Mark Lindsey

Testimony
United States Senate Committee on the Judiciary
Keeping America's Mass Transportation System Safe: Is the Law Adequate?
April 8, 2004

Mark Lindsey
Chief Counsel , U.S. Department of Transportation

Testimony of S. Mark Lindsey
Chief Counsel, Federal Railroad Administration
U.S. Department of Transportation
before the Committee on the Judiciary
United States Senate
April 8, 2004
Mr. Chairman, members of the Committee, I am very pleased to be here today to testify
on behalf of the Secretary of Transportation concerning the need for stronger Federal criminal
laws, to deter terrorist attacks and other violence against railroad carriers and mass transportation
systems. This hearing is especially timely in light of the March 11 attacks on four commuter
trains in Madrid, the subsequent discoveries of bombs under railroad tracks in both Spain and
France, and the intelligence reports that terrorists might try to bomb rail lines and buses in major
U.S. cities this summer.
Passenger railroads and mass transportation systems pose attractive targets for terrorist
attacks because of the large concentration of people, the difficulty of securing such open and
extensive systems, and the fact that such attacks can be highly disruptive to the economy. While
freight railroads carry only a small number of people as crew, they are likewise attractive targets
for terrorists because they also operate over open and extensive systems and because they carry
hazardous materials. The U.S. Department of Transportation (DOT), the U.S. Department of
Homeland Security (DHS), and other Federal agencies have been working with the railroad and
transit industries, sharing knowledge, expertise, ideas, and resources to mitigate the terrorist
threat to our Nation's railroads and mass transportation systems. The security efforts of the
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various Federal and private parties were detailed in testimony given to the Senate Committee on
Commerce, Science, and Transportation on March 23, 2004.
While FRA and other Federal agencies will continue our efforts to safeguard our
railroads and mass transportation systems, the enactment of stronger Federal criminal laws is
also necessary. The enactment of legislation along the lines of S. 2289 (introduced by Senator
Sessions) should help deter attacks against these systems and ensure that any acts that do occur
are appropriately punished. DOT strongly supports S. 2289 and appreciates the Committee's
commitment to help deter acts of violence against transportation systems.
S. 2289 would consolidate the existing "wrecking trains" statute at18 U.S.C. 1992 and
the mass transportation anti-terrorism statute at 18 U.S.C. 1993 into a new and more
comprehensive section 1992. FRA and the Federal Transit Administration have worked very
closely with the Department of Justice (DOJ) since 1997 in trying to secure the passage of
similar legislation. DOT submitted anti-terrorism bills in 1997, 1999, and 2002, each of which
contained many of the central provisions of S. 2289. DOT's legislative proposals formed the
basis for the mass transportation statute, which was first enacted as part of the USA PATRIOT
Act in 2001.
There are eight gaps or ambiguities in the wrecking trains and mass transportation
statutes that S. 2289 would address.
First, the bill would update and slightly expand the wrecking trains statute's language
regarding acts of violence against railroad carriers. The wrecking trains statute was enacted in
1940 and contains terminology that is not as expansive as that used in modern Federal criminal
statutes. The bill would update the language used in referring to acts targeted at railroads (e.g.,
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replacing the term "explosive substance" with "biological agent or toxin, destructive substance,
or destructive device"). And more types of railroad property and equipment would be explicitly
protected (guideways, locomotive tenders, and on-track equipment). The definitions of the mass
transportation statute would be slightly modified to reflect the addition of railroads, and terrorist
acts involving hazardous materials including radioactive materials and spent nuclear fuel.
Second, the bill would extend to railroads the protections that apply to mass
transportation systems under the mass transportation statute. The mass transportation statute
contains a much more comprehensive listing of prohibited conduct than does the wrecking trains
statute. The mass transportation prohibitions cover mass transportation by air, marine, and
surface transportation. While these statutory prohibitions clearly apply to attacks against
commuter railroads, and arguably apply to Amtrak and tourist railroad operations as well, the
massive freight railroad operations of this country are not covered. The vulnerabilities of freight
shipments--whether spent nuclear fuel or other hazardous materials—need to be addressed to
better protect the general public.
In particular, the following six additional acts of terrorism from the mass transportation
statute would be made applicable to railroads explicitly:
(1) placing a biological agent or toxin on or near railroad equipment;
(2) placing a biological agent or toxin on railroad infrastructure with intent to, or
knowing or having reason to know such activity would likely derail, disable, or wreck
railroad on-track equipment [The bill would also cover placement of these substances
"near" railroad and mass transportation property, a provision which is not currently in the
mass transportation statute.];
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(3) damaging a centralized dispatching facility;
(4) interfering with, disabling, or incapacitating any person engaged in dispatching,
operating, or maintaining railroad on-track equipment;
(5) using a dangerous weapon, with the intent to cause death or serious bodily injury to
an employee or passenger of a railroad carrier any other person while any of the
foregoing is on the property of a railroad carrier "that is used for railroad purposes" [The
highlighted qualifying language would also be made applicable to similar acts committed
on the property of mass transportation systems; this qualifier is not currently in the mass
transportation statute.]; and
(6) conveying or causing to be conveyed false information, knowing the information to
be false, concerning an attempt or alleged attempt being made or to be made, to engage in
any of the prohibited acts.
Third, the bill would lower the evidentiary threshold for Federal prosecution of acts
against railroads to the same threshold as in the mass transportation statute. The wrecking trains
statute prohibits specified acts against railroad equipment and property that is engaged in
