Orrin Hatch

Mr. HATCH

Mr. HATCH. Thank you, Mr. President. That is what I want to talk about today, in part. I rise today to respond to a few of the comments made yesterday by several of my Democratic colleagues. They have attacked the President and the administration for not being forthcoming in releasing documents notwithstanding the fact that the White House just declassified and released approximately 260 pages of legal memoranda that they sent to Senator Leahy and myself. Let me take a moment to review the history. On June 8, 2004, the Judiciary Committee held an oversight hearing of the Department of Justice. During the course of the hearing, Senator Kennedy asked the Attorney General for any legal memoranda that had been leaked to the public. Contrary to the suggestions of some, the Attorney General at no time refused to answer any question posed by Senators on the committee. He just gave answers with which my Democratic Colleagues did not agree. Specifically, the Attorney General declined to agree--on the spot--to produce internal executive branch legal memoranda citing the President's right to have confidential advice from his staff. The Attorney General believed he did not have authority to release these documents. He believed that only the President could release them. Instead, that same day after the hearing, the Department of Justice wrote a detailed letter responding to the inquiries of the ranking Democratic member of the Judiciary Committee on legal issues related to wartime decisions. The letter summarizes the Justice Department's legal opinion on whether various statutes and treaties apply on this war on terror, including the Uniform Code of Military Justice, the Special Maritime and Territorial Jurisdiction, the Military Extraterritorial Jurisdiction Act, the torture statute, Geneva Conventions, and the War Crimes Act. These topics are precisely the subject matter of the documents at issue in the hearing. The Attorney General is not trying to cover up anything. There can be no question that the Justice Department wanted to be responsive to the committee but it was not in a position to release the documents without further consultation within the administration, including the White House and the Defense Department. That is only fair. It is prudent during time of war when some of the documents reveal potential interrogation techniques. Yet they made the Attorney General of the United States a punching bag, which they have done consistently day in, day out in the Judiciary Committee on various markup days and hearings as well. It is as though they literally hate the Attorney General of the United States. A man who I think is doing a bang-up, tremendous job. In fact, last week the Attorney General and the White House counsel both assured me that they would work with me to fairly resolve the matter. I represented that to the committee members and that wasn't enough. I was sarcastically challenged on that by more than one member of the committee on the Democratic side. I just calmly said: Give them a little time. They said they would work with us, and they will. And Mr. President, they did. Last Tuesday, the Democratic members of the Judiciary Committee submitted a letter to the Attorney General, not just seeking the three documents mentioned at the hearing that Senator Kennedy made an issue of in the hearing, but seeking a total of 23 legal memoranda. In addition to that, they provided a laundry list of document requests so broad that it could take a year to search the files of the entire Federal Government to comply with such a request. We would have to go all the way back to the Spanish-American War to give every document that has ever been brought forth, if you followed the kind of reasoning that they had. Let me give you some examples. They asked for ``any other memoranda or documents from Alberto Gonzales, William Haynes, William Howard Taft, IV, or any senior administration, and in the possession of the Department of Justice, regarding the treatment or interrogation of individuals held in the custody of the U.S. Government.'' Any other senior administration official? That involves hundreds, if not thousands, of people. Come on. For each of the 23 requested memos, the Democratic Senators wanted to know what has been redacted and why. They want an explanation for each classification status, and they want an indication of to whom each was circulated with copies of all cover letters and transmittal sheets. When is it going to end? That kind of stuff is way out of bounds. It was an incredibly imprudent request. It was so broad that nobody in his or her right mind would try to fulfill it--and certainly not a White House that is responsible. In addition to the 23 requested memos, this request includes 19 other broadly worded questions that require lengthy investigation and responses. They want all of this by June 30. That is in just 15 days, as if they were entitled to all of that. This document request appears to be an old-fashioned fishing expedition of the lowest order. Any objective observer would have to conclude that this is not a legitimate exercise of our oversight function. They just want to use the typical go-to-the mattresses, scorched earth, litigation-like tactics to bury the Attorney General with a request so broad that no one could possibly comply with it. Last Wednesday, before the ink was dry on the document request letter submitted last Tuesday, the ranking minority member circulated a proposed resolution to formally subpoena documents from the Department of Justice. The Democrats did not even give the Attorney General the courtesy of a few days to respond to the original document request. Yet, while the Democrats were engaging in this conspiracy, I was working with the White House and the Department of Justice. I told the entire committee of all my efforts last week. In fact, it is because of my efforts and the efforts of the President and the Department of Defense and the Justice Department that these documents have been declassified and disseminated so quickly. Significantly, the three documents originally at issue in the Attorney General's hearing have been produced--that is, the actual documents that they called for in the hearing where you heard so much bad-mouthing of the Attorney General. I got the cooperation of both the Attorney General and Alberto Gonzales himself last week. I have put up with continual complaints by our friends on the other side of the aisle on the Judiciary Committee as to how poorly the committee is being run. I am sick and tired of it. It is about time we got rid of some of these snotty, ridiculous, demeaning, and below-the-belt type of tactics and start respecting the President of the United States, the Attorney General, the Secretary of Defense, our young men and women overseas, and quit undermining what they are doing. We gave them the three documents they asked for and now there are all kinds of requests for more. We will never satisfy these types of voracious, problem-seeking people. Of course, it is not good enough for some of my colleagues to just give them the documents they asked for. The administration could have sent 1,000 memos and some of my Democratic colleagues would still not have been satisfied. Talk about transparency, their strategy is transparent. No matter what is sent, some will no doubt scream and complain it is not good enough, and they will get on this floor, with their holier-than-thou language, and say we must have transparency because that is the way we in the United States are. If that is true, we do not need the CIA, we do not need the 15 intelligence agencies, and we do not need to protect our young men and women overseas anymore. We just have to have transparency. That is so ridiculous it is hard for me to believe how the American people can even give any kind of consideration to that kind of talk. Yet we are getting that kind of nonsense on the Senate floor almost constantly from people on the other side of the aisle. This lack of good faith suggests this is more about trying to attack the Attorney General and the administration than about obtaining documents necessary for legitimate exercise of oversight. It is clear they want to subpoena to build a case to hold the Attorney General in contempt of Congress. Why they hate this former Member of Congress, this former Member of the Senate, I will never understand. There is not a more decent, honorable, religious, kind person I know than John Ashcroft, but he is being treated like dirt. This threatens to rapidly devolve into a political witch hunt of the worst order. It is sad to see this blatant political posturing. It is particularly sad to see this uncalled-for partisan wrangling over an issue of national security in