[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
CLEMENCY FOR THE FALN: A FLAWED DECISION?
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HEARING
before the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 21, 1999
__________
Serial No. 106-44
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.house.gov/reform
__________
U.S. GOVERNMENT PRINTING OFFICE
60-935 WASHINGTON : 2000
COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio
Carolina ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia DANNY K. DAVIS, Illinois
DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas JIM TURNER, Texas
LEE TERRY, Nebraska THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California ------
PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont
HELEN CHENOWETH, Idaho (Independent)
DAVID VITTER, Louisiana
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
David A. Kass, Deputy Counsel and Parliamentarian
Carla J. Martin, Chief Clerk
Phil Schiliro, Minority Staff Director
C O N T E N T S
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Page
Hearing held on September 21, 1999............................... 1
Statement of:
Barnes, Harry, director, Conflict Resolution Program at the
Carter Center; and Reverend Dr. Thomas Dipko, executive
vice president, United Church Board for Homeland
Ministries, United Church of Christ........................ 138
Cooksey, Michael B., Assistant Director for Correctional
Programs, Bureau of Prisons; Jon Jennings, Acting Assistant
Attorney General for Legislative Affairs, Department of
Justice; and Neil Gallagher, Assistant Director for
National Security, Federal Bureau of Investigation......... 86
Ettenson, Diana Berger; Thomas Connor; Detective Richard
Pastorella, retired, New York City Police Department; and
Detective Anthony Senft, retired, New York City Police
Department................................................. 41
Fossella, Hon. Vito, a Representative in Congress from the
State of New York.......................................... 31
Romero-Barcelo, Hon. Carlos A., a Representative in Congress
from Puerto Rico........................................... 23
Letters, statements, etc., submitted for the record by:
Barnes, Harry, director, Conflict Resolution Program at the
Carter Center:
Letter dated October 15, 1999............................ 153
Prepared statement of.................................... 140
Biggert, Hon. Judy, a Representative in Congress from the
State of Illinois, prepared statement of................... 21
Burton, Hon. Dan, a Representative in Congress from the State
of Indiana, information against clemency................... 131
Connor, Thomas, prepared statement of........................ 48
Cooksey, Michael B., Assistant Director for Correctional
Programs, Bureau of Prisons, prepared statement of......... 88
Dipko, Reverend Dr. Thomas, executive vice president, United
Church Board for Homeland Ministries, United Church of
Christ, prepared statement of.............................. 144
Ettenson, Diana Berger, prepared statement of................ 43
Fossella, Hon. Vito, a Representative in Congress from the
State of New York, prepared statement of................... 36
Jennings, Jon, Acting Assistant Attorney General for
Legislative Affairs, Department of Justice:
Information concerning a draft letter.................... 127
Information concerning a petition for clemency........... 130
Information concerning White House requests.............. 126
Prepared statement of.................................... 95
Senft, Detective Anthony, retired, New York City Police
Department, prepared statement of.......................... 67
Waxman, Hon. Henry A., a Representative in Congress from the
State of California:
Letter dated August 27, 1999............................. 15
Letter dated September 21, 1999.......................... 7
CLEMENCY FOR THE FALN: A FLAWED DECISION?
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TUESDAY, SEPTEMBER 21, 1999
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 1:16 p.m., in
room 2154, Rayburn House Office Building, Hon. Dan Burton
(chairman of the committee) presiding.
Present: Representatives Burton, Morella, Horn, Barr,
Miller, Hutchinson, Terry, Biggert, Ose, Vitter, Waxman, Towns,
Mink, Norton, Cummings, Kucinich, Davis of Illinois, and
Tierney.
Staff present: Kevin Binger, staff director; Daniel R.
Moll, deputy staff director; James C. Wilson, chief counsel;
David Kass, deputy counsel and parliamentarian; Kristi
Remington, senior counsel; Mark Corallo, director of
communications; Kevin Long, professional staff member; Kim
Reed, counsel; Corinne Zaccagnini, systems administrator; Robin
Butler, office manager; Carla J. Martin, chief clerk; Lisa
Smith-Arafune, deputy chief clerk; Nicole Petrosino,
legislative aide; Howard Denis, staff director, Subcommittee on
Civil Service; Russell George, staff director/chief counsel,
Subcommittee on Civil Service; Phil Schiliro, minority staff
director; Phil Barnett, minority chief counsel; Kenneth Ballen,
minority chief investigative counsel; David Sadkin and Michael
Yang, minority counsels; Ellen Rayner, minority chief clerk;
Jean Gosa, minority staff assistant; and Andrew Su, minority
research assistant.
Mr. Burton. The Committee on Government Reform will come to
order.
Good afternoon. A quorum being present, the committee will
start conducting our business. I ask unanimous consent that all
Members' and witnesses' written opening statements be included
in the record. Without objection, so ordered.
I ask unanimous consent that all articles, exhibits and
extraneous or tabular material referred to be included in the
record. Without objection, so ordered.
I also ask unanimous consent that questioning in the matter
under consideration proceed under clause 2(j)(2) of House Rule
XI and committee rule 14 in which the chairman and ranking
minority member allocate time to committee counsel or Members
as they deem appropriate for extended questioning, not to
exceed 60 minutes divided equally between the majority and
minority. Without objection, so ordered.
Today we are going to focus on the President's decision to
offer clemency to members of a Puerto Rican terrorist group,
the FALN. Our system is based on checks and balances. The
Congress can pass legislation, but the President can veto it.
The President is the Commander in Chief, but only Congress can
declare war. But there is one area where the President's power
is absolute: the power to grant clemency.
There is nothing the Congress can do about it. There is
nothing the courts can do about it. Article II, Section 2 of
the Constitution states, ``He shall have the power to grant
reprieves and pardons for offenses against the United States
except in cases of impeachment.''
Can we have some order, please.
This is an important responsibility. It is a power that the
President has to exercise with a great deal of caution. Before
the FALN terrorists, President Clinton had received more than
3,000 petitions for clemency and he had only granted 3 of them.
Then on August 11th, the President offered clemency to 16
members of the FALN, a terrorist group seeking independence for
Puerto Rico. Almost a month later, 14 of the 16 people accepted
the President's offer and were released from prison.
This whole issue has ignited a firestorm of controversy.
The FALN was involved in 130 bombings, 5 people were killed, 84
were injured. What we want to know is why did the President
make this decision? What is the public benefit? Who advised him
on this issue? Was the FBI consulted? The Bureau of Prisons?
That is why we are holding this hearing today.
First, we are going to examine what the FALN is. One of the
arguments for granting clemency is that these 16 people were
not directly involved in any acts of violence. Well, I want to
briefly review what they were convicted of.
Most of these people were convicted of things like
seditious conspiracy and conspiracy to obstruct interstate
commerce. Let's take a look at exactly what that means. Eight
of these people were arrested together in Chicago. They were
caught in a stolen van carrying illegal weapons. They were
parked near the home of a wealthy businessman named Henry
Crown. It is believed they were going to kidnap him. The only
thing that stopped them was their arrest.
They were convicted in Federal court. As they were
sentenced they shouted threats to the judge. Here is what they
said according to the court transcript: ``You are lucky we
cannot take you right now. Our people will continue to use
righteous violence. Revolutionary justice can be fierce, mark
my words. We are going to fight, revolutionary justice will
take care of you and everybody else.'' That is what they said
to the judge. Now these are the people who were just granted
clemency.
Three other FALN members were planning to break one of
their leaders out of Leavenworth Prison. They had two safe
houses in Chicago where they had thousands of rounds of
ammunition, blasting caps, detonating cord, dynamite and
numerous weapons.
They had a schematic diagram of the prison hidden under the
floorboards in the kitchen of the house. The only thing that
stopped them was their arrest. The FBI has a videotape of two
of these people in one of their safe houses actually making a
bomb. And I think we ought to show that to everyone who is in
attendance here today. These are two of the members making a
bomb. This is an official FBI tape.
[Videotape.]
Mr. Burton. Who are these people? These are the people who
were just granted clemency. Four of the people who were granted
clemency were arrested for their involvement in the armed
robbery of an armored car in Connecticut. They are part of a
splinter group called in Spanish the machete wielders. This
group has claimed responsibility for the murder of a San Juan
police officer, ambushing a Navy bus and killing two sailors
and shooting a United States Army officer in Fort Buchanan in
Puerto Rico. These are the people the President offered
clemency to and released from prison.
The saddest part is that the Puerto Rican people don't even
know what these people are fighting for. I know a little bit
about this issue. I have been a strong supporter of self-
determination for Puerto Rico. I am an original sponsor of
legislation to give them a free and fair plebiscite to decide
their fate. I have spoken in Puerto Rico about this issue.
The vast, vast majority of Puerto Ricans don't want
independence. In the last plebiscite only 2.5 percent of the
people voted for independence, the rest voted for commonwealth
or statehood. Congressman Romero-Barcelo of Puerto Rico is here
today. He and I worked together on this issue. I hope he will
tell us a little bit about the level of support for
independence in Puerto Rico.
So I hope we won't have a lot of talk today about how these
people were convicted of nonviolent crimes. The only reason
some of them did not commit murders or bombings is because they
were arrested before they got a chance to do it. Many of the
murders remain unsolved to this day. We do not know who
committed them. It may have been those that the President
pardoned.
We need to know what was behind this decision to offer
these people clemency. I think the American people deserve to
know.
Was the President aware of the extent of their crimes? Did
the President seek the opinion of the Justice Department or the
FBI? Did he seek advice from other law enforcement groups? What
were the arguments for releasing these people?
I sent a subpoena to the White House. I asked for all of
the memos that had been prepared for the President as he made
this decision. I sent a subpoena to the Justice Department
asking them for all the material they sent to the White House
on this case. Instead of complying with the subpoena, the
President made a sweeping claim of executive privilege. No
documents bearing on this decision can be turned over. Nobody
who advised him can testify.
Well, the President has a right to do that. There is no
disputing that but I think it is very unfortunate what the
President is basically saying is that it is his decision and as
far as the Congress and the American people are concerned, it
is none of their business.
The President has taken members of a terrorist organization
who committed very serious crimes and set them free. I think he
has a moral obligation to explain to the American people why he
did this. I think he has a moral obligation to explain to the
American people why putting these people back on the streets is
not a danger to them and their families.
Today I watched the President speaking at the United
Nations and two of the things that he highlighted were dealing
with terrorism severely and also making sure that nuclear
proliferation stopped. And I thought it was kind of interesting
that while he was talking about how we should deal severely
with terrorism around the world, he was offering clemency to 16
terrorists, members of an organization that had bombed 130
sites and killed or maimed 84 people.
If the President made a good decision, then release the
documents and the briefing papers and let them reflect that. If
he made a good decision let his aides come up and testify. Mr.
President, don't hide behind executive privilege. At the very
least the President should go before the American people and
give them a forceful explanation as to why these people deserve
to be released from prison.
Unfortunately, none of that is going to happen today. We
are not going to hear from anyone who can explain to us why the
President did what he did. We are going to hear from some
people who know a little bit about the FALN terrorists.
We are going to hear from two New York City police
officers. They were working on the bomb squad on New Year's Eve
in 1982. One of the FALN's bombs went off in their faces while
they tried to diffuse it. Detective Senft and Detective
Pastorella were permanently crippled. They will be introduced
by Congressman Vito Fossella and I am glad he will be here in
just a little bit. His plane was delayed because of the
weather, but he is on his way.
We are also going to hear from Thomas Connor of New York
today. Mr. Connor's father was killed by an FALN bomb. It was
set off at the historic Fraunces Tavern in New York in 1975. He
was 11 years old the day his father died. We also have Diana
Berger Ettenson here today. Her husband was sitting at the same
table as Thomas Connor's father. She was 6 months pregnant the
day that her husband died and her child never saw his father.
I want to thank all of you for being here. I am sorry for
the losses that you have suffered. I know a lot of time has
passed but time doesn't heal all of these wounds. I was
watching TV a couple of weeks ago and I saw Tim Russert
interview one of these FALN members who was released from
prison, Ricardo Jimenez. I think what upset me the most was
that he tried to blame the restaurant owners for the deaths. I
am going to read what he said to Tim Russert: ``I think all
precautions were taken, you know, to make sure that all human
life was preserved. The measures were not taken that were
necessary by the people who owned the establishments.''
He blamed the restaurant. Mr. Russert asked him again and
again if he felt remorse for what he had done. He just danced
around and around the issue and it became clear to me that
these people do not regret what they did. They are defiant. In
fact two of the people the President offered clemency refused
to accept it. Oscar Lopez is one of them. He decided he would
rather sit in prison than renounce violence. In 1986, he
masterminded a violent plan to break out of prison. They were
going to use fragmentation grenades and C-4 explosives. I want
to read to you what he was working to get with his compatriots
outside prison to attack the prison, bomb it, bomb the guard
towers, have helicopters firing into the compound killing the
guards there. He asked these people on the outside to get
fragmentation grenades, smoke grenades, phosphorus grenades, 8
M-16 rifles, 2 silencers, 50 pounds of plastic C-4 explosives,
8 bulletproof vests, 10 blasting caps to use with the plastic
explosives and 100 30-shot clips to use with automatic weapons.
He does not sound like a fellow who is going to renounce
terrorism, does he? He also said that if the man who was going
to sell them this equipment would not give them a fair price,
they should murder him. He was convicted and received a new 15-
year sentence. Did the President know about this man before he
offered to let him out of prison? I want to read to you what
his presentencing report said in 1986. This was by the court:
It was Lopez who offered to obtain false identification,
weapons and explosives. It was Lopez who sent Jaime Delgado to
Dallas to negotiate the purchase of weapons and explosives. It
was Lopez, moreover, who gave his approval for Cobb's return
visit to Leavenworth and for the murder of Michael Neece. Even
behind the bars of a Federal penitentiary, Oscar Lopez
continued to lead his Chicago supporters in violent plans.
He ordered a murder from behind bars. Fortunately the FBI
prevented it from happening. He was offered clemency along with
his compatriots.
What was it about Oscar Lopez that moved the President to
offer him clemency? The President had received more than 3,000
petitions for clemency. Was Oscar Lopez the most compelling
case out of the 3,000? The President only granted clemency to
three people. And yet he offered it to Mr. Lopez. I don't
understand that, especially in view of the fact that the
President only granted 3 out of 3,000.
I read an article in the New York Times where Mr. Ruff,
former counsel to the President, stated that they did not make
this decision for political reasons. But nowhere in the article
did Mr. Ruff explain why the President did make this decision.
If the President is going to do something this unprecedented
there has got to be a good reason for it. I do not understand
why the President will not level with the American people.
We have three witnesses from the Justice Department here
today. I don't know if they are going to say anything or not. I
asked Mr. Gallagher from the FBI to testify about their threat
assessment of the FALN. I also asked him to testify about the
crimes committed by these individuals. He has had an opening
statement prepared for over 1 week. I was informed last night
that the Attorney General will not allow him to read his
opening statement. He cannot read it, he could not submit it. I
do not understand that. The President is using executive
privilege and he will not let the FBI even tell what their
assessment was in an opening statement. Now maybe we can get
something when we question them.
I have run out of words to describe my frustrations with
the political games played by Janet Reno and this Justice
Department. I just do not know what to say anymore, so I guess
what I will do is issue a subpoena for the FBI opening
statement. I cannot believe it has come to this.
This has important foreign policy ramifications. We have a
serious terrorism problem around the world, as well as events
like Oklahoma City and the World Trade Center bombings. Think
about that, the World Trade Center bombing. Think about that
tragedy at Oklahoma City. I watched the President this morning
making this speech at the U.N. As I said before, he said we
have to deal severely with terrorism around the world. What
kind of message does it send to other countries when we let
known terrorists out of prison in our own country?
The President has also told the U.N. that we have to do
more to fight nuclear proliferation, and I touched on that
earlier. It reminded me of a hearing we had here a couple of
months ago. A policy expert from the Defense Department named
Jonathan Fox drafted a report for the Defense Department at the
administration's request, I understand, stating that China was
a nuclear arms proliferator. Someone higher up the food chain
made him change his opinion 180 degrees and they told him that
they would fire him if he didn't do it, this national security
assessment the week before Jiang Zemin, the President of China,
was going to Washington. If we are going to fight nuclear
proliferation, we better start right here at home.
Let me conclude by saying this. Mr. President, do not leave
us sitting here reading the tea leaves trying to figure it out.
Send us the documents we have asked for. Let your aides come up
and testify. If nothing else, go on TV and tell the American
people why letting these terrorists out is to their benefit.
But do not tell the American people this is none of their
business.
I want to again thank all of our witnesses for being here
and I am sorry we had to reschedule this from last week but
there is nothing we can do about hurricanes. For those of you
who are allowed to speak from the various agencies, we look
forward to it.
I now yield to my colleague from California, Mr. Waxman.
Mr. Waxman. Thank you very much, Mr. Chairman. I want to
say to the victims and family members of victims that are here
to testify that our sympathy is with you and we understand the
ordeal that you have all gone through. This is the third
hearing in which these victims and family members of victims
will testify. We have already had a hearing on this issue in
two separate Senate committees last week and now we are holding
a hearing in this committee on the same subject. And this is
after the House has already voted to condemn the President's
exercise of granting clemency and the Senate has already voted
to condemn the President's action of extending clemency. And as
I understand looking over the House schedule for this week, we
are going to vote on it once more.
This is really quite extraordinary. The President has the
unique constitutional prerogative to make this decision, and I
could imagine it was a very difficult decision for him to make.
I received a letter from the President, and I want to ask
unanimous consent the letter be made part of the record.
Mr. Burton. Without objection.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T0935.001
[GRAPHIC] [TIFF OMITTED] T0935.002
[GRAPHIC] [TIFF OMITTED] T0935.003
[GRAPHIC] [TIFF OMITTED] T0935.004
[GRAPHIC] [TIFF OMITTED] T0935.005
Mr. Waxman. And I think it is only fair to read the letter
in its entirety at this point.
The President said:
As you know on August 11, 1999, I offered clemency to 16
Puerto Rican nationalists, conditioned on these individuals
formally seeking it, renouncing violence and abiding by all
parole requirements. This letter is in response to requests for
information about my decision.
For the last 6 years various Members of Congress, religious
and civic leaders as well as others have urged me to grant
clemency to a group of Puerto Rican prisoners, most of whom
have been in prison between 16 and 19 years as a result of
convictions for offenses arising out of their participation in
organizations supporting Puerto Rican independence.
The question of clemency for these prisoners was a very
difficult one. I did what I believe equity and fairness
dictated. I certainly understand, however, that other people
could review the same facts I did and arrive at a different
decision. In making my decision, I did not minimize the serious
criminal conduct in which these men and women engaged. I
recognize and appreciate that there are victims of FALN-related
violence who feel strongly that these individuals, although not
directly convicted of crimes involving bodily harm to anyone,
should serve the full sentences imposed.
Before making my decision, I sought and considered the
views of the Department of Justice. Press reports note that
certain Federal Bureau of Investigation and Justice Department
officials, including the U.S. Attorneys in Chicago and
Connecticut, were opposed to clemency. I did not dismiss those
concerns as some have implied. Rather, I carefully weighed them
in making this difficult decision.
On the other hand, the prisoners were serving extremely
lengthy sentences--in some cases, 90 years--which were out of
proportion to their crimes. (In contrast, Jose Solis Jordan,
who was prosecuted and convicted in July in Chicago of
conspiring to place explosive devices at a Marine recruiting
center received a sentence of 51 months.)
The petitioners received worldwide support on humanitarian
grounds from numerous quarters. President Jimmy Carter wrote in
1997 that granting clemency to these men and women, quote,
``would be a significant humanitarian gesture and would be
viewed as such by much of the international community, a
concern that was relevant in 1979 and I believe is today.'' End
quote.
He noted that each individual had ``spent many years in
prison and no legitimate deterrent or correctional purpose is
served by continuing their incarceration.''
Finally, in explaining the close similarity between the
current clemency petition and the clemency he granted in 1979
to people who had committed serious crimes in the name of
Puerto Rico's independence, he said that then, as now, quote,
``to the extent that clemency might under other circumstances
be viewed as evidence of leniency toward terrorists, no such
conclusion could be drawn here in light of the length of the
sentences served,'' end quote.
President Carter's support was particularly noteworthy
because he commuted to time served the sentences of the Puerto
Rican nationalists who were convicted for their 1954 attack on
the House of Representatives which resulted in the wounding of
5 Congressmen. President Carter also commuted to time served
the life sentence of Oscar Collazo, who attempted to
assassinate President Truman, an attack that resulted in the
death of a White House policeman.
Bishop Tutu and Coretta Scott King all wrote to seek
clemency for the petitioners since they had received, quote,
``virtual life sentences'' and ``have spent over a decade in
prison while their children have grown up without them,'' end
quote.
In addition, various Members of Congress, a number of
religious organizations, labor organizations, human rights
groups and Hispanic civic and community groups supported
clemency. The petitioners also received widespread support
across the political spectrum within Puerto Rico.
We have recently provided Congress more than 14,000 pages
of materials that the White House received in connection with
this clemency matter, including thousands of letters seeking
clemency for the prisoners. Many of those who supported
unconditional clemency for the prisoners argued that they were
political prisoners who acted out of sincere political beliefs.
I rejected this argument. No form of violence is ever justified
as a means of political expression in a democratic society
based on the rule of law.
Our society believes, however, that a punishment should fit
the crime. Whatever the conduct of other FALN members may have
been, these petitioners, while convicted of serious crimes,
were not convicted of crimes involving the killing or maiming
of any individuals. For me the question, therefore, was whether
the prisoners' sentences were unduly severe and whether their
continuing incarceration served any meaningful purpose. I
considered clemency for each of them on an individual basis.
Nine of the petitioners were convicted in the Northern
District of Illinois of seditious conspiracy, armed robbery and
various firearms offenses. They did not appear at trial,
refused defense counsel, and presented no defense to the
charges against them.
They also did not assist the probation office in preparing
the presentence reports. They received 20-year sentences for
the seditious conspiracy and Hobbs Act counts, 10-year
sentences for the weapons charges, and 5-year sentences for the
vehicle charges. The sentences on most or all of these counts
were imposed consecutively rather than concurrently, which
would rarely occur today under the sentencing guidelines and
resulted in sentences ranging from 55 to 90 years.
These nine prisoners have served 19 years in prison. I
commuted the sentences of eight of these prisoners to between
23 and 26 years, thereby making them eligible for parole
pursuant to the mandatory release standards applicable to all
prisoners. I refused to commute the sentence of Carlos Alberto
Torres, who had been indicted by a Federal grand jury in 1977
on explosive charges, was identified as the leader of the
group, and had made statements that he was involved in a
revolution against the United States and that his actions had
been legitimate.
One of the petitioners, Oscar Lopez-Rivera, was charged
with the other nine petitioners but was not arrested until May
1981. He was convicted of the same offenses and received
sentences totaling 55 years. He too did not present a defense
at trial or assist the probation officer in preparing the
presentencing report.
In 1984 he tried to escape and was sentenced to an
additional 15 years for that attempt, to run consecutive to his
earlier sentence. I proposed commuting his original conviction
to 29 years but did not commute his sentence for the attempted
escape. He declined the commutation offer.
Three of the petitioners were separately convicted in the
Northern District of Illinois of seditious conspiracy,
interstate transportation of stolen vehicles, and weapons
offenses. At trial, they were represented by stand-by counsel
and participated in parts of the trial, although they did not
participate in the sentencing process. Each was sentenced to 35
years in prison, and had served 16 years.
I commuted their sentences to 26 years, making them
eligible for parole.
The final four petitioners were members of the Los
Macheteros and were convicted in the district of Connecticut in
connection with the 1984 robbery of a Wells Fargo office. Juan
Enrique Segarra-Palmer received a sentence of 55 years, and
Antonio Camacho-Negron received a sentence of 15 years, and
Roberto Maldonado-Rivera and Norman Ramirez-Talavera received
sentences of 5 years each. The last two have completed their
sentences but I remitted their outstanding fines. Antonio
Camacho-Negron was released in 1998 on parole but was later
rearrested for parole violation. I was informed that he would
be eligible for release at any time if he agreed to abide by
the parole requirements. In light of his refusal to comply with
the conditions of his first release, I refused to commute his
sentence, although I did offer to remit his outstanding fines.
He rejected this offer.
Finally, I commuted the sentence of Juan Enrique Segarra-
Palmer so that he would be eligible for parole after serving 19
years in prison, consistent with the time served by the Chicago
petitioners.
The timing of my decision was dictated by the fact that my
former counsel, Charles Ruff, committed to many of those
interested in this issue that he would consult with the
Department of Justice and make a recommendation to me before he
left the counsel position. Pursuant to this commitment, I
received his recommendation in early August. As he recently
indicated to the New York Times, his recommendation and my
decision were based on our view of the merits of the requests--
political considerations played no role in the process.
As you know, last week, I asserted executive privilege in
the face of Chairman Burton's subpoena seeking memoranda and
testimony concerning the decision process. I did so after
receiving the opinion of the Attorney General that such
assertion was proper as the demand clearly intruded on areas
reserved to the President under the Constitution.
Grants of clemency generate passionate views. In vesting
the pardon power in the President alone, the framers of our
Constitution ensured that clemency could be given even in cases
that might be unpopular or controversial. The history of our
country is full of examples of clemency with which many
disagreed, sometimes fervently. When Theodore Roosevelt granted
amnesty to Filipino nationals who attempted to overthrow U.S.
control of the Philippines, when Harry Truman commuted the
death sentence of Oscar Collazo and when Jimmy Carter commuted
the sentence of Collazo and other Puerto Rican nationalists who
had fired upon the House of Representatives, they exercised the
power vested them by the Constitution to do what they believed
was right even in the face of great controversy. I have done
the same.
I hope this information is helpful in understanding my
decision and that you will share it with members of your
committee and others who might find it useful.
----Sincerely, Bill Clinton.
