[House Report 106-488]
[From the U.S. Government Publishing Office]
Union Calendar No. 273
106th Congress, 1st Session - - - - - - - - House Report 106-488
THE FALN AND MACHETEROS CLEMENCY: MISLEADING EXPLANATIONS, A RECKLESS
DECISION, A DANGEROUS MESSAGE
__________
THIRD REPORT
by the
COMMITTEE ON GOVERNMENT REFORM
together with
DISSENTING AND ADDITIONAL VIEWS
Available via the World Wide Web: http://www.house.gov/reform
December 10, 1999.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
__________
U.S. GOVERNMENT PRINTING OFFICE
60-619 WASHINGTON : 1999
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-HAGE, Idaho (Independent)
DAVID VITTER, Louisiana
Kevin Binger, Staff Director
James C. Wilson, Chief Counsel
Kristi L. Remington, Senior Counsel
Lisa Smith Arafune, Chief Clerk
Phil Schiliro, Minority Staff Director
LETTER OF TRANSMITTAL
----------
House of Representatives,
Washington, DC, December 10, 1999.
Hon. J. Dennis Hastert,
Speaker of the House of Representatives,
Washington, DC.
Dear Mr. Speaker: By direction of the Committee on
Government Reform, I submit herewith the committee's third
report to the 106th Congress.
Dan Burton,
Chairman.
(iii)
C O N T E N T S
----------
Page
Findings of the Committee on Government Reform................... 1
I. Why the Committee investigated the offer of clemency to the 16
terrorists........................................................5
II. Factual background...............................................11
A. The capture and conviction of the individuals offered
clemency................................................. 12
1. History of the FALN's reign of terror in Chicago and
New York............................................. 13
2. The capture of the ``Chicago 11''..................... 16
a. The investigation................................. 17
b. The trials........................................ 18
i. Ten individuals tried in Chicago.............. 19
ii. Maria Haydee Torres.......................... 20
iii. Oscar Lopez Rivera.......................... 21
3. 1985 Chicago FALN group............................... 22
a. The safe houses................................... 22
b. Plans for prison breaks........................... 23
c. Plans to rob the Chicago Transit Authority........ 24
d. The plan to assist FALN fugitive William Morales.. 24
e. Plans for bombings................................ 25
f. The trial......................................... 25
4. The Macheteros' activities in Puerto Rico............. 26
5. The Wells Fargo robbery and Macheteros convictions.... 29
a. The robbery....................................... 29
b. The investigation and indictments................. 30
c. The trials and convictions........................ 32
B. The sentences of the 16 offered clemency.................. 34
1. Elizam Escobar........................................ 35
2. Ricardo Jimenez....................................... 35
3. Adolfo Matos.......................................... 36
4. Dylcia Noemi Pagan.................................... 37
5. Alicia Rodriguez...................................... 37
6. Ida Luz Rodriguez..................................... 38
7. Luis Rosa............................................. 38
8. Carmen Valentin....................................... 39
9. Alberto Rodriguez..................................... 39
10. Alejandrina Torres................................... 40
11. Edwin Cortes......................................... 40
12. Oscar Lopez.......................................... 41
13. Juan Enrique Segarra-Palmer III...................... 42
14. Antonio Camacho-Negron............................... 42
15. Roberto Maldonado-Rivera............................. 43
16. Norman Ramirez-Talavera.............................. 43
III.The clemency process and decision................................44
A. How the clemency process works............................ 44
1. Procedures for commutation............................ 44
2. Standards for considering commutation................. 46
B. The FALN/Macheteros clemency process...................... 47
1. The application process............................... 47
2. The campaign for release.............................. 48
3. Justice Department action on the clemency............. 49
4. Opposition to the clemency............................ 52
a. Offices of the U.S. Attorneys..................... 52
b. The Federal Bureau of Investigation............... 53
c. The Bureau of Prisons............................. 54
d. The victims of the FALN and Macheteros' violence.. 54
5. Two Justice Department reports on clemency............ 57
6. The White House's role in the clemency process........ 60
IV. The sentences were fair..........................................68
V. The FALN and Macheteros terrorists are strange candidates for
clemency.........................................................72
A. Criteria for clemency..................................... 73
B. The violent nature of those offered clemency.............. 74
1. Present day threats................................... 74
2. Violent escapes planned by the FALN prisoners......... 75
a. Escape plan of Oscar Lopez Rivera................. 75
b. Escape plans of Ricardo Jimenez................... 78
C. The FALN and Macheteros members offered clemency expressed
no remorse, nor did they exhibit any signs of
rehabilitation........................................... 79
1. Statements of Oscar Lopez............................. 81
2. Statements of Edwin Cortes............................ 81
3. Statements of Adolfo Matos............................ 82
4. Statements of Antonio Camacho-Negron.................. 83
5. Statements of Ricardo Jimenez......................... 83
6. The exception: Alberto Rodriguez...................... 84
D. No cooperation was requested or offered from the FALN and
Macheteros members....................................... 85
VI. The clemency decision and the U.S. commitment to fighting terrori85
A. The international message................................. 86
B. An inconsistent policy on dealing with terrorists......... 88
C. Repatriation of an FALN sympathizer to Italy.............. 89
VII. The Justice Department's decision to prevent the FBI from
submitting an opening statement.................................90
Conclusion....................................................... 91
APPENDICES
Appendix I.--The FALN and Macheteros in their own words.......... 429
Appendix II.--Letter from Chairman Burton to Attorney General
Reno dated October 19, 1999.................................... 493
Appendix III.--Repatriation of an FALN sympathizer to Italy...... 495
VIEWS
Dissenting views of Hon. Henry A. Waxman, Hon. Tom Lantos, Hon.
Major R. Owens, Hon. Edolphus Towns, Hon. Paul E. Kanjorski,
Hon. Patsy T. Mink, Hon. Eleanor Holmes Norton, Hon. Chaka
Fattah, Hon. Elijah E. Cummings, Hon. Dennis J. Kucinich, Hon.
Danny K. Davis, Hon. John F. Tierney, Hon. Thomas H. Allen,
Hon. Harold E. Ford, Jr., and Hon. Janice D. Schakowsky........ 526
Additional views of Hon. Dan Burton.............................. 578
Union Calendar No. 273
106th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 106-488
======================================================================
THE FALN AND MACHETEROS CLEMENCY: MISLEADING EXPLANATIONS, A RECKLESS
DECISION, A DANGEROUS MESSAGE
_______
December 10, 1999.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Burton, from the Committee on Government Reform submitted the
following
THIRD REPORT
On November 10, 1999, the Committee on Government Reform
approved and adopted a report entitled ``The FALN and
Macheteros Clemency: Misleading Explanations, A Reckless
Decision, A Dangerous Message.'' The chairman was directed to
transmit a copy to the Speaker of the House.
FINDINGS OF THE COMMITTEE ON GOVERNMENT REFORM
The Committee on Government Reform has conducted an
investigation of the President's decision to offer clemency to
16 FALN and Macheteros terrorists. Subpoenas were issued to the
White House for documents, a public hearing was held on
September 21, 1999, and this report has been issued. The
Committee has reached the following conclusions as a result of
its investigation:
Some Within the White House Saw Political Benefit
in the Release of These Terrorists. One of the key White House
staff members during the clemency process wrote that the
release of the 16 terrorists would ``have a positive impact
among strategic Puerto Rican communities in the U.S. (read,
voters).'' Other notes produced to the Committee indicate that
White House personnel believed that certain Congressmen would
not vote with the President unless he committed to releasing
the terrorists. Jeffrey Farrow, a key Presidential adviser on
this issue, wrote in an e-mail:
We should think about a meeting soon with Reps.
Gutierrez, Velazquez, and Serrano on the Puerto Rico
(1)
independence crimes prisoners issue. They have
requested one with the POTUS but the options include
the VP and John as well. The issue should be resolved
soon--the petitions have been before us for a long
time. The VP's Puerto Rican position would be helped:
The issue is Gutierrez's [sic] top priority as well as
of high constituent importance to Serrano and
Velazquez.
The Sentences Imposed Upon the FALN and Macheteros
Prisoners Were Fair. The President and his spokesmen
represented that the 16 offered clemency had served sentences
in excess of what they would now receive under the sentencing
guidelines. This is not true. According to the U.S. Sentencing
Commission, which analyzed this matter specifically, ``the
federal sentencing guidelines generally would call for
sentences as long as or longer than those actually imposed, if
the defendants had been sentenced under current law.''
Furthermore, less than 9 months before the President and his
spokesman made these statements, a senior Justice Department
official informed a Member of Congress, in writing, ``[t]he
sentences are in line with sentences imposed in other cases for
similar terrorist activity.'' Given the President's divergence
from the Sentencing Commission and his own Justice Department,
the Committee believes he should waive executive privilege and
release the information he relied upon to make his public
representations.
The President and His Spokesman Misrepresented
Facts Concerning the Terrorists. The President communicated
that the 16 terrorists offered clemency were being held in
prison ``in effect by guilt by association.'' In fact, they
were incarcerated because they had committed serious crimes and
had been sentenced for those crimes. The individuals in
question were not the non-violent wing of the FALN or
Macheteros. They built bombs, were engaged in a wide-ranging
conspiracy, and committed crimes that justified lengthy prison
terms. There has been no suggestion that there were errors in
the sentencing process.
Those Offered Clemency Were Violent Offenders. In
the days after the clemency offers were made, the President
made an effort, through his surrogates, to convince the
American people that those offered clemency were non-violent
offenders. For example, National Security Adviser Sandy Berger,
appearing on national television at a time when this issue was
headline news (and therefore likely to be the subject of
contemporaneous briefings), said ``[t]hey're not individuals
who personally were involved in violence.'' Below are some
examples of the ``non-violent'' offenders offered clemency by
the President:
Oscar Lopez: An individual so ``non-violent'' that he
wouldn't renounce violence to get out of prison. In
addition to crimes committed in furtherance of FALN
goals, he plotted two escapes from Federal prison. One
was from Leavenworth Penitentiary and, according to a
Victim Impact Statement, he ``planned to blow up Fort
Leavenworth with the most powerful plastic explosives
known to the military, riddle guard towers with rounds
from automatic weapons, and throw grenades in the path
of those who pursued them. To achieve their goals,
Lopez and Brown considered killing the inmates who
threatened Richard Cobb, killing George Lebosky after
they became suspicious of him, and killing firearms
dealer Michael Neece to gain his weapons.'' He set in
motion plans to obtain the following for his escape
attempt: 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 plastic explosives, 100
30-shot clips to use with automatic weapons. In Lopez'
probation officer's assessment, ``[Lopez'] level of
remorse, rehabilitation and positive regard for this
court's process is minimal, if not nonexistent. 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 United States government. He has
already determined that human life is expendable for
this purpose.''
Juan Segarra-Palmer: In 1987, the U.S. Court of
Appeals for the Second Circuit found that: ``The
[Federal] district judge also found that [Juan]
Segarra-Palmer had organized and taken part in the
attack in Puerto Rico on a United States Navy bus
taking sailors to a radar station, on December 3, 1979,
in which two sailors were killed and nine wounded.''
Edwin Cortes: While planning Oscar Lopez' escape from
Federal prison, the following statement by Cortes was
recorded by the FBI: ``[y]es, but she [Alejandrina
Torres--another recently freed terrorist] has to have
it loaded and cocked further back. If they have to
shoot, they can shoot.''
Finally, the seditious conspiracy counts in the
indictments of 14 of the individuals offered clemency
included the construction and planting of explosive and
incendiary devices (bombs) at 28 separate locations.
Those Offered Clemency Were Very Unlikely
Candidates for Clemency. Prior to the offer of clemency to the
16 FALN and Macheteros terrorists, President Clinton had
received 3,229 requests for clemency. He had acted favorably on
only 3 of these requests. The 16 terrorists appear to be most
unlikely candidates. They did not personally request clemency.
They did not admit to wrongdoing and they had not renounced
violence before such a renunciation had been made a quid pro
quo for their release. They expressed no contrition for their
crimes, and were at times openly belligerent about their
actions. Some had been involved in escape attempts from Federal
prison. One committed parole violations and was re-
incarcerated. Some violated prison regulations, including
possessing a weapon and a key capable of opening handcuffs.
The White House Seemed to Want Clemency More Than
the Terrorists. Notwithstanding the fact that the 16 did not
express enough personal interest in the clemency process to
file their own applications, the White House appeared eager to
assist throughout the process. Meetings were held with
supporters, and some senior staff even suggested ways to
improve the likelihood of the President granting the clemency.
Overall, the White House appears to have exercised more
initiative than the terrorists themselves. For example, it was
a White House working group that suggested President Carter be
approached and that a letter be requested. In another peculiar
turn of events, a senior adviser on this issue appeared to
coordinate a meeting with supporters inside the White House
with a demonstration outside the White House. In addition,
notes obtained by the Committee indicate that White House aides
planned to identify ``liberal supporters in key media outlets''
in an effort to drum up more support for clemency. At the
Department of Justice, the Deputy Attorney General at one point
tasked the Pardon Attorney with calling a congressional office
to ``see where we stood on getting'' a statement addressing
repentance. It is highly inappropriate that members of the
President's Working Group and the Justice Department would
either organize outside support for the clemency or reach out
to prod proponents of clemency to do things that made it easier
for the President to find in their favor.
Some White House Employees Thought the 16
Terrorists Were Political Prisoners. At least one White House
employee consistently referred to the 16 as ``political
prisoners.'' Given the crimes committed by the 16 terrorists,
it is disturbing that anyone, let alone a White House aide
whose salary is paid by the American people, would deem these
individuals to be ``political prisoners.'' In addition, the
Deputy Attorney General repeatedly described the 16 individuals
offered clemency as ``nationalists,'' rather than terrorists.
The Department of Justice Appears to Have Changed
its Recommendation to the White House in Order to Help the
White House. The first Justice Department recommendation to the
White House appears to have taken an unambiguous stand against
clemency. Later, in June 1997, the White House recognized that
the Justice Department still opposed clemency. In July 1999,
however, according to a publicly reported leak from the Justice
Department, a second report was sent by the Department of
Justice to the President and no official recommendation was
made. Instead, according to the Justice Department source, the
report ``contained what law-enforcement officials said was a
more carefully worded analysis that presented the President
with multiple options for each prisoner, from unconditional
release to no leniency whatsoever.'' If this is true, the
Committee is concerned that the Justice Department side-stepped
giving an unambiguous recommendation.
Law Enforcement Organizations Were Not Adequately
Consulted Prior to the President's Decision. The FBI was not
aware that the President was seriously entertaining the
petitions for clemency. In addition, the Bureau of Prisons was
not consulted. Had the White House asked for a review of the
prisoners' recent telephone conversations, it would have found
that several prisoners made remarks advocating violence.
The Victims Were Ignored. Victims were unable to
get meetings with the White House or Department of Justice.
Some had tried to schedule meetings; they were simply rebuffed.
Activists seeking clemency did get such meetings. Furthermore,
while clemency supporters were updated regularly on the
progress of the petition, victims were not even informed of the
clemency decisions.
The President's Clemency Offer Worked Against
Solving Numerous Crimes. Generally speaking, violent criminals
offered clemency have cooperated with law enforcement prior to
their being offered clemency. In this case, the President did
not even make cooperation with law enforcement a precondition
for an offer of clemency. It remains a mystery why the
President would not use every tool at his disposal to solve
murders, robberies and bombings. Furthermore, by removing any
incentive to cooperate, it is now very unlikely that any of the
terrorists will ever provide any assistance to law enforcement.
The Clemency Decision Undermines the U.S.'
Position in the International Fight Against Terrorism. The
decision to grant clemency to the FALN and Macheteros
terrorists sends a clear message that our demands for severe
punishment, and our willingness to mete out severe punishment
for terrorism, can be hollow. Of greater significance, it sends
a message of encouragement to terrorists themselves.
The President Has Set a Different Standard for
Terrorists Who Are U.S. Citizens. The FALN and Macheteros
terrorists are U.S. citizens. While they have served lengthy
prison terms, the President has supported even more stringent
penalties for members of foreign terrorist organizations. For
example, he directed missiles to be fired on the camp of Osama
bin Laden and an alleged chemical plant in the Sudan.
Furthermore, he has been more inclined to strike at foreign
terrorist organizations, regardless of the fact that the
members have not been convicted of violent crimes under the
protections of the U.S. Constitution and criminal justice
system. From the perspective of the Committee, it undermines
our international war on terrorism if we set a standard for
U.S. terrorists that appears to be different than that set for
foreign born terrorists. If sympathetic lobbyists can win the
early release of terrorists in this country, our position is
undercut when we ask other countries to take a hard line on
terrorists of their own nationalities.
The Clemency Decision Empowered Two Dangerous
Terrorist Organizations. As the FBI made clear in a written
statement prepared for the Committee's September 21, 1999,
hearing: ``The FALN and Macheteros terrorist groups continue to
pose a danger to the U.S. Government and to the American
people, here and in Puerto Rico. . . . The challenge before us
is the potential that the release of these individuals will
psychologically and operationally enhance the ongoing violent
and criminal activities of terrorist groups, not only in Puerto
Rico, but throughout the world.''
The President Should Waive His Claim of Executive
Privilege. While he may be entitled to do so, the President
should not continue to hide behind executive privilege. As many
have done before him, the President should waive executive
privilege and allow all citizens to gain a full understanding
of what information he considered when he decided to release
violent terrorists from prison.
I. Why the Committee Investigated the Offer of Clemency to the 16
Terrorists
On August 11, 1999, President Clinton extended offers of
clemency to 16 terrorists incarcerated in Federal prison. Prior
to these offers, he had offered clemency to only three Federal
prisoners.\1\ Thus, offers of clemency to so many members of a
terrorist organization came as a great surprise. In an attempt
to understand the justification for the offers of clemency,
this Committee subpoenaed documents from the White House and
the Department of Justice. The President responded by claiming
executive privilege over critical documents relating to his
decision.\2\ In claiming executive privilege, the President
refused to provide this Committee with material that would
allow Congress an opportunity to see what recommendations were
made to the President prior to his decision.
---------------------------------------------------------------------------
\1\ Department of Justice production 000734-000755, at 000747.
(Exhibit 1--This exhibit contains historical information related to
grants of clemency).
\2\ Letter from Cheryl Mills, Deputy Counsel to the President, to
the Honorable Dan Burton, chairman, Committee on Government Reform
(Sept. 16, 1999) (Exhibit 2).
---------------------------------------------------------------------------
Granting clemency to violent terrorists is a matter of
national significance. When the lives of American citizens are
endangered and the victims of violent crime are treated with
contempt, the oversight function of Congress is never more
important. This is particularly true when the President of the
United States not only withholds information from the people,
but also uses the immense power of his office to mislead. This,
in essence, is what occurred in the aftermath of the recent
offer of clemency to the 16 terrorists. In such a situation,
Congress is obligated to exercise its oversight authority.
The White House would have the American people believe
otherwise. On September 16, 1999, Presidential spokesman Joe
Lockhart said: ``I think anyone who looks at the Constitution
and understands what it means knows that Congress doesn't have
an oversight role in this case.'' \3\ Mr. Lockhart is wrong,
and one can only wonder what prompted him to make such a
statement. As Mr. Waxman, the ranking minority member of this
Committee, stated at our September 21, 1999, hearing: ``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.'' \4\
Notwithstanding the President's claim of executive privilege,
this has been what the Committee has tried to do.
---------------------------------------------------------------------------
\3\ Joe Lockhart, White House Press Secretary, daily White House
press briefing (Sept. 16, 1999). Later, in the same interview, Mr.
Lockhart said: ``as far as I can tell there is no legitimate oversight
role here.'' Id.
\4\ Clemency for the FALN: A Flawed Decision? Hearing before the
House Committee on Government Reform, 106th Cong., 1st Sess. (Sept. 21,
1999) (remarks of Representative Henry Waxman).
---------------------------------------------------------------------------
Prior to the President's offer to the 16 FALN and
Macheteros terrorists, he had received 3,229 requests for
clemency. He had awarded early release to only three of these
federal prisoners. This represents the lowest percentage
granted by any President since 1900, the date the Federal
Government began keeping relevant statistics.\5\ Thus, it came
as a surprise that President Clinton would make 16 offers at
the same time, that he appeared to ignore all or most of the
traditional criteria for exercise of the clemency power, and
that he acted to benefit not just one or two individuals, but
an entire terrorist organization.
---------------------------------------------------------------------------
\5\ Department of Justice production 000734-000755. (Exhibit 1).
See also Stuart Taylor, Jr., All the President's Pardons: The Real
Scandal, National Journal, Oct. 30, 1999, at 3116. Taylor states that
President Clinton had also ``pardoned 108 federal convicts who had
finished serving their time.'' Id. The percentage of clemency
applications granted by some recent Presidents is as follows: President
Kennedy--40.9 percent; President Ford--31.2 percent; President Carter--
21.6 percent; President Reagan--12.6 percent; President Bush--4.2
percent; and President Clinton--3.4 percent. Id.
---------------------------------------------------------------------------
The Committee's interest in this issue was triggered by two
concerns. First, the explanations that have been provided by
the President and his spokesmen have not been accurate. For
example, on September 9, 1999, the President told the American
people that those offered clemency ``had all served sentences
that were considerably longer than they would serve under the
sentencing guidelines which control federal sentencing now.''
\6\ Two days earlier, the President's spokesman stated: ``if
you look at even the mandatory sentencing guidelines right now,
most of these people have served longer terms than they would
have served if they were sentenced now.'' \7\ Ten days later,
Mr. Lockhart reiterated this view when he said ``their
sentences were in excess of what would be given now for those
crimes under the mandatory minimum sentences.'' \8\ Driving
this point home, he continued: ``[t]hey had already served
sentences that exceeded what they'd be sentenced for now under
the minimum sentencing guidelines which all parties agree are
tougher than they were 20 or 30 years ago.'' \9\
---------------------------------------------------------------------------
\6\ President William J. Clinton, press conference (Sept. 9, 1999).
\7\ Joe Lockhart, White House Press Secretary, daily White House
press briefing (Sept. 7, 1999).
\8\ Joe Lockhart, White House Press Secretary, daily White House
press briefing (Sept. 17, 1999).
\9\ Id.
---------------------------------------------------------------------------
The position taken by the President and his spokesman,
however, does not appear to be true. According to the U.S.
Sentencing Commission, the Federal Sentencing Guideline range
for the convictions of the 16 offered clemency would require a
sentence of ``at least 360 months to life.'' \10\ Thus, the
Sentencing Commission indicates a minimum sentence of 30 years,
which would be served without the possibility of parole. This
contradicts the President and his spokesman. Furthermore, a
senior Justice Department official made the following statement
on December 21, 1998: ``the sentences imposed in these cases
were within the sole discretion of the federal judges who
presided over them. The sentences are in line with sentences
imposed in other cases for similar terrorist activity.'' \11\
---------------------------------------------------------------------------
\10\ Letter from Timothy B. McGrath, interim Staff Director, U.S.
Sentencing Commission, to Dan Burton, chairman, Committee on Government
Reform (Oct. 26, 1999), at 2. (Exhibit 3).
\11\ Letter from Dennis K. Burke, Acting Assistant Attorney
General, to the Honorable James P. McGovern, U.S. House of
Representatives (Dec. 21, 1998). Department of Justice production
1040475-1040476. (Exhibit 4).
---------------------------------------------------------------------------
A number of questions are therefore inevitable. What
analysis did the President rely on? What were he and his
spokesman referring to? Why won't the President release the
analysis that supports the position he has taken? These are the
types of questions that suggest congressional oversight. If
factual representations are being made, and it is not apparent
where the facts come from, there is significant cause for
concern.
Another major area of concern is the President's statement
that: ``I did not believe they should be held in incarceration
in effect by guilt by association.'' \12\ This point attempts
to steer people away from the fact that those offered clemency
were convicted of actual crimes and sentenced accordingly. The
President's spokesman, Mr. Lockhart, also supported the
President's argument when he said ``the point we have tried to
make is we--our justice system is based on you serve time for
the crime you're convicted of, not the crime people believe
you're guilty of.'' \13\ Earlier, Mr. Lockhart had made that
point with even more emphasis:
---------------------------------------------------------------------------
\12\ President William J. Clinton, press conference (Sept. 9,
1999).
\13\ Joe Lockhart, White House Press Secretary, daily White House
press briefing (Sept. 17, 1999).
You know, we have a system of justice here. You know
very well--you may not want to tell your listeners what
these people were convicted of, but the justice system
knows. The President's decision was based on looking at
the sentencings, the average sentence for crimes,
looking at the mandatory minimum sentences that have
come in subsequent to the incarceration of these
people[.] \14\
---------------------------------------------------------------------------
\14\ Joe Lockhart, White House Press Secretary, daily White House
press briefing (Sept. 8, 1999).
These statements appear to be an effort to steer people away
from the facts. To date, there has been no suggestion that
there was any error in the sentencing of the 16 individuals
offered clemency. They were not imprisoned because they
associated with criminals. They were not given lengthy
sentences because they were close to people who had committed
worse crimes than they had. In fact, with a few exceptions, the
16 were the backbone of organizations that killed a number of
people and planted over 130 bombs. But for their code of
silence, a function of their complicity in numerous serious
crimes, all FALN and Macheteros cases would probably have been
solved by now. By freeing these individuals--and thereby
removing all incentive for cooperation--the President has
worked to guarantee that a number of murders will not be
solved. Furthermore, the President has made no attempt to have
Congress re-evaluate the statutory bases of the convictions. If
the President genuinely believed the statutes resulting in
convictions were unfair, it follows that he would ask Congress
to change the law.
The attempt to depict those offered clemency as a group who
were less culpable than other FALN or Macheteros members
ignores clear evidence, including videotape footage of some of
those offered clemency making bombs. It ignores the fact that
one of the individuals offered clemency planned two escapes
from prison, planned to disable a guard tower with
fragmentation grenades and gunfire, and approved a plan to
murder a gun dealer. It ignores the fact that another
individual offered clemency kept in close contact with the one
FALN member who succeeded in escaping from Federal prison. It
also ignores a Federal court opinion which states: ``[t]he
district judge also found that [Juan] Segarra-Palmer had
organized and taken part in the attack in Puerto Rico on a
United States Navy bus taking sailors to a radar station, on
December 3, 1979, in which two sailors were killed and nine
wounded.'' \15\ Indeed, the effort to portray those who were
offered clemency as unfairly tarred by association with other
more violent criminals appears to be a calculated effort to
mislead people. In short, those offered clemency committed
crimes, which resulted in appropriate sentences to lengthy
terms of incarceration.
---------------------------------------------------------------------------
\15\ U.S. v. Melendez-Carrion, 820 F.2d 56, 58 (2nd Cir. 1987)
(emphasis added).
---------------------------------------------------------------------------
Apart from basic misrepresentations about factual matters,
it also appears that the President failed to take into account
all sides of this issue. In fact, the President seemingly
failed to take into account certain basic types of information
that would normally be significant factors in the clemency
process. For example, victims were ignored. The Federal Bureau
of Prisons was not asked to review tapes of telephone calls to
and from prison to determine whether individuals were
remorseful for their crimes or might be future threats to the
community.\16\ Even some of the alleged supporters of clemency
turned out to be less than enthusiastic in their support. For
example, Mr. Lockhart stated that ``this is an issue that the
Council of Churches, Cardinal O'Connor, Desmond Tutu and former
President Carter have all urged the President to take action
on.'' \17\ The implication of this statement is that those
cited asked for clemency to be granted. This, however, is what
Cardinal O'Connor recently said: ``I did not ask for the
release of the Puerto Rican federal prisoners called FALN.''
\18\ Similarly, Bishop Tutu did not call for the release of the
16 terrorists. Rather, he wrote the President ``I appeal to
your office on behalf of my brother Bishop [of Puerto Rico] to
consider clemency for these prisoners.'' \19\ This contrasts
with what the President himself said about Bishop Tutu's
position: ``Bishop Tutu and Coretta Scott King also wrote to
seek clemency for the petitioners, since they had received
`virtual life sentences' and `have spent over a decade in
prison, while their children have grown up without them.' ''
\20\ Bishop Tutu did not make these comments, nor did he do
what the President said he did. The misleading use of respected
individuals to justify the clemency decision is another cause
of great concern.
---------------------------------------------------------------------------
\16\ This is particularly important because the public record made
by the 16 prisoners indicated no contrition and a propensity to
continue their terrorist activities. While the government might not
normally need to go to such lengths, those considered for clemency are
not normally unrepentant terrorists. In a situation where there is
concern about the message sent by the grant of clemency, and the
potential danger to the community, it appears that, at a minimum, the
President would have wanted to know whether the prisoners' own words
would discourage a grant of clemency.
\17\ Joe Lockhart, White House Press Secretary, daily White House
press briefing (Sept. 7, 1999).
\18\ Cardinal John J. O'Connor, FALN: Clarifying the Record,
Catholic New York, Sept. 16, 1999, at 5. (Exhibit 5).
\19\ Letter from the Anglican Archbishop of Cape Town, the Most
Reverend Desmond M. Tutu, D.D., F.K.C., to President W. Clinton (Aug.
28, 1995) (emphasis added). (Exhibit 6). It is also of some interest
that Archbishop Tutu did not even ask that the President consider
clemency for 2 of the 16 ultimately offered clemency--Roberto
Maldonado-Rivera and Norman Ramirez-Talavera.
\20\ Letter from Bill Clinton, to Honorable Henry Waxman (Sept. 21,
1999) at 2. (Exhibit 7).
---------------------------------------------------------------------------
The President also said he ``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.'' \21\ If this was the standard
used for not commuting sentences, it was certainly not applied
in a consistent fashion. Others who were offered clemency do
not survive the standard articulated by the President--they
were indicted on explosives charges, some were described as
leaders of the organizations, and they spoke in favor of
revolution against the United States and threatened violence
against those involved in the judicial process. Oscar Lopez not
only satisfied all the criteria for no clemency, he had planned
a violent escape from Leavenworth Penitentiary.
---------------------------------------------------------------------------
\21\ Id. at 3.
---------------------------------------------------------------------------
The President also stated unambiguously that ``political
considerations played no role in the process.'' \22\ Documents
received from the White House indicate that this is not true.
Although the President might maintain that politics played no
role in the process from his perspective, it is abundantly
clear that other White House personnel who were intimately
involved in advising the President were well aware of political
considerations and saw the political benefit of offering
clemency to the terrorists. For example, Mayra Martinez-
Fernandez, Special Assistant to the co-chair of the Interagency
Working Group on Puerto Rico, thought that the release of the
terrorists would ``have a positive impact among strategic
Puerto Rican communities in the U.S. (read voters).'' \23\
Other notes produced to this Committee show that the
Interagency Working Group on Puerto Rico understood that the
clemency issue had a significant domestic political importance.
One set of notes makes the following point: ``[Congressmen and
Congresswoman] Velazquez, Gutierrez and Serrano not voting with
President on some important legislation unless he commits to
release prisoners right after 1996 elections.'' \24\ Thus, it
appears that the President's statement that politics played no
part in the clemency process is, at best, misleading.
---------------------------------------------------------------------------
\22\ Id. at 4.
\23\ Memorandum from Mayra Martinez-Fernandez, to Jeffrey Farrow
(Oct. 24, 1994). White House production CL 15537-15538. (Exhibit 8).
\24\ Handwritten notes of Mayra Martinez-Fernandez, Special
Assistant to the Co-Chair of the Working Group, undated. White House
production CL 15554-15558. (Exhibit 9).
---------------------------------------------------------------------------
Finally, it is of some concern to the Committee that the
President's staff--and the President--appear to have arrived at
the decision to offer clemency before relevant information had
been received. The facts received to date make it appear that
the decision to offer clemency was made regardless of facts,
and that efforts were made once the decision was reached to
help the terrorists in spite of their prior refusals to help
themselves.
Presented with misleading rationales for the clemency
offers, this Committee has made an effort to provide the public
with a full explanation of the factual background of this
issue. The Committee has subpoenaed documents from the White
House and the Justice Department, held public hearings
involving interested parties and government officials, and
prepared this report. The Committee also reviewed testimony
presented to other congressional committees. While the
Committee recognizes that the Constitution confers on the
President an absolute power to grant clemency to those
convicted in Federal court of crimes,\25\ the Constitution most
assuredly does not prohibit Congress from exploring the facts
of the clemency process and inquiring into the rationale for
its exercise.
---------------------------------------------------------------------------
\25\ The U.S. Constitution provides that the President ``shall have
power to grant reprieves and pardons for offenses against the United
States, except in matters of impeachment.'' U.S. Const., Art. II, Sec.
2. The term ``clemency'' refers to all official acts of leniency toward
criminal offenders, including pardons, reprieves, amnesty, remissions
of fines, and commutations. See Kobil, Daniel T., The Quality of Mercy
Strained: Wresting the Pardoning Power from the King, 69 Tex. L. Rev.
569, 575-78 (1991).
---------------------------------------------------------------------------
Given the misrepresentations made in this matter, the
Committee believes the President should rescind his claim of
executive privilege, and make all documents previously withheld
available to Congress and the American people. While he may be
permitted to do so, the President should not continue to hide
behind executive privilege. As many have done before him, the
President should waive executive privilege and allow all
citizens to gain a full understanding of what he took into
account when he decided to release violent terrorists from
prison.
II. Factual Background
On August 11, 1999, President Clinton offered a grant of
clemency to 16 individuals convicted and incarcerated for their
activities while members of clandestine terrorist organizations
promoting the independence of Puerto Rico through violent
means.\26\ The groups involved were the Armed Forces of Puerto
Rican National Liberation (``FALN'' or in Spanish, Fuerzas
Armadas Liberacion Nacional Puertoriquena) and the Popular
Boricua Army (Ejercito Popular Boricua), commonly known as the
Macheteros.\27\ Throughout the late 1970's and mid-1980's these
groups claimed responsibility for numerous bombings and
robberies, causing a reign of terror in both the United States
and Puerto Rico.\28\ The FALN operated in the continental
United States, while the Macheteros were active mostly in
Puerto Rico.
---------------------------------------------------------------------------
\26\ Executive grant of clemency to Elizam Escobar, Ricardo
Jimenez, Adolfo Matos, Dylcia Noemi Pagan, Alicia Rodriguez, Ida Luz
Rodriguez, Luis Rosa, Carmen Valentin, Edwin Cortes, Alberto Rodriguez,
Alejandrina Torres, Oscar Lopez Rivera, Juan Enrique Segarra-Palmer,
Antonio Camacho-Negron, Roberto Maldonado-Rivera, and Norman Ramirez-
Talavera, Aug. 11, 1999. (Exhibit 10).
\27\ See U.S. v. Torres, 83 CR 494 (N.D. Ill. 1985) (Indictment)
(Exhibit 11); U.S. v. Torres, 77 CR 886 (N.D. Ill. 1980) (Indictment)
(Exhibit 12).
\28\ Oversight on the Operations of the Federal Bureau of
Investigation. Hearing before the Subcommittee on Security and
Terrorism of the Senate Committee on the Judiciary, 97th Cong., 2d
Sess. 63 (1982); FALN Communiques dated Oct. 26, 1974 (Exhibit 13),
Dec. 11, 1974 (Exhibit 14), Jan. 24, 1975 (Exhibit 15), and Apr. 2,
1975 (Exhibit 16); see also Appendix I.
---------------------------------------------------------------------------
The 16 individuals granted clemency were arrested and later
convicted in three separate groups. The first group consisted
of FALN members Elizam Escobar, Ricardo Jimenez, Oscar Lopez
Rivera, Adolfo Matos, Dylcia Pagan, Alicia Rodriguez, Ida Luz
Rodriguez, Luis Rosa, and Carmen Valentin.\29\ This group was
tried in the Northern District of Illinois, in Chicago, and was
found guilty in February 1981. The second group of individuals
also was FALN members and was tried in the same district in
Chicago in 1985. The three members were Alejandrina Torres,
Edwin Cortes, and Alberto Rodriguez.\30\ The last group of
individuals was connected to the Macheteros and was tried in
1989 in Connecticut: Juan Enrique Segarra-Palmer, Antonio
Camacho Negron, Norman Ramirez Talavera and Roberto Maldonado
Rivera.\31\
---------------------------------------------------------------------------
\29\ Exhibit 12--Indictment.
\30\ Jose Rodriguez also was indicted and convicted with the other
three. However, he chose to defend himself and was represented by an
attorney. In addition, he denied membership in the FALN. He is no
longer in prison and was not part of the clemency. Exhibit 11--
Indictment.
\31\ Exhibit 11--Indictment.
---------------------------------------------------------------------------
United States law enforcement first learned of the
existence of the FALN on October 26, 1974, the date the group
issued a communique taking credit for five bombings in New
York.\32\ The communique stated:
---------------------------------------------------------------------------
\32\ Exhibit 13--FALN communique (Oct. 26, 1974).
Today, commando units of FALN attacked mayor [sic]
Yanki [sic] corporations in New York City . . . These
actions, along with bombing of major department stores,
for three consecutive days in late spring, and the
dynamite blasts at Newark Police Headquarters and City
Hall, demonstrate what we have said since 1969: that
the Puerto Rican people organizing and arming in order
to form a Peoples Revolutionary Army which will rid
Puerto Rico of yanki [sic] colonialism [sic]. We have
opened two fronts, one in Puerto Rico the other in the
United States, both nourished by the Puerto Rican
---------------------------------------------------------------------------
people and allies within Northamerica [sic].
At the time of the first attacks, law enforcement had no leads
on who was involved with the FALN. Ultimately, over the next
decade, FALN activities resulted in 72 actual bombings, 40
incendiary attacks, 8 attempted bombings and 10 bomb threats,
resulting in 5 deaths, 83 injuries, and over $3 million in
property damage.\33\
---------------------------------------------------------------------------
\33\ Letter from Jon P. Jennings, Acting Assistant Attorney
General, to Dan Burton, chairman, Committee on Government Reform (Sept.
23, 1999) (forwarding redacted FBI written opening statement on FALN
clemency as attachment) (unnumbered) (Exhibit 17).
---------------------------------------------------------------------------
Similar to the FALN, the existence of the Macheteros became
publicly known when the group sent a communique to the United
Press International in which they claimed credit for the death
of a Puerto Rican police officer on August 24, 1978.\34\ The
goals of the Macheteros were complete autonomy and sovereignty
for Puerto Rico. In order to achieve their goals, the
Macheteros conducted an armed struggle against the U.S.
Government, mainly represented through attacks on military and
police, in several cases causing the death of U.S. servicemen.
In a January 1981 attack, Macheteros commandos infiltrated a
Puerto Rican Air National Guard base and blew up 11 planes,
causing approximately $45 million in damages.\35\
---------------------------------------------------------------------------
\34\ Luis Feldstein Soto, Puerto Rican Terrorists Taunt FBI, but
Agency Is Closing in, Houston Chron., Sept. 15, 1985, at A7.
\35\ Id.
---------------------------------------------------------------------------
The capture and conviction of the individual members of the
FALN and Macheteros brought an end to the reign of terror in
Puerto Rico and the United States. Although a few random
assaults may have occurred, mostly in Puerto Rico, the
continual assaults on New York, Chicago, and law enforcement
and Naval officers in Puerto Rico virtually came to a halt with
the capture of the individuals to whom the President has
offered clemency. Every major law enforcement group has opposed
the commutation of the prison sentences being served by these
members of the FALN or Macheteros.
a. the capture and conviction of the individuals offered clemency
After the first FALN communique, law enforcement agents
worked diligently to identify who was involved with the FALN.
The FBI formed a team of investigators that operated in the
Puerto Rican neighborhoods in both New York and Chicago.
However, it was not until December 1976, that they made any
significant advances. Chicago police located an FALN ``bomb
factory'' which led to the identification of several FALN
members, including Ida Luz Rodriguez and Oscar Lopez
Rivera.\36\ All of those identified immediately went
underground, leaving their previous lives behind. Although they
were terrorists, planting bombs and conducting armed robberies,
the FALN members also blended into the community as school
teachers and government workers. They were difficult to
identify because they literally led double lives. They had jobs
and children and never told anyone, not even their closest
family members and friends, that they were members of the
FALN.\37\ One former FALN member, Freddie Mendez, explained
that, ``he and his codefendants and other members did not
socialize with one another. He said that they came together
only for official FALN activities and then separated. When
apart they occupied themselves with work, school and socialized
with friends who were not aware that they were in the FALN.''
\38\
---------------------------------------------------------------------------
\36\ Memorandum from U.S. Attorney's Office to Probation Office,
re: Alejandrina Torres, Edwin Cortes, Alberto Rodriguez, and Jose
Rodriguez (Aug. 30, 1985). Department of Justice production 090047-
090059. (Exhibit 18).
\37\ Gary Marx, Terrorism on Trial: Justice and the FALN, Chicago
Tribune, Oct. 22, 1995, at Magazine 22.
\38\ Presentence report of Oscar Lopez-Rivera, Department of
Justice production 120031-120044, at 120040.
