Implementation of the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism

SPEAKERS       CONTENTS       INSERTS

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2001
IMPLEMENTATION OF THE INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF TERRORIST BOMBINGS AND THE INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF THE FINANCING OF TERRORISM

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

ON
H.R. 3275

NOVEMBER 14, 2001

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Serial No. 46

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://www.house.gov/judiciary

COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California

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MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana

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
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California

PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel

Subcommittee on Crime

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LAMAR SMITH, Texas, Chairman
MARK GREEN, Wisconsin
HOWARD COBLE, North Carolina
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
RIC KELLER, Florida
[VACANCY]

ROBERT C. SCOTT, Virginia
SHEILA JACKSON LEE, Texas
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California

JAY APPERSON, Chief Counsel
SEAN MCLAUGHLIN, Counsel
ELIZABETH SOKUL, Counsel
KATY CROOKS, Counsel
BOBBY VASSAR, Minority Counsel

C O N T E N T S

NOVEMBER 14, 2001

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OPENING STATEMENT
    The Honorable Lamar Smith, a Representative in Congress From the State of Texas, and Chairman, Subcommittee on Crime

    The Honorable Robert C. Scott, a Representative in Congress From the State of Virginia, and Ranking Member, Subcommittee on Crime

WITNESSES

Mr. Michael Chertoff, Assistant Attorney General, Criminal Division, U.S. Department of Justice
Oral Testimony
Prepared Statement

Mr. Samuel M. Witten, Acting Deputy Legal Advisor, U.S. Department of State
Oral Testimony
Prepared Statement

APPENDIX

Statements Submitted For The Record

    The Honorable Sheila Jackson Lee, a Representative in Congress From the State of Texas

Material Submitted For The Record

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    International Convention for the Suppression of the Financing of Terrorism

    International Convention for the Suppression of Terrorist Bombings

IMPLEMENTATION OF THE INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF TERRORIST BOMBINGS AND THE INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF THE FINANCING OF TERRORISM

WEDNESDAY, NOVEMBER 14, 2001

House of Representatives,
Subcommittee on Crime,
Committee on the Judiciary,
Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:11 a.m., in Room 2237, Rayburn House Office Building, Hon. Lamar Smith [Chairman of the Subcommittee] presiding.

    Mr. SMITH. The Subcommittee on Crime will come to order. I appreciate the good attendance we have this morning, and all the Members who are here, I want to thank them for coming. I also want to say, as I said before, I always appreciate the Ranking Member, Mr. Scott, not only being on time but occasionally, as he was today, actually here before I was. I appreciate his promptness in that regard.

    Today we are going to have a hearing and a markup on H.R. 3275, the Implementation Legislation for the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism. That will be followed by a markup on H.R. 3209, the Anti-Hoax Terrorism Act of 2001.

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    I am going to recognize myself for the purposes of giving an opening statement, and my opening statement will serve for both the hearing and the markup because I hope that we will be able to proceed directly to the markup. And I would encourage Members to mention in their opening statement now what they might have mentioned in their opening statement for the markup as well.

    International terrorism once threatened Americans only when they were outside this country. Today, every American must live their lives conscious of the fact that the war on terrorism is being fought not only in other countries, but also in our own.

    International cooperation is one way to defeat terrorism and is critically important to our success. H.R. 3275 implements two treaties that have been signed by the United States and transmitted to the Senate. Both were initiated under the Clinton Administration.

    The first treaty, the International Convention for the Suppression of Terrorist Bombings, was drafted by the United States in the wake of the bombing attack of the United States military personnel in Saudi Arabia in 1996. This treaty creates international jurisdiction over the unlawful and intentional use of explosives and other lethal devices in public places with the intent to kill or cause serious bodily injury, or with the intent to cause the extensive destruction of the public place.

    The treaty requires nations to extradite or submit for prosecution persons accused of committing or aiding in the commission of such offenses. Thirty-seven nations are currently party to the convention, which became effective internationally on May 23, 2001. Hopefully, of course, the United States will be the 38th country.

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    The second treaty is the International Convention for the Suppression of the Financing of Terrorism, which was drafted in 1998. This convention imposes binding legal obligations upon nations either to submit for prosecution or to extradite any person within their jurisdiction who unlawfully and willfully provides or collects funds with the intention that they be used to carry out terrorist activities. Nations also are required to take appropriate steps for the detention, freezing, seizure, or forfeiture of any funds used or allocated for the purposes of committing terrorist acts.

    By approving this legislation, we will avoid any delay in implementing these treaties once they have been drafted by the required 22 nations.

    Some might oppose this legislation because the bill provides for the possibility of the death penalty for those international terrorists who blow up public buildings and kill innocent people. Others might be opposed because these new terrorist laws will be added as predicate offenses to our laws on wiretaps, money laundering, and material support for terrorism.

    However, we already have laws in place that provide for the death penalty for terrorists that murder innocent civilians, so the provisions of this bill are consistent with current law.

    Furthermore, this bill simply amends current laws against terrorism to include crimes of terrorist bombings and financing terrorism.

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    Changing or delaying these conventions would handcuff our law enforcement officers in their efforts to bring terrorists to justice. These treaties, once they are ratified and implemented, will fill an important gap in international law by expanding the legal framework for international cooperation in the investigation, prosecution, and extradition of persons who engage in bombings and financially support terrorist organizations. At a time when other nations are being asked to support our coalition efforts, we should act promptly to join them in these treaties to fight international terrorism.

    I look forward to hearing from our witnesses today and will now recognize the Ranking Member, Mr. Scott, for his opening statement.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Before I begin my statement, I would like to ask you to consider holding hearings on some of the recent actions by the Administration, including the idea that Government officials can listen in to attorney-client conversations and this more recent new kind of trial in secret that has been in the press. I am not sure about the details of it, but I think we need to have hearings on that. They involve fundamental principles of law that have been well established over decades, and they appear to be summarily being set aside by Executive orders without any legislative consideration at all. And we ought to at least have hearings to see what is going on.

    Having said that, Mr. Chairman, I am pleased to join you in convening this hearing on implementing legislation for the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism. These treaties have been pending for some time, and I applaud the President's recent resolve in having them now ratified.

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    I am concerned that right on the heels of hurriedly enacting into law an anti-terrorism bill laden down with severe penalties and severe intrusions into traditional civil liberties, we are now asked to enact, again, in a hurry, yet another such bill.

    The anti-terrorism bill we just enacted was represented by the Administration as a comprehensive anti-terrorism bill designed to address terrorism threats in this country. Included in the bill, however, were unprecedented extensions of wiretap, RICO asset forfeitures, and punishments which were enacted into law, many of which had nothing to do with terrorism. Some of the wiretap provisions, in fact, had nothing to do with any crimes.

    This bill before us provides for further extensions of these drastic measures and even goes further by adding additional death penalty provisions with no indication that such measures are required for or have anything to do with the ratification of treaties which have been pending before the Senate since 1999.

    Indeed, Mr. Chairman, from a cursory review of the treaty requirements, I am wondering what is required by the treaty that is not already a crime under our laws.

    So, Mr. Chairman, I look forward to the testimony of our witnesses and for the light they will shed on these questions and concerns, and I join you in welcoming them to this hearing.

    Mr. SMITH. Thank you, Mr. Scott.

