Dale Bumpers

Mr. BUMPERS

Mr. BUMPERS. But they don't have to be here for that first 2 years to get it. And there is nothing in the law that requires them to be here.

Mr. BUMPERS. Primary residence in Hong Kong or the Senator is saying the United States is the primary residence?

Mr. BUMPERS. Mr. President, how much time does the Senator from Arkansas have remaining?

Mr. BUMPERS. How much time do the opponents have?

Mr. BUMPERS. Mr. President, some of this information is really strange to me. It is things I never heard before. The Immigration and Naturalization Service is the one who said, first, that we must have been smoking something when we passed this law, and, second, that we shot ourselves in the foot. And now they say that this program cannot be monitored. The law does require the INS, incidentally, to study the background of these people. You think about that. And the INS says that is utterly impossible. This can be drug money. Any guy who has run drugs in Colombia or wherever can come to this country, put up $100,000, and pretend that he is creating jobs and get himself a green card in 2 years. Hold a hearing in the Judiciary Committee and ask the INS how well they are monitoring this program? They will tell you they don't even come close to having the personnel to monitor this program, or the background of the people who are coming in, the background of those who are putting the money up. Of course they can't. They can't stop the hoards crossing the border from Mexico into the United States. They can't stop the hoards coming into our airports. How do you expect them to do background checks to determine whether or not this money that they do put up, which is about 20 percent or 10 percent of the required amount, how do you expect them to be able to determine whether that is drug money or not? Whether the guy is an escaped convict or not? Whether he is simply coming to educate his children and comes here long enough to set the thing up and goes back to Korea or Hong Kong or Taiwan or wherever. Most all of these people are coming from the Pacific rim. When I say that, I say that advisedly. They are not coming at all. They are coming to visit and then they are going home. They are buying what is advertised by AIS, the biggest limited partnership who deals in these things; they are buying American citizenship and they are buying an alternate residence. Mr. President, let me say one other thing in response to the statement of the Senator from Massachusetts. Pedro Martinez gets a permit to come here for a certain number of days and then he has to go back to the Dominican Republic? Other players, such as Livan Hernandez, of Cuba, came here because he was a baseball pitcher and because he was willing to get in a boat and risk his life, I suppose. Was he one of those? Let me ask the Senator from Massachusetts, was Livan Hernandez one of the boat people that they rescued?

Mr. BUMPERS. I would almost be willing to grant him carte blanche, if he wants to come here bad enough to get into a little old boat and come from Cuba, that is fine. Give that guy a chance to become an American citizen. That is the way our ancestors came. They took risks to get here. They would do anything in the world--to fight and scratch and claw to get here. And people still do. So what are we doing? We are not rewarding them. We are taking up some of the immigration slots in this country with this scam, one of the biggest scams ever perpetrated by the U.S. Congress deliberately. Mr. President, I yield the floor and reserve the remainder of my time.

Mr. BUMPERS. Mr. President, if I may respond to that, that is exactly what the INS says. They cannot monitor this program. They don't have the people to monitor it. They don't know whether they are staying or not. But if you talk to these people running these limited partnerships and consulting firms who are the people really making money out of this--you have to pay them $50,000 up front to pull this scam off. And INS will tell you that they cannot monitor the very question, the very point that the Senator from Massachusetts makes. They are not complying with any of these laws. INS will tell you some of them are and some of them aren't, but they cannot monitor it. The law is bad and the enforcement is impossible. Mr. President, I ask unanimous consent that an article appearing in the New York Times on April 12, 1998, and an article in the Washington Post, dated December 29, 1997, setting out virtually everything I just pointed out in my remarks, be printed in the Record.

Mr. BUMPERS. I yield the floor and suggest the absence of a quorum.

Mr. BUMPERS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. BUMPERS. Mr. President, I ask unanimous consent I be permitted to put in a quorum call and the time be equally charged to the proponents and opponents.

Mr. BUMPERS. Mr. President, let me just say to the distinguished floor manager, Senator Harkin had a 5-minute statement. We are scheduled to vote at 5:45. I am not sure what other amendments are to be voted on besides mine. I assume after that, final passage?

Mr. BUMPERS. Have the votes been ordered on the amendments of the Senator from Massachusetts?

Mr. BUMPERS. Mr. President, let me say to both floor managers, I was prepared to yield back my time, but Senator Harkin came over and waited quite awhile. He had a statement he wanted to make for 5 minutes on something completely unrelated. I reserve my time.

Mr. BUMPERS. Is this as good a time as any to ask for the yeas and nays on my amendment? I ask for the yeas and nays.

Mr. BUMPERS. Could we have a little order, please?

Mr. BUMPERS. Mr. President, in 1989 this body adopted a provision that said anybody who will invest $500,000 or $1 million in this country and create or maintain 10 jobs can get a green card for 2 years and, 3 years later, have American citizenship. The program never took off, and since that time a cottage industry has grown up of people who were advertising in Taiwan and Oman and saying: ``$100,000 is all you need. You give us a $400,000 promissory note, you still get your green card.'' The INS says it is impossible to monitor. You don't know where these people are coming from; you don't know where their money is coming from. Mr. President, what we are doing allowing this to continue --and the INS says it is a disaster--is cheapening American citizenship. You want foreign investment? Give them tax breaks. Do not--do not--cheapen American citizenship. These are not the tired, these are not the poor, these are not the huddled masses. These are people from Hong Kong, Korea, the Pacific rim, who don't even come here; they send $100,000. They don't even want our citizenship, because they have to pay taxes. It is a terrible, shameful thing. It is downright vulgar. I plead with you, vote to strike that provision from the bill.

Mr. BUMPERS. Mr. President, I ask unanimous consent for 5 seconds.

Mr. BUMPERS. The distinguished Senator from Michigan said 1,000 slots. It is 10,000 slots.

Mr. BUMPERS

Mr. BUMPERS. I ask unanimous consent that I be permitted to proceed as if in morning business.

