the basis of death by friendly fire. If we can make that distinction, then it does sound like we have a bipartisan basis to move forward with this bill.

    Mr. Collins, thank you for introducing the bill.

    Congressman Udall, thank you for being here and the others too.

    Ms. Bergmann, you testified a year ago as well, and I know none of this process has been easy for you, but it has also been important to hear your testimony. We appreciate your being here, too.

    We thank the witnesses, and we will now go on to our next bill.

    We will now consider H.R. 1745 which was introduced by our colleague, Robert Andrews.

    [The information referred to follows:]

106TH CONGRESS
    1ST SESSION
  H. R. 1745

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To amend the Immigration and Nationality Act to provide for the removal of aliens who associate with known terrorists.
     
IN THE HOUSE OF REPRESENTATIVES
MAY 11, 1999
Mr. ANDREWS introduced the following bill; which was referred to the Committee on the Judiciary
     
A BILL
To amend the Immigration and Nationality Act to provide for the removal of aliens who associate with known terrorists.
    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. REMOVAL OF ALIENS WHO ASSOCIATE WITH KNOWN TERRORISTS.
    Section 237(a)(4)(B) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(4)(B)) is amended to read as follows:

    ''(B) TERRORIST ACTIVITIES.—
    ''(i) IN GENERAL.—Any alien who has engaged, is engaged, or at any time after admission engages in terrorist activity (as defined in section 212(a)(3)(B)(iii)) is deportable.
    ''(ii) ASSOCIATION WITH KNOWN TERRORISTS.—Any alien who at any time after admission associates with an individual who the alien knows, or has reasonable ground to believe, is designated as a terrorist in the Department of State publication entitled 'Patterns of Global Terrorism' is deportable. For the purposes of the preceding sentence, an alien shall be considered to have associated with such an individual if the alien engaged in a pattern of conduct that, with respect to both the frequency and the nature of the conduct, gives rise to a reasonable suspicion that the alien knowingly aided and abetted such an individual to engage in terrorist activity (as defined in section 212(a)(3)(B)(iii)).''.
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    Mr. SMITH. Regrettably, Congressman Andrews is unable to attend today due to a death in the family. He called just yesterday, and apparently his uncle has passed away. He very much wanted to be present in person. So we are going to, without objection, include his opening statement as a part of the record.

    [The prepared statement of Mr. Andrews follows:]

PREPARED STATEMENT OF HON. ROBERT E. ANDREWS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY

    Mr. Chairman—I would like to thank the Committee for the opportunity to discuss one of the most pertinent issues affecting our nation—the growing threat of global and domestic terrorism. Events of recent years have proven that no American at home or abroad is safe from terrorist actions. The World Trade Center bombing in New York City and the attacks on U.S. Embassies in Africa have proven that we must be more vigilant in our quest to prevent terrorism.

    I have introduced H.R. 1745, a bill that would allow the Immigration and Nationalization Service to deport legal aliens who associate with known terrorists. I have heard from prosecutors and law enforcement officials from around the nation who have seen the need for this type of law in their daily fight to protect American citizens from terrorism. The current statute does not give prosecutors enough tools to rid our nation of those who, by action or inaction, protect and assist terrorists.

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    H.R. 1745 gives prosecutors these necessary tools to protect our borders, boundaries, and citizens. We cannot be timid in our fight against terrorism and our mission to protect Americans at home and around the globe. This threat requires strong action, and H.R. 1745 is one such necessary step in demonstrating that the United States will not tolerate terrorism or those who assist terrorists within our borders.

    Mr. SMITH. One of the most dangerous threats to our national security is international terrorism. As we know from events such as the World Trade Center bombing and the conspiracy to bomb the New York subway system, terrorists from abroad have targeted our country.

    At a hearing before the Senate in February 1998, the Immigration and Naturalization Service testified that 98 aliens had been removed on security and related charges between fiscal year 1995 and the first quarter of fiscal year 1998.

    The danger posed to our national security by these individuals is immense. As a result, we must ensure that our immigration laws give the government the tools it needs to deport alien terrorists.

    H.R. 1745 would make an alien deportable if the alien, after admission to the U.S., ''associates with an individual who the alien knows or has reasonable grounds to believe,'' is designated as a terrorist in the Department of State's ''Pattern of Global Terrorism.''

    The bill states that the alien, ''shall be considered to have associated,'' with the terrorist if, ''the alien engaged in a pattern of conduct that, with respect to both the frequency and the nature of the conduct, gives rise to a reasonable suspicion that the alien knowingly aided and abetted such an individual to engage in terrorist activity,'' as defined in the Immigration and Nationality Act.
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    The gentlewoman from Texas is recognized for an opening statement.

    Ms. JACKSON LEE. Thank you, Mr. Chairman.

    H.R. 1745, the bill to amend the Immigration and Nationality Act, providing for the removal of aliens who associate with known terrorists, is an important piece of legislation.

    Obviously, Mr. Chairman, I believe that we should always be concerned about our own First Amendment and right to association, but over the past years, we have recognized the importance of detailing the activities of terrorists and, as well, ensuring the safety of our American citizens.

    I do want to note that we should be careful in this legislation that we are not violating individual's rights to association or right to freedom of religion, but I think the importance of protecting our borders, boundaries and the safety of those who live and work in between in this Nation is an important element of H.R. 1745, and I am looking forward to the hearing and particularly looking forward to ways of keeping this Nation safe, but in particular, tracking terrorist activities that may result in a loss of life of Americans.

    I yield back, Mr. Chairman.

    Mr. SMITH. Thank you. Are there any other opening statements? If not, let me introduce our witnesses.
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    Mr. Michael J., is it Wildes?

    Mr. WILDES. Wildes.

    Mr. SMITH. Wildes, and Mr. Bo Cooper, Acting General Counsel, Immigration and Naturalization Service.

    Mr. Wildes, I see we are starting with you.

    Mr. WILDES. Thank you, sir. Good morning, Chairman Smith and members of the subcommittee. I am pleased to participate in this——

    Mr. SMITH. Mr. Wildes, if you will excuse me for a minute, I just want to check on protocol. In the past, although you are listed in order, we have usually had the administration witness first, and I think, if you don't mind, I think we will go to Mr. Cooper first, then go to you.

    Mr. Cooper.

STATEMENT OF BO COOPER, ACTING GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE, U.S. DEPARTMENT OF JUSTICE

    Mr. COOPER. Thank you.
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    Good morning, Chairman Smith, Congresswoman Jackson Lee, members of the subcommittee. My name is Bo Cooper. I am very grateful to have been invited to appear before you this morning and for your attention to the views of the INS on the series of proposed changes to the immigration laws.

    As you are aware, the INS has an enormously complicated task in admitting those who deserve our welcome and removing those who do not. As was noted in the opening statements, the most compelling governmental interest is the protection of the national security.

    Congress has expanded the INS's counterterrorism authority a number of times over the last decade. These laws have enhanced the INS's authority to exclude, arrest and deport aliens involved in a variety of terrorist activities and have provided for specific criminal and administrative removal provisions directly concerning alien terrorists and their supporters.

    Taken as a whole, these tools have clarified Congress' expectation that the INS must play a larger and increasingly critical role in counterterrorism activities, and the INS has worked hard to fulfill that role.

    While the Department of Justice endorses any legislation that properly facilitates its effort to identity and counterattack the efforts of terrorist organizations and those who support them, we have got to be vigilant to ensure that such legislation will be effective in practice, will meet constitutional requirements and will withstand judicial review. The Department has identified specific problems with H.R. 1745 that, in our view, would prevent it from being effective.
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    The proposed statutory provision refers to individual terrorists who are designated as terrorists in the Department of State publication ''Patterns of Global Terrorism.'' This poses two problems. First, as a practical matter, the number of individual terrorists who are referred to by name in this publication is so small that the provision will have little effect.

    Second, as a legal matter, the term ''designated'' is now a term of art under the immigration laws and refers to a process whereby the Secretary of State, in consultation with the Attorney General and the Secretary of the Treasury, formally designates terrorist organizations. No such process exists for designating individual terrorists, and so use of this term could be confusing and, if interpreted literally, could mean that because no named individual terrorists have been designated, no such terrorists exist; and the provision could be meaningless.

    The bill appears to be aimed at conduct that aids and abets terrorists. However, the second sentence in the proposal, referring to aiding and abetting, could be interpreted as illustrative rather than as an exhaustive definition of association. The bill could then be viewed as creating a deportation ground based on pure association.

    This would raise serious First Amendment concerns in light of the Supreme Court's long-standing decisions governing deportation based on aliens' associational activities with foreign subversive groups. Those decisions make clear that association that is not meaningful is not constitutionally sufficient for deportation, but that where there is meaningful association that can be identified and articulated, then deportation based on that type of association is justified.

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    The bill would be clearer if it specified that association occurs only where the aiding and abetting standard has been met.

    Moreover, while some specification of the types of association with known terrorists that can be the basis for deportation is constitutionally necessary, the specification in the current bill, which makes aiding and abetting an individual to engage in terrorist activity a deportable offense, would not clearly add to the INS's arsenal of weapons. The courts have declared that in order to establish a common-law cause of action for aiding and abetting, a plaintiff must at least demonstrate some measure of active participation and the knowing provision of substantial assistance to the principal's actions.

    If aiding and abetting were interpreted as the knowing provision of substantial assistance, then Section 237 of the INA appears already to cover the conduct which this bill addresses, by reference to Section 212, which defines ''engage in terrorist activity'' to include the knowing provision of material support to an individual terrorist or terrorist organization.

    The proposal also creates a standard of proof of ''reasonable suspicion'' for proving a deportable act. This will be difficult to reconcile with the regulatory standard for deportable offenses requiring ''clear and convincing'' evidence. As written, the bill will require that the INS prove by clear and convincing evidence that there is reasonable suspicion that the alien aided and abetted another individual to engage in terrorist activity. This could result in confusion which could cause us problems in litigating under this provision.

    In addition, the subcommittee should note the amendment makes a minor and perhaps inadvertent amendment to Section 273, as that section currently reads. In the proposed language, the adjective ''any'' is omitted from the phrase ''any terrorist activity.'' The INS is concerned that aliens opposing removal under this ground may assert that the omission of this adjective reflects Congress' intent to narrow the scope of terrorist activities that can lead to
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    deportation.

    Finally, the subcommittee should be aware that the Department is currently preparing antiterrorism legislation that would, among other things, clarify and improve the statutes definition of the terms ''terrorist activity'' and ''engage in terrorist activity.''

    Thank you very much.

    Mr. SMITH. Thank you, Mr. Cooper.

    [The prepared statement of Mr. Cooper follows:]

PREPARED STATEMENT OF BO COOPER, ACTING GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE, U.S. DEPARTMENT OF JUSTICE

    Mr. Chairman and Members of the Subcommittee, my name is Bo Cooper and I am the Acting General Counsel for the Immigration and Naturalization Service (INS). Thank you for the opportunity to appear before you today to discuss proposals to amend our immigration laws. We appreciate the Subcommittee's interest in the views of the Immigration and Naturalization Service, Department of Justice.

    You have requested our views of the following legislation:

    H.R. 1745, introduced by Congressman Andrews. The bill would amend the Immigration and Nationality Act (INA) to provide for the deportation of aliens who associate with known terrorists.
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H.R. 1745: Deportation of Aliens Who Associate with Known Terrorists

    H.R. 1745 would add a new subparagraph to section 237(a)(4)(B) of the INA, which provides for the removal from the United States of lawfully-admitted aliens who engage in terrorist activity. H.R. 1745 would expand this section to provide a ground of removal for associating with an individual whom the alien knows, or has reasonable ground to believe, is a terrorist.

    As you are aware, the INS has an enormously complicated task in admitting those who deserve our welcome and removing those who do not. The most compelling governmental interest is the protection of the national security. Congress has set forth this principle in the immigration procedures by enacting legislation precluding the entry to, and facilitating the removal from, the United States of individuals who may pose a threat to the national security. To this end, Congress has expanded the INS' counterterrorism authority through such legislation as the Immigration Act of 1990 (IMMACT 90), the Antiterrorism and Effective Death Penalty Act (AEDPA), and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). These laws have enhanced the INS' authority to exclude, arrest, and deport aliens involved in a variety of terrorist activities, and have provided for specific criminal and administrative removal provisions directly concerning alien terrorists and their supporters. Taken as a whole, these tools clarify Congress' expectation that the INS must play a larger and increasingly critical role in counterterrorism activities.

    While DOJ endorses any legislation that facilitates its efforts to identify and counterattack the efforts of terrorist organizations and those who support them, we must be vigilant to ensure that such legislation will be effective in practice and will withstand judicial review. DOJ has identified specific problems with H.R. 1745 that would prevent it from being effective.
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    The proposed statutory provision is problematic in that it refers to individual terrorists who are designated as terrorists in the Department of State publication ''Patterns of Global Terrorism.'' This raises two issues. First, the number of individual terrorists who are referred to by name in this publication is so small that the provision will have little effect. Second, the term ''designated'' is now a term of art used in section 219 of the INA, and refers to a process whereby the Secretary of State, in consultation with the Attorney General and the Secretary of the Treasury, formally designates foreign terrorist organizations. There is no such process for designating individual terrorists. Use of this term, therefore, is confusing and, if interpreted literally, means that because no named individual terrorists have been ''designated,'' no such terrorists exist, and the provision is meaningless.

    The bill appears to be aimed at conduct which aids and abets terrorists. However, the second sentence in the proposed 237(a)(4)(B)(ii) (referring to aiding and abetting) could be interpreted as illustrative rather than as an exhaustive definition of association. The bill could then be viewed as creating a deportation ground based on pure association. This would raise serious First Amendment concerns in light of the Supreme Court's long-standing First Amendment decisions governing deportation based on aliens' associational activities with foreign subversive groups. (See, e.g., Galvan v. Press, 347 U.S. 522, 528 (1954); Rowoldt v. Perfetto, 355 U.S. 115 (1957)). Those decisions make clear that association that is not ''meaningful'' is not constitutionally sufficient for deportation, but that where there is meaningful association that can be identified and articulated, then deportation based on that type of association is justified. The bill would be clearer if it specified that association occurs only where the aiding and abetting standard is met.

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    Moreover, while some specification of what types of association with known terrorists can be the basis for deportation is constitutionally necessary, the specification in the current bill—which makes ''aiding and abetting'' an individual to engage in terrorist activity a deportable offense—raises policy concerns. In the civil context, the legal term ''aiding and abetting'' has been interpreted by courts to require, among other things, a specific intent to knowingly and substantially assist the principal violation. See, e.g. Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir. 1983). A requirement that the government must prove specific intent to ''knowingly and substantially assist'' in terrorist activity runs counter to the Department's view that deportation offenses generally do not require specific intent. Additionally, courts have declared that in order to establish a common law cause of action for aiding and abetting, a plaintiff must at least demonstrate some measure of active participation and the knowing provision of substantial assistance to the principal's actions (which in this case would be engaging in terrorist activity). See, e.g. Schultz v. Rhode Island Hosp. Trust Nat'l Bank, 94 F.3d 721, 730 (1st Cir. 1996). If aiding and abetting were interpreted as the knowing provision of substantial assistance, then section 237(a)(4)(B) of the INA appears to already cover the conduct which this bill addresses, by reference to section 212(a)(3)(B)(iii). Section 212(a)(3)(B)(iii) defines ''engage in terrorist activity'' to include the knowing provision of material support to an individual terrorist or a terrorist organization.

    Further, the proposal creates a standard of proof of ''reasonable suspicion'' for proving a deportable act. This will be difficult to reconcile with the regulatory standard for deportable offenses requiring ''clear and convincing'' evidence. As written, the bill will require that the INS prove by clear and convincing evidence that there is reasonable suspicion that the alien aided and abetted another individual to engage in terrorist activity. The resulting confusion will cause problems in litigation.
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    In addition, the Subcommittee should note that the amendment makes a minor, and perhaps inadvertent, amendment to section 237(a)(4)(B) of the INA, as that section currently reads. In the proposed language, the adjective ''any'' is omitted from the phrase ''any terrorist activity.'' The INS is concerned that aliens opposing removal under this ground may assert that the omission of this adjective reflects Congress' intent that the provision only apply to the most serious of terrorist activities, such as the recent bombings of the U.S. embassies in Africa, and not lesser terrorist activities.

    Finally, the Subcommittee should be aware that the Department is currently preparing antiterrorism legislation which will, among other things, clarify and improve section 212(a)(3)(B) of the INA (the subsection that defines the terms ''terrorist activity'' and ''engage in terrorist activity''). This legislation is undergoing review within the Department, but we anticipate that it will strengthen the provision in 212(a)(3)(B)(iii) regarding the provision of material support to an individual or a terrorist organization. At the same time, this area involves difficult questions of First Amendment rights that need to be carefully evaluated in light of the government's interest in controlling immigration. The Department's proposal will address these concerns. Given the specific problems with H.R. 1745 outlined above, we recommend that the Subcommittee defer consideration of this bill until it reviews the Department's proposal.

    Mr. SMITH. Mr. Wildes.

STATEMENT OF MICHAEL J. WILDES, U.S. IMMIGRATION ATTORNEY, WILDES & WEINBERG, P.C., NEW YORK, NEW YORK
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    Mr. WILDES. Good morning, Chairman Smith and members of the subcommittee. I am pleased to participate in this distinguished panel and present you with my initial assessments of Congressman Andrews' bill regarding the deportation of aliens who associate with known terrorists.

    By way of background, I was recently elected to the city council in Englewood, New Jersey, where I reside. After spending nearly 4 years as a Special Assistant U.S. Attorney in Brooklyn, I joined the firm of Wildes & Weinberg, founded by my father, which has practiced exclusively in the field of U.S. immigration and nationality law for the past 40 years.

    Over the last years, as delineated in my written statement, I have been retained by several high-profile individuals and whistle-blowers who have sought asylum in the United States. Chief among them are a Saudi Arabian diplomat, an accused terrorist implicated in the Khobar Towers bombing in Saudi Arabia and, most recently, a Pakistani nuclear scientist. In each of these cases, I have been able to not only protect my client's interest, but in turn, these individuals have assisted U.S. law enforcement by furnishing useful information to combat terrorism and curtail nuclear weapons proliferation.

    Please don't misconstrue my testimony today or my advocacy in a way that I am not interested in the rights of aliens. I spend my professional career advocating the rights of aliens. However, today I am here to advocate the rights of the victims of terrorism.

    The rise in international terrorism against the United States, reflected in the recent bombings of the U.S. embassies in Africa, highlights the need to provide the U.S. Government with tools to effectively protect U.S. security, prosecute terrorists and send out a message that will deter further attacks and terrorist activity.
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    Congressman Andrews' proposals are aimed at targeting those who knowingly aid and abet an individual engaged in terrorist activity. It is well known that many radical organizations have established fictitious nonprofit institutions through which moneys have then been channeled to purchase weapons and fund terrorist operations.

    Terrorists must not be allowed to hide under the cloak of legitimate organizations or be able to avail their resources to facilitate terrorist activities. Having represented an alleged terrorist, I have firsthand experience in dealing with matters involving our national security. These individuals know what buttons to push in order to come to our country, and once on our shores, many bootstrap themselves onto safe, legal ground and protect themselves in ways Congress never intended or could imagine. This provision would provide a legal basis to curtail these activities.

    Congress has promulgated similar measures in the past. In another case, a pro bono matter in which I represent Pat Roush, a woman whose children were kidnapped by her husband and taken to Saudi Arabia in violation of a U.S. court's orders, we were successful through the efforts of Senator Feinstein in amending the Immigration Act to render aliens inadmissible to the United States if they support an international child abductor or provide them with material support or safe haven.

    The government clearly has an interest in prosecuting associates who aid and abet terrorists, maintaining the secrecy of highly sensitive intelligence, protecting the identity of its sources and avoiding compromising, ongoing investigations.

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    Although terrorists act with a blatant disregard for life, we as Americans must continue to distinguish ourselves as a moral compass for the world community, and in our removal of these vicious individuals and their associates, still temper our actions with due process. The system has these measures in place.