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    Are there other Members who have opening statements? Anyone else? If not, we will proceed. Again, I welcome the witnesses, and let me introduce them in the order in which they will testify.

    First is Mr. Michael Chertoff, Assistant Attorney General, Criminal Division, U.S. Department of Justice; and Mr. Sam Witten, Deputy Legal Adviser, U.S. Department of State.

    Gentlemen, I have one comment for you that I hope you will take in the spirit in which it is offered, and it is this: One of two things is going to happen. Either I am going to have to retract all those things I said about Administration witnesses under the Clinton Administration who didn't get their testimony to us on time, or this Administration is going to have to change its habits.

    We need a little bit better cooperation both in securing witnesses and in getting your testimony because if we don't get them in a timely fashion, basically you inconvenience a lot of people, including the Crime Subcommittee staff and others. And it is also not fair to the Members not to get information in a timely fashion. And I hope you all understand that.

    Okay. No response is required, but I would like an affirmative reply at some point that we can change the habits of this current Administration.

    Thank you for listening to that comment, and, Mr. Chertoff, we will begin with you.

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STATEMENT OF MICHAEL CHERTOFF, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, UNITED STATES DEPARTMENT OF JUSTICE

    Mr. CHERTOFF. Thank you, Mr. Chairman. Speaking from my corner of the world, we will change our habits and try to make sure we get material to you in a timely fashion. And I apologize if we were late in this instance.

    Mr. Chairman, Ranking Member Scott, Members of the committee, I am pleased to be here today to speak in favor of this legislation which would implement two important anti-terrorism conventions: the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism. In the view of the Department of Justice, both of these instruments are critical to our continuing efforts to prevent, deter, and combat terrorist acts.

    We have provided a statement, and I would ask, Mr. Chairman, with your consent, to have it be made part of the record.

    Very briefly, just last month, I testified in the Senate to endorse the Senate's advice and consent to the ratification of these conventions. Both of these instruments are designed to strengthen the international alliance against terrorism, and they aim at a seamless network of zero tolerance for terrorist acts and their financing. And there are really two provisions or two conventions we are talking about here.

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    The first is the Terrorist Bombings Convention which addressees the most utilized form of terrorism, which is the bombing of public places and State and Government facilities, et cetera, with the intent to cause death or serious bodily injury. This proposed implementing legislation would enact a new section 2332(f) of title 18 to make terrorist acts that are covered by the convention a crime.

    The heart of the provision would make it a Federal offense to unlawfully deliver or detonate an explosive or other lethal device in a place of public use, Government facility, public transportation system, et cetera, with the intent to cause death or serious bodily injury, and significantly, the phrase ''explosive or other lethal device'' covers biological, chemical, or radiological weapons, as well as conventional explosives.

    Notable as well under the law is the broad extraterritorial jurisdiction over offenses committed outside the United States, to include situations where, for example, a victim or perpetrator is a national of the U.S. abroad or the perpetrator is found in the United States. And I should observe that there are exemptions from jurisdiction for activities of armed forces during armed conflict that are governed by the law of war, and for activities undertaken by military forces of a state in the exercise of official duties.

    Let me turn briefly now to the Financing Convention. That, of course, addresses the lifeblood of terrorism, which is funding of terrorism, and it embodies the recognition that those who pay for terrorism are as guilty and as culpable as those who actually pull the trigger or press the detonator on the bombs.

    Again, the implementing legislation would enact a new criminal provision, 18 U.S.C. 2339C, making it a crime to unlawfully and willfully provide or collect funds with the intention or knowledge that the funds will be used to commit an offense under a specified treaty or to carry out any act intended to cause death or serious bodily injury to a civilian, when the purpose of the act is to intimidate a population or compel a government or international organization to do or abstain from doing an act. And, again, we have broad jurisdiction over offenses that take place in the U.S. where there is some kind of international connection or over an offense that takes place outside the U.S. if there is some connection with the United States.

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    Let me conclude by saying, Mr. Chairman, that the Administration is convinced that adoption of these proposals is important to the ongoing war against international terrorism. Not only do they provide the Federal Government with important and useful tools but, more important, I think here they send a very significant message to the international community that we are going to try to move in lockstep and in a uniform fashion in taking those measures that are necessary to combat both terrorism and terrorist financing.

    Accordingly, we urge Congress to adopt these legislative proposals as soon as possible, and I am happy to answer any questions.

    [The prepared statement of Mr. Chertoff follows:]

PREPARED STATEMENT OF MICHAEL CHERTOFF

    Mr. Chairman and Members of the Committee, I am pleased to be here today to speak in favor of legislation that would implement two important anti-terrorism conventions, the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism. In the view of the Department of Justice, both instruments are critical to the efforts of the United States to prevent, deter and combat terrorist acts.

    Just last month, I testified in the Senate to endorse its advice and consent to the ratification of these conventions. Both instruments serve to strengthen the international norm against terrorism and reinforce the international community's intolerance for, and condemnation of, terrorist acts and their financing. Each Convention explicitly recognizes that there is no justification, no rationale that will excuse the commission of terrorist acts or the financing and support of those acts.

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    The Terrorist Bombings Convention addresses the most utilized form of terrorism, the bombing of public places, state or government facilities, public transportation systems or infrastructure facilities, with the intent to cause death or serious bodily injury. The proposed Terrorist Bombings Convention Implementation Act of 2001 would enact a new section 18 U.S.C. §2332f that would make terrorist acts covered by the Convention a crime.

    The heart of this provision, proposed subsection 2232f(a), would make it a federal offense to unlawfully deliver or detonate an explosive or other lethal device in a place of public use, a government facility, a public transportation system, or an infrastructure facility with intent to cause death or serious bodily injury, or with the intent to cause extensive destruction where such destruction results in or is likely to result in major economic loss. Notably, the phrase ''explosive or other lethal device'' covers biological, chemical, or radiological weapons, as well as conventional explosives. Attempts and conspiracies are also criminalized.

    Jurisdiction over these offenses is spelled out in proposed subsection 2332f(b). Under that subsection, there is broad extraterritorial jurisdiction over offenses committed outside the United States, to include situations where a victim or perpetrator is a national of the United States or the perpetrator is found in the United States. Jurisdiction over offenses that take place in the United States extends to situations, such as where the offense is committed against a foreign government or the offense is committed in order to compel the United States to do or abstain from doing any act. Also, pursuant to proposed section 2332f(d) and the Convention, there are exemptions from jurisdiction for activities of armed forces during an armed conflict that are governed by the law of war, and for activities undertaken by military forces of a State in the exercise of their official duties.

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    Commensurate with the heinous nature of a terrorist bombing, the statutory penalty for the proposed offense is any term of years or life imprisonment, and if death results, the death penalty is an option.

    The Terrorist Bombings Convention entered into force internationally on May 23, 2001. Pending Senate advice and consent, the United States is a signatory but not yet a party. Hence, section four of the implementing legislation provides that the operative provisions of the legislation will go into effect on the date that the Terrorist Bombings Convention enters into force for the United States. It should be noted that other state and federal laws criminalize terrorist bombings (see, e.g., 18 U.S.C. §844(i); 18 U.S.C. §2332a), and this legislation will supplement, and in no way supplant or restrict, those other statutes.

