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House of Representatives,
Committee on Veterans' Affairs,
Washington, DC.
    The committee met, pursuant to call, at 10 a.m., in room 334, Cannon House Office Building, Hon. Bob Stump (chairman of the committee) presiding.
    Present: Representatives Stump, Spence, Everett, Buyer, Quinn, Bachus, Stearns, Cooksey, Hutchinson, LaHood, Evans, Kennedy, Gutierrez, Doyle, Mascara, Peterson, Carson, Reyes, Snyder and Rodriguez.
    Also present: Representatives Skelton and Knollenberg.


    The CHAIRMAN. The Committee will come to order. We are pleased to welcome our colleagues, Congressman Bachus, Congressman Skelton and Congressman Knollenberg this morning.
    We are here to discuss an issue that goes to the very core of America's long-standing tradition of recognizing honorable military service.
    The fundamental question before us is: Under what circumstances is it appropriate to deny veterans' benefits to someone who has served honorably in our armed services? This is not as easy a question to answer as some may think, and our actions must reflect a reasoned approach to this issue.
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    That is why I want to especially thank our colleagues for being here this morning and for their cooperation in agreeing to this proceeding, and also for withholding an attempt to amend the DOD bill while it was on the floor. That helped a lot. I would also like to thank our veterans services organization for their support in discussing this matter in a proper forum, the hearing setting. Additionally, the Committee appreciates the thoughtful consideration given this matter by our witnesses from the Department of Veterans Affairs and CRS.
    This hearing is not simply about Timothy McVeigh. This hearing is about restricting burial rights in national cemeteries and entitlement to other VA benefits when a veteran commits a serious crime.
    Current law reflects the Nation's reluctance to sever the bond with its veterans. Chapter 61 of title 38 clearly demonstrates this has been done only when the veteran commits crimes against this Nation as opposed to crimes against individuals. The Secretary may deny benefits where there is evidence that a person is guilty of crimes against the Nation involving ''mutiny, treason, sabotage or rendering assistance to the enemy.'' Further, the law allows forfeiture of benefits to those convicted of certain types of ''subversive'' activities.
    We also must ask whether an act or acts constitute such a heinous crime against citizens of our Nation that the veteran should forfeit any right to benefits previously earned in honorable military service.
    The purpose of H.R. 2040 is to update title 38 to include some recent changes to the criminal code that reflect today's society. We have also asked for views on S. 923, a broader bill passed by the Senate last month. Chairman Specter's bill would deny all benefits for anyone convicted of a Federal capital crime.
    The language in provisions drafted by Mr. Bachus, Mr. Skelton and Mr. Knollenberg differ from the Senate bill and H.R. 2040 in varying degrees, and hopefully this hearing will provide the basis for a wide range of discussion on these issues.
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    [The prepared statement of Chairman Stump appears on p. 45.]

    The CHAIRMAN. At this time I recognize Mr. Evans.


    Mr. EVANS. Thank you, Mr. Chairman.
    When I came to Congress 14 years ago, my goal was to protect the programs and benefits our great Nation provides its veterans, but today we have the hard task to come together to consider legislation that would limit veterans' benefits, although under extremely narrow circumstances. Circumstances and events in today's world, however, compel us to confront the question of who should be buried in a federally-funded cemetery. Our challenge is to preserve and protect the sanctity of our veterans' cemeteries while also preserving and protecting the rights and privileges that flow from honorable service in America's Armed Forces. I believe that H.R. 2040 achieves that difficult goal.
    I want to thank the Members that are testifying today, and I want to thank Congressman Bachus for holding this issue off when we almost considered it on the floor of the Congress.
    I want to commend the veterans groups for their excellent testimony that we will hear later today. Their statement carefully examines the complexity of the issues before us, while at the same time recognizing the deeply personal responses we have all had on this painful issue. I congratulate the DAV, the American Legion, AMVETS, the Blinded Veterans Association, the Jewish War Veterans, the VFW and the BVA on their very thoughtful analyses.
    I also want you to know that I plan to submit your testimony for inclusion in the Congressional Record so that all of our colleagues in Congress will have the benefit of your comments. As you note in your statement, you represent the voices of America's veterans, and that voice must be heard. Thank you, Mr. Chairman.
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    The CHAIRMAN. I thank the Ranking Member not only for his statement, but for his cooperation on this hearing.
    Now in deference to our Members that are present, we are going to go right into the first panel, and Members who wish to make opening statements may do so after we hear from the first panel.
    Mr. Bachus, since you are a Member of this committee, we will lead off with you, if you like. Of course, all statements will be printed in their entirety in the record.


    Mr. BACHUS. Mr. Chairman, I do not want to speak from that statement now, I want to speak from my heart. I want to make one statement. If you hear this and you hear nothing else, then my testimony will be, I think, of some assistance to you.
    By honoring those that do not deserve it, we dishonor those who do. It is that simple. By honoring those that do not deserve it, we dishonor those who do. I think this committee and this Nation have taken up this debate, and it has focused around Timothy McVeigh, because that is the experience that they have. It is not something that we created; the Nation can relate to this legislation because they know they have gone through what we have all gone through with Timothy McVeigh.
    I would totally agree with the Chairman. This is bigger than Timothy McVeigh, and this should not be discussed as a bill which addresses Timothy McVeigh, because it does not. It addresses the question, and I would invite the veterans groups to also—they have entered this discussion. I have a copy of a Mobile Register paper. The catalyst for my initial legislation was Henry Hays, not Timothy McVeigh, a Klansman in Mobile, AL, who took a totally innocent young black teenager off the street in Mobile, drove him some 40 miles, he and other Klansmen, to another county, beat him half to death, slit his throat, brought him back critically injured to Mobile, put a noose around his neck, and hung him from a street corner in Mobile simply to send a message that they disagreed with a jury verdict 200 miles away.
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    A jury in Mobile, AL sentenced him to die in the electric chair. He died in the electric chair. He was then taken out to a cemetery in Mobile where an honor guard performed a military honors funeral with a 12-gun salute. It sparked protests in Mobile, AL.
    In my written statement, I commented on what a captain, an Army captain, from my home State said to me in a letter: ''As a soldier, I would have a difficult time obeying a lawful order to serve on an honor guard for a man like Hays. Hays does not represent anything that I, the U.S. Army, or this country stands for. Murderers put to death by the State do not deserve military honors. Furthermore, it stains the memory of those who have devoted and, in some cases, lost their lives in the common defense of our Nation.''
    Let's ask ourselves, Members of the committee, these questions: Who is deserving of this honor? Who is worthy of honor? Who are our heroes?
    Now, let's relate that to Timothy McVeigh, because the Nation is going to be deciding that. Is he deserving? I would submit to you that at one time he was, but in a moment of time, when he took the lives and committed what I would say, Mr. Chairman, is a crime against this Nation—not against people, because the Nation is the people, and we are honoring people's defense of lives. That is what we honor. They were fighting to defend our country, and our country is our people, and in a moment in time in Oklahoma City, he crossed over from being deserving to nondeserving.
    He was worthy of honor at one time; he is no longer worthy of honor. He may have been a hero to us at one time. He is no longer our hero. He shed innocent blood, the lives of 168 people. But even if it had been one person's innocent blood, he is no longer deserving.
    I would like to enter into the record this article from Mobile, because I have said, Mr. Chairman, that my legislation was drafted long before the debate on Timothy McVeigh. It did not address originally Timothy McVeigh. It simply said that we must have standards, we must have values, we must conform our law to those standards and to those values. We have a word here that we call reconciliation—this is what we want, and this is where we are. I consider this legislation is where we need to be to conform to our values, what we as a Nation stand for, what our military stands for. This is where we are.
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    My amendment differs somewhat from H.R. 2040, Mr. Chairman, and we have had many discussions. I have had discussions with veterans' groups. This legislation addresses only Federal crimes. I will say to you that my legislation addressed anyone convicted of murder, sentenced to death or to life imprisonment without parole and said they are not worthy of a full military honor, funeral, or burial in a national cemetery. It didn't take up benefits, it didn't take up entitlements. But when we do talk about entitlements, decide whether this is an honor or an entitlement, and decide—if you decide it is an entitlement, ask yourself, who is entitled to this? Who is entitled to this?
    Mr. Chairman, I say relating to the Nation's experience, this is a debate we need to have; this is a debate we should have, and we should put closure on it. I think the citizens of Oklahoma, Frank Lucas and I cosponsored this, this needs to be addressed for the sake of those victims and for the sake of future victims of these crimes.
    Thomas Jefferson said that the strength of our military is that we have citizen soldiers, and to be a good citizen soldier you must not only be a good soldier, you must be a good citizen. By honoring those that do not deserve it, we dishonor those who do. Thank you, Mr. Chairman.
    [The prepared statement of Congressman Bachus, with attachment, appears on p. 47.]

    The CHAIRMAN. Thank you, Mr. Bachus.

    At this time I recognize the gentleman from Missouri, Mr. Skelton.

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    Mr. SKELTON. Thank you, Mr. Chairman.
    Mr. Chairman, come with me in our mind's eye to Jefferson Barracks outside St. Louis, which is one of the oldest, if not the oldest national cemetery, west of the Mississippi River. Buried there are those who wore the American uniform way back when our country was just blossoming. Buried there are those from both sides of that horrendous conflict between the North and the South. Buried there are heroes, which is one of three national cemeteries in the State I represent, buried soldiers and those who wore the uniform who were either heroes in life or heroes in death.
    Many buried there are those who gave their life on the battlefield, being heroes in death, defending our interests and defending our country, and defending those principles for which they believed. There are many buried there that wore the uniform and qualified either as recipients of certain awards or having retired, or other qualifications that they met, were honorable in their service to our country, and they are heroes in life. And those people, both those who qualify had full and happy, productive lives, and those who lost their lives as a result of service, are really the role models for those who followed, young soldiers, airmen and Marines, those who gave their life.
    What this bill does is to essentially prevent the desecration of those present and those future who are entitled to honorable burial. This bill brings to the present day the law that has been on the books for some time. It is not a new concept. For many, many years, since the 1950s, certain persons convicted of heinous crimes have been prevented from burial rights in these national cemeteries.
    This brings it to the modern era, because in the modern era we see the killing, intentional killing, of officers and employees of the Federal Government, destruction with explosives, use of mass destruction weapons, acts of terrorism, use of chemical weapons, providing material to terrorists, providing material in support of resources designated to foreign terrorist organizations. That is the world, sadly, in which we live today.
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    So what we ask, Mr. Chairman, is to bring this statute to date so that those who follow and are buried in those barracks or in the national cemetery in Springfield or the national cemetery in Jefferson City, Missouri, the district which I represent, so that we can be assured and the families can be assured that their last resting place of those who served honorably and well will not be desecrated by those who committed these Federal crimes.
    We must look to those who are buried there for inspiration; we should look to them as heroes of the past, so that those who serve honorably and well today may some day receive that high honor to which those who are buried there have received so deservedly.
    The CHAIRMAN. Thank you, Mr. Skelton.

    The gentleman from Michigan Mr. Knollenberg is recognized.