    On March 1, 1994, a Lebanese national shot over 40 rounds of ammunition into a carload of Hasidic Jewish students crossing the Brooklyn Bridge. Ari Halberstam died from a bullet wound to the brain. His mother, Devara, has written to me that the terrorists involved in the attack had used every loophole in the law to avoid deportation, even paying a $50,000 bail bond in cash from friends.

    She goes on to implore that new legal remedies must be created and implemented to protect the rights of our citizens like her son Ari.

    I believe that Congressman Andrews' proposal reflects an adequate balance between our interest in preserving an individual's due process rights and our need to protect our national security. Since the bombing of the World Trade Center, we have developed a greater appreciation for the increased magnitude of terrorist groups and their insidious methods of operation. We must now protect our citizens from those who would aid and abet terrorist activities and movements.

    I am sure that Mrs. Halberstam and the scores of other victims of terrorism and their families will be grateful to have these provisions of law, these weapons, to help combat terrorism.

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    Thank you.

    Mr. SMITH. Thank you, Mr. Wildes.

    [The prepared statement of Mr. Wildes follows:]

PREPARED STATEMENT OF MICHAEL J. WILDES, U.S. IMMIGRATION ATTORNEY, WILDES & WEINBERG, P.C., NEW YORK, NY

INTRODUCTION:

    Good morning, Chairman Smith and Members of the Subcommittee. I am pleased to participate in this panel and present you with my initial assessments of Congressman Andrews' bill regarding the deportation of aliens who associate with known terrorists.

    By way of background, I was recently elected to the City Council in Englewood, New Jersey, where I reside. After spending nearly four years as a Special Assistant U.S. Attorney with the U.S. Attorney's office in Brooklyn (where I represented the Immigration and Naturalization Service among other federal agencies), I joined my father's firm—Wildes & Weinberg, which has exclusively practiced in the field of U.S. Immigration, Consular and Nationality Law for the past forty (40) years. We receive referrals and represent some of the finest individuals and most prominent companies in the world—as they settle themselves and their personnel in our country.

    Over the last several years, I have also been retained by several high-profile individuals and whistle blowers who have sought asylum in the United States. Chief among them are a Saudi Arabian diplomat (Mohammed Al-Khilewi) who defected after walking off with incriminating evidence of international terrorism and espionage; an accused terrorist (Hani Al-Sayegh) allegedly implicated in the Khobar Towers bombing in Saudi Arabia—an atrocity in which 19 U.S. servicemen lost their lives; and most recently a Pakistani nuclear scientist (Dr. Iftikhar Khan) who sought refuge on our shores with alarming information concerning nuclear proliferation and the transfer of nuclear weaponry between Pakistan, China and Iran. I considered it a privilege to represent my government at the U.S. Attorney's office—and have in each of the cases described above—been able to not only protect my client's interests—but, in turn, these individuals have assisted U.S. law enforcement, furnishing useful information to combat terrorism and curtail nuclear proliferation (without violating the attorney/client privilege).
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CURRENT NEED FOR LEGISLATION:

    The rise in international terrorism against the United States, reflected in the recent bombings of U.S. embassies in Africa, highlights the need to provide the U.S. government with the tools to effectively protect U.S. security, prosecute terrorists, and send out a message that will deter further attacks and terrorist activity.

    The State Department released a report last month indicating that there were 273 international terrorist attacks during 1998, a marked drop from the 304 attacks reported in 1997. While the total number of persons killed or wounded in terrorist attacks was the highest yet (741 dead and 5,952 individuals who suffered injury)—no acts of international terrorism occurred in the U.S. The decrease in international terrorism was attributed to increasing success in diplomacy, sophisticated counterterrorism initiatives, improved political conditions in troubled states, and greater law enforcement, which has successfully dismantled terrorist organizations.

    Since the time of the founding fathers, Congress has enacted legislation to protect America from aliens who pose a security threat, beginning with the Alien and Sedition Laws of 1798. These laws authorized the President to deport ''alien enemies''—resident aliens whose countries of citizenship were at war with the United States—and other aliens commonly referred to as ''alien friends'' whom the President judged to be dangerous to the peace and safety of the United States.

    The Department of State has designated seven (7) countries as ''State sponsors of terrorism'' [Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria], and acknowledged that many terrorist organizations still operate there independently, are highly mobile, and possess sophisticated technology. Dale Watson, Chief of the International Terrorism Section of the FBI, testified before the Senate Judiciary Committee on February 24, 1998, indicating that terrorists regularly employ the Internet and have a growing organizational presence in the United States requiring a stronger investigative and prosecutorial response. He added that significant numbers of Iranian students (419 in 1997) are admitted yearly to U.S. institutions—many of whom provide ongoing intelligence and technical expertise to the government of Iran.
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CURRENT LAW ENFORCEMENT/INS TOOLS:

    Reflecting the growing awareness that numerous terrorist organizations operate and raise millions of dollars in the U.S. each year through ostensibly legitimate front organizations, in 1996 Congress passed the Antiterrorism and Effective Death Penalty Act (hereinafter ''AEDPA''), which, along with numerous other tools for combating terrorism, provides for a special court for deporting alien terrorists. The main purpose of the special removal court is to streamline the process of deportation when the mere presence of a suspected alien terrorist in the U.S. is considered dangerous and disclosure of sensitive information and sources under normal immigration procedures would pose a risk to U.S. national security.

    Since its enactment, the AEDPA has allowed for the deportation of immigrants based on secret evidence and imposes criminal and immigration sanctions against anyone who provides support, even humanitarian aid, to a foreign group labeled by the U.S. State Department as ''terrorist.'' While the AEDPA is a significant legal tool and deterrent—it will take time for it to work.

    The use of confidential information against aliens concerning national security matters has also been approved by the United States Supreme Court, and authorized by regulation or statute since the 1950's. Congress has expressly approved the use of classified information in recent statutes, and several Department of Justice regulations allow the Immigration and Naturalization Service (INS) to present relevant classified information, or secret evidence, in deportation proceedings.

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CONGRESSMAN ANDREWS' PROPOSED LEGISLATION

    Congressman Andrews' proposals are aimed at targeting those who ''knowingly aided and abetted'' an individual engaged in terrorist activity. It is well known that many radical organizations have established fictitious non-profit institutions through which monies have then been channeled to purchase weapons and fund terrorist operations.

    Terrorists must not be allowed to hide under the cloak of legitimate organizations or be able to avail their resources to facilitate terrorist activities. My own experience, having represented an alleged terrorist, gave me first-hand experience in dealing with matters involving our national security. These individuals know what buttons to push in order to come to our country. Once they land on our shores, many are able to bootstrap themselves onto safe legal ground and protect themselves in ways Congress never intended or could imagine. Ostensibly people can enter the United States on various visas and escape scrutiny.

    Terrorists may now have settled anywhere in our country. Many terrorist organizations have, in fact, created smaller cells of operations and have associates who collaborate with one another in order to provide refuge and, in fact, share their resources. Some foreign dignitaries and diplomats stationed in the New York and Washington, DC area support terrorists, have provided diplomatic cover to known terrorists, and might themselves be considered ''associates of terrorists.'' In another matter, we learned of diplomats who were able to smuggle in weapons and make-shift bombs, through their diplomatic pouches. This provision would provide a legal nexus to curtail these activities.

    Moreover, Congress has promulgated similar measures in the past. In another case, a pro-bono matter in which I represent Patricia Roush—a woman whose children were kidnapped by her husband and taken to Saudi Arabia (after she was given full custody by American Courts)—we were successful through the efforts of Senator Feinstein in passing H.R. 4328 (passed 10/9/98) in amending the Immigration and Nationality Act rendering aliens inadmissible to the United States if they support an international child abductor, provide him or her with material support or safe haven, etc.
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CONSTITUTIONAL ISSUES

    The Courts will continue to delineate (through case law) their standards of ''reasonable suspicion.'' Provided law enforcement is required to prove to a Court an actual nexus between the alien's conduct and the knowing aiding and abetting of terrorist activity—I believe the provision will withstand judicial/constitutional review. Moreover, Congress has provided a number of procedural safeguards in order to assure due process for the alien, such as the right to counsel, the right to present evidence, the right to confront witnesses, the right to receive a summary of classified evidence, and the right to appeal orders of removal.

    Civil libertarians, in their efforts to declassify source information, have claimed that alien terrorist removal court proceedings are sufficiently similar to criminal trial proceedings and feel that the aliens should receive similar due process procedural safeguards. Other civil liberties groups are calling for the government to prove its case against the suspected alien terrorist by ''clear and convincing evidence''—a much higher standard of proof. However, since deportation is legally considered by the Courts to be a much lesser deprivation of liberty than incarceration, and historically has been considered civil rather than criminal, in nature—the same level of procedural safeguards might not be constitutionally required. This is consistent with Congress' historic plenary power vis-à-vis aliens and the Supreme Court 's concept of a sliding scale of rights wherein citizens are afforded more privileges than aliens.

    The government clearly has an interest in prosecuting associates who aid and abet terrorists, maintaining the secrecy of highly sensitive intelligence, protecting the identity of its sources and avoiding compromising ongoing investigations. One can foresee situations in which alien terrorists or their associates could obtain classified information detailing what the U.S. knows about their organizations simply by purposely inviting deportation proceedings by the special removal court.
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    Critics have also claimed that these matters have singled-out Muslims. The overwhelming majority of Muslim immigrants to the U.S. are law abiding, and the critics should be assured that the INS and the U.S. government have no policy of singling-out Muslims for deportation. In fact, the great majority of those deported by the INS are not Muslims. Although the 25 aliens against whom classified evidence is being used in deportation proceedings are Muslims, this simply reflects that the most active global terrorist organizations against the United States in recent years have been militant Muslim organizations, such as Hamas, Islamic Jihad, and groups supported by billionaire terrorist Osama bin Laden.

CONCLUSION

    Although terrorists act with a blatant disregard for life, we, as Americans, must continue to distinguish ourselves as a moral compass for the world community, and in our removal of these vicious individuals and their associates, still temper our actions with democracy and due process.

    I believe that Congressman Andrews' proposal, the current alien terrorist removal court statute and other statutes allowing the use of classified information against suspected alien terrorists—reflect an adequate balance between our interest in preserving an individual's due process rights and our need to protect our national security. Since the bombing of the World Trade Center, we have developed a greater appreciation for the increasing magnitude of terrorist groups, and their insidious methods of operation. We must now protect our citizens from those who would aid and abet their activities and movements. I am confident that the Courts will strike the proper balance in construing these laws, and am grateful that we have these provisions of law—these weapons—to help combat terrorism.
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    Mr. SMITH. Let me address my first questions to you, and you pointed out at the very beginning of your testimony, you have good credibility to be here because usually you are on the other side, and that got my attention.

    Mr. Cooper mentioned several constitutional concerns. It is my understanding that the bill has been changed to address at least some of these constitutional concerns, and I wonder if you would point that out and elaborate on that aspect of your testimony and, also, if you would address the constitutional concerns of Mr. Cooper.

    Mr. WILDES. Well, again, law enforcement would have to prove, under Mr. Andrews' proposal, an actual nexus between an alien's conduct and the knowing, aiding and abetting of terrorist activity. So I do believe that in the practical world of terrorism there will be a nexus: There are paper trails, there are ways to show an actual pattern and course of conduct under the statute that would pass constitutional muster.

    The system itself has many procedural safeguards to protect due-process rights of aliens in deportation proceedings. Although secret evidence has been codified since 1996, it has been used for the last 50 years in immigration proceedings. Yet, in those proceedings, there are safeguards such as the right to counsel, the right to present evidence, the right for an alien to confront witnesses, to receive a summary of the classified evidence, to appeal orders of removal.

    Secret evidence is also held in open trial so they are given many bites at the constitutional apple.
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    Historically, deportation has been legally considered by the courts to be a lesser deprivation of liberty than incarceration, and there is a lesser threshold of safeguards and privileges that aliens are entitled to.

    The policy that this distinguished panel has to embrace is whether or not the citizens of the United States should bear the risk to our national security for these individuals.

    Mr. SMITH. Okay.

    Mr. Wildes, why are the current grounds for deportation, based upon the phrase ''engaged in terrorist activity,'' not sufficient to accomplish our ends?

    Mr. WILDES. The current standards that you referred to refer to the grounds of excludability for people who have not yet arrived in the United States. These individuals have diminished rights, whereas the proposed amendment by Congressman Andrews would cover the removal of those who are already on our shores, individuals who have greater attachments.

    In addition, providing material support and the other standards that are delineated in the statute do not cover all other actions or inactions. Facilitating by giving a safe haven or not alerting the authorities is a perfect example of instances that would not be carried.

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    Mr. SMITH. Thank you, Mr. Wildes.

    Mr. Cooper, as I recall, the latest figures we have for individuals who were deported as terrorists go to the first quarter of 1998. What was the total number of individuals who were deported in all of 1998 as potential terrorists?

    Mr. COOPER. Chairman Smith, I don't have that information with me now, but I will be pleased to provide it promptly for the record.

    Mr. SMITH. Do you have any sense of the numbers at all, whether it was close 100, 50, 150?

    Mr. COOPER. I understand that Mr. Wildes has those figures.

    Mr. WILDES. I have the figures for——

    Mr. SMITH. Mr. Wildes.

    Mr. WILDES. The figure that I have was that 38 illegal aliens were removed under the terrorist provisions in 1996, 27 in 1997. I don't believe the figures have yet been made available for 1998.

    Mr. SMITH. Mr. Cooper, we will all look forward to getting those figures from you as quickly as possible.

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    One more question, Mr. Cooper, and that is, in the 1996 bill, we have an alien terrorist removal court to remove terrorists from the United States, based upon evidence. To my knowledge, that has not been used. Is there any good reason why it has not been used?

    Mr. COOPER. The Department has not yet identified a case that it felt would be appropriate for the ATRC at this point. Among the requirements is that the AG be able to certify that proceedings outside of the Title V context would not be available.

    I need to first state that the INS absolutely shares the sponsor's and Mr. Wildes' concern for the victims of terrorism and vigilance, also possible vigilance against terrorism under the immigration laws, and we have put great efforts into proceeding outside the Title V context against terrorists. We have engaged vigorously with a joint terrorism task force with the FBI and other law enforcement agencies on a local basis, et cetera.

    Mr. SMITH. Mr. Cooper, since you said that you agreed with the goals of the bill and the goals as described in Mr. Wildes' testimony, even considering your constitutional questions, could we count on your support for the bill; and then the constitutional concerns will no doubt be raised at some point regardless, but at least would you all support the bill during the process?

    Mr. COOPER. I think that one minor change could probably eliminate the constitutional concerns. Those concerns arise if the second sentence of the second subsection is possibly an illustration of what ''association'' means. If that were made clear, that it defined what ''association'' meant, then I think the constitutional concerns would go.

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    Mr. SMITH. And then you would support the bill? I don't want to put words in your mouth, but would you support the bill if we made that change, if Representative Andrews made that change in the bill?

    Mr. COOPER. I am not sure if it would necessarily be appropriate because of the other concern I tried to raise in my testimony, that we don't believe that the aiding and abetting language would necessarily add to what we have available to us.

    Mr. SMITH. I understand, but I don't see why you would oppose the bill.

    Mr. COOPER. It just seems as if it might offer a legislative change that would simply supply redundancy to——

    Mr. SMITH. At worst, it might be neutral. At best, it might do some good.

    Mr. BERMAN. Would the gentleman yield?

    Mr. SMITH. I would be happy to yield to the gentleman from California.

    Mr. BERMAN. But you raised issues about standard, reasonable suspicion, which have nothing to do with the association issue and which have nothing to do with the fact that the bill, if it cures that problem, would be a redundancy; and so I am not quite sure why correcting the association problem would remove your concerns about the bill.
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    Mr. COOPER. No. Correcting the association problem would remove the constitutional concerns.

    We also raised, as you noted, the redundancy problem and the problem of the standard that would be articulated in a confusing way, that that departs from the clear and convincing evidence standard.

    Mr. SMITH. So your objection goes beyond constitutional, beyond to the standard is questionable? We will have to work with Representative Andrews to see if we can satisfy you and him at the same time.

    Thank you, Mr. Cooper.

    Ms. Jackson Lee is recognized.

    Ms. JACKSON LEE. Thank you very much, Mr. Chairman. I would like to offer into the record a summary done by the Congressional Research Service on H.R. 1745 and ask the chairman to allow me to submit this.

    Mr. SMITH. Without objection, we will make that a part of the record.

    Ms. JACKSON LEE. Thank you. I would like to pick up on both the chairman's line of questioning, and Mr. Berman's as well, and if you would, let's pursue again the two points of opposition, Mr. Cooper—maybe more the issue of the clear and convincing, the standard and then the association point and the redundancy point with respect to existing law.
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    Would you just go over that for me in terms of the context of the Department's opposition?

    Mr. COOPER. Yes, I would be pleased to.

    The immigration law now in Section 237, where it sets out the grounds of removability, refers to Section 212, the inadmissibility grounds, which define ''engage in terrorist activity'' to include the knowing provision of material support to an individual terrorist or terrorist organization.

    That seems to us to encompass the same sorts of activities that aiding and abetting would encompass, but in a way that actually is more readily demonstrated by the government, and that seems to us an effective provision for dealing with the kinds of conduct that the bill would be aimed at.

    Ms. JACKSON LEE. And then the standard, you mentioned ''clear and convincing''?

    Mr. COOPER. That is right.

    Ms. JACKSON LEE. And in what context are you making that point?

    Mr. COOPER. In the context of a removal proceeding for someone who has been admitted to the United States.
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    Ms. JACKSON LEE. And under this legislation, how would the Department of Justice operate in terms of seeking the deportation if this bill was in place?

    Mr. COOPER. Then we would be required to show by clear and convincing evidence that there is a reasonable suspicion that the alien had aided and abetted another individual to engage in terrorist activity, which itself has some confusing aspects to it, the ''engage in terrorist activity'' as it now exists in the definition; and our concern is that that would just be an unwieldy instruction to adjudicators, and that it is much simpler and more straightforward and fully available to the INS as a tool in its current form.

    Ms. JACKSON LEE. Well, I am certainly sensitive, in light of what this Nation has experienced over the past couple of years, to Representative Andrews' intent, and I think you would be as well, that we have to be very concerned about the potential association of individuals with terrorists but, most importantly, the results of those activities.

    On the constitutional question, I know there have been a number of cases domestically, such as the NAACP cases, issues that were during the civil rights movement, of association and all kinds of people claimed as terrorists.

    Do you see, however, if we could respond to your concerns the value of a freestanding bill? Might you see any value in that, inasmuch as there is such great concern with terrorist activities over the last couple of years?

    Mr. COOPER. I still think the bill, as it exists now, would pose the problems that we have outlined and in addition to those that we have discussed before. As I mentioned, there is deletion of the word ''any,'' which might suggest a narrowing on the part of Congress on the kinds of terrorist activity that would be covered.
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    Ms. JACKSON LEE. I appreciate that.

    Mr. Wildes, how would you respond to Mr. Cooper's assertion, and is this bill too broad a net that would include and draw in innocent individuals who, by chance, because of their religious beliefs, the mosques that they are at, the church that they are at, the parish they are at, may be considered associating with someone who happened to be sitting in the pew next to them or on the seat next to them in the pew?

    Mr. WILDES. My experience, again, is based on my having dealt with an alleged terrorist and some of these interesting individuals. My inclination would be to drop a larger net, taking in more illicit or illegal activity.

    The FBI, in June 1998, seized $1.4 million in cash and property from a literacy institute that held itself out to be translating sacred Islamic texts. This is by no means a statute that is being directed against any religion or the practice of any association in that regard, but is deemed to be focusing on taking away the friends, the cash line and the conduits.

    Sometimes we can't get the terrorists. The statutes are set up in such a way that they principally apply to the person in chief. We are talking about cutting off the electricity.

    Ms. JACKSON LEE. Do you see any constitutional problems yourself, having been a lawyer who has defended—been on the defense side? I assume you have had to raise constitutional issues because of the broad net that we have here.
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    Mr. WILDES. Sure. I am concerned and I am pleased that the Immigration Service is going to the extent that it is to make sure that those issues will make constitutional muster, but I would hope, again, that we look at the big picture here, and that is, that many of these people do come to our shores and many people, including diplomats and others, have been able to bootstrap them in ways that Congress never intended, and we have no recourse against these individuals.

    Ms. JACKSON LEE. So you would be open to fixing the problems presented by Mr. Cooper and making the bill better? You think the basic intent is a good intent?

    Mr. WILDES. Correct.

    Ms. JACKSON LEE. Thank you, Mr. Chairman.

    Mr. SMITH. Thank you, Ms. Jackson Lee.

    The gentleman from California, Mr. Berman, is recognized.

    Mr. BERMAN. Thank you very much, Mr. Chairman.

    I am totally confused by what is being advocated here, and I would like, first of all, in response to the chairman's question, you indicated that the grounds cited were grounds for excludability but not for deportability. That is not a correct answer, as far as I understand.
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    It is both a ground for exclusion and for deportation, and I think the record should correct that.

    But let's just go through the INS's questions here, and I would like to hear the answer. Any alien who at anytime after admission associates with an individual whom the alien knows or has reasonable ground to believe is designated as a terrorist in the Department of State publication entitled ''Patterns of Global Terrorism'' is deportable.

    Does the Department of State include individuals in its publication ''Patterns of Global Terrorism,'' and does it designate individuals?

    Mr. WILDES. I believe Mr. Cooper could speak on behalf of the government.

    Mr. BERMAN. You wrote the bill or you are supporting the bill. Mr. Cooper didn't write the bill. Does the Department of State——

    Mr. WILDES. It does not refer, to my recollection, to individuals. It refers to organizations that have met certain standards.

    Mr. BERMAN. But the bill refers to individuals.

    Mr. WILDES. Correct, and their affiliation with that organization.
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    Mr. BERMAN. It doesn't say that. Any alien who at anytime after admission associates with an individual whom the alien knows or has reasonable ground to believe is designated as a terrorist in the Department of State publication entitled ''Patterns of Global Terrorism'' is deportable.

    The Department of State publication does not designate individuals as terrorists; it designates organizations as terrorist organizations, as I understand it. Am I correct, Mr. Cooper?

    Mr. COOPER. Yes. This publication is separate from the designation process for organizations. That designation process is even a more complicated one that is engaged in by the Secretary of State in conjunction with other Cabinet-level officers and results in a regulatory designation of organizations. This publication, ''Patterns of Global Terrorism,'' actually results from a less formal process and only names a very few individuals, and that is why we think this might actually be an inappropriately narrowing provision in the bill.

    Mr. BERMAN. Because it does not—you think this bill might limit your ability to get people who are aiding and abetting terrorists and terrorist acts because this would circumscribe the people whom you might conclude are terrorists?

    Mr. COOPER. To those people who are mentioned in the State Department publication.

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    Mr. BERMAN. Second question: Is the term ''association,'' is the definition here designed to be illustrative or exclusive, the definition of an alien shall be considered to have associated with such an individual if—Mr. Cooper raises the concern that this may only be illustrative of one example of an association. Is it the intent——

    Mr. WILDES. I think the language, again, is general enough and the nexus has to be proven again that his actions or his association aided and abetted terrorist activity. I think you have to read the end part of the proposed bill, keeping in mind, again, it says for the purpose of the preceding sentence, and then they bring that in, that qualifying the first sentence with regard to actual consultation.

    Mr. BERMAN. Then why do we talk about association? Why don't we talk about the conduct as aiding and abetting an individual to engage in terrorist activity?

    Mr. WILDES. Because I think we are trying to go after the friends of the terrorists here, not just the terrorists themselves and the association——

    Mr. BERMAN. Are you telling us that you could justify a deportation based on a belief that X was a friend of a terrorist?

    Mr. WILDES. No, that is not what I am saying.

    Mr. BERMAN. So we are not trying to go after friends of a terrorist; we are trying to go after people who have some relationship, some nexus with the conduct of the terrorist?
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    Mr. WILDES. Correct. We are going after the friends of the terrorists who have aided and abetted their terrorist activity.

    Mr. BERMAN. They don't even have to be a friend of terrorist.

    Mr. WILDES. Correct.

    Mr. SMITH. Thank you, Mr. Berman.

    Ms. JACKSON LEE. I just want to read something. Should I ask recognition?

    Mr. SMITH. Do you want to read it or put it in the record?

    Ms. JACKSON LEE. Just one sentence.

    Mr. SMITH. Okay. The gentlewoman from Texas is recognized.

    Ms. JACKSON LEE. I would have asked Mr. Berman to yield, but let me just put this one sentence dated—this date is May 13th, 1999, from Congressional Research Service, and this is what I was speaking of, regarding trying to fix some issues. Because of the potential breadth and vagueness of the word ''association'' in H.R. 1745 would, if enacted as introduced, likely lead the courts to confront directly an important First Amendment issue, and I just want to have that sentence placed in the record.
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    I thank the gentleman.

    Mr. SMITH. Gentleman from California is recognized.

    Mr. BERMAN. One question. I had a little more time. Mr. Cooper, is there any standard in the Immigration and Nationality Act for reasonable suspicion as a basis for deportation?

    Mr. COOPER. There are circumstances under which a reasonable basis to consider that someone is a threat to the national security can work as a bar to relief. So that is another enforcement tool we have. For example, if someone asserts, say, a request for asylum, we can, by showing reasonable grounds to regard them as a danger to national security, oppose that request for asylum. We would not use that standard to prove that they were deportable on the terrorist ground.

    Mr. BERMAN. So, if this bill were to pass, you could not deport a terrorist on the reasonable suspicion that the person was a terrorist, but you could deport the associate on the reasonable suspicion that this person had aided and abetted the terrorist?

    Mr. COOPER. If that is, in fact, what ''clear and convincing evidence of a reasonable suspicion'' means. But part of our concern is that, yeah, that muddies up the standard to be applied.

    And I would like to just add one last point. To the extent that this bill is aimed at those people who are fund-raisers, who engage in activities that create the mechanism or the apparatus for operation of those who commit the more immediate terrorist acts, I need to reiterate that the INS's focus on that as an enforcement problem has never flagged, and we commonly, in a small—it is a relatively small number of cases to our entire portfolio, obviously, but we commonly engage our greatest vigor in efforts to identify and remove persons who are involved in that sort of activity, but within the framework that exists.
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    Mr. SMITH. Are there any other questions, Mr. Berman?

    Mr. BERMAN. No, but the statute itself says preparation or planning of a terrorist activity, gathering of information on potential targets, providing of any type of material support, safe house, transportation, communications, funds, false documentation, identifications, weapons, explosives, training, soliciting of funds.

    Mr. SMITH. If you will yield just for a minute, is it your point that the current statute covers aiding and abetting?

    Mr. BERMAN. I can't conceive of what the conduct is that would not be included within that section that——

    Mr. SMITH. Let me give Mr. Wildes a chance to respond before we move on to the next hearing.

    Mr. WILDES. Again, I am here today because of the experiences that I have had. I can tell you, for example, with a diplomat that I represented, there was ample testimony where he had indicated through documents that embassies had, in fact, given safe haven to terrorist fugitives and that there were people that traveled, through diplomatic pouches, with all kinds of freedoms.

    Mr. BERMAN. We don't deport diplomats. We suspend their privileges.
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    Mr. WILDES. Right, but these diplomats usually don't work alone, and they do have associates and these associates might be able to be removed.

    A diplomat, you are right, Mr. Congressman, could not be removed unless the Secretary of State considered them persona non grata, and they would escape any criminal prosecution because of their diplomatic immunity.

    But what about their associates?

    Mr. BERMAN. What was the associate doing?

    Mr. WILDES. The associate was the recipient of these materials. The diplomat was the courier and the associate would take these materials and then pass it along to other people that were engaged in terrorist activity.

    Mr. SMITH. Are there any instances, Mr. Wildes, where the aiding and abetting would include activities that are not currently mentioned in INA?

    Mr. WILDES. Well, again, the most general one that I came in contact with would be the mere fact of not alerting the authorities to a threat of potential attack, that that would not be covered the way I read the statute. If somebody were made privy to a terrorist act, right now they would be within their rights not to bring that to the authorities.

    Mr. SMITH. Okay. Thank you, Mr. Wildes.
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    Thank you, Mr. Berman.

    Mr. Cooper, thank you. I know you are staying for the next panel, and we will move to that hearing now. Thank you all.

    Mr. SMITH. We will now go to our next panel and consider H.R. 238, introduced by our Judiciary Committee colleague, Jim Rogan.

    [The information referred to follows:]

106TH CONGRESS
    1ST SESSION
  H. R. 238

To amend section 274 of the Immigration and Nationality Act to impose mandatory minimum sentences, and increase certain sentences, for bringing in and harboring certain aliens and to amend title 18, United States Code, to provide enhanced penalties for persons committing such offenses while armed.
     
IN THE HOUSE OF REPRESENTATIVES
JANUARY 6, 1999
Mr. ROGAN introduced the following bill; which was referred to the Committee on the Judiciary
     
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A BILL
To amend section 274 of the Immigration and Nationality Act to impose mandatory minimum sentences, and increase certain sentences, for bringing in and harboring certain aliens and to amend title 18, United States Code, to provide enhanced penalties for persons committing such offenses while armed.
    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. MANDATORY MINIMUM SENTENCES FOR BRINGING IN AND HARBORING CERTAIN ALIENS.
    Section 274(a)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1324(a)(1)(B)) is amended to read as follows:

    ''(B)(i) Except as provided in clauses (ii) and (iii), a person who violates subparagraph (A) shall—
    ''(I) in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain, be fined under title 18, United States Code, imprisoned not less than 2 years nor more than 10 years, or both;
    ''(II) in the case of a violation of subparagraph (A)(ii), (iii), (iv), or (v)(II) be fined under title 18, United States Code, imprisoned not less than 1 year nor more than 5 years, or both;

    ''(III) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) during and in relation to which the person causes serious bodily injury (as defined in section 1365 of title 18, United States Code) to, or places in jeopardy the life of, any person, be fined under title 18, United States Code, imprisoned not less than 5 years nor more than 25 years, or both; and
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    ''(IV) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) resulting in the death of any person, be punished by death or imprisoned for any term of years or for life (but not less than 20 years), fined under title 18, United States Code, or both.

    ''(ii) In the case of a violation of subparagraph (A) after 1 prior conviction for any other violation of subparagraph (A) has become final, the minimum term of imprisonment shall be not less than two times the minimum term specified in clause (i).

    ''(iii) In the case of a violation of subparagraph (A) after 2 or more prior convictions for any other violations of subparagraph (A) have become final, the minimum term of imprisonment shall be not less than five times the minimum term specified in clause (i).''.

SEC. 2. ENHANCED PENALTIES FOR PERSONS COMMITTING OFFENSES WHILE ARMED.
    Section 924(c)(1) of title 18, United States Code, is amended—
    (1) in subparagraph (A)—
    (A) by inserting after ''device)'' the following: ''or any violation of section 274(a)(1)(A) of the Immigration and Nationality Act''; and
    (B) by striking ''or drug trafficking crime—'' and inserting '', drug trafficking crime, or violation of section 274(a)(1)(A) of the Immigration and Nationality Act—''; and
    (2) in subparagraph (D)(ii), by striking ''or drug trafficking crime'' and inserting '', drug trafficking crime, or violation of section 274(a)(1)(A) of the Immigration and Nationality Act''.
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    Mr. SMITH. In recent years Congress greatly increased INS resources for additional Border Patrol agents, special agents, and detention and deportation officers. This enforcement buildup made it more difficult for illegal aliens to enter the United States, which in turn led to increased reliance on professional alien smugglers. Alien smugglers have formed worldwide organized crime networks similar to those used by narco-traffickers.

    Smuggled aliens often endure inhumane treatment at the hands of smugglers and employers. For example, recent media reports describe Mexican alien smugglers who abandon aliens in the desert, without food or water, to avoid apprehension.

    Chinese alien smugglers charge exorbitant fees, as much as $50,000 per alien, that the aliens must pay through long periods of indentured servitude in sweatshop conditions. Smugglers often coerce indebted aliens into drug trafficking, prostitution, and other illegal activities. Aliens who fail to cooperate with smugglers often suffer severe penalties.

    H.R. 238 establishes mandatory minimum sentences for alien smuggling crimes, increases sentences for crimes causing serious bodily injury or threatening loss of life, and increases sentences for repeat offenders. It enhances penalties for persons using or carrying firearms while committing alien smuggling crimes. Congressman Rogan's bill recognizes that the organized cruelty of alien smuggling requires stiff penalties in response.

    The gentlewoman from Texas is recognized for an opening statement.

    Ms. JACKSON LEE. Thank you very much, Mr. Chairman.
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    H.R. 238 is a bill that enhances penalties for certain immigration violations and calls for mandatory minimum sentences for harboring or transporting an alien, an activity known as alien smuggling. Most Members of Congress are against alien smuggling because they seek to bring people into this country for commercial gain, and these people are often exploited as they are forced to work like slaves to pay off their debt that they owe for being smuggled into the country; and I appreciate the legislation offered by Mr. Rogan.

    I do express concern with enhanced mandatory minimum sentences, albeit I do understand the impact and the urgency of trying to stem the tide of alien smuggling. I hope to listen to the testimony this morning.

    I thank Mr. Rogan for his presence.

    I would offer just a concern, generally speaking, that as I listen to the testimony, I will be particularly interested in whether this legislation deals only with alien smuggling that results—with the commercial impact to it; or whether there is an impact where, unfortunately, a mother is trying to get her son in, or vice versa, because, of course, those are human issues that I would be very much hesitant, if you will, to enforce such a penalty against such a tragic set of circumstances.

    So I would look forward to that, and only offer as well—although I don't think it pertains particularly to your legislation—that we do know mandatory sentences in many instances impact particular minority groups heavier than others in this country as it relates to crime laws.
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    But I welcome you, Mr. Rogan, and I look forward to hearing your presentation.

    Thank you very much. I yield back.

    Mr. SMITH. Thank you, Ms. Jackson Lee.

    Let me introduce the two members of our panel. They are the Honorable James Rogan, Member of Congress, and Mr. Bo Cooper, acting General Counsel, Immigration and Naturalization Service.

    Congressman Rogan, we welcome you and look forward to your testimony.

STATEMENT OF HON. JAMES E. ROGAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. ROGAN. Mr. Chairman, thank you. I thank you and I thank my colleague, the gentlewoman from Texas.

    Mr. Chairman, I did have a prepared statement. However, rather than reading it into the record, if I may have unanimous consent to simply insert it into the record, I would like to take my few minutes and address the comments that were made by my colleague from Texas.

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    Mr. SMITH. Without objection, your opening statement will be made a part of the record, and we welcome your additional comments.

    Mr. ROGAN. Thank you, Mr. Chairman.

    First, I note that the gentlewoman is absolutely correct—by the way, I am not a fan, per se, of mandatory minimum sentences for a number of reasons. However, the concern that led me to approach it in this fashion is, when I began to review some of the sentencing impositions for these offenses, I was finding that alien smugglers were being sentenced to as little as 6 months in prison, and if they were armed, to as little as 18 months in prison. So that was the impetus behind the idea of having mandatory minimum sentences.

    Let me share with you what led me to introduce this legislation during my first term in Congress. In 1994 I was elected to the California State Assembly and made my first trip to the border. In 1994 there was an awful lot of anti-illegal immigration sentiment in California; I suspect in Texas, also. Our general fund was being severely impacted by service expenses at a time when we were in a recession.

    I had a somewhat myopic view of the subject of immigrants coming across the border illegally. At first blush, I was viewing it simply as an economic issue. When I went down and toured the border with the Border Patrol, I had a real eye-opening experience.

    I began to find that oftentimes the people crossing the border illegally were becoming victims. They were being victimized by these armed professionals that were supposedly smuggling them across the border, but really bringing them out to the desert and beating them, raping them, robbing them, and sometimes killing them.
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    The Border Patrol guard that was escorting me drove me through a bunch of dark, sandy, dune areas and told me ''we find bodies out here all the time. It doesn't even make the newspapers anymore; it happens on a regular basis.''

    That is something that stuck with me, and I never forgot that. So when I came to Congress, this is one of the first bills that I wanted to work on.

    I had the chance to read the preliminary copy of Mr. Cooper's testimony, and I think he raises a couple of valid concerns. It was not the intention of this legislation to impose harsh, stiff, mandatory minimum sentences upon some family member who was engaged in bringing an individual across the border for purposes of family reunification. It was my understanding, and is my understanding, that in Section 212 of the Code there is a special exception governing admissibility for family reunification.

    If this bill, as it moves down the road, needs to be worked on to make sure that is clarified, I am more than happy to work with Mr. Cooper's office. Whatever value the legislative intent history being recorded here today is worth, I state that such was not the intention of the author.

    And so, Mr. Chairman, I believe that that addresses the initial concerns. My prepared remarks dealing with statistics and so forth will be available to the committee, and I thank the chairman for calling this hearing.

    Mr. SMITH. Thank you, Mr. Rogan.
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    [The prepared statement of Mr. Rogan follows:]

PREPARED STATEMENT OF HON. JAMES E. ROGAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

    Once a cottage industry, the smuggling business now generates between $7 and $8 billion per year. Today, these one-time small operations are full-blown cartels. In the last five years the number of aliens smuggled into this country has skyrocketed from under 30,000 to well over 200,000 each year.

    Nowhere is this more true than in the desert Southwest. Throughout California, Arizona, New Mexico and Texas, desert highways have become major arteries for illegal alien smugglers. Each day, as Border Patrol officers police empty miles of desert, they scan the landscape for corpses, not people. Too often, an alien who paid thousands of dollars for passage into the country was instead left for dead. Many are raped, robbed and beaten. These are not isolated incidents. Despite a string of indictments and threats, most of the armed criminals remain at large to this day.

    A report by the Cox News Service just six weeks ago indicated that historically smugglers faced little or no prison time if caught—even if they were armed while committing the crime. It also reported that lawyers spent more time preparing their cases than criminals spent behind bars. The words of one INS official underscore the need for federal action. He said, ''to the smuggler, the risks are minimal and the profit potential is high.''

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    A recent study by the Southern California Association of Governments indicated that in many cases, alien smugglers were let off with only a slap on the wrist. To a sophisticated criminal in a multi-million dollar crime racket, a $10,000 fine—a commonly reported sentence—is like paying a $20 dollar parking ticket.

    Mr. Chairman, my legislation, the Alien Smuggler Enforcement Act, will significantly raise the penalty for those convicted of trafficking in human lives while armed. This legislation will put the crime of trafficking in illegal aliens on the same par with trafficking in drugs. With the number of smuggled aliens continuing to rise we must act to send the message that the United States will not tolerate those who prey on aliens to perpetrate this violent trade.

    I thank the Chairman for including this measure in this hearing, and I thank my colleagues for their consideration.

    Mr. SMITH. Mr. Cooper

STATEMENT OF BO COOPER, ACTING GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE, U.S. DEPARTMENT OF JUSTICE

    Mr. COOPER. Thank you, Mr. Chairman.

    While the INS generally supports the need to increase sentences for alien smuggling offenses, it does not support H.R. 238 as presently drafted.
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    In our view, the proposed amendments to the INA may be overly broad and inappropriate. Rather than creating additional statutory mandatory minimums for all alien smuggling offenses, we suggest an increase in sentences under the sentencing guidelines or a legislative directive to the U.S. Sentencing Commission to revise their existing sentencing guidelines to increase sentences for alien smuggling offenses. This approach may be preferable to rigid mandatory minimums since the guidelines can better distinguish between aggravating and mitigating circumstances.

    For example, the guidelines can better account for situations where a mandatory minimum may not be appropriate, such as where a person is smuggling close family members, as opposed to situations where the smuggling is for the purpose of commercial gain.

    We recognize that INA Section 274(a)(2) already provides mandatory minimum sentences for certain offenses, those involving intent or reason to believe that the alien brought into the United States will commit a felony, and those done for commercial advantage or for private gain. If any new mandatory minimum sentences relating to alien smuggling are enacted, we would urge the Congress to seek to harmonize the penalties in Section 274(a)(1) and (a)(2) in a manner that focuses on only aggravated smuggling offenses.