---------------------------------------------------------------------------
1. History of the FALN's reign of terror in Chicago and New York
Although the FALN's initial bombings may have been symbolic
in nature, that soon changed.\39\ On December 11, 1974, the
FALN called the New York City Police Department to report a
dead body.\40\ When a policeman arrived at the abandoned
tenement building to investigate, he walked into a booby-
trapped explosive device. The explosion left him maimed and
permanently disabled. The FALN issued a communique taking
credit for the bombing, which they described as an ``explosive
attack against members of the police.'' \41\ The communique
explained that the attack was in response to the death of a
fellow Puerto Rican independentista, Martin Perez, in a Florida
prison. Although the FALN characterized Perez' death as an
assassination, authorities found that he committed suicide by
hanging himself in his cell. The communique warned: ``[t]o make
it clear, for every repressive action taken against our
communities or against FALN independentistas, we will respond
with revolutionary violence.'' \42\
---------------------------------------------------------------------------
\39\ Authorities compiled a list of FALN bombings from 1974 through
1980. Department of Justice production 1041690-1041692. (Exhibit 19).
\40\ Presentence report for Ricardo Jimenez, Department of Justice
production 020045-020057, at 020048.
\41\ Exhibit 14--FALN communique dated Dec. 11, 1974.
\42\ Id.
---------------------------------------------------------------------------
Several weeks later, the FALN struck again in what they
described as a retaliatory attack for a bombing in Puerto Rico.
The FALN communique calls attention to their belief that the
CIA had plotted the incident.\43\ Nevertheless, it is clear
that the January 24, 1975, FALN bombing can be meant only to
have caused death, destruction and injury, as they planted a
timed explosive device to detonate during the busy lunch hour
at New York City's historic Fraunces Tavern. The blast killed 4
people, injured over 60 and caused extensive property
damage.\44\ In the communique, the FALN stated, ``[w]e, FALN,
the Armed Forces of the Puerto Rican Nation take full
responsibility for the especially detornated [sic] bomb that
exploded today at Fraunces Tavern with reactionary corporate
executives inside.'' \45\ The communique ended with the
warning, ``[y]ou have unleashed a storm from which you
comfortable Yankis [sic] cannot escape.'' \46\
---------------------------------------------------------------------------
\43\ Exhibit 15--FALN communique dated Jan. 24, 1975.
\44\ Presentence report for Ricardo Jimenez at 020048.
\45\ Exhibit 15--FALN communique dated Jan. 24, 1975.
\46\ Id.
---------------------------------------------------------------------------
The FALN continued its attacks on what it considered
``Yanki [sic] imperialism'' with the bombing of four New York
City buildings on April 2, 1975. The communique explained:
The bombing of the Anglers Club: an exclusive
millionaires [sic] club that boasts of members like the
Rockefellers, was a retalitory [sic] attack against
that sector of the North American ruling-class which is
directly responsible for the actions of the C.I.A. and
for the wave of repression which is being murderously
implemented in Puerto Rico. . . . Our attack on January
24, 1975 was not in anyway directed against working-
class people or innocent North Americans. The targets
of our attack were bankers, stock brokers, and
important corporate executives of monopolies and multi-
national corporations. These are not friends of the
working people. But the enemies of humanity everywhere
[sic].\47\
---------------------------------------------------------------------------
\47\ Exhibit 16--FALN communique dated Apr. 2, 1975.
Shortly after the April bombings, in June 1975, the FALN
carried out its first bombings in the Chicago area. They
claimed credit for two bombs that exploded downtown. Another
fatal attack occurred on August 3, 1977, in New York. The FALN
placed a bomb inside the Mobil Oil employment office, and set
it to detonate during the early morning rush hour. The blast
killed one man and wounded several others.\48\ In addition to
their bombings, the FALN, operating mainly in New York and
Chicago, also began to set off incendiary devices in numerous
busy downtown department stores.\49\
---------------------------------------------------------------------------
\48\ Presentence report of Ricardo Jimenez at 020049.
\49\ Id.
---------------------------------------------------------------------------
On July 12, 1978, a powerful explosion occurred in a
residential building in New York City. The subsequent
investigation revealed that the apartment was an FALN ``bomb
factory.'' \50\ Police discovered that the resident of the
apartment, FALN member William Morales, was constructing a pipe
bomb when the explosion occurred.\51\ Morales was seriously
injured, losing portions of both hands and his eyesight in one
eye.\52\ Examination of the apartment turned up materials
linked to the FALN members who had gone into hiding in 1976:
Oscar Lopez-Rivera, Ida Luz Rodriguez, Maria Haydee Torres, and
Carlos Alberto Torres.\53\ Even as police were clearing out the
New York apartment, incendiary devices that the FALN previously
had planted ignited in several department stores.\54\ In
addition to other evidence, the police found an FALN manual in
the apartment.\55\ The handbook states, ``The introduction of
this set of rules and regulations is done in the interest of
preventing errors which traditionally have allowed the enemy to
strike death blows to revolutionary organizations.'' \56\ Among
other suggestions, the handbook states that a guerrilla group
``should start out with an operational army of no less than 50
strictly clandestine guerrilla fighters.'' \57\
---------------------------------------------------------------------------
\50\ Id. at 020050.
\51\ Id.
\52\ Id.
\53\ Id.
\54\ Presentence report of Ricardo Jimenez at 020050.
\55\ Murray Weiss, Leader's Chilling Textbook of Terror, N.Y. Post,
Aug. 31, 1999, at 12.
\56\ Id.
\57\ Id.
---------------------------------------------------------------------------
Morales, who was injured in the July 12, 1978, explosion,
was tried and convicted in 1979 and sentenced to 99 years in
prison on State and Federal weapons and explosives charges.\58\
Several months after his conviction, Morales made an incredible
escape from a third-floor prison room at Bellevue Hospital in
New York. Morales had been transferred to Bellevue to be fitted
with artificial hands. Prior to the surgery, Morales somehow
used bolt cutters to tear open the steel security screen of the
cell window and then shimmied down the three story, 40-foot
drop.\59\ Federal prosecutors say that members of the Black
Liberation Army and one of his attorneys assisted him in making
his getaway.\60\ Morales escaped to Mexico, where he was later
convicted of murdering a Mexican police officer. Mexico
rebuffed the United States' requests for extradition of Morales
while he was serving out his sentence in a Mexican prison.
Later, Mexican authorities allowed him to flee to Cuba, where
he was given political asylum.\61\ He has never served the 99-
year U.S. sentence. Morales remains in Cuba, and has petitioned
the President to allow him to return to the United States.
---------------------------------------------------------------------------
\58\ Douglas Montero, I Defend My Homeland: William Morales Talks
to the Post, N.Y. Post, Sept. 12, 1999, at 5.
\59\ Former FALN member Alfredo Mendez told government
investigators that Morales' attorney, Susan Tipograph, smuggled the
bolt cutters into the hospital for Morales. He said that she ``strapped
a pair of bolt cutters to her leg and smuggled them in to Morales.''
Tipograph denied the allegations. Douglas Montero, Cop Who Busted
Bomber Fears for His Life, N.Y. Post, Sept. 18, 1999, at 6; Stanley
Penn, Spreading Fear: New Terrorist Groups Are Appearing in U.S.,
Resembling Old Ones, Wall St. J., July 26, 1984; Cerisse Anderson,
United Press Int'l, June 9, 1983.
\60\ Stanley Penn, Spreading Fear: New Terrorist Groups Are
Appearing in U.S., Resembling Old Ones, Wall St. J., July 26, 1984.
\61\ Roberto Santiago, Terrorism American Style: The Guillermo
Morales Story, the Plain Dealer, Aug. 1, 1993, at 8; Alex Devine,
Fugitive Left Trail of Blood and Broken Lives, N.Y. Post, Sept. 12,
1999, at 5.
---------------------------------------------------------------------------
After the incident at the New York bomb factory, the FALN
took some time to regroup. Law enforcement developed evidence
that during that relatively quiet period, the FALN members had
been active in other areas, including the invasion of the Oak
Creek, WI Armory in January 1979, in order to steal
weapons.\62\ During the operation, which ultimately was
unsuccessful, FALN members held Armory employees hostage. It
was not until October 1979 that they resumed their bombing
operations. On October 17, 1979, the FALN took credit for
simultaneous bombings in New York, Chicago, and Puerto Rico,
where the FALN previously had not been active.\63\ They
followed up with several bombings in the Chicago area about a
month later.\64\
---------------------------------------------------------------------------
\62\ Presentence report of Ricardo Jimenez at 020051.
\63\ Id.
\64\ Id.
---------------------------------------------------------------------------
In mid-March 1980, FALN members took over the Carter/
Mondale presidential campaign headquarters in Chicago, and the
George Bush campaign office in New York.\65\ They were armed,
and held several employees of the Carter/Mondale campaign
hostage.\66\ The FALN members held guns to the heads of the
employees, forced them to lie down, and then tied them up.\67\
They then ransacked the headquarters, stole files, and spray
painted FALN slogans on the walls.\68\ Days after the invasion,
the FALN sent threatening letters to approximately 200 Carter/
Mondale supporters and Democratic National Convention delegates
in Illinois.
---------------------------------------------------------------------------
\65\ Id. at 020050.
\66\ Presentence Report of Elizam Escobar. Department of Justice
production 010036-010049, at 010043.
\67\ Id. at 010043.
\68\ Id.
---------------------------------------------------------------------------
2. The capture of the ``Chicago 11''
Shortly after the campaign break-ins, on April 4, 1980, 11
members of the FALN were arrested: Elizam Escobar, Ricardo
Jimenez, Dylcia Noemi Pagan, Carmen Valentin, Adolfo Matos,
Alfredo Mendez, Alicia Rodriguez, Luis Rosa, Maria Haydee
Torres, Carlos Torres, and Ida Luz Rodriguez.\69\ The arrests
occurred in two separate incidents on the same day. At
approximately 1:30 p.m., two armed men stole a truck from
Budget Rent-a-Car in Evanston, IL.\70\ Luis Rosa was later
identified as the main gunman at the Budget Rent-a-Car
office.\71\ ``At gunpoint, he ordered the personnel at the
Budget office to lay on the ground and crawl, or be killed.''
\72\ The truck was seen in a parking lot at Northwestern
University an hour after the robbery, and police waited for
someone to approach.\73\ Soon thereafter, a man and a woman
drove up to the stolen truck in separate vehicles, Luis Rosa
and Alicia Rodriguez.\74\ As police officers approached the
two, Rosa attempted to draw the loaded gun he was carrying.
However, he was overpowered by the police.\75\ Police then
apprehended FALN members Alicia Rodriguez and Luis Rosa, both
of whom were armed.\76\ In addition, police discovered that the
vehicles that the two were driving had been stolen at an
earlier time.\77\ Police later determined that Adolfo Matos had
driven the stolen truck to the Northwestern parking lot and
left it there to be picked up by Rodriguez and Rosa.\78\ Matos
and 10 other members of the FALN were apprehended later that
same afternoon in a residential neighborhood also in Evanston,
IL.\79\
---------------------------------------------------------------------------
\69\ Maria Haydee Torres and Carlos Alberto Torres were not granted
clemency.
\70\ Evanston Police Department Website, www.evanstonpolice.com/
captured.htm.
\71\ Presentence report of Luis Rosa, Department of Justice
production 010554-010565, at 010561
\72\ Id. at 010561.
\73\ Evanston Police Department Website, www.evanstonpolice.com/
captured.htm.
\74\ Id.
\75\ Presentence report of Luis Rosa at 010561.
\76\ Id.; presentence report of Ida Luz Rodriguez, Department of
Justice production 060034-060046, at 060042.
\77\ Evanston Police Department Website, www.evanstonpolice.com/
captured.htm.
\78\ Presentence report of Adolfo Matos, Department of Justice
production 030038-030050, at 030046.
\79\ Id. at 030046.
---------------------------------------------------------------------------
At approximately 3:15 p.m., a resident of an Evanston
neighborhood called the police to report some suspicious
activity on her street.\80\ She had seen joggers around a van,
but had seen at least one of the joggers smoking.\81\ At 3:30
p.m., the responding officers approached the van and spoke with
Carlos Alberto Torres, who was then on the FBI's ``most wanted
list.'' \82\ The officer did not recognize him, and explained
that a neighbor had called complaining of ``kids partying in a
van.'' \83\ After some discussion the police officers were
still not sure about the situation, and ordered everyone to get
out of the van.\84\ One of the officers looked inside the van,
but did not notice anything suspicious.\85\ The FALN members
might have been permitted to go free if Alfredo Mendez' false
mustache had not begun to slip from his lip.\86\ The officers
immediately realized there was a problem and ordered the three
FALN women to drop their bags. As that occurred, a group of
backup police officers rushed to the scene with their weapons
drawn.\87\ The nine arrested with the van were: Dylcia Noemi
Pagan, Elizam Escobar, Ida Luz Rodriguez, Carmen Valentin,
Carlos Alberto Torres, Maria Haydee Torres, Ricardo Jimenez,
Adolfo Matos, and Alfredo Mendez.\88\ Found in the van were 13
weapons, including a sawed off shotgun and several pistols with
the serial numbers obliterated.\89\
---------------------------------------------------------------------------
\80\ Evanston Police Department Website, www.evanstonpolice.com/
captured.htm.
\81\ Id.
\82\ Gary Marx, Terrorism on Trial: Justice and the FALN, Chicago
Tribune, Oct. 22, 1995, at Magazine 22.
\83\ Id.
\84\ Id.
\85\ Id.
\86\ Id.; Evanston Police Department Website,
www.evanstonpolice.com/captured.htm.
\87\ Gary Marx, Terrorism on Trial: Justice and the FALN, Chicago
Tribune, Oct. 22, 1995, at Magazine 22.
\88\ Presentence report of Ricardo Jimenez, at 020050.
\89\ U.S. v. Torres, 77 CR 886, (N.D. Ill. 1980).
---------------------------------------------------------------------------
a. The investigation
Law enforcement officials have two theories relating to the
intentions of the FALN members that day. Some believed that the
FALN was planning to kidnap wealthy industrialist Henry Crown
or a member of his family, as the Crown residence was
nearby.\90\ To support this theory, investigators found an
intelligence dossier on Henry Crown in a New Jersey safe house
used by the FALN.\91\ The other explanation for their presence
in Evanston that day is that they were planning on robbing an
armored car. At the time of their arrests, there was an armored
truck carrying $200,000 in cash parked at Northwestern
University's loading dock.\92\ The authorities could never be
sure as the 11 FALN members arrested refused to cooperate in
any way with the authorities. They even refused to identify
themselves and claimed to be ``prisoners of war.'' \93\
---------------------------------------------------------------------------
\90\Presentence report of Adolfo Matos, at 030046.
\91\ Id. at 030046.
\92\ Gary Marx, Terrorism on Trial: Justice and the FALN, Chicago
Tribune, Oct. 22, 1995, at Magazine 22.
\93\ Presentence report of Ricardo Jimenez, at 020051.
---------------------------------------------------------------------------
As the law enforcement officials continued the
investigation, they discovered that the FALN had developed an
intricate underground operation.\94\ The FALN had set up safe
houses in Milwaukee, WI; Newark, NJ; New York City; and,
Chicago, IL.\95\ Upon searching the various safe houses,
investigators found, among other evidence, sets of false
identification, fingerprints of the individuals arrested, and a
list of the automobiles that had been stolen over the prior
year.\96\
---------------------------------------------------------------------------
\94\Id.
\95\Id.
\96\Id.
---------------------------------------------------------------------------
A search of the New Jersey safe house revealed a number of
intelligence files on private individuals, including one on
Henry Crown.\97\ The fingerprints of Carmen Valentin, Adolfo
Matos, Elizam Escobar, Carlos and Maria Haydee Torres were
found in the New Jersey safe house.\98\ Authorities also
located a car stolen by the FALN near the house, although most
of the documentation on the car was found in the safe house in
Milwaukee, where the car was stolen.\99\
---------------------------------------------------------------------------
\97\ Presentence report of Adolfo Matos at 030046.
\98\ Presentence report of Carmen Valentin at 080050-080051.
\99\ Id. at 080050-080051.
---------------------------------------------------------------------------
Authorities searched Adolfo Matos' home in New York. There
they found, ``a pamphlet containing a chronology of acts of
violence perpetrated by the FALN and other groups of the armed
clandestine movement, as well as reproductions of the FALN
communiques which had been released claiming credit for
bombings up to the date of publication.'' \100\ Identity papers
for Ida Luz Rodriguez were found in Matos' home as well.\101\
In Elizam Escobar's home in New York, police found extensive
lists containing the names and home addresses of various New
York City police officers.\102\ Law enforcement officials also
found a surveillance photo of an FBI agent.\103\ In addition,
Escobar had maintained a personal calendar in code that
included numerous FALN activities such as, ``the escape of
William Morales, certain bombings, the armed robbery of a
Purolator truck in Milwaukee, and most interestingly, a
reference to `little presents for the Republicans.' '' \104\
The reference to Republicans coincides with FALN bombings of
Republican campaign offices in New York and Chicago.\105\
---------------------------------------------------------------------------
\100\ Presentence report of Adolfo Matos at 030046.
\101\ Presentence report of Ida Luz Rodriguez at 060042.
\102\ Presentence report of Elizam Escobar at 010044.
\103\ Id.
\104\ Id.
\105\ Id.
---------------------------------------------------------------------------
The Milwaukee safe house was leased in one of the false
names used by Ida Luz Rodriguez.\106\ Law enforcement
fingerprinting showed that, at a minimum, the safe house had
been used by Ida Luz Rodriguez, Dylcia Pagan, Maria Haydee
Torres, Carmen Valentin, Luis Rosa, Elizam Escobar, Oscar Lopez
Rivera, and Carlos Torres.\107\ The Milwaukee safe house
contained a soundproofed firing range in the basement.\108\ A
search of the house uncovered, ``a plethora of FALN-related
evidence, including proceeds of various Wisconsin armed
robberies, FALN literature, disguises, proceeds of armed
takeover of the Chicago Carter-Mondale reelection headquarters,
and the original stencil of a threat letter sent to more than a
hundred Carter-Mondale delegates[.]'' \109\ In addition,
investigators found a military manual that discussed weapons,
explosives, terrorist tactics and past Puerto Rican acts of
violence.\110\ Enclosed in that manual was a six page document
which appeared to be some type of justification for what was
called the ``military action'' taken at Fraunces Tavern in New
York.\111\
---------------------------------------------------------------------------
\106\ Presentence report of Ida Luz Rodriguez at 060042.
\107\ Presentence report of Carmen Valentin at 080051; presentence
report of Dylcia Pagan at 040044; presentence report of Ida Luz
Rodriguez, at 060042; presentence report of Elizam Escobar at 010044;
presentence report of Luis Rosa at 010561.
\108\ Presentence report of Carmen Valentin at 080051.
\109\ Presentence report of Luis Rosa at 010564.
\110\ Presentence report of Dylcia Pagan at 040044.
\111\ Id.
---------------------------------------------------------------------------
b. The trials
There were 11 FALN members apprehended in Evanston, IL on
April 4, 1980. One of those individuals, Maria Haydee Torres,
was transferred to the Federal district court in New York to
stand trial. She had been implicated in the bombing of the
Mobil Oil Building which caused the death of 26 year old
Charles Steinberg.\112\ All 10 of the others apprehended were
indicted in Federal district court in the Northern District of
Illinois.\113\ In addition, law enforcement officials were
still searching for Oscar Lopez Rivera, who also had been named
in the indictment as part of the conspiracy, and was considered
a fugitive.\114\
---------------------------------------------------------------------------
\112\ Presentence report of Maria Haydee Beltran Torres, Department
of Justice production 1041480-1041486 at 1041482.
\113\ Exhibit 12--Indictment.
\114\ Id.
---------------------------------------------------------------------------
i. Ten Individuals Tried in Chicago.--According to a
document containing instructions for FALN members found in the
New Jersey safe house, members were advised to, ``make no
statement if arrested and to declare themselves `prisoners of
war' and to demand a transfer to military jurisdiction.'' \115\
In each of their presentence reports the following description
of the defendants' conduct occurs:
---------------------------------------------------------------------------
\115\ Presentence report of Maria Haydee Beltran Torres at 1041483.
Each of these defendants, orally and in writing,
since the time of their arrest on April 4, 1980, has
claimed membership in a clandestine army and has
claimed to be at war with the United States. Each has
claimed to have been captured by the enemy while
engaged in an armed action taking place in their war
for independence from the United States. They chant
revolutionary slogans, many of which are on court
records ranging from, ``Long live the armed clandestine
movement'' to ``Long live the FALN.'' In short, they do
not deny doing the things for which they have been
charged and convicted. They do, however, feel that as
captured soldiers in a revolutionary struggle, they are
entitled to be treated as prisoners of war and tried by
international or military tribunal, or not tried at
all. Based on this position, they have steadfastly
refused representation to date, both in Chicago and New
York, and they have witnessed their trials via
loudspeaker and closed-circuit TV from their detention
cells. They have made clear that they do not mind the
imposition of lengthy prison terms because each
believes that successful escape efforts will be
arranged with the cooperation of the remaining members
of their armed clandestine movement.\116\
---------------------------------------------------------------------------
\116\ Presentence report of Luis Rosa at 010562; presentence report
of Dylcia Pagan at 040045; presentence report of Elizam Escobar at
010045; presentence report of Carmen Valentin at 080052; presentence
report of Ida Luz Rodriguez at 060043; presentence report of Adolfo
Matos at 030047; presentence report of Carlos Alberto Torres at
1041327. (Emphasis added.)
As the defendants refused to take part in their own trials, the
judge entered pleas of innocent for all of them at the
arraignment.\117\
---------------------------------------------------------------------------
\117\ United Press Int'l, Dec. 16, 1980.
---------------------------------------------------------------------------
As part of the indictment, the grand jury charged the 10
defendants with constructing and placing explosive and
incendiary devices at numerous locations, specifically listing
28 sites, including: six banks, six department stores, the
Chicago Police Department Headquarters, the Chicago Main Branch
of the U.S. Post Office, the National Guard Armory, two County
Buildings, the Republican Party Office, the Great Lakes Naval
Base, two U.S. Military Recruiting Offices, and the Illinois
Naval Militia Building.\118\ The prosecution presented 30
witnesses and 65 boxes of evidence to the jury in the course of
the FALN trial. In the end, the jurors deliberated only 2 hours
before convicting all of the defendants of conspiring to
overthrow the U.S. Government, as well as other charges.\119\
---------------------------------------------------------------------------
\118\ Exhibit 12--Indictment.
\119\ United Press Int'l, Feb. 12, 1981.
---------------------------------------------------------------------------
At the end of their trials, the defendants were brought
before the judge for sentencing. The courtroom turned into a
political demonstration; as the judge handed down the
sentences, the defendants sang, shouted, and called him a
``puppet'' and a ``clown.'' \120\ As she was being sentenced by
the judge, Carmen Valentin shouted, ``[y]ou are lucky that we
cannot take you right now. Our people will continue to use
righteous violence. Revolutionary justice can be fierce, mark
my words.'' \121\ Ricardo Jimenez shouted at the judge,
``[w]e're going to fight . . . revolutionary justice will take
care of you and everybody else.'' \122\ Dylcia Pagan warned the
judge and courtroom, ``[a]ll of you, I would advise you to
watch your backs.'' \123\
---------------------------------------------------------------------------
\120\ The Associated Press, Feb. 19, 1981.
\121\ Id.
\122\ Id.
\123\ United Press Int'l, Feb. 19, 1981.
---------------------------------------------------------------------------
ii. Maria Haydee Torres.--Maria Haydee Torres, wife of FALN
member Carlos Alberto Torres, was extradited to the Southern
District of New York to stand trial for the bombing of the
Mobil Oil Building in New York City which caused the death of
Charles Steinberg.\124\ The New York prosecutors could place
Mrs. Torres at the scene and link her to the bomb through
fingerprint evidence, holding her responsible for one of the
deaths caused by an FALN bomb. The Mobil Oil bombing occurred
on August 3, 1977. Investigators were able to determine that a
bomb consisting of two to three sticks of dynamite had been
concealed in an umbrella placed on a coat rack in the
employment office.\125\ Prosecutors explained how the bombing
victim was killed, ``[t]wenty-six year old Charles Steinberg
was in immediate proximity to the coatrack, and the rear of his
head was blown off in the explosion, resulting in his immediate
death.'' \126\
---------------------------------------------------------------------------
\124\ Presentence report of Maria Haydee Beltran Torres at 1041481.
\125\ Id.
\126\ Id. at 10411482.
---------------------------------------------------------------------------
The bomb was set to explode at 10:40 a.m., a busy time of
the day when many people would be in the office.\127\ Very
early on that morning, a young woman wearing sunglasses and a
wide brimmed hat entered the employment office and asked to
fill out an application.\128\ The woman began filling out the
application, but inquired as to whether she was allowed to
finish it at home. The receptionist told her no, and the woman
left the application at the desk.\129\ Police were able to
remove two fingerprints from the application and identified
them as belonging to Maria Haydee Torres.\130\ The FALN later
issued a communique taking credit for the Mobil Oil
bombing.\131\ In addition, investigators were able to determine
that the dynamite used in the Mobil Oil bombing had originally
been stolen from a construction site in New Mexico. Because
dynamite is marked with a ``date shift code'' on each stick,
the agents were able to determine that the Mobil dynamite was
part of the same batch found in the FALN safe house discovered
in Chicago in November 1976.\132\
---------------------------------------------------------------------------
\127\ Id. at 1041481.
\128\ Id. at 1041482.
\129\ Id.
\130\ Id.
\131\ Id.
\132\ Id. at 1041483.
---------------------------------------------------------------------------
Similar to the other FALN defendants in Chicago, Maria
Haydee Torres refused to participate in her trial and declared
herself a prisoner of war.\133\ The jury found her guilty after
a 4 day trial, and imposed a sentence of life
imprisonment.\134\ The group that originally petitioned for
clemency on behalf of the FALN members, Ofensiva '92, had also
placed Mrs. Torres on the list. However, because she was
convicted of an act that involved the death of another person,
her name was removed from the list soon thereafter. Ofensiva
'92 indicated that she would petition separately.
---------------------------------------------------------------------------
\133\ Id. at 1041484.
\134\ Id. at 1041483.
---------------------------------------------------------------------------
iii. Oscar Lopez Rivera.--In December 1980, FALN member
Oscar Lopez Rivera was indicted along with the other 10 FALN
members in Chicago, IL.\135\ However, he remained a fugitive
until his capture on May 29, 1981.\136\ Lopez and a companion
were in a car in Glenview, IL, when a police officer observed
them driving erratically.\137\ The officer pulled them over and
asked for identification, whereupon Lopez produced a false
driver's license from Oregon.\138\ Lopez first told the officer
that they were looking for a United Parcel Service building,
then responded that they were looking for a nice spot to eat
lunch.\139\ When the officer inquired as to where their lunch
was, they were unable to produce their meal.\140\ A back-up
police officer stood next to the car and noticed a gun, pliers,
wire connectors and field glasses in the car, along with a
large bag.\141\ The officers then arrested Lopez for the
weapons violations and traffic offense.\142\
---------------------------------------------------------------------------
\135\ Exhibit 12--Indictment.
\136\ Presentence report of Oscar Lopez at 120035.
\137\ Id.
\138\ Id.
\139\ Id.
\140\ Id.
\141\ Id.
\142\ Id.
---------------------------------------------------------------------------
Investigators had determined that Oscar Lopez had been one
of the national leaders of the FALN since its first public acts
of violence in 1974. In addition, they received information
about Lopez from former FALN member Freddie Mendez who
testified about FALN activities, and Oscar Lopez in
particular.\143\ Lopez' presentence report summarizes the
evidence against Lopez and Mendez' testimony:
---------------------------------------------------------------------------
\143\ Id. at 120036.
Lopez has been personally involved in bombing and
incendiary attacks across the country for at least five
years prior to Mendez's [sic] involvement and
knowledge, has been a prime recruiter for members of
the underground terrorist group, and has been a key
trainer in bombing, sabotage and other techniques of
guerilla warfare. He has set up a series of safehouses
and bomb factories across the country, the searches of
which have uncovered literally hundreds of pounds of
dynamite and other forms of high explosive, blasting
caps, timing devices, huge caches of weapons and
stockpiles of ammunition, silencers, sawed-off
shotguns, disguises, stolen and altered identity
documents, and the proceeds of the armed robberies of
locations such as a National Guard Armory, Chicago's
Carter-Mondale Re-Election headquarters, radio and
communications companies, as well as a variety of
stolen vehicles.\144\
---------------------------------------------------------------------------
\144\ Id.
Ultimately, Oscar Lopez-Rivera did not accept the President's
offer of clemency. He remains incarcerated.
3. 1985 Chicago FALN group
On June 29, 1983, authorities arrested FALN members
Alejandrina Torres, Edwin Cortes, Alberto Rodriguez, and Jose
Rodriguez (the two Rodriguezes are unrelated).\145\ The
Government was able to locate and identify the group as members
of the FALN through former FALN member Freddie Mendez'
cooperation with the government. Mendez previously had
identified Alejandrina Torres and Edwin Cortes as likely
members of the FALN.\146\
---------------------------------------------------------------------------
\145\ Brief for the United States, U.S. v. Rodriguez, 85-2802, at 1
(7th Cir.) [hereinafter Rodriguez brief].
\146\ Alejandrina Torres was the step-mother of Carlos Alberto
Torres, who was found guilty of seditious conspiracy and other crimes,
in the first FALN trial. Presentence report of Alejandrina Torres,
Department of Justice production 100034-100044, at 100037.
---------------------------------------------------------------------------
Beginning in 1982, officers assigned to the anti-terrorism
task force conducted surveillance of Cortes, and determined
that he periodically traveled to an apartment building on the
opposite end of Chicago from where he lived and worked.\147\
They soon discovered that Cortes and Alejandrina Torres were
meeting in an apartment in the building.\148\ After further
investigation, agents were able to secure court authorization
to place a hidden camera and microphone in the apartment in
order to monitor the activities occurring within the
apartment.\149\ The apartment was known as the ``Buena safe
house,'' due to its street location.\150\ Eventually, agents
discovered another apartment, known as the ``Lunt safe house.''
\151\ Court-ordered surveillance was installed in that
apartment as well. During 8 months of surveillance, law
enforcement saw and overheard the four FALN members plan and
commit various criminal acts.
---------------------------------------------------------------------------
\147\ Id.
\148\ Id.
\149\ Id.
\150\ The address was 736 West Buena, in Chicago, IL. Id.
\151\ The address was 1135 West Lunt, in Chicago, IL. Id.
---------------------------------------------------------------------------
a. The safe houses
Investigators found that FALN member Edwin Cortes rented
the Buena safe house under a fictitious name, and paid the rent
by money order. In order to begin their surveillance of the
apartment, microphones were installed on January 19, 1983, and
video equipment was installed soon thereafter.\152\ After only
a month of surveillance, agents observed Alejandrina Torres and
Edwin Cortes ``cleaning weapons and handling bomb
paraphernalia.'' \153\ Federal agents secured another warrant
to search the apartment. They conducted their search in the
middle of the night on March 9, 1983, and found, ``thousands of
rounds of ammunition, 24 blasting caps, detonating cord,
dynamite, four weapons, false identification and wigs.'' \154\
In addition, under the floor of a kitchen cabinet, they found a
map of the Leavenworth prison drainage system.\155\ To allow
their surveillance to continue, the agents substituted false
explosives for the real and disabled the weapons found inside
the apartment.\156\
---------------------------------------------------------------------------
\152\ Rodriguez brief at 8.
\153\ Id.
\154\ Id.
\155\ Id.
\156\ Id.
---------------------------------------------------------------------------
Like the Buena apartment, the Lunt safe house was rented
under a fictitious name, and Alejandrina Torres delivered a
money order to pay the rent. At the beginning of April 1983,
the government installed microphones and video equipment. When
the government searched the Lunt house, agents found bomb
accessories, revolvers, and other weapons. Authorities
identified the characteristics of the bomb paraphernalia as the
signature of the FALN.\157\
---------------------------------------------------------------------------
\157\ Id. at 9.
---------------------------------------------------------------------------
b. Plans for prison breaks
At the time the authorities were observing the safe houses,
they discovered plans to break out of prison two FALN members
who had been convicted in the 1981 Chicago cases, Oscar Lopez
and Luis Rosa.\158\ Lopez and Rosa were serving out their
sentences at Leavenworth Federal Penitentiary in Kansas and
Pontiac State Prison in Illinois, respectively. The first
attempt was planned for March 18, 1983, when Oscar Lopez was
scheduled to have x rays taken at a veterans' hospital near
Leavenworth.\159\ Once they discovered the plans, agents kept
constant surveillance on the FALN members. Five days before the
scheduled transfer of Lopez, Edwin Cortes picked up a stolen
rental car.\160\ The following evening, Cortes, Torres, and
another unidentified individual reviewed the layout and
security of the veterans' hospital and inspected their
guns.\161\ Edwin Cortes was heard on the surveillance tape,
``[y]es, but she [Torres] has to have it loaded and cocked
further back. If they have to shoot, they can shoot.'' \162\
---------------------------------------------------------------------------
\158\ Id.
\159\ Id.
\160\ Id.
\161\ Id.
\162\ Id.
---------------------------------------------------------------------------
When the authorities learned of the plan, they notified the
warden at Leavenworth, who canceled Lopez' scheduled
transfer.\163\ However, Torres and Cortes, along with the
unidentified accomplice, were unaware of the change in plans.
On the morning of March 18th, they showed up, in disguises and
bulletproof vests, and waited at the entrance to the
hospital.\164\ Dejected, they eventually left and drove to an
apartment they had rented in Kansas City under a false
name.\165\
---------------------------------------------------------------------------
\163\ Id.
\164\ Id.
\165\ Id.
---------------------------------------------------------------------------
The next day the trio returned to the Buena safe house and
conspired to break Luis Rosa out of the Pontiac prison.\166\
There they studied a copy of the official prison escape
response plan. In addition, they went to the trouble of renting
an apartment in the town next to the Pontiac prison.\167\
Unfortunately for them, authorities had already notified the
warden of the plan.\168\ Luis Rosa was transferred to Joliet
State Prison on March 22nd, the same day the apartment was
rented.\169\ Surveillance tapes of the Buena safe house made on
March 23rd captured Torres and Cortes complaining of changes
made the day before.\170\
---------------------------------------------------------------------------
\166\ Id. at 10.
\167\ Id.
\168\ Id.
\169\ Id.
\170\ Id.
---------------------------------------------------------------------------
c. Plans to rob the Chicago Transit Authority
Shortly after their failed plans to break their former
comrades out of prison, Edwin Cortes and Alberto Rodriguez met
several times at the Lunt safe house to discuss a plan to rob a
Chicago Transit Authority fare collector.\171\ They discussed
which lines would be best to hit, and explored the security and
layout of the stops and trains.\172\ At one point, they
discussed what to do about the guards, and Alberto Rodriguez
suggested that they, ``hit him upside the head'' or that they
might have to ``shoot the guard, which makes a noise.'' \173\
Surveillance indicated that the group had chosen a train stop.
Cortes examined the location carefully, and Alberto Rodriguez
showed up there several nights later to do the same.\174\
Intending to scare him, a plainclothes team of agents pulled
Rodriguez over for questioning.\175\ Indeed, an intercepted
phone call from Cortes to Torres told authorities that they had
been effective in stopping the plan. Cortes explained that,
``the study we were doing on the train had to be canceled when
the police stopped `the comrade' in front of `the place where
it was going to be done.' '' \176\
---------------------------------------------------------------------------
\171\ Id.
\172\ Id.
\173\ Id. at 11.
\174\ Id.
\175\ Id.
\176\ Id.
---------------------------------------------------------------------------
d. The plan to assist FALN fugitive William Morales
Although William Morales had escaped from police custody in
1979 and fled the United States to Mexico, he remained active
in the FALN.\177\ According to Morales, he planned the bombings
in New York City on New Year's Eve 1983.\178\ In the spring of
1983, Torres and Cortes spoke about the need to find their
friend ``Jorge'' a place to live, but worried about the
visibility of his disfigured hands.\179\ Authorities soon
determined that ``Jorge'' was actually William Morales. By the
end of April, Cortes and Torres had plans to move ``Jorge'' out
of the country in June.\180\ They actually placed a call to
Morales in Mexico, from which authorities were able to trace
his location.\181\ Morales told Cortes and Torres to call him
back on May 26, 1983, at the same location.\182\ On the
designated date, Mexican authorities captured Morales after a
gunfight that left a police officer and two of Morales'
companions dead.\183\ The day after Morales was arrested,
Cortes and Alberto Rodriguez packed up the contents of the
Buena safe house, and moved everything to the Lunt safe
house.\184\
---------------------------------------------------------------------------
\177\ Douglas Montero, I Defend My Homeland: William Morales Talks
to the Post, N.Y. Post, Sept. 12, 1999, at 5.
\178\ Roberto Santiago, Terrorism American Style: The Guillermo
Morales Story, the Plain Dealer, Aug. 1, 1993, at A8. Two of the New
York City detectives responding to the bomb threats--Detectives Richard
Pastorella and Anthony Senft--testified before the House Committee on
Government Reform. Detective Pastorella was blinded by the blast and
lost the fingers of his right hand while attempting to render the FALN
bomb safe. Detective Senft was blinded in one eye, partially lost his
hearing, and underwent five reconstructive surgeries on his face.
Clemency for the FALN: A Flawed Decision? Hearing before the Committee
on Government Reform, 106th Cong., 1st Sess. (1999).
\179\ Rodriguez brief at 14.
\180\ Id.
\181\ The phone call was made to a coffee shop in Puebla, Mexico,
on May 19, 1983. Id.
\182\ Id.
\183\ Morales explained that at the time he was ``ambushed'' by the
police, he was waiting for Alejandrina Torres to call from Chicago.
Torres was calling from Chicago to double-check plans for bombings in
Chicago, New York, and Mexico. Roberto Santiago, Terrorism American
Style: The Guillermo Morales Story, the Plain Dealer, Aug. 1, 1993 at
A8.
\184\ Rodriguez brief at 14.
---------------------------------------------------------------------------
e. Plans for bombings
In June 1983, the four FALN members made plans to bomb
military facilities in the Chicago area.\185\ They drove to
various sites and discussed the layout and suitability of
different facilities.\186\ On June 1, 1983, as they discussed
the different military targets, Cortes was teaching Alberto
Rodriguez how to put together a bomb as they sat around the
kitchen table in the Lunt safe house. Cortes told Rodriguez,
``[u]sually we don't show everybody that's in the organization
the way this is done . . . this technique. We're the only ones
that use it. Nobody else uses this. You have to be careful who
we show this.'' \187\ On June 28, 1983, Cortes met individually
with Torres and Alberto Rodriguez. That day Cortes inventoried
the bombmaking accessories located at the safe house.\188\ In
addition, Cortes and Torres drafted a communique which stated,
``[w]e warn both governments that failures to respect the human
rights and physical well being will be met with the
revolutionary violence of our people.'' \189\
---------------------------------------------------------------------------
\185\ Id. at 15.
\186\ Cortes and Alberto Rodriguez drove to an Army Reserve Center,
a Marine base, a GSA building, and two military motor pools. Id.
\187\ Id.
\188\ Id. at 16.
\189\ Id.
---------------------------------------------------------------------------
Cortes indicated that all was ready for the bombs to be
placed. He and Alberto Rodriguez drew maps and diagrams of the
targets and prepared the blasting caps and explosives.\190\
Fortunately, they did not get a chance to place the bombs. On
June 29, 1983, agents arrested all four FALN members.\191\
---------------------------------------------------------------------------
\190\ The explosives had been replaced with inert material at the
time agents first searched the Buena safe house. Id.
\191\ Id. at 17.
---------------------------------------------------------------------------
f. The trial
The four FALN members were charged with seditious
conspiracy, various weapons charges and conspiring to obstruct
commerce by robbery.\192\ Similar to the earlier FALN trial,
Torres, Cortes, and Alberto Rodriguez all declared themselves
``prisoners of war.'' However, unlike the other members, they
did participate in various phases of their trial and even made
closing arguments to the jury. The newest recruit to the FALN,
Jose Rodriguez, put on a defense.\193\ He sat at a table
separate from the others and denied affiliation with the FALN,
yet admitted that he supported its tactics and goals.\194\
Torres, Cortes, and Alberto Rodriguez openly admitted that,
``they believed violence was a morally acceptable and
legitimate tool and the only one available, to free their
homeland from American dominance.'' \195\ A jury found all four
guilty of at least some of the charges brought against
them.\196\
---------------------------------------------------------------------------
\192\ Exhibit 11--Indictment.
\193\ Paul Galloway, FALN Recipe for Urban Subversion, Chicago
Trib., Aug. 8, 1985, at Tempo.
\194\ Id.
\195\ William B. Crawford, Jr., 3 Get 35 Years in Jail for FALN
Conspiracy, Chicago Trib., Oct. 5, 1985, at A1, A2.
\196\ Exhibit 18--Memorandum from U.S. Attorney's Office to
Probation Office.
