FINDINGS OF THE COMMITTEE ON GOVERNMENT REFORM
The Committee on Government Reform has conducted an investigation of the Presidents decision to offer clemency to sixteen 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 sixteen 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 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 VPs Puerto Rican position would be helped: The issue is Gutierrezs [sic] top priority as well as of high constituent importance to Serrano and
- The Sentences Imposed Upon the FALN and Macheteros Prisoners Were Fair. The President and his spokesmen represented that the sixteen offered clemency had served sentences in excess of what they would now receive under the sentencing guidelines. This is not true. According to the United States 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 nine 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 Presidents 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 sixteen 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.
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]heyre not individuals who personally were involved in violence." Below are some examples of the "non-violent" offenders offered clemency by the President:
- Those Offered Clemency were Violent Offenders.
Oscar López: An individual so "non-violent" that he wouldnt 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, eight M-16 rifles, two silencers, 50 pounds of plastic C-4 explosives, eight bulletproof vests, ten blasting caps to use with plastic explosives, 100 thirty-shot clips to use with automatic weapons. In L\
pez probation officers assessment, "[Lopez] level of remorse, rehabilitation and positive regard for this courts 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 Cortés: While planning Oscar López escape from federal prison, the following statement by Cortés 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 fourteen of the individuals offered clemency included the construction and planting of explosive and incendiary devices (bombs) at 28 separate locations.
Prior to the offer of clemency to the sixteen FALN and Macheteros terrorists, President Clinton had received 3,229 requests for clemency. He had acted favorably on only three of these requests. The sixteen 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.
- Those Offered Clemency Were Very Unlikely Candidates for Clemency.
Notwithstanding the fact that the sixteen 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 Presidents 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.
- The White House Seemed to Want Clemency More than the Terrorists.
At least one White House employee consistently referred to the sixteen as "political prisoners." Given the crimes committed by the sixteen 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 sixteen individuals offered clemency as "nationalists," rather than terrorists.
- Some White House Employees Thought the Sixteen Terrorists Were Political Prisoners.
The first Justice Department recommendation to the White House appears to have taken an unambiguous stand against clemency. Later, in June of 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.
- The Department of Justice Appears to Have Changed its Recommendation to the White House in Order to Help the White House.
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.
- Law Enforcement Organizations Were Not Adequately Consulted Prior to the Presidents Decision.
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 Victims Were Ignored.
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 Presidents Clemency Offer Worked Against Solving Numerous Crimes.
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 Clemency Decision Undermines the United States Position in the International Fight Against Terrorism.
The FALN and Macheteros terrorists are United States 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 President Has Set a Different Standard for Terrorists Who Are United States Citizens.
As the FBI made clear in a written statement prepared for the Committees September 21, 1999, hearing: "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."
- The Clemency Decision Empowered Two Dangerous Terrorist Organizations.
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.
- The President Should Waive His Claim of Executive Privilege.