Mr. Waxman. Well, I can imagine a decision like this is a
very difficult one for a President to make. He knows he alone
must make it and that there are people telling him that it is a
good idea and people telling him it is not a good idea. And I
can particularly see how in light of the strong opposition of
many people, including the head of the FBI and others with whom
he had consulted, that he could have to take all of their views
in consideration. And in our own committee files that have been
sent to us by the administration, we have a letter which I will
ask unanimous consent to make part of the record. That is a
letter, one by Congressman Henry Hyde to Mr. Freeh and then his
response to that letter, and I would like to put that in the
record.
Mr. Burton. Without objection.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T0935.006
[GRAPHIC] [TIFF OMITTED] T0935.007
[GRAPHIC] [TIFF OMITTED] T0935.008
[GRAPHIC] [TIFF OMITTED] T0935.009
Mr. Waxman. This is a draft response by Mr. Freeh and there
is no indication that it was actually sent, but this was part
of the records that we have before us in our committee
deliberations. And Mr. Freeh said:
As recently as June 28, 1999, the FBI in written
correspondence advised DOJ that the FBI continued to oppose the
release of these terrorists. Specifically the FBI pointed out
to DOJ that as active members of Puerto Rican terrorist groups,
these individuals sanctioned, supported and/or directly or
indirectly participated in activities resulting in no fewer
than nine fatalities, hundreds of injuries, millions of dollars
in property damage, and armed attacks on U.S. Government
facilities. DOJ was also advised the FBI had reason to expect
the release of these individuals would, quote,
``psychologically and operationally enhance,'' end quote, the
ongoing violent and criminal activities of Puerto Rican
terrorist groups.
The FBI also pointed out that any such pardon of the,
quote, ``currently incarcerated terrorists would likely return
committed, experienced, sophisticated and hardened terrorists
to the clandestine movement,'' end quote.
These strong views were sent to the President and he had to
take them into consideration, as he said in his letter.
Mr. Waxman. Mr. Chairman, I don't know what I would have
done----
Mr. Burton. Would the gentleman yield for a question on
that? You said that was a draft letter. Was that sent to the
President, that draft letter?
Mr. Waxman. No, it was a draft letter to Congressman Hyde
by Mr. Freeh.
Mr. Burton. And the President was aware of that?
Mr. Waxman. Well, I don't know if he was aware of this
draft letter, but he was certainly aware of Mr. Freeh's views
because as Mr. Freeh points out, he expressed those views in
the past and as recently as June 28, 1999, of the FBI
opposition to this offering of clemency to these prisoners.
I have to say that I don't know what I would have done if I
were President of the United States. I also have to say in all
honesty I would never want to be the President of the United
States for many, many reasons and the chairman would probably
want to agree with my conclusion. But a President has under the
Constitution decisions over which we have checks and balances,
over which we have a say. But he has one at least, maybe
others, but one unique prerogative and that is to decide the
fate of individuals who are in prison. He did not pardon these
people, which would have been to forgive their crime. He in
effect paroled them or granted clemency. And clemency means to
moderate the severity of the punishment, and the President
decided, as he pointed out in his letter, after hearing from
people on both sides to reach that conclusion.
I hope this information that I am sharing with everybody
today will answer many of the questions that the chairman
raised in his opening statement. Very legitimate questions as
to why the President made the decision he has.
Each of us can agree or disagree with his decision, but
that decision was his and his alone to make. So, Mr. Chairman,
I know this is the third hearing on this issue, I know we have
witnesses who have their heartfelt pain to share with us, and I
look forward to being here with you and the other members of
the committee so that they can present their arguments and
their case to all of us and to the American people.
I yield back the balance of my time.
Mr. Burton. Thank you, Mr. Waxman. I think that I ought to
clarify one thing that may not be actually correct in the
President's letter. A Federal district judge found that Juan
Segarra-Palmer had organized and taken part in the attack at
Sabina Seca on a United States Navy bus that killed two sailors
that were on their way to a radar station and wounded nine
others. So he was directly involved in the murder of two
American sailors and the wounding of nine others. I have not
had a chance to look at the rest of the letter but that part I
do not think is accurate.
[The prepared statement of Hon. Judy Biggert follows:]
[GRAPHIC] [TIFF OMITTED] T0935.010
[GRAPHIC] [TIFF OMITTED] T0935.011
Mr. Burton. We will now recognize Mr. Romero-Barcelo, the
Resident Commissioner from the great land of Puerto Rico.
STATEMENT OF HON. CARLOS A. ROMERO-BARCELO, A REPRESENTATIVE IN
CONGRESS FROM PUERTO RICO
Mr. Romero-Barcelo. Thank you, Chairman Burton and Ranking
Member Waxman, members of the Committee of Government Reform.
For the record, I am Carlos Romero-Barcelo and I am the sole
elected Representative in Congress of the United States of the
3.8 million disenfranchised American citizens in Puerto Rico.
I appreciate the opportunity to testify before you this
afternoon at this hearing where you will consider President
Bill Clinton's clemency to 16 terrorists.
I would like to address this issue from the perspective of
the vast majority of law-abiding patriotic citizens in Puerto
Rico and I want to make it perfectly clear that this group of
terrorists neither represent nor speak for us. We abhor
violence. I find offensive any effort that attempts to
categorize and judge all Puerto Rican-Americans by the actions
of these extremists whose goal was to isolate and discredit
their fellow Puerto Ricans before the eyes of their fellow
citizens, for the purpose of having the Nation reject Puerto
Rico and give us independence. Virtually every Puerto Rican-
American repudiated their actions then as they repudiate them
now. In fact, independence as a status option has been rejected
by at least 95 percent of all Puerto Rican voters at each
election during the past 50 years and by over 97 percent of the
electorate in the status referendum held in December 1998.
Between 1974 and 1983, a small group of political
extremists waged an armed campaign of terror and violence that
shocked, horrified and even humiliated Puerto Rico. The group
calling itself the Armed Forces of National Liberation or, in
Spanish, FALN, principally operated from New York, Chicago, and
Hartford. A smaller group that called themselves Los
Macheteros, operated in Puerto Rico. Declaring themselves at
war with the United States, they carried out over 100 major
armed attacks in the mainland and in Puerto Rico with the
purpose of imposing independence for the island by means of
violence, threats and terror. I would like to stress that their
aim was to obtain independence by force, by terror and by
violence.
In New York, in an attack at the historic Fraunces Tavern,
4 people died and 55 people were injured. In Puerto Rico, a
policeman was ambushed and killed. Another group attacked a
Navy bus with people who were not armed. The attackers armed
with submachine guns sprayed the bus with gunfire and killed
two sailors and seriously injured nine others. Clearly, these
are acts of terrorism. By 1983, after the members of FALN and
Los Macheteros were apprehended, the decade-long campaign of
terror stopped.
The horror of the actions of these terrorists has been
brought once more to national attention by President Clinton's
offer of conditional release to 16 of the terrorists who have
served terms averaging over 15 years. The offer of clemency was
contingent on specific conditions that required a written
request for clemency, the repudiation of violence, intimidation
and the use of violence to impose their political ideals. In a
democracy of peace loving citizens nothing less than this can
be accepted. The individuals involved were not tried or
convicted in Federal court for any act of murder or act of
violence against another person, because for one, those were
not crimes at the times when they were convicted. They were not
Federal crimes. The Antiterrorism Act was not enacted until
1990, and further amended in 1996. All of these terrorists were
tried on or before 1983, so they could not have been indicted
by the Federal Government for those crimes nor for being
accessories or accomplices to those crimes. However, they have
been members of a terrorist organization. They have never
denied as having been part of the FALN or Los Macheteros, and
if they didn't participate directly in any of the deaths or
injuries, they remained as active members of the organizations
and applauded, encouraged and supported those crimes both
personally and financially.
Amnesty International, the leading human rights
organization in the world, did not consider them prisoners of
conscience because the acts they were accused of were violent
in nature.
President Clinton's humane offer was accepted by 12 who
individually asked for clemency; have renounced violence, and
agreed to abide by parole conditions. In short, they met the
conditions that seek to gradually incorporate them as
productive members of civil society.
I did not oppose the conditional release of these
criminals, but I did oppose their unconditional release. I
opposed it because the unconditional release of these
terrorists would have sent out a negative message throughout
the world that our democracy accepts violence intimidation and
terrorism to achieve political goals. We don't. I also opposed
the unconditional release of these terrorists because it would
have insulted their victims, the victims's families and all of
us in Puerto Rico.
I believe that what the President has decided is not only
the correct thing, it is the humane thing. One of the
fundamental requirements for the parole of the criminals in our
legal system is the public acknowledgment of responsibility and
contrition. The conditions for their release required that each
one of them signed a statement asking for clemency. Each one
had to renounce violence as a means of obtaining their
political purposes and they will be subject to parole
conditions.
When criminals are incarcerated, they are placed in prison
for three basic reasons. First of all, it is to punish them for
the crime they have submitted; second, to protect society from
the criminals; and third is to rehabilitate them and give them
the opportunity to be rehabilitated. By granting them clemency
under special conditions where they have renounced violence and
allowing them to reintegrate themselves in civil society under
controlled conditions, then we can see if they really meant it
when they renounced violence for their purposes. If not, they
can be imprisoned again without a new trial and they will have
to serve the remainder of their sentences.
This is why I consider that the President's position is a
responsible one, and one that we should all support. I was one
of the few persons who raised his voice against an
unconditional release in Puerto Rico. Those who supported the
unconditional release were either misinformed, misled or showed
no regard for the peace and security of their fellow citizens.
Most of these terrorists were not born in Puerto Rico. Although
their parents came from Puerto Rico, most of them were born and
lived in Chicago or the New York area. From there they
attempted to impose their political beliefs on the people of
Puerto Rico.
You will be hearing today from the victims of the FALN
terrorism and law enforcement officials. On behalf of their
fellow citizens in Puerto Rico, I wish to convey to them our
deepest sympathy.
Mr. Chairman, I appreciate the opportunity to express the
concerns of the vast majority of Puerto Rican Americans who,
because of the acts of the terrorists, have been subjected to
discrimination in their communities throughout the Nation.
Puerto Rico has also been a victim of the terrorist violence.
Some have attempted to characterize the terrorists as
freedom fighters. Nothing could be further from the truth. The
fact that we are disenfranchised and lack representation is as
much our fault as it is the fault of Congress. This House tried
to start a process to put an end to the colonial relationship
by authorizing a referendum with a commitment to act on the
results, but the Senate refused to act on it. The people of
Puerto Rico unfortunately gave their consent to the colonial
relationship and voted to accept it in 1952, calling the
territory a commonwealth. Although this relationship called
commonwealth has now been rejected by a majority of voters in
1993 and in 1998 referendums, there has been no majority for a
definite solution. Regrettably this relationship of inequality
and lack of participation in the democratic system, this
disenfranchisement provides cover for terrorists in the rest of
the world who see us as the last American colony with more than
1 million people.
And I wish to leave you with a thought: that the real
freedom fighters are the 197,000 Puerto Rican Americans who
served the United States in the defense of democracy in times
of war during this century. The real freedom fighters are the
nearly 150,000 Puerto Rican Americans who have served and the
thousands who continue to serve the Nation in times of peace.
Mr. Burton. Do any Members have any questions of Mr.
Romero-Barcelo? If not, do you have a question? Mr. Davis.
Mr. Davis of Illinois. Thank you very much, Mr. Chairman.
Let me also first of all express my empathy and concern for
those whose families and they themselves have been directly
affected by the actions and activities of the FALN.
Representative Romero-Barcelo, my question is do you think it
is possible to separate the actions of individuals from the
actions of a group that they may be a part of?
Mr. Romero-Barcelo. It depends on what kind of a group and
what that group's policy is and whether the individuals are
aware of the acts of the group or not. In this case, there is
no doubt that the individuals were part of the group. They have
acknowledged it themselves. They have also--there is no doubt
that they knew of the facts that were being committed by those
groups, because it was they themselves claimed to have
committed the acts. So, therefore, they knew what was happening
and they continued to be members of the group; so therefore,
yes, we cannot disassociate them from the acts of the group
because they are accomplices. The
only thing is, as I explained, at this point in time they could
not be charged as accomplices for murdering or hurting anyone
by the Federal Government because those were not Federal crimes
but they knew that was happening and they not only knew about
it, they applauded it, they stole money for it, they prepared
for it. They had the bombs stashed away and other munitions
stashed away for other acts.
Some of these members were caught with a warehouse of bombs
and other explosives. So I don't think that you can
disassociate them from these acts. It is not the same as when
somebody belongs to an organization and somebody else does
something over which they have no control or they don't even
know about.
Mr. Davis of Illinois. We continue to hear different
representations in terms of those who suggest that the
individuals in question were involved in some direct activity
and others who suggest that there is no proof that the
individuals were involved in any action or activity where
violence was direct.
Do you, in terms of your understanding of them, were they,
to the best of your knowledge, instances where they were
involved or were they, as you indicated a moment ago,
accomplices?
Mr. Romero-Barcelo. The accomplice is involved. The
accomplice is as guilty as the individual, as the main person.
When two or more people rob a bank, the one that is waiting for
them to rob outside in the car on the lookout is as much--has
as much guilt about the crime as the ones that are in there
with the guns and holding the people up to hold up the bank.
I think this is what we learn in law, that in most
jurisdictions the accomplices are as guilty of the crime as the
principal.
Mr. Davis of Illinois. And so your position is whether they
were directly or not, they still were part and would have been
just as guilty and, therefore, your position is that the
sentencing was warranted in terms of the length of time that
they were given?
Mr. Romero-Barcelo. I think even their attitude in the
trial demonstrates that they were aware. Most of them refused
to defend themselves and they allege that they were prisoners
of war because they were in a state of war against the United
States. So how much more of an acceptance of the facts, of
acceptance of their violent acts can you have than that
statement? When they say that they are in a state of war
against the United States and that they refuse to defend
themselves because they are not citizens, they are prisoners of
war?
So some of them even threatened the judges and said that
they did not kill the judge because they had their hands
cuffed, otherwise they would get up and choke him right there.
Mr. Davis of Illinois. Thank you very much. I have no
further questions. Mr. Chairman, I wanted to say to Mr. Waxman
that I really appreciated his reading the President's letter,
because I think that the letter further revealed the careful
consideration that this matter was given. And I happen to be
one who agreed with the President in terms of viewing this as
an opportunity to look at perhaps even some different
approaches to the way that we look at democracy, and that
rather than just thinking in terms of punishment, rather than
just thinking in terms of how harsh we could be, but could we
look at it as an opportunity to reconcile, to experience the
act and movement toward the act of healing and being in
agreement with former President Jimmy Carter, to be in
agreement with Coretta Scott King, to be in agreement with
Bishop Tutu, who obviously has seen much horror, much
difficulty, but yet understands that democracy can be
fellowship as well as punishment.
And so I thank you very much for your testimony and I yield
back the balance of my time.
Mr. Burton. I am going to yield to Mr. Horn. I am just
going to take a minute of my 5 minutes, and then I will yield
to Mr. Horn.
We live in a different age than I think any previous
American has ever lived in. There have been killings, we have
had Presidents assassinated and we have had a lot of problems
like that but we have not had serious acts of terrorism take
place like those we have seen in recent years. The Oklahoma
City bombing hurt everybody in America. Everybody in this
country felt for those kids that were carried out of that
nursery there in pieces.
Everybody was concerned and felt terrible about the tragedy
that occurred at the World Trade Center. People were killed.
People who were granted clemency by the President, especially
Juan Segarra-Palmer, who was involved in killing two sailors,
shooting up a bus with machine guns on unarmed sailors, killed
two of them and wounded nine, that is another act of terrorism.
And I really and truly believe that the American people believe
the time has come for us to put those people away and not let
them back out on the streets.
Granted, the President has the right under the Constitution
to grant clemency to these people. But when you see buildings
being blown up in New York and Oklahoma City and you see all
these little kids coming out maimed or killed, you say
shouldn't they be kept off the streets, these people? And I ask
the question today, should we start thinking about clemency for
the people that did that horrible thing at Oklahoma City or the
World Trade Center? Because if you follow the logic that I am
hearing, you know, you probably ought to consider that. I mean,
this Mr. Segarra-Palmer, who was pardoned was involved in
murdering two American sailors. They are dead just like the
people at the World Trade Center in Oklahoma City, and my
question is, you know, when do you start keeping these people
off the streets?
I yield the balance of my time to Mr. Horn.
Mr. Horn. Thank you very much, Mr. Chairman. I think the
President obviously could do that, we all know, under the
Constitution. I think he made a mistake when he is delivering
people out to society that have a violent record. I had contact
with the Puerto Rican independence movement in the mid-1970's
when I was vice chairman of the United States Commission on
Civil Rights. We went to New York to look at the schooling for
Puerto Ricans, black students, white students in New York. The
independence movement was very active. They came, demonstrated,
raised cain, and I have a picture in the archives of a chair
coming right for us. That person should have been in the
Olympics, and three of the six commissioners were university
presidents so we were sort of used to that anyway. We just
ducked.
This movement is frankly counterproductive. Personally I
think Puerto Rico ought to be independent. I think we had
common sense when we put into the Philippine compact that they
would be free in 1946. We did not know about a world war or
anything else. But when 1946 came, the Philippines was
independent, and that should have happened to some of the other
acquisitions of the Spanish American War. And I think their
violence is just slowing down what makes sense, which is have
Puerto Rico be its own country.
Thank you, Mr. Chairman.
Mr. Burton. Does anybody else have questions? I yield to
the gentlewoman.
Mrs. Biggert. Thank you, Mr. Chairman.
I think that a grave concern that we have had is that the
President's decision to grant clemency has really set a
precedent. And we don't know where that's going to go and what
kind of message we're sending to terrorists and criminals both
here and abroad, and I think it calls into question the United
States' resolve to wage an unyielding war on terrorism.
So my question to you is, is the FALN still active in
Puerto Rico and will the release of these people cause a
resurgence, whether it be by peaceful measures or by violent
measures, even though they are supposed not to be involved in
this at all? Since only 2.5 percent of the people, granted, or
one in two voted for independence, is the FALN still active?
Mr. Romero-Barcelo. As far as we know, there have only
been--there have been two acts that were committed this past
year that were allegedly claimed to have been committed by the
FALN Los Macheteros. One was, in an aqueduct under construction
to bring water into the metropolitan area from one area of the
island to the other, and there was something that blew up or
something in the project; they claimed they had done it. And
then there was another one that was, a bomb that exploded in
front of some other building.
These are the only two incidents that have happened since
1983. One of those two incidents, the organization said that
they did not--whoever claimed it on their behalf was lying
because they didn't do that. But one of them has remained--is
being claimed by them. Outside of that, there has been no other
activity.
I guess the hope is that the people, the amount of time
that they did serve is sufficient to make them reconsider and
that they--their commitment to renounce violence is sincere.
Whether it will be or not, I have no way of knowing. All we can
do is hope that they're sincere when they signed the statement
renouncing violence.
Mrs. Biggert. You don't think they will make other members
want to get reinvolved, or kind of stoke up----
Mr. Romero-Barcelo. I'm sure there will be some persons who
would like to get them reinvolved. There are still a couple
of--one of the big leaders is in Cuba. He's being hunted. He
hasn't been arrested. He escaped. He was in New York in a
hospital; he escaped from a hospital and he went to Cuba.
Then there's another one that is still treated at large.
I'm sure they would probably like to get them back involved,
but whether they will or not, there's no way we can know until
it happens. At least by being under probation, they are--they
can be put back with the mere suspicion that, given their
activities, they are involved. They don't have to have a trial
to prove that they're guilty. They just have to pull them back
in if there's any danger.
Mr. Burton. My time has expired.
Mrs. Mink, did you have any questions?
Mrs. Mink. No. Thank you.
Mr. Burton. Mr. Ose.
Mr. Ose. Thank you, Mr. Chairman. A couple of questions if
I might. Before I proceed, with great respect to my friend, Mr.
Davis of Chicago, I want to completely disassociate myself from
his remarks of a few moments ago relative to the consequence of
this kind of behavior.
Mr. Romero-Barcelo, do you know of anyone who requested
that the President grant this clemency?
Mr. Romero-Barcelo. Requested the President?
Mr. Ose. Yes.
Mr. Romero-Barcelo. I think the whole movement was begun
and put together by a Member of Congress.
Mr. Ose. Who was that?
Mr. Romero-Barcelo. Luis Gutierrez from Chicago.
Mr. Ose. Have there been other Members of Congress----
Mr. Romero-Barcelo. Who supported that? Nydia Velazquez
from New York has supported it, and I think Jose Serrano has
supported their unconditional release. They have been
supporters of the unconditional release.
Mr. Ose. The President's letter talks about an ongoing
effort over the last 6 years from various Members of Congress,
religious and civic leaders, as well as others, urging him to
grant clemency. I understand the process prisoners have is to
request clemency.
Mr. Romero-Barcelo. That's what I thought. They told me
that not necessarily--that the lawyers, for instance, can do it
on their behalf and others can do it on their behalf as has
been done in other cases. I don't know. That's what I've been
told. I thought the same way as what you just said.
Let me tell you one thing. The people of Puerto Rico were
totally misled by the information. In the first place, all of
the press of Puerto Rico always refer to them as political
prisoners. I was always careful to say, when they ask me about
the political prisoners, I say, ``who are you talking about?
They are not political prisoners. There are politicians in
prisons, but I don't know of political prisoners in our
system.'' I would also say that political prisoner implies that
they're prisoners of conscience. And these are not prisoners of
conscience. They're prisoners because they have committed
felonies.
But the press always calls them ``political prisoners,''
everybody calls them ``political prisoners.'' The information
that they gave, that these people had never been involved in
the commission of a serious act. And the people of Puerto Rico
are very compassionate, very compassionate; and they felt that,
well, they had been in long enough. They were always--everyone
was told that these people have served more than anybody else
for crimes similar or even for worse crimes than they had
committed.
People are very sympathetic. They joined the movement to
ask for unconditional release. And there was no voice out
there. No voice out there saying no. I was the only voice
saying to the President, look, if you are going to consider any
clemency, it has to be restricted. They have to ask for it.
They have to at least renounce violence as a means for
obtaining their release and they have to be under supervision.
They have to be under probation.
There was no--everybody else was asking for unconditional
release except the Governor, who said they should be treated
individually.
Mr. Ose. If I understand correctly, at least on the
surface, it appears perhaps some of these prisoners didn't even
ask for clemency. The President, for whatever reason, may have
gone and offered it.
Mr. Romero-Barcelo. That's why the offer says that they
must ask for it and they must sign a request for clemency.
Mr. Ose. So in effect, you can have clemency if you ask for
it?
Mr. Romero-Barcelo. That's right.
Mr. Ose. Is that a negotiation?
Mr. Romero-Barcelo. I don't know if there were negotiations
directly with the President or not. I think it was just
requested.
Mr. Ose. Would you consider that approach to be a
negotiating approach? If you say this, we'll do that? That
reminds me of doing business. Negotiating.
Mr. Romero-Barcelo. I don't think it's negotiation. The
President said, here, you can be released provided you do this.
I don't think there was any negotiation. There was just a
condition imposed on the release.
Mr. Ose. The other question I want to come back to is,
besides Members of Congress and the folks that you're familiar
with in Puerto Rico, are there others that you--and the reason
I ask this question is we can't get the information, for
instance, from the administration. Are there others who have
urged him to grant clemency, that you know of?
Mr. Romero-Barcelo. They have been mentioning it here
today: President Carter; Bishop Desmond Tutu; Coretta Scott
King; the Archbishop in Puerto Rico; a lot of the churches in
Puerto Rico; all the Protestant churches; churches here in the
mainland; civic groups here in the mainland and churches in
Chicago area, the New York area. This was, at least in our
press and some of the local press in New York and Chicago, this
was there but nobody raised a voice or opposed it. Nobody was
opposing the request for the unconditional release.
Mr. Ose. If that were the case, if all the information was
proclemency, why wouldn't we be able to get that information
out of the administration? Why wouldn't they release those
documents to us?
Mr. Romero-Barcelo. I don't know.
Mr. Ose. Thank you, Mr. Chairman. I yield back.
Mr. Waxman. Would the gentleman just yield to me?
Mr. Ose. Certainly. I always yield to my good friend.
Mr. Waxman. Thank you.
Just to clarify for the record, I speak as someone who is
not for or against what the President did; I'm still listening
to the arguments. But the administration did submit 10,000
pages of documents, including a list--and I'll give it to the
chairman to make part of the record--of Members of Congress and
some others that requested clemency. As I pointed out--the
release, as well--information about people who rejected
clemency, like Mr. Freeh from the FBI. You asked the question
and I just thought you ought to know we did get some of that
information available to us.
Mr. Ose. I thank my friend.
Mr. Waxman. Thank you.
Mr. Burton. I think we ought to clarify one thing. I went
through those documents with my staff. Almost all of them were
just postcards, notes, and form letters that were sent into the
administration, asking for clemency, from a whole host of
people in Puerto Rico, but there was not really much
information there.
Thank you, Mr. Romero-Barcelo. I do not think anyone else
has any questions.
Our next panel is our good friend and colleague, Vito
Fossella of New York, who will be introducing Diana Berger
Ettenson, Thomas Connor, Detective Richard Pastorella and
Detective Anthony Senft. Would you all come forward, please.
If you all would remain standing. I know you are going to
be very forthright, but as a matter of course, since we are
going to have people from the executive branch here, we would
like for you to stand and raise your right hands.
[Witnesses sworn.]
Mr. Burton. Mr. Fossella, Congressman Fossella, sir.
STATEMENT OF HON. VITO FOSSELLA, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW YORK
Mr. Fossella. Chairman Burton, Ranking Member Waxman and
distinguished ladies and gentlemen, thank you for the
opportunity to appear before you this morning and to testify at
today's hearing, entitled, ``Clemency for the FALN: A Flawed
Decision?''
For the past month, I along with others, especially the
victims of FALN activities have been waging a battle to bring
public pressure on the White House to rescind the President's
offer of clemency to 16 terrorists, each of whom played an
integral role in the FALN terrorist organization. Despite an
overwhelming outpouring of support against the White House
sweetheart deal and despite the unanimous and staunch
opposition as so reported of virtually every Federal law
enforcement organization, this clemency offer unilaterally
reversed America's long-standing policy of neither negotiating
nor sympathizing with terrorists.