---------------------------------------------------------------------------
4. The Macheteros' activities in Puerto Rico
The Macheteros, a terrorist group whose goal is the
independence of Puerto Rico from the United States, literally
translates as ``the machete wielders.'' The group generally
carries out its terrorist activities within Puerto Rico, and
the name bespeaks the violence for which they are known.\197\
In testimony before the Senate Select Committee on
Intelligence, FBI Director Louis J. Freeh discussed threats to
the United States' security, stating that, ``[t]he EPB-
Macheteros has been the most active and violent of the Puerto
Rican-based terrorist groups since it emerged in 1978.'' \198\
The Macheteros finance their operations through robberies, the
largest being the September 12, 1983, robbery of Wells
Fargo.\199\ During that operation, the Macheteros stole $7.2
million, the largest armored car robbery at the time.
---------------------------------------------------------------------------
\197\ Presentence report of Juan Segarra-Palmer, Justice Department
production 130052-130100, at 130061.
\198\ Threats to U.S. National Security. Hearing before the Senate
Select Committee on Intelligence, 105th Cong., 2d Sess. (1998).
\199\ The FBI found that the Macheteros used the proceeds of
several Wells Fargo robberies in Puerto Rico and the Hartford robbery,
to finance its activities. George Gombossy, `Freedom Fighter' a Cuban-
Trained Terrorist, FBI Says, Houston Chron., Oct. 25, 1987; presentence
report of Juan Segarra-Palmer at 130059-130060.
---------------------------------------------------------------------------
Authorities in Connecticut, where the robbery occurred,
brought indictments against 19 individuals involved in the
planning and execution of the robbery, as well as the
transportation of the money after the fact.\200\ Several of the
individuals involved in the Wells Fargo robbery remain
fugitives. Of those individuals convicted, President Clinton
offered commutations or remissions of fines to four: Juan
Segarra-Palmer, Norman Ramirez-Talavera, Roberto Maldonado-
Rivera, and Antonio Camacho-Negron.\201\ The President commuted
the sentence of Juan Segarra-Palmer and remitted his fine.\202\
Antonio Camacho Negron reached his mandatory release date and
was released from prison under conditions of parole. He refused
to abide by those conditions, therefore his parole was
revoked.\203\ Because of these circumstances, the President
offered only to remit the fine of Antonio Camacho-Negron.
Camacho-Negron refused the offer, and remains in prison. The
President remitted the fines of the remaining two individuals
convicted for their involvement in the Wells Fargo robbery,
Norman Ramirez-Talavera and Roberto Maldonado-Rivera.\204\
---------------------------------------------------------------------------
\200\ Id. at 130054-130057.
\201\ Exhibit 10--President's grant of clemency.
\202\ Id.
\203\ Notice of Action on Appeal, Department of Justice production
003625-003628. (Exhibit 20).
\204\ Exhibit 10--President's grant of clemency.
---------------------------------------------------------------------------
The first terrorist act for which the Macheteros took
credit was the murder of a San Juan policeman in August
1978.\205\ Authorities later determined that the group had
robbed at least two banks prior to the murder.\206\ Ultimately,
the Macheteros were responsible for a wave of terror in Puerto
Rico that left five dead and caused many millions of dollars in
damages.
---------------------------------------------------------------------------
\205\ Luis Feldstein Soto, Puerto Rican Terrorists Taunt FBI, But
Agency Is Closing In, Houston Chron., Sept. 15, 1985.
\206\ Listing of Macheteros actions from January 1977 through June
1989. Department of Justice production 102000045-102000046. (Exhibit
21).
---------------------------------------------------------------------------
Perhaps one of the more violent acts perpetrated by the
Macheteros, was the December 1979 attack on a United States
Navy bus near Sabana Seca, Puerto Rico, that left 2 dead and 10
wounded.\207\ At the time of the attack, the bus was carrying
18 Navy enlisted personnel to a communications transmitter on
the eastern end of Puerto Rico. A Macheteros communique
claiming credit for the attack indicated that it was in
reprisal for the death of an independentista in a Florida
prison.\208\ However, authorities ruled the prison death a
suicide after they found the prisoner had hanged himself in his
cell. Former Macheteros member Carlos Rodriguez implicated Juan
Segarra Palmer, who was granted clemency by the President, in
the attack on the Navy bus.\209\ Rodriguez told authorities
that he attended a Macheteros meeting in mid-November 1979 at
which Segarra made an announcement that the Macheteros would
attack a Navy bus.\210\ The group had discussed attacking other
military institutions; however, it dismissed those plans in
favor of the Navy bus.\211\ Segarra planned and instructed
others on the operation, including the orders to shoot at the
bus from a moving vehicle, while blocking the bus with another
vehicle.\212\ The Macheteros met 3 weeks after the attack to
discuss the operation. During the meeting Segarra evaluated the
attack, and commented that ``while the operation had resulted
in two dead, he felt the results should have been more
severe.'' \213\
---------------------------------------------------------------------------
\207\ Luis Feldstein Soto, Puerto Rican Terrorists Taunt FBI, But
Agency Is Closing In, Houston Chron., Sept. 15, 1985.
\208\ Id.
\209\ Presentence report of Juan Segarra-Palmer at 130079.
\210\ Id.
\211\ Segarra initially wanted to attack the military installation
at Sabana Seca, but determined that the fence around the base was too
high. Another plan considered was to attack FBI agents, but that too
was rejected as ``too hot.'' The group also discussed attacking Fort
Buchanan military personnel. That plan was rejected as ``ineffective.''
Id. at 130080.
\212\ The former Machetero, Carlos Rodriguez, indicated that
Segarra was supposed to be driving a white van during the attack, yet
he did not see Segarra on the scene that day. Id. at 81.
\213\ Id.
---------------------------------------------------------------------------
The Macheteros continued to use the ambush effectively. In
March 1980, the Macheteros attacked and wounded three United
States Army officers on their way to the University of Puerto
Rico, Rio Pedras Campus, to participate in ROTC
activities.\214\ In January 1981, the Macheteros claimed
responsibility for the bombing of 11 Air National Guard planes,
causing $45 million in damages.\215\ Segarra, who was granted
clemency by the President, implicated himself in the bombing
during a conversation with Macheteros leader Filiberto Ojeda
Rios:
---------------------------------------------------------------------------
\214\ Luckily, the three officers escaped with only slight
injuries. Exhibit 21--Listing of Macheteros actions; Luis Feldstein
Soto, Puerto Rican Terrorists Taunt FBI, But Agency Is Closing In,
Houston Chron., Sept. 15, 1985.
\215\ A Machete and a Macheteros flag were left behind at the
scene. In addition, the attackers left a videotape of themselves
preparing for the bombing--putting on military fatigues and boots.
Exhibit 21--Listing of Macheteros actions; Luis Feldstein Soto, Puerto
Rican Terrorists Taunt FBI, But Agency Is Closing In, Houston Chron.,
Sept. 15, 1985.
You know, if, if I had to choose the, the three or
four people that are really responsible for the Gaviota
happening and, and happening the way it happened,
right? Successful and making it happen, I would pick
four people. I would say, Frank, okay? I would say you,
Jumbo and I.\216\
---------------------------------------------------------------------------
\216\ ``La Gaviota,'' which literally translates as seagull, was
the codeword for the Macheteros attack at the Air National Guard base.
Macheteros literature describes the attack as the ``most overwhelming
blow given to the Yankees in `North American territory' since Pearl
Harbor and outside its territory since the TET offensive in Vietnam.''
Jumbo, the code name for one of the other individuals referred to by
Segarra, was later identified as Orlando Gonzalez Claudio. Frank was
the code name for Isaac Camacho Negron. Presentence report of Juan
Segarra-Palmer at 130082-130083; Harry Turner, FBI Agent Identifies 3
as Bombers of Air Base, San Juan Star, Sept. 21, 1985, at 3.
In addition, a surveillance tape at the Muniz Air Base captured
Segarra and two others on the base the night of the
bombing.\217\ In 1985, the Macheteros took responsibility for
the ambush attack on Army Major Michael Snyder as he was riding
to work the morning of November 6, 1985.\218\ Major Snyder was
riding his motor scooter to the base when two men on
motorcycles pulled along side him.\219\ One of the men pulled
out a gun and shot him twice, seriously wounding Snyder.\220\
In claiming responsibility, the Macheteros explained that the
attack was a reprisal for FBI Director William Webster's visit
to Puerto Rico 2 days earlier.\221\
---------------------------------------------------------------------------
\217\ An FBI agent identified the trio, which included Orlando
Gonzalez Claudio and Isaac Camacho Negron, from the surveillance tape.
Gonzalez and Camacho were also involved in the attack on the Navy bus.
Harry Turner, FBI Agent Identifies 3 as Bombers of Air Base, San Juan
Star, Sept. 21, 1985, at 3.
\218\ Harold Lidin, U.S. Army Officer Wounded in Ambush in Puerto
Rico, the Washington Post, Nov. 7, 1985, at A17.
\219\ Id.
\220\ Id.
\221\ Webster was in Puerto Rico to speak at a judicial conference.
``Picketers at the conference protested alleged FBI brutality in an
Aug. 30 roundup of `Los Macheteros' members.'' Id.
---------------------------------------------------------------------------
The Macheteros have engaged in numerous other violent acts,
including more recent attacks. Some of the more violent acts
which they carried out were: the ambush of four U.S. Navy
personnel in retaliation for an exercise performed by the Navy
in 1982, in which one member of the Navy was killed; a 1983
robbery of a Wells Fargo truck in Villa Fontana in which one
civilian was killed, and; a 1983 robbery of a Wells Fargo truck
at San Roberto, Rio Pedras, Puerto Rico, in which the driver of
the Wells Fargo truck was killed.\222\ The Macheteros have also
been active recently. On March 31, 1998, they claimed
responsibility for the bombing of the superaqueduct at Arecibo,
Puerto Rico.\223\ According to a statement by the Macheteros,
the attack was in retaliation for ``environmental aggression,''
and was ``only the beginning of what from now on will
constitute a line of action in defense of our country.'' \224\
The Macheteros also took responsibility for the June 9, 1998,
attacks on two branches of the Banco Popular.\225\ The
Macheteros set off a bomb at the first branch while they
conducted a drive-by shooting of the second branch.\226\ The
Macheteros claimed that the attacks were to show support for
the telephone company strike.\227\
---------------------------------------------------------------------------
\222\ Exhibit 21--List of Macheteros actions.
\223\ Recent Macheteros statements/actions. Produced by the Federal
Bureau of Investigation, unnumbered. (Exhibit 22).
\224\ On Apr. 21, 1998, Macheteros fugitive Filiberto Ojeda Rios
confirmed that the Macheteros were responsible for the bombing on
environmental grounds. Id.
\225\ Id.
\226\ Id.
\227\ Id.
---------------------------------------------------------------------------
5. The Wells Fargo robbery and Macheteros convictions
On August 30, 1985, FBI agents in Puerto Rico arrested 12
people in Puerto Rico and 2 people in the continental United
States in connection with the Macheteros 1983 robbery of $7.2
million from a Wells Fargo armored car in Connecticut.\228\
Over 200 agents served 30 search warrants that day in the
investigation of the Macheteros, who earlier had claimed credit
for the robbery.\229\ The FBI indicated that their
investigation spanned over 20 months and involved numerous
``wiretaps on suspects [sic] homes, cars, phones, nearby pay
phones, and a motor home.'' \230\ Ultimately, indictments were
brought in Connecticut against 19 individuals associated with
the Macheteros for their respective roles in the conspiracy to
rob the armored car and later transport the funds.\231\
---------------------------------------------------------------------------
\228\ 14 Held in $7 Million Wells Fargo Robbery, Houston Chron.,
Aug. 31, 1985, at 1.
\229\ Ron Howell, FBI Roundup Brings Anger in Puerto Rico, Newsday,
Dec. 2, 1985.
\230\ Luis Feldstein Soto, Puerto Rican Terrorists Taunt FBI, But
Agency Is Closing In, Houston Chron., Sept. 15, 1985 at 1.
\231\ Presentence report of Juan Segarra-Palmer at 130053-130055.
---------------------------------------------------------------------------
a. The robbery
Prosecutors described the circumstances under which the
Wells Fargo robbery in Connecticut took place:
On September 12, 1983, between 9:30 and 11:00 p.m.,
Wells Fargo guard and co-defendant Victor Manuel
Gerena, returned to the Wells Fargo depot in West
Hartford, Connecticut after completing his days work,
removed a revolver from his co-worker's holster, placed
it to his head and tied him up. He then subdued a
second employee, hog-tied him, injected both co-workers
with a sleep-inducing substance, and fled with more
than seven million dollars.\232\
---------------------------------------------------------------------------
\232\ Id. at 130059-130060.
It was not until October 19, 1984, that the Macheteros took
credit for the robbery.\233\ The group waited to issue its
communique until all of the money was safely out of the United
States and in the Macheteros' possession, ``in a state of
maximum security.'' \234\ The communique described the robbery
as a ``military-economic operative'' to earn money for the
``revolutionary movement[].'' \235\ It further explained, ``in
the same manner in which we have seized seven million dollars
from the very bowels of American imperialism, the organized
force of the Puerto Rican people will know how, in its own time
to seize the liberty which will allow us to choose our destiny
as a people.'' \236\ According to the communique, the actual
planning and execution of the Wells Fargo robbery took 1\1/2\
years to complete.\237\ Integral in that planning was Juan
Segarra-Palmer. Segarra was known as the Macheteros' ``Harvard
educated thinker,'' who was responsible for much of the
planning involved in Macheteros' actions.\238\
---------------------------------------------------------------------------
\233\ Id. at 130060.
\234\ Quote from the Macheteros communique taking credit for the
robbery. Id.
\235\ Id.
\236\ The communique also notes that their, ``comrade Victor
Gerena'' had done an outstanding job and that he was in good health and
integrated into the struggle for Puerto Rican independence. Gerena
remains a fugitive. Id.
\237\ Id.
\238\ Segarra's mother described him as exceptionally intelligent
from a young age. As a young boy, Segarra approached his parents about
attending prep school in Andover, MA, which he did. Segarra later
attended Harvard University. He graduated from Harvard in 1972. Id. at
130085, 130092-130093.
---------------------------------------------------------------------------
During its lengthy investigation, the FBI was able to
untangle the connections and roles of all the individuals
involved. They began with information they found in a search
while investigating a separate Macheteros offense.\239\ In a
Macheteros safehouse they found a cache of weapons along with
organizational materials describing the manner in which the
group was organized, ``safe'' meeting places, storage
facilities, training grounds, and workshops.\240\ The documents
disclosed that the Macheteros were formed in 1976 with their
leader Filiberto Ojeda Rios, and that the group operated
through a system of complicated cells.\241\ Armed with that
information, the FBI was able to secure wiretaps on the homes
of Filiberto Ojeda Rios, his car, three public telephones
across the street from Ojeda's residence, the residence of Juan
Segarra-Palmer, and the public telephones outside Segarra-
Palmer's residence.\242\ Through these sources, authorities
learned that Ojeda and Segarra were leaders of the Macheteros
and had planned not only the Connecticut Wells Fargo robbery,
but numerous other attacks as well.
---------------------------------------------------------------------------
\239\ The FBI was investigating the 1983 light anti-tank weapon
rocket attack on the United States Courthouse and Federal Building in
Hato Rey Puerto Rico. Id. at 130061-130063.
\240\ Id. at 130062.
\241\ ``The Macheteros use a system of codenames for individuals,
meeting places, meeting times and projects. The Macheteros utilize a
system of cells which compartmentalize information so that one cell is
not aware of the identities of individuals and projects in other
cells.'' Id.
\242\ Id.
---------------------------------------------------------------------------
b. The investigation and indictments
After developing its evidence, the government was able to
secure the cooperation of several witnesses who had been close
to Segarra and other Macheteros members. Notably, an associate
of Segarra's, Kenneth Cox, testified that Segarra told him that
he committed the Wells Fargo robbery.\243\ According to
Segarra's account to Cox, on the night of the robbery Victor
Gerena was taken on a motorcycle from Hartford, CT to
Springfield, MA.\244\ Shortly thereafter, Gerena was moved to
Boston and ultimately to Mexico while hidden in a secret
compartment in a motor home.\245\ The money, which in total
weighed 1,150 pounds, was transported in cars to
Springfield.\246\ The FBI was able to tie Segarra both to the
transfer of Gerena and the money.
---------------------------------------------------------------------------
\243\ Id. at 130064.
\244\ Id. at 130065.
\245\ Id.
\246\ Id.; George Gombossy, `Freedom Fighter' a Cuban Trained
Terrorist, FBI Says, Houston Chron., Oct. 25, 1987, at A1.
---------------------------------------------------------------------------
A woman who was identified as Segarra's ex-lover, Anne
Gassin, also cooperated with the government in its case against
the Macheteros.\247\ Gassin stated that Segarra told her, ``his
role in the robbery was to time the different escape routes
away from the Wells Fargo depot.'' \248\ His primary role
thereafter was to get the money out of the United States.
Segarra and Ojeda purchased a motor home that they customized
with secret compartments to house Victor Gerena and a
substantial amount of the stolen money while crossing the
border into Mexico.\249\ After his first trip, Segarra made a
second trip to Mexico in March 1984. He drove the motor home
across the border to Mexico, transporting $2,024,000 of the
stolen cash.\250\ In September 1984, Segarra bought a new motor
home. He and Antonio Camacho-Negron, who was also offered a
grant of clemency by the President,\251\ worked to customize it
in order to hide cash.\252\ On September 21, 1983, Segarra,
Camacho, and a woman from Puerto Rico drove the motor home to
Mexico.\253\ On October 19, 1984, with the money safely outside
of the United States, the Macheteros claimed responsibility for
the robbery.
---------------------------------------------------------------------------
\247\ Gassin had originally been arrested as part of the conspiracy
on Aug. 30, 1985. Id.
\248\ Id.
\249\ Id. at 130067-130068.
\250\ Macheteros documents reflected Segarra's movement of this
money. In addition, in an intercept of Filiberto Ojeda Rios'
conversation with Segarra, Segarra stated that $2,024,000 was taken the
last time, meaning March 1984. Id. at 130068.
\251\ The President offered to remit Camacho's fine of $100,000.
Camacho refused the offer.
\252\ Segarra had made an earlier attempt to move the rest of the
money across the border to Mexico. He had devised a plan to have a non-
hispanic couple drive a truck and trailer across the border, and
recruited Anne Gassin and another friend, Paul Weinberg, to drive. En
route to the Mexican border from Massachusetts, the truck and trailer
overturned on the Interstate in Pennsylvania. As a result of the
accident, the money had spilled out of the secret compartments. Segarra
occupied the Pennsylvania State Police who showed up on the scene of
the accident while his colleagues gathered up the money in plastic
bags. Id. at 130071-130072; presentence report of Antonio Camacho-
Negron, Department of Justice production 140056-140081, at 140064.
\253\ Segarra applied for and received a passport in the name of
Ronald Paul Princiotta for the trip. He used the birth certificate of
an infant who had died shortly after its birth in 1947. Segarra
explained to Anne Gassin that he had used the name in the past.
Presentence report of Juan Segarra-Palmer at 130071-130072.
---------------------------------------------------------------------------
Antonio Camacho Negron's role in the conspiracy was to
``help Segarra conceal the money inside the vehicle.'' \254\
Camacho did, in fact, assist Segarra in building the special
panels to hide the money inside the motor home. In addition,
Segarra told Anne Gassin that, ``Camacho had done this sort of
thing before and was skilled in that type of work.'' \255\ In
fact, FBI agents first discovered Camacho and his role in the
Macheteros when he was seen at a safe house used by Filiberto
Ojeda Rios.\256\ At the time, he was driving a vehicle known as
a Macheteros ``safe vehicle.'' \257\ After his identification,
FBI agents were able to trace his membership in the Macheteros
to July 1984.\258\ Documents seized from the Macheteros
bookkeeper provided further information into Camacho's
activities. The documents show that ``Roco,'' Camacho's
codename, was a full-time member of the Macheteros in December
1984 and was paid a monthly salary of $600.\259\ In addition,
minutes of Macheteros meetings show that ``Roco'' was present
when problems during the Wells Fargo robbery were discussed,
and actively participated in the conversation.\260\
---------------------------------------------------------------------------
\254\ Camacho's Macheteros codename was ``Roco,'' and that is how
he is referred to in most documents or surveillance recordings.
Presentence report of Antonio Camacho-Negron at 140064.
\255\ Id. at 140066.
\256\ Id. at 140067-40068.
\257\ Camacho was pulled over while driving the vehicle. Although
Camacho told police that a friend owned it, the vehicle was registered
to a woman who told law enforcement that she had never owned the
vehicle. In addition, several other known members of the Macheteros had
driven the vehicle. Id. at 140068.
\258\ Camacho was photographed on that date exiting the residence
of Filiberto Ojeda Rios, along with a co-defendant in the Wells Fargo
robbery, Orlando Gonzalez Claudio. Id. at 140069.
\259\ ``Roco'' was also entrusted with large sums of Macheteros
money for ``zone 4,'' of which Camacho was a member. Id. at 140072.
\260\ Id. at 140073.
---------------------------------------------------------------------------
Roberto Maldonado Rivera also participated in the
transportation of the Wells Fargo money across the border from
the United States to Mexico.\261\ Maldonado was responsible for
driving the back-up vehicle as Segarra drove the motor home
across the border into Mexico on September 22, 1984.\262\
Macheteros documents showed that Maldonado, whose ``codenames''
were ``Joaquin,'' ``Jan,'' or ``Jean,'' had been affiliated
with Filiberto Ojeda Rios and other members of the Macheteros
since 1970.\263\ ``A letter sent from the members of `Zone 1'
of Los Macheteros to `comrades,' dated April 13, 1985, stated
that `Jean' joined the organization in 1977, was expelled in
1978, and rejoined in 1984 giving him a total of two to three
years as a member.'' \264\ After rejoining the Macheteros,
Maldonado took on significant responsibilities, including
membership in the Central Committee, which established
Macheteros policies, and the Directive Committee, which
implemented those policies.\265\ In 1985, similar to Camacho,
Maldonado was a salaried member of the Macheteros, paid $500
per month.\266\
---------------------------------------------------------------------------
\261\ Presentence report of Roberto Maldonado Rivera, Department of
Justice production 150024-150047, at 150043.
\262\ Segarra had Orlando Gonzalez Claudio drive the back-up
vehicle the first time Segarra crossed the border in March 1984. Id. at
150043-150044.
\263\ Id. at 150044.
\264\ Id.
\265\ Id. at 150045.
\266\ Maldonado was the leader of Zone 3. In that capacity he was
entrusted to handle large sums of Macheteros money. Id. at 150045-
150047.
---------------------------------------------------------------------------
Norman Ramirez Talavera was an active member of the
Macheteros as well. After the robbery, the Macheteros used a
small portion of the stolen money to buy toys for Three Kings
Day.\267\ Ramirez participated in the toy giveaway funded
through the stolen Wells Fargo money.\268\ Ramirez actually
purchased about $5,600 in toys from a ``Toys 'R Us'' in
Connecticut, using the Wells Fargo funds.\269\ He also dressed
up as a ``King'' to distribute the toys and $20 bills in
Hartford.\270\ Ramirez first came to the attention of the FBI
when he was observed traveling frequently with Segarra's
wife.\271\ Macheteros documents showed that Ramirez was a
salaried member of the Macheteros since June 1980.\272\
However, other records show that Ramirez was a general member
in 1978, and was listed under ``Approved Comrades for Military
Action'' since July 1979.\273\
---------------------------------------------------------------------------
\267\ Presentence report of Norman Ramirez Talavera, Department of
Justice production 160021-160035, at 160027.
\268\ Id.
\269\ Id.
\270\ Id.
\271\ Segarra's wife, Luz Berrios Berrios, pleaded guilty to
charges relating to her role in the Wells Fargo Robbery. Id. at 160025.
\272\ Depending on the amount of money available, Ramirez earned
between $268 and $500 per month. Id. at 160025-160026.
\273\ Id. at 160025.
---------------------------------------------------------------------------
c. The trials and convictions
After he was found guilty by a jury, Juan Segarra-Palmer
submitted a statement regarding his actions in the Wells Fargo
robbery:
I planned and organized the receipt and
transportation of the money after it was taken from the
Wells Fargo depot and the subsequent toy giveaways in
Hartford and Puerto Rico on January 6, 1985. I consider
my acts part of the struggle against colonialism and
for the self-determination of Puerto Rico and therefore
political offenses, not crimes. . . .\274\
---------------------------------------------------------------------------
\274\ Presentence report of Juan Segarra-Palmer at 130090.
Segarra did not acknowledge that he had prior knowledge, and in
fact planned the Wells Fargo robbery. The judge and jury found
differently, and Segarra was sentenced to 65 years in prison
and given a $500,000 fine. President Clinton offered both to
commute his sentence and remit his fine. Segarra accepted the
President's offer, although under the conditions of clemency,
he continues to serve some portion of his sentence.
Antonio Camacho-Negron, represented by court appointed
counsel, pleaded not guilty to the charges leveled in the
Connecticut indictment.\275\ During his trial, Camacho was
asked about the violent activities associated with the
Macheteros, in particular the attack on the U.S. Navy bus.
Camacho responded, ``[c]an anyone condemn David for hitting
Goliath with a stone?'' \276\ Camacho refused to cooperate with
the Probation Office, indicating that it was a representative
of the Government.\277\ The Probation Office provided an
assessment of Camacho:
---------------------------------------------------------------------------
\275\ Presentence report of Antonio Camacho-Negron at 140076.
\276\ Id. at 140074.
\277\ Id. at 140077.
First and foremost, it is this officer's opinion that
Mr. Camacho-Negron exhibits the most fanatical demeanor
of all of the codefendants [sic] interviewed by this
officer to date. He indulges in florid rhetoric and
enjoys hearing himself talk. He appears downright
obsessive about his present circumstances and is
probably extremely hostile and aggressive under his
superficial courteous demeanor.\278\
---------------------------------------------------------------------------
\278\ Id. at 140081.
After serving out his sentence until the mandatory release
date, Camacho was released on parole in February 1998.\279\ He
was subject to the same terms of release as all other prisoners
in his situation would be. However, Camacho returned to Puerto
Rico and purposefully violated the terms of his parole.
Attorneys for Camacho wrote to the Probation office to let the
office know that Camacho was ``not available at the moment.''
\280\ His attorneys attempted to make the argument that he
should not be subject to the same rules as all other prisoners
on mandatory release:
---------------------------------------------------------------------------
\279\ Sentence monitoring computation data for Antonio Camacho-
Negron, Department of Justice production 140037.
\280\ Letter from Luis Nieves Falcon, Comite Pro Derechos Humanos
en Puerto Rico, to Eustaquio Babilonia, United States Probation Office,
Deputy Chief (Feb. 19, 1998). (Exhibit 23).
Because of his sincere and strongly held political
beliefs, he feels he cannot comply with to [sic]
onerous supervision conditions imposed upon him after
10 years of incarceration. To require him to comply
with those conditions is an interference with his
rights to political and personal freedom in violation
of prevailing human rights [sic]. If he has to choose
between his political beliefs and his personal dignity
or complying with your conditions he chooses the first
and rather reenter prison [sic].\281\
---------------------------------------------------------------------------
\281\ Id.
Camacho-Negron did re-enter prison after his mandatory release
was revoked for failure to comply with the terms and conditions
of parole.\282\ Camacho was not offered a commutation of
sentence by President Clinton, rather he was granted a
remission of fine, which he refused. Camacho is free to gain
release from prison at any time if he is willing to comply with
parole conditions.\283\
---------------------------------------------------------------------------
\282\ Notice of action on appeal for Antonio Camacho-Negron,
Department of Justice production 015482. (Exhibit 24).
\283\ Id.
Roberto Maldonado Rivera, an attorney, represented himself
during his trial. After he was found guilty of the conspiracy,
---------------------------------------------------------------------------
he submitted a written statement to the Probation Office:
My theory of the case rests on the knowledge that I
believe I am being persecuted by the government of the
United States for my work in human and civil rights for
the past two decades in Puerto Rico. I had nothing to
do with the Wells Fargo robbery and I believe there is
no evidence linking me in any way to a conspiracy in
said case.\284\
---------------------------------------------------------------------------
\284\ Presentence report of Roberto Maldonado-Rivera at 150029.
Maldonado steadfastly maintained his innocence both before and
after the trial. However, he did state that he was an ``ardent
independist'' and that ``he viewed the conflict between Puerto
Rico and the United States in a similar fashion as a
revolutionary war between the original thirteen colonies and
their mother country, England.'' \285\ In addition, he stated
that he ``does not condemn any violent actions in the pursuit
of independence.'' \286\
---------------------------------------------------------------------------
\285\ Id. at 150029-150030.
\286\ Id. at 150030.
---------------------------------------------------------------------------
Ramirez was arrested in Puerto Rico, along with 15 other
members of the Macheteros, on August 30, 1985. Prior to his
arrest he was overheard in a conversation stating that he
``would never be arrested. Have I told you?'' He added that he
would not permit anyone to ``take him abroad [to the mainland
United States] . . . they will have to take me dead. I won't be
caught alive. I couldn't stand being out there.'' \287\
Ramirez, represented by an attorney, pleaded not guilty to the
charges brought against him. However, he refused to provide any
statement or information to the Probation Office.\288\ He was
sentenced to 5 years in prison and released on parole in April
1994.\289\ President Clinton offered to remit the balance of
his fine, which Ramirez accepted.
---------------------------------------------------------------------------
\287\ Presentence report of Norman Ramirez Talavera at 160027.
\288\ Id. at 160028-160029.
\289\ Certificate of Parole for Norman Ramirez Talavera, Department
of Justice production 006073.
---------------------------------------------------------------------------
b. the sentences of the 16 offered clemency
The following section reviews the counts, crimes, maximum
penalties, and sentences of the 16 members of the FALN offered
clemency by President Clinton on August 11, 1999. A variety of
documents produced to the Committee by the Department of
Justice in response to the Committee's September 1, 1999,
subpoena were sources of information for this summary.
Documents include the August 11, 1999, executive grant of
clemency, judgment and commitment orders prepared by the
courts, presentence reports prepared by probation officers, and
progress reports prepared by the Bureau of Prisons. The U.S.
Code sections listed for each criminal count are as listed in
President Clinton's August 11, 1999, executive grant of
clemency.
1. Elizam Escobar
Elizam Escobar was convicted of seven criminal counts on
February 11, 1981, in the U.S. District Court for the Northern
District of Illinois. The maximum penalty for these crimes was
a $50,000 fine and/or a maximum of 80 years in prison. Escobar
was sentenced to a 60-year term of imprisonment on February 18,
1981. The specific criminal counts are as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
1--Seditious Conspiracy............. 18 U.S.C. Sec. 2384... 20
2--Interference with Interstate 18 U.S.C. Sec. 1951 20
Commerce by Threats or Violence. and 18 U.S.C. Sec. 2.
3--Possession of an Unregistered 26 U.S.C. Sec. 5861(d) 10
Firearm. and 18 U.S.C. Sec. 2.
4--Carrying Firearms During the 18 U.S.C. Sec. 10
Commission of Seditious Conspiracy 924(c)(2).
and Interference with Interstate
Commerce by Violence.
9--Interstate Transportation of 18 U.S.C. Sec. 924(b) 10
Firearms with Intent to Commit and 18 U.S.C. Sec. 2.
Seditious Conspiracy and
Interference with Interstate
Commerce by Violence.
10--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
13--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
------------------------------------------------------------------------
The total effective 60-year sentence was determined by
consecutive and/or concurrent sentences for the individual
counts. Counts 1, 2, 10, and 13 were to run consecutively.
Counts 3, 4, and 9 were to run concurrently with each other and
consecutively to all other counts.
On August 26, 1980, Escobar began serving an Illinois State
sentence for conspiracy to commit armed robbery (3 years),
unlawful use of a shotgun (5 years consecutive), and unlawful
use of a loaded handgun (364 days concurrent). He was confined
at the Illinois State Penitentiary until he was remanded into
Federal custody on January 31, 1981. Escobar's Federal sentence
was to run consecutively to the 8-year sentence imposed in the
Illinois State Court.
2. Ricardo Jimenez
Ricardo Jimenez was convicted of nine criminal counts on
February 11, 1981, in the U.S. District Court for the Northern
District of Illinois. The maximum penalty for these crimes was
a $60,000 fine and/or a maximum of 90 years in prison. Jimenez
was sentenced to a 90-year term of imprisonment on February 18,
1981. The specific criminal counts are as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
1--Seditious Conspiracy............. 18 U.S.C. Sec. 2384... 20
2--Interference with Interstate 18 U.S.C. Sec. 1951 20
Commerce by Threats or Violence. and 18 U.S.C. Sec. 2.
3--Possession of an Unregistered 26 U.S.C. Sec. 5861(d) 10
Firearm. and 18 U.S.C. Sec. 2.
4--Carrying Firearms During the 18 U.S.C. Sec. 10
Commission of Seditious Conspiracy 924(c)(2).
and Interference with Interstate
Commerce by Violence.
9--Interstate Transportation of 18 U.S.C. Sec. 924(b) 10
Firearms with Intent to Commit and 18 U.S.C. Sec. 2.
Seditious Conspiracy and
Interference with Interstate
Commerce by Violence.
10--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
11--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
12--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
13--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
------------------------------------------------------------------------
All counts of the total effective 90-year sentence were to
run consecutively.
On August 26, 1980, Jimenez began serving an Illinois State
sentence for conspiracy to commit armed robbery (3 years),
unlawful use of a shotgun (5 years consecutive), and unlawful
use of a loaded handgun (364 days concurrent). He was confined
at the Illinois State Penitentiary until he was remanded into
Federal custody on January 31, 1981. Jimenez' Federal sentence
was to run consecutively to the 8-year sentence imposed in the
Illinois State Court.
3. Adolfo Matos
Adolfo Matos was convicted of nine criminal counts on
February 11, 1981, in the U.S. District Court for the Northern
District of Illinois. The maximum penalty for these crimes was
a $60,000 fine and/or a maximum of 90 years in prison. Matos
was sentenced to a 70-year term of imprisonment on February 18,
1981. The specific criminal counts are as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
1--Seditious Conspiracy............. 18 U.S.C. Sec. 2384... 20
2--Interference with Interstate 18 U.S.C. Sec. 1951 20
Commerce by Threats or Violence. and 18 U.S.C. Sec. 2.
3--Possession of an Unregistered 26 U.S.C. Sec. 5861(d) 10
Firearm. and 18 U.S.C. Sec. 2.
4--Carrying Firearms During the 18 U.S.C. Sec. 10
Commission of Seditious Conspiracy 924(c)(2).
and Interference with Interstate
Commerce by Violence.
9--Interstate Transportation of 18 U.S.C. Sec. 924(b) 10
Firearms with Intent to Commit and 18 U.S.C. Sec. 2.
Seditious Conspiracy and
Interference with Interstate
Commerce by Violence.
10--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
11--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
12--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
13--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
------------------------------------------------------------------------
The total effective 70-year sentence was determined by
consecutive and/or concurrent sentences for the individual
counts. Counts 1, 2, 10, 11, 12, and 13 were to run
consecutively. Counts 3, 4, and 9 were to run concurrently with
each other and consecutively to all other counts.
On August 26, 1980, Matos began serving an Illinois State
sentence for conspiracy to commit armed robbery (3 years),
unlawful use of a shotgun (5 years consecutive), and unlawful
use of a loaded handgun (364 days concurrent). He was confined
at the Illinois State Penitentiary until he was remanded into
Federal custody on January 31, 1981. Matos' Federal sentence
was to run consecutively to the 8-year sentence imposed in the
Illinois State Court.
4. Dylcia Noemi Pagan
Dylcia Noemi Pagan was convicted of nine criminal counts on
February 11, 1981, in the U.S. District Court for the Northern
District of Illinois. The maximum penalty for these crimes was
a $60,000 fine and/or a maximum of 90 years in prison. Pagan
was sentenced to a 55-year term of imprisonment on February 18,
1981. The specific criminal counts are as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
1--Seditious Conspiracy............. 18 U.S.C. Sec. 2384... 20
2--Interference with Interstate 18 U.S.C. Sec. 1951 20
Commerce by Threats or Violence. and 18 U.S.C. Sec. 2.
3--Possession of an Unregistered 26 U.S.C. Sec. 5861(d) 10
Firearm. and 18 U.S.C. Sec. 2.
4--Carrying Firearms During the 18 U.S.C. Sec. 10
Commission of Seditious Conspiracy 924(c)(2).
and Interference with Interstate
Commerce by Violence.
9--Interstate Transportation of 18 U.S.C. Sec. 924(b) 10
Firearms with Intent to Commit and 18 U.S.C. Sec. 2.
Seditious Conspiracy and
Interference with Interstate
Commerce by Violence.
10--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
11--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
12--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
13--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
------------------------------------------------------------------------
The total effective 55-year sentence was determined by
consecutive and/or concurrent sentences for the individual
counts. Counts 1 and 2 were to run consecutively. Counts 3, 4,
and 9 were to run concurrently with each other and
consecutively to all other counts. Counts 10, 11, 12, and 13
were to run concurrently with each other and consecutively to
all other counts.
On August 26, 1980, Pagan began serving an Illinois State
sentence for conspiracy to commit armed robbery (3 years),
unlawful use of a shotgun (5 years consecutive), and unlawful
use of a loaded handgun (364 days concurrent). She was confined
at the Illinois State Penitentiary until she was remanded into
Federal custody on January 31, 1981. Pagan's Federal sentence
was to run consecutively to the 8-year sentence imposed in the
Illinois State Court.
5. Alicia Rodriguez
Alicia Rodriguez was convicted of nine criminal counts on
February 11, 1981, in the U.S. District Court for the Northern
District of Illinois. Rodriguez was sentenced to a 55-year term
of imprisonment on February 18, 1981. The specific criminal
counts are as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
1--Seditious Conspiracy............. 18 U.S.C. Sec. 2384... 20
2--Interference with Interstate 18 U.S.C. Sec. 1951 20
Commerce by Threats or Violence. and 18 U.S.C. Sec. 2.
3--Possession of an Unregistered 26 U.S.C. Sec. 5861(d) 10
Firearm. and 18 U.S.C. Sec. 2.
6--Carrying Firearms During the 18 U.S.C. Sec. 10
Commission of Seditious Conspiracy 924(c)(2).
and Interference with Interstate
Commerce by Violence.
9--Interstate Transportation of 18 U.S.C. Sec. 924(b) 10
Firearms with Intent to Commit and 18 U.S.C. Sec. 2.
Seditious Conspiracy and
Interference with Interstate
Commerce by Violence.
10--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
11--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
12--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
13--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
------------------------------------------------------------------------
The total effective 55-year sentence was determined by
consecutive and/or concurrent sentences for the individual
counts. Counts 1 and 2 were to run consecutively. Counts 3, 6,
and 9 were to run concurrently with each other and
consecutively to all other counts. Counts 10, 11, 12, and 13
were to run concurrently with each other and consecutively to
all other counts.
6. Ida Luz Rodriguez
Ida Luz Rodriguez was convicted of nine criminal counts on
February 11, 1981, in the U.S. District Court for the Northern
District of Illinois. The maximum penalty for these crimes was
a $60,000 fine and/or a maximum of 90 years in prison.
Rodriguez was sentenced to a 75-year term of imprisonment on
February 18, 1981. The specific criminal counts are as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
1--Seditious Conspiracy............. 18 U.S.C. Sec. 2384... 20
2--Interference with Interstate 18 U.S.C. Sec. 1951 20
Commerce by Threats or Violence. and 18 U.S.C. Sec. 2.
3--Possession of an Unregistered 26 U.S.C. Sec. 5861(d) 10
Firearm. and 18 U.S.C. Sec. 2.
7--Carrying Firearms During the 18 U.S.C. Sec. 10
Commission of Seditious Conspiracy 924(c)(2).
and Interference with Interstate
Commerce by Violence.
9--Interstate Transportation of 18 U.S.C. Sec. 924(b) 10
Firearms with Intent to Commit and 18 U.S.C. Sec. 2.
Seditious Conspiracy and
Interference with Interstate
Commerce By Violence.
10--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
11--Interstate Transportation of 18 U.S.C. Sec. 2312... 5
Stolen Motor Vehicles.
12--Interstate Transportation of 18 U.S.C. Sec. 2312... 5
Stolen Motor Vehicles.
13--Interstate Transportation of 18 U.S.C. Sec. 2312... 5
Stolen Motor Vehicles.
------------------------------------------------------------------------
The total effective 75-year sentence was determined by
consecutive and/or concurrent sentences for the individual
counts. Counts 1, 2, 3, 7, and 9 were to run consecutively.
Counts 10, 11, 12, and 13 were to run concurrently with each
other and consecutively to the other counts.
On August 26, 1980, Rodriguez began serving an Illinois
State sentence for conspiracy to commit armed robbery (3
years), unlawful use of a shotgun (5 years consecutive), and
unlawful use of a loaded handgun (364 days concurrent). She was
confined at the Illinois State Penitentiary until she was
remanded into Federal custody on January 31, 1981. Rodriguez'
Federal sentence was to run consecutively to the 8-year
sentence imposed in the Illinois State Court.
