Chapter VI
Legal Issues Pertaining to Victims of Terrorism

here are several key areas of federal law that are important to consider in responding to terrorism victims.

Funding Authorization

As a result of the need for federal monetary assistance to victims of the Oklahoma City bombing, Congress, in 1996, gave OVC the authority to access the Victims of Crime Act emergency reserve fund of $50 million to assist victims of terrorism and mass violence. The Antiterrorism and Effective Death Penalty Act of 1996 amended VOCA by adding 42 U.S.C. 19693(b) to allow OVC access to the emergency reserve fund in both domestic and international terrorist incidents. In domestic terrorism incidents, the OVC Director is authorized to use the reserve funds to supplement existing grants to state crime victim compensation and assistance programs, to provide funds to U.S. Attorneys' Offices for use in coordination with the state programs, and to provide emergency relief to terrorism and mass-violence victims. In international terrorism incidents, the OVC Director can supplement grants to state crime victim compensation and assistance programs to provide compensation and assistance to state residents who are victims of terrorism while outside the United States. OVC has used emergency reserve funds to provide supplemental grants in support of victims of the Oklahoma City bombing, the Khobar Towers bombing, the bombing of Pan Am Flight 103, the bombing of the United States embassies in Kenya and Tanzania, and the Columbine High School shooting incident. The Antiterrorism and Effective Death Penalty Act of 1996 also contained a provision requiring state crime victim compensation programs to include in their compensation programs state residents who are victims of terrorism while outside of the United States.

Although the 1996 amendment adding 42 U.S.C. 10603b to VOCA created a new capability for OVC to provide funding to assist victims in both domestic and international terrorism and mass-violence cases, in practice, the limits of section 10603b's language have caused difficulties in providing funding effectively. The statute's limitations on the recipients of grants, the types of relief that could be funded, the timeframe covered, and problems inherent in sending victims from the same event to a multitude of different state compensation programs have seriously affected OVC's ability to provide effective funding support for terrorism victims. To overcome these restrictions in specific cases, Congress passed special legislation broadening OVC's authorization to provide additional assistance to victims of both the Oklahoma City bombing and the bombing of Pan Am Flight 103. Currently, Congress is considering legislation that would expand OVC's authority to provide funding from the emergency reserve fund in the future. The proposed legislation would also authorize OVC to develop and administer a compensation program for victims of international terrorism.

Victims' Rights During the Criminal Justice Process

Under federal law, U.S. Government agencies involved in investigating and prosecuting crime have certain responsibilities to crime victims. In addition, since 1983, the U.S. Department of Justice has maintained policy guidelines called the Attorney General Guidelines for Victim and Witness Assistance, which establish how the Department expects its employees to treat crime victims and witnesses. During the investigation and prosecution of the Oklahoma City bombing case, the FBI and the United States Attorney's Office operated under the guidance of the 1995 edition of the AG Guidelines, which contains a "best efforts" standard. Under that standard, the government agencies were required to use their best efforts to see that victims were accorded statutory rights and services. The rights and services included identifying the victims; providing them with referral information for medical, psychological counseling, compensation, and restitution matters; providing them with information about the status of the criminal investigation and later the prosecution of the criminal case against the suspects; facilitating victim participation in the criminal case through trial attendance; and presenting impact information during the sentencing.

In January 2000, the Attorney General issued a new, revised edition of the AG Guidelines that makes it clear that some of the statutory victim services are mandatory. Thus, federal law enforcement personnel must (1) identify the victims of a crime; (2) provide the victims with referral information and information about the status of the investigation and the major case events in the prosecution; and (3) arrange for reasonable protection for the victims from intimidation and harassment. The revised AG Guidelines also contain several new sections with guidance about how to provide victim services in large cases, new guidance on attorney consultation with victims about major case events including plea bargains, and a new notification provision for posttrial case events. Moreover, the Oklahoma City bombing case led to two new laws establishing enhanced victim rights in federal criminal cases, which have been incorporated into the 2000 AG Guidelines.

First, the Oklahoma City bombing victims lobbied Congress for the right to attend the trial if the victim would be a witness only during the sentencing phase of the trial. Judge Matsch had ruled that victims who were providing impact information at the sentencing hearing were barred from watching the trial. In response, Congress passed 18 U.S.C. 3510(a), which gives federal crime victims the right to attend the trial regardless of whether the victim intends to make a statement or provide any information in relation to the sentence. Second, because the venue of the Oklahoma City bombing trial was changed from Oklahoma City to Denver, the victims lobbied Congress to allow closed-circuit televising of the trial to an auditorium in Oklahoma City so that victims did not have to travel to Denver to exercise their right to observe the trial (see 42 U.S.C. 10608). These new provisions are also included in the revised AG Guidelines and will improve victim rights and services in future terrorism cases.

Privacy Act

Confusion about the coverage of the Privacy Act resulted in several agencies' refusal to forward lists of victims to federal law enforcement agencies, and that significantly impeded Federal Government agencies' ability to provide victims with legally required rights and services. In the immediate aftermath of the bombing, the American Red Cross had the lead role in assisting the victims and gathering information about the identities of the victims. When the Federal Bureau of Investigation and the U.S. Attorney's Office asked ARC for a list of victims, to comply with federal law that requires law enforcement to identify the victims of the crime, ARC declined to provide the information, citing its belief that the Privacy Act, which generally prohibits government agencies from disclosing records about an individual without that individual's consent, prevented ARC from turning the information over to federal law enforcement officials (see 5 U.S.C. 552(a)). It is unclear whether ARC is a government agency covered by the Act.23 Moreover, the Privacy Act contains a clear exception allowing agencies to transfer personal records for investigative purposes

to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought. [5 U.S.C. 552a (b)(7)]
The delay in providing the list was a major setback to both FBI and U.S. Attorney's Office efforts to identify victims and provide them with legally mandated rights and services. To address this problem in the future, ARC, National Transportation Safety Board (NTSB), FEMA, and U.S. Justice Department components (FBI, EOUSA, and OVC) have entered into memoranda of understanding (MOUs) to enable coordination and the immediate transfer of victim information. Those MOUs are currently under review to ensure that the Privacy Act issues are addressed and completely resolved in advance of any future terrorist event.

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Responding to Terrorism Victims: Oklahoma City and Beyond October 2000