There are many reasons why we undertook this uphill battle,
not the least of which was that I feared the release of these
individuals would send the wrong message to terrorists who have
a bull's-eye on American cities. Today, sadly, I must report
that the message has been heard loud and clear. It appears that
terrorists who have long been asleep have recently been
awakened.
Last week--I don't think this has been reported here--the
leader of Los Macheteros--Congressman Romero-Barcelo alluded to
them--a ruthless terrorist organization that claimed
responsibility for bombings and other acts of violence, along
with the FALN, throughout the 1970's and 1980's emerged from a
decade of hiding to issue a new threat against the United
States, a potential terrorist plot aimed squarely at our Nation
and our people.
In his statement, Filiberto Ojeda Rios told WPAB, a Puerto
Rican radio station, ``If they, the United States Navy, start
bombing Vieques again and they threaten the island's population
or those carrying out acts of civil disobedience, they will
have to face the consequences because Los Macheteros will not
remain with their arms crossed, you can be sure of that.''
He added that Puerto Rico should take full advantage of
``this historic moment'' and battle against the ``revolutionary
offenses'' being developed by the U.S. Government, the FBI,
Resident Commissioner Carlos Romero-Barcelo and others.
Is it any surprise that just days after these terrorists
have been released that America's received this new threat of
violence? Is it any surprise that the terrorist issuing the
threat was associated with members of the FALN, four of whom,
by the way, are also affiliated with the Los Macheteros group?
I'm deeply concerned that the release of these terrorists
has reignited the flame that burns in the hearts of terrorists
who kill without conscience and describe men, women, and little
children as casualties of their twisted war. Our Nation cannot
have a zero tolerance policy toward terrorism when we are
willing to allow terrorists to walk out of jail free.
The White House defends this sweetheart deal by claiming
the terrorists let back onto America's streets were not the
same terrorists who proudly claim responsibility for more than
130 bombings during the 1970's and 1980's. Never mind that
several of the terrorists released were captured on videotape
making bombs, as you pointed out. Never mind that the self-
proclaimed ringleader of this terrorist circus, who is now in
exile in Cuba, declared that the FALN operated under a
collective form of leadership. Never mind, since these
terrorists have been locked behind bars, not one bomb has
exploded nor has one single American has been killed by the
FALN, at least as far as I know--and that addresses, I believe,
Mrs. Biggert's comment before about, have there been any
terrorist activities? No, because they've been behind bars.
The fact is that these individuals knowingly stepped aboard
a train of terrorism, and as a result, should take full
responsibility and be held accountable for all FALN violence,
at least to the full extent of the law.
The nightmare of this notorious terrorist network goes back
many years. On January 24, 1975, the FALN bombed the historic
Fraunces Tavern in downtown Manhattan. This cowardly attack
killed 4 and wounded over 40, all of them innocent people who
were just enjoying a Friday afternoon lunch at one of New York
City's most famous and popular restaurants. In a note found
near the scene of the crime, the FALN took responsibility for
the bombing and stated in part,
We, the FALN armed forces of the Puerto Rican nation take
full responsibility for the especially detonated bomb that
exploded at Fraunces Tavern with reactionary corporate
executives inside. In our communique number 2, we warned the
North American government that to terrorize and kill our people
would mean retaliation by us. This was by no means an empty
warning.
I underscore and let me emphasize the word ``we'' in that
communique; ``they'' took full responsibility for the bombing,
not ``I.'' I believe that underscores the collective
responsibility of the FALN.
Over the next 9 years, the FALN systematically sought to
spread fear and terror throughout our Nation. They planned and
executed one devastating bomb after another, peaking with their
most symbolic and vicious attack on New Year's Eve in 1982 by
striking at the heart of the rule of law, New York City Police
Headquarters and the Federal building which houses the New York
City headquarters of the FBI.
On that night, the lives of many people were changed
forever, none more so than the three men who, over the past 4
weeks, I've come to regard as true heroes, not the so-called
heroes that will be celebrating elsewhere, and his good
friends. Detective Richard Pastorella lost sight in both eyes,
all his fingers on his right hand, has 20 titanium screws
holding his face together, and has undergone 13 major painful
operations on his face alone.
His partner, Detective Anthony Senft, lost an eye, is
partially deaf and has endured several separations on his hip
and other areas of his body.
Their fellow police officer, Rocco Pascarella, lost his
right leg and sustained a host of other injuries, including the
partial loss of hearing.
On behalf of these brave men and so many others like those
with me here today, Thomas Connor and Diana Berger, who both
lost loved ones in the Fraunces Tavern bombing, we took on this
cause in the hope the White House would rescind the offer of
clemency after, and I repeat ``after,'' the terrorists rejected
the original offer.
We also thought that the U.S. Congress could speak for
those who could not. The innocent people who died at the hands
of the FALN, the dozens who were injured and maimed, and all
those who were ignored and brushed aside by this
administration. We have given a voice to every American who is
horrified and disgusted.
I believe that these terrorists have been granted life's
most precious commodities--freedom, liberty, and independence--
despite the fact that they took those same commodities away
from innocent people. We took on this cause to try and prevent
the travesty of justice from occurring and to avoid sending a
signal of weakness to terrorists.
By reviewing a request for clemency reportedly outside
normal Department of Justice guidelines and granting clemency
to dangerous terrorists, and then to place seemingly lenient
conditions on their release is to undermine U.S. policy and the
very foundation upon which this great Nation was built. To
undermine that policy is to make the United States vulnerable
to future terrorist attacks.
That's not just my opinion, Mr. Chairman; an overwhelming
majority in the House and 95 U.S. Senators, Democrats and
Republicans, consider ``making concessions to terrorists is a
deplorable act'' and that ``the President should not have
granted clemency to the FALN terrorists.''
One of the more egregious aspects of this clemency offer is
that for years the victims of FALN violence have been trying to
sit down with the Justice Department staff to present their
side of the story. Some victims did not even get the courtesy
of a phone call that the terrorists were going to be released.
Meanwhile, advocates for the terrorists have had the
opportunity to meet with the Department of Justice officials,
along with folks from the White House, regularly. It would have
been nice and appropriate and the right thing to do to extend
the same level of courtesy to these victims. They are the
individuals who have been suffering all these years.
Some now argue, let's get this clemency behind us. I say,
not so fast. Someone at the Justice Department or the White
House still owes these victims and the United States, I
believe, a public explanation as to why these terrorists were
set free. In effect, the victims have been told to live with
it, and it's none of their business.
We have an obligation to demonstrate whether there was a
new threat posed by these terrorists. It has been reported that
the Bureau of Prisons tapes exist, proving that the terrorists
will engage in violence once they are released from prison. Is
this the case? Is this true? Do these tapes exist?
The FBI has threat assessments on various terrorist
organizations, and should we now be concerned about the threat
of the FALN terrorists to our Nation? Should law enforcement
agencies, which thought the FALN was a dead issue and was put
to bed, now have to track these individuals, depleting valuable
resources to combat crime and terrorism?
What are the conditions of the clemency? Are they allowed
to meet with one another? According to the Parole Commission,
these individuals are not permitted to associate with each
other. There are reports, however, that these terrorists will
be participating in a rally in Puerto Rico this week. Were we
lied to? Will they be monitored? Will they be allowed to speak
to one another? Is the administration willing to enforce the
conditions of clemency? Will the terrorists be sent back to
prison if they violate the terms of clemency?
We cannot turn back the clock and undo the damage that's
been done here, Mr. Chairman. But we can and we must
investigate this matter deeply to learn why the White House
chose again, as has been reported, to ignore the unanimous
recommendation of law enforcement agencies, to keep these
terrorists where they belong, behind bars in Federal prison.
The 16 terrorists demonstrated no contrition for their
actions, nor remorse for their reign of terror. They belong in
prison and they should serve every last day of their jail
sentence. America must show no sympathy for those who commit
acts of terrorism on American soil.
As I pointed to in the past, there is this argument they
were nowhere near the bomb scene. Well, let's just turn the
clock back several years and think of the Oklahoma City bombing
tragedy. Terry Nichols was nowhere near the bomb scene, and he
was rightly sentenced to suffer in prison because he allowed so
many other people to suffer. Could you imagine the outrage
across this country if in 10 or 15 years the then-President of
the United States steps forward and gives Terry Nichols
clemency because he was nowhere near the bomb scene? There
would be justified outrage.
Mr. Chairman, I want to thank you for your indulgence in
allowing me to go beyond the normal 5 minutes, and I would like
to introduce some of the human faces affected by the FALN
violence, and I trust their experiences and views will
demonstrate how grave an issue this truly is.
I thank you again, Mr. Chairman, and members of the
committee.
[The prepared statement of Mr. Fossella follows:]
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Mr. Burton. Thank you, Mr. Fossella. If you would like, you
can introduce Ms. Berger first and then we will go right down
the line with the others.
Mr. Fossella. Mr. Chairman, it's my honor to introduce Mrs.
Diana Berger Ettenson, whose husband again suffered what is
probably the most fearful thing any family can suffer. Her
husband left work one morning, attended a lunch, and never
returned. He was killed in the Fraunces Tavern bombing.
STATEMENTS OF DIANA BERGER ETTENSON; THOMAS CONNOR; DETECTIVE
RICHARD PASTORELLA, RETIRED, NEW YORK CITY POLICE DEPARTMENT;
AND DETECTIVE ANTHONY SENFT, RETIRED, NEW YORK CITY POLICE
DEPARTMENT
Ms. Ettenson. My name is Diana Berger Ettenson. On January
24, 1975, the FALN, a Puerto Rican terrorist group, placed a
bomb in Fraunces Tavern, a historic site in New York City. That
bomb exploded at the height of the lunch hour. Four people were
killed and over 60 were injured in the blast. One of those
killed was my husband, Alejandro, A-L-E-J-A-N-D-R-O, Alex
Berger, who was attending a business lunch. I was 6 months
pregnant at the time. Alex was an only child, whose parents had
just moved to the United States to be close to us.
On the day of the bombing, I was driving to New York to
meet Alex and his parents. I heard the news of the blast on my
car radio. The news reported that a group known as the FALN had
claimed responsibility for the bombing. I had never heard of
this group before. However, this group has haunted me to this
day. I had to tell Cecelia and Joseph Berger that their only
child had been murdered. I do not think I have to tell you in
detail what this act of terror did to my family and friends.
I want to make it perfectly clear that I am not here today
for any political reasons. I am here to express my outrage over
President Clinton's release of the FALN terrorists.
Let us make no mistake about the criminals who were
released. Contrary to what their supporters and the White House
have suggested, they were not in prison merely because of guilt
by association. They were proud and fervent members of a group
which sought independence for Puerto Rico by carrying on a
reign of terror in the United States. The people that the
President released were fully cognizant of all aspects of the
FALN's goals and means of achieving them. They were convicted
of crimes that helped facilitate the terror of the FALN and
some were actually involved in bombmaking. They have never
denied their participation and responsibility.
I refuse to be insulted by those who say that these people
were never proven to have caused bodily harm. They were
captured before more innocent lives were lost. Acts of random
terrorism ceased after these people were imprisoned. The FALN,
including those just released, were responsible for the killing
and maiming of innocent people whom they conveniently describe
as ``victims of war.'' The prison sentences they received were
commensurate with their deeds.
Mr. Chairman, I have heard that the terrorists have
renounced violence. I have heard that we should have peace and
reconciliation. What I have not heard, however, is one ounce of
remorse from any of those released. They have no remorse. One
terrorist even proudly proclaimed that he is not sorry for
anything that he did in the past. Two members of the FALN
refused to renounce violence and, fortunately, still remain in
prison. Are these the people who deserve clemency from the
President?
Upon their release, their supporters have hailed them as
political prisoners and freedom fighters. Mr. Chairman, how do
you think I and other victims feel when we have to listen to
this?
Mr. Chairman, the victims of this outrageous act of
clemency need the help of you and your committee, Democrats and
Republicans. President Clinton must provide a comprehensive
explanation for his actions and not merely say that it was the
just thing to do and that they were punished enough. The
victims continue to be punished each and every day.
Why was clemency granted to 16 violent criminals who show
no remorse for their conduct when the President has utilized
his extraordinary power on only three prior occasions, each
involving minor infractions, despite over 3,000 requests? Where
is the sense of proportion? What documents did the President
analyze in making his decision? Why does the White House refuse
to release these documents? What is being hidden?
Why was this decision made in the face of opposition from
the FBI, the Bureau of Prisons and U.S. attorneys? Why was the
Department of Justice silent on the matter? What was the role
of Charles Ruff and what promises did he make? Why couldn't the
White House notify the victims and their families?
It has recently come to my attention that the freed
prisoners are reuniting with the consent of their probation
officer. Has this consent been given, and if so, why?
The American people and the victims of FALN violence demand
answers to these questions.
Mr. Chairman and committee members, thank you for your time
and attention to this important matter.
[The prepared statement of Ms. Ettenson follows:]
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Mr. Burton. Thank you, Ms. Berger, for that very eloquent
testimony.
Mr. Fossella.
Mr. Fossella. Mr. Chairman, in 1975--I mentioned the
Fraunces Tavern bombing--there were two boys home with their
mother, Thomas Connor, who was 11, and his brother, Joseph, who
were about to celebrate Joseph's 19th birthday when they got
the call that their father would not be returning home. He was
in the restaurant with Mrs. Berger's husband.
Mr. Connor. I'm Tom Connor. We all live in the United
States, the greatest country on Earth, a Nation of laws. And we
live in an age following the fall of communism when the country
is at peace. It's a time when American-style democracy is
flourishing across the world and our enemies are few.
Therefore, right here and right now, Americans should feel as
safe from the horrors of world war as we ever have in the past
100 years. Americans should be able to go about their daily
lives feeling safe and secure. But we can't, and we can't
because on the eve of the next century, the threat of global
terrorism is greater than it has ever been.
In the United States, a country that has never really
suffered from terrorism up until 25 years ago, that threat is
tremendous. The World Trade Center bombing and the Oklahoma
City catastrophe are just the latest examples, but more are
sure to follow. And right now when the United States should be
leading the world in fighting terrorism, the President decides
to offer clemency to 16 members of one of the most violent
organizations ever to wage war against the U.S. Government from
within our own borders.
He claims these people are nonviolent, but three of them
were arrested while building bombs and another eight were
arrested in a van full of weapons on their way to commit armed
robbery. Does that sound nonviolent to you?
After being captured, they spoke proudly of their actions
and during their trials, they threatened the judge and
prosecutors. Does that sound nonviolent to you?
There never was a pacifist wing of FALN and not one member
has ever expressed remorse. The 14 who eventually accepted the
President's offer took over 3 weeks to formally renounce
violence. Do these sound like people who deserve clemency to
you?
Their release was unanimously opposed by the FBI, the
Bureau of Prisons, and the U.S. Attorneys office. They were
taped in prison discussing a return to violence after their
release. Again, do these sound like the people who deserve
clemency to you?
The Founding Fathers gave the President the power to
pardon, not subject to congressional approval. In the
Federalist Papers, Alexander Hamilton stated that this power
would not be abused lest the President be thought conniving.
Mr. Hamilton obviously never envisioned President Clinton.
By offering this clemency, the President has endangered
America. His action renders void the judgment of the juries and
Federal judges who impose long prison sentences on these
violent felons because they knew the facts and they understood
the terrorists' motives. His explanation of why this action was
taken is not only weak, but it insults the intelligence of the
American people who obviously know it was done for political
purposes. His action is an affront to me, to my family, and all
those whose lives were forever harmed by the FALN's
indiscriminate violence. Finally, he, perhaps in violation of
the law, didn't even have the decency to inform the victims of
these terrorists' release. We found out by reading about it in
the newspaper.
But now they're free; they've been released onto our
streets and into our cities. I pray that their violent ways
have ended, but Americans should not have to be reliant upon my
prayers. Terrorists of any nationality should never be granted
clemency if this country is to be serious in their thoughts
about opposing terrorism.
The next indiscriminate bombing in this country will
probably not kill me or anyone else in my family, but it may
harm someone that you all know or love. And whenever that
happens and whoever is the bombmaker, I, unlike the President,
will feel the pain of the victims, and he will be partially
responsible for it.
I ask you to continue to investigate this clemency matter
to determine why it was done over the objections of the
Nation's leading law enforcement agencies, to ascertain how the
process even began without the formal request of the terrorists
themselves, to understand how it is that representatives of a
terrorist group can be given time with Attorney General Janet
Reno while the victims are ignored and slighted, in possible
violation of the law.
Also, how is it that the President can write to Mr. Waxman,
but not have the decency to address anyone sitting at this
table? Gaining the answers to these questions cannot bring back
my father or repair 24 years of pain, but it can help to keep
other victims from having to suffer at the hands of terrorists,
as mine has.
Thank you.
[The prepared statement of Mr. Connor follows:]
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Mr. Fossella. Mr. Chairman.
Mr. Burton. Mr. Fossella.
Mr. Fossella. I just want to reference the letter addressed
to Congressman Waxman.
One paragraph says that President Carter's support was
particularly noteworthy because he commuted to time served the
sentences of Puerto Rican nationalists who were convicted for
the 1954 attack. Several years later, another group of Puerto
Rican nationalists blew up buildings in downtown Manhattan, and
two of the victims are here today.
Detective Richard Pastorella, who was responding to a bomb
threat December 31, 1982.
Mr. Burton. Mr. Pastorella.
Mr. Pastorella. Mr. Chairman, distinguished members of the
committee, I am Detective Richard Pastorella, retired, from the
New York City Police Department bomb squad. I do not have a
prepared speech for you this morning; I speak only from my
heart.
I also take issue with the President's decision to grant
clemency to this terrorist organization and group. Each of
these people, when they joined the FALN, knew full well what
the manifesto of that organization was, namely, the violent
overthrow of the American Government.
These terrorists claim that they speak for the Puerto Rican
people; I say here and now, they do not. My argument is not
with the Puerto Rican people as a whole. They are fine, decent,
law-abiding people that have contributed to the fabric of this
Nation and made it and continue to make it the great Nation
that it is today. I take issue also when I hear that Coretta
Scott King, Bishop Tutu and others have asked for the release
of this terrible group of people. I take issue because I'm not
certain exactly what their comments and statements were.
Not very long ago I was told that Cardinal O'Connor of the
Archdiocese of New York City also asked for the unconditional
release of these terrorists. That was not true and is not true.
Cardinal O'Connor has just in the past few days renounced that
statement and said that he had only asked for a review of their
release.
I remind Bishop Tutu that not very long ago on his shores
in Kenya and Nairobi, the American embassies that were blown up
by other terrorists where 12 American lives were lost and
hundreds of African nationals sacrificed their lives. Are they
to be forgotten?
I decided to come here this morning to speak to this
committee and to you, Mr. Chairman, to give a human face to
what terrorism truly is. Who, I ask you, is going to commute my
sentence? My body has healed, but my emotions will never heal.
I bear this cross for 17 years, and I will never be free of it.
My daughter-in-law is Puerto Rican. I have two granddaughters
that have Puerto Rican heritage, and I am proud of them, but I
have never seen them. Please excuse me.
When my granddaughters present me with crayon drawings and
are pleased to show them to me, I have to pretend that I can
see them and enjoy their effort. When they ask me to go outside
and play ball with them, I cannot. I don't have the fingers to
hold the ball. I can't even see it coming. I have sacrificed my
pride, my dignity, and will never be free. Yet these terrorists
are free to roam our streets here in America.
I've been told also that they have served an inordinate
number of years behind bars unjustly. Congressman Fossella,
Mrs. Berger, Tom Connor have mentioned Terry Nichols. He wasn't
there at the bombing in Oklahoma City at the Alfred P. Murrah
Building, but he was complicit. He did plan that destruction.
He did assist in the manufacture of that weapon.
Let us take this a step further to total absurdity. Should
we consider the freedom of Charles Manson? He's been in prison
for 28 years and is now over 64 years old. He wasn't there at
the time when the LoBiancos were stabbed to death or when
Sharon Tate was killed. Should we consider his freedom, his
human rights? What of our human rights?
We here today speak for those that have been killed and
injured in the past, who cannot speak for themselves. Have we
forgotten the 168 lives lost in Oklahoma City--men, women, and
innocent children? I ask those of you here present in this
committee and in this room to look at us carefully. You should
be seeing the mirror image of members of your own families. I
wonder--I wonder how readily would you step forward to defend
this President and his hypocrisy if your family members were
seated at this table, if your grandchildren were blinded and
had their limbs blown from their bodies. I wonder, Mr. Waxman,
if you'd be there to defend the President and his choice of
clemency. You should be ashamed of yourselves.
If I have made you uncomfortable this morning, so be it.
You should be uncomfortable. I will never be free. My partner
and his family will never be free. Rocco Pastorella and his
family will never be free till our Heavenly Father takes us
home; then and only then will we be free.
Don't let our suffering and pain be for naught. Don't let
the lives sacrificed at Oklahoma City and the World Trade
Center in New York be forgotten. Why were those lives
sacrificed? To what purpose? For a headline? To bring notice to
a political cause? Have any of those lives sacrificed and
maimed furthered any of those causes one iota, one inch? No,
not at all, and yet we continue to suffer daily. Who thinks of
us, who here remembers? Very few. Certainly not Mr. Clinton.
What part did Charlie Ruff play in this? I wonder. Was this
a quid pro quo for his legal services in defending the
President with the Monica Lewinsky debacle where America
yawned, where everyone just nudged--nudged, wink, wink, say no
more?
Well, this is a totally different issue. This is where
American lives and American blood has been shed here on our
shores. I urge every one of you, I urge you, Mr. Chairman,
don't let us down. Investigate this to the full. What is
William Jefferson Clinton hiding and why?
I thank you, each and every one. My apologies if I have
made you uncomfortable, but I have to make my point the only
way I can. I am privileged to speak here to exercise my right
under the first amendment. The members of the FALN had that
very same right and I don't disagree with that as long as it
doesn't impinge on the rights and safety of others. Why, why
have they chosen the bomb and the bullet when they had the
civilized choice and more traditional choice of the power of
the pen.
Here, here in this wonderful government of ours we exercise
freedoms daily. We live in safety, yet we take that safety in
total complacency. No, there is a true danger lurking very
close to us all every minute of every day, and when the next
terrorist act occurs here at home upon us, Mr. Clinton will
have to assume some of that responsibility because he has now
set a new judicial standard. We can negotiate with terrorists
even though he stands up before the American public and says we
will never do so, we will pursue them to the ends of the Earth.
Our Secretary of State, Madeleine Albright, says we will
never forget the people who have lost their lives in Africa and
in our embassies throughout the world. Innocent children killed
and maimed on buses that were going by the building had nothing
to do with any political statement, yet their lives were drawn
into it as ours have been and to what purpose? For a 1-day
headline in the paper?
Is that all our lives mean? Are we expendable? I leave
these questions for you to have answered. We have voted you
into office to speak for us. Please do so.
Mr. Burton. Thank you, Mr. Pastorella. That was a very
eloquent statement. We appreciate the heartache you have had to
endure.
Mr. Fossella.
Mr. Fossella. Thank you, Mr. Chairman. His partner that
night, responding to a bomb threat, upon which they found Rocco
Pascarella, who had lost his leg.
It's my pleasure to introduce Detective Anthony Senft.
Mr. Senft. I wanted to address this directly to Mr. Waxman.
I just want to make a brief statement and read my formal
statement as quickly as I possibly can. But please bear with me
because I have one eye, but it's becoming more and more
impaired as I get older.
Contrary to his statement, Mr. Clinton's letter, both sides
were not heard. Since 1997, my wife and I have been writing
letters to our President. We've written four letters and one to
Janet Reno. We have never received a response. I was on a talk
show about 3 weeks ago with an activist called--her name is
Alice Cordova. We got into the elevator. She is a very
articulate lady. Like Rich's daughter-in-law, my daughter-in-
law is also Puerto Rican. I have a proud grandson and my son's
in-laws live in Puerto Rico and have no recollection of what
the FALN is doing in the United States or in their country.
When I got into this elevator and I spoke to this
articulate lady, she told me she had a sit-down interview with
Mrs. Reno, and I cannot get a letter answered by sending one to
her and four to my President. I am disgusted over that. I'm
appalled as I think back; I still think it's America, and I
still think that someone should have sent me some kind of
correspondence.
Members of the House, good afternoon. My name is Detective
Anthony Senft, and I thank you for letting me address you
today. I stand before you today not only as an American
citizen, but also as a victim of terrorism, like my partner, a
victim at the hands of the FALN. On December 31, 1982, while
working for the New York City Police Department as a detective
on the bomb squad, I was severely injured by one of five bombs
placed by the FALN while my partner and I attempted to render
it safe.
On that day I received a lifelong sentence without the
opportunity for parole, time off for good behavior, and no
chance of clemency. My sentence includes five reconstructive
operations on my face, the loss of my right eye--my left eye is
deteriorating as we speak--and a 60 percent hearing loss in
both ears, a fractured hip, severe vertigo, and the hell of a
post-traumatic stress disorder. My only solace was the fact
that 16 members of the FALN were serving prison sentences for
crimes committed against American citizens.
Now, 16 years later, American citizens and I are victims,
once again, as the result of the terrorist acts of the FALN and
the pandering of our President.
President Clinton by his clemency decision makes a mockery
of our Nation's policy of zero tolerance for terrorism. He
speaks out of both sides of his mouth as he denounces terrorist
McVeigh for his terrorist acts in Oklahoma and says publicly
immediately following the horrible terrorist act against
children in the Jewish Community Center in L.A. that America
will not accept terrorism. Yet he released 16 convicted
terrorists on that same day.
Was it because of political pressure from special interest
groups? We don't know.
Clinton's actions tell would-be terrorists around the world
that terrorism against the United States and its people is an
acceptable form of demonstrating their political ideology.
Terrorists need not fear the wrath of the American justice
system any longer, for all they need do after destroying
American property and lives is give a halfhearted, almost
forced, apology and all will be forgiven.