an election year. I don't think they are fooling anybody by their histrionics, and we sure had a lot of them over the last number of days--even the last couple of weeks. Really, you can go back in time, ever since President George Bush was elected. The amendment offered yesterday by the Senator from Nevada and the amendment offered here is not limited to the three documents that were at issue in the hearing. Those documents have already been produced. It has not been limited to the 23 documents listed in the first part of their document request. It is a broadly worded subpoena that would encompass all documents and records on this subject since January 20, 2001, regardless of whether the documents were written by someone at the Department of Justice. Talk about a fishing expedition, we are talking here about deep sea fishing--and the worst type. Do you know how many people work at the Department of Justice? It would take forever just to ask each of the 112,000 individuals at the Justice Department if they possessed any relevant documents. That is how ridiculous the request is. Moreover, the Justice Department subpoena is poorly written, as I have been saying. It requests all documents and records ``describing, referring, or relating to the treatment or interrogation of prisoners of war, enemy combatants, and individuals held in the custody or physical control of the United States Government . . . in connection with the investigation of terrorist activity.'' And the subpoena is not limited to Justice Department records but also records possessed by the Department of Justice, written by other agencies, including the CIA or any military branch. This is simply too broad and they know it. In addition, the subpoena requires records relating to the treatment of prisoners. That broad term would appear to include all the interrogation or treatment records and all of the medical records of Zacarias Moussaoui and any other individual DOJ has prosecuted or is prosecuting on terror-related charges subsequent to 2001. This could include any interrogation, medical records shared between the Department of Defense and the FBI relating to detainees held at Guantanamo Bay or in Iraq, Afghanistan, or elsewhere. This information request can involve hundreds, if not thousands, of POW and other enemy combatants and hundreds of thousands of pages of records. That is the type of base political activity that is going on in this body right now. It demeans, insults, and undermines our young men and women overseas fighting for us and risking their lives every day. I, for one, am sick and tired of it. I hope the American people wake up to this type of foolish conduct all in the interest of Presidential politics or just politics in general. I don't see the practical utility of providing all of these records pertaining to individual detainees to the Judiciary Committee. Under the proposed subpoena, this information could conceivably include prosecution strategy memos. Can you imagine? Surveillance materials. Can you imagine? Information provided by and the identities of confidential informants. Can you imagine that? As well as FISA, that is, the Foreign Intelligence Surveillance Act materials. We normally do not get these types of documents in either Democrat or Republican administrations. And there is a good reason. Because this place is a sieve. You can't keep anything secret up here. It is easy to see why administrations do not like to give confidential, secret, or top secret or covert information, you name it, classified information, to people up here. Their language is simply too broad. I am also troubled by the way in which the language appears to stray far away from general policy questions concerning the legal status of certain classes of detainees such as suspected al-Qaida members into matters affecting ongoing intelligence gathering and the prosecution of individual terrorist subjects. Give me a break. Let's give our country a break. Let's give our President a break. Let's give our Attorney General a break. Above all, let's give our young men and women overseas a break from these types of partisan, political activities. Let me say when the shoe was on the other foot, the Democrats have advocated just as I have. Four years ago, when President Clinton was in office, my colleague from Vermont, advocated the following practice: Our standard practice should be to issue subpoenas only when attempts to obtain documents by other means have failed. At a minimum, we should at least request documents in writing before attempting to compel their production. . . . As part of this duty, the Committee should take every reasonable effort to see whether subpoenas are actually necessary before publicly requesting them. That is the distinguished ranking member of the Judiciary Committee from Vermont speaking. Let's go through that one more time. When the shoe was on the other foot, and our side was asking for some documents, the quote was: Our standard practice should be to issue subpoenas only when attempts to obtain documents by other means have failed. That is a quote. The fact is, they didn't even give the Attorney General time to even think about it before they were slapping a subpoena down in last week's markup, just a few days after. And then, four years ago my colleague from Vermont continued: At a minimum, we should at least request documents in writing before attempting to compel their production. I guess 2 days in writing is more than an ample request in their eyes now that they are in the minority and now that John Ashcroft is Attorney General. As part of his duty, the committee should take every reasonable effort to see whether subpoenas are actually necessary before publicly requesting them. No, they pursued a subpoena. We had to vote on it. It was a party- line vote. I guess they thought they could get at least one Republican to allow their nefarious scheme to go forward. They did not try to use every reasonable effort to see whether subpoenas were actually necessary. And I am sure the reason, they will say, is because John Ashcroft has not appeared before the committee in a long time. My gosh, the man almost died this year. And I don't blame anybody for not wanting to come up in front of this bunch when all you do is get demeaned, with implications that you are a liar, that you are not cooperative, that you are not doing a good job, and many other implications, as well, that are derogatory in nature. When are we going to start treating administration people with respect and dignity? Here the Democrats are not making any reasonable effort to attempt to obtain any of the documents by other means. They did not even give the Justice Department a day to respond to their written questions before drafting a subpoena. What kind of bullying tactic is that? We know what the Democrats are up to because the Senator from Vermont told us what the purpose of a subpoena was just 4 years ago. He said: [I]ssuing subpoenas may make for a good show of partisan force by the majority but certainly continues the erosion of civil discourse that has marked this Congress. Why is that true then but not now? Let me suggest that my Democratic colleagues are trying to take this one step further, as well. The minority is attempting to make a show of partisan force by distorting the facts for the American public. Especially where the administration has indicated its willingness to be cooperative, issuing a subpoena would not merely continue the erosion of civil discourse; it would accelerate it by exponential proportions. To suggest that the Senate issue a subpoena before the deadline to comply with a document request has even passed irreparably debilitates the credibility of my colleagues and shows they are merely grandstanding and not pursuing a legitimate oversight function, in spite of the holier-than-thou approach that some of them use. Now, we have seen holier-than-thou approaches on both sides, I suppose, but I have never seen it worse than it is right now. Yesterday, the President released not only the three documents at issue in the DOJ oversight hearing but 260 pages of documents, at my request--something I said I thought I could get them to do, after having talked with the Attorney General of the United States and Judge Gonzales. That was not good enough at the time. They were moaning and picking and groaning at me, saying they would never do it. But they did. Thus far, the administration has released 13 lengthy memoranda relating to the treatment or interrogation of detainees, including relevant documents that were not specifically requested by the committee. Come on. This administration has bent over backwards, and they will never satisfy these naysayers on the other side who want to make political points