Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I understand I have 1 minute to discuss the amendment before the Senate. This amendment is on behalf of Senator Bingaman and myself. It essentially deals with an issue that emerged in the consideration of the class action bill. I am a supporter of the class action bill. However, there is a loophole. That loophole is with class action consumer-related cases. They could go to a Federal judge, and the Federal judge could say the various laws of the 50 States are so complex he cannot decide on a given law. Then the class action remains in limbo. It cannot go back to State court. This is a compromise between Senator Bingaman and myself. It essentially says the judge can either issue subclassifications as determined necessary to permit the action to proceed or, if that is impractical, look at other courses, including the plaintiff's State laws.

Mrs. FEINSTEIN. Mr. President, what I would like to do is say a few words on behalf of this amendment which is submitted on behalf of both Senator Bingaman, who will be on the floor shortly to speak on it, and myself. As the legislation has been debated, Senator Bingaman has raised, I think, a reasonable, valid, and a real concern about whether certain national class action cases may be caught in a catch-22 when they were prohibited from having their cases heard either in State or Federal court, leaving the case to reside in oblivion. This problem was best described by the Bruce Bromley Harvard Law Professor Arthur Miller in a letter he sent to Senator Bingaman. It is a lengthy letter, but I will read one part: Under current doctrines, federal courts hearing state law- based claims, must use the ``choice-of-law'' rule of the State in which the federal district court sits. These procedural rules vary among states, but many provide that the federal court should apply the substantive law of a home state of a plaintiff, or the law of the state where the harm occurred. In a nationwide consumer class action, such a rule would lead the court to apply to each class member's claim the law of the state in which the class member lives or lived at the time the harm occurred. As noted, most federal courts will not grant class certification in these situations because they find the cases would be ``unmanageable.'' That is the catch-22. You send a consumer class action to Federal court, the judge says it is unmanageable, will not certify it, the case cannot go back to State court and it sits in oblivion. Senator Bingaman and I have worked to address this problem. I believe we have. The original solution proposed by Senator Bingaman was a bit too broad because it could impact consumers in States with strong consumer protection laws such as my State of California. What we tried to do, and did, was develop a compromise amendment that provides Federal judges with guidance on how to proceed in these cases, while leaving the judges with the discretion they need to manage their court dockets. This ensures that national class actions will be heard. They will be certified and claimants in those cases will be more likely to receive the benefit of his or her own State's law. Let me quickly go over the amendment. The amendment basically provides that: Notwithstanding any other so-called choice of law rule [which is what is involved here] in any class action over which the district courts have jurisdiction, asserting claims arising under State law concerning products or services marketed, sold, or provided in more than 1 State on behalf of a proposed class, which includes citizens of more than 1 such State, as to each such claim and any defense to such claim-- Here is the amendment: (1) the district court shall not deny class certification, in whole or in part, on the ground that the law of more than one State will be applied. That solves the problem of the kind of unanswered question in this bill, Can a class action remain uncertified? The answer is, clearly, no. (2) the district court shall require each party to submit their recommendations for subclassifications among the plaintiff class based on substantially similar State law; and (3) the district court shall-- (A) issue subclassifications, as determined necessary, to permit the action to proceed; or (B) if the district court determines such subclassifications are an impracticable method of managing the action, the district court shall attempt to ensure that plaintiffs' State laws are applied to the extent practical. This provides guidance to the judge. Secondly, it requires these cases receive certification in the district court. We believe this is a good solution. It is a significant solution. I hope this Senate will accept that. Let me say something about this bill as a supporter of a class action bill. This bill is not perfect. It represents the best that can be done to solve what is a real problem in our legal system. I have tried to spend a good deal of time on this issue through Judiciary Committee hearings, personal hearings with both sides, and research and analysis. As I said in the Judiciary Committee when we marked up the bill, I had a kind of epiphany in one of the hearings a few years ago when a woman named Hilda Bankston testified before our committee. She was the owner of a small pharmacy, with her late husband, in Mississippi. The Bankstons were sued more than 100 times for doing nothing other than filling legal prescriptions. The pharmacy had done nothing wrong, but they were the only drugstore in the county, a county that was so plaintiff friendly that there are actually more plaintiffs than residents. So she, in effect, became a person to sue in that county to enable the forum shopping process to take place. I will read a letter from her because it is indicative. Let me say this: This bill is not anti-class action as some would have Members believe. This bill tries to fix a broken part of class action which is the ability to venue or forum shop and to make that much more difficult. The Bankston case is a reason for doing that. So many people such as Hilda Bankston, innocent people who have done nothing wrong, get caught up in how these class actions are put together. Let me quickly read what she told us in committee: For 30 years, my husband, Navy Seaman Fourth Class Mitchell Bankston, and I lived our dream, owning and operating Bankston Drugstore in Fayette, MS. We worked hard and my husband built a solid reputation as a caring, honest pharmacist . . . Three weeks after being named in the [first] lawsuit, Mitch, who was 58 years old and in good health, died suddenly of a massive heart attack . . . I sold the pharmacy in 2000, but have spent many years since retrieving records for plaintiffs and getting dragged into court again and again to testify in hundreds of national lawsuits brought in Jefferson County against the pharmacy and out-of-state manufacturers of other drugs . . . I had to hire personnel to watch the store while I was dragged into court on numerous occasions to testify. I endured the whispers and questions of my customers and neighbors wondering what we did to end up in court so often. And, I spent many sleepless nights wondering if my business would survive the tidal wave of lawsuits cresting over it . . . This lawsuit frenzy has hurt my family and my community. Businesses will no longer locate in Jefferson County because of fear of litigation. The county's reputation has driven liability insurance rates through the roof. No small business should have to endure the nightmares I have experienced. This amended Class Action Fairness Act goes a long way toward stopping forum shopping by allowing Federal courts to hear truly national class action lawsuits. The Constitution itself states that the Federal judicial power ``shall extend . . . to controversies between citizens of different States.'' Yet an anomaly in our current law has resulted in a disparity wherein class actions are treated differently than regular cases and often stay in State court. The current rules of procedure have not kept up with the times. The result is a broken system that has strayed far from the Framers' intent. I believe this bill is a well-thought-out, reasoned and an easily read bill. I have actually read it three times--as solution to this problem it does a number of things. First, the bill contains a consumer class action bill of rights to provide greater information and greater oversight of settlements that might unfairly benefit attorneys at the expense of truly injured parties. For instance, the bill ensures that judges review the fairness of proposed settlements if those settlements provide only coupons to the plaintiffs. It bans settlements that actually impose net costs on class members. It requires that all settlements be written in plain English so all class members can understand their rights. And it provides that State attorneys general can review settlements involving plaintiffs. All these things are important guarantees for the plaintiff, for the individual, for the aggrieved party. I believe it makes the class action procedure much sounder for the consumer. Secondly, the legislation creates a new set of rules for when a class action may be so-called removed to Federal court. These diversity requirements were modified in committee and again since then to make it clear that cases that are truly national in scope should be removed to Federal court. But equally important, the rules preserve truly State actions so that those confined to one State remain in State courts. Now, the original bill that came to the Judiciary Committee said all class actions where a substantial majority of the members of the class and the defendants are citizens of the State would be moved to Federal court. We changed this. I actually offered an amendment in committee that changed this definition to split the jurisdiction into thirds. Now there is less ambiguity about where a case will end up, and more cases will actually remain in State court. I think that is important to stress: more cases will actually remain in State court. This is an important compromise. If more than two-thirds of the plaintiffs are from the same State as the primary defendant, the case automatically stays in State court. If fewer than one-third of the plaintiffs are from the same State as the primary defendant, the case may automatically be removed to Federal court. Remember, this happens only if one of the parties asks for removal. Otherwise, these cases, too, remain in State court. In the middle third of the cases, where between one-third and two- thirds of the plaintiffs are from the same State as the primary defendant, the amendment would give the Federal judge discretion to accept removal or remand the case back to the State based on a number of factors which are defined in the bill. I would hope Members would take the time to read the bill. I think it is an important bill. I think to a great extent it has been maligned in that people have chosen to interpret it as anti-class action. I think if those of us--and it is interesting that some of us on this bill are not attorneys; Senator Grassley, Senator Kohl, certainly myself from the Judiciary Committee--I think if you are not an attorney, you can look at the forest and not really get caught up in some of the process trees of that forest, and you can make an assessment whether the forest well serves class action cases. I think these changes, and particularly the diversity requirement changes, make this a much sounder way to make a decision as to whether a class action should remain in State court or is truly national in scope and, therefore, should be heard by the Federal court. I commend to this body the consumer bill of rights. It is very clear in reading the bill that protections are given for coupons. There is review for settlements. The consumer is taken very seriously. I think the system is improved. Now, let me speak just for a moment to this business: Well, you have to take the bill as is or forget it, there is not going to be a bill. There is an arrangement with the House to take the bill if it is exactly as is. Well, in many complicated issues, there are dilemmas or problems or issues or corrections that need to be made which appear as the legislative process takes place. And that is what has happened with this bill. In certain areas of concern, where the law may be silent, and case law may be conflicting, I think it is important to clarify the law. That is what the Feinstein-Bingaman amendment does. There is a hole there. The issue is governed by old case law. What we do is, in essence, codify that so we make clear the discretion that the judge has. Most importantly, we make clear that a bona fide class action going to Federal court is not going to fall into oblivion because a judge is going to say, Oh, my goodness, there are so many State laws at issue here I can't possibly manage the case, and, therefore, that judge does nothing and the case goes nowhere. So I think we have worked out a good solution. I know Senator Bingaman was here on the Senate floor. I would say to the Senator from Pennsylvania, I know he is desirous of saying a few words. So perhaps if his staff is listening, they will urge him to come to the floor. Otherwise, Mr. President, I thank the Chair, and I thank the chairman. I yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I come to the floor today to discuss the significance that Social Security has for women. Before the Social Security Act was signed into law by President Franklin Delano Roosevelt nearly 70 years ago, a majority of elderly women in America were living in poverty. If a woman's husband died, she often became destitute or, if she was lucky, went to live with her children or relatives. The creation of Social Security changed these women's lives for the better. Today only one in five elderly women living on their own is in poverty, though, of course, we wish that number were zero. Elderly women are now able to live independently and with dignity because of Social Security. We cannot forget the extent to which Social Security has improved the lives of women, and all Americans. Since its beginning, Social Security has been a mainstay determining what kind of retirement security an individual will have. And because women rely more heavily on Social Security than men, it is a bigger factor in determining their quality of life. The plan that President Bush is putting forward to reform Social Security would dismantle the most important social program in our Nation's history, upon which millions of Americans rely for their retirement. I am concerned about this plan because it does not protect the fiscal health of Social Security and would dramatically add to the national debt. This could be disastrous for women as well as children and minorities because these Americans rely most heavily on Social Security. Nearly half of all unmarried women 65 and older depend on Social Security for more than 90 percent of their total income. An even greater number of minorities rely so heavily on Social Security with 66 percent of Hispanics and 74 percent of African Americans in the same category using it for more than 90 percent of their total income. Additionally, more children are part of families that receive some of their income from Social Security benefits than receive Temporary Assistance for Needy Families. All of this is underscored by the fact that women face greater economic challenges in retirement than men: Women tend to live longer than men. The majority of women's Social Security benefits are based on their husband's earnings, while less than 5 percent of male Social Security beneficiaries depend on their wife's earnings. Finally, women continue to have lower lifetime earnings than men because, disappointingly, women still earn less than 80 cents on the dollar compared to men, and they are more likely to take time out of their careers to raise a family. Therefore, any change to Social Security will have a much more powerful impact on women than it will on men. The administration has tried to instill a sense of urgency for making radical changes to Social Security. I cannot emphasize this enough, there is no crisis. Despite the cries from the Bush administration, Social Security is not in crisis, though some changes are needed to strengthen its long- term stability. Based on demographic projections, including the retirement of the baby-boomer generation, there will be more retirees seeking benefits and fewer workers paying payroll taxes. Even so, Social Security is not about to go belly up. Using very conservative predictions of U.S. economic growth, the Social Security Board of Trustees estimates that promised benefits will continue until 2042, even if no changes are made. Recipients would continue to get 73 percent of their benefits for at least another three decades after that--again, with no dramatic changes to the current system. To ensure that benefits continue at the current level until 2080, the Trustees say we need $3.7 trillion. The nonpartisan Congressional Budget Office, which is headed by a former Chief Economist of President Bush's Council of Economic Advisers, says the Trustees are underestimating economic growth. They believe that only $2 trillion is necessary to close the gap without any revisions to the program. This means that recipients would be able to get all their promised benefits until 2052 when they would draw 78 percent of their benefits until at least 2080. These are big numbers, but we can ensure that the fund remains solvent much further into the future by making some balanced, long-term changes. We could do this by repealing President Bush's tax cut for those earning more than $200,000 and transferring the revenues to Social Security, which could save about $2.9 trillion over 75 years; raising the cap for payroll taxes gradually from the current $90,000 to $143,000, which could provide up to $1.6 trillion over 75 years; or asking the Social Security Trustees to present Congress with options for updating the system periodically, which Congress would then vote up or down. These proposals, and others, deserve careful study so that we fully understand the costs and benefits of each. I deeply believe that our Nation should take the time to do this analysis instead of rushing headlong into one plan or another. It is apparent that change is needed in the system, though not necessarily the fundamental and dramatic change that the President argues we need in the form of private accounts. But even the President's own advisors acknowledge his proposal would do nothing to address the Social Security shortfall. In a leaked White House e-mail, Peter Wehner, one of the President's principal advisors, stated ``we simply cannot solve the Social Security problem with Personal Retirement Accounts alone.'' In fact, establishing these private accounts will drain an estimated $1 trillion to $2 trillion from the Social Security Trust Fund in the first 10 years and more than $4 trillion in the following decade. Too many retirees depend on Social Security as their main source of income for us to rush into its reform without serious consideration of what is best to save the system for future generations of workers. Mr. President, the advances of women in the workplace are a big reason for the great success of Social Security. When Congress takes up this issue, we must not forget how important this program is, especially to the women who have helped it thrive. It is a source of dignity, it is earned and it is a safety net for these women and it cannot be abandoned.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to introduce the Angel Island Immigration Station Restoration and Preservation Act, with Senator Boxer as an original cosponsor. This legislation authorizes the use of up to $15 million in Federal funds for ongoing efforts to restore and preserve the Angel Island Immigration Station located on Angel Island in San Francisco Bay. I understand that Congresswoman Lynn Woolsey is introducing similar legislation in the House. In the 108th Congress, Congresswoman Woolsey's Angel Island bill passed the House. The Angel Island Immigration Station is an important piece of American history, especially to our Nation's Asian American and immigrant communities. From the mid 19th to early 20th century, millions of people came to America in pursuit of the American dream. Most people are familiar with Ellis Island and the stories of immigrants coming to America and seeing the Statue of Liberty in New York Harbor, but often forgotten are the experiences of those who made it to America through the West Coast by way of Angel Island. Just like those who came through Ellis Island, there are many stories of triumph and tribulation associated with Angel Island. However, for the Chinese and those from other Asian countries who came through Angel Island Immigration Station the story goes a bit further. The economic downturn in the 1870s brought political pressures to deal with the increasing population of Chinese who risked everything to travel to ``Gold Mountain'' in search of a better life. Amongst the harshest of measures taken was the passage of the Chinese Exclusion Act of 1882, the only legislation enacted by Congress to ban a specific ethnic population from entry into the United States. To enforce this new law and subsequent legislation which excluded most Asian immigrants to this country, the Angel Island Immigration Station was established in 1910. After a difficult journey across the Pacific Ocean, many new arrivals were brought to the Station where they faced separation from their family, embarrassing medical examinations, grueling interrogations and long detainments that lasted months, even years, in living deplorable conditions. Testaments to these experiences can be found today on the wooden walls of the barracks. Many of the detainees told their stories through poems that they carved on the barrack walls. Using allegories and historical references, they described their aspirations for coming to America as well as expressed their anger and sadness at the treatment they received. However, this experience did not break the spirit of these new courageous immigrants. They endured and established new roots and made immeasurable contributions to this nation. The Station was closed in 1940 and three years later Congress repealed the Chinese Exclusion Act. For the next 20 years the Station remained mostly unused except for a short term during World War II, when it was used as a prisoner of war camp. In 1963, Angel Island became a State park and the California Department of Parks and Recreation assumed stewardship of the Immigration Station. In the late 1990's, the Station was a declared a National Historic Landmark and named on ``America's 11 Most Endangered Historic Places.'' In 1998, Congress approved $300,000 to conduct a study to determine the feasibility and desirability of preserving sites within the Golden Gate National Recreation Area (GGNRA) which includes the Immigration Station. As a result, a historic three-party agreement was created between the National Park Service, California Department of Parks and the Angel Island Immigration Station Foundation to conduct this study. In 2000, Save America's Treasures named the Angel Island Immigration Station one of its Official Projects and provided $500,000 for the preservation of poems carved into the walls. The Station is supported by the people of California as well as numerous private interests. The voters of California voted in 2000 to set aside $15 million for restoration of the Station through Proposition 12 and in addition approximately $1.1 million in private funds has been raised so far. Most recently, in December 2004, the California Cultural and Historical Endowment Board voted to reserve $3 million pending further staff findings for the Immigration Station. The legislation limits Federal funding to 50 percent the total funds from all sources spent to restore the Angel Island Immigration Station. The remaining money will be provided through State bond funding and raised through private means, making this a true public private partnership. Today, approximately 200,000 visits are made each year to Angel Island by ferry from San Francisco, Tiburon and Alameda. In addition, 60,000 visits are made to the Immigration Station, about half of which are students on guided tours. The resources secured so far have set in motion designing, planning and initial restoration efforts of the Immigration Station but much more is needed, particularly to save the Immigration Station Hospital building, which is deteriorating. The bill I am introducing today will authorize $15 million in Federal funding to complete the restoration of the Angel Island Immigration Station so the stories of these early Americans who courageously endured the experience at the Angel Island Immigration Station will be preserved for future generations. I urge my colleagues to support this bill. I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to introduce the Angel Island Immigration Station Restoration and Preservation Act, with Senator Boxer as an original cosponsor. This legislation authorizes the use of up to $15 million in Federal funds for ongoing efforts to restore and preserve the Angel Island Immigration Station located on Angel Island in San Francisco Bay. I understand that Congresswoman Lynn Woolsey is introducing similar legislation in the House. In the 108th Congress, Congresswoman Woolsey's Angel Island bill passed the House. The Angel Island Immigration Station is an important piece of American history, especially to our Nation's Asian American and immigrant communities. From the mid 19th to early 20th century, millions of people came to America in pursuit of the American dream. Most people are familiar with Ellis Island and the stories of immigrants coming to America and seeing the Statue of Liberty in New York Harbor, but often forgotten are the experiences of those who made it to America through the West Coast by way of Angel Island. Just like those who came through Ellis Island, there are many stories of triumph and tribulation associated with Angel Island. However, for the Chinese and those from other Asian countries who came through Angel Island Immigration Station the story goes a bit further. The economic downturn in the 1870s brought political pressures to deal with the increasing population of Chinese who risked everything to travel to ``Gold Mountain'' in search of a better life. Amongst the harshest of measures taken was the passage of the Chinese Exclusion Act of 1882, the only legislation enacted by Congress to ban a specific ethnic population from entry into the United States. To enforce this new law and subsequent legislation which excluded most Asian immigrants to this country, the Angel Island Immigration Station was established in 1910. After a difficult journey across the Pacific Ocean, many new arrivals were brought to the Station where they faced separation from their family, embarrassing medical examinations, grueling interrogations and long detainments that lasted months, even years, in living deplorable conditions. Testaments to these experiences can be found today on the wooden walls of the barracks. Many of the detainees told their stories through poems that they carved on the barrack walls. Using allegories and historical references, they described their aspirations for coming to America as well as expressed their anger and sadness at the treatment they received. However, this experience did not break the spirit of these new courageous immigrants. They endured and established new roots and made immeasurable contributions to this nation. The Station was closed in 1940 and three years later Congress repealed the Chinese Exclusion Act. For the next 20 years the Station remained mostly unused except for a short term during World War II, when it was used as a prisoner of war camp. In 1963, Angel Island became a State park and the California Department of Parks and Recreation assumed stewardship of the Immigration Station. In the late 1990's, the Station was a declared a National Historic Landmark and named on ``America's 11 Most Endangered Historic Places.'' In 1998, Congress approved $300,000 to conduct a study to determine the feasibility and desirability of preserving sites within the Golden Gate National Recreation Area (GGNRA) which includes the Immigration Station. As a result, a historic three-party agreement was created between the National Park Service, California Department of Parks and the Angel Island Immigration Station Foundation to conduct this study. In 2000, Save America's Treasures named the Angel Island Immigration Station one of its Official Projects and provided $500,000 for the preservation of poems carved into the walls. The Station is supported by the people of California as well as numerous private interests. The voters of California voted in 2000 to set aside $15 million for restoration of the Station through Proposition 12 and in addition approximately $1.1 million in private funds has been raised so far. Most recently, in December 2004, the California Cultural and Historical Endowment Board voted to reserve $3 million pending further staff findings for the Immigration Station. The legislation limits Federal funding to 50 percent the total funds from all sources spent to restore the Angel Island Immigration Station. The remaining money will be provided through State bond funding and raised through private means, making this a true public private partnership. Today, approximately 200,000 visits are made each year to Angel Island by ferry from San Francisco, Tiburon and Alameda. In addition, 60,000 visits are made to the Immigration Station, about half of which are students on guided tours. The resources secured so far have set in motion designing, planning and initial restoration efforts of the Immigration Station but much more is needed, particularly to save the Immigration Station Hospital building, which is deteriorating. The bill I am introducing today will authorize $15 million in Federal funding to complete the restoration of the Angel Island Immigration Station so the stories of these early Americans who courageously endured the experience at the Angel Island Immigration Station will be preserved for future generations. I urge my colleagues to support this bill. I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I thank the ranking member. I rise today to explain why I deeply regret I cannot vote to confirm Alberto Gonzales to be the next Attorney General. I believe as a general rule the President is entitled to the Cabinet of his choice. But one Department, the Department of Justice, always deserves special attention from Congress because it does not exist solely to extend the President's policies. Though the Attorney General serves under the President, he must independently interpret the laws as written by Congress and be truly the country's chief law enforcement officer. I cannot emphasize this enough. The Department of Justice must be independent from the White House. The FBI must be independent. The U.S. attorneys must be independent. The Criminal Law Division, the Environmental Law Division, the Civil Law Division must all be independent. The Solicitor General's Office, which argues before the Supreme Court, must be independent. The Office of Legal Counsel, which is charged with interpreting the law of the executive branch, must be independent. The Civil Rights Division must be independent. These departments are charged with nothing less than following, interpreting, and implementing the law of the United States of America. The Department of Justice is in charge of defending the Nation in court. It is in charge of advising the rest of the Government about what the law means. It is in charge of overseeing the investigations of the FBI, and it is in charge of deciding when to prosecute criminals and send them to prison. This is obviously a big portfolio. The head of the Department of Justice is the chief law enforcement officer of the United States. As such, the Attorney General is in charge of 59 separate divisions within the Department of Justice, which cover more than 110,000 employees. In my view, before we vote to confirm to put someone in charge of all this awesome power--and it truly is awesome--it is important for us to know what that individual thinks about the major policies the Department will be implementing. And that is where I have been disappointed by the confirmation process for Judge Gonzales. When President Bush nominated Judge Gonzales, I think many of us were prepared to give him the benefit of the doubt. But the hearings crystallized how little we knew about his own policy views, how little we knew about his qualities for leadership, his policy views, his management style, his strength of character, and his personal beliefs in those areas where he sets the tone and the policy. I think this was a great missed opportunity. John Ashcroft served 6 years in the Senate. We knew his service on the Judiciary Committee. We knew about his views. One could decide about his personal views, yes or no. Judge Gonzales has spent so many years serving President George Bush. If confirmed, this will be the fifth job George Bush appointed Judge Gonzales to over the past decade. The hearings were his first real opportunity to show his own views. I think this is why the hearing process became so important in many of our views. This was a crucial opportunity for Judge Gonzales. Many of us were prepared to vote for him. If there is a single issue that defines this confirmation process, it is what Judge Gonzales thinks about torture and brutal interrogation practices. He reminded us again and again that both he and the President condemn torture. But as we know from the Bybee memo of August 2002, for at least 2 years, the Federal Government followed a definition of torture that was excessively narrow. In fact, it was considered so incorrect that the Department of Justice revoked it on the eve of Judge Gonzales' hearing. That memo defined torture as: Equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For me, in addition to its clear legal and moral importance, the issue of torture became the main way for assessing this next Attorney General. And it was very important for him to state in unambiguous terms what he thought. It was as important a way for us to assess how he approaches a problem as any. In his opening statement, Judge Gonzales offered a clear, absolute condemnation of torture. He said flatly: Torture and abuse will not be tolerated by this administration. At this point, at the beginning of his testimony, there were no ifs, ands, or buts. But after that, his testimony, both verbal and in writing, was full of ambiguities. It seemed intended not to make his views clear, but to shield his views, and it seemed to narrow the definition of what counts as torture. For instance, at the hearing, at one point, Judge Gonzales told Senator Leahy, our ranking member, ``I reject that opinion,'' referring to the Bybee opinion. But at another point in the hearing, he told the same Senator, Senator Leahy: I don't have a disagreement with the conclusions then reached by the department. Those statements are clearly in conflict, and leave me with no idea what he thinks about the Bybee memo. I also note that Judge Gonzales clearly did not do everything he might have done to try to answer the questions put to him. In his written testimony, especially to Senator Kennedy, Judge Gonzales refused to provide the answers or the documents requested. He even refused to conduct a search that would have refreshed his memory. Let me quote the multiple times Judge Gonzales refused to answer Senator Kennedy's questions, and these are all quotes: I do not know what notes, memoranda, e-mails or other documents others may have about these meetings, nor have I conducted a search. Point 2: I have no such notes, and I have no present knowledge of such notes, memoranda, e-mail, or other documents and I have not conducted a search. Point 3: I have no present knowledge of any non-public documents that meet that description. However, I have conducted no search. Point 4: I have no present knowledge that there are any documents of the sort requested in the question, although I have not conducted an independent search for such documents. Point 5: I have no present knowledge of any such documents or materials, although I have not conducted a search. Point 6: I have no present knowledge of any such records, although I have not conducted a search. The last formulation he repeated in two additional instances. These are not adequate answers to satisfy the nomination process for the confirmation of a person to be the next Attorney General, nor do they bode well for the Judiciary Committee's and this Congress's oversight responsibilities for the Department of Justice. Judge Gonzales also refused to provide many documents that we requested. In specific, I asked him to provide me with a copy of the final version of his January 2002 memo to the President. That is very important because earlier memos that he had written were different. It was important, if this was his final opinion, that we have an opportunity to look at it, because that opinion was definitive and dispositive. The January memo is a well known one, where he wrote that the war on terror ``renders obsolete Geneva's strict limitations on questioning of enemy prisoners.'' If that was only a draft, as he said, as he had emphasized, then I believe it is imperative for us to see the final version, and he refused me that opportunity. He wouldn't provide the memo, saying the White House had declined to allow it. To tell you the truth, because of the prior history, that simply is not good enough for me. Also of importance in the questions that he did answer, he seemed to continually narrow, again, the definition of torture. I saw this as a retreat from his original condemnation of torture and abuse and I thought it showed that he was trying more to defend the President's policies than to demonstrate his own views. That, in my view, is the nub of the problem. Here he was no longer the President's man, he was going to be the chief law enforcement officer, independent, head of 110,000 people, with all kinds of major departmental responsibilities--environmental law, civil rights law, the Solicitor General, as I stated earlier in my remarks. I saw this narrowing as a retreat from his original condemnation of torture and abuse, and I thought it showed that he was trying, again, more to defend the President than to talk for himself. Let me give an example. At the hearing he told Senator Durbin that even under the laws implementing the Convention Against Torture: aliens interrogated by the United States outside the United States enjoy no substantive rights under the 5th, 8th, and 14th Amendments. If this is Judge Gonzales's view, it is a significant gap in the prohibition against abuse. I gave him the opportunity to clarify this issue. In written testimony he confirmed the thrust of the answer, stating to me: There is no legal prohibition under the Convention Against Torture on cruel, inhuman or degrading treatment with respect to aliens overseas. In another written question, I asked Judge Gonzales to specify his own views again on specific harsh interrogation methods. I wrote to him: Putting aside legal interpretations, in your own personal opinion, should the United States use forced nudity, the threatening of detainees with dogs, or ``water-boarding'' when interrogating detainees? That was my question in writing. He began his answer by stating: I feel that the United States should avoid the use of such harsh methods of questioning if possible. I was asking for a statement by the man. ``If possible'' is a major loophole, and I truthfully don't know what it means. I don't know how big that loophole is intended to be. As I was reviewing the correspondence, I was struck, in particular, by a letter that the committee received from a group of 12 esteemed former military leaders--generals, admirals, even a former chairman of the Joint Chiefs of Staff. This letter was signed by Brigadier General David M. Brahms, Retired, U.S. Marine Corps; Brigadier General James Cullen, Retired, U.S. Army; Brigadier General Evelyn P. Foote, Retired, U.S. Army; Lieutenant General Robert Gard, Retired, U.S. Army; Vice Admiral Lee F. Gunn, Retired, U.S. Navy; Rear Admiral, Retired, U.S. Navy; General Joseph Hoar, Retired, U.S. Marine Corps; Rear Admiral John D. Hutson, Retired, U.S. Navy; Lieutenant Claudia Kennedy, Retired, U.S. Army; General Merrill McPeak, Retired, U.S. Air Force; Major General Melvyn Montano, Retired, U.S. Air Force National Guard; and General John Shalikashvili, former Chairman of the Joint Chiefs of Staff. Let me paraphrase the letter. They write as retired military professionals in the U.S. Armed Forces to express their deep concern about the nomination of Alberto Gonzales and they urge us in the hearing to detail his views concerning the role of the Geneva Conventions in U.S. detention and interrogation policy and practice. They go on to say: Mr. Gonzales appears to have played a significant role in shaping U.S. detention operations. . . . It is clear that these operations have fostered greater animosity toward the United States, undermined our intelligence gathering efforts, and added to the risks facing our troops around the world. They then talk about the memo Judge Gonzales wrote to the President on January 25, 2002, advising him the Geneva Conventions don't apply to the conflict then underway in Afghanistan. They say more broadly that he wrote the war on terrorism presents a new paradigm that renders obsolete the Geneva protections. Then they go on to say, and I think this is important: The reasoning Mr. Gonzales advanced in this memo was rejected by many military leaders at the time, including Secretary of State Colin Powell who argued that abandoning the Geneva Conventions would put our soldiers at greater risk, would ``reverse over a century of U.S. policy and practice in supporting the Geneva Conventions,'' and would ``undermine the protections of the rule of law for our troops, both in this specific conflict [Afghanistan] and in general.'' That is a huge problem out there because at best, these hearings and the written questions and answers which are voluminous are really unable to clarify any of the positions of Alberto Gonzales, the man, Alberto Gonzales, head of one of the largest and most powerful agencies of the American Government, the U.S. Department of Justice. We look at the Department of Justice one way, but most Americans look at it as being a major citadel of power in the United States. And on occasion, we have seen that power exercised. If you are going to set the policy, if you are going to set the tone, if you are going to be the head of this Department, I want to know what you as a man, or as a woman, think, and particularly at this time. Yes, it is clear that the problems we will face in the future are most likely to be with respect to non-state actors, and with respect to torture, which I am speaking about now. Therefore, it is extraordinarily important to know what this man thinks. If you ask me today, despite the hearings, despite 200 pages of questions and answers, I cannot really tell you. I cannot really be sure that if the White House says one thing, the head of the Department of Justice would be willing to stand up and say another. I just do not know, based on the past jobs he has had and his past performance, if he is prepared to be independent. I have to say to this body that is important. Every one of us knows that Janet Reno was an independent Attorney General. I do not know that Alberto Gonzales will be. I don't know his management style. I don't know the vision he has for this Department. I don't know the goals he would set. I know he is an extension of the President. I know that he can legally enable the President. I know he gives the President advice, and I think much of that advice has brought us into a terrible place where our military could well in the future be jeopardized. I am one, frankly, who believes the Military Code of Justice has stood the U.S. military in good stead. I am one who believes the Geneva Convention--the Convention Against Torture--is the right thing. I am one who believes we should follow those, even in this non-state war. I want to comment on one other issue, and then I will yield the floor. I think Judge Gonzales is going to be confirmed. He is a talented lawyer and has a compelling life story. I certainly want to work with him. I want to say one thing about some who may say this is a qualified Hispanic, and indeed he is. Nobody should think that the Hispanic community is unified on this nomination. I will put into the Record, if I may, letters from the Congressional Hispanic Caucus, certain editorials from newspapers, the statement of the Mexican-American Legal Defense and Education Fund, a statement of the Mexican-American Political Association, a letter from Major General Melvyn Montano, and other letters. I ask unanimous consent to have them printed in the Record.

Mrs. FEINSTEIN. Mr. President, in summary, I very much regret this, but I think the U.S. Department of Justice is a unique Department. I think whoever is the head of it has to stand on his own two feet, has to be totally independent of Congress, of the White House, and has to be willing to submit to rigorous oversight by the Senate, by the Judiciary Committee, and has to set a tone which enables the Department of Justice to function as a fair and independent voice of the American people, as its chief law enforcement officer. I very much regret that I will vote no on this nomination. I thank the Chair. I yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to join my colleagues Senator Snowe, Senator Wyden and Senator McCain in introducing the bipartisan Medicare Enhancement for Needed Drugs, MEND, Act of 2005. This legislation is an important step toward controlling the spiraling cost of prescription drugs for America's seniors. The MEND Act addresses what I saw as a major weakness of the Medicare Modernization Act of 2003 when I voted for the bill. The Medicare Modernization Act offers an opportunity for the Federal Government via the Secretary of Health and Human Services to harness its bulk purchasing power to deliver lower drug prices for our seniors. However, the Medicare bill prohibits the HHS Secretary from doing just that. I have said several times that I would work to see that this prohibition on the HHS Secretary from negotiating with drug manufacturers be stricken and I was pleased that Secretary Tommy Thompson, upon announcing his departure as HHS Secretary, acknowledged publicly that he sought the negotiating power that this legislation provides. Secretary Thompson said, ``I would have liked to have had the opportunity to negotiate.'' First and foremost the bill strikes the prohibition language in the Medicare bill, also called the noninterference provision. I strongly believe that the HHS Secretary should be given the authority similar to that of other Federal entities that purchase prescription drugs in bulk to negotiate prices with manufacturers of prescription drugs to ensure that beneficiaries pay the lowest possible price for their prescription drug plans. The CBO has told us that the effect of striking the ``noninterference'' provision would have a ``negligible effect'' on federal spending. CBO's conclusion is based on their prediction that private plans will be able to obtain savings that will be greater than what the Secretary will be able to achieve and that simply striking this provision does not ensure that the Secretary will use the negotiation authority. Meanwhile, our seniors are being given no guarantee that private plan competition will mean lower drug prices for them. So while CBO makes this conclusion that private market forces will bring about savings, the federal government is forced to sit on the sidelines, unable to leverage its purchasing power to negotiate lower drug prices. The Federal Government cannot even participate in negotiations for prescription drug plans for which it assumes the risk. That is simply wrong and the MEND Act corrects this flaw in the Medicare bill. Second, if a future HHS Secretary does not agree with Secretary Thompson's view that he be given the opportunity to negotiate with drug manufacturers, there must be circumstances under which the Secretary is required by law to negotiate. The MEND Act mandates two scenarios under which the Secretary must negotiate with manufacturers. First, the Secretary must negotiate with manufacturers of covered Part D drugs for the fallback prescription drug plan. The ``fallback'' plan is a guaranteed drug benefit to beneficiaries living in areas where only one private plan, or none, shows up. In areas where a ``fallback'' prescription drug plan is triggered, the federal government must offer the standard drug benefit and assume performance risk. However, the Federal Government does not have a say in the prices manufacturers charge them in the ``fallback.'' To ensure that the Federal Government achieves the lowest available price for enrollees in a ``fallback'' plan, the MEND Act requires that the Secretary negotiate drug prices in such plans. The MEND Act also requires the Secretary to participate in negotiations upon the request of an approved prescription drug plan or Medicare Advantage prescription drug plan. If the untested theory that private plans can achieve larger drug price discounts than the Secretary could negotiate proves to be false because the smaller insurers in the private market cannot achieve the savings larger, more established companies can, a company can petition the Secretary to negotiate with drug manufacturers on their behalf. So that seniors can make an ``apples to apples'' comparison when determining which drug plan offers them the most competitive drug prices, the bill requires that the Secretary of HHS determine the average aggregate beneficiary costs and savings basic prescription drug plans are able to achieve to better inform seniors about which plan might suit them best. I have heard concerns raised by many of my constituents about the impact the Medicare bill will have on their Medigap plans. This bill directs the HHS Secretary to work with the National Association of Insurance Commissioners to conduct a review of the changes to the Medigap policies in the new drug benefit for the purpose of evaluating its impact on Medicare beneficiaries. Lastly, the bill requires GAO to conduct a review of the retail cost of prescription drugs in the U.S. during 2000 through 2003 with an emphasis on the prescription drugs most utilized for individuals age 65 or older. Subsequent reviews will be required annually through 2007. And, it requires GAO to conduct an annual study that compares the average retail cost in the U.S. for each of the 20 most utilized prescription drugs for individuals 65 or older with the average price at which private health plans acquire each such drug, the average price at which the Department of Defense and Veterans Administration each acquire such drug, and the average negotiated price for each such drug that eligible beneficiaries enrolled in a prescription drug plan under Part D of Medicare pay. As someone who voted for the Medicare bill and has seen the cost estimate of that bill go from $400 billion to $534 billion and someone who is very concerned about the growth of entitlement spending, I believe that this bill will shed light on one of the big drivers of health care costs, the cost of prescription drugs. CBO projects that Americans over 65 will spend $1.8 trillion on prescription drugs over the next ten years. Recent studies of U.S. and Canadian drug-price comparisons show that, on average, prices charged by manufacturers, wholesalers, and retailers were higher in the U.S., most recently by about 70 percent. For example, an American consumer pays $62.99 for a 30-day supply of the popular cholesterol-lowering drug Lipitor. The same consumer in Canada is paying $35.42. For Prevacid, used to treat acid reflux, an American consumer pays $120.99 for a 30-day supply whereas a Canadian consumer pays $44.27. If we do not address the exorbitant costs of prescription drugs in this country today, we threaten the viability of programs like Medicare for future generations. I am pleased to join Senators Snowe, Wyden and McCain in the fight for lower prescription drug prices for our seniors. I urge my colleagues to join me in supporting this important legislation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to join my colleagues Senator Snowe, Senator Wyden and Senator McCain in introducing the bipartisan Medicare Enhancement for Needed Drugs, MEND, Act of 2005. This legislation is an important step toward controlling the spiraling cost of prescription drugs for America's seniors. The MEND Act addresses what I saw as a major weakness of the Medicare Modernization Act of 2003 when I voted for the bill. The Medicare Modernization Act offers an opportunity for the Federal Government via the Secretary of Health and Human Services to harness its bulk purchasing power to deliver lower drug prices for our seniors. However, the Medicare bill prohibits the HHS Secretary from doing just that. I have said several times that I would work to see that this prohibition on the HHS Secretary from negotiating with drug manufacturers be stricken and I was pleased that Secretary Tommy Thompson, upon announcing his departure as HHS Secretary, acknowledged publicly that he sought the negotiating power that this legislation provides. Secretary Thompson said, ``I would have liked to have had the opportunity to negotiate.'' First and foremost the bill strikes the prohibition language in the Medicare bill, also called the noninterference provision. I strongly believe that the HHS Secretary should be given the authority similar to that of other Federal entities that purchase prescription drugs in bulk to negotiate prices with manufacturers of prescription drugs to ensure that beneficiaries pay the lowest possible price for their prescription drug plans. The CBO has told us that the effect of striking the ``noninterference'' provision would have a ``negligible effect'' on federal spending. CBO's conclusion is based on their prediction that private plans will be able to obtain savings that will be greater than what the Secretary will be able to achieve and that simply striking this provision does not ensure that the Secretary will use the negotiation authority. Meanwhile, our seniors are being given no guarantee that private plan competition will mean lower drug prices for them. So while CBO makes this conclusion that private market forces will bring about savings, the federal government is forced to sit on the sidelines, unable to leverage its purchasing power to negotiate lower drug prices. The Federal Government cannot even participate in negotiations for prescription drug plans for which it assumes the risk. That is simply wrong and the MEND Act corrects this flaw in the Medicare bill. Second, if a future HHS Secretary does not agree with Secretary Thompson's view that he be given the opportunity to negotiate with drug manufacturers, there must be circumstances under which the Secretary is required by law to negotiate. The MEND Act mandates two scenarios under which the Secretary must negotiate with manufacturers. First, the Secretary must negotiate with manufacturers of covered Part D drugs for the fallback prescription drug plan. The ``fallback'' plan is a guaranteed drug benefit to beneficiaries living in areas where only one private plan, or none, shows up. In areas where a ``fallback'' prescription drug plan is triggered, the federal government must offer the standard drug benefit and assume performance risk. However, the Federal Government does not have a say in the prices manufacturers charge them in the ``fallback.'' To ensure that the Federal Government achieves the lowest available price for enrollees in a ``fallback'' plan, the MEND Act requires that the Secretary negotiate drug prices in such plans. The MEND Act also requires the Secretary to participate in negotiations upon the request of an approved prescription drug plan or Medicare Advantage prescription drug plan. If the untested theory that private plans can achieve larger drug price discounts than the Secretary could negotiate proves to be false because the smaller insurers in the private market cannot achieve the savings larger, more established companies can, a company can petition the Secretary to negotiate with drug manufacturers on their behalf. So that seniors can make an ``apples to apples'' comparison when determining which drug plan offers them the most competitive drug prices, the bill requires that the Secretary of HHS determine the average aggregate beneficiary costs and savings basic prescription drug plans are able to achieve to better inform seniors about which plan might suit them best. I have heard concerns raised by many of my constituents about the impact the Medicare bill will have on their Medigap plans. This bill directs the HHS Secretary to work with the National Association of Insurance Commissioners to conduct a review of the changes to the Medigap policies in the new drug benefit for the purpose of evaluating its impact on Medicare beneficiaries. Lastly, the bill requires GAO to conduct a review of the retail cost of prescription drugs in the U.S. during 2000 through 2003 with an emphasis on the prescription drugs most utilized for individuals age 65 or older. Subsequent reviews will be required annually through 2007. And, it requires GAO to conduct an annual study that compares the average retail cost in the U.S. for each of the 20 most utilized prescription drugs for individuals 65 or older with the average price at which private health plans acquire each such drug, the average price at which the Department of Defense and Veterans Administration each acquire such drug, and the average negotiated price for each such drug that eligible beneficiaries enrolled in a prescription drug plan under Part D of Medicare pay. As someone who voted for the Medicare bill and has seen the cost estimate of that bill go from $400 billion to $534 billion and someone who is very concerned about the growth of entitlement spending, I believe that this bill will shed light on one of the big drivers of health care costs, the cost of prescription drugs. CBO projects that Americans over 65 will spend $1.8 trillion on prescription drugs over the next ten years. Recent studies of U.S. and Canadian drug-price comparisons show that, on average, prices charged by manufacturers, wholesalers, and retailers were higher in the U.S., most recently by about 70 percent. For example, an American consumer pays $62.99 for a 30-day supply of the popular cholesterol-lowering drug Lipitor. The same consumer in Canada is paying $35.42. For Prevacid, used to treat acid reflux, an American consumer pays $120.99 for a 30-day supply whereas a Canadian consumer pays $44.27. If we do not address the exorbitant costs of prescription drugs in this country today, we threaten the viability of programs like Medicare for future generations. I am pleased to join Senators Snowe, Wyden and McCain in the fight for lower prescription drug prices for our seniors. I urge my colleagues to join me in supporting this important legislation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I support the nomination of Governor Michael O. Leavitt to be U.S. Secretary of Health and Human Services. Governor Leavitt has had a lengthy career in public service, having served most recently as the 10th Administrator of the United States Environmental Protection Agency. In 1992, Leavitt was elected the 14th Governor of Utah and was that State's longest-serving Governor. During his three terms as Utah's Governor, he was chosen by the Nation's Governors to represent States in working with Congress on welfare reform, Medicaid and children's health insurance. He chaired the National Governors Association, the Western Governors Association, the Republican Governors Association and Council of State Governments. Governor Leavitt established an innovative welfare reform waiver program focused on increasing family income using an approach that emphasized employment and child support, but also addressed initial problems with families in need such as domestic violence, education, training, language barriers, and substance abuse issues to promote sustainable employment. This year, the HHS Secretary will have the critical task of overseeing the implementation of the first ever drug benefit in Medicare as well as the implementation of several program reauthorizations such as Ryan White, Temporary Assistance for Needy Families, and the State Children's Health Insurance Program, all within an ever-constrained budgetary picture. As someone who voted for the Medicare Modernization Act, it is my hope that Governor Leavitt will work with me to address some of the weaknesses of the bill in addition to ensuring that the more than 41 million Medicare beneficiaries know about this new benefit in Medicare and its low-income subsidies. Of greatest concern to me is the cost of prescription drugs. In voting for the Medicare bill, I said on the Senate floor that one of the greatest weaknesses of the bill was that it not only did not do enough to control the rising cost of prescription drugs but it specifically prohibited the HHS from using the bulk purchasing power of the Federal Government to negotiate with prescription drug plans to lower drug prices for Medicare beneficiaries. I believe this prohibition should be stricken and that there should be a role for the HHS Secretary in what Medicare and beneficiaries pay for their drugs. I am committed to working with the HHS Secretary to find real solutions for lowering drug costs for our Nation's seniors. As the Medicare drug benefit is enacted, I am also hopeful that Governor Leavitt will work to ensure access to all needed medications for people living with HIV and AIDS, to allow for adequate transition time for the most vulnerable low-income seniors and to provide sufficient incentives and transparency for employers to retain their retirees' health care coverage. Governor Leavitt will oversee the Department of Health and Human Services at a time of rising deficits and this will require tough decisions. But these decisions must be balanced with the needs of the millions of Americans, young and old, who rely on Medicare, Medicaid and SCHIP to provide their health care insurance. Medicaid provides insurance to 40 million Americans, about 8 million of whom live in California. It covers 55 percent of all poor children and it pays for the births of one-third of all American children. It serves 50 percent of all people with AIDS and as many as 90 percent of children with AIDS. Medicaid is the insurer of last resort. If Medicaid did not exist, these individuals and families would be uninsured. But it is also the biggest budget items in many States. There is no question we can improve the efficiency and quality of Medicaid to ensure our dollars are being well-spent but we also cannot lose site of the fact that increases in spending per enrollee from 2000 until 2003 were slower than increases in private insurance spending. There are 45 million Americans without health insurance today. Arbitrary limits on Federal Medicaid spending will only increase the number of uninsured, driving up overall health care costs and burdening our nation's already overcrowded emergency rooms. There is a great deal of work to be done, and I look forward to a productive working relationship with Governor Leavitt.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I support legislation recently introduced by myself, Senator Smith, Senator Baucus, and Senator Santorum to help some of the world's poorest countries sustain vital export industries and promote economic growth and political stability. The Tariff Relief Assistance for Developing Economies Act, TRADE, of 2005 will provide duty-free and quota-free benefits for garments and other products similar to those afforded to beneficiary countries under the Africa Growth and Opportunity Act, AGOA. The countries covered by this legislation are the 14 Least Developed Countries, LDCs, as defined by the United Nations and the U.S. State Department, which are not covered by any current U.S. trade preference program: Afghanistan, Bangladesh, Bhutan, Cambodia, Kiribati, Laos, Maldives, Nepal, Samoa, Solomon Islands, East Timor, Tuvalu, Vanuatu, and Yemen. Given the recent tsunami disaster, the bill includes a special emergency trade provision to assist Sri Lanka in its rebuilding efforts. The beneficiary countries of this legislation are among the poorest countries in the world. Nepal has per capita income of $240. Unemployment in Bangladesh stands at 40 percent. Approximately 36 percent of Cambodia's population lives below the poverty line. Each country faces critical challenges in the years ahead including poor health care, insufficient educational opportunities, high HIV/AIDS rates, and the effects of war and civil strife. The United States must take a leadership role in providing much-needed assistance to the people of these countries. Consequently, Senator Smith and I have worked closely together over the past few years to push for substantial increases in our foreign aid budget. We recognize that helping developing countries rise from poverty is not only a moral obligation, but a key component in our fight against terror. Yet humanitarian and development assistance should not be the sum total of our efforts to put these countries on the road to economic prosperity and political stability. Indeed, the key for sustained growth and rising standards of living will be the ability of each of these countries to create vital export industries to compete in a free and open global marketplace. We should help these countries help themselves by opening the U.S. market to their exports. Success in that endeavor will ultimately allow these countries to become less dependent on foreign aid and allow the United States to provide assistance to countries in greater need. The garment industry is a key part of the manufacturing sector in some of these countries. In Nepal, the garment industry is entirely export-oriented and accounts for 40 percent of the foreign exchange earnings. It employs over 100,000 workers--half of them women--and sustains the livelihood of over 350,000 people. The United States is the largest market for Nepalese garments and accounts for 80 to 90 percent of Nepal's total exports every year. In Cambodia, approximately 250,000 Cambodians work in the garment industry supporting approximately 1 million dependents. The garment industry accounts for more than 90 percent of Cambodia's export earnings. In Bangladesh, the garment industry accounts for 75 percent of export earnings. The industry employs 1.8 million people, 90 percent of whom are women, and sustains the livelihoods of 10 to 15 million people. Despite the poverty seen in these countries and the importance of the garment industry and the U.S. market, they face some of the highest U.S. tariffs in the world, averaging over 15 percent. In contrast, countries like Japan and our European partners face tariffs that are nearly zero. On top of this, there is increasing concern that the removal of quotas on textile and apparel articles on January 1, 2005, will severely harm their garment export industries in LDC countries as U.S. importers will shift their orders to China, India and other suppliers with cheaper labor markets. Millions of jobs could be lost, threatening economic growth and political stability. In those countries without a viable garment industry--such as Afghanistan and East Timor--the removal of quotas will severely impact the opportunities to develop industries, employment, and expanded foreign investment. Surely we can do better. This legislation will help these countries compete in the U.S. market and let their citizens know that Americans are committed to helping them realize a better future for themselves and their families. And the impact on U.S. jobs will be minimal. Currently, the beneficiary countries under this legislation account for only 4 percent of U.S. textile and apparel imports, compared to 24 percent for China, and 72 percent for the rest of the world. These countries will continue to be small players in the U.S. market, but the benefits of this legislation will have a major impact on their export economies. At a time when U.S. standing is at an alltime low in some countries, we need legislation such as this to show the best of America and American values. It will provide a vital component to our development strategy and add another tool to the war on terror. I urge my colleagues to support this bill.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today I am pleased to introduce the Sierra National Forest Land Exchange Act of 2005, the companion to legislation authored by Representative Radanovich. This legislation would assist the Boy Scout Sequoia Council in taking ownership of part of the land on which Camp Chawanakee sits. By authorizing the transfer of ownership of part of the camp land to the Boy Scouts, we will help make Chawanakee a permanent member of the Fresno Community, and an asset that youth for generations to come can enjoy and benefit from. Specifically, the bill would authorize a land exchange between the Federal Government and a private landowner as follows: The landowner would receive 160 acres, 145 of which are submerged, on Shaver Lake. In exchange, the Forest Service would receive $50,000 and an 80 acre inholding that the landowner owns in the Sierra National Forest. The Forest Service transfer to the landowner is conditional upon his conveyance of the parcel to the Boy Scouts within 4 months to benefit Camp Chawanakee. Over the years, well over 250,000 youths and leaders from California, Nevada and Arizona have attended the Boy Scouts' Camp Chawanakee. Recently, summer camp attendance has exceeded 3,000 Scouts. While other camps in California have closed in recent years, Camp Chawanakee has grown to become one of the premier Scouting camps in the Nation. I applaud Congressman George Radanovich's commitment to this issue and urge my colleagues to support this legislation. I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President. I am pleased to join Senators Corzine and Kennedy as a cosponsor of the bill Ensuring College Access for All Americans that restores cuts to the Federal Pell Grant Program for millions of students nationwide. Federal Pell grants are the cornerstone of our need-based financial aid system ensuring that all students have access to higher education. These grants provide nearly $12.8 billion to help about 5.3 million low-income students attend college. However, approximately 89,000 students currently eligible for a Pell grant will lose it, while an additional 1.3 million students will see their grants reduced by as much as $100 to $300 due to cuts in the Federal Pell Grant Program. In California, nearly 150,000 low-income students will see their federal Pell grants decrease or disappear. These cuts have a huge impact on students at California's public colleges and universities. Within the University of California system, almost half of the 46,000 Pell grant recipients who attend one of the eight UC campuses will receive reduced grants and about 500 students who receive $400 a year will lose their grants completely. On December 23, 2004, the Department of Education issued a proposal that will cut $300 million from the Federal Pell Grant Program. The proposal updates State and local tax tables used to determine families' expected contribution towards college cost in a given year resulting in students and their families being expected to contribute more for college expenses. These changes, which use Fiscal Year 2002 State and local data, reduce the credit that families receive for paying State and local taxes at a time when they are actually paying more taxes. Senators Corzine and Kennedy's bill ensures that no student loses their Pell grant or sees a reduction in assistance under the Department of Education's proposal to update State and local tax tables. It would simply ``hold harmless'' any student who stands to lose under the new proposal, so that no student would see a reduction in their Pell grant. Those students in the States that stand to gain would still benefit from the new tax tables. It is imperative that cuts to this important student aid program be restored so that students can continue to receive their Pell grants that they are eligible for. I recently received a letter from one my constituents from Chino, CA, a parent who is very concerned about the cuts to the Pell grant program. The letter said: This would result in millions of families, many of whom depend on financial aid including Pell grants, such as my children in college, losing all or part of their federal support. . . . this affects us all and our children's future. A college student from Contra Costa County in California wrote: The amount of my Pell grant will not cover the cost of supplies that I need for the semester. . . . my parents cannot take out loans themselves. . . . so now I have to take out loans of my own, which for the amount I was approved for, doesn't even cover a quarter of my tuition. I really felt let down and disappointed. There could not be a worst time for making changes that would take away or shrink a student's financial aid. Over 500,000 low and middle-income California students rely on Pell grants for financial assistance. The maximum Pell grant has been frozen at $4,050 for 3 consecutive years, while the costs of attending a 4- year public college or private college have increased both nationwide and in California. We must do all we can to make college education more accessible and affordable for our Nation's students. I urge my colleagues to join Senators Corzine and Kennedy in supporting this legislation.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I offer today legislation to authorize appropriations for fiscal years 2005 through 2011 to carry out the State Criminal Alien Assistance Program, SCAAP. I am pleased to be joined on this bill by a bipartisan group of Senators, including Senators Kyl, Schumer, Cornyn, Boxer, McCain, Durbin, Crapo, Cantwell, Hutchison, Bingaman and Alexander. This legislation is critical to ensuring that cash strapped states and localities are at least partially reimbursed for the costs of housing undocumented criminal aliens in their jails. Ultimately, were it not for the failure of the federal government to control illegal immigration, States and localities would not have to spend hundreds of millions of dollars in housing these individuals in their prisons and jails. During the 108th Congress, this bill passed the Senate by unanimous consent but stalled in the House of Representatives. This year, passage of this legislation is even more critical given that the authorization for appropriations for SCAAP in the Immigration and Nationality Act expired in 2004. While hard numbers can be elusive when determining the actual costs to American taxpayers of illegal immigration, not many would disagree that the costs are in the billions of dollars each year. These costs go to, for instance, education, medical care and incarceration. And even if we consider the tax contributions of undocumented aliens and subtract that from the total costs, we are still left with expenditures in the billions of dollars. The cost of incarcerating undocumented criminal aliens alone is a staggering figure--millions of dollars each year. And these dollars expended by States and localities are not optional. They must be expended since incarcerating individuals convicted of committing a crime is not optional. Since funding for SCAAP began in 1995, the amount appropriated has been as high as $565 million and as low as $250 million--and these figures only covered a portion of the costs expended by States and localities to house undocumented criminal aliens. Furthermore, every day States and localities expend other monies on undocumented criminal aliens that are not reimbursed by the federal government through SCAAP. Those expenses include public safety expenditures, expenses of trial proceedings, use of translators, cost of public defenders and the incarceration expenses of undocumented criminal aliens for minor offenses that do not meet the standards of SCAAP. The reality is that all 50 States, the District of Columbia, Puerto Rico and the U.S. Virgin Islands requested reimbursement through the SCAAP program in fiscal year 2004. In that year, $281,605,292 was awarded through the program. Congress has an obligation to reimburse States and localities for the costs of incarcerating undocumented criminal aliens when the federal government fails in its responsibility to effectively deter illegal immigration. During the 108th Congress, this bill--S. 460--passed the Senate by unanimous consent. This year, passage of this legislation is all the more critical because authorization for SCAAP funds expired in 2004. Without funding, cash strapped states and localities are going to have to re-allocate monies from other areas within their criminal justice system to meet the costs of housing undocumented criminal aliens. We in Congress can assist, albeit in small part, our states by supporting the ``State Criminal Alien Assistance Program Reauthorization Act of 2005''. This bill would amend section 241(i)(5) of the Immigration and Nationality Act to authorize appropriations at a level of $750 million for FY 2006, $850 million for FY 2007 and $950 million for FY 2008 through FY 2011. Enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, SCAAP reimburses States and localities that incur costs for incarcerating undocumented criminal aliens. These aliens must be convicted of a felony or two or more misdemeanors in violation of State or local law, and incarcerated for at least 4 consecutive days. Funding for SCAAP has been appropriated by Congress annually since 1995. The program is administered by the Office of Justice Programs' Bureau of Justice Assistance, which is located in the Department of Justice. During FY1997 to FY2003, approximately $3.5 billion was distributed to States and localities. California has historically received the largest annual awards since the program's inception, with Arizona, Illinois, New York and Texas also consistently receiving large awards. Unfortunately, authorization for SCAAP expired in October 2004. SCAAP was established with the belief that protecting the nation's borders from illegal immigration is the responsibility of the Federal Government and that States and localities should be reimbursed by the Federal Government for expenses relating to these duties. It is clear to everyone in this Chamber that immigration is a federal responsibility. In fact, the Constitution gives Congress plenary power over immigration, so States are legally barred from acting on their own. SCAAP has been set up over the years to reimburse states and local government for the costs of incarcerating undocumented criminal aliens. It is based on the principle that when the Federal Government fails to enforce its laws against immigration violators, it should bear the responsibility for the financial costs of this failure. Mr. President, I ask my colleagues to join me in supporting this legislation. I also ask unanimous consent that the text of legislation be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I offer today legislation to authorize appropriations for fiscal years 2005 through 2011 to carry out the State Criminal Alien Assistance Program, SCAAP. I am pleased to be joined on this bill by a bipartisan group of Senators, including Senators Kyl, Schumer, Cornyn, Boxer, McCain, Durbin, Crapo, Cantwell, Hutchison, Bingaman and Alexander. This legislation is critical to ensuring that cash strapped states and localities are at least partially reimbursed for the costs of housing undocumented criminal aliens in their jails. Ultimately, were it not for the failure of the federal government to control illegal immigration, States and localities would not have to spend hundreds of millions of dollars in housing these individuals in their prisons and jails. During the 108th Congress, this bill passed the Senate by unanimous consent but stalled in the House of Representatives. This year, passage of this legislation is even more critical given that the authorization for appropriations for SCAAP in the Immigration and Nationality Act expired in 2004. While hard numbers can be elusive when determining the actual costs to American taxpayers of illegal immigration, not many would disagree that the costs are in the billions of dollars each year. These costs go to, for instance, education, medical care and incarceration. And even if we consider the tax contributions of undocumented aliens and subtract that from the total costs, we are still left with expenditures in the billions of dollars. The cost of incarcerating undocumented criminal aliens alone is a staggering figure--millions of dollars each year. And these dollars expended by States and localities are not optional. They must be expended since incarcerating individuals convicted of committing a crime is not optional. Since funding for SCAAP began in 1995, the amount appropriated has been as high as $565 million and as low as $250 million--and these figures only covered a portion of the costs expended by States and localities to house undocumented criminal aliens. Furthermore, every day States and localities expend other monies on undocumented criminal aliens that are not reimbursed by the federal government through SCAAP. Those expenses include public safety expenditures, expenses of trial proceedings, use of translators, cost of public defenders and the incarceration expenses of undocumented criminal aliens for minor offenses that do not meet the standards of SCAAP. The reality is that all 50 States, the District of Columbia, Puerto Rico and the U.S. Virgin Islands requested reimbursement through the SCAAP program in fiscal year 2004. In that year, $281,605,292 was awarded through the program. Congress has an obligation to reimburse States and localities for the costs of incarcerating undocumented criminal aliens when the federal government fails in its responsibility to effectively deter illegal immigration. During the 108th Congress, this bill--S. 460--passed the Senate by unanimous consent. This year, passage of this legislation is all the more critical because authorization for SCAAP funds expired in 2004. Without funding, cash strapped states and localities are going to have to re-allocate monies from other areas within their criminal justice system to meet the costs of housing undocumented criminal aliens. We in Congress can assist, albeit in small part, our states by supporting the ``State Criminal Alien Assistance Program Reauthorization Act of 2005''. This bill would amend section 241(i)(5) of the Immigration and Nationality Act to authorize appropriations at a level of $750 million for FY 2006, $850 million for FY 2007 and $950 million for FY 2008 through FY 2011. Enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, SCAAP reimburses States and localities that incur costs for incarcerating undocumented criminal aliens. These aliens must be convicted of a felony or two or more misdemeanors in violation of State or local law, and incarcerated for at least 4 consecutive days. Funding for SCAAP has been appropriated by Congress annually since 1995. The program is administered by the Office of Justice Programs' Bureau of Justice Assistance, which is located in the Department of Justice. During FY1997 to FY2003, approximately $3.5 billion was distributed to States and localities. California has historically received the largest annual awards since the program's inception, with Arizona, Illinois, New York and Texas also consistently receiving large awards. Unfortunately, authorization for SCAAP expired in October 2004. SCAAP was established with the belief that protecting the nation's borders from illegal immigration is the responsibility of the Federal Government and that States and localities should be reimbursed by the Federal Government for expenses relating to these duties. It is clear to everyone in this Chamber that immigration is a federal responsibility. In fact, the Constitution gives Congress plenary power over immigration, so States are legally barred from acting on their own. SCAAP has been set up over the years to reimburse states and local government for the costs of incarcerating undocumented criminal aliens. It is based on the principle that when the Federal Government fails to enforce its laws against immigration violators, it should bear the responsibility for the financial costs of this failure. Mr. President, I ask my colleagues to join me in supporting this legislation. I also ask unanimous consent that the text of legislation be printed in the Record.

Mrs. FEINSTEIN. Mr. President. I am pleased to join Senators Corzine and Kennedy as a cosponsor of the bill Ensuring College Access for All Americans that restores cuts to the Federal Pell Grant Program for millions of students nationwide. Federal Pell grants are the cornerstone of our need-based financial aid system ensuring that all students have access to higher education. These grants provide nearly $12.8 billion to help about 5.3 million low-income students attend college. However, approximately 89,000 students currently eligible for a Pell grant will lose it, while an additional 1.3 million students will see their grants reduced by as much as $100 to $300 due to cuts in the Federal Pell Grant Program. In California, nearly 150,000 low-income students will see their federal Pell grants decrease or disappear. These cuts have a huge impact on students at California's public colleges and universities. Within the University of California system, almost half of the 46,000 Pell grant recipients who attend one of the eight UC campuses will receive reduced grants and about 500 students who receive $400 a year will lose their grants completely. On December 23, 2004, the Department of Education issued a proposal that will cut $300 million from the Federal Pell Grant Program. The proposal updates State and local tax tables used to determine families' expected contribution towards college cost in a given year resulting in students and their families being expected to contribute more for college expenses. These changes, which use Fiscal Year 2002 State and local data, reduce the credit that families receive for paying State and local taxes at a time when they are actually paying more taxes. Senators Corzine and Kennedy's bill ensures that no student loses their Pell grant or sees a reduction in assistance under the Department of Education's proposal to update State and local tax tables. It would simply ``hold harmless'' any student who stands to lose under the new proposal, so that no student would see a reduction in their Pell grant. Those students in the States that stand to gain would still benefit from the new tax tables. It is imperative that cuts to this important student aid program be restored so that students can continue to receive their Pell grants that they are eligible for. I recently received a letter from one my constituents from Chino, CA, a parent who is very concerned about the cuts to the Pell grant program. The letter said: This would result in millions of families, many of whom depend on financial aid including Pell grants, such as my children in college, losing all or part of their federal support. . . . this affects us all and our children's future. A college student from Contra Costa County in California wrote: The amount of my Pell grant will not cover the cost of supplies that I need for the semester. . . . my parents cannot take out loans themselves. . . . so now I have to take out loans of my own, which for the amount I was approved for, doesn't even cover a quarter of my tuition. I really felt let down and disappointed. There could not be a worst time for making changes that would take away or shrink a student's financial aid. Over 500,000 low and middle-income California students rely on Pell grants for financial assistance. The maximum Pell grant has been frozen at $4,050 for 3 consecutive years, while the costs of attending a 4- year public college or private college have increased both nationwide and in California. We must do all we can to make college education more accessible and affordable for our Nation's students. I urge my colleagues to join Senators Corzine and Kennedy in supporting this legislation.

Mrs. FEINSTEIN. Mr. President, today I am pleased to introduce the Sierra National Forest Land Exchange Act of 2005, the companion to legislation authored by Representative Radanovich. This legislation would assist the Boy Scout Sequoia Council in taking ownership of part of the land on which Camp Chawanakee sits. By authorizing the transfer of ownership of part of the camp land to the Boy Scouts, we will help make Chawanakee a permanent member of the Fresno Community, and an asset that youth for generations to come can enjoy and benefit from. Specifically, the bill would authorize a land exchange between the Federal Government and a private landowner as follows: The landowner would receive 160 acres, 145 of which are submerged, on Shaver Lake. In exchange, the Forest Service would receive $50,000 and an 80 acre inholding that the landowner owns in the Sierra National Forest. The Forest Service transfer to the landowner is conditional upon his conveyance of the parcel to the Boy Scouts within 4 months to benefit Camp Chawanakee. Over the years, well over 250,000 youths and leaders from California, Nevada and Arizona have attended the Boy Scouts' Camp Chawanakee. Recently, summer camp attendance has exceeded 3,000 Scouts. While other camps in California have closed in recent years, Camp Chawanakee has grown to become one of the premier Scouting camps in the Nation. I applaud Congressman George Radanovich's commitment to this issue and urge my colleagues to support this legislation. I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. This is a criminal provision under Title 18, not a copyright provision under Title 17. Accordingly, there is no fair use exception included. However, Federal prosecutors should use their discretion not to bring criminal prosecutions against activities within movie theaters that would constitute fair use under the copyright laws. The object of this legislation is to prevent the copying and distribution of motion pictures in a manner that causes serious commercial harm. This legislation is not intended to chill legitimate free speech.

Mrs. FEINSTEIN. Of course not. The statute covers only a person who ``knowingly uses or attempts to use an audiovisual recording device to transmit or make a copy of a motion picture or other audiovisual work protected under Title 17, or any part thereof. . . .'' In other words, the defendant would have to be making, or attempting to make, a copy that is itself an audiovisual work, or make, or attempt to make, a transmission embodying an audiovisual work, as that term is defined in Section 101 of Title 17. As such, the Act would not reach the conduct of a person who uses a hearing aid, a still camera, or a picture phone to capture an image or mere sound from the movie.

Mrs. FEINSTEIN. No, it is not. The definition of a motion picture exhibition facility includes the concept that the exhibition has to be ``open to the public or is made to an assembled group of viewers outside of a normal circle of a family and its social acquaintances.'' This definition makes clear that someone recording from a television in his home does not meet that definition. It is important to emphasize that the clause ``open to the public'' applies specifically to the exhibition, not to the facility. An exhibition in a place open to the public that is itself not made to the public is not the subject of this bill. Thus, for example, a university film lab may be ``open to the public.'' However, a student who is watching a film in that lab for his or her own study or research would not be engaging in an exhibition that is ``open to the public.'' Thus, if that student copied an excerpt from such an exhibition, he or she would not be subject to liability under the bill.

Mrs. FEINSTEIN. Absolutely on all points.