Congressmen, all is not forgiven. Terrorism against the
United States can never be an acceptable form of political
protest. President Clinton, by his clemency offer, released 16
terrorists back onto the streets of America to commit more acts
of terrorism against our families, your children, and my
children. Some of the released, convicted terrorists are the
same people who, while doctors worked feverishly to save my
life and while family members rushed to my bedside, went to the
radio and called the stations to claim responsibility for all
five bombs. This same terrorist group has proudly taken
responsibility for over 130 bombs in the United States and has
killed 6 innocent people, as you previously heard, and maimed
over 100 innocent victims; and now, again, they have put fear
into America across this country.
If this band of violent terrorists was so remorseful for
their horrific acts, then why did it take 3\1/2\ weeks for them
to agree not to--to admit any acts of terrorism on American
soil and sign a statement attesting to that? And how do we
trust convicted terrorists at this point?
This committee must ask itself why the President would
grant this clemency against the advice of law enforcement
organizations whose job it is to give recommendations on the
appropriateness of this clemency. Was it to gain favor for the
Puerto Rican vote in New York for Mrs. Clinton's senatorial
bid? Or was it simply another example of President Clinton's
lack of moral character?
What I'm concerned about is William Morales, the FALN self-
professed leader and convicted terrorist, seeking amnesty from
our President. We must take a strong stand and affirmative
stand against any amnesty for William Morales. Our duty as
police officers and elected officials is to protect our fellow
citizens against terrorists like Morales and the 16 terrorists
granted clemency. I have done my best to protect the lives of
my fellow New Yorkers and I have paid the price for that with
no regrets.
Now I ask that the Members of the House take a stand and
enforce our Nation's policy of zero tolerance for terrorists.
Our President has chosen to ignore that policy and the
recommendations of the bureaus that oversee clemency requests.
It is time for our Senate and our country to protect American
citizens against terrorists and to punish those convicted of
terrorizing our families and our Nation.
Congressmen, I thank you this afternoon and I just want to
say God bless America.
[The prepared statement of Mr. Senft follows:]
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Mr. Burton. Thank you.
I think now we will go to questioning. I will reserve my
questions until later.
Mr. Barr, would you like to start the questioning off?
Mr. Barr. I don't have any questions, Mr. Chairman.
I was very moved by both the eloquence and the heartfelt
sincerity of the witnesses today. I appreciate their service to
this country, their courage in coming forward and a special
thanks to our colleague, Mr. Fossella, for his tireless efforts
on this matter.
You serve your constituents and this entire country with
tremendous pride, Mr. Fossella. Thank you.
Mr. Burton. Mr. Waxman, do you have any comments or
questions?
Mr. Waxman. I'll reserve my time.
Mr. Burton. Mr. Davis.
Mr. Davis. No questions.
Mr. Burton. Mrs. Morella, do you have any questions or
comments?
Mrs. Morella. I certainly want to offer my condolences and
my prayers, my feeling for your courageous acts of patriotism
and what you have been through, the anguish to your families.
I don't really have any questions, but I wondered, did the
White House inform you of the clemency that was being offered
by President Clinton?
Mr. Senft. No, ma'am.
Mrs. Morella. You found out about it when you read it in
the paper?
Ms. Ettenson. I'd like to say, I have tried to keep in
touch with the New York Police Department for the past 24\1/2\
years to find out if there had been any changes in the case
regarding Fraunces Tavern. I was always told that it was in an
inactive file, so you can imagine my shock upon receiving a
phone call on Monday, August 23, to be told about an article in
the newspaper which was an interview in the New York Times of
Joe and Tom Connor, who had heard about the clemency or had
seen it in the paper.
I had been on vacation August 11 or 12 when it was, I
guess, slid through the papers. I was totally unaware that
anyone connected with the FALN had ever been arrested.
Mrs. Morella. Did the rest of you have the same kind of
experience?
Mr. Connor. I was well aware that there were several of
them in jail and under long prison terms. But last year on the
100th anniversary of Puerto Rico becoming a U.S. territory,
there was some discussion of this clemency becoming--it became
popular in Puerto Rico to discuss it as a gesture. But when it
didn't happen last year, we figured then that was the end of
it. So my family was shocked to read in the newspaper on the
11th, or I suppose the 12th, that the 16 had been offered the
clemency.
Mr. Senft. My position is, I just don't understand why I
can't get my White House and my Attorney General to answer any
letters--I've--I started this campaign in 1997 with my wife,
and they refuse to respond to it--when the activists can get a
sit-down meeting with Janet Reno.
Mr. Fossella. If I may, Congresswoman Morella, as I
mentioned, the testimony, I think reinforced by folks here, is
that some of the advocates for the release of these terrorists
have been meeting regularly with--I'm not sure about the
Attorney General herself, but I know at least the Deputy
Attorney General, and also with Mr. Quinn, who is the former
White House counsel. So advocates have had the opportunity over
the last several years to meet, I guess at a minimum, twice,
and who knows how many; and I know what I'm saying is, these
people have been asking for the same level of courtesy without
even a phone call or a letter back.
Mrs. Morella. I want to thank you for appearing before us.
I'm saddened at what you have experienced. I thank you for it,
for your courage. I'm sorry you have to go through it again at
this particular time.
And thank you, Congressman Fossella, for being there and
following so closely and for being close to these poor people
who have been victimized.
Thank you, Mr. Chairman. I yield back.
Mr. Burton. Thank you, Mrs. Morella.
Mr. Waxman.
Mr. Waxman. Thank you, Mr. Chairman.
I want to thank each and every one of you for being here
today, and I wish you'd had an opportunity to say what you said
to us today to the President. But I've always strongly felt,
and I understood the law was, that before a parole board would
parole anybody from prison that the victims had a right to come
in and testify.
I don't know why--and I asked my staff, and they don't know
the answer to this--why--after the President made his decision
to reduce the sentence, why the parole board didn't ask you to
come in and have a hearing on the matter. I think you've gone
through--all of you, through a great deal. Even to testify here
today had to be a hardship. You were scheduled last Thursday;
we were called off because of the hurricane. I think all of you
testified in the Senate.
By what you said today and the intensity of the feelings
that you have about this matter--I am moved by your intensity.
And I don't know all the arguments that the President had
heard, and he has not shared them all with us, but he indicated
to us today in this long letter, which I read, his thinking
about the matter; and I was struck by the argument that this
action would be a sign to the world of a humanitarian gesture.
And I was so offended.
This was something that he said former President Jimmy
Carter suggested.
I remember the days when I went to the Soviet Union to
plead for prisoners of conscience, and the Soviets would come
back and use these people from the FALN as political prisoners.
Each one of these individuals was convicted of serious crimes.
They were not political prisoners, even though they thought
they could break the law for their political point of view.
Mr. Pastorella was very eloquent in saying we have an
amendment to the Constitution that gives people the right to
petition their citizens and their government if they want to
change things, and we also heard from the delegate of Puerto
Rico that their views are not the majority views of their
fellow Puerto Ricans for independence.
In my mind they are in no way political prisoners. They
shouldn't have been thought of as political prisoners. They
were terrorists and criminals and convicted of it and sentenced
to prison appropriately.
The question the President had to decide was, on each
individual case, whether he would commute or lessen the
severity of the sentence for whatever reasons; and he argued
that the sentencing guidelines wouldn't provide for the length
of time that they were given consecutively to serve.
That decision and any decision about a person has to be on
an individual basis. Does the punishment fit the crime for that
individual? If we are talking about if people who participated
in the FALN and engaged in terrorist activities should be
treated alike, well, if they are going to be treated alike they
definitely should be locked up and kept locked up. There should
be no negotiations with terrorists, and it galls me when they
are talked about as political prisoners or anything in that
general category.
I was as appalled when I heard about the negotiation that
we had with the Iranians by the Reagan White House where we
exchanged weapons for hostages, and I had serious misgivings
when I heard about the negotiations where members of the so-
called Palestinian Liberation Organization were supposed to be
freed as political prisoners when many of them participated in
killings. And I am moved when I hear Mr. Fossella and others
say are we going to look back in a couple of years and say the
people from Oklahoma ought to be looked at with the idea of
giving them clemency. I don't care who in the world might want
to say that the people who bombed Oklahoma City may be viewed
as political terrorists--they were murderers. So I do not think
that we ought to view it in that general way.
What the President said he did was look at each case and
make his decision. I don't know that I would have come up with
the decision that he made. I probably would not have. But I did
not get the benefit of all that he heard.
And I was pleased in his letter that he made it very clear
that many who supported unconditional clemency argued that they
were political prisoners who acted out of sincere political
beliefs and he rejected that argument. That argument should
clearly be rejected and should never be given legitimacy as far
as I'm concerned.
I just wanted to say these few words. I don't have any
questions to ask of any of you. There is nothing that I can ask
you that you haven't said, and you said it very movingly, and I
thank you for being here. The President's decision was, as he
said, on each one individually. Whether he is right or wrong,
we will have to try to get as much information as we can to
make a judgment. So far, the judgment of my colleagues in the
Congress is that he is wrong and that his actions have been
condemned.
Thank you, Mr. Chairman.
Mr. Burton. Thank you, Mr. Waxman.
Mr. Horn.
Mr. Horn. Thank you, Mr. Chairman.
Each of you has made a very eloquent statement, and I think
all of us are moved by that. And I have often been moved when
the victims come out because, unfortunately, in our system we
do not yet have a requirement that, before people are
sentenced, the victims and their representatives--because
usually they are dead--the victims should have a right to say
something. And you have said it, and you have said it well.
One of you said hypocrisy. Others said questions need to be
asked. You are absolutely correct on both counts, and the
reason we have several committees looking at this is because we
never easily get an answer to a question, just a simple
question. And the only way you get it on Capitol Hill today is
to issue subpoenas and, if they continue to act in contempt of
Congress, to make a contempt of Congress citation.
Now, some day it will all come out. Somebody on their
deathbed or something maybe will want to clean their conscience
on this and say, I said to the President this, this, and this.
But at this point that is what we have gone through for 6 solid
years, is not getting the answers to the questions that have
been asked, ought to be asked, and should be asked.
I thank you, Mr. Chairman. I assume we will do the asking.
Mr. Burton. Thank you, Mr. Horn.
Mr. Towns, do you have any questions or comments?
Mr. Towns. No, I don't have any questions, Mr. Chairman,
but I would like to make a statement.
The clemency offers were conditioned on each individual's
agreement to renounce violence and to accept restrictions of
their constitutionally guaranteed rights of travel and
association. International human rights groups, church groups
have called these 16 people political prisoners and have
questioned America's commitment to human rights. Human rights
groups argue that these 16 individuals received oppressively
long prison sentences because of their association with radical
groups.
I would like to remind everyone here today that rights of
association is protected by the first amendment of the
Constitution. The President has stated that his decision was
based on a lengthy and intense lobbying campaign by human
rights activists, prominent civil rights leaders and churches
and even Members of the U.S. Congress. It would seem to me that
would be the end of it. The grant of clemency and pardon are
solely and uniquely within the privilege of the President. The
Constitution does not require or even suggest mildly that he
should consult with Members of this body or anyone in his
deliberations on clemency and pardon petitions.
I understand that, in 1974, this committee held a hearing
to examine President Ford's decision to pardon Richard Nixon. I
believe that was a legitimate oversight exercise because Ford,
after all, was appointed by Nixon and then pardoned Nixon from
all future criminal penalties. It looked like a fix was in, and
the executive branch had worked to undermine legitimate
congressional actions. Nothing like that has happened here.
In addition to Ford's pardon of Nixon, there are a few
other instances of pardons which, if we are going to be in this
examining business, that we should examine. For instance, we
should examine George Bush's pardon of Armand Hammer for
breaking campaign finance laws. We should examine Bush's pardon
of several people who lied to Congress in connection with the
Iran-Contra scandal. We should examine Bush's pardon of dope
smugglers. Or we could just move on and hold hearings on the
real concerns of the average American person.
I suggest that we conduct oversight of the government's
programs and services that have a real effect on the lives of
average Americans. Topics like the minimum wage, the Federal
response to the flooding in the wake of Hurricane Floyd, the
racially motivated hate crimes that are going on all over this
country, or the epidemic of school shootings. These are all
topics within this committee's jurisdiction which we have never
had a full committee hearing about.
So, Mr. Chairman, please, please, return to the serious
business of this country and the things that we really should
be about, rather than sort of meddling in something that we
really have no jurisdiction over whatsoever. And on that note,
I yield back the balance of my time.
Mr. Burton. Mr. Ose.
Mr. Ose. I yield 2 minutes to the gentleman from New York,
Mr. Fossella.
Mr. Fossella. I thank the gentleman.
I just want to clear the record briefly. It has been argued
that a lot of people support clemency. Cardinal O'Connor had to
go to the extreme step of actually publishing in a weekly
newsletter that he publishes that he did not request clemency.
He merely asked for it to be reviewed.
And I have a letter here signed by, I believe, Bishop Tutu
or someone on his behalf where he writes: Dear Mr. President, I
have received an appeal from the bishop of Puerto Rico for
assistance in obtaining the release of 15 Puerto Rican
prisoners presently held in San Francisco. The bishop believes
that these people have been wrongly imprisoned and appeals to
your office for their release on humanitarian means. My first
letter of appeal was directed to the United States Ambassador
here. Now I appeal to your office on behalf of my brother
bishop to consider clemency for these prisoners.
It doesn't seem like there is an outright support for
clemency, according to Bishop Tutu. But in response to Mr.
Towns's comments about the right to associate, you already
understand the rights that have been deprived to each of these
individuals as well as others who have been killed and maimed.
But it is clear by the sentencing guidelines Code of Federal
Regulations Title 28, Judicial Administration Chapter 1,
Department of Justice, that the parolee shall not associate
with persons who have a criminal record unless he has
permission of his probation officer.
So it is not out of the ordinary that these folks should be
denied the opportunity to associate with one another. Indeed,
it is common practice.
And that's part of the reason, Mr. Chairman, if you recall,
that for those several weeks while these prisoners claim to
have rejected the offer of clemency because they feared that
they would not have the right to associate with each other, the
condition hanging over their head for the acceptance of that
offer that they would be, according to press reports, they were
not allowed to associate upon release. Indeed, that's why two
rejected--could have been for renouncing violence, could have
been for the point that they could not associate with each
other, but two rejected the offer. So we were told or led to
believe that they would not be allowed.
Well, in 2 days there is supposed to be a rally, so we
hear, in Puerto Rico where they are going to be allowed to
associate with each other. So I suggest that we were
misinformed for the last several weeks, and I don't think it is
out of the order for someone in their capacity to be precluded
or prohibited from associating.
So I thank the gentleman for yielding.
Mr. Ose. Reclaiming my time, Mr. Chairman. Mr. Towns
suggested or implied that he had a copy of the actual offer to
the terrorists that were released. I find it interesting that
in my packet provided by committee staff I don't yet have a
copy of that; and, if possible, I would like to get what he was
referring to admitted into the record if it exists.
Finally, recognizing my time is short, I want to be clear
on something. I don't have enough time to do justice to the
questions that I wish to ask today of this panel. I find it
ironic that someone references the epidemic of school shootings
and yet chooses to ignore the school bus that was going along
in front of the Fraunces Tavern at the time the explosion went
off and the children who were on that bus. I find it ironic,
and I would wish for a little clarification from committee
staff, about the apparent dichotomy between our present debate
over gun control issues and the various and sundry weapons and
explosive charges that these people were convicted of and then
subsequently now been released from prison for. My question is
whether or not the weapons and explosives charges that these
folks were convicted of would also be felonous now and subject
them to imprisonment in the current regime.
And, finally, if I could get some clarification, it is my
understanding that it is a legal requirement that when Federal
prisoners are to be released that the victims of their acts be
notified. If that is the case and it did not occur, what is the
consequence of that having not occurred?
I yield back, Mr. Chairman.
Mr. Burton. The gentleman yields back the balance of his
time. Do any other Members have questions--Mr. Hutchinson? Did
you have a question, Mr. Barr? Mr. Miller? I am sorry. Mr.
Miller.
Mr. Miller. Thank you very much for being here today. It is
a tough position to be in, I know.
What involvement did you have as detectives in
investigating the FALN before the bombing that, of course, did
so much harm to you? Did you all have any involvement in the
investigation of such prior to that?
Mr. Pastorella. Is that question addressed to me?
Mr. Miller. Both of you.
Mr. Pastorella. Before I was a bomb squad detective I was
assigned to the crime scene unit of the New York City Police
Department, and we specifically addressed issues concerning the
bombing at Fraunces Tavern, a bomb at the Mobil Corp building
where a man was killed and three injured. So we had
acquaintances with the FALN through those investigations.
If I may also address Mr. Towns on one particular issue, I
find it very ironic when he mentions shootings at the schools,
the epidemic of the shooting at the schools and, more recently,
the shooting at the Baptist church in Fort Worth, TX, where
innocent young people were killed by a maniacal person, when
Mr. President Clinton has just released two, Ricardo Jimenez
and Elizam Escobar, who were also convicted of having in their
possession unregistered, loaded firearms, transporting firearms
over State lines, also having a van full of automatic weapons.
Isn't that ironic that they were released by the very same
President who decries these laws that we have that are not
appropriate and not strong enough?
I say to you that the only deterrence that we have today is
certainty of penalty, and that is what Mr. Clinton has
eliminated from our system: certainty of penalty.
Mr. Fossella. If I may, Mr. Miller, just--there were FBI
officials who did nothing but practically track the FALN
throughout 1970's and 1980's, and I think Director Freeh was
before the Congress a couple of years ago and others have
testified that they are one of the most efficient and deadly
terrorist organizations. That is why they required a number of
FBI agents to track the FALN.
Mr. Miller. Are there any other FALN in prison today, do
you know? Maybe the next panel will be able to answer that.
Mr. Senft. One of the leaders is William Morales, who is in
Cuba, and he is looking for amnesty. He wants to come back in
the country. That is the next thing. That is what I am
concerned about.
Mr. Fossella. There are also at least two that we are aware
of because they rejected the offer of clemency.
Mr. Senft. And he didn't apologize. In 1997, they had a big
article of him in the paper recently, and he said he does not
apologize to anybody that was maimed or killed, that he is a
freedom fighter. He is a murderer and a terrorist.
Mr. Miller. Thank you, Mr. Chairman.
Mr. Burton. Mr. Hutchinson.
Mr. Hutchinson. I thank the Chair, and I am grateful for
each witness and their testimony and the light that you have
brought to this particular subject.
It is deeply troubling to me that, in a day when we have
proponents here in Congress advocating a victims' rights
amendment to the Constitution, that we do not even have
notification to victims of a clemency that affects their lives
so dramatically. And I just think that is an interesting
contrast. I think it would be interesting to look at the
language of that amendment to see what it says about
notification of rights, notification to victims pertaining to
their rights.
And I am also mindful that when I was a U.S. Attorney one
of the things that we moved toward was having a victims' rights
coordinator in each U.S. Attorney's office. So this Department
of Justice has a requirement for each U.S. Attorney to notify
victims to keep them informed as to what is happening in a
particular case that affects them, whether there is restitution
that is involved, what their feelings are toward the punishment
aspect of it. The probation officers have a responsibility to
contact the victims of offenses within the Department of
Justice, and so this is a rule that each U.S. Attorney has to
operate under here in this country, under the Department of
Justice, under this administration.
And then it is my understanding from each of you that,
prior to the grant of this clemency, you had no notification
and that you learned it in the newspaper. That is just
extraordinary to me, and I just think that contrast ought to be
noted, and I think it is a legitimate issue.
Mr. Towns made the point that, well, do we have any
oversight responsibility? And he referred back to whenever
Gerald Ford pardoned Richard Nixon and we did exercise
oversight responsibility in the Congress. I certainly wasn't
here. But that happened.
And I thought also, well, how did President Ford respond to
that? There was an opportunity for him to claim executive
privilege. There was an opportunity for him to assert the fact
that he didn't want to discuss this with the U.S. Congress. But
the action that President Ford took was to come before,
actually, the Judiciary Committee and appeared as one of the
only Presidents ever to testify in Congress and to explain not
only what went into his decision but also to answer every
question of the Congress of the United States on that issue.
And you have to contrast that as well with this administration
that asserts executive privilege and will not stand here and
explain what led to this extraordinary grant of clemency.
And so you have got the notification of victims' issue. You
have got the procedure issue as to what is followed that
precedes a grant of clemency.
I have a lot--I am sure every member of this panel has a
lot of requests from individuals in their district that were
convicted of some offense, minor or not minor, regardless, they
are interested in a pardon. And we tell them the procedure to
follow. There is an office of pardon in the executive branch.
And it is not an easy route. We have all worked on that. And
then it is certainly within the prerogative of the President to
grant a pardon on a clemency. But we try to follow procedures
so there is some element of fairness, some element of fairness
in the way that this extraordinary power is administered.
And, finally, I just want to remark that I believe that
clemency and pardons is an appropriate use of the executive
branch. I have no dispute about that, and I would not want to
diminish the authority of the President in that regard. It
should be used in times of compassion, in mercy, and in areas
where there has been an injustice in the system.
But whenever we have under these circumstances a lack of
remorse that has been expressed, when we have an overriding of
the advice of law enforcement, whenever we have no notification
of the victims, I do not believe that is an appropriate use,
even though it is a constitutional use of the clemency
authority.
And so, Mr. Chairman, I apologize for not asking a whole
lot of questions here, but I just wanted to respond and make
those remarks, and I would be happy to leave it open if anyone
had any response to the statements that I just made.
Mr. Waxman. Will the gentleman yield?
Mr. Hutchinson. Happy to yield, Mr. Waxman.
Mr. Waxman. I strongly support what you say about the
rights of the victims to be heard, and I am also troubled at
the failure to express remorse on the part of these
individuals.
I disagree with Mr. Towns who argued we shouldn't apply any
conditions. Conditions are often put on any kind of leniency.
But I do think there is a distinction to be made. Presidents
don't always come before the Congress to explain their actions,
and they have asserted executive privilege all the way from
George Washington to George Bush as to all the input they had
in advice from their staff on those decisions.
But your criticism is well taken when Mr. Towns suggested
that President Ford in some way did not come forward. He did,
and he did testify. And of course the magnitude of having
pardoned President Nixon was the kind of thing where a
President needed to personally come forward before the
Congress.
The President has now finally expressed his views as to the
decision he made, and whether we agree with that decision or
not will depend on a lot more input from people that he heard
from and we have not.
Mr. Hutchinson. I thank the gentleman for his comments.
I yield back.
Mr. Burton. I am the last 5-minute person.
First of all, I would like to thank all of you for being
here and testifying. I know it is difficult to open old wounds,
and you have had to do that a number of times recently.
The No. 1 responsibility of the Government of the United
States is to protect its citizens from enemies, both foreign
and domestic. And terrorists any place in the world that
threaten the lives of Americans falls in the category of
enemies foreign or domestic.
And in this particular case, it appears as though our
government has failed or made a mistake by allowing people who
are associated or involved with a known terrorist organization
that perpetrated all kinds of horrible acts on American people
and killed a lot of them, it appears there has been a failure
here. To those of you who suffered, I apologize for that. We
will continue to try to find every answer as to why these
people are back on the streets. And I pray to God that this
will not start a new reign of terror either by these people or
their fellow terrorists.
With that, thank you very much for being here today. We
appreciate your testimony.
We will now go to the next panel. We now welcome Neil
Gallagher, Michael Cooksey and John Jennings to the table.
While they are coming forward, let me just say that Mr.
Gallagher is the Assistant Director of the Federal Bureau of
Investigation; Michael Cooksey is an official with the Bureau
of Prisons; and Jon Jennings is Assistant Attorney General with
the Department of Justice.
[Witnesses sworn.]
Mr. Burton. Do any of you have an opening statement?
Mr. Cooksey, you have an opening statement.
STATEMENTS OF MICHAEL B. COOKSEY, ASSISTANT DIRECTOR FOR
CORRECTIONAL PROGRAMS, BUREAU OF PRISONS; JON JENNINGS, ACTING
ASSISTANT ATTORNEY GENERAL FOR LEGISLATIVE AFFAIRS, DEPARTMENT
OF JUSTICE; AND NEIL GALLAGHER, ASSISTANT DIRECTOR FOR NATIONAL
SECURITY, FEDERAL BUREAU OF INVESTIGATION
Mr. Cooksey. I have an opening statement.
Mr. Chairman, members of the committee, I appear before you
today on behalf of the Federal Bureau of Prisons in regard to
the grant of clemency to 16 current and former Bureau of
Prisons inmates who were members of the Armed Forces National
Liberation, commonly known as the FALN. In general terms, I
will describe the Bureau of Prisons's role in the executive
clemency process, the Bureau of Prisons's telephone records
procedures, and assistance the Bureau of Prisons provides to
law enforcement agencies and others in computing sentences
based on hypothetical sentencing changes. And I am also
prepared to speak generally about the behavior of the 16 FALN
inmates while in the custody of the Federal Bureau of Prisons.
In my capacity as the Bureau of Prisons Assistant Director
of Correctional Programs, I am responsible for developing
national policy and oversight requirements for many aspects of
institution operations including prisoner transportation,
sentence computations, mail room operations, receiving and
discharge, emergency preparedness, chaplaincy services,
psychology services, drug treatment programs, intelligence
gathering, security programs and programs for inmates with
special needs.
Each of the Bureau's six regional directors has direct
oversight responsibility for the institutions in their regions.
Each region has 15 or more institutions. There are more than
116,000 inmates in the Bureau's 94 institutions, and there are
another 16,000 Federal inmates in facilities under contract
with the Bureau of Prisons.
The Bureau of Prisons' policy regarding the provision of
commutation of sentences directs the Bureau of Prisons' staff
to provide inmates with appropriate forms and instructions for
filing petitions for commutation of sentence. This policy
further provides that staff suggest to inmates that the
petitions be sent through the warden to the Pardon Attorney,
thereby permitting institution staff to forward necessary
paperwork to the Pardon Attorney, including presentence reports
and progress reports.