    In addition, the Department wishes to bring to the attention of the subcommittee the Supreme Court's recent decision in Jones v. United States, which suggests the possible constitutional impediment in criminal statutes that contain graduated penalty provisions. Essentially, the issue is whether, under the due process clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, a factor other than a prior conviction that increases the maximum penalty for an offense must be charged in the indictment and proven before a jury, beyond a reasonable doubt.
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    Although it is our view that the Constitution does not, in fact, require that the factors that increase the maximum statutory penalty be treated as an element of the offense, Congress may wish to structure any proposed aggravating felonies as elements to the offense rather than penalty enhancements to avoid future litigation to instruct prosecutors about how to go about such cases.

    If, on the other hand, Congress wishes to structure the proposed amendment strictly as a penalty enhancement, it should certainly at least make its intention clear in this regard.

    We also note that the proposed amendment removes the current language in Section 274(a)(1)(B) which applies penalties for Section 274(a)(1)(A), alien smuggling offenses, to each alien in respect to whom a violation occurs. However, Section 274(a)(2) continues to make each alien the unit of prosecution for alien smuggling defined in that subsection, and this raises the question that would probably need to be reconciled if the bill were to move forward.

    Finally, we believe that the threat that armed smugglers pose to INS enforcement officers deserves the new offense and accompanying penalty provisions prescribed in Section 2 of the bill. The INS has become more successful in detecting and deterring and dismantling alien smuggling organizations with the help of recently acquired legislative authorities, including wire intercept, proprietary business and expanded asset forfeiture authorities.

    However, while the INS increases the pressure on alien smugglers, they are becoming more brazen and dangerous. Consequently, they are willing to use deadly force to an increased degree to accomplish their illegal objectives.
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    Thank you. I would be pleased to answer any questions.

    Mr. SMITH. Thank you, Mr. Cooper.

    [The prepared statement of Mr. Cooper follows:]

PREPARED STATEMENT OF BO COOPER, ACTING GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE, U.S. DEPARTMENT OF JUSTICE

    Mr. Chairman and Members of the Subcommittee, my name is Bo Cooper and I am the Acting General Counsel for the Immigration and Naturalization Service (INS). Thank you for the opportunity to appear before you today to discuss proposals to amend our immigration laws. We appreciate the Subcommittee's interest in the views of the Immigration and Naturalization Service, Department of Justice.

    You have requested our views of the following legislation:

    H.R. 238, introduced by Congressman Rogan. This bill would amend section 274 of the INA to impose mandatory minimum sentences, and increase certain sentences, for bringing in and harboring certain aliens. It would also amend title 18, United States Code, to provide enhanced penalties for persons committing such offenses while armed.

H.R. 238: Enhanced Sentences for Alien Smugglers

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    H.R. 238, introduced by Congressman Rogan, would increase the penalties for alien smuggling contained in section 274 of the Immigration and Nationality Act. The bill would impose mandatory minimum sentences, increase certain maximum sentences, and impose enhanced penalties for repeat offenders. In addition, the bill would amend title 18 of the United States Code to provide a new offense, with mandatory minimum sentences, for committing certain smuggling offenses while armed.

    While the INS generally supports a need to increase sentences for alien smuggling offenses, it does not support H.R. 238 as presently drafted. In our view, the proposed amendments to INA section 274(a)(1)(B) are overly broad and inappropriate. Rather than creating additional statutory mandatory minimums for all alien smuggling offenses, we suggest an increase in sentences under the sentencing guidelines or a legislative directive to the U.S. Sentencing Commission to revise their existing sentencing guidelines to increase sentences for alien smuggling offenses. This approach is preferred over rigid mandatory minimums since the guidelines can better distinguish between aggravating and mitigating circumstances. For example, the guidelines can better account for situations where a mandatory minimum may not be appropriate, such as where a person is smuggling close family members, as opposed to situations where the smuggling is for the purpose of commercial gain.

    We recognize that INA section 274(a)(2) already provides mandatory minimum sentences for certain offenses. However, the mandatory minimum sentences in that provision are limited to aggravated offenses—those involving intent or reason to believe that the alien brought into the United States will commit a felony, and those done for commercial advantage or for private financial gain. If any new mandatory minimum sentences relating to alien smuggling are enacted, Congress should seek to harmonize the penalties in sections 274(a)(1) and (a)(2) in a manner that focuses on only aggravated smuggling offenses.
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    In addition, DOJ wishes to bring to the attention of the subcommittee the Supreme Court's recent decision in Jones v. United States, 119 S. Ct 1215 (Mar. 24, 1999). That decision suggests a possible constitutional impediment in criminal statutes that contain graduated penalty provisions. Essentially, the issue is whether, under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, a factor (other than a prior conviction) that increases the maximum penalty for an offense must be charged in the indictment and proven before a jury beyond a reasonable doubt. Although it is our view that the Constitution does not require that factors which increase the maximum statutory penalty be treated as an element of the offense, Congress may wish to structure any proposed aggravating factors as elements of the offense rather than penalty enhancements to avoid future litigation. If, however, Congress wishes to structure the proposed amendment strictly as a penalty enhancement, it should make its intention clear in this regard.

    We also note that the proposed amendment removes the current language in section 274(a)(1)(B) which applies penalties for section 274(a)(1)(A) alien smuggling offenses to ''each alien in respect to whom a violation occurs.'' However, section 274(a)(2) continues to make each alien the unit of prosecution for alien smuggling offenses defined in that subsection. This situation raises the question of whether the mandatory minimum three-year sentences imposed on a per alien basis for section 274(a)(2) violations should continue when done for commercial advantage or private financial gain.

    We believe the threat that armed smugglers pose to INS enforcement officers deserves the new offense, and accompanying penalty provisions, prescribed in section 2 of H.R. 238. The INS has become more successful in detecting, deterring and dismantling alien smuggling organizations with the help of recently acquired legislative authorities, including wire intercept, business proprietary and expanded asset forfeiture authority. However, while INS increases the pressure on alien smugglers, they are becoming more desperate, brazen and dangerous. Consequently, they are willing to use deadly force to an increased degree to accomplish their illegal objectives.
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    Mr. SMITH. Mr. Rogan, let me ask you to respond to a quote from Mr. Cooper's testimony. It reads as follows: ''Rather than creating additional statutory mandatory minimums for all alien smuggling offenses, we suggest an increase in sentences under the sentencing guidelines or a legislative directive to the U.S. Sentencing Commission to revise their existing sentencing guidelines to increase sentences for alien smuggling offenses.''

    Why is that not sufficient? Why do you feel that you need to take the course that you have in your bill?

    Mr. ROGAN. At the end of the day, Mr. Chairman, maybe that would be sufficient, but I would like to discuss that further with those on the Sentencing Commission. My preliminary concern in drafting this legislation, as I said in my opening remarks, is that whatever guidelines are in play right now sometimes lead to limited sentences, particularly for armed smugglers, and that was the impetus behind having a mandatory minimum.

    There are already, obviously, maximums set forth in the Code. What this bill does is essentially amend the statute to provide for minimums in these aggravated circumstances.

    Mr. SMITH. Mr. Rogan, is part of the rationale for your bill the fact that the current penalties for alien smuggling are lower than those for other offenses like drug trafficking, and you just want to make sure that they are equalized to some extent?

    Mr. ROGAN. That is correct, particularly for armed individuals.
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    Mr. SMITH. You mentioned in your prepared statement how severe the problem was, at least in that part of the State where you have greatest concern. How widespread is the alien smuggling problem outside of the region that you have a special interest in?

    Mr. ROGAN. Mr. Chairman, obviously, representing southern California, we have an immediate border problem that impacts our local economy, but this is a situation that is certainly not unique between the California-Mexican border or, for that matter, the Texas-Mexican border. Alien smuggling is coming from all four corners of the United States; it is not just coming from Mexico. It is coming from the Middle East. It is coming from Asia. It is coming from all parts of the world.

    The newspaper accounts just in the last few months are replete with specific examples. I have a few of them here if the committee wants me to read them into the record, but it may be sufficient just to say that the accounts are so widespread and so well-known that it may not bear reading it into the record. I will leave that up to the Chair's discretion.

    Mr. SMITH. Without objection, we will put all that in the record if you have a prepared statement in that regard.

    Mr. Rogan, I don't have any other questions, but we will wait for your guidance after you have spoken to Mr. Cooper to see what, if anything, we need to do to the bill. It strikes me as being a very good idea.

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    Thank you, Mr. Rogan, and the gentlewoman from Texas is recognized.

    Ms. JACKSON LEE. I thank you very much.

    Mr. Rogan, I thank you for responding to my questions and concerns, and now I am going to ask Mr. Cooper to respond to what I think has been very instructive.

    How does the INS respond to the fact of the low sentencing, if you will, for something that all of us find abhorrent, the idea of alien smuggling—the loss of life, the brutality—when you can get as little as 6 months in sentencing? How are you responding to that, and how are you finding your present laws sufficient to inhibit or discourage that kind of egregious behavior through the alien smuggling industry, if you will?

    Mr. COOPER. We are in agreement with Mr. Rogan that the sentences that are being dispensed on average to people who are convicted as alien smugglers are inappropriately low and that increased sentences could help in our antismuggling efforts.

    I think it was just 2 months today that you met with my colleague, Lou Nardy, from the INS specifically to discuss further a lot of the successes that the INS has been able to enjoy in its antismuggling efforts over the past couple of years, largely as a result of the new authorities from the 1996 legislation. And we agree with Congressman Rogan that improving the ability of the criminal system to match penalty to conviction in this circumstance may further increase our successes.

    We propose only that there might be a better way to go about achieving that goal, and we would be pleased to work with Representative Rogan and with the subcommittee to achieve that.
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    Ms. JACKSON LEE. Can you instruct us, again, on your better way?

    Mr. COOPER. Through the sentencing guidelines that offer more flexibility.

    Ms. JACKSON LEE. Mr. Rogan, you mentioned in particular—something that caught my attention as well in your remarks is the emphasis on armed alien smugglers. Is there any way—I understand that you are looking forward to meeting with the Sentencing Commission, and I assume INS, on these issues that we have raised, but is there any way that, without refreshing my memory, that the legislation could be narrowed or heavily focused on the armed aspect of it in terms of the increased mandatory sentencing?

    Mr. ROGAN. I wouldn't want to mislead my colleague. I still think that there is a significant need to have legislation on the books to apply against those who are performing this conduct for commercial reasons.

    The mere mention of the fact that somebody has a gun does not necessarily mean that they are not dangerous, particularly when they get a very vulnerable person out alone in the desert. And oftentimes, even when they are not attacking them with a weapon, they are leaving them for dead after robbing them or taking their belongings away; and so I wouldn't want to minimize the significance of that.

    It obviously much more egregious when an individual is performing this type of offense while armed.
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    Ms. JACKSON LEE. Do you want to respond, Mr. Cooper?

    Mr. COOPER. I think, again, we are in basic agreement. Under the sentencing guidelines, the basic approach is to tack certain demerits, if you will, depending on the factors involved in the crime; and the fact that commercial gain was the goal of the smuggling effort is a way in which the guidelines seek to match penalty with crime. Enhancing that does seem to us to be an agreeable goal.

    Ms. JACKSON LEE. Well, I am going to join the chairman in saying, Mr. Rogan, we are going to wait on your further instructions and comment after having further discussions with both the INS and the Sentencing Commission.

    I would personally like to work with you to have a clarity and clarification that we are not having with such a broad net that we get in families who are attempting to reunite, even if they are not doing it properly. I think that would be a tragedy, and so I would look to make sure that there was clarification in the legislation.

    With that, unless Mr. Rogan has a comment, Mr. Chairman, I have no further questions.

    Mr. ROGAN. Mr. Chairman, I thank both the Chair and my colleague.

    I want to thank Mr. Cooper. It sounds to me, from reading his prepared testimony and listening to his comments, that we are on board as far as the essential elements of this. It is just a question of how we go about it and what is the best way to implement it; but I will be delighted to work with my colleagues and also with Mr. Cooper's office so that we can harmonize these issues.
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    Mr. SMITH. Thank you, Congressman Rogan.

    Thank you, Mr. Cooper.

    Mr. SMITH. We will now consider H.R. 945, introduced by our colleague, Congressman Underwood.

    [The information referred to follows:]

106TH CONGRESS
    1ST SESSION
  H. R. 945
To deny to aliens the opportunity to apply for asylum in Guam.
     
IN THE HOUSE OF REPRESENTATIVES
MARCH 2, 1999
Mr. UNDERWOOD introduced the following bill; which was referred to the Committee on the Judiciary
     
A BILL
To deny to aliens the opportunity to apply for asylum in Guam.
    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. INABILITY OF ALIENS LANDING IN GUAM TO APPLY THERE FOR ASYLUM.
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    (a) IN GENERAL.—Notwithstanding sections 208 and 235(b) of the Immigration and Nationality Act (8 U.S.C. 1158 and 1225(b)), or any other provision of law, no alien (as defined in section 101(a) of such Act (8 U.S.C. 1101(a)) may apply for asylum in Guam, and no claim for asylum may be pursued through an interview or other proceeding taking place in Guam. The preceding sentence applies irrespective of an alien's status and whether the alien is physically present in Guam or arrives in Guam (whether or not at a designated port of arrival), and includes an alien who is brought to Guam after having been interdicted in international or United States waters.

    (b) DETENTION OF ALIENS PENDING TRANSPORT TO ANOTHER PORT OF ENTRY.—
    (1) IN GENERAL.—In the case of an alien described in paragraph (2), the alien shall be arrested and detained on a warrant issued by the Attorney General pending transport by the Attorney General from Guam to another place designated by the Attorney General for purposes of further processing under the Immigration and Nationality Act. Such transport shall occur not later than 30 days after the date on which the alien is deemed to be an applicant for admission. Notwithstanding section 236(a) of the Immigration and Nationality Act (8 U.S.C. 1226(a)), the Attorney General may not release the alien pending such transport.

    (2) ALIENS DESCRIBED.—An alien described in this paragraph is an alien who—
    (A) is present or arriving in Guam;
    (B) is seeking admission to the United States; and
    (C) otherwise satisfies the requirements for referral for an interview with an asylum officer pursuant to section 235(b)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(B)) or is otherwise authorized, and seeking, to establish eligibility for asylum under section 208 of such Act.
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    (c) REIMBURSEMENT OF LOCAL COSTS.—The Attorney General shall enter into a contractual arrangement with the Government of Guam which provides for full and complete compensation to Guam for any expense incurred by Guam with respect to the detention of any alien pursuant to this Act.

    Mr. SMITH. The territory of Guam is suffering from a large and growing influx of illegal aliens, most of them brought by alien smugglers from China's Fujian Province. The smugglers evade the Coast Guard patrol boats, and once the aliens arrive in Guam, many evade apprehension by the INS. Even those who are apprehended and detained place a substantial fiscal burden on the Government of Guam.

    Many of these illegal aliens apply for asylum in the United States, thus causing expensive and prolonged legal proceedings.

    While asylum proceedings are pending, the INS may release illegal aliens or even transport them to the U.S. mainland and release them there. As the proceedings drag on, the Chinese Government becomes more reluctant to accept the return of their nationals.

    Abuse of asylum serves the alien smugglers and illegal aliens. If it becomes clear that smuggling to Guam is the first step to illegal immigration to the United States, smuggling may increase dramatically and Guam may face a major crisis.

    H.R. 945 would prevent aliens from applying for asylum in Guam. Aliens in Guam seeking admission and asylum would have to be transported to another location in the United States within 30 days. Finally, the INS would have to compensate the Government of Guam fully for alien detention costs.
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    The gentlewoman from Texas is recognized for her opening statement.

    Ms. JACKSON LEE. Thank you very much. I am delighted to see my colleague, Mr. Underwood, and I thank him for the opportunity that we had to discuss, I think, a very important piece of legislation. We have had a discussion.

    Mr. Underwood has brought this bill forward because Guam is experiencing a terrible problem with alien smugglers from China being smuggled in, and I might emphasize that I believe there is certainly a great hardship on those being smuggled in, as well as on the jurisdiction of Guam.

    I raised earlier with Mr. Underwood—and I want to thank him for his receptiveness concerning my assessment—that the bill as currently written does not yet allow for actual persons who do have a credible fear of persecution. No one should be left out from claiming a real fear and seeking asylum, and perhaps many of those escaping fear are from China.

    It is also of concern that the government has been forced to foot the bill for the detention of this large influx of aliens and why the INS is not paying for it. If, in fact, the 1996 law authorized an expedited removal system, then why isn't it being implemented in Guam? I look forward to hearing from the INS general counsel on these matters and anxiously await a solution.

    I certainly think, with all of the good work Mr. Underwood has committed to this, it is important to work with him to draft inclusive and balanced legislation that assists him in the great concern that he is now expressing before us. I look forward to hearing the presentation.
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    Thank you, Mr. Chairman.

    Mr. SMITH. Thank you, Ms. Jackson Lee.

    Let me introduce our witnesses today. They are the Honorable Robert A. Underwood, Member of Congress; Captain Anthony Tangeman, Chief Officer of Law Enforcement, U.S. Coast Guard; and Mr. Bo Cooper, Acting General Counsel, Immigration and Naturalization Service. We welcome our colleague, Mr. Underwood, and look forward to hearing your comments.

STATEMENT OF HON. ROBERT A. UNDERWOOD, A DELEGATE TO CONGRESS FROM THE TERRITORY OF GUAM

    Mr. UNDERWOOD. Thank you very much, Mr. Chairman and Madam Ranking Member. I appreciate the kind words and the opportunity to testify on a very important piece of legislation for the people of Guam.

    At the outset, I want to make clear what my intentions are regarding the immigration crisis that the people of Guam are facing. I want the U.S. Government to send a strong message to the criminal syndicates in the People's Republic of China that the exploitation of human cargo, particularly from Fujian Province, is inhumane and won't be tolerated.

    Secondly, I want the U.S. Government to reevaluate its immigration policies as it applies to Guam in order to stop such human rights abuses from occurring.

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    Mr. Chairman, you have already outlined some of the situations regarding the flow of illegal immigrants into Guam. This year alone we have had over 1,000 come by vessel over open ocean; that takes sometimes around 10 days to get to Guam. Under current estimates, we will have as many as 3,000, if the rate continues, by the end of this year. This is a dramatic increase over last year's number of 600, and previous to that, previous to 1998, it was fairly negligible.

    There is a very real concern for the victims of the smuggling operations. The smuggled Chinese nationals are forced to pay exorbitant amounts of money, between 10- to 30,000 in order to be smuggled into the U.S. The hundreds of smuggled Chinese are shipped in leaky, decrepit fishing boats, barely seaworthy for the trip. There is a lack of food, they are subjected to unsanitary conditions while traveling, and are sometimes subjected to physical abuse by smugglers during the journey.

    The smuggled immigrants arrive on Guam malnourished, diseased, dehydrated and frequently beaten.

    The main beneficiary from the smuggling operations are ''snakeheads,'' organized criminal syndicates in the PRC. They exploit immigration laws and the poor economic conditions inside the PRC in an operation which nets them, according to some estimates, over $3 billion a year.

    The snakehead groups have an organizational structure resembling that of a pyramid. At the top are individuals garnering the majority of the profit from the fees charged to immigrants wishing to be smuggled. As the pyramid widens, those involved are merely associates who do not know the full picture of the operation, nor do they know their ultimate employers for the smuggling operation. Snakeheads bribe corrupt officials in the PRC to turn the other way as they ferry their human cargo to Guam.
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    Neither local nor Federal agencies ever envisioned that Guam would become the target of choice for PRC nationals. The recent surge has depleted INS's financial resources on Guam and has forced the Government of Guam to incur detention expenses at our overcrowded local correctional facility at a cost of $50,000 a day for the current number of alien detainees.

    The Government of Guam has spent $3 million for detention-related costs to date, without reimbursement from the INS, through April 1999. Projected costs through the remainder of the fiscal year for local detention are 7.5 million, and these do not include local law enforcement costs from the Guam Police Department, Guam Customs and Quarantine Agency, public safety costs from the Guam Fire Department, port security costs and public health costs.