7. Luis Rosa
Luis Rosa was convicted of nine criminal counts on February
11, 1981, in the U.S. District Court for the Northern District
of Illinois. Rosa was sentenced to a 75-year term of
imprisonment on February 18, 1981. The specific criminal counts
are as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
1--Seditious Conspiracy............. 18 U.S.C. Sec. 2384... 20
2--Interference with Interstate 18 U.S.C. Sec. 1951 20
Commerce by Threats or Violence. and 18 U.S.C. Sec. 2.
3--Possession of an Unregistered 26 U.S.C. Sec. 5861(d) 10
Firearm. and 18 U.S.C. Sec. 2.
5--Carrying Firearms During the 18 U.S.C. Sec. 10
Commission of Seditious Conspiracy 924(c)(2).
and Interference with Interstate
Commerce by Violence.
9--Interstate Transportation of 18 U.S.C. Sec. 924(b) 10
Firearms with Intent to Commit and 18 U.S.C. Sec. 2.
Seditious Conspiracy and
Interference with Interstate
Commerce by Violence.
10--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
11--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
12--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
13--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
------------------------------------------------------------------------
The total effective 75-year sentence was determined by
consecutive and/or concurrent sentences for the individual
counts. Counts 1, 2, 3, 5, and 9 were to run consecutively.
Counts 10, 11, 12, and 13 were to run concurrently with each
other and consecutively to all other counts.
8. Carmen Valentin
Carmen Valentin was convicted of nine criminal counts on
February 11, 1981, in the U.S. District Court for the Northern
District of Illinois. The maximum penalty for these crimes was
a $60,000 fine and/or a maximum of 90 years in prison. Valentin
was sentenced to a 90-year term of imprisonment on February 18,
1981. The specific criminal counts are as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
1--Seditious Conspiracy............. 18 U.S.C. Sec. 2384... 20
2--Interference with Interstate 18 U.S.C. Sec. 1951 20
Commerce by Threats or Violence. and 18 U.S.C. Sec. 2.
3--Possession of an Unregistered 26 U.S.C. Sec. 5861(d) 10
Firearm. and 18 U.S.C. Sec. 2.
8--Carrying Firearms During the 18 U.S.C. Sec. 10
Commission of Seditious Conspiracy 924(c)(2).
and Interference with Interstate
Commerce by Violence.
9--Interstate Transportation of 18 U.S.C. Sec. 924(b) 10
Firearms with Intent to Commit and 18 U.S.C. Sec. 2.
Seditious Conspiracy and
Interference with Interstate
Commerce by Violence.
10--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
11--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
12--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
13--Interstate Transportation of 18 U.S.C. Sec. 2312 5
Stolen Motor Vehicles. and 18 U.S.C. Sec. 2.
------------------------------------------------------------------------
All counts of the total effective 90-year sentence were to
run consecutively.
On August 26, 1980, Valentin began serving an Illinois
State sentence for conspiracy to commit armed robbery (3
years), unlawful use of a shotgun (5 years consecutive), and
unlawful use of a loaded handgun (364 days concurrent). She was
confined at the Illinois State Penitentiary until she was
remanded into Federal custody on January 31, 1981. Valentin's
Federal sentence was to run consecutively to the 8 year
sentence imposed in the Illinois State Court.
9. Alberto Rodriguez
Alberto Rodriguez was convicted of five criminal counts on
August 5, 1985, in the U.S. District Court for the Northern
District of Illinois. The maximum penalty for these crimes was
a $60,000 fine and/or a maximum of 65 years in prison. On
October 4, 1985, Rodriguez was sentenced to a 35-year term of
imprisonment followed by 5 years of probation. The specific
criminal counts are as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
1--Seditious Conspiracy............. 18 U.S.C. Sec. 2384... 20
4--Conspiracy to Make Destructive 18 U.S.C. Sec. 371.... 5
Devices.
6--Possession of an Unregistered 26 U.S.C. Sec. 5861(d) 10
Firearm.
7--Possession of a Firearm without a 26 U.S.C. Sec. 5861(i) 10
Serial Number.
8--Conspiracy to Obstruct Interstate 18 U.S.C. Sec. 1951... 20
Commerce by Robbery.
------------------------------------------------------------------------
The total effective 35-year sentence followed by 5 years of
probation was determined by consecutive and/or suspended
sentences for the individual counts. Counts 1, 4, and 6 were to
run consecutively. Counts 7 and 8 were suspended. Five years of
probation were to follow Rodriguez' release from custody.
10. Alejandrina Torres
Alejandrina Torres was convicted of seven criminal counts
on August 5, 1985, in the U.S. District Court for the Northern
District of Illinois. The maximum penalty for these crimes was
a $66,000 fine and/or a maximum of 61 years in prison. On
October 4, 1985, Torres was sentenced to a 35-year term of
imprisonment followed by 5 years of probation. The specific
criminal counts are as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
1--Seditious Conspiracy............. 18 U.S.C. Sec. 2384... 20
2--Possession of an Unregistered 26 U.S.C. Sec. 5861(d) 10
Firearm.
3--Unlawful Storage of Explosives... 18 U.S.C. Sec. 842(j). 1
4--Conspiracy to Make Destructive 18 U.S.C. Sec. 371.... 5
Devices.
5--Interstate Transportation of a 18 U.S.C. Sec. 2312... 5
Stolen Vehicle.
6--Possession of an Unregistered 26 U.S.C. Sec. 5861(d) 10
Firearm.
7--Possession of a Firearm without a 26 U.S.C. Sec. 5861(i) 10
Serial Number.
------------------------------------------------------------------------
The total effective 35-year sentence followed by 5 years of
probation was determined by consecutive, concurrent, and/or
suspended sentences for the individual counts. Counts 1 and 4
were to run consecutively. Counts 2, 6, and 7 were to run
concurrently with each other and consecutively to all other
counts. Counts 3 and 5 were suspended. Five years of probation
were to follow Torres' release from custody.
11. Edwin Cortes
Edwin Cortes was convicted of eight criminal counts on
August 5, 1985, in the U.S. District Court for the Northern
District of Illinois. The maximum penalty for these crimes was
a $76,000 fine and/or a maximum of 81 years in prison. On
October 4, 1985, Cortes was sentenced to a 35-year term of
imprisonment followed by 5 years of probation. The specific
criminal counts are as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
1--Seditious Conspiracy............. 18 U.S.C. Sec. 2384... 20
2--Possession of an Unregistered 26 U.S.C. Sec. 5861(d) 10
Firearm.
3--Unlawful Storage of Explosives... 18 U.S.C. Sec. 842(j). 1
4--Conspiracy to Make Destructive 18 U.S.C. Sec. 371.... 5
Devices.
5--Interstate Transportation of a 18 U.S.C. Sec. 2312... 5
Stolen Vehicle.
6--Possession of an Unregistered 26 U.S.C. Sec. 5861(d) 10
Firearm.
7--Possession of a Firearm without a 26 U.S.C. Sec. 5861(i) 10
Serial Number.
8--Conspiracy to Obstruct Interstate 18 U.S.C. Sec. 1951... 20
Commerce by Robbery.
------------------------------------------------------------------------
The total effective 35-year sentence followed by 5 years of
probation was determined by consecutive, concurrent, and/or
suspended sentences for the individual counts. Counts 1 and 4
were to run consecutively. Counts 2 and 6 were to run
concurrently with each other and consecutively to the other
counts. Counts 3, 5, 7, and 8 were suspended. Five years of
probation were to follow Cortes' release from custody.
12. Oscar Lopez
Oscar Lopez was initially convicted of seven criminal
counts on July 24, 1981, in the U.S. District Court for the
Northern District of Illinois. The maximum penalty for these
crimes was a $50,000 fine and/or a maximum of 70 years in
prison. Lopez was sentenced to a 55-year term of imprisonment
on August 11, 1981. The specific criminal counts are as
follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
1--Seditious Conspiracy............. 18 U.S.C. Sec. 2384... 20
2--Interference with Interstate 18 U.S.C. Sec. 1951 20
Commerce by Threats or Violence. and 18 U.S.C. Sec. 2.
9--Carrying Firearms During the 18 U.S.C. Sec. 924(b) 10
Commission of Seditious Conspiracy and 18 U.S.C. Sec. 2.
and Interference with Interstate
Commerce by Violence.
10--Interstate Transportation of a 18 U.S.C. Sec. 2312 5
Stolen Vehicle. and 18 U.S.C. Sec. 2.
11--Interstate Transportation of a 18 U.S.C. Sec. 2312 5
Stolen Vehicle. and 18 U.S.C. Sec. 2.
12--Interstate Transportation of a 18 U.S.C. Sec. 2312 5
Stolen Vehicle. and 18 U.S.C. Sec. 2.
13--Interstate Transportation of a 18 U.S.C. Sec. 2312 5
Stolen Vehicle. and 18 U.S.C. Sec. 2.
------------------------------------------------------------------------
The 55-year sentence was determined by consecutive and/or
concurrent sentences for the individual counts. Counts 1, 2,
and 9 were to run consecutively. Counts 10, 11, 12, and 13 were
to run concurrently with each other and consecutively to the
other counts.
While serving the 55-year sentence, Oscar Lopez
participated in a conspiracy to escape from the U.S.
Penitentiary at Leavenworth, Kansas where he was incarcerated.
Mr. Lopez was convicted of five criminal counts on December 31,
1987, in the U.S. District Court for the Northern District of
Illinois. The maximum penalty for these crimes was a $500,000
fine and/or a maximum of 25 years in prison. Lopez was
sentenced to a 15-year term of imprisonment on February 26,
1988. The specific criminal counts are as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
1--Conspiracy to Escape............. 18 U.S.C. Sec. 371.... 5
2--Transport of Explosives.......... 18 U.S.C. Sec. 5
1952(a)(3) and 18
U.S.C. Sec. 2.
3--Transport of Explosives.......... 18 U.S.C. Sec. 5
1952(a)(3) and 18
U.S.C. Sec. 2.
7--Transport of Explosives.......... 18 U.S.C. Sec. 5
1952(a)(3) and 18
U.S.C. Sec. 2.
8--Transport of Explosives.......... 18 U.S.C. Sec. 5
1952(a)(3) and 18
U.S.C. Sec. 2.
------------------------------------------------------------------------
The specific crimes surrounding counts 2, 3, 7, and 8
include the transportation of explosives with intent to kill
and injure people, and to destroy government buildings and
property; aiding and abetting travel in interstate commerce to
carry on arson; and using a telephone to carry on arson. This
15-year sentence was determined by consecutive and/or
concurrent sentences for the individual counts. Count 1 was to
run consecutively to all other counts. Counts 2 and 3 were to
run concurrently with each other and consecutively to all other
counts. Counts 7 and 8 were to run concurrently with each other
and consecutively to all other counts.
The entire 15-year sentence was to run consecutively to the
55-year sentence previously imposed on August 11, 1981,
resulting in a total effective sentence of a 70-year term of
imprisonment.
13. Juan Enrique Segarra-Palmer III
Juan Enrique Segarra-Palmer was initially convicted of 11
criminal counts on April 4, 1989, in the U.S. District Court
for the District of Connecticut. The maximum penalty for these
crimes was a $565,000 fine and/or a maximum of 165 years in
prison. On June 15, 1989, Segarra-Palmer was sentenced to a 65-
year term of imprisonment and ordered to pay a $500,000 fine.
The specific criminal counts are as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
1--Robbery of Federally Insured Bank 18 U.S.C. Sec. 2113(a) 20
Funds.
3--Robbery of Federally Insured Bank 18 U.S.C. Sec. 2113(a) 20
Funds.
5--Robbery of Federally Insured Bank 18 U.S.C. Sec. 2113(a) 20
Funds.
7--Robbery of Federally Insured Bank 18 U.S.C. Sec. 2113(a) 20
Funds.
9--Theft from Interstate Shipment... 18 U.S.C. Sec. 659.... 10
10--Interstate Transportation of 18 U.S.C. Sec. 2314... 10
Stolen Money.
12--Foreign Transportation of Stolen 18 U.S.C. Sec. 2314... 10
Money.
13--Foreign Transportation of Stolen 18 U.S.C. Sec. 2314... 10
Money.
14--Conspiracy to Interfere with 18 U.S.C. Sec. 1951... 20
Commerce by Robbery. $250,000
15--Conspiracy to Interfere with 18 U.S.C. Sec. 1951... 20
Commerce by Robbery.
16--Conspiracy to Rob Federally 18 U.S.C. Sec. 371.... 5
Insured Bank Funds, to Commit a $250,000
Theft from Interstate Shipment, and
to Transport Stolen Money in
Interstate and Foreign Commerce.
------------------------------------------------------------------------
The total effective 65-year sentence was determined by
consecutive, concurrent, and/or suspended sentences for the
individual counts. Counts 1, 3, 5, and 7 were to run
concurrently with each other and consecutively to all counts.
Counts 9 and 16 were to run consecutively to all counts. Counts
10, 12, and 13 were to run concurrently with each other and
consecutively to all counts. Counts 14 and 15 were to run
concurrently with each other and consecutively to all counts.
Additionally, counts 14 and 16 each carried a $250,000 fine.
On March 15, 1990, the U.S. Court of Appeals held that
Segarra-Palmer's conviction under count 9, 18 U.S.C. Sec. 659,
was similar to his conviction under count 12, 18 U.S.C.
Sec. 1951. United States v. Rivera, 922 F.2d 934, 982 (2d Cir.
1990). Because both of these ``counts of theft from interstate
commerce focus on precisely the same conduct . . . [they] are
multiplicious.'' Id. Therefore, the court ordered that count 9
of the above sentence be vacated. With this modification,
Segarra-Palmer's total effective sentence was reduced to a 55-
year term of imprisonment, while the original $500,000 fine
remained imposed as previously ordered.
14. Antonio Camacho-Negron
Antonio Camacho-Negron was convicted of two criminal counts
on April 10, 1989, in the U.S. District Court for the District
of Connecticut. The maximum penalty for these crimes was a
$260,000 fine and/or a maximum of 15 years in prison. Camacho-
Negron was sentenced to a 15-year term of imprisonment and
fined $100,000 on June 8, 1989. The specific criminal counts
are as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
13--Foreign Transportation of Stolen 18 U.S.C. Sec. 2314 10
Money. and 18 U.S.C. Sec. 2.
16--Conspiracy to Rob Federally 18 U.S.C. Sec. 371, 18 5
Insured Bank Funds, Commit a Theft U.S.C. Sec. 2314, and $100,000
from Interstate Shipment, and 18 U.S.C. Sec. 659.
Transport Stolen Money in
Interstate and Foreign Commerce.
------------------------------------------------------------------------
The terms of counts 13 and 16 were to run consecutive for a
total effective sentence of a 15-year term of imprisonment and
a $100,000 fine.
Following his February 13, 1998, mandatory release on
parole, Camacho-Negron failed to report for supervision as
required under 18 U.S.C. Sec. 4164. The U.S. Department of
Justice's Parole Commission (the Commission) found that
Camacho-Negron's unwillingness to comply with this parole
requirement, a decision that generated considerable publicity,
was based on ideological grounds. As a result, on April 14,
1999, the National Appeals Board upheld the Commission's
decision to revoke Camacho-Negron's mandatory release and
return him to prison. Until the Commission receives reasonable
indication that Camacho-Negron is willing to comply with
conditions of parole, he is unable to gain release from prison.
Additionally, because time spent on mandatory release will not
be credited toward time served, Camacho-Negron's full jail term
expires on May 21, 2004.
15. Roberto Maldonado-Rivera
Roberto Maldonado-Rivera was convicted of one criminal
count on April 10, 1989, in the U.S. District Court for the
District of Connecticut. The maximum penalty for this crime was
a $250,000 fine and/or a maximum of 5 years in prison.
Maldonado-Rivera was sentenced to a 5-year term of imprisonment
and fined $100,000 on June 8, 1989. The specific criminal count
is as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
16--Conspiracy to Rob Federally 18 U.S.C. Sec. 371, 18 5
Insured Bank Funds, Commit a Theft U.S.C. Sec. 2314, and $100,000
from Interstate Shipment, and 18 U.S.C. Sec. 659.
Transport Stolen Money in
Interstate and Foreign Commerce.
------------------------------------------------------------------------
16. Norman Ramirez-Talavera
Norman Ramirez-Talavera was convicted of one criminal count
on April 10, 1989, in the U.S. District Court for the District
of Connecticut. The maximum penalty for this crime was a
$250,000 fine and/or a maximum of 5 years in prison. Ramirez-
Talavera was sentenced to a 5-year term of imprisonment and
fined $50,000 on June 8, 1989. The specific criminal count is
as follows:
------------------------------------------------------------------------
Sentence
Count and crime Statute (years)
------------------------------------------------------------------------
16--Conspiracy to Rob Federally 18 U.S.C. Sec. 371, 18 5
Insured Bank Funds, Commit a Theft U.S.C. Sec. 2314, and $50,000
from Interstate Shipment, and 18 U.S.C. Sec. 659.
Transport Stolen Money in
Interstate and Foreign Commerce.
------------------------------------------------------------------------
III. The Clemency Process and Decision
On August 11, 1999, the President granted clemency to 16
individuals who were members of the Puerto Rican terrorist
groups the FALN and the Macheteros. Thirteen of these
individuals were offered commutations of their sentences, while
four were offered remissions of their fines.\290\ The decision
to grant clemency to these individuals convicted of terrorist
acts took over 6 years to make. Although the clemency process
is normally lengthy, the process for these individuals not only
was drawn out, but also was handled in a manner different than
the average petition. This suggests that the decision was
subject to numerous political considerations. However, because
President Clinton claimed executive privilege over all
documents that might shed light on the reasons for the
clemency, the public does not know all of the facts.
---------------------------------------------------------------------------
\290\ Juan Segarra-Palmer was offered both a commutation of
sentence and remission of fine. Exhibit 10--President's grant of
executive clemency.
---------------------------------------------------------------------------
a. how the clemency process works
Since his election in 1993, President Clinton has received
over 1,300 requests for pardon and over 3,000 requests for
commutation.\291\ In order to process the requests, the
Department of Justice established the Office of the Pardon
Attorney (``OPA''), under the direction of the Deputy Attorney
General.\292\ The major functions of the Office of the Pardon
Attorney are to:
---------------------------------------------------------------------------
\291\ Presidential Clemency Actions by Administration: 1945 to
Present. Produced by the Office of the Pardon Attorney, Department of
Justice (unnumbered) (Exhibit 25).
\292\ The Office of the Pardon Attorney dates back to an Executive
order of Mar. 3, 1865. U.S. Attorneys Manual (Revised 1996), Department
of Justice production 1040125-1040131. (Exhibit 26).
---------------------------------------------------------------------------
Receive and review all petitions for executive
clemency, conduct the necessary investigations and
prepare recommendations to the President for action.
Provide policy guidance for the conduct of
clemency proceedings and the standards for decision.
Confer with individual clemency applicants,
their representatives, public groups, Members of
Congress, various Federal, State, and local officials
and others in connection with the disposition of
clemency proceedings.
Participate in training and other conferences
related to the field of criminal justice, corrections
and clemency, and maintain the contacts required of OPA
with Department of Justice officials, the Counsel to
the President, and other Government officials.\293\
---------------------------------------------------------------------------
\293\ Department of Justice Organization, Mission and Functions
Manual. Department of Justice production 1040578.
---------------------------------------------------------------------------
In carrying out its mandate, OPA has developed rules and
regulations for the application and review of clemency
requests.
1. Procedures for commutation
The rules governing petitions for executive clemency are
published in the Code of Federal Regulations.\294\ The first
rule states, ``[a] person seeking executive clemency by pardon,
reprieve, commutation of sentence or remission of fine shall
execute a formal petition.'' \295\ The rule requires that the
person seeking the remedy personally request such remedy. This
rule is to ensure that the individual requesting clemency
actually wants such relief and that the individual would accept
such relief.\296\ Petitioners address the request to the
President, the only person who is able to deliver the remedy,
but submit it to OPA. The Pardon Attorney then initiates and
conducts the investigations relating to clemency petitions, and
ultimately prepares a report and recommendation for submission
to the President.\297\
---------------------------------------------------------------------------
\294\ The rules are also published in a form that any layperson
would understand and are available at Federal correctional institutions
and penitentiaries. 28 C.F.R. Sec. 1.1 et. seq. (Exhibit 27--Code of
Federal Regulations); (Exhibit 28--Information and Instructions on
Pardons).
\295\ 28 C.F.R. Sec. 1.1.
\296\ Memorandum from Margaret Colgate Love, Pardon Attorney, to
Philip B. Heymann, Deputy Attorney General, July 29, 1993. Department
of Justice production 1041252-1041253.
\297\ Exhibit 26--U.S. Attorneys Manual.
---------------------------------------------------------------------------
In the case of a commutation of sentence, the Pardon
Attorney gathers information and opinions from parties who have
knowledge of the petitioner's crimes and convictions, as well
as the petitioner's behavior or status since incarceration in
order to prepare his report.\298\ Generally, OPA requests
several items from the Bureau of Prisons, including: a
presentence report, sentence computation record, sentence data
summary, and progress report.\299\ A presentence report is
prepared for the judge in anticipation of sentencing.\300\ It
is especially useful because it is a contemporaneous account of
the conviction and the petitioner's conduct leading to the
conviction. In contrast, a progress report is an internal
Bureau of Prisons report that is prepared periodically and
outlines the prisoner's conduct while incarcerated.\301\
Although the Bureau of Prisons provides this information to
OPA, it does not generally give an opinion on whether clemency
should be granted.
---------------------------------------------------------------------------
\298\ Chart on processing a commutation petition produced by Office
of the Pardon Attorney. (Exhibit 29).
\299\ Interview with Roger Adams, Pardon Attorney, U.S. Department
of Justice (Sept. 18, 1999).
\300\ Id.
\301\ Id.
---------------------------------------------------------------------------
In certain cases, OPA also will request information from
the Office of the U.S. Attorney that prosecuted the case.\302\
Unlike the Bureau of Prisons, the U.S. Attorney is asked for
his recommendation. According to the U.S. Attorneys Manual:
---------------------------------------------------------------------------
\302\ Exhibit 26--U.S. Attorneys Manual.
The U.S. Attorney can contribute significantly to the
clemency process by providing factual information and
perspectives about the offense of conviction that may
not be reflected in the presentence or background
investigation reports or other sources, e.g., the
extent of the petitioner's wrongdoing and the attendant
circumstances, the amount of money involved or losses
sustained, the petitioner's involvement in other
criminal activity, the petitioner's reputation in the
community and, when appropriate, the victim impact of
the petitioner's crime.\303\
---------------------------------------------------------------------------
\303\ Id.
The U.S. Attorney may ``support, oppose or take no position on
a pardon request.'' \304\ In addition, the U.S. Attorney is
asked to contact the sentencing judge in order to solicit his
recommendation on the clemency petition. Once collected, the
two recommendations are sent to OPA.
---------------------------------------------------------------------------
\304\ Id.
---------------------------------------------------------------------------
After the Pardon Attorney has gathered all of the relevant
information relating to the petitioner, he drafts a proposed
recommendation for action, which is sent to the Deputy Attorney
General for review, and action.\305\ Such a recommendation is
supposed to reflect the views of the Department of
Justice.\306\ If the Deputy Attorney General concurs with the
Pardon Attorney's recommendation, he will sign the
recommendation and return it to OPA for transmittal to the
Counsel to the President. Should the Deputy Attorney General
disagree with the recommendation, he may send it back to OPA to
change the proposed recommendation.\307\
---------------------------------------------------------------------------
\305\ Exhibit 29--Commutation process chart.
\306\ The Executive Clemency Process, Department of Justice
production 1040586-1040591, at 1040586.
\307\ Id. at 1040588.
---------------------------------------------------------------------------
Once the Deputy Attorney General has approved the
recommendation, it is transmitted to the Counsel to the
President. Ostensibly, the Counsel to the President uses the
Department of Justice's report as the basis for his
recommendation to the President. It is then solely the
President's decision on whether or not to grant clemency.
2. Standards for considering commutation
Rather than forgiving the underlying offense, a commutation
reduces the period of incarceration. ``A commutation of
sentence is an extraordinary remedy that is rarely granted.''
\308\ The following factors have traditionally been considered
appropriate grounds for considering commutation: ``disparity or
undue severity of sentence, critical illness or old age, and
meritorious service rendered to the government by the
petitioner, e.g., cooperation with investigative or prosecutive
efforts that has not been adequately rewarded by other official
action.'' \309\ In addition, OPA takes into account the
``amount of time served and the availability of other
remedies,'' such as parole, in making its determination.\310\
---------------------------------------------------------------------------
\308\ Exhibit 26--U.S. Attorneys Manual at 1040131; see also the
executive clemency process at 1040590 (making a nearly identical
statement).
\309\ Exhibit 26--U.S. Attorneys Manual at 1040131.
\310\ Id.
---------------------------------------------------------------------------
If the decision to grant a commutation of sentence is made,
the President has several options as to how to effect the
commutation. He may commute the sentence to time served, which
would cause the prisoner to be released immediately.\311\ The
President also is able to reduce a sentence, resulting in two
possibilities. First, a reduced sentence could advance a
prisoner's parole eligibility or mandatory release date,
effecting an immediate release.\312\ However, the prisoner
would remain subject to conditions of parole or mandatory
release under that scenario. A reduced sentence could also mean
exactly what it says, specifying release after the prisoner
continues to serve a certain period of time.\313\ In the end,
it is the President's responsibility to determine what remedy,
if any, is in the interest of justice.
---------------------------------------------------------------------------
\311\ Id.
\312\ Id.
\313\ Id.
---------------------------------------------------------------------------
b. the faln/macheteros clemency process
1. The application process
On November 9, 1993, Ofensiva '92 filed a petition for
executive clemency on behalf of 18 members of the FALN and
Macheteros organizations convicted of Federal offenses.\314\
The 18 were: Dylcia Pagan, Elizam Escobar, Ida Luz Rodriguez,
Adolfo Matos, Maria Haydee Torres, Carmen Valentin, Carlos
Alberto Torres, Ricardo Jimenez, Alicia Rodriguez, Luis Rosa,
Oscar Lopez-Rivera, Alejandrina Torres, Edwin Cortes, Alberto
Rodriguez, Antonio Camacho-Negron, Juan Segarra-Palmer, Roberto
Jose Maldonado, and Norman Ramirez-Talavera.\315\ Dr. Nieves
Falcon of Ofensiva '92 earlier had written to the Pardon
Attorney urging the release of the 18 prisoners.\316\ The
Pardon Attorney had informed Dr. Nieves Falcon that Department
of Justice rules required that prisoners file their own
petitions.\317\ The rationale for the rule is ``to ensure that
[petitioners] actually desire this relief and that [the
petitioners] will accept it if it is granted.'' \318\
---------------------------------------------------------------------------
\314\ Ofensiva '92 characterizes itself as a human rights
organization and is based in Puerto Rico. Their petition on behalf of
the prisoners is signed by Dr. Luis Nieves Falcon, Dr. Margarita Mergal
and Jan Susler, an attorney for the FALN prisoners. Petition from
Ofensiva '92 to Margaret Colgate Love, U.S. Pardon Attorney (Nov. 9,
1993) Department of Justice production 000260-000272 (Exhibit 30). In
the spring of 1994, Dr. Nieves Falcon requested that Haydee Beltran's
name be taken off the petition. Letter from Margaret Colgate Love,
Pardon Attorney, to Dr. Luis Nieves Falcon (May 18, 1994) Department of
Justice production 000718 (Exhibit 31).
\315\ Id.
\316\ Memorandum from Margaret Colgate Love, Pardon Attorney, to
Philip B. Heymann, Deputy Attorney General (July 29, 1993) (regarding a
request for release of the Puerto Rican prisoners by Dr. Luis Nieves
Falcon with draft response) Department of Justice production 1041252-
1041253. (Exhibit 32).
\317\ Memorandum from Margaret Colgate Love, Pardon Attorney, to
Philip B. Heymann, Deputy Attorney General (July 28, 1992) (Exhibit
33).
\318\ The Pardon Attorney used the example of the Puerto Rican
nationalists granted clemency by President Carter. OPA allowed the
attorneys for those prisoners to file the applications, and one of the
prisoners refused to accept President Carter's grant of clemency.
Exhibit 32 at 1041253.
---------------------------------------------------------------------------
Despite its own regulations, the Justice Department
accepted the petition filed by Ofensiva '92 on behalf of the
prisoners.\319\ The petition makes clear that the prisoners
considered themselves ``political prisoners,'' and similar to
their trials, they refused to take part in any process that
would legitimize the government's actions against them,
therefore they refused to file their own petitions.\320\ The
Ofensiva '92 petition went on to explain that in considering
the clemency request, OPA must take into account ``the
political nature of the entire matter, beginning with the
colonial nature of the relationship between the United States
and Puerto Rico.'' \321\ In addition, the petition argued that
the OPA should compare the prisoners to the forefathers of the
United States who fought against their colonial status with
Britain, thereby exculpating the prisoners from any acts they
may have committed.\322\ However, these were the same failed
arguments that the petitioner's raised at the time of the jury
trial when they declared themselves prisoners of war.
Nevertheless, OPA began the process of reviewing the clemency.
---------------------------------------------------------------------------
\319\ The Pardon Attorney noted that the regulations were not
mandatory, but that OPA normally required petitioners to file on their
own behalf. Id. at 1041253.
\320\ Exhibit 30--Petition.
\321\ Id. at 000261.
\322\ Id.
---------------------------------------------------------------------------
After accepting the petition, OPA began the normal
investigation process, requesting background documents such as
the presentence and progress reports, as well as judgment and
conviction orders.\323\ OPA also contacted the U.S. Attorneys'
offices in Connecticut and Illinois in 1994 for their
recommendations on clemency. Due to the terrorist acts involved
in the underlying crimes, OPA contacted the Federal Bureau of
Investigation as well.\324\
---------------------------------------------------------------------------
\323\ Memorandum from Margaret Colgate Love, Pardon Attorney, to
warden, U.S. Penitentiary Atlanta, GA (Dec. 23, 1993) (requesting
information on Juan Enrique Segarra-Palmer) (Exhibit 34).
\324\ Clemency for the FALN: A Flawed Decision? Hearing before the
House Committee on Government Reform, 106th Cong., 1st Sess. (1999)
(Statement of Neil Gallagher, Assistant Director for National Security,
Federal Bureau of Investigation).
---------------------------------------------------------------------------
2. The campaign for release
The individuals working to secure release of the prisoners
mounted a campaign to show support for clemency. Early in the
process they involved numerous other groups to lobby for
clemency, including Members of Congress and the religious
community.\325\ Most active in the campaign for release were
Congressmen Luis Gutierrez and Jose Serrano, along with
Congresswoman Nydia Velazquez.\326\ Supporters made the same
arguments that had been made in the petition for clemency,
namely that these were political prisoners and their sentences
were disproportionately long. They also focused on the benefits
the release would bring to United States and Puerto Rico
relations. Many of the supporters were granted meetings with
the Pardon Attorney, as well as high-ranking officials in the
Department of Justice and the White House.
---------------------------------------------------------------------------
\325\ Letter from Jose Serrano, Nydia Velazquez, and Luis
Gutierrez, Members of Congress, to Janet Reno, U.S. Attorney General
(Nov. 22, 1993) (requesting meeting with the Attorney General regarding
political sentences) Department of Justice production 001723 (Exhibit
35); letter from Jose Serrano, Nydia Velazquez, and Luis Gutierrez,
Members of Congress, to President Bill Clinton (Mar. 29, 1995)
(requesting a meeting with the President and Attorney General regarding
clemency for Puerto Rican prisoners) Department of Justice production
001721-001722 (Exhibit 36); letter from Ronald V. Dellums, Member of
Congress, to President Bill Clinton (Jan. 12, 1996) Department of
Justice production 001724 (Exhibit 37); letter from Rev. Nozomi Ikuta,
United Church of Christ, to Margaret Colgate Love, Pardon Attorney
(July 11, 1995) (requesting meeting, along with phone message)
Department of Justice production 10140035-10140036. (Exhibit 38).
\326\ See Exhibits 35 and 36.
---------------------------------------------------------------------------
In the ordinary course of its review, OPA met with
representatives of the prisoners.\327\ When meeting with
outside parties interested in the clemency, OPA does not
disclose information about the investigative steps being taken
in the case, nor does the office disclose at what point in the
process the petition is.\328\ Meetings with supporters were
described as generally for the purpose of ``their learning how
the clemency process works, in general terms, and providing any
additional information supporters care to provide about the
case.'' \329\ The Office of Pardon Attorney further explained
that it ``do[es] not engage in a dialogue about the merits of
any case, nor do[es] [it] answer factual or opinion questions
about the merits of the case, the chances for success, or the
thoughts of anyone, including members of [OPA], about the
case.'' \330\
---------------------------------------------------------------------------
\327\ Letter from Jan Susler, attorney for prisoners, to Margaret
Colgate Love, Pardon Attorney (July 11, 1994) (confirming meeting on
July 19, 1994) Department of Justice production 000726 (Exhibit 39).
\328\ Memorandum from Susan M. Kuzma, Office of the Pardon
Attorney, to John Trasvina, Office of Legislative Affairs (July 20,
1995) (describing information OPA releases during clemency meetings)
Department of Justice production 102000030 (Exhibit 40).
\329\ Id.
\330\ Id.
---------------------------------------------------------------------------
3. Justice Department action on the clemency
The Pardon Attorney had her first meeting with the
attorneys and advocates of the FALN and Macheteros prisoners on
July 19, 1994. Attending were Jan Susler and Michael Deutsch,
the attorneys for some of the prisoners, Drs. Nieves Falcon and
Margarita Mergal of Ofensiva '92, Congressman Gutierrez, and
the mother of two of the prisoners, Josefina Rodriguez.\331\
Although OPA agreed to meet with other groups of individuals,
and even the same individuals again, the office warned that no
new information would be provided to meeting participants, and
that expectations should not be raised in that regard.\332\
Aside from their meetings with OPA, supporters of clemency also
met with Counsel to the President Jack Quinn in October 1996,
and later meetings were held with Deputy Attorney General
Holder, Attorney General Reno, and White House Counsels Quinn
and Ruff.\333\
---------------------------------------------------------------------------
\331\ Exhibit 39--Letter from Jan Susler to Margaret Colgate Love
(July 11, 1994); letter from Jan Susler, Attorney for prisoners, to
Margaret Colgate Love, Pardon Attorney (July 22, 1994) (thanking Pardon
Attorney for meeting on July 19, 1994) Department of Justice production
000728 (Exhibit 41); Memorandum from Margaret Colgate Love, Pardon
Attorney, to Janet Reno, U.S. Attorney General (July 19, 1994)
(reporting on July 19, 1994, meeting with supporters of Puerto Rican
nationalists) Department of Justice production 10140028 (Exhibit 42).
\332\ Exhibit 40--Memorandum from Susan M. Kuzma to John Trasvina
(July 20, 1995).
\333\ Letter from Jan Susler, attorney for the prisoners, to
Margaret Colgate Love, Pardon Attorney (December 1996) Department of
Justice production 001116-001117 (Exhibit 43).
---------------------------------------------------------------------------
As part of the clemency process, the Pardon Attorney
reported regularly to the Attorney General's office on status
of the clemency for the FALN and Macheteros members and on any
new information in the case.\334\ By December 1996, the Pardon
Attorney made a recommendation against clemency and that
recommendation was forwarded to the White House.\335\
Nevertheless, OPA continued to meet with or respond to requests
from the supporters of the FALN and Macheteros clemency.
---------------------------------------------------------------------------
\334\ Memorandum from Margaret Colgate Love, Pardon Attorney, to
Donna Templeton, Assistant to the Attorney General, with attachments
(Nov. 28, 1994) (responding to a request for information on the
clemency) Department of Justice production 10140025-10140027 (Exhibit
44).
\335\ Letter from Margaret Colgate Love, Pardon Attorney, to
Charles F.C. Ruff, Counsel to the President (July 25, 1997) (forwarding
a letter from former President Carter) Department of Justice production
1041964 (Exhibit 45).
---------------------------------------------------------------------------
By fall of 1997, the clemency remained pending, even though
the White House had received the Pardon Attorney's
recommendation in December 1996. From a September 1997
memorandum from the Pardon Attorney, it appears that the
Justice Department had been getting inquiries about the FALN
and Macheteros from both the White House and outside
parties.\336\ In November 1997, Deputy Attorney General Eric
Holder met with clemency supporters Congressmen Jose Serrano,
Luis Gutierrez, and Nydia Velazquez.\337\ The Members of
Congress argued for commutation of the prisoners' sentences and
asked Deputy Attorney General Holder that he ``render to us the
ability to be here [in Congress] when these people are
released.'' \338\
---------------------------------------------------------------------------
\336\ Memorandum from Margaret Colgate Love, Pardon Attorney, to
Roger Adams (Sept. 23, 1997) (discussing OPA's policy on responding to
clemency inquiries) Department of Justice production 10140020-10140021
(Exhibit 46).
\337\ Notes of Deputy Attorney General Holder's meeting (Nov. 5,
1997) Department of Justice production 1041804 (Exhibit 47).
\338\ Id.
---------------------------------------------------------------------------
Deputy Attorney General Holder mentioned to the
Representatives that the prisoners had not petitioned for
clemency on their own, and asked whether that made them
unrepentant.\339\ Congressman Gutierrez replied that the fact
that the prisoners did not apply ``reinforce[d] the political
nature of who they are.'' \340\ However, the Congressman said
that the prisoners would provide a written statement answering
the question of why they did not apply.\341\ Mr. Holder pressed
the question on how the prisoners had changed since they
committed the crimes, and Congressman Gutierrez said that the
prisoners would reflect on that question also and respond in
writing.\342\
---------------------------------------------------------------------------
\339\ Id. at 1041805.
\340\ Id.
\341\ Id.
\342\ Id. at 1041806.
---------------------------------------------------------------------------
No decisions had been made on the clemency by the spring of
1998. On April 8, 1998, Deputy Attorney General Holder again
agreed to meet with a group of supporters, this one from the
religious community.\343\ During that meeting, the supporters
of the prisoners finally delivered the prisoners' statements
promised during the meeting with Congressman Gutierrez in
November 1997.\344\ According to notes of the meeting, the
Deputy Attorney General discussed whether the prisoners would
renounce violence if offered clemency. Reverend Paul Sherry
responded that they ``would not change their beliefs.'' \345\
The Department of Justice participants interpreted that
statement to mean that ``they would not change their beliefs
about the desirability of Puerto Rican independence, although
[Reverend Sherry] gave a carefully phrased answer that did not
make it entirely clear that they had renounced the use of
violence.'' \346\ The Justice Department asked the supporters
additional questions about the prisoners, such as why some of
the prisoners had not sought parole when they were eligible.
The supporters responded that ``their principles would not
allow them to.'' \347\
---------------------------------------------------------------------------
\343\ At least one member of the group, the Reverend Nozomi Ikuta,
had already met with the previous Pardon Attorney, Margaret Colgate
Love. Letter from Paul H. Sherry, president, United Church of Christ,
to Eric Holder, Deputy Attorney General (Mar. 26, 1998) (listing
meeting participants and attachments) Department of Justice production
001718-001720 (Exhibit 48).
\344\ Facsimile from Roger Adams, Department of Justice, to Dawn
Chirwa, Associate Counsel to the President (Apr. 21, 1998) (``notes
from the meeting, and copy of statement from the prisoners, submitted
by Jan Susler on April 10. A copy was also provided by Paul Sherry'')
Department of Justice production 1041847-1041853 (Exhibit 49).
\345\ Id. at 1041849.
\346\ Id.
\347\ Id. at 1041850.
---------------------------------------------------------------------------
During the meeting, Roger Adams, the Pardon Attorney,\348\
again explained the clemency process to the supporters. He also
acknowledged that OPA was preparing a report on the clemency
petition for the Deputy Attorney General.\349\ He did not
mention the OPA report that was prepared in December 1996 and
forwarded to the White House on the same clemency request. In
addition, in response to questions from the supporters as to
the timing of the report, the Deputy Attorney General told them
that ``it would likely be fairly quickly'' and added that they
``had delayed its final preparation until after [that]
meeting.'' \350\ Between the first meetings and the meeting on
April 8, 1998, it is unclear whether OPA revised its guidelines
to allow for the sharing of information with clemency
supporters. In fact, the representation that a decision would
be made soon, was later used by the attorneys for the prisoners
as a basis for complaining about their treatment.\351\ After
referencing the clemency petition, the attorney even accused
the warden at the U.S. Penitentiary at Lewisburg of
``undermin[ing] the positive records all three of [the
prisoners] have accumulated, so as to prejudice this
effort[.]'' \352\
---------------------------------------------------------------------------
\348\ Roger Adams was appointed Pardon Attorney after Margaret
Colgate Love resigned the position.
\349\ Id. at 1041850.
\350\ Id.