and who want to damage the Attorney General of the United States, the Secretary of Defense, and, above all, the President of the United States. I have to say, they are really good at playing this political game. They have a lot of help in our media in this country that seems to just go right along with it. This may not be the end of the document production by the Departments of Justice and Defense, et cetera. The Department of Justice has until June 30, 2004, to respond to the Democrats' document request. It may well be that after June 30, 2004, there may be additional documents that we will need to see. But to seek such a broadly worded subpoena prematurely makes absolutely no sense. It flies in the face of reasonableness. But let me say that it appears from what we know now--and I will expect the administration to correct me if I am wrong on this point--we have already gotten the most important documents. But I guess they just have not given the Democrats enough fodder with which they can attack the Attorney General and the President and others in this administration. After all, most of them were legal documents, legal opinions, where you can differ, and in most cases where they say, well, this is what the law is, but there is another side to it that could be argued, and the courts might find something to it. That is what you expect in a legal opinion. But they not only ask for the legal opinions; they ask for the preparatory documents that were leading up to the legal opinions. I heard my colleague from Vermont mention, repeatedly: Like water, government policy flows downhill. I must say that I agree with him. Clearly, the most important document of those released by the White House is the one that the President of the United States signed on February 7, 2002. You do not get any higher than the President in this country, from a political standpoint. In that memo, the President acknowledged that even though he was advised that he was not legally obligated to provide the protections of the Geneva Conventions to the Taliban or to the detainees at Guantanamo Bay, Cuba, that he intended to do so anyway. But that is not enough for them. Here is the now unclassified White House memorandum for the Vice President, the Secretary of State, the Secretary of Defense, the Attorney General, the chief of staff to the President, the Director of Central Intelligence, the assistant to the President for National Security Affairs, the Chairman of the Joint Chiefs of Staff. These are documents that are usually never given up by Presidents, by the way. The subject: ``Humane Treatment of al Qaeda and Taliban Detainees.'' The part shown at the bottom on this page of the letter is in yellow. Let me read the paragraph just above that. Let me read No. 2: Pursuant to my authority as Commander in Chief and Chief Executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the Attorney General in his letter of February 1, 2002, I hereby determine as follows: Now, this is a finding, by the way: a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva. I think that sounds pretty logical to a logical person. But look at this: b. I accept the legal conclusion of the Attorney General and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban. I reserve the right to exercise this authority in this or future conflicts. There is good reason why he reserved the right to exercise this authority--a very good reason--and that is, we are not fighting a conventional war; we are fighting a war in the most unconventional way, against people who do not wear uniforms, who do not represent a particular country, who are helter-skelter all over the world, who are vicious, brutal killers and murderers and terrorists, who have more than shown us how vicious they are. They do not deserve, in the eyes of many legal minds, the type of protections that Geneva would provide. But he is going to provide it to them anyway. But that is not good enough over here. They have to find something, in some documents, in these hundreds of pages of documents, that can help to bring down this President. Well, look, go to No. 3: Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our Nation has been, and will continue to be, a strong supporter of Geneva and its principles. As a matter of policy, the U.S. Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva. I do not know how you say it much more clearly than that. But you have read all the newspapers condemning the President. Yet the President is following Geneva. But he did. To hear the other side, you would think that he did not. Look at No. 5: I hereby reaffirm the order previously issued by the Secretary of Defense-- ``[P]reviously issued by the Secretary of Defense''-- to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva. I do not know what my colleagues need further, but that is what the President signed. My gosh, there is the President's signature right at the bottom of this letter. I hereby direct the Secretary of State to communicate my determinations in an appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach. My gosh, what is this all about? I will tell you what it is all about. It is about politics, pure and simple. They cannot win fairly, so they do it by distorting what is going on. If they could win by distorting, that would be great, hunky-dory for them, I suppose. Well, it is not for me. Paragraph 2b: I accept the legal conclusion of the Attorney General . . . This is the fellow they are maligning all the time. This awful Attorney General, John Ashcroft. But he says: I accept the legal conclusion of the Attorney General and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. He determines that the provisions of the Geneva will apply. Of course, our values as a Nation, values that we share with the other nations in the world, call for us to treat detainees humanely . . . The fact is some of our knuckleheads--darn few of them--have treated detainees inhumanely. You would think the President himself went over there and did those awful things, or that Donald Rumsfeld, who has done a fantastic job in helping to change the whole military structure in many ways in this country for the better, had gone over there and done this, or General Abizaid. That letter blows away these types of phony arguments. After hundreds of pages of analysis, after months of research and writing, the most severe punishment the Secretary of Defense authorized is the ``use of mild, noninjurious physical contact such as grabbing, poking in the chest with the finger and light pushing.'' I could tell you, having studied it, there is a whole panoply of acceptable Geneva interrogation techniques. I can tell you not all of them were used. The top level of very stressful ones were not authorized to be used. Everything I have seen says that. Why this body would want to issue a subpoena that, one, failed in committee--they couldn't get it through committee because everybody there recognized it was a political exercise, brought very prematurely, without giving the administration a chance to comply, in disregard of the committee chairman's, my, offer to bring about a release of documents, and with a release of documents that is, by any measure, impressive--and two, is not ripe since the deadline to respond to the document request has not even come and gone. Why they would do that is beyond me. I said earlier today I am one of the few people who has gone to and gone completely through Guantanamo. I can only speak for the time I was at Guantanamo and that was a few weeks ago. But I went and witnessed their interrogation techniques. I saw two interrogations that were not staged for me--one with a very uncooperative al-Qaida member they would occasionally get something from and another with another one who has been very cooperative because of the techniques that have been used, that have been fair and reasonable, within the Geneva Conventions rules and techniques. I saw how they handled the prisoners. I saw the incentive systems to get the detainees to try to cooperate. I saw the assault record of some of these vicious detainees who I think some on the other side would like to coddle right to bed every night. Dozens of assaults made against our soldiers, including, since these are open wire cells, on a number of occasions throwing urine and feces all over the soldiers who have to walk up and down the halls. I don't know about you, but if somebody did that to me, I wouldn't be very happy. If I recall correctly, there have only been three times where they have had to discipline soldiers because the rest of them stood and took it, even though that is one of the most offensive things that could be done to somebody, three times. One was acquitted, the other two suffered severe punishment. In other words, we