    Illegal immigration into the United States is a Federal responsibility. Because of Guam's proximity to Asia, it is incumbent upon Federal agencies to assist the Government of Guam in combating this serious problem. Guam is only 212 square miles, with a population of 150,000. Any significant increase in the immigrant population on the island has immediate social and financial repercussions because our own local economy has been strained by the Asian economic crisis, and we do not have alternative resources available for noncriminal immigrants, that are available on the U.S. mainland.

    The dire situation on Guam is a result of a number of factors: Guam's proximity to Asia; the insistence by Federal policymakers that a single Federal immigration policy makes sense for an offshore area like Guam, which lies some 9,000 miles away from Washington D.C.; the exploitation of asylum protection afforded by the Immigration and Nationality Act; and the tenacity of criminal organizations with legal and economic incentives for their unlawful activities.
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    In the short term, we need to ensure that the Government of Guam is reimbursed for the detention of the undocumented immigrants. In the long term, we need to remove the incentives for criminal activities and ensure that the INS on Guam has adequate funds to deal with the ever-increasing number of illegal immigrants.

    I have introduced H.R. 945, which addresses a number of factors related to the smuggling operations of these crime syndicates. First, it prohibits immigrants from applying for asylum on Guam. This measure is necessary to stem the motivation for the smuggling of immigrants.

    Secondly, it specifies that immigrants be shipped or deported out of Guam within 30 days.

    Third, it stipulates that the Government of Guam should be compensated for funds spent on the detention of immigrants.

    While I understand the concerns that human rights organizations may have about H.R. 945, I also want to impress upon them that nothing is a greater violation of human rights than the current alien immigration smuggling practices. The immigrants are placed in great danger as they travel to the U.S. in leaky boats. They are abused as they are smuggled, and abused and placed into a form of indentured servitude once they successfully enter the U.S.

    As a result of the gravity of the crisis which Guam is facing, the White House has been coordinating an interagency task force to address this matter. While the task force has focused on the need to reimburse Guam, as well as to increase enforcement activities by the U.S. Coast Guard, the INS and other Federal agencies, I remain concerned that the inadequate attention has been given to the underlying need for policy changes.
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    I request that all INS inspection fees, which is a large sum of money collected on Guam, could have been reverted back to INS on Guam to assist in INS-related activities. Second, Federal policymakers need to support changes to the Immigration and National Act as it applies to Guam.

    In addition to addressing the political asylum process in my bill, Governor Carl Gutierrez, whose testimony I ask be entered into the record——

    Mr. SMITH. And without objection it will be——

    Mr. UNDERWOOD [continuing]. As well as a letter from resident representative Juan Balbaka of the Northern Marianas, who has a similar concern.

    Mr. SMITH. Without objection, that will also be a part of the record.

    [The information referred to follows:]

PREPARED STATEMENT OF CARL T.C. GUTIERREZ, GOVERNOR OF GUAM

    Mr. Chairman and Members of the Committee:

    Thank you for this opportunity to comment on H.R. 945, a bill introduced by Guam's distinguished delegate, Mr. Underwood, to deny aliens the opportunity to apply for asylum in Guam. Congressman Underwood has been working closely with the Government of Guam on this important issue and we appreciate his efforts to bring this matter of national significance to the attention of the Members of Congress and this committee.
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    Let me state up front that I support this legislation. It is a first step in stopping the flow of illegal aliens to Guam who are seeking asylum. This is a difficult issue for us—Guam is well known for accommodating the Vietnamese refugees in 1975 and the Kurdish refugees in 1996. But, in the case of illegal aliens brought to Guam by a transnational criminal syndicate, the message must be that Guam will not be a platform for an international criminal organization whose goal is to deliver people to the fifty states.

    In the past six months, over 650 illegal aliens from mainland China have illegally entered Guam. In the previous two years thousands more may have entered and escaped detection by the Immigration and Naturalization Service (INS). Information from the INS indicates that in 1996, 1997 and 1998, almost 2,500 asylum applications were mailed to the INS from Guam.

    These asylum requests by mail represent persons who—for whatever reasons—have not been interdicted, detained and processed in person. It is fair to say, Mr. Chairman and Members, that the border at Guam has been breached. It has been breached in a massive way—the 650 illegal aliens in our small island would be the per capita equivalent of over 56,000 illegal aliens in Florida. And it has been breached in a covert way—the 2,500 asylum requests represent a pipeline of human cargo that has occurred without INS detection.

    We currently have over 450 illegal aliens in our detention facilities and over 120 have been brought to the mainland by the INS, and released after processing. We are concerned with the threat to the public health due to the presence of tuberculosis, hepatitis and other communicable diseases among the aliens. And we are concerned about the threat to public safety due to the illegal immigrants' deliberately destroying their identification papers enroute to Guam and their affiliation with the criminal syndicate.
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    Moreover, the Government of Guam has had to dedicate law enforcement resources to beef up the inadequate federal INS response, thereby increasing local government costs for what is a federal responsibility. It is not for lack of money that the federal response has been inadequate—INS collects over $7 million annually in user fees on Guam. However, regrettably, the INS has traditionally spent less than $3 million on its Guam operations. Clearly that is an inadequate response.

    Guam's unreimbursed costs—which we hope the committee would assist us in collecting from INS—at present are approximately $3.5 million and increasing. These costs do not include the cost of detaining interdicted aliens who are being held in the U.S. Commonwealth of the Northern Mariana Islands, which is a separate U.S. immigration area. Nor do our unreimbursed costs reflect the costs of a new INS presence and greatly enhanced aviation and maritime presence by the U.S. Coast Guard which has been in place for less than a month.

    As long as Guam is a point of entry into the United States we will be a draw for the illegal aliens and the criminal syndicate that is orchestrating this influx. Under this circumstance we can expect the problem to get worse. There will be no end in sight. It is time to turn off the welcome sign for illegal aliens. If we could do this by local legislation, it would have been done yesterday. But, since the immigration laws are federal laws, we need Congress to respond to this crisis and to remove the incentive that draws illegal aliens to our shores. If in fact an alien has a valid case for asylum, H.R. 945 provides a mechanism for further processing of that claim.

    I am informed that there may be concerns expressed by the Department of Justice regarding H.R. 945. If the committee concludes that simply removing Guam from the INA's provisions on asylum is constitutionally questionable or raises serious concerns with respect to international law, then removing Guam from the U.S. immigration area should be given serious consideration as a viable alternative. Since the people of Guam have for over a decade asked to be outside the U.S. immigration area, and since the costs to the U.S. Government for this option would be nothing compared to the cost of maintaining an increased maritime and aviation presence at a U.S. immigration border on Guam, your serious consideration of this option would not only be responsive to the people of Guam but would also be cost-effective for the federal government.
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    Let me assure you that Guam's proposal for local immigration control does include maintaining the current U.S. labor standards. We have no desire nor need to compromise U.S. labor standards which we already meet, and to ensure that the labor issue does not cloud the discussion on immigration, we are amenable to statutory language that would reiterate this policy.

    It may be helpful for the committee to note that there is a model of federal-local joint law enforcement which is illustrative of the immigration cooperation we seek. Guam is outside the U.S. Customs area, and Guam currently enforces its own customs zone. The Government of Guam works closely and cooperatively with U.S. Customs to ensure that goods transiting Guam to the U.S. are in full compliance with U.S. Customs laws and regulations, while maintaining the integrity of our island's customs area. This is the type of joint cooperative law enforcement that we believe would be most effective in solving the immigration crisis to our mutual benefit. The heart of this arrangement—separate and mutually supportive jurisdictions—can be replicated if Guam is removed from the U.S. immigration area.

    Mr. Chairman, Guam is bearing the brunt of a federal law and federal policy towards asylees that we are neither prepared nor willing to bear any longer. Guam is not asking to dictate federal policy, we are asking for relief from the disproportionate effects of that policy on our community.

    Already our small island the size of the District of Columbia gets more illegal immigrants than 20 other states and territories. Immigration issues are emotional enough and immigration debates are intense enough without the added octane of the effects of illegal immigration encouraged and manipulated by a sophisticated international criminal syndicate.
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    I would hope that this crisis and the interest in Mr. Underwood's bill among the committee Members would serve as a useful starting point to discuss the total ramifications of federal immigration policy on Guam. This is a discussion that is long overdue between Guam and the Congress. This is an issue where many misconceptions must be corrected. I am prepared to work with this committee and the Congress on a comprehensive solution to Guam's immigration issues. We can start with H.R. 945. Thank you for your time and attention to this crisis.

    Mr. UNDERWOOD. Thank you, Mr. Chairman. Governor Gutierrez has proposed that Guam be moved entirely outside of the U.S. immigration area. This is a popular step on Guam and one that has been widely discussed on Guam for a number of years, but with which we have hit many roadblocks with the administration.

    What is needed by the Federal Government is further discussion on how U.S. immigration laws should be applied to a distant territory of the United States which is at the frontier of political and economic turmoil for billions of human beings.

    We must decide how best to make this work in a way which is consistent with our national ideals, but which does not corrupt those very ideals by criminal activity and is sensitive to the economic and demographic conditions of Guam.

    With that, I conclude my testimony. I know that Captain Tangeman is up next. I want to relay my statement of support for the exemplary effort that the Coast Guard has done under very trying conditions.
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    [The prepared statement of Mr. Underwood follows:]

PREPARED STATEMENT OF HON. ROBERT A. UNDERWOOD, A DELEGATE TO CONGRESS FROM THE TERRITORY OF GUAM

    Mr. Chairman, I appreciate your providing me and the Government of Guam the opportunity to speak about H.R. 945, my legislation which reexamines the applicability of the Immigration and Nationality Act's asylum provisions to Guam.

    At the outset, I want to make clear what my intentions are on the immigration crisis Guam is facing. That is, I want the U.S. government to send a strong message to the criminal syndicates in the People's Republic of China (PRC) that the exploitation of human cargo, particularly from Fujian Province, to Guam is inhumane and will not be tolerated. Second, I want the U.S. government to reevaluate its immigration policies as it applies to Guam to stop such human rights abuses from occurring.

    Mr. Chairman, as background, Guam is facing an immigration problem of crisis proportions which has led to a dramatic need for federal expenditures and the utilization of federal assets. To date, there have been over 1,000 undocumented immigrants from the PRC apprehended on Guam or off of the island's shores since January of this year. This is a large amount, especially since during all of 1998, only 600 undocumented immigrants from the PRC were apprehended. With calmer ocean currents during the summer, we expect the number of immigrants attempting to travel to Guam to increase by 700 to 800 per month. Currently, there are some 700 immigrants detained on Guam and over 300 housed in the Commonwealth of the Northern Marianas Islands, a U.S. territory north of Guam which does not fall under the Immigration and Nationality Act.
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    There is a very real concern for the victims of the smuggling operations. The smuggled Chinese nationals are forced to pay exorbitant amounts of money, between $10,000 to $30,000, in order to be smuggled into the United States. The hundreds of smuggled Chinese are shipped in leaky, decrepit fishing boats barely seaworthy for the trip in the open ocean . There is a lack of food, they are subjected to unsanitary conditions while traveling, and they are sometimes subjected to physical abuse by the smugglers during the journey. The smuggled immigrants arrive on Guam malnourished, diseased, dehydrated and sometimes beaten.

    The main beneficiary from the smuggling operations are the ''snakeheads,'' organized crime syndicates in the PRC. Snakeheads exploit U.S. immigration laws and the poor economic conditions inside the PRC, an operation which nets them some $3.1 billion dollars a year.(see footnote 1) The snakehead groups have an organizational structure resembling that of a pyramid. At the top are individuals garnering the majority of the profit from the fees charged to immigrants wishing to be smuggled. As the pyramid widens, those involved are merely associates who do not know the full picture of the operation, nor do they know their ultimate employers for the smuggling operation. Snakeheads bribe corrupt local officials in the PRC to turn the other way as they ferry their human cargo to Guam. Collecting fees from those smuggled can take an ugly and violent turn. For example, some of the immigrants smuggled to Guam have been threatened by smugglers and their guns. In addition, undocumented immigrants on Guam are unwilling to talk about the smugglers for fear of the snakeheads retaliating against their family members still in the PRC. Should the undocumented aliens succeed in traveling to the United States and its territories, they are subjected to a life of indentured servitude in sweatshops and other such operations.

    Neither local nor federal agencies envisioned that Guam would become the ''target'' of choice for PRC nationals. The recent surge has depleted Immigration and Naturalization Service (INS) financial resources on Guam and has forced the Government of Guam to incur detention expenses at our overcrowded local correctional facility at a cost of $50,000 per day for the current number of alien detainees. The Government of Guam has spent $3 million for detention-related costs, without reimbursement from the Immigration and Naturalization Service, through April 1999. Projected costs through FY 1999 for local detention are $7.5 million. These costs do not include local law enforcement costs from the Guam Police Department and Guam Customs and Quarantine Agency, public safety costs from the Guam Fire Department, port security costs from the Port Authority of Guam, public health costs from the Guam Department of Public Health, and environmental costs from the Guam Environmental Protection Agency. Reimbursement and projected costs for these services are $1.7 million. The total costs expected to be spent from the Government of Guam, should the INS and other federal agencies fail to intervene, are $12.2 million for FY 1999.
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    Illegal immigration into the United States is a federal responsibility. Because of Guam's proximity to Asia, it is incumbent upon federal agencies to assist the Government of Guam in combating this serious problem. Guam is only 212 square miles in size with a population of 150,000. Any significant increase in the immigrant population on the island has significant social and financial repercussions because our financial resources have been strained by the Asian economic crisis and we do not have alternative resources available for non-criminal immigrants that are available on the U.S. mainland (i.e. immigrant social services) to supplement federal resources.

    The dire situation on Guam is a result of a number of factors: Guam's proximity to Asia; the insistence by federal policy makers that a single federal immigration policy makes sense for off-shore insular areas like Guam which lie some 9,000 miles away from Washington, D.C.; the exploitation of asylum protection afforded by the Immigration and Nationality Act; and the tenacity of criminal organizations with legal and economic incentives for their unlawful activities. In the short term, we need to ensure that the Government of Guam is reimbursed for the detention of the undocumented immigrants. In the long term, we need to remove the incentives for criminal activities and ensure that the Immigration and Naturalization Service on Guam has adequate funds to deal with the ever increasing numbers of illegal immigrants.

    I have introduced H.R. 945 which addresses a number of factors related to the smuggling operations of Chinese crime syndicates. First, it prohibits immigrants from applying for asylum on Guam. This measure is necessary to stem the motivation for the smuggling of immigrants. Second, it specifies that the immigrants be shipped or deported out of Guam within 30 days. Third, it stipulates that the Government of Guam should be compensated for funds spent on the detention of immigrants.
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    While I understand the concerns that human rights organizations may have about H.R. 945, I also impress upon them that to do nothing is a greater violation of human rights. The immigrants are placed in grave danger as they travel to the United States in leaky, unsanitary boats. They are abused as they are smuggled and abused after they successfully enter the United States.

    As a result of the gravity of the crisis which Guam is facing, the White House has been coordinating an interagency task force to address this matter. While the task force has focused on the need to reimburse Guam as well as to increase enforcement activities by the U.S. Coast Guard, the INS and other federal agencies, I remain concerned that inadequate attention has been given to the underlying need for policy changes. I propose that all INS inspection fees collected on Guam be reverted back to INS on Guam to assist in INS-related activities. Second, federal policymakers need to support changes to the Immigration and Nationality Act as it applies to Guam. In addition to addressing the political asylum process in my bill, Governor Carl Gutierrez of Guam has proposed that Guam be moved outside of the U.S. immigration area. While these measures may appear drastic to some, it nevertheless deserves Congress's full consideration.

    What is needed by the federal government is further discussion on how U.S. immigration laws should be applied to a distant territory of the United States which is at the frontier of political and economic turmoil for billions of human beings. We must decide how best to make this work in a way which is consistent with our national ideals, but which does not corrupt those very ideals by criminal activity and is sensitive to the economic and demographic conditions of Guam.

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    Mr. SMITH. Thank you, Congressman Underwood. Captain Tangeman.

STATEMENT OF CAPTAIN ANTHONY S. TANGEMAN, U.S. COAST GUARD

    Mr. TANGEMAN. Good morning, Mr. Chairman, and distinguished Members of the subcommittee. It is a pleasure to appear before you today on behalf of the Commandant to discuss Coast Guard migrant interdiction operations. As Chief of the Coast Guard's Office of Law Enforcement, I can report this is an extremely challenging and important Coast Guard mission which serves both humanitarian and national security functions for the United States.

    The Coast Guard has the lead responsibility for at-sea enforcement of U.S. immigration law and related international agreements. Coast Guard interdiction of illegal migrants is a critical element of maintaining U.S. sovereignty by protecting our borders.

    Through most of the 1990's, with the exception of two Haitian and one Cuban mass migration, China has been the greatest source of human trafficking by sea. Intelligence sources estimate that between 15,000 and 20,000 illegal Chinese aliens enter the Western Hemisphere by sea each year, most ultimately destined for the United States. Chinese migrants pay up to $35,000 for their perilous voyage. At this price, one average boatload of Chinese aliens is worth over $5 million.

    Since 1991, the Coast Guard has interdicted over 5,000 Chinese migrants on 55 vessels. Once interdicted by the Coast Guard, it can often take weeks to finalize disposition as the U.S. Government negotiates direct repatriation and/or assistance from a third nation.
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    Chinese smuggling ventures are planned and crewed by violent, highly organized criminal operations. For every five to ten migrants, there is at least one professional enforcer, or ''snakehead'' who intimidates and physically abuses the migrants to maintain control. These snakeheads have often instigated the migrants to riot, set fires, and even attempted to create flooding and set off explosions to force the Coast Guard off the vessels.

    These interdictions can also turn into a logistical nightmare involving scarce Coast Guard assets and personnel stretched out over hundreds of miles for many weeks. The Chinese smuggling vessels are typically in very, very poor condition, usually unseaworthy, and exhibit cramped, unsanitary, and dangerous conditions. These realities exacerbate the problems Coast Guard law enforcement personnel face.

    Over the past 10 years, we have seen changes in the Chinese smuggling threat. The number of Chinese smuggling interdictions off immediate U.S. shores tapered off significantly in the mid-1990's as the smugglers shifted their routes to Mexico and Central America in response to Coast Guard interdiction efforts.

    Now a new trend has developed in the Guam region. Chinese smugglers found that Guam offered a gateway to the continental United States, since U.S. immigration law applies there and the distance is only 1,700 miles from China, versus 8,000 miles required to reach the continental United States.

    The Coast Guard has been challenged in responding to these smuggling events. Coast Guard organic assets in Guam are only two small vessels: A 180-foot, 55-year-old buoy tender, and a 110-foot patrol boat.
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    Initially, INS and the Marshals Service have been very cooperative in accepting custody of the Chinese migrants and smuggling vessels directly into Guam within hours of Coast Guard interdictions. This procedure was required due to the limited endurance of our Coast Guard assets and their small crews.

    Since April 1998, Coast Guard units have interdicted 720 migrants and 50 smugglers from 11 Chinese vessels. Seven of these interdictions have taken place in the past 3 months. The last four interdicted vessels with 486 migrants were escorted or towed to Tinian, Commonwealth of the Northern Mariana Islands, where INS has set up camps for processing.

    In accordance with national policy, the Coast Guard will continue its aggressive interdiction of suspected Chinese smuggling vessels off Guam. Coast Guard C–130 aircraft deployed from Hawaii with assistance from Department of Defense aircraft are conducting surveillance patrols designed to locate these vessels as early as possible.

    To supplement the buoy tender and the patrol boat stationed in Guam, the Coast Guard is altering the current missions of several major assets. We are diverting to the Guam area a high-endurance cutter with an embarked helicopter, an additional buoy tender, and a patrol boat. All of these assets will be in theater by the end of May.

    The transfer of the surface assets alone is a major effort as it requires them to transit a total of 12,000 ocean miles. The Coast Guard will maintain this heightened presence around Guam as long as needed.

