Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am wondering if I could ask for the yeas and nays on my amendment, and I ask unanimous consent that the vote on it follow the vote on the Bond amendment.

Mr. FEINGOLD. I suggest the absence of a quorum.

Mr. FEINGOLD. Mr. President, I appreciate the remarks of the Senator from Indiana. I have always admired his manner, and specifically his candor when he indicated this was a close call. I will respond quickly because the keyword we have been using is we want to provide farmers with options. The problem is, under the mandatory arbitration regime, this is basically all the farmers are offered. That is the deal. You either agree to the mandatory arbitration provision of the contract, or you are not going to be part of the system. We are suggesting that banning the mandatory arbitration provision is a genuine option. The farmer can still agree, of course, to a valid arbitration system--that can be in the contract--and he can go to alternative dispute resolution. And many times, as you suggested, that might be preferable. But what we are trying to do is preserve the right to also have the option, if necessary, to go to the court proceeding or administrative proceeding. I accept the premise, which is that the farmer needs options, but the reality is that under the mandatory arbitration system that has grown so tremendously and has become so much a part of contracts, they effectively don't get any choice. That is the spirit of the amendment. Rather than interfering, I believe it returns to us where we were a few years ago, where farmers actually had choices in these matters. I appreciate the comments of the Senator from Indiana, and I urge my colleagues to support the Feingold-Grassley amendment.

Mr. FEINGOLD. I know we want to wrap it up. I want to make two quick points. I strongly agree with the comments of the Senator from Iowa. He and I worked closely together on this same problem in the area of car dealerships. An overwhelming number of this body sees this kind of relationship between the car dealer and the manufacturer as unfair. Even more importantly, I wish to respond to the remarks of the Senator from Indiana. He raised a new argument which is 50 States have laws about these kinds of arbitration agreements. That is true, but we are not today invading this area. This area has already been preempted by the Federal Arbitration Act (FAA). It is already the case that the States cannot under Federal law prohibit these agreements or make the rules for these agreements. It is already up to us. This amendment does not enter a new field. This is already a field that is clearly Federal in nature, and we are merely setting the rules, as we must, under Federal law. I do not want anyone to think we are suddenly invading a new area of State authority. I have strong feelings about avoiding that wherever possible. This is already preempted by Federal law. We need to make a decision. I think the right decision is to give the individual farmers the option they need and not be forced into a mandatory arbitration. I yield the floor.

Mr. FEINGOLD. Yes. Under my amendment, either party would have that option.

Mr. FEINGOLD

Mr. FEINGOLD. Sure.

Mr. FEINGOLD. Thank you, Mr. President. And I certainly thank the Senator from West Virginia. Amendment No. 2349 Mr. President, I send an amendment to the desk.

Mr. FEINGOLD. The Senator yields for a question.

Mr. FEINGOLD. I agree to a 10-minute limit.

Mr. FEINGOLD. Mr. President, I ask unanimous consent reading of the amendment be dispensed with.

Mr. FEINGOLD. Mr. President, my amendment is very straightforward. It would eliminate the $4,900 pay raise scheduled to go into effect in just a few weeks for Members of Congress. And I am very pleased to be joined in this effort by the senior Senator from Montana, Mr. Baucus, and the senior Senator from North Carolina, Mr. Helms. Our economy is in a recession and hundreds of thousands of workers have been laid off. Many families face enormous financial pressures. Shortly, we will debate how best to address this problem, and central for me in that debate is how to produce a short-term economic boost without undermining our long-term economic and budget position. The budget surpluses that were projected last spring have proved to be as illusory as many of us feared. The supplemental spending passed in the spring, along with the irresponsible tax cut passed this summer left us on the brink. The economic slowdown pushed us over the edge. So, when it came time to respond to the horrific events of September 11, we were forced to return to deficit spending. We have spent all of the on-budget surplus, and are well into the surplus that represents Social Security Trust Fund balances. That is something that has only been done to meet the most critical national prorities. A $4,900 pay raise for Members is not a critical national priority. As I said when I last brought this amendment to the floor, I think the idea of an automatic congressional pay raise is never appropriate. It is an unusual thing to have the power to raise our own pay. Few people have that ability. Most of our constitutents do not have that power. And that this power is so unusual is good reason for the Congress to exercise that power openly, and to exercise it subject to regular procedures that include debate, amendment, and a vote on the Record. As I noted during the debate of the Foreign Operations Appropriations measure, a number of my colleagues have approached me about this pay raise in the past few weeks, and some have indicated they support the pay raise. In fact, one of my colleagues said they would offer an amendment that actually increased the scheduled $4,900 pay raise because they felt it was too low. I strongly disagree with that position, but I certainly respect those who hold that position. But whatever one's position on the pay raise, I do think, the Senate ought to be on record on the matter if it is to go into effect. The current pay raise system allows a pay raise without any recorded vote. Even those who support a pay raise should be willing to insist that Members go on record on this issue. I think this process of stealth pay raises has to end, and I have introduced legislation to stop this practice. But the amendment I offer today does not go that far. All it does is simply stop the $4,900 pay raise that is scheduled to go into effect in January. When I offered this amendment to the Foreign Operations appropriations bill several weeks ago, a point of order was raised against it as not being germane to that bill. Let me say here that unlike that bill, the measure before us today has already raised the issue of a pay increase in the legislative branch in Section 810 of the House-passed bill. So this amendment is plainly germane to the bill before us. It is possible--in fact, obviously likely--that a Senator may raise a point of order against this amendment, and maybe some people will try to hide behind the procedural vote that would result. But make no mistake, the vote in relation to this amendment will be the vote on the congressional pay raise. Just a few weeks ago, Iowa's State employees voted to delay their own cost-of-living adjustment in order to help that State cope with its budget problems. Members of the Florida house voted to eliminate the cost-of-living pay increase they got on July 1 to help meet that State's budget get through a softening economy, and South Carolina's Governor Jim Hodges is taking a $4,000 pay cut as part of his efforts to keep this State's budget in balance. I hope my colleagues will follow the examples set by Iowa's State employees, the Florida house, and Governor Hodges. Given all that has happened, all that will happen, and the sacrifices that will be asked of all Americans, this isn't time for Congress to accept a $4,900 pay raise. Let's stop this backdoor pay raise, and then let's enact legislation to end this practice once and for all. Right this minute, our Nation is sending the men and women of our Armed Services into harm's way. I do not think it is the time for Congress to accept a pay raise. Let's stop this backdoor pay raise, and then let's enact legislation to end this practice once and for all. Mr. President, at this point I ask for the yeas and nays.

Mr. FEINGOLD. Mr. President, I suggest the absence of a quorum.

Mr. FEINGOLD. Mr. President, I raise the defense of germaneness, and I ask for the yeas and nays.