\351\ Letter from Dr. Luis Nieves Falcon, coordinator of the Comite
Pro-Derechos Humanos en Puerto Rico, to Eric H. Holder, Jr., Deputy
Attorney General (June 3, 1998) (concerning the transfers of Alberto
Rodriguez and Ricardo Jimenez to a new prison location, with
attachment) Department of Justice production 000882-000886 (Exhibit
50).
\352\ Id. at 000886.
---------------------------------------------------------------------------
The unsigned document entitled, ``Statement from the Puerto
Rican Political Prisoners,'' produced at the meeting, purports
to show how the prisoners had changed since the time of their
incarceration. However, they continued to blame the government
for their own illegal actions, namely bombings and violence,
and allege that they were forced into such acts because the
government did not allow for ``other avenues for exercising
self-determination.'' \353\ In what one could hardly interpret
as a sign of change, the prisoners acknowledge:
---------------------------------------------------------------------------
\353\ Exhibit 49--Facsimile from Roger Adams to Dawn Chirwa (Apr.
21, 1998) at 1041852.
At this juncture, we want to express our disposition
to participate in reaching a just and dignified
political solution to our colonial problem. If the U.S.
Congress and the executive branch of the U.S.
government desire to reach a political solution through
a truly democratic process, we are disposed to
participate in that process, a process which is
necessary for reconciliation to take place, for healing
one hundred years of wounds to begin . . .
Invoking the right under international law to use all
means available does not mean we used them with no
respect for human life. . . . Our actions, for the most
part symbolic, have had the objective of focusing the
attention of the U.S. government on the colonial
conditions of Puerto Rico, and not of causing terror to
the citizens of the U.S. or Puerto Rico. However, that
is not to deny that in all liberation processes, there
are always innocent victims on all sides.\354\
---------------------------------------------------------------------------
\354\ Id. at 1041852-1041853.
When one compares the self-serving nature of this statement
with the many communiques found at Appendix I, it is clear that
the 16 terrorists have no qualms about lying. This is
disturbing to the Committee, particularly given the President's
reliance on the promised renunciation of violence. The
President is relying on their promises to refrain from violence
when the actions of the individuals over a period of nearly
three decades sends a very different message.
The President announced his offer of clemency to the
members of FALN and Macheteros on August 11, 1999. On August
23, 1999, Pardon Attorney Adams sent an electronic mail message
to Jamie Orenstein in the Deputy Attorney General's office
regarding the FALN terrorists. Adams stated, ``[a]lthough noe
[sic] of the 13 were actually convicted of a bombing, the group
with which most of them are associated--the FALN--certainly was
responsible for over 100 bombings about 20 years ago.'' \355\
This statement by the Pardon Attorney is misleading. The 12
FALN members all were indicted and convicted of the seditious
conspiracy alleged in count 1 of their indictments.\356\ That
meant that a jury found that they participated in a conspiracy,
the result of which was the placement and detonation of 28
bombs at specific locations.\357\ All 12 were convicted of this
count.
---------------------------------------------------------------------------
\355\ Electronic mail from Roger Adams, Pardon Attorney, to Jamie
Orenstein, Office of the Deputy Attorney General (Aug. 23, 1999)
Department of Justice production 1041803. (Exhibit 51).
\356\ Exhibit 12--Indictment; Exhibit 11--Indictment.
\357\ Id.
---------------------------------------------------------------------------
After meeting with numerous supporters of clemency and
reviewing materials produced on behalf of the prisoners, the
Department of Justice transmitted its second report on the
prisoners to the White House on July 8, 1999.\358\ As mentioned
earlier, after meeting with supporters and requesting all of
the background materials, OPA produced the original report by
December 1996. Leading up to the 1996 report, the Department of
Justice appeared to be following the normal process in
reviewing the petition filed on behalf of the FALN and
Macheteros members. However, it is apparent that between
December 1996 and the fall of 1997, the Department began to
write another report and recommendation to the President. This
is particularly odd because the Justice Department report is
only a recommendation that the President need not follow.
---------------------------------------------------------------------------
\358\ ``Log of Documents Subject to Executive Privilege'' (Oct. 14,
1999) White House production (unnumbered).
---------------------------------------------------------------------------
4. Opposition to the clemency
As part of the clemency process, OPA requested the
recommendations of the U.S. Attorneys' Offices that tried the
cases involving the FALN and Macheteros members. Although the
President has claimed privilege over the actual
recommendations, it became clear through documents and
testimony that the U.S. Attorneys, sentencing judges, and FBI
all opposed a grant of clemency to the proposed individuals.
a. Offices of the U.S. Attorneys
As early as 1994, the U.S. Attorneys from Connecticut and
the Northern District of Illinois informed OPA of their
opposition to clemency for the FALN and Macheteros
members.\359\ However, the President has claimed executive
privilege over those letters. Through other documents produced
by the Justice Department, it became clear that the U.S.
Attorneys offices opposed clemency. After the decision on
clemency was made, Deputy Attorney General Eric Holder prepared
to make courtesy calls to the U.S. Attorneys for the districts
in which the 16 clemency grantees were convicted. Talking
points prepared for Mr. Holder in anticipation of the telephone
call to U.S. Attorney Scott Lassar state that, ``[t]he United
States Attorney for the N.D. Illinois recommended strongly
against commutation of sentence. Also, one of the sentencing
judges in the N.D. Illinois was quoted in the print media as
opposing clemency.'' \360\ Similarly, talking points prepared
for the telephone conversation with U.S. Attorney for the
District of Connecticut, Stephen Robinson state, ``[t]he United
States Attorney strongly opposed clemency in these cases. The
sentencing judge also expressed the view that the sentences
should stand.'' \361\
---------------------------------------------------------------------------
\359\ The White House Privilege log lists two memoranda regarding
the clemency request for Puerto Rican Nationalist prisoners from
Christopher F. Droney, U.S. Attorney, District of Connecticut, to
Margaret C. Love, Pardon Attorney (Aug. 26, 1994 and Oct. 19, 1994). It
also lists two memoranda regarding clemency request for Puerto Rican
Nationalist prisoners from James B. Burns, U.S. Attorney, Northern
District of Illinois, to Margaret C. Love, Pardon Attorney (Aug. 26,
1994 and Dec. 15, 1994). ``Log of Department of Justice Documents
Subject to President's Assertion of Executive Privilege'' (Oct. 18,
1999) Department of Justice production (unnumbered).
\360\ DAG call to Scott Lassar, U.S. Attorney for the N.D.
Illinois, Department of Justice production 10180007 (Exhibit 52).
\361\ DAG call to Stephen Robinson, U.S. Attorney for the District
of Connecticut, Department of Justice production 10180008 (Exhibit 53).
---------------------------------------------------------------------------
b. The Federal Bureau of Investigation
The Department of Justice also asked the FBI for its
opinion regarding a commutation of sentence for the FALN and
Macheteros members. The FBI conducted most of the original
investigations of the two groups, as it is responsible for
counterterrorism and counterintelligence efforts in the United
States and its territories.\362\ In testimony prepared in
anticipation of testifying before Congress, the FBI stated:
---------------------------------------------------------------------------
\362\ Clemency for the FALN: A Flawed Decision? Hearing before the
House Committee on Government Reform, 106th Cong., 1st Sess. (1999)
(Statement of Neil Gallagher, Assistant Director for National Security,
Federal Bureau of Investigation). Copies of audio tapes of Oscar Lopez-
Rivera's telephone conversations should have been produced to the
Committee under the Committee's subpoena to the Department of Justice.
However, as of Nov. 4, 1999, the Justice Department has not produced
such tapes to the Committee.
In June of 1999 the FBI was asked by [the] Department
of Justice for the FBI's input on the granting of a
pardon and/or clemency for the incarcerated Puerto
Rican terrorists. The FBI has consistently advised the
Department of Justice that the FBI was opposed to any
such pardon and/or commutation of sentences for these
individuals. As the request for pardon has been pending
since 1994, the FBI was unaware that any such
commutation of sentences was actually being
contemplated or imminent.\363\
---------------------------------------------------------------------------
\363\ The testimony of Assistant Director Gallagher was submitted
to the Justice Department over a week prior to the Committee's hearing.
Nevertheless, the Justice Department waited until the evening before
the hearing to notify the FBI that it could not present the written
testimony because of executive privilege issues. The Committee was
forced to subpoena the Justice Department for the redacted written
statement. Letter from Jon P. Jennings, Acting Assistant Attorney
General, to Dan Burton, chairman, Committee on Government Reform (Sept.
23, 1999) (forwarding redacted FBI written opening statement on FALN
clemency as attachment) (unnumbered) (Exhibit 17).
The FBI was concerned about the release for several
reasons. In a draft letter responding to a congressional
inquiry on the FBI position, Director Freeh noted that although
the President had conditioned release upon the renunciation of
violence, ``the FBI had previously advised DOJ that `few of the
current prisoners have expressed remorse for their crimes or
for their victims; rather, most remained committed to violence
as a means to achieve Puerto Rican independence.' '' \364\ An
additional concern for the FBI was the message that clemency
would send to other terrorists. The FBI advised the Department
of Justice that it ``had reason to expect the release of these
individuals would `psychologically and operationally enhance'
the ongoing violent and criminal activities of Puerto Rican
terrorist groups.'' \365\ Director Freeh added that, ``any such
pardon of the `currently incarcerated terrorists would likely
return committed, experienced, sophisticated and hardened
terrorists to the clandestine movement.' '' \366\ In case there
was any misunderstanding of the FBI's opinion, Director Freeh
noted at the end of his letter that, ``[i]t is evident from the
foregoing that the FBI was unequivocally opposed to the release
of these terrorists under any circumstances and had so advised
DOJ.'' \367\
---------------------------------------------------------------------------
\364\ The letter has a cover sheet on it from the Justice
Department explaining that the letter should not be sent because it
could be subject to executive privilege. The Department of Justice
informed the Committee that the draft letter and cover had
inadvertently been produced to the Committee, and it considered the
letter to be under executive privilege. Draft letter from Louis J.
Freeh, Director, Federal Bureau of Investigation, to Henry J. Hyde,
chairman, House Committee on the Judiciary (undated) (explaining FBI
position on release of FALN and Macheteros terrorists) Department of
Justice production 001950-001952 (Exhibit 54).
\365\ Id. at 001951.
\366\ Id.
\367\ Id.
---------------------------------------------------------------------------
c. The Bureau of Prisons
While testifying before the Committee, the Assistant
Director for Correctional Programs at the Bureau of Prisons,
Michael B. Cooksey, stated that the Bureau of Prisons was not
asked for its recommendation as to whether the prisoners should
be granted clemency.\368\ However, according to OPA, the Bureau
of Prisons is not typically consulted for its opinion, rather
it is only asked to provide documents relating to the
petitioner.\369\ Had either the Justice Department or White
House asked the Bureau of Prisons for additional information on
the prisoners, they would have found that at least two of the
prisoners recently had made statements about furthering the
goals of the FALN.\370\ After the announcement of the grant of
clemency, the Bureau of Prisons had read media accounts of
alleged statements of at least one prisoner on its tapes of
inmates conversations.\371\ In response, the Bureau of Prisons
conducted its own investigation to determine whether such
statements actually existed.\372\ After discovering the two
phone conversations, the Bureau of Prisons forwarded the
information to the Department of Justice on September 7,
1999.\373\ Testifying on behalf of the Justice Department,
Acting Assistant Attorney General Jon Jennings was asked
whether such information would have been material to the
Justice Department recommendation on the clemency matter, and
he replied that it would have been relevant information.\374\
---------------------------------------------------------------------------
\368\ Clemency for the FALN: A Flawed Decision? Hearing before the
House Committee on Government Reform, 106th Cong., 1st Sess. (1999)
(Testimony of Michael B. Cooksey, Assistant Director for Correctional
Programs, Bureau of Prisons).
\369\ Interview with Roger Adams, Pardon Attorney (Sept. 18, 1999).
\370\ Clemency for the FALN: A Flawed Decision? Hearing before the
House Committee on Government Reform, 106th Cong., 1st Sess. (1999)
(Testimony of Michael B. Cooksey, Assistant Director for Correctional
Programs, Bureau of Prisons).
\371\ Id.
\372\ Id.
\373\ Id.
\374\ Clemency for the FALN: A Flawed Decision? Hearing before the
House Committee on Government Reform, 106th Cong., 1st Sess. (1999)
(Testimony of Jon P. Jennings, Acting Assistant Attorney General,
Department of Justice).
---------------------------------------------------------------------------
d. The victims of the FALN and Macheteros' violence
President Clinton's public statements regarding the rights
of crime victims have been unambiguous. As he signed the Victim
Rights Clarification Act of 1997 on March 19, 1997, President
Clinton stated that ``when someone is a victim, he or she
should be at the center of the criminal justice process, not on
the outside looking in.'' \375\ On April 20, 1998, in his
proclamation declaring National Crime Victims' Rights Week,
President Clinton characterized as ``fundamental'' the right of
crime victims ``to be notified of a convicted criminal's
release from incarceration.'' \376\ Despite these strong
statements, it appears that none of the FALN's victims were
contacted, much less consulted, during the clemency review
process.
---------------------------------------------------------------------------
\375\ The White House, Office of the Press Secretary, press release
dated Mar. 20, 1997 (viewed Nov. 2, 1999), (Exhibit 55).
\376\ President William J. Clinton, Proclamation 7084, ``National
Crime Victims' Rights Week, 1998,'' 34 Weekly Comp. Pres. Doc. 679
(Apr. 27, 1998). (Exhibit 56).
---------------------------------------------------------------------------
The experience of Thomas Connor, whose father Frank Connor
was killed in the FALN's Fraunces Tavern bombing on January 24,
1975, is representative. Mr. Connor informed this Committee
that he received no official notice of the clemency, stating
that his family ``found out by reading the newspaper,'' \377\
and that his family was ``never contacted by Janet Reno or
anyone at the Justice Department or anyone at the White House
regarding our views on clemency.'' \378\ Connor also stated
that ``[b]ecause no notice was given, had the terrorists
renounced violence and accepted clemency right away, they may
actually have been out of jail before we ever learned of the
offer.'' \379\ The administration certainly did not take into
account the experiences of those that have been directly
affected by the FALN or Macheteros, as Connor explained:
---------------------------------------------------------------------------
\377\ Clemency for the FALN: A Flawed Decision? Hearing before the
House Committee on Government Reform, 106th Cong., 1st Sess. (Sept. 21,
1999) (remarks of Thomas Connor).
\378\ Clemency for the FALN: A Flawed Decision? Hearing before the
House Committee on Government Reform, 106th Cong., 1st Sess. (Sept. 21,
1999) (written statement for the record of Thomas Connor).
\379\ Id.
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 bomb-maker, I,
unlike the President, will feel the pain of the
victims, and he will be partially responsible for
it.\380\
---------------------------------------------------------------------------
\380\ Clemency for the FALN: A Flawed Decision? Hearing before the
House Committee on Government Reform, 106th Cong., 1st Sess. (Sept. 21,
1999) (remarks of Thomas Connor).
Further, those victims who were aware that clemency for the
FALN terrorists was under consideration were rebuffed in their
efforts to involve themselves in the review process. Anthony
Senft, a New York City Police Department bomb squad detective
who was maimed by an FALN bomb on December 31, 1982, learned
that FALN supporters were encouraging the President to grant
clemency. Detective Senft stated before this Committee that
``[s]ince 1997, my wife and I have been writing letters to our
President. We've written four letters to Janet Reno. We have
never received a response.'' \381\ Detective Senft also told
the Committee:
---------------------------------------------------------------------------
\381\ Id. (remarks of Detective Anthony Senft).
. . . 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.\382\
---------------------------------------------------------------------------
\382\ Id.
It is shocking that any number of clemency supporters were able
to get meetings with the Pardon Attorney, Deputy Attorney
General, Attorney General, and White House staff, while this
former detective, who was wounded in the line of duty, could
not even get one of his letters answered.
Detective Senft's partner, Richard Pastorella, was also
wounded in the same FALN bombing. Also like his partner, the
Justice Department never contacted Detective Pastorella
regarding the clemency. Detective Pastorella was completely
blinded by the FALN bomb, and lost the fingers of his right
hand.\383\ Perhaps he could have shared his experience with the
Justice Department or White House, as he had shared it with the
Committee. He testified before the Committee in order ``to give
a human face to what terrorism truly is.'' \384\ He told the
Committee:
---------------------------------------------------------------------------
\383\ Id. (remarks of Detective Richard Pastorella).
\384\ Id.
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.
[And] 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.\385\
---------------------------------------------------------------------------
\385\ Id.
Diana Berger Ettenson, widow of Alejandro Berger, who was
killed in the January 24, 1975, Fraunces Tavern bombing,
related a similar lack of cooperation from the administration:
``I asked the White House for copies of letters from those who
petitioned for clemency. To date, I have not received them.''
\386\ Similar to the other victims of the FALN, Mrs. Berger
Ettenson was not advised before their release. She explained:
---------------------------------------------------------------------------
\386\ Id. (remarks of Diana Berger Ettenson).
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.\387\
---------------------------------------------------------------------------
\387\ Id.
Although these victims of FALN violence could not get their
letters or requests answered, the Justice Department and White
House were happy to accommodate the supporters of clemency. At
the same time, Attorney General Reno apparently was meeting
with pro-clemency activists personally. For example, Detective
Senft testified before this Committee that a pro-clemency
activist named Alice Cordova boasted of her ``sit-down
interview'' with Attorney General Reno regarding clemency for
the FALN terrorists.\388\ The Clinton administration ignored
the FALN's many victims when it failed to consult with, or even
notify, them prior to offering the terrorists clemency. In
doing so, the administration left those victims on the outside
of the clemency process, looking in.
---------------------------------------------------------------------------
\388\ Id. (remarks of Anthony Senft).
---------------------------------------------------------------------------
5. Two Justice Department reports on clemency
According to privilege logs produced by both the White
House and Department of Justice, the Department transmitted two
reports on clemency to the Counsel to the President.\389\ The
first report was transmitted in December 1996.\390\ The
privilege log reflects that the second report was transmitted
to the White House on July 8, 1999.\391\ Because the President
claimed executive privilege over any documents or
correspondence relating to the reports, it is impossible to
determine why two reports were created. Through the privilege
logs, one is able to get an idea of the timing of the reports
and other correspondence between the White House and Justice
Department at the time the clemency was being considered.
---------------------------------------------------------------------------
\389\ A privilege log is a list of documents over which the
President has claimed executive privilege. These documents are
identified by control number, author, addressee, date, and description.
However, the documents are not produced to the Committee. ``Log of
Documents Subject to Executive Privilege'' (Oct. 14, 1999) White House
production (unnumbered) (Exhibit 57); ``Log of Department of Justice
Documents Subject to President's Assertion of Executive Privilege''
(Oct. 18, 1999) Department of Justice production (unnumbered) (Exhibit
58).
\390\ Exhibit 45--Margaret Colgate Love letter to Charles F.C. Ruff
(July 25, 1997).
\391\ Exhibit 57--White House privilege log at 1.
---------------------------------------------------------------------------
The first mention of a report to the White House occurs on
December 5, 1996, when Pardon Attorney Margaret Colgate Love
sent a 35-page document to Associate Counsel to the President
Dawn Chirwa, which was described as a ``cover memorandum with
attached draft document to Jack Quinn, Counsel to the
President, from Jamie S. Gorelick, Deputy Attorney General,
regarding clemency matter.'' \392\ The Justice Department's log
does not list such a report until December 16, 1996, when
Dennis M. Corrigan, Executive Assistant and Counsel, Office of
the Deputy Attorney General transmits the December 4, 1996,
report to Counsel to the President Jack Quinn. There is no
further activity until May 1997.\393\ These documents are the
original recommendations of the Justice Department. From the
names on the transmittal, it would appear that this first
report was approved by the Deputy Attorney General, and would
be considered the official position of the Department of
Justice.
---------------------------------------------------------------------------
\392\ Id. at 6.
\393\ Id. at 5; Exhibit 58--Department of Justice privilege log at
20.
---------------------------------------------------------------------------
Soon after the FALN and Macheteros clemency report was
transmitted, Chirwa sent a two-page memorandum to Roger Adams,
who was then Counsel to the Deputy Attorney General, concerning
``information relating to clemency request for Puerto Rican
Nationalist prisoners.'' Two days later, on May 16, 1997,
Chirwa sent another two-page memorandum to Pardon Attorney
Love. Although the Committee does not have the memoranda, one
could assume that there were questions about the clemency
recommendation. Several days after Chirwa contacted the Justice
Department, Pardon Attorney Love contacted the General Counsel
at the U.S. Parole Commission regarding the clemency
matter.\394\
---------------------------------------------------------------------------
\394\ Exhibit 58--Department of Justice privilege log at 18.
---------------------------------------------------------------------------
There is another break in the Justice Department and White
House privileged communications until July 23, 1997, when Love
sent Chirwa a seven-page memorandum ``concerning information
relating to clemency request for Puerto Rican Nationalist
prisoners, with handwritten note attached.'' \395\ Two days
later, Love forwarded to Counsel to the President Ruff a letter
from former President Jimmy Carter, and referenced the December
16, 1996, report.\396\ Although the White House listed the
document on its privilege log, the Department of Justice
produced the actual transmittal letter referencing its
recommendation against clemency.\397\
---------------------------------------------------------------------------
\395\ Id. at 18; Exhibit 57--White House privilege log at 5.
\396\ Exhibit 45--Letter from Margaret Colgate Love to Charles F.C.
Ruff (July 25, 1997).
\397\ Exhibit 57--White House privilege log at 4.
---------------------------------------------------------------------------
As of June 1997, the White House internally acknowledged
that the Department of Justice was not in favor of the
clemency. The June 10, 1997, briefing materials for Vice
President Gore's meeting with the congressional Hispanic Caucus
discuss the clemency:
Reps. Serrano, Gutierrez, or Velazquez may privately
urge you to support granting clemency to 15 citizens of
States of Puerto Rican origin incarcerated for crimes
committed in connection with efforts to encourage the
granting of independence to Puerto Rico. A campaign is
under way. The campaign has broad Puerto Rican support
but Rep. Romero-Barcelo is opposed and Justice is
disinclined.\398\
---------------------------------------------------------------------------
\398\ White House production CL 16760-16772, at 16765 (emphasis
added).
Toward the end of 1997, Pardon Attorney Margaret Love was
preparing to leave the Department of Justice. In September
1997, she wrote a 36-page memorandum to Roger Adams in the
Deputy Attorney General's Office, ``reflecting status and
nature of clemency deliberations concerning Puerto Rican
Nationalists, with series of 9/12/97-9/19/97 electronic
communications between Margaret Colgate Love and Roger C. Adams
concerning same . . .'' \399\ That memorandum was the final
internal Department of Justice document received or written by
Love reflected on the privilege log.
---------------------------------------------------------------------------
\399\ Exhibit 58--Department of Justice privilege log at 18.
---------------------------------------------------------------------------
Throughout the closing months of 1997 it appears that
Deputy Attorney General Eric Holder was active in the issue.
The privilege log reflects at least two notes regarding his
questions on the clemency or his thoughts on the matter.\400\
Meanwhile, Counsel to the Deputy Attorney General Roger Adams
was appointed Pardon Attorney. It appears from the privilege
log that Adams began working on the clemency matter for OPA.
---------------------------------------------------------------------------
\400\ Id. at 16.
---------------------------------------------------------------------------
The issue of clemency for the FALN and Macheteros prisoners
picked up again in the summer of 1998. On May 19, 1998, Pardon
Attorney Adams sent Deputy Attorney General Holder a 48-page
draft memorandum to the President, ``concerning clemency for
Puerto Rican Nationalist prisoners.'' \401\ Several months
later, the Attorney General was informed of the new activity
concerning the clemency. On August 7, 1998, the Pardon Attorney
prepared a two-page memorandum regarding the history of the
clemency request, which was forwarded to Attorney General Reno
on the following day.\402\ By the end of August, the Pardon
Attorney and the Office of the Deputy Attorney General were
again working on drafts of the clemency report.\403\ On
September 1, 1998, Pardon Attorney Adams discussed the draft
memorandum with Associate Counsel to the President Chirwa,
again bringing the White House into the picture.\404\
---------------------------------------------------------------------------
\401\ Id.
\402\ Id. at 15.
\403\ This is the same time period in which they were meeting with
supporters of clemency as well. Id.
\404\ Id. at 14.
---------------------------------------------------------------------------
It was not until the spring of 1999 when the privilege log
shows more activity on the clemency report. Between April and
July 1999, there were numerous drafts of the report and
discussions between OPA and the Office of the Deputy Attorney
General.\405\ In addition, OPA was consulting with the Chief of
Terrorism and Violent Crimes Section, and other attorneys in
the Criminal Division at the Department of Justice. However, in
March 1999, according to White House documents, the Justice
Department continued to oppose the clemency. In an e-mail to
Counsel to the President Charles Ruff, Deputy Chief of Staff
Maria Echaveste wrote, ``[m]y recollection of the last status
is that there was some movement towards a conclusion that
commutation might be ok for some of the prisoners but not all--
but DOJ concluded no go then--is that about right?'' \406\
---------------------------------------------------------------------------
\405\ Id. at 7-14.
\406\ White House production CL 16653 (emphasis added).
---------------------------------------------------------------------------
On July 8, 1999, Deputy Attorney General Holder sent to the
President a ``memorandum regarding clemency matter.'' \407\
This was the second report sent to the White House regarding
clemency for the members of the terrorist groups FALN and Los
Macheteros. At the end of July 1999, Counsel to the President
Ruff personally spoke with an attorney in the office of the
Deputy Attorney General regarding the clemency.\408\ On August
9, 1999, OPA and the Deputy Attorney General's office held a
meeting about the clemency.\409\ The President announced the
clemency 2 days later on August 11, 1999.
---------------------------------------------------------------------------
\407\ Exhibit 57--White House privilege log at 1 (emphasis added).
\408\ Exhibit 58--Department of Justice privilege log at 7.
\409\ Id. at 4.
---------------------------------------------------------------------------
Although it is impossible for the Committee to know what
was in the Department of Justice's report, an article in the
New York Times claimed to have an official source with
knowledge of information in the report.\410\ The article stated
that although the opposition of the U.S. Attorneys and FBI was
mentioned in the report, the Justice Department made no
specific recommendation. Rather, the report ``contained what
law-enforcement officials said was a more carefully worded
analysis that presented the President with multiple options for
each prisoner, from unconditional release to no leniency
whatsoever.'' \411\ This is a matter of some concern to the
Committee because it appears that the Justice Department has
bent and even changed its rules to accommodate this politically
charged clemency. By refraining from giving a clear
recommendation, it is almost as if the Justice Department is
doing the best that it can to bolster a decision that had
already been made.
---------------------------------------------------------------------------
\410\ David Johnston, Federal Agencies Opposed Leniency for 16
Militants, N.Y. Times at A1 (Aug. 27, 1999).
\411\ Id.
---------------------------------------------------------------------------
6. The White House's role in the clemency process
The White House was involved in the clemency process from
nearly the beginning. The President's Interagency Working Group
on Puerto Rico took an interest in the petition filed on behalf
of the members of the FALN and Los Macheteros terrorist
organizations. Thereafter it became involved in the clemency
process, working with clemency supporters to bring the issue
more support and attention. Although the White House staff
worked regularly with clemency supporters, they never met with
the victims of FALN and Macheteros violence or any groups that
opposed the clemency. Most groups in opposition did not know
the clemency was being considered, or never believed that it
would be seriously considered due to the nature of the crimes
committed. It appears that the White House was aware of the
opposition of the Department of Justice and law-enforcement,
and was searching for a way in which its decision would not be
in direct contradiction to the Department of Justice
recommendation.
The White House first became involved in the clemency
through the Interagency Working Group on Puerto Rico (``Working
Group''), co-chaired by Marcia Hale and Jeffrey Farrow. On
October 24, 1994, the Special Assistant to Jeffrey Farrow,
Mayra Martinez-Fernandez, wrote a memo to Farrow on the
``Puerto Rico Political Prisoners.'' \412\ It is obvious even
from the title of her memorandum that she believed that the
FALN members were imprisoned for their political beliefs rather
than the terrorist acts for which they were convicted. In fact,
in the very first paragraph of the memorandum Martinez-
Fernandez states, ``[t]hey have been persecuted because of
their commitment and activism in support of Puerto Rican
independence.'' \413\
---------------------------------------------------------------------------
\412\ Memorandum from Mayra Martinez-Fernandez, to Jeffrey Farrow
(Oct. 24, 1994). White House production CL 15537-15538. (Exhibit 59).
\413\ Id.
---------------------------------------------------------------------------
The Committee finds it troubling that a White House aide
would show such disregard for the victims of FALN and
Macheteros violence and the laws of the United States. The
Martinez-Fernandez memorandum continues to argue against the
long sentences being served by the FALN members: ``[t]hese
sentences and the time already served are far longer than the
average time served in the U.S. for the most heinous offenses
against society, and far longer than the average time served by
political prisoners in other countries!'' \414\ Again, this
position is inconsistent with the statutes leading to the FALN
and Macheteros' sentences, and there appears to be no
accompanying enthusiasm to change the law. In effect, the early
White House position appears to be more tied to support for the
politics of these prisoners than concern for the laws.
---------------------------------------------------------------------------
\414\ Id.
---------------------------------------------------------------------------
Even more disturbing, the memorandum not only discusses the
deserving and good nature of the prisoners, it also discusses
the benefits to the Clinton administration:
The release of these Puerto Rican men and women would
be welcomed as a show of good faith and a gesture to
demonstrate that reconciliation, peace-making and human
rights (as well as the resolution of the situation in
Puerto Rico) are among Clinton's priorities. This could
be a tangible accomplishment of the Working Group that
not only enjoys wide support in the U.S., Puerto Rico,
and internationally, but that is fairly easy to
accomplish and will have a positive impact among
strategic Puerto Rican communities in the U.S. (read,
voters).\415\
---------------------------------------------------------------------------
\415\ Id.
It is clear from the memorandum that Martinez-Fernandez had no
idea what was involved in a grant of clemency, much less
commuting a prisoner's sentence. However, it appears her memo
was acted upon; the ``Working Group'' was behind the clemency
and continued to work with advocacy groups until the
commutations were finally granted. As a final addition to the
---------------------------------------------------------------------------
memorandum, Martinez-Fernandez wrote:
The release of these 15 Puerto Ricans is of special
significance to me. I know most of these people's
families. I know of their hard work and contributions
to Chicago's Puerto Rican community. They are truly
good people who are where they are for wanting their
country to be free. That is not a crime. The history of
the birth of this country clearly demonstrates the
burning desire of a people to be free from colonial
control. As a Puerto Rican, I feel I own [sic] them for
their sacrifice. As people who love and value democracy
and liberty, I feel that this Administration should
take a stand for what they believe in, and set an
example for other countries to follow by setting free
15 of their own political prisoners.\416\
---------------------------------------------------------------------------
\416\ Id.
As a further example, Martinez-Fernandez wrote a June 7,
1995, memorandum to Jeffrey Farrow, updating him on the
``Puerto Rican Prisoners.'' \417\ In the memorandum, she
mentioned seven different groups that were working on behalf of
the prisoners. Perhaps one of the most interesting was Gerry
Adams of the Irish Republican Army. Martinez-Fernandez wrote of
Adams, ``[h]e made a commitment to bring up the issue of the
Puerto Rican political prisoners in the negotiations which
involve the White House and the Government of Great Britain
concerning peace in Northern Ireland.'' \418\
---------------------------------------------------------------------------
\417\ Memorandum from Mayra Martinez-Fernandez to Jeff Farrow (June
7, 1995). White House Document production CL 15534. (Exhibit 60).
\418\ Id.
---------------------------------------------------------------------------
In her memoranda, Martinez-Fernandez consistently refers to
the FALN and Macheteros members as ``political prisoners.''
Indeed, the prisoners themselves argue that they have been
incarcerated for political reasons. However, the only elected
Federal representative from Puerto Rico, Resident Commissioner
Carlos Romero-Barcelo disputed the characterization. He wrote
that:
[T]he terrorists aimed to legitimize their actions by
seeking protection as political prisoners or prisoners
of conscience through Amnesty International, the
leading human rights organization in the world.
According to an editorial in the San Juan Star, the
principal English language newspaper in Puerto Rico,
Amnesty International rejected their request,
clarifying that because ``the crimes the 15 committed
were violent in nature . . . disqualified them as
political prisoners in describing their status.'' \419\
---------------------------------------------------------------------------
\419\ Letter from Carlos Romero-Barcelo, Resident Commissioner for
Puerto Rico, to Dan Burton, chairman, House Government Reform Committee
(Sept. 14, 1999) (Exhibit 61).
If one believes that the White House should be impartial when
reviewing and handling clemency matters, Martinez-Fernandez
should have had no role in the petition for clemency on behalf
of the FALN and Macheteros members. Nevertheless, she and the
Working Group played a major role, working to recruit
supporters and organize the campaign for release.
The White House Counsel's Office is historically and
typically the liaison with OPA on the issue of clemency.\420\
The Counsel's Office first became involved in the FALN and
Macheteros clemency in early June 1995.\421\ Associate Counsel
Cheryl Mills \422\ handled clemency issues for the Counsel's
Office.\423\ On June 5, 1995, the Working Group asked to meet
with Associate Counsel Mills to discuss the clemency for the
FALN and Macheteros members.\424\ The meeting was described to
Mills:
---------------------------------------------------------------------------
\420\ DOJ Organization, Mission and Functions Manual, Office of the
Pardon Attorney at 51 (July 1999).
\421\ Electronic mail from Vicki J. Divoll to Cheryl D. Mills,
Associate White House Counsel (June 5, 1995). White House production CL
16383 (Exhibit 62).
\422\ Mills was subsequently promoted to Deputy Counsel to the
President.
\423\ Id.
\424\ Electronic mail from Vicki J. Divoll to Cheryl D. Mills,
Associate White House Counsel (June 5, 1995). White House production CL
16382 (Exhibit 63).
The people involved in this potential meeting are not
outsiders seeking to influence the White House
regarding these prisoners. They are all White House,
DOJ, and Commerce Dept. officials who are members of
the Inter-Agency Working Group on Puerto Rico who want
to discuss how to respond to expected pressures and
requests for meetings with the President and others
about these prisoners.\425\
---------------------------------------------------------------------------
\425\ Electronic mail from Vicki J. Divoll to Cheryl D. Mills,
Associate White House Counsel (June 7, 1995). White House production CL
16384 (Exhibit 64).
The Working Group did hold a meeting on June 21, 1995, however
it is not clear whether Associate Counsel Mills attended.\426\
---------------------------------------------------------------------------
\426\ The White House inadvertently produced handwritten notes of
Mayra Martinez-Fernandez, Special Assistant to the Co-Chair of the
Working Group, taken during the meeting. The notes do not reflect who
was in attendance. Letter from Dimitri J. Nionakis, Associate Counsel
to the President, to Kristi L. Remington, senior counsel, House
Government Reform Committee (Oct. 14, 1999). (Exhibit 65).
---------------------------------------------------------------------------
Notes of the June 21, 1995, Working Group meeting reflect
that several issues arose, including, ``how should we respond
to this political request.'' \427\ The notes made clear that
the White House was hearing from Puerto Rico on the clemency
issue, however, ``the effort [was] led by P[uerto] R[icans] in
the U.S.'' The Working Group also acknowledged that OPA had to
resolve the issue of the petition for clemency. They recognized
that it was a problem that the prisoners would not file their
own petitions.\428\ During the meeting, the Working Group
discussed the general process of clemency. The notes indicated
that the last step would be the transmittal of the Department
of Justice recommendation to the Counsel's Office, and that it
``pretty much follows [the] recommendation by [the] Pardon
Attorney.'' \429\ The notes further explained, ``[I]f parole is
a possibility, they use it rather than a commutation. They
could also enable the process to make them parole eligible.
Most of them don't want to apply for parole--which is another
political statement on their part.'' It was true that the
prisoners should have faced a major obstacle to their clemency
in that all of them would be eligible for parole after serving
a certain portion of their sentences. However, most of the FALN
and Macheteros members refused even to apply for parole because
it would recognize the Unites States Government and its
authority over them. Those that did apply for parole had been
rejected as poor candidates. Finally, the participants in the
meeting noted that this was a ``high priority P[uerto] R[ican]
issue.'' \430\ This indicates a level of political calculation
that is troubling.
---------------------------------------------------------------------------
\427\ Handwritten notes of Mayra Martinez-Fernandez, Special
Assistant to the Co-Chair of the Working Group, June 21, 1995. White
House production CL 15550-15553. (Exhibit 66).
\428\ Id.
\429\ Id. at 15551.
\430\ Id. at 15553.
---------------------------------------------------------------------------
The White House produced notes taken by Mayra Martinez-
Fernandez from two other Working Group ``strategy meetings'' on
the clemency matter. In the first set of notes, the Working
Group discusses the actions congressional groups would take on
the clemency.\431\ Congressmen Gutierrez, Serrano, and
Congresswoman Velazquez were taking the lead on all efforts
supporting clemency. They noted that, ``Velazquez, Gutierrez
and Serrano not voting with President on some important
legislation unless he commits to release prisoners right after
1996 elections.'' \432\ Under a separate heading of
``Meetings,'' the Working Group listed individuals who should
request meetings with Pardon Attorney Margaret Colgate
Love.\433\ They added, ``[s]ome of these people should meet
with President Carter and request a letter to the President.''
\434\ President Carter did ultimately write a letter to
Attorney General Reno supporting the clemency for the FALN and
Macheteros members. However, it appears odd that members of the
President's Working Group would organize outside support for
the clemency. From the Committee's perspective, an impartial
position would be more appropriate. In fact, the notes indicate
that they planned to identify ``liberal reporters in key media
outlets,'' in an effort to create more support.\435\
---------------------------------------------------------------------------
\431\ Handwritten notes of Mayra Martinez-Fernandez, Special
Assistant to the Co-Chair of the Working Group, undated. White House
production CL 15554-15558. (Exhibit 9).
\432\ Id. at 15554 [emphasis added].
\433\ Id. at 15556.
\434\ Id.
\435\ Id. at 15557.
---------------------------------------------------------------------------
On July 7, 1995, the Working Group held another ``strategy
meeting.'' \436\ The first item on the agenda was to ``continue
letter campaign from U.S. as Democratic voters. Personalize
them.'' \437\ The notes go on to list numerous individuals who
should write letters to the President and request meetings with
officials in Illinois and Chicago who might oppose the
clemency.\438\ Most of the prisoners were convicted in
Illinois, therefore they proposed meetings with the Illinois
Governor and Attorney General, as well as the mayor of
Chicago.\439\ Again, these are actions that it would appear
inappropriate for the White House to be organizing. To use U.S.
taxpayer dollars to promote something of this nature for
political benefit is deeply disturbing. Because the Committee
is unable to discuss the clemency issue with anyone in the
White House, it is left to speculate that the purpose of these
activities was to be able to point to outside support for
clemency when announcing its decision.
---------------------------------------------------------------------------
\436\ Handwritten notes of Mayra Martinez-Fernandez, Special
Assistant to the Co-Chair of the Working Group, July 7, 1995. White
House production CL 15559-155562. (Exhibit 67).
\437\ Id. at 15559.
\438\ Id.
\439\ Id. at 15559-15560.
---------------------------------------------------------------------------
Few documents were received from the White House during the
time between the July 1995, meeting and mid-1998, when the
clemency issues moved to the forefront. However, internal White
House documents do indicate that White House Counsel Jack Quinn
met with Representatives Serrano, Gutierrez, and Velazquez on
December 16, 1996.\440\ The meeting was held on the same day
that the Justice Department transmitted its recommendation
against clemency for the FALN and Macheteros clemency. It is
not until a year later that Jeffrey Farrow, the Co-Chair of the
Working Group, asked for a meeting with Associate Counsel Dawn
Chirwa about the clemency issue.\441\ Farrow wrote in an
electronic mail message, ``[d]id Maria Echaveste ask if you
could come to her office tomorrow at 2 re[:] Puerto Rican
political prisoners? She's sympathetic and wanted to discuss
the issue.'' \442\ Again, it is troubling that a senior White
House staff member would refer to the terrorists as ``political
prisoners.''
---------------------------------------------------------------------------
\440\ Electronic mail from Janet Murguia, Deputy Assistant to the
President for Legislative Affairs (House), to Stacey L. Rubin, Special
Assistant to the Deputy Director for Legislative Affairs (Dec. 16,
1996). White House production CL 16385. (Exhibit 68).
\441\ Electronic mail from Jeffrey Farrow, Co-Chair Interagency
Working Group on Puerto Rico, to Dawn Chirwa, Associate Counsel to the
President (Dec. 16, 1997). White House production CL 16412. (Exhibit
69).
\442\ Maria Echaveste is now the Deputy Chief of Staff at the White
House. Id. (emphasis added).
