Jeff Flake

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, I thank the gentleman for yielding. I rise in support of the rule and the underlying bill. The Forest Emergency Recovery and Research Act is a great piece of legislation. Not only is it going to be good for our forests and for our environment, it saves the taxpayers money as well. This will reduce spending by about $21 million from 2007 to 2011 and $23 million from 2007 through 2016. In addition, the CBO has stated that over $122 million in additional receipts will be generated by the agencies. This is money that will then be available for restoration, reforestation and additional research. As a result of catastrophic events and natural disasters, there are over 1 million acres of public land in need of reforestation. My home State of Arizona had a devastating fire a couple of years ago, burning over 400,000 acres. Much of that acreage is in Arizona. I happened to drive over the weekend to my hometown of Snowflake and to see the forest that was devastated by that fire or those fires that is still yet to recover at all because we have not had people go in and actually manage the forests as it ought to be managed. This legislation will help cut through that red tape. It will save agency money. It will save the taxpayers money, and with $21 million in savings over 5 years, the opportunity to restore thousands more acres, this is the answer to what we have been looking for. I urge my colleagues to support the rule and the underlying bill.

Mr. FLAKE

Mr. FLAKE. Mr. Chairman, I thank the gentleman for yielding. I want to commend the gentleman from Texas for putting this budget forward and for working so hard on it. It is simple to support this budget. This budget balances the budget within 5 years without tax increases. That is what we ought to support. Anything less is not doing justice for the generations to come who are going to be saddled with this debt unless we take bold action like this alternative budget. With that, I urge my colleagues to support it.

Mr. FLAKE

Mr. FLAKE. Madam Chairman, I yield myself such time as I may consume. Madam Chairman, in 2005, the Ports of New York and New Jersey received $6.7 million for port security. Seattle-Tacoma received $7.3 million, and the State of California received $33 million. The Long Beach-L.A. port received $24.2 million alone from Homeland Security. All of these came from Homeland Security grants. These funds are also in addition to the funds raised by security fees charged by these ports on shipping to pay for port homeland security costs. This is a mechanism that the ports can use to cover their costs if they need additional money. No major U.S. shipping port is not in compliance with Coast Guard security requirements. If $400 million is not to get them in compliance, I think we really need to ask, what is it for? Now, the White House has some ideas on this. They just released the ``Statement of Administration Policy.'' And the White House says: ``Given the significant resources dedicated to port security today, and requested in the budget, the administration believes that a new grant authorization would duplicate existing authorities and may inhibit the administration's ability to target resources most effectively to the sectors of the Nation's infrastructure that face the highest risk.'' Rather than creating a new Federal homeland security grant program, we need to first get control over the grant programs that we have. The gentleman from New York (Mr. Weiner) just listed some of the grants that have been issued. And it is simply appalling to see how this money is often being spent. In Kentucky, an anti-terror grant was awarded to the State to probe bingo halls. Over $500,000 was spent so that the Town of North Pole, Alaska, could get security rescue and communications equipment. In my home State of Arizona, the town of Peoria got a homeland security grant to buy a tactical robot. In my own district, the City of Apache Junction received nearly $300,000 for 19 traffic preemption devices which are remote controls that change a street light from green to red or red to green. Madam Chairman, I am not saying that these things are not needed, but I am saying that we ought to question whether it is the Federal Government's responsibility to fund them or if this money ought to be spent in areas with a greater threat. I would submit that if we create this new program without first getting ahold on the grant programs that we have, we are going to see the same problems in port security. We are going to see grants frittered away on things that we do not need, rather than things that are truly a threat. I simply do not believe there has been a clear case made as to why the taxpayers should pay $400,000 for this new program given the existence of all of the other programs as well. Let me just restate. All major ports are in compliance with Coast Guard security requirements. The President says that it is duplicative and unnecessary and that $173 million has yet to be awarded from 2006 grants. The fiscal year 2007 budget includes $600 million for targeted infrastructure protection grants which include ports. Also I point out again that ports charge fees to the shippers. If they believe and if they need to increase their security to come into compliance, they can charge extra fees, as it should be. Then the users are actually paying rather than the taxpayers as a whole and the money will be far better spent. Madam Chairman, I believe that we need this amendment. We ought to have this amendment to have a little fiscal responsibility. Some may say, this is just an authorization. It is not saying that we will appropriate it. But as soon as we authorize it, then if we do not fully appropriate for it, then we are accused of not fully funding the program. We are bitten by that all the time. I would say, let's step back now and say, let's be as fiscally responsible as we can. Madam Chairman, I reserve the balance of my time.

Mr. FLAKE. Madam Chairman, I like sunsets, everybody in Arizona likes sunsets; but if we truly believe that this is really going to be sunsetted, then we are kidding ourselves, and if we spend $400 million on a grant program that the President even says that we do not need here, then the sun has set on fiscal responsibility. Madam Chairman, I yield back.

Mr. FLAKE. Madam Chairman, in response to that, the Long Beach Port received $24.2 million, I believe, the following year from the Federal Government. This is in addition to the moneys that they receive by charging a fee on shipping. The money that the Federal Government pays is minuscule compared to that amount that comes charged by fee. What this amendment is about is saying that as the President has said, as the White House has said, let us target our homeland security money where it is actually needed. When we continue to dole out money, these kinds of grants, the kind of formula grants that we have, we continue to see the money spent in ways like buying fitness facilities for fire departments or whatever else. We simply have higher priorities. And heaven knows, we have got a tight budget and we ought to prioritize here. Madam Chairman, I reserve the balance of my time.