    Mr. KNOLLENBERG. Mr. Chairman, I want to thank you in particular for your leadership in regard to this issue, and also this committee which does so much for the veterans of our country at every turn, it seems.
    I am pleased to be here. I am also troubled that we meet to address this subject of preventing death penalty convicts from receiving military burial honors in our Nation's 114 veterans' cemeteries.
    Our legislation, and I am speaking now for my colleagues as well, is the right thing to do for the veterans of this country who have given so very, very much for us.
    The most heinous domestic terrorist act ever committed ripped apart the insides of our country. The Oklahoma City bombing, which has been alluded to, will remain, I think, always ingrained in our hearts, our minds and our souls. Yet, the perpetrator of this act, this dastardly act which killed 168 people, many of whom were innocent children, can currently receive military burial benefits in a veterans' cemetery after he receives a death penalty sentence.
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    As a Member of the appropriations panel that funds the Department of Veterans Affairs and its programs, and as a veteran myself, I was outraged to hear, as I know my colleagues on this panel were, to hear that our tax dollars could be used to honor any mass murderer who also happens to be a veteran. While military burial privileges can be revoked for certain acts of treason, mutiny, insurrection or disclosure of classified information, the mass murder of hundreds, including children, Federal workers and Federal law enforcement officials, was not on that list. In a narrow, targeted way, that is what I propose we do.
    Our Nation's cemeteries are sacred ground. They are a solemn and sad reminder of the price our Nation has paid for the freedom that we enjoy every day. It is not fitting to allow the likes of Timothy McVeigh or any other death penalty convict in the company of our fallen heroes.
    More than 40 Members have cosponsored my legislation, which is H.R. 1955, to prevent death penalty convicts, or those sentenced to life in prison, from receiving the privilege of a military burial in a veterans' cemetery. As this legislation moves forward, I suggest we narrowly focus on the target: the criminal who commits a Federal crime and is sentenced to die or sentenced to life in prison. That should be our focus.
    We must be careful to stay focused on the true target and not get bogged down by issues outside this committee's jurisdiction. We need to aim our cross hairs at the murderers who have taken innocent lives from us; in fact, the same innocent lives they once defended when they served in our Nation's Armed Forces.
    This legislation is about criminals, and criminals must pay for their crimes. That does not mean they should be honored with a 21-gun salute, taps, a flag-draped coffin and burial next to our fallen heroes who sacrificed their lives and their future for us.
    I commend this committee and its Members for its prompt action, and particularly, Mr. Chairman, your leadership in moving ahead quickly. I urge the House leadership to quickly bring a bill to the floor so that we can get something to the President's desk. I do think there is an urgency about this, and we should act as quickly as we can and go through the process of hearing from the various people. But let us come to a conclusion, to closure if we can, please.
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    [The prepared statement of Congressman Knollenberg appears on p. 51.]

    The CHAIRMAN. I thank all three of you for your very fine testimony. Let me once again express my appreciation for your agreeing to slow this process down so that we may have a proper hearing and do it correctly and not be stampeded into it just for publicity's sake. I appreciate it very much.
    Mr. Evans.
    Mr. EVANS. Mr. Chairman, I just want to thank the Members for testifying before us today.
    The CHAIRMAN. Mr. Everett.
    Mr. EVERETT. Mr. Chairman, I have no questions.

    The CHAIRMAN. Mr. Mascara.
    Mr. MASCARA. Mr. Chairman, I would just like to commend all three of you for their excellent testimony and appearing before this committee. Thank you.
    [The prepared statement of Congressman Mascara appears on p. 52.]

    The CHAIRMAN. Mr. Buyer.
    Mr. BUYER. I just have one question. I want to make sure I am clear that your standards that you were talking about would also apply to the Uniform Code of Military Justice, so that if an individual was convicted of rape and received life imprisonment, I mean you would apply State law, Federal law, and UCMJ?
    Mr. BACHUS. Let me say this. First of all, it is not the action of this committee, you know, it is not something that we are being stampeded into doing. This action of these people in taking innocent life, it is their action that brings us here today. It is not our action, it is their action. And what my legislation did, which unanimously passed the House of Representatives, it said that a person convicted of a capital offense and sentenced to death or to life imprisonment without parole was not eligible for burial in a national cemetery, or an honors funeral.
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    Mr. BUYER. Is that by Federal, State?
    Mr. BACHUS. Let me say this. I am very troubled—I didn't say this in my statement. I am very troubled that we would talk about—for years, if you destroyed $100 worth of military equipment, you couldn't be buried in a national cemetery. But if you take a 19-year-old, a totally innocent young boy off the streets of Mobile, AL, and you hang him on a street corner to make a political statement, you are eligible. That is not my idea of a hero, gentlemen. That is the desecration of our national cemeteries.
    What I am saying, and I apologize, but I feel very strongly about this, life is life. Innocent life is innocent life. The Federal employee? You know, I don't really understand the distinction of a Federal employee and a 19-year-old citizen walking down the street in Mobile, AL. I don't understand why killing a Federal employee disqualifies you, but killing a 17-year-old boy or a 19-year-old boy––
    Mr. BUYER. I just want to be very narrow. I wanted to make sure that——
    Mr. BACHUS. Let me say this. In our focus I hope we are not so narrow that we excuse the actions of Henry Hays in Mobile, AL, which this legislation would excuse.
    The CHAIRMAN. That is why we are having this hearing.
    Mr. BACHUS. I agree. I agree, Mr. Chairman, and I think that we should not in any manner apologize for this hearing, apologize for bringing these issues up. I think if anything, there is a sense of—and I think the veterans groups, I think there ought to be soul-searching by every one of us, by every veterans group. What do we stand for as veterans? You know, what is service to our country? What is a good soldier?
    Mr. BUYER. I just have one last question.
    Mr. BACHUS. As I said, I think it illustrates a perfectly——
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    Mr. BUYER. I just want to make sure, Mr. Bachus, you wanted this apply to all State, Federal, Uniform Code of Military Justice, not only our 50 States, but also to include the United States territories. Whether it is someone from Puerto Rico, Samoa or Guam, they serve——
    Mr. BACHUS. Oh, yes. Because I don't see a difference in killing anybody—you know, where it is or who it is. I mean, you know, should we pick and choose?
    Mr. BUYER. Thank you, Mr. Chairman.
    The CHAIRMAN. Mr. Reyes.
    Mr. REYES. Mr. Chairman, I also have a statement for the record, and I would just like to echo and associate myself with my colleague's comments that this is a larger issue, and it should be an issue that we do our best to cover every aspect of it. I appreciate the opportunity. Thank you.
    [The prepared statement of Congressman Reyes appears on p. 53.]

    The CHAIRMAN. Mr. Quinn.


    Mr. QUINN. Thank you, Mr. Chairman. I have a statement for the record. I want to thank our colleagues who are here today, who I think bear witness to a lot of the concerns that we all hear back in our District by private citizens and may not have the opportunity that you have, gentlemen, to testify, may not have the opportunity that we all have as serving on this committee, and yet rank and file citizens are sensing the same frustration that I hear from you, Spencer, and Joe and Ike. So I appreciate that very much. I also appreciate your working with us and the Chairman on the floor with this just a few short weeks ago.
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    [The prepared statement of Congressman Quinn appears on p. 54.]

    The CHAIRMAN. Thank you, Mr. Quinn.
    Mr. Rodriguez.
    Mr. Peterson.
    Mr. Stearns.
    Mr. Gutierrez.
    Mr. GUTIERREZ. Mr. Chairman, I just want to thank my three colleagues for being here this morning. Thank you very much. I have a statement for the record.
    [The prepared statement of Congressman Gutierrez appears on p. 55.]

    The CHAIRMAN. Mr. Doyle.
    Mr. DOYLE. Thank you, Mr. Chairman. I have a statement I would like to submit for the record.
    I would like to thank my colleagues for being here. Joe, I am a cosponsor of your bill. Spencer, I am sorry I missed your presentation, but Mr. Mascara tells me it was very moving, and I think we should all work with the Chairman to develop some legislation.
    [The prepared statement of Congressman Doyle appears on p. 57.]

    The CHAIRMAN. Thank you, sir. Mr. Spence.
    Mr. SPENCE. Mr. Chairman, I don't have any questions. I just want to commend the gentlemen for their statements.
    The CHAIRMAN. Mr. LaHood.
    Mr. LAHOOD. Mr. Chairman, I have no questions.
    The CHAIRMAN. All right. Gentlemen, thank you very much. We look forward to working with you, and we will get to this bill just as rapidly as possible, but we want to do it thoroughly and do it right.
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    Our second witness today is Jerry Bowen, the Director of our National Cemetery System at the Department of Veterans Affairs.
    Mr. MASCARA. Mr. Chairman, I have a statement for the record.
    The CHAIRMAN. Without objection, all statements will be submitted for the record.
    Mr. GUTIERREZ. Mr. Chairman, I ask unanimous consent to submit Congressman Bob Filner's statement for the record.
    The CHAIRMAN. Without objection.
    Mr. GUTIERREZ. Thank you.
    [The prepared statement of Congressman Filner appears on p. 60.]

    The CHAIRMAN. Mr. Bowen, Director of the National Cemetery System, Department of Veterans Affairs. Your entire statement will be printed in the record. If you care to introduce your guest, please do so.


    Mr. BOWEN. Thank you, Mr. Chairman. I have with me Mr. Jack Thompson, who is Assistant General Counsel for the Department of Veterans Affairs.
    Mr. Chairman and Members of the committee, I am pleased to present the views of the Department of Veterans Affairs on two bills: H.R. 2040, which would render ineligible for burial in a federally-funded cemetery persons convicted of certain crimes, or administratively found to have committed those crimes; and S. 923, which would render any person who is convicted of a Federal capital offense ineligible for all benefits provided under title 38, United States Code.
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    Mr. Chairman, we commend you for your wise counsel in urging your colleagues to avoid precipitous action on these matters. The Government would do a tremendous disservice to American veterans if it were to act without due consideration of the principles which have guided the establishment of programs that have served veterans and their families so well for so long.
    Both bills under consideration today raise the issue of the propriety of imposing forfeiture of benefits based on the post-discharge conduct of veterans discharged honorably from military service. In the past, it has generally been recognized that veterans' benefits are provided on the basis of faithful military service and are not contingent on the veteran's conduct subsequent to discharge.
    However, we recognize that under certain limited circumstances, veterans' benefits currently may be forfeited based on conduct after service. Provisions of chapter 61 of title 38 provide for forfeiture of gratuitous benefits based on the post-discharge commission of certain serious acts, such as treason, sabotage, spying, and subversive activities, and, under very narrowly defined circumstances, submission of fraudulent claims.
    Mr. Chairman, should the committee decide it is necessary to pass legislation limiting veterans' benefits based on the commission of Federal capital crimes, VA's preference would be for the more narrowly focused provisions of H.R. 2040. We believe H.R. 2040 would adequately address concerns regarding the preservation of the sanctity of veterans' cemeteries while having a limited impact on veterans' families. H.R. 2040 applies only to persons who have committed certain crimes which result in the death of a Federal employee. It would prevent the interment of perpetrators of such crimes in the 114 national cemeteries within the VA system, Arlington National Cemetery, 34 State veterans' cemeteries which have received Federal grants.
    We also caution that the bills in question, if enacted as drafted, could give rise to a number of anomalous situations. For example, the provisions of H.R. 2040 authorizing an administrative determination of ineligibility for a person not brought to trial because of insanity would seem to make a distinction between those found by a jury to be not guilty by reason of insanity, and those found by a judge to be not competent to stand trial. Further, this provision would run counter to the long-standing tradition of not holding the insane responsible for their actions.
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    So, Mr. Chairman, for these reasons and because of the administrative difficulties that can be expected as a result of this provision, we urge the committee to delete it from the bill.
    We also wish to call the committee's attention to H.R. 2040. While denying the right to burial in a federally-funded cemetery to a person convicted of certain crimes would not bar that individual at death from receiving certain other forms of recognition under title 38, such as a headstone or marker for use in a private cemetery, a U.S. flag to drape the casket, or a Presidential memorial certificate, in our view the terms of H.R. 2040 and S. 923 present some problems that could make implementation difficult or inequitable in certain cases. However, of the two bills, VA would prefer the more narrowly focused H.R. 2040.
    Mr. Chairman, this concludes my statement. Mr. Thompson and I will attempt to answer any questions that you or Members of the committee may have.
    [The prepared statement of Mr. Bowen appears on p. 65.]