Mr. FEINGOLD. I raise the defense of germaneness and ask for the yeas and nays.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, it is with extreme disappointment that I rise to oppose the amendment offered by the Republican leader on behalf of the junior Senator from Alaska Mr. Murkowski, and the senior Senator from Kansas, Mr. Brownback. I urge my colleagues to oppose this amendment. I am particularly troubled that this amendment was filed as work continues to have a bill drafted by the majority leader and brought to the floor. Those who have said we need urgency in this matter have succeeded. We are working on a bill. But that is not fast enough for some, apparently, and this amendment seek to shortcut the process even further. Energy security is an important issue for America, and one which my Wisconsin constituents take very seriously. A national debate is unfolding about the role of domestic production of energy resources versus foreign imports, about the tradeoffs between the need for energy and the need to protect the quality of our environment, and about the need for additional domestic efforts to support improvements in our energy efficiency and the wisest use of our energy resources. The President joined that debate with the release of his National Energy Strategy earlier this Congress. The questions raised are serious, and differences in policy and approach are legitimate. I join with the other Senators today that are raising concerns about this amendment. As other Senators have highlighted, the amendment of the Senator from Alaska's, Mr. Murkowski, is not comprehensive energy legislation. It opens the refuge to oil drilling, subsidizes oil companies, and does little to address serious energy issues that have been raised in the last few weeks. Though the Senator from Alaska will say that his amendment would only open up drilling on 2,000 acres of the refuge. That is simply not the case. The entire 1\1/2\ million acres of the coastal plain of the refuge will be open for oil and gas leasing and exploration. Exploration and production wells can be drilled anywhere on the coastal plain under this language. The first lease sale, and, I stress for my colleagues that this refers only to the first sale, has to be at least 200,000 acres. I am assuming that when the Senator means that only 2,000 acres will be drilled he is referring to the language in H.R. 4 which states, and I am paraphrasing, the Secretary shall . . . ensure that the maximum amount of surface acreage covered by production and support facilities, including airstrips and any areas covered by gravel berms or piers for support of pipelines, does not exceed 2,000 acres on the coastal plain. That limitation is not a clear cap on overall development, Mr. President. It does not cover seismic or other exploration activities, which have had significant impacts on the Arctic environment to the west of the coastal plain. Seismic activities are conducted with convoys of bulldozers and ``thumper trucks'' over extensive areas of the tundra. Exploratory oil drilling involves large rigs and aircraft. The language does not cover the many miles of pipelines snaking above the tundra, just the locations where the vertical posts that support the pipelines literally touch the ground. In addition, this ``limitation'' does not require that the 2,000 acres of production and support facilities be in one contiguous area. As with the oil fields to the west of the Arctic Refuge, development could and would be spread out over a very large area. Indeed, according to the United States Geological survey, oil under the coastal plain is not concentrated in one large reservoir but is spread in numerous small deposits. To produce oil from this vast area, supporting infrastructure would stretch across the coastal plain. And even if this cap were a real development cap, Mr. President, what would this mean? Two thousand acres, is a sizable development area. The development would be even more troubling if they were located in areas that are adjacent to the 8 million acres of wilderness that Congress has already designated in the Arctic Refuge which share a boundary with the coastal plain. This amendment is controversial. Make no mistake, it will generate lengthy debate. I oppose it because it cuts short both the legitimate debate about drilling for oil in the Arctic Refuge that this country needs and the legitimate energy debate this country needs. Should this amendment be adopted, it would force the national energy legislation to be decided in the conference on pension bill--not in debate on an actual energy bill. I have also heard concerns from the constituents in my State who have paid dearly for large and significant jumps in gasoline prices. Drilling in the refuge does nothing to address the immediate need of the Federal Government to respond to fluctuations in gas prices and help expand refining capacity. My constituents experienced prices of between $3 to as high as $8 per gallon between September 11 and 12, 2001. The Department of Energy immediately assured me that energy supplies were adequate following the terrorist attacks. These increases are now being investigated as possible price gouging by the Department of Energy and the State of Wisconsin. With adequate energy resources, constituents need assurances that these unjustified jumped can be monitored and controlled. And I, along with many other Senators, have constituents who are concerned about the environmental impacts of this amendment, and what it says about our stewardship of lands of wilderness quality. I also oppose this amendment for what it lacks. In light of the tragic events of September 11, 2001, a key element of any new energy security policy should be to actually seek to secure our existing energy system--from production to distribution--from the threat of future terrorist attack. Americans deserve to know that the Senate has protected the existing North Slope oil rigs and pipelines from attack. Americans deserve to know that the Senate has considered measures to reduce the vulnerability of above ground electric transmission and distribution by providing needed investments in siting of below ground direct current cables, in researching better transmission technologies, and in protecting transformers and switching stations. Americans want us to review thoroughly the security of our Nation's domestic nuclear power plant safety regimes to ensure that they continue to operate well. Finally, Americans living downstream from hydroelectric dams want to know that they are safe from terrorist initiated dam breaching. Until we can assure them that this existing infrastructure is secure, it seems hasty to add additional structures that we may not be able to protect. The people of my State, and the people of this country, heard the President's address to Congress and they are willing to help when asked. We also need to have a comprehensive bill to be sure that our national energy conservation plans contemplate such contingencies as a future domestic need to reduce consumption of energy to help support our Armed Forces, if necessary. These were issues that the House did not address on August 2, 2001, when it passed its bill, because the terrorist attacks of September 11, 2001, were unthinkable at that time. These are issues that the amendment of the Senator from Alaska doesn't address. But we are a changed country in response to these tragedies, and these are very real issues today, issues that must be addressed. In addition, there have been other significant technological changes in the last few months which energy legislation should consider. On September 19, 2001, a model year 2002 General Motors Yukon which is able to run on either a blend of 85 percent ethanol and 15 percent conventional gasoline or conventional gasoline alone rolled off of the line in Janesville, WI. The 2002 model year Tahoes, Suburbans, and Denalis with 5.3 liter engines will be able to run on either fuel. But while my constituents could buy a vehicle which can run on a higher percentage of ethanol fuel, there isn't a place open today to buy that fuel in Wisconsin. We could go a long way to reducing dependence upon foreign oil by using domestic energy crops and biomass more wisely, and we should develop a bill to reflect our new technological capabilities. According to the Congressional Research Service, today the only way to isolate the U.S. economy from supply disruptions abroad would be to forbid the exportation of domestic oil to foreign markets and to prohibit domestic oil companies from raising prices. Since net oil imports have accounted for about 50 percent of U.S. consumption in recent years, such a policy, were it to be implemented, would lead to shortages unless domestic oil prices were allowed to rise much higher than at present. This is because oil extraction in the United States on a large enough scale to meet our energy needs is much too costly to compete with foreign producers. For this reason, energy independence in the long run would likely result in a price that may be less volatile, but certainly a price that is even higher than prices at their recent peak. Even if the United States could implement such a drastic policy, manipulations of oil prices by other oil producing nations could still affect the U.S. economy. Finally, I oppose this amendment because there is a lingering veil of concern that special corporate interests would benefit over our citizens by this amendment, and I am prepared to speak on that issue at length. I find it particularly troubling that at a time when we face the need to provide financial assistance to workers and to sectors of our economy severely impacted by September 11 events, we would even consider subsidizing the big oil companies. This amendment allows oil companies access to federal resources within a federal wildlife refuge. My constituents paid the high gasoline costs on September 11 and 12, and oil companies profited. Before they get more help from the federal government, I think we should be mindful of the help these industries are already getting. If the Senate chooses to adopt this amendment behind the veil of tragedy, it will be an act that increases division in the country when we most need unity. The Murkowski amendment should be opposed.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, the Wisconsin State Council of Vietnam Veterans of America, part of the congressionally chartered Vietnam Veterans of America, have been steadfast advocates for Wisconsin's veterans and their families. They have asked me to have printed in the Record the following editorial from The Badger Veteran, the newsmagazine that they produce. The editorial follows. May God Bless America The men and women of the Wisconsin State Council of Vietnam Veterans of America understand all too well the horrors of war. Until September 11th, our nation was blessed to have 136 years without a life being lost on America's mainland to war. Our sense--our collective illusion--of invulnerability was shattered forever by acts of terror in New York, Washington and Pennsylvania on the 11th of September. Our national security must never again be treated as an afterthought. It must not be placed on hold in the name of inconvenience not compromised because it might have some limited impact on the bottom line of our country's economy. A generation ago, we sent millions of Americans to fight a protracted war in Southeast Asia. The vast majority of Americans had the luxury of turning out that war simply by tuning off their TVs whenever they grew tired of it or found it too depressing. It is a luxury no American will ever have in our war against terrorism. Today, America has once again been drawn into a war--one not of our making. It will be protracted. It will be very costly--in dollars and, tragically, as in any war, in more lives, including more American lives. As veterans, we understand there is nothing fair or good about any war. And we know Americans will no doubt find themselves debating the conduct of this war in the halls of Congress and in homes and byways throughout our nation. There is nothing wrong with free and open debate. It is the American way. But Americans are also an impatient people who like quick resolution of events that disrupt their lives. This war promises no quick fixes. It will take more time than we will have patience. But patience is something for which Americans must collectively and continually search our very beings as the frustrations of a protracted war begin to take their toll on our resolve. And patience will have to be found time and again if we are to prevail. We urge the people of Wisconsin and the United States to stay the course until we cripple the world's terrorist networks. We urge President Bush and our national leaders to be mindful of the lessons of the Vietnam War, the Soviet- Afghanistan War and the Powell Doctrine with respect to committing U.S. ground troops to foreign battlefields. And we ask and expect that criticisms of this war and its policies will be directed at our government and our leadership who are responsible for the policies and never again at the men and women our government sends into harm's way on behalf of our nation. This is also a time for remembering, for coming together. A time to heal while being vigilant. A time to remind our foes that when threatened or attacked, we will respond with a ferocity that they shall regret unleashing. As President Bush stated, we are a good, peace loving nation. Our enemies proceed at their peril whenever they infer from our nature that we will turn the other cheek when attacked. This will also be a time for the vast majority of Americans--especially young Americans--to learn about the importance of some ``old fashioned'' values that have lost relevance to too many for too long. Values like duty, honor and country, with an increased appreciation for a simple, compelling fact: Despite all of America's flaws and shortcomings, we have the privilege of living in the greatest nation on earth. On behalf of the members of Vietnam Veterans of America in Wisconsin and ourselves, we rededicate the Wisconsin State Council's commitment to our Founding Principle, ``Never again will one generation of veterans abandon another.'' And we promise to continue our efforts to make VVA's motto, ``In Service to America,'' an ongoing reality. May God bless the United States of America. And may peace return to our shores and the world with dispatch. John Margowski, President & Publisher. Marvin J. Freedman, Executive Director & Managing Editor. James Carey, Executive Editor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to talk about the stimulus package we recently considered in the Senate, and the disturbing new definition of patriotism that was associated with it. As I think most of my colleagues are aware, the bill we considered was laden with rewards for wealthy donors. Now, I think these days we would hardly be able to recognize a stimulus package, or any kind of emergency spending, if it weren't loaded down with provisions designed to benefit special interests. This practice certainly isn't new. But what is new, is the attempt to cloak these giveaways in a kind of patriotism. A recent Washington Post editorial quoted a lobbyist for PricewaterhouseCoopers, who has been pushing tax breaks in the bill that would profit clients such as GE and IBM, saying that it would have been ``irresponsible'' and even unpatriotic for him to behave otherwise. Patriotic to push for a taxbreak for major corporations? I never thought I'd see the day. But here we are, in the midst of the war on terrorism, trying to stop a deepening recession, and we were faced with a stimulus package that was designed to reward wealthy interests, but did very little to boost the economy. And now, to add insult to injury, we've been told that this isn't merely pork barrel politics, but that it is downright patriotic. I find that appalling, and I'm sure many of my colleagues did as well. Because today this country is brimming with real patriotism, and I think many of us draw strength from that shared sense of pride in our country. But some versions of the stimulus bill were nothing to be proud of. At this moment I believe that we may well need a stimulus package. But that's not what we were considering; instead we were faced with the same kind of pork-barrel spending we have seen year in and year out, except that now these provisions were dressed up in red, white and blue. That kind of opportunism, at a time like this, is an affront to the American people, and it should be unwelcome in this Chamber. The stimulus bill, and in particular, the House-passed version of the bill, represents a lost opportunity for the Nation, and I think the American people have the right to ask what went wrong. How, at a time when the Nation needs a strong stimulus package, did we end up with this pile of pork? And when I say pile of pork, I'm being kind. The St. Louis Post Dispatch called it chicken manure. From time to time I like to Call the Bankroll on legislation, and talk about the potent mix of money and influence that results in the kind of legislation that's before us today. I think it's appropriate to review the donations given by the interests that could reap such tremendous benefits from this bill. According to information from Common Cause and Citizens for Tax Justice, just 14 corporations alone would reap a $6.3 billion windfall from the retroactive repeal of the alternative minimum tax in the House-passed package. Enron, which has given more than $3.7 million in soft money from 1991 through 2000, will get an estimated $254 million refund under this bill. Chevron Texaco, which gave more that $3.6 million in soft money over the last 10 years, will get an estimated refund of $572 million. General Electric gave $1.3 million, and they'll get $671 million. And this list goes on. Billions upon billions of dollars being funneled back to big donors at a time when more and more Americans are out of work, lacking health care coverage and struggling to pay their bills. The House package also gave a temporary tax break to multinational corporations on some profits from their foreign operations. As the Washington Post pointed out, ``it's hard to see how this measure, which would encourage firms to keep money outside the country, would do anything to stimulate the American economy.'' This measure rewards some of the biggest donors in the banking, investment and life insurance industries. Some of the biggest donors in these industries include Merrill Lynch, which has given more than $2.2 million in soft money over the last 10 years, and Citigroup, which has given more than $2.1 million during the last 10 years, according to Common Cause. The House-passed package even included Medical Savings Accounts, which soft money donor Golden Rule Financial Corporation and other insurance interests have lobbied for for many years. Golden Rule gave just shy of $1.3 million in soft money in the last ten years. The stimulus bill should have been an opportunity to stimulate the economy; instead it turned out to be a chance for special interests to add the provisions they've been pushing for all these years. Wealthy interests haven't hesitated to take this