Mrs. FEINSTEIN. Mr. President, I rise today to join my good friend and colleague Senator Orrin Hatch, to introduce the ``Gang Prevention and Effective Deterrence Act of 2005.'' Gangs are spreading across our country, increasing in violence and power in every State. The growth and spread of these gangs illustrate the simple fact that they are no longer a local problem. They are a national problem, and require a national solution. This bill is designed to contribute to that solution by bringing together Federal, State and local law enforcement, equipping them with the right legal tools, and providing authorization for funds to make this partnership effective. First, let me illustrate the scope of the problem we face: In 2002, there were approximately 731,500 gang members and 21,500 gangs in the United States. Additionally, the FBI report on national crime statistics found that youth-gang homicides had jumped to more than 1,100 in 2002, up from 692 in 1999. According to a report commissioned by a coalition of big city police chiefs, gang-related killings skyrocketed by 50 percent from 1999 to 2002. In 2002, there were a little more than 16,000 homicides in the United States--more than a thousand of those murders were gang-related. In Southern California alone there have been about 3,100 gang-related killings since 1999. 87 percent of U.S. cities with a population of more than 100,000 have reported gang problems, according to the Department of justice. The bottom line is that this is a major problem. This legislation before us today squarely addresses these serious issues. Its main point is to create a new type of crime, by defining and criminalizing ``Criminal Street Gangs.'' This recognizes the basic point of a street gang--it is more powerful, and more dangerous, than its individual members. Defeating gangs means recognizing what is so dangerous about them, and then making that conduct against the law. This bill does exactly that. It makes illegal participation in a criminal street gang a federal crime. A ``criminal street gang'' is defined to mean a formal or informal group, club, organization or association of 3 or more persons who act together to commit gang crimes. This legislation makes it a crime for a member of a criminal street gang to commit, conspire or attempt to commit two or more predicate gang crimes; or to get another individual to commit a gang crime. The term ``gang crime'' is defined to include violent and other serious State and Federal felony crimes such as: murder, maiming, manslaughter, kidnapping, arson, robbery, assault with a dangerous weapon, obstruction of justice, carjacking, distribution of a controlled substance, certain firearms offenses and money laundering. And it criminalizes violent crimes in furtherance or in aid of criminal street gangs. These two provisions are at the heart of this legislation. Armed with this new law, Federal prosecutors, working in tandem with State and local law enforcement, will be able to take on gangs in much the same way that traditional Mafia families have been systematically destroyed by effective RICO prosecutions. The legislation also recognizes that the core changes, standing alone, are not sufficient. The Gang Prevention and Effective Deterrence Act is a comprehensive bill to increase gang prosecution and prevention efforts. The bill authorizes approximately $650 million over the next five years to support Federal, State and local law enforcement efforts against violent gangs including the funding of witness protection programs and for intervention and prevention programs for at-risk youth. In support of this effort, the bill increases funding for Federal prosecutors and FBI agents to increase coordinated enforcement efforts against violent gangs. Witness protection is particularly important--as an example, recent press reports from Boston show that gang members are distributing what is, in essence, a witness intimidation media kit, complete with graphics and CDs that warn potential witnesses that they will be killed--one CD depicts three bodies on its covers. In another incident, a witnesses' grand jury testimony was taped to his home--soon afterward he was killed. The Act also creates new criminal gang prosecution offenses, enhances existing gang and violent crime penalties to deter and punish illegal street gangs, proposes violent crime reforms needed to effectively prosecute gang members, and proposes a limited reform of the juvenile justice system to facilitate Federal prosecution of 16 and 17 year old gang members who commit serious acts of violence--specifically it: Makes recruiting minors to join criminal street gangs a Federal crime and requires offenders to pay the costs associated with housing and treating any recruited minor who is prosecuted for their gang activity. Makes murder and other violent crimes committed in connection with drug trafficking Federal crimes. Creates a new offense of multiple interstate murders, where an individual crosses State lines and intends to cause the death of two or more people. Allows for prosecution of gang members who cross State lines to obstruct justice, intimidate or retaliate against witnesses, jurors, informants, or victims. Creates tougher laws for certain Federal crimes like assault, carjacking, manslaughter, conspiracy, and for specific types of crimes occurring in Indian country. Requires that someone convicted of hiring another person to commit murder be punished with imprisonment, instead of a fine. Makes sexual assault a predicate act under RICO and increases the maximum sentences for these RICO crimes. Allows for detention of persons charged with firearms who have been previously convicted of prior crimes of violence or serious drug offenses. Current law does not allow a prosecutor to ask that a person be held without bail even if the person has previously been convicted of a crime of violence or a serious drug offense. This bill would allow prosecutors to make that request of a judge but would allow a criminal defendant the right to argue why he or she should not be held. Makes it clear that in a death penalty case, the case can be tried where the murder, or related conduct, occurred. Extends the time within which a violent crime case can be charged and tried. For violent crime cases, the time is extended from 5 years to 10 years after the offense occurred or the continuing offense was completed, and from 5 years to 8 years after the date on which the violation was first discovered. Permits wiretaps to be used for new gang crimes created by this bill. Allows for a murdered witness's statements to be admitted at trial in cases where the defendant caused the witness's death. Makes clear where a case can be tried involving retaliation against a witness--in either the district where the case is being tried, or where the intimidation took place. Increases penalties for criminal use of firearms in crimes of violence and drug trafficking. Includes modified juvenile provisions. This bill will allow prosecutors to more easily charge 16 and 17 year olds who are charged with serious violent felonies. A judge will review every decision a prosecutor makes to charge a juvenile as an adult. Creates and provides assistance for ``High Intensity'' Interstate Gang Activity areas. This legislation requires the Attorney General to designate certain locations as ``high intensity interstate gang activity areas'' and provides assistance in the form of criminal street gang enforcement teams made up of local, State and Federal law enforcement authorities to investigate and prosecute criminal street gangs in each high intensity interstate gang activity area. Authorizes funding of $500 million for 2004 through 2008 to meet the goals of suppression and intervention: $50 million a year will be used to support the criminal gang enforcement teams. $50 million a year will be used to make grants available for community-based programs to provide for crime prevention and intervention services for gang members and at-risk youth in areas designated as high intensity interstate gang activity areas. Authorizes $150 million over five years to support anti-gang efforts including: Expanding the Project Safe Neighborhood program to require U.S. Attorneys to identify and prosecute significant gangs within their district; coordinating such prosecutions among all local, State, and Federal law enforcement; and coordinating criminal street gang enforcement teams in designated high intensity interstate gang activity areas. Supporting the Federal Bureau of Investigation's Safe Streets Program. Creating and expanding witness protection programs, the hiring of additional State and local prosecutors, funding gang prevention and community prosecution programs and purchasing equipment to increase the accurate identification and prosecution of violent offenders. The bottom line is that this legislation would provide the tools and the resources to begin that national task of destroying criminal street gangs. It is designed to emphasize and encourage Federal, State and local cooperation. It combines enforcement with prevention. It is a tough, effective and fair approach. This is not a new bill. I have been working on it for almost ten years. In 1996, I joined Senator Hatch and others to develop the Federal Gang Violence Act, which would have increased criminal penalties for gang members, made recruiting persons into a criminal street gang a crime, and enhanced penalties for transferring a gun to a minor. Many of the provisions of that bill were incorporated into the 1999 Juvenile Justice bill, which was approved overwhelmingly (73-25) by the Senate in the 106th Congress. However, the Juvenile Justice bill stalled in conference, and these provisions were never signed into law. In the years that followed we kept up our efforts, with Republicans and Democrats working together on this critical issue. In the 108th Congress a version of this bill was introduced, and eventually was co- sponsored by Senators Hatch and others. That bill was the subject of much discussion and debate. Some of my colleagues raised some valuable suggestions and criticisms, many of which were incorporated in the bill last year. The result of that compromise was reported favorably by the Judiciary Committee last Fall, but was never considered by the full Senate. The legislation today is the same as that which was approved by the Judiciary Committee, and I hope this year we will move quickly to pass it into law. That said, I understand that some of my colleagues are still concerned about certain aspects of the bill. My intention is to continue to negotiate in the weeks ahead. I am open to change, and welcome further discussion and analysis. We all agree that gangs are a terrible and growing problem. We all agree that something needs to be done. I believe that this legislation is desperately needed, and I look forward to working with my colleagues on both sides of the aisle to take this bill and make it law. I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN. Mr. President, I am pleased to introduce this bill today along with Senator Boxer as cosponsor to direct the Interior Secretary to conduct a study to evaluate the suitability and feasibility of expanding the Santa Monica National Recreation Area to include the Rim of the Valley Corridor. The Rim of the Valley Corridor encircles the San Fernando Valley, La Crescenta, Simi, Conejo, and Santa Clarita Valleys, consisting of parts of the Santa Monica Mountains, Santa Susanna Mountains, San Gabriel Mountains, Verdugo Mountains, San Rafael Hills and connects to the adjacent Los Padres and San Bernardino National Forests. This parcel of land is unique because of its rare Mediterranean ecosystem and wildlife corridor that stretches north from the Santa Monicas. With the population growth forecasted to multiply exponentially over the next several decades, the need for parks to balance out the expected population growth has become critical in California. Since the creation of the Santa Monica Recreation Area in 1978, Federal, State, and local authorities have worked successfully together to create and maintain the highly successful Santa Monica Mountains National Recreation Area, the world's largest urban park, hemmed in on all sides by development. Park and recreational lands provide people with a vital refuge from urban life while preserving valuable habitat and wildlife. With the passage of this legislation, Congress will hold true to its original commitment to preserve the scenic, natural, and historic setting of the Santa Monica Mountains Recreation Area. With the inclusion of the Rim of the Valley Corridor in the Santa Monica Mountains Recreation Area, greater ecological health and diversity will be promoted, particularly for larger animals like mountain lions, bobcats, and the golden eagle. By creating a single contiguous Rim of the Valley Trail, people will enjoy greater access to existing trails in the Recreational Area. After the study called for in this bill is complete, the Secretary of the Interior and Congress will be in a key position to determine whether all or portions of the Rim of the Valley Corridor warrant national park status. This bill enjoys strong support from local and State officials and I hope that it will have as much strong bipartisan support this Congress, as it did last Congress. Congressman Adam Schiff plans to introduce companion legislation for this bill in the House and I applaud his commitment to this issue. I urge my colleagues to support this legislation and I ask unanimous consent that the text of this proposed legislation be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. No, it is not. The definition of a motion picture exhibition facility includes the concept that the exhibition has to be ``open to the public or is made to an assembled group of viewers outside of a normal circle of a family and its social acquaintances.'' This definition makes clear that someone recording from a television in his home does not meet that definition. It is important to emphasize that the clause ``open to the public'' applies specifically to the exhibition, not to the facility. An exhibition in a place open to the public that is itself not made to the public is not the subject of this bill. Thus, for example, a university film lab may be ``open to the public.'' However, a student who is watching a film in that lab for his or her own study or research would not be engaging in an exhibition that is ``open to the public.'' Thus, if that student copied an excerpt from such an exhibition, he or she would not be subject to liability under the bill.

Mrs. FEINSTEIN. Of course not. The statute covers only a person who ``knowingly uses or attempts to use an audiovisual recording device to transmit or make a copy of a motion picture or other audiovisual work protected under Title 17, or any part thereof. . . .'' In other words, the defendant would have to be making, or attempting to make, a copy that is itself an audiovisual work, or make, or attempt to make, a transmission embodying an audiovisual work, as that term is defined in Section 101 of Title 17. As such, the Act would not reach the conduct of a person who uses a hearing aid, a still camera, or a picture phone to capture an image or mere sound from the movie.