    The CHAIRMAN. Thank you, Mr. Bowen.
    You stated a preference for the more narrowly focused H.R. 2040. Would the VA favor a bill—while ours does not cover a terrorist act of killing people who are not Federal employees, would VA favor such an amendment to the bill to include persons other than Federal employees?
    Mr. BOWEN. We as a department and as an administration, do not have a position concerning expanding the provisions of the law as currently stated. We will defer to the will of the Congress, expressing the will of the American public, about how we do that. We will simply enforce the laws as you see fit to pass them.
    The CHAIRMAN. Let me ask you one more quick question. What about other capital offenses? Does the VA favor expanding the bill to cover other mass murders, or a situation involving a serial killer claiming victims over the course of several years?
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    Mr. BOWEN. No, sir. We would not support or advocate expanding or limiting the terms of the bill as currently written.
    The CHAIRMAN. I have a couple of more questions that I will submit for the record if you would care to answer them later.
    (See p. 100.)

    The CHAIRMAN. Mr. Evans.
    Mr. EVANS. Mr. Bowen, your statement is well written, but I want to make sure I understand you. You say your preference is for H.R. 2040. Does that mean the VA would support H.R. 2040, or is supporting H.R. 2040?
    Mr. BOWEN. Sir, of the two that we have examined and were asked to look at the provisions and the difficulties of implementing them, we would prefer the provisions of H.R. 2040.
    Mr. EVANS. But you are not endorsing that piece of legislation?
    Mr. BOWEN. No, sir.
    Mr. EVANS. On page 6 of your statement, you note with concern that the bill only restricts the right to burial in federally-funded cemeteries and does not affect any other benefits. Does the VA recommend that the restriction also apply to other death-related benefits?
    Mr. BOWEN. No, sir, we do not recommend that. All we are bringing to the attention of the committee is that we are talking about two things. The first concerns military honors, which are not provided by the Department of Veterans Affairs, but provided by either the Department of Defense or by voluntary honor guards from the veterans' service organizations, such as the American Legion or the DAV.
    Second, to deny burial in a national cemetery is one thing. To deny the other auxiliary burial benefits that a veteran is entitled to as a result of honorable service is another. The way the bill is currently written, also may be denying the veteran a headstone or marker for placement in a private cemetery, a U.S. flag to be draped over the casket, and the issuance of a Presidential memorial certificate. We simply bring that to your attention. You may wish to consider this; you may not. We do not advocate the inclusion of it.
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    Mr. EVANS. I thank you for your comments regarding the provision which would authorize an administrative determination of ineligibility. I agree with you that this issue requires further consideration, and I appreciate you raising it.
    Thank you, Mr. Chairman.
    The CHAIRMAN. Thank you. Mr. Quinn.
    Mr. QUINN. Thank you, Mr. Chairman.
    Mr. Bowen, I want to associate myself with the questions that Mr. Evans began, and thank you for your comments. I don't want to speak for the panel of Members who just exited the room, because as you saw, they are perfectly able to speak for themselves, as most Members are in the House and across the hallway. I would just say to you and appreciate you bringing to our attention the headstone, flag, Presidential certificate and any kind of voluntary American Legion, VFW ceremony. I would guess that many Members and other Members of the public would say that ought to go, too. I am not asking that question, because Mr. Evans probed enough that you are not supporting it; you are bringing it to our attention, and I appreciate it. Thank you.
    The CHAIRMAN. Mr. Gutierrez.
    Mr. GUTIERREZ. Mr. Chairman, I just have the same issue. It seems like we all read your comments, and Mr. Evans kind of hit the nail on the head. That was the issue I was going to raise, too, so I think, Mr. Chairman, we should, in listening to Mr. Quinn, and listening first to the Ranking Member, and then to Mr. Quinn and then back this way, it seems to be bipartisan, I think we should take a good, serious look at that particular area of the legislation. I want to thank you for bringing it to our attention. Thank you so much.
    The CHAIRMAN. Mr. Buyer.
    Mr. BUYER. Thank you, Mr. Chairman.
    I want to ask both of you gentlemen, in H.R. 2040, if we made that law, and if we had a veteran that was a disabled American veteran receiving his disability payments, and then upon conviction, and we go with H.R. 2040, I am trying to figure out where we are going to draw the line here. Would we continue to pay this individual disability payments while they are sitting in prison awaiting death?
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    Mr. THOMPSON. Currently the law precludes payment of disability compensation to incarcerated felons beyond a certain amount. A minimum amount of the benefit is still payable. Regardless of the level of disability, the 10 percent disability rate is the most a person can receive while in prison. This legislation was enacted in the 1970s, and so currently there are quite severe restrictions on receipt of benefits by incarcerated felons.
    Mr. BUYER. Well, if you are going to draw the line for these particular offenses, do you have a recommendation to us on whether or not we should eliminate all veterans' benefits to include those disability payments for someone convicted of these types of offenses?
    Mr. THOMPSON. We do not have a cleared position, other than on the legislation that is before the committee.
    Mr. BUYER. So if we wanted to take this another step, H.R. 2040 to another step, what would be your opinion if this committee—if we laid out an amendment to H.R. 2040 or worked with the Chairman to say, all right, we are going to deny those disability payments for someone while they are sitting on death row to even include that 10 percent? What is your feeling?
    Mr. THOMPSON. Again, we would have to coordinate a position on that.
    Mr. BUYER. Well, would you let us know what your opinion is?
    Mr. THOMPSON. Yes. (See attached insert.)

    As indicated in our testimony, VA prefers H.R. 2040, which would make certain criminals ineligible only for burial in Federally funded cemeteries, to S. 923, which would preclude all eligibility under title 38. Consistent with this position, VA does not advocate amending H.R. 2040 to prohibit eligibility for additional benefits.
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    The CHAIRMAN. Would you yield to me for just one second? While you said the VA does not make those payments, we have been very careful to see to it that the innocent are not harmed by our action. This would not apply to, say, dependent children or a spouse; is that correct? Those payments would continue.
    Mr. THOMPSON. That is correct. The amounts withheld by virtue of the incarceration may be apportioned to family members.
    The CHAIRMAN. Thank you.
    Mr. BUYER. Thank you for the clarification, Mr. Chairman.
    The CHAIRMAN. Mr. Mascara.
    Mr. MASCARA. I have no questions.
    The CHAIRMAN. Mr. Doyle.
    Mr. DOYLE. Thank you, Mr. Chairman.
    I guess one concern I have about H.R. 2040 is, and you pointed this out in your testimony, that if a person committed a crime like, a few years back when we had the New York subway incident where a guy walks on the subway and wipes out 18 or 20 people, and if that person was a veteran, he or she would receive benefits under this bill. That's because he didn't kill any Federal employees in the act of doing their duty; even if there were Federal employees killed, if they weren't in the act of doing their job as Federal employees, that person would be eligible for full burial rights whereas in the other incidents we talk about they wouldn't.
    I agree with Spencer. I don't see the distinction between the guy that does that or the person that blows up a Federal building. That would be my only comment. I appreciate you pointing that out in your testimony.
    The CHAIRMAN. The Chair would like to make a comment. I hope that the Members stay around to hear Mr. Surratt, who is representing all of the veterans' service organizations today. They all got together and came up with one statement, and I think he addresses this issue.
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    Mr. Reyes.
    Mr. REYES. Thank you, Mr. Chairman. I don't have a question, but if you can help me out, there are a number of issues that have surfaced here this morning that I feel need to be addressed. Will we have an opportunity to address them so that we comprehensively cover all of these areas?
    The CHAIRMAN. Absolutely. We will do that in our markup session. This is strictly a hearing, that is the purpose, to get the views of the various organizations that wanted to testify.
    Mr. REYES. Thank you.
    The CHAIRMAN. Mr. Bachus, you may want to explain very briefly your amendment to the DOD bill on the floor since it does come into this area.
    Mr. BACHUS. Also, there has been some concern, and I think we ought to all be concerned about stepping into State jurisdiction. Mr. Buyer expressed that concern. I think that is a valid concern. We are not doing that here. We are talking about national cemeteries; we are talking about military service to the country; we are talking about the country honoring these people. The United States, not the State of Alabama, not the State of Texas; we are talking about the Nation giving these people certain benefits. Nothing in my bill denied anything to survivors, widows, anything of that nature.
    What my amendment did, which passed unanimously, it simply said that if you are convicted of a capital offense and sentenced to death or life imprisonment without parole, that you are not eligible for an honored funeral. And among those honors are flags and such, so I would think that that would have covered that. And that is certainly something of national jurisdiction.
    The CHAIRMAN. Thank you, sir.
    Mr. Mascara, my apologies. I think I skipped over you a while ago.
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    Mr. MASCARA. Mr. Doyle asked a question. I was curious about that situation where you had to be on duty in order for this to apply, and I agree with Mr. Doyle, and I thank you for your comments.
    The CHAIRMAN. Mr. Spence.
    Mr. SPENCE. I have no questions, Mr. Chairman.
    The CHAIRMAN. Dr. Snyder.
    Mr. SNYDER. No questions, Mr. Chairman. Thank you.
    The CHAIRMAN. Mr. LaHood.
    Mr. LAHOOD. Mr. Bowen, if this bill, H.R. 2040, were to pass as it is written now, would you recommend that the President sign it; if it passed the House and Senate, would you recommend the President sign it?
    Mr. BOWEN. We do not have a position on that at this time, sir. We are here to bring up some issues that we have identified which we would like the committee to consider. We do not support the Senate version versus H.R. 2040; however, of the two, we would prefer the measures and the provisions as drafted in H.R. 2040.
    Mr. THOMPSON. I would add, Mr. LaHood, that by virtue of not opposing H.R. 2040, we are certainly not in a position to recommend disapproval by the President.
    Mr. LAHOOD. So you would recommend that he sign it if it were passed?
    Mr. THOMPSON. I think that is likely, although we haven't reached that bridge. I think that is altogether likely.
    Mr. LAHOOD. So the glass is half full rather than half empty.
    Mr. THOMPSON. About half.
    Mr. LAHOOD. Yes. Mr. Bowen, could you at some point along the way in the next, say, several weeks, by written correspondence, give me a report on how we are doing with Camp Butler?
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    Mr. BOWEN. Yes, sir.
    Mr. LAHOOD. Thank you, Mr. Chairman.
    The CHAIRMAN. Mr. Rodriguez.
    Mr. RODRIGUEZ. Thank you, Mr. Chairman. I have, I guess, personally just some difficulties, and I think I agree with some of the Members that if you have a crime that is committed against citizens, I would think that would also apply. What I am gathering is the way it is written right now, that it doesn't encompass that area; is that correct?
    Mr. BOWEN. It must be a Federal employee, and that employee must be on duty.
    Mr. RODRIGUEZ. That doesn't make sense to me in terms of why we just don't narrow it down to Federal employee.
    The other thing is that I gather that some of the concerns that you have is to make sure we don't restrict any resources maybe to the family and go beyond that.
    The other area that was raised that I also would have some concerns about is if an individual has mental health problems, and in that area I can see maybe some difficulties arising from that, but maybe as we deal with it, we can come to grips with this issue and encompass—at least I would hope that we would want to encompass a little bit more than just the narrow definition right now, with the opportunity of maybe not restricting some of the benefits to the family members or innocent individuals that are out there.
    The CHAIRMAN. Are there any other questions?
    Mr. Quinn.
    Mr. QUINN. Mr. Chairman, I really think that this discussion is very, very helpful, and to slow things down a bit, to get us through this is extremely helpful. As we heard just this morning, a loft questions coming up.
    Mr. Bowen, you mentioned on page 6 in your testimony, and I mentioned in an earlier question about a headstone and flag and voluntary honor guards and so on. Would it be possible for the Department in your area to write back to us, to the Chairman, all of us on the committee, just what some of those other things are and spell them out for us in writing? You mentioned them on page 6, but I would ask if you could go into a little bit more detail. As Mr. Thompson pointed out, the 10 percent for someone who is incarcerated, for someone who is already receiving disability benefits. We certainly don't want to be headed in one direction and affect somebody else along the line. As the Chairman of the Subcommittee on Benefits, I know that I have talked to Members of the subcommittee, and they are very interested in where we are headed on this. So something in writing for all of the Members to look at would be extremely helpful if I may ask for that.
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    Mr. BOWEN. We will do that.
    Mr. QUINN. Thank you very much.

