TESTIMONY OF ABRAHAM D. SOFAER
GEORGE P. SHULTZ DISTINGUISHED SCHOLAR AND SENIOR FELLOW
THE HOOVER INSTITUTION, STANFORD UNIVERSITY
ON
THE COMPREHENSIVE ANTITERRORISM ACT OF 1995
BEFORE
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
WASHINGTON, D.C.
JUNE 12, 1995
CHAIRMAN HYDE, AND MEMBERS OF THIS DISTINGUISHED
COMMITTEE. IT IS A PRIVILEGE TO TESTIFY BEFORE YOU ON THE
COMPREHENSIVE ANTITERRORISM ACT OF 1995.
MY PRIOR EXPERIENCE, RELEVANT TO THIS SUBJECT, BEGAN
WITH MY SERVICE AS A FEDERAL PROSECUTOR UNDER ROBERT
MORGENTHAU IN THE SOUTHERN DISTRICT OF NEW YORK, BETWEEN
1967 AND 1969. TERRORISM WAS A SUBSTANTIAL PROBLEM AT THE
TIME, BOTH INTERNATIONALLY AND DOMESTICALLY. AS A DISTRICT
JUDGE BETWEEN 1979 AND 1985, I OFTEN PASSED UPON THE
SUFFICIENCY OF REQUESTS FOR WIRETAPS AND OTHER FORMS OF
INTRUSIONS. FROM 1985 TO 1990, I SERVED AS LEGAL ADVISER TO
THE DEPARTMENT OF STATE, IN WHICH CAPACITY I GAVE LEGAL
ADVICE TO THE SECRETARY OF STATE AND OTHERS ABOUT TERRORISM,
AND ALSO TESTIFIED BEFORE CONGRESS, WROTE ARTICLES, AND GAVE
SPEECHES ON THE SUBJECT.
THE RELATIONSHIP BETWEEN LAW AND TERRORISM IS A SUBJECT
THAT HAS LONG BEEN ONE OF MY ABIDING CONCERNS. I JOINED
GEORGE SHULTZ IN THE STATE DEPARTMENT ON JUNE 10, 1985. ONLY
FOUR DAYS LATER, TWA 847 WAS HIJACKED. WE ALL WORKED HARD TO
TRY TO GET OUR PEOPLE BACK SAFELY, WITHOUT COMPROMISING OUR
PRINCIPLES. I'M SURE YOUR HEARTS STILL ACHE, AS MINE DOES,
FOR YOUNG ROBERT STETHAM, WHO WAS MURDERED IN COLD BLOOD. WE
FACED OTHER HORRIBLE ASSAULTS AS WELL-- AMONG THEM, THE
SEIZURE OF THE ACHILLE LAURO, ATTACKS AT THE ROME AND VIENNA
AIRPORTS AND AT THE LA BELLE DISCOTHEQUE IN BERLIN,
HOSTAGE-TAKING IN LEBANON,
AND THE BOMBING OF PAN AM 103. MANY INNOCENTS WERE KILLED IN
EACH OF THESE ATTACKS.
I VIVIDLY REMEMBER BEING CALLED UP TO SECRETARY
SHULTZ'S OFFICE AFTER THE ACHILLE LAURO WAS SEIZED. HE ASKED
ME WHAT LAWS WERE AVAILABLE ON WHICH WE COULD RELY TO TRY TO
GET THE CULPRITS ARRESTED, EXTRADITED AND PROSECUTED. I TOLD
HIM THEN THAT IT WAS UNCERTAIN THAT THE SEIZURE WOULD BE
CONSIDERED "PIRACY," BECAUSE A HARVARD STUDY IN THE 1930S
HAD SUGGESTED THAT "POLITICALLY" MOTIVATED SEIZURES OF
VESSELS SHOULD NOT BE TREATED AS PIRACY, A SUGGESTION THAT
SOME CLAIMED HAD FOUND ITS WAY INTO GOVERNING INTERNATIONAL
CONVENTIONS.
SECRETARY SHULTZ WAS OUTRAGED. "WHAT GOOD IS THE LAW?"
HE EXCLAIMED, ALMOST THROWING ME OUT OF HIS OFFICE. HIS
REACTION WORSENED WHEN THE ITALIANS HELPED ABU ABBAS ESCAPE,
INSTEAD OF EXTRADITING OR PROSECUTING HIM. THE SECRETARY WAS
RIGHT, OF COURSE, AND HIS OUTBURST LED ME TO EXAMINE THE
MANNER IN WHICH INTERNATIONAL LAW TREATED TERRORISM.