When the Pardon Attorney needs additional information, he
is expected to contact the warden of the institution where the
inmate is housed, and the warden provides the requested
documents to the Pardon Attorney. The Bureau of Prisons also
makes available to the Pardon Attorney direct access to our on-
line inmate information system which provides data on inmate
rule violations and inmate adjustment, including work
assignments and program participation. Neither the original
packets nor subsequent information from the warden contains any
recommendations from the Bureau of Prisons regarding the merits
of the case.
This policy further provides that, when specifically
requested by the Pardon Attorney, the Director of the Bureau of
Prisons submits a recommendation on a petition for sentence
commutation. This recommendation, which may be based on
comments received from the warden at the institution where the
inmate is housed, is forwarded to the Pardon Attorney.
There have been media reports regarding information gleaned
from telephone conversations between FALN inmates and members
of the public. The Bureau of Prisons records all inmate
telephone calls made on inmate telephones. All inmate
telephones contain signs notifying the inmates that such calls
are recorded. If inmates wish to call their attorneys, they
must contact the staff member who will place the call, if
approved, on a telephone that is not recorded and not
monitored. Records of inmate calls are retained at the
institution from which the calls were placed for a period of
time.
The Bureau of Prisons is responsible for computing
sentences for all Federal inmates. The sentence computation is
a mathematical method of determining the various components of
a sentence to imprisonment. There are many Federal statutes
that govern sentence computation and many court decisions which
pertain to sentence computation. Bureau of Prisons staff have
substantial expertise in this regard. On occasion, Bureau of
Prisons' staff are asked to provide assistance to other
agencies or components, including the Pardon Attorney, U.S.
Probation Officers, U.S. Attorneys, defense attorneys and the
courts, when changes are being considered to inmates'
sentences.
Of the 16 inmates who were offered clemency on August 11,
1999, 14 were in Bureau of Prisons' custody at the time the
offer was made. Three of the 16 inmates are still in the Bureau
of Prisons' custody. Two were offered sentence reductions but
not an immediate release, and one of those refused to sign the
offer. A third inmate was given relief only with respect to the
unpaid balance of his fines. That individual had previously
satisfied his sentence and been released from custody under
supervision but was returned for violating the conditions of
his release.
Given the voluminous records that some inmates have as a
result of spending many years in Federal prisons it was
impossible to carefully review the complete records of these
inmates, but I have reviewed the information available through
our automated information systems, and I have reviewed written
summaries prepared by institution staff regarding the inmates'
current progress. All medically able Bureau of Prisons' inmates
are required to work. Additionally, the inmates in question
completed a variety of educational and vocational training
programs in addition to assorted other self-development
programs at our institutions.
Mr. Chairman, that concludes my remarks.
[The prepared statement of Mr. Cooksey follows:]
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Mr. Burton. Mr. Jennings.
Mr. Jennings. Mr. Chairman, Mr. Waxman, distinguished
members of this committee, my name is Jon Jennings. I have been
the Acting Assistant Attorney General in the Office of
Legislative Affairs since April of this year.
The Office of Legislative Affairs serves as the liaison to
Congress for the Department and implements the legislative
strategy to carry out the Attorney General's initiatives
requiring congressional action. The Office articulates the
Department's views on congressional legislative initiatives and
responds for the Department to requests and inquiries from
congressional committees, individual Members and their staffs.
The Office facilitates and coordinates the Department's
response to congressional oversight inquiries as well as the
appearance of Department witnesses before congressional
committees.
I want to begin by extending my and the Department's
deepest sympathy to those whose lives were tragically affected
by FALN criminal conduct. There can be no question that they
and their families have suffered tremendous pain and loss.
Nothing in my testimony today should in any way be understood
as disrespect for the tragedy suffered by those from whom you
have heard today.
Mr. Chairman, I was raised about 60 miles from you in
Indiana, and I was raised to respect and admire members of the
law enforcement community as American heroes, and I wish there
was something that I personally could do to take away their
pain and suffering that has been caused by these cowardly acts
of violence.
As you know, Mr. Chairman, the Department has produced
thousands of pages of records in response to your September 1st
subpoena. We have provided records from the Bureau of Prisons
and the Parole Commission regarding the 16 individuals who were
named in your subpoena, including judgment and commitment
orders, petitions for clemency, presentence reports, and
reports about their conduct in prison. We are processing
additional documents, including any tapes of their telephone
conversations while in prison that may exist and other
nonprivileged records relating to the clemency petition. Today
we are providing additional records and continuing our efforts
to respond to your subpoenas. We're also prepared to produce a
large number of letters from the public supporting the clemency
petitions, although your staff may first wish to review samples
of them since many of them are largely identical form letters
and petitions.
In addition, at the request your Chief Counsel, Mr. Wilson,
I arranged for the Pardon Attorney to brief staff of this
committee on the pardon process. We are also gathering
documents in response to your September 16th subpoena and will
provide with you nonprivileged records as promptly as possible.
As the committee knows, the Department of Justice acts as a
confidential advisor to the President in connection with the
exercise of his constitutional authority to grant pardons.
Because the pardon power is an exclusive constitutional
prerogative of the President, we have historically declined to
disclose the substance of the Department's advice and
communications to the President concerning these decisions.
As Attorney General Mitchell Palmer explained some 80 years
ago to a congressional committee, ``The President in his action
on pardon cases is not subject to the control or supervision of
anyone, nor is he accountable in any way to any branch of the
government for his action, and to establish a precedent of
submitting pardon papers to Congress or to a committee of
Congress does not seem to me a wise one.''
In addition, the disclosure of advice that members of the
executive branch gave to the President would have a chilling
effect on the frank exchange of views that the President needs
in order to receive full and accurate advice.
In response to this committee's subpoenas to the Department
and to the White House, the President has asserted executive
privilege as to some of the subpoenaed documents and certain
areas of testimony that the committee seeks. As I indicated in
my letter to you dated September 16th, the President has
asserted privilege with respect to: No. 1, advice and other
deliberative communications to the President regarding his
clemency decision; No. 2, deliberative documents and
communications generated within and between the Department of
Justice and the White House in connection with the preparation
of that advice; and, No. 3, testimony by Department officials
concerning executive branch deliberations in connection with
the clemency decision.
Consistent with the President's privilege assertion, I can
provide a limited amount of nonprivileged information
concerning the Department's role as advisor to the President on
clemency matters. The petitions for commutation were submitted
to the Department in 1993. In accordance with Department
regulations, the Department submitted a written report and
recommendation to the White House in 1996 which stated whether,
in the words of the regulation, the President should grant or
deny the petition for clemency.
In light of the President's assertion of privilege, I am
not at liberty to disclose the contents or substance of that
report or recommendation. I can, however, tell you that the
clemency review process did not end with that submission and
that there were subsequent communications on the subject of
clemency between the Department and the White House.
I cannot tell you anything more about those later
communications because they are the subject of the President's
assertion of executive privilege. I can, however, pledge to you
that we have made and will continue to make every effort to
provide the committee as soon as we can with the remaining
responsive documents for which the President doesn't assert his
privilege; and I look forward to working with your staff.
[The prepared statement of Mr. Jennings follows:]
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Mr. Burton. Mr. Gallagher.
Mr. Gallagher. Mr. Chairman, again, my name is Neil
Gallagher. I am Assistant Director of the FBI's National
Security Division with responsibility for counterterrorism and
counterintelligence. The FBI uses a very simple definition of
terrorism; and, if I may, I will quote it. It is the unlawful
use of force or violence against persons or property to
influence or intimidate a government, the civilian population,
or any segment thereof in furtherance of a political or social
cause.
The FBI first learned of the existence of the FALN back on
October 26, 1974, when they issued a communique taking credit
for the five bombings in New York. In the next decade, their
activities resulted in 72 actual bombings, 5 deaths, 83
injuries, and over $3 million in property damage.
The other terrorist organization that you heard of today,
the Los Macheteros, first became known to the FBI and to the
world in 1978 when they issued a communique taking credit for
the murder of a Puerto Rican police officer by the name of
Julio Rodriguez. That murder was on August 24th, 1978. At the
time of their communique, they also provided an explanation.
They indicated they did not intend to kill Police Officer
Rodriguez, they only wanted to take his weapon, his badge, and
his car.
Subsequent to that activity, in 1979 the Macheteros were
involved in a series of eight bombings in 1 day and, as was
discussed earlier today, an ambush of the U.S. Navy bus
resulting in the death of two U.S. Navy personnel.
In 1981, they destroyed nine U.S. fighter jets that were
being stored on the island of Puerto Rico. They were also
involved in a Wells Fargo robbery in Santurce, Puerto Rico,
which resulted in the loss of $341,000.
In 1982, they ambushed four sailors returning to a ship,
resulting in the death of one sailor.
In 1983, they were engaged in a rocket attack against the
Federal building which housed the FBI, just barely missing the
offices of the FBI in San Juan, Puerto Rico.
On September 12th, 1983, they came to the United States for
their activity and were a part of the Wells Fargo terminal
armored car robbery up in West Hartford, CT, resulting in the
loss of approximately $7.1 million.
In 1986, they again returned to bombings at U.S. Government
facilities throughout Puerto Rico, 10 bombings in 1 day.
In 1988, they bombed the U.S. Army-Navy recruitment
station.
In 1989, there were two bombs at a shopping plaza in Puerto
Rico.
If you turn to the charges that the FALN subjects in
Chicago were charged with and you look at the indictment and
you realize that the indictment speaks not only to seditious
conspiracy but talks about the involvement in 28 bombings, I
think you also have to focus in that these bombings were at
banks, stores, office buildings, government buildings, more
importantly, they were in highly densely populated areas.
I am taken, as I listened to the prior testimony of the
previous panel, in particular the two New York City police
officers who responded to the bombings in New York, much has
been said that there has not been any loss of life for these 28
bombings. The only thing that separates that is that there was
not a Chicago police officer who happened to come across 1 of
these 28 bombs. The reality is that these bombings were placed
with upwards of six sticks of dynamite. They had electronic
devices on them, so there were timing devices. Whoever placed
the bomb placed the bomb and walked away.
On November 3rd, 1976, we located a bomb factory at 2659
West Haddon Street, Chicago. We had determined that at one
point there were in excess of 200 sticks of dynamite in this
bomb factory. Again, of significance is the reality that this
bomb factory was located in a densely populated area.
On March 15th, 1980, there was an armed takeover of the
Carter-Mondale headquarters in Chicago. Again, there was no
loss of life. However, armed individuals came in and took over
the political headquarters; and, by luck, there was no
incident.
On April 4th, 1980, the FALN subjects were arrested. I
think it is fair and we should focus in on the events of that
day. There were two subsequent series of events that resulted
in their arrest.
First, there was an arrest by the local police of two
individuals in a stolen van. At the same time, they received a
call from a citizen that saw some suspicious activity. He saw--
this citizen saw an individual in jogging clothes running
toward a van stopped on the highway to have a cigarette, called
the Evanston, IL, Police Department who responded. One police
officer responded. Fortunately for him, he called for backup
immediately, because in the van were the remaining FALN
subjects.
What they had done was to place in stolen vehicles in the
general area--the van was their point of debarkation from and
what we believe to be a point from which they would rob an
armored truck. What was in the van--and you cannot place any
one weapon to any one individual, but there were shotguns,
rifles, revolvers, semiautomatic pistols and automatic pistols
in the van.
August 30th, 1985, we arrested 20 members, collaborators of
the Macheteros, with respect to the $7.1 million armored car
terminal robbery in West Hartford, CT. Of those 20, 7 have been
convicted, and 6 have pled guilty, resulting in 18 individuals
either being convicted or remaining as fugitives.
Of particular concern to the FBI is the fact that, of the
$7.1 million, most of it has not been recovered. We know that
some of the money went to Cuba. We know that a good portion of
the money was utilized to fund the operation of the Macheteros.
That brings me to the question which I think we should look
at today, is there a current threat with respect to the FALN
and Macheteros?
First of all, if you look back at 1980 and 1985, it had its
initial desired results. There was a serious reduction in the
bombings. There was a serious reduction in the loss of life. At
the same time, the FALN were extremely quiet. And there was a
purpose behind this. They were committed to try to secure the
release of their comrades who were in prison.
At first, there was an attempted breakout, but then they
got into a different approach as to try to secure their
release.
However, in December 1992 there was a break from that.
There was a bomb at the U.S. military recruiting center in
which, as we later learned of the details of that bombing, the
purpose was to gauge the Puerto Rican response to the
resumption of armed struggle activities of Puerto Rican
independence. There was an individual who was subsequently
arrested and convicted for that bombing.
With respect to the Macheteros, on March 31st, 1998, as you
heard in the first panel, there was a bombing at an aqueduct
project facility in Puerto Rico. On June 9, 1998, there was a
bomb placed at a branch of the Banco Popular bank in Puerto
Rico. In both instances the Macheteros gave a communique.
Disturbing, however, there was a second bomb placed on June
25th, 1998, at another branch of the Banco Popular bank. In
that instance, a police officer responded to a suspicious
device. What he found appeared to be a flashlight on the
windowsill. He picked it up and as he picked it up it
detonated, resulting in his death.
The Macheteros issued a communique which resulted in a
statement that they were not responsible for this particular
bombing. I would suspect, however, given the significance of
two branches of the same bank and the similarities in the
device, we are now convinced that that was, in fact, a
Macheteros terrorist act that they tried to distance themselves
from simply because of the fact that a Puerto Rican police
officer again was killed.
Earlier you were told about a more recent threat, and that
comes from Ojeda Rios who on September 13th, 1999, issued a
communique that was released in the San Juan newspapers again
indicating that the Macheteros would not remain with their arms
crossed should the Navy resume activity on the Island of
Vieques. He also gives an implied threat to the FBI. We take
this very seriously because, again, we were the target of a
rocket attack. Also, the last time we attempted to arrest Ojeda
Rios there was a shootout, and today there is an FBI agent who
is blind in one eye as a result of that shootout.
I go back to my definition of terrorism. I would submit to
you that the FALN, the Macheteros, the people who were arrested
and convicted that we have discussed today have used force and
violence, they have worked against the citizens and destroyed
property in the United States, and they have done this for
their own political cause.
Mr. Chairman, these are terrorists. These are criminals.
Thank you.
Mr. Burton. First of all, I want to thank you, Director
Freeh, and the FBI for being so thorough in your testimony
today. I am sure that there has been some pressure brought to
bear, and you need not comment on this, about your testimony,
but I just want you to know personally as chairman of this
committee I really appreciate your thoroughness.
Let me start off by asking you, you had a written statement
that you anticipated sending to us, and it was not sent to us
yesterday. Can you tell us why that was not sent to us?
Mr. Gallagher. Mr. Chairman, I had a statement that was
prepared for testimony before another committee approximately a
week and a half ago. I attempted to cover several different
areas with respect to this issue, one of which addressed the
FBI role and
response to the clemency process. We sent that statement over
to the Department of Justice. A determination was made that
that portion of the statement was covered by executive
privilege. At first it was held back because it was being
resolved, and then we were eventually told that it was covered
by executive privilege.
So what I have done today is I have, in essence, given you
the balance of the statement through a written series of notes
that I have that I knew covered the rest and remainder of the
statement.
Mr. Burton. Part of your statement they deemed under the
executive privilege and the rest could have been sent to us?
Mr. Gallagher. I was not involved in that decision process.
I would have to defer.
Mr. Burton. Usually when that kind of a situation comes up
about something that is grand jury material they just redact it
and give us what they can. But more recently we have had
difficulty with the Justice Department in getting virtually
anything.
Let me ask you a direct question. Do you think these guys
ought to be out on the street?
Mr. Gallagher. Do I think they ought to be out on the
street? I think these are criminals and that they are
terrorists and they represent a threat to the United States.
Mr. Burton. Well, I think that about covers it.
Mr. Jennings, why was the FBI prevented from sending this
written statement to us and why didn't the Justice Department,
if part of it was deemed under the veil of executive privilege,
why didn't they just redact that?
Mr. Jennings. My understanding is that last week we were
awaiting some direction from the White House as to whether the
President was going to assert privilege, and therefore we held
that testimony back from Mr. Gallagher, because of the fact
that we were still working with the White House as to what the
President was going to do.
Mr. Burton. After having heard the President's decision,
you did not send any kind of a redacted copy of this document
to us. Why was that?
Mr. Jennings. Quite frankly, sir, I don't know. And what I
can do is I will go back and make sure that you get what you
need through Mr. Wilson.
Mr. Burton. Things that fall under the privilege of the
President, the executive privilege, we understand that that
should be redacted. But I hope that I do not get a page or two
or three pages that is nothing but black lines, which sometimes
happens. If we do not receive that in an expeditious fashion,
we will be forced to send another subpoena over there to the
Attorney General asking her for that, because I want to see
that document even though part of it will be redacted.
Mr. Jennings. Absolutely.
Mr. Burton. I understand from my counsel we sent a letter
over to the Attorney General last night asking her if she had
reviewed that and we have not had a response; is that correct?
Are you familiar with that?
Mr. Jennings. Yes, I did see the letter that you sent last
evening this morning when I came in this morning.
Mr. Burton. Why didn't we get some kind of response on
that?
Mr. Jennings. Honestly, sir, I think that with everything
that we were doing to try to prepare for this hearing and so
forth, I think that we did not get you an answer this morning.
Mr. Burton. I would think when something is of this import
that they would have been moving more quickly.
[Note.--With regard to the discussion about the FBI's
written hearing testimony, the prepared statement of Assistant
Director Neil Gallagher was supplied to the Committee on
September 23, 1999 with redactions of text covered by the
President's assertion of executive privilege.]
Mr. Burton. Mr. Cooksey, during your testimony you
indicated that you do tape the phone calls of people in prison
and they are aware of that. How long do you keep those tapes?
Mr. Cooksey. Chairman Burton, I would rather not give that
information. We keep it for a lengthy period of time, but we
don't keep them forever. If I tell you how long----
Mr. Burton. I understand.
Mr. Cooksey [continuing]. Then the inmates will know.
Mr. Burton. I understand. That is a good reason not to
divulge that.
How long would it take for to you go through the tapes of
these 16 individuals back as far as you can to give us
transcripts or copies of those tapes so that we could review
them for the American people? Because if these people were
advocating terrorism or terrorist activities, as one of them
evidently was when he was planning his escape, then the
American people have a right to know, and I think the Justice
Department and the FBI need to know that so that they can take
precautions to make sure that these people are under
surveillance. How long would it take to get that?
Mr. Cooksey. We are complying with that subpoena right now,
and it takes a different time at different institutions. We
have a new telephone system that is computerized where we can
pull off digital tapes, and it is fairly easy in those
institutions. In some other institutions where we have an old
system and you have these huge reel-to-reel tapes, you have to
do searches on them, and it takes quite a bit longer on those.
It's my understanding that we have completed the
institutions with the new system, but we're still working on a
couple of our penitentiaries that still do not have the new
system.
Mr. Burton. Would it be possible for you to in part comply
with our subpoena? In other words, if you already have some of
those, produce them, rather than waiting for all of it.
Mr. Cooksey. We'll send you what we have.
Mr. Burton. Could you give us also, along with that, some
kind of an idea how long you think it will take for the rest?
Mr. Cooksey. Yes.
Mr. Burton. I do appreciate your cooperation as well.
Let me just ask you a little bit about Oscar Lopez, because
I think this is something that will illuminate for the American
people a little bit about the attitude of these people. Oscar
Lopez was one of those who was offered clemency, and he
evidently refused. One of the documents we subpoenaed from the
Justice Department shows that Mr. Lopez, while he was in
prison, gave approval to murder somebody. This was after he was
convicted of terrorist activities and while he was engaged in a
conspiracy to break out of Leavenworth penitentiary. If he had
not been stopped, obviously lives would have been lost. Where
is Mr. Lopez today?
Mr. Cooksey. Mr. Lopez is at the U.S. Penitentiary, Terre
Haute, IN.
Mr. Burton. In Indiana?
Mr. Cooksey. Yes.
Mr. Burton. The records we subpoenaed showed Mr. Lopez got
into trouble twice while at the Marion penitentiary. Marion is
the prison that replaced Alcatraz. He was in trouble once for
having a lock pick--I presume that is to try to pick a lock so
he can get out--and another time for having a sharpened
instrument. Were you aware of those violations?
Mr. Cooksey. Yes, sir. And in 1990, he was--he received two
incident reports. I don't have for a lock pick. It was a hand-
cut key. It was a homemade, hand-cut key so he could get out of
his handcuffs. He was apprehended with two of those, and he had
a sharpened weapon in his windowsill.
Mr. Burton. For the past 2 weeks I have heard the White
House talk about how those offered clemency were nonviolent
offenders. But Mr. Lopez was one of the main FALN leaders, and
the FALN planted, we estimated, 130 bombs that killed or maimed
well over 100 people.
His probation officer wrote:
His level of remorse, rehabilitation and positive regard
for this court's process is minimal, if non-existent. He
demonstrates a sustained, consistent commitment to the use of
violence and weapons. He will use any means to gain freedom for
the purpose of undermining the principles of the U.S.
Government. He has already determined that human life is
expendable for this purpose.
Now, did the Pardon Attorney have that information?
Mr. Cooksey. We provided presentence reports to the Pardon
Attorney. We provided a progress report and judgment
commitment. The Pardon Attorney also has access to automated
inmate information.
Mr. Burton. So he would have had this?
Mr. Cooksey. He would have had this information. I assume
he would have had this information.
Mr. Burton. Did the Pardon Attorney ever ask if this
information was no longer valid, to your knowledge?
Mr. Cooksey. I don't know that. The Pardon Attorney
generally, when he wants additional information, he goes
directly to the warden of the institution.
Mr. Burton. This man does not sound like he is nonviolent.
His original sentence for terrorist activities was for 55
years. He got another 15 years for the attempt to escape from
Leavenworth. He planned to escape by helicopter. Guards would
be held off with gunfire, and helicopters at a nearby military
base would be disabled by explosives.
The list of weapons he planned to use in the escape attempt
included fragmentation grenades, smoke grenades, phosphorous
grenades, 8 M-16 rifles, 2 silencers, 50 pounds of plastic C-4
explosives, 8 bulletproof vests, 10 plastic caps to use with
the plastic explosives and 100 30-shot clips to use with
automatic weapons. The fragmentation grenades were to be used
on the tower where the guards were to kill them.
Were Mr. Lopez' escape plans nonviolent, in your opinion?
Mr. Cooksey. No, sir, they were not.
Mr. Burton. You have been a warden at Marion. That was the
Federal prison that replaced Alcatraz. And that is where Mr.
Lopez was incarcerated. That would make him one of the most
dangerous inmates in the entire Federal system, would it not?
Mr. Cooksey. He had maximum custody. We moved him to Marion
immediately following the escape attempt from Leavenworth.
Mr. Burton. You considered him to be one of the most
dangerous inmates that you had.
Mr. Cooksey. Yes.
Mr. Burton. Was he ever in the prison in Florence, CO?
Mr. Cooksey. Yes, sir. We built a new administrative
maximum security facility that opened at the latter part of
1994, early in 1995, and when it opened, we transferred a lot
of prisoners from Marion to the administrative maximum, and
Oscar Lopez was one of those prisoners.
Mr. Burton. To me, Oscar Lopez does not sound like a
nonviolent individual; and I can't understand why the President
and his spokesman, Mr. Lockhart, and the National Security
Advisor, Sandy Berger, would try to convince the American
people that Lopez is a nonviolent offender. So I would like to
ask all of you this. Was Lopez considered nonviolent when he
was incarcerated?
Mr. Cooksey. Through our classification system he was
considered a maximum custody inmate. You usually become maximum
custody when they either have an extreme propensity for
violence or escape.
Mr. Burton. After his escape attempt, was he considered
nonviolent?
Mr. Cooksey. No, sir.
Mr. Burton. Is he considered nonviolent today?
Mr. Cooksey. I would have to say no.
Mr. Burton. And yet the President offered him clemency. Do
any of you know where President Clinton, Mr. Lockhart, or any
of the other spokesmen for the President got the idea that Mr.
Lopez was nonviolent? Do you have any idea where he got that
idea?
Mr. Cooksey. I don't.
Mr. Burton. I would like to read a statement by Lopez made
in a television interview after he plotted the escape from
Leavenworth.
[o]ur struggle is a just struggle, and because it's a just
struggle we have the right to wage it by any means necessary,
including armed struggle. We can anticipate more violence.
People are not going to sit idle and wait for the oppression to
continue. As long as the conditions do not improve, yes, there
is that outlet for violence.
This statement was provided last week by the Justice
Department, so it shows that at least someone over there knew
that maybe he had not completely renounced violence. In fact,
after his conspiracy to escape was thwarted, the government's
recommendation said that, by his own admission, Oscar Lopez is
the head of a group whose purpose is to kill and destroy,
notwithstanding his attempt to portray his heinous acts as
freedom fighting. His own statements reveal his violent goals
and means. So I want to ask all of you, I want to get a sense
of what changed. Did your agencies ever tell the President that
Mr. Lopez was not a violent offender?
Mr. Gallagher. The FBI has not made such a statement.
Mr. Cooksey. We've never made such a statement.
Mr. Jennings. Speaking for the Department, it's not to my
knowledge we ever made that statement.
Mr. Burton. Let me read another passage from the Justice
Department recommendation:
As a central figure in this conspiracy, Lopez promised to
pursue his armed struggle against the United States and to
train in revolutionary tactics once free. To that end, he
taught Richard Cobb clandestine techniques on how to make
firing circuits for explosives. Lopez breathed life into the
escape plan by virtue of his support group in Chicago. It was
Lopez who offered to obtain false identification, weapons and
explosives. It was Lopez who sent Jamie Delgado to Dallas to
negotiate the purchase of weapons and explosives. It was Lopez,
moreover, who gave his approval for Cobb's return visit to
Leavenworth and for the murder of Michael Neece. Even behind
bars of a Federal penitentiary, Oscar Lopez continued to lead
his Chicago supporters in violent plans.
Now let us stop for a second. He said it was OK to murder
someone. How could the White House stand behind their claim
that this was a nonviolent individual?
Mr. Cooksey, were Lopez' escape plans taken seriously?
Mr. Cooksey. Yes, sir, they were.