    Thank you, Mr. Chairman.
    The CHAIRMAN. Mr. Bowen, thank you.
    Mr. Thompson, thank you for taking the time to be with us.
    There will be some questions in writing that we would submit for the record, if you would answer them, please. Thank you very much.
    (See p. 100.)

    The CHAIRMAN. On our next witness, Mr. Johnny H. Killian. Mr. Killian is a constitutional law attorney from the Congressional Research Service.
    Mr. Killian, we appreciate your being with us today, and you may proceed in any way you see fit. Your entire statement will be made a part of the record.


    Mr. KILLIAN. Thank you, Mr. Chairman.
    I am appearing today at the request of the committee to testify about any constitutional implications that may arise from consideration of these bills. As an employee of the Congressional Research Service, I, of course, cannot comment on or advocate policy; I can only address the issue of constitutionality with regard to these bills.
    The first point simply is that there is no general constitutional objection that can be raised against a bill that imposes prospective disqualification. That is because veterans' benefits, the burial rights, privileges, that sort of thing, are gratuities that Congress can confer out of respect and gratitude to veterans. The statutory provisions do not create any kind of property interests that would be violated by Congress's prospective revocation of these rights.
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    The only constitutional issue that arises is as to the application of any of these bills to persons who have already become disqualified in the sense of having been convicted. We know reference has been made to Mr. Timothy McVeigh, and there is a prospect, a possibility, of the raising of an ex post facto issue or a bill of attainder issue.
    The thing about an ex post facto law is that it is one that is forbidden by article I, section 9 to the Federal Government, and article I, section 10 to the States. It is a law that imposes punishment in addition to punishment that may already have been imposed in the past, prior to the enactment of the bill. But an ex post facto law, as I have defined it, requires that there be punishment. Either the purpose or the intent or the effect of a law enacted by Congress must punish in order for it to violate the ex post facto clause or a bill of attainder clause or any others that have been the subject of constitutional decision by the Federal courts or by the Supreme Court.
    The definition of what is punishment and what is not is a little difficult to get a grip on outside the facts of particular cases. It essentially is that there may be two different grounds for Congress to proceed. There may be a punitive reason; there may be a nonpunitive reason. If the purpose that Congress has, if the effect that Congress has in enacting is nonpunitive, then there is no ex post facto violation and no bill of attainder violation.
    Generally, although it is sometimes difficult to get a precise grip on it, a statute which is aimed at the activity or status from which an individual is barred is a nonpunitive enactment. It is not a violation of the ex post facto clause. The contrary is the case where the statute in question is aimed at a person or class of persons who are disqualified. So if the intent is to get at particularly individuals or groups of individuals, that is a violation. If the purpose is to regulate some activity which is within Congress's power, that is not punitive, and just as Congress may have the purpose in legislating prospectively to deny burial in a Federal cemetery or a national cemetery to people that Congress feels would dishonor the privilege, that Congress would feel that scarce resources should be better left to people that it more rightly believes would not bring dishonor on the system of burial, then there is a nonpunitive purpose, and that applies just as well retroactively as it does prospectively.
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    The other basis on which the courts frequently find ex post facto violations is if the legislative record of enactment contains expressions of hostility toward, objections to a particular person, and, therefore, Congress always has to be concerned about the creation of the legislative record.
    I will stop there, Mr. Chairman. My statement is much more fully developed, and I would be delighted to answer your questions and the questions of Members of the committee.
    [The prepared statement of Mr. Killian appears on p. 72.]

    The CHAIRMAN. Thank you, Mr. Killian.
    Let me ask you one question. Some concerns have been raised about the provisions in H.R. 2040 which would allow for administrative disqualification from entitlement to burial if the veteran had not been available for trial due to, quote, ''determination of insanity.'' Would it make more sense to use ''incompetence to stand trial,'' rather than ''stand trial for insanity?''
    Mr. KILLIAN. For constitutional purposes, I don't think it makes any difference, Mr. Chairman. The Supreme Court has indicated there are constitutional problems with punishing someone who is insane or incompetent, but as we discussed, this bill is not aimed at punishing. Therefore, it seems to me to present a purely policy question to the committee of how that disqualification should be defined.
    The CHAIRMAN. Thank you, sir.
    Mr. Evans.
    Mr. EVANS. Thank you, Mr. Chairman.
    Mr. Killian, I want to thank you for your excellent testimony. It is very well written and covers the complexity of these issues.
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    I do want to establish that the legislative intent this bill is not purposely punitive. Rather, the Congressional intent is to preserve the sanctity of veterans' cemeteries. If, however, the bill were to be amended in such a way as to be construed as purely punitive, what would be the effect on the constitutionality of the bill?
    Mr. KILLIAN. If the legislation on its face were construable as purely punitive, or if the legislative history contained a great deal of evidence of animus and hostility, then courts would be more likely to declare it unconstitutional, the legislation unconstitutional as a bill of attainder or as an ex post facto law.
    Courts are generally very loath to strike down legislation on the basis of the motivation of Congress. A law comes to the courts with a presumption of constitutionality. The courts are loath to look behind the stated purposes of Congress, but it is conceivable that legislation which either on its face seems to be hostile, seems to be punitive, or which evidenced in the legislative history of its consideration a punitive intent, then the legislation could be found unconstitutional. There have been laws under those circumstances which have been struck down by the courts.
    Mr. EVANS. Thank you, Mr. Chairman.
    Thank you, Mr. Killian.
    The CHAIRMAN. Thank you, Mr. Evans.
    Mr. Buyer.
    Mr. BUYER. What I was thinking about, Mr. Chairman, is so often we try to be accurate in our laws for their interpretation and here is what I want to ask the witness.
    What is your recommendation to us? Should we really pass a statute that would give some greater discretion for administrative decisions for them to make some judgment calls? I hate to sit here and try to draft a law to cover all of the what-ifs, because if we talk about a case, America got to see when this veteran stole a tank in California, and he drove that tank, and he put a neighborhood there and a city into peril and terror, and fortunately no one was killed, but he could have easily killed someone. Yet when the tank then—the track was thrown off, they killed the individual who was driving it.
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    Now, he got military honors in his burial. Not everyone is going to get an adjudication. Someone, in fact, could be a veteran and go in with an AR–15 and shoot people up in a McDonald's, and the police then kill him, yet he is going to get a military burial.
    So on those kinds of cases where there isn't an adjudication from the courts, what about if we give some administrative decisions to be made by the VA in these judgment calls?
    Mr. KILLIAN. In terms of the fact of consideration of ex post facto, bill of attainder and that sort of thing, I don't think it makes much difference. It is still relating to either enactment by Congress, which does the act, or a delegation to an administrative officer to do the act, so that I think there is not a great deal of difference.
    I would point out that the present 38 U.S.C. section 6104 does provide for administrative determination by now the Secretary of Veterans Affairs, and then the Administrator, that a person has engaged in a variety of activities that Congress wished to constitute a disqualification for certain veterans' benefits. That was at issue in the case which I mention on page 10, Thompson v. Whittier, where the then Administrator had made certain decisions, had gotten involved in the courts challenging this as ex post facto. The courts had difficulties with the grounds that the Administrator had asserted certain speech-related activities by a Member of the Communist party and that sort of thing, so that even a delegation to the administrator, unless it is cabined quite carefully, could raise constitutional problems in its exercise, in its administration. But simply in terms of giving an administrator the discretion to find additional disqualifications beyond what Congress may expressly enact, I don't think as a general rule that that would raise any constitutional problems and could suffice to prevent Congress from having to come back to that again.
    Mr. BUYER. Sir, this one statute that you cited where there is some administrative, what was that again?
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    Mr. KILLIAN. That is 38 U.S.C. section 6104, I think it is. Yes.
    Mr. BUYER. All right. Thank you very much.
    Thank you, Mr. Chairman.
    The CHAIRMAN. Mr. Doyle.
    Mr. DOYLE. No questions, Mr. Chairman.
    The CHAIRMAN. Mr. Quinn.
    Mr. QUINN. No questions, Mr. Chairman.
    The CHAIRMAN. Dr. Snyder.
    Mr. SNYDER. Yes, just a quick question.
    I don't have much feeling for Congressional intent. Fortunately I came from a State legislature where we never kept records of anything, and we could always make up intent later as it suited our purpose. Clearly this is an example where you have 435 Members of the House, and every one of them are going to have a different intent, and I know you discussed that, that you can have multiple purposes, but clearly, I was at the Federal cemetery in Little Rock on Memorial Day, and it is a centrally located cemetery and very well—I mean, a lot of folks come to it. In fact, I have a grandfather of a good friend of mine who is buried there, and we have gone to the cemetery just to put some flowers on the grave.
    But clearly one of the purposes is, totally separate from the person that we are talking about burying there, is what it is going to do to the family members who have loved ones buried nearby, totally separate from any type of punitive purpose. I guess for the purposes of this record, those are the people that I am thinking about. I want any convicted mass murderer-terrorist to have a decent burial, and it probably is going to be at taxpayer expense somewhere, if we were to follow through with an execution or whether a person passes away, but that is not my concern. My concern is the people in proximity to that, which is a totally nonpunitive purpose, and I just make that comment.
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    Mr. KILLIAN. If I just may say very briefly, the courts have problems with legislative history, and certain Justices of the Supreme Court have a lot of trouble with legislative history. In the course of any enactment of a bill, there is created legislative history which demonstrates this Member's intent or that Member's intent and that kind of thing.
    The Court generally requires, for determining that there was a punitive purpose when what was said to be the purpose was nonpunitive, that there be very clear evidence of substantial hostility or animus among more than just a few Members of Congress, so that I don't think that even if there might appear in the record some comments that could be construed to be punitive, that a bill that was crafted with a nonpunitive purpose, the preservation of burial spots to veterans who are entitled to the honor, the preservation of scarce resources and that kind of thing, I would seriously doubt that the courts would find that there had actually been punitive purpose driving Congress.
    Mr. SNYDER. Thank you, Mr. Chairman.
    The CHAIRMAN. Mr. Doyle.
    Mr. DOYLE. No questions.
    The CHAIRMAN. Mr. Spence.
    Mr. SPENCE. Thank you, Mr. Chairman.
    A few Members this morning have expressed concern about the Federal employee aspects of it and also these other enumerated things here. It says, as it applies to one of the following. Could you explain why we have these provisions, the Federal employee and this? Is that to get Federal jurisdiction?
    Mr. KILLIAN. Not in terms of Federal jurisdiction. Of course, the issue is burial in federally-funded cemeteries or a denial of benefits. I can only assume that the bills were drafted in the context of a particular factual situation. It was written entirely that way.
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    Mr. SPENCE. So it wouldn't make any difference if just any person was killed.
    Mr. KILLIAN. That is correct. I mean, Congress can determine that people are entitled to the honor of burial in federally-funded cemeteries or the receipt of benefits, and Congress can determine that certain conduct which does not have to have anything federally related to it would disqualify persons.
    Mr. SPENCE. How about the insanity part?
    Mr. KILLIAN. Well, as I indicated, insofar as the bills are nonpunitive, they have a nonpunitive purpose, I do not think that that raises a constitutional issue. Congress can very well determine for any number of reasons that certain persons are not entitled to burial in federally-funded cemeteries or the receipt of particular Federal benefits and the like. It is simply a policy question that Congress has to decide.
    Mr. SPENCE. Well, the reason I am asking these things, we have never had a chance to rule on these things. The best example that comes to mind is that Congress passed a law saying that if you burn a flag, that is a crime, and the Court comes back and says, that is a violation of free speech. They have a little difficulty, the Court, determining what is an act and what is speech. So when we have that kind of situation that exists, there is no telling what might happen about a ruling on something like this. That is the reason I asked the question.
    Mr. KILLIAN. Right. I would say the Court is much more strict in its review of legislation that it decides violates speech than it is with respect to laws that may structurally violate—that may violate structurally the Constitution, such as the ex post facto clause.
    Mr. SPENCE. While I am on that, the act and the speech part right there, if the Court is going to say that burning, that is an act, burning a flag, that is an act, that is not speech, they could extend that to say that when you throw a bomb in a building, like out there in Oklahoma, that is a way of expressing yourself, that is free speech.
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    Mr. KILLIAN. Well, they have never extended it to the commission of violence. In fact, there is a whole doctrine in the first amendment area, the clear and present danger doctrine, which is that when speech is imminently aimed at provoking violence or other activities, and there is no time to correct it by speech, then Congress or a State legislature may punish that kind of speech. I mean, the pure speech, pure advocacy, the advocacy of overthrow of the government, or the advocacy of conducting riot, you can't go out in the street and say, everybody, let's go down and do X, which would be criminal. The Court draws lines at speech that provokes or promotes criminal conduct, so that the precedents are very strongly against the prospect of that kind of thing being accomplished by the courts.
    Mr. SPENCE. Thank you.
    The CHAIRMAN. Ms. Carson.
    Ms. CARSON. Thank you very much, Mr. Chairman. I don't want to be repetitive. Probably you have answered the question, but for my edification, two questions.
    This bill, H.R. 2040, does it, Mr. Chairman, apply only to individuals who have committed Federal crimes?
    The CHAIRMAN. As it is currently written, yes, ma'am, it would. This is the purpose of this hearing, to take everybody's input, and then we will decide when we mark up the bill what is best after we listen to everyone.
    Ms. CARSON. My second question, Mr. Chairman, is whether it would affect the families of an individual.
    The CHAIRMAN. We have gone out of our way to make sure that innocent victims such as spouses or minor children are not affected.
    Ms. CARSON. Thank you, Mr. Chairman.
    The CHAIRMAN. You are welcome.
    Dr. Cooksey.
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    Mr. COOKSEY. Mr. Chairman, I have limited comments to the fact that I would like to record that I agree with the intent of this legislation. I happen to have a shortage of space in my District, and we have a shortage of space in our national cemeteries, and we have been looking into getting an additional cemetery. We have the ground. I cannot see the value of putting someone in that has committed a crime that has disgraced this Nation and disgraced the uniform and disgraced the flag.
    So I agree with the intent of the legislation. I got here late, and I gather that there are some problems with it.
    Mr. KILLIAN. Well, not that I think there is a problem with it. I was suggesting that in the context of the application of the legislation, that somebody who has already suffered the disqualification, as in Mr. McVeigh's case, there could be raised an ex post facto claim or bill of attainder claim and the like, and I suggested that the courts are quite unlikely to adopt that claim, and to strike the legislation down on the basis of it, because the committee has a nonpunitive purpose, and with the ex post facto laws, the courts require a punitive purpose in order to qualify as a prohibited law.
    Mr. COOKSEY. I see. Thank you.
    Thank you, Mr. Chairman.
    The CHAIRMAN. Mr. Bachus.
    Mr. BACHUS. Thank you.
    Mr. Killian, I am going to give you a copy of three bills which I think you are already familiar with. One is Senate 923, which the U.S. Senate passed.
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    (See p. 41.)