have punished our soldiers for getting mad because somebody threw feces and urine on them. I would be mad. I am for our soldiers. I wish--I am not going to second-guess the military courts, but I wish they had not been punished other than maybe reprimanded. There are some down there who are so vicious they would kill our soldiers if they had a chance. And they have done things like this repeatedly. Dozens and dozens of assaults on our young men and women down there. What bothers me, almost more than anything else, is I have described one of the Presidential findings, and there are others that are being read on the sides of mountains by Zarqawi and by Osama bin Laden, top secret documents that have been given up because of these types of shenanigans. These types of things put our young men and women at risk. These political games are putting young men and women at risk. To disclose anything about interrogations puts our young men and women at risk. That does not mean we should not prosecute those who have violated the President's order of humane treatment. But interestingly enough, in the Abu Ghraib prison situation, the minute it became known these types of activities were going on, investigations started and prosecutions have resulted. But that is not good enough because there is a demand that they have to go right up to the top which means even the President, as if he were over there in Abu Ghraib himself, or Rumsfeld was over in Abu Ghraib or General Abizaid, they should be punished, or there should at least be some responsibility on their part for this aberration of conduct by so few in the Abu Ghraib prison. Let me tell you, I am getting sick of it. I am getting sick of this partisan activity. I don't have much of a voice right now because I am so doggone sick of it. Frankly, it is beneath the dignity of the Senate. I think there might come a time for subpoenas, if there had been no cooperation, if there had been plenty of honorable time given to the administration to comply, if there had been no compliance, if there hadn't been any effort by the chairman to try and obtain these documents, if there had been no response by the White House counsel or the White House itself, or if there had been no desire on the part of the Attorney General to cooperate. They now have all the documents they asked for at that hearing. And now we get a request, a broad request for so many more that would tie up all of these important people to such a degree that I think it damages our young men and women not only in Iraq but Afghanistan as well. Why? Why is it? Why do we hear these holier than thou rantings? Because we have to make sure this administration does its job because we don't trust them, I guess. At least that seems to be the tenor of the argument, and that this administration must be doing something wrong because it had legal memoranda and legal opinions that indicated maybe the Geneva Conventions don't apply in this unconventional war, with unconventional, murderous, and vicious terrorists. Well, let me say, I am disappointed they ignore these types of documents. I am disappointed we get all these documents and they are not satisfactory. I am disappointed there is a call for transparency of all these things. I guess Osama bin Laden can read these things as well, or even Zarqawi, and know everything we are thinking, everything we do. He ought to be able to cut off a lot of heads with the knowledge we are giving him. The fact is, almost any time anything is released here, it shows up in the liberal media. It shows up to the disadvantage of our country, to the disadvantage of our young men and women over there. I don't think anybody on this side is saying we should not be transparent in the ways we should be transparent, but to use that transparent argument and push it to its ultimate extreme means we should not have 15 intelligence agencies where we have classified information to protect our country. If you push it to the extreme, that is what you are saying. I believe it has been pushed to exactly that extreme. I believe the demands have been extreme. They are unconscionable in some ways--not all of them. That is why the documents are being given to them. It was important to meet the reasonable requests for those three documents. They have been given. I don't see anything wrong with that. I also believe we ought to respect the need to keep some matters from transparency in the best interests of our young men and women. I have to say I know that not all of our servants act appropriately. Everybody makes mistakes. Certainly, the things that happened in Abu Ghraib and in Afghanistan should never have happened. They need to be investigated, and, where appropriate, prosecutions have to take place. Nobody should be spared who participated in those wrongful, illegal activities that fly in the face of what the President approved and what the Secretary of Defense approved. I stand with my colleagues on the other side with regard to that. There is no doubt in my mind about that. But when it comes to just playing crass politics and demanding more and more so it can be released to the public so ``transparency'' can be had over documents that should not be released to the public, then I have to call it what it is. It is crass political activity that flies in the face of what is right. I think directly and indirectly it hurts our young men and women overseas. I yield the floor.

Mr. HATCH. I move to table the underlying Leahy amendment and ask for the yeas and nays.

Mr. HATCH

Mr. HATCH. Mr. President, I rise with my esteemed colleague and friend, Senator Leahy, ranking Democrat Member of the Senate Judiciary Committee, to introduce the ``Inducing Infringement of Copyrights Act of 2004.'' This Act will confirm that creative artists can sue corporations that profit by encouraging children, teenagers and others to commit illegal or criminal acts of copyright infringement. Senator Leahy and I are pleased that Majority Leader Frist and Minority Leader Daschle and Senators Graham and Boxer are co-sponsoring this important bipartisan legislation. It is illegal and immoral to induce or encourage children to commit crimes. Artists realize that adults who corrupt or exploit the innocence of children are the worst type of villains. In ``Oliver Twist'', Fagin and Bill Sikes profited by inducing children to steal. In the film ``Chitty-Chitty Bang-Bang'', the leering ``Child-Catcher'' lured children into danger with false promises of ``free lollipops.'' Tragically, some corporations now seem to think that they can legally profit by inducing children to steal--that they can legally lure children and others with false promises of ``free music.'' Such beliefs seem common among distributors of so-called peer-to-peer filesharing (``P2P'') software. These programs are used mostly by children and college students--about half of their users are children. Users of these programs routinely violate criminal laws relating to copyright infringement and pornography distribution. Criminal law defines ``inducement'' as ``that which leads or tempts to the commission of crime.'' Some P2P software appears to be the definition of criminal inducement captured in computer code. Distributors of some P2P software admit this. The distributors of EarthStation 5 state, ``While other peer 2 peer networks like Kazaa or Imesh continue to deny building their programs for illegal file sharing, at ES5 we not only admit why we built ES5, we actually promote P2P, endorse file sharing, and join our users in swapping files!'' Recently, in the Grokster case, a Federal court drew similar conclusions about the intent of other distributors of P2P software. It warned that some P2P distributors ``may have intentionally structured their businesses to avoid secondary liability for copyright infringement, while benefiting financially from the illicit draw of their wares.'' In other words, many P2P distributors may think that they can lawfully profit by inducing children to break the law and commit crimes. They are dead wrong. America punishes as criminals those who induce others to commit any criminal act, including copyright infringement. The first sentence of our Criminal Code states: Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal . . . . Indeed, it is absurd to think that our law might be otherwise. No civilized country could let sophisticated adults profit by tempting its most vulnerable citizens--its children--to break the law. I think we must understand how some corporations came to confuse child endangerment with a legal business model. Their confusion seems to arise from court cases misinterpreting a well-intended Supreme Court decision that tried to clarify two critical components of federal law: the law of secondary