    I turn now to implementation of the Terrorist Financing Convention. That Convention addresses a common element of every terrorist act—financing and other support. It embodies the important recognition that the financiers of terrorist acts are as reprehensible as those who commit the terrorist acts themselves, and that such financing must be deterred and punished.

    The Suppression of the Financing of Terrorism Convention Implementation Act of 2001 would enact a new criminal provision, proposed 18 U.S.C. §2339C, making it a crime to unlawfully and willfully provide or collect funds with the intention or knowledge that such funds are to be used to 1) commit an offense under a specified antiterrorism treaty, or 2) carry out any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population or to compel a government or international organization to do or abstain from doing any act. Attempts and conspiracies would also be criminalized.

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    The jurisdictional bases for the proposed offense are set forth in proposed 18 U.S.C. §2339C(c). Essentially, there is jurisdiction over an offense that takes place in the United States if: 1) there is some type of international nexus (e.g., the perpetrator was a national of another state or the perpetrator is found outside the United States); or 2) there is a nexus with interstate or foreign commerce. There is jurisdiction over an offense that takes place outside of the United States if there is a nexus with the United States (e.g., the perpetrator is an United States national or is found in the United States). Finally, there is also jurisdiction over an offense when the offense is committed on board a U.S. ship or aircraft, or where the underlying terrorist act is being committed in an attempt to compel the United States to do or abstain from doing any act.

    The proposed legislation creates another offense, proposed 18 U.S.C. §2339C(b), which would enhance the ability of U.S. law enforcement authorities to combat the financing of terrorists and their organizations. Specifically, proposed section 2339C(b) would criminalize knowingly concealing or disguising the nature, location, source, ownership or control of: 1) any funds provided or collected in violation of proposed subsection 2339C(a); 2) any proceeds of such funds; and 3) any material support or resources provided to a designated foreign terrorist organization in violation of 18 U.S.C. §2339B. Concealing or disguising such terrorist assets impedes law enforcement, and it is important to deter and punish such activity.

    Commensurate with the seriousness of these offenses, the penalty for violating proposed section 2339C(a) is up to 20 years imprisonment, and the penalty for violating proposed section 2339C(b) is up to 10 years imprisonment.

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    In addition to the new criminal offenses, the implementing legislation would also create a new civil penalty. Proposed subsection 2339C(f) creates a civil penalty of at least $10,000 payable to the United States against an American corporation or other legal entity, if any person responsible for its management or control has, in that capacity, committed an offense set forth in proposed subsection 2339C(a). This subsection implements Article 5 of the Terrorist Financing Convention.

    The Terrorist Financing Convention is not yet in force internationally, but will enter into force after twenty-two states have ratified it. The Convention was transmitted to the Senate for its advice and consent to ratification on October 12, 2000. Thus, section four of the implementing legislation provides that two jurisdictional provisions, based on the presence alone of the offender within the United States and on no other nexus with the United States, will not go into effect until the Terrorist Financing Convention enters into force for the United States. However, the effective date for all remaining provisions of the Act would be upon enactment. This is because Congress currently has constitutional authority to enact those provisions, including the commerce and foreign relations powers.

    In conclusion, Mr. Chairman, the Administration is convinced that adoption of these proposals implementing of the Terrorist Bombing and Terrorist Financing Conventions is important to the ongoing war against international terrorism. They will provide the federal government with important and useful new tools to combat terrorist acts and those who finance them. In addition, enactment will send an significant message to the international community regarding the importance of taking necessary steps to become a party to the Terrorism Financing Convention. I urge the Congress to enact these legislative proposals as soon as possible. Thanks you, and I would be happy to answer any questions you might have.

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    Mr. SMITH. Thank you, Mr. Chertoff.

    Mr. Witten.

STATEMENT OF SAMUEL M. WITTEN, ACTING DEPUTY LEGAL ADVISER, UNITED STATES DEPARTMENT OF STATE

    Mr. WITTEN. Thank you, Mr. Chairman, Ranking Member Scott. I would like to begin by echoing Mr. Chertoff's comments. We apologize that our statements arrived late, as I understand it, and we will do everything we can to provide documents and statements to you in a more timely way.

    Mr. Chairman, with your permission I would like to submit my complete statement for the record and summarize my comments.

    Mr. SMITH. Without objection, both of your complete opening statements will be made a part of the record.

    Mr. WITTEN. Thank you, Mr. Chairman.

    I am pleased to appear before you today, following Assistant Attorney General Chertoff, to speak in support of the Administration's proposed implementation legislation for the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism.

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    The State Department worked closely with the Justice Department in the negotiation of these conventions at the United Nations between 1997 and 1999. Mr. Chertoff has provided an overview of the Administration's draft legislation. I will now provide some additional background on the history and purpose of these new international law enforcement conventions so as to put them in context for the committee.

    As a preliminary matter, I note that two steps are to be taken before the United States becomes a party to these two conventions. Because these are treaties, they have been submitted to the United States Senate for advice and consent to ratification. The Senate Foreign Relations Committee held a hearing on the conventions on October 23, 2001, and we hope will soon make a favorable recommendation of advice and consent to the full Senate.

    In this connection, Mr. Chairman, we learned this morning that the Foreign Relations Committee has included these two conventions on its agenda at a meeting that is starting in 5 minutes, at 10:30, and is scheduled to report them out favorably. We won't know that that has happened until action is complete, but our information from Senate staff this morning is that the business committee meeting is going forward as scheduled.

    The conventions will need to be approved by the full Senate after the Foreign Relations Committee completes its work before the President can ratify them. In addition to the Senate process, U.S. domestic implementing legislation is being proposed to cover the offenses described in Article 2 of the convention. This legislation must be passed by both Houses of Congress and signed by the President before the United States will deposit its instruments of ratification. The legislation under consideration today by the Subcommittee on Crime is intended to address the second requirement.

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    These two conventions follow the general models of prior terrorism conventions negotiated by the United States at the United Nations or its Specialized Agencies, including, for example, the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft, the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, the 1979 Convention Against the Taking of Hostages, and the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation.

    Nations that become a party to these conventions commit themselves to criminalize the conduct identified in the convention and to cooperate with one another in the investigation and prosecution of the offenses. Each of these prior conventions has also required implementing legislation enacted by both Houses of Congress in addition to U.S. Senate advice and consent to ratification.

    These two conventions have distinct histories. The UN General Assembly adopted the International Convention for the Suppression of Terrorist Bombings, commonly called the ''Terrorist Bombings Convention,'' on December 15, 1997. The United States initiated the negotiation of the convention in July 1996 in the aftermath of the June 1996 bombing attack on U.S. military personnel at the Khobar Towers facility in Dhahran, Saudi Arabia, in which 17 U.S. Air Force personnel were killed. That attack followed other terrorist attacks in 1995 and 1996, including poison gas attacks in Tokyo's subways, bombing attacks by Hamas in Tel Aviv and Jerusalem, and a bombing attack by the IRA in Manchester, England. The convention fills an important gap in international law by expanding the legal framework for international cooperation in the investigation, prosecution, and extradition of persons who engage in such bombings and similar attacks.