Mr. BUMPERS

Mr. BUMPERS. Madam President, on a separate matter, I want to inform my colleagues that I am also working on legislation that will require prosecutors, before they ask for an indictment, to also give the grand jury any exculpatory evidence they may possess. Prosecutors, as I previously outlined in some detail, have such an advantage, such an upper hand. Some of it is legitimate, and some of it is not. As one New York judge said, ``A grand jury will indict a ham sandwich'' if the prosecutor asked them to. I had a prosecutor tell me one time, ``This is the best grand jury I ever saw; it indicted everybody I asked them to indict.'' Of course they indicted everybody. They are putty in his hands. I will just give you an illustration of the kind of case that I am trying to get at. Let's assume that you are a prosecutor and you are getting ready to ask the grand jury to indict somebody for capital murder. Assume further that all the testimony that has been taken in that case said that the man who pulled the trigger and committed the murder was wearing a green jacket. Assume further that the prosecutor has had information come to him personally, though it has never been presented to the grand jury, that it was, in fact, a red jacket. I am making a rather extreme case here, but I ask you, in the spirit of elemental fairness, do you believe that the prosecutor, before he asks somebody to go on trial and possibly end up in the electric chair, is beholden in any way to tell the grand jury of totally exculpatory evidence that he may have in his possession? There is a Supreme Court decision, the name of which I forget, in which the Supreme Court ruled 5-4 that the prosecutor is absolutely under no compulsion to tell the grand jury of any exculpatory evidence in his possession. If that isn't a betrayal of everything that we Americans believe, including fundamental fairness, if that is not a betrayal of everything I was taught in law school, I cannot think of a more egregious case. Madam President, one of the reasons we have not had these debates in the past is because the crime rate in this country was soaring. And everybody was in a put-them-in-jail and throw-away-the-key mode. But I wanted my colleagues to stop and just reflect for a moment. God knows, I am not suggesting any guilty person should go free, but you heard that old story: Better that 1,000 guilty people go free than one innocent person be convicted. I did not do very much criminal trial work when I practiced law. I used to take maybe one case a year just so I would have to stay boned up on what the Supreme Court had ruled on, mostly rules of evidence and defendants' rights. And, yes, I defended a man one time that in my own mind I felt sure was guilty and the jury acquitted him. That sounds terrible to a lot of people who do not understand the criminal justice system. Everybody is entitled to a trial. So all I am saying is the crime rates are coming down. People ought to be in a little more circumspect mood about what the Founding Fathers meant. The most important thing I said in my former remarks a moment ago about the bill I am introducing today is that the law is supposed to be a shield as well as a sword. It is supposed to protect the liberty of people in this country as well as to prosecute the guilty. It also has an obligation to defend and free the innocent. So that is all these proposals I am making are calculated to do; keep a firm commitment to our elemental belief in fairness, in the rights of the innocent and, yes, to prosecute and convict the guilty. Madam President, I yield the floor and suggest the absence of a quorum.

Mr. BUMPERS

Mr. BUMPERS. Madam President, I recently introduced S. 1968, the Telephone Privacy Act. This bill, which has bipartisan support, has nothing to do with Linda Tripp or anybody else. I first proposed legislation regarding telephone privacy in 1984 when it was revealed that Charles Wick, who was head of the United States Information Agency, had tape-recorded President Reagan and President Carter and several Cabinet officials 84 times without their knowledge. Can you remember when you were a kid and you used to listen to telephone conversations? The announcer would call somebody or somebody would call in because they had the answer to a question, and you would hear beeping in the background. In those days, that was a sign that you were being recorded. Somewhere along the line, that practice was discontinued. Today, you can tape-record your very best friend and not tell that friend and hand it to all three networks for use on the evening news and no federal crime has been committed. Not too long ago, Attorney General Reno testified before the Appropriations Subcommittee on State, Justice, Commerce, on which I sit. At that time, we were working on this bill, and I asked her about it. She said, ``Well, Florida already has such a law that makes it a criminal offense to tape-record a conversation without telling somebody.'' I said, ``How long have they had the law?'' She said, ``Since around 1970.'' I said, ``Were you the prosecutor in Dade County at the time that happened?'' She said she was. I said, ``Well, how did you feel about the bill when it was being debated?'' She said, ``I favored it.'' As usual, Congress doesn't get the message until after the States have acted--16 States have already enacted legislation almost identical to S. 1968 , and here we sit still allowing people to invade our privacy, the most fundamental privacy when people have their guard down the most, by tape-recording conversations which can later be used for any purpose they choose. It is not an offense, and it ought to be. I hope that some of my colleagues who may be listening will go back and look at my full remarks that were entered in the Record at the time I introduced that bill.