    Mr. BACHUS. My understanding is under that bill, if you were to kill an FBI agent or kill someone in a Federal courthouse and were convicted of that, you would be ineligible for any veterans' benefits; is that correct?
    Mr. KILLIAN. Yes.
    Mr. BACHUS. Now, if you killed a city police officer and a deputy sheriff and a State trooper, you would still be eligible; would you not?
    Mr. KILLIAN. That is correct.
    Mr. BACHUS. If you went into a local elementary school and blew up a classroom and killed 40 students and a teacher and a teacher's aide, you would still be eligible for full benefits under the bill that was passed out of the Senate; is that correct?
    Mr. KILLIAN. That is correct.
    Mr. BACHUS. I show you H.R. 2040.
    (See p. 42.)

    Mr. BACHUS. If you kill an FBI agent, if you go into a Federal courthouse, if you kill someone within a Federal courthouse who is a Federal employee, you are ineligible for certain benefits.
    Mr. KILLIAN. That is correct.
    Mr. BACHUS. If you went into a State capitol and killed a State trooper or the Governor, you would still be eligible?
    Mr. KILLIAN. That is correct.
    Mr. BACHUS. If you went into a local school and you killed, you would still be eligible for a military funeral?
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    Mr. KILLIAN. Yes.
    Mr. BACHUS. Or if you went into city hall and killed everyone who happened to be in that building, you would still be eligible?
    Mr. KILLIAN. That is correct.
    Mr. BACHUS. I show you the amendment that I passed out of the House.

    That addresses only burial rights, burial benefits. A person becomes entitled to those upon their death; is that correct?
    Mr. KILLIAN. That is correct.
    Mr. BACHUS. Timothy McVeigh would only be denied benefits upon his death.
    Mr. KILLIAN. That is right.
    Mr. BACHUS. If this bill passed today, he would not apply for these benefits until the day he dies; is that correct?
    Mr. KILLIAN. That is correct. There is a way in which this bill is not retroactive in the sense that the actual accrual of the privilege or the benefit is going to occur sometime after enactment, such as when he becomes eligible, if that is the correct word, eligible for burial in a federally-funded cemetery.
    The difficulty is that, as in a number of other cases, the courts have decided that the disqualification that the bill established predates the enactment of the legislation so that you have a retroactive effect there, but a prospective application with respect to the other.
    Mr. BACHUS. That would be for the courts to determine.
    Mr. KILLIAN. That is right.
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    Mr. BACHUS. But now he is not entitled to these benefits until such time?
    Mr. KILLIAN. Well, prospectively he is entitled, just as all of us may say that we are entitled to receive something in the future when that qualification time comes.
    Mr. BACHUS. I had read that the family could not even apply for this until his death.
    Mr. KILLIAN. I am not at all sure, but I think that is undoubtedly the case. There would be no reason for somebody to apply in advance of the death.
    Mr. BACHUS. I think the record was clear in the House of Representatives when we passed that amendment that we were doing it to honor our military heroes and not out of dishonor for anyone, that the focus of the bill was on honorable military service.
    Mr. KILLIAN. It struck me that the record reflects clear nonpunitive purpose, yes.
    Mr. BACHUS. Thank you.
    I have no further questions, other than I would point out that I don't think that this Congress ought to be on record as saying that it is wrong to kill an FBI agent or an AFT agent, and deny them all benefits, but by the same token say that if it is a city police officer or an elementary school teacher or an entire classroom or a busload of students, that there be no denial of any benefits. Thank you.
    The CHAIRMAN. The gentleman from Arkansas, Mr. Hutchinson.


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    Mr. HUTCHINSON. Thank you, Mr. Chairman. I first want to tell you that I appreciate you sending out the letter for each and every one of us to keep their powder dry. I think this is a type of issue when you are speaking of veterans' benefits that we need to be reflective upon, and your leadership has been very helpful on that. I think this is the right way to approach consideration of this legislation.
    I did have a couple of questions following up on Mr. Bachus's questions concerning the possible extension of this to those who might be convicted of capital offenses under State law. Would there be any particular constitutional problem or drafting problem if that extension was made under this legislation?
    Mr. KILLIAN. There would be no constitutional problems inasmuch as what we are talking about are disqualifications for receiving Federal monies or a privilege made available through the utilization of Federal monies, such as burial in a national cemetery. The disqualification runs to that. Congress is not attempting to regulate a State law or a State practice. It simply, as in a number of instances of Federal benefit programs, is recognizing a circumstance that arises under State law so that there is no difficulty of constitutional application of the law.
    Mr. HUTCHINSON. And within the purview of your expertise, do you see any particular policy or drafting reason that that should not be extended?
    Mr. KILLIAN. I cannot at the present time see that there would be any problem with regard to definitional provisions that related to the State crimes as well.
    Mr. HUTCHINSON. And then in the legislation, and your testimony referred to it, that the Secretary of Veterans Affairs is authorized to adopt regulations providing for ineligibility for persons who might have fallen into the prior category, but for death, flight to avoid prosecution, or determination of insanity. In the legislation, the Secretary must make that finding by clear and convincing evidence.
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    Do you believe that is the appropriate standard, or would you comment on that in contrast to preponderance or beyond a reasonable doubt?
    Mr. KILLIAN. It is such a policy determination for Congress to make as to whether the Secretary's discretion should be cabined to some extent by the kind of showing he is required to make. Congress has provided any number of delegations which a recipient of the delegation must show by various standards, whether it is preponderance or the like, so that it simply depends on the importance that Congress might very well attach to the determination of the Secretary to make. We may very well want to assure that the Secretary makes a determination on the basis of a substantial amount of evidence; that he is really—that his determination is really informed rather than simply a 51–49 kind of thing. But that is entirely a matter for the policy determination of this committee and of the entire Congress.
    Mr. HUTCHINSON. I thank you, and I thank the Chairman.
    The CHAIRMAN. Mr. LaHood.
    Mr. LAHOOD. Based on the current makeup of the Supreme Court and your knowledge of this legislation, if it were passed the way it is today, do you believe it would be—if someone challenged it constitutionally, that it would be ruled constitutional?
    Mr. KILLIAN. The Court on June 23 upheld, in a case called Kansas v. Hendricks, against an ex post facto challenge as a sexual predator statute from the State of Kansas under which Kansas provided for civil commitment of persons who have been convicted of certain sexually violent crimes and have served a term of imprisonment. The person was civilly committed upon petition of the State, by a jury finding of a beyond a reasonable doubt standard that the person was a hazard, would likely be a hazard to other persons after he was released. He was committed for treatment, if treatment were available for his circumstances, or of simply confinement for the protection of the public otherwise, if treatment were not available.
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    This statute was applied in the Hendricks case to somebody who had committed the offense prior to the time Kansas had enacted it, had enacted the civil commitment statute. He challenged it. The Supreme Court upheld the constitutionality against—on various grounds, but upon the ex post facto ground. The ex post facto ground was, I must say, 5 to 4, but it demonstrates the slipperiness of it, and it does indicate the standard that the Court applies to confinement as being an indication of punitive intent.
    With regard to disqualifications for benefits, the other Supreme Court cases have been overwhelmingly, in terms of the vote of the Justices, in favor of sustaining the constitutionality of those provisions on the basis that the Congress had a nonpunitive intent.
    Mr. LAHOOD. And do you think if we add other non-Federal persons that that would affect it at all?
    Mr. KILLIAN. I don't think it would affect it at all in terms of the constitutionality.
    Mr. LAHOOD. What do you think of the idea that somebody would challenge this constitutionally? Do you think that a relative, if we passed this and the President signed it, that a relative would say, hey, this person did serve with distinction prior to the commission of a crime, and they are entitled, or somebody—you know, they are entitled. What is your notion of that? Do you think that a relative, somebody, probably would file a challenge to the Supreme Court?
    Mr. KILLIAN. I would think, first of all, that there might be some difficulty with a relative filing a judicial action. I think there is a standing question there. But assuming there was some injury to the person bringing the action, such as he was required to pay for the interment and other functions that went along with the interment, that the person might have standing. But I don't think that on the merits he would likely be successful inasmuch as whatever the person's status as a veteran prior to the commission of an offense that worked to disqualification, if Congress has a nonpunitive purpose in disqualifying a person or taking away the privilege, which a number of Members here identify as representing the honor that attaches, that shouldn't be dishonored, the burial of certain people or the using of scarce resources and the like. So long as there is a nonpunitive intent reflected in the legislation, I think it is quite unlikely that the courts would ever hold it to be unconstitutional.
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    Mr. LAHOOD. Thank you, Mr. Chairman.
    The CHAIRMAN. Mr. Buyer, did you have one other question?
    Mr. BUYER. I did, Mr. Chairman. Thank you.
    First of all, all the references today by different Members and witnesses to Timothy McVeigh, I have to agree with Mr. Bachus. I mean, this legislation came about with regard to Mr. Hays. I appreciate you bringing to our attention about the bill of attainder. I thought that was antiquated, and I have to go back 15 years to law school to remember even what that was about.
    I am trying to sort through my mind when you said that we can do this so long as it is nonpunitive, and then you keep using the word ''disqualification.'' And Spencer got into it trying to figure out, well, earned benefit, when does he receive it; I only want to do it by death. These earned benefits, is it an earned benefit with a condition subsequent, meaning you get it so long as you don't do, and then there is an enumerated list.
    So when you look at our laws and how they are set up, wouldn't you concur that these are conditions subsequent?
    Mr. KILLIAN. So far as the legislation applies prospectively to people who, after its enactment, may commit a crime, certainly that is true. You still have the problem that applies to persons who have, by their conduct, established their disqualification prior to enactment of the legislation, and that is when you have the ex post facto/bill of attainder kind of problem, and that is the instance in which it makes a great deal of difference whether Congress's purpose was punitive or whether it was simply remedial or regulatory.
    Again, the focus is on, if Congress is looking at the activity or the status to which the disqualification attaches, it is much more likely to be nonpunitive. If they are looking to the person that they are disqualifying as animus, there is a possibility of finding that it is punitive and therefore violates the statutes.
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    Mr. BUYER. That is why I think Mr. Bachus cautioned at the beginning of this hearing that this is about Mr. Hays in Alabama, who has already been buried, and for us to talk about someone else, even who are still alive, isn't really helpful.
    Mr. KILLIAN. The case law does reflect some instances under either ex post facto or bill of attainder in which Congress had in mind a particular person or a particular class of individuals, but the fact that they had in mind someone—I mean, the fact that Mr. McVeigh is present in spirit at the hearing, the fact that someone is identifiable, that does not make the disqualification punitive.
    We have a case that is quite well-known, a case called Nixon v. General Services Administrator, where Congress provided legislatively for the seizure of Mr. Nixon's papers and tapes, and the cataloging of them, by the GSA. He was the only one affected. He was named by name. There was specificity, which is what you require as the first prong of the bill of attainder, but it was not intended to be punitive. The purpose was to preserve those records for historical purposes and for trial use and the like, so that the fact that Mr. Nixon was singled out, the Court said, he constituted a legitimate class of one.
    Mr. BUYER. Thank you, Mr. Chairman.
    The CHAIRMAN. Mr. Killian, thank you very much. You have been very helpful. Thank you for taking the time to be with us today.
    Mr. KILLIAN. Thank you, sir.
    The CHAIRMAN. Rick Surratt will be our next witness to testify. While he is coming up, the Chair would like to make a little announcement.
    Today is the last day for one of our very faithful employees, Ira Greenspan, who has been with this committee for 4 years.
    Ira, if you want to stand up over there.
    He has been most helpful, done an all around good job. He is going on to what he perceives to be bigger and better things. I am sure that some of us would disagree with that, but we wish you the very best, Ira. Thank you for your service.
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    The CHAIRMAN. Rick, welcome. Let me thank you very much for the way you and the veterans' services organizations have handled this testimony and made it possible for you to represent all of them, and we appreciate you being here. Your entire statement, of course, will be printed in the record, and you may proceed in any way you see fit. If you care to introduce the guests with you.