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    The Terrorism Financing Convention has a different history. It was adopted by the UN General Assembly on December 9, 1999. France initiated the negotiation of this convention in the fall of 1998, with strong support and input from the United States, as part of the Group of Eight Industrialized Nations initiative to combat terrorist financing. The convention fills an important gap in international law by expanding the legal framework for international cooperation in the investigation, prosecution, and extradition of persons who engage in financing terrorism.

    Mr. Chairman, the State Department joins the Justice Department in asking that the committee act favorably on the Administration's proposed implementing legislation so that the United States will be able to become a party to these two law enforcement conventions in the very near future.

    I will be happy to answer any questions the committee may have. Thank you, Mr. Chairman.

    [The prepared statement of Mr. Witten follows:]

PREPARED STATEMENT OF SAMUEL M. WITTEN

    Mr. Chairman and Members of the Committee:

    I am pleased to appear before you today, following Assistant Attorney General Michael Chertoff, to speak in support of the Administration's proposed implementation legislation for the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism.

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    The State Department worked closely with the Justice Department in the negotiation of these Conventions at the United Nations between 1997 and 1999. Mr. Chertoff has provided an overview of the Administration's draft legislation. I will provide additional background on the history and purpose of these new international law enforcement conventions so as to put them in context for the Committee.

    As a preliminary matter, I note that two steps are to be taken before the United States becomes a party to these two Conventions. Because these are treaties, they have been submitted to the United States Senate for advice and consent to ratification. The Senate Foreign Relations Committee held a hearing on the Conventions on October 23, 2001, and we hope will soon make a favorable recommendation of advice and consent to the full U.S. Senate. The Conventions will need to be approved by the full Senate before the President can ratify them. In addition to the Senate process, U.S. domestic implementing legislation is being proposed to cover the offenses described in Article 2 with respect to the offenses described in the Conventions. This legislation must be passed by both Houses of Congress and signed by the President before the U.S. will deposit its instruments of ratification. The legislation under consideration today by the Subcommittee on Crime is intended to address the second requirement.

    These two Conventions follow the general models of prior terrorism conventions negotiated by the United States at the United Nations or its Specialized Agencies to which the United States is already a party, such as the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft, the 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, the 1979 Convention Against the Taking of Hostages, and the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation. Nations that become a party to these Conventions commit themselves to criminalize the conduct identified in the Convention and to cooperate with one another in the investigation and prosecution of the offenses. Each of these prior Conventions has also required implementing legislation enacted by both Houses of Congress in addition to U.S. Senate advice and consent to ratification.

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INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF TERRORIST BOMBINGS

    The UN General Assembly adopted the International Convention for the Suppression of Terrorist Bombings, commonly called the ''Terrorist Bombings Convention,'' on December 15, 1997. The United States signed the Convention on January 12, 1998, the first day it was open for signature. The Convention entered into force in May 2001.

    The United States initiated the negotiation of the Terrorist Bombings Convention in July 1996 in the aftermath of the June 1996 bombing attack on U.S. military personnel at the Khobar Towers in Dhahran, Saudi Arabia, in which seventeen U.S. Air Force personnel were killed. That attack followed other terrorist attacks in 1995–96 including poison gas attacks in Tokyo's subways; bombing attacks by HAMAS in Tel Aviv and Jerusalem; and a bombing attack by the IRA in Manchester, England. The Convention fills an important gap in international law by expanding the legal framework for international cooperation in the investigation, prosecution and extradition of persons who engage in such bombings and similar attacks.

    More specifically, the Convention will create a regime for the exercise of criminal jurisdiction over the unlawful and intentional use of explosives and other lethal devices in, into or against various defined public places with intent to kill or cause serious bodily injury, or with intent to cause extensive destruction of the public place. An explosive or other lethal device is defined broadly in Article 1 as ''(a) an explosive or incendiary weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage; or (b) a weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage through the release, dissemination or impact of toxic chemicals, biological agents or toxins or similar substances or radiation or radioactive material.'' Thus, in addition to criminalizing the unlawful use of bombs and similar explosive devices, the Convention addresses, for example, the intentional and unlawful release of chemical and biological devices.

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    Like earlier similar conventions, the new Convention requires Parties to criminalize under their domestic laws the offenses set forth in the Convention, if they have an international nexus; to extradite or submit for prosecution persons accused of committing or aiding in the commission of such offenses, if they have an international nexus; and to provide one another assistance in connection with investigations or criminal or extradition proceedings in relation to such offenses.

INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF THE FINANCING OF TERRORISM

    The UN General Assembly adopted a new counterterrorism convention entitled the International Convention for the Suppression of the Financing of Terrorism, commonly known as the ''Terrorism Financing Convention,'' on December 9, 1999. The United States signed the Convention on January 10, 2000, the first day it was open for signature. The Convention will enter into force once twenty-two states deposit their instruments of ratification.

    France initiated the negotiation of this convention in the Fall of 1998, with strong support and input from the United States, as part of the Group of Eight Industrialized Nations initiative to combat terrorist financing. The Convention fills an important gap in international law by expanding the legal framework for international cooperation in the investigation, prosecution and extradition of persons who engage in financing terrorism.

    The Convention provides for States Parties to exercise criminal jurisdiction over the unlawful and willful provision or collection of funds with the intention that they be used or in the knowledge that they are to be used in order to carry out certain terrorist acts set forth in the Convention. This new Convention requires Parties to criminalize under their domestic laws the offenses set forth in the Convention, if they have an international nexus; to extradite or submit for prosecution persons accused of committing or aiding in the commission of such offenses, if they have an international nexus; and to provide one another assistance in connection with investigations or criminal or extradition proceedings in relation to such offenses.

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    The Terrorism Financing Convention is aimed specifically at cutting off the resources that fuel international terrorism. Once in force, the Convention will obligate States to criminalize conduct related to the raising of money and other assets to support terrorist activities.

    As stated in Article 2, a person commits an offense ''if that person, by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used'' to carry out terrorist acts. The first category of terrorist acts consists of any act that constitutes an offense within the scope of one of the nine counter-terrorism conventions previously adopted and listed in the Annex. The second category includes any other act intended to cause death or serious bodily injury to a civilian, or to any other person (e.g., off-duty military personnel) not taking an active part in hostilities in a situation of armed conflict, when the act has a terrorist purpose. An act has a terrorist purpose when, by its nature or context, it is intended to intimidate a population or to compel a government or international organization to do or abstain from doing any act. The offense includes ''attempts,'' ''accomplices,'' and anyone who ''organizes or directs,'' or ''contributes'' to the commission of an offense.

    The State Department joins the Justice Department in asking that the Committee act favorably on the Administration's proposed implementing legislation so that the United States will be able to become a party to these two law enforcement Conventions in the very near future.

    I will be happy to answer any questions the Committee may have.

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    Mr. SMITH. Thank you, Mr. Witten.

    Mr. Chertoff, let me address my first question to you, and it is this—and you touched on this subject in your testimony, but would you explain a little further what the difference is between crimes that are covered under current law and the new crimes that are covered under these two conventions?

    Mr. CHERTOFF. I would be happy to, Mr. Chairman. There may be some overlap in some instances, and that is partly because, as the current law has evolved over time, I don't know that there has been a comprehensive, single statute or effort to create a single statute that covers the waterfront, so to speak, with respect to terrorism. But I can say, for example, with respect to the Bombing Convention, although we are relying to a large extent on existing State and Federal laws in terms of the implementing legislation, this legislation does cover some gaps in the law.