Mr. FLAKE. Madam Chairman, I offer an amendment.

Mr. FLAKE

Mr. FLAKE. Mr. Chairman, I offer an amendment.

Mr. FLAKE. Mr. Chairman, I would just point out that had any of us known Mr. Cunningham had been bribed for the earmarks he got, it is still unlikely we would have been able to go and challenge those earmarks. The underlying bill will at least make that possible, where his name would have been next to it and we would have had an opportunity during the House consideration of the bill and even perhaps in the conference process. I thank the gentlewoman for yielding.

Mr. FLAKE. Mr. Chairman, will the gentlewoman yield?

Mr. FLAKE. Mr. Chairman, I yield myself such time as I may consume. I would just point out, Mr. Chairman, there is nothing wrong with redundancy, but this is more than that. This is the first time that we have actually defined earmark in this underlying bill, and it is appropriate when we have defined earmark to then apply a criminal statute to it, and that is what this is an attempt to do. The point was made about Duke Cunningham. As I mentioned, he reportedly had a bribe menu on his congressional letterhead. My guess is that if there was a statute like this and earmarks defined like this that it would have given him second thoughts before he went down this road. I hope that is the case. That is the purpose of this amendment, and I am pleased there seems to be broad acceptance of it. Mr. Chairman, I yield back the balance of my time.

Mr. FLAKE. Mr. Chairman, I yield 1 minute to the gentleman from California (Mr. Dreier).

Mr. FLAKE. I yield to the gentleman from California.

Mr. FLAKE. Mr. Chairman, I yield myself such time as I may consume. This amendment would simply clarify the application of criminal bribery and illegal gratuities statutes with regard to earmarks. Specifically, this amendment would bolster the bribery statute in the criminal code by adding earmarks, as defined by this bill, to the statute. This is the first time we have ever defined earmark in this bill, and so I think it is appropriate to ensure that we add it to the bribery statute. This will mean that the law would prohibit a person from, directly or indirectly, corruptly giving, offering, or promising anything of value to any public official with the intent to influence any official act relating to an earmark. The amendment would also prohibit a public official from corruptly demanding, seeking, receiving, accepting, or agreeing to receive anything of value in return for influence in the performance of an official act related to an earmark. Recent bribery scandals have brought to light something that fiscal conservatives on both sides of the aisle have been talking about for years, that the number and dollar value of earmarks are out of control. Lobbyists, Members, earmarks, and campaign contributions have, unfortunately, been inextricably linked in the Duke Cunningham scandal. It was reported that Mr. Cunningham actually had a bribe menu on his congressional letterhead, that he actually offered earmarks in exchange for money. How many more stories are we likely to see unless Members realize that this is a serious matter? It is my hope this amendment will bring more attention to this ongoing problem by adding earmarks to the bribery statute. I believe that this will bolster the already meaningful earmark reform in the underlying bill. Again, I thank the Speaker, the majority leader, the chairman, and Chairman Sensenbrenner, also, in the Judiciary Committee for help with this amendment.