Mr. Burton. Is he still considered an escape risk, do any
of you know?
Mr. Cooksey. I wouldn't say he's an escape risk today. He's
free on the street, but we did have him in the penitentiary up
until his release--excuse me, I'm sorry. He's still in the
penitentiary. I mistakenly--mistook him for one of the folks
that was----
Mr. Burton. He is still in prison. If he had a chance to
escape today or tried to escape, do you think he would do it?
Mr. Cooksey. We have him in a high security penitentiary.
Mr. Burton. So you think he might?
Mr. Cooksey. Yes, sir.
Mr. Burton. Is this a nonviolent person worthy of clemency?
Someone who is in Leavenworth penitentiary for terrorist
activities, someone who is plotting a violent breakout from
Leavenworth and someone who specifically approves murder, does
he sound like to you the kind of guy that ought to be on the
street, any of you? Does his failure to renounce violence raise
any concerns to any of you?
Does the President's, Mr. Cooksey, offer to free Lopez send
a negative message to the Bureau of Prisons' employees whose
mission it is to keep people safely and securely incarcerated?
You don't have to answer that if you don't want to.
Mr. Cooksey. Thank you.
Mr. Burton. Let me just say this. I think these statements
I just read prove beyond a reasonable doubt that this man and I
believe his colleagues are a threat to society and to the
freedoms we hold dear in this country, and yet the President of
the United States offered this man clemency. If he just said I
am sorry and I renounce violence, the guy would not do it. But
the fact is, how many people who are incarcerated today for
heinous crimes would love to get out just by saying to the
President, hey, I am sorry?
Charles Manson, I do not know what he'd say. What if he
said, I am sorry, please let me out. Is that a reason to let
these vermin back on the streets? These people who bombed
buildings, who maim children, who kill police officers, who
maim them and ruin their families, their lives forever? I think
this whole decision by the administration was very, very wrong,
especially in the case of offering this individual clemency.
Let me ask one more question here about Juan Segarra-
Palmer. It has been said, I think in the President's letter
today, I think he specifically mentioned this fellow, that he
along with the others were not involved in any heinous acts. He
was involved in planning. But the Federal district judge found
that Sagarra-Palmer had organized and taken part in the attack
at Sabana Seca on a U.S. Navy bus taking sailors to a radar
station on December 3, 1979, in which two sailors were murdered
and nine were wounded. This is the U.S. v. Menendez-Carrion
case, 820 F.2d 56, in the Second Circuit Court in 1987.
Other documents said, ``your offensive behavior is rated as
category 8 severity because it involved the death of at least
one individual as a result of action initiated by gangs of
which you were a member. And while murder may not have been the
intended crime, it was caused by the actions of your group.''
That was a statement by the U.S. Parole Commission report.
Segarra-Palmer also took part in an attack at Muniz--and I
think Mr. Gallagher mentioned this--Muniz air base in Puerto
Rico. During that attack, nine A-7 aircraft were destroyed.
This was not mentioned. It cost the taxpayers $40 million by
destroying those planes.
Does this sound like a fellow that ought to be out on the
street to any of you?
Well, silence. It is not consent, I guess, in this case.
Do you think he should be out on the street? Do you think
any of these guys should be out on the street?
Mr. Gallagher.
Mr. Gallagher. Mr. Chairman, when the FBI learned of the
release of these terrorists, we were concerned with two
aspects. First of all, from a practical sense, our concern was
that their release would present either a psychological or
operational benefit or enhancement to these two terrorist
organizations.
Mr. Burton. Let me interrupt you there. Explain to me how a
psychological benefit would be achieved by them being released.
Mr. Gallagher. We've had a terrorist organization that
started its existence in the early 1970's. After a period of
rather heinous terrorist activities for nearly a decade, they
are located, apprehended, prosecuted, and convicted. They
received sentences by a Federal district court.
The fact that the Macheteros and the FALN continue as
terrorist organizations and now have some of their comrades
free back in their midst can give a boost to either of the two
terrorist organizations. As I stated, September 13, Ojeda Rios
issues a communique putting in yet another challenge to the
United States. He also drew recognition of the fact that these
FALN subjects had been, in fact, released. So the concern is
that it will give a moral boost to those that would consider
using violence in furtherance of a political or social cause.
Mr. Burton. Do any of the rest of you have any comment
about this?
Mr. Horn, do you have any questions? Let me yield----
Mr. Waxman. Mr. Chairman, may I inquire----
Mr. Burton. We are going on the 30-minute----
Mr. Waxman. That wasn't the agreement as I understood it
that we had. I didn't want to interrupt you. I thought we were
going to have a 30-minute wrap-up by the staff. But you want to
proceed with 30 minutes on your side before we ask any
questions?
Mr. Burton. If you would rather, I can go ahead and yield
to you now.
Mr. Waxman. Maybe you can tell me how much time you have on
your side.
Mr. Burton. How much time do we have on the clock on our
side?
Mr. Horn. I'd like about 7 minutes.
Mr. Burton. We have 7 minutes to go?
Mr. Horn. I'd like 7 minutes.
Mr. Waxman. Mr. Chairman, if I may----
Mr. Burton. One second.
Mr. Waxman. Mr. Chairman, I want to work out an
accommodation. Go ahead and take your half-hour. That wasn't
our understanding of the procedure for today. We will have that
as the ending for this panel, because we're not going to agree
to a half-hour more with the staffs on each side.
Mr. Burton. Then I will yield some time to our staff during
this period.
Do you have any comments right now, Mr. Horn?
Mr. Horn. Thank you, Mr. Chairman. Let me ask a couple of
basic questions.
When was the first time, Mr. Gallagher, that the FBI knew
there was consideration for freeing the Puerto Rican
independence group? When did the FBI have an inquiry made
either by Justice, the White House, Mr. Ruff, assistants to the
President, whatever?
Mr. Gallagher. Mr. Horn, unfortunately, I have been
instructed by the Department of Justice that that--my response
to that question would get into the area of executive
privilege, and I'm unable to answer.
Mr. Horn. What's the basis for the executive privilege? Do
you know a date when someone--what are they afraid of?
Mr. Gallagher. Let me try to answer it. If I get kicked
under the table, I know I've gone too far.
Over a period of several years, the FBI has on occasion
received an inquiry from the Department of Justice or learned
of consideration being given to clemency. When asked, we have
provided to the Department of Justice our opinion. When we've
heard of it and we have not had a request we at times have
provided to the Department of Justice or offered to provide
them our opinion on this issue. So there have been several
occasions over the past few years that we've--that we either
have been solicited for opinion or we, without any
solicitation, made our opinion known.
Mr. Horn. Well, when the solicitation came in this year,
let's say, starting in January, when was the first time the FBI
thought there was some movement somewhere related to the Puerto
Rican independence people being let out one way or the other?
Mr. Gallagher. We were initially contacted by the
Department of Justice--I assume I can provide that date----
Mr. Horn. Just a date.
Mr. Gallagher [continuing]. At the staff level. And we
provided our opinion on June 28 of this year. Again, that was
at staff level, with no executive dialog with respect to it.
Mr. Horn. Just raising the question.
Mr. Gallagher. Just raising the question which had been
raised in prior years.
Mr. Horn. So we hadn't had much activity in the previous
year?
Mr. Gallagher. No, sir.
Mr. Horn. In other words, these different letters, Bishop
Tutu and so forth, did anybody say, well, gee, he wants us to
free them? Did that ever tickle anything?
Mr. Gallagher. The FBI was not provided any documentation
as to the rationale of the White House, nor would we expect
that we would. We were simply informed that this was a matter
under consideration. And usually it was the Criminal Division
at the Department of Justice would solicit our input; or,
again, if we heard that--either rumors or if there was any
publicity given to the possibility of this, we would contact
the Department of Justice and offer to express our opinion.
Mr. Horn. How about the Bureau of Prisons, Mr. Cooksey?
When did you first get notice within the system from either the
White House, the President's assistants, Mr. Ruff, whatever or
somebody over in Justice? What date would you give?
Mr. Cooksey. I believe that in 1993 we sent progress
reports and presentence reports to the Pardon Attorney. There
had been recently--you would hear something that maybe it was
being considered, nothing official. It was just a couple of
months ago when we received information of the possibility of a
pardon.
Mr. Horn. Is the couple of months June 28, 1999, that the
FBI----
Mr. Cooksey. No, I think it was more recent than that.
Mr. Horn. More recent?
Mr. Cooksey. Yes.
Mr. Horn. You used 1993, that the Pardon Attorney was kept
informed on these Puerto Rican independents?
Mr. Cooksey. No. In 1993, when the original petition or
commutation was filed, I believe at that time we provided
progress reports and presentence reports to the Pardon
Attorney.
Mr. Horn. That happened in 1993. Did it happen between 1993
and 1999?
Mr. Cooksey. Not to my knowledge.
Mr. Horn. So a little flourish at the beginning of the
administration and then not much until recently?
Mr. Cooksey. Yes.
Mr. Jennings. If I could just interject on that. There was
an official recommendation from the Department that was made to
the White House in 1996.
Mr. Horn. Was that because of the Presidential election?
Mr. Jennings. I would not have any knowledge of that.
Mr. Horn. What date was on that?
Mr. Jennings. I do not have the date in front of me.
Mr. Horn. Is that executive privilege, a date?
Mr. Jennings. Not to my knowledge.
Mr. Horn. There's several ways of getting out of the
Federal Bureau of Prisons' system. One is to drop dead or be
killed. No. 2, you finish your sentence. No. 3, you could get a
furlough in some ways on good permit if you're in a light
sentence, but I doubt these people. And then you've got a
pardon, and you've got a clemency, and you've got parole from
the adult parole.
Now, how close is pardon and clemency? Do you consider it
over there the same thing or does--I'm trying to get at what
flows up to the President. If he asks the question, I want to
pardon this person versus I want to grant clemency versus the
board of--I've forgotten the name of it now. It was almost
wiped out after the Sentencing Commission, but I think it's
still around.
Mr. Jennings. Parole Commission.
Mr. Horn. There is a Parole Commission. They do have
political appointees from different administrations, including
this one, I would think.
So tell me about the paper that will be generated by the
FBI, the Bureau of Prisons, in terms of getting a parole,
getting clemency, getting a pardon. What's the difference? Just
tell me what you would go through over in Justice, what you
would ask for from the FBI.
Do you get a psychological screening? Do you get a behavior
report of how they were in prison? What are the things that you
would do if it was the President issuing a pardon or he would
never see a parole, would he, unless he knew the person?
Mr. Jennings. Sir, I am not an expert on the pardon
process, but I can comment as to the difference between
clemency and pardons and commutations if you'd like.
Mr. Horn. Fine. Let's hear it.
Mr. Jennings. Clemency is an umbrella term that refers to
pardons. Commutations are remissions of fines. A pardon is an
act of forgiveness of the offense, usually depending on State
law. A commutation of sentence simply cuts short the sentence,
and there is no forgiveness implied. And the remission of fines
removes the requirement to pay any unpaid portion of the fine.
It does not give any portion of the fine that has already been
paid.
Mr. Horn. How about on clemency? He did three before. What
was the process for three before this?
Mr. Jennings. Sir, I'm not knowledgeable.
Mr. Horn. Can we get it for the record?
What are the processes you went through on both the pardon
side, the clemency side, of which he only had three is what
we're reading, up to the current time when this onslaught comes
and what else does the Bureau of Prisons and the FBI report to
them?
Obviously, what I'm after is what didn't you give the White
House or Mr. Ruff or the President of the United States before
that decision was finally made? And how different is it and
what's your feeling on it? It seems to me that when you get
into a pardon you're into a major undertaking and people in all
administrations have been pretty careful. Clemency seems to be
less careful.
I just want to have it in the record at this point, Mr.
Chairman.
Mr. Burton. They can answer that question. Then we will
yield to Mr. Waxman.
Mr. Horn. That's fine.
Mr. Burton. You may answer the question. Then we will yield
to Mr. Waxman.
Mr. Cooksey. I cannot cover the information we provided to
the Pardon Attorney. To the best of my knowledge, it was the
pre-sentence reports and the progress reports in 1993. The
Pardon Attorney does have access to our inmate information
system which gives him access to information on discipline,
program participation, these types of things.
Mr. Horn. In other words, have they been a good boy in
prison? Is that what it gets down to if you're going to pardon
somebody?
Mr. Cooksey. That's the type of information he has access
to. To my knowledge, that's the only information we provided
him.
Mr. Horn. The Pardon Attorney is a civil servant or a
political appointee?
Mr. Jennings. It's an SES career position.
Mr. Horn. That's a civil servant, right?
Mr. Jennings. Yes.
Mr. Horn. So he would stay there between administrations.
Mr. Jennings. Yes.
Mr. Horn. Is that true in this case?
Mr. Jennings. Mr. Adams was appointed by the Deputy
Attorney General during this administration.
Mr. Horn. Who was that, Mr. Hubble?
Mr. Jennings. It was Mr. Holder.
Mr. Horn. Mr. Holder who is still there?
Mr. Jennings. Yes, sir.
Mr. Burton. Mr. Waxman.
Mr. Waxman. First of all, I want to say that I may have
misinterpreted the comments by Congressman Towns. Mr. Fossella
and I both understood him to be critical of the restrictions
being placed on these individuals after their parole, and I
responded negatively to that idea, but I have been informed
that Mr. Fossella and I both must have misunderstood because he
did not criticize the conditions that were placed on those who
were in fact paroled. For that reason, I do want to make a
public apology to Mr. Towns.
Let me start off with some questions of you and your
individual capacities. Mr. Jennings and maybe others of you
know the answers. If you do, please respond.
About these 16 individuals, each of these individuals was
convicted of several crimes; is that correct, Mr. Jennings?
Mr. Jennings. Actually, I would defer to the Bureau.
Mr. Cooksey. That's correct.
Mr. Waxman. And they received a prison sentence for each of
these crimes; isn't that correct?
Mr. Cooksey. I don't have that information. What I have is
their total term in effect.
Mr. Waxman. Mr. Gallagher, do you know whether they
received separate sentences for each of their crimes?
Mr. Gallagher. I'd have to go back on the record. I know
the total sentence for each person, and I assume it's a
combination of cumulative charges.
Mr. Waxman. My understanding is that the sentences were
imposed consecutively, meaning that the prisoners were required
to serve out the sum of all of their prison sentences. Do any
of you have any knowledge of that?
Mr. Cooksey. Normally, when a sentence is run consecutive,
you assert the--and this gets very technical. They're
aggregated to where you have--like if you have--under the old
system if you had a 15-year sentence, you were eligible for
parole. You just get one-third or 5 years. If you got two 15-
year sentences consecutive, for a term of 30 years, you would
be eligible for parole after 10 years. So that----
Mr. Waxman. My question is, if you have separate sentences
for separate crimes and you are told you are going to serve
them consecutively, that means you add them on.
Mr. Cooksey. That's correct.
Mr. Waxman. You may have different rules as to when you can
apply for parole, but they're run in sequence.
Mr. Cooksey. One behind the other.
Mr. Waxman. Now, today convicts are sentenced under the
Federal Sentencing Guidelines, are they not?
Mr. Cooksey. That's correct.
Mr. Waxman. Under those guidelines, how are multiple prison
sentences treated?
Mr. Cooksey. I'm not an expert on sentence computation. I
can get that information for you.
Mr. Waxman. That would be helpful. We'll hopefully have the
record open.
But my understanding is that the guidelines state that
prison sentences should be served concurrently, meaning that
all the sentences are served at the same time. So it's fair to
say that under the current sentencing guidelines, these 16
individuals would have received shorter prison sentences than
the ones they actually received. Do you have any information
about that?
Mr. Cooksey. I'm not sure.
Mr. Waxman. If they were serving a number of sentences
concurrently, would their sentences have been much shorter?
Mr. Cooksey. The longest sentence would have controlled. If
they had two 10 years and a 20 year, their total term, in
effect, would be 20 years.
Mr. Waxman. I would like to ask you about a case that was
recently mentioned in the Washington Post. According to the
Post this past summer, a Puerto Rican nationalist was convicted
of planting a bomb in a military recruiting center. He was
sentenced to a little more than 4 years in prison. Are you
familiar with that case?
Mr. Cooksey. I'm not.
Mr. Waxman. Maybe somebody can get this for the record
because I'd like to know why this individual sentence was so
short relative to the individuals who'd been granted clemency.
Now, the President sent to us his letter explaining what he
did with these individuals. He said he treated each one of
these individuals separately and looked at their sentences. And
he, for example, said that, for nine of them, they had been
convicted of seditious conspiracy and that amounted to 20
years; armed robbery, firearms offense was another 10 years;
vehicle charges, 5 years. So for these nine, when they had
their sentences all added up, they were sentenced to 55 to 90
years, and these individuals had served 19 years.
So the President decided that had they been under the
sentencing guidelines of today and served concurrently, they
would have been eligible for parole. He commuted for eight of
them their time to 23 and 26 years, 23 to 26 years rather than
55 to 90 years.
But then he said there was this one fellow, Carlos Alberto
Torres, and he was not going to give him the same treatment as
he did the others, and he handled that one differently. I'm
trying to find the reference to it. I think this was the fellow
who had been indicted by a Federal grand jury in 1977 on
explosive charges, was identified as a leader of the group and
had made statements that he was involved in a revolution
against the United States and that his actions had been
legitimate. For this man, the President did not go along with
the same type of clemency as he had done for the others.
None of you were involved in considerations of these
individuals as to the amount of time they were serving
consecutively or concurrently. It sounds like none of the three
of you even knew whether in fact they were serving consecutive
or concurrent terms; is that correct?
Mr. Gallagher. I knew they were serving consecutive terms,
and I knew the length of terms, but I believe your question
was, were they charged specifically for certain events and was
it a cumulative one? And that's the answer I did not have, what
the specific charge was and time served, sentence for each
charge.
Mr. Waxman. The President set forth three other
petitioners. By the way, his letter says they are all
petitioners. Someone raised the issue earlier whether they had
requested anything. Three of them were convicted of seditious
conspiracy and illegal transportation of stolen vehicles and
weapons offenses. They had 35 years. They had served 16 years.
The President commuted the sentence to 26 years. Now, I gather
if you have a 26-year sentence after serving for 16 years, Mr.
Cooksey, you can be considered for parole?
Mr. Cooksey. Under the old guidelines, if you had a 26-year
sentence, depending on the sentence structure, you could be
considered after one-third. Under the new guidelines, there is
no parole.
Mr. Waxman. One of the petitioners, Oscar Lopez Rivera, was
charged with the other nine petitioners, but he was not
arrested until later, in May 1981; and he was convicted of the
same offenses and received sentences totaling 55 years; and in
1984 he tried to escape. This was the gentleman Mr. Burton
asked you extensively about. He tried to escape and, Mr.
Cooksey, you said you would consider him not someone worth
taking a risk on. Is that a fair statement of your position?
Mr. Cooksey. We have him in a penitentiary. That explains
it all in a nutshell. That's high security.
Mr. Waxman. Well, the President didn't disagree with you.
And because he had been sentenced to an additional 15 years for
trying to break out of prison, the President said he proposed
commuting his original conviction to 29 years but did not
commute his sentence for the attempted escape which was 15
years. So this man was not going to be permitted for parole,
and he did not agree to the restrictions that would have been
placed on him, so he still has 29 years to serve, as best I can
calculate it.
Then there are four petitioners who are members of the Los
Macheteros, and they were considered separately.
Antonio Camacho-Negron was released in 1998, and he was
later rearrested for parole violation, and the President said I
refuse to commute his sentence although I did offer to remit
his outstanding fines. And Juan Enrique Segarra-Palmer had his
sentence commuted so that he would be eligible for parole after
serving 19 years in prison.
Now, when someone's given a commutation or clemency, no one
is saying they're not criminals. No one can assume they weren't
criminals. If they were terrorists, this doesn't mean they
weren't terrorists; is that a fair statement?
Mr. Gallagher. I think Mr. Jennings has testified to that
issue.
Mr. Waxman. A pardon would have been different. A pardon
might have wiped out their previous crime. The President wasn't
wiping out their crime. He was being more lenient in giving
clemency for the sentences that were imposed; is that right,
Mr. Jennings?
Mr. Jennings. A pardon is defined as an act of forgiveness
for the offense.
Mr. Waxman. Mr. Gallagher, to the best of your knowledge,
do you know of any instances of which the FBI did not oppose a
request for clemency?
Mr. Gallagher. Did not oppose?
Mr. Waxman. Yes.
Mr. Gallagher. I can't recall. First of all, many requests
that we received for clemency, and I can go back and check what
our position on each one was, but I'm not aware of any that we
would have--that we supported.
Mr. Waxman. Earlier today my staff asked the FBI whether
there had been instances where the FBI actually supported
clemency, and we were told that we couldn't get a conclusive
answer today because this would take some time to thoroughly
research the question. We were told, however, that they could
not recall any instances in which the FBI supported clemency.
Would you be willing to look into this question and give us an
answer?
Mr. Gallagher. Certainly, sir.
Mr. Waxman. To your knowledge, you don't recall any
instances where the FBI ever supported clemency?
Mr. Gallagher. Again, we--the issue of clemency is not a
routine issue that we're either constantly or consistently
asked about, but I will be able to research each time where the
Department of Justice has asked us for input and provide them.
Mr. Waxman. Article 2, Section 2 of the Constitution states
that the President shall have power to grant reprieves and
pardons for offenses against the United States. In reaching his
decision, the President can ask for the advice of law
enforcement officials such as the Justice Department, the FBI,
and the Bureau of Prisons. He can also listen to the advice of
others, including former President Carter, Bishop Tutu or his
counsel. So it seems to me very possible that the President may
have given due consideration to your recommendations but still
decided to grant clemency based on the advice of others. Would
you all agree to that?
Mr. Gallagher. I can't comment on what, if anything, was
passed on to the White House----
Mr. Waxman. That wasn't my question. My question to you is,
since the President has the prerogative in making this decision
and he asks for input from all sorts of groups that would have
appropriate things to say, including the FBI, the Bureau of
Prisons, the Justice Department and others, once he gets that
input, if he decided differently, if he decided clemency based
on others' advice, he has the prerogative to do that, doesn't
he, whether you agree with him or not?
Mr. Gallagher. I can't comment on that, sir.
Mr. Waxman. Why can't you comment on it?
Mr. Gallagher. You asked me whether or not the President
has the prerogative to consider. We're assuming that he has
been provided all the necessary information. I don't know that
to be a fact. So I can't presume that he, in fact, has the FBI
information, to what degree he considers----
Mr. Waxman. Let's presume for the purposes of my question
he had your input. The FBI said to him, we don't agree with
clemency. We don't agree with clemency for these individuals.
We don't think there ought to be clemency. And the President
had that advice and he had other people saying to him, we think
that it's unfair for them to serve consecutively all these
sentences. We wouldn't have that under the official guidelines
now. He's hearing from others that say that he ought to
exercise clemency for humanitarian reasons. Whatever arguments
are being made, when the decision is to be made, it is the
President's decision. Do you disagree with that?
Mr. Gallagher. No, sir.
Mr. Waxman. Do any of you disagree with that?
Mr. Jennings. No, sir.
Mr. Cooksey. No, sir.
Mr. Waxman. The President's decision, not everyone can
agree with, if he particularly gets conflicting
recommendations. Isn't that accurate?
Mr. Gallagher. Yes.
Mr. Waxman. I do want to point out, just because I have
time and there should be no misunderstanding of it, the
President didn't give unconditional clemency to these
individuals. He attached restrictions.
They had to report to their probation officers. They
couldn't violate any laws. They couldn't associate with
individuals who engaged in criminal activity. They couldn't
drink alcoholic beverages to excess. They couldn't purchase,
possess, or use marijuana or other narcotics. They could be
drug tested at any time. They couldn't associate with persons
who have a criminal record unless they had permission from the
probation officer. They could not possess a firearm or other
dangerous weapon.
I believe there are restrictions as well on their travel
regarding getting permission in advance to travel. And there
are other provisions in there--I don't know if they apply to
all of them in terms of paying their child support and all of
that.
Is this unusual, Mr. Cooksey or Mr. Jennings or Mr.
Gallagher, to place conditions on some kind of parole?
Mr. Cooksey. It depends on what type of release it is. If
an inmate is released on parole, those are pretty much the
parole guidelines that he has to abide by. If he's completed a
sentence, what we call mandatory release, but he still has a
period of supervision to follow, those similar restrictions
apply.
Mr. Waxman. If you're released on parole and you violate
any of the restrictions, any single one of them, what happens?
Mr. Cooksey. The U.S. probation officer--and again I'm not
an expert on this. I'm telling you my understanding--the U.S.
probation officer normally prepares a letter to the U.S. Parole
Commission requesting that the violator's period in the
community be revoked and he be brought back to the institution.
If the Parole Commission agrees, they'll bring him back for a
parole violator hearing. It's a due process hearing. Then at
that hearing they determine whether or not his parole should be
revoked or not and what new term he'll have to serve.
Mr. Waxman. In this particular case, one of the conditions
was if the Attorney General of the United States, this one or
the next one, receives information that there's been a
violation of any of the conditions, she could have them put
back into prison automatically. That's unusual, isn't it?
Mr. Cooksey. That's unusual that the Attorney General can
place an inmate back into prison.
Mr. Waxman. It appears from what the President appears to
be telling us is that he heard what the FBI had to say. He
heard from people who strongly disagreed with any kind of
leniency. He heard from people who strongly believe there ought
to be leniency. He looked at the sentences and thought that
these sentences were excessive, given the specific crimes for
which there was a conviction and that the sentences were all
being added up, being treated consecutively rather than
concurrently. And he thought he'd take a chance on some of
these people with these very carefully structured restrictions
that they would have to agree to in advance and they would have
to agree to renounce violence and not to associate with their
fellows from the FALN, not to engage in any kind of criminal
activity. That appears to be what the President has decided in
this case.
I said at the beginning of this hearing I don't know if
that's a decision I would have made, and I don't know if we'll
ever know what all the information is that the President had.
Because if there's ever a case for executive privilege, this is
about the strongest case there is.