liability and the law of copyright. The Supreme Court states that secondary liability is ``imposed in virtually all areas of the law.'' Secondary liability is universal because its logic is compelling. It does not absolve lawbreakers of guilt. But it recognizes that we are all human: We are all more likely to break the law if encouraged or ordered to do so. Secondary liability thus discourages lawlessness by punishing people who manipulate others into doing the ``dirty work'' of breaking the law. Secondary liability usually targets two types of persons: 1. those who induce others to break the law, and 2. those who control others who break the law. Though secondary liability is nearly ubiquitous, it has almost always remained as a judge-made, common-law doctrine--and for a good reason. Secondary liability prevents the use of indirect means to achieve illegal ends. Consequently, the scope of secondary liability must be flexible--otherwise, it would just instruct wrong-doers on how to legally encourage or manipulate others into breaking the law. The common-law judicial process is ideally suited to evolve flexible secondary-liability rules from the results of many individual cases. As a result, Congress rarely codifies secondary liability. It has codified secondary liability to narrow it, as in the Patent Act. Congress has codified secondary liability in the Criminal Code to ensure that the narrow construction given criminal statutes would not foreclose secondary liability. In the Digital Millennium Copyright Act, Congress codified a complex balance between opposed interests that expanded one type of secondary liability and narrowed another. Congress has always assumed that infringers could readily induce consumers to accept infringing copies of works. It thus created ``a potent arsenal of remedies against an infringer . . . .'' But secondary liability often arises if a third party can be ordered or induced to make the infringing copies. Consequently, only after copying devices became available to people who might be induced to infringe did questions about secondary liability for infringement become pressing. In 1984, these questions reached the Supreme Court in Sony Corp. v. Universal City Studios, Inc. Sony held that the makers of the Betamax VCR could not be held secondarily liable in a civil suit brought by copyright holders--even though some consumers would use VCRs to make infringing copies of copyrighted TV broadcasts. Sony also created a broader limitation on secondary liability by importing a limitation that that Congress had codified only in the Patent Act; this was the substantial-noninfringing-use rule, also called the ``staple article of commerce'' doctrine. Sony intended this rule to strike, as between creators of works and copying equipment, the same ``balance'' that it had struck under the Patent Act between the rights of patent holder and makers of staple products. Under the Patent Act, the substantial-noninfringing-use rule bars secondary liability for selling a ``staple'' product that has a ``substantial noninfringing use''--even if that staple could also be used as a component in an infringing copy of a patented invention. This rule protects makers of staples without changing the nature of secondary liability. In particular, it does not immunize bad actors who intend to distribute ``patent-infringement kits.'' Even in the rare case of a novel invention that consists only of ``staple'' components, an ``infringement kit'' must bundle components and include assembly instructions. Neither the bundle nor the instructions will likely have a ``substantial noninfringing use.'' Sony intended this rule to strike the same admirable ``balance'' under the Copyright Act. Unfortunately, Sony also proposed that if this rule proved problematic, Congress should alter it on a technology-by- technology basis. This proposal was flawed: In 1976, Congress redrafted the Copyright Act to avoid the need to re-adjust copyrights on a technology-by-technology basis because legislation could no longer keep pace with technological change. Returning to this impractical technology-based approach would create an endless procession of ``tech- mandate'' laws that discriminate between technologies Congress deems ``good'' or ``bad.'' But technologies are rarely inherently either ``good'' or ``bad.'' Most can be used for either purpose; the effect depends on details of implementation impossible to capture--or predict--in prospective legislation. Of course, the dysfunctional corrective mechanism that Sony proposed would have become problematic only if the Sony limitation was misunderstood or misapplied by lower courts. Unfortunately, that has now happened. In cases like Napster and Grokster, lower courts misapplied the substantial-non-infringing-use limitation. These courts forgot about ``balance'' and held that this limitation radically alters secondary liability. In effect, these cases retained secondary liability's control prong but collapsed its inducement prong. The results of these cases prove this point: Napster imposed liability upon a distributor of copying devices who controlled infringing users; Grokster did not impose liability upon distributors who appeared to induce and profit from users' infringement. A secondary-liability rule that punishes control and immunizes inducement is a public policy disaster. It seems to permit the distribution of ``piracy machines'' designed to make infringement easy, tempting, and automatic. Even Harvard's Berkman Center for Internet and society suggests that this is happening. The Center warns that ``it can be extremely difficult for a non-expert computer user to shut down'' the viral redistribution that can otherwise automatically make the user an international distributor of infringing works. The Center notes that the ``complexity of KaZaA's installation and disabling functions'' may leave many users unaware that they have become a contributor to global, for-profit copyright piracy. Unfortunately, ``piracy machines'' designed to mislead their users are just one of the perverse effects of a secondary liability rule that punishes control and immunizes inducement. Perhaps the least perverse of these effects has been years of conflict between the content and technology industries. Content creators sought the tech-mandate ``corrections'' that Sony proposed. Technology industries opposed such laws because they too easily foreclose innocent or unforeseen applications. P2P software illustrates the problem: Today, most P2P software functions like Earthstation 5's ``piracy machine.'' Yet all agree that non-piracy-adapted implementations of P2P could have legitimate and beneficial uses. A rule that punishes only control also produces absurd results. Secondary liability should focus on intent to use indirect means to achieve illegal ends. A rule that punishes only control degenerates into inane debate about which indirect means was used. Thus Napster and Grokster are regulated differently--though they function similarly from the perspective of the user, the distributor, or the copyright holder. A rule that punishes only control also acts as a ``tech-mandate'' law: It mandates the use of technologies that avoid ``control''-- regardless of whether they are suited for a particular task. Napster was punished for processing search requests efficiently on a centralized search index that it controlled. Grokster escaped by processing search requests less efficiently on a decentralized search index that it did not control. Rewarding inefficiency makes little sense. A secondary-liability rule that punishes only control also punishes consumers: It encourages designers to avoid ``control'' by shifting risks onto consumers. For example, Napster incurred billion-dollar liability because it controlled computers housing a search index that located infringing files. Programs like Kazaa avoid Napster's ``control'' by moving their search indices onto computers owned by unsuspecting consumers. Consumers were never warned about the risks of housing these indices. As a result, many consumers, universities, and businesses now control computers that house ``mini-Napsters''--parts of a search index much like the one that destroyed Napster. These indices could still impose devastating liability upon anyone who ``controls'' a computer housing them. A secondary-liability rule that punishes only control thus rewards Kazaa for shifting huge risks onto unsuspecting consumers, universities and businesses. And search indices are just one of the risks that designers of P2P software seem to impose upon their young users to avoid control. For example, the designers of most filesharing software choose to lack the ability to remove or block access to files known to contain viruses, child pornography