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    The Coast Guard is proud of our humanitarian and law enforcement efforts in combatting illegal maritime migration. The Coast Guard is the lead agency for at-sea enforcement and is responsible for this Nation's response to mass maritime migrations, the steady day-to-day flow of illegal migrants, and the increasing threat of professional smuggle.

    The current Chinese smuggling situation around Guam is extremely challenging and requires a strong interdiction presence. We look forward to continued interagency cooperation on this challenging problem. Thank you for the opportunity to discuss this important issue with you today.

    I will be happy to answer questions, sir.

    Mr. SMITH. Thank you, Captain Tangeman.

    [The prepared statement of Captain Tangeman follows:]

PREPARED STATEMENT OF CAPTAIN ANTHONY S. TANGEMAN, U.S. COAST GUARD

    Good morning, Mr. Chairman and distinguished members of the Subcommittee. It is a pleasure to appear before you today on behalf of the Commandant to discuss Coast Guard migrant interdiction operations. As Chief of the Coast Guard's Office of Law Enforcement, I can report that this is an extremely challenging and important Coast Guard mission, which serves both humanitarian and national security functions for the United States.

    The United States Coast Guard has the lead responsibility for at-sea enforcement of U.S. immigration law and related international agreements. The underlying authority for the Coast Guard to enforce applicable U.S. laws, including U.S. immigration laws, is found in sections 2 and 89 of 14 U.S.C.
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    Coast Guard migrant interdiction operations are directed by national security goals under Executive Order 12807 (E.O. 12807) and Presidential Decision Directive 9 (PDD–9). President Bush issued E.O. 12807 in 1992, directing the Secretary of Transportation to issue appropriate instructions to the Coast Guard to enforce the suspension of the entry of undocumented aliens into the U.S. by sea and to interdict the vessels carrying them. President Clinton issued PDD–9 in June 1993, directing the Coast Guard and other Federal law enforcement agencies to cooperate in the suppression of alien smuggling. This includes interdicting illegal migrants at sea and responding to new illegal migration threats. In carrying out its responsibilities, the Coast Guard complies with international law requirements, including the enforcement of sovereign control over persons and vessels who enter the nation illegally, and gaining flag state authority for certain actions involving vessels not flagged under the United States.

    The Coast Guard enforces U.S. immigration law principally by interdicting illegal migrants at sea before they reach U.S. shores. Once the Coast Guard interdicts illegal migrants at sea, disposition of the migrants is determined through the Presidential Directive 27 (PD–27) process that includes the National Security Council, Department of State, Department of Justice, Immigration and Naturalization Service (INS), Department of Defense, and other agencies. These PD–27 deliberations also determine the disposition of any suspected migrant smugglers.

    U.S. Coast Guard migrant interdiction operations are as much humanitarian as they are law enforcement missions. Migrants typically take great risks and endure significant hardships in their attempts to flee their countries and travel to the U.S. In many cases, migrant vessels interdicted at sea are overloaded, unseaworthy, lack basic safety equipment, and are operated by inexperienced sailors. These realities place the migrants at great risk. A significant number of migrant cases handled by the Coast Guard actually begin as search and rescue cases. Given the extremely unsafe conditions, it is the Coast Guard's duty under international law to first render assistance, leaving the issue of status and disposition to be resolved once the immediate safety concerns are addressed.
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    The Coast Guard's goal for migrant interdiction operations is to eliminate most of the potential flow of undocumented migrants entering the U.S. via maritime routes. This is accomplished through interdiction and deterrence. For the last two decades, there has been a steady-state flow of several migrant nationalities. Primarily, these have been Haitian, Cuban, and Dominican migrants seeking to reach the Southeast U.S. via the Caribbean, and People's Republic of China (PRC) migrants who have sought entry via numerous maritime regions, including the east and west coasts of the United States, Puerto Rico, the U.S. Virgin Islands, Hawaii, and, most recently, Guam.

    Starting with the Mariel Boat Lift in 1980, which brought over 124,000 Cubans to the U.S., migrant interdiction operations have demanded a substantial commitment of Coast Guard assets. Since that time, the Coast Guard has had to periodically shift its multimission cutters and aircraft from other law enforcement mission areas, such as drug and fisheries patrols, and non-law enforcement missions, such as aids to navigation, to counter mass migration flows.

    There have been several mass migrations from Cuba and Haiti over the past 20 years. The first exodus of Haitians followed the collapse of the Duvalier regime in the early 1980s and a second exodus followed a military coup in 1991. During the 6-month period following this coup, the Coast Guard interdicted over 34,000 Haitians. A third exodus of Haitian migrants occurred in 1993–1994. The Coast Guard responded with Operation ABLE MANNER, involving a large number of Coast Guard units from both the Atlantic and Pacific Areas. Operation ABLE VIGIL, which addressed the exodus of Cubans in 1994, resulted in the interdiction of 38,560 Cubans. The Coast Guard surge response to these two mass migrations in 1994 resulted in the rescue and/or interdiction over 64,000 migrants. The below table summarizes Coast Guard migrant interdictions for fiscal years 1994–1998.
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Table 1

    Coast Guard surge operations in 1994 were effective in countering the mass Haitian and Cuban migrations. In 1995, with Cuban and Haitian migration threats low, the Coast Guard addressed migration issues in the Mona Passage (between the Dominican Republic and Puerto Rico), where interdictions went from 232 in fiscal year 1994 to 3,388 in 1995, an increase of 1,500 percent. As a result of this surge effort under Operation ABLE RESPONSE, the interdiction of Dominican migrants in fiscal year 1996 was 6,273, nearly double that of fiscal year 1995. Statistics and intelligence reports for 1997 indicate that we created a deterrent effect not only in the Mona Passage, but in other areas of illegal maritime migration as well.

    There were increases in Cuban and Haitian interdictions in 1998. The increase in Cuban interdictions was mainly due to an increase in flow that was primarily driven by more aggressive professional smuggling. Haitian interdictions can vary greatly depending upon the size of the vessel used in transportation. For example, it is not uncommon for the Coast Guard to interdict 60-foot, wooden Haitian freighters with up to 500 migrants onboard. Over the last several years, a large portion of Haitian migrant vessels have shifted their routes from landing directly on U.S. shores to island-hopping through the Bahamas. Once in the Bahamas, the Haitians are professionally smuggled the short distance to Florida in small groups, on a variety of pleasure craft that are difficult to detect as they mix in with the legitimate boating public.

    As stated earlier, most migrants interdicted by the Coast Guard are not brought into the U.S. and are repatriated to the country from which they originally departed. There is a U.S.-Cuban Repatriation Accord (of May 2, 1995) which allows the Coast Guard to repatriate most interdicted Cubans directly to Cuba. Although the U.S. currently has no formal repatriation agreement with the Dominican Republic, in all cases the Government of the Dominican Republic has allowed repatriation of migrants. We currently have no migration agreement with Haiti and Haitian repatriations are conducted on a case-by-case, no objection basis. At this time, Haiti has not objected to these repatriations.
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    Since the focus of today's hearing is on the PRC smuggling problem into Guam, I have saved this most challenging maritime migrant threat for last. Through most of the 1990s, China has been the greatest source of human trafficking by sea, and intelligence sources currently estimate that between 15,000 and 20,000 illegal Chinese aliens enter the Western Hemisphere by sea each year, most ultimately destined for the United States. PRC migrants pay about $35,000 for their perilous voyage to the United States. At this price, one average boatload of PRC aliens is worth over $5 million in gross revenues to the smugglers.

    The PRC smuggling problem is widespread, encompassing all coastal areas of the continental United States, and territories such as Guam, Puerto Rico, and the U.S. Virgin Islands. PRC smuggling vessels transit to the these U.S. locations, offloading their migrant cargo to smaller pick-up vessels (often hired fishing vessels or small pleasure craft), at distances ranging from one mile to hundreds of miles offshore. Sometimes these motherships land in the U.S. or intentionally ground along U.S. shores, requiring the migrants and crew to make, in some cases, a very dangerous swim to shore.

    Since 1991, the Coast Guard has interdicted over 5,000 PRC migrants and the vast majority of these have been repatriated to China. While there are small groups of PRC migrants island-hopping through the Caribbean into Puerto Rico and the U.S. Virgin Islands, the vast majority of the PRC maritime flow has typically been on coastal freighter-type vessels or retired fishing vessels interdicted by the Coast Guard far offshore. As long as these cases do not become search and rescue, the Coast Guard complies with the national policy of keeping interdicted PRC migrants outside the reach of U.S. shores. Once these migrants are interdicted, it can often take weeks to finalize disposition as the U.S. government negotiates direct repatriation or the assistance of a third government.
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    PRC smuggling ventures are planned and crewed by violent, highly organized criminal operations. For every five to ten migrants, there is at least one professional ''enforcer'' or ''snakehead'' that intimidates and physically abuses the migrants to maintain control and ensure future payment of smuggling fees. These ''snakeheads'' have often instigated the migrants to riot, set fires, and even attempted to create flooding /explosions to protest Coast Guard presence onboard the smuggling vessels. This creates a dangerous situation for Coast Guard boarding teams. These operations also have logistical problems and can involve scarce Coast Guard assets and personnel for many weeks. The PRC smuggling vessels are typically in very poor condition, are in many cases unseaworthy, and typically exhibit cramped, unsanitary, and dangerous conditions. These realities exacerbate the problems Coast Guard law enforcement personnel face.

    Over the past 10 years we have seen changes in the PRC smuggling threat. The number of PRC smuggling interdictions off the immediate U.S. shore tapered off significantly in the mid-1990s as the smugglers shifted their routes to Mexico and Central America in response to Coast Guard interdiction efforts. While there are still two to three large PRC migrant interdictions off U.S. shores each year, a new trend has developed in the Guam region over the past year. PRC smugglers found that Guam offers a gateway to the continental U.S., since U.S. immigration laws apply there and the distance is only 1,700 miles from China, vice 8,000 miles required to reach the continental U.S.

    After arriving in Guam undetected, some migrants use fraudulent documents to get on flights bound for the U.S. For those migrants interdicted by the Coast Guard or INS, some have been transported to the US, where there are more processing and detention facilities. After the initial processing by INS and while awaiting a hearing by an immigration judge, many disappear into society. Due to the dramatic increase in smuggling to Guam, INS and local detention facilities on the island are currently beyond their capacity, with over 600 detainees.
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    Cooperative efforts between the Coast Guard and INS have resulted in many successful interdictions, but the Coast Guard is challenged in responding to these smuggling events. Coast Guard organic assets in Guam are a 180-foot, 55-year-old buoy tender and a 110-foot patrol boat. Initially, the INS and the U.S. Marshals Service have been cooperative in accepting custody of the PRC migrants and the smuggling vessels directly into Guam within hours of the Coast Guard interdictions. This procedure was required due to the limited endurance of these Coast Guard assets, combined with their small crews and other duties, such as maintaining critical aids to navigation and protecting the U.S. Exclusive Economic Zone from foreign fishing, in a vast area of responsibility.

    Since April 1998, Coast Guard units have interdicted 720 migrants and 50 smugglers/crew members from 11 PRC smuggling vessels. Seven of these Coast Guard interdictions have taken place in the past 3 months. The Coast Guard has escorted/towed the last four interdicted vessels and 486 migrants to Tinian, Commonwealth of the Northern Mariana Islands (CNMI), where the INS has set up tent cities for processing. All of these vessels have exhibited the poor material and sanitary conditions commonly found on past cases. Most have been retired fishing vessels with no name, flag, or registry papers. These cases remain very volatile. In some cases, the migrants have threatened to jump overboard if they sensed that they were not going to Guam.

    In accordance with national policy, the Coast Guard will continue its aggressive interdiction of suspected PRC smuggling vessels off Guam. Coast Guard C–130 aircraft, deployed from Hawaii, with assistance from Department of Defense aircraft are conducting surveillance patrols designed to locate these vessels as early as possible. To supplement the buoy tender and patrol boat stationed in Guam, the Coast Guard is altering the current missions of several major assets. We are diverting to the Guam area a high endurance cutter with an embarked helicopter, an additional buoy tender, and a patrol boat. All of these assets will be in theater by the end of May. The transfer of the surface assets alone is a major effort, as it involves a total of 12,000 ocean transit miles. The Coast Guard will maintain this heightened presence around Guam as long as needed.
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    The United States Coast Guard is proud of its humanitarian and law enforcement efforts in combating illegal maritime migration. The Coast Guard is the lead agency for at-sea enforcement and is responsible for this nation's response to mass maritime migrations, the steady day-to-day flow of illegal migrants, and the increasing threat of professional smuggling. The current PRC situation around Guam is extremely challenging and requires a strong interdiction presence. We look forward to continued interagency cooperation on this challenging problem.

    Thank you for the opportunity to discuss this important issue with you today. I will be happy to answer any questions you might have.

    Mr. SMITH. Mr. Cooper.

STATEMENT OF BO COOPER, ACTING GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE

    Mr. COOPER. Thank you, Mr. Chairman, my colleagues on the panel. As a preliminary general matter, the administration is troubled by the bill's language that would prohibit aliens from seeking asylum in a part of the United States.

    Seeking asylum from persecution is a basic human right and providing refuge in such situations reflects one of our most important national values, as well as commitments we have made internationally. It is an opportunity that should be available in all parts of the United States.
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    Finally, because granting refuge to people facing such threats reflects a basic policy of our government and our international commitments, prohibiting such applications strictly under the INA would not prohibit them from being sought or being granted under our moral and international obligation to human rights.

    That having been said, the INS strongly supports the overall objectives of reducing alien smuggling into Guam and easing the burden on the government and citizens of Guam resulting from the recent dramatic increase in alien smuggling.

    We believe, however, that the proposed bill is likely to undermine the government's efforts to combat alien smuggling by encouraging smugglers to bring aliens to Guam as a means to reach the United States.

    In addition, we believe that a more effective approach to easing the burden on Guam is to deter alien smugglers through an enhanced interdiction program. Compliance with the provisions of the bill would result in significant costs and diversion of funds that could more effectively be used for enhanced enforcement efforts and detection of processing of aliens in Guam.

    In the recent months, actually, Guam has seen a sharp increase in the smuggling of aliens from the People's Republic of China. We believe that the goal of the smugglers is for aliens to reach the United States where they can pursue their asylum claims, request release from an overburdened INS detention system, and work to pay off huge debts to the smugglers.
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    The proposed bill is likely to assist the smugglers on achieving this goal by requiring transport to a place outside of Guam for further processing under the Immigration Nationality Act, which only applies within the United States.

    The INS would be prohibited from conducting even a preliminary credible fear screening to remove through expedited removal aliens arriving on Guam with clearly frivolous claims to asylum.

    Instead, the INS would be required to transport from Guam all aliens who have a fear of return. Aliens not subject to expedited removal who are placed in regular proceedings before an immigration judge in Guam could delay the process and obtain free transportation to the continental United States simply by asserting a claim for asylum.

    We believe that a more appropriate response to the sharp increase in alien smuggling in the area is through a comprehensive strategy of interdiction and repatriation, with appropriate protection for those who have a credible fear of persecution.

    Over the past month, the Coast Guard has successfully interdicted four vessels attempting to smuggle nearly 500 Chinese migrants into Guam. Those migrants have been diverted to the island of Tinian in the Commonwealth of Northern Mariana Islands for processing and repatriation to the People's Republic of China.

    The INS is working with the Departments of State, Defense, and Justice, as well as you have heard from Captain Tangeman with the Coast Guard, to make this effort an effective response to the recent increase in alien smuggling activity.
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    These efforts and commitments are being undertaken in response to a surge in smuggling operations in China of unprecedented magnitude. They are not intended to be permanent long-term measures, but are anticipated as a short-term interim set of measures pending effective resolution of the problem. We believe that in particular the enhanced interdiction efforts will provide effective deterrent to the use of Guam as a point of illegal entry into the United States.

    Additionally, the cost of transporting to another site every arriving alien who expresses a fear of return and every alien in Guan who wishes to apply for asylum would be far more expensive than reimbursing the government of Guam for its share of the burden.

    Each plane load bringing aliens from Guam to the United States would cost approximately $300,000. The proposed legislation would force the INS to divert its scarce resources that could more effectively be used for enforcement efforts, including retention and improved expedited removal processing and other processing of aliens on Guam.

    The INS agrees that Guam should not have to bear the financial burden incurred in detaining aliens smuggled to Guam. As recently explained in a letter of May 4th from the INS to the Honorable Governor of Guam, the Department of Justice is committed to finding the necessary funding to reimburse the government of Guam for the costs incurred in detaining Chinese aliens on behalf of the INS and is working closely with the White House in that effort.

    In addition, the INS and the Executive Office for Immigration Review have deployed additional human resources, including asylum officers, immigration judges, and trial attorneys to hasten the administrative proceedings for those cases currently held in Guam's correctional system on behalf of the INS.
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    We believe that the efforts I have outlined above, including an enhanced interdiction program, a commitment to provide reimbursement of Guam, and increased human resources to address the pending cases on Guam, are the most appropriate and effective response to the current problems experienced in Guam.

    Enhanced interdiction efforts in particular, we believe, will provide an effective deterrent to the use of Guam as a point of illegal entry to the United States.

    Thank you very much. I hope to answer any questions you have.

    [The prepared statement of Mr. Cooper follows:]

PREPARED STATEMENT OF BO COOPER, ACTING GENERAL COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE, U.S. DEPARTMENT OF JUSTICE

    Mr. Chairman and Members of the Subcommittee, my name is Bo Cooper and I am the Acting General Counsel for the Immigration and Naturalization Service (INS). Thank you for the opportunity to appear before you today to discuss proposals to amend our immigration laws. We appreciate the Subcommittee's interest in the views of the Immigration and Naturalization Service, Department of Justice.

    You have requested our views of the following legislation:

    H.R. 945, introduced by Congressman Underwood. The bill would prevent aliens from applying for asylum in Guam. It would require aliens in Guam seeking asylum to be arrested, detained, and transported to another place for processing under the Act.
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H.R. 945: Denying Aliens the Opportunity to Apply for Asylum in Guam

    H.R. 945 would prohibit aliens from pursuing claims for asylum in Guam. It would require the INS to detain any alien in Guam who applies for admission to the United States by making a claim for asylum, and transport that alien to a location outside of Guam for further processing under the Immigration and Nationality Act. The bill requires that the alien be transported within 30 days from the date the alien is deemed an applicant for admission. Finally, the bill would require the Attorney General to enter into a contract with the Government of Guam to provide for full and complete compensation to Guam for any expense incurred by Guam with respect to the detention of any alien under the bill.

    As a preliminary, general matter, the Administration is troubled by the bill's language that would purports to prohibit aliens from seeking asylum in a territory of the United States or after having been interdicted by, presumably, agents of the United States and being transported to the territory (Guam). Seeking asylum from bodily harm or denial of rights is a basic human right. Providing refuge in such situations reflects one of our important national values as well as commitments we have made internationally. It is a right that should apply in all areas under the sovereignty of the United States and in all cases involving employees of the United States. Finally, because granting refuge to people facing such threats reflects a basic policy of our government and our international commitments, prohibiting such application under the INA would not prohibit them from being sought—or being granted under our moral and international commitments to human rights.

    That having been said, while the INS supports the overall objectives of reducing alien smuggling into Guam and easing the burden on the Government and citizens of Guam resulting from the recent increase in alien smuggling, we believe the proposed bill is likely to undermine the Government's efforts to combat combating alien smuggling by encouraging smugglers to bring aliens to Guam as a means to reach the United States. In addition, we believe that a more effective approach to easing the burden on Guam is to deter alien smugglers through an enhanced interdiction program. Moreover, compliance with the provisions of the bill would result in significant costs and diversion of funds that could more effectively be used for enhanced enforcement efforts and detention and processing of aliens in Guam.
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    In recent months, Guam has seen a sharp increase in the smuggling of aliens from the People's Republic of China. We believe that the goal of the smugglers is for the aliens to reach the United States where they can pursue their asylum claims, request release from an overburdened INS detention system, and work to pay off huge debts to the smugglers. The proposed bill is likely to assist the smugglers in achieving this goal by requiring transport to a place outside of Guam for further processing under the Immigration and Nationality Act, which only applies within the United States. The INS would be prohibited from conducting even a preliminary credible fear screening to remove, through expedited removal, aliens arriving on Guam with clearly frivolous claims for asylum. Instead, the INS would be required to transport from Guam all aliens who assert a fear of return. Aliens not subject to expedited removal who are placed in regular removal proceedings before an immigration judge in Guam could delay the removal process and obtain free transportation to the continental United States simply by asserting a claim for asylum. The immigration judge would have to transfer the proceedings to another venue where the alien could apply for asylum. Thus, the bill would delay the expeditious return of inadmissible aliens—an effective deterrent to smuggling—and would further the smugglers' ultimate goal of bringing aliens to the United States, encouraging further smuggling into Guam.