I FOUND AN APPALLING PATTERN IN INTERNATIONAL LEGAL
DOCTRINE OF INORDINATE TOLERANCE TOWARDS POLITICAL VIOLENCE.
I DESCRIBED THIS PATTERN IN AN ARTICLE PUBLISHED IN FOREIGN
AFFAIRS, AND SPENT THE NEXT FOUR YEARS WORKING TO REVERSE
THESE RULES AND ATTITUDES.
WE ACCOMPLISHED A GREAT DEAL. WITH THE LEADERSHIP OF
ITALY AND EGYPT, WE DEVELOPED A NEW TREATY THAT MADE
CRIMINAL ALL FORMS OF MARITIME VIOLENCE. WE REVERSED THE
"POLITICAL OFFENSE" DOCTRINE IN MANY OF OUR EXTRADITION
TREATIES WITH FOREIGN STATES. WE DEVELOPED UNDERSTANDINGS
WITH OUR ALLIES THAT
REJECTED THE MOST OBJECTIONABLE ASPECTS OF THE PROTOCOLS
ADDITIONAL TO THE GENEVA PROTOCOLS ON THE LAWS OF WAR.
PERHAPS MOST SIGNIFICANTLY, WE APPEAR TO HAVE SUCCEEDED TO
SOME EXTENT IN DELEGITIMIZING THE ABHORRENT VIEW THAT ACTS
OF TERROR CAN BE JUSTIFIED BY THEIR CAUSES. AFTER YEARS OF
FIGHTING THIS NOTION, GOING BACK TO THE ARTICULATE
LEADERSHIP IN THE UNITED NATIONS OF SENATOR MOYNIHAN,
AMBASSADOR KIRKPATRICK AND OTHERS, THE GENERAL ASSEMBLY, IN
DECEMBER 1994, ADOPTED A RESOLUTION CONDEMNING ALL ACTS OF
TERRORISM, REGARDLESS OF CAUSE. WHILE LITTLE THAT THE UN
DOES IS UNAMBIGUOUS, THIS RESOLUTION LAYS TO REST SOME
THOROUGHLY DISREPUTABLE NOTIONS.
IMPROVEMENTS IN INTERNATIONAL LAW RELATING TO TERRORISM
HAVE HAD POSITIVE CONSEQUENCES. TERRORISTS ARE MORE
FREQUENTLY ARRESTED, EXTRADITED, AND PROSECUTED THAN EVER
BEFORE. THANKS TO THE WORK OF ED MEESE AND HIS SUCCESSORS,
THE DEPARTMENT OF JUSTICE HAS PLAYED AN INCREASINGLY
EFFECTIVE ROLE IN COMBATING INTERNATIONAL TERRORISM. I
WORKED WITH ATTORNEY GENERAL MEESE IN GETTING THE DEPARTMENT
OF STATE TO SUPPORT THE FIRST DOJ OFFICE ABROAD, IN ORDER TO
REGULARIZE AND MAKE MORE Efficient ITS ROUTINE INTERNATIONAL
OPERATIONS. I STRONGLY SUPPORT THE CONTINUATION OF THIS
PROCESS, AND OF THE STATIONING OF FBI PERSONNEL IN KEY
LOCATIONS. CONGRESS HAS ALSO PLAYED AN IMPORTANT ROLE,
PROVIDING A JURISDICTIONAL BASIS FOR ARRESTS AND
PROSECUTIONS IN CONNECTION WITH MANY FORMS OF TERRORIST
ACTIVITY.
LAW REFORM IS ALSO NEEDED DOMESTICALLY. THE PENDING
LEGISLATION CONTAINS MANY USEFUL AND SOME ESSENTIAL
PROVISIONS. IT HAS MY ENTHUSIASTIC SUPPORT. IN GENERAL,
MOREOVER, I SUPPORT THE COMMITTEE'S VERSION OF PROVISIONS
SUGGESTED IN THE DEPARTMENT OF JUSTICE BILL. THIS SHOULD NOT
BE SURPRISING. THE DRAFT WILL IMPROVE AS IT MOVES TOWARD
ADOPTION, AND I WOULD EXPECT THE DEPARTMENT TO COOPERATE
FULLY WITH THIS COMMITTEE.