    Mr. SURRATT. Thank you, Mr. Chairman. Before I do that I would like to say in regard to Ira, we would like to take this opportunity to thank him for all of the good work that he has done. He has been really helpful, I am sure, with all of the veterans' service organizations. The DAV has had a very pleasant experience working with him, and we are going to miss him, but we wish him well if he is going to greener pastures.
    I will just ask each of the witnesses to introduce themselves, if they will.
    Mr. TUCKER. David Tucker with the Paralyzed Veterans of America.
    Ms. WEST. Kelli West with Vietnam Veterans.
    Mr. CRANDELL. Bill Crandell with AMVETS.
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    Mr. MAGILL. James Magill, VFW.
    Mr. HOLLINGSWORTH. Kimo Hollingsworth, with the American Legion.
    The CHAIRMAN. Thank you. You may proceed.
    Mr. SURRATT. I am Rick Surratt. The American Legion, AMVETS, the Blinded Veterans Association, DAV, the Jewish War Veterans, PVA, VFW, and the Vietnam Veterans of America are grateful for the opportunity to present their views on S. 923 and H.R. 2040. Together these organizations are made up of millions of veterans, and these two bills are certainly of interest to our Nation's veterans.
    No group of our citizens has invested more in the preservation of our national interests than veterans. Therefore, as much as any group, they detest actions which do not respect the rule of law. Yet, among them, as within society generally, there are, of course, those who transgress the dictates of civilized conduct. And though we tend to expect more from our fellow veterans, we cannot deny their misdeeds when they occur, nor can we in good conscience condone their criminal acts just because they are veterans. They must face the same justice as any citizen.
    But, if the perpetrator incidentally happens to be a veteran, under what circumstances, if any, should that in and of itself be of consequence in how we administer punishment for his or her offenses? The veterans' organizations submit that equal treatment demands a firm general rule that penalties should correlate to the crime and should not go beyond to revoke unrelated rights earned through service to the Nation. In other words, revocation of veteran-related rights should not conveniently become a bonus penalty for the Government to impose in addition to that imposed by the criminal justice system.
    Just as veterans do not deserve lighter punishment merely because they are veterans, they do not deserve harsher punishment just because they are veterans. Current law is consistent with that principle. Veterans lose the rewards of service to their country only when they subsequently do such disservice to the country itself as to counteract the benefits of their prior contributions and make continuation of the rewards unwarranted and inappropriate. They forfeit their special veterans' rights when they engage in acts of mutiny, treason, sabotage or subversive activities.
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    In addition, as a practical matter, most veterans' benefits, such as home loans or educational benefits, would be of little or no use to veterans imprisoned for crimes. Under current law, most of a veteran's compensation payment is suspended while he or she is incarcerated. This suspension is a method of savings for the Government during a time when a veteran does not suffer the economic effects of disability because he or she is incarcerated and maintained at Government expense, and such provisions do not penalize a veteran's dependents because compensation can be apportioned to them during the incarceration.
    S. 923 provides that a person who is convicted of a Federal capital offense is ineligible for veterans' benefits. S. 923 could also be read as prohibiting benefits for the innocent dependents. Regardless, S. 923 is objectionable in that it would impose additional penalties on veterans merely because they are veterans and because it would revoke their veterans' rights for reasons unrelated to their military service.
    While it is not the purpose of veterans' organizations to support measures to withdraw veterans' benefits, they understand this Committee's duty to respond to concerns that certain veterans who have committed despicable acts and brought shame upon themselves might be buried in our veterans' cemeteries.
    To permit persons undeserving of such honor to be buried in veterans' cemeteries diminishes the rights of other veterans fully deserving of the honor. The veterans' organizations believe that H.R. 2040 represents a proper exercise of restraint and that it is a reasonable, appropriate response to the concern that has arisen regarding burial of infamous criminals in our veterans' cemeteries.
    Mr. Chairman, the veterans' organizations commend you and your cosponsors' efforts to ensure that any legislation enacted is fashioned to best protect the rights of all concerned: those who are completely innocent, but who might be adversely affected without some legislation to protect the sanctity of veterans' cemeteries; those dependents who are completely innocent, but who might be unfairly affected by S. 923, if enacted; and those who would lose their veterans' rights for reasons not associated with the basis of those rights. We urge the Members of the committee to reject S. 923 in favor of H.R. 2040.
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    Thank you, Mr. Chairman. That concludes my statement, and I would be happy to answer any questions you or the Members of the committee may have.
    [The prepared statement of Mr. Surratt, with attachments, appears on p. 83.]

    The CHAIRMAN. Thank you.
    Let me ask one question that has been asked several times today and one that I asked Mr. Bowen. Does the veterans group support an amendment to H.R. 2040 to cover terrorist acts killing victims who are not Federal employees?
    Mr. SURRATT. Let me say, Mr. Chairman, this is a very difficult issue. As a practical matter I would like to think that the veterans' organizations would like to reflect on that carefully before responding beyond that.
    You used the word ''support.'' Let me explain the position that I am in with the DAV, and I suspect most of my colleagues are. We are not authorized to support legislation that we don't have a mandate from our membership to support. We do have a standing mandate to oppose anything detrimental to veterans, so in that context, we analyzed S. 923 in comparison to H.R. 2040 and found H.R. 2040 to be more appropriate, of course, and oppose S. 923. But on behalf of the DAV, I would like to say we would be happy to respond to that, and we would like to do it in writing after giving some study to that.
    To give you my immediate response, let me say that H.R. 2040 currently has two premises; is that it is directed towards crimes against the Nation, and that it goes only to those benefits which involve an honor, and that is burial and possibly the other benefits mentioned here today. If you were to extend this to murder, capital murder, under State statutes, then, of course, you would be departing from the precedent that veterans lose their benefits only because of crimes against the Nation. That is certainly a difficult policy question, but that is the crux of the issue. Other than that, if this were extended just to preclude burial benefits for those people who commit capital offenses, whether it be under a State statute or a Federal statute, you have not departed from the premise of H.R. 2040 as it now exists. So that is what I see as the crux of the issue, and that is one that we would like to reflect on a little more thoroughly before we respond to that.
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    The CHAIRMAN. I have a couple of other questions that I will submit for the record.
    (See p. 102.)