Mr. BUMPERS

Mr. BUMPERS. Madam President, I am today introducing legislation which will remedy a longstanding injustice in our criminal justice system by granting to grand jury witnesses the right to the presence of counsel when testifying before the grand jury. In our legal system, the right to counsel is fundamental. Every person, no matter how guilty or innocent, deserves to have an advocate. So fundamental is this right to counsel that it was recognized by the founders and enshrined in the sixth amendment to the Constitution. Along with the right to an impartial jury, public trial, and the right to confront witnesses, it is a universal element of fundamental fairness recognized by every civilized system of justice. Lawyers may never be popular, said William Shakespeare in Henry VI, Act III Scene II: ``The first we do, let's kill all the lawyers.'' But lawyers are a necessity. No one in his right mind wants to confront the judicial system without the benefit of a lawyer. The Anglo-American criminal justice system has given us more freedom and better justice than any country in the history of civilization. The rights of American citizens evolved over centuries of English and American history are now enshrined in the Bill of Rights and are the standards of freedom and liberty all over the world. We must not allow those rights to be eroded. No American would claim that our system is perfect, nor do I so claim. I am convinced beyond a doubt that our system has serious flaws, one of which most people are probably not even aware and many might find hard to believe in this day and age. A witness summoned before a grand jury has no right to the presence of his lawyer in the grand jury room. Depriving anybody of the right to counsel is fundamentally wrong. No person should be required to face any part of the criminal justice system without the presence of his or her lawyer if he or she chooses. Think of it this way. Police have absolutely no right to question an arrestee without his lawyer in the room unless the individual waives that right. The police even have a constitutional duty under the Miranda decision to advise people of their rights to a lawyer, even though anybody who has watched television in the last 35 years ought to know that they are entitled to a lawyer. If the police fail to observe this constitutional requirement, the statement by the accused is inadmissible in court. But when an ordinary citizen is called before a grand jury, no lawyer--no lawyers are allowed to be present. The prosecutor and the grand jury have the unlimited ability to question the witness, who is not even under arrest, without an attorney present. This gross inconsistency can only be described as Byzantine, an anachronism. I have never been one to say that criminal defendants have too many rights. They have no more than the Constitution entitles them. In this instance, however, a criminal defendant has more rights than the average ordinary citizen called before a grand jury. A criminal defendant cannot be questioned without a lawyer present, and he or she may invoke his or her right not to testify under the fifth amendment privilege against self-incrimination. But a witness, a witness in the grand jury room who may later become a target under criminal investigation, has no such rights. He or she must testify fully and truthfully, no matter how burdensome or embarrassing or impertinent or irrelevant the questions may be, and without the assistance of counsel. The rules of evidence which normally require that questions be relevant and material do not apply in the grand jury room. On the contrary, so-called ``fishing expeditions'' have become commonplace. No matter how irrelevant or outrageous the questions, the witness must answer. Madam President, I ask you or any American to consider whether, if you or your son or daughter were served a subpoena to testify before the grand jury on a criminal case, even though the grand jury is supposedly investigating somebody else, would you want the right to have your own lawyer in the room? Would you feel the process was a fair one if you were told that you were not legally entitled to have a lawyer present? What if you or your loved one were called before the grand jury for a second, third, or fourth time? Would you begin to feel that you might be under suspicion for something? And would you feel comfortable answering endless questions without your lawyer present? The grand jury is the only circumstance I can imagine in life where a free person does not have a complete legal right to hire a lawyer and have that lawyer accompany him in any kind of proceeding. No matter how serious the matter under consideration, no matter what the question-- from the most complex matter of tax accounting to the most personal, intimate family concerns--no matter how hazy your recollection might be, you have no right to a lawyer before the grand jury. The grand jury room is the one and only room in the courthouse, the very temple of justice, where the proceeding is entirely one-sided. Under existing law, there could be a sign on the grand jury room saying, ``No lawyers allowed.'' The Government has as many lawyers as the Treasury can pay. The witness has zero. Notwithstanding that he or she may be there against his or her will, notwithstanding the power of the grand jury and the prosecutor to indict, a witness before a grand jury is defenseless. He or she has no friend in the room. Surely, nobody feels so alone as a grand jury witness, knowing that the weight of the Federal criminal justice system rests on his or her every word. Give the wrong answer, you can be accused of perjury, obstruction of justice, or any other of a number of crimes. If you refuse to answer, you can go directly to jail without benefit of a trial, being held in contempt. Madam President, I ask you to consider, What kind of atmosphere is created in this one-sided proceeding? Is it one of fairness or is it one of intimidation? Bear in mind that there is no limit on the number of times a person may be called to testify before the same grand jury. In recent news reports--we have all read them--some people have been called to testify for the fifth or sixth time--no lawyer allowed-- before the same grand jury. If you were in this position, or a member of your family were, how would you feel about being called for the sixth time to testify without your lawyer present? Would you feel threatened or intimidated? And this kind of proceeding not only does not provide justice and fairness, it doesn't even provide the appearance of justice and fairness, which is essential if citizens are to have confidence in our criminal justice system. This system needs changing. The bill I am introducing is a modest proposal to give some balance to a very unlevel playing field. The main purpose of the original grand jury was probably helping in the collection of taxes. These ancient roots precede even the right to jury trial, because in the earliest times, trial was by ordeal. The accused was required to put his hand in boiling water or was tested by drowning. Needless to say, there weren't very many acquittals. The grand jury has always symbolized the power of the criminal justice system to bring any person before the bar of justice. No one is beyond the power of the grand jury to seek evidence and to indict if there is probable cause to believe that a crime has been committed. Even before the right to trial by jury was secured, English grand juries had power to investigate and to accuse. Composed of ordinary citizens, grand juries had the power to compel any person to appear and give testimony or evidence. Historically, the grand jury was a guarantor of liberty--a guarantor of liberty. The courts have often stated that the grand jury has a dual function. Listen to this. The courts have said that the grand jury has a dual function, ``to clear the innocent, no less than to bring to trial those who may be guilty.'' The grand juries exist ``as a means of protecting the citizen against unfounded accusation, whether it comes from the government, or be prompted by partisan passion or private enmity.'' We just saw what private enmity is when somebody tried to set up Howard Baker in a tax fraud case. The Founding Fathers so respected the institution that they enshrined the right to indictment by a grand jury in the sixth amendment to the Constitution. Here it is: No person shall be held to answer for a capital, or otherwise infamous crime, [and that has been interpreted many times to mean a felony] unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger * * *. That is amendment 5 to the Constitution. The grand jury should be both a sword and a shield, a powerful tool in the hands of prosecutors and a defender of liberty by protecting against meritless or overzealous prosecutions. In colonial America, a grand jury in Boston helped signal the beginning of the end of colonial government when the jurors refused the Government's request to indict the Stamp Act rioters. In modern times, however, the grand jury has become almost exclusively a sword and not a shield. Examples of the grand jury as a shield are hard to come by. In short, we have allowed the protection intended by the founders to take a 180-degree turn. The Supreme Court has conceded that the grand jury does not always serve its intended purpose of protecting the innocent. This is what the Supreme Court said in U.S. v. Dionisio: The grand jury may not always serve its historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor. Those were the words of Justice Douglas. Douglas said in dissent in that case--he was much more explicit: It is, indeed, common knowledge that the grand jury, having been conceived as a bulwark between the citizen and the government, is now a tool of the Executive. Despite its ancient origins, the grand jury remains one of the most controversial aspects of our judiciary system. Most States have abandoned or abolished grand juries in favor of the filing of information by prosecutors. That is the way we do it in my home State of Arkansas. Many would argue that the grand jury is an anachronism which costs more than it is worth. In one of the most famous critiques of the institution, the Chief Judge of the State of New York stated that most grand juries would ``indict a ham sandwich'' if the prosecutor requested it. While some have argued for eliminating the grand jury, I am not one to second-guess the wisdom of our Founding Fathers. Rather, I believe we should make the system work as intended--as a protector of freedom-- by reforming the grand jury system so as to ensure due process of law for all concerned. In the 1970s, there was considerable debate in Congress over the merits of the grand jury following revelations of abuses of the system under the Nixon administration. There has been no serious congressional debate over the grand jury system for over 10 years. The time for that debate has come. Over 30 years ago, the Supreme Court said in Gideon v. Wainwright that counsel must be appointed for those who cannot afford a lawyer before any criminal trial in which a prison sentence may result. The bill I am introducing today is a logical extension of the sixth amendment to the Constitution, as well as the fifth amendment's promise of due process of law. Granted, a witness before a grand jury is not under immediate threat of indictment, but most of them are there against their will, and they are certainly looking over the abyss. Let me emphasize that my bill, although a departure from historical practice, is still a modest proposal. This bill would not in any way change criminal procedure except for allowing a witness' lawyer to be present in the grand jury room. The lawyer would not be allowed to speak to the jury or to examine witnesses. He or she would be able to advise his or her client and no more. Allowing the mere presence of a witness' lawyer will in no way disrupt or slow the grand jury proceedings. What it might do is to deter a prosecutor from doing something improper simply because he knows there is no other lawyer watching. It may give a witness some comfort to be able to ask his or her lawyer for advice before answering a complex question. That right is provided today, but the witness has to go outside the courtroom to see his or her counselor because the counsel is not allowed in the grand jury room. My bill will thus allow for grand juries to operate more smoothly and efficiently, reducing the need to stop proceedings so the witness can go out of the room and talk to his or her lawyer. This bill goes to the very reason lawyers exist. It may give the public more confidence that the proceedings are fair and balanced at a time when public confidence in the judicial system is about as low as it has ever been. If any of these purposes are met, my legislation will have served a noble purpose. Mr. President, I hope that all Senators will take note of this bill and that they will support it. It will be referred to the Judiciary Committee, and I hope that the committee will schedule hearings very promptly. I ask unanimous consent that the bill be printed in the Record.