    For example, under current law, as I understand it, if there were a bombing of a foreign government facility within the U.S., let's say a foreign embassy, and if we were not able to prove that the intent of the bombing was to cause the loss of life of a protected person, that would not now be currently covered under the existing law. But this new statute would cover that, and that would be necessary to be consistent with the treaty.

    Likewise, and maybe more significant, with respect to conduct occurring outside the United States, we have a broader jurisdiction under this statute with respect to perpetrators who we find in this country who may be responsible for bombings overseas that don't affect American citizens or don't affect American property. So in the bombing area, those are gaps that we are covering and expansions we are covering.

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    Likewise, in the area of financing, the current anti-terrorist financing law is keyed to a list of specific statutes that are predicate offenses under 2339A, and, of course, 2339B requires the designation of a foreign terrorist organization.

    Here the structure of the new implementing legislation, which is designed to match the convention, is to frame the offense in terms of financing acts of terrorism in general that cause death or serious bodily injury with the intent to affect government policy or the policy of an international organization. So it will cover violations that would not fit within existing predicates. I can give you an example.

    If there is an individual in the U.S. who provides funding for the hijacking of a plane in France where there is no American citizen on the plane and no other U.S. connection, that would not be a violation of the underlying U.S. hijacking statute, and, therefore, we couldn't bring 2339A into play. But under the new legislation, we could cover that because it would fit the new definition of the offense.

    So both of these implementing statutes, although there may be some overlap, cover important areas that are not covered under current U.S. law.

    Mr. SMITH. Thank you, Mr. Chertoff. Those were good points.

    Mr. Witten, if we were to change or amend the legislation at hand, how would that affect either the ratification process or our ability to comply with the treaties?

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    Mr. WITTEN. Mr. Chairman, I think that would depend on how the legislation is changed. The legislation is intended to implement obligations that the United States would undertake under the treaty, and I think at the end of the legislative process, we and the Justice Department would review the legislation to ensure that it is adequate to enable the United States to discharge the obligations that it is undertaking under the treaty. U.S. practice is that prior to depositing our instrument of ratification for a treaty of this character, we will do a survey of available U.S. laws to be sure that the available laws are adequate to discharge the obligations.

    Mr. SMITH. Thank you, Mr. Witten. I don't have any other questions, and I will recognize the Ranking Member, Mr. Scott, for his.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Mr. Chertoff, did I understand you to say that if someone is in the United States and conspires to blow up a plane in France, that we don't have jurisdiction over that conspiracy today?

    Mr. CHERTOFF. We might under the conspiracy provision, but in terms of the substantive offense, as I understand the law, if you had a hijacking in France involving no American citizens on the plane, no American perpetrators, substantively that would not violate the U.S. hijacking statute. And as a consequence, we couldn't use that predicate for somebody who finances that organization.

    We might be able, as is the case in many criminal laws, to find some other provision we could nail them on. But in terms of the specific offense that we need to trigger 2339A, as I understand it, we would not be able to——

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    Mr. SCOTT. Well, let me ask the question again. Financing a bombing of a plane in France, in the United States making the plans and advancing that act, is not a crime in the United States?

    Mr. CHERTOFF. As I understand it, the substantive—and I want to be careful because there may be a conspiracy provision that applies to it—in other words, you may be able to nail someone for a conspiracy under, let's say, section 956 of title 18. But in terms of the financing statute, if we want to charge them with the financing statute—and there may be reasons we can't charge a conspiracy. As I understand it, we would not have the predicate of a U.S. hijacking in a situation where we had a totally foreign hijacking involving no U.S. person on the plane, no U.S. perpetrator, but an American in this country financing an organization that executes that hijacking.

    Mr. SCOTT. Do other countries have the same State and Federal jurisdictional complications that we do? If we are going to pass Federal law, we have to have Federal jurisdiction, and that kind of complicates what we can do with some of these things. Do other countries have that same complication, and do we need States to take any action to make sure we fill all the gaps?

    Mr. CHERTOFF. I think my understanding is that this legislation, coupled with existing State laws, does what we need to do in terms of implementing.

    Mr. SCOTT. Okay.

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    Mr. CHERTOFF. As far as other countries, they have their own systems, and I don't know that I can actually speak to that.

    Mr. SCOTT. How is terrorism defined in the bill?

    Mr. CHERTOFF. Well, in this instance, if you look at, for example, the language in the Terrorist Financing, it is defined as an attack—let me get the right provision here—an act which is intended to cause death or serious bodily injury to a civilian or to any other person not taking an active part in the hostilities in a situation of armed conflict.

    Mr. SCOTT. Okay, so this involves intended to kill——

    Mr. CHERTOFF. Or seriously injury.

    Mr. SCOTT. Or seriously injury.

    Mr. CHERTOFF. And where the purpose of the act is to——

    Mr. SCOTT. So we are not talking about the same problems we had with the last bill where breaking into the dean's office would subject you to the terrorist legislation?

    Mr. CHERTOFF. Well, without referring to the last bill as having problems, I will agree it does not cover breaking into the dean's office.

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    Mr. SCOTT. Okay. The death penalty is in this bill. Most countries don't have the death penalty. How do they comply with the treaty without the death penalty and we apparently need the death penalty in this bill?

    Mr. CHERTOFF. The death penalty I don't think is in here because we need it to comply with the treaty. The death penalty is in here because—and it applies obviously where death is caused. It is symmetrical with the position that has been taken in other laws treating similar criminal acts.

    Mr. SCOTT. Is there any part of the terrorism provision that is not already covered by present law? I understand collecting money as well as providing money is—the collecting part may not be part of present law. Is that most of what is in there for the financing part that we actually needed?

    Mr. CHERTOFF. As I said, I think some of this is covered by current law, although it may be covered in different parts of the law. But there are gaps in the law that we need this to cover in order to come into compliance with the treaty, such as, for example, certain jurisdictional reach which we might not have under current law or a terrorist act that might not fit within one of the enumerated predicates but would satisfy the conventions definition.

    Mr. SCOTT. Could we get a list of what we actually needed to comply with the treaty? Because a lot of this, as you have suggested, is in there not because the treaty requires it, because, you know, somebody wanted it in there. What is actually needed to comply with the treaty?

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    Mr. CHERTOFF. I am sure we can provide you with that list, but I don't want to be misunderstood. I am not suggesting that a lot of things were put in here because we just wanted them in there.

    It is true that some of the things that are covered by the legislation can be found in other parts of title 18. But I think it would have been impractical to craft, let's say, with the financing legislation, a piece of legislation that only listed those predicates that are not otherwise listed, because it would essentially look like a piece of Swiss cheese, which would not only be a drafting problem but, frankly, as someone who has tried criminal cases, would be a charging problem because you would need to often charge acts which may fall within similar but different concepts, you would have to charge them under separate statutes.

    So that although we have some overlap, there are things that could be prosecuted under 2339A that would now also be prosecutable under 2339C. To fill the gaps and do it in a manageable way, I think we needed to have a comprehensive statute.