---------------------------------------------------------------------------
In 1998, the White House was more active on the FALN and
Macheteros clemency. On March 26, 1998, an organization
supporting the release of the prisoners sought to deliver
petitions for the prisoners' release to the White House.\443\
On the same day, a representative of the Carter Center,
Ambassador Harry Barnes, requested to meet with the Co-Chair of
the Working Group, Jeffrey Farrow. Farrow noted in an
electronic mail message regarding the two requests:
---------------------------------------------------------------------------
\443\ Electronic mail from Jeffrey Farrow, Co-Chair Interagency
Working Group on Puerto Rico, to Dawn Chirwa, Associate Counsel to the
President and Fred Duval (Mar. 11, 1998). White House production CL
16428. (Exhibit 70).
Fred and I plan to be in Puerto Rico on the 26th, but
I think it would help on the issue--since it will not
be resolved soon--to have these people received. This
is the type of meeting that we discussed having at our
meeting in Maria's office. We (Dawn [Chirwa], Janet,
Suzanna Valdez, and I) symbolically received petitions
on the issue before. (Reps. Serrano, Velazquez [sic],
and Gutierrez were part of that presentation. They are
not making this request but we may want to see if at
least the NY Members want to be here if there's a brief
meeting.) \444\
---------------------------------------------------------------------------
\444\ Id.
The message represents another example of the White House
organizing support for the clemency. It is not clear why they
put so much effort into the appearance of things, when the
President could grant clemency at any time. Nevertheless, the
meetings with supporters continued.
In June 1998, Working Group Co-Chair Jeffrey Farrow was
organizing a high level meeting for the family of the
prisoners. He consulted with Deputy Chief of Staff Maria
Echaveste, Deputy Director for Legislative Affairs Janet
Murguia, Associate Counsel Dawn Chirwa, and Director of
Intergovernmental Affairs Mickey Ibarra.\445\ Farrow wrote:
---------------------------------------------------------------------------
\445\ Electronic mail from Jeffrey L. Farrow, Co-Chair Interagency
Working Group on Puerto Rico, to Maria Echaveste, Deputy Chief of
Staff; Janet Murguia, Deputy Director for Legislative Affairs; Dawn
Chirwa, Associate Counsel to the President (June 11, 1998). White House
production CL 16430. (Exhibit 71).
Mickey and I want to make sure you agree on the
advisability of meeting with family members of the
Puerto Rico independence crimes prisoners. He and I
discussed the issue after his e-mail copied to you. He
now has more background on what we have been doing on
this matter, feels more comfortable, and will be if you
are. Are you? Additionally, my sense from the families'
counsel is that they plan a low-key visit aimed at
adding to the human dimension on the issue (following,
in particular, the religious leaders' presentations to
Chuck Ruff and Jack Quinn.) \446\
---------------------------------------------------------------------------
\446\ Id.
A month later, Farrow prepared talking points for the Vice
President's meeting with the Hispanic Caucus and included the
``Puerto Rican Political Prisoners.'' \447\ He noted that,
``Justice is expected to make a recommendation on the cases
soon.'' \448\
---------------------------------------------------------------------------
\447\ Electronic mail from Jeffrey L. Farrow, Co-Chair Interagency
Working Group on Puerto Rico, to Ricardo Gonzalez, Office of the Vice
President (July 16, 1998). White House production CL 16415-16416.
(Exhibit 72).
\448\ Id.
---------------------------------------------------------------------------
On June 4, 1998, Farrow was quoted in the San Juan Star
regarding the clemency for the FALN and Macheteros
members.\449\ He indicated to the reporter that the decision
may be near, ``We expect that the Department of Justice will
complete its review and submit its recommendations in a few
months[.]'' Although the Justice Department allegedly had a
clear policy on the discussion of the status of clemency
petitions, it is not clear whether the White House had such a
policy. It appears that Farrow spoke regularly with reporters
on the issue. In an internal OPA electronic mail message, staff
informs Pardon Attorney Adams that, ``[t]he White House contact
who has told reporters that they are expecting a recommendation
in about a month regarding the Puerto Ricans' pardons is
Jeffrey Farrow. He is apparently the `Puerto Rican contact' at
the White House.'' \450\ In fact, some at the White House
referred to him as the ``guru on the issue.'' \451\
---------------------------------------------------------------------------
\449\ Farrow: Pardon Decision for 15 P.R. Inmates May Be Near, San
Juan Star, June 4, 1998, at A7.
\450\ Electronic mail from Chris J. Watney, Office of the Pardon
Attorney, to Roger Adams, Pardon Attorney (Dec. 4, 1998). Department of
Justice production 1040931. (Exhibit 73).
\451\ Electronic mail from Maritza Rivera to Maureen Shea (Oct. 28,
1998). White House production CL 16501. (Exhibit 74).
---------------------------------------------------------------------------
In early 1999, Farrow appeared to be pushing for a
resolution of the clemency issue. He writes in an electronic
mail message:
We should think about a meeting soon with Reps.
Gutierrez, Velazquez, and Serrano on the Puerto Rico
independence crimes prisoners issue. They have
requested one with the POTUS but the options include
the VP and John as well. The issue should be resolved
soon--the petitions have been before us for a long
time. The VP's Puerto Rican position would be helped:
The issue is Gutierrez's [sic] top priority as well as
of high constituent importance to Serrano and
Velazquez.\452\
---------------------------------------------------------------------------
\452\ POTUS is the President of the United States. Electronic mail
from Jeffrey L. Farrow, Co-Chair Interagency Working Group on Puerto
Rico, to Fred Duval, Mickey Ibarra, Maria Echaveste, and Janet Murguia
(Mar. 6, 1999). White House production CL 16653 (emphasis added).
(Exhibit 75).
The following day, Deputy Chief of Staff Maria Echaveste
forwards the electronic mail message to Counsel to the
---------------------------------------------------------------------------
President, Charles F.C. Ruff, urging a meeting:
Chuck--Jeff's right about this--very hot issue. I
would suggest that Chuck and I meet with these members
once we have the latest update from Chuck, unless John
[Podesta] feels like taking the time on this difficult
issue. My recollection of the last status is that there
was some movement towards a conclusion that commutation
might be ok for some of the prisoners but not all--but
that doj [Department of Justice] concluded no go then--
is that about right? \453\
---------------------------------------------------------------------------
\453\ Exhibit 75--Electronic mail from Maria Echaveste, Deputy
Chief of Staff, to Charles F. Ruff, Counsel to the President. White
House production CL 16653. (Mar. 7, 1999).
In fact, Ruff did meet with the Representatives on April 21,
1999, to discuss the clemency issue.\454\
---------------------------------------------------------------------------
\454\ Also attending the meeting were Jeffrey Farrow and Dawn
Chirwa. Electronic mail from Jeffrey Farrow to Fred Duval, Maria
Echaveste, Maritza Rivera, Mickey Ibarra, and Janet Murguia (Apr. 19,
1999). White House production CL 16496. (Exhibit 76).
---------------------------------------------------------------------------
By July 8, 1999, the Department of Justice transmitted its
second clemency report on the petition of the FALN and
Macheteros members to the White House. However, the President
had not yet made his decision public. A background memo and
talking points prepared by Jeffrey Farrow for the White House
Press Secretary in July 1999 discuss a demonstration at the
White House:
A demonstration in front of the White House July 23rd
is planned to include a refusal to move at 1 pm. At the
same time, representatives of the demonstrators are to
meet with inside [sic] on the matter (Associate Counsel
to the President Meredith Cabe and Jeffrey Farrow, Co-
Chair of the President's Interagency Group on Puerto
Rico).
From the electronic mail message, it appears as though Farrow
had coordinated with the demonstrators in order to produce the
greatest effect from the event.
On August 11, 1999, the President announced his decision
and offered the grants of clemency. He explained that, ``[he]
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.'' \455\ The eight prisoners were: Elizam Escobar,
Ricardo Jimenez, Adolfo Matos, Dylcia Pagan, Alicia Rodriguez,
Ida Luz Rodriguez, Luis Rosa, and Carmen Valentin.\456\ The
President commuted the sentences of three other prisoners,
Edwin Cortes, Alberto Rodriguez, and Alejandrina Torres, to 26
years, also making them eligible for parole.\457\ Oscar Lopez
was treated differently because he also had a separate 15-year
sentence for attempted escape.\458\ The President proposed
commuting his original sentence to 29 years, but would not have
commuted the time for the escape attempt.\459\ The last four
prisoners were members of the Macheteros. Two of the
individuals were already out of prison, but had not paid their
fines. Roberto Maldonado-Rivera and Norman Ramirez-Talavera
were granted remissions of their fines. The other two
individuals, Juan Segarra-Palmer and Antonio Camacho-Negron
were still imprisoned and still had fines. Antonio Camacho-
Negron was already eligible for parole, but had violated his
conditions of release. Therefore the President only offered him
a remission of fine.\460\ The President commuted the sentence
of Juan Segarra-Palmer so that he would be eligible for parole
after serving 19 years in prison, which the President explained
was consistent with the time served by the other prisoners with
similar sentences.\461\
---------------------------------------------------------------------------
\455\ Exhibit 7--Letter from President Clinton to Representative
Waxman.
\456\ Exhibit 10--Executive order of clemency.
\457\ Id.; Exhibit 7--Letter from President Clinton to
Representative Waxman.
\458\ Exhibit 7--Letter from President Clinton to Representative
Waxman.
\459\ Id.
\460\ Id.
\461\ Id.
---------------------------------------------------------------------------
The clemency was conditioned upon the prisoner's renouncing
violence and agreeing to the standard terms of parole. Those
terms included reporting to a probation officer, as well as
restrictions on travel and association.\462\ The prisoners and
their attorneys responded that the conditions were ``unfair''
and would impose too many restrictions on the prisoners once
released.\463\ Jan Susler, attorney for the FALN prisoners,
stated, ``[i]t's conditioned upon them complying with terms
that would limit their ability to integrate themselves into the
political process to shape the future of their country, because
it restricts their travel and association.'' \464\ The
attorneys also complained that the prisoners were worried about
the officials who would supervise their parole as most law
enforcement agencies opposed the release of the FALN
members.\465\ The fact that the prisoners would complain about
being subject to the same rules as all other parolees when
their sentences were reduced by dozens of years is incredible.
Their statements show that they still do not appreciate the
criminality of their acts, and still believe that they were
persecuted solely for their political beliefs.
---------------------------------------------------------------------------
\462\ ``Conditions of Release'' Department of Justice production
002003. (Exhibit 77).
\463\ Lawyers for Puerto Rican Prisoners Call Clinton's Offer
Unfair, Associated Press (Sept. 3, 1999).
\463\ Id.
\464\ Id.
---------------------------------------------------------------------------
The month-long deliberations on accepting clemency brought
to light one of the original issues with the request for
clemency, that the prisoners refused to submit their own
petitions. According to the Pardon Attorney, the rule that
prisoners submit their own petitions was to be sure that they
desired the relief. As a consequence of allowing Ofensiva '92
to submit the petitions, the White House could not be sure that
the prisoners would accept the grants of clemency. The lengthy
deliberation on the offer forced the President to demand that
the prisoners accept the offer by a date certain, September 10,
1999, or forfeit the grant altogether.\466\ In addition, the
prisoners were required to sign what amounted to requests for
clemency, even though they were after the fact.\467\
Ultimately, two of the prisoners did not accept the grants of
clemency, Oscar Lopez Rivera and Juan Segarra-Palmer. The other
prisoners waited until September 7, 1999, to accept the
President's offer.\468\
---------------------------------------------------------------------------
\466\ Letter from Dawn Chirwa, Associate Counsel to the President,
to Jan Susler, attorney for clemency grantees (Sept. 3, 1999). White
House production CL 15896-15897. (Exhibit 78).
\467\ Id.
\468\ Department of Justice production 001974-001990. (Exhibit 79).
---------------------------------------------------------------------------
Once the prisoners accepted the commutations, their
attorney, Jan Susler, stated, ``[w]e think this is an
unprecedented, historic moment that the President of the United
States could recognize that men and women who have dedicated
their lives to the freedom of their country deserve to be free
. . . to participate in the political, legal process to shape
the future of their country.'' \469\ Through the act of
commutation the President erased the facts of their convictions
and transformed these terrorists into honorable freedom
fighters.
---------------------------------------------------------------------------
\469\ 12 Puerto Rican Nationalists Agree to `Unprecedented'
Clemency Condition, CNN.com, Sept. 8, 1999.
---------------------------------------------------------------------------
IV. The Sentences Were Fair
Supporters of clemency for the 16 Puerto Rican terrorists
have argued that their sentences were disproportionately long.
While the President may grant clemency for any reason, it
appears that this, the most substantive publicly-advanced
justification for granting clemency, was flawed. The President,
in a letter dated September 21, 1999, to Representative Henry
Waxman, ranking minority member of this Committee, stated that
``. . . the prisoners were serving extremely lengthy
sentences--in some cases 90 years--which were out of proportion
to their crimes.'' \470\ The President has also stated that the
terrorists ``had all served sentences that were considerably
longer than they would serve under the sentencing guidelines
which control federal sentencing now.'' \471\ These arguments,
however, do not appear to be true.
---------------------------------------------------------------------------
\470\ Exhibit 7--Letter from President Clinton to Representative
Waxman at 2.
\471\ President William J. Clinton, press conference (Sept. 9,
1999).
---------------------------------------------------------------------------
As Timothy McGrath, the interim Staff Director of the U.S.
Sentencing Commission recently informed this Committee: ``[W]e
estimate that the federal sentencing guidelines generally would
call for sentences as long as or longer than those actually
imposed, if the defendants had been sentenced under current
law.'' \472\ According to the Commission, applying the
sentencing guidelines to offenses analogous to those committed
\473\ would result in sentences of 30 years to life for the
nine Puerto Rican terrorists convicted of seditious conspiracy
in the Northern District of Illinois, and in sentences which
would be 30 years up to the functional equivalent of life for
the remaining terrorists who were in prison at the time of the
clemency offer.\474\ Addressing this point, the Commission
found:
---------------------------------------------------------------------------
\472\ Exhibit 3--Letter from Timothy B. McGrath to Chairman Dan
Burton at 9.
\473\ There is no Federal sentencing guideline for the offense of
seditious conspiracy.
\474\ Id. at 1-2. Terrorists Antonio Camacho-Negron, Roberto
Maldonado-Rivera, and Norman Ramirez-Talavera were not included in the
Sentencing Commission's analysis, as each had completed their prison
terms when President Clinton offered clemency. Id. at fn. 1.
In considering applicability of the current Federal
Sentencing Guidelines to the 12 defendants sentenced in
the Northern District of Illinois, we thought it most
likely that a court would use one of two approaches to
guideline application. Both of these approaches would
result in a guideline range of at least 360 months to
life (and, in the case of the approach described below
using the Treason guideline, Sec. 2M1.1, a guideline
sentence of life imprisonment) that would permit a
judge to impose a life sentence for those nine
defendants convicted of a violation of 18 U.S.C.
Sec. 924(c).\475\ The other three defendants not
convicted of a section 924(c) violation could have
received a sentence amounting to the functional
equivalent of life imprisonment, and would have been
required to receive a sentence of at least thirty years
under the guidelines, in our estimation. In estimating
the guideline sentence for defendant Palmer sentenced
in the district of Connecticut, we applied the Robbery
sentencing guideline with applicable enhancements and
concluded that the defendant would have been subject to
a guideline sentence of life imprisonment. However,
because none of the counts of conviction permit an
actual life sentence, the guidelines would direct the
court to impose the statutory maximum term of
imprisonment on each count and run the sentences
consecutively, in order to achieve the functional
equivalent of a life sentence.\476\
---------------------------------------------------------------------------
\475\ ``The following defendants were convicted of violations of 18
U.S.C. Sec. 924(c) and, accordingly, could receive sentences of life
imprisonment under the current version of that statute: Elizam Escobar,
Ricardo Jimenez, Oscar Lopez-Rivera, Adolfo Matos, Dylcia Noemi Pagan,
Alicia Rodriguez, Ida Luz Rodriguez, Luis Rosa, and Carmen Valentin.''
Id. at fn. 2.
\476\ Id. at 1-2.
Applying the sentencing guideline for the crime of
treason,\477\ the guidelines would require that life sentences
be imposed on all 13 terrorists, with statutory maximum
sentences for all other counts running consecutively with each
other and with the life sentences. The Commission stated that
applying the sentencing guidelines for treason would be
appropriate based on the facts of the case:
---------------------------------------------------------------------------
\477\ In his letter, McGrath stated that ``[i]t is our opinion that
a court reasonably could conclude that the Treason guideline, USSG
Sec. 2M1.1(a)(1), is sufficiently analogous to the offense of
conviction of seditious conspiracy charged in these cases. We find
strong support for this conclusion based on the fact that, in a
factually and legally analogous case involving the bombing of the World
Trade Center, the district court for the Southern District of New York
made a similar determination, and this decision was recently affirmed
by the U.S. Court of Appeals for the Second Circuit.'' Id. at 2-3
(citing United States v. Rahman, 1999 WL 626631 (2d Cir., Aug. 16,
1999)).
Because the object of the FALN conspiracy, and the
conduct alleged as part of the conspiracy, amounted to
an avowed intent by the members of the conspiracy to
wage war against the United States, a court could
appropriately find that the most analogous guideline is
USSG Sec. 2M1.1(a), Treason. Applying that guideline
based on the court determination that the underlying
conduct amounts to waging war against the United
States, a base offense level of 43 is mandated under
USSG Sec. 2M1.1(a)(1). See United States v. Rahman, --
-- F. 3d ----, 1999 WL 626631, at *55 (2d Cir. Aug. 16,
1999) (concluding that treason by waging war is
appropriately analogous to offense of seditious
conspiracy by levying war; conviction for seditious
conspiracy was based on planned bombing of tunnels in
New York).\478\
---------------------------------------------------------------------------
\478\ Id. at 3.
The Commission also found that no mitigating adjustments
would be appropriate. With respect to mitigating adjustments
based on the role of the offender in the conspiracy (USSG
Sec. 3B1.2), the Commission found that ``a court could not
grant a downward adjustment for mitigating role unless the
particular defendant met his or her burden of proving that he
or she was `substantially less culpable than the average
participant.' '' \479\ Since the defendants chose not to
participate in their trial, the applicability of this
mitigating adjustment is doubtful. Likewise, with respect to a
mitigating adjustment based on remorse (USSG Sec. 3E1.1), the
Commission stated that ``[b]ecause the defendants went to trial
and did not express remorse, we are aware of no basis for
granting this reduction.'' \480\
---------------------------------------------------------------------------
\479\ Id. at 4.
\480\ Id. at 4.
---------------------------------------------------------------------------
Clemency supporters who testified at this Committee's
September 21, 1999, hearing compared the sentences of the 16
Puerto Rican terrorists with sentences imposed for other crimes
thought to be more serious than seditious conspiracy. The
Reverend Thomas E. Dipko, testifying on behalf of the General
Synod of the United Church of Christ, stated:
We agree with President Clinton, Amnesty
International, and numerous voices of conscience at
home and abroad, who note that in comparison with the
seven to twenty 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 found guilty.
Also, Harry Barnes, director of the Conflict Resolution Program
at the Carter Center, in a letter to Chairman Burton of this
Committee dated October 15, 1999, compared the sentences of the
16 terrorists to: (1) the ``average maximum sentence for
murder'' in Federal courts in 1980 (approximately 10 years);
(2) the ``average maximum sentence for murder'' in Federal
courts in 1997 (approximately 12 years); and (3) the ``average
maximum sentence for murder'' in State courts in 1997
(approximately 22 years).\481\
---------------------------------------------------------------------------
\481\ Letter from Harry Barnes, director, Conflict Resolution
Program, the Carter Center, to Dan Burton, chairman, Committee on
Government Reform (Oct. 15, 1999). (Exhibit 80).
---------------------------------------------------------------------------
Seditious conspiracy and murder, however, are not
equivalent crimes. McGrath, in his October 26, 1999, letter
addressed the Carter Center's comparison:
The completed criminal conduct of the FALN defendants
may not have resulted in murder, but the additional
planned conduct certainly threatened the lives of many
persons and, more generally, sought to oppose the
United States government by force and violence. Thus,
from a just punishment perspective, it is not at all
clear that the FALN sentences were disproportionate to
the seriousness of the crimes.\482\
---------------------------------------------------------------------------
\482\ Exhibit 3--Letter from Timothy B. McGrath to Chairman Dan
Burton at 8-9.
The implication that the sentences of up to 90 years imposed on
the FALN terrorists were unusually long as compared with other
Federal sentences is further belied by Bureau of Justice
Statistics sentencing data. At the end of fiscal year 1998,
there were 74 offenders in Federal prison who had been
sentenced to determinate sentences greater than 100 years prior
to enactment of the Sentencing Reform Act of 1984, and 578
offenders who had been sentenced to life imprisonment under the
old law. Overall, at the end of fiscal year 1998, there were
115 offenders in Federal prison serving determinate sentences
greater than 100 years, 2,040 offenders serving Federal life
sentences, and 7 offenders on Federal death row.\483\
---------------------------------------------------------------------------
\483\ Federal Justice Statistics Resource Center, ``Dataset:
Population of offenders in Federal Prison at fiscal year-end, 1998,''
(viewed Oct. 26, 1999). .
---------------------------------------------------------------------------
In his letter to Representative Waxman, the President also
contrasted the sentences of the prisoners in question with that
of Jose Solis Jordan, another Puerto Rican terrorist who was
sentenced on July 7, 1999, to 51 months in prison for the
attempted bombing of a Marine recruiting center in
Chicago.\484\ Unlike the 16 Puerto Rican terrorists, who were
convicted on multiple charges related to the FALN's terrorist
campaign in the early 1980's, Solis Jordan was tried on charges
related to a single attempted bombing.\485\ Solis Jordan was
ultimately convicted on four counts: \486\ (I) conspiracy to
destroy Federal property by fire or explosive; \487\ (II and
III) attempted destruction of Federal property by fire or
explosive; \488\ and (IV) illegal possession of
explosives.\489\ The fact that Solis Jordan was not prosecuted
for seditious conspiracy, and not sentenced under the guideline
for terrorism,\490\ does not suggest that the sentences imposed
on his predecessors in terror were in any respect unjust.
---------------------------------------------------------------------------
\484\ Exhibit 7--Letter from President Clinton to Representative
Waxman at 2.
\485\ Neil Gallagher, Assistant Director of the National Security
Division of the Federal Bureau of Investigation, testified at this
Committee's Sept. 21, 1999 hearing that the 1992 bombing for which
Solis Jordan was convicted was designed to gauge the response of the
Puerto Rican people to the resumption of pro-independence terrorism.
Solis Jordan was not charged with seditious conspiracy.
\486\ U.S. v. Solis Jordan, Docket No. 97-CR-814, (N.D. Ill.,
1999). Amended Judgment and Commitment Order, issued Sept. 3, 1999
\487\ 18 U.S.C. Sec. 371.
\488\ 18 U.S.C. Sec. 844(f).
\489\ 18 U.S.C. Sec. 5861(d).
\490\ U.S. Sentencing Commission, 1998 Guidelines Manual, Sec.
3A1.4.
---------------------------------------------------------------------------
V. The Faln and Macheteros Terrorists Are Strange Candidates for
Clemency
As the Justice Department itself noted, commutations of
sentence are very rarely granted; it is an extraordinary
remedy.\491\ Since President Clinton took office, he had
granted only 3 commutations of sentence out of 3,042
requests.\492\ In each of those three instances, the length of
the sentence commuted did not compare to the sentences being
served by the FALN and Macheteros terrorists. The first
commutation, in 1994, was of a hog farmer in Nebraska who had
been convicted of perjury in bankruptcy proceedings.\493\ The
farmer was sentenced to 5 months prison, 3 years supervised
release, and 5 months home confinement.\494\ The President
commuted his 5 month sentence after the farmer had served 4
months and 25 days, and removed the home detention
requirement.\495\
---------------------------------------------------------------------------
\491\ ``The Executive Clemency Process'' Department of Justice
production 1040586-1040591, at 590.
\492\ Exhibit 25--Chart, ``Presidential Clemency Actions by
Administration.'' Figures include the first 6 months of fiscal year
1999.
\493\ Exhibit 1 at 000735.
\494\ Id.
\495\ Id. at 000750.
---------------------------------------------------------------------------
President Clinton later commuted the sentence of a woman
who was convicted of conspiracy to distribute cocaine and
sentenced to 2 years and 9 months.\496\ She was scheduled to be
released on May 27, 1995, when Clinton commuted her sentence to
time served on April 17, 1995, sparing her a little less than a
month longer in prison.\497\ The Pardon Attorney explained that
the woman had withdrawn from drug activity prior to her trial
and the President felt that she had served enough time.\498\
---------------------------------------------------------------------------
\496\ Id. at 000739.
\497\ Id. at 000751.
\498\ Committee Interview with Roger Adams, Pardon Attorney, Sept.
18, 1999.
---------------------------------------------------------------------------
The third sentence commuted by President Clinton was that
of a man convicted of marijuana charges. The Pardon Attorney
explained that the man had cooperated with the U.S. Attorneys
Office prosecuting the case, and in turn was supposed to get a
favorable recommendation on sentencing.\499\ Due to an error on
the part of the U.S. Attorneys Office, the recommendation was
not filed on time. The man commenced his sentence of 5 years
and 11 months on December 3, 1991 and was scheduled for release
on November 1, 1996.\500\ The President commuted his sentence
to time served on August 21, 1995, releasing him 1 year and 2
months early.\501\
---------------------------------------------------------------------------
\499\ Id.
\500\ Exhibit 1 at 000752.
\501\ Id.
---------------------------------------------------------------------------
In comparison, the FALN and Macheteros terrorists were
released after serving 19 years on their sentences ranging from
35 to 90 years.\502\ The initial commutations were of a
completely different nature than the FALN and Macheteros
commutations, and the presence of remorse and cooperation
provided a justification for the grant of clemency. The members
of the FALN and Macheteros terrorist groups who were granted
clemency showed none of those virtues. Some of them may well
have been exemplary prisoners.\503\ However, they never took
responsibility for what they did and, in fact, most of them
still call themselves ``political prisoners'' and blame the
government for what they did. Furthermore, the President
granted them clemency as a group. It is troubling to the
Committee that some might read President Clinton's grant of
clemency as validating the actions of the FALN and Macheteros
terrorist groups, or at the least being lenient toward them.
---------------------------------------------------------------------------
\502\ Exhibit 7--Letter from President Clinton to Representative
Henry Waxman. Juan Segarra-Palmer's sentence was commuted so that he
would not be released until he served 19 years. He was originally
sentenced to 55 years in prison.
\503\ There is evidence in the record of good conduct during their
period of incarceration (in addition to evidence, in some of their
cases, of bad or illegal conduct).
---------------------------------------------------------------------------
a. criteria for clemency
Generally, when considering commutations, the Justice
Department looks at several factors: ``disparity or undue
severity of sentence, critical illness or old age, and
meritorious service rendered to the government by the
petitioner, e.g., cooperation with investigative or prosecutive
efforts that has not been adequately rewarded by other official
action.'' \504\ In addition, whether the petitioner is eligible
for parole is taken into account, which would be another remedy
available.\505\ Other factors that one would look into when
considering clemency would be the type of offense and whether
the petitioner accepted responsibility and showed remorse for
his actions.\506\ When looking at remissions of fines, ``the
ability to pay and any good faith efforts to discharge the
obligation are important considerations,'' along with
``satisfactory post-conviction conduct.'' \507\
---------------------------------------------------------------------------
\504\ Exhibit 26--U.S. Attorneys Manual.
\505\ Id.
\506\ Id.
\507\ Id.
---------------------------------------------------------------------------
In the case of the FALN and Macheteros clemency, all of the
prisoners granted commutations by the President either were
already eligible for parole, or soon would be. The majority of
them refused even to apply for parole.\508\ The prisoners do
not appear to meet any of the other criteria that the
authorities are supposed to examine to determine eligibility.
Using today's sentencing guidelines, the U.S. Sentencing
Commission determined that the sentences imposed on the FALN
and Macheteros terrorists were not disparate or unduly
severe.\509\ According to the prisoners' records provided by
the Department of Justice, none of the prisoners suffered from
a critical illness or old age. In addition, the FBI testified
before the Committee that none of the prisoners had cooperated
with law enforcement.\510\ After reviewing the information
available on the prisoners and speaking with the relevant
authorities, the Committee was left puzzled about the grant of
clemency.
---------------------------------------------------------------------------
\508\ Oscar Lopez Rivera, Ricardo Jimenez, Alejandrina Torres,
Elizam Escobar, Carmen Valentin, Adolfo Matos, Edwin Cortes, and Ida
Luz Rodriguez all refused to apply for parole. Sentence monitoring
computation data. Department of Justice production at 120015, 020022,
100011, 010019, 080010, 030026, and 110013.
\509\ See discussion supra part V.
\510\ Clemency for the FALN: A Flawed Decision? Hearing before the
House Committee on Government Reform, 106th Cong., 1st Sess. (1999)
(testimony of Neil Gallagher, Assistant Director for National Security,
Federal Bureau of Investigation).
---------------------------------------------------------------------------
b. the violent nature of those offered clemency
In discussing the grant of clemency to the FALN and
Macheteros members, the White House made an effort to portray
those who were offered clemency as non-violent offenders. The
mantra repeated by the White House was that the individuals
offered clemency were not convicted of bombings that directly
caused the death of any person. This suggested that they were
unfairly categorized as violent through guilt by association.
This is not the case. The individuals granted clemency were
violent people committed to the use of violence to win
independence for Puerto Rico.
When considering a commutation of sentence, one would hope
that the Department of Justice and the President would look to
whether it was safe to put an individual back into society; of
foremost concern should be public safety. Generally, in making
a determination, the Justice Department should look at the
individual's conduct in prison, statements the prisoners have
made, and whether law enforcement agencies have concerns. In
the case of the FALN and Macheteros prisoners, it appears that
their violent histories were ignored.
1. Present day threats
In September 1999, the Attorney General released a ``Five-
Year Interagency Counterterrorism and Technology Crime Plan.''
\511\ The plan was released the same month as the FALN and
Macheteros terrorists were released from prison. In a section
of the Attorney General's report discussing the threat posed
from domestic terrorists, she writes:
---------------------------------------------------------------------------
\511\ Five Year Interagency Counterterrorism and Technology Crime
Plan, September 1999. Department of Justice production 10140039-
10140136.
Puerto Rican terrorist groups, such as the Fuertas
[sic] Armadas de Liberacion Nacional Puertorriquena
[sic] (FALNP) and the Ejercito Popular Boricua
Macheteros (EPB-Macheteros), are an exception and
represent an on-going threat. They have previously used
violence in an attempt to achieve independence for
Puerto Rico. In an eleven-year span, Puerto Rican
terrorists were responsible for more than 100 bombings
and arsons, in both Puerto Rico and on the U.S.
mainland. Factors which increase the present threat
from these groups include renewed activity by a small
minority advocating Puerto Rican statehood, the 100-
year anniversary of the U.S. presence in Puerto Rico,
and the impending release from prison of members of
these groups jailed for prior violence.\512\
---------------------------------------------------------------------------
\512\ Id. at 10140050 (emphasis added).
Even as the prisoners were being released, the Justice
Department acknowledged that such release increased the threat
of violence from the FALN and Macheteros.
In testimony before the Committee, Neil Gallagher, FBI
Assistant Director for National Security testified that the FBI
believed that the release of the prisoners would provide a
``psychological or operational'' benefit to the two terrorist
organizations.\513\ Gallagher explained that the FALN and
Macheteros continue as terrorist organizations and to place one
of their imprisoned ``comrades'' back into their midst, would
give the organization a boost.\514\ Gallagher used the example
of the Macheteros' fugitive leader Filiberto Ojeda Rios, who,
on September 13, 1999, issued a communique warning the U.S.
Navy not to resume the use of a range on the island of Vieques,
Puerto Rico.\515\ The communique warned that the Macheteros
``would not remain with their arms crossed.'' \516\ Gallagher
made clear that the FBI had given the Justice Department its
warnings and opinion on the release of the FALN and Macheteros
prisoners on numerous occasions.\517\
---------------------------------------------------------------------------
\513\ Clemency for the FALN: A Flawed Decision? Hearing before the
House Committee on Government Reform, 106th Cong., 1st Sess. (1999)
(testimony of Neil Gallagher, Assistant Director for National Security,
Federal Bureau of Investigation).
\514\ Id.
\515\ Id.; see also Appendix II, letter from Dan Burton, chairman,
Government Reform Committee, to Janet Reno, Attorney General (Oct. 19,
1999) (letter discusses the danger to civilians protesting on the
island of Vieques).
\516\ Id.
\517\ Id. The FBI also noted in a draft, unsent letter to House
Judiciary Committee chairman, Henry Hyde, that, ``[a]s the request for
pardons had been pending since 1994, the FBI was unaware that any such
commutation of sentences was actually being contemplated or imminent.''
Exhibit 54--Letter from Louis J. Freeh, Director, FBI, to Henry Hyde,
chairman, House Judiciary Committee (undated).
---------------------------------------------------------------------------
2. Violent escapes planned by the FALN prisoners
a. Escape plan of Oscar Lopez Rivera
Between mid-1983 and May 1986 several FALN members, a group
of prisoners, and former prisoners from Leavenworth conspired
to escape from Leavenworth. The mastermind of the plan was
Oscar Lopez Rivera, who declined President Clinton's offer of
clemency. At the time of the conspiracy, Lopez was incarcerated
in Leavenworth Penitentiary. The government learned of the
conspiracy through an inmate at Leavenworth and soon began
monitoring the efforts of Lopez Rivera and his co-conspirators
both inside and outside of prison.
While in prison, Lopez boasted that he was the Chicago
leader of the FALN in a discussion with other inmates.\518\
Lopez said that, ``he believed the only way he could win
independence for Puerto Rico was by engaging in violent acts
against private businesses and against U.S. government
installations.'' \519\ He explained that ``his people'' lived
in Chicago, and that he communicated with them through visits,
legal mail and coded telephone calls.\520\ In the same
conversation, he urged the other inmates to begin their own
campaign of armed struggle.\521\ This discussion led the
participants to conclude that it would be difficult to conduct
an armed struggle while still in prison, thus the participants
began to formulate an escape plan.\522\
---------------------------------------------------------------------------
\518\ Brief for the United States, U.S. v. Delgado, Nos. 88-1434,
88-1450, and 88-1476, at 5 (7th Cir.).
\519\ Id. (emphasis added).
\520\ Id.
\521\ Id. at 6.
\522\ Id.
---------------------------------------------------------------------------
Several weeks after the first meeting, Lopez met with one
of the participants and informed him that the FALN had given
him permission to participate in an escape plan and would
provide a helicopter, pilot, and some of the materials
needed.\523\ The plan was contingent upon one of the
Leavenworth participants being released from prison, which was
scheduled within a year.\524\ In the meantime, between late
1984 and mid 1985, the participants met on a daily basis to
discuss their plan. The final plan called for a helicopter to
be flown into the Leavenworth prison yard.\525\ Guards would be
held off with gunfire, and the helicopters at nearby Fort
Leavenworth were to be disabled with explosive devices.\526\
Once out of prison, the participants would accumulate funds
through robbery or counterfeiting.\527\ With the funding, they
``intended to buy various explosives and firearms to use to
blow up buildings and kill people.'' \528\ Lopez promised to
bring FALN members to help train the men in their ``armed
struggle.'' \529\
---------------------------------------------------------------------------
\523\ Id.
\524\ Id.
\525\ Id. at 7.
\526\ Id.
\527\ Id.
\528\ Id. (emphasis added).
\529\ Id.
---------------------------------------------------------------------------
Several months later, Lopez learned that a leading figure
in the ``armed struggle'' had been arrested, and therefore the
FALN would not be able to provide the weapons and
explosives.\530\ The co-conspirators then went to another
inmate with a list of weapons they would need to get out:
``fragmentation grenades, smoke grenades, phosphorous grenades,
eight M-16 rifles, two silencers, 50 pounds of plastic C-4
explosives, eight bulletproof vests, ten blasting caps to use
with plastic explosives, and 100 30-shot clips for use with
automatic weapons.'' \531\ The smoke grenades were to be used
in the yard to obstruct the guards' vision, while the
fragmentation grenades ``were going to be used to throw against
the guard tower.'' \532\ Ostensibly, there would be guards in
the guard tower who would either be killed or seriously wounded
by a weapon such as a fragmentation grenade.
---------------------------------------------------------------------------
\530\ Id. at 7-8.
\531\ Id. at 8 (emphasis added).
\532\ Id.
---------------------------------------------------------------------------
After some time, Lopez' contacts outside of the prison made
arrangements to make an initial purchase of some of the C-4
explosives.\533\ Because there was an informant working within
the co-conspirators, the FBI became involved and an agent posed
as a weapons dealer.\534\ The FBI agent sold $5,000 worth, or
30 sticks, of C-4 to the outside contact of the FALN.\535\ In
mid-May 1985, Lopez was given details of the weapons
purchased.\536\ Lopez told his co-conspirators that he thought
the ``weapons dealer'' was giving them a bad deal, but that
``his people'' would ``take care of'' the weapons dealer if he
had set them up.\537\
---------------------------------------------------------------------------
\533\ Id. at 11.
\534\ Id.
\535\ Id. at 15-16.
\536\ The ``weapons dealer'' was actually an undercover FBI agent.
Id. at 16.
\537\ Id. (emphasis added).
---------------------------------------------------------------------------
As time passed, numerous FALN members across the country
were captured. Lopez was getting and sending information
through his attorneys and other visitors who would communicate
through written notes taken from the prison by Lopez' attorneys
or paralegals.\538\ Lopez had to change his escape plans
several times and informed his co-conspirators on the outside,
through a letter smuggled out by his attorney, that the FALN
would not be able to provide the weapons or helicopter
training.\539\
---------------------------------------------------------------------------
\538\ Id. at 17.
\539\ Id.
---------------------------------------------------------------------------
In May 1986, Lopez sent a letter to a co-conspirator (at
that time the co-conspirator was cooperating with the
government), giving him the name of a new weapons dealer.\540\
The co-conspirators, including Lopez, agreed that if the
weapons dealer did not meet their price, he should be killed
and the weapons stolen.\541\ At the end of May, Lopez was
visited by an FALN contact, and the two, communicating through
writing, discussed the escape attempt.\542\ After the visit,
the government seized the communications and foiled the
plot.\543\
---------------------------------------------------------------------------
\540\ Id. at 26.
\541\ Id.
\542\ Id. at 27.
\543\ Id.
---------------------------------------------------------------------------
Lopez and his co-conspirators were charged with:
Committing a multi-goal conspiracy to effect
the escape of several inmates from the Leavenworth
Federal Penitentiary.
Committing a multi-goal conspiracy to
transport explosives with the intent to kill and injure
people.
Committing a multi-goal conspiracy to use
explosives to destroy government buildings and
property.
Lopez' probation officer's assessment of him was:
His level of remorse, rehabilitation and positive
regard for this court's process is minimal, if not
nonexistent. 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 United States
government. He has already determined that human life
is expendable for this purpose. He will not be an
inactive influence on the FALN while incarcerated.\544\
---------------------------------------------------------------------------
\544\ Presentence report of Oscar Lopez at 120042.
---------------------------------------------------------------------------
The Government stated in its sentencing recommendation:
Oscar Lopez is beyond rehabilitation. He has shown
nothing but contempt for the judicial system and the
lives of his fellow citizens. He has adopted a
philosophy to rationalize and justify every act of
violence and criminality he commits. In this regard, he
is a particularly dangerous individual whose commitment
to his cause guarantees a continued and real threat to
the lives and well being of all persons who find
themselves in his way.\545\
---------------------------------------------------------------------------
\545\ Id. at 120054.
In February 1986, Lopez was interviewed regarding his
participation in the ``struggle'' for Puerto Rico's
---------------------------------------------------------------------------
independence:
I would consider myself a freedom fighter. Ah, it
could be argued that somebody's terrorist is somebody
else's freedom fighter. Our struggle is a just
struggle, and because it's a just struggle, we have the
right to wage it by any . . . ah . . . means necessary,
including armed struggle. . . . We can anticipate more
violence. People are not going to sit idle and, ah,
wait for the oppression to continue. Ah, as long as the
conditions do not improve ah, yes there is that, ah,
outlet for violence. A bombing or any type of armed
action is worth study. It's not something that, ah, is,
is spontaneous. Ah, all the factors, human lives are
taken into consideration.\546\
---------------------------------------------------------------------------
\546\ Id. at 120064.
Lopez was found guilty and sentenced to 15 years, to run
consecutively with the prison sentence he was already serving.
When testifying before the Committee, the Assistant
Director for Correctional Programs at the Bureau of Prisons,
Michael Cooksey, spoke about Oscar Lopez. Cooksey testified
that Oscar Lopez' escape plans were indeed violent.\547\ In
fact, Oscar Lopez was considered one of the most dangerous
criminals in the Bureau of Prisons system, and was sent to the
highest security prison in the United States.\548\ During the
hearing, the FBI, Bureau of Prisons, and Justice Department all
testified that they had never told the White House that Oscar
Lopez was not violent.\549\ Nevertheless, the White House
continued to represent to the public that the individuals
granted clemency had never been involved in violent acts.
