An Appreciation of Rep. Henry Hyde's Role in Fight Against Terrorism

By Michael Kraft

Former Congressman Henry Hyde, who died last week after a long Congressional career, played an important but largely little-noticed role in shaping major counterterrorism legislation.

The Illinois Republican was best known for his role in chairing the House of Representatives impeachment hearings for President Clinton and his strong anti-abortion stance, as chairman of the House Judiciary Committee. However he was instrumental in strengthening major counterterrorism legislation that had been drafted by the Clinton administration but weakened by the Senate.

Mr. Hyde was chairman of the House Judiciary Committee in 1995 when Congress began considering an omnibus counterterrorism bill that the Justice Department and State Department drafted in an effort to curb terrorism fund raising by terrorist groups that did not depend on support from governments such as Iran, Syria, Iraq, and Libya.

The Clinton administration legislation included key provisions that made it a criminal offense for American citizens, residents and companies to provide funding and other forms of material support, such as sanctuary and weapons, to terrorist organizations. The bill, drafted by career Justice and State Department officials, also included an improved version of 1994 legislation that made it illegal to provide material support for specific acts of terrorism, regardless of whether they were committed by previously known or designated terrorist groups.

The bill generally had been weakened in the Senate, in large part by the efforts by staff for then Senator Abrahams, a Republican from Michigan which has a large Arab-American population in the Detroit area. The Senate Judiciary chairman, Orrin Hatch of Utah, generally deferred to those who felt the most strongly about the bill. One Senate draft version would even prohibit prosecutions unless the U.S. government could prove that the leaders of the recipient foreign terrorist organization knew that the contributed funds were used to finance specific acts of terrorism -- as if these highly secret organizations would be willing to provide transparent and accurate organizational and financial flow charts. The Justice Department and the State Department naturally opposed this Senate version. (I handled the legislation for the State Department’s Counterterrorism Office and was involved in the discussions with members and staff).

Consequently, we worked closely with Rep. Hyde and his staff as well as the House Judiciary Crime Subcommittee, chaired by Rep. Rep. Bill McCollum, a Florida Republican, and Rep. Schumer, the subcommittee’s senior Democrat. Both the subcommittee and then full committee held lengthy hearings and mark-up sessions. They had to work out a compromise with liberal Democrats, such as Barney Frank of Massachusetts and Bob Barr, a conservative Republican from Georgia, who both were wary of the designations of terrorist organizations. The committee leadership and members worked out a compromise provision requiring that the designations expired after two years unless renewed and also a feature allowing a group to challenge the designations in the U.S. Court of Appeals for the District of Columbia. These provisions helped obtain wider support for the bill, which gained even more momentum following the Oklahoma City bombings shortly before enactment.

In the Senate-House conference committee that worked out a final version of the bill, under Rep. Hyde’s leadership the House’s stronger approach prevailed over the Senate’s weakening provisions. The bill was then quickly passed by Congress and signed by President Clinton into law on April 24 1996 as part of the landmark Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. This law became a key element in the U.S. government’s efforts to counterterrorism fundraising.

According to figures that I obtained from Justice Department officials while drafting a forthcoming book on the Evolution of U.S. Counterterrorism Policy, as of this summer 139 persons have been charged with violations under one or both of the Material Support provisions. Of these, 16 persons already have been convicted and 29 have pled guilty.

A strong indication of the Congressional attitude toward contributions to foreign groups, that operated schools and clinics as well as killing people in terrorist attacks was expressed in the “FINDINGS and PURPOSE” Sec. 301 (7) of the Act. This section stated that “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contributions to such an organization facilitate that conduct.”

In effect, Congress was reinforcing the view that money is fungible and that even if the money is intended for legitimate charitable purposes, it frees up funds that could be used to support terrorist activities. Some terrorist organizations such as HAMAS, and Hezbollah and Egyptian groups use “charitable” contributions for both weapons and to finance schools and medical clinics that help recruit supporters and potential operatives.

Sec. 301 originated in House Committee and I consider it a marker of Rep. Hyde’s strong stance against terrorism. From the vantage point of a Congressional staffer and then a State Department officer, I also found him to be invariably courtly and often humorous.

Indeed, he was one of the most remarkable members of Congress and he made an important contribution to the country’s struggle against international terrorism.

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