The President and the administration has sent us boxes of
information, so we have a lot of information that he had
available to him. What we don't have is what his lawyers said
to him, what his staff people might have said to him, the kind
of communication for which the executive privilege doctrine has
always applied. And the reason for that--the policy reason for
that--is that the President should not have to be faced with--
nor should the people who advise him be faced with--their
advice being given with the idea of how it would look later on.
He wanted their candid assessment, and that assessment would be
kept confidential and would be considered privileged under the
executive privilege doctrine.
For the life of me, I can't understand why he didn't talk
with Ms. Berger or Detective Pastorella or the other victims. I
simply can't understand that. But he didn't.
And I don't know why the parole board didn't meet with him.
My understanding is that they should have. But the President
did have advice from others and reached the conclusion he
reached. And while it may not have been the conclusion that Mr.
Burton may have reached or I might have reached or others might
have reached, it's within his prerogative as the President to
reach the conclusion he has.
So I thank you for your testimony today. For those
instances where we've asked you to give us more information for
the record, I'd be pleased to see it. I hope the chairman of
the committee will make it part of the record and will hold the
record open to receive that information.
With that, Mr. Chairman, I don't know how much time I have,
but I'm going to yield it back to you to move on to the next
panel or conclude with this one.
Mr. Barr [presiding]. Thank you, Mr. Waxman.
I yield to the gentleman from California for 5 minutes.
Mr. Ose. Thank you, Mr. Chairman.
Mr. Waxman. Point of order. We're under the 5-minute rule?
OK.
Mr. Ose. The question I have, Mr. Gallagher, is I've heard
a lot of references to the Los Macheteros, which the
interpretation given to me is the machete wielders. Does that
sound like your bobby socks baseball team kind of thing or is
that something that kind of piques your interest?
Mr. Gallagher. Sir, not only by their name but by their--by
the crimes they committed I think you can clearly associate the
Los Macheteros with violence and crime.
Mr. Ose. I just want to make that clear. Because by saying
Los Macheteros we all say, gee, that sounds kind of neat. But
the translation is the machete wielders, just for
clarification.
I've read the President's executive grant of clemency, and
the question that I have is that there's nothing in here
specifying to the degree that my good friend from California
referenced, the terms and conditions of the clemency, such as
association, not being able to unduly buy alcoholic beverages
and the like. Are those applied uniformly by the Parole
Commissioner? Are they subject to a little bit of waiver now
and then, depending on the subject?
Mr. Cooksey. Generally, when an inmate is released on
parole, they have a uniform set of guidelines, which we've
talked about here. Now, there can be some special conditions.
If a releasee has a drug problem, there can be a special
condition that he seek drug treatment, those type things, but
they are generally the parole supervision requirements.
Mr. Ose. Do the parole supervision requirements for these
individuals preclude their association with each other?
Mr. Cooksey. On the parole supervision guidelines, you're
not supposed to associate with someone else that's been
involved in criminal activity or convicted of criminal
activity. Occasionally, there's an exception made. The
probation officer--like if it's a father and son or some
immediate family, you can make an exception where the parolees
can live together, communicate, these type things. So there is
occasionally an exception made.
Mr. Ose. Largely family based kind of things?
Mr. Cooksey. I would think so, yes.
Mr. Ose. Are there any such instances amongst these 16?
Mr. Cooksey. Not to my knowledge.
Mr. Ose. Have the probation officers with jurisdiction over
these 16 cases granted any of them the permission to associate
with any of the others?
Mr. Cooksey. I don't have that information. Not to my
knowledge.
Mr. Ose. Are there any circumstances under which such a
request would be granted by a probation officer?
Mr. Cooksey. I wouldn't have that--I wouldn't have that
information. That would go directly to the probation service.
Mr. Ose. You're the Assistant Director for Correctional
Programs?
Mr. Cooksey. Yes, in the Bureau of Prisons.
Mr. Ose. In the Bureau of Prisons.
Let me ask the question a little differently. As a matter
of practice, would any of these 16 be given permission by their
probation officers to consort with the other 15?
Mr. Cooksey. Again, I wouldn't have that information. The
U.S. Probation Office is under a different part of the
government than we are.
Mr. Ose. Did the Bureau of Prisons make any recommendation
regarding this subject?
Mr. Cooksey. No.
Mr. Ose. None whatsoever?
Mr. Cooksey. None whatsoever.
Mr. Ose. Mr. Chairman, I think this would be something we
could probably inquire about.
Mr. Burton [presiding]. If the gentleman would yield.
Were you asked by the administration to make any kind of an
inquiry or anything like that or recommendation?
Mr. Cooksey. No, sir. What we do as a standard matter
release, we notify the U.S. Probation Office that this person
is coming out. We try to have them approve a plan.
Now the pardon is more like--they're released on mandatory
release so they can go to one or two places, either the point
of conviction or their legal residence. And we try to develop a
plan in the area and once a probation officer accepts that
plan, we release them.
Mr. Burton. You were not asked by the administration for
any recommendations or advice or anything along those lines?
Mr. Cooksey. No.
Mr. Burton. Thank you for yielding.
Mr. Ose. Always a pleasure, Mr. Chairman. I thank the
gentleman.
I want to go back to the executive grant of clemency here,
and I just read it. There's nothing in here about associating
with any of the other 15 people being released--no preclusion,
no exclusion, no restriction. There's nothing written in black
and white here that would restrict the ability of any of these
16 to associate with the remainder. I want to be clear about
that.
And I don't have anything in my possession today from a
probation officer having jurisdiction that says anything of
that nature either, and that is of concern to me.
Finally, Mr. Chairman, I want to return to the President's
letter of September 21. I have some confusion here.
The first page of the President's letter is four
paragraphs, and it talks about the prisoners. Then in the
second paragraph of the second page, it starts talking about
the petitioners. And somehow or another we transmographied
ourselves from being prisoners to petitioners and yet there's
nothing in this letter, and we haven't heard any evidence today
to indicate that any of these 16 people ever petitioned the
government for clemency.
I want to be clear and I'm still unclear as to who has
petitioned the administration for clemency on behalf of these
people.
Mr. Burton. I think for the record we could ask the
agencies involved right now to give us information along those
lines when they go back, especially the Justice Department.
Mr. Ose. I see my time has expired.
I want to go back to this list that was provided earlier by
my good friend from California, which I appreciate. We have the
list of the people who support the release, some with
conditions, some unconditionally, but we still don't have the
information as to who petitioned, which is a wholly different
subject. I think we ought to get to the bottom of that.
Mr. Burton. I think your request of the Justice Department
for that is a good one, and we will ask them to give us that.
Mr. Barr.
Mr. Barr. Thank you, Mr. Chairman.
Mr. Chairman, if I might inquire of the chairman, it's my
understanding that the FBI, the Bureau of Prisons and the U.S.
Attorney's Office that prosecuted these cases all oppose the
grant of clemency; is that a correct understanding, Mr.
Chairman?
Mr. Burton. I think that is correct. I think both the
Bureau of Prisons and the FBI today pretty much indicated that
they thought these people should not be on the streets.
However, the Justice Department I think was not quite that
forthcoming. I think they were kind of ambivalent; is that
correct?
Mr. Jennings. As far as recommendations are concerned for
these individuals, it is covered by executive privilege as to
what our recommendation would be.
Mr. Barr. Mr. Gallagher, the fact----
Mr. Burton. Excuse me. I will give you some more time.
Did I not ask you earlier whether or not you thought these
people should be on the street, Mr. Cooksey?
Mr. Cooksey. You asked, but then you said you don't have to
answer this, and I said thank you.
Mr. Burton. All right.
Mr. Waxman. Mr. Chairman, if you would permit, maybe Mr.
Cooksey can tell us for the record, did the Bureau of Prisons
recommend against any kind of clemency for these individuals?
Mr. Cooksey. We were not asked for a recommendation.
Mr. Waxman. We know the FBI is negative.
Mr. Burton. Mr. Barr. I am sorry.
Mr. Barr. Had the Bureau of Prisons been asked, would they
have recommended against a grant of clemency for these
terrorists?
Mr. Cooksey. I really can't answer that question. I would
be one of several people that would make that decision. It
would be the ultimate decision of our Director.
Mr. Barr. What would be your recommendation?
Mr. Cooksey. My personal recommendation?
Mr. Barr. Yes, sir.
Mr. Cooksey. I would have to say I'm a law enforcement
officer at heart, and this would--this would concern me.
Mr. Barr. Mr. Gallagher, you are also opposed to a grant of
clemency for those terrorists; is that correct?
Mr. Gallagher. Correct, sir.
Mr. Barr. Mr. Jennings, where is the sky going to fall? You
put forward the proposition that there would be a chilling
effect on important functions of government if it were to
become public knowledge--if the public were made aware of
recommendations to the President on a matter that I would
presume even you would be at liberty to say does effect the
public, would you not? The FBI and at least this gentleman from
the Bureau of Prisons and a number of others have indicated and
are not afraid to let the public know that, in their view as
government officials, as law enforcement officials, a grant of
clemency would not be appropriate.
Where is the sky going to fall? Is the FBI no longer going
to carry out law enforcement functions because it is known that
the FBI opposed this grant of clemency? Is the Bureau of
Prisons no longer going to be able to maintain the security of
our prisons simply because we now know some officials oppose
the Presidential grant of clemency?
Mr. Jennings. Sir, I am not--certainly not an expert on
either area and----
Mr. Barr. Either area being----
Mr. Jennings. Either one of your questions as far as it
relates to the Bureau of Prisons or the FBI.
Mr. Barr. I don't know that that's responsive to anything.
You have put forward the proposition in both your written and
your oral testimony that there will be what you have cited as a
chilling effect on the functions of the executive branch if the
public--the citizens of this country were to know advice that
was given to the President for or against the granting of
clemency. We know that a number of executive agencies,
departments and officials have opposed and do oppose that.
Where is the chilling effect? What important function of
government is now no longer going to be able to be carried out
now that the public knows that?
Mr. Jennings. Sir, in my written statement, in my oral
testimony, I was referring to the recommendations of the White
House to the President from the Department as to the ultimate
recommendation for the 16 and, therefore, to not have the
President's assertion of privilege in this. Those people, by
virtue of the term ``chilling effect'', would not feel--maybe
feel as comfortable in the future in giving their candid
assessment.
Mr. Barr. Who does the Attorney General work for?
Mr. Jennings. The President of the United States.
Mr. Barr. Not the people of this country?
Mr. Jennings. I think she does work for the people of this
country.
Mr. Barr. I sort of think so, too. Because when a U.S.
Attorney or an Attorney General goes into court, they represent
the people of this country. They say, ready on behalf of the
people. Given the fact that the Attorney General worked for the
people of this country, the citizens of the United States of
America, what would be the chilling effect on his or her
capability to carry out the functions of that office on behalf
of the people if the people of this country know what the
recommendation of the Attorney General is?
Mr. Jennings. I think by virtue of having the President
having the exclusive right in the pardon process in accordance
with the Constitution, I think having her recommendation in a
public setting would have--and it's not just her; it's the
Department--would have a chilling effect on those who have
worked on it at a much lower level.
Mr. Barr. I think maybe you could enlighten me. Would then
the question become--would the Attorney General give different
advice to the President if the Attorney General knew that the
public would be aware of her recommendation? Is her
recommendation based on whether or not the recommendation
becomes public, or is it based on the facts and the
circumstances of the case and the law?
Mr. Jennings. Sir, I honestly could not speak for the
Attorney General on that issue. I think that she would have to
answer that question on her own.
Mr. Barr. I think we would probably both presume that it
would be based on the law and the facts and the history of
these matters; wouldn't that be a fair presumption?
Mr. Jennings. Probably sir, yes.
Mr. Barr. That being the case, then, and it not being a
determining factor in the recommendation of the Attorney
General to the President, whether or not that view becomes
public, what I ask you again, what is the chilling effect?
I'm not talking about all of the different conflicting
advice and all the minutes of the meetings between the Attorney
General and those under her, or between the President and the
heads of the FBI and the Attorney General; I'm talking about
the recommendation itself, which I think is different from all
of the frank exchange of views that you talk about.
I'm not----
Mr. Jennings. You're talking about the ultimate
recommendation?
Mr. Barr. I'm talking about the recommendation by the chief
law enforcement officer from the executive branch to the
President on a matter of very significant public note, public
safety and national security.
Mr. Jennings. As far as that is concerned, I would have to
say that, you know, it is the President's prerogative to assert
this privilege, which has covered exactly what you're asking,
as far as this--you know, the ultimate recommendation that was
made in 1996. So, therefore, as far as the chilling effect,
it's essentially--it's not, I think, for me to answer that in
the sense that it is covered by the President's privilege
assertion.
Mr. Barr. It just seems to me it becomes rather circular
that ``the chilling effect is the chilling effect is the
chilling effect'' sort of thing.
Mr. Chairman, I appreciate your efforts in this regard and
hope that we can get somewhere. Again, I can't speak for you,
but I think you share my view that we are certainly not
interested in hampering the legitimate internal deliberations
of the executive branch, but I do think that your asserting
them, Mr. Chairman, in subpoenaing these documents and pressing
the administration on production of these documents a proper
prerogative, and it is not at all inconsistent with the power
that the President has under the Constitution to grant clemency
to also require that the recommendations of a matter clearly
involving the public in which the public has a clear interest
in its safety should not be made public.
So I urge you, Mr. Chairman, to continue to press this
case. I think it raises a very, very important question.
Mr. Burton. Thank you, Mr. Barr. And we will be looking
closely at the transcripts and tapes of the conversations these
people had from the prisons, which will bear on this whole
issue.
Mr. Waxman. Mr. Chairman, I want to be recognized for a
second to say that there's no executive privilege left if we
say that any advice the President received from people that
work for him has to be made public information. If it's--as Mr.
Barr says, for a public interest, that the public therefore
ought to know what went on, well, that just is contrary to the
whole notion of executive privilege.
The idea of executive privilege, which was asserted many
times by President Bush and President Reagan and goes all the
way back to George Washington's day, is the idea that the
President should be able to get candid advice. And maybe the
world wouldn't come to an end if we had Attorney General Janet
Reno's recommendation to the President in this matter, but then
what about the people who wrote their recommendations to her,
what about others who want in all honesty to express their
views and don't want it made public because they're giving
their candid assessment to their boss, the President of the
United States?
It would apply to Members of Congress as well. What right
would people have to ask our staff what recommendations they
made to us? We don't have executive privilege, but the doctrine
is really the same. People won't feel free to give us their
honest advice.
If there is anything that the President of the United
States needs, it's the honest advice of people who work for
him, their candid assessment. They shouldn't be inhibited from
giving it to him. And we would also hope that the President
would reach out and get all the input from people who have
something relevant to say, but not all of it is treated with
any kind of confidentiality.
Mr. Burton. Since we have gone a little out of line here,
Mr. Barr, do you have a final comment you want to make?
Mr. Barr. Thank you, Mr. Chairman.
Mr. Chairman, I think what we're talking about here is
maybe, perhaps, different ways that each of us runs our staffs.
When I ask my staff for an opinion, I don't say, give me your
opinion based on whether or not your opinion will be made
public. I say, give me your opinion based on the facts and
circumstances and your best judgment of this issue.
I would certainly hope that the President of the United
States gets from Cabinet officials and from people as
distinguished and important as the head of the FBI and Bureau
of Prisons would be similarly based.
Some Members of Congress may look to their staffs for
entirely different views on entirely different bases. But
again, Mr. Chairman, what I am urging our work be about is not
to require that all of the details about every different option
that is being considered and the reasons for it to be made
public, but the recommendation on this sort of issue by top
officials of the government, tasked with responsibility not as
staff people, but as representatives of the people to carry out
important executive branch functions such as law enforcement,
that it is in the public interest and not inconsistent in any
way, shape or form with Presidential prerogatives that those
final recommendations be made known to the Congress and to the
public.
Mr. Burton. Well, we will try to find some other way to
skin the cat if we cannot get the President to accept what I
consider to be his moral responsibility to tell the American
people why he did this.
Let me yield real quickly to my counsel then--I yield real
quickly to Mr. Ose for his last comments.
Mr. Ose, go ahead.
Mr. Ose. Is this round a question or a minute? Five, OK.
First of all, I want to express my appreciation--and I am
saying this frequently--to my good friend from California and
the staff on the other side for providing these samples of the
conditions of release and the petitioner's request. I'm told we
have one from each of the various criminals who were given
clemency, and I'll ask the staff on the other side whether they
have any objection to making it a part of the public record. I
understand you're going to make all those documents part of the
public record. With the consent of the ranking member, I would
like to offer that now.
Mr. Burton. So ordered.
Mr. Ose. I want to go back to my fourth question, if I can
find my notes here, particularly of Mr. Gallagher.
Mr. Berger was quoted over the weekend, something to the
effect that the release of these individuals was not something
that should have been brought to his attention. I'm curious
from a national security point whether or not people who
consider themselves political prisoners and who have engaged in
this kind of behavior or their impending clemency release,
pardon, excusal--whatever you want to call it--whether or not
that has consequences worldwide that should be brought to the
National Security Adviser's attention.
Mr. Gallagher, you're the Assistant Director for National
Security at the FBI. I just happen to think that this is the
kind of thing that should be brought to the attention of the
National Security Adviser. I'm wondering if you agree.
Mr. Gallagher. Perhaps if I could answer it this way: Just
about every day the FBI goes somewhere in the world in pursuit
of our counterterrorism mission. When we deal with other law
enforcement agencies or intelligence agencies around the world,
we are suggesting a very aggressive counterterrorism program
that doesn't just go for the person who places a bomb; it also
goes to try to convince them to take on the infrastructure that
was--that will support a terrorist organization. To the degree
that this would ever send a message that persons who are not
the actual placers of a bomb, or the person who pulls a trigger
on a weapon, are not as serious a threat as those that would
support the terrorist organization, I would agree that is a
significant national security issue.
Mr. Ose. So, let me put this in layman's terms, if I might:
FBI works for the Department of Justice; they're in charge of a
program the point of which is to eliminate terrorist acts
against the United States, whether it be domestically or
overseas, coming to this country.
Mr. Gallagher. Or in some instances, as occurred in East
Africa when U.S. citizens become victims of international
terrorist acts, anywhere around the world.
Mr. Ose. Does the National Security Adviser have input into
that program?
Mr. Gallagher. The National Security Adviser, when there's
a significant international terrorism incident, is quite often
advised of the FBI's efforts to attempt to resolve that
incident.
Mr. Ose. So they would kind of be in on the ground floor,
if you will, of the actions we take to protect our citizenry.
My question is more directly related to the top floor, if
you will, or the last floor in such an instance where you
actually apprehend somebody, you take them through the process;
in this instance, we've convicted them, held them accountable,
and now we're releasing them.
Would the National Security Adviser be interested in that?
Mr. Gallagher. I heard the same or listened to the same
interview that you're relating to and heard Mr. Berger's
explanation that his responsibility is limited to issues--
international issues and not domestic issues. And he appeared
to indicate that someone else would have a different
responsibility for the domestic issues in the White House.
I couldn't comment on what he perceives to be his role or
lack of role in this instance.
Mr. Ose. Let me move on to my other question.
The President's offer of clemency--and, Mr. Chairman, maybe
we could followup on that, on this particular question--the
President's offer of clemency is dated August 11th of this
year. That's what this says right here. The sample petition
that I have been provided from Alberto Rodriguez, requesting
clemency and outlining the agreement on terms for any
commutation, is dated September 7th.
Perhaps, Mr. Jennings, this is more for you--is this the
ordinary process, that the executive grant of clemency comes
before the petition?
Mr. Jennings. Sir, I wouldn't have any knowledge of that.
It's not in my area of expertise.
Mr. Ose. Who would?
Mr. Gallagher. Not I.
Mr. Cooksey. I don't have any specific knowledge of how the
pardon process works.
Mr. Jennings. I think it would be the pardon attorney at
the Department of Justice.
Mr. Ose. Thank you, Mr. Chairman.
Mr. Burton. A grant of clemency is offered before the
request is made? I do not understand that.
I yield my time to Mr. Wilson.
Mr. Wilson. Mr. Cooksey, a couple of questions to followup
on something that you said. You mentioned earlier that the
Bureau of Prisons is currently reviewing tapes of phone calls
made from Bureau of Prisons facilities; is that correct?
Mr. Cooksey. That's correct.
Mr. Wilson. Have you at this point received any indication
that any of those offered clemency were talking about
furthering the goals of the FALN organization?
Mr. Cooksey. We have two tapes of where they had talked
some time in the past about furthering the goals of the FALN--
or ``the struggle,'' I can't say if it's FALN. I think they
used the term ``the struggle.''
Mr. Wilson. Now, was this information provided to the
Department of Justice or the White House prior to the grant of
clemency?
Mr. Cooksey. No, sir, provided afterwards. I think we sent
it over sometime around September 7th to the Department of
Justice. We started reading newspaper articles about what was
being said on our tapes, which was news to us; so we went back
and started reviewing the tapes.
Mr. Wilson. Mr. Jennings, would it have been material to
the Department of Justice's input on the clemency matter if
inmates in one of the facilities were making statements about
furthering any of the activities of the FALN organization?
Mr. Jennings. I certainly think that this would be relevant
information, yes.
Mr. Wilson. Would you have provided that to the White House
if you had been asked?
Mr. Jennings. I actually have no basis for knowledge of
that.
Mr. Wilson. Not to dance around it too much, but if the
White House had asked the Department of Justice for information
that was pertinent to the clemency decision, is there any basis
for the White House to withhold that information--for the
Department of Justice to withhold that from the White House?
Mr. Jennings. I don't think so, sir.
Mr. Wilson. Are you aware of whether there were any
requests for information that would have been obtained from
phone calls?
Mr. Jennings. I am not aware of any of that.
Mr. Wilson. And just to followup for the record, if you
could perhaps provide that to the committee for the record
after the hearing, that would be much appreciated.
[The information referred to follows:]
We are unable to respond to your questions about possible
White House requests to the Department for information relating
to the clemency review process because those communications are
also covered by the President's assertion of executive
privilege.
Mr. Wilson. Just following up on one matter that was also
touched upon earlier, there were quotations from a draft letter
to Chairman Hyde from Director Freeh. They were read into the
record at the beginning of the hearing.
Mr. Jennings, do you have any knowledge of whether this
information was provided to Congress?
Mr. Jennings. Oh, I have no information to that effect.
You're talking about Mr. Hyde's letter?
Mr. Wilson. No, it's apparently a draft letter from
Director Freeh to Congressman Hyde that was not signed and
apparently not sent.
Mr. Jennings. The letter that was referenced earlier, I
have no knowledge of how that was sent to Congress.
Mr. Wilson. Did your office ever receive a copy of that
letter?
Mr. Jennings. Not to my knowledge.
Mr. Wilson. Do you know of any other offices at main
Justice that received a copy of that letter?
Mr. Jennings. Not to my knowledge.
Mr. Wilson. Again I'll ask, if you could just followup for
the record, please, to provide some indication of whether that
letter was in the possession of anybody at main Justice, I
would greatly appreciate it.
[The information referred to follows:]
The draft letter from FBI Director Freeh to House Judiciary
Chairman Hyde was in the possession of the Department of
Justice and it was inadvertantly provided to your Committee on
September 17, 1999; see Bates numbers 001949-001952.
[Note.--The documents referred to are retained in committee
files.]
Mr. Wilson. One other matter, Mr. Gallagher: Are there any
ongoing efforts by the FBI to solve crimes attributed to the
FALN?
Mr. Gallagher. Certainly Fraunces Tavern remains an open
investigation. There are other individuals associated with the
$7.1 million armored car robbery that remain fugitives today,
the more recent bombings that occurred in Puerto Rico last
year, all remain investigations that are ongoing criminal
investigations.
Mr. Wilson. Do you know of any efforts to obtain
information from the people who were given the grants of
clemency prior to their release? And I'm specifically asking
here whether condition of the release was such that they would
provide information about some of these unsolved crimes.
Mr. Gallagher. At the time of their arrest, the FBI
attempted to interview and solicit cooperation from those who
were arrested. In fact, one of the FALN subjects eventually did
cooperate and testified in the trial in Chicago. All of the
remaining subjects have not cooperated with the FBI and we were
not asked--again, we were not part of the ultimate decision
process nor were we aware that that there was an ultimate
decision process. So we didn't have an opportunity to ask as a
condition that they cooperate.
Mr. Wilson. Would you have welcomed an opportunity to ask
the people given clemency whether they had any information that
would have been helpful in solving some of the crimes that
you've not convicted anybody for?
Mr. Gallagher. Having listened to the victims and the
families of victims of the first panel, the FBI will remain
committed for however long it takes to attempt to solve that
heinous crime in the bombings in New York.
Mr. Wilson. Now, just going back to the Fraunces Tavern
bombing, I think earlier in the proceedings a statement from
Mr. Jiminez was read and he stated on Meet the Press a couple
of weeks ago, ``I think all precautions were taken, you know,
to make sure that human life was preserved, and in the end the
measures were not taken that were necessary, by the people who
owned these establishments.''
Now, obviously he's blaming the owners of the restaurant
for something here. But if you could provide a little bit of
detail about that particular bombing, where the bomb was placed
and when the bomb was placed, so that we can determine for
ourselves whether there should be any blame attached to anybody
other than the terrorists.
Mr. Gallagher. With your permission, I'll provide a--to a
great extent, grand jury information, I'll provide as much
information as I can for the record.
Mr. Wilson. OK. But are you aware of where the bombs were
placed in the restaurant?
Mr. Gallagher. I would have to go back and check the actual
report. You take not only the Fraunces Tavern, you take the two
bombs in Chicago, all of those bombs had electronic timers on
them. So whatever precautions they take at the time of placing
the bomb, their precautions are for themselves when they walk
away and they leave a sufficient amount of time for them to
escape.
If someone is walking down the street, or if it's inside a
department store, a facility, and a night watchman or a
cleaning person happens to walk into that area, do we put the
blame on the person who walks into the area innocently?
In one of the bombs in Chicago, it was in a camera bag. And
someone saw the camera bag out in front of the bank and picked
it up, looked inside of it and happened to see that what they
thought might be a camera turned out to be numerous sticks of
dynamite and tossed it aside only to have it go off sometime
later.