I WILL AVOID COVERING THE OBVIOUS, AND FOCUS INSTEAD ON
MY FEW, BUT REAL, CONCERNS WITH THE PROPOSED LEGISLATION.
THEN I WILL DISCUSS BRIEFLY WHAT I REGARD AS THE MOST
SERIOUS NATIONAL SECURITY ISSUE FACING AMERICA TODAY: THE
THREAT OF STATE SPONSORED ATTACKS, AND PARTICULARLY THE USE
OF WEAPONS OF
MASS DESTRUCTION, AGAINST AMERICAN NATIONALS AND PROPERTY.
MY PRINCIPAL CONCERNS WITH THE PROPOSED LEGISLATION
RELATE TO ITS EXPANSION OF FEDERAL CRIMINAL JURISDICTION AND
ITS INVESTIGATORY PROVISIONS. FIRST, IT WOULD BE ENTIRELY
APPROPRIATE TO EXTEND FEDERAL JURISDICTION TO ALL SERIOUS
ATTACKS ON FEDERAL EMPLOYEES IF THE NEED FOR SUCH A LAW IS
ESTABLISHED. AS FAR AS I CAN TELL, HOWEVER, THE NEED FOR
SUCH A LAW IS PURELY THEORETICAL. OUR STATES ARE DOING A
GOOD JOB OF PROSECUTING
MURDERS AND ATTEMPTED MURDERS. CONGRESS SHOULD ADD TO THE
BURDEN OF THE FEDERAL COURTS AND PROSECUTORS, AND TO THE
NUMBER OF FEDERAL PRISONERS, ONLY WHERE A NEED EXISTS TO DO
SO. MOST OF THE EXTRATERRITORIAL PROVISIONS CONFERRING
JURISDICTION ARE SOUND, AND NEEDED. I DOUBT, HOWEVER, THAT
THE MERE FACT THAT A U.S. NATIONAL WAS OR "WOULD HAVE BEEN" ABOARD AN
AIRCRAFT THAT IS ATTACKED IS A SUFFICIENT BASIS FOR
JURISDICTION. EVEN IF IT IS TECHNICALLY SUFFICIENT, IT WOULD SEEM
PREFERABLE AS A MATTER OF COMITY AND PRACTICALITY TO RESTRICT THE CASES IN
WHICH THE U.S. ASSERTS JURISDICTION TO THOSE IN WHICH THE
AMERICAN NATIONAL IS ACTUALLY TARGETED BECAUSE HE OR SHE IS
AN AMERICAN.
IN SECTIONS 301, 308 AND 309 THE BILL ENHANCES THE
POTENTIAL USE OF WIRETAPS IN TERRORISM INVESTIGATIONS. I
FRANKLY DOUBT THAT THESE PROVISIONS ARE NECESSARY, BUT THE
COMMITTEE SHOULD ACCEPT THE GOVERNMENT' S REQUEST FOR THESE
CLARIFYING AMENDMENTS. THE BILL'S MODIFICATION OF THE
EXCLUSIONARY RULE IS ALSO WARRANTED AS A GENERAL PRINCIPLE.
THE USE OF ILLEGALLY SEIZED EVIDENCE WOULD STILL BE
PRECLUDED, BUT ONLY WHERE THE SEIZURE INVOLVED BAD FAITH.
ANY DELIBERATE VIOLATION OF A PERSONS RIGHTS SHOULD BE
CONSIDERED AS BAD FAITH.
EVEN IF THE COMMITTEE AGREES TO ADOPT THE PROVISIONS
PROPOSED BY THE GOVERNMENT TO ENHANCE THEIR INVESTIGATIVE
CAPACITIES, AN INQUIRY SHOULD NONETHELESS BE MADE INTO
WHETHER THE NEW AUTHORITY COULD HAVE HELPED PREVENT THE
RECENT BOMBINGS. I FRANKLY DOUBT IT. MY EXPERIENCE AS A
PROSECUTOR AND FEDERAL JUDGE OFTEN EXPOSED ME TO THE PROCESS
BY WHICH FEDERAL INVESTIGATORS OBTAIN APPROVAL FOR WIRETAPS
AND OTHER FORMS OF SEARCHES. AMONG THE MOST MEMORABLE OF
THESE EXPERIENCES WAS SERVING AS THE JUDGE WHO REVIEWED THE
WARRANT AND WIRETAP REQUESTS OF THE GOVERNMENT IN A MAJOR
TERRORIST INVESTIGATION INVOLVING THREE DIFFERENT
ORGANIZATIONS. THE OPERATION WAS, IN FACT, SUPERVISED BY
THEN-ASSISTANT U.S. ATTORNEY LOUIS FREEH. DIRECTOR FREEH
UNDOUBTEDLY RECALLS THAT HE HAD AMPLE AUTHORITY IN THAT
INVESTIGATION TO PURSUE AND
PROVE AND PREVENT CRIMINAL ACTIVITY, WITHOUT ANY OF THE NEW
POWERS NOW BEING SOUGHT.
