threatening the national interests, foreign policy or economy of the United States. No court could second-guess him; no checks, no balances." 30 IV. CONCLUSION: THE COMMITTEE SHOULD REJECT THESE LEGAL PRETENDERS NOW; OR AT LEAST, CONVENE ADDITIONAL HEARINGS FOCUSING ON S.390 AND TITLE VI OF S.3 IN PARTICULAR, IN WHICH THE FULL RANGE OF VIEWS REGARDING THESE BILLS ARE HEARD Passage of S. 390 or like provisions in S.3 would represent an historic abdication of congressional constitutional responsibility and creation of a constitutional crisis, and an extraordinary exacerbation of what already appears to be a "push/shove" mode of communication between the branches of our government; this, in a day of macroeconomic budgetary and federal court caseload concerns.31 As the independent Judiciary has consistently held: the due process clause "is a restraint on the legislative as well as the executive and judicial powers of the government and cannot be so construed as to leave Congress free to make any process 'due process of law,' by its mere will.” 32 Substituting a Star Chamber "court system" for the independent Judiciary envisioned by the Founders, by which our great nation has proudly prevailed for more than 200 years, will not turn the lack of due process contained in current "terrorism" proposals into due process. Nor will it transform the bills' other constitutional flaws into constitutional virtues. NACDL urges the Committee to unabashedly heed history and the Constitution, and to accordingly quickly reject the Orwellian and Kafkaesque S. 390 and Title VI of S.3-putting these legal pretenders out of their misery and the People out from under the risks posed by these proposals. In the alternative, at minimum, NACDL submits that the Committee needs to convene hearings devoted exclusively to consideration of these legislative proposals. The matters at stake are, we think all can agree, simply too important to proceed through Congress without the People being afforded the ability to fully consider these proposals and be heard on them. Finally, NACDL respectfully requests permission to contribute both oral and written testimony at such future hearings on these proposals, as the organization of persons who have devoted their lives to providing legal representation to those wrongfully targeted, accused and prosecuted by the presidential branch of government— and who will perform this function on behalf of those to be victimized by the current wave of terrorism proposals should the presidential branch of government be given this "new," high-powered, Constitution-crippling weaponry it so covets. 30 Editorial, "Mugging the Bill of Rights," The Oregonian, April 1, 1995. 31 See e.g., The Federalist No. 78 (Hamilton), discussing how the Judiciary is, "from the nature of its functions, . . . the [department] least dangerous to the political rights of the constitution," not because its acts are subject to legislative correction, but because the binding effect of its acts are limited to particular cases and controversies; and thus, "though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter: . . . so long as the judiciary remains truly distinct from both the legislative and executive." (emphasis added.) See also e.g., United States v. Lopez,-U.S.—, No. 93–1260 (decided April 26, 1995) (holding that the Gun-Free School Zones Act of 1990-which forbids "any individual knowingly to possess a firearm at a place that [he] knows . . . is a school zone," 18 U.S.C. sec. 922(q)(1)(A)—exceeds Congress' Commerce Clause authority); Lester C. Thurow, The Zero-Sum Society: Distribution and the Possibilities for Economic Change 12, 122-123 (1980) (“Once a goal has been legislated into law, the fight has just begun. To a great extent the time delays and uncertainty that his process creates have a more adverse effect on the economy than the regulations themselves."). 32 Murray's Lessee v. Hoboken Land and Improvement Co., 18 How. 272, 276, 15 L.Ed. 372 (1855). OFFICERS PRESIDENT Gerald H. Goldstein San Antonio, TX 210-226-1463 PRESIDENT ELECT FIRST VICE PRESIDENT Spokane, WA SECOND VICE PRESIDENT New York, NY THIRD VICE PRESIDENT Denver, CO TREASURER William B. Moffitt Alexandria, VA 703-684-7900 SECRETARY New York, NY IMMEDIATE PAST PRESIDENT John Henry Hingson, III Oregon City, OR 503-656-0355 PARLIAMENTARIAN 713-880-9900 NACDL is a specialized bar association representing the nation's criminal defense lawyers. Its 8,700 direct members and 70 state and local affiliates include private criminal defense lawyers, public defenders, and law professors. The 36-year old association is devoted to ensuring justice and due process for persons accused of crime; fostering the integrity, independence, and expertise of the criminal defense profession; and promoting the proper and fair administration of criminal justice. EXECUTIVE DIRECTOR Stuart M. Statler NATIONAL ASSOCIATION OF CRIMINAL Defense LAWYERS 1627 K STREET NW, SUITE 1200, WASHINGTON DC 20006 • TEL: 202-872-8688 • Fax: 202-331-8269 PREPARED STATEMENT OF SCOTT D. PORTZLINE Although the U.S. Federal Bureau of Investigation is responsible for providing "threat-level assessments" to the U.S. Nuclear Regulatory Commission, the FBI failed to provide important intelligence concerning the World Trade Center terrorists and their associates. The following narrative is exemplary of what could have been a dramatic display of weaknesses in our national security. (A chronology of events is attached.) Only two days after the FBI caught these terrorists in the act of making multiple bombs in New York City, FBI agents conducted a raid of the terrorists' training camp located only 30 miles from the Three Mile Island Nuclear Generating Station (TMI). The FBI never initiated any contact with the Nuclear Regulatory Commission (NRC) or TMI concerning the raid or the proximity of the training camp. This is especially_significant for four reasons. (1) Security weaknesses were exposed on February 7, 1993 at the world-famous Three Mile Island nuclear plant by a mentally ill intruder who easily penetrated site protection and actually drove a station wagon 63 feet into the turbine building. (2) The World Trade Center bombers threatened to attack "nuclear targets" with "150 suicide soldiers" in a letter to the New York Times. This letter was received four days after the bombing and authenticated by federal authorities by March 26, 1993. (The FBI did inform the NRC of the threat at this time.) (3) The anniversary of the TMI accident would occur only several days after authentication of the threat. The FBI was aware of the location of the terrorists' training camp at least several weeks before the World Trade Center bombing but did not alert the NRC of its proximity to TMI despite verification of the threat. (4) At the time of the raid near TMI, a third cell of terrorists was thought to be at large. Since the bombers' actions proved that they were actively prepared to carry out additional attacks, the FBI's failure to alert the NRC and TMI of both the raid and the proximity of the training camp is very disturbing. My telephone call to the NRC Emergency Response Center the morning after the raid was the NRC's first notification of these details and the potential dangersboth past and future. The call was handled very thoroughly by Mr. Joseph Sebrosky who accurately echoed the information I presented. I specifically requested that the NRC require TMI to activate the “12-hour Contingency Plan" (truck bomb prevention). Ninety minutes later, Mr. Sebrosky called back to inform that the FBI and wire reports confirmed everything I had reported. He also spoke with other NRC employees who knew me and were familiar with my testimonies to the U.S. Senate and the NRC concerning security issues. Therefore, Mr. Sebrosky assured me that I could rest knowing that the NRC was taking this matter seriously, and would meet to discuss any actions that they should take. The contingency plan was not activated. I cannot recall a prior scenario with a greater degree of "credible threat” and am left wondering what criteria does the NRC need before they will err on the side of caution? A second matter of failing to provide proper security against terrorism is revealed in the NRC's Incident Investigation Team report on the TMI intrusion. Three Mile Island had not developed a Contingency Plan as instructed in 1989. So, even if the NRC had required an activation of the plan in 1993, it did not exist! There was no regulatory review or process to determine that TMI was non-compliant during that period. Even after the deficiency was discovered, the NRC did not issue a citation or fine for "non-compliance." But, an even more disturbing shortcoming of the NRC's mis-management of security at nuclear power plants is the new "vehicle barriers requirement.” As a result of the TMI and World Trade Center incidents (separated by less than three weeks), the U.S. Senate and others strongly pressured the NRC to install vehicle barriers. I suppose oversight committees presume that the NRC has resolved the "truck bomb problem" in a reasonable manner. However, a nuclear catastrophe resulting from a truck bomb has not been averted by the new regulations because the “setback distances" of the barriers are not being analyzed by engineers who possess bomb blast expertise. A site-specific analysis is not required. A recent tour of the TMI plant to review the improvements confirmed my concerns. Despite installing 14 vehicle barriers after the intrusion, there still exist quite literally a "road to disaster" that can be traversed in less than 30 seconds. (My presentation to the NRC's Advisory Committee on Reactor Safeguard discloses the details. To my dismay, the ACRS also had not been informed of the training camp and associated events even though 8 months had passed and the purpose of the meeting was to advise the NRC whether or not barriers were really necessary.) Because the vehicle barrier at the north entrance is open 50% of each day (TMI's own figure), a truck bomb can be driven to within 10 feet of one vital area, 30 feet of a second vital area, and 75 feet of a third vital area-which if this particular building were destroyed (not the reactor building), a catastrophe would result. Additionally, the layout of the adjacent buildings would focus a bomb blast onto this particular building. Yet, none of this data is being examined or reviewed in a scientific manner. Keep in mind, this is a detonation from outside the perimeter of the newly constructed vehicle barriers. The Oklahoma bombing demonstrates the severity of blast effects. The size of that bomb can easily be doubled and still be carried in a truck. Without proper analysis of the set-back distances, the new regulations are only "window dressing." Three Mile Island has just reduced its security staff by approximately 6 persons (the actual number is safeguarded). "Fitness for Duty" programs are supposed to prevent employees with behavioral problems from working in a nuclear plant. But, a TMI chemistry technician was permitted to continue working despite the wisdom of a judge who placed him under "house-arrest," ordered him to wear an electronic ankle-bracelet to monitor his whereabouts and ordered him to undergo psycho-therapy. This technician confessed to illegally entering a home on at least three separate occasions, stealing the woman's lingerie and “masturbating on the lingerie." (from court records) At previous nuclear security hearings or meetings, some witnesses who point out security defects have requested that portions of their testimonies be submitted "under seal" to prevent the potentially dangerous information from becoming public. The NRC has refused to receive these portions under seal by insisting that it is not necessary. I can't determine if this attitude is one of arrogance, over-confidence in the back-up equipment and systems, or an admission that other public documents already reveal specific weaknesses that can be targeted. NRC Chairman Ivan Selin told reporters in a July 1993 press conference that an airplane need not carry explosives to cause a release if the pilot knows what buildings to crash into; then, he named the buildings. The NRC transcripts eliminated the specifics, but C-Span had already broadcast the conference. There are no plans to protect against an airplane attack. In 1972, hi-jackers unsuccessfully demanded a pilot crash into the reactors at Oak Ridge Tennessee. Although this scenario seems unlikely to succeed, don't ignore the recent plot to load a plane with explosives and crash into CIA headquarters. There is no protection against boat bomb attacks. There are not enough guards to prevent a well-orchestrated commando attack. It is my opinion that a group of 6-10 trained attackers could overcome a security force. The NRC is presently allowing licensees to reduce the size of their site protection forces. What are oversight committees doing about this reduction? So that the significance of an attack on a nuclear power plant is not lost, a release of radioactivity could be more than a thousand times greater than a nuclear bomb, (there is no danger of a nuclear explosion). While most everyone is more fearful that a terrorist will detonate a nuclear bomb someday, a more plausible threat which is easier to carry out, with far greater consequences in terms of rendering an entire economic region useless, and for the terror it would instill, is sabotaging a nuclear plant. There are already more than 100 reactors operating in the U.S. alone; therefore, attacks could be readily repeated as opposed to the difficulties of acquiring or assembling a nuclear weapon. Building a nuclear bomb is a formidable task. The father of the hydrogen bomb (Dr. Edward Teller) believed all nuclear plants should be constructed underground because of the various risks and vulnerabilities. Nuclear plants are the "soft-underbelly" of national security since terrorists can "go nuclear" without possessing a nuclear device. There is much room for improvement without stepping on the rights of citizens. The federal oversight committees need to follow-up improvements not only with those charged with providing protection and intelligence, but those who are critical of the status-quo. Very rarely will an agency or industry voluntarily disclose a continuing weakness unless they are asking for money to fix it. Oversight committees concerned with nuclear power plant security have a history of ineffectiveness because there is rarely a