Mr. Waxman. Mr. Chairman.
Mr. Burton. Mr. Waxman.
Mr. Waxman. Just for clarification of the record, the
document that I referred to earlier, which was a draft letter
from Mr. Freeh to Mr. Hyde, that letter was part of the
submissions by the Department of Justice to our committee. It
was submitted to the majority as well as the minority. We
received it at the very same time as did the majority receive
it.
And Mr. Jennings may not be aware of that specific part of
the boxes that you delivered to the committee, but that's how
we received it.
Mr. Jennings. Actually, I was just advised that we did see
a draft of the FBI letter and we did provide that.
Mr. Chairman, if I may, I wanted to just respond to Mr.
Ose's comment earlier about--if it's OK.
Mr. Burton. Sure.
Mr. Jennings. The document in question that you had, I was
advised that we haven't obviously seen it, but the document
reflects the person accepting the terms of clemency, maybe? Is
that the September----
Mr. Ose. Let me read it to you. It says, ``I, Alberto
Rodriguez, hereby request that the President of the United
States commute any sentence of imprisonment that I am now
serving as a result of conviction for one or more offenses in
the United States District Court for the Northern District of
Illinois, Chicago.''
And then it goes on, ``I understand,'' September 7, 1999,
Alberto Rodriguez. Then there's a notarization also with a
staff witness, Thomas LeMieux.
Mr. Jennings. We believe it's the acceptance of the
conditions, but we will make sure that we get a----
Mr. Ose. It actually says, ``I hereby request,'' and ``I
understand if,'' ``I understand that,'' so I don't think it's
an acceptance, just reading it as a layman. Maybe the attorneys
have a different perspective.
Mr. Burton. Assuming it is an acceptance, we would like to
know if there was a petition filed by any of these individuals
prior to the offer of clemency. If you could give us that
information for the record, we would appreciate that.
[The information referred to follows:]
The petition for clemency was received by the Office of the
Pardon Attorney on November 17, 1993, which was before the
offer of clemency in August 1999. The documents constituting
the petition were provided to your Committee on September 17,
1999; see Bates numbers 000259-000421.
[Note.--The documents referred to are retained in committee
files.]
Mr. Burton. And also it is my understanding once again, Mr.
Cooksey--just make sure I have got this clear that there was no
request by the President or the administration about
information that might be on the prison tapes.
Mr. Cooksey. No, sir.
Mr. Burton. Thank you. I want to thank you very much for
your patience. Thank you very much.
Give the head of the Bureau of Prisons and Mr. Freeh my
regards. And tell Ms. Reno we said hi, too.
We will have the next panel come up now. While we are
waiting on the next panel, let me just have two unanimous
consent requests.
I ask unanimous consent to release all documents subpoenaed
from the White House and Justice Department relating to this
matter, provided that the documents are reviewed by a majority
and minority staff and redacted appropriately prior to release.
Without objection, so ordered.
I ask unanimous consent to include in the record a letter
from the Fraternal Order of Police and a resolution of the
Puerto Rican
House of Representatives and a number of petitions against
clemency presented by Detectives Senft.
And without objection, so ordered.
[Note.--A number of petitions against clemency are retained
in committee files.]
[The information referred to follows:]
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Mr. Burton. Would you two gentlemen stand up, please, so we
can have you sworn.
[Witnesses sworn.]
Mr. Burton. Mr. Barnes, would you like to make an opening
statement first?
STATEMENTS OF HARRY BARNES, DIRECTOR, CONFLICT RESOLUTION
PROGRAM AT THE CARTER CENTER; AND REVEREND DR. THOMAS DIPKO,
EXECUTIVE VICE PRESIDENT, UNITED CHURCH BOARD FOR HOMELAND
MINISTRIES, UNITED CHURCH OF CHRIST
Mr. Barnes. Thank you, Mr. Chairman.
Mr. Burton. I apologize for the length of the hearing, but
as you can see, we had a lot of ground to cover.
Mr. Barnes. Learned a lot. Thank you.
My name is Harry Barnes. For the past 5 years and some, I
have been responsible for the Carter Center's program in the
areas of conflict resolution and human rights. Previously I had
been in the career foreign service. My last three posts abroad
were as Ambassador to Romania, India and Chile. I have been
involved in monitoring the case of the 16 Puerto Rican
nationalists, became involved in late 1996 and have followed it
ever since.
In February 1997, President Carter wrote to Attorney
General Reno, urging that she recommend to President Clinton
commutation of sentences for this group. President Carter
pointed out the similarities between these cases and those of
four Puerto Rican nationalists whose sentences he commuted in
1979. In both instances, the sentences were much longer than
those applied for comparable crimes or worse.
In early 1998, I went to see Deputy Attorney General Eric
Holder to get a clearer idea of the process involved in
clemency cases. Then in July of that year, President Carter
again wrote to the Attorney General. In that letter, he
mentioned he had read some of the prisoners' recent statements
and commented that there seemed to be a process of reflection
going on in their thinking. In addition, he stressed the
broader context, mainly the fact that 1998 was the 100th
anniversary of the United States annexation of Puerto Rico. At
that moment, he was hopeful that the Congress would decide to
offer Puerto Ricans an opportunity to make their own decisions
on their future status, but as you know, that has not yet
happened.
Last month, when President Clinton was at the Carter Center
to present the Medal of Freedom to President and Mrs. Carter,
President Carter used the occasion to mention his long-standing
interest in the Puerto Rican prisoners issue. President Clinton
told him that he had already decided to offer conditional
commutation and the news would appear a few days later.
From my experience over these last several years in
following the commutation question, I draw several conclusions:
one, that those convicted had served much longer prison terms
than usual for those crimes; two, that they should not be kept
in prison for crimes for which they had not been charged and
convicted; three, that the power of commutation thoughtfully
used is a power for adding mercy which can have a healing
effect; four, that amid all the diverse views on the wisdom of
President Clinton's decision to offer commutation to these
individuals, it is important to remember our fellow citizens
who are Puerto Ricans and who, as much as any of us, deserve to
decide for themselves their future status.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Barnes follows:]
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[GRAPHIC] [TIFF OMITTED] T0935.062
Mr. Burton. Dr. Dipko.
Rev. Dipko. Good evening. Thank you, Congressman Burton and
others, for giving me an opportunity to share with this
distinguished committee why the General Synod of the United
Church of Christ supports the President's clemency for Puerto
Rican men and women imprisoned for their convictions and
actions for the cause of Puerto Rican independence.
Our support is neither naive about the suffering caused by
the FALN, the bombings, nor callous toward those victimized by
them. The members of the United Church of Christ join me in
expressing sadness for what these victims have endured, even to
this moment. We abhor violence and believe that compassion for
the victims of violence is foundational to the justice system
of any nation that calls itself a democracy.
At the same time we live with the wisdom of Jesus, who
condemned the retaliatory rhetoric of an eye for an eye and a
tooth for a tooth. The hope of the world for justice and peace
does not lie in the reactive carnage of vengeance or in
punitive sentences that place retribution above rehabilitation
and reconciliation.
We agree with President Clinton, Amnesty International and
numerous voices of conscience at home and abroad who note that
in comparison with the 7 to 20-year sentences generally served
by people actually convicted of murder in our Nation, the more
than 1,000 years of incarceration imposed on these men and
women, averaging over 65 years in prison for each, constitutes
excessive punishment, disproportionate to the crimes of which
they were in fact found guilty.
Contrary to those who contend that guilt by association
justifies such harsh sentences wherever in the world terrorism
is invoked, we continue to champion due process and the
presumption of innocence as twin cornerstones of our American
legal heritage. We are a church of the dissenting Pilgrims and
Puritans who came to these shores in search of religious
liberty. But we are also the church of the Amistad and its
Mende people, who were lawlessly treated as slaves, when in
fact they were free men and women from Sierra Leone, West
Africa. Accused of mutiny and murder, their case pricked the
consciences of New Englanders unpersuaded by the sophistry of
the Mende's captors. Our solidarity with them brought their
case to the Supreme Court of this land, and with John Quincy
Adams, the former President and member of the House of
Representatives, acting as our attorney on their behalf, they
were declared free.
Our church, whose members founded Harvard, Yale, Dillard,
Fisk, and many other institutions of higher learning, believes
the promise of scripture, that the truth will set us free. We
do our homework well. At our best--and we are not always at our
best--we do not put a wet finger to the air to determine where
the winds of public opinion point on the road through moral
ambiguity to clarity of conscience before God.
These are some of the reasons why my church has urged this
controversial clemency since 1991. For me more personally, my
advocacy began in 1995 when I visited Dylcia Pagan, Lucy
Rodriguez and Carmen Valentin at the Federal correctional
institution in Dublin, CA. Whatever reservations I may have had
about the rightness of a call for their release evaporated at
that meeting and in subsequent visits that included Alicia
Rodriguez. I was moved by the honesty of these women about
their past. Their gentle strength and their desire to resume
responsible lives in society as persons who publicly committed
themselves to nonviolence before the offer of clemency in 1997.
I count my visits with them as one of the most transforming
experiences of my life.
It seems to me, by commentary to the side, I am one of the
few persons in this room who has actually met these persons. We
implore you and your colleagues not to indulge in the hysteria
that demonizes Carmen, Alicia, Lucy, Dylcia and their
colleagues. They have served more than ordinary sentences for
the crimes involved. Let us affirm their release and address
the causes that drove them to behaviors which none of us can
condone and which they themselves have pledged not to repeat.
Thank you.
[The prepared statement of Rev. Dipko follows:]
[GRAPHIC] [TIFF OMITTED] T0935.063
[GRAPHIC] [TIFF OMITTED] T0935.064
Mr. Burton. Dr. Dipko, you took great pains to go to prison
to talk to these people who were part of this FALN
organization. Did you by any chance take any time to go talk to
any of the victims?
Rev. Dipko. I do not know the victims personally except as
I have met them here today.
Mr. Burton. Thank you.
I yield the balance of my time to Mr. Barr.
Mr. Barr. Thank you, Mr. Chairman.
Dr. Dipko, your church I think refers to these people as
POWs; is that correct?
Rev. Dipko. We have referred to these persons as prisoners
of conscience.
Mr. Barr. Your literature describes them as POWs. What's
the difference between a POW and a POC?
Rev. Dipko. There is a significant difference. A prisoner
of conscience is a prisoner whether a citizen of this land or
not. But this land is a lawful Nation and its laws must be
taken seriously. These are persons who are not citizens of this
land, as you well know, on the basis of our territorial
agreements with Puerto Rico. It's a strange arrangement indeed.
Mr. Barr. I think you're wrong on that.
Rev. Dipko. They are citizens of this land, but they are
not entitled to the privileges of ordinary citizens.
Mr. Barr. You're wrong there too. The literature uses the
term POW.
Rev. Dipko. What literature are you referring to Mr. Barr?
Mr. Barr. This is a news brief from the Senate and it says,
this is an article--``POW Alejandrina Torrez to be honored,''
further quote during the Senate, ``POW Alejandrina Torrez will
receive,'' and then it goes on to describe, ``great accolades
are bestowing on her, the church.''
That's where I'm seeing the use of the term ``POW,'' which
stands for prisoner of war. Are you saying this was an error,
it shouldn't have said ``POW''?
Rev. Dipko. I'm saying that ``prisoners of conscience'' is
the standard language that we have used.
Mr. Barr. What is a POW?
Rev. Dipko. A prisoner of war would be a person who is from
another nation and is in conflict with this Nation, as I would
understand that term ordinarily, and therefore should be
treated under certain international conventions.
Mr. Barr. Which gets me back to my original question, why
do you all consider these people prisoners of war?
Rev. Dipko. And I'm saying to you, as I understand our use
of the term, our standard use for referring to them is
``prisoners of conscience.''
Mr. Barr. Whoever wrote this might have been in error.
Rev. Dipko. It could well have been.
Mr. Barr. Regardless of whether you describe this, this
woman as a prisoner of war or prisoner of conscience, she
apparently was singled out for recognition as an honored
laywoman; is that correct?
Rev. Dipko. That's correct.
Mr. Barr. Was it her bombmaking capabilities that make her
honored? What was it that makes her honored?
Rev. Dipko. She was honored because she had convictions
about the self-determination of the peoples of Puerto Rico.
Mr. Barr. If, in fact, the activities of her and her
colleagues have resulted in many more deaths, would they still
be honored in your eyes?
Rev. Dipko. No, they would not.
Mr. Barr. Where is the distinction between killing only a
certain number of people and killing a sufficient number to no
longer be considered honored by your church?
Rev. Dipko. There is a presumption in your question that
the church would say with you that she was guilty of killing
even a single person. The church has not assented to that.
Mr. Barr. Does the church's definition of killing of a
person extend only to the actual physical act between a
perpetrator and a person being murdered, in other words
actually pulling the trigger, stabbing the knife into the flesh
and taking away a person's life? Is that only in--as far as
what the church's definition of murder is?
Rev. Dipko. The church is not a civil or criminal court. We
are saying back to you, sir, this is not what she was tried for
or found guilty of. Those charges are well known to you on this
panel.
Mr. Barr. But you are, though, at the same time saying that
the church does draw some lines.
Rev. Dipko. It certainly does.
Mr. Barr. Apparently these people did not cross the line
into being dishonored, they remained on the honored side.
Rev. Dipko. I'm saying to you as far as this church
understands it, they were never tried for or found guilty of
such acts as murder.
Mr. Barr. Were you here earlier when we showed the tape of
this honored----
Rev. Dipko. Yes, I was.
Mr. Barr. That didn't impress you at all? You still believe
this is an honored person?
Rev. Dipko. That tape would have to have a lot more
unpacking for me to understand where it came from and the
circumstances under which it were made.
Mr. Barr. Let's look at it any way.
[The videotape was played.]
Mr. Barr. The woman at the bottom is your honoree,
Alejandrina Torrez. They are manufacturing bombs designed to
kill, maim, injure and destroy property.
Rev. Dipko. If that is an accurate record of the happening
and that is in fact what she was doing, the church would wish
to, of course, disassociate from it.
Mr. Barr. In other words, she would no longer be considered
an honored person?
Rev. Dipko. I would think so.
Mr. Barr. Thank you.
Mr. Burton. Mr. Waxman.
Mr. Waxman. Thank you, Mr. Chairman.
Mr. Barnes, as I understand it, former President Carter
wrote to Attorney General Reno urging her to support clemency
for these 16 individuals. And I would like to ask you a few
questions about when President Carter made a decision in 1979
to pardon four Puerto Rican nationalists. What crimes were the
pardoned individuals convicted of?
Mr. Barnes. Several were involved in the attempt to kill
Members of this House. One, if I recall correctly, attempted to
assassinate President Truman near the Blair House.
Mr. Waxman. Would it be fair to say that the individuals
President Carter pardoned were convicted of more serious crimes
than those granted clemency by President Clinton?
Mr. Barnes. Yes.
Mr. Waxman. And how much prison time did those individuals
serve that President Carter had----
Mr. Barnes. If I recall correctly, they served some 25, 26
years.
Mr. Waxman. And did President Carter attach any conditions
to his pardons?
Mr. Barnes. He did not.
Mr. Waxman. Did the individuals pardoned by President
Carter return to violence after their release?
Mr. Barnes. No.
Mr. Waxman. It was in 1979, wasn't it?
Mr. Barnes. That's correct.
Mr. Waxman. Didn't people know there was an election in the
next year? They could have perhaps made some hay out of that.
Mr. Barnes. Perhaps. I don't know.
Mr. Waxman. Well, that's somewhat of a rhetorical question.
But let's not kid ourselves, if this were in any way being
seized by the Republicans for partisan reasons, we wouldn't
have this issue being brought before four committees of the
Congress, an unprecedented action of Congress of the United
States, denouncing the President's decision without getting all
the information about why he made a decision and without even
having the constitutional prerogative to make that decision.
In your opening statement, you said that you had reached
the conclusion that these individuals had been given
disproportionately long prison sentences for their crimes. Why
did you reach that conclusion?
Mr. Barnes. Because based on the sentencing guideline at
the time, the standard sentencing for comparable crimes would
have been less than the time actually served by the time
President Carter made his decision.
Mr. Waxman. President Carter also said in his letter to
Attorney General Reno that, ``A serious process of reflection
has taken place. If a clear, democratic path to independence
had existed at the time, it's quite likely that they would not
have chosen to act as they did.''
I must say that I'm offended by that statement. It may be
his view, but whatever reasons these people had, they're not
good enough in our society to engage in actions that are
violent, whether they were the perpetrators directly or not,
but ended up in the loss of human lives. I also was troubled by
the idea that this would be considered a humanitarian gesture.
I don't think we have to make gestures of humanitarianism.
I think what we need in this country is justice. And by
justice, that means taking into consideration what happened to
the victims who suffered, but I also think, Dr. Dipko, that
justice means looking at the offenses for which these people
have been convicted.
Rev. Dipko. Exactly.
Mr. Waxman. I'm troubled when what we hear, or at least
what I sense, is that people are being condemned for
association----
Rev. Dipko. Exactly.
Mr. Waxman [continuing]. With an organization that has been
involved in terrorist activities.
Mr. Barnes. That's President Carter's basic point.
Mr. Waxman. An individual was associated with the FALN and
the FALN was responsible for terrorist activities. Unless that
individual is responsible for it, I don't think that individual
ought to be given 90 years of prison. But if the individual
were responsible, then that individual had to be charged and
convicted.
The individuals here that President Clinton gave clemency
to--he didn't pardon them, but gave clemency to--were convicted
of different specific crimes. Now, maybe they couldn't have
proven anything more, but we could assume they were bad people.
But that's not justice in my view. In our civil law it's not
justice to put people away for life or to execute them for
lesser offenses than murder. And it seems to me, in any sense
of morality, it's not justice to throw the book at somebody for
a crime you think they might have committed or approve of if
they didn't themselves perpetrate it.
Is that what you're saying, Mr. Barnes?
Mr. Barnes. That's right.
Rev. Dipko. I would like to ask Chairman Burton----
Mr. Waxman. I don't want you to ask anybody a question. I
want you to answer mine, because this is my time.
Do you agree with the point I'm making?
Rev. Dipko. I do.
Mr. Waxman. I was very impressed by the statement of the
victims. I know both of my children have narrowly escaped an
act of terrorism when they were in Israel. A classmate of my
son was killed by people who thought their cause was just:
self-determination for the Palestinian people. Whatever justice
they might claim for that cause, it would never justify, in my
view, killing my son or my son's classmate, nor would I want
somebody to come years from now, later, and say that the man
that shot at innocent children in Los Angeles or shot Jewish
individuals and a black man in Chicago, if he had some notions
of serving the greater cause of the Aryan Nation, should be
considered a political prisoner because he had a political
point of view.
He could feel very deeply about it. It could be ingrained
in his sense of conscience. But to me, justice would require
that that individual never be released from jail after he is
presumably convicted for murder or killing or attempted killing
of innocent individuals, whatever the actual crime may be.
Is that the point you're making or do you have any
difference of opinion? Do you think that the greater cause is
ever a justification for taking human lives and committing
crimes?
Mr. Barnes. Mr. Waxman, are you asking me or asking----
Mr. Waxman. Either one of you. Because if you do, we have a
disagreement.
Maybe I'm not asking either of you. I'm stating my
position, and my position is, I don't care what the cause was,
even if they saw a chance at the time they engaged in these
activities to win their point of view, democratically, they
didn't have support for it, and they acted in ways that I don't
think we can ever sanction.
Thank you, Mr. Chairman.
Mr. Burton. Mr. Ose.
Mr. Ose. Thank you, Mr. Chairman.
Is it Ambassador Barnes; is that correct?
Mr. Barnes. I was once upon a time an ambassador, and I'm
not any longer.
Mr. Ose. All right. Mr. Barnes.
Puerto Rico, if I understand correctly, has had at least
one referendum on the issue of independence; is that correct?
Mr. Barnes. I'm sorry, I didn't understand.
Mr. Ose. Puerto Rico has had at least one referendum on the
issue of independence; is that correct.
Mr. Barnes. My understanding, there have been two, from
what the Representative said earlier. There was one, I believe,
most recently in 1998, which was done locally, but not with
authorization from the Congress.
Mr. Ose. What were the results of those two referenda?
Mr. Barnes. Again, as I understand it, essentially fairly
evenly divided from those who wanted to maintain the present
situation and those who wanted statehood, and very small
numbers who wanted independence.
Mr. Ose. Which side had the majority? Was it the majority
to stay as is or the majority for proindependence?
Mr. Barnes. Again, my understanding is, the majority,
although it's a slim majority, is for statehood.
Mr. Ose. So there exists--and if I also understand
correctly, Puerto Rico has a Governor elected from the State--
it has an assembly and a senate where people are elected by the
citizenry to serve there and try and address the political
needs of the residents of Puerto Rico.
Mr. Barnes. The point I was trying to make earlier was that
people in Puerto Rico have not been given an opportunity yet by
the Congress to decide what they want for their future status.
President Carter, for example, in 1978, proposed--and this
has been followed up by some of his successors--proposed that
the people of Puerto Rico have an opportunity to choose among
several alternatives.
Mr. Ose. What was the vote this last? Logically, would you
think that the residents of Puerto Rico voted in favor of
statehood or in favor of continuing territorial status, as
opposed to voting for independence, would you think they were
satisfied with the situation?
Mr. Barnes. No, I wouldn't think that, because this was an
advisory referendum. It had no status.
Mr. Burton. Will the gentlemen yield?
Mr. Ose. Certainly.
Mr. Burton. There have been two referenda to give Congress
some guidance. Granted, they were advisory, but the fact of the
matter is the overwhelming majority, 97\1/2\ percent, either
wanted commonwealth status, which is remaining the way it is,
or statehood. Only 2\1/2\ percent wanted independence.
Those people are American citizens, and they want to stay
that way one way or the other. As far as the final
determination, any territorial possession of the United States
has to go through an act of Congress before there is any change
in their status. And the same was true of Hawaii and Alaska
when they became States. So I think--to interrupt the
gentleman--but the fact is those people do not want
independence, and this is a splinter group that is doing this.
Gentlemen.
Mr. Ose. Mr. Chairman, you have a far greater ability to
get to the heart of the matter; that's where I was trying to
get to.
I don't understand how it is that a referendum, advisory in
nature, that shows even 70 percent, let alone the 97 percent,
in favor of staying as it is, or becoming a State or a
Commonwealth, I don't understand why that doesn't rule the day.
I don't understand the legitimacy that gets ascribed to them
when they're so overwhelmingly not supported.
Mr. Barnes. The point is that the overwhelming majority
want a chance to make that decision if they can be given an
opportunity by the Congress, as the chairman was pointing out.
Mr. Ose. Yet these 16 individuals--granted it was roughly
20 years ago--are engaging in criminal acts that certainly in
no sense of the word would be interpreted as being supportive
or helpful in getting to that. I find two distinguished
gentlemen here testifying before Congress that this is
something that merits our attention.
Mr. Barnes. I'm sorry, Congressman, but I'm not making
myself clear. I wasn't talking about the legitimacy of the
actions for which they were charged and condemned; I was
talking about the importance of the people of Puerto Rico being
able to do more than advise.
Mr. Ose. I think this House is on record as supporting
statehood.
Mr. Burton. We passed it. It went to the Senate and did not
get action. But if the Puerto Rican people voted a plebiscite,
advisory or otherwise, that they want independence,
commonwealth or statehood, I am sure you would see Congress
start taking some steps to move in one of those directions. So
far there has been no conclusive evidence.
Mr. Ose. I'm relatively new here. I have over the years
watched distinguished gentlemen like my good friend Mr. Waxman
and my good friend Mr. Burton deal with these questions. I
cannot conceive of the circumstances where two gentlemen from
opposite sides of the aisle can work together toward addressing
common concerns peacefully within the confines of the existing
law when we have another group that's outside the confines and
we have to grant them some sort of special status for whatever
reason. I don't understand it.
If two gentlemen such as these can work out their
differences, I don't understand why anyone would resort to the
violence that's been perpetrated by these people.
Rev. Dipko. You do raise a question about why. Earlier
today, one of your colleagues did refer to his conscience on
the matter that he could make a strong case from your own bench
for the independence of Puerto Rico. I am well aware of the
partnership of the Chair and the minority leader at this table,
and I agree with you, it's to me encouraging to see it working
here today.
But what about the United Nations norms for determining
plebiscites for the self-determination of peoples? Are we
really abiding by the codes we ourselves would require of other
nations with similar claims, when it comes to the manner in
which we are allowing the people of Puerto Rico to determine
their own history? I am not sure that we are, Congressman. The
evidence to me is to the contrary.
And I'm no stranger to Puerto Rico. Sixty of our parishes
are there, and a number of our institutions, including
hospitals and theological seminaries.
I think we can do better than we're doing. I do agree with
you that violence is not the way.
Mr. Ose. I would argue under our system, and I share your
concern, as so eloquently put by Mr. Waxman also, that violence
is not the way. We have the House on record supporting allowing
Puerto Rico to move toward statehood. We need to focus on the
Senate and then have the referendum. I think we would be far
better off addressing the concerns of law-abiding citizens in
Puerto Rico, than spending our time potentially even talking
about mercy for these 16 individuals.
That's the essential problem I have as a Congressman today.
I don't know why we're spending the time of the U.S. Congress
or why the administration has extended to these 16 individuals
the status that has been granted to them. I take considerable
exception to it.
Mr. Burton. Thank you, Mr. Ose.
I want to thank you gentlemen for being so patient and
staying here with us.
Mr. Barnes, you stated that these FALN members served
longer sentences than usual for their crimes. What I would like
for you to do, if you can, is give us some examples of that for
the record. I am not sure that we know that they served longer
sentences than usual for their crimes. If you have some
examples, we would like to have that.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T0935.065
[GRAPHIC] [TIFF OMITTED] T0935.066
Mr. Burton. With that, gentlemen, thank you very much for
your patience. We stand adjourned.
[Whereupon, at 6:13 p.m., the committee was adjourned.]