Mr. FLAKE

Mr. FLAKE. Mr. Chairman, I commend the leadership for bringing this bill forward. We can beat up on lobbyists all day long. It is an easy thing to do. There has been a lot of it going on; and, in the end, it is neither here nor there, in my view. What is important is what we do to reform this institution and our own behavior. Part of our behavior that needs reforming is earmarks. Over the past 10 years, we have seen earmarks explode from some 2,000 in all appropriations bills to more than 15,000 today. That is simply, simply unacceptable. What this legislation does is put a Member's name next to every earmark and ensures that anyone in the House can challenge that earmark at any point in the process. That is real reform because what we need is accountability and transparency. This bill goes a long way toward doing that. Could it go further in certain areas? Sure it could. We will see some of those in the amendment process. But it is a start, and it is something positive, and we ought to take it in particular regard to earmark reform. Again, I commend the leadership for bringing it forward and plan to vote for it. I urge all Members to do so as well.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, I thank the gentlewoman for yielding. Mr. Speaker, this isn't the first time the Congress has debated the effects of public campaign discourse. Let me take you back to 1798, when about 20 or so independent newspapers aligned with Thomas Jefferson started openly criticizing the policies of John Adams, the President. Adams used his power and influence to have Congress pass the Alien and Sedition Acts, which declared that the publication of false, scandalous, and malicious writing was punishable by fine and imprisonment. By virtue of this legislation, 25 editors were arrested and their newspapers were forced to shut down. The first amendment was established to ensure that citizens are able to protect themselves from government, not so that government can protect itself from the people. If this bill passes, we will be standing here having the same debate in a couple of years on how to regulate 501(c)4 organizations. 501(c)4s require no disclosure and have no contribution limits. They will surely become the 527s of 2008 if this legislation passes. This legislation, H.R. 513, simply compounds an existing problem. Loopholes will always exist, because there will always be money in politics. Instead of stifling speech and forcing it to go underground, we ought to be lifting up other players in the political system and provide more freedoms with greater transparency and more accountability. Where will this lead? That is the question. If Republicans happen to lose in November, lose the majority, what happens when Democrats try to level the playing field by applying the so-called fairness doctrine to radio talk shows? Surely the Democrats will make the same arguments about Rush Limbaugh that Republicans are making about George Soros. Back to the implications of the Alien and Sedition Acts. Americans were smart enough to realize what President Adams was using. He was using the powers of government to stifle free speech and they reacted accordingly. Public opposition to the Alien and Sedition Acts was so great that was a large reason Adams was defeated by Thomas Jefferson a few years later. This is history worth remembering, Mr. Speaker.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, as Members of the House of Representatives, we are aware of the awesome power that we have to make laws under which we all are governed, but we are also uniquely acquainted with our own limitations. Polls may indeed show that a majority of our constituents today would simply like to see our current immigration laws enforced, but we are in a position to know that such is unreasonable. Deciding whether our role is to lead or to follow is not a new conundrum. During the Constitutional Convention in 1787, George Washington counseled: ``If to please the people we do what we ourselves disprove, how can we afterwards defend our work?'' It might be comfortable in an election year to warm ourselves by the populist fire that we ourselves have stoked, but it is not leadership. Leaders appeal to the better angels of our nature rather than bow to the manifestations of our baser instincts. The standard bearer of the modern conservative movement, Ronald Reagan, understood this very well when he talked about the shining city on the hill. In his farewell address he described this, ``a city with free ports that hummed with commerce and creativity, and if there had to be city walls,'' he said, ``the walls had doors and the doors were open to anyone with the will to enter.'' I hope that that is how we see it today.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, I demand a recorded vote.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, I would like to comment on section 302 of the Children's Safety and Violent Crime Reduction Act of 2006. This section is based on an amendment that I offered, and that was accepted by voice vote, to H.R. 3132, a predecessor version of the Children's Safety and Violent Crime Reduction Act, on September 14 of last year. Section 302 is named after Kenneth Wrede, a young man who served as a police officer in West Covina, California. On August 31, 1983, Officer Wrede responded to a call about a man behaving strangely in a residential neighborhood. Wrede confronted the man, who became abusive and tried to hit Wrede with an 8-foot tree spike. Wrede could have shot the man, but instead attempted to defuse the situation. The man then reached into Wrede's patrol car and ripped the shotgun and rack from the dashboard. Wrede drew his gun and tried to persuade the man to lay down the shotgun. The man did so, but when Wrede lowered his revolver, the man picked up the shotgun again and shot Wrede in the head. Officer Wrede was killed instantly. He was 26 years old. Officer Wrede's killer was sentenced to death in 1984, and that conviction was affirmed by the California Supreme Court in 1989. Then in 2000--17 years after Ken Wrede's murder--a divided panel of the Federal Court of Appeals for the Ninth Circuit reversed the killer's death sentence. The Ninth Circuit found that the killer's lawyer provided ineffective assistance of counsel at the sentencing phase of the trial because he did not present additional evidence of the killer's abusive childhood and chronic use of PCP. When the Ninth Circuit handed down its ruling, Officer Wrede's mother simply noted that, ``We thought we finally were close to getting this behind us. And now this.'' (Gordon Dillow, Long Wait for Justice Gets Worse, The Orange County Reg., May 11, 2000, at B01.) A California Deputy Attorney General denounced the court's action, commenting that ``it can always be suggested a jury should have heard something else in the penalty phase of a death penalty case.'' (Richard Winton, Reversal of Death Penalty in Officer's Killing Decried Courts, L.A. Times, May 10, 2000, at B3.) West Covina Corporal Robert Tibbets, the original investigator at the scene of Wrede's murder, described the Ninth Circuit's decision as a ``miscarriage of justice.'' (Id.) He had promised Officer Wrede's parents that he would accompany them to every court hearing for their son's killer. He made good on his promise. Nineteen years later, in 2002, Corporal Tibbets was there with the Wredes when their son's killer was given a second sentencing trial and was again sentenced to death. But the Wredes now face yet another round of state-court appeals for their son's killer, and that litigation will be followed by a new a battery of federal habeas appeals. At the 2002 retrial, Ken's father noted that ``my family and I had endured 19 years of trial, appeals, delays, causing us to relive the trauma of Kenny's death over and over again.'' The trial judge noted the absurdity of this system. He stated, ``It is an obscenity to put anyone through this needlessly for 19 years. It is inexcusable for us in the system that we need to look at this case for 19 years to get it resolved. The system at some point in the line has become clogged and broken.'' (Larry Welborn, 19 Years and No Resolution For Parents, The Orange County Reg., Sept. 21, 2002.) My amendment will prevent injustices such as the one inflicted on the Wredes. It will guarantee that federal jurisdiction will not be used to reverse criminal sentences and force a repeat of the litigation years after the crime has occurred, the trial has been completed, and state appeals have been exhausted--all because of an error that was already judged harmless in state proceedings, or that was never presented at all on earlier review. It is simply ridiculous that, 17 years after a police officer was murdered, federal courts would prolong the litigation of the case of the officer's killer for this kind of reason. The error identified by the Ninth Circuit in the Wrede case had nothing to do with the reliability or fairness of the jury's conclusion that the defendant had murdered Officer Wrede. Instead, the Ninth Circuit invalidated the sentence because it thought that the trial attorney could have introduced additional evidence of the killer's use of phencyclidine. (Trial counsel already had introduced considerable evidence of such drug use during the guilt phase of the trial.) Frankly, I do not see how the fact that a defendant regularly used a dangerous drug could mitigate his criminal conduct at all. The jury in the Wrede case did not think so, nor did the state appeals courts think that additional evidence of the defendant's PCP use could reasonably have affected the jury's decision to sentence the defendant to death. The Ninth Circuit's conclusion that such an error could have made a difference in the sentencing decision obviously is a highly subjective judgment. It is not really a judgment of law, so much as a question of personal opinion and popular psychology. Such unstable judgments, at least with respect to sentencing errors that are properly subject to harmlessness review, should not be a basis for overriding duly entered state criminal sentences many years after the fact. My amendment to this bill builds on an amendment that I filed earlier in this Congress and which has been enacted as section 507 of the USA Patriot Improvement and Reauthorization Act. That amendment guarantees that states such as Arizona and California will be given an objective evaluation of their eligibility for the streamlined and expedited habeas corpus procedures in chapter 154 of title 28. That chapter sets strict time deadlines for federal judicial action on capital habeas- corpus petitions in qualifying states, restricts amendments, and eliminates ping-pong litigation between state and federal courts over unexhausted claims. By unlocking states' access to chapter 154, my previous amendment will ensure that cases such as that of Kenneth Wrede's killer--or the infamous Christy Ann Fornoff case in Arizona-- will be resolved much more quickly. My current amendment to the Children's Safety and Violent Crime Reduction Act will ensure that these types of cases are not reversed on account of claims of minor and highly subjective sentencing errors. Allegations of such errors do not relate to the defendant's culpability for the underlying offense, and they do not merit the use of federal judicial resources at this late stage of the criminal-litigation process. My amendment is based on a legislative proposal that is part of the habeas corpus reform bill introduced by Senator Kyl and Congressman Lungren. That broader bill has been the subject of four hearings in this Congress: two before the House Judiciary Committee's Crime Subcommittee on June 30 and November 10, and two before the Senate Judiciary Committee on July 13 and November 16. Between its evolution from the Kyl/Lungren bill to my amendment, and again from my original amendment to the provision in the current Children's Safety and Violent Crime Reduction Act, section 302 has been modified somewhat. First, it has been expanded to also apply to those sentencing claims that the habeas applicant procedurally defaulted in the state courts. It would make no sense to limit federal review for a habeas petitioner who presented his sentencing claim in state court in a timely manner, where the error had been found harmless, but to afford unrestricted habeas review to a petitioner who did not timely and properly present his claim in state proceedings. The purpose of the procedural-default doctrine is to encourage state prisoners to abide by state procedural rules. That purpose would be undercut if the applicant presenting a defaulted sentencing claim were afforded more liberal access to federal court than the applicant who had properly presented his claim during state review. Also, allowing defaulted sentencing claims to be heard for the first time in a federal application inevitably disrupts the federal proceedings. A defaulted claim generally will not have been considered on the merits in state court, and therefore there is no evidentiary record on which to evaluate the claim in federal court. And allowing the applicant to obtain relief on a defaulted claim in federal habeas inevitably prejudices the state. As the Supreme Court has noted, forcing prisoners to timely present their claims in state court ``affords the state courts the opportunity to resolve the issue shortly after trial, while evidence is still available both to assess the defendant's claim and to retry the defendant effectively if he prevails in his appeal.'' Murray v. Carrier, 477 U.S. 478 (1986). But when a federal habeas court orders a sentencing retrial on the basis of a claim that was never presented to the state courts, it often will have been many years since the original trial and the crime occurred. (In the Wrede case, the Ninth Circuit's reversal of the killer's sentence came 17 years after the crime had been committed.) During this time, witnesses often will die or disappear or their memories will fade and other evidence will become unavailable. If defaulted claims were exempted from my amendment, not only would habeas petitioners presenting such claims have better access to the federal courts than would those who followed state rules; the relief that the defaulting petitioner obtains would be more likely to mean not just a second chance to try the sentencing case, but rather would amount to a permanent bar on the state's imposition of a capital or other sentence. Finally, I would like to respond briefly to those critics who argue that any tailoring or limits on federal habeas-corpus review constitute an unconstitutional ``suspension'' of the Great Writ. I would note that federal courts rejected this argument when it was made by critics of the 1996 reforms. The courts noted that Congress has the power both to expand and to retract the scope of federal collateral review of state criminal convictions. In Felker v. Turpin, 518 U.S. 651 (1996), the U.S. Supreme Court highlighted the utter lack of basis for the view that Congress is required to grant lower federal courts unrestricted power over state criminal convictions: ``The first Congress made the writ of habeas corpus available only to prisoners confined under the authority of the United States, not under state authority. It was not until 1867 that Congress made the writ generally available in `all cases where any person may be restrained of his or her liberty in violation of [federal law]. ' And it was not until well into this century that this Court interpreted that provision to allow a final judgment of conviction to be collaterally attacked on habeas.'' The Supreme Court concluded: ``We have long recognized that the power to award the writ by any of the courts of the United States, must be given by written law, and we have likewise recognized that judgments about the proper scope of the writ are normally for Congress to make.'' The U.S. Court of Appeals for the Seventh Circuit elaborated on this point in Lindh v. Murphy, 96 F.3d 856 (rev'd on other grounds, 521 U.S. 320), and explained the nature of the constitutional habeas right: ``The writ known in 1789 was the pre-trial contest to the executive's power to hold a person captive, the device that prevents arbitrary detention without trial. The power thus enshrined did not include the ability to reexamine judgments rendered by courts possessing jurisdiction. Under the original practice, ``a judgment of conviction rendered by a court of general criminal jurisdiction was conclusive proof that confinement was legal * * * [and] prevented issuance of a writ.'' The founding-era historical evidence suggests a prevailing view that state courts were adequate fora for protecting federal rights. Based on this assumption, there was (and is) no constitutionally enshrined right to mount a collateral attack on a state court's judgment in the inferior Article III courts and, a fortiori, no mandate that state court judgments embracing questionable (or even erroneous) interpretations of the federal Constitution be reviewed by the inferior Article III courts.'' The Seventh Circuit concluded: ``Any suggestion that the [Constitution] forbids every contraction of the [federal habeas] power bestowed by Congress in 1885, and expanded by the 1948 and 1966 amendments, is untenable.'' My amendment is a necessary and appropriate adjustment to the federal jurisdiction over state criminal convictions. I am pleased to see that it is part of the Children's Safety and Violent Crime Reduction Act.

