1995 Congressional Hearings
Intelligence and Security



                    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.



 THE DRIVER IS GONE, BUT IS DISPENSABLE. OTHERS ARE

AVAILABLE TO TAKE HIS (OR HER) PLACE IN FUTURE ATTACKS.



 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.



 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.



 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.