difficult period for the country and exploit it for their own gain. And if this version of the bill ever passes, they will reap an enormous financial windfall. In the last few months, the Nation has endured a great deal, and we will continue to face enormous challenges. As a Congress, we must address the issues before us with the kind of integrity that these challenges will demand. But we can't meet those challenges when the legislative process is hobbled by the clout of special interests. The stimulus bill was a sobering example of a bill that went through that process, and fell far short of its goal. The stimulus bill was a missed opportunity that the Nation may pay dearly for down the road. We've missed an opportunity, but we don't have to miss another one. I hope when Congress returns next year, we will rise to meet the next challenge before us: getting campaign finance reform to the President's desk. The Nation is closely watching our work here, more now than ever in the wake of September 11. And bills like the stimulus package would make any American wonder whether we are truly conducting the people's business on this floor. We must restore integrity to legislative process, and restore the people's faith in us and what we do. I think we can start by voting against this bill, if it comes to us in a form like the House-passed bill. But we must do much more, we must abolish soft money and shut down the issue ad loophole, and it can't wait another year. Campaign finance reform should be one of the first orders of business when we return next year. The American people are looking to us for leadership, and I believe that this Senate can provide that leadership. We can show the American people that we have the courage and leadership they seek, and we can start by making campaign finance reform the law of the land.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I supported a motion to waive the Budget Act with respect to a point of order raised against the substitute amendment to H.R. 3090, even though there are a number of provisions in that amendment that are troubling. Just a few weeks ago, this body voted to provide emergency funding to the nation's airlines. We recognize the special situation caused by the terrorist attacks of September 11, and understood that if we failed to act, the consequences for those firms, and for the economy as a whole, could well have been devastating. At the time of that vote, I noted that we also needed to address the problems facing the workers in those firms. This legislation will do that, in part, and it will also provide assistance to other families who have been thrown out of work by the economic slowdown, and should provide the weakened economy with a boost. Unfortunately, a number of special interests have taken advantage of this human and economic adversity to advance their own agenda. The measure that passed the other body is teeming with special interest tax breaks that do little or nothing for the economy as a whole in the short term, and seriously jeopardize our long term budget position. The substitute amendment before us is vastly superior in this respect. It provides far more benefit for our economy in the short term, while minimizing the long term impact. Nevertheless, there are a number of special interest spending and tax provisions in the amendment that raise serious questions, such as provisions that provide money for citrus growers and buffalo farmers and tax breaks for electricity produced from chicken waste and aviation fuel for crop-dusters. A provision common to both the substitute amendment and the House-passed bill would reduce taxes on corporations' overseas investment income. As the Washington Post noted in a recent editorial: ``It's hard to see how this measure, which would encourage firms to keep money outside the country, would do anything to stimulate the American economy.'' The substitute amendment before us, even with its flaws, is far more fiscally responsible than the House bill, but as this legislation proceeds there is a real risk that it will continue to pick up still more special interest provisions. Indeed, the House version is largely a lobbyist's wish list. Unless this body is able to restrain itself, and resist efforts to advance special interest spending and tax breaks, the costs of a fiscal stimulus measure will outweigh any benefit it provides to our economy.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I will vote to confirm Judge Edith Brown Clement to the U.S. Court of Appeals for the Fifth Circuit today, but I do so with some reservations. I rise today to discuss my concerns for the record and to comment on the issue of privately funded judicial education about which I questioned Judge Clement. Judge Clement has served for nearly a decade as a U.S. district judge in Louisiana. She is supported by my two colleagues from Louisiana and received a ``well-qualified'' rating from a majority of the ABA's Standing Committee on the Federal Judiciary. There is nothing in her record as a judge that gives me reason not to support her nomination. At Judge Clement's hearing before the Judiciary Committee, Senator Kohl asked her two questions concerning her attendance at a number of judicial education seminars sponsored by free-market economics organizations. Let me quote the full exchange between Senator Kohl and Judge Clement: Senator Kohl. I would like to turn briefly to the topic of privately-funded judicial seminars, or what some have called junkets for judges. Your financial disclosure forms indicate that you have attended a significant number of these seminars in recent years, including a seminar on environmental law hosted by the Foundation for Research on Economics and the Environment. As you are probably aware, such seminars have come under intense scrutiny based on evidence that the seminars are one- sided and that they are being funded by corporations and special interest groups that have an interest in Federal court litigation. Senator Kerry and Senator Feingold have introduced legislation that would ban these kinds of trips. Do you think that those Senators are correct to be concerned about these trips, and might you support their kind of legislation? Judge Clement. Well, as you know, judicial officers are frequently invited to participate as speakers or participants in programs dealing with judicial education, as well as continuing legal education for lawyers, as well as participate in lectures to law students. My experience has shown that the panels and the speakers are from a widely diverse group, that there is a representation from private industry as well as from government and public officials, as well as from the law schools, including the deans of the law schools and the faculty members. So to that extent, my participation in programs, either as a speaker or as a participant, has reflected that there is a wide variety of opinions expressed. I think it is a very broad-based presentation of issues dealing with constitutional law, as well as antitrust and economic, as well as environmental issues. So to that extent, I don't see a problem with the educational opportunities afforded to the judiciary. Senator Kohl. Do you plan to continue these types of seminars in terms of your attendance in the event that you are confirmed to the fifth circuit? Judge Clement. Well, some of the seminars are basic economics which, of course, I have completed. And then there is an advanced economics, which I have completed. Some of the seminars are focused on the Constitution, some are focused on environmental issues. So to the extent that I haven't already been exposed to that information and to the extent that I am impressed with the faculty that's being presented, I would evaluate the opportunity at that time when presented with the invitation. I was concerned about this exchange for a number of reasons. First, Judge Clement seemed to minimize her participation in judicial education seminars that are put on for judges by outside interest groups. The question Senator Kohl posed was not about her giving a speech or a lecture, but about attending all-expense paid seminars funded by corporate interests with room, board, and airfare worth thousands of dollars to places like Montana and Captiva Island, FL. Judge Clement has taken five such trips from 1994-1998. I was also concerned by Judge Clement's testimony that the seminars she attended were balanced and broad-based. An exhaustively researched report released last year by the Community Rights Counsel suggests strongly to the contrary. Judge Clement's answers to Senator Kohl's questions suggested that she sees nothing wrong with these trips and would not hesitate to attend similar events in the future if the topic of the seminar interests her. Because I was concerned about Judge Clement's testimony, I asked a few followup questions in writing. Those questions had not yet been answered when Judge Clement came up for a vote in the Judiciary Committee. That is why I voted ``present'' in committee. One of my questions called Judge Clement's attention to a Harvard Environmental Law Review article that specifically discussed one of the seminars that she attended, a trip to Montana in 1996 sponsored by the Foundation for Research on Economics and the Environment, FREE. After discussing the views of the various presenters at that seminar, the authors conclude: It is easy to see why some corporations and extreme conservative foundations so eagerly fund FREE. FREE's seminars for judges explain how and why judges should strike down Federal environmental laws. FREE's assertion that its seminars present a ``very wide range'' of viewpoints is true only insofar as they feature both extreme positions like those of Greve, Huffman, and DeCrane, as well as moderate views such as those of Olson and Snow. The seminars offer no views contrary to the seminar's principle themes. No one at the seminar 1. gave a robust defense of existing Federal environmental laws, 2. explained fully why the market fails to protect the environment, or 3. critiqued the legal and constitutional analysis of Huffman and Greve.--D. Kendall and E. Sorkin, ``Nothing for Free: How Private Judicial Seminars are Undermining Environmental Protections and Breaking the Public's Trust,'' 25 Harv. Env. L. Rev. 405, 447 (2001). Judge Clement reviewed the article and stated in her response that she remains of the view that this seminar and others she attended ``focused on the problems and solutions from varied perspectives.'' Essentially, Judge Clement refused to acknowledge that these seminars have any bias whatsoever. I found this answer troubling because I believe that most fair-minded observers, even if they do not agree with me that there is a problem with judges taking expense paid trips to receive ``education'' from a specific corporate point of view, would agree that the seminars in question are slanted in favor of one approach to the law. I also asked Judge Clement whether she had inquired about the corporate sponsorship of these seminars before attending and if not, how she complied with Judicial Conference Committee on Codes of Conduct Advisory Opinion 67. That opinion states: It would be improper to participate in such a seminar if the sponsor, or source of funding, is involved in litigation, or likely to be so involved, and the topics covered in the seminar are likely to be in some manner related to the subject matter of such litigation. If there is a reasonable question concerning the propriety of participation, the judge should take such measures as may be necessary to satisfy himself or herself that there is no impropriety. To the extent that this involves obtaining further information from the sponsors of the seminar, the judge should make clear an intent to make the information public if any questions should arise concerning the propriety of the judge's attendance. The central thrust of this opinion in my view is that judges have the responsibility to inquire about the sources of funding of programs they attend and to take steps to avoid the appearance of impropriety should the funders be involved in litigation before them. Judge Clement's response to my question was troubling. She said she relied entirely on the sponsoring organization's description of their purpose and sponsors. And she added: ``Corporate sponsors were never identified, and to this day I do not know who they are.'' I find this attitude of willful ignorance of the underlying sources of funding for these seminars, an attitude that I fear is shared by many members of the judiciary who go on these trips, very disturbing indeed. At the very foundation of our system of justice is the notion that judges will be fair and impartial. Strict ethical guidelines have been in effect for years to remove even the hint of impropriety from the conduct of those we entrust with the responsibility of adjudicating disputes and applying the law. One-sided seminars given in wealthy resorts funded by wealthy corporate interests to ``educate'' our judges in a particular view of the law cannot help but undermine public confidence in the decisions that judges who attend the seminars ultimately make. Distinguished judges and academics, most notably former Representative, Court of Appeals Judge, and White House Counsel Abner Mikva, have spoken out against these ``judicial junkets.'' I have worked with Senator Kerry on legislation to address this issue. I hope that the federal judiciary can address this growing public perception problem through its own internal rules, but if it doesn't, I believe that Congress has the responsibility to act to protect the independence and the reputation of the judiciary. Despite my reservations and concerns about Judge Clement's response to questions on this issue, I will vote for her. One reason is that in answering my questions she did acknowledge the importance of guarding against the appearance of impropriety. And she promised she would guard against such appearances if she is elevated to the 5th Circuit. Furthermore, there is no indication that her opinions as a judge have been unduly influenced by these seminars. In sum, I want to be clear that I do not believe that taking part in these seminars should disqualify a judge from a subsequent confirmation. I do believe, however, that our judges need to be more attuned to the appearance problem that there participation creates. I hope that in responding to questions on this topic, future nominees will recognize the importance of the public perception of their independence and impartiality. I ask unanimous consent that the list of trips taken by Judge Clement, to which I previously referred, be inserted in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, I am proud today to introduce the Veterans Benefits Administration Improvement Act of 2001, a bill that aims to decrease the amount of time it takes the Veterans Benefits Administration, VBA, to process veterans' claims. I am pleased to be joined by the senior Senator from Utah, Senator Hatch. He had long been a strong advocate for our veterans. In 1999, there were 309,000 backlogged claims at the VBA. Today, that number stands at 533,000. It now takes an average of 202 days to process disability compensation and pension claims. This figure is expected to grow to more than 270 days by 2002. Many of the claims that are awaiting action have been filed by World War II and Korean War veterans; our World War II veterans are dying at the rate of about 1,500 a day. The VBA must take action to improve this dismal record. I have traveled throughout Wisconsin and met with veterans. This problem is consistently one of their top concerns. They are angry and frustrated, with justification, about the amount of time it takes for the VBA to process their claims. In some instances, veterans are waiting well over a year. Telling the men and women who served their country in the armed forces that they ``just have to wait'' is wrong and unacceptable. The VBA Improvement Act will require the Secretary of Veterans Affairs to submit a comprehensive plan to Congress for the improvement of the processing of claims for veterans compensation and pension. In addition, every six months afterwards the Secretary must report to Congress about the status of the program. While I am pleased that Secretary Principi has acknowledged that improving claims processing is a priority for the VA, nevertheless it is time for Congress to hold the Department of Veterans Affairs accountable. Our veterans are unable to wait for additional recommendations from more reports or task forces. It is time for Congress to hold the VA accountable. Our veterans deserve no less.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, I am proud today to introduce the Veterans Benefits Administration Improvement Act of 2001, a bill that aims to decrease the amount of time it takes the Veterans Benefits Administration, VBA, to process veterans' claims. I am pleased to be joined by the senior Senator from Utah, Senator Hatch. He had long been a strong advocate for our veterans. In 1999, there were 309,000 backlogged claims at the VBA. Today, that number stands at 533,000. It now takes an average of 202 days to process disability compensation and pension claims. This figure is expected to grow to more than 270 days by 2002. Many of the claims that are awaiting action have been filed by World War II and Korean War veterans; our World War II veterans are dying at the rate of about 1,500 a day. The VBA must take action to improve this dismal record. I have traveled throughout Wisconsin and met with veterans. This problem is consistently one of their top concerns. They are angry and frustrated, with justification, about the amount of time it takes for the VBA to process their claims. In some instances, veterans are waiting well over a year. Telling the men and women who served their country in the armed forces that they ``just have to wait'' is wrong and unacceptable. The VBA Improvement Act will require the Secretary of Veterans Affairs to submit a comprehensive plan to Congress for the improvement of the processing of claims for veterans compensation and pension. In addition, every six months afterwards the Secretary must report to Congress about the status of the program. While I am pleased that Secretary Principi has acknowledged that improving claims processing is a priority for the VA, nevertheless it is time for Congress to hold the Department of Veterans Affairs accountable. Our veterans are unable to wait for additional recommendations from more reports or task forces. It is time for Congress to hold the VA accountable. Our veterans deserve no less.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, I rise today to introduce the Johne's Disease Elimination Act, which would provide incentives to encourage dairy producers to voluntarily begin testing for Johne's disease and to remove infected and exposed animals from their dairy herds. Johne's disease is a devastating infection that has adversely impacted dairy herds across the country for many years. Johne's disease was identified more than a century ago, yet remains a common and costly infectious disease of dairy cattle. Johne's disease starts as an infection in calves, though indications do not appear until 2 to 5 years later. Over 20 percent of all dairy herds may be infected with an animal pathogen that causes Johne's disease, which causes losses in milk production and an eventual wasting away of the animal. And if not detected and eliminated, the disease can spread throughout the herd. This animal disease, for which there is no cure, is projected to cost U.S. diary producers in excess of $200 million annually. Let me repeat, $200 million. The average cost to producers is about $245 per cow. In other words, the cost for a 100 cow dairy with an infected herd would be about $24,000. One of the biggest challenge to eradicate Johne's disease is the lack of a consistent national or industry-wide education or control program. One of the more prominent recent efforts involves the Johne's Committee of the U.S. Animal Health Association, which formed the National Johne's Working Group to begin more cohesive education, research, and control efforts to deal with the disease. The legislation I am introducing today is based on the work of the National Johne's Working Group. My legislation would authorize the creation of a program to encourage dairy herd owners to be practically free of Johne's disease in 7 years. This program would be absolutely voluntary and confidential, as the working group recommended. This program would provide incentives to encourage dairy producers to voluntarily begin testing for Johne's disease and to remove infected and exposed animals from their dairy herds. The incentives provided will also help farmers to perform herd risk assessments and utilize best management practices to develop appropriate Johne's Herd Management Plans to prevent further introduction and spread of the disease. We need to listen to America's dairy industry and follow their common sense suggestions to eradicate a disease that hurts dairy farmers across the United States. I urge my colleagues to join me in cosponsoring this legislation.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, I have asked for this time to speak about the antiterrorism bill, H.R. 3162. As we address this bill, of course, we are especially mindful of the terrible events of September 11 and beyond, which led to this bill's proposal and its quick consideration in the Congress. This has been a tragic time in our country. Before I discuss this bill, let me first pause to remember, through one small story, how September 11 has irrevocably changed so many lives. In a letter to the Washington Post recently, a man, as he went jogging near the Pentagon, came across the makeshift memorial built for those who lost their lives. He slowed to a walk as he took in the sight before him, the red, white, and blue flowers covering the structure. Off to the side, was a smaller memorial with a card that read: Happy birthday, Mommy. Although you died and are no longer with me, I feel as if I still have you in my life. I think about you every day. After reading the card, the man felt as if he were ``drowning in the names of dead mothers, fathers, sons, and daughters.'' The author of this letter shared a moment in his own life that so many of us have had, the moment where televised pictures of the destruction are made painfully real to us. You read a card, see the anguished face of a loved one, and then, suddenly, we feel the enormity of what has happened to so many American families and to all of us as a people. We also had our initial reactions to the attack. My first and most powerful emotion was a solemn resolve to stop these terrorists. That remains my principal reaction to these events. But I also quickly realized, as many did, that two cautions were necessary. I raised them on the Senate floor the day after the attacks. The first caution was that we must continue to respect our Constitution and protect our civil liberties in the wake of the attacks. As the chairman of the Constitution subcommittee of the Judiciary Committee I recognize fully that this is a different world, with different technologies, different issues, and different threats. Yet we must examine every item that is proposed in response to these events to be sure we are not rewarding these terrorists and weakening ourselves by giving up the cherished freedoms that they seek to destroy. The second caution I issued was a warning against the mistreatment of Arab Americans, Muslim Americans, South Asians, or others in this country. Already, one day after the attacks, we were hearing news reports that misguided anger against people of these backgrounds had led to harassment, violence, and even death. I suppose I was reacting instinctively to the unfolding events in the spirit of the Irish statesman John Philpot Curran, who said: The condition upon which God hath given liberty to man is eternal vigilance. During those first few hours after the attacks, I kept remembering a sentence from a case I had studied in law school. Not surprisingly, I didn't remember which case it was, who wrote the opinion, or what it was about, but I did remember these words: While the Constitution protects against invasions of individual rights, it is not a suicide pact. I took these words as a challenge to my concerns about civil liberties at such a momentous time in our history; that we must be careful to not take civil liberties so literally that we allow ourselves to be destroyed. But upon reviewing the case itself, Kennedy v. Mendoza-Martinez, I found that Justice Arthur Goldberg had made this statement but then ruled in favor of the civil liberties position in the case, which was about draft evasion. He elaborated: It is fundamental that the great powers of Congress to conduct war and to regulate the Nation's foreign relations are subject to the constitutional requirements of due process. The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action. The Justice continued: The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances . . . In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution. I have approached the events of the past month and my role in proposing and reviewing legislation relating to it in this spirit. I believe we must, we must, redouble our vigilance. We must redouble our vigilance to ensure our security and to prevent further acts of terror. But we must also redouble our vigilance to preserve our values and the basic rights that make us who we are. The Founders who wrote our Constitution and Bill of Rights exercised that vigilance even though they had recently fought and won the Revolutionary War. They did not live in comfortable and easy times of hypothetical enemies. They wrote a Constitution of limited powers and an explicit Bill of Rights to protect liberty in times of war, as well as in times of peace. Of course, there have been periods in our nation's history when civil liberties have taken a back seat to what appeared at the time to be the legitimate exigencies of war. Our national consciousness still bears the stain and the scars of those events: The Alien and Sedition Acts, the suspension of habeas corpus during the Civil War, the internment of Japanese-Americans, German-Americans, and Italian-Americans during World War II, the blacklisting of supposed communist sympathizers during the McCarthy era, and the surveillance and harassment of antiwar protesters, including Dr. Martin Luther King Jr., during the Vietnam War. We must not allow these pieces of our past to become prologue. Even in our great land, wartime has sometimes brought us the greatest tests of our Bill of Rights. For example, during the Civil War, the Government arrested some 13,000 civilians, implementing a system akin to martial law. President Lincoln issued a proclamation ordering the arrest and military trial of any persons ``discouraging volunteer enlistments, or resisting militia drafts.'' Wisconsin provided one of the first challenges of this order. Draft protests rose up in Milwaukee and Sheboygan. And an anti-draft riot broke out among Germans and Luxembourgers in Port Washington, WI. When the government arrested one of the leaders of the riot, his attorney sought a writ of habeas corpus. His military captors said that the President had abolished the writ. The Wisconsin Supreme Court was among the first to rule that the President had exceeded his authority. In 1917, the Postmaster General revoked the mailing privileges of the newspaper the Milwaukee Leader because he felt that some of its articles impeded the war effort and the draft. Articles called the President an aristocrat and called the draft oppressive. Over dissents by Justices Brandeis and Holmes, the Supreme Court upheld the action. We all know during World War II, President Roosevelt signed orders to incarcerate more than 110,000 people of Japanese origin, as well as some roughly 11,000 of German origin and 3,000 of Italian origin. Earlier this year, I introduced legislation to set up a commission to review the wartime treatment of Germans, Italians, and other Europeans during that period. That bill came out of heartfelt meetings in which constituents told me their stories. They were German-Americans, who came to me with some trepidation. They had waited 50 years to raise the issue with a member of Congress. They did not want compensation. But they had seen the Government's commission on the wartime internment of people of Japanese origin, and they wanted their story to be told, and an official acknowledgment as well with regard to what had happened to them. I hope, that we will move to pass this important legislation early next year. We must deal with our nation's past, even as we move to ensure our nation's future. (Mrs. STABENOW assumed the chair.)