Mr. FLAKE

Mr. FLAKE. Madam Speaker, I would like to comment on section 507 of today's PATRIOT Act conference report, which authorizes the U.S. Attorney General to certify whether a state has qualified for the expedited habeas corpus procedures in chapter 154 of title 28 of the U.S. Code. Section 507 is of particular importance to my home State of Arizona, which for many years has satisfied the post-conviction counsel requirements of chapter 154, but which has been unfairly denied the procedural benefits of that chapter by the Ninth Circuit. Section 507 is similar to a section of the Streamlined Procedures Act, a general habeas corpus reform bill that was introduced earlier this year in the House by Mr. Lungren of California, and in the Senate by my Home state colleague, Senator Kyl. Section 507 is also virtually identical to an amendment that I filed and sought to offer last month to H.R. 1751, the Secure Access to Justice and Court Security Act of 2005. My amendment had been made in order by the Rules Committee and was listed in House Report 109-279. At the last minute, however, various political objections were made to my amendment and Chairman Sensenbrenner asked me not to offer it to H.R. 1751. The Chairman assured me that he would accommodate me with regard to this matter on some other legislation. I am pleased to see that he was able to do so on the PATRIOT Act, which now appears that it will be enacted into law sooner than H.R. 1751. My amendment is designed to give States a real incentive to provide quality counsel to death row prisoners in State habeas proceedings. It is also designed to keep a bargain that the Federal Government made with the States in 1996. The amendment assigns the U.S. Attorney General to evaluate whether a State is providing qualified counsel to capital prisoners in State habeas proceedings, a condition for receiving the benefits of the expedited habeas procedures of chapter 154 of the U.S. Code. The amendment thus gives States a real chance to qualify for chapter 154 treatment. By ensuring that States will receive streamlined proceedings in Federal court if they provide quality counsel in State habeas court, the amendment will reduce delays in death penalty appeals. This is a goal that everyone, left and right, should agree with. Even those who passionately oppose the death penalty should want the system to be fair to victims. No one should support a system that routinely forces the family of a murder victim to endure 10, 15, or even 20 years of appeals. Yet in too many cases, that is exactly how our current system works even in cases where there is no real dispute over guilt. In my home State of Arizona, over two-thirds of death row prisoners have finished all of their State appeals and are engaged in Federal habeas litigation. Most of these cases have now been in the Federal courts for five years or more. Ten cases have been in Federal court for 8 years or more, and 5 cases have been in Federal court for more than 15 years. And this is all on top of the time that it takes to complete all state appeals, which usually requires 5 or 6 years. Under the current system, victims' families are forced to repeatedly relive an awful event throughout the progress of this lengthy litigation. During that process, they must wonder if they will be forced to appear at another hearing, if there will be another trial, or if the person who killed their son or daughter will even be released. They literally are denied closure, the right to forget about the person who killed their loved one and to move on with their lives. And this frequently goes on for more than 15 years. A system that treats crime victims this way is intolerable. The amendment that I offer today is particularly important to my home State of Arizona. Arizona is both a State that has experienced extreme delays in Federal-court review of capital cases, and a State that has acted to provide quality counsel in state habeas proceeding in response to the offer that the congress made in 1996. The habeas reform of that year created chapter 154 of title 28. This chapter told the States that, if they provide qualified state habeas counsel to capital defendants, the Federal government would streamline Federal court review of capital cases. In Federal court, chapter 154 would limit the claims that defendants could raise, barring virtually all claims that were not properly raised and addressed on the merits in state court. Chapter 154 would apply strict deadlines to Federal court review, requiring the district court to decide the case in 6 months and the court of appeals to rule in 4 months. Shortly after the 1996 reforms were enacted, the Arizona legislature and the State supreme court implemented a system that would allow the State to opt in to chapter 154. The State created mandatory competency standards for capital post-conviction counsel, and provided funds to attract good lawyers and allow them to hire necessary experts. The State now spends a lot of money on post-conviction representation for death-row inmates--the median case costs the State $64,000, while one case cost $138,000. Again, this is just for State habeas review. It does not include the State's expenses to provide counsel at trial or on direct appeal from the trial. For example, Arizona also guarantees a capital defendant two highly qualified attorneys at trial. One might think that, in light of all that the State of Arizona has done to provide high-quality counsel to capital defendants, surely it must have qualified for chapter 154 by now and must be enjoying the benefits of that chapter. But that is not what has happened. The problem is simple: under current law, the local Federal court of appeals decides whether a State has opted in to chapter 154. In Arizona, the Ninth Circuit has refused to grant Arizona the benefits of chapter 154. Even though Arizona has lived up to its end of the bargain, the Ninth Circuit refuses to allow the Federal government to abide by its end of the deal. A case that illustrates the problem is the Ninth Circuit's extraordinary decision in Spears v. Stewart, 283 F.3d 992 (2002). The three-judge panel in Spears found that Arizona's system for providing post-conviction counsel complied with chapter 154. The court concluded that Arizona's system sets mandatory and binding competency standards for counsel, provides reasonable compensation to counsel, pays reasonable litigation expenses, and offers such counsel to all capital defendants. The court nevertheless managed to find that Arizona could not receive the benefits of chapter 154 because of a delay in appointing counsel. Defense lawyers initially had boycotted this system, and in some cases this resulted in delays. The defendant in Spears did not even allege that this delay prejudiced his case. But the Ninth Circuit found this delay a sufficient excuse to deny Arizona the benefit of chapter 154, even though Arizona's system complied with that chapter. The decision of the Spears three-judge panel alone is troubling. The chapter 154 qualification decision is supposed to be a one-time decision. Once a State's system qualifies, the issue is not supposed to be litigated again on a case-by-case basis. Even more disturbing than the three-judge panel's decision, however, is a dissent from the full court's refusal to rehear the case that was signed by 11 active judges of the Ninth Circuit. These 11 judges stated that the panel's decision that Arizona's system qualifies for