IN THIS REGARD, THE COMMITTEE SHOULD CHECK ON THE TYPES
OF ACTIVITIES THE FBI WAS IN FACT CONDUCTING, EVEN BEFORE
THE TRAGIC OKLAHOMA CITY BOMBING. MY GUESS IS THAT YOU WILL
DETERMINE THAT THE FBI HAS BEEN ABLE ALL ALONG TO INFILTRATE
AND SURVEIL GROUPS WHICH CAN REASONABLY BE SUSPECTED OF
SUPPORTING VIOLENT ACTS AGAINST FEDERAL OFFICIALS AND/OR
FACILITIES. IN CONNECTION WITH THE BOMBING OF THE WORLD
TRADE CENTER, THE PRESS CONTAINS SOME DISCUSSION OF CERTAIN
DOCUMENTS WHICH THE FBI SEIZED BUT FAILED TO TRANSLATE WHICH
COULD HAVE PROVIDED IMPORTANT INFORMATION BEFORE THE BOMBING
OCCURRED. THE COMMITTEE SHOULD FORM A JUDGMENT ON THAT
MATTER, BASED IF NECESSARY ON EVIDENCE RECEIVED IN CLOSED
SESSION. SUCH AN INQUIRY MIGHT WELL REVEAL, IN FACT, THAT
THE BUREAU HAS FOR SOME TIME ACTIVELY INVESTIGATED "HATE
GROUPS" AND "MILITIA," AND THAT THE ADDITIONAL POWERS
CONFERRED IN THE COMMITTEE'S BILL MAY BE DESIRABLE, BUT ARE
INSUFFICIENT IN THAT THEY DO NOT ADDRESS DEFICIENCIES IN THE
BUREAU'S HANDLING OF THE INFORMATION IT OBTAINS.
THE MOST IMPORTANT CONTRIBUTION OF THE PENDING
LEGISLATION IS ITS FOCUS ON THE PREVENTION, NOT MERELY THE
PROSECUTION AND PUNISHMENT, OF TERRORIST ACTS. AS TERRORIST
ATTACKS BECOME MORE DEADLY AND COSTLY, THE NEED TO PREVENT
THEM FROM OCCURRING BECOMES CRITICAL. AND THE THREAT FROM
SUCH ATTACKS IS GROWING, AS THE MEANS FOR MAKING AND
DELIVERING WEAPONS OF MASS DESTRUCTION Proliferate. EXPERTS
HAVE BEEN PREDICTING FOR ABOUT TWO DECADES THAT STATES THAT
SPONSOR TERRORISM, AND GROUPS CAPABLE OF FINANCING SUCH
ACTS, WOULD ENHANCE THEIR CAPACITY TO CAUSE DESTRUCTION.
THAT IN FACT HAS HAPPENED.
THE PRIMARY TASK OF OUR GOVERNMENT, IN SUCH A CONTEXT,
IS PREVENTION. EVERY SUCH ATTACK THAT OCCURS MUST BE
REGARDED AS A FAILURE, FOR WHICH ALL WHO ARE RESPONSIBLE ARE
HELD RESPONSIBLE. WE ARE CAPTIVATED BY AND ADMIRE THE
EFFORTS MADE TO FIND AND PUNISH THOSE RESPONSIBLE FOR SUCH
ATTACKS, ESPECIALLY SINCE EVERY MOVE OF EACH OF THE PLAYERS
IS NOW ON TELEVISION THROUGHOUT THE WORLD. BUT LET US FACE
THE FACT THAT GOVERNMENT HAS FAILED IN ITS PRIMARY
RESPONSIBILITY ONCE SUCH ACTS OCCUR. THE DAMAGE THE
PERPETRATORS INFLICT FAR SURPASSES THE DAMAGE WE CAN
THEREAFTER INFLICT UPON THEM THROUGH THE LEGAL SYSTEM.