Mr. FEINGOLD. Now some may say, indeed we may hope, that we have come a long way since those days of infringements on civil liberties. But there is ample reason for concern. And I have been troubled in the past 6 weeks by the potential loss of commitment in the Congress and the country to traditional civil liberties. As it seeks to combat terrorism, the Justice Department is making extraordinary use of its power to arrest and detain individuals, jailing hundreds of people on immigration violations and arresting more than a dozen ``material witnesses'' not charged with any crime. Although the Government has used these authorities before, it has not done so on such a broad scale. Judging from Government announcements, the Government has not brought any criminal charges related to the attacks with regard to the overwhelming majority of these detainees. For example, the FBI arrested as a material witness the San Antonio radiologist Albader Al-Hazmi, who has a name like two of the hijackers, and who tried to book a flight to San Diego for a medical conference. According to his lawyer, the Government held Al-Hazmi incommunicado after his arrest, and it took 6 days for lawyers to get access to him. After the FBI released him, his lawyer said: This is a good lesson about how frail our processes are. It's how we treat people in difficult times like these that is the true test of the democracy and civil liberties that we brag so much about throughout the world. I agree with those statements. Now, it so happens--and I know the Presiding Officer is aware of that because she has been very helpful on this issue--that since early 1999, I have been working on another bill that is poignantly relevant to recent events: legislation to prohibit racial profiling, especially the practice of targeting pedestrians or drivers for stops and searches based on the color of their skin. Before September 11, people spoke of the issue mostly in the context of African-Americans and Latino- Americans who had been profiled. But after September 11, the issue has taken on a new context and a new urgency. Even as America addresses the demanding security challenges before us, we must strive mightily also to guard our values and basic rights. We must guard against racism and ethnic discrimination against people of Arab and South Asian origin and those who are Muslim. We who do not have Arabic names or do not wear turbans or headscarves may not feel the weight of these times as much as Americans from the Middle East and South Asia do. But as the great jurist Learned Hand said in a speech in New York's Central Park during World War II: The spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias. . . . Was it not at least partially bias, however, when passengers on a Northwest Airlines flight in Minneapolis a month ago insisted that Northwest remove from the plane three Arab men who had cleared security? Of course, given the enormous anxiety and fears generated by the events of September 11, it would not have been difficult to anticipate some of these reactions, both by our government and some of our people. Some have said rather cavalierly that in these difficult times we must accept some reduction in our civil liberties in order to be secure. Of course, there is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country that allowed the police to search your home at any time for any reason; if we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country that allowed the government to hold people in jail indefinitely based on what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists. But that probably would not be a country in which we would want to live. And that would not be a country for which we could, in good conscience, ask our young people to fight and die. In short, that would not be America. Preserving our freedom is one of the main reasons we are now engaged in this new war on terrorism. We will lose that war without firing a shot if we sacrifice the liberties of the American people. That is why I found the antiterrorism bill originally proposed by Attorney General Ashcroft and President Bush to be troubling. The administration's proposed bill contained vast new powers for law enforcement, some seemingly drafted in haste and others that came from the FBI's wish list that Congress has rejected in the past. You may remember that the Attorney General announced his intention to introduce a bill shortly after the September 11 attacks. He provided the text of the bill the following Wednesday, and urged Congress to enact it by the end of the week. That was plainly impossible, but the pressure to move on this bill quickly, without deliberation and debate, has been relentless ever since. It is one thing to shortcut the legislative process in order to get Federal financial aid to the cities hit by terrorism. We did that, and no one complained that we moved too quickly. It is quite another to press for the enactment of sweeping new powers for law enforcement that directly affect the civil liberties of the American people without due deliberation by the peoples' elected representatives. Fortunately, cooler heads prevailed at least to some extent, and while this bill has been on a fast track, there has been time to make some changes and reach agreement on a bill that is less objectionable than the bill that the administration originally proposed. As I will discuss in a moment, I have concluded that this bill still does not strike the right balance between empowering law enforcement and protecting civil liberties. But that does not mean that I oppose everything in the bill. By no means. Indeed many of its provisions are entirely reasonable, and I hope they will help law enforcement more effectively counter the threat of terrorism. For example, it is entirely appropriate that with a warrant the FBI be able to seize voice mail messages as well as tap a phone. It is also reasonable, even necessary, to update the federal criminal offense relating to possession and use of biological weapons. It made sense to make sure that phone conversations carried over cables would not have more protection from surveillance than conversations carried over phone lines. And it made sense to stiffen penalties and lengthen or eliminate statutes of limitation for certain terrorist crimes. There are other non-controversial provisions in the bill that I support--those to assist the victims of crime, to streamline the application process for public safety officers benefits and increase those benefits, to provide more funds to strengthen immigration controls at our Northern borders--something that the Presiding Officer and I understand--to expedite the hiring of translators at the FBI, and many other such provisions. In the end, however, my focus on this bill, as Chair of the Constitution Subcommittee of the Judiciary Committee in the Senate, was on those provisions that implicate our constitutional freedoms. And it was in reviewing those provisions that I came to feel that the administration's demand for haste was inappropriate; indeed, it was dangerous. Our process in the Senate, as truncated as it was, did lead to the elimination or significant rewriting of a number of audacious proposals that I and many other members found objectionable. For example, the original administration proposal contained a provision that would have allowed the use in U.S. criminal proceedings against U.S. citizens of information obtained by foreign law enforcement agencies in wiretaps that would be illegal in this country. In other words, evidence obtained in an unconstitutional search overseas was to be allowed in a U.S. court. Another provision would have broadened the criminal forfeiture laws to permit--prior to conviction--the freezing of assets entirely unrelated to an alleged crime. The Justice Department has wanted this authority for years, and Congress has never been willing to give it. For one thing, it touches on the right to counsel, since assets that are frozen cannot be used to pay a lawyer. The courts have almost uniformly rejected efforts to restrain assets before conviction unless they are assets gained in the alleged criminal enterprise. This proposal, in my view, was simply an effort on the part of the Department to take advantage of the emergency situation and get something that they've wanted to get for a long time. As I have indicated, the foreign wiretap and criminal forfeiture provisions were dropped from the bill that we considered in the Senate. Other provisions were rewritten based on objections that I and others raised about them. For example, the original bill contained sweeping permission for the Attorney General to get copies of educational records without a court order. The final bill requires a court order and a certification by the Attorney General that he has reason to believe that the records contain information that is relevant to an investigation of terrorism. So the bill before us is certainly improved from the bill that the administration sent to us on September 19, and wanted us to pass on September 21. But again, in my judgement, it does not strike the right balance between empowering law enforcement and protecting constitutional freedoms. Let me take a moment to discuss some of the shortcomings of the bill. First, the bill contains some very significant changes in criminal procedure that will apply to every federal criminal investigation in this country, not just those involving terrorism. One provision would greatly expand the circumstances in which law enforcement agencies can search homes and offices without notifying the owner prior to the search. The longstanding practice under the fourth amendment of serving a warrant prior to executing a search could be easily avoided in virtually every case, because the government would simply have to show that it had ``reasonable cause to believe'' that providing notice `may' seriously jeopardize an investigation.'' This is a significant infringement on personal liberty. Notice is a key element of fourth amendment protections. It allows a person to point out mistakes in a warrant and to make sure that a search is limited to the terms of a warrant. Just think about the possibility of the police showing up at your door with a warrant to search your house. You look at the warrant and say, ``yes, that's my address, but the name on the warrant isn't me.'' And the police realize a mistake has been made and go away. If you're not home, and the police have received permission to do a ``sneak and peek'' search, they can come in your house, look around, and leave, and may never have to tell you that ever happened. That bothers me. I bet it bothers most Americans. Another very troubling provision has to do with the effort to combat computer crime. I want the effort to stop computer crime. The bill allows law enforcement to monitor a computer with the permission of its owner or operator, without the need to get a warrant or show probable cause. I want to tell you, Madam President, I have been at pains to point out things I can support in this bill. I think that power is fine in a case of a so-called denial of service attack. What is that? That is plain old computer hacking. You bet. We need to be able to get at that kind of crime. Computer owners should be able to give the police permission to monitor communications coming from what amounts to a trespasser on the computer, a real trespasser. But we tried to point out as calmly and as constructively as possible on the floor that, as drafted in this bill, the provision might permit an employer to give permission to the police to monitor the e-mails of an employee who has used her computer at work to shop for Christmas gifts. She violated the rules of her employer regarding personal use of the computer. Or someone who uses a computer at a library or at a school and happens to go to a gambling or pornography site in violation of the Internet use policies of the library or the university might also be subjected to Government surveillance--without probable cause and without any time limit at all. With this one provision, fourth amendment protections are potentially eliminated for a broad spectrum of electronic communications. I am also very troubled by the broad expansion of Government power under the Foreign Intelligence Surveillance Act, known as FISA. When Congress passed FISA in 1978, it granted to the executive branch the power to conduct surveillance in foreign intelligence investigations without having to meet the rigorous probable cause standard under the fourth amendment that is required for criminal investigations. There is a lower threshold for obtaining a wiretap order from the FISA court because the FBI is not investigating a crime, it is investigating foreign intelligence activities. But the law currently requires that intelligence gathering be the primary purpose of the investigation in order for this much lower standard to apply. The bill changes that requirement. The Government now will only have to show that intelligence is a ``significant purpose'' of the investigation. So even if the primary purpose is a criminal investigation, the heightened protections of the fourth amendment will not apply. It seems obvious that with this lower standard, the FBI will be able to try to use FISA as much as it can. And, of course, with terrorism investigations, that won't be difficult because the terrorists are apparently sponsored or at least supported by foreign governments. So this means the fourth amendment rights will be significantly curtailed in many investigations of terrorist acts. The significance of the breakdown of the distinction between intelligence and criminal investigations becomes apparent when you see other expansions of Government power under FISA in this bill. Another provision that troubles me a lot is one that permits the Government, under FISA, to compel the production of records from any business regarding any person if that information is sought in connection with an investigation of terrorism or espionage. I want to