Mr. BUMPERS

Mr. BUMPERS. Madam President, I am today introducing legislation which will remedy a longstanding injustice in our criminal justice system by granting to grand jury witnesses the right to the presence of counsel when testifying before the grand jury. In our legal system, the right to counsel is fundamental. Every person, no matter how guilty or innocent, deserves to have an advocate. So fundamental is this right to counsel that it was recognized by the founders and enshrined in the sixth amendment to the Constitution. Along with the right to an impartial jury, public trial, and the right to confront witnesses, it is a universal element of fundamental fairness recognized by every civilized system of justice. Lawyers may never be popular, said William Shakespeare in Henry VI, Act III Scene II: ``The first we do, let's kill all the lawyers.'' But lawyers are a necessity. No one in his right mind wants to confront the judicial system without the benefit of a lawyer. The Anglo-American criminal justice system has given us more freedom and better justice than any country in the history of civilization. The rights of American citizens evolved over centuries of English and American history are now enshrined in the Bill of Rights and are the standards of freedom and liberty all over the world. We must not allow those rights to be eroded. No American would claim that our system is perfect, nor do I so claim. I am convinced beyond a doubt that our system has serious flaws, one of which most people are probably not even aware and many might find hard to believe in this day and age. A witness summoned before a grand jury has no right to the presence of his lawyer in the grand jury room. Depriving anybody of the right to counsel is fundamentally wrong. No person should be required to face any part of the criminal justice system without the presence of his or her lawyer if he or she chooses. Think of it this way. Police have absolutely no right to question an arrestee without his lawyer in the room unless the individual waives that right. The police even have a constitutional duty under the Miranda decision to advise people of their rights to a lawyer, even though anybody who has watched television in the last 35 years ought to know that they are entitled to a lawyer. If the police fail to observe this constitutional requirement, the statement by the accused is inadmissible in court. But when an ordinary citizen is called before a grand jury, no lawyer--no lawyers are allowed to be present. The prosecutor and the grand jury have the unlimited ability to question the witness, who is not even under arrest, without an attorney present. This gross inconsistency can only be described as Byzantine, an anachronism. I have never been one to say that criminal defendants have too many rights. They have no more than the Constitution entitles them. In this instance, however, a criminal defendant has more rights than the average ordinary citizen called before a grand jury. A criminal defendant cannot be questioned without a lawyer present, and he or she may invoke his or her right not to testify under the fifth amendment privilege against self-incrimination. But a witness, a witness in the grand jury room who may later become a target under criminal investigation, has no such rights. He or she must testify fully and truthfully, no matter how burdensome or embarrassing or impertinent or irrelevant the questions may be, and without the assistance of counsel. The rules of evidence which normally require that questions be relevant and material do not apply in the grand jury room. On the contrary, so-called ``fishing expeditions'' have become commonplace. No matter how irrelevant or outrageous the questions, the witness must answer. Madam President, I ask you or any American to consider whether, if you or your son or daughter were served a subpoena to testify before the grand jury on a criminal case, even though the grand jury is supposedly investigating somebody else, would you want the right to have your own lawyer in the room? Would you feel the process was a fair one if you were told that you were not legally entitled to have a lawyer present? What if you or your loved one were called before the grand jury for a second, third, or fourth time? Would you begin to feel that you might be under suspicion for something? And would you feel comfortable answering endless questions without your lawyer present? The grand jury is the only circumstance I can imagine in life where a free person does not have a complete legal right to hire a lawyer and have that lawyer accompany him in any kind of proceeding. No matter how serious the matter under consideration, no matter what the question-- from the most complex matter of tax accounting to the most personal, intimate family concerns--no matter how hazy your recollection might be, you have no right to a lawyer before the grand jury. The grand jury room is the one and only room in the courthouse, the very temple of justice, where the proceeding is entirely one-sided. Under existing law, there could be a sign on the grand jury room saying, ``No lawyers allowed.'' The Government has as many lawyers as the Treasury can pay. The witness has zero. Notwithstanding that he or she may be there against his or her will, notwithstanding the power of the grand jury and the prosecutor to indict, a witness before a grand jury is defenseless. He or she has no friend in the room. Surely, nobody feels so alone as a grand jury witness, knowing that the weight of the Federal criminal justice system rests on his or her every word. Give the wrong answer, you can be accused of perjury, obstruction of justice, or any other of a number of crimes. If you refuse to answer, you can go directly to jail without benefit of a trial, being held in contempt. Madam President, I ask you to consider, What kind of atmosphere is created in this one-sided proceeding? Is it one of fairness or is it one of intimidation? Bear in mind that there is no limit on the number of times a person may be called to testify before the same grand jury. In recent news reports--we have all read them--some people have been called to testify for the fifth or sixth time--no lawyer allowed-- before the same grand jury. If you were in this position, or a member of your family were, how would you feel about being called for the sixth time to testify without your lawyer present? Would you feel threatened or intimidated? And this kind of proceeding not only does not provide justice and fairness, it doesn't even provide the appearance of justice and fairness, which is essential if citizens are to have confidence in our criminal justice system. This system needs changing. The bill I am introducing is a modest proposal to give some balance to a very unlevel playing field. The main purpose of the original grand jury was probably helping in the collection of taxes. These ancient roots precede even the right to jury trial, because in the earliest times, trial was by ordeal. The accused was required to put his hand in boiling water or was tested by drowning. Needless to say, there weren't very many acquittals. The grand jury has always symbolized the power of the criminal justice system to bring any person before the bar of justice. No one is beyond the power of the grand jury to seek evidence and to indict if there is probable cause to believe that a crime has been committed. Even before the right to trial by jury was secured, English grand juries had power to investigate and to accuse. Composed of ordinary citizens, grand juries had the power to compel any person to appear and give testimony or evidence. Historically, the grand jury was a guarantor of liberty--a guarantor of liberty. The courts have often stated that the grand jury has a dual function. Listen to this. The courts have said that the grand jury has a dual function, ``to clear the innocent, no less than to bring to trial those who may be guilty.'' The grand juries exist ``as a means of protecting the citizen against unfounded accusation, whether it comes from the government, or be prompted by partisan passion or private enmity.'' We just saw what private enmity is when somebody tried to set up Howard Baker in a tax fraud case. The Founding Fathers so respected the institution that they enshrined the right to indictment by a grand jury in the sixth amendment to the Constitution. Here it is: No person shall be held to answer for a capital, or otherwise infamous crime, [and that has been interpreted many times to mean a felony] unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger * * *. That is amendment 5 to the Constitution. The grand jury should be both a sword and a shield, a powerful tool in the hands of prosecutors and a defender of liberty by protecting against meritless or overzealous prosecutions. In colonial America, a grand jury in Boston helped signal the beginning of the end of colonial government when the jurors refused the Government's request to indict the Stamp Act rioters. In modern times, however, the grand jury has become almost exclusively a sword and not a shield. Examples of the grand jury as a shield are hard to come by. In short, we have allowed the protection intended by the founders to take a 180-degree turn. The Supreme Court has conceded that the grand jury does not always serve its intended purpose of protecting the innocent. This is what the Supreme Court said in U.S. v. Dionisio: The grand jury may not always serve its historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor. Those were the words of Justice Douglas. Douglas said in dissent in that case--he was much more explicit: It is, indeed, common knowledge that the grand jury, having been conceived as a bulwark between the citizen and the government, is now a tool of the Executive. Despite its ancient origins, the grand jury remains one of the most controversial aspects of our judiciary system. Most States have abandoned or abolished grand juries in favor of the filing of information by prosecutors. That is the way we do it in my home State of Arkansas. Many would argue that the grand jury is an anachronism which costs more than it is worth. In one of the most famous critiques of the institution, the Chief Judge of the State of New York stated that most grand juries would ``indict a ham sandwich'' if the prosecutor requested it. While some have argued for eliminating the grand jury, I am not one to second-guess the wisdom of our Founding Fathers. Rather, I believe we should make the system work as intended--as a protector of freedom-- by reforming the grand jury system so as to ensure due process of law for all concerned. In the 1970s, there was considerable debate in Congress over the merits of the grand jury following revelations of abuses of the system under the Nixon administration. There has been no serious congressional debate over the grand jury system for over 10 years. The time for that debate has come. Over 30 years ago, the Supreme Court said in Gideon v. Wainwright that counsel must be appointed for those who cannot afford a lawyer before any criminal trial in which a prison sentence may result. The bill I am introducing today is a logical extension of the sixth amendment to the Constitution, as well as the fifth amendment's promise of due process of law. Granted, a witness before a grand jury is not under immediate threat of indictment, but most of them are there against their will, and they are certainly looking over the abyss. Let me emphasize that my bill, although a departure from historical practice, is still a modest proposal. This bill would not in any way change criminal procedure except for allowing a witness' lawyer to be present in the grand jury room. The lawyer would not be allowed to speak to the jury or to examine witnesses. He or she would be able to advise his or her client and no more. Allowing the mere presence of a witness' lawyer will in no way disrupt or slow the grand jury proceedings. What it might do is to deter a prosecutor from doing something improper simply because he knows there is no other lawyer watching. It may give a witness some comfort to be able to ask his or her lawyer for advice before answering a complex question. That right is provided today, but the witness has to go outside the courtroom to see his or her counselor because the counsel is not allowed in the grand jury room. My bill will thus allow for grand juries to operate more smoothly and efficiently, reducing the need to stop proceedings so the witness can go out of the room and talk to his or her lawyer. This bill goes to the very reason lawyers exist. It may give the public more confidence that the proceedings are fair and balanced at a time when public confidence in the judicial system is about as low as it has ever been. If any of these purposes are met, my legislation will have served a noble purpose. Mr. President, I hope that all Senators will take note of this bill and that they will support it. It will be referred to the Judiciary Committee, and I hope that the committee will schedule hearings very promptly. I ask unanimous consent that the bill be printed in the Record.

Mr. BUMPERS

Mr. BUMPERS. Mr. President, first of all, let me say that I have listened rather attentively to the debate the past 3 days. It has all been heartfelt. A lot of it has been very thoughtful. I think it has been instructive for the Senate to hear this debate. I spent a lot of time reading a lot of articles, doing a lot of research and trying to reach a conclusion that I felt not only was correct, but one that I would feel very comfortable with not just today but in future years. I have heard a lot of people say the average man on the street in Russia does not really care about NATO expansion. I agree with that. He or she doesn't care about it right now, just as the American people are not zeroed in on partial-birth abortion right now. But you wait until October and November comes and all those 30-second spots start appearing on television, and those awful, barbaric films are shown just before the election, and you will find that virtually everybody in America cares about that issue. And when the election in Russia is held in the year 2000, you can rest assured the hard-liners are going to have a picnic. Mr. President, I have read a number of times that we should not let the Russian hard-liners dictate our foreign policy. I agree with that. By the same token, I do not think we ought to gratuitously allow the Russian hard-liners to dictate internal policy in Russia as well as foreign policy to come. I am one who believes that peace on the Eurasian Continent and probably in the world is dependent on our engaging Russia over the next several years. I do not denigrate any of the arguments for ratification. I think a lot of the arguments are very compelling for expanding NATO. But when I weigh what I believe will be the cost sometime in the future compared to the benefits, I believe the cost is likely to far outweigh the benefits. What do we get out of it? Not NATO but the United States. How are we enriched? How is our security aided by taking in these three countries? If, as I believe at some point the hard-liners in Russia are going to have a field day with this, just as there are people in this body and in the United States who cannot give up on the cold war, I think we are going to pay a heavy price. Nobody should cling to the naive belief that a lot of this expansion is not dictated by the hard-liners in this country. We have our own. We have people who after 50 years of fearing the great Russian bear and communism and the Soviet Union have a very difficult time turning loose that philosophy. I hear it said that we gave our word to Poland, the Czech Republic, and Hungary, and we must follow through on our word. I hear it said that they have suffered enough. And God knows, we can all relate to that. We all know what Eastern Europe endured under the foot of communism and the U.S.S.R. for 45 years after World War II. Not only are we sympathetic, in my opinion, without the expansion of NATO, the United States and our allies in Europe would come to the rescue of any of these countries if they were threatened. But we should bear in mind also in that connection that it was not Russia, it was not the Soviet Union that invaded Czechoslovakia, that invaded Poland and Hungary. We hear all of these soothing assurances from proponents of enlargement that NATO is a defensive alliance; we have no aggressive intentions. I believe that. Of course, that is true. But I am not Russia. I ask the Members of this body, if the shoe were on the other foot how would they feel? Incidentally, I might say that one of the most powerful speeches I have ever heard made on the Senate floor was about 30 seconds long during the Panama Canal Treaty debate. That was by far the most volatile political issue to confront this body since I have been in the Senate. Everybody that was going to vote for it--and it had 67 votes--was trying to cleanse their skirts with their constituents back home. And Henry Bellmon, a wonderful Republican Senator from Oklahoma, stood at his desk at about where the Senator from Indiana is seated right now and said: ``I have agonized about this for 6 weeks. The President's called me. The Secretary of State's called me, and people on the other side have called me. Mr. President, I have decided that I think we ought to treat the Panamanians the way we would want to be treated, and therefore I am going to vote for the treaties.'' He shortly thereafter announced he would not run again because he knew he could not possibly be reelected in Oklahoma with that vote. You talk about a profile in courage. That is probably the most dramatic illustration of it I have seen since I have been in the Senate. And so I ask you this: If this treaty were being executed by Russia, Mexico and Canada, and Russia was saying not to worry, don't worry about us lining up with Mexico and Canada on your border, we have no aggressive intentions, how would that go over? Mr. President, we cannot deny what this treaty is all about. It is to hem Russia in. The Russians are not stupid. Look at some of the declarations in the resolution itself. Paragraph (2)(A)(i). It says: Notwithstanding the collapse of communism in most of Europe and the dissolution of the Soviet Union, the United States and its NATO allies face threats to their stability and territorial integrity including [listen to this] the potential for the emergence of a hegemonic power in Europe. That is No. 1. ``The potential for the emergence of a hegemonic power in Europe.'' Now, the Russians would never guess who we were referring to with that. Further: The invasion of Poland, Hungary, or the Czech Republic, or their destabilization arising from external subversion, would threaten the stability of Europe and jeopardize vital United States national security interests. Who would invade Poland, Hungary or the Czech Republic? The Russians would never guess who we were referring to in this resolution. Listen to this: Extending NATO membership to Poland, Hungary, and the Czech Republic will strengthen NATO, enhance security and stability in Central Europe, deter potential aggressors, and thereby advance the interests of the United States and its NATO allies. Question: Who do you think the potential aggressor is? Or, perhaps the Russians will never see or know about a letter I received in my office last week from Mr. Bruce Jackson, president of the United States Committee to Expand NATO. Here is what he said: Dear Senator: I am forwarding a copy of Charles Krauthammer's opinion piece which appeared on April 17 in the Washington Post while the Senate was in recess. While I cannot say that every member of the U.S. Committee to Expand NATO shares Dr. Krauthammer's views on Russia, we are in complete agreement with his conclusion: NATO expansion is simply a return to--a ratification of normality . . . It is the easiest U.S. foreign policy call of the decade. If you need any additional information, call me. This is the Committee to Expand NATO, saying we agree with virtually everything Dr. Krauthammer said in his article in the Washington Post. And what did Dr. Krauthammer say? Listen to this headline. This is the headline of the Krauthammer article that that committee says they agree with totally. ``Is NATO expansion directed against Russia? Of course it is.'' What would our response be if we were in Russia's shoes? Their conventional forces are in shambles, their economy is a basket case, their people are demoralized and they are experiencing the fifth consecutive year of economic negative growth. The most dangerous thing in the world is for a bully to jump on somebody who is weak. You know what I have always said? I think government has a role in our lives. I think government has a role in protecting the weak from the bully. I am not saying the United States is a bully. But I am saying, when we expand NATO at a time when Russia is on their hunkers and everybody knows it--mostly the Russians--what would our response be? We have assured Russia orally we will not put nuclear weapons in Poland, Hungary, and the Czech Republic. But we have refused to put that in writing. You think of that. Again, I am going to come back to the broken promise of all broken promises in just a moment. But here we are telling Russia that we will not put nuclear weapons in the three countries that we are taking into NATO, ``So you have nothing to fear.'' But we don't want to put it in writing. And yesterday the U.S. Senate, by a vote of 90 to 9, said the very foundation of NATO requires a nuclear presence in Europe and those three countries were not excluded in that amendment. The Russians would have to be naive beyond all imagination to believe that Dr. Krauthammer wasn't saying it exactly right. NATO enlargement is designed to hem Russia in. Mr. President, the last time Russia took our word for something was in 1990. It was in a meeting during a meeting between Secretary of State Baker and Mikhail Gorbachev, and the promise was very simple, according to Jack Matlock, who was our Ambassador to Russia at the time. When the Soviet empire was falling apart and the Germans were clamoring to reunify the west and east, we promised Mikhail Gorbachev that if he would not interfere with the reunification of Germany, we would never move NATO 1 foot further east toward Russia. I have no documentation to prove that, but I called Jack Matlock, who knows what happened, and asked him. He assured me in roughly a 30-minute conversation, over and over and over, that not only did the United States promise Russia we would not move any further--wouldn't move NATO any further east toward Russia, Helmut Kohl later joined in the promise. I am not saying that Gorbachev had that much option. I am saying we made the promise. Again, an oral promise. Let me go back to the rationale some people use for saying we have to go through with this. It is because we promised the Czech Republic, Poland, and Hungary that we would do it. How about our promises to Russia that we would not? So, what are we doing to Russia? We are forcing them to rely more and more heavily on nuclear weapons. And the more you rely on nuclear weapons, the lower the hair trigger for nuclear war. Why are they depending on nuclear weapons? It is cheaper. They can maintain a nuclear force at a fraction of the cost of maintaining a conventional force in case NATO did attack them. Are we safer with the Russians depending on nuclear weapons? Of course we are not. That is another big negative to this whole thing. And the Duma says they are not going to ratify START II. Maybe they will. I hear arguments on both sides of that. But I can tell you this, START II is extremely important to the security of the world and it is extremely important to the security of the United States. But the Duma has not ratified it. They have talked about it for almost 2 years now and they have not ratified it. So, what does that mean? It means we have to maintain our nuclear forces on a high state of readiness, at an extra cost of several billion dollars a year. There has been a lot of talk about who is going to pay for all of the new weaponry for Poland, Hungary, and the Czech Republic. Nobody has mentioned the fact that instead of destroying weapons, as we would under START II, we may very well not only keep them but keep them on a high state of readiness, and it is already costing us several billion dollars a year to maintain the extra nuclear forces. What are our friends in Russia saying? Mr. President, I feel this may be the most salient point I can make in the debate on why I do not intend to vote for the expansion of NATO. What are our friends--who we are depending on to democratize and bring sanity to the Soviet Union and bring that poor, bedraggled nation into the 20th century--what are they saying? Victor Chernomyrdin, everybody thought he was a rational, moderate person. Vice President Gore is genuinely fond of him and met with him many times. What does he think about this? Here is what he said: We will never agree that the expansion of NATO is needed now, since its doctrine of confrontation with the Warsaw Pact, the Soviet Union and Russia, has not essentially changed. That is one of our good friends. Then: The Russian Federation National Security Blueprint which was signed by Boris Yeltsin: The prospect of NATO expansion to the east is unacceptable to Russia since it represents a threat to its national security. What did the State Duma, the principal legislative body in Russia, say 3 months ago? This wasn't way back in the past, it was January 23 this year. They passed a resolution saying: Given the weakening of Russia's defense capacity, NATO enlargement means the appearance of the most serious military threat to our country since 1954. And here is Yuli Vorontsov, Ambassador to the United States: I would say that movement of NATO forces close to the Russian borders is generally being considered by all political forces in Russia as a threat. You can ask anybody there. Do not just ask Communists; we know what they will say. Ask liberals, ask democrats, ask young and ask old. Nobody in Russia is applauding this move, because everybody is afraid it is going to be a military threat. That is what our friends in Russia say. What they say is, ``You're cutting our legs off right under us. We want to be friends. We want Russia to move into the 21th century, and we want peace on the Eurasian continent. So what in the name of God are you doing threatening us with this expansion?'' Bill Clinton made one of the most poignant statements he has ever made in his life back in 1992 when he was running for President. April 1992--listen to this beautiful statement: What does a democratic Russia mean to Americans? Lower defense spending, a reduced nuclear threat, a diminished risk of environmental disasters, fewer arms exports and less proliferation, access to Russia's vast resources through peaceful commerce, and the creation of a major new market for American goods and services. That is what President Clinton said in a beautiful statement in 1992 when he was candidate Clinton. What does Admiral Bill Crowe say? And Admiral Crowe, incidentally, favors the expansion of NATO, but he wrote some beautiful words about it. Listen to it. I think everybody in this body and everybody whoever knew him has a profound respect for Bill Crowe, Chairman of the Joint Chiefs of Staff, recently Ambassador to the Court of St. James. He said: Put bluntly, the outcome of events in Russia can directly affect the future of the free world. The epic journey of that great nation is far from over . . . If the Russian people ultimately return to some form of autocracy, it would be a genuine disaster, not only for them but for us as well. In essence, I would judge that Russia is our number one foreign policy challenge, and it would be folly to treat it otherwise. Yet we are engaging in precisely what he said--folly. What did Jack Matlock, who was our Ambassador to the Soviet Union at the time, say? In making a major effort to bring more members into NATO when countries who wish to join face no military threat, the administration undermines its ability to protect the United States and its allies from potential nuclear leakage from Russia. He goes on to say: Russia may have no choice other than to accept an enlarged NATO, but in the ensuing atmosphere of political estrangement, close cooperation in nuclear matters, never easy, will become even more difficult. It will also be much harder to maintain the momentum of weapons destruction if it appears to Russian military planners that they must maintain a nuclear option in order to balance an expanding NATO. Mr. President, did you know that we have spent billions of dollars in Russia helping them dismantle their nuclear weapons? That is what we call Nunn-Lugar money around here. It is the best money we have ever spent. I promise you, Mr. President, I promise you that the Russians are going to ultimately say, ``Get out. We thought you were serious about dismantling our nuclear weapons and dismantling yours, but if you are going to treat us this way and show this kind of bad faith toward our good faith in dismantling our nuclear weapons and letting you do it, it is over.'' Our former colleague Sam Nunn who was the most revered person on military matters I ever served with--and believe you me, Sam Nunn and I had plenty of disagreements--is opposed to NATO expansion. Here is what Sam Nunn said: I believe it is essential for the Clinton administration and our allies to start laying the groundwork now for a ``soft landing'' for U.S.-Russian relations in the wake of NATO enlargement. Unless this is accomplished soon, there will be a significant deterioration in U.S.-Russian and allied-Russian relations, and a political climate may emerge in Russia which erodes the ability and the willingness of Russian leaders to make rational decisions on critical foreign policy matters. Even those Russians who are most inclined to seek compromise and who see no military threat in the admission of Poland, Hungary and the Czech Republic into NATO would find the expansion of NATO into the geopolitical space claimed by the former Soviet Union intolerable. Of course they find it intolerable. Mr. President, I do not speak out of fear of Russia. I do not speak out of denigration of my colleagues who think this is absolutely the right thing to do. It is no secret that President Clinton and I have been close friends for 25 years, and I have, I think, the best record in the Senate of supporting his legislation. Maybe one other Senator has a better record than I have. But I think he would be the first person to understand my strong feelings that this is a mistake. When I about this subject, I think of all throughout history, from Napoleon to Hitler, who have underestimated Russia. And I can tell you we are underestimating Russia, we are assuming that she is always going to be an economic basket case, that she will never be able to build her conventional forces and that she will always accept our soothing assurances that our intentions are defensive and not offensive. One of the best books I ever read in my life, Mr. President, is called ``The March of Folly: From Troy to Vietnam,'' by Barbara Tuchman. No young person should be allowed to graduate from high school and certainly not from college without reading Barbara Tuchman's ``The March of Folly.'' Bill Lind, who most of the people in this body know, an expert on military affairs of some note, widely respected, wrote an article about NATO enlargement not long ago, and he refers to this magnificent book, ``The March of Folly.'' He said: It is folly to humiliate a Great Power during an historical moment of weakness. It is folly to reignite a cold war within the West--and Russia is rightfully part of the West--as the world moves into an era of conflicts among cultures. It is folly to risk pushing a weak Russian government further toward loss of legitimacy, when its replacement may be a variety of non-state entities ranging from mafias through religious groupings, some of which would inevitably possess remnants of the Soviet nuclear arsenal. Bill Lind goes on to say: In her glorious book, ``The March of Folly,'' Barbara Tuchman writes: ``A phenomenon noticeable throughout history regardless of place or period is the pursuit by governments of policies contrary to their own interests. Mankind, it seems, makes a poorer performance of government than of almost any other human activity. In this sphere, wisdom, which may be defined as the exercise of judgment acting on experience, common sense and available information, is less operative and more frustrated than it should be. Why do holders of high office so often act contrary to the way reason points and enlightened self-interest suggests?'' Mr. President, Barbara Tuchman's definition of ``the march of folly'' was when nations take action, and there is a small minority of people saying, ``If you do this, you're going to be sorry,'' and it turns out the warning was not heeded. Nations went ahead headlong, and the march of folly continued to the considerable detriment of the nation that did not listen. Admiral Yamamoto told the Japanese warlords, ``I've been to the United States. I will participate in the attack on Pearl Harbor. I will serve my Emperor and do the best I can. But you are foolish if you think you're going to conquer the United States. I've been there. I've seen their industrial might.'' In World War I, the commander of all the German U-boats said, ``I cannot sink the amount of shipping you tell me I have to sink in order to defeat the United States.'' Yet they went headlong and paid no attention to him. Even when the Greeks attacked the Trojan fortress, and placed the Trojan horse outside the gates, one person, Laocoon said, ``Don't let that horse in here. What have the Greeks ever done for us? It is a trick'' But he was a solitary voice, so the Trojans brought the wooden horse into the city. The rest is history. Fifty-five of the best Greek soldiers piled out of the horse and took the Trojan fortress. There are not too many dissenters in this debate. I am one of them and I hope to God I am wrong. I can tell you that in my opinion we are going against our enlightened self-interest and continuing the march of folly. Mr. President, I yield the floor. Mr. COATS addressed the Chair.

Mr. BUMPERS

Mr. BUMPERS. Mr. President, I rise today, along with Senators Chafee, Hollings, Boxer, Torricelli, and Wellstone, to introduce the Telephone Privacy Act of 1998. The issue of telephone privacy thrusts itself into the news every so often. I have introduced similar legislation twice before, because these concerns have been with us since Alexander Graham Bell installed the first party line. In the early '80s Charles Wick was the head of USIA. He freely admitted that he had recorded more than eighty conversations with then President Reagan and former President Carter, cabinet members and many others. None of those people knew that Mr. Wick had recorded their conversations. I was absolutely appalled to learn that such conduct is perfectly legal. I have been trying to correct that gap in the law ever since. Usually, we hear about this issue after some incident where an unsuspecting person has suffered harsh personal consequences after a private conversation has been recorded and disseminated. The Speaker of the House himself was recently recorded by a third party while speaking on a cellular phone. If that call had been made on an ordinary phone, any party to the call could have recorded it without informing the Speaker or anyone else--and it would have been perfectly legal. He could have broadcast it on the evening news and published the transcript in the New York Times. This should be repugnant to almost everyone and yet it is all quite legal. My two previous efforts to make such conduct illegal failed. I believe that in the present environment a majority of our people think it is time to correct this abomination. Sixteen states have outlawed the taping of phone conversations without the consent of all parties to the call, but the federal law has not caught up with those states. Until a bill like mine becomes law, recording of personal conversations will be legal, so long as one party to the conversation is aware of such recording. How many Americans are aware that it is legal for the private telephone conversations of any person in this country to be monitored and even recorded without his or her consent? Indeed, how many Senators know? Americans cherish their privacy as nothing else. One of the reasons the President's popularity is so high is people believe his privacy and the First Lady's privacy has been unfairly invaded. How many times have we heard a recording on television or read a transcript in the newspaper where one of the parties makes some embarrassing revelation, confident that the conversation is ``private,'' never suspecting that he or she was being recorded? I am not talking about authorized law enforcement surveillance. I'm not talking about calls to 911. I'm not talking about employers who must monitor calls made by employees in the course of their duties and my bill makes no change in the law regarding Caller ID technologies. My bill would also allow victims of phone threats to record threatening calls. This bill retains all of the existing exceptions to the law that allow our law enforcement agencies and intelligence gathering agencies to carry out their important duties unimpeded. I want to emphasize that the only change this bill is intended to make to the status quo is this: subject to existing exceptions, under my bill, the interception of wire and electronic communications will be permitted only where all parties have consented, rather than allowing only one party to make that determination. Existing penalties for violations of the law will remain unchanged. The current law leaves a huge hole in the rights of telephone users. We have tolerated that gap for many years, but those have been years in which communications technology has exploded. In 1998, the technology to intercept and record telephone calls and other wire communications is available to almost everyone--you can do it with an ordinary answering machine. Much of our lives is now conducted over the telephone. Too much of our privacy is at risk. Too much mischief can be made to allow this flaw in our right to privacy any longer. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.