CRIMINAL PUNISHMENT, EVEN THE DEATH PENALTY, CANNOT BE
CONSIDERED A SIGNIFICANT DETERRENCE. THOSE WHO PLAN AND
IMPLEMENT SUCH ACTS ARE OFTEN CRAZED PEOPLE, WHO COMMIT
SUICIDE IN THE PROCESS, OR ACCEPT ANY PUNISHMENT IMPOSED
UPON THEM WITH EQUANIMITY. THE SPONSORS AND FACILITATOR OF
SUCH ACTS---THOSE WHO DEVELOP THE POLICES, WHO HIRE THE
TERRORISTS, WHO SMUGGLE THE DEVICES AND EXPLOSIVES---ARE
OFTEN LEGALLY IMMUNE FROM CRIMINAL PUNISHMENT, OR REMAIN
SAFE AS A PRACTICAL MATTER BY TAKING REFUGE IN SYMPATHETIC
COUNTRIES.
THESE ATTACKS MUST BE STOPPED, NOT MERELY PUNISHED. AND
WHILE IT MAY BE IMPOSSIBLE TO STOP THEM ALL, WE MUST TRY TO
STOP THEM ALL IN ORDER THAT WE FAIL ONLY WHERE WE COULD NOT
POSSIBLY HAVE SUCCEEDED.
THIS COMMITTEE SHOULD MAKE SURE THAT THE FBI, AND ALL
OTHER AGENCIES RESPONSIBLE FOR DEALING WITH TERROR, WITHIN
THE US AND ABROAD, UNDERSTAND THEIR OVERRIDING OBLIGATION TO
PREVENT, NOT MERELY PROSECUTE AND PUNISH, ACTS OF TERROR.
THE COMMITTEE SHOULD PURSUE THE LINES OF INQUIRY I HAVE
SUGGESTED IN ORDER TO BE SURE THAT THEY ARE IN FACT
PERFORMING THIS DUTY AT THE HIGHEST POSSIBLE LEVEL OF
COMPETENCE AND URGENCY.
FIGHTING TERRORISM EFFECTIVELY IS NOT MERELY AN ISSUE
OF CRIMINAL JUSTICE. IT IS OFTEN ALSO---INDEED
PRIMARILY---AN ISSUE OF STRATEGIC CONCERN. CONSIDER FOR A
MOMENT THE WORLD TRADE CENTER BOMBING. NO ONE WOULD QUESTION
THE NEED TO PROSECUTE THE PERPETRATORS OF SUCH A CRIMINAL
OUTRAGE. LET US ASSUME, HOWEVER, THAT THE CULPRITS IN SUCH A
BOMBING INCLUDE: A DRIVER WHO IS KILLED IN THE BLAST; HIS
IMMEDIATE SUPPORTERS, WHO ARE ARRESTED THROUGH EXCELLENT
POLICE WORK; THOSE WHO SUPPLIED THEM WITH EXPLOSIVES,
DEVICES, PASSPORTS, WEAPONS, MONEY, AND OTHER MEANS TO
COMMIT THE ACT, SOME OF WHOM ARE DIPLOMATS STATIONED IN NEW
YORK OR WASHINGTON, D.C.; AND THOSE WHO PLANNED, ORDERED,
AND PAID FOR THE OPERATION, INCLUDING MEMBERS OF A NATIONAL
SECRET SERVICE, MINISTERS, AND PERHAPS EVEN THE HEAD OF A
STATE.
ù THE DRIVER IS GONE, BUT IS DISPENSABLE. OTHERS ARE
AVAILABLE TO TAKE HIS (OR HER) PLACE IN FUTURE ATTACKS.
ù THE IMMEDIATE SUPPORTERS MAY BE ARRESTED AND PUNISHED, BUT
THEY WILL PROBABLY BE UNCOOPERATIVE, AND IN ANY EVENT ARE
UNLIKELY TO KNOW THE ULTIMATE SOURCES OF THEIR SUPPORT.
THEY, TOO, ARE REPLACEABLE.