be clear here, as well, we are not talking about travel records directly pertaining to a terrorist suspect, which we can all see obviously can be highly relevant to an investigation of a terrorist plot. FISA already gives the FBI the power to get airline, train, hotel, car rental, and other records of a suspect. But this bill does much more. Under this bill, the Government can compel the disclosure of the personal records of anyone--perhaps someone who worked with, or lived next door to, or went to school with, or sat on an airplane with, or had been seen in the company of, or whose phone number was called by--the target of the investigation. Under this new provision, all business records can be compelled, including those containing sensitive personal information, such as medical records from hospitals or doctors, or educational records, or records of what books somebody has taken out from the library. We are not talking about terrorist suspects, we are talking about people who just may have come into some kind of casual contact with the person in that situation. This is an enormous expansion of authority under a law that provides only minimal judicial supervision. Under this provision, the Government can apparently go on a fishing expedition and collect information on virtually anyone. All it has to allege, in order to get an order for these records from the court, is that the information is sought for an investigation of international terrorism or clandestine intelligence gathering. That is it. They just have to say that. On that minimal showing, in an ex parte application to a secret court, with no showing even that the information is relevant to the investigation, the Government can lawfully compel a doctor or a hospital to release medical records or a library to release circulation records. This is truly a breathtaking expansion of police power. Let me turn to a final area of real concern about this legislation, which I think brings us full circle to the cautions I expressed on the day after the attacks. These are two very troubling provisions dealing with our immigration laws in the bill. First, the administration's original proposal would have granted the Attorney General extraordinary powers to detain immigrants indefinitely, including legal permanent residents. The Attorney General could do so based on mere suspicion that the person is engaged in terrorism. I believe the administration was really overreaching here. I am pleased that our distinguished chairman of the Judiciary Committee, Senator Leahy, was able to negotiate some protections. The bill now requires the Attorney General to charge the immigrant within 7 days with a criminal offense or immigration violation. In the event the Attorney General does not charge the immigrant, the immigrant must be released. This protection is an improvement, but the provision remains fundamentally flawed. Even with this 7-day charging requirement, the bill would nevertheless continue to permit the indefinite detention in two situations. First, immigrants who win their deportation cases may be continued to be held if the Attorney General continues to have suspicions. Second, this provision creates a deep unfairness to immigrants who are found not to be deportable for terrorism but have an immigration status violation, such as overstaying a visa. If the immigration judge finds that they are eligible for relief from deportation, and therefore can stay in the country--for example, if they have longstanding family ties here--nonetheless, the Attorney General can continue to hold them indefinitely. I am pleased that the final version of the legislation includes a few improvements over the bill that passed the Senate. In particular, the bill would require the Attorney General to review the detention decision every 6 months. And it would only allow the Attorney General or the Deputy Attorney General--not lower level officials--to make that determination. While I am pleased these provisions are included in the bill, I believe it still falls short of meeting even basic constitutional standards of due process and fairness. The bill continues to allow the Attorney General to detain persons based on mere suspicion. Our system normally requires higher standards of proof for a deprivation of liberty. For example, deportation proceedings themselves are subject to a clear and convincing evidence standard. And, of course, criminal convictions require proof beyond a reasonable doubt. The bill also continues to deny detained persons a trial or a hearing where the Government would be required to prove that that person is, in fact, engaged in terrorist activity. I think this is unjust and inconsistent with the values of our system of justice that we hold dearly. Another provision in the bill that deeply troubles me allows the detention and deportation of people engaging in innocent associational activity. It would allow for the detention and deportation of individuals who provide lawful assistance to groups that are not even designated by the Secretary of State as terrorist organizations but instead have engaged in something vaguely defined as ``terrorist activity'' sometime in the past. To avoid deportation, the immigrant is required to prove a negative: That he or she did not know, and should not have known, that the assistance would further terrorist activity. I think this language creates a very real risk that truly innocent individuals could be deported for innocent associations with humanitarian or political groups that the Government later chooses to regard as terrorist organizations. Groups that could fit this definition could include Operation Rescue, Greenpeace, and even the Northern Alliance fighting the Taliban in northern Afghanistan. So this really amounts to a provision of ``guilt by association,'' which I think violates the first amendment. Speaking of the first amendment, under this bill, a lawful permanent resident who makes a controversial speech that the Government deems to be supportive of terrorism might be barred from returning to his or her family after taking a trip abroad. Despite assurances from the administration at various points in this process that these provisions that implicate associational activity would be improved, there have been no changes in the bill on these points since it passed the Senate. Here is where my caution in the aftermath of the terrorist attacks and my concern about the reach of the antiterrorism bill come together. To the extent that the expansion of new immigration powers that the bill grants the Attorney General are subject to abuse, who do we think is most likely to bear the brunt of that abuse? It probably won't be immigrants from Ireland. It probably won't be immigrants from El Salvador or Nicaragua or immigrants from Haiti or Africa. Most likely it will be immigrants from Arab, Muslim and South Asian countries. In the wake of these terrible events, our Government has been given vast new powers, and they may fall most heavily on a minority of our population who already feel particularly, acutely the pain of this disaster. Concerns of this kind have been raised with the administration. Supporters of this bill have just told us: Don't worry, the FBI would never do that. I call on the Attorney General and the Justice Department to ensure that my fears are not borne out. The antiterrorism bill we consider in the Senate today, of course, highlights the march of technology and how that march cuts both for and against personal liberty. But Justice Brandeis foresaw some of the future in a 1928 dissent when he wrote: The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. . . . Can it be that the Constitution affords no protection against such invasions of individual security? We must grant law enforcement the tools that it needs to stop this terrible threats, but we must give them only those extraordinary tools that they need and that relate specifically to the task at hand. In the play, ``A Man for All Seasons,'' Sir Thomas More questions the bounder Roper whether he would level the forest of English laws to punish the Devil. ``What would you do?'' More asks, ``Cut a great road through the law to get after the Devil?'' Roper affirms, ``I'd cut down every law in England to do that.'' To which More replies: And when the last law was down, and the Devil turned round on you--where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast . . . and if you cut them down . . . d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake. We must maintain our vigilance to preserve our laws and our basic rights. We in this body have a duty to analyze, to test, to weigh new laws that the zealous and often sincere advocates of security would suggest to us. That is what I have tried to do with the anti-terrorism bill, and that is why I will vote against this bill when the roll is called. Protecting the safety of the American people is a solemn duty of the Congress. We must work tirelessly to prevent more tragedies like the devastating attacks of September 11. We must prevent more children from losing their mothers, more wives from losing their husbands, and more firefighters from losing their heroic colleagues. But the Congress will fulfill its duty only when it protects both the American people and the freedoms at the foundation of American society. So let us preserve our heritage of basic rights. Let us practice as well as preach that liberty, and let us fight to maintain that freedom that we call America. Madam President, I reserve the remainder of my time.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I thank the chairman for his help in making it possible to get going on this amendment. I rise to offer an amendment to the foreign operations appropriations bill. I am very pleased to have as an original cosponsor the distinguished senior Senator from Minnesota, Mr. Wellstone, who has certainly made it his business to follow closely our policy in Latin America, in particular in Colombia. My amendment is intended to improve the efficacy of U.S. efforts to eradicate the supply of narcotics that threatens our families and communities and to ensure that our efforts to address this issue do not inadvertently plunge the people of Latin America into a humanitarian and economic crisis. The amendment is very simple. It requires that the administration have alternative development plans for a given region in place before engaging in aerial fumigation in that area, and it requires that alternative development plans are being implemented in areas where fumigation has already occurred. This is hardly a radical initiative. I recently received a letter from the administration responding to some of my inquiries and concerns about our fumigation policy. In the letter, the State Department itself noted that alternative development must work in concert with eradication and with law enforcement. Unfortunately, though, over the past year fumigation has occurred in areas where there are no alternative development programs in place at all or in areas where alternative development assistance has been exceedingly slow. According to a recent Center for International Policy meeting with experts from southern Colombia, communities that signed pacts agreeing to eradicate coca in December and January in Puerto Asis and Santa Ana, Putumayo, have not yet received aid. AID as of mid-July states that only 2 out of 29 social pacts signed have received assistance so far. These facts tell us that our policy has to be better coordinated. More important, they tell us our policy cannot possibly be working. Of course, some people simply disagree with this policy as a whole. I have heard from a number of my constituents who are concerned about fumigation in and of itself. They are concerned about the health effects of this policy, and they are concerned about whether or not local communities and authorities have been adequately consulted and informed about their policies. Frankly, I share those concerns. I strongly support the language the Appropriations Committee has included conditioning additional funding for fumigation on a determination to be submitted by the Secretary of State, after consultation with the Secretary of HHS and the Surgeon General, that the chemicals involved do not pose an undue risk to human health or safety; that fumigation is being carried out according to EPA, CDC, and chemical manufacturers' guidelines; and that effective mechanisms are in place to evaluate claims of harm from citizens affected by fumigation. I believe these provisions are critically important, and I share the skepticism of many with regard to United States policy in Colombia in general. Nevertheless, like those underlying conditions in this bill, my amendment does not seek to eliminate fumigation from our policy toolbox. It does seek to ensure that when we use that tool, we use it in a rational and effective way. If we keep on fumigating without improving the conditions of coca growers, drug crops will simply shift to other locations or spring up again as soon as the fumigation stops. It makes no sense to take away a farmer's livelihood, provide him no alternative, and expect him not to plant illicit crops again. Without this amendment, we risk failing in our counternarcotics efforts in creating a humanitarian and economic disaster for the people of Colombia, one that will doubtless also be costly for the United States in the long run. I also want to point out that my amendment calls for consultation with affected communities and local authorities. Supporting democratic governance and a strong civil society in Colombia are important United States policy goals. Those aims reflect our clear interest in a stable and law-governed Colombia. This is a very modest proposal. It aims to make our policy work rationally and in a coordinated fashion. It recognizes that eradication without alternative development simply makes no sense. It acknowledges the stake of the Colombian people in our policy. So I urge my colleagues to support it. Amendment No. 1951, As Modified