or pornography mislabeled to be appealing to children. This ability could create ``control'' and trigger liability. Aiding distributors of viruses and pornography may be just an unfortunate side effect of avoiding control while inducing infringement. A secondary-liability rule that immunizes inducement also encourages attempts to conceal risks from consumers: It is easier to induce people to take risks if they are unsure whether they are incurring a risk or its severity. The interfaces of most P2P software provide no warnings about the severe consequences of succumbing to the constant temptation of infringement. Another risk to users of P2P software arises when pornography combines with the ``viral redistribution'' that thwarts removal of infringing copies of works. Most filesharing networks are awash in pornography, much of it mislabeled, obscene, illegal child pornography, or harmful to minors. Anyone risks criminal prosecution if they distribute pornography accessible to minors over these child-dominated networks. As a result, one P2P distributor who does distribute ``adult'' content demands that it be protected by access controls. But every adult who uses this distributor's software as intended to download one of millions of unprotected pornographic files automatically makes that pornography available for re-distribution to millions of children. This distributor has sat silently--knowing that its software exposes millions of its users to risks of criminal prosecution that the distributor cannot be paid to endure. Perhaps the worst effect of punishing control and rewarding inducement is that it achieves precisely what Sony sought to avoid: It leaves copyright holders with an enforcement remedy that is ``merely symbolic'': It seems real, but it is illusory. In theory, a rule that immunizes inducement still permits enforcement against those induced to infringe. At first, this remedy seems viable because copyrights have traditionally been enforced in lawsuits against direct infringers who actually make infringing copies of works. But a fallacy lurks here: The ``direct infringers'' at issue are not the traditional targets for copyright enforcement. In fact, they are children and consumers: They are the hundreds of millions of Americans--toddlers to seniors--who use and enjoy the creative works that copyrights have helped create. There is no precedent for shifting copyright enforcement toward the end- users of works. For nearly 200 years, copyright law has been nearly invisible to the millions who used and enjoyed creative works. Copyright law was invisible to consumers because the law gave creators and distributors mutual incentives to negotiate the agreements that ensured that works reached consumers in forms that were safe to use in foreseeable ways. Now, those incentives are collapsing. As a result, artists must now waive their rights or sue consumers--their fans. Worse yet, artists must sue their fans for the sin of misusing devices designed to be easy and tempting to misuse. That is unfair: When inducement is the disease, infringement can be seen as just a symptom. Yet artists must ignore inducers who profit by chanting, ``Hey, kids, infringement is cool, and we will help you get away with it.'' Instead, artists can only sue kids who succumb to this temptation. They must leave Fagin to his work--and sue Oliver Twist. This sue-Oliver ``remedy'' is a debacle. For example, immunizing inducement ensures that artists will have to sue their fans: Inducers will have both the incentive and the means to thwart less extreme measures, like educational campaigns. For example, RIAA tried to avoid lawsuits against filesharers by sending educational instant messages to infringers. Kazaa, for ``privacy'' reasons, disabled instant messaging by default in the next version of its software. Lawsuits then followed. And imagine the poor parent who tries to tell a teenager that free downloading of copyrighted music is illegal. The teenager, confused because ``everyone is doing it,'' consults a leading technology-news site promising a ``trusted source of information for millions of technology consumers.'' There, the teenager finds a P2P distributor promoting ``Morpheus 4.0, the only American filesharing software ruled legal by a U.S. federal court.'' This statement is false: Grokster did not rule Morpheus ``legal''; in fact, the case only confirmed that downloading copyrighted works is illegal. Below this misinformation, the teenager will find an independent editorial review rating Morpheus 4.0 as a ``Recommended'' download and ``an excellent choice'' for those seeking ``the latest and greatest.'' Who will the teenager believe? Worse yet, if artists must sue only the induced, they just feed the contempt for copyrights that inducers breed. Inducers know that people induced to break a law become that law's enemies: Once you break a law, you must either admit wrongdoing or rationalize your conduct. Rationalization is often so easy. You can blame the law: Copyright is a stupid law needlessly enshrined in the Constitution by naives like James Madison. You can blame the victim: Some rock stars still make money; I do not like the ``business model'' of the record labels. You can blame the randomness of enforcement: Everyone else was doing it, so why not me? Anyone who has talked to young people about filesharing has heard such rationalizations time and again. And forcing artists to ignore inducers and sue the induced locks artists into a war of attrition that they are unlikely to win. If you imagine inducement as a bush, this ``remedy'' forces artists to spend their money to sever each leaf--while the inducer makes money by watering the root. Artists may not be able to sustain this unending battle. This may let inducers attempt an extortionate form of ``outsourcing.'' Inducers can increase or decrease their devices propensity to encourage piracy. Inducers can thus tell American artists that if the artists pay the inducers to become licensed distributors of their works, perhaps fewer bad things will happen. Implicitly, if artists do not pay, perhaps more bad things will happen. Were artists to succumb to such tactics, jobs and revenues created by the demand for American creative works would go overseas to some unsavory locales. Worst of all, inducers will inevitably target children. Children would be easily induced to violate complex laws like the Copyright Act. Any child is a terrible enforcement target. And because most adults never induce children to break laws, children induced to infringe copyrights would not even be ``bad kids.'' Indeed, they would probably be smart, mostly law-abiding young people with bright futures. Innocent, mostly law-abiding children make the worst enforcement targets--and thus the best ``human shields'' to protect an inducer's business model. This threat to children is real. Today, artists are suing high-volume filesharers who cannot be identified until late in the process. One filesharer sued for violating federal law over 800 times turned out to be a 12-year-old female honor student. This otherwise law-abiding young girl and her family then faced ruin by the girl's favorite artists. The public knew that something was wrong, and it was outraged. So the people who gave that girl an easily misused toy--and profited from her misuse of it--exploited public outrage with crocodile tears about the tactics of ``Big Music.'' And then, I imagine, they laughed all the way to the bank. The Supreme Court could not have intended to force artists to sue children in order to reduce the profits that adults can derive by encouraging children to break the law. No one would intend that. Yet it seems to be happening. These are the inevitable results of a secondary-liability rule that immunizes inducement. This ``rule'' has created the largest global piracy rings in history. These rings now create billions of infringing copies of works, and reap millions in profits for leaders who insulate themselves from direct involvement in crime by inducing children and students to ``do the dirty work'' of committing illegal or criminal acts. These rings then thwart deterrence and condemn attempts to enforce the law. These rings may now use profits derived from rampant criminality to extort their way into the legal Internet distribution market--a market critical to the future of our artists and children. This must stop--and stop now. Artists have tried: They targeted for- profit inducers. But artists were thwarted by a court ruling that held, in effect, that although artists can sue exploited children and families into bankruptcy, courts need ``additional legislative guidance'' to decide whether artists can, instead, sue the corporations that profit by inducing children to break the law. I