ù THE SUPPLIERS MAY BE TRACKED DOWN, BUT THEY WILL PLAN TO
AVOID BEING CAUGHT IN THE U.S. OR ANY NATION LIKELY TO
COOPERATE WITH THE U.S., OR THEY WILL HAVE DIPLOMATIC
IMMUNITY, WHICH WILL PREVENT THEIR PROSECUTION AND EVEN
THEIR INTERROGATION.
ù THE ULTIMATE PLANNERS ARE LIKELY TO REMAIN FOREVER BEYOND
THE REACH OF CRIMINAL LAW ENFORCEMENT, EITHER BECAUSE THEY
HAVE HEAD OF STATE OR OTHER FORMS OF IMMUNITY, OR BECAUSE
THE INFORMATION WE OBTAIN ABOUT THEIR INVOLVEMENT WOULD NOT
BE USABLE OR SUFFICIENT IN A CRIMINAL PROSECUTION, OR
EXTRADITION REQUEST.
VIEWED IN THIS PERSPECTIVE, WHICH I BELIEVE IS
REALISTIC, YOU CAN SEE HOW INSIGNIFICANT IT MAY BE THAT THE
ACTUAL PERPETRATORS OF A TERRORIST ACT ARE CAPTURED AND
PROSECUTED SUCCESSFULLY. OF COURSE SUCH PROSECUTIONS MUST BE
PURSUED, AND MAY LEAD BACK TO SOME OF THE MORE RESPONSIBLE
PEOPLE INVOLVED. BUT IT IS ALWAYS GOING TO BE HIGHLY
UNLIKELY THAT THE CRIMINAL LAW WILL OPERATE SATISFACTORILY
AS A MEANS OF DETERRING SUCH CONDUCT. STATES SPONSOR SUCH
TERRORIST ATTACKS BECAUSE THEY FEAR OUR CAPACITY TO DEFEAT
THEM IF THEY ACT OPENLY, THROUGH THE USE OF THEIR ARMED
FORCES. THEY ALSO RELY, HERE AS ELSEWHERE, ON
INTERPRETATIONS OF INTERNATIONAL LAW TO PROTECT THEM FROM
BEING HELD RESPONSIBLE FOR THE CONSEQUENCES OF THEIR
CONDUCT. DEALING WITH STATE-SPONSORED TERRORISTS THUS MAY
OFTEN REQUIRE GOVERNMENTAL ACTION THAT GOES BEYOND
ENFORCEMENT OF THE CRIMINAL LAW.
DURING THE REAGAN ADMINISTRATION, WE THOUGHT THESE
ISSUES THROUGH RATHER CAREFULLY, AND WE REACHED, ANNOUNCED,
AND ACTED UPON CERTAIN CONCLUSIONS WHICH BEAR REPEATING.
FIRST, WE MADE CLEAR OUR INTENT TO EXERCISE THE "INHERENT
RIGHT OF SELF DEFENSE" PRESERVED IN ARTICLE 51 OF THE UN
CHARTER, WHICH PROVIDES THAT "NOTHING IN THE PRESENT CHARTER
SHALL IMPAIR THE INHERENT RIGHT OF INDIVIDUAL OR COLLECTIVE
SELF-DEFENSE IF AN ARMED ATTACK OCCURS AGAINST A MEMBER OF
THE UNITED NATIONS, UNTIL THE SECURITY COUNCIL HAS TAKEN
MEASURES NECESSARY TO MAINTAIN INTERNATIONAL PEACE AND
SECURITY."
SECOND, RELYING ON CUSTOMARY PRACTICE, INCLUDING THE
CONSISTENT BEHAVIOR OF U.S. PRESIDENTS, WE INSISTED THAT AN
ATTACK ON AN AMERICAN OUTSIDE THE TERRITORY OF THE U.S.,
UNDERTAKEN BECAUSE THE VICTIM IS AN AMERICAN, COULD BE
CONSIDERED AN ATTACK ON THE U.S. UNDER ARTICLE 51.
THIRD, WE ALSO INSISTED THAT THE RIGHT OF SELF DEFENSE
INCLUDED THE RIGHT TO TAKE ALL MEASURES NECESSARY TO STOP
ATTACKS ON AMERICANS, EVEN IF THE MEASURES TAKEN WERE MORE
SERIOUS OR CONTINUED FOR A LONGER PERIOD THAN THOSE OF THE
AGGRESSOR.
