Another Flaw of the Smarter Sentencing Act
Prepared Floor Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
Statement Opposing the Smarter Sentencing Act
Monday, July 14, 2014
Mr. President, a few weeks ago, some were calling for the Majority Leader to bring the so-called Smarter Sentencing Act to the Senate floor for a vote.
I rise again today to express my strong opposition to this bill and argue against taking up the Senate’s time to consider it.
In the past, I’ve pointed out that this bill would put at risk our hard-won national drop in crime. It would also reduce penalties for importing and distributing heroin, a drug that is currently devastating our communities with an epidemic of addiction and a rising number of deaths from overdoses.
In part for these reasons, many law enforcement professionals have come out against the bill. The National Association of Assistant United States Attorneys, the Federal Law Enforcement Officers Association, and a long list of former high-level officials in Republican and Democratic administrations alike are all opposed to it.
Indeed, page A12 of this morning’s New York Times contains an article entitled “Second Thoughts on Lighter Sentences for Drug Smugglers.”
According to the Times, the sentencing changes that the administration has already pushed for are “raising questions of whether the pendulum has swung too far. Some prosecutors say that couriers have little to no incentive to cooperate anymore. Border patrol officials grumble that they are working to catch smugglers, only to have them face little punishment. And judges who once denounced the harsh sentencing guidelines are now having second thoughts.”
Today I want to point out another, perhaps less understood effect of this bill – it puts our national security at increased risk.
According to the Drug Enforcement Administration, terrorists are increasingly funneling illegal drugs into America, raising large sums of money to fund their activities while simultaneously harming our communities. Undoubtedly, the Obama Administration’s unwillingness to control our borders, we have seen recently, contributes to this problem.
Derek Maltz, Director of the Special Operations Division at DEA, called this a two-for-one deal for terrorists: “Poison gets distributed in the West, and they make millions in the process.”
According to a DEA spokesperson, “Most people talk about the drug issue as a health issue, a parenting issue, an addiction issue. But the truth is, it’s really a national security issue.”
In 2006, Congress took specific action to address this issue. When it reauthorized the PATRIOT Act, Congress also made it a separate crime to manufacture or distribute illegal drugs to benefit terrorists or terrorist organizations. The law is codified at Title 21, Section 960a of the U.S. Code. It’s often called the narcoterrorism law.
Just as importantly, Congress created mandatory minimum sentences applicable to narcoterrorism. Those sentences are set at “not less than twice the minimum punishment” applicable to the underlying drug trafficking offenses, which are codified at Title 21, Section 841.
However, the Smarter Sentencing Act would drastically cut the mandatory minimum sentences that apply to these underlying drug trafficking offenses.
What this means is that by slashing in half the mandatory minimum sentences for the local drug dealer down the block, the Smarter Sentencing Act also slashes in half the mandatory minimum sentences for members of the Taliban, al-Qaeda or Hezbollah who deal drugs to fund acts of terror.
So, for example, terrorists who currently face a mandatory minimum sentence of 20 years imprisonment for narcoterrorism would instead face only 10 years if the Smarter Sentencing Act were to become law.
By cutting the mandatory minimum sentences for trafficking drugs to fund terrorism, the Smarter Sentencing Act weakens an important tool that can be used to gain the cooperation of narcoterrorists facing prosecution. This cooperation leads to more arrests, more drug seizures, more terrorists off the streets, and more intelligence that could help prevent attacks.
Indeed, law enforcement authorities have been supportive of the mandatory minimum sentences that apply to the narcoterrorism statute for this very reason.
For example, the Assistant Administrator for Intelligence at the DEA testified before Congress that “the robust sentencing provisions in these statutes provide incentive for defendants to cooperate with investigators, promoting success in investigations.”
The last thing we should do is weaken the leverage that law enforcement currently has to win a terrorist defendant’s cooperation. But that’s what the Smarter Sentencing Act would do.