---------------------------------------------------------------------------
\547\ Clemency for the FALN: A Flawed Decision? Hearing before the
House Committee on Government Reform, 106th Cong., 1st Sess. (1999)
(testimony of Michael B. Cooksey, Assistant Director for Correctional
Programs, Bureau of Prisons).
\548\ Lopez was incarcerated at both the Marion and Florence, CO
maximum security facilities. Id.
\549\ Id. (testimony of Michael B. Cooksey, Assistant Director for
Correctional Programs, Bureau of Prisons; testimony of Neil Gallagher,
Assistant Director for National Security, Federal Bureau of
Investigation; testimony of Jon Jennings, Acting Assistant Attorney
General for Legislative Affairs).
---------------------------------------------------------------------------
b. Escape plans of Ricardo Jimenez
Officers at the Federal Correctional Institution in
Otisville, NY were conducting a routine ``shakedown'' of the
prisoners cells on October 11, 1985. When they searched FALN
member Ricardo Jimenez' cell they found the following:
Exhibit 1: a plastic architectural drawing
(3"5") which depicts the entire Otisville
facility as seen from the air; appears to have been
produced in UNICOR; found taped to bottom of inmate's
desk.
Exhibit 2: FALN-related material (three newspapers).
Exhibit 3: two informational fliers concerning
individuals of Puerto Rican descent currently
incarcerated at various facilities.\550\
---------------------------------------------------------------------------
\550\ Memorandum from Jerry Brookmole, Captain to Ken Willicki, SIS
(Oct. 21, 1985). Department of Justice production 10180032-10180035, at
10180032.
---------------------------------------------------------------------------
Jimenez was present during the search, and when he became aware
that the officers had found the materials, he attempted to
flee.\551\ As he was already in prison, he did not get far.
---------------------------------------------------------------------------
\551\ Id
---------------------------------------------------------------------------
Through informants, the officers at Otisville were able to
determine that the FALN was planning to break into the prison
to free Jimenez and ``pre-trial Puerto Ricans'' who were being
held at Otisville at the time.\552\ Jimenez had paid another
prisoner who was able to leave the prison on furlough to take
information outside the prison such as ``site plans of the
institution layout; information about the perimeter security;
and details of perimeter security vehicle activity.'' \553\ A
confidential informant supplied officials with the following
details:
---------------------------------------------------------------------------
\552\ Id. at 10180033-10180034.
\553\ Id. at 10180033.
---------------------------------------------------------------------------
Twenty-five to Thirty (25 to 30) people will be
involved, coming from the outside to implement the
escape plan. They will approach from the road that
leads from the sewage treatment plant. They will be
heavily armed with automatic weapons, grenades, and
dynamite. Half of the group will come to the front of
the parking lot to create a diversion. The other half
will come up from the sewage treatment plant area and
blow a hole in the fence. The primary target will be to
get Jimenez and the Puerto Ricans out of segregation.
It will be a total takeover and all other inmates who
wish to break for the fence will be permitted to do so.
Plans of the institution have already been sent to
New York where the weapons and individuals are located.
The woods leading to the back of Units 1, 2, and 3 have
already been staked out three to six weeks ago. The
perimeter vehicles will be taken out immediately
because they know this is the only fire power we have.
There is a hit list established identifying
particular staff who they will kill on sight if seen.
The informant knew of only one staff member on the
list, namely, Lt. Asuega.\554\
---------------------------------------------------------------------------
\554\ Id. at 10180034.
---------------------------------------------------------------------------
Prison authorities confirmed that a guard checking the prison
perimeter approximately 6 weeks earlier had reported people
with flashlights in the woods behind the prison.\555\ The
following day, guards had found footprints in the area.\556\
---------------------------------------------------------------------------
\555\ Id.
\556\ Id.
---------------------------------------------------------------------------
It is apparent from the description of both the Lopez and
Jimenez escape attempts that the two remained in contact with
FALN members outside of prison and were kept abreast of current
FALN events. Their escape plans were extremely violent and did
not take into account possible loss of life, and in fact,
planned on it. Lopez intended to attack the guard tower, and
Jimenez had a ``hit list'' for guards.
c. the faln and macheteros members offered clemency expressed no
remorse, nor did they exhibit any signs of rehabilitation
An important aspect of any grant of clemency should be the
remorse or repentance of the petitioner for the crimes he
committed. There is no evidence of repentance with the FALN and
Macheteros terrorists. The Office of the Pardon Attorney even
worked with supporters of clemency to find remorse on the part
of the prisoners. During a November 5, 1997, meeting with
Representatives Gutierrez, Serrano, and Velazquez, Deputy
Attorney General Holder asked that they get a written statement
from the prisoners on how they had changed and whether they
were repentant.\557\ Five months later, OPA had not received
any statement. Ultimately, Pardon Attorney Adams had to call
Representative Gutierrez' office and request the
statement.\558\ Finally, on April 9, 1998, the Pardon Attorney
spoke with Enrique Fernandez of Representative Gutierrez'
office.\559\ Fernandez told Pardon Attorney Adams that the
prisoners would ``send separate, though identical,
statements.'' \560\ It is clear from the fact that the
prisoners' statements were identical that the prisoners did not
truly feel remorse. A group statement tends to defeat the idea
of personal remorse or repentance. Fernandez also warned that
the statement would probably not be what the Deputy Attorney
General had asked for in his meeting:
---------------------------------------------------------------------------
\557\ Exhibit 47--Notes from Nov. 5, 1997, meeting between Deputy
Attorney General Holder and Representatives Gutierrez, Serrano, and
Velazquez.
\558\ Notes of telephone call from Roger Adams, Pardon Attorney, to
Doug Scoffield, chief of staff to Representative Gutierrez (undated).
Department of Justice production 1041926. (Exhibit 81).
\559\ Notes of telephone call from Roger Adams, Pardon Attorney, to
Enrique Fernandez, staff to Representative Gutierrez (Apr. 9, 1999).
Department of Justice production 1041899. (Exhibit 82).
\560\ Id.
It is unlikely to show ``repentance'' as Mr.
Fernandez said the persons have said--and this may be
the gist of the statement--that they cannot participate
in the current political process of the U.S. with
respect to its relationship to PR--although they have
no quarrel with the U.S. Constitution and laws with
respect to matters in the U.S. . . . Anyway, he said
that his Congressman is very confident they will not
``do it again, bombs and stuff like that.'' \561\
---------------------------------------------------------------------------
\561\ Id.
In fact, the statement from the prisoners reflected no remorse,
repentance or change in beliefs on the part of the FALN
prisoners.\562\
---------------------------------------------------------------------------
\562\ Exhibit 49--Facsimile from Roger Adams to Dawn Chirwa, with
attachment of statement from the prisoners (Apr. 21, 1998).
---------------------------------------------------------------------------
In their statement, the prisoners blamed the U.S.
Government for their actions. Describing the decades of the
1970's and 1980's, the statement claimed:
During those years the criminalization of
independence and systemic harassment of supporters of
independence and their sympathizers was official
government policy, out of which grew COINTELPRO. In
Puerto Rico and the United States, the government
targeted supporters of independence, including the
unconstitutional practice of creating dossiers and
conducting surveillance of over 100,000 innocent
people, dubbed ``subversives,'' merely because they
believed in independence. . . .
It is within this totality of circumstances, with all
other avenues for exercising self-determination
foreclosed, that a group of individuals decided to
resort to exercise the right of self-determination due
all nations, and, concretizing the right accorded by
international law to all colonial subjects to use all
means at their disposal, waged a struggle against
colonialism.\563\
---------------------------------------------------------------------------
\563\ Id.
The letter acknowledges that the prisoners might now deign to
participate in the political process to work toward
independence for Puerto Rico. Yet the prisoners continue to
refuse to acknowledge their personal participation and
culpability. Many of the individual prisoners have made
unofficial statements regarding their participation in the
``independence movement'' that tend to show that they have no
remorse, and in fact continue to be proud of their actions.
1. Statements of Oscar Lopez
In the summer of 1995 Oscar Lopez made a statement for the
use of ``Libertad!'' which was the publication of a group of
pro-clemency supporters. Lopez wrote, ``I define myself as a
Puerto Rican, with a right to struggle for the liberation and
dignity of my people using any means necessary.'' \564\ Later,
in May 1998, Lopez was interviewed for the San Juan Star. Lopez
told the reporter, ``I cannot undo what's done. The whole thing
of contrition, atonement, I have problems with that.'' \565\ He
continued, ``I have no regrets for what I've done in the Puerto
Rico independence movement. The onus is not on us. The crime is
colonialism.'' \566\ Lopez was asked whether he and his former
``comrades'' would accept a Puerto Rican plebiscite on the
issue of Puerto Rican independence or statehood. He responded
that they would accept a plebiscite, but would react violently
if they found that it had been ``rigged against them.'' \567\
However, Lopez added, ``[i]f annexation [statehood] is the
answer, I would say there would be a good number of Puerto
Ricans who would advocate and practice armed struggle.''
Finally, if asked whether he would remain an active
independentista if he were freed from prison, after a long
pause Lopez responded, ``I cannot stop being a Puerto Rican. I
cannot be anything but a Puerto Rican.''
---------------------------------------------------------------------------
\564\ Statements of the FALN and Los Macheteros members in
Libertad!, a publication of the National Committee to Free Puerto Rican
Prisoners of War and Political Prisoners (summer 1995) http://
www.prisonactivist.org/pubs/libertad/ (emphasis added).
\565\ Imprisoned FALN Leader Claims No Regrets, San Juan Star, May
10, 1998.
\566\ Id.
\567\ Id.
---------------------------------------------------------------------------
It is obvious that Lopez has no remorse for his actions,
nor does he understand that his acts were wrong, not just
legally but morally. The group to which he belonged detonated
bombs around major metropolitan centers to draw attention to
the group's beliefs. Those bombs caused the deaths of numerous
people. He deserved to be in prison. However, true to his
beliefs, Lopez refused to renounce violence or submit to the
conditions of the President's offer of clemency, and rejected
the offer.
2. Statements of Edwin Cortes
FALN member Edwin Cortes also wrote a summer 1995,
statement for the Libertad! publication. In it he discusses his
struggle on whether or not to apply for parole:
I originally considered appearing before the parole
board, based in part on my discussions with other POWs
and sectors of the independence movement who believe
that parole should not be ruled out as a form of
struggle in the campaign for our freedom. My intentions
were to embrace all political/legal avenues available
under international and US laws including Parole,
Presidential Amnesty/Pardon/Commutation, the United
Nations, OAS, the World Court, etc. [sic] in order to
become an active political subject in the campaign to
free al [sic] Political Prisoners and Prisoners of War.
The organizing work done around the Parole Board could
also be part of a multi-prong political/legal strategy
to expose the contradictory and politically biased
parole process as it relates to political activists. As
well as to organize, educate and mobilize our community
toward the freedom of Political Prisoners and Prisoners
of War.
I have an inalienable human right to rid my nation of
colonialism, and remain committed to being a
protagonist in the struggle for national independence
and the freedom of all Puerto Rican patriots.\568\
---------------------------------------------------------------------------
\568\ Statements of the FALN and Los Macheteros members in
Libertad!, a publication of the National Committee to Free Puerto Rican
Prisoners of War and Political Prisoners (summer 1995) http://
www.prisonactivist.org/pubs/libertad/.
Again, his statements do not show remorse. Cortes insists that
he is a ``political prisoner'' or a ``prisoner of war.'' What
he does not take into account is that there was no war. The
FALN conducted their own guerrilla actions in the United
States. The FALN did not and still does not have the support of
the majority of Puerto Ricans living in Puerto Rico.\569\ He
and other members of the FALN and Macheteros continue to insist
that they are not to blame for their own actions.
---------------------------------------------------------------------------
\569\ In fact, less than 3% of Puerto Ricans voted for independence
from the United States in the last plebiscite.
---------------------------------------------------------------------------
3. Statements of Adolfo Matos
After the FALN and Macheteros prisoners were granted
clemency, the Bureau of Prisons began to review prior taped
conversations of the prisoners. A correctional officer called
an April 15, 1999, tape of FALN member Adolfo Matos to the
attention of his supervisors because of the statements he made.
Matos was speaking to a woman in Puerto Rico named ``Lydia'':
Matos. To give my life for something I believe in,
something that's not for personal gain. I liked helping
people, anybody, you know. For the justice of my
people. In this manner I get involved. And my desire
has gotten stronger, to the point where I want to
continue. Continue to fight and get involved with my
people, because I love them.
Lydia. And what about what Carlos said? If the
prisoners were to ask for a pardon, it would all be
different. Are you willing to ask for a pardon?
Matos. No. I don't have to ask for forgiveness from
anybody. Look it's like the song says . . .
Lydia. Aren't they recording?
Matos. No, I don't care, it's like that song by . . .
Lydia. Don't you feel ashamed of it?
Matos. No, no, no, my love, I have nothing to be
ashamed of, or feel that I have to ask for forgiveness.
I don't have to ask for forgiveness because my
conscience is at peace with itself. You see, it's a
question of rights[.] \570\
---------------------------------------------------------------------------
\570\ Memorandum from J.M. Guerrero, correctional officer, Lompoc
Penitentiary, to G. Bondurant, Special Investigative Agent (Sept. 7,
1999). Department of Justice production 10120001. (Exhibit 83).
It is vividly clear from his statements that Matos feels no
remorse for his action.
4. Statements of Antonio Camacho-Negron
Bureau of Prisons officials also reviewed the telephone
calls of Macheteros member Antonio Camacho-Negron.\571\ After
reviewing the calls, the officials found that the content of
the calls were a ``good indication he is persistent with
supporting his dissident cause.'' \572\ Officials called
attention to one call in particular, where he had the following
exchange with FALN attorney Jan Susler:
---------------------------------------------------------------------------
\571\ Memorandum from Jake Mendez, warden, FCI Allenwood, to David
M. Rardin, Regional Director, Bureau of Prisons, with attachment (Sept.
8, 1999). Department of Justice production 10120012-10120013, at
10120012. (Exhibit 84).
\572\ Id.
Susler. During the conference we spoke about
renouncing the violence.
Camacho. The circumstances have changed.
Susler. They agreed that they weren't going to go
back to the armed struggle.
Camacho. We don't have to accept that in a written
form. We cannot (politically) renounce the armed
struggle totally.
Susler. Let's talk more about this when we meet
again.\573\
---------------------------------------------------------------------------
\573\ Id. at 10120013.
In an August 25, 1999, telephone conversation, Camacho
``mentions the struggle his group is in and it could not
continue unless the use of arms was employed.'' \574\ In
earlier telephone calls, Camacho-Negron indicated that he would
accept the President's offer of clemency if it was given
without conditions.\575\ Finally, during an August 20, 1999
telephone conversation Camacho-Negron was discussing the
$100,000 fine he received when convicted for his activities
relating to the Wells Fargo robbery. Camacho-Negron indicated
that, ``he did not acknowledge the fine because of his
political affiliation, and his stand against the government.''
\576\ After reviewing his statements, it is hard to imagine a
poorer candidate for clemency. President Clinton did not offer
to commute Camacho-Negron's sentence because he remains
eligible for mandatory release, should he choose to abide by
the conditions imposed. However, the President did offer to
remit the fine, which Camacho-Negron rejected.
---------------------------------------------------------------------------
\574\ ``Investigator's Report Regarding Camacho-Negron.''
Department of Justice production 10120016-10120017, at 10120016.
(Exhibit 85).
\575\ Id.
\576\ Id. at 10120017.
---------------------------------------------------------------------------
5. Statements of Ricardo Jimenez
FALN member Ricardo Jimenez accepted President Clinton's
offer of clemency. After he was released from prison, he
appeared on the political talk show, Meet the Press, on
September 12, 1999.\577\ The host of the program asked Jimenez
whether he had any regret or remorse for the crimes of which he
had been convicted.\578\ Jimenez replied, ``I think basically
what we have to know, that what we were charged with, if it was
anybody else, would have served--would have served much, much
less time. Those sentences would have not been consecutive the
way they were. . . .'' \579\ When asked whether he had any
remorse for the bombings, especially those in which people were
killed or injured, Jimenez responded, ``No. I think all
precautions were taken--you know, to make sure that all human
life was preserved. And in the end . . . the measures were not
taken by the people who owned those establishments.'' \580\ It
is clear that Jimenez, like the others, has no remorse for the
FALN actions. What is even more disturbing is that he places
the blame on the owners of the businesses bombed by the FALN.
The bomb that exploded in Fraunces Tavern in January 1975 was
set to detonate during the busy lunch hour, when the restaurant
was most crowded. It is offensive that he blames the
restaurant, and his comments show that he was a poor candidate
for clemency.
---------------------------------------------------------------------------
\577\ Meet the Press (NBC television broadcast, Sept. 12, 1999).
\578\ Id.
\579\ Id.
\580\ Id.
---------------------------------------------------------------------------
6. The exception: Alberto Rodriguez
There is an exception to the lack of remorse on behalf of
the FALN and Macheteros members. Alberto Rodriguez issued a
statement in February 1995, renouncing the activities that led
to his conviction. He stated:
I now recognize that many of the assumptions that
guided my actions over twelve years ago were simply
wrong. I sincerely believed that the majority of Puerto
Ricans desired independence from the United States, and
that the only thing keeping the island from achieving
its independence was the power of the United States
Government. . . .
I realize that violence to achieve independence is
neither realistic nor right. . . .
Most specifically, I disregarded the consequences
that my conduct would have had on others. I took
violence lightly over a decade ago, and regret that.
While all of the FALN bombings that were charged as
part of the seditious conspiracy took place before I
became involved, I take responsibility for my cavalier
attitude towards violence and willingness to use
it.\581\
---------------------------------------------------------------------------
\581\ ``Statement of Alberto Rodriguez'' (Feb. 2, 1995). Department
of Justice production 005507-00512, at 00507-00509.
FALN member Carmen Valentin responded to Rodriguez'
renunciation, stating, ``only a desperate, crazed person would
take such steps.'' \582\ She added, ``I apologize for his lack
of integrity, honesty, vision. This is unacceptable behavior. I
do not wish to stand near him in this struggle and demand that
he be dubbed a persona non grata in our movement for liberation
and in our campaign for amnesty, freedom.'' \583\ It is clear
from Valentin's statements in the spring of 1995, that she had
no remorse for the crimes committed by FALN members, and in
fact, had contempt for those that did express remorse.
---------------------------------------------------------------------------
\582\ Statements of the FALN and Los Macheteros members in
Libertad!, a publication of the National Committee to Free Puerto Rican
Prisoners of War and Political Prisoners (spring 1995) http://
www.prisonactivist.org/pubs/libertad/.
\583\ Id.
---------------------------------------------------------------------------
Although it is not clear whether Alberto Rodriguez would
have been the best candidate for clemency regardless of the
campaign to grant clemency to the FALN members, at least he
recognized that his past actions were wrong and expressed
remorse for his acts. The same certainly cannot be said for his
fellow FALN members.
d. no cooperation was requested or offered from the faln and macheteros
members
There are numerous unsolved crimes about which the members
of the FALN and Macheteros terrorist organizations could have
provided information. In addition to unsolved bombings that
occurred in both the United States and Puerto Rico, there were
numerous robberies that were attributed to the groups, but
never proven. Just one example is the January 1975 bombing of
the historic Fraunces Tavern in New York City that killed four
people. The families of the victims would like to see someone
punished for the heinous crimes committed. When asked about
unsolved crimes attributed to the two terrorist groups, FBI
Assistant Director for National Security, Neil Gallagher,
mentioned that individuals associated with the Macheteros' $7.2
million armored car robbery in Connecticut remained fugitives,
in addition to open investigations of the more recent bombings
in Puerto Rico.\584\
---------------------------------------------------------------------------
\584\ Clemency for the FALN: A Flawed Decision? Hearing before the
House Committee on Government Reform, 106th Cong., 1st Sess. (1999)
(testimony of Neil Gallagher, Assistant Director for National Security,
Federal Bureau of Investigation).
---------------------------------------------------------------------------
During the hearing, Gallagher was asked whether any of the
conditions of the grant of clemency included cooperating with
law enforcement. He stated that the FBI was not asked whether
it wanted to question the prisoners, and therefore never had
the opportunity. It is of great concern to the Committee that
there was absolutely no requirement that the prisoners speak to
law enforcement regarding open investigations for which they
may have had valuable information. At the very least, they
could have provided some answers to the questions of the
victims of FALN and Macheteros crimes. However, as with all of
the other phases of this particular grant of clemency, the
victims were never considered.
VI. The Clemency Decision and the U.S. Commitment to Fighting Terrorism
The decision to offer clemency to the 16 FALN and
Macheteros terrorists has ramifications that go beyond the
typical dangers posed by the release of violent criminals back
into society. First, this is the first time in the history of
the United States that clemency has been offered to such a
large number of individuals who are all members of like-minded
terrorist organizations. The President's failure to require
cooperation to solve numerous unsolved murders, coupled with
the failure to require any type of contrition by the
individuals or the group, sends a message that an organization
has received preferential treatment. This is troubling because
terrorist organizations do not necessarily act in a rational
manner and might indeed be encouraged by a group being singled
out for preferential treatment. As Neil Gallagher, Assistant
Director for National Security, Federal Bureau of
Investigation, testified before the Committee on Government
Reform on September 21, 1999: ``The challenge before us is the
potential that the release of these individuals will
psychologically and operationally enhance the ongoing violent
and criminal activities of terrorist groups, not only in Puerto
Rico, but throughout the world.'' \585\
---------------------------------------------------------------------------
\585\ Exhibit 17--Draft FBI statement.
---------------------------------------------------------------------------
A related concern is how this decision will impact our
relations with foreign governments. Eliminating terrorist
groups and initiatives requires foreign governments to
cooperate with U.S. law enforcement initiatives. The decision
to grant clemency to the FALN and Macheteros terrorists sends a
clear message that our demands for severe punishment, and our
willingness to mete out severe punishment, can be hollow. Of
greater significance, it sends a message of encouragement to
terrorists themselves. Although supporters of the clemency
decision, and the President himself, often point to President
Carter's decision to exercise clemency to individuals who
attempted to assassinate President Truman and Members of
Congress, this is hardly a good model to follow.\586\
---------------------------------------------------------------------------
\586\ The rationale for one of President Carter's grants of
clemency was that the inmate had a terminal illness. There is no
analogous situation with the 16 terrorists recently offered clemency.
---------------------------------------------------------------------------
Another area of concern is the intellectual inconsistency
inherent in the rationale for the decision. When the United
States decided to strike at the terrorist organization of Osama
bin Laden, the President did not target only those proven to
have committed acts of violence. He struck at the organization
as a whole, and he presumably did so because all members were
deemed to be responsible for the atrocities committed against
others. Similarly, when Terry Nichols, the co-conspirator in
the Oklahoma City bombing that killed 168 individuals, was
given a life sentence without the possibility of parole, the
President did not deplore the sentence. Thus, the White House
has used a very different standard for the FALN terrorists than
the standard used in statements or actions that are directed at
other terrorist organizations.
Finally, this section draws attention to the very curious
repatriation of terrorist Silvia Baraldini to Italy. This
decision was finalized within 2 weeks of the decision to offer
clemency to the 16 FALN members. This is particularly curious
because Baraldini herself had been involved with the FALN cause
and its members.
a. the international message
Simply put, the President's decision to release U.S.
terrorists has seriously eroded this country's moral authority
to require other countries to deal firmly with terrorist
organizations. By offering the 16 FALN and Macheteros
terrorists a lenient deal, the President has undercut our
ability to require other countries to crack down on terrorist
groups that threaten the safety of Americans at home and
abroad. Once lost, it is difficult to recapture the moral high
ground.
The U.S. Government spent approximately $50 million in the
1970's and 1980's to put an end to FALN and Macheteros
violence.\587\ Indeed, the convictions of those recently
offered clemency led to the end of most of the FALN terrorist
activities in the United States. The recent decision, however,
sends a different message about terrorist organizations,
particularly because the clemency appears to be directed more
at a group than at individuals. As the FBI made clear in a
written statement prepared for the Committee's September 21,
1999, hearing:
---------------------------------------------------------------------------
\587\ Interview with Marlene Hunter, Assistant Special Agent in
Charge (San Juan, Puerto Rico), Federal Bureau of Investigation (Oct.
7, 1999).
The FALN and Macheteros terrorist groups continue to
pose a danger to the US. Government and to the American
people, here and in Puerto Rico. . . . The challenge
before us is the potential that the release of these
individuals will psychologically and operationally
enhance the ongoing violent and criminal activities of
terrorist groups, not only in Puerto Rico, but
throughout the world.\588\
---------------------------------------------------------------------------
\588\ Draft statement of Neil Gallagher. (Exhibit 17).
In a statement made last year before the Senate Select
Committee on Intelligence, FBI Director Freeh had this to say
---------------------------------------------------------------------------
about Puerto Rican terrorist groups:
Although the last terrorist incident involving Puerto
Rican terrorist groups was a bombing in Chicago in
December, 1992, these groups continue to be of concern.
Between 1982 and 1994, approximately 44 percent of the
terrorist incidents committed in the United States and
its territories are attributed to Puerto Rican
terrorist groups. Efforts are continuing to locate
fugitives still at large from these incidents.
Puerto Rican terrorist groups believe the liberation
of Puerto Rico from the United States justifies the use
of violence to obtain that objective. These groups
characterize their terrorism activities as ``acts of
war'' against invading forces and, when arrested, they
consider themselves to be ``prisoners of war'' who must
be treated as such according to the Geneva Convention.
Clandestine behavior and security are of utmost
importance in these group's activities.\589\
---------------------------------------------------------------------------
\589\ Threats to National Security. Hearing before the Senate
Select Committee on Intelligence, 105th Cong., 2nd Sess. (Jan. 28,
1998) (testimony of Louis J. Freeh, Director, Federal Bureau of
Investigation).
It is particularly disturbing that the White House has not
offered a response to this analysis. If the President was privy
to information that casts doubt on this assessment, it should
be shared with the public. In the absence of the White House
addressing the FBI's concerns, however, Congress and the
American people are left with the impression that the President
simply ignored this concern.
Another matter of concern is the seeming confusion within
the administration about whether the President's actions have
any international ramifications. The following exchange between
journalist Tim Russert and National Security Adviser Berger
illustrates this point: \590\
---------------------------------------------------------------------------
\590\ Meet the Press (NBC television broadcast, Sept. 19, 1999).
Russert. The President did not seek your advice on
this?
Berger. This is not--again, I do foreign policy.
Puerto Rico is not an issue that comes within the
jurisdiction of the NSC.
As is obvious from this exchange, Mr. Berger is attempting to
convey the impression that the President did not seek his
advice. Notwithstanding this public representation, in a
handwritten note just 2 months before this exchange, the
President asked Berger: ``What about the prisoners[?]'' \591\
---------------------------------------------------------------------------
\591\ Handwritten note from President William J. Clinton, to Samuel
Berger, National Security Adviser. (Exhibit 86).
---------------------------------------------------------------------------
Notwithstanding Mr. Berger's attempt to either avoid the
question or mislead the audience, Berger himself had stated the
previous year: ``Terrorism is not just [a] law enforcement or
domestic issue. It's a national security and foreign policy
issue.'' \592\ Thus, there appears to be great confusion in the
administration about whether terrorism within the United States
has any international ramifications. When the political results
for this administration are negative, Mr. Berger argues that
domestic terrorism is not a matter within the jurisdiction of
the National Security Council. When speaking under different
circumstances, however, it appears that Mr. Berger's message
could not be more different, and he clearly states that
terrorism is a national security issue and it is a foreign
policy issue. This vacillation sends an unfortunate message to
terrorist organizations and to the foreign governments that
must respond to terrorist organizations. It also makes it
appear that the U.S. Government somehow distinguishes U.S.
terrorists from other nations' terrorists.
---------------------------------------------------------------------------
\592\ Meet the Press (NBC television broadcast, Sept. 19, 1999).
---------------------------------------------------------------------------
b. an inconsistent policy on dealing with terrorists
At the time that the controversy over the clemency offers
was at its most pronounced, National Security Adviser Sandy
Berger appeared on television to defend the President's
decision. Nowhere is the inconsistency in the administration's
policy more apparent than in his statements. After pointing out
that ``these people have served between seventeen and nineteen
years,'' and after misrepresenting that they were not
``personally involved in violence,'' Mr. Berger says that he
finds the President's explanation ``perfectly reasonable.'' Mr.
Berger then goes on, however, to explain that the
administration's record against terrorists ``is the strongest
of any President in history.'' To establish this claim, he
points to the apprehension of the World Trade Center bombers
and the fight against those who allegedly destroyed the two
United States embassies in Africa in 1997. Thus, he seeks
credit for a strong response against the terrorist
organizations that have recently committed acts of violence and
he downplays the need for a harsh response where the FALN is
concerned.
This approach to the FALN matter was used by the President
when he stated that none of the FALN terrorists ``had been
convicted of doing bodily harm to anyone.'' \593\ Yet this was
far from the standard used when dealing with the terrorist
activities of Osama bin Laden or the World Trade Center
bombers. In the case of the U.S. strike against Osama bin
Laden, military aircraft dropped bombs specifically to kill
members of the terrorist organization. There was no
constitutional due process, nor was there an attempt to target
only those who had committed violent acts. Rather, the
President ordered a raid designed to disable the organization
by killing its members. On the other hand, the FALN and
Macheteros terrorists did receive due process of U.S. law and
were sentenced accordingly. There appears to be no reason to
undercut what the courts did, particularly where the President
believes that, in other circumstances, U.S. legal due process
is irrelevant.
---------------------------------------------------------------------------
\593\ President William J. Clinton, press conference (Sept. 9,
1999).
---------------------------------------------------------------------------
In the case of the prosecutions and convictions of the
World Trade Center bombers, some of those given lengthy prison
sentences did not literally commit acts of violence. For
Congress, for most Americans, and certainly for international
observers, it is difficult to understand why FALN terrorists
should not serve their full sentences, when it is acceptable to
deploy missiles against the followers of Osama bin Laden or
seek long sentences for some of the World Trade Center
conspirators. This is particularly true given the fact that
none of the 16 terrorists offered clemency showed any
contrition for their activities, nor did they provide any
cooperation to solve the numerous crimes that remain unsolved.
In short, the President appears to be using a standard to
justify his decision to offer clemency to the 16 terrorists
that has not been used with other terrorist organizations.
Leaving aside the mischaracterization as to whether these
terrorists are actually non-violent, the American people, and
the international community, is left to ponder why some
terrorists are given favored treatment. There appears to be,
given the information that has been made available to date by
the White House, no rational explanation for this
inconsistency.
c. repatriation of an faln sympathizer to italy \594\
---------------------------------------------------------------------------
\594\ A full explanation of this issue can be found at Appendix
III.
---------------------------------------------------------------------------
In 1984, Silvia Baraldini, an Italian national who had
lived in the United States since 1961, was sentenced to 43
years in prison and fined $50,000 for terrorist crimes linked
to radical political groups, including the FALN, ``the Family''
and the May 19 Communist party.\595\ Her crimes included
conspiracy and racketeering connected to armed robberies, as
well as kidnapping and contempt of court.\596\ The robberies
were conducted to help finance terrorist activities within the
United States.\597\
---------------------------------------------------------------------------
\595\ Baraldini v. Thornburgh, 884 F.2d 615, 616-617 (D.C. Cir.
1989).
\596\ Baraldini v. Meese, 691 F. Supp. 432, 433, 436 (D.D.C. 1988).
\597\ Denise Lavoie, Italian Radical Moved to New York in
Preparation for Return, the Associated Press, Aug. 19, 1999, PM cycle.
---------------------------------------------------------------------------
The contempt of court conviction was based on Baraldini's
refusal to testify about her involvement with the FALN before a
Federal grand jury investigating four Wall Street bombings that
occurred on February 28, 1982.\598\ Baraldini had the only
carbon copy of an FALN communique claiming responsibility for
the bombings and the original communique was found inside a
telephone booth four blocks from her apartment.\599\ The
attacks, which occurred at the New York Stock Exchange, the
American Stock Exchange, the Chase Manhattan Bank, and Merrill
Lynch,\600\ gravely injured three police officers.\601\
---------------------------------------------------------------------------
\598\ Thornburgh, 884 F.2d at 617.
\599\ Regional News, New York, United Press International, Mar. 21,
1983, AM cycle.
\600\ Thornburgh, 884 F.2d at 617.
\601\ Two More Found Guilty for Refusing to Talk in FALN Inquiry,
N.Y. Times, Jan. 21, 1984, at A1.
---------------------------------------------------------------------------
On August 24, 1999, the Justice Department announced
Baraldini's transfer to Italy under the terms of the Strasbourg
Convention.\602\ This transfer occurred less than 2 weeks after
President Clinton's August 11, 1999, clemency offer to the 16
FALN and Macheteros terrorists. Although Baraldini is scheduled
to serve the remainder of her U.S. prison sentence under
similar conditions of incarceration in Italy,\603\ there are
already indications that Italian authorities have been lax in
enforcing the agreed to terms.\604\ As with the offers of
clemency to the 16 United States-citizen FALN and Macheteros
members, the Committee is concerned that this Italian-born FALN
conspirator has been given lenient treatment. The Committee is
also concerned that Baraldini was given preferential treatment
even though she failed to cooperate with U.S. law enforcement.
---------------------------------------------------------------------------
\602\ See Department of Justice statement regarding the transfer of
Silvia Baraldini (Aug. 24, 1999) at Appendix III, Exhibit 1.
\603\ Letter from Oliviero Diliberto, Italian Minister of Justice,
to Janet Reno, United States Attorney General (July 28, 1999).
\604\ As part of the transfer, Italy agreed to Baraldini's United
States' conditions of confinement, including ``that whenever she is
transported outside the prison, she must be handcuffed with a waist
chain attached to the handcuffs.'' Letter from Oliviero Diliberto,
Italian Minister of Justice, to Janet Reno, United States Attorney
General, (July 28, 1999) (see Appendix III, Exhibit 4); letter from
James K. Robinson, United States Assistant Attorney General, to Giorgio
Lattanzi, General Director, Penal Affairs, Italian Ministry of Grace
and Justice, including Appendices A and B (May 25, 1999) and letter
from James K. Robinson, United States Assistant Attorney General, to
Giorgio Lattanzi, General Director, Penal Affairs, Italian Ministry of
Grace and Justice, including Appendices A and B (revised) (June 4,
1999) (see Appendix III, Exhibit 5 at 000014). Regardless of these
conditions, during the Aug. 25, 1999, transfer flight from the United
States to Italy, which was conducted on the Prime Minister of Italy's
private jet, Baraldini ``complained that U.S. prison officials had put
her in chains.'' Prisoner Welcomed Home, Palm Beach Post, Aug. 26,
1999, at 9A. The Italian guards obviously answered her complaints
because Baraldini descended from the plane in Italy ``unrestrained''
and ``[w]ithout handcuffs.'' Id.; Jorge Pina, Rights-Italy: Baraldini
Returns After 17 Years in U.S. Jails, Inter Press Service, Aug. 25,
1999. Although this may be a small point, it does not bode well for
adherence to the agreement between the United States and Italy.
---------------------------------------------------------------------------
VII. The Justice Department's Decision To Prevent the FBI From
Submitting an Opening Statement
On September 21, 1999, the Committee held a hearing
regarding the President's grant of clemency to members of the
FALN and Macheteros terrorist groups. In accordance with its
rules, the Committee asked the Federal Bureau of Investigation
to provide a written copy of its opening statement 24 hours
prior to the hearing. Specifically, the FBI was requested to
comment on historical activities of the FALN and the
Macheteros, and to provide an assessment of their current
terrorist capability.
The day before the hearing, the Committee learned that the
Department of Justice had denied the FBI permission to submit
its written statement. In response to this information,
Committee Chairman Dan Burton wrote to Attorney General Reno
that day requesting that the Justice Department not prevent the
FBI from submitting its written statement. Chairman Burton
wrote:
As you know, the President has asserted executive
privilege over records relating to his clemency
decision. The President's decision has prevented the
Committee and the public from determining any of his
reasons for granting clemency.
However, the Committee's hearing will examine
important issues relating to the threat posed by the
FALN both in the past, and in the present. Accordingly,
I expect that most of Assistant Director Gallagher's
testimony would not have touched on issues covered by
executive privilege.\605\
---------------------------------------------------------------------------
\605\ Letter from Dan Burton, chairman, Committee on Government
Reform, to Attorney General Janet Reno, (Sept. 20, 1999), at 1.
(Exhibit 87).
The view of the chairman was confirmed by Neil Gallagher, who
on September 21, 1999, testified as follows regarding his
---------------------------------------------------------------------------
written statement:
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's 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 we
were eventually told it was covered by executive
privilege.\606\
---------------------------------------------------------------------------
\606\ Clemency for the FALN: A Flawed Decision? Hearing before the
House Committee on Government Reform, 106th Cong., 1st Sess. (Sept. 21,
1999) (remarks of Neil Gallagher).
Apparently, by the time Assistant Director Gallagher testified
at this Committee's September 21, 1999, hearing, the Department
of Justice had already determined which portions of his
statement were covered by executive privilege, and had informed
Gallagher of its determination. Nevertheless, the Justice
Department still failed to provide the Committee with a
redacted version of the statement. Ultimately, the Committee
was forced to issue a subpoena to the Justice Department in
order to get the redacted statement. The statement was
produced, pursuant to subpoena, on September 23, 1999.\607\
---------------------------------------------------------------------------
\607\ Exhibit 17--Draft FBI statement.
---------------------------------------------------------------------------
Upon reviewing the statement, it was apparent that only a
very small part of the statement was covered by executive
privilege. It is disappointing that the Justice Department
would not work to accommodate a congressional committee in
anticipation of a hearing. In addition, it is unfortunate that
the Committee was forced to resort to obtaining a document by
subpoena which should have been provided voluntarily.
Furthermore, when this matter was brought to the attention of
the Attorney General, she made no effort whatsoever to provide
the statement--even though there were no outstanding issues to
resolve and it would have been relatively simple for her staff
to transmit the statement to this Committee.
conclusion
The President of the United States has the power to free
any Federal prisoner. With this power comes great
responsibility. The President should not mislead the American
people as to why he has exercised his power. This is what he
appears to have done.
In the case of the clemency offer to the 16 FALN and
Macheteros terrorists, the President has yet to provide a full
and accurate explanation of his actions. The many
inconsistencies between fact and the President's public
positions create a presumption of impropriety. The President
purposefully misrepresented facts, or facts were withheld from
him. Either possibility is unacceptable.
The Committee believes that the President should withdraw
his claim of executive privilege. The American people should be
able to see for themselves what advice was given to the
President, whether the safety of the American people was taken
into account, and whether political considerations beyond those
identified in this report played any part in the ultimate
decision.
The Committee also finds that the offer of clemency to
unrepentant terrorists who have done nothing to discourage
violence or solve unsolved crimes diminishes our moral
authority in the fight against international terrorism. The
appearance that the United States is willing to undercut its
own legal system in response to political pressure is an
unfortunate precedent.
[The documents referred to follow:]
A P P E N D I C E S
------
Appendix I.--The FALN and Macheteros in Their Own Words
This appendix is a collection of communiques, manifestoes,
and other documents produced by Puerto Rican pro-independence
terrorists during the 1970's, 1980's and 1990's, which have
been provided to this Committee. Included in these documents
are the following representative statements, published by the
FALN after its bombings in the 1970's, which show the violent
and seditious nature of the 16 terrorists to whom President
Clinton offered clemency:
[T]he Puerto Rican people are organizing and arming
in order to form a People's Revolutionary Army which
will rid Puerto Rico of Yanki colonialism. We have
opened two fronts, one in Puerto Rico, the other in the
United States . . .
[W]e fully realize that the people will not gain
justice by demonstrating and shouting. The only justice
that can be handed out to the murderers of our people
is revolutionary justice through the implementation of
revolutionary violence. . . . For each repressive act
taken upon our people and fighters for Puerto Rican
independence, the FALN will respond with revolutionary
violence.
We, FALN, the Armed Forces of the Puerto Rican
Nation, take full responsibility for the especially-
detonated bomb that exploded today at Fraunces Tavern
with reactionary corporate executives inside. . . . You
have unleashed a storm from which you comfortable
Yankis cannot escape.
To the FALN the issue is very clear: at no time can
we allow an attack by the enemy upon our people to go
unanswered. Fascist terror is met with revolutionary
violence.
These actions demonstrate to the United States
Government that the mobile guerrilla units of the FALN
can hit anywhere in the United States. . . . We also
want to express our solidarity with the victorious
people of Vietnam, Cambodia, and Laos. Their victory is
our victory!
Only a protracted, organized armed struggle can force
the yanki invaders out of Puerto Rico.
We also wish to communicate our profound sorrow on
the death of Chairman Mao Tse-Tung, whose teaching has
inspired the FALN every step of the way.
[T]o be truly revolutionary, a party must educate and
organize the masses for the seizure of power by way of
an organized and disciplined vehicle, a People's
Revolutionary Army. . . . The importance of a People's
Revolutionary Army is that it arms the masses and
produces a cadre to lead the masses to victory and the
development of a Marxist-Leninist Party, tried and
tested under fire . . .