find this assertion wholly inconsistent with the intent of both Congress and the Supreme Court. But until this fundamentally flawed ruling is overruled by legislation or higher courts, artists cannot hold inducers liable for their actions. Fortunately, Congress has charged the Department of Justice to enforce the Criminal Code. In the Criminal Code, Congress made it a Federal crime to willfully infringe copyrights or to distribute obscene pornography or child pornography. Congress also made it a crime to induce anyone--child or adult--to commit any Federal crime. Indeed, Congress codified many forms of criminal secondary liability in the Criminal Code. I have already quoted its first sentence. Here is its second: ``Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.'' One court has said that this ensures that ``[a] crime may be performed through an innocent dupe, with the essential element of criminal intent residing in another person.'' Not coincidentally, some Federal prosecutors worry that P2P software makes infringement so tempting, easy and automatic that many of its users will lack criminal intent. Perhaps--but their relative innocence will not protect their inducers. The Criminal Code also codifies other forms of secondary liability, like this one: If two or more persons conspire to injure, oppress, threaten any person in any State . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or the laws of the United States, . . . [t]hey shall be fined under this title or imprisoned not more than ten years, or both. . . . These examples of laws imposing secondary criminal liability have something in common: Congress codified no exceptions for ``substantial non-criminal uses.'' The message is clear: Those who induce others to commit crimes cannot avoid prison by showing that some of them resisted. I will work with my colleagues in Congress to ensure that the Department of Justice enforces the Federal laws that prevent anyone from inducing violations of any Federal law by our citizens, our students, or our children. Congress, too, must do its part by enacting the Inducing Infringement of Copyrights Act, S. 2560. This bill will protect American artists, children and taxpayers by restoring the privately funded civil remedy crippled by the Grokster ruling. Congress must act: A Federal court has held that artists can only enforce their rights by suing exploited children and students pending ``additional legislative guidance'' about whether artists can, instead, sue the corporations that profit by inducing children to break laws and commit crimes. Silence could be misinterpreted as support for those who profit by corrupting and endangering others. This bill will restore the tried, privately funded civil enforcement actions long used to enforce copyrights. This bill will also preserve the Sony ruling without reversing, abrogating or limiting it. The Inducement Act will simply import and adapt the Patent Act's concept of ``active inducement'' in order to cover cases of intentional inducement that were explicitly not at issue in Sony. The Inducement Act also preserves the Section 512 safe harbors for Internet service providers. The bill also contains a savings clause to ensure that it provides the ``guidance'' courts have requested--not an iron-clad rule of decision for all possible future cases. This flexibility is critical because just as infringement cases are fact specific, so should inducement cases center on the facts of a given case, with courts endowed with the flexibility to impose just results. This bill does not purport to resolve or affect existing disagreements about when copies made and used within an individual's home environment are permissible and when they are infringing. Rather, this bill is about the intentional inducement of global distribution of billions of infringing copies of works at the prodding and instigation of sophisticated corporations that appear to want to profit from piracy, know better than to break the law themselves, and try to shield themselves from secondary liability by inducing others to infringe and then disclaiming control over those individuals. I also want to thank everyone who has worked with us to craft a bill that addresses this serious threat to children and copyrights without unduly burdening companies that engage in lawful commerce in the wide range of devices and programs that can copy digital files. As Sony illustrates, clear knowledge that a copying device can be used to infringe does not provide evidence of intent to induce infringement. It was critical to find a way to narrowly identify the rare bad actors without implicating the vast majority of companies that serve both consumers and copyright-holders by providing digital copying devices-- even though these devices, like all devices, can be misused for unlawful purposes. In particular, I would like to thank the Business Software Alliance for its invaluable assistance in crafting a bill that protects existing legitimate technologies and future innovation in all technologies--including peer-to-peer networking. Senator Leahy and I look forward to working with all affected parties to enact this bill and restore the balance and private enforcement that Sony envisioned. But until Congress can enact the Inducing Infringement of Copyrights Act, the duty and authority to stop inducement that targets children and students resides in the Department of Justice that Congress has charged to protect artists, commerce, citizens and children. The Department must act now to clarify some simple facts: America has never legalized the ``business model'' of Fagin and Bill Sykes. Modern ChildCatchers cannot lawfully profit by luring children into crime with false promises of ``free music.'' Mr. President, I urge all of my colleagues to support S. 2560, the Inducing Infringement of Copyrights Act. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise with my esteemed colleague and friend, Senator Leahy, ranking Democrat Member of the Senate Judiciary Committee, to introduce the ``Inducing Infringement of Copyrights Act of 2004.'' This Act will confirm that creative artists can sue corporations that profit by encouraging children, teenagers and others to commit illegal or criminal acts of copyright infringement. Senator Leahy and I are pleased that Majority Leader Frist and Minority Leader Daschle and Senators Graham and Boxer are co-sponsoring this important bipartisan legislation. It is illegal and immoral to induce or encourage children to commit crimes. Artists realize that adults who corrupt or exploit the innocence of children are the worst type of villains. In ``Oliver Twist'', Fagin and Bill Sikes profited by inducing children to steal. In the film ``Chitty-Chitty Bang-Bang'', the leering ``Child-Catcher'' lured children into danger with false promises of ``free lollipops.'' Tragically, some corporations now seem to think that they can legally profit by inducing children to steal--that they can legally lure children and others with false promises of ``free music.'' Such beliefs seem common among distributors of so-called peer-to-peer filesharing (``P2P'') software. These programs are used mostly by children and college students--about half of their users are children. Users of these programs routinely violate criminal laws relating to copyright infringement and pornography distribution. Criminal law defines ``inducement'' as ``that which leads or tempts to the commission of crime.'' Some P2P software appears to be the definition of criminal inducement captured in computer code. Distributors of some P2P software admit this. The distributors of EarthStation 5 state, ``While other peer 2 peer networks like Kazaa or Imesh continue to deny building their programs for illegal file sharing, at ES5 we not only admit why we built ES5, we actually promote P2P, endorse file sharing, and join our users in swapping files!'' Recently, in the Grokster case, a Federal court drew similar conclusions about the intent of other distributors of P2P software. It warned that some P2P distributors ``may have intentionally structured their businesses to avoid secondary liability for copyright infringement, while benefiting financially from the illicit draw of their wares.'' In other words, many P2P distributors may think that they can lawfully profit by inducing children to break the law and commit crimes. They are dead wrong. America punishes as criminals those who induce others to commit any criminal act, including copyright infringement. The first sentence of our Criminal Code states: Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal . . . . Indeed, it is absurd to think that our law might be otherwise. No civilized country could let sophisticated adults profit by tempting its most vulnerable