Indeed, in opposing the bill, federal prosecutors wrote that “mandatory minimums . . . help gain the cooperation of defendants in lower level roles in criminal organizations to pursue higher-level targets.”
The same principle is true, and even more important, when our national security is at stake.
Mr. President, these threats to our safety and security aren’t theoretical – they are real. And the narcoterrorism law isn’t just a statute on the books – it’s a tool that’s actively used by prosecutors to protect our nation.
For example, in 2008, Khan Mohammed, a member of the Taliban, was convicted under the narcoterrorism law of distributing heroin and opium to finance attacks against American troops in Afghanistan.
Chillingly, Mohammed was just as concerned with killing American civilians with drugs as he was with financing rocket attacks against our troops.
The opium he agreed to sell was to be processed into heroin and imported into the United States. As a result, Mohammed was caught on tape exclaiming that, “Good, may God turn all the infidels into dead corpses.” He later expounded upon his deadly intentions: “May God eliminate them right now, and we will eliminate them too. Whether it is by opium or by shooting, this is our common goal.”
Similarly, the narcoterrorism law was used to prosecute Afghan heroin kingpin Haji Bagcho in 2012. He also trafficked heroin to America, and funneled the proceeds to the Taliban. The evidence at trial showed that in 2006, his drug trafficking organization produced almost 20 percent of the world’s opium. And like Mohammed, he targeted Americans. He reportedly encouraged Afghan farmers to “grow opium so we can make heroin to kill the infidels.”
Perhaps it is little wonder that, according to the Drug Enforcement Administration, heroin overdoses resulting in death in the United States increased 45 percent from 2006 to 2010.
It should go without saying that these aren’t individuals whose mandatory minimum sentences should be cut in half. But the authors of the Smarter Sentencing Act apparently think otherwise. Or maybe they don’t understand what they’re doing. Either way, the American people should be extremely concerned about this bill that, unbelievably, was reported out of the Judiciary Committee.
Now, some may assume that the Department of Justice has other tools to go after defendants like these. But the only other charges Mohammed and Bagcho faced were for unlawfully importing these illegal drugs into the United States.
And unbelievably, the Smarter Sentencing Act cuts the mandatory minimum sentence for that crime in half as well.
In addition to these two cases, the Department of Justice has brought prosecutions against other narcoterrorists. Many of these individuals were linked to Hezbollah, one of the most notorious terrorist organizations in the world. In at least one instance, associates of al-Qaeda were also brought to justice for their role in a drug trafficking scheme.
In many of these cases, the narcoterrorism law and the ban on importing illegal drugs played a vital role in the prosecution. We shouldn’t be weakening these laws at this critical time by cutting the penalties associated with them.
Of course, if possible, I’d rather these terrorists be treated as enemy combatants and not be subject to the civilian criminal justice system at all. But on those occasions when they are prosecuted in that system, I want authorities to have the strongest tools available to address the threat they pose.
According to the United States Attorney for the Southern District of New York, who has brought many of these cases, “there is a growing nexus between drug trafficking and terrorism, a nexus that increasingly poses a clear and present danger to our national security. Combating this lethal threat requires a bold and proactive approach.” Cutting the mandatory minimum sentences for narcoterrorists is moving in precisely the opposite direction.
Trafficking in illegal drugs has long been understood to be a way these terrorist organizations raise funds. But it’s now equally clear that this activity is also a way for them to target our fellow citizens directly. In effect, drug trafficking is a method of waging war against the United States. It is a way to terrorize our communities with poison without firing a shot. It is a way to threaten the lives of Americans just as surely as using a bomb, a gun, or a hijacked plane.
Mr. President, terrorists are wielding another tool in their effort to destroy and defeat the United States. This isn’t the moment to weaken one of the tools we have to stop them. This is no time to let down our defenses. It’s no time for the Senate to take up the misnamed Smarter Sentencing Act.