[The documents referred to follow:]
(493)
Appendix III.--Repatriation of an FALN Sympathizer to Italy
In 1984, Silvia Baraldini, an Italian national who had
lived in the United States since 1961, was sentenced to 43
years in prison and fined $50,000 for terrorist crimes linked
to radical political groups, including the FALN, the May 19
Communist party, and ``The Family.'' \1\ Her crimes included
conspiracy and racketeering connected to armed robberies, as
well as kidnapping and contempt of court.\2\ The robberies were
conducted to help finance terrorist activities within the
United States.\3\
---------------------------------------------------------------------------
\1\ Baraldini v. Thornburgh, 884 F.2d 615, 616-617 (D.C. Cir.
1989); Department of Justice statement regarding the transfer of Silvia
Baraldini (Aug. 24, 1999) [hereinafter Department of Justice statement]
(Exhibit 1).
\2\ Baraldini v. Meese, 691 F. Supp. 432, 433, 436 (D.D.C. 1988);
Exhibit 1--Department of Justice statement.
\3\ Denise Lavoie, Italian Radical Moved to New York in Preparation
for Return, the Associated Press, Aug. 19, 1999, PM cycle.
---------------------------------------------------------------------------
On August 24, 1999, the Department of Justice announced
Baraldini's transfer to Italy under the terms of the Strasbourg
Convention.\4\ This transfer occurred less than 2 weeks after
President Clinton's August 11, 1999, clemency offer to the 16
FALN and Macheteros terrorists.
---------------------------------------------------------------------------
\4\ Exhibit 1--Department of Justice statement.
---------------------------------------------------------------------------
As with the offers of clemency to the 16 United States-
citizen FALN and Macheteros terrorists, the Committee is
concerned that this Italian-born FALN conspirator has been
given lenient treatment. The Committee is also concerned that
Baraldini was given preferential treatment even though she
failed to cooperate with U.S. law enforcement.
A. Baraldini's Background
Baraldini, a 51-year-old Italian national and daughter of a
diplomat, lived in the United States for 38 years.\5\ She moved
here in 1961,\6\ graduated from the University of Wisconsin,
and was involved in the anti-war and civil rights movements.\7\
Baraldini worked as a legal assistant \8\ to Susan Tipograph, a
lawyer who has represented several FALN terrorists.\9\
Baraldini also actively participated in radical political
groups, including the FALN,\10\ the May 19 Communist party,\11\
and ``The Family.'' \12\
---------------------------------------------------------------------------
\5\ Exhibit 1--Department of Justice statement; Larry Neumeister,
Radical Will Serve out Term in Italian Prison, the Record (Bergen
County, NJ), Aug. 25, 1999, at A4.
\6\ Denise Lavoie, Imprisoned Italian to be Released Soon, the
Associated Press, Aug. 3, 1999, PM cycle.
\7\ Mark Spencer, Prisoner to Return to Her Native Italy, the
Hartford Courant, Aug. 8, 1999, at B2.
\8\ Dan Collins, FBI Agent Shows Up for News Conference by Radical
Group, United Press International, Nov. 12, 1982, AM cycle.
\9\ See, e.g., Guerra v. Meese, 614 F. Supp. 1430 (D.D.C. 1985);
Court Papers Say FALN Leader's Lawyer Aided in Escape, the Associated
Press, June 2, 1983, AM cycle.
\10\ Thornburgh, 884 F.2d at 617; United Press International, Jan.
20, 1984, AM cycle.
\11\ Meese, 691 F. Supp. at 436. The May 19 Communist party, named
to commemorate the birth date of Ho Chi Minh and Malcolm X, is an
organization sympathetic to other radical groups, especially the FALN
and the New African Freedom Front. Dan Collins, United Press
International, Nov. 12, 1982, AM cycle. ``Members of [Baraldini's May
19 group] have participated in numerous armed robberies where police
officers were wounded or killed.'' Thornburgh, 884 F.2d at 617.
Baraldini was also the spokeswoman for the May 19 Communist party. Dan
Collins, United Press International, Nov. 12, 1982, AM cycle.
\12\ ``The Family'' is ``a revolutionary organization whose members
advocate the overthrow of the U.S. government through violent means.''
Meese, 691 F. Supp. at 436 (citing plaintiff's Exhibit 8). Baraldini
was a member of ``The Family's secondary team, a group of women that
facilitated the crimes by arranging for cars, safe houses, and
reconnaissance.'' U.S. v. Ferguson, 758 F.2d 843, 874 (2nd Cir. 1984).
---------------------------------------------------------------------------
B. Baraldini's Terrorist and Criminal Acts
Baraldini committed numerous terrorist and criminal
acts.\13\ For example, in 1983, Baraldini was held in contempt
of court for her refusal to testify about her involvement with
the FALN before a Federal grand jury investigating four Wall
Street bombings that occurred on February 28, 1982.\14\
Baraldini had the only carbon copy of an FALN communique
claiming responsibility for the bombings.\15\ The original
communique was found inside a telephone booth four blocks from
her apartment.\16\ The attacks, which occurred at the New York
Stock Exchange, the American Stock Exchange, the Chase
Manhattan Bank, and Merrill Lynch,\17\ gravely injured three
police officers.\18\
---------------------------------------------------------------------------
\13\ Exhibit 1--Department of Justice statement.
\14\ Thornburgh, 884 F.2d at 617. See also letter from Janet Reno,
United States Attorney General, to Giovanni Maria Flick, Italian
Minister of Grace and Justice (Apr. 14, 1998) (Exhibit 2); United Press
International, Jan. 20, 1984, AM cycle.
\15\ United Press International, Jan. 20, 1984, AM cycle.
\16\ Id.
\17\ Thornburgh, 884 F.2d at 617.
\18\ Two More Found Guilty for Refusing to Talk in FALN Inquiry,
N.Y. Times, Jan. 21, 1984, at A1.
---------------------------------------------------------------------------
In 1981, Baraldini attempted a $1.6 million robbery of a
Brinks armored truck in Rockland County, NY.\19\ A Brinks guard
and two police officers were killed in the incident.\20\
Baraldini was convicted of racketeering and conspiracy.\21\ One
year earlier, Baraldini participated in the attempted-armed
robbery of an armored truck in Danbury, CT.\22\
---------------------------------------------------------------------------
\19\ Exhibit 1--Department of Justice statement. See also John
Pryor, United Press International, Nov. 18, 1982, AM cycle.
\20\ Exhibit 1--Department of Justice statement. See also Exhibit
2--Letter from Janet Reno, United States Attorney General, to Giovanni
Maria Flick, Italian Minister of Grace and Justice (Apr. 14, 1998).
\21\ Exhibit 2--Letter from Janet Reno, United States Attorney
General, to Giovanni Maria Flick, Italian Minister of Grace and Justice
(Apr. 14, 1998). See also Judgment N 40/99, the Court of Appeal of
Rome, Italy, Criminal Section IV (July 7, 1999) (translation)
(Continuance of Baraldini's U.S. sentence) and Order, the Court of
Appeal of Rome, Italy, Criminal Section IV (July 20, 1999)
(translation) (Making corrections to the July 7, 1999, judgment)
[hereinafter Italian judgment] (Exhibit 3).
\22\ Ferguson, 758 F.2d at 854.
---------------------------------------------------------------------------
In 1979, Baraldini helped Black Liberation Army leader
Joanne Chesimard successfully escape from the Clinton State
Correctional Facility in Clinton, NJ.\23\ During this crime,
Baraldini kidnapped two prison guards.\24\ Chesimard was
serving a life sentence for the murder of a New Jersey State
trooper.\25\ After her escape from New Jersey prison, Chesimard
fled to Cuba.\26\
---------------------------------------------------------------------------
\23\ Ferguson, 758 F.2d at 854. See also Exhibit 1--Department of
Justice statement; Salvatore Arena, Italian Sent Home to Jail, Daily
News (New York), Aug. 25, 1999, AM cycle.
\24\ Ferguson, 758 F.2d at 854.
\25\ Exhibit 1--Department of Justice statement.
\26\ Angela Singer, Torture of Women Prisoners in America--The Land
of the Free, Universal News Services, May 18, 1990.
---------------------------------------------------------------------------
C. Baraldini's Convictions and Sentences
In 1984, Baraldini was convicted in Federal court in New
York of, and sentenced for, the following crimes: \27\
---------------------------------------------------------------------------
\27\ U.S. v. Baraldini, 803 F.2d 776, 777 (2nd Cir. 1986); Exhibit
3--Italian judgment.
------------------------------------------------------------------------
Sentence
Crime Statute (years)
------------------------------------------------------------------------
Conspiracy to violate the RICO 18 U.S.C. Sec. Sec. 20 years
Statute. 1961, 1962(d). $25,000
Substantive Violation of RICO 18 U.S.C. Sec. Sec. 20 years
Statute. 1961, 1962(c). $25,000
Contempt of Court................... 18 U.S.C. Sec. 401.... 3 years
------------------------------------------------------------------------
The court required that the sentences be served
consecutively, and recommended that Baraldini receive no
parole.\28\ Because of accumulated good conduct credits,
however, Baraldini's mandatory release date is in March
2008.\29\
---------------------------------------------------------------------------
\28\ Baraldini, 803 F.2d at 777.
\29\ Exhibit 1--Department of Justice statement.
---------------------------------------------------------------------------
D. Italy's Attempts to Win Baraldini's Freedom
In 1989, 300 Italian lawmakers, predominately representing
the left, began a campaign to win Baraldini's freedom.\30\
These lawmakers requested that Italy's President, Francesco
Cossiga, ask for a grant of clemency or, at a minimum,
deportation to Italy.\31\ Emilio Vesce, a Radical party leader,
stated Baraldini's release would be a ``humanitarian gesture''
and that this matter was not about ``dealing with questions of
guilt or innocence.'' \32\ Supporters cited a variety of
reasons to release Baraldini, including claims that she
received an excessive sentence, ``was not convicted of
committing violent acts herself,'' and received improper
medical attention and insufficient exercise while in
prison.\33\
---------------------------------------------------------------------------
\30\ Clyde Haberman, Italy Lawmakers Seek U.S. Convict's Release,
the New York Times, Mar. 5, 1989, at A8.
\31\ Id.
\32\ Id.
\33\ Id. In contrast to these claims, however, the Second Circuit
held that ``Baraldini's sentence was not excessive,'' Ferguson, 758
F.2d at 856, and the D.C. Circuit held that she ``personally
participated in the violent and criminal activities,'' Thornburgh, 884
F.2d at 620. Baraldini also received medical attention, including
``surgery after developing ovarian cancer,'' while in prison. Angela
Singer, Torture of Women Prisoners in America--The Land of the Free,
Universal News Services, May 18, 1990.
---------------------------------------------------------------------------
This constant pressure by certain Italian lawmakers to
reverse the United States position on Baraladini's extradition
continued for the next 10 years. For example, Italian President
Oscar Luigi Scalfaro ``raised the issue with [President
Clinton]'' during a 1996 visit.\34\ In April 1998, Italy
requested for the fifth time that Baraldini be allowed to serve
out the remainder of her sentence in Italy.\35\ The following
month, in May 1998, over 200 Italian lawmakers asked Prime
Minister Romano Prodi to request Baraldini's transfer to
Italy.\36\ Most of these lawmakers belonged to the ruling
center-left party.\37\
---------------------------------------------------------------------------
\34\ Deputies Urge Prodi to ask U.S. for Transfer of Italian
Prisoner, Agence France Presse, May 4, 1998.
\35\ Id.
\36\ Id.
\37\ Id.
---------------------------------------------------------------------------
Through 1998, however, the United States adamantly refused
every transfer request, five refusals in total,\38\ to allow
Baraldini to serve the rest of her sentence in Italy. The
United States based these rejections on a variety of reasons,
including the United States' tough stance against terrorism and
crime, the severity of Baraldini's crimes, Baraldini's lack of
remorse, Baraldini's apparent refusal to cooperate with
investigators, and the risk Baraldini would not serve her full
term or that she would receive lenient jail treatment in
Italy.\39\
---------------------------------------------------------------------------
\38\ Id.; Exhibit 2--Letter from Janet Reno, United States Attorney
General, to Giovanni Maria Flick, Italian Minister of Grace and Justice
(Apr. 14, 1998).
\39\ Exhibit 2--Letter from Janet Reno, United States Attorney
General, to Giovanni Maria Flick, Italian Minister of Grace and Justice
(Apr. 14, 1998).
---------------------------------------------------------------------------
E. The Clinton Administration's Sudden Reversal on Baraldini's
Repatriation to Italy
On February 3, 1998, a United States military jet severed a
cable supporting a gondola ascending Mount Cermis near Aviano,
Italy.\40\ Twenty people were killed in this tragedy.\41\ After
a United States military aviator was acquitted on 20 counts of
involuntary manslaughter, it was reported that an outraged
Italian Prime Minster Massimo D'Alema agreed to tone down
demands to President Clinton punish those responsible for the
accident ``if the United States handed over Silvia Baraldini.''
\42\ Prime Minister D'Alema denied the charges in March
1999.\43\ However, on April 10, 1999, media outlets reported
that anonymous sources said ``[t]he United States is
considering returning a jailed radical to her native Italy, a
gesture that could appease anger over acquittal of an American
military pilot in 20 deaths at an Italian ski resort.'' \44\
The reports also stated that Department of Justice officials
were making plans to meet with their Italian counterparts to
discuss the transfer.\45\
---------------------------------------------------------------------------
\40\ D'Alema expects U.S. to Find and Punish Guilty Parties in
Cable Car Crash, the Associated Press Worldstream, Mar. 9, 1999.
\41\ Id.
\42\ Id.
\43\ Id.
\44\ Anne Gearnan, U.S. Considers Return of Prisoner to Italy;
Gesture Eyed in Light of Gondola Deaths, the Boston Globe, at A8. See
also U.S. Agrees to Allow Jailed Italian Radical to Finish Term at
Home, Chicago Tribune, June 12, 1999, at 19; U.S. Might Free Italian
Radical: Move Might Appease Anger Over Gondola Deaths, the Gazette
(Montreal), Apr. 10, 1999, at A22.
\45\ Anne Gearnan, U.S. Considers Return of Prisoner to Italy;
Gesture Eyed in Light of Gondola Deaths, the Boston Globe, at A8.
---------------------------------------------------------------------------
On June 11, 1999, U.S. Ambassador to Italy Thomas Foglietta
announced Baraldini's transfer to Italy, stating that ``the
gesture was `important' for the American-Italian partnership.''
\46\ Ambassador Foglietta also commented that ``I believe that
today's agreement will strengthen that partnership.'' \47\
Reports also stated that Baraldini's transfer was a ``reward
for Italy's unwavering support of NATO during the Kosovo
conflict, as well as a way to ease anger over the acquittal of
an American military pilot.'' \48\ A Baraldini article in
Milan, Italy's newspaper, Il Giorno, began with the headline
``In Exchange for Cermis.'' \49\ However, the Department of
Justice claims Baraldini's release had nothing to do with the
Aviano tragedy or Kosovo.\50\ The Committee has not determined
the administration's underlying motivations for Baraldini's
return to Italy.
---------------------------------------------------------------------------
\46\ U.S. Agrees to Allow Jailed Italian Radical to Finish Term at
Home, Chicago Tribune, June 12, 1999, at 19.
\47\ Id.
\48\ Id.
\49\ Ellen Knickmeyer, Italian Convicted in United States Gets
Hero's Welcome on Transfer to Rome, Associated Press Worldstream, Aug.
25, 1999.
\50\ Denise Lavoie, Imprisoned Italian to be Released Soon, the
Associated Press, Aug. 3, 1999, PM cycle.
---------------------------------------------------------------------------
More than 2 months after Ambassador Foglietta's
announcement, the Department of Justice first announced details
about the agreement, stating the transfer was a result of
``many years of discussion between the United States and
Italy.'' \51\ Baraldini would be repatriated to Italy pursuant
to the Strasbourg Convention.\52\ The Department of Justice
found that ``[a]s negotiated, [Baraldini's] transfer satisfies
the two goals of prisoner transfer set out in the Strasbourg
Convention: (1) the ends of justice, in that she will serve out
her entire United States sentence in a manner comparable to the
service of the sentence in the United States, and (2) the
social rehabilitation of the prisoner, in that she will serve
the remainder of that sentence in Italy close to her family.''
\53\ Since the United States had refused Baraldini's transfer
for 10 years, one must question the sudden reversal in the U.S.
position, especially when the same goals could not be met for
the 1998 request for transfer.
---------------------------------------------------------------------------
\51\ Exhibit 1--Department of Justice statement.
\52\ If certain criteria are met, the Strasbourg Convention
(formally known as the Council of Europe Convention on the Transfer of
Sentenced Persons) ``allows a foreign national to transfer to his or
her home country to serve the remainder of a sentence imposed by the
country in which the foreign national committed an offense.'' Exhibit
1--Department of Justice statement. The United States entered
Strasbourg Agreement into force on July 1, 1985.
\53\ Exhibit 1--Department of Justice statement.
---------------------------------------------------------------------------
First, there is legitimate concern as to whether Baraldini
will fully serve out her prison sentence in conditions similar
to those imposed in the United States. Although news reports
claim that Baraldini's transfer was made possible because
``[a]n obstacle was removed when an appeals court in Rome
formally recognized U.S. prison sentences,'' \54\ there is
still an ever-present concern over Italy's ``notoriously lax
and leaky prisons.'' \55\ Over the years, the United States has
had to ``rebuff several Italian governments . . . [for] the
tradition of granting amnesties to inmates, including convicted
terrorists.'' \56\ Italy's former Ambassador to Moscow, Sergio
Romano, believes that the Italian system is a disaster, where
``the guilty are left free to roam the streets.'' \57\ Noting
his country's failure to ``guarantee its citizens justice,''
Ambassador Romano also warned in 1998 that ``it was clear why
the Americans have no intention of allowing Silvia Baraldini to
serve her prison sentence in Italy.'' \58\ Regardless of the
length remaining of Baraldini's sentence, Italian ``supporters
say they will now press for her release.'' \59\ Furthermore,
demonstrating complete disregard for the transfer agreement and
Baraldini's crimes, Elizabeth Fink, Baraldini's lawyer in New
York, stated that ``the only right thing for Italy to do is to
free Baraldini.'' \60\
---------------------------------------------------------------------------
\54\ Larry Neumeister, Radical Will Serve out Term in Italian
Prison, the Record (Bergen County, NJ), Aug. 25, 1999, at A4.
\55\ James P. Pinkerton, A Tough, if Convenient, Policy on
Terrorism, Newsday, Aug. 31, 1999, at A34. For example, ``a Palestinian
terrorist--found guilty of murdering an American Jewish tourist during
the hijack of the Achille Lauro cruise liner--[escaped] from an Italian
prison while on weekend leave.'' Robert Graham, Allies at Odds over
Extradition, Financial Times, July 8, 1996, at 9.
\56\ Court Ruling in Rome Clears Way for Italian Woman's Return,
the Associated Press Worldstream, July 9, 1999.
\57\ Sergio Romano, Why Italian Justice is a Disaster, the
European, May 25, 1998, at 28.
\58\ Id. Additionally, the press has reported that ``there were
suggestions Italy might choose to free her on medical grounds.'' Ellen
Knickmeyer, Italian Convicted in United States Gets Hero's Welcome on
Transfer to Rome, Associated Press Worldstream, Aug. 25, 1999.
\59\ Ellen Knickmeyer, Italian Convicted in United States Gets
Hero's Welcome on Transfer to Rome, Associated Press Worldstream, Aug.
25, 1999.
\60\ Italy: Jailed Radical's Return Creates Political Storm,
British Broadcasting Corp., Aug. 26, 1999.
---------------------------------------------------------------------------
Examining the agreement made between the United States and
Italy pursuant to the Strasbourg Convention, it appears that
Italy has already been lax regarding security measures. As part
of the transfer, Italy agreed that Baraldini ``will continue to
be kept in prison in Italy . . . on the conditions agreed,
similar to those that exist in the United States[,]'' including
all conditions of U.S. confinement listed in Appendix B of the
Department of Justice's June 4, 1999, letter.\61\ Appendix B,
Section (a) states ``that whenever [Baraldini] is transported
outside the prison, she must be handcuffed with a waist chain
attached to the handcuffs.'' \62\ Regardless of these
conditions, during Baraldini's August 25, 1999, transfer flight
from the United States to Italy, Baraldini ``complained that
U.S. prison officials had put her in chains.'' \63\ The Italian
guards were obviously sympathetic to her complaints because
Baraldini descended from the plane in Italy ``unrestrained''
\64\ and ``[w]ithout handcuffs on her wrists.'' \65\ The
Committee hopes that Italy will take better steps to ensure
Baraldini fully and fairly serves out her sentence.
---------------------------------------------------------------------------
\61\ Letter from Oliviero Diliberto, Italian Minister of Justice,
to Janet Reno, United States Attorney General, (July 28, 1999) (Exhibit
4); letter from James K. Robinson, United States Assistant Attorney
General, to Giorgio Lattanzi, General Director, Penal Affairs, Italian
Ministry of Grace and Justice, including Appendices A and B (May 25,
1999) and letter from James K. Robinson, United States Assistant
Attorney General, to Giorgio Lattanzi, General Director, Penal Affairs,
Italian Ministry of Grace and Justice, including Appendices A and B
(revised) (June 4, 1999) (hereinafter U.S. Conditions of Confinement)
(Exhibit 5).
\62\ Exhibit 5--U.S. Conditions of Confinement at 000014.
\63\ Prisoner Welcomed Home, Palm Beach Post, Aug. 26, 1999, at 9A.
\64\ Id.
\65\ Jorge Pina, Rights-Italy: Baraldini Returns After 17 Years in
U.S. Jails, Inter Press Service, Aug. 25, 1999. Although this may be a
small point, it does not bode well for adherence to the agreement
between the United States and Italy.
---------------------------------------------------------------------------
Second, the Department of Justice's endorsement of the need
for Baraldini to be in Italy, close to her family for social
rehabilitation purposes, is not convincing. As recently as
1998, the Department of Justice found that Baraldini's
humanitarian reasons for release ``were outweighed by the
nature of the offenses for which Ms. Baraldini was convicted.''
\66\ Neither the humanitarian reason nor the nature of the
offenses changed from 1998 to 1999. Although it is legitimate
for a criminal to want family members to visit them in prison,
it is well-established that prisoners in the United States have
``no right to be incarcerated in any specific institution,''
and there is no right to be proximate to one's family.\67\ It
is a concern to the Committee that such a privilege has been
extended to a foreign terrorist who has committed violent
crimes in the United States.
---------------------------------------------------------------------------
\66\ Exhibit 2--Letter from Janet Reno, United States Attorney
General to Giovanni Maria Flick, Italian Minister of Grace and Justice
(Apr. 14, 1998).
\67\ Meese, 691 F. Supp. at 448.
---------------------------------------------------------------------------
F. Baraldini's Reception in Italy
The Italian Government provided Baraldini with a grand
celebration during her August prison transfer. She flew from
New York to Rome on one of the Prime Minister's jets,\68\ and
was welcomed by Justice Minister Oliviero Diliberto, as well as
by a jubilant crowd of 600 throwing flowers and waving hammer-
and-sickle flags.\69\ Diliberto ``called [Baraldini's] return a
humanitarian victory over a harsh prison system.'' \70\ Several
Italian city governments, including the Palermo city
government, even went so far as to call Baraldini ``a symbol of
injustice,'' and made her an honorary citizen.\71\ She received
a hug and roses from Armando Cossutta, head of the Italian
Communist party, inside the prison.\72\
---------------------------------------------------------------------------
\68\ Italy Jailed Radical's Return Creates Political Storm, British
Broadcasting Corp., Aug. 26, 1999.
\69\ Massive Security Greets the Return of Terrorist to Italy; The
Government Said it Gave No Special Treatment to Silvia Baraldini, Who
has Served 16 Years in U.S. Jails, the Orlando Sentinel, Aug. 26, 1999,
at A4.
\70\ Id.
\71\ Jorge Pina, Rights-Italy: Baraldini Returns After 17 Years in
U.S. Jails, Inter Press Service, Aug. 25, 1999; Frances D'Emilio,
Convicted Terrorist Returns To Rome, the Associated Press Online, Aug.
25, 1999.
\72\ Massive Security Greets the Return of Terrorist to Italy; The
Government Said it Gave No Special Treatment to Silvia Baraldini, Who
has Served 16 Years in U.S. Jails, the Orlando Sentinel, Aug. 26, 1999,
at A4.
---------------------------------------------------------------------------
Baraldini's greeting outraged a number of Italian
politicians, along with some Italian jurists, who saw in the
welcome an official blessing of her past by the government of
Prime Minister D'Alema, a former communist.\73\
---------------------------------------------------------------------------
\73\ Daniel Williams, Hero's Welcome for Felon Jolts Italy Out of
Doldrums, the Gazette (Montreal), Aug. 29, 1999, at A6.
---------------------------------------------------------------------------
G. Sending an Inconsistent Message on Terrorism
President Clinton's decision to transfer Silvia Baraldini
to Italy before she finished serving her 43-year sentence in
the United States raises a number of concerns. In addition to
allowing Italian radicals to glorify a violent anti-American
terrorist and turn her into a heroine, Baraldini's transfer,
like the grant of clemency to members of the FALN, sends an
inconsistent message on terrorism.
As with the FALN clemency grant, President Clinton failed
to secure any cooperation from Baraldini in solving unsolved
crimes. Baraldini also avoided the basic requirement the FALN
terrorists had to fulfill to gain clemency: the renunciation of
violence.\74\ During a jailhouse news conference, however,
Baraldini made it clear just how she felt: ``I have never
repented for what I have done in the past.'' \75\ Overall, the
Baraldini decision sends the message that the United States
will be lenient with terrorists, and that prisoners do not have
to renounce violence against American citizens before being
released from American prisons.
---------------------------------------------------------------------------
\74\ Another Clinton Terrorist Outrage, the New York Post, Sept. 8,
1999, at 30.
\75\ Daniel Williams, Italy Split as Radical Gets Hero's Welcome;
Convicted Felon Returns After Years in U.S. Prison, the Washington
Post, Aug. 28, 1999, at A13.
---------------------------------------------------------------------------
[The documents referred to follow:]
DISSENTING VIEWS OF HON. HENRY A. WAXMAN, HON. TOM LANTOS, HON. MAJOR
R. OWENS, HON. EDOLPHUS TOWNS, HON. PAUL E. KANJORSKI, HON. PATSY T.
MINK, HON. ELEANOR HOLMES NORTON, HON. CHAKA FATTAH, HON. ELIJAH E.
CUMMINGS, HON. DENNIS J. KUCINICH, HON. DANNY K. DAVIS, HON. JOHN F.
TIERNEY, HON. THOMAS H. ALLEN, HON. HAROLD E. FORD, JR., AND HON.
JANICE D. SCHAKOWSKY
We have differing views about the wisdom of the President's
August 11, 1999, decision to grant clemency to 16 Puerto Rican
nationalists. Some of us support the President's decision. Many
of us oppose the decision and have voted for a resolution
opposing the decision.\1\ However, we are united in our view
that the majority's report reaches unsubstantiated conclusions.
---------------------------------------------------------------------------
\1\ On Sept. 9, 1999, the House of Representatives voted 311-41
(with 72 members voting ``present'') for H. Con. Res. 180 expressing
the sense of the House that the President should not have granted
clemency to the 16 individuals in question. On Sept. 14, 1999, the
Senate voted 95-2 for S.J. Res. 33, similarly disagreeing with the
President's decision.
---------------------------------------------------------------------------
The majority report errs by transforming legitimate
differences of opinion into allegations of wrongdoing and
personal attacks. The majority report finds that the President
``use[d] the immense power of his office to mislead.'' It
accuses clemency supporters of engaging in ``a calculated
effort to mislead people.'' It repeatedly characterizes legal
and legitimate actions as ``inappropriate.'' These findings and
allegations are not supported by the record before the
Committee. We therefore dissent from the majority report.
I. The President's Clemency Decision
The President's power to commute sentences stems from the
pardon power granted to the President in Article 2, Section 2
of the Constitution.\2\ That power is exclusive and absolute,
and not subject to any restrictions from the Congress. The
Supreme Court has held that the pardon power ``flows from the
Constitution alone, not from any legislative enhancements, and
. . . cannot be modified, abridged, or diminished by
Congress.'' \3\
---------------------------------------------------------------------------
\2\ The President ``shall have Power to grant Reprieves and Pardons
for Offences against the United States, except in Cases of
Impeachment.''
\3\ Schick v. Reed, 419 U.S. 256, 266 (1974).
---------------------------------------------------------------------------
On August 11, 1999, President Clinton used this power to
offer to commute the prison sentences of 16 individuals
convicted of various criminal offenses relating to their
involvement in two radical Puerto Rican independence
organizations. The clemency offers were conditioned on the
prisoners' willingness to renounce violence and accept certain
restrictions on their freedom of travel and association.
In a letter to Representative Waxman on September 21, 1999,
President Clinton explained the rationale for his decision.\4\
He stated that ``the prisoners were serving extremely lengthy
sentences--in some cases 90 years--which were out of proportion
to their crimes.'' He explained: ``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.'' The President stated that in
his view, ``equity and fairness dictated'' that their sentences
be reduced.
---------------------------------------------------------------------------
\4\ Letter from President Clinton to Representative Henry Waxman
(Sept. 21, 1999). The President's letter is attached to these views as
Exhibit 1.
---------------------------------------------------------------------------
The President also stated that he ``rejected'' the argument
that the prisoners were political prisoners or prisoners of
conscience. He made clear that ``no form of violence is ever
justified as a means of political expressions in a democratic
society based on the rule of law.''
In addition, the President stated that there had been an
active and lengthy campaign on behalf of the prisoners. He
observed that ``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.'' \5\ He also
noted that ``the petitioners received worldwide support on
humanitarian grounds from numerous quarters'' including such
prominent figures as former President Jimmy Carter, Archbishop
Desmond Tutu, and Coretta Scott King.
---------------------------------------------------------------------------
\5\ Documents obtained by the Committee indicate that the Members
of Congress who lobbied for clemency included Representatives Jose
Serrano, Nydia Velazquez, Luis Gutierrez, Charles Rangel, Danny Davis,
Eliot Engel, Maxine Waters, Patsy Mink, and Bobby Rush. Letters from
these Members, as well as other materials from clemency supporters, are
attached to these views as Exhibit 2.
---------------------------------------------------------------------------
Finally, the President disputed accusations that he had not
taken opposing views into account. He stated that he had
``sought and considered the views of the Department of
Justice.'' He also stated: ``Press reports note that certain
Federal Bureau of Investigation and Justice Department
officials . . . were opposed to clemency. I did not dismiss
those concerns, as some have implied. Rather, I carefully
weighed them.'' He also recognized that ``there are victims of
FALN-related violence who feel strongly that these individuals
. . . should serve the full sentences imposed.''
II. The Merits of the Clemency Decision
The merits of the President's decision are debatable. Some
independent observers have supported the decision. For example,
the editorial board of the Washington Post wrote:
Whatever the President's motives, the case for
clemency is strong. . . . the people in question were
charged with and convicted of serious crimes . . . But
they were crimes in which nobody was hurt or killed.
Their sentences on each count, moreover, were imposed
consecutively, meaning that their total sentences range
as long as 90 years in prison. This is very difficult
to justify, especially when compared with other
sentences in similar cases.\6\
---------------------------------------------------------------------------
\6\ Puerto Rican Clemency, Washington Post (Sept. 10, 1999).
Others have raised serious doubts about the decision. At
the September 21, 1999, hearing, Representative Henry Waxman,
the ranking minority member, released a draft letter from the
FBI Director, Louis J. Freeh, that criticized the decision.\7\
According to the draft letter released by Representative
Waxman: ``the FBI has consistently advised the Department of
Justice (DOJ), in writing, that the FBI was opposed to any such
pardon and/or commutation of sentences for any of these
individuals. . . . DOJ was also advised the FBI had reason to
expect the release of these individuals would `psychologically
and operationally enhance' the ongoing criminal activities of
Puerto Rican terrorist groups. The FBI also pointed out that
any such pardon of the `currently incarcerated terrorists would
likely return committed, experienced, sophisticated and
hardened terrorists to the clandestine movement.' ''
---------------------------------------------------------------------------
\7\ Draft letter from Louis J. Freeh to Representative Henry Hyde,
Justice Department Document production 001951-001952. The letter
appears to be a draft response to an inquiry from Judiciary Committee
Chairman Henry Hyde regarding the clemency decision. It is not signed.
---------------------------------------------------------------------------
Ultimately, any decision to grant clemency requires the
exercise of judgment in weighing the arguments for and against
clemency. Under the Constitution, that judgment is entrusted to
the President. While some of us may disagree with the
President's decision to grant clemency to these 16 individuals,
we have not seen any evidence that contradicts the view that
the President's judgment was made in good faith and on the
merits.
III. The Majority's Allegations
Soon after the clemency offers were made, many Republican
leaders alleged that the President's decision was intended to
boost the potential New York Senate campaign of First Lady
Hillary Clinton. Appearing on NBC's ``Meet the Press,''
Chairman Burton stated: ``The President should not be pardoning
these people under any circumstances, and there's some
indication it may be for political purposes. . . . [H]is wife
is running for--may be running for the United States Senate in
New York, and there's a large Puerto Rican constituency up
there. And there's a lot of people in Washington that are
questioning whether or not this is related to that.'' \8\
---------------------------------------------------------------------------
\8\ ``Meet the Press,'' NBC News (Aug. 29, 1999).
---------------------------------------------------------------------------
Other Republican leaders made similar claims. According to
Senator Orrin Hatch, chairman of the Senate Judiciary
Committee, ``almost anybody with brains would conclude'' that
the clemency offers were designed to help the First Lady's
senatorial campaign.\9\ Senator Phil Gramm, chairman of the
Senate Banking Committee, said that ``[t]his was an effort by
the President, by the First Lady, to manipulate politics in New
York.'' \10\
---------------------------------------------------------------------------
\9\ ``Fox News Sunday,'' Fox News (Sept. 19, 1999).
\10\ ``This Week,'' ABC News (Sept. 5, 1999).
---------------------------------------------------------------------------
Although the majority's report is voluminous, it does not
contain evidence linking the President's decision to a desire
to boost the Senate campaign of the First Lady. As an
investigative body, this Committee should limit its findings to
the evidence gathered during the investigation. Based on what
the Committee has learned to date, the record does not
substantiate the allegations related to the First Lady's
possible Senate campaign.
The majority report also contains numerous other
unsubstantiated allegations. For example, it alleges that ``the
President use[d] the immense power of his office to mislead.''
It also alleges at various points that the actions taken by
White House staff in this matter were ``inappropriate,''
``troubling,'' and ``disturbing.'' These allegations are not
supported by the evidence.
The record before the Committee does not support the
allegation that the President sought to mislead the public
about the rationale for his decisions. Instead, to support this
allegation, the majority report relies on legitimate
disagreements over the harshness of the sentences received by
the 16 prisoners and the relative severity of the crimes they
committed. While these disagreements are intensely argued by
clemency supporters and opponents, they are not evidence that
the President used ``the immense power of his office to
mislead.''
The majority report also attempts to label various
legitimate and routine actions as ``inappropriate,''
``troubling,'' and ``disturbing.'' For example, the majority
report notes that participants at a White House meeting on the
clemency issue described clemency as a ``high priority PR
[Puerto Rico] issue.'' The majority report suggests that
``[t]his indicates a level of political calculation that is
troubling.'' The fact that White House staff were aware that
the prisoners were a major issue in the Puerto Rican community
is not ``troubling''--indeed, it would be more troubling if the
President's staff were ignorant of that fact.
In another instance, the majority report notes that the
Deputy Attorney General asked the Pardon Attorney to inquire
with a congressional supporter of clemency into the status of
obtaining statements from the prisoners expressing repentance
for their crimes. It then goes on to characterize this request
as a ``highly inappropriate.'' Obtaining statements of
repentance from the prisoners, however, is an entirely
legitimate request, particularly given the President's decision
to condition clemency on the prisoners' willingness to renounce
violence.
In sum, instead of simply disagreeing with the President's
decision on the merits, the majority report attempts to
transform legitimate criticisms of the President's decision
into unsubstantiated allegations. The majority report concludes
by asserting that the President's decision should be viewed
with a ``presumption of impropriety.'' Impropriety, however,
should be demonstrated, not presumed.
IV. The President's Assertion of Executive Privilege
The majority report criticizes the President for invoking
executive privilege over a small number of documents relating
to his decision. We disagree with this criticism and believe
that the President's assertion of executive privilege in this
case was entirely proper.
In September 1999, Chairman Burton issued multiple
subpoenas to the White House and the Department of Justice
demanding documents relating to the President's decision to
grant clemency to the 16 Puerto Rican nationalists.\11\ In
response to these subpoenas, the Executive branch produced
approximately 10,000 pages of documents.
---------------------------------------------------------------------------
\11\ Subpoenas from Committee on Government Reform to the Executive
Office of the President (Sept. 1, 1999) and Department of Justice
(Sept. 1 and 16, 1999).
---------------------------------------------------------------------------
At the request of the President, however, Attorney General
Janet Reno reviewed a number of other documents relating to
internal deliberations among staff, recommendations to the
President, and the President's decisionmaking to determine if
this material was subject to a proper assertion of executive
privilege.\12\ The Attorney General concluded that the White
House could properly assert executive privilege over those
documents.\13\ This interpretation appears to be supported by
legal standards and historical precedents.
---------------------------------------------------------------------------
\12\ Letter from Attorney General Janet Reno to President Clinton
(Sept. 16, 1999).
\13\ Id.
---------------------------------------------------------------------------
The concept of executive privilege was first invoked by
President George Washington.\14\ More recently, executive
privilege has been asserted by Presidents Eisenhower, Kennedy,
Nixon, Ford, Carter, Reagan, and Bush.\15\ The Supreme Court
explicitly addressed the issue of executive privilege in 1974
in United States v. Nixon. In recognizing the privilege, the
unanimous court articulated the reasons and constitutional
basis behind such a privilege:
---------------------------------------------------------------------------
\14\ Letter from Assistant Attorney General W. Lee Rawls to Senator
Howard Metzenbaum (July 1, 1991).
\15\ See letter from Assistant Attorney General W. Lee Rawls to
Senator Howard Metzenbaum (July 1, 1991).
[T]he importance of this confidentiality is too plain
to require further discussion. Human experience teaches
that those who expect public dissemination of their
remarks may well temper candor with a concern for
appearances and for their own interests to the
detriment of the decision making process. Whatever the
nature of the privilege of confidentiality of
Presidential communications in the exercise of Art. II
powers, the privilege can be said to derive from the
supremacy of each branch within its own assigned area
of constitutional duties. Certain powers and privileges
flow from the nature of enumerated powers; the
protection of the confidentiality of Presidential
communication has similar constitutional
underpinnings.\16\
---------------------------------------------------------------------------
\16\ 418 U.S. 683, 705 (1974).
---------------------------------------------------------------------------
The Court went on to state:
The expectation of a President to the confidentiality
of his conversation and correspondence, like the claim
of confidentiality in judicial deliberations, for
example, has all the values to which we accord
deference for the privacy of all citizens and, added to
those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision making. A
president and those who assist him must be free to
explore alternatives in the process of shaping policies
and making decisions and to do so in a way many would
be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for
Presidential communications. The privilege is
fundamental to the operation of Government and
inextricably rooted in the separation of powers under
the Constitution.\17\
---------------------------------------------------------------------------
\17\ Id., at 708.
In the case of the President's clemency decision, the
assertion of executive privilege was fully justified. The
documents being sought by the Committee contained advice and
recommendations presented to the President and his advisors.
They involved the pardon power, which the Constitution entrusts
exclusively to the President. There was no credible evidence of
illegal conduct by the President or his advisors. As stated by
the Washington Post, ``if executive privilege does not cover
the Puerto Rico flap, it does not meaningfully exist.'' \18\
---------------------------------------------------------------------------
\18\ Executive Privilege--Again, Washington Post (Sept. 19, 1999).
---------------------------------------------------------------------------
V. Conclusion
Although many Democrats oppose the President's decision,
the majority made no attempt to find consensus with the
Committee's minority members. Instead, the majority report
appears to be designed to score political points, not reach the
truth. It is based on unsubstantiated allegations and innuendo,
not the facts and evidence before the Committee. We therefore
dissent.
Hon. Henry A. Waxman.
Hon. Tom Lantos.
Hon. Major R. Owens.
Hon. Edolphus Towns.
Hon. Paul E. Kanjorski.
Hon. Patsy T. Mink.
Hon. Eleanor Holmes Norton.
Hon. Chaka Fattah.
Hon. Elijah E. Cummings.
Hon. Dennis J. Kucinich.
Hon. Danny K. Davis.
Hon. John F. Tierney.
Hon. Thomas H. Allen.
Hon. Harold E. Ford, Jr.
Hon. Janice D. Schakowsky.
[The documents referred to follow:]