    We believe that a more appropriate response to the sharp increase in alien smuggling in the area of Guam is through a comprehensive strategy of interdiction and repatriation with appropriate protections for those who have a credible fear of persecution. Over the past month, the Coast Guard has successfully interdicted four vessels attempting to smuggle nearly 500 Chinese migrants into Guam. Those migrants have been diverted to the island of Tinian in the Commonwealth of the Northern Mariana Islands for processing and repatriation to the People's Republic of China. The INS is working with the Departments of State, Defense, and Justice, as well as the Coast Guard, to make this effort an effective response to the recent increase in smuggling activity. The Coast Guard is also stepping up its interdiction efforts with increased maritime patrols. It has supplemented its two permanent vessels in Guam with three additional vessels and a patrol aircraft detailed to the region for this purpose. These efforts and commitments are being undertaken in the wake of a surge in smuggling operations from China and Guam of unprecedented magnitude. They are not intended to be permanent, long-term measures, but are anticipated as short-term, interim measures pending effective resolution of the problem. We believe that the enhanced interdiction efforts, in particular, will provide an effective deterrent to the use of Guam as a point of illegal entry to the United States. We will continue to review the efficacy and efficiency of the current operations, and their impact on the local community, and will remain open to seriously considering additional measures to address changing circumstances.
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    Additionally, the cost of transporting to another site every arriving alien who expresses a fear of return and every alien in Guam who wishes to apply for asylum would be far more expensive than reimbursing the Government of Guam for its share of the burden. Each planeload bringing aliens from Guam to the United States would cost approximately $300,000. The proposed legislation would force the INS to divert scarce resources that could more effectively be used for enforcement efforts, including detention and processing of aliens on Guam.

    The INS agrees that Guam should not have to bear the financial burden incurred in detaining aliens smuggled to Guam. As recently explained in a May 4th letter from the INS to the Honorable Carl T.C. Gutierrez, Governor of Guam, the Department of Justice is committed to finding the necessary funding to reimburse the government of Guam for the costs incurred in detaining Chinese aliens on behalf of the INS and is working closely with the White House in that effort. In addition, the INS and the Executive Office for Immigration Review have deployed additional human resources, including asylum officers, immigration judges, and trial attorneys, to complete the administrative proceedings for those cases currently held in Guam's correctional system on behalf of the INS.

    We believe that the efforts I have outlined above, including an enhanced interdiction program, a commitment to provide reimbursement to the government of Guam, and increased human resources to address the pending cases on Guam, are the most appropriate and effective response to the current problems experienced by Guam. The enhanced interdiction efforts, in particular, will provide an effective deterrent to the use of Guam as a point of illegal entry to the United States.

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    Again we appreciate the invitation by the subcommittee for the views of INS on these bills. I will be pleased to answer any questions.

    Mr. SMITH. Congressman Underwood, I suspect you are surprised and disappointed that the administration is opposing this bill. You are welcome to elaborate on that.

    I refer to your testimony where you mentioned that you projected that 3,000 individuals would probably be smuggled into Guam this year, versus 600 last year, versus a negligible amount the year before that. So we have a problem that is intensifying, that despite promises, doesn't seem to be deterred.

    If you would elaborate on what impact you think this will have on the people of Guam if we continue to have this sort of exponential increase in smuggled aliens.

    Mr. UNDERWOOD. Well, it will certainly have a dramatic financial and social impact, as well as potential public health impact, because on some of these vessels that have been interdicted, the majority of people have been found to either have tuberculosis or some other communicable disease.

    The issue really that has been presented by Mr. Cooper, there is a strong contradiction in what he is laying out. On the one level, we do certainly appreciate the efforts of interdiction as a deterrent. But there is no end-strategy to that. We don't know at what point that deterrent will work.

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    The administration has also said that my legislation will not allow for a credible fear test to even be given on Guam. In the meantime, they are doing this credible fear test on the immigrants that have been detained in the Commonwealth of the Northern Marianas Islands, better known as ''expedited removal.''

    It is something they are not doing, which I understand they could be doing on Guam today. Instead they are moving immigration judges in, instead of trying to apply the expedited approval, which could be done on Guam today; and instead of paying $300,000 a plane load to move them back into the U.S. mainland, they could, perhaps, better use that money removing the Chinese nationals back to China, which would be a more effective use and a more effective deterrent.

    Mr. SMITH. Congressman, I agree with you. I think the INS should be using expedited exclusion on Guam, as you just suggested. Mr. Cooper, why isn't the INS using the tools they have and were provided with under the 1996 law?

    Mr. COOPER. Mr. Chairman, those people who are subject to expedited removal are, in fact, being processed through the expedited removal process. The problem is that—and we agree completely—it has not worked in Guam in as expeditious a manner as it ought to have. As you know, for those who assert an asylum claim——

    Mr. SMITH. Well, my question is, why doesn't it?

    Mr. COOPER. That is what I am trying to set out. For those who assert in the course of expedited removal proceedings an asylum claim, the procedure calls for an asylum officer to conduct an interview, for an immigration judge to undertake a review of a negative credible fear determination, if that is what results from the asylum officer interview.
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    For those people whom pass the credible fear evaluation by an asylum officer, they are referred for regular removal proceedings before an immigration judge, with the possibility for review by the BIA of that decision.

    That is the standard expedited removal process, and it is being operated in Guam just as it is operating in the United States. The problem is, in practice, that has played out in Guam much, much, much more slowly than in the United States, where all the resources can be brought to bear very promptly.

    That is a key part of our two-pronged approach to the problem. We are in complete agreement with Congressman Underwood that this is a very serious problem that needs to be addressed very promptly. But one of the two key aspects of our approach is to try to send resources down to Guam and analyze the way in which that process has been working, to identify the choke points and identify them in a way that can make expedited removal work.

    Mr. SMITH. Let me go back to my question. Are you saying expedited removal is being used in the interior of Guam? It is my understanding that is not the case.

    Mr. COOPER. With respect to those people who are subject to expedited removal, that is, who arrive at a port of entry——

    Mr. SMITH. I am not talking about ports of entry. You know I am not talking about ports of entry. You have the authority under 1996 law to implement expedited exclusion for individuals other than those arriving at ports of entry. You are not doing it in Guam. Why not?
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    Mr. COOPER. Not in the interior.

    Mr. SMITH. Why not? If you have the tools, the law behind you, why aren't you doing it? You have just heard the estimates mentioned by Congressman Underwood. You have the ability to do it, but you are not doing it.

    Mr. COOPER. First, the problem is a large proportion of the people in Guam are being processed through expedited removal. They are people who have been interdicted and brought to Guam.

    Mr. SMITH. That doesn't answer my question. I know some people are, but a large number of people are not, because you are not using the law, and you are not implementing the expedited exclusion of individuals who don't arrive at the port of entry. I will come back to that in just a minute.

    The gentlewoman from Texas is recognized.

    Ms. JACKSON LEE. I thank the gentleman very much, and I thank the presenters. Let me say to Captain Tangeman, let me thank the Coast Guard for its able work, not only in those areas, but all throughout our seas around and about the United States. Let me express my appreciation for that and also acknowledge the danger of your work.

    I want to pursue the line of questioning, and let me offer my apologize. I have a meeting so I will have to leave when I complete my questioning. I am delighted to have been able to hear all of you at this time.
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    Mr. Underwood raises a very valid concern. In my advocacy and appreciation of the work of the INS, I still follow the same pursuit and line of questioning. Frankly, there are several elements of this bill I support wholeheartedly, that is, rather than a task force, an immediate response to the reimbursement to the Government of Guam for the enormous burden.

    That is part of Mr. Underwood's bill, and I hope maybe without the legislation could happen, but certainly I hope the legislation solidifies it and gets it done, because task forces sometimes last forever and nothing is done. So the fact that the INS and Department of Justice is aware of this overburden, I don't know why we can't have funding almost now to assist them in this concern.

    The other thing is, I am not comfortable with the answer. I do not agree with everything in the 1996 legislation, but you do have the authority to deal with expedited removal, and it answers my concern because you can still, in expedited removal, the individual can raise the credible fear of persecution.

    So it looks as if it works for all of us, those of us who are concerned with human rights issues as well the burden that Mr. Underwood is facing.

    Why again is the INS not in—and when we say port of entry, let us say I am talking about those who have been illegally smuggled into Guam, and in this instance, Mr. Underwood is raising the Chinese population. Why are you not dealing with them under the 1996 law? I am still not understanding why the INS is not responding under INS law.

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    Mr. COOPER. The expedited removal process works in a uniform way in any place in what is defined under the statute as the United States, including Guam.

    The way in which that works is at a port of entry, a person who arrives without valid documents is subject to the process I described before. That has been a very effective enforcement mechanism. It has been one of the most successful enforcement mechanisms of the 1996 law.

    Ms. JACKSON LEE. Do you include the Chinese smuggled individuals in that definition?

    Mr. COOPER. Yes. We remove over 1,000 people a week with removal orders and all the attendant disabilities under the expedited removal process. At the same time, we have managed to offer a very effective screening for those who feel a need to assert rights under the refugee convention and refugee act of 1980.

    Now, as the Chairman notes, that authority was exercised by regulation in implementing the 1996 act only with respect to the ports of authority, and not between. A large part of the reason for doing that has had to do with the availability of the resources to make that process work quickly, to be able to make it work in the way it was intended to.

    Ms. JACKSON LEE. Finish your sentence. I want to ask Mr. Underwood to respond to that, please.

    Mr. COOPER. The problem in Guam has not been the inaccessibility of expedited removal; it has been the time it has taken for that process to work its course. If we were to apply expedited removal to those who arrive in Guam outside the port of entry and wouldn't otherwise be subject to expedited removal in the way it is operating now, that alone wouldn't hasten the process.
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    What would hasten the process is the effort that we have already tried to undertake, which is to figure out why cases—which is to identify the reasons why cases are taking so long there and to enhance the allotment of personnel that can make those cases move through the process much more promptly.

    Ms. JACKSON LEE. I hear your point. Mr. Underwood?

    Mr. UNDERWOOD. Other than the INS giving a new definition to the meaning of the word expedited, the whole story is not being told. In point of fact, the interdiction process tries to divert those vessels away from Guam and into the Commonwealth of the Northern Marianas. What they do—what the INS does with them in the Commonwealth of the Northern Marianas seems to parallel what happens under expedited removal.

    They are applying that process. If we hadn't had the recent incident in Yugoslavia, it was anticipated that that process of repatriation of some of those people back to China would have occurred. But in the case of Guam, under everything I have heard, the credible fear test and the expedited removal process is not part of the discussion.

    They are sending out immigration judges to Guam and now are asking for Chinese-speaking attorneys in order to fully move the process forward as if they were not applying expedited removal.

    So my concern is that this at least in the mean time—we should work on this and try to get INS to work on this as well as we try to deal with this particular legislation, because it seems to me that it offers a viable way to deal with the crisis, an additional tool which has not yet been exercised.
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    Ms. JACKSON LEE. I thank you. What I hear you saying is we have a broken expedited process that apparently does not seem to be working, although Mr. Cooper has very valiantly tried to defend it.

    I would like to work with you and certainly with the INS to fix what I think is fixable and to diminish the harm that is happening to these smuggled Chinese. Putting aside what happened in Yugoslavia, I think there is an obligation on the part of China to not violate human rights of their citizens and also provide them opportunity to return if they don't meet the standards of a credible fear persecution.

    I look forward to working with you on your legislation. Certainly I think, Mr. Cooper, the INS can do well on the compensation end. I certainly do support more funds for interdiction. If you ask us and show us you are doing something, I know the Chairman would look forward to supporting more resources along those lines.

    With that, Mr. Chairman, I yield back my time; and I ask your indulgence as I leave for a meeting.

    Mr. SMITH. Thank you, Ms. Jackson Lee.

    Congressman Underwood, you made another good point just a minute ago, and that is what happens at the Northern Marianas. As I understand it, Mr. Cooper—and tell me if this is wrong—the boats coming in from China headed toward Guam are often directed toward the Northern Marianas because you can't claim asylum in the Northern Marianas; and, therefore, you can engage in a quicker turnaround, and people can be sent back to their home country.
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    Is that an accurate statement?

    Mr. COOPER. I think it needs to be clarified somewhat. As many boats as can be interdicted by the Coast Guard—and the Coast Guard, I need to add our congratulations as an agency—as many boats can be interdicted by the Coast Guard have been diverted to Tinian for processing there. But it is important for us to be clear about what that process is. It is not expedited removal.

    Mr. SMITH. Let me go back to my question and then you can elaborate if you want to. I said and asked you to correct me if I was wrong, was one of the reasons they were diverted to the Northern Marianas because people can't claim asylum there and it is easier to turn them around. Is that not the case?

    Mr. COOPER. It is easier to turn them around, but we do screen them for asylum using the same standard as we would use if expedited removal applied.

    Mr. SMITH. I understand that. But the point is in the Northern Marianas you can use an expedited process you can't use in Guam. I want to go back for a minute. You have the authority under the 1996 law to, in fact, use expedited exclusion other than at ports of entry.

    You said you lack the resources. Well, that can be cured by the administration requesting those resources, which they haven't done, or by using them in specific areas like Guam where there seems to be a greater need than other places.
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    So, as I say, and as Congressman Underwood has said as well, the law is with us. You are just not enforcing the law, and I think that is regrettable.

    You pointed in your main testimony to your goal of deterrence. Clearly that is not working. If anything close to what Mr. Underwood is saying turns out to be the case—going from negligible to 600 to 3,000, that sounds to me like the INS policy of deterring is not working. Why not use the laws we have to deter those individuals and to turn them around?

    Mr. Underwood, we are about to conclude. I will ask you if you have any further comments and then go to Mr. Cooper.

    Mr. UNDERWOOD. I certainly appreciate the opportunity to address this issue in the context of your subcommittee. I also want to point out that INS does collect a significant amount of fees on Guam.

    For the people of Guam, when some $8 million a year are collected in fees at the airport by INS and then to be turned around and not have the opportunity to get reimbursed quickly, it is hard to understand.

    Mr. SMITH. I agree with that.

    That concludes our hearing. Mr. Cooper, thank you. Captain Tangeman, thank you. Congressman Underwood, I appreciate your bill.
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    Mr. UNDERWOOD. Thank you, Mr. Chairman.

    [Whereupon, at 12:30 p.m., the subcommittee was adjourned.]

A P P E N D I X

Material Submitted for the Hearing Record

PREPARED STATEMENT OF LAWYERS COMMITTEE FOR HUMAN RIGHTS
HEARING ON ''H.R. 945: A BILL TO DENY TO ALIENS THE OPPORTUNITY TO APPLY FOR ASYLUM IN GUAM''

    The Lawyers Committee is a non-profit, non-governmental organization. Since 1978, the Lawyers Committee has worked to promote and protect fundamental human rights, holding all governments—including the United States—accountable to upholding the standards set forth in the Universal Declaration on Human Rights and subsequent international human rights instruments.

    A substantial focus of our work over the years has been the protection of refugees. The Lawyers Committee operates one of the largest and most successful pro bono representation programs for refugees in the country. In partnership with volunteer lawyers, we have represented many hundreds of refugees during the course of this work. Our advocacy work is grounded in the extensive hands-on experience derived from dealing directly with those seeking protection in the United States, and our testimony today reflects this perspective.

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    The Lawyers Committee submits this statement for the record because we have serious concerns about H.R. 945, one of the bills under discussion at today's hearing. Our concerns stem primarily from the bill's fundamental tenet: that asylum-seekers who arrive in or are brought to Guam are barred from applying for asylum there. The premise underlying this approach seems to be that by eliminating the right of arriving aliens to seek asylum in Guam, Guam will ultimately reduce the numbers of individuals who choose to seek asylum there. Although we understand the financial burdens under which Guam is currently laboring as a result of a recent influx of asylum-seekers, we believe there are alternative solutions to these problems that would not do violence to the most basic of refugee rights: the right to seek and enjoy asylum.

II. The International Legal Framework

    Representative Underwood, the sponsor of this bill, has pointed out that the majority of asylum-seekers arriving in or brought to Guam in recent months have been the victims of an organized and vicious smuggling network which cares little for its human cargo beyond the money it can extort from them. It is particularly important to remember that, among those who enter into this devil's bargain by contracting with smugglers to reach the United States, many do so because it is their only means of escape from countries where they suffer profound violations of basic human rights.

    International law protects the right of all individuals to flee in such situations. Article 14 of the Universal Declaration of Human Rights provides that ''[e]veryone has the right to seek and to enjoy in other countries asylum from persecution.'' Those who exercise this right no longer benefit from the protection of their home countries and, thus, are entitled to special protection by the international community. The 1951 Convention relating to the Status of Refugee (189 U.N.T.S. 137) and its 1967 Protocol (606 U.N.T.S. 267, 19 U.S.T. 6223), to which the United States acceded in 1968, set forth the criteria for determining eligibility for protection as a refugee:
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the term ''refugee'' shall apply to any person who . . . owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

    The United States incorporated this standard into its domestic laws in the Refugee Act of 1980.(see footnote 2)

    While there is no categorical right to receive asylum at the international level,(see footnote 3) there is a well-established individual entitlement of a refugee not to be returned to a place where he or she may experience persecution. The 1951 Convention, in Article 33(1), provides:

No Contracting State shall expel or return (''refouler'') a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

    This right of non-refoulement is the foundation for all refugee protection and is so fundamental that it has achieved the status of customary international law, binding even on States that have not acceded to the refugee treaties.(see footnote 4) The United States incorporated substantial aspects of the treaty obligation into its domestic law by amending its withholding of deportation statute in the 1980 Refugee Act.(see footnote 5) Congress specifically enacted the Refugee Act to create more humane and effective procedures for dealing with refugees and to bring the United States into compliance with its obligations under international law.(see footnote 6) Furthermore, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the United States became a full party in 1994, obligates the United States to refrain—without exception—from returning any individual to a place where there is substantial likelihood that he or she would be in danger of being subjected to torture. We must be conscious of these obligations, grounded in fundamental principles of human rights law, when formulating a domestic legal framework for dealing with those who attempt to enter the United States clandestinely.
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III. Who Refugees Are

    Although not every person who flees her country through a smuggling network will have a valid claim for asylum, reports we have received indicate that every one of the Chinese asylum-seekers currently being detained in Guam have established that their fears of persecution are credible and that they have a significant possibility of success on the merits of their asylum claims. They are, therefore, even under the harsh expedited removal procedures of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, entitled to apply for asylum.

    This certainly cannot be surprising, given China's dismal human rights record. As our own Department of State expressed in its annual Country Reports on Human Rights Practices less that three months ago,

The [Chinese] Government's human rights record deteriorated sharply beginning in the final months of [last] year . . . Abuses included instances of extrajudicial killings, torture and mistreatment of prisoners, forced confessions, arbitrary arrest and detention, lengthy incommunicado detention . . . violence against women, including coercive family planning practices—which sometimes include forced abortion and forced sterilization(see footnote 7) . . . religious services were broken up and church leaders or adherents were detained . . .