chapter 154 is merely dicta and not binding in future cases. Although the issue of Arizona's 154 status was squarely before the three-judge panel and was decided by that panel, this gang of 11 judges declared that they would not follow that decision in future cases. As they said: ``To put it bluntly, neither we, nor any other court is bound by the panel's advisory declarations in this case.'' Spears, 283 F.3d at 998 (Reinhardt, J., dissenting from denial of rehearing). A statement by 11 judges that they will refuse to follow their own court's final decision itself is extraordinary, as several other judges noted in Spears a concurrence to the denial of rehearing. If a court refuses to abide by its own precedents, litigants can have no way of knowing what the law is and how they should arrange their affairs. Such behavior does substantial damage to the rule of law. What such behavior also demonstrates is a refusal to enforce the laws enacted by Congress. It shows that chapter 154 will remain a dead letter so long as the obligation to enforce it remains in the hands of courts such as the Ninth Circuit. It is clear that, if any two of the 11 judges who joined the Spears rehearing dissent are assigned to a future Arizona 154 case, they will not feel obligated to follow Spears and the State will be relitigating the issue of its 154 status from scratch. Indeed, portions of the Spears dissent argue that Arizona's ``statutory scheme did not comply with Chapter 154's requirements.'' Spears, 283 F.3d at 1002 (Reinhardt, J., dissenting from denial of rehearing). The tone of the 11-judge dissent also betrays an open hostility to the chapter 154 system. The trouble with chapter 154 is that the courts assigned to decide when it applies are the same courts that would be bound by the chapter's strict deadlines if a State is found to qualify. Simply put, the regional courts of appeals have a conflict of interest. They decide whether the States are entitled to a benefit which places a burden on the courts themselves. Some prosecutors also believe that refusal to enforce chapter 154 also reflects a hostility to the death penalty-- that some judges are ignoring the law because they do not want to see death sentences carried out. If this is true, it is absolutely unacceptable. A judge has an obligation to uphold and enforce a valid law, whether or not he agrees with it. My amendment makes several changes to chapter 154 to ensure that it provides real and meaningful benefits to States that provide quality post-conviction counsel. First and most importantly, it assigns the 154 certification decision to the U.S. Attorney General and the DC Circuit, rather than the local courts of appeals that have an interest in the case. The Attorney General receives no benefits from chapter 154, and he has expertise in evaluating State criminal justice systems. Just last year, for example, Congress assigned the Attorney General to evaluate State DNA testing and capital counsel systems in the Justice for All Act. Review of the Attorney General's decision in the DC Circuit also is appropriate. Because there is no Federal habeas review of criminal convictions in the District of Columbia, the DC Circuit also has no stake in whether or not a State qualifies for chapter 154. My amendment, like subsection (d) of section 507, also makes clear that a determination that a State has satisfied the chapter 154 standard as of a particular date will apply retroactively to all pending habeas cases for which the prisoner received State habeas after the certified date. This will ensure that a State will receive all of the procedural and litigation benefits that it should have received had the Federal habeas claim been governed by chapter 154 from the day that it was filed, as it should have been. The proposed paragraph 28 U.S.C. 2265(a)(2) in my amendment makes clear that, once the Attorney General determines that a State established a post-conviction capital-counsel system by a particular date, the chapter 154 eligibility certification shall be effective as of that date. Thus, if a capital prisoner received State habeas counsel after that effective date, the case is governed by chapter 154 in Federal proceedings. However, some courts might construe 2265(a)(2) to mean that while the chapter 154 system thereafter governs Federal habeas applications that have already been filed, the actual procedural benefits of that chapter--especially the claims limitations and amendment limits would only apply on a going-forward basis--i.e., only to claims or amendments filed after the date of enactment of this law. Thus when I added a few other provisions to the amendment, I also inserted subsection (g), which is the same as subsection (d) of section 507. This subsection, by explicitly applying section 507 and the changes that it makes to all qualified pending Federal habeas cases, should make clear that when Congress says that it wants the new law to apply retroactively, it means that the law will apply retroactively--that it will govern new claims as if it had been in effect as of the effective date of the chapter 154 certification. Any non-retroactive application of chapter 154 would be fundamentally unfair to States such as Arizona, which has been providing post- conviction counsel to State prisoners for nearly a decade but has been inappropriately denied the benefits of chapter 154 for some cases that already have progressed to Federal habeas. In the Spears case, for example, the Ninth Circuit even found that Arizona's counsel system met chapter 154 standards, but the court nevertheless came up with an excuse for refusing to apply chapter 154 to that case. If the Attorney General and the DC Circuit conclude that Arizona met chapter 154 standards prior to Spears's receipt of counsel, as I am confident that they will, Arizona should receive all of the benefits of chapter 154 for that case and subsequent cases, as if chapter 154 had governed the Federal petition as of the day it had been filed (as it should have). Chapter 154, for example, does not allow cases to be remanded to State court to exhaust new claims (a considerable source of delay on Federal habeas), and it places very sharp limits on amendment to petitions. Arizona should not be forced to litigate claims in Spears's petition that were defaulted, that were unexhausted and sent back to State court, or that otherwise were not addressed by State courts when Spears first filed the petition (unless those claims meet the narrow exceptions in subsection 2264(a)). Nor should the State be forced to litigate claims that were added to the petition in amendments that do not satisfy chapter 154's limits on amendments. Applying chapter 154 retroactively may seem harsh, but it is important to recall that any prisoner whose Federal petition will be governed by 154 necessarily received counsel in State post-conviction proceedings. Unlike the typical uncounseled State habeas petitioner, who may not have been aware of State procedural rules or of all the potential legal claims available to him, a chapter 154 habeas petitioner will have no excuse for not making sure that all of his claims were addressed on the merits in State court. (Or rather, any excuse will be limited to those authorized in 28 U.S.C. 2264(a).) I believe that, given the resources Arizona has devoted to providing post-conviction counsel, the State should easily qualify for chapter 154. The Ninth Circuit has treated Arizona unfairly by denying