Informe Congresional sobre Oscar López de la FALN

Informe del comité congresional que llevó a cabo una investigación sobre la conmutación  de 55 a 29 años de cárcel  que Bill Clinton concedió — a pesar de la ferviente oposición pública de Hillary — a los convictos miembros de la FALN. Cabe mencionar que, aunque incluyó a Oscar López entre los agraciados, le dejó intacta la condena de 15 años por intento de fuga con granadas, explosivos, etc.

House Report 106-488]

[From the U.S. Government Printing 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 : 19

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

1. Why the Committee investigated the offer of clemency to the 16

terrorists………………………………………………..5

1. Factual background………………………………………..11
2. 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
3. The investigation…………………………… 17
4. The trials…………………………………. 18
5. Ten individuals tried in Chicago………….. 19
6. Maria Haydee Torres…………………….. 20

iii. Oscar Lopez Rivera……………………..    21

3. 1985 Chicago FALN group…………………………. 22
4. The safe houses…………………………….. 22
5. Plans for prison breaks……………………… 23
6. Plans to rob the Chicago Transit Authority…….. 24
7. The plan to assist FALN fugitive William Morales.. 24
8. Plans for bombings………………………….. 25
9. The trial…………………………………..    25
10. The Macheteros’ activities in Puerto Rico…………. 26
11. The Wells Fargo robbery and Macheteros convictions…. 29
12. The robbery………………………………… 29
13. The investigation and indictments…………….. 30
14. The trials and convictions…………………… 32
15. The sentences of the 16 offered clemency……………… 34
16. Elizam Escobar…………………………………. 35
17. Ricardo Jimenez………………………………… 35
18. Adolfo Matos…………………………………… 36
19. Dylcia Noemi Pagan……………………………… 37
20. Alicia Rodriguez……………………………….. 37
21. Ida Luz Rodriguez………………………………. 38
22. Luis Rosa……………………………………… 38
23. Carmen Valentin………………………………… 39
24. Alberto Rodriguez………………………………. 39
25. Alejandrina Torres…………………………….. 40
26. Edwin Cortes………………………………….. 40
27. Oscar Lopez…………………………………… 41
28. Juan Enrique Segarra-Palmer III…………………. 42
29. Antonio Camacho-Negron…………………………. 42
30. Roberto Maldonado-Rivera……………………….. 43
31. Norman Ramirez-Talavera………………………… 43

III.The clemency process and decision…………………………..44

 

1. How the clemency process works………………………. 44
2. Procedures for commutation………………………. 44
3. Standards for considering commutation…………….. 46
4. The FALN/Macheteros clemency process…………………. 47
5. The application process………………………….    47
6. The campaign for release………………………… 48
7. Justice Department action on the clemency…………. 49
8. Opposition to the clemency………………………. 52
9. Offices of the U.S. Attorneys………………… 52
10. The Federal Bureau of Investigation…………… 53
11. The Bureau of Prisons……………………….. 54
12. The victims of the FALN and Macheteros’ violence.. 54
13. Two Justice Department reports on clemency………… 57
14. The White House’s role in the clemency process…….. 60
15. The sentences were fair……………………………………68
16. The FALN and Macheteros terrorists are strange candidates for

clemency…………………………………………………72

1. Criteria for clemency………………………………. 73
2. The violent nature of those offered clemency………….. 74
3. Present day threats…………………………….. 74
4. Violent escapes planned by the FALN prisoners……… 75
5. Escape plan of Oscar Lopez Rivera…………….. 75
6. Escape plans of Ricardo Jimenez………………. 78
7. 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
7. No cooperation was requested or offered from the FALN and

Macheteros members…………………………………    85

1. The clemency decision and the U.S. commitment to fighting terrori85
2. The international message…………………………… 86
3. An inconsistent policy on dealing with terrorists……… 88
4. 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

HO– USE 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.

 

1. 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.

 

1. 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.

 

 

1. 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-

90059. (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).

—————————————————————————

1. 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.

—————————————————————————

1. 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.

—————————————————————————

1. 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.

—————————————————————————

1. 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. 3\14\ 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.

—————————————————————————

1. 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.

—————————————————————————

1. 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.

—————————————————————————

1. 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.

—————————————————————————

1. 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.

—————————————————————————

1. 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.

—————————————————————————

1. 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.

—————————————————————————

1. 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.

—————————————————————————

1. 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.

—————————————————————————

1. 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.

—————————————————————————

 

 

1. 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.

—————————————————————————

 

 

1. 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.

—————————————————————————

 

 

1. 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.

1. 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).

—————————————————————————

1. 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.

—————————————————————————

1. 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).

—————————————————————————

1. 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

2003. (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.

—————————————————————————

 

1. 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.

—————————————————————————

 

1. 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).

—————————————————————————

 

 

1. 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).

—————————————————————————

 

 

1. 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
3. 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).

—————————————————————————

1. 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.

 

 

1. 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

1. 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.

 

 

1. 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.

 

1. 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.

 

 

1. 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).

—————————————————————————

 

 

1. 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.

 

 

1. 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.

 

1. 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).

—————————————————————————

 

1. 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.

—————————————————————————

 

1. 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.

—————————————————————————

 

1. 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).

—————————————————————————

 

1. 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.

—————————————————————————

 

1. 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.

—————————————————————————

 

1. 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

1. 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.

 

1. 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.»

 

1. 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.

 

1. 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).

—————————————————————————

 

1. 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: