John Cornyn

Mr. CORNYN

Mr. CORNYN. Mr. President, I appreciate the remarks of the Senator from Oklahoma. I, too, want to speak on the confirmation of Condoleezza Rice to serve as Secretary of State. We are all aware, because it has been the subject of quite a bit of discussion and we have seen her in action for the last 4 years at the White House and even before that, of Dr. Rice's accomplishments. She is a woman of fantastic achievement, a profoundly talented individual who has excelled at virtually everything to which she has set her mind. I dare say there are few people in this Nation's history who would make both an excellent Secretary of State and an excellent commissioner of the National Football League. I am sure Dr. Rice, in keeping with her stated aspirations, will fill both roles with dedication, intellect, and passion in due time. Yet the reaction to this nomination, which you would think would be a cause for great celebration, given the historic nature of this particular appointment, is also sadly predictable. For example, it is a shame to think that with the overwhelming voice of the people so recently expressed in the recent national elections and with the 109th Congress just having begun, with the President having been sworn in last week, with early pledges of bipartisanship and working together in the best interest of the American people, we are yet again already seeing the specter of partisan politics being brought to bear on this nomination. Of course, the Senate does have a very important role in the confirmation process known as advice and consent. No one is questioning the right of any Senator, indeed the duty of every Senator, to ask hard questions and to determine to the best of their ability the qualifications of a nominee to serve in the office to which the President has chosen to appoint them. But there is a difference between exercising the role of advice and consent and the line that seems to have been crossed with impunity when it comes to the attacks we have seen on some of the President's nominees. Condoleezza Rice just happens to be the one we are focusing on today. We have seen much of the same vitriol and poison used to assassinate the character of people like Alberto Gonzales, another American success story, a personification of the American dream. I would hope that no one in this body would feel it necessary to bring all the left-over angst of the campaign season to bear against a bright and honorable nominee such as the one who is presently before us. You may disagree with Dr. Rice's view of the world. You may take issue with some of her policy preferences. But to impugn her motives or the integrity of a woman held in such high esteem is a tactic that I believe is simply unacceptable and beneath the dignity of this body. Yet we see this tactic clearly, again, in the attempt to--first in the committee hearings, the Foreign Relations Committee, and even on the floor of the Senate--try to tie her actions to the tragic events at Abu Ghraib prison, the crimes that occurred by a handful of individuals that simply crossed the line between human decency and criminality. They were acts that violated U.S. policy and basic human rights. They were disgusting actions undertaken by sick individuals who are being investigated and being brought to justice--the most recent of which, of course, was the conviction and sentencing of Mr. Graner to 10 years in prison. Now, my colleagues know well that at no point has Dr. Rice ever supported, condoned, or advocated such acts of torture or humiliation. I believe to try to link her, through some vague references, to these crimes is nothing more than a blatant attempt to score political points, to somehow demean her in her service, and to taint her nomination. It should not be necessary to raise these points, but I realize that in politics, particularly in Washington, a charge unanswered is too often a charge believed. Let me just refer to a brief reference in the Schlesinger report--of course, referring to the former Secretary of Defense, who served on an independent commission with former Defense Secretary Harold Brown, who served in the Carter administration, as well as a former distinguished Member of the House of Representatives. They concluded after their investigation--and this was just one of, I believe, eight investigations. There are three more that are not yet completed. But this was the conclusion of the independent Schlesinger commission: No approved procedures called for or allowed the kinds of abuse that in fact occurred. There is no evidence of a policy of abuse promulgated by senior officials or military authorities. So to suggest, to hint, to imply that this nominee, or any senior officials in the Bush administration has condoned or adopted a policy that resulted in the criminal abuses that occurred at Abu Ghraib is simply without foundation and any fact. Indeed, it is a scurrilous allegation, and the American people need to understand that. They also need to understand the motives why such allegations are made. In addition to these inappropriate partisan attacks against a nominee who deserves our respect, there are a handful of my colleagues who have used this opportunity to roll out the same tired, old arguments concerning the war on terror, and particularly Operation Iraqi Freedom. We know that we are in the midst of a global war on terrorism. This is not just about Afghanistan and Iraq. This is not just about isolated incidents of terrorism. This is about a conflict that has been building for more than a decade and, indeed, will likely last a generation. Since America suffered an attack on our own soil in New York in 1993, we have been hit at our embassies in Kenya and Tanzania; we have been hit at the Khobar Towers in Saudi Arabia; our Navy was hit at the USS Cole in Yemen; of course, we had the attacks of 9/11; and Bali, Madrid, and in Beslan. The list goes on and on. In the aftermath of the attacks of September 11, President Bush decided, with the authorization of Congress at every turn, that if diplomacy would not yield a pacified Saddam, that if the U.N. declined to enforce its own resolutions requiring inspections and disarmament, we would, when necessary, use preemptive action against those who seek to harm America and those who threaten world peace and supply sanctuary to terrorists. We also decided that it was in America's self-interest to take the battle to the terrorists where they live, where they plot, where they plan, and where they train and build weapons--not to wait until we are attacked again and where innocent civilians' lives are lost and innocent blood is shed. The post- 9/11 reality is that America must choose to fight this terrorist threat on their ground, or they will fight us on ours. This is not some grand conspiracy of this current administration or any policy which is really strange to history or unknown to history. It was in 1941, after Pearl Harbor, when President Franklin Delano Roosevelt said: If you hold your fire until you see the whites of their eyes, you will never know what hit you. That was Israel's policy in 1981 when it knocked out Saddam's Osirak nuclear reactor. The fact that Israel continues to exist today was in part because its leaders had the wisdom and courage to take on a growing threat by the use of preemptive action--sometimes called preventive self-defense--whenever it was necessary. No one wants to imagine what could have happened if Iraq's nuclear program, which was well documented after Saddam invaded Kuwait in 1991, when we were surprised to learn after we repulsed that attack that Saddam's nuclear program was much further along than our intelligence authorities had previously thought. But no one wants to imagine what would have happened if Iraq had continued to develop its nuclear capability, or if they had been able to reconstitute their nuclear program after we left Iraq in 1991. It was a horrific possibility for America and the rest of the world, and indeed a responsibility of the leaders of this country and the free world to eliminate this gathering threat. Ms. Rice has also been criticized for the belief that Saddam had stockpiles of weapons of mass destruction. But you know what? And the critics know this. The truth is, virtually every intelligence service in the world believed that Saddam had these weapons of mass destruction. Indeed, this was one of the premises for the Iraq Liberation Act in 1998. It was for the authorization given to then- President Clinton to use necessary force to remove this threat. Our intelligence, though, as we all now know with the benefit of 20/20 hindsight, proved to be incorrect--at least at the time that we entered Iraq--that Saddam had stockpiles of weapons of mass destruction. Of course, we have been undertaking the necessary reforms both in this body and in the intelligence community to stop that kind of intelligence failure from ever occurring again. The critics should not be allowed to rewrite history. The fact is that no one party or person misled the rest of us--Democrat, Republican, or Independent. The truth is, we were all misled by this erroneous intelligence, and rather than point the finger of blame where no blame is due, what we ought to be about--and, indeed, what we have been doing--is correcting the reasons for that failure and making sure that it never happens again. Yet even though we did not find stockpiles of WMD, the bottom line is this: This was not the only reason that Congress voted overwhelmingly to authorize the use of force against Saddam Hussein. Indeed, there are numerous other reasons set out in the resolution that passed this Senate by overwhelming margins. It is beyond debate that Saddam continued to have the intent to acquire WMD and there is little doubt that but for our intervention and the fact that he was pulled from a spider hole and put in prison awaiting future accountability at the hands of the Iraqi people that he would have fully reconstituted his program just as soon as he was able. One does not have to take my word for it. Mr. Duelfer, who succeeded Mr. Kay, and was in charge of looking into the possibility that Saddam had WMD, concluded in September 2004: Saddam wanted to recreate Iraq's WMD capability--which was essentially destroyed in 1991--after sanctions were removed and Iraq's economy stabilized. . . . Indeed, that has been the evidence we learned in the oil-for-food scandal in the United Nations, that Iraq would siphon off money to stabilize and support his failing economy, but his job, he thought, was to wait out the sanctions in such a way that once the sanctions were removed he would reconstitute Iraq's WMD capability. To somehow point the finger of blame at this distinguished nominee, where she, like all of us, was given the erroneous reports from the intelligence community, is simply unjustified and unfounded and indeed, in the end, it is revisionist history. Lest this point be lost in the debate and the fingerpointing, we are in Iraq for our own good and for the good of the world, and I might add for the good of the Iraqi people. September 11 taught us all a very important lesson, that security in the modern world depends on taking aggressive and focused action to prevent terrorist acts before they occur, not just opening a criminal investigation after innocent blood is shed. We have marshaled the force of freedom in this fight, one of the most powerful weapons that we have in our arsenal, and indeed on this Sunday, as has been recounted over and over again, the Iraqi people will make their first major step toward self-government as a free Iraq. There are some who continue to argue that we did not have the right plan to deal with postwar Iraq. We have hashed that argument out a hundred times. Yes, hindsight is always 20/20, and we did not know then what we know now, but that is no real revelation. That really suggests, again, another failure of our intelligence-gathering capability and particularly our HUMINT, our human intelligence capability, which we are fixing. I point out that it serves no one's interests, and certainly not the national interest of this country or the interests of the Iraqi people, to continue to try to point the finger of blame at past errors, particularly in connection with our intelligence-gathering capability. Indeed, even those who did not support the resolution authorizing the use of force must now concede that it is in our best interest not to have Iraq fail and become perhaps a sanctuary for terrorists. Even those who oppose this war should acknowledge at this point that it is in our best interest for Iraq to become a working democracy and to avoid strife and become a free and peaceful nation. It is counterproductive, unless of course one's purpose is merely partisan politics, to dwell on the past at the expense of our present duty and our plans for the future. It is time to focus on what is our duty in Iraq, along with other nations, the coalition and the Iraqi people, and that is to secure Iraq, to help this new democracy take root, and to further the cause of freedom around the globe. There is no question that Iraq continues to be a very fragile place, but in truth, Iraq is making solid progress on a difficult road when one takes into consideration the fact that Saddam had an iron grip on power in this nation a mere 2 years ago. Consider what has been accomplished. A valid voter registration list of 14.3 million names has been completed. More than 500 voter registration centers have been established to help Iraqis verify their registration status. Iraqis will vote on election day in the thousands of voting centers across that country and in 14 other countries, including the United States of America. Candidate lists for 111 political entities have been submitted for the national elections and, in total, 256 political entities, composed of 18,900 candidates, have registered to compete in 20 different elections: The national election, 18 provincial elections, and the Kurdistan regional government election. These 254 entities include 27 individuals, 33 coalitions, and 196 parties, all demonstrating widespread enthusiasm for this opportunity they have for free and fair elections. I believe we will see the true ramifications of freedom in Iraq over the next generation, and I believe this first election is a watershed at the beginning of this new generation of a free Iraq. As responsible leaders rise to the forefront and the vestiges of tyranny are replaced by a fledgling republic, we will see that the victories won, the hardship that has been endured, and the lives risked and indeed tragically lost have not been in vain. Before this election season that just concluded, or I thought concluded on November 2 but which seems to have continued now with attacks against the President's nominees--those who were unsuccessful in persuading the American public of the correctness of their opinions on November 2--I never thought I would hear anyone utter what I think is one of the most foolish notions yet. And yet I have heard the suggestion made again and again in the context of Dr. Rice's hearing. And it is the suggestion that Iraq today and the world as a whole is worse off than it was with Saddam Hussein in power. Have these people somehow missed the fact that we found unspeakable horrors in Saddam's Iraq, torture cells, rape rooms, execution chambers, children's prisons. We found a legacy of terror and fear and vestiges of unimaginable cruelty. We have found that more than 1 million people are simply missing; 300,000 are dead, lying in mass graves throughout Iraq in nearly 100 reported sites, including one that I personally viewed a year ago last August. These mass graves are silent monuments to Saddam's ruthlessness left behind for all to see. With due respect for my colleagues who advanced the idea that Iraq or America was better off with Saddam Hussein in power, to suggest that the world is safer when despots rule in palaces instead of serving time, being held accountable in jails, is to ignore the bulk, if not the entirety, of human history. It was Senator Daniel Patrick Moynihan who enjoined against similar foreign policy foolishness in an earlier era when he said: Unable to distinguish between our friends and our enemies [you adopt] our enemies' view of the world. I think we must also be sobered and cautioned by that injunction, and we should all be responsible enough to not let our desire to score partisan political points lapse into adopting our enemy's view of the world. As President Bush urged just last week, America has the moral responsibility to take a stand for liberty as the guiding force in the world and the defining principle of this age. We have the strength and the will to see this purpose through. I urge my colleagues to support a Secretary of State who understands the stakes, who sees the right course, and has the will to follow it. In conclusion, I have talked about the attacks that have been directed on this honorable nominee and why I believe that they are unfounded and how I believe those who are disappointed, perhaps, in the way the election turned out on November 2 have continued their sort of political insurgency directed at the President but through his nominees for his Cabinet, and particularly Condoleezza Rice and Alberto Gonzales. I have said that while it is our responsibility as Senators to exercise with diligence our advice and consent function and to ask hard questions in good faith, there is a line that should not be crossed, which I believe has been crossed in the attacks made against these nominees, including Condoleezza Rice. One reason I believe that is true is because of the evidence that I have in my hand. This is a solicitation, a fundraising solicitation sent out by the Democratic Senatorial Campaign Committee. I ask unanimous consent this be printed in the Record at the conclusion of my remarks.

Mr. CORNYN. This is over the signature of Senator Barbara Boxer, who has been one of the most acerbic critics of this nominee. But at the same time she argues why this nominee should not be confirmed, she ties this to fundraising efforts by the Democratic Senatorial Committee. She said in part: The Republicans were expecting the Senate to confirm Dr. Rice with little debate and questioning from the Foreign Relations Committee. I think we found that already not to be true. The distinguished chairman, who is in the Chamber now, held lengthy hearings and allowed all Senators a chance to ask numerous questions of this nominee, and we know now, from the 9 hours that have been agreed to as part of this debate, that, indeed, there is substantial debate about this nominee. But she goes on, from Senator Boxer's pen: They didn't count on me to ask the tough questions. What the Republicans don't realize is, no matter who is in charge in the White House, the role of Congress will always be to act as a check on the Executive branch of government. And when it comes to the President's nominees, the Senate must take its ``advise and consent'' role during the confirmation process seriously. I agree with that. I have said as much in my comments today. But what I do not agree with, and I think where this fundraising solicitation crosses the line and where it finds itself in company with some of the partisan attacks that have been made without substance against this nominee, is when it goes on to say to contribute to the Democratic Senatorial Campaign Committee, making this part of not only a political attack but a fundraising effort by the Democrats in the Senate. That, I believe, crosses a line that should not have been crossed, and one for which I believe Dr. Rice is entitled to an apology. To tie the confirmation of the Secretary of State to a fundraising campaign and to propagate misinformation or disinformation about this distinguished nominee, who is an American success story, in an effort to raise money for the Democratic Senatorial Committee is inappropriate and I think would offend and does offend the American people. I believe this offense deserves a quick repudiation by our colleagues on the other side of the aisle who maybe were not involved in this and, indeed, an apology to Dr. Rice for the way she has been treated. In conclusion, let me say that I have seen, in my relatively short time in the Senate, some pretty rough treatment of the President's nominees. We have seen filibusters of judicial nominees when there is a bipartisan majority of the Senate to confirm those nominees. Indeed, this has been a part of an unconstitutional burden that neither this President nor those nominees should have to bear. But we have also seen sort of a character attack on nominees that I think is not only unfair to those nominees but completely unbecoming to the dignity of the Senate and the kind of respect with which they should be treated. It is one thing to disagree about policy; it is one thing to ask hard questions. No one is asking anyone to vote against their conscience on a nominee. But to abuse these nominees in a way that is unfair, not only to them and their family but one that mischaracterizes the facts and is part of a disinformation campaign which is clearly tied to politics, is something we ought to call an end to. I had held out some hope, and increasingly it appears to be a vain hope, that somehow with the reconvening of this 109th Congress we would see a change in attitude, we would see a willingness to work together. We have seen some comments, some speeches, some promises to that end. But when it comes to this sort of inappropriate political activity and politicizing the confirmation process for America's diplomat in chief and the President's other judicial nominees, all I can say is it is a crying shame. I yield the floor. Exhibit 1 Democratic Senatorial Campaign Committee Dear DSCC Friend, The Republicans were expecting the Senate to confirm Dr. Rice with little debate and questioning from the Foreign Relations Committee. They didn't count on me to ask the tough questions. What the Republicans don't realize is, no matter who is in charge in the White House, the role of Congress will always be to act as a check on the Executive branch of government. And when it comes to presidential nominees, the Senate must take its ``advise and consent'' role during the confirmation process seriously. That's why I took a stand last week and voiced my concerns about Dr. Rice's misleading statements leading up to the war in Iraq and beyond. I will continue to make my voice heard on the Senate Foreign Relations committee, but in order to put the brakes on four more years of misdirection in Iraq and reckless policies at home, we need to elect more Democrats to the Senate during the 2006 midterm elections. Because after Dr. Rice is confirmed, the Senate will face many more crucial decisions in the coming months: confirmation of President Bush's choice for Attorney General Alberto Gonzales, social security, Iraq and possibly a Supreme Court nomination. My Democratic colleagues and I will hold the Bush Administration accountable for its decisions. But we will need your help to hold them accountable in the ultimate public hearing: the next midterm elections in 2006. The Republicans want us Democrats to step back and pave the way not only for this one nominee, but for their entire social, economic and international agenda. We have a chance during the midterm elections to make sure the Republicans don't have four years to do so. The DSCC is working every day to recruit the strongest candidates in every Senate race across the country. They are fighting early and fighting hard, but they need your ongoing support today. So while I raise my voice on the Senate floor, I hope you will join us on the campaign trail and send the loudest message of all--one that the Republicans will not be able to ignore--unseating them in the midterm elections and sending more Democrats to the Senate. Yours sincerely, Senator Barbara Boxer.

Mr. CORNYN

Mr. CORNYN. Absolutely not. The offense is only applicable to transmitting or copying a movie in a motion picture exhibition facility, which has to be a movie theater or similar venue ``that is being used primarily for the exhibition of a copyrighted motion picture.'' In the example of Best Buy--the store is being used primarily to sell electronic equipment, not to exhibit motion pictures. For the same reason, the statute would not cover a university student who records a short segment of a film being shown in film class, as the venue is being used primarily as a classroom, and not as a movie theater.

Mr. CORNYN. This bill also differs from the House-passed version because it adds two ``savings clauses.'' As I understand it, the ``copyright'' savings clause makes clear that there should be no ``spillover effect'' from the passage of this law: that is, nothing shall be construed to have any effect on rights, defenses, or limitations on rights granted under title 17, other than those explicitly provided for in the new section 110(11) exemption. The second, relating to trademark, clarifies that no inference can be drawn that a person or company who fails to qualify for the exemption from trademark infringement found in this provision is therefore liable for trademark infringement. Is that the chairman's understanding as well?

Mr. CORNYN. I thank the chairman. I am pleased that we share a common understanding. If the chairman would yield for one more question about the Family Movie Act?

Mr. CORNYN. Section 102 addresses a serious piracy issue facing the movie business: the use of camcorders in a motion picture theater. Sad to say, there are people who go to the movie theater, generally during pre-opening ``screenings'' or during the first weekend of theatrical release, and using sophisticated digital equipment, record the movie. They're not trying to save $8.00 so they can see the movie again. Instead, they sell the camcorded version to a local production factory or to an overseas producer, where it is converted into DVDs or similar products and sold on the street for a few dollars per copy. This misuse of camcorders is a significant factor in the estimated $3.5 billion per year of losses the movie industry suffers because of hard goods piracy. Even worse, these camcorded versions are posted on the Internet through ``P2P'' networks such as KaZaA, Grokster and Morpheus--and made available for millions to download. The goal of our bill is to provide a potent weapon in the arsenal of prosecutors to stem the piracy of commercially valuable motion pictures at its source.

Mr. CORNYN. As the chairman knows, he and I and our other co-sponsors have worked throughout this Congress on the provisions of the Family Entertainment and Copyright Act of 2004 that we have introduced today. I just want to confirm what I believe to be our mutual understanding about the effect of certain provisions of the Family Movie Act. Title II of the Family Entertainment and Copyright Act of 2004 that we introduced today modifies slightly the Family Movie Act provisions of H.R. 4077 as passed by the House of Representatives. That bill created a new exemption in section 110(11) of the Copyright Act for skipping and muting audio and video content in motion pictures during performances that take place in the course of a private viewing in a household from an authorized copy of the motion picture. The House- passed version specifically excluded from the scope of the new copyright exemption computer programs or technologies that make changes, deletions, or additions to commercial advertisements or to network or station promotional announcements that would otherwise be displayed before, during, or after the performance of the motion picture. My understanding is that this provision reflected a ``belt and suspenders'' approach that was adopted to quiet the concerns of some Members in the House who were concerned that a court might misread the statute to apply to ``ad-skipping'' cases. Some Senators, however, expressed concern that the inclusion of such explicit language could create unwanted inferences as to the ``ad-skipping'' issues at the heart of the recent litigation. Those issues remain unsettled, and it was never the intent of this legislation to resolve or affect those issues. In the meantime, the Copyright Office has confirmed that such a provision is unnecessary to achieve the intent of the bill, which is to avoid application of this new exemption in potential future cases involving ``ad-skipping'' devices; therefore, the Senate amendment we offer removes the unnecessary exclusionary language. Would the chairman confirm for the Senators present his understanding of the intent and effect, or perhaps stated more appropriately, the lack of any effect, of the Senate amendment on the scope of this bill?

Mr. CORNYN. Yes, on all points.

Mr. CORNYN. Mr. President, would the chairman yield for a question?

Mr. CORNYN

Mr. CORNYN. As the chairman knows, he and I and our other co-sponsors have worked throughout this Congress on the provisions of the Family Entertainment and Copyright Act of 2004 that we have introduced today. I just want to confirm what I believe to be our mutual understanding about the effect of certain provisions of the Family Movie Act. Title II of the Family Entertainment and Copyright Act of 2004 that we introduced today modifies slightly the Family Movie Act provisions of H.R. 4077 as passed by the House of Representatives. That bill created a new exemption in section 110(11) of the Copyright Act for skipping and muting audio and video content in motion pictures during performances that take place in the course of a private viewing in a household from an authorized copy of the motion picture. The House- passed version specifically excluded from the scope of the new copyright exemption computer programs or technologies that make changes, deletions, or additions to commercial advertisements or to network or station promotional announcements that would otherwise be displayed before, during, or after the performance of the motion picture. My understanding is that this provision reflected a ``belt and suspenders'' approach that was adopted to quiet the concerns of some Members in the House who were concerned that a court might misread the statute to apply to ``ad-skipping'' cases. Some Senators, however, expressed concern that the inclusion of such explicit language could create unwanted inferences as to the ``ad-skipping'' issues at the heart of the recent litigation. Those issues remain unsettled, and it was never the intent of this legislation to resolve or affect those issues. In the meantime, the Copyright Office has confirmed that such a provision is unnecessary to achieve the intent of the bill, which is to avoid application of this new exemption in potential future cases involving ``ad-skipping'' devices; therefore, the Senate amendment we offer removes the unnecessary exclusionary language. Would the chairman confirm for the Senators present his understanding of the intent and effect, or perhaps stated more appropriately, the lack of any effect, of the Senate amendment on the scope of this bill?

Mr. CORNYN. I thank the chairman. I am pleased that we share a common understanding. If the chairman would yield for one more question about the Family Movie Act?

Mr. CORNYN. This bill also differs from the House-passed version because it adds two ``savings clauses.'' As I understand it, the ``copyright'' savings clause makes clear that there should be no ``spillover effect'' from the passage of this law: that is, nothing shall be construed to have any effect on rights, defenses, or limitations on rights granted under title 17, other than those explicitly provided for in the new section 110(11) exemption. The second, relating to trademark, clarifies that no inference can be drawn that a person or company who fails to qualify for the exemption from trademark infringement found in this provision is therefore liable for trademark infringement. Is that the chairman's understanding as well?

Mr. CORNYN. Yes, on all points.

Mr. CORNYN. Section 102 addresses a serious piracy issue facing the movie business: the use of camcorders in a motion picture theater. Sad to say, there are people who go to the movie theater, generally during pre-opening ``screenings'' or during the first weekend of theatrical release, and using sophisticated digital equipment, record the movie. They're not trying to save $8.00 so they can see the movie again. Instead, they sell the camcorded version to a local production factory or to an overseas producer, where it is converted into DVDs or similar products and sold on the street for a few dollars per copy. This misuse of camcorders is a significant factor in the estimated $3.5 billion per year of losses the movie industry suffers because of hard goods piracy. Even worse, these camcorded versions are posted on the Internet through ``P2P'' networks such as KaZaA, Grokster and Morpheus--and made available for millions to download. The goal of our bill is to provide a potent weapon in the arsenal of prosecutors to stem the piracy of commercially valuable motion pictures at its source.

Mr. CORNYN. Absolutely not. The offense is only applicable to transmitting or copying a movie in a motion picture exhibition facility, which has to be a movie theater or similar venue ``that is being used primarily for the exhibition of a copyrighted motion picture.'' In the example of Best Buy--the store is being used primarily to sell electronic equipment, not to exhibit motion pictures. For the same reason, the statute would not cover a university student who records a short segment of a film being shown in film class, as the venue is being used primarily as a classroom, and not as a movie theater.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that Brian George, an intern in my office, be granted the privileges of the floor for the duration of my remarks.

Mr. CORNYN

Mr. CORNYN. Mr. President, I didn't intend to speak this afternoon, but after listening to the comments of the Senator from Massachusetts regarding four individuals, three of whose nominations are pending before this body, I believe a brief statement and indeed a brief correction of the Record are necessary. I am well aware that in politics a charge unanswered is often a charge believed. Indeed, I think the practice is not too rare that some believe if you make the same erroneous charge over and over and over and over again despite the facts that eventually your opponent will tire and fail to correct the Record. I don't want to be guilty of that because I believe not only do the American people need to know the truth and not be misled, the nominees whose integrity has been impugned during this all too painful and sometimes even cruel process deserve better. Obviously, the Senate in providing its advice and consent on the President's nominations should ask hard questions, and we should press for answers to those questions. But there does come a point where the process no longer becomes one that can be described as a search for the truth but, rather, becomes akin to harassment, and, unfortunately, I think that line has been approached. Let me explain what I am talking about. The Senator from Massachusetts talked specifically about four individuals--Mr. Bybee, who is now a circuit court judge; Mr. Haynes, who is the general counsel for the Department of Defense; Condoleezza Rice who, as the Chair knows, we all know, has been nominated by the President to be Secretary of State, and whose confirmation we will debate tomorrow, and, finally, the name of Alberto Gonzales, currently White House counsel, having been nominated to serve as Attorney General. Those are the four individuals who are the object of his comments. I want to be fair to the Senator from Massachusetts. Sometimes when I was listening to him I thought my hearing was betraying me. I was not quite sure what I heard was, in fact, what he was saying because it was so far from what I believe the facts to be. I believe, and the Record will correct me if I am wrong, he used words tantamount to authorize the use of torture. He did, and I wrote this down, speak of a ``formal policy of prisoner abuse''--of course, all of which pertains to the allegations, indeed, the proof in some circumstances, of prisoner abuse at places like Abu Ghraib. To conflate the acts of a few criminals with the acts of distinguished public servants who have disavowed any policy, any approval, of abuse or the use of torture as a policy of this Government, to conflate and somehow confuse and gloss over them and to suggest that indeed these individuals did somehow by their acts or inactions authorize the use of torture or condone, encourage, or create a perception that torture was okay, is just false. It is a story, but it is a false story. The American people should not be confused because the facts clearly point to the contrary. We do know that the Department of Defense, pursuant to the investigation called for by Secretary Rumsfeld, has conducted eight investigations, three of which have not yet concluded, of the Abu Ghraib prison scandal. So far, the conclusion has been, as well as that of the independent investigations like that of former Defense Secretary Schlesinger, that the acts at Abu Ghraib are the acts of a criminal few on the night shift, not a matter of public policy of this Government or of the Department of Defense or any branch or agency of the Government. Indeed, recently we saw the American system of justice mete out that justice in convicting one soldier, Graner, of abusing prisoners at Abu Ghraib and meting out a 10-year prison sentence in that connection. It is not true, and the American people should not be misled or perhaps be given information that has no justification in the Record. It is unproven, these allegations. They are unjustified. Frankly, I don't believe it does this body honor to propagate these false allegations. Everyone has a right to their opinion. I know some of the speakers who are so concerned from time to time about what happened at Abu Ghraib, as we all are, disapprove of this Nation's policy in the first place in going to war in Iraq and removing Saddam Hussein. Somehow, and this is unthinkable to me, they actually think that the world would be a better place with Saddam still in power. I disagree. Not only is the world a better place with Saddam in a prison cell awaiting trial, but the American people are safer and the people of Iraq now have the hope of a free, fair election in the next week or so leading, we all hope, to a free and democratic Iraq. While everyone has a right to their opinion, no one has a right to distort the facts. Unfortunately, when it comes to the involvement of these four individuals--Mr. Bybee, now Judge Bybee, confirmed by this Senate not too long ago by a vote of nearly 80 Senators; Mr. Haynes, who is the general counsel for the Department of Defense; and as I mentioned, Condoleezza Rice and Alberto Gonzales--the allegation that somehow they have been involved in a Government policy of condoning torture or authorizing prisoner abuse is just false. It is important to stand up and say so. Our disagreements about policy, indeed, the foreign policy of this Government, whether it be authorizing the use of force or whatever the issue may be, cannot be used as an excuse to make such scurrilous allegations against public servants who I believe are trying to do their best. If, in fact, somehow this administration and these individuals who are engaged in important public policy decisions did not care one whit about what the law is, what the definition of torture is, and how we can avoid somehow engaging in this sort of illegal and heinous act against any human being, why would they research the law? Why would they write lengthy legal memoranda? Why would they have debates among themselves about what the law is and what Congress proscribed--indeed, what our international treaty obligations proscribe in this area. They would not. You would not be so scrupulous and so careful about what the law provides if you did not care about following the law. That has been what these individuals and this administration and this Government have tried to do under very difficult circumstances. In conclusion, I hope our disagreements about some aspects of our Nation's foreign policy, our policy in Iraq, should not be license to distort the facts and impugn the character of these nominees. Three are nominees, one already has been confirmed. We know Mr. Haynes has been renominated by the President to serve as a circuit judge. We know Condoleezza Rice's nomination to be Secretary of State will be debated tomorrow in the Senate. Finally, I expect on Wednesday Judge Alberto Gonzales will be voted out of the Judiciary Committee and that nomination will soon come to the Senate. It appears the opponents of this administration and its policies will pass no opportunity to continue to repeat false charges which cannot be borne out by the facts and which I think need to be corrected. I yield the floor and suggest the absence of a quorum.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that the order for the quorum call be dispensed with.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise to express my support for the conference report accompanying S. 2845, the Intelligence Reform and Terrorism Prevention Act of 2004. I highlight three specific terrorism prevention provisions in the conference report, provisions on which I have worked particularly hard to incorporate into this new bill, provisions which I am pleased to see enacted into law. These provisions make important improvements to our Federal criminal law, improvements that are critical to strengthening our ability to fight and win the war against terrorism. The first two provisions involve strengthening our efforts to ensure that weapons of mass destruction do not get into the hands of terrorists. Earlier this year, I introduced two bills, S. 2664 and S. 2665. I am pleased to see that both of those bills have now largely been adopted by the conference. S. 2664, also known as the Prevention of Terrorist Access to Destructive Weapons Act, can be found at Title VI, Subtitle J of the new bill reported by the conference. This provision creates new federal prohibitions and strengthens current federal prohibitions against the possession of four categories of destructive items: (1) Man-Portable Air Defense Systems, known as ``MANPADS'', (2) atomic weapons, (3) radiological dispersal devices, known as ``dirty bombs'', and (4) the variola virus, the virus that causes smallpox. There is no legitimate private purpose for possessing these items. Moreover, the potential for terrorist use of these items is among the most serious threats to our homeland security. By prohibiting the unauthorized possession of these items, and by imposing strong penalties on violators, these provisions will play a major role in preventing and disrupting future terrorist attacks, by depriving terrorists of access to some of the most highly destructive and dangerous items civilized society has ever faced. Specifically, these provisions would punish unlawful possession as well as unlawful production or transfer of these items, and includes attempts, threats, and conspiracies related to such acts. These provisions generally impose tough, mandatory minimum sentences of 25 years, and in some cases impose sentences up to and including life imprisonment. Tough penalties like these are appropriate for the most dangerous threats our nation faces, and that is exactly the kind of threat that these items pose. We may not be able to deter the most dedicated of our terrorist enemies around the world from wanting to harm us, but we can deter individuals who serve at lower levels in terrorist organizations, and we can deter those who might try to profit from terrorism by supplying terrorists with such items. I would like to spend just a brief moment highlighting the particular problem of MANPADS. MANPADS are lightweight, surface-to-air missile systems designed to take down aircraft. MANPADS fire an explosive or incendiary rocket or missile equipped with a guidance system designed to target low-flying aircraft, typically around the time of landing or departure. They can be carried and fired by a single individual, from a distance. Because they are small, they are easy to conceal and smuggle. They are relatively cheap--ranging from $25,000 to $80,000 each--take only seconds to prepare, require minimal training, and have a flight time of just three to ten seconds. By some estimates, there are at least 500,000 MANPADS in circulation around the globe. Although most MANPADS are thought to be under the control of an established military, as many as a thousand MANPADS are believed by some to be in the hands of al-Qaeida and other terrorist groups. Coalition forces reportedly captured nearly 5,600 missiles during the post-9/11 invasion of Afghanistan. Defense Secretary Donald Rumsfeld reported last year that MANPADS ``are widely available in the world and do have the ability to shoot down aircraft and helicopters, and from time to time it happens in various locations.'' He said there are ``enormous numbers'' of such weapons still in Iraq--``have to be more than hundreds. . . . There are weapon caches all over that country. They were using schools, hospitals, mosques to hide weapons.'' A 2000 State Department report stated that ``one of the leading causes of loss of life in commercial aviation worldwide has been from MANPADS . . . attacks, with over 30 aircraft lost.'' According to a Congressional Research Service report issued last year, there have been at least 36 known missile attacks on commercial planes in the last 25 years; 35 of those incidents took place in war-torn areas, mainly in Africa. For example, in 1983 and 1984, Angolan rebels shot down two Boeing 737s. In the first incident, all 130 people on board died, but in the second attack, the plane managed to land without fatalities after being hit at an altitude of 8,000 feet. In 1998, a Boeing 727 was shot down in the Democratic Republic of Congo, killing 41. And in November 2002, in Mombasa, Kenya, two missiles were launched against a chartered Israeli Boeing 767 just after take off for Tel Aviv, Israel. The pilot reported spotting smoke trails near his plane, and some of the 261 passengers said they heard an explosion. The attempted attack has been linked to al-Qaida, and occurred on the same day as an al-Qaida-linked bombing of a nearby resort hotel. Shoulder-launched missiles also brought down several smaller aircraft during the invasion of Iraq, including a Chinook helicopter that crashed last November, killing 16. In January, an Air Force C-5 transport plane carrying 63 troops was struck by a surface-to-air missile as it left Baghdad Airport, but it landed safely. Accordingly, MANPADS are widely recognized as one of the greatest threats to civil aviation today. And just last year, the President agreed with other world leaders at a G-8 conference to a series of controls on MANPADS. S. 2664 is a critical part of the President's effort to control and combat the proliferation of MANPADS, and I am pleased that the conference has seen fit to incorporate the provisions of that bill into its report. In addition to MANPADS, S. 2664 also targets three other destructive devices. No one questions the obvious danger posed by allowing atomic weapons and radiological dispersion devices, or dirty bombs, to get into the hands of terrorists. In addition, the variola virus is the causative agent of smallpox--an extremely serious, contagious, and often fatal disease. In fact, the Centers for Disease Control has classified variola as one of the biological agents that poses the greatest threat for public health impact. It has a high potential for large-scale dissemination. Accordingly, it may be attractive to terrorists as a biological weapon. These provisions, I am pleased to see, have also been incorporated into the conference report. I will just add a quick word about S. 2665, also known as the Weapons of Mass Destruction Prohibition Improvement Act. The provisions of S. 2665 can be found at Title VI, Subtitle I of the new bill. Those provisions generally expand current federal criminal prohibitions against the use and proliferation of WMD, both domestically and abroad, and fills a number of gaps in current law. They amend the current federal weapons of mass destruction statute by criminalizing all WMD attacks on foreign government property in the United States, as well as U.S. government property, and expanding the current prohibition on the use of WMD to include any acts affecting interstate commerce in a variety of ways. They also amend the federal biological agents and toxins law by extending the prohibition to possession by agents of terrorist nations or terrorist organizations. With respect to foreign WMD threats, the bill amends a provision of the Atomic Energy Act to prohibit participation outside of the United States in the unauthorized development as well as production of nuclear material, and creates a new criminal code section to forbid the provision of material support to, or any other participation in, any WMD program of a terrorist organization or terrorist nation. The third and final provision I want to highlight involves the perpetration of cruel hoaxes against the families of military personnel and terrorism hoaxes generally. I am pleased to be an original co- sponsor of S. 2204, also known as the Stop Terrorist and Military Hoaxes Act, and pleased to see that provisions of those bills have been incorporated into the conference report. It is disturbing to think that anyone would want to engage in the false impersonation of a military officer in order to harass, terrify, or otherwise cause mental distress to military families. I cannot fathom why a human being would want to conduct a crank call to the family of a member of the Armed Forces and falsely inform them that their loved one has been killed in the line of duty. Yet during the recent war in Iraq, that is precisely what happened. Several families reportedly received hoax telephone calls informing them that a family member serving the military in Iraq had been killed or captured. Not surprisingly, the families who received these calls were terribly distressed. It must have been a cruel experience indeed to have to wait and work to confirm that their family member was actually alive and safe. Hoaxes against military families and terrorism hoaxes must be punished, because they utilize scarce resources that need to be focused on combating terrorism, and distract the attention of our law enforcement and our military away from our terrorist enemies. But that's not the only reason. Hoaxes are cruel. They are mean-spirited. And they can be very dangerous. I want to read a portion of a letter from one dutiful U.S. serviceman to his uncle. The letter is dated April 18, 2003, and it reads: ``One guy died bringing me a sat. phone so I could call Dad to let him know I was alive. It made me think of `Saving Private Ryan.' Was it worth his life and the risk of the others to bring me a phone? I know it was a relief to all of you to hear I was okay. Now I feel I must make my life worth his. I don't know if I can do that.'' No one should have to die in the line of duty in order to correct a hoax. And no one should have to live with the emotional pain that this serviceman so eloquently describes in this poignant letter. Under current law, acts of impersonation are illegal only if the person demands or obtains something of value from the victim. That does not include military family hoaxes like the ones described here. In addition, many terrorism hoaxes fall outside the definitions of current law. S. 2204 fills these major gaps in the law, and I am pleased to see these provisions incorporated into the conference report.

Mr. CORNYN

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

Mr. CORNYN

Mr. CORNYN. Mr. President, I note that Senator Leahy today made a floor statement referencing important Intellectual Property legislation that unfortunately will not pass in the 108th Congress. I agree completely with the Senior Senator from Vermont's view of the importance of these matters and I share his frustration that the bills are not moving forward because of matters not related to the substance of the legislation. I joined with Senator Feinstein to introduce the ART Act, S. 1932, just over a year ago to help curtail the problem of piracy of films in movie theaters and to help stop the illegal distribution of pre- released copyrighted works. It is a good bill, but it will not become law despite having passed the Senate twice this year and enjoying overwhelming bipartisan support in the House. Along with the ART Act, other valuable legislation such as the Family Movie Act, a bill that will help parents control the content of films and other entertainment their children see is being held up. Good legislation, such as anti-counterfeiting and film preservation, is also not moving forward again, for reasons completely unrelated to the substance of the bills. As disappointed as I am about this, I am encouraged by the good faith bipartisan work that has occurred among my staff and the staffs of my colleagues. I want to thank Senators Feinstein, Leahy, Hatch and Biden for their assistance and support, and mostly, I want to thank their staffs for their dedication, hard work and long hours devoted to this effort. I especially would like to note Senator Leahy's diligence and dedication to this cause, and willingness to pass over legislation he introduced and believes to be important in deference to the greater cause of passing a larger bipartisan package that would have protected copyrighted works, but for the senseless and unneeded obstacles placed before it. I am confident that when we take this legislation up in the 109th Congress, we will pass it and I look forward to working with these Senators and others to accomplish that goal.

Mr. CORNYN

Mr. CORNYN. Mr. President, I want to say a few words about what we have done here today in passing the intelligence reform bill and say that I support this effort. It was a difficult but necessary step to making America safer. I do not believe we should fool ourselves to think we have actually finished the job. By that I mean I think some of the objections that had been made to this legislation or I should say some of the proposals for additional measures that were excluded from this bill, I believe, were well taken. Specifically, what I am talking about is some of the security challenges relative to our immigration system, our broken immigration system. I know many Americans would be shocked to learn that the 19 9/11 hijackers had a total of 63 validly-issued U.S. driver's licenses. Because of this astounding fact, the 9/11 Commission recommended, on page 390: The federal government should set standards for the issuance of birth certificates and sources of identification, such as driver's licenses. Fraud in identification documents is no longer just a problem of theft. The Commissioners aptly pointed out that ``For terrorists, travel documents [can be just] as important as weapons.'' I am pleased the conference report that we have voted on today and passed overwhelmingly includes some needed enforcement measures. But, as I say, I do not believe we should stop there. I strongly believe that issuing driver's licenses to individuals who are not lawfully present in our country has the potential of posing a national security risk in a post-9/11 world. The example I just mentioned about the 9/11 terrorists: It is well documented that Mohamed Atta had a driver's license that was valid beyond the date of the expiration of his visa. Inasmuch as he had been stopped for an ordinary traffic violation, a lapsed driver's license, if its lapse was concurrent with the end of his visa, would perhaps have raised a signal which would have caused some additional questions to be answered. Of course, I do not want to speculate what the outcome of that would be, but it makes sense to me, and I think it makes sense to most people, that why in the world would you issue a driver's license to someone who is not lawfully present or allow that driver's license to extend beyond the date of their visa? Driver's licenses, after all, are used for access to airplanes all across this Nation; therefore, invalid driver's licenses held by someone not lawfully present, or perhaps even fraudulent documentation, pose a potential terrorist threat. We know that documents like a driver's license also function as a breeder document that is used to obtain other official documents, blurring the line between those who are in the United States legally and those who are not lawfully present. Without strong standards for driver's licenses, we ignore the clear security threat of fraudulent documents. For all these reasons, I submit that our work here is not yet finished until we begin to address this potential threat. We are a nation of immigrants, but we are, at the same time, a nation of laws, or at least we claim to be. But when America fails to enforce its own laws, it becomes more and more difficult to claim, with a straight face, that we are indeed a nation of laws. We should have no qualms and make no excuses to anyone about enforcing our laws in pursuit of our Nation's security, and as the Commissioners of the 9/11 Commission pointed out, immigration reform goes hand in hand with protecting our security. We should not allow ourselves to be distracted or our attention to be diverted from these critical issues. No, Mr. President, border security is not anti- immigrant. As Speaker Hastert has said: Immigrants to America are as victimized by terrorists as American citizens. I hope we will work promptly next year to carefully reconsider the enforcement measures included in the House bill that are not included in today's conference report. Let me mention some of those provisions in the bill that was passed by the House but which are not included in the conference agreement that we have passed. No. 1, the House required, but this bill does not include, a requirement that applicants for driver's licenses show proof of legal status in the United States. It does not contain the House requirement that temporary licenses should include a requirement that a license term should expire on the same date as a visa or other temporary lawful presence authorizing document and that the face of the card should show the expiration date. This bill does not require, but we should require in future legislation, that the Department of Homeland Security certify that States have met minimum driver's license issuance and document standards. This bill does not contain, but should contain, or at least future legislation should contain, provisions providing for the electronic confirmation by State motor vehicle departments of the validity of other States' driver's licenses and information. This conference report does not contain but should contain and I hope future legislation will require that half of our new immigration investigators should focus on enforcing our existing immigration laws and requiring that each State receive at least three of the new State immigration investigators. We should also require limits on judicial review of visa revocations. We should make it more difficult for terrorists and foreign criminals to win delays of their removal from the United States. We should explicitly require verification of certain information--such as identity, mother's maiden name, or other information--for the issuance of birth certificates accepted by a Federal agency. And we should require that the States adopt standardized practices for how they secure vital records offices. Mr. President, I believe that common sense tells us that each of these provisions should be the law of the land, and I regret they were not able to be included in this legislation. But certainly all that means is that our work is not yet done, and we have much left to do. I support the measures in the House bill that I have mentioned that were not included in this conference report. But the truth is, we need comprehensive immigration reform. I come from a border State, one with a 1,200-mile border with Mexico, and we know that Mexico's back door is the front door to Central America and beyond into South America, and that many of our immigration challenges come from south of the Texas border, which is, of course, an international border between the United States and our neighbor Mexico. It is well documented that we have approximately 10 million people who are illegally in this country who have come from south of the border and other places around the world. Here again, I don't know how we can say with a straight face that we are a nation of laws while at the same time ignoring this fact. I know it won't be easy. Indeed, like so many other challenges that face our Nation, few of these issues are easy. I know next year we will be dealing with things such as Social Security reform, tax simplification, and winning the war on terrorism. None of those issues are easy, but we don't give that as an excuse for failing to do our duty as Senators. I hope we will not make weak and empty excuses for failing to do our duty when it comes to immigration reform. The need for immigration reform is apparent when we look at the challenges we confront in a post-9/11 world. There are some who say: We can solve our immigration problems by building a wall between the United States and Mexico or we could do it by deploying troops along our border. That is a vain hope and expectation, if indeed people are truly serious about that. The fact is, when you have one of the poorer nations of the world right next door to the richest nation, people who have no hope and no opportunity where they live will do whatever it takes to provide hope and opportunity to their families. You cannot build a wall high enough or wide enough to keep people out of this country who know only despair and who have no opportunity where they live. I believe we need to deal comprehensively with this issue in a pragmatic way, a way that allows us to call ourselves a nation of laws, and create a legal framework that allows us to deal with the present reality of our reliance on immigrant labor, some 6 million in the workforce in America doing jobs in many instances that American citizens would not want to do. All you have to do is travel to construction sites all across the country. Go to the hotels, the restaurants, to the lawn service companies, whatever the nature of the business may be, you will find-- and we know they are there--immigrants who have come from other countries who ask for nothing more than the opportunity to work. We need and rely on that labor. At the same time the demands of homeland security cry out for an accounting of who is in our country and why they are here. While I suspect--indeed I believe--the vast majority of these people who have come here illegally are here because they want nothing more than to work and the opportunity to provide for their families, what we need to do is account for everyone who is here, why they are here, what their intentions are, and to make sure that those who are a threat to our country are deported or not allowed to come into our country in the first place. In order to deal with this issue--both our homeland security, our border security, and our economic reliance on the contributions that immigrant labor provides and that are important to our economy--we need to approach this entire question with a dose of common sense and pragmatism that unfortunately has been missing for so long. Most of the people who talk about immigration today, I am afraid to say, are special interest groups that try to scare the American people or, frankly, misrepresent the facts about this important issue. Comprehensive immigration reform will allow our law enforcement officials to concentrate on those who are indeed a threat while acknowledging the contributions that immigrants make to our economy, but under a lawful framework which allows us to regain our status as a nation of laws. To that end, last summer, I introduced the Border Security and Immigration Reform Act that would create a temporary worker program, allowing immigrants to work in the United States for a limited time, then return to their home country with the skills and the savings that they have earned. The most important aspect of that bill is that it is a work and return program. It is not a pathway to legal permanent residency in the United States, nor is it a pathway to citizenship. It is not amnesty. I would not support a bill that provides amnesty for those who are not lawfully present in the United States. I believe what this does is address both the reality on the ground in places such as my State and even the great State of Montana, represented by the current occupant of the chair. Immigrants make a tremendous contribution to the workforce and the economy of all of our States. I also believe that the work and return component is important because the fact is, if we are ever going to do anything about the root causes of immigration, we are going to have to support the efforts of the nations that supply these immigrants to help build their own economy and to create opportunity and jobs. If we don't do that, then the drain of the risk takers, the young and able-bodied, the people every economy depends upon in order to do the work and to help boost the economy and create opportunity, will continue, and we will never be successful. I believe both for our purposes and for the purposes of those countries that supply immigrant labor to the United States, it is important that we have a work and return requirement. I plan on reintroducing this measure when we return in January. I believe this proposal will enhance America's border security and homeland security by allowing law enforcement to focus on the true threats to America and those who intend to do us real harm. There are as many as 10 million individuals already present in this country illegally. Our homeland security demands an accounting of the identity of these individuals and their reason for being here and a judgment as to whether they pose a danger to our citizens. While I believe we have done a good thing here today and that we have met the request of the 9/11 families and the 9/11 Commission to deal with their concerns in this bill, we have not yet finished the job. Indeed, I don't believe we can claim we have finished the job until we deal comprehensively with immigration reform. I know it is going to take a lot of discussion. This is a controversial area, but I know the American people will benefit from a discussion in Congress and from our understanding of what their concerns are so we can try to achieve a national consensus to deal with this issue which we have neglected for far too long. It is because we have neglected it that we are not as safe as we should be; nor can we justly claim to be a nation of laws while we ignore this present violation, and ignoring those laws when it has to do with the immigrants in our country. Mr. President, I will talk more about this in January when we return but I did not want the occasion to pass without making these few comments. I yield the floor and suggest the absence of a quorum.

Mr. CORNYN

Mr. CORNYN. Mr. President, almost 2 months ago, we passed H.R. 5107, the Justice for All Act. That bill was the product of months, even years, of hard work and dedication of many on both sides of the aisle. The final product includes a number of important provisions and badly needed funding for State criminal justice systems and, for that, I am happy to see it pass. However, in order to gain my support, as well as that of a number of my colleagues, a number of compromises were made with respect to certain aspects of the Innocence Protection Act section of the bill. Specifically, the House majority leader, Mr. DeLay, and other members of the Texas delegation in the House inserted into the bill a provision designed to protect the capital representation system that is in place in Texas. Section 421(d)(1)(C) was added specifically to ensure that Texas or any State with a similarly structured system would qualify as an ``effective system'' under the statute. My support of the bill depended entirely on that provision and on the generally agreed-upon understanding of what that provision accomplishes. As made clear in a colloquy given on this floor at the time of the bill's passage, on October 9, 2004, between myself, Senator Sessions and the chairman of the authorizing committee, Senator Hatch, who also happened to be the author and sponsor of the legislation, ``it is this system [in Texas] or any future version of it that specifically is intended to be protected by this language.'' Further, we agreed that ``Texas will not have to change a thing in order to receive grants under this bill--it is automatically pre-qualified.'' Mr. Hatch also noted that it was his understanding that ``at least half a dozen other States also will automatically pre-qualify for funding under this proviso.'' Typically, I would not take the floor to make this point so long after the date of passage. But with regard to the Justice for All Act, I do feel compelled to respond to a statement the senior Senator from Vermont made on the floor on November 19, 2004--a full 41 days after the passage of H.R. 5107 on October 9, 2004, indicating a different view of the meaning of this provision and others. The final bill was the product of careful negotiations that sought to protect many different States' interests. It does not represent the wish-list of the Senator from Vermont. Suffice to say that the bill likely would not even have been enacted had the interests of the different States, interests such as those protected by the revised section 421, been adequately protected. Indeed, I would further note that views of the senior Senator from Vermont are hardly authoritative with regard to this bill. It is the senior Senator from Utah that is the author and lead sponsor of the bill and the chairman of the committee that reported the bill. And as the senior Senator from Utah made clear at the time that the bill was enacted, actual legislative history, he and I understood the bill to carve out a State such as Texas that had preexisting capital appointment systems. The senior Senator from Vermont also attempts to take some liberties with the meaning of other parts of the Justice for All Act's capital- counsel subtitle. He alleges that its grant provisions should be ``strictly interpreted by grant administrators''; that a $125-an-hour rate for defense attorneys is what is ``reasonable''; that defense attorneys' pay should be pegged to prosecutors' pay, and should include geographic cost-of-living adjustments; that the capital-counsel entity may not delegate some of its functions to individual trial judges; and that capital-improvement grants may not be used to higher prosecutors. None of these ambitions for the Justice for All Act has support in the actual text of the law. Indeed, some of these assertions directly contradict the understanding of the law at the time that it was enacted. For example, as the senior Senator from Utah made clear to the Senator from Alabama at the time that the bill passed the Senate, and well before House passage of the accompanying enrolling resolution made Senate passage final, nothing in section 421 precludes a State from structuring the capital-counsel entity so that general rules and rosters are set by a larger group of qualified judges, and application of those rules in individual cases, selection of counsel from the roster and approval of fees and expenses, is made by a qualified trial judge presiding over the case. Further, I would like to include the attached letter from the Texas Task Force on Indigent Defense regarding H.R. 5107, the Justice for All Act (P.L. 108-405), into the Congressional Record. This letter responds directly to the statement by Mr. Leahy found on page S 11609 of the November 19, 2004 Congressional Record. I know that my friend, the House Majority Leader, included in the House record this same letter, but I want to ensure that the record is clear. As he pointed out on the House floor, the mission of the Texas Task Force on Indigent Defense is to promote justice and fairness to all indigent persons accused of criminal conduct. The Task Force was created by State law, the Fair Defense Act of 2001, and took effect on January 1, 2002. Since its implementation, the Task Force has awarded over $28 million to 250 counties in Texas in furtherance of its mission to improve legal representation for indigent persons accused of crimes. I believe this letter responds in full and shows exactly the kind of system that H.R. 5107 envisions as effective, and I ask unanimous consent that it be printed in the Record.

Mr. CORNYN

Mr. CORNYN. Mr. President, would the chairman yield for a question?

Mr. CORNYN. As the chairman knows, he and I and our other co-sponsors have worked throughout this Congress on the provisions of the Family Entertainment and Copyright Act of 2004 that we have introduced today. I just want to confirm what I believe to be our mutual understanding about the effect of certain provisions of the Family Movie Act. Title II of the Family Entertainment and Copyright Act of 2004 that we introduced today modifies slightly the Family Movie Act provisions of H.R. 4077 as passed by the House of Representatives. That bill created a new exemption in section 110(11) of the Copyright Act for skipping and muting audio and video content in motion pictures during performances that take place in the course of a private viewing in a household from an authorized copy of the motion picture. The House- passed version specifically excluded from the scope of the new copyright exemption computer programs or technologies that make changes, deletions, or additions to commercial advertisements or to network or station promotional announcements that would otherwise be displayed before, during, or after the performance of the motion picture. My understanding is that this provision reflected a ``belt and suspenders'' approach that was adopted to quiet the concerns of some Members in the House who were concerned that a court might misread the statute to apply to ``ad-skipping'' cases. Some Senators, however, expressed concern that the inclusion of such explicit language could create unwanted inferences as to the ``ad-skipping'' issues at the heart of the recent litigation. Those issues remain unsettled, and it was never the intent of this legislation to resolve or affect those issues. In the meantime, the Copyright Office has confirmed that such a provision is unnecessary to achieve the intent of the bill, which is to avoid application of this new exemption in potential future cases involving ``ad-skipping'' devices; therefore, the Senate amendment we offer removes the unnecessary exclusionary language. Would the chairman confirm for the Senators present his understanding of the intent and effect, or perhaps stated more appropriately, the lack of any effect, of the Senate amendment on the scope of this bill?