U.S. Department of State, Country Reports on Human Rights Practices for 1998, http://www.state.gov/www/global/human—rights/1998—hrp—report at 2–3.
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IV. A Solution to the Problem of Mass Influx

    Under pressure from Guam to alleviate the financial and social burden of detaining large numbers of asylum-seekers, the INS has, in lieu of assuming the financial burden which would appear to rest rightfully with the federal government and not with Guam, begun bringing new arrivals to the Northern Mariana island of Tinian. We view this as a highly unsatisfactory solution to the extent that it removes asylum-seekers from a jurisdiction where it is well-established that they have the legal right to seek asylum, to a jurisdiction that is treated by the United States as a kind of ''rights-free zone.'' Even if some form of screening takes place in such a jurisdiction, any procedural protections afforded asylum-seekers are viewed by the government as humanitarian gestures, not legal requirements. It was in part for this reason that many advocates on behalf of refugees recently opposed the preliminary plan to use Guantanamo Bay, Cuba, as a temporary haven for Kosovar Albanians, and why, as Representative Underwood has pointed out, Guam was being considered as a preferable alternative.

    The fact that an asylum-seeker may arrive by illegal or irregular means does not confer upon her the status of ''illegal immigrant.'' Under U.S. law, once she has established a desire to seek asylum and a credible fear of persecution, she is entitled to file a formal request for protection and present her claim before an immigration judge. The United States has an unqualified duty to ensure that it does not return individuals to jurisdictions where they would face persecution or torture. In order to comply with this obligation, asylum determination procedures must be calculated accurately to identify those entitled to such protection. This task simply cannot be satisfactorily accomplished by removing asylum-seekers to a jurisdiction in which the government exercising physical control over them maintains that they have no legal rights.
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    The Executive Committee of the United Nations High Commissioner for Refugees Programme, of which the United States is a member, has set forth guidelines for the protection of asylum-seekers in situations of large-scale influx. Recognizing that the location of initial arrival of asylum-seekers who are part of a mass influx may not be capable of providing permanent protection, the Executive Committee set out certain minimum standards to ensure that asylum-seekers are afforded basic rights:

    II. Measures of protection

A. Admission and non-refoulement

1. In situation of large-scale influx, asylum seekers should be admitted to the State in which they first seek refuge and if that a State is unable to admit them on a durable basis, it should always admit them at least on a temporary basis and provide them with protection according to the principles set out below. They should be admitted without any discrimination as to race, religion, political opinion, nationality, country of origin or physical incapacity.

2. In all cases the fundamental principle of non-refoulement—including non-rejection at the frontier—must be scrupulously observed . . .

            * * *

(a)

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    they should not be penalized or exposed to any unfavourable treatment solely on the ground that their presence in the country is considered unlawful; they should not be subjected to restrictions on their movements other than those which are necessary in the interest of health and public order;

(b)

    they should enjoy the fundamental civil rights internationally recognized, in particular those set out in the Universal Declaration of Human Rights;

(c)

    they should receive all necessary assistance and be provided with the basic necessities of life including food, shelter and basic sanitary and health facilities; in this respect the international community should conform with the principles of international solidarity and burden-sharing;

(d)

    they should be treated as persons whose tragic plight requires special understanding and sympathy. They should not be subjected to cruel, inhuman or degrading treatment;

(e)

    there should be no discrimination on the grounds of race, religion, political opinion, nationality, country of origin or physical incapacity;
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(f)

    they are to be considered as persons before the law, enjoying access to courts of law and other competent administrative authorities;

(g)

    the location of asylum seekers should be determined by their safety and well-being as well as by the security needs of the receiving State . . .

(h)

    family unity should be respected;

(i)

    all possible assistance should be given for the tracing of relatives

(j)

    adequate provision should be made for the protection of minors and unaccompanied children;

(k)
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    the sending and receiving of mail should be allowed;

(l)

    material assistance from friends or relatives should be permitted;

(m)

    appropriate arrangements should be made, where possible, for the registration of births, deaths and marriages;

(n)

    they should be granted all the necessary facilities to enable them to obtain a satisfactory durable solution;

(o)

    they should be permitted to transfer assets which they have brought into a territory to the country where the durable solution is obtained; and

(p)

    all steps should be taken to facilitate voluntary repatriation.
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UNHCR Ex. Comm. Conclusion No. 22 (32nd Session 1981). The United States is bound to ensure that asylum-seekers arriving at any port within its jurisdiction are afforded these most basic human rights.

V. CONCLUSION

    Asylum-seekers in or brought to Guam must be afforded the rights to which they are entitled under U.S. and international law, whether this is done in Guam or on the U.S. mainland. The responsibility for ensuring that the rights of asylum-seekers are protected rests with the federal government, as, it would seem, does the cost of securing these rights. Although we recognize the understandable frustration of the Guamanian government with the failure of the federal government to assume these costs, we submit that the legislative proposal now under consideration is ill-founded and, in any event, is unlikely to resolve the current crisis facing Guam.

    In 1996, the United States radically altered its asylum law, severely undermining the ability of refugees who arrive at ports of entry without valid travel documents to obtain protection. H.R. 945 would further undercut the ability of refugees to gain asylum by denying to certain asylum-seekers—those arriving in Guam—even the limited rights provided under current law. For this reason, the Lawyers Committee for Human Rights opposes H.R. 945.

     

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PREPARED STATEMENT OF CONGRESSMAN CHARLES GONZALEZ ON H.R. 456

    Chairman Smith and Members of the Subcommittee,

    Thank you for the opportunity to provide testimony in support of the claims of the families of the fifteen brave American military personnel that died in the tragic downing of two Blackhawk helicopters in Iraq on April 14, 1994. The pain and anguish these families have gone through is almost incomprehensible to me, and I am deeply saddened by the failure of the Department of Defense to treat these families and their claims with the proper respect that they deserve. The Department by its actions has prolonged and exacerbated the pain that these families have had to endure.

    At heart, this case for me is ultimately about respect. By compensating the families of the foreign nationals who died in this tragedy at a rate of $100,000 more than the compensation provided each American survivor family, the Department of Defense has implicitly signaled that it views the lives of certain foreign nationals to be of greater worth than those of its own personnel. This is an act of profound disrespect not only for the lives of these military personnel, but also for the proud military tradition each one dedicated his or her life to serving.

    Though the deaths of the foreign nationals in this incident were certainly tragic, to provide a higher level of compensation for them, simply out of concern for foreign policy considerations, is to put policy above principle, and our foreign allies above our own citizens. Allowing the actions of the Department of Defense in this matter to stand, will further undermine the already teetering trust that American military personnel and Americans in general have in their leaders and their government.
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    This tragedy has had a profound impact on the lives of each one of the families concerned. Retired Air Force Captain Cleon and Cornelia Bass, both residents of my district, have experienced a tremendous amount of pain since their son Sergeant Cornelius Anthony Bass died in Iraq. Cornelius's tragic death has driven Captain Bass to retire from the military that he has long served. The Air Force uniform that he has worn every day for nineteen years has become simply too painful to wear. For the Department of Defense to compound the pain of Captain Cleon and Cornelia Bass, as well as that of the other survivor families, by not treating the deaths of their children with the same respect that it has treated that of its foreign allies, dishonors our fine military and this country.

    It is for these reasons I strongly support the efforts of the survivor families of the American Black Hawk shootdown victims to receive compensation equal to that of the foreign nationals involved. To do otherwise would disrespect every American who has put on a military uniform and placed his or her life at risk for the security of this great country. It is time that these dead American heroes receive the dignity and respect that they fully deserve.

     

PREPARED STATEMENT OF THE SENATE OF THE COMMONWEALTH OF THE NORTHERN MARIANAS ISLANDS, THE HOUSE OF REPRESENTATIVES OF THE COMMONWEALTH OF THE NORTHERN MARIANAS ISLANDS AND THE TWENTY-FIFTH GUAM LEGISLATURE

    Chairman Smith and the Distinguished Members of the Sub-Committee:

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    Thank you for this opportunity to testify on the important matter of H.R. 945. The facts before us are simple and grave. In the past two years, criminal organizations euphemistically known as ''snake heads'' operating out of Fujian Province in the People's Republic of China have begun a persistent human smuggling operation, transporting for exorbitant sums of money (approximately $25,000 per person), large numbers of illegal immigrants from Fujian province to Guam in an effort to facilitate such illegal immigrants applying for and receiving asylum in the United States.

    Such smuggling operations have very good chances of success for several reasons. The proximity of Guam to the Chinese Mainland is a major reason, as is the relative absence of significant ability to enforce the American border around Guam due to a lack of federal resources. Yet perhaps the greatest incentive for these smuggling operations is the prevailing and full application of U.S. Immigration Law to Guam, the consequence of which is that immediately upon setting foot on Guam soil, the boatloads of illegal immigrants do become eligible for political asylum.

    The application of U.S. Immigration Law to Guam has resulted in the following:

    Federal sources indicate the likelihood that something in excess of 2,500 to 3,000 individuals may have already been smuggled into Guam in the last two years.

    In addition, over one thousand persons have been interdicted and detained while attempting to land in Guam.

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    While these numbers may not seem large to someone living in a metropolis, please bear in mind that Guam's entire population is in the neighborhood of 150,000 people. Furthermore, the 4,000 or so illegal immigrants who may have been moved into Guam successfully or unsuccessfully represent the barest fraction of Fujian's population of some 35 million, not to mention the more than a billion who inhabit the PRC.

    Rumors abound, primarily from federal officials, that Guam may be facing thousands more illegal immigrants, on their way from Fujian, on an emerging flotilla of rickety fishing vessels.

    Why are they trying to get to Guam? Because this is where the INS is. Because in Guam, the writ of U.S. Immigration Law runs.

    It is a great irony that the very presence of the Immigration and Naturalization Service and the application of U.S. Immigration Law is what draws these illegal immigrants to Guam. They do not come here for the sunshine. If it is possible for these individuals to be smuggled in unawares by the ''snake-head'' gangs engaged in the smuggling operation, well, they'll take it. But even an outcome involving running a vessel aground on a Guam reef and the passengers jumping overboard and wading to the beach is acceptable to them, as a single passenger pays for the boat in most cases, and as being apprehended by the INS in Guam suits the purposes of both the smuggler and the cargo. Upon apprehension, the illegal immigrants are claiming political asylum, which under Immigration Law is their right. The illegals are detained (at great expense), screened and will at some point be paroled into the community it seems, while awaiting an asylum hearing which can take years. Upon parole, they likely will disappear into the community, either in Guam, or more likely, in the continental United States. Once again, the presence of INS in Guam is not a deterrent to the smuggling of illegal aliens to Guam, nor is the application of Immigration Law. Rather, the INS and the application of Immigration Law to Guam are the magnet that draws them in the first place.
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    The most effective and least expensive means of ending the practice of smuggling illegal aliens into Guam is the removal of the application of United States Immigration Law to Guam. This is an indisputable fact.

    This solution is most effective because it removes all incentive for the smuggling to occur. Guam is a wonderful place, but it is the chance for asylum and eventual citizenship that compels these folks to pay exorbitant sums of money to criminal organizations to transport them illegally to Guam.

    It is the least expensive because the alternative, the enforcement of Guam's borders by the INS and the Coast Guard, will cost both the federal government and the government of Guam millions and millions of dollars a year, in perpetuity.

    Even with the temporary upgrading of personnel that prevails in Guam and the CNMI as we speak, federal resources in Guam to combat this smuggling are utterly inadequate. At any one time, there have only been a maximum of two Coast Guard vessels to patrol an area of two and a half million square miles of ocean in the area surrounding Guam and the CNMI. The interdiction of smuggling vessels is neither the sole nor primary mission of these Coast Guard vessels, who are also responsible for maintenance of navigation buoys, rescue operations, aquatic safety and the economic patrolling of the Exclusive Economic Zone. Only recently has a single aircraft been provided to our Coast Guard contingent for patrol purposes, and that only on a temporary basis. If the federal government truly wishes to guard a border surrounding Guam, it will require the permanent upgrading of Coast Guard facilities in Guam to full station status, the permanent assignment of additional cutters, the permanent assignment of an air patrol capability with both fixed wing and helicopter aircraft, and all the attendant personnel upgrades in numbers and in new skills. The cost of this upgrade will be millions every year . . . forever.
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    That would just be the beginning. The Immigration and Naturalization Service in Guam would have to be drastically upgraded as well. The normal contingent of personnel and INS facilities in Guam could not even begin to deal with a problem of this magnitude. Under normal circumstances, the INS contingent in Guam is quite small, with only enough personnel to man shifts at the Guam International Airport to screen incoming passengers (all of them) and to screen all passengers, including those from Guam, travelling to the United States (yes, Guam residents must go through INS to get into the United States. Travel from Guam to Hawaii is international travel in nature . . . not domestic . . . and for all practical purpose, a national border between Guam and the United States already exists).

    The INS has virtually no permanent capability to investigate, interdict or detain illegal immigrants in Guam. None. To the extent that such activities have taken place in Guam, they have been carried out in large measure using local government resources and the cost has been ours, even though the policy is neither Guam's nor the CNMI's.

    The INS presence in Guam is so small that in normal times, it doesn't cost the federal government a penny, rather it makes millions in profit every year. This is due to the fact that inspection fees collected by INS at our airport greatly exceed the cost associated with the INS presence in Guam. The surplus is used to supplement INS operations in the United States.

    If the INS is truly to be expected to patrol Guam's borders and investigate, interdict and detain persons associated with smuggling illegal aliens into Guam, it will require the permanent assignment of large numbers of INS personnel to Guam, again in new skill areas, the transfer of additional equipment and material, and the construction and operation of permanent detention facilities. This would clearly cost millions of dollars, every year as well.
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    Is their any reason for the United States treasury to assume these permanent costs? There is not. Would it be fair to transfer these costs to the governments of Guam or the CNMI when this policy is not a policy of our creation? Clearly not.

    Not when, with a stroke of a pen, this problem, and these costs, can be eliminated.

    A solution presents itself to us that is elegant in its simplicity.

    As a border already exists between Guam and Hawaii (which is why Guam residents must be screened by INS before entering the United States), then let us simply move INS to where the border in fact is, and let us change Immigration Law to reflect that fact.

    If we do this, they will not come. And should a few still make the trip, Guam will guard its border as it already does. All detained illegal aliens currently in Guam are being detained at our own Department of Corrections. Most apprehensions have been made by our own Police Force.

    Will the ''snake-heads'' then try to direct their traffic to Hawaii? Perhaps. But it is far less likely they will bother. Hawaii is thousands of miles more distant from Fujian province than Guam. It has the resources and ability to truly interdict smuggling on a regular basis. The enterprise would be far more risky and less profitable, and let us make no mistake, the basis of this whole operation is profit for mainland China criminal organizations.

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    What does the United States risk by doing this? Nothing.

    To understand this, we must briefly examine why there is an INS presence in Guam at all.

    In the period immediately after World War 2, the United States made a massive investment in Guam as a military base. Due to the large number of strategic air force and naval facilities in Guam, inclusive of a SAC Base, a polaris/poseidon submarine station, a Naval Port, a Naval Air Station, a magazine which stored nuclear weapons, a SOSUS anti-submarine listening post, critical communications facilities, et al., the government imposed a security clearance requirement for anyone entering Guam, including returning Guam natives and residents. This clearance requirement was lifted in 1962, but because of security concerns, the umbrella of Immigration Law was extended over Guam.

    Over the past twenty years, much has changed. Guam no longer provides a base for submarines. The SAC base has been closed (as has SAC), and the air force facilities have been reduced to a contingency runway, with no permanent aircraft assigned to the base. Nuclear weapons have been removed from Guam and the submarine listening post has been shut down with the facility converted to a Wildlife Refuge. The Naval Air Station has been closed and the facility has been reverted to the government of Guam. The Naval Port is much diminished in scope and communications facilities have been drastically scaled back and now serve only in the small capacity as redundant systems to back-up satellite based communications. In short, Guam has lost most of its strategic value, most of the bases have been closed or mothballed, and such that remain are primarily contingency facilities with little day to day function. Thousands of military personnel have been transferred away and thousands of local people who once worked for the federal government supporting these bases have lost their jobs. The security concerns that once compelled the imposition of US Immigration authority no longer exist.
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    Rather, Guam has developed a tourism-based private economy to replace the military-based economy that is only a part of our history now, and to the extent that the INS has effect in Guam at all, it is as an impediment to the growth of that industry and the prosperity of our people inasmuch as it discourages easy tourism through visa requirements that our competitors in this part of the world need not be troubled with.

    It is bad policy for the United States to continue the application of Immigration law to Guam as it serves no vital US interest, it promises to cost the federal government tens of millions each and every year to enforce, and it actually encourages illegal immigration into Guam. The revocation of such policy over Guam would be beneficial to Guam as it would promote the develop of our tourism industry and relieve the federal government of additional financial burden.

    The ultimate irony is that it is precisely the freedom of our brothers and sisters in the Northern Marianas from US Immigration law that has provided the only ray of hope during this crisis. The INS has established a camp on the Island of Tinian in the Northern Marianas to detain illegal aliens apprehended on the high seas before they arrive in Guam. They have done this because illegal aliens have no asylum rights on CNMI soil. Illegal aliens detained in the CNMI can and will be repatriated to China. All this is possible because the CNMI is exempt from US Immigration law.

    The federal administration has made no secret of its desire to end the CNMI's exemption from Immigration law, as have several members of Congress. It seems contradictory for the federal government to oppose this prevailing policy in the CNMI, and at the same time exploit it as the only escape clause in this crisis scenario, using the CNMI as a Pacific version of Guantanamo Bay.
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    Imagine for a moment if the CNMI, comprised of several islands, including many that are uninhabited, scattered across hundreds of miles of ocean, became US soil for immigration purposes. It would be impossible to prevent the incursion of smuggler's vessels across this frontier. It is difficult enough to prevent these incursions in Guam, which is a single island.

    Logic dictates that we simply follow the mandates of geography. Hawaii is the de facto border of the United States for immigration purposes. That this is so is reinforced by the fact that the people of Guam and the CNMI, despite their American citizenship, must pass through immigration control to enter the US, such not being the case for Americans from the fifty states. Guam and the CNMI are easily accessible, by sea, from the Asian landmass and will forever be attractive to smuggling of illegal aliens for this reason alone, should the incentive of Immigration apply. The borders around Guam and the CNMI cannot be guarded without a massive and perpetual increase in federal spending, and even then, the results of such an effort will fall short of completely eradicating smuggling activities.

    Congressman Underwood's bill is a very good start. We ask Congress to accept that start, and expand upon it by simply removing Guam from the writ of US Immigration law, cleanly.

    This is the most effective, least expensive and best solution for all of us.

    Thank you.
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(Footnote 1 return)
Wong, Brad, ''Officials Seek Solutions To Crisis,'' The Pacific Daily News, May 17, 1999, p.3


(Footnote 2 return)
Pub.L. No. 96–212; See INS v. Cardoza-Fonseca, 480 U.S. 407 (1987).


(Footnote 3 return)
The Universal Declaration of Human Rights, in Article 14(1) declares that ''[e]veryone has the right to seek and enjoy in other countries asylum from persecution.'' General Assembly Resolution 217A (III) of 10 December 1948. See G.S. Goodwin-Gill, The Refugee in International Law (1983) at 101–123 (discussing asylum as a form of discretionary State power).


(Footnote 4 return)
See Goodwin-Gill, supra note 2, at 69–100.


(Footnote 5 return)
See INS v. Stevic, 467 U.S. 407 (1984). While the Court determined that Congress had intended to continue to utilize a domestic law standard (probability of persecution) in adjudicating withholding claims, it suggested that the Attorney General, through an exercise of discretion in asylum adjudications, could avoid any incompatibility with international standards. Id. at 428–30 n.22.


(Footnote 6 return)
See S. Rep. No 256, 96th Cong., 1st Sess. (1979); 125 Cong. Rec. 23,231 (1979); Refugee Act of 1979: Hearing on H.R. 2816 before the Subomm. on International Law of the House Comm. On the Judiciary, 96th Cong., 1st Sess. (1979) at 27.


(Footnote 7 return)
Evidence suggests that the use of coercive family planning practices may be particularly acute in Fujian province, from which it is believed many of the Chinese immigrants currently seeking asylum in Guam have come: ''In June, a former Fujian province local family planning official stated that local authorities in a Fujian town systematically used coercive measures such as forced abortion and sterilization, detention, and the destruction of property to enforce birth quotas.'' DOS Country Report, http://www.state.gov/www/global/human—rights/1998—hrp—report/ at 16–17 (1999).