FOURTH, AND WITH REGARD TO RESPONSIBILITY, WE TOOK THE
VIEW THAT TERRORIST ORGANIZATIONS AND STATES COULD BE HELD
RESPONSIBLE FOR THE ACTS OF INDIVIDUALS WHERE APPROPRIATE
PROOF IS PRESENT. WE CONCLUDED THAT "THE U.S. SHOULD APPLY
TO TERRORIST ORGANIZATIONS THE SAME STANDARDS OF
RESPONSIBILITY
THAT ARE APPLIED IN ANY LEGAL SYSTEM THAT DEALS WITH SUCH
ISSUES." PRESIDENT REAGAN WARNED AFTER THE KILLING BY
TERRORISTS OF AMERICANS IN ROME AND VIENNA: "BY PROVIDING
MATERIAL SUPPORT TO TERRORIST GROUPS WHICH ATTACK U.S.
CITIZENS, LIBYA HAS ENGAGED IN ARMED AGGRESSION AGAINST THE
UNITED STATES UNDER ESTABLISHED PRINCIPLES OF INTERNATIONAL
LAW, JUST AS IF HE [QADHAFI] HAD USED ITS OWN FORCES." AND
THAT IS PRECISELY HOW PRESIDENT REAGAN TREATED THE NEXT
ATTACK, AT THE DISCO IN BERLIN.
FIFTH, THE STRICT REQUIREMENTS OF PROOF APPLIED IN
CRIMINAL TRIALS HAVE NO PLACE WHEN DEALING WITH ISSUES OF
NATIONAL SECURITY. THE U.S. MAY LEARN SOMETHING ABOUT A
TERRORIST GROUP THAT IS AUTHORITATIVE, BUT WHICH IT COULD
NOT, OR WOULD NOT, USE IN A PUBLIC PROCEEDING. AN ACT OF
SELF DEFENSE IS NOT A TACTIC IN A LEGAL DISPUTE. IT IS A
MEASURE THAT A STATE TAKES IN ORDER TO PROTECT INTERESTS
MORE FUNDAMENTAL THAN ANYTHING THAT IS LITIGATED IN ANY
COURT. A NATION'S NATIONAL SECURITY INTERESTS CANNOT BE
ABANDONED MERELY BECAUSE OF EVIDENTIARY OR JURISDICTIONAL
LIMITATIONS.
THESE PRINCIPLES, MR. CHAIRMAN, ARE NOT PARTISAN. THEY
HAVE BEEN CONSISTENTLY APPLIED BY PRESIDENTS OF BOTH PARTES,
INCLUDING PRESIDENT CLINTON. ONCE PRESIDENT CLINTON BECAME
CONVINCED THAT IRAQ HAD ATTEMPTED TO ASSASSINATE FORMER
PRESIDENT BUSH DURING A PRIVATE VISIT TO KUWAIT IN APRIL
1993, HE ORDERED A STRIKE BY 23 PRECISION-GUIDED TOMAHAWK
MISSILES ON THE IRAQI INTELLIGENCE CONTROL CENTER IN BAGHDAD. HE
POINTEDLY STATED THAT HE HAD ACTED UNDER ARTICLE 51 OF THE
UN CHARTER, EXERCISING THE NATION' S INHERENT RIGHT OF SELF
DEFENSE. HE REFERRED TO THE PLOT AS "AN ATTACK BY THE
GOVERNMENT OF IRAQ AGAINST THE UNITED STATES," EVEN THOUGH
IT HAD BEEN PLANNED
TO OCCUR IN KUWAIT AND THEREFORE DID NOT THREATEN U.S.
TERRITORY. HE ALSO TREATED THIS PLANNED ATTACK ON PRESIDENT
BUSH AS AN ACT OF REVENGE, "BECAUSE OF ACTIONS HE TOOK AS
PRESIDENT." THE ATTACK WAS THEREFORE "AN ATTACK AGAINST OUR
COUNTRY AND AGAINST ALL AMERICANS." THE PRESIDENT HELD IRAQ
RESPONSIBLE FOR THE ATTACK, EVEN THOUGH IT WAS TO BE
CONDUCTED BY CIVILIANS, SOME 14 OF 16 OF WHOM WERE NOT EVEN
IRAQI NATIONALS. IT WAS ENOUGH THAT "THERE IS COMPELLING
EVIDENCE" THAT IRAQ WAS RESPONSIBLE, EVEN THOUGH SOME OF THE
EVIDENCE COULD NOT BE REVEALED. ANY LESSER MEASURE, HE
FOUND, WOULD BE FUTILE, AND THE TARGET WAS PROPER BECAUSE
THE SECRET SERVICE HAD PARTICIPATED IN PLANNING THE ATTACK.