    Mr. EVANS. Rick, you would be submitting this answer in regards to the DAV position?
    Mr. SURRATT. Yes. I don't believe I can speak for the other organizations. The way we did this today is quite convenient for these purposes, but I cannot speak for the other organizations when it goes beyond this.
    Mr. EVANS. I do appreciate the veterans' groups speaking as one. That makes your voice directly heard here. If we could have other veterans' organizations respond to the Chairman's questions, that would be helpful to us, in maybe 5 to 10 days.
    Mr. SURRATT. We would be happy to do that.
    (See pp. )

    Mr. EVANS. The value of your statement cannot be exaggerated. I think it is an important thing that you have done, and I am going to try to get it entered into the Congressional Record to let our other colleagues hear from you as well.
    I believe the strength of H.R. 2040 is the fact that it is very narrowly drawn, and your testimony also expresses that view, so I would assume that you would support keeping the bill as it is now drafted; that is, rather narrowly drawn?
    Mr. SURRATT. I think the bill should be narrowly drawn. I think that is the proper measured response to this. Obviously there are many issues which raise emotions and concerns, and we expressed that in our statement. This could be a slippery slope, we believe. There are a lot of things that people do that are despicable and abominable. We would like to find ways to level a little extra punishment on them. That is the danger on that. So I think the more restrained you are, the better.
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    Mr. EVANS. Thank you, Mr. Chairman.
    The CHAIRMAN. Mr. Buyer.
    Mr. BUYER. Mr. Chairman, I am still back on my thoughts about these are benefits, earned benefits, yet they are conditioned subsequent. I mean, you mentioned the slippery slope. I understand that, but we have to draw the line somewhere, and where do we draw that? I guess in terms of the VSOs who want it to be very narrow, and now that we are beginning to shine the light on all of these different what-if scenarios, I am having difficulty figuring out where to draw that line. I just want you to know that here up front.
    Mr. SURRATT. I think we all have that, Mr. Buyer. In law you well know that the demarcation between what is within the purview of a provision and what is outside the purview is often not a clear one, and in that case nuance controls. And that is what we are, I think, faced with here is that these are nuances, and so we again caution restraint and not go too far afield.
    Mr. BUYER. If Congress has come in, and I guess CRS here provided for us, Congress has made it pretty clear with regard to cash benefits for those who are incarcerated, whether it is SSI, social security, you can't claim the EITC, and then it talks about with regard to veterans' benefits and then the unemployment compensation, Federal, civil service, military retirement.
    So we draw the lines in different areas, and I am trying to figure out, if we are going to do that for any forms of incarceration, why the VSOs would be so hesitant to expand this about honoring someone upon death. If, in fact, these are earned benefits based on a condition subsequent, and they brought dishonor, why would the VSOs then come forward and say, you're right?
    Mr. SURRATT. First of all, let me say I don't know of any provision in law that would lead us to believe that these benefits are conditioned on subsequent behavior, except with the exception of the treason and those things that now negate veterans' rights.
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    With respect to the incarceration——
    Mr. BUYER. So let me ask you this: Then in present law when you have a veteran that is incarcerated for more than 60 days, on service disability, and they reduce those monies which you can pay to them, you don't think Congress should have been able to do that then?
    Mr. SURRATT. No, I think they should be able to do it, but the reason was totally different. If I remember correctly, that was a reconciliation provision, the logic being that the veteran is being maintained by the Government. Compensation is to pay for the economic effects of disability. He is obviously not disadvantaged by the disability while he is incarcerated, because he is not available for employment, and he is being maintained at Government expense, thus they reduce the compensation, both on that logic and as a cost-saving measure.
    Mr. BUYER. So I guess the key is we are trying to figure this out in such a way so that it is, quote, ''nonpunitive,'' yet we would be disqualifying someone based upon someone's conduct subsequent.
    Mr. SURRATT. Right. Punitive in the criminal sense, of course, is one thing, but to the recipient, to the veteran who you revoke all of his rights is punitive whether you call it that or not, punitive in the actual sense, factual sense. I mean, what is the reason for doing it if it is not as a punitive measure?
    The cemeteries are different. I mean, again, that crosses a line, because other people's interests are involved. You are diminishing other veterans' rights by burying these scoundrels, if you will, among them. But when you talk about compensation and those benefits, there is a distinction there, because that doesn't cross the line to infringe on other people's rights.
    Mr. BUYER. These what-ifs again, and let us go narrower. Earlier I brought up about these cases where there are a lot of individuals who commit crimes who are necessarily never brought to adjudication, and they are killed, shot and killed during the act, or they themselves blow themselves up in the bombing. Should we be able to give some administrative judgments there to the VA for them to come in and say, no military honors?
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    Mr. SURRATT. I believe that H.R. 2040 would do that in subparagraph B where the Secretary concerned, be it the Secretary of Veterans Affairs in the case of VA cemeteries or the Secretary of the Army in the case of Arlington Cemetery, would be able to make a determination under a standard of clear and convincing evidence whether or not this person should be disqualified.
    Mr. BUYER. In conclusion, though, you are hesitant or the VSOs are very hesitant if any of us come in here and try to expand this to other forms or offenses or applicable to other jurisdictions in United States territories?
    Mr. SURRATT. We are particularly hesitant if you attempt to extend it, as S. 923 does, to other benefits, other than those that are a form of honor accorded to a veteran upon his death, yes.
    Mr. BUYER. And other applicable offenses?
    Mr. SURRATT. Yeah. Well, again, that is a difficult issue, using the example of a capital crime under a State statute, the question being is not the life of a person the same regardless of the technicalities? I think that is a very troubling question.
    Mr. BUYER. That is where the awkwardness is, and that is what Mr. Spence brought up. You want to draw lines between someone who is a Federal employee versus someone who is not, or Spencer bringing up, okay, there is a difference between a DEA agent and a county sheriff.
    Mr. SURRATT. I understand your being perplexed at that, and I am just not prepared to answer it.
    Mr. BUYER. When the VSOs get together on that one, if you could respond to us on that, we would appreciate it.
    Thank you, Mr. Chairman.
    The CHAIRMAN. Mr. Doyle.
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    Mr. DOYLE. We appreciate you all being here today.
    I find some of the arguments that my colleague Mr. Bachus makes very compelling. I want to make sure I understand where the VSOs are coming from.
    If I understand what you are saying is you have not had a chance or an opportunity to discuss in depth with your memberships how they would view expansion of H.R. 2040. For instance, when we brought up the case of Henry Francis Hays, who was executed for brutally killing a 19-year-old, under H.R. 2040 he would still be allowed to be accorded full military honors: the 12-gun salute, draped coffin and a military ceremony. Similarly, Mr. Bachus gives us the example of going in and wiping out 40 kids in a school and a teacher. That person, under H.R. 2040, would still be eligible for full burial honors.
    Mr. BACHUS. And under the Senate bill.
    Mr. DOYLE. Yes. And under the Senate bill.
    I find it hard to believe that the veterans that I would talk to back home at the American Legion hall or other places would be supportive of giving a veteran full military honors that committed a crime such as that. While I think we need to be very careful in protecting innocent families, like spouses, surviving children that were not doing anything to people, that are family members, that are innocent, I would be very interested to hear comments back from all the VSOs on how they feel about us expanding the scope of H.R. 2040 to take in the situations that Mr. Bachus brings up, with regard to whether or not these veterans are deserving of full military honors in burial. Because, quite frankly, I think he makes some compelling arguments in favor of that. I can't believe most veterans wouldn't feel the same way.
    So I understand, as representatives of your organizations, that you want to be very careful about how this legislation is crafted, and I commend the Chairman that we are slowing this process down and giving everybody a chance to really think through some of these issues. But I find Mr. Bachus's comments to be very compelling, and I am sure that Members that you represent will also. So we look forward to hearing back from you on those particular issues. Thank you.
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    Mr. SURRATT. We will respond.
    The CHAIRMAN. Mr. Bachus.
    Mr. BACHUS. Thank you, Mr. Chairman. I think that you brought up two good points. One is that we are talking about, first of all, benefits. The Senate and the House bill are very different in that regard. The Senate bill says all benefits. The House bill talks about burial, interment, military honors. That is one big distinction between these two bills. The House bill doesn't get into survivors' benefits, widow benefits, things of that nature.
    Now, what I want you to focus on a minute is not the benefits. I agree with you that we ought to be very careful in what we deny and what we are talking about here. My amendment, which passed the House unanimously, focused on a military honor funeral, and it simply says that certain people are eligible, certain people are not.
    Both the Senate and the House bill, where I see them come up short is that this arbitrary distinction we make between a Federal crime, or even, as you have mentioned, a crime against our Nation, I think they ought to be ineligible for a crime against our Nation, but I think it is entirely inappropriate to say to a sexual predator that takes a young child out, sexually brutalizes them and throws their body like a piece of trash in a river, you know, they weren't according that victim much of a burial, that we take that sexual predator, once he has been convicted and given the death penalty, that we give him a full military honors funeral. I think it is inconsistent with what military organizations stand for.
    So I would say that I would hope that each of you would go back to your Members and say that we need to be consistent and that we don't—you know, veterans' groups, we don't need to send a message that certain lives are much more valued than others. You know, Federal offenses somehow cause you to be ineligible for military honors, but as long as you don't—you know, if it is just some child that happens not to be an FBI agent because he is 7 years old and he is brutalized, I mean, that is as much of a dishonor to bury a person in a heroes' cemetery that did that as someone who commits treason.
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    Mr. SURRATT. I don't think any one of us can disagree with your rationale.
    Mr. BACHUS. In including these people, we are only trying to be consistent with the statement, and to protect those cemeteries, protect the military standards, protect the values that those people buried in those cemeteries fought to preserve, those lives that they fought to protect. Nothing in the amendment that the House passed did anything other than just set one standard, you know, that they would not be buried with full military honors if they committed a capital offense, and I thought it was very—it made no judgments. It just said, you know, the States and the Federal Government make a judgment on what a capital offense is. Life imprisonment without parole, that person is not coming out, or death.
    So I would just ask you to maybe focus again on that and sort of separate eligibility and benefits. I agree, the Senate bill, it talks about all benefits, where the House bill is quite different.
    Mr. SURRATT. Mr. Chairman, I would just like to add, all of us here are representing veterans, and most of the veterans who are represented are the ones that wouldn't be affected adversely with this. We have the same concern you do. We don't want to see their rights diminished by these very few who have done these things. So I wouldn't want it to be seen in the perspective that we are here defending those people that we are concerned about that have perpetrated these acts.
    The CHAIRMAN. I think now more than ever we realize that these are not easy questions to answer, and that is why we are trying to slow this whole process down.
    Dr. Snyder.
    Mr. Spence.
    Mr. LaHood.
    Mr. LAHOOD. Thank you, Mr. Chairman.
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    How do all of you communicate? How do all of you elicit from your Members ideas about this particular bill in terms of whether we expand it, don't expand it; the idea that you are not too enamored with the Senate bill or don't support it, but perhaps the House bill you like in its current form, but maybe—how do you get their opinions on stuff like that?
    Mr. SURRATT. Congressman, I would say that I am responsible to my membership, just as you are to your constituents, and we communicate in much the same way that you do to get a read on their sentiments. I have authority to speak for my Members, as you have authority to speak for your constituents. I am not apt to keep that authority very long if I don't articulate their sentiments properly.
    Do we go out and survey? No. But we have the advantage of, perhaps even over you, that our area of interest is much more narrow, and we know what the sentiment of our membership is, and we take a read on that, and we represent them in that capacity.
    We haven't had a lot of input on this particular issue. But again, to support, affirmatively support, officially put the weight of the DAV behind an effort, we have to have a resolution adopted by our national convention. Again, our bylaws require us to oppose things that are detrimental to disabled veterans even without a resolution. So if that gives you the mechanics, that is the way we are at least answerable to our membership in the DAV, and certainly the other organizations may have some different structure.
    Mr. LAHOOD. If we were to expand this bill, but not go as far as the Senate, what do you think that you would say about that?
    Mr. SURRATT. I again would have to consult with all of the people that make the policy in my organization. I am just a messenger. I, of course, have some say in that, and I just won't want to comment until we have determined that policy position within the DAV.
    Mr. LAHOOD. All the rest of you feel the same way?
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    Mr. TUCKER. It is a similar process for all of us.