it chapter 154 status. If the U.S. Attorney General and DC Circuit agree that Arizona should have been 154-certified when Spears filed his Federal petition, Arizona should be placed in the same position that it would be in today had the Spears case proceeded under chapter 154 from the beginning. My amendment also extends the time for a district court to rule on a 154 petition from 6 months to 15 months. I have been informed that the bill that became the 1996 Act originally adopted 6 months as the limit as an initial bargaining position. The intention had been to eventually extend this to 12 months, but because of the politics of the enactment of AEDPA, it was not possible to change this deadline later in the legislative process. My amendment is even more generous than the original authors' intention, giving the district courts 15 months, in recognition of their burdensome caseloads and the fact that they do the real work in Federal habeas cases--they are the courts that hold hearings, if necessary, to identify the truth of a case. This same change was included in subsection (e) of section 507. Subsection (f) of section 507 is the same as a provision in subsection (e) of my amendment. This subsection codifies the rule of McFarland v. Scott, 512 U.S. 849 (1994), which allows a stay to issue on the basis of an application for appointment of Federal habeas counsel (without the actual filing of a petition), but it limits such stays to a reasonable period after counsel is actually appointed or the application for appointment of counsel is withdrawn or denied.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, I thank the gentleman for yielding me this time. Today is not a red letter day for this great and storied institution. Rather than doing what we know has to be done regarding immigration reform, we are simply punting the ball to the Senate, hoping that they will have the courage to act in ways that we cannot. Many of us here wanted an amendment that would be made in order that would allow for a temporary worker program to be established. That was not allowed. In doing so, in not allowing that, we are simply ensuring that we play a diminished role in the eventual bill that will pass this body. If the denial of this amendment was unfortunate, the removal of language in the manager's amendment that simply references the role that a temporary worker program would play in enhancing border security is simply baffling. Every member of the Republican leadership and virtually every Member of this institution has expressed the need to have a temporary worker program at some point in order to secure the border. Yet some said they would vote against the legislation if it was included here. Gratefully, the Senate will not need a ``sense of the Congress'' resolution to understand what they have to do, and that is to include a temporary worker program. The elephant in the middle of the room, of course, is the 11 million illegals who are here. Without a temporary worker program, we will continue to turn a blind eye to their existence, to pretend that they are not here. Nobody in this body, not one, is advocating that we round up and deport those who are here illegally now, but unless we have a program for them to go into, we simply will not enforce the law. And that is the dirty little secret here. We ought to at least be honest with our constituents in this regard. There are some who will vote against the rule and underlying legislation with the hope that we will later do something more comprehensive. Some will vote for the rule and underlying legislation with resignation that all we are capable of doing is to send this legislative vehicle, however flawed, to the Senate with the hope that they will act with the maturity that we lack. One would be justified in either approach. Mr. Speaker, today is not a red-letter day for this great and storied institution. Rather than do what we know must be done regarding immigration reform, we are punting the ball to the Senate--hoping that they will have the courage to act in ways that we cannot. Many of us in this body asked for an amendment made in order that would make this legislation comprehensive, in other words, an amendment that would provide for enhanced border security, increased interior enforcement, and would provide a legal framework for foreign workers to enter the country and then return home. It is unfortunate that this amendment was not made in order. In doing so we ensured that this body will play a diminished role, at best, moving ahead immigration reform. If the denial of this amendment was unfortunate, the removal of language in the manager's amendment that references the role that a temporary worker program will play in enhancing border security, is simply baffling. Every member of the Republican leadership has expressed support for a temporary worker program, as has an overwhelming majority of this body, yet the language was removed after threats from a few that the inclusion of any reference to a temporary worker program would guarantee their ``no'' vote against this legislation. Gratefully, the Senate doesn't need to see ``sense of the Congress'' language on a temporary worker plan from the House to add such a provision to their legislation. They know that such a plan is a necessary part of securing the border. The elephant in the middle of the room is the 11 million illegal aliens who have already entered the country. Without a temporary worker program we will continue to turn a blind eye to their existence. We'll pretend they aren't here. Nobody in this body is advocating that we round up and deport all of those who are here illegally. It's no wonder. It would be the equivalent to rounding up the entire population of the State of Ohio and sending them back to their home country. Yet that is what ``enforcing the current law'' would require. We in this body know that, Mr. Speaker. But unfortunately we don't want to admit it to our constituents. George Washington once famously said ``If to please the people we do what we ourselves disprove, how will we then defend our work?'' That is the question for us today. There are some who will vote against this rule and underlying legislation in the hope that we will later do something more comprehensive. Some will vote for this rule and underlying legislation with resignation that all we are capable of is to send a legislative vehicle, however flawed, to the Senate with the hope that they will act with the maturity we lack. One would be justified in either approach.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, I just want to echo some of the sentiments of some of the earlier speakers, particularly Mr. Kolbe from Arizona. We have to have comprehensive reform, and until we do, we are ignoring the elephant in the middle of the room, and that is the 11 million or so illegals who are here at present. This is called an enforcement bill, but it does nothing to enforce the law and the interior. It says that if you are employing an illegal, you have up to 6 years to check their status; 6 years for that person to stay in the shadows, driving without a license, driving without insurance. That is not enforcement. We have to have comprehensive reform that deals with border security, a temporary worker program and also dealing effectively with those who are here illegally at present. I hope if we do this bill that we move quickly on to more comprehensive legislation that will do all we need to do.