IN PRINCIPLE, THEREFORE, THE SCOPE AND PROPRIETY OF
SELF DEFENSE ARE MATTERS ON WHICH OUR LEADERS AGREE. BUT
THESE PRINCIPLES HAVE SELDOM BEEN ACTED UPON IN RECENT
YEARS. WE HAVE TENDED INCREASINGLY TO TREAT TERRORIST
BOMBINGS---EVEN WHEN WE BELIEVE THEM TO HAVE BEEN
STATE-SPONSORED---AS CRIMES, REQUIRING PAINSTAKING
INVESTIGATION, AND (WHERE POSSIBLE) PROSECUTION. THIS
COMMITTEE SHOULD RECOGNIZE THE LIMITS TO WHICH THE U.S. CAN
RELY ON CRIMINAL LAW AS AN EFFECTIVE WEAPON AGAINST
TERRORISM. NO AMOUNT OF LEGISLATION, NO NEW POWER OR
AUTHORITY, CAN SUBSTITUTE FOR FORCE IN SITUATIONS CALLING
FOR THE NATION'S DEFENSE.
EVEN WITH REGARD TO RANDOM ACTS OF TERROR WHICH HAVE NO
STATE SPONSOR, RELIANCE ON CRIMINAL LAW MAY BE OF
QUESTIONABLE VALUE. CERTAINLY WE SHOULD SUPPORT THE SPEEDY
TRIAL AND
PUNISHMENT OF THE CULPRITS. BUT WHO IN HIS RIGHT MIND WOULD
NOT GIVE UP THE CHANCE TO CONVICT AND PUNISH THOSE INVOLVED
IN SOME DEVASTATING ACT OF TERROR IN ORDER TO PREVENT THE
TRAGEDY FROM OCCURRING IN THE FIRST PLACE? MEASURES SUCH AS
THE TAGGING OF EXPLOSIVES, AND THE EXCLUSION OR DEPORTATION
OF ALIENS WHO SUPPORT TERRORIST GROUPS, MAY WELL ENABLE THE
GOVERNMENT TO PREVENT TRAGEDIES.
I HAVE TWO SUGGESTIONS IN THIS REGARD. FIRST, THE TIME
MAY HAVE COME FOR THE U.S. TO PRESS FOR NARROW BUT IMPORTANT
LIMITATIONS ON DIPLOMATIC IMMUNITY. WE SHOULD BE ABLE TO
DEVISE RULES AND PROCEDURES ON WHICH THE ENTIRE WORLD CAN
AGREE TO PREVENT AND PUNISH ABUSES OF THE PRIVILEGES
AFFORDED DIPLOMATS AND THEIR POUCHES.
SECOND, THE MOST EFFECTIVE MEASURES FOR PREVENTING ACTS
OF TERROR ARE USUALLY TECHNOLOGICAL. METAL DETECTORS HAVE
SAVED COUNTLESS LIVES. MORE SOPHISTICATED DETECTORS FOR
EXPLOSIVES WILL CONTINUE TO MAKE AIRLINE TRAVEL AND OTHER
IMPORTANT INDUSTRIES VIABLE. WHEN I SERVED AS LEGAL ADVISER,
I URGED THE ADMINISTRATION TO UNDERTAKE A "TERRORIST DEFENSE
INITIATIVE" TO DEVELOP DEVICES THAT WOULD ENABLE CIVILIZED
NATIONS TO RETURN TO RELATIVE NORMALCY. SECRETARY SHULTZ
AUTHORIZED ME TO BE BRIEFED ON THE RESEARCH PROJECTS THEN
UNDERWAY, AND I WAS IMPRESSED WITH SOME OF THE IDEAS THAT
WERE BEING PURSUED. PERHAPS THIS COMMITTEE SHOULD SEEK TO BE
BRIEFED ON THOSE IDEAS, AND TO DETERMINE WHETHER THEY HAVE
BEEN ADEQUATELY SUPPORTED AND EXPLOITED.
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