citizens--its children--to break the law. I think we must understand how some corporations came to confuse child endangerment with a legal business model. Their confusion seems to arise from court cases misinterpreting a well-intended Supreme Court decision that tried to clarify two critical components of federal law: the law of secondary liability and the law of copyright. The Supreme Court states that secondary liability is ``imposed in virtually all areas of the law.'' Secondary liability is universal because its logic is compelling. It does not absolve lawbreakers of guilt. But it recognizes that we are all human: We are all more likely to break the law if encouraged or ordered to do so. Secondary liability thus discourages lawlessness by punishing people who manipulate others into doing the ``dirty work'' of breaking the law. Secondary liability usually targets two types of persons: 1. those who induce others to break the law, and 2. those who control others who break the law. Though secondary liability is nearly ubiquitous, it has almost always remained as a judge-made, common-law doctrine--and for a good reason. Secondary liability prevents the use of indirect means to achieve illegal ends. Consequently, the scope of secondary liability must be flexible--otherwise, it would just instruct wrong-doers on how to legally encourage or manipulate others into breaking the law. The common-law judicial process is ideally suited to evolve flexible secondary-liability rules from the results of many individual cases. As a result, Congress rarely codifies secondary liability. It has codified secondary liability to narrow it, as in the Patent Act. Congress has codified secondary liability in the Criminal Code to ensure that the narrow construction given criminal statutes would not foreclose secondary liability. In the Digital Millennium Copyright Act, Congress codified a complex balance between opposed interests that expanded one type of secondary liability and narrowed another. Congress has always assumed that infringers could readily induce consumers to accept infringing copies of works. It thus created ``a potent arsenal of remedies against an infringer . . . .'' But secondary liability often arises if a third party can be ordered or induced to make the infringing copies. Consequently, only after copying devices became available to people who might be induced to infringe did questions about secondary liability for infringement become pressing. In 1984, these questions reached the Supreme Court in Sony Corp. v. Universal City Studios, Inc. Sony held that the makers of the Betamax VCR could not be held secondarily liable in a civil suit brought by copyright holders--even though some consumers would use VCRs to make infringing copies of copyrighted TV broadcasts. Sony also created a broader limitation on secondary liability by importing a limitation that that Congress had codified only in the Patent Act; this was the substantial-noninfringing-use rule, also called the ``staple article of commerce'' doctrine. Sony intended this rule to strike, as between creators of works and copying equipment, the same ``balance'' that it had struck under the Patent Act between the rights of patent holder and makers of staple products. Under the Patent Act, the substantial-noninfringing-use rule bars secondary liability for selling a ``staple'' product that has a ``substantial noninfringing use''--even if that staple could also be used as a component in an infringing copy of a patented invention. This rule protects makers of staples without changing the nature of secondary liability. In particular, it does not immunize bad actors who intend to distribute ``patent-infringement kits.'' Even in the rare case of a novel invention that consists only of ``staple'' components, an ``infringement kit'' must bundle components and include assembly instructions. Neither the bundle nor the instructions will likely have a ``substantial noninfringing use.'' Sony intended this rule to strike the same admirable ``balance'' under the Copyright Act. Unfortunately, Sony also proposed that if this rule proved problematic, Congress should alter it on a technology-by- technology basis. This proposal was flawed: In 1976, Congress redrafted the Copyright Act to avoid the need to re-adjust copyrights on a technology-by-technology basis because legislation could no longer keep pace with technological change. Returning to this impractical technology-based approach would create an endless procession of ``tech- mandate'' laws that discriminate between technologies Congress deems ``good'' or ``bad.'' But technologies are rarely inherently either ``good'' or ``bad.'' Most can be used for either purpose; the effect depends on details of implementation impossible to capture--or predict--in prospective legislation. Of course, the dysfunctional corrective mechanism that Sony proposed would have become problematic only if the Sony limitation was misunderstood or misapplied by lower courts. Unfortunately, that has now happened. In cases like Napster and Grokster, lower courts misapplied the substantial-non-infringing-use limitation. These courts forgot about ``balance'' and held that this limitation radically alters secondary liability. In effect, these cases retained secondary liability's control prong but collapsed its inducement prong. The results of these cases prove this point: Napster imposed liability upon a distributor of copying devices who controlled infringing users; Grokster did not impose liability upon distributors who appeared to induce and profit from users' infringement. A secondary-liability rule that punishes control and immunizes inducement is a public policy disaster. It seems to permit the distribution of ``piracy machines'' designed to make infringement easy, tempting, and automatic. Even Harvard's Berkman Center for Internet and society suggests that this is happening. The Center warns that ``it can be extremely difficult for a non-expert computer user to shut down'' the viral redistribution that can otherwise automatically make the user an international distributor of infringing works. The Center notes that the ``complexity of KaZaA's installation and disabling functions'' may leave many users unaware that they have become a contributor to global, for-profit copyright piracy. Unfortunately, ``piracy machines'' designed to mislead their users are just one of the perverse effects of a secondary liability rule that punishes control and immunizes inducement. Perhaps the least perverse of these effects has been years of conflict between the content and technology industries. Content creators sought the tech-mandate ``corrections'' that Sony proposed. Technology industries opposed such laws because they too easily foreclose innocent or unforeseen applications. P2P software illustrates the problem: Today, most P2P software functions like Earthstation 5's ``piracy machine.'' Yet all agree that non-piracy-adapted implementations of P2P could have legitimate and beneficial uses. A rule that punishes only control also produces absurd results. Secondary liability should focus on intent to use indirect means to achieve illegal ends. A rule that punishes only control degenerates into inane debate about which indirect means was used. Thus Napster and Grokster are regulated differently--though they function similarly from the perspective of the user, the distributor, or the copyright holder. A rule that punishes only control also acts as a ``tech-mandate'' law: It mandates the use of technologies that avoid ``control''-- regardless of whether they are suited for a particular task. Napster was punished for processing search requests efficiently on a centralized search index that it controlled. Grokster escaped by processing search requests less efficiently on a decentralized search index that it did not control. Rewarding inefficiency makes little sense. A secondary-liability rule that punishes only control also punishes consumers: It encourages designers to avoid ``control'' by shifting risks onto consumers. For example, Napster incurred billion-dollar liability because it controlled computers housing a search index that located infringing files. Programs like Kazaa avoid Napster's ``control'' by moving their search indices onto computers owned by unsuspecting consumers. Consumers were never warned about the risks of housing these indices. As a result, many consumers, universities, and businesses now control computers that house ``mini-Napsters''--parts of a search index much like the one that destroyed Napster. These indices could still impose devastating liability upon anyone who ``controls'' a computer housing them. A secondary-liability rule that punishes only control thus rewards Kazaa for shifting huge risks onto