Mr. FLAKE

Mr. FLAKE. Madam Speaker, I thank the chairman for yielding me this time. I want to commend him for a great process here. Often we do not have a deliberative process when we pass major pieces of legislation. That is not the case here. We had 12 hearings over a year on these provisions, and I want to point out what the chairman has already said, that we are not just dealing with those sections that are sunsetted but we are dealing with those that are not as well. We had some substantive reforms to the NSL process. After the passage of the first PATRIOT Act, I and others formed the PATRIOT Act Reform Caucus because we felt we needed additional protections. That process yielded about a half dozen amendments which we offered during the House version of the bill, and each of those amendments was accepted and remains part of the legislation. One amendment that we dealt with during consideration of the House bill clarified that a recipient of an NSL, or national security letter, may discuss the NSL with his or her attorney and may disclose that request to an individual whose help is necessary for compliance with the NSL. That is an important safeguard. And for those who say there is a gag rule that prohibits people from even mentioning the NSL, that is no longer true. If an NSL is challenged, it requires a recertification by either the FBI Director or another official confirmed by the Senate. This reform increases accountability in using NSLs, and it clarifies that judicial review exists and challenges to both the NSL and the prohibition on disclosure are now allowed. It also, as the chairman mentioned, establishes additional reporting requirements to the House and Senate Judiciary and Intelligence Committees on the frequency and use of NSLs. These are commonsense reforms and clarifications. In addition to these safeguards on NSL authorities, the reauthorization also will add significant safeguards in a number of other areas, as the chairman mentioned. There are now strict time limits for those who are put on delayed notification as well as new reporting requirements to the House and Senate Judiciary Committees. Madam Speaker, these are reforms that are important, and I am happy to support it, and I hope that we will codify these in the bill.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, I too want to commend those who worked to get the earmarks out of the bill. But I just wanted to point out that not all the earmarks are out of the bill. In the bill, we have $1.25 million for the Center For Excellence in Native Hawaiian Law at the University of Hawaii, $1.2 million for the Hawaiian Department of Education for school construction, $2 million to the Mississippi Band of Choctaw Indians for cultural and education funding, $5 million for America's Promise. Now these may well be good programs, but they should not be funded in this bill that says that all the earmarks are gone. We also violated a House rule where we were naming two Federal facilities after sitting Members of Congress. The Center for Disease Control headquarters is being renamed the Arlen Specter Headquarters and Emergency Operations Center. We are renaming the communication center at the CFDC the Thomas R. Harkin Global Communications Center. We should not be doing this. If we are getting rid of the earmarks, we ought to get rid of all of them.

Mr. FLAKE

Mr. FLAKE. I thank the chairman.

Mr. FLAKE. I yield to the gentleman from Wisconsin.