interstate or foreign commerce. The mass transportation statute is much broader in scope and
applies not only to acts committed on, against, or affecting a mass transportation provider
engaged in or affecting interstate or foreign commerce, but also to a person who travels,
communicates, or transports materials across a State line in aid of the commission of the offense.
With this expanded scope, attacks against railroad carriers will be easier to prosecute.
The bill also substitutes the word "knowingly" for the term "willfully," which is the mens
rea the defendant must have in committing the prohibited conduct under the wrecking trains
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statute and the anti-terrorism mass transportation statute. We believe that the use of
"knowingly" merely clarifies existing law since the courts have equated the term "willfully" in
the wrecking trains statute with the term "knowingly." Courts construing the wrecking trains
statute have held that it is not necessary to show that the defendant had a specific intent to wreck
a train but merely that the defendant was aware of his acts and did not act because of ignorance,
mistake, or accident, and that the defendant's conduct could substantially interfere with the
interstate railroad system.
Fourth, the bill would extend to mass transportation systems a provision in the existing
wrecking trains statute that makes it a crime to undermine or make the use of the mass
transportation infrastructure hazardous or unworkable. In addition, the bill would add "track"
and "electromagnetic guideways" to the list of types of mass transportation infrastructure
protected.
Fifth, the bill would make it a crime to cause the release of a hazardous material or a
biological agent or toxin on or near the property of a railroad or mass transportation provider
with the intent to endanger the safety of any person or with a reckless disregard for the safety of
human life. This is a new prohibition that does not exist in current law. Freight trains haul a
tremendous amount of hazardous materials–nearly a million rail tank cars and 238,000
intermodal loads of hazardous materials annually, and lesser amounts are hauled by mass
transportation providers. In calendar year 2002, trains provided over a billion ton-miles of
hazardous materials transportation. Rail is the predominant method of transportation for certain
classes of hazardous materials that pose an especially high risk, including explosives, radioactive
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materials, and flammable solids. It is essential that the Federal criminal statutes deter terrorists
from using these hazardous materials and biological agents and toxins to harm the public.
Sixth, the bill would clarify that it is not a violation of the statute to transport on railroad
or mass transportation equipment or property hazardous materials in commerce that are in
accordance with Federal hazardous materials transportation law and DOT's implementing
regulations, or, if in violation of these provisions, the violation is merely a civil violation and not
a criminal violation.
Seventh, the bill would close a gap in the "mass transportation" statute noted in the "Shoe
Bomber" case, where the district court observed that the literal language of the statute prohibited
an attempted act of terrorism but did not explicitly penalize such an attempt. The district court
correctly rejected as meritless Mr. Reid's argument that Congress had not made attempt crimes
under the mass transportation statute punishable. The bill would also update the definition of
"dangerous weapon" in the mass transportation statute to cover box cutters and other previously
unrecognized weapons.
Eighth, the bill would toughen or clarify the penalties for certain violations. For
violations not falling in the "aggravated offense" category, the penalty would be a fine or
imprisonment of not more than 20 years, or both. The bill would make it an "aggravated
offense" to commit prohibited acts against a train or a mass transportation vehicle that carries a
passenger or employee, radioactive waste, spent nuclear fuel, or designated hazardous materials.
The general penalty for aggravated offenses would be a fine, or imprisonment for any term of
years or life, or both. A term of not less than 30 years would apply to an offense involving highlevel
radioactive waste or spent nuclear fuel. A sentence of either life imprisonment or capital
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punishment would apply where the offense has resulted in the death of another person.
Currently, the maximum penalty under the mass transportation statute is life imprisonment. The
death penalty is already available for a violation of the "wrecking trains" statute that results in a
death. The bill would correct this anomaly by making available the death penalty for attacks
against mass transportation systems that result in a death of a person. Recently, a Federal district
court ruled that the wrecking trains statute does not impose a mandatory minimum sentence of
life imprisonment or death against an individual who willfully derailed a freight train killing the
conductor and seriously injuring the locomotive engineer. The bill would make clear that if a
violation of the statute results in a death, that the court's choice would be to impose a sentence
either of life imprisonment or the death penalty.
Conclusion
Federal agencies, working in cooperation with the railroads and mass transportation
systems, have been working hard to prevent terrorist attacks against our Nation's railroads and
mass transportation systems. With the rest of the senior leadership team at DOT, FRA is
committed to this effort to improve transportation security by the relentless pursuit of this goal
by Transportation Secretary Norman Mineta. His actions on September 11 to protect the flying
public, his stewardship of the creation of the Transportation Security Administration (TSA), his
leadership in making the transition of the TSA and Coast Guard to the DHS, all are
accomplishments which provide us all at DOT a high standard by which to gauge our own
efforts.
The Department appreciates the Committee's continued efforts to deter terrorist activity
and protect the Nation's railroads and mass transportation systems. We are ready to work with
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you on improving the Federal criminal statutes in order to bring about an even safer and more
secure rail transportation system. Thank you for the opportunity to appear before your
Committee, and I welcome the chance to respond to your questions.

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