    Mr. SCOTT. Well, Mr. Chairman, I think that puts us in a position where we don't—we are again passing the bill because we are trying to comply with a treaty, and we have got stuff in here that has nothing to do with the treaty. And some of us would like to comply with the treaty, but not add on extraneous stuff that is not needed. And without such a list of what we actually need to comply, we are in a situation where, you know, you have the death penalty in here, which isn't needed, and probably some other things that are just kind of added on. I guess if he is not going to provide it, we will just have to go through it ourselves. But I think we need to make it clear that there are many provisions in here that have nothing to do with the treaty, although that is what the title of the bill seems to be.

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    Thank you, Mr. Chairman.

    Mr. SMITH. Thank you, Mr. Scott.

    The gentleman from Wisconsin, Mr. Green, is recognized for his questions.

    Mr. GREEN. I guess the only question I have would be for Mr. Witten. What are the remedies or consequences in the case of a nation that is a signatory to this treaty not prosecuting or providing extradition for an accused? What would be the consequences of that?

    Mr. WITTEN. If a country, for example, had a fugitive in its territory and it didn't take the actions that are contemplated by the convention, then immediate consequence is that the country could be characterized as acting inconsistently with international obligations that it had undertaken.

    Now, the next question would be what remedies do other countries have if, for example, the United States were aggrieved because a country wasn't taking certain actions. I would say that the most likely scenario would involve two steps. One is that we would be in touch with that country diplomatically through our embassy, or otherwise, to consult about what the possibilities are for discharging the obligations. It might be that the country might be more comfortable surrendering the person to a third state that hadn't yet sought extradition. It might be that there are some crimes within its system that it could prosecute. Or it could be that we could persuade the country to grant extradition.

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    If at the end of the day we found that another country was not complying with its obligations and we felt aggrieved, then I would say it is a case-by-case analysis about what we would be able to do. Certainly diplomatic pressure and diplomatic approaches would be relevant, bringing the inaction to the attention of the international community. Sanctions might be appropriate in specific cases. It is hard to say in the abstract.

    Mr. GREEN. But it seems to me we could do all those things now absent this treaty and that it doesn't sound like this treaty really provides any kind of a hammer for enforcement. What you just described is presumably what this Nation, this Government would do right now, even with a nation that isn't a signatory to this treaty. I just can't see that this really—unless it gives us a little extra moral authority, but it doesn't seem to actually provide anything for us.

    Mr. WITTEN. Well, becoming a party to a treaty of this character does provide more for us. It gives us, for example, a legal basis to seek extradition where, in some treaty relationships, we don't have a legal basis. It gives us a legal basis to seek assistance and to invoke the provisions of the treaty and the obligations.

    To think of the flip side, if we are not a party to the treaty, we don't have a legal foundation to seek and demand the cooperation. So while I understand your point, all in all it is best to be a party to this kind of treaty, particularly these initiatives which the United States has supported from the outset. And we would do our best to achieve international cooperation.

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    Mr. GREEN. I am not suggesting that we shouldn't support it. I am just surmising that this doesn't give us much more than, again, perhaps a little bit of extra moral authority. But it sounds as though that the steps that we would take in the case of a nation, a signatory, not following through would be largely the steps we would take now for a nation that isn't a signatory.

    Thank you, Mr. Chairman.

    Mr. SMITH. I think that is a fair statement. Thank you, Mr. Green.

    The gentleman from Massachusetts, Mr. Delahunt, is recognized for his questions.

    Mr. DELAHUNT. Thank you, Mr. Chairman.

    Mr. Chertoff, you said there would be a charging problem. Could you amplify on that?

    Mr. CHERTOFF. Yes. I think generally if you have a situation where you have one statute that covers—or two statutes that cover closely related types of conduct, where you might normally charge someone in a single charging instrument with doing A or B—although we typically charge it as A and B, but it is read disjunctively. If you have to use two separate statutes, you may wind up with slightly different elements of the offense, depending on whether the act——

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    Mr. DELAHUNT. But isn't that a problem that prosecutors face every day?

    Mr. CHERTOFF. It is a problem, and, therefore, where it is avoidable, we try to avoid it.

    Mr. DELAHUNT. I understand that. But the reality is it is an issue that has to be addressed every day by a prosecutor, and there is nothing to preclude a prosecutor from charging under both statutes, is there, Mr. Chertoff?

    Mr. CHERTOFF. There is not, although as I say, when you—if when we put together legislation we can draft it in a way so that you have a single set of elements for the alternatives, it is not only easier for the prosecutor but, frankly, easier for the jury. And I can't——

    Mr. DELAHUNT. Right. But, I mean, with all due respect, Mr. Chertoff, I find that argument really without a lot of merit.

    Mr. CHERTOFF. Well——

    Mr. DELAHUNT. Being someone who has tried a few cases myself as a prosecutor.

    Mr. CHERTOFF. Well, as I say, sometimes prosecutors are unavoidably put in the position of having to deal with statutes that are worded differently, and we deal with it. Where it is possible to avoid it and make sure we have a seamless——

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    Mr. DELAHUNT. I mean, it is nice, I guess. But it is certainly not a reason, I would suggest, that should serve as even something to be considered in terms of drafting particular legislation. I mean, with all due respect, I am confident in the competency of our prosecutors being able to draft the appropriate indictments. I am sure there wouldn't be too many motions to dismiss that would lie——

    Mr. CHERTOFF. Well, I am confident, too——

    Mr. DELAHUNT. I am sure you are confident. Having discussed that particular issue—and I am operating from a disadvantage because I have to acknowledge I haven't had a chance to read either the statutes that we are considering here or the treaties. But you talked about overlap also. Has there been any effort on the part of the Department to make recommendations regarding repealing those or clarifying those areas where there is overlap?

    Mr. CHERTOFF. There hasn't, and that might be something that would be well worth undertaking at a point in time——

    Mr. DELAHUNT. I mean, if we want to do it really clean, if we don't want Swiss cheese and if we want to make it easier for those prosecutors who have to make those charging decisions.

    Mr. CHERTOFF. I think at a point in time when there is an opportunity to review everything, it might well serve us to consider whether there are parts to the law that at this point have been superseded or less useful. And I would certainly be happy to recommend we start that——

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    Mr. DELAHUNT. Does the implementing legislation invoke the death penalty?

    Mr. CHERTOFF. It does, with respect to——

    Mr. DELAHUNT. Is that required by——

    Mr. CHERTOFF [continuing]. The bombing.

    Mr. DELAHUNT. It is not required by the convention.

    Mr. CHERTOFF. Correct. It is not. What it does is it treats violations resulting in death under this implementing legislation in the like way we treat similar violations under other provisions.

    Mr. DELAHUNT. But it does exist under other provisions?

    Mr. CHERTOFF. We do obviously have the death penalty for other kinds of terrorist acts resulting in death.

    Mr. DELAHUNT. Right, right. I think that goes to—how did you describe it, ''symmetry''?

    Mr. CHERTOFF. I think that is the word I used, yes.

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    Mr. DELAHUNT. Does the implementing language cover wiretaps?

    Mr. CHERTOFF. The language in both of these provisions does have a series of ancillary measures which name the new statutes with respect to bombing and financing as wiretap predicates, money laundering——

    Mr. DELAHUNT. But that is not required by the——

    Mr. CHERTOFF. That is correct. That is not required by the——

    Mr. DELAHUNT. I mean, is it a fair statement to say there are a number of issues that are implicated in this implementing legislation that are not required by the convention?

    Mr. CHERTOFF. That is correct.

    Mr. DELAHUNT. Could you before—I understand we are going to mark this up today. Is it my understanding, Mr. Chairman, that we are going to full committee markup tomorrow?

    Mr. SMITH. That is correct, and to the best of my knowledge, we are going to full committee markup tomorrow.

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    Mr. DELAHUNT. You know, if you could provide a list, per the request of Mr. Scott, to give us an area where—just give us a list of those provisions that are new or that are not required by the conventions so that we can deal with the implementing language in a more thoughtful way?

    Mr. CHERTOFF. We can do that. I can tell you, for example, as I understand it, the ancillary measures, which are labeled ''ancillary measures'' because they are ancillary, are not, strictly speaking, required by the convention. There may be one or two other elements that are not listed as ancillary measures that are not required, for example, the death penalty, and there may be one or two others.

    Mr. DELAHUNT. Right. I mean, I would like to have that list. And, by the way, I agree with Mr. Green. I think we should ratify, and I think that it would be preferable if we could get a statute that was minimalist in terms of compliance. It is my understanding and I believe that we have, you know, most of the convention provisions—we have got that covered, so to speak. But I think we should ratify because I think we encourage other states that don't share our viewpoint on some of these issues, I think the signing or the ratification or the implementation of this statute by the United States is important to encourage other nations. But I really would appreciate that request to be complied with in a timely fashion.

    Mr. CHERTOFF. We could furnish that.

    Mr. DELAHUNT. Thank you, Mr. Chairman.

    Mr. SMITH. Thank you, Mr. Delahunt.

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    The gentleman from North Carolina, Mr. Coble, is recognized for questions.

    Mr. COBLE. Thank you, Mr. Chairman. Gentlemen, good to have you all with us.

    Mr. Witten, I was called out of the room, and I believe I am going to be repetitious, but I need to know this. I think the gentleman from Wisconsin asked you about the consequences for countries that ratify the treaty but do not comply with the requirements to either prosecute or extradite terrorists, and I was out of the room. Would you mind giving me that answer you gave him?

    Mr. WITTEN. I will do my——

    Mr. COBLE. And I apologize to the Members for my absence.

    Mr. WITTEN. I will do my best to replicate the answer, but, sir, in the first instance, if a country had custody of a fugitive and had reason to believe that the person had committed one of the acts that are subject to the convention, they do have responsibility to undertake an investigation, detain the person if they are believed to have committed the offense, and to either submit the case for prosecution or extradite a person.

    In a case where, for example, the United States believed that another country was not undertaking these responsibilities in a meaningful and good-faith way, I would anticipate that we would cite the treaty to that country, cite their obligations to them, and consult with them to see if there is some way that they can discharge their obligations under the treaty, either by finding a way to prosecute domestically, to extradite to a country with jurisdiction, which might be more appropriate in any event, if all the events took place outside the country where the fugitive was located, or take whatever steps they could to meaningfully discharge their obligations.

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    If at the end of the day we were to believe that the country was not fulfilling its obligations as a party to the treaty, we would have to address it on a case-by-case basis. Mr. Green and I had a discussion of this a little bit, where, for example, the United States would raise the matter through diplomatic channels; in an appropriate case we would bring the noncompliance to the attention of other countries and/or in an extreme case we might argue for sanctions.

    So it is an important question, but it is also a question where there is not a single answer that fits all circumstances.

    Mr. COBLE. I thank you for that.

    Mr. Chertoff, this may have been visited as well, but I don't think so. If you will, distinguish between the new crime of financing of terrorism under 2339C and the crimes of material support for terrorism, which are currently covered under 2339A and B of title 18. I don't think that question has been put to you, has it? If you would do that.

    Mr. CHERTOFF. I would be happy to. 2339B, of course, is material aid to a designated foreign terrorist organization, so it requires the designation first. 2339A does, particularly as amended, cover material support to terrorist activities, but it lists them in terms of certain enumerated provisions of the law in other parts of the Federal criminal code.

    The new statute defines material support to terrorism more broadly as support for acts that are intended to cause death or serious bodily injury to a civilian or to any other person not taking an active part in hostilities where the purpose of the act is to intimidate a population or compel a government or an international organization to do something or not to do something.

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    So it covers a somewhat broader range of terrorist acts in terms of material support because it is not keyed into particular violations of the Federal Criminal Code but more generally deals with serious acts of violence that are designed to effect government policy.

    Secondly, the new statute has a somewhat broader jurisdictional provision. For example, it gives us jurisdiction where someone is found in the country—it is what they call universal jurisdiction—even if the act in question occurred overseas and did not involve Americans. So it fills some gaps in the existing law in order to bring it into conformity with the requirements of the convention.

    Mr. COBLE. I got you. Thank you.

    Mr. Witten, I guess we visited my other question. I guess another alternative would be in the event of the noncomplying country, just have them withdraw their ratification. That would be, I guess—if they are not going to comply, at least truth in advertising. Would that not be an alternative course?

    Mr. WITTEN. It could be in an appropriate case. However, I think that our judgment could be that it is better to have a country committed to taking on international obligations because there may be cases where it will discharge those commitments properly.

    Mr. COBLE. I guess even a noncompliant country, at least with their name on the line, would be better than no name on the line.

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    Mr. WITTEN. Yes, sir.

    Mr. COBLE. Thank you, sir.

    Thank you, Mr. Chairman.

    Mr. SMITH. Thank you, Mr. Coble.

    The gentleman from California, Mr. Schiff, is recognized for his questions.

    Mr. SCHIFF. No questions, Mr. Chairman.

    Mr. SMITH. Thank you.

    The gentleman from Georgia, Mr. Barr, is recognized for questions.

    Mr. BARR. I am fine, Mr. Chairman.

    Mr. SMITH. Okay. The gentleman from Florida is recognized—has no questions.

    Does the gentleman from Virginia, Mr. Goodlatte, have any questions?

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    Mr. GOODLATTE. I do not, Mr. Chairman.

    Mr. SMITH. Okay. If not——

    Ms. JACKSON LEE. Excuse me, Mr. Chairman.

    Mr. SMITH. Oh, pardon me.

    Ms. JACKSON LEE. I have to sit in a more appropriate place.

    Mr. SMITH. You sneaked in. The gentlewoman from Texas sneaked in on me. Ms. Jackson Lee is recognized for her questions.

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

    Let me just for my own hearing, and obviously there have been opening statements. I would ask the Chairman to allow me to submit my statement into the record and ask that it be accepted.

    Mr. SMITH. Without objection.

    Ms. JACKSON LEE. My concern goes to the questions of criminalization and what we need to do, and if I can have it, as heard in some places from my own hearing, I would appreciate it. And that is, again, the questions related to the Suppression of Terrorist Bombing Treaty. What does it require us to criminalize that is not now a crime under U.S. law? And I guess I say that in this context, and you may have answered it, but let me highlight the context in which I say it.

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    We have been very united over these last couple of weeks and now months on the issues of giving tools to the Administration and to the Department of Justice to both fight terrorism but, I would like to emphasize, bring terrorists to justice, which I hope is the concept in the American legal system.

    We have seen the rush to judgment on the anti-terrorist bill. There were many good points of it. I was very gratified to support the bipartisan terrorism bill that had been promoted out of the House Judiciary Committee. Unfortunately, that was imploded and exploded and not utilized.

    I now hear—and I have to make sure that I am accurate in this comment—that there is some Executive order or some announcement of the privilege or the right to listen in on attorney-client privilege of detainees. We are still researching that. I am told that that is a regulation of the Federal Bureau of Prisons, and I am aghast.

    So the question goes to the need for criminalizing laws that may already exist, the redundancy and whether or not there is an excessiveness here that is not required at this time.

    I certainly will be looking to oppose any suggestion of the violation of attorney-client privilege. That may be another issue, but I raise that so that the Chairman can hear my concern.

    In any event, would you please answer what is required to criminalize—what we are required to criminalize that is not already a requirement? And then let me just follow up. Where in the treaty does it call for death penalties, wiretap, RICO, money laundering predicates, or civil asset forfeitures? And if I can get those questions answered by both of you, whether you have repeated it before, I beg your indulgence. Thank you very much.

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    Mr. CHERTOFF. I am happy to go first. Let me try to give as clear an answer as possible.

    With respect to the bombing implementing legislation, there are really two parts. There is criminalization of conduct occurring within the U.S. and criminalization of conduct occurring outside the U.S.

    With respect to criminalization of conduct occurring within the U.S., we are trying to plug some gaps in the existing law. For example, the current statute—I am sorry, the implementing statute would criminalize a bombing that occurs in the U.S. against a state or government facility of a foreign country, including its embassy or other diplomatic or consular premises. Now, that would not be covered under existing law unless you could demonstrate that the purpose of the bombing was to injure someone who is a diplomatically protected person. So to give you an example——

    Mr. SCOTT. Would the gentlelady yield?

    Ms. JACKSON LEE. I would be happy to yield to the gentleman.

    Mr. SCOTT. You mean to tell me if someone bombs an embassy downtown that there is a gap in the present law that you can't get a good conviction for attempted murder or murder for planting a bomb and blowing up a building? We need a new law to cover that?

    Mr. CHERTOFF. I will give you—let's take that example. If you had a bombing and you couldn't demonstrate—let's assume it is a bombing at night and you can't demonstrate there are people in the building, and, therefore, you can't necessarily demonstrate there was an intent to kill or seriously injure someone who is a diplomatically protected person, as I understand the existing law, you would not be able to directly prosecute for the bombing of that foreign embassy.

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    Now, you know, could someone in the course—could we sit down and find some statute somewhere where there was an illegal transportation of something across State lines or wire fraud? You know, there is a lot of ingenuity. But for purposes of the convention, I think we are obligated to commit to prosecuting the offenses that are laid out in the convention. And to the extent, for example, the convention criminalizes bombings of state facilities, meaning foreign state facilities, for the purpose of affecting policy, we need to be able to represent to the world that that offense is something that is clearly prosecutable in the United States.

    So, again, might there be some way we could get to the result of putting someone in jail for something? We might be able to. But as I understand the existing law, there is not an existing statute that would allow us to prosecute for blowing up an embassy of a foreign country without an indication of an intent to harm a diplomatically protected person.

    So, again, we cover some gaps in the law with respect to the bombing in the country. Outside the country this increases our jurisdiction because, for example, it allows us to prosecute somebody we apprehend in this country who is a foreigner responsible for a foreign terrorist act who we would not currently have jurisdiction over. And, again, that is a gap in the law.

    I now have to confess I have forgotten what the second—oh, the second question was the ancillary measures. And as I think I said previously, the ancillary measures are not, strictly speaking, required by the treaty. But, again, to the extent that we are criminalizing bombings and things of that sort, we are attempting to treat them in similar fashion as it relates to money laundering and RICO.

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    Let me step back and try to just put it in perspective for a minute. The acts we are talking about here cannot possibly be viewed as, you know, arguably legitimate acts or entrenching on some right of somebody to do something that we would attach some value to. I mean, there is no—I can't conceive of a reason why bombing of buildings or attempting to kill or seriously injure people is anything that we in any way, shape, or form want to have a mixed message about. So to the extent that we are covering things that we might be able to get at in different ways, I venture to say that we are covering serious types of crimes that we ought to be able to attack from multiple standpoints. And I don't think that there is anybody's civil rights or civil liberties that are going to be compromised if we are inhibiting them from setting off bombs or radiological devices.

    Ms. JACKSON LEE. Thank you very much, Mr Chertoff.

    Mr. Witten?

    Mr. WITTEN. I would add a couple of comments. First, the nature of these two treaties is that they leave to parties the decision about how to implement them. There are certain offenses that are outlined in Article 2 of each convention, and some of the immediately following articles talk about some of the jurisdictional elements.

    One could imagine that there will be countries who become party to this that do even more than the United States, than the Administration is proposing by way of, in addition to criminalizing the offenses, getting investigative tools related to the offenses. So in that context, while some of the ancillary measures, as Mr. Chertoff just noted, aren't discussed in the convention, these offenses that would be put into U.S. law are similar in character and severity to other offenses where the proposed ancillary measures are already in U.S. law. And because of that, from our perspective, while the treaty doesn't discuss them, it makes sense that if we are going to criminalize this major conduct and we have these ancillary tools that are available for other major acts of terrorism in the United States, as Mr. Chertoff put it, there would be a symmetry to providing U.S. law enforcement authorities with the additional related authority that they have in existing major crimes.

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    Ms. JACKSON LEE. Mr. Chairman, may I just be indulged? Let me thank Mr. Witten and Mr. Chertoff for their explanation.

    My empathy is this: I am well familiar with the tools—I will not call them ''tactics''—of the Department of Justice U.S. Attorneys in times when there are domestic criminals that you cannot get on, i.e., attempted murder, et cetera, and you use the IRS, i.e., the Mafia was a well-known sort of opposition or entity of criminal activity that you seem to have utilized that tool.

    What I am hearing you say is that this gives you further refined tools to be able to prosecute on terrorist activities. I abhor terrorist activities and terrorists and certainly want you to be able to utilize these tools. I am going to withhold judgment because I am concerned, even though I know these treaties are, I think, moving forward on the Senate side. I think it is important for us to be meticulous in our review to be assured that you need this widespread, this wide depth, and whether or not there will be a fishing expedition or whether this will help you be focused. I don't know. I know that the Federal authorities usually come into the Federal court and they have got 99 charges, and I am told you need to do that to see that you can get one that you can prevail on.

    But I am concerned that we have this wide net, and I tried to, even in this climate, emphasize that this is a Nation of laws, a Nation that respects civil liberties, and even on the international arena, that we must be cautious in how many laws, criminal laws, or how many situations we criminalize.

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    So I still raise that question flag. I raise that concern. And, Mr. Chairman, I would hope as we mark this legislation up we would keep those words or at least that concern present that there is nothing wrong in this climate to be restrained, to be questioning, to be critical, and to raise up our most important values, and that is the protection of people's civil liberties.

    I yield back. Thank you.

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

    That concludes our hearing. Mr. Witten, Mr. Chertoff, thank you very much for your testimony. It has been most helpful, and we will give you a couple minutes to leave before we move to our markup.

    [Whereupon, at 11:07 a.m., the Subcommittee proceeded to other business.]

A P P E N D I X

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Materials Submitted for the Hearing Record

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