thorough follow-up. Therefore, correspondence with citizens and watchdog groups who prove a reasonable knowledge of the issues and technologies should also be solicited and received by the committees with gratitude. Ten months before the TMI intrusion, I warned an NRC Advisory Panel that security at TMI was poor. It is both difficult and frustrating to attempt to highlight security gaps without revealing too much, but citizens have not been able to rely solely upon the NRC's "seal of approval" regarding protection form the threat of sabotage and terrorism to nuclear power plants. Chronology of Events 4/16/92-Warned NRC Advisory Panel of TMI security weaknesses 2/7/93-Three Mile Island intrusion 2/93-FBI knowledge of the terrorists' training camp near TMI, the FBI has made contact with the owner of the camp by now 2/23/93-Testimony to the PA House of Representatives, Sandia National Laboratories "An Analysis of Truck Bomb Threats at Nuclear Facilities" concluded a radioactive release or meltdown could result from a large bomb" at large setback distances, greater than the protected area for most plants." (1984) 2/26/93 World Trade Center Bombing 2/30/93-The World Trade Center terrorists threaten to attack "nuclear targets" with "150 suicide soldiers" in a letter to the New York Times 3/19/93 US Senate hearing "Adequacy of Nuclear Powerplant Security", NRC Chairman Ivan Selin testifies that a bomb in the turbine building where the intruder was located could have caused a radiological release. Senator Joseph Lieberman and terrorist expert Dr. Bruce Hoffman (Rand Corp.) call nuclear plants "soft targets." 3/26/93-Threat to attack "nuclear targets" is authenticated 3/28/93-Anniversary of the TMI accident 4/6/93 NRC_Incident Investigation Team finds more than 40 problems with responses made during the TMI intrusion and concludes that the intruder could have reached vital areas without guard interdiction. Despite these findings, the NRC publicly classifies the response as "appropriate." 5/10/93-Testimony to the NRC including video of vulnerabilities and availability of public documents which become a "how-to-book" in the hands of saboteurs 6/25/93-Plot to bomb multiple NY targets is foiled when the FBI catch terrorists in the act of making bombs. 6/27/93-FBI raid of the terrorists' training camp located 30 miles from TMI 6/28/93-My request to the NRC Emergency Response Center to activate TMI's "12-hour Contingency Plan" for truck bomb protection 6/30/93-NRC votes to pursue a requirement for vehicle barriers and instructs staff to begin development 7/7/93-During a press conference, NRC Chairman Ivan Selin discloses specific buildings which could be vulnerable to an airplane attack even if the plane is not loaded with explosives 11/4/93-NRC issues a proposed rule for requiring vehicle barriers subject to public comment and not yet accepted as an official regulation, but the NRC soon begins backing away from this decision thinking barriers might not be necessary after all 1/25/94-The Nuclear Control Institute and I tour the TMI plant to examine vehicle barriers which were erected voluntarily as a result of the intrusion 2/10/94-Testimony to NRC Advisory Committee on Reactor Safeguards concerning the need for vehicle barriers and an analysis of the “set-back distances," describe and diagram "road to disaster" at TMI despite vehicle barriers 8/1/94-NRC publishes the final rule on vehicle barriers which was "watered down at the eleventh hour."* The rule allows 18 months for licensee compliance, reduces the size of the hypothetical bomb from previous deliberations and does not require an analysis of "set-back distances" which are by nature, very site-specific; thus, damage from a truck bomb resulting in a radioactive release is not precluded by the new regulation *8/1/94 joint press release by the Nuclear Control Institute and the Committee to Bridge the Gap 11/2/94-NRC issues a Generic Letter which results in the reduction of security forces, the new guidelines also cause additional weaknesses associated with the internal threat Mr. SCOTT D. PORTZLINE, UNIVERSITY OF ST. ANDREWS, DEAR MR. PORTZLINE. Many thanks for your call from a few weeks ago and, moreover, for sending me the very interesting written material, including the excellent compilation video. The materials arrived shortly before I left the U.S. and I did in fact have the opportunity both to read through the material and to screen the video. I found the material not only compelling, but impressive in its detail, comprehensiveness, and ineluctable argument. Sitting now on this side of the Atlantic-with Russian traffic in nuclear materials appearing in the newspapers almost daily, your points about problematical security at American_facilities are even more germane regarding the security situation at Eastern European and former Soviet |