    Mr. LAHOOD. Well, I am trying to figure this out. Would you go back to a board, or would you send a letter out, or would you pass a resolution? In all honesty, I am trying to figure out how you would elicit from your membership. Obviously you got some sense of the fact that you didn't like the Senate bill, and apparently you like Mr. Stump's bill in its current form, but if it is expanded to eliminate some other benefits, how would you figure out whether you liked it or not?
    Mr. SURRATT. Well, I think we would simply have a brainstorming session among the professional staff of the organization, which involves several people, and get the input, and much the same as the deliberative process that you are going through here today we would go through in-house to try to determine why we should come down in a certain way on what you propose.
    Ms. WEST. Speaking for Vietnam Veterans of America, between our conventions, at which point convention resolutions on various issues are passed, our elected board of directors serves as the ultimate policymaking board, and we would consult with our board of directors, who, because they represent different areas of the country and the membership as a whole, do have a pulse on the membership's feelings.
    Mr. EVANS. Will the gentleman yield?
    Mr. LAHOOD. Yes.
    Mr. EVANS. I guess all of you are having conventions this August, too, is that correct, in which this issue will probably be raised?
    Mr. TUCKER. Yes.
    Ms. WEST. Yes.
    Mr. MAGILL. Yes.
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    Mr. CRANDELL. Yes.
    Mr. EVANS. I thank the gentleman for yielding.
    Mr. LAHOOD. Of course.
    I get the sense, though, that you don't particularly like the idea of expanding much beyond what Mr. Stump has done with his bill, right?
    Mr. SURRATT. That is right, from the DAV's standpoint. The only question——
    Mr. LAHOOD. All the rest of you feel the same way, right?
    Mr. CRANDELL. Yes.
    Ms. WEST. Yes.
    Mr. MAGILL. Yes.
    Mr. TUCKER. Yes.
    Mr. LAHOOD. And if we were to go beyond what Mr. Stump's bill does by amending it, then you would probably have something—you probably wouldn't feel too good about that; is that accurate?
    Mr. SURRATT. It depends on how far beyond. We are not inflexible here. I think we are going to give genuine consideration to the issue of whether this bill should be expanded to include capital offenses, other than Federal capital offenses. But much beyond that, I think probably the policy of the organizations is probably set.
    Mr. LAHOOD. So if we included a county sheriff or some other official who was not a Federal official, you probably wouldn't like that too much?
    Mr. SURRATT. No. That was precisely the issue I said that we were going to give serious consideration to, whether capital offenses should include those that would come under State statutes.
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    Mr. HOLLINGSWORTH. I would like to respond. I think the point here is that——
    The CHAIRMAN. Just make it loud so the reporter can hear you, please. And, Jim, you had a statement also?
    Mr. MAGILL. Yes, please.
    Mr. HOLLINGSWORTH. I think our position is that we would like to proceed with caution. We would like ample opportunity and—fortunately our convention is coming up, to float this through our membership, where a lot of these decisions are made.
    In the absence of the resolution process, we have to get decisions from a National Executive Committee, which is made up of the leaders of the American Legion. I think the important point here is we applaud Chairman Stump and this committee for putting the brakes on the Senate bill and what has happened. Let us not get caught up in the passion of the moment and react to a hideous crime just because we are all in an emotional state at this point. Let's sit down and analyze and move forward and do the right thing.
    The CHAIRMAN. Jim Magill, VFW.
    Mr. MAGILL. Thank you.
    First of all, I would like to state that I am glad that we are here today. I think the questions that have been raised, prove this is not a simple issue. It is a very complex issue. I don't think we can resolve it in just one time. I would think, and I would hope, that we could sit down again and meet with staff, with you, with the rest of the Committee, to try to get a better grasp of this.
    In dealing with State capital crimes, I have always been—well, as a military person, you are serving the Federal Government, and I certainly think that that should be the first precedent, having to consider a Federal capital crime. When you have 50 States, there is just a plethora of capital crimes each State can determine. I don't want to give the impression that the VSOs, and particularly the Veterans of Foreign Wars, look at any heinous crime lightly. We are very concerned, and we think that appropriate penalties should exist. But again, I think we should concentrate more closely on the Federal.
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    I did like what I heard at one point, and I think it was Mr. Evans that stated that we are not looking so much at punitive, but we are looking at preserving the sanctity of a national burial. So I think that has to be looked at a little bit more.
    But in closing, I think that if anything has shown itself at this hearing, it is that this is an extremely complex issue, and I would have one other comment. I won't take much more time. But when we talk about a Federal officer working while he is on duty, I think that these guys are on duty 24 hours a day, and I think that may be something we should think about. I know if there is something happening at 2 o'clock in the morning, they can't call and say, I am not on duty. So it is in the military when you serve, you are on duty 24 hours a day.
    Mr. LAHOOD. Mr. Chairman, could you indulge me for one more question?
    What did all of you think of Mr. Bachus's amendment? Did you support that, or did you think that was sort of a precipitous thing that overreacted to a situation, and since he is gone, you are not going to offend him. Unfortunately, it will be on the record.
    Mr. QUINN. Will the gentleman yield? He sent me here to listen for him.
    Mr. SURRATT. I can always state how we were thinking about it after the fact, because I don't think we had any advance notice of it. But it seems to be very much in line with what this bill seeks to do.
    Mr. LAHOOD. How about the rest of you?
    Mr. HOLLINGSWORTH. I think the American Legion has indicated we need to proceed with caution. I think one of the concerns we have is that if we proceed and somehow or way hold a higher standard to veterans, and I think what we are trying to avoid is creating double standards.
    Mr. LAHOOD. Did you like Mr. Bachus's amendment?
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    Mr. CRANDELL. I don't think any of us want to be in the position of saying that we think one kind of murder is better than another kind of murder, and that a domestic quarrel that resolves itself in death is a better deal than shooting up a school yard. But you start getting into, I think, a rather slippery business when you have any kind of capital offense in any State being brought in as a jurisdictional matter.
    The sorry truth is that even acts of heroism do not guarantee that you will not have a tragic life afterwards, as I think we have seen with some of the our bravest veterans. When you get the question of should we have a hero's burial for someone who has committed murder, some of them are heroes. I don't think we want to get into a position of spreading this as wide as we possibly can. I think we need to keep this within some bounds.
    Ms. WEST. If I could make a comment as well——
    Mr. LAHOOD. Let me just clarify what I am after here. If you want to disregard Mr. Bachus, the amendment, his approach, the concept that he was after, I guess I am trying to determine how you all feel about that, and from the answers I am getting, there is not much enthusiasm for the intent, setting aside Mr. Bachus, you know, this is not a personal thing, but the concept that he was after in offering that amendment. How do all of you feel about that concept?
    Mr. SURRATT. To clarify now, offering the amendment to broaden this bill, to include——
    Mr. LAHOOD. The bill that he passed on the House floor unanimously.
    Mr. SURRATT. Which had to do with military honors?
    Mr. LAHOOD. Yes.
    Mr. SURRATT. Again, I think that was in line with this bill.
    Mr. LAHOOD. I agree.
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    Go ahead, ma'am. I am sorry.
    The CHAIRMAN. I believe Kelli was next.
    Ms. WEST. If I could just make a comment. Vietnam Veterans of America within our national board committee structure has a committee that does outreach to incarcerated veterans. The objective and purposes of that committee, as well as many of the activities our chapters and State councils undertake at the local level doing outreach in the prisons, is primarily targeted at veterans who are going to be able to be rehabilitated and exit the prison system and go back into civilian society.
    One of the underlying foundations of why our Members choose to do that kind of work, though, is one of fellowship on the basis of common experience in the military. I don't want to make this a broad-brush statement, but from our experience, many of the veterans who are in prison are there in part because they are having mental difficulties. Some of it is trauma-related, which are service-connected. They may or may not have an adjudicated claim of service connection, but could still have post-traumatic stress disorder and related substance abuse problems. They may have gotten very involved in crime related to drugs.
    Again, I don't want to imply that every incarcerated veteran's crimes are, quote/unquote, ''service-connected.'' That would be too far-reaching. But as Mr. Surratt indicated, it would be problematic to impose additional penalties upon a veteran simply because they are a veteran. By that same token, we would have a problem with imposing additional penalties on a veteran whose crimes may be related to the fact that they are a war veteran. Again, I don't want to imply that that is a broad-brush statement, but for some of these individual cases, those types of disabilities are the underlying factors in their crimes.
    The CHAIRMAN. I believe the gentleman's time has expired. We will come back to you. Mr. Quinn.
    Mr. QUINN. Thank you, Mr. Chairman. I apologize for having to step out for a few minutes, but I wanted to come back.
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    Jim Magill, you point out just how complex this issue is, and this discussion this morning is proof of how complex it can be.
    One quick question. The Senate version of this is finished and over, and none of this was even discussed. Why? You weren't invited? They did it too quickly?
    Mr. MAGILL. It was done very, very fast. There were no hearings held, unlike you are doing here. All of a sudden I think they were—I want to say caught up in the emotion of it. I have to think that they thought they were doing the right thing.
    I believe that this is the proper procedure, to have hearings, and not—for instance, with Mr. Bachus's amendment, we were not informed. In fact, I was hearing it passed unanimously on the House floor. I was scurrying around, what passed on the House floor? I mean, we had no indication. I think if Mr. Bachus had called the VFW and asked, and he explained what his amendment was, I first would remind him or inform him that our opinion is H.R. 2040 addresses this issue; and number two, I would have suggested that the House slow down a little bit, exactly what we are doing now. Let's not piecemeal, let's not have something in one bill and also have it in another bill.
    Mr. QUINN. Thank you. Let me just say that what makes this so complex is that for the person in the street, it is not complex at all. That is what makes this more difficult. I just left for two meetings, and in the two meetings probably about 8 or 10 people on two different issues, and I asked, I took a little survey. We have a hearing going on down the hall with Mr. Stump, and this is what we are talking about. What do you think about this? Well, no discussion, nothing complex with this business at all. Somebody shoots a cop in Buffalo, like they did 2 months ago, they do not deserve any kind of honor.
    And, sir, some are heroes, some were heroes. They are, but they were. They are not anymore, because they have done some bad things. And all I say to you is that the folks in the street, the carpenters and the auto workers in Buffalo, and the businessmen and women, and for the people that we all know about, they don't see this as complex, and that is what makes it more complex for us. It is really difficult.
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    Mr. MAGILL. Well, with us, too, sir. As you said, we are all going to convention in August, and I am sure this is going to be an issue. It is going to be a very hot issue. We are going to have to listen, and we are going to have to do the same thing that we are doing here. We are going to have to try to explain to them the complexities of it and not get wrapped up in emotion.
    Mr. QUINN. Finally, Mr. Chairman, I will finish up and yield back my time, but you mentioned with the Vietnam veterans the outreach that is going on with incarcerated members. I think that that kind of information is helpful for this committee. Some of us don't know that is going on.
    Mr. Buyer and I were talking about a question that he asked earlier today. He had the time to ask it, about benefits that are or aren't available to incarcerated veterans, how much are those, and we found out some new information. I didn't know some of that information today. So, indeed, to slow down and get some information, for you to supply us with some things that already happened, some information we might or might not know would be very, very helpful. I appreciate that and the time you have given us today.
    The CHAIRMAN. Dr. Snyder.
    Mr. SNYDER. I wanted to go back to somebody had mentioned the comment or made a comment about a double standard, that veterans shouldn't be held to a higher standard. I am trying to figure that out. I guess I finally came up with this scenario, that if I am the owner of a private cemetery, and I have a nonveteran who commits a heinous act and is executed, and I have cut a deal with the family some 10 years before and they have a plot there, are you saying then that perhaps if we—and I am not suggesting this at all, but somehow if there was legislation out there, somebody said any private cemetery or any cemetery anywhere may refuse to bury someone who has committed acts A, B, C and D, is that what you are trying to get at when you are saying you are holding veterans to higher standards?
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    Mr. SURRATT. No. I think what we are talking about there is the other benefits other than burial where you would impose a criminal penalty, and just because he happens to be a veteran take away his benefits, too, and thus impose a double penalty. I think that is what we are talking about. That is the reason and principle that we oppose S. 923, I believe. Am I correct in my response?
    Mr. SNYDER. But there are examples in society of, you know, some State legislators have retirement benefits that can be taken away for certain acts. I mean, I think there are examples of people losing benefits that are related to their specific role in life.
    Well, I am just rambling on. Thank you, Mr. Chairman.
    The CHAIRMAN. Thank you, Doctor. Any other questions?
    If not, gentlemen, thank you. Thanks again for agreeing to testify as one group today. Let me assure you that it is not the intention of this committee of moving before you have time to at least put in adequate input, and it appears that you may not be able to answer some of those questions until after the conventions, which will occur in August, but we would appreciate any expeditious replies you could do as quickly as those conventions are over. It would help us a lot.
    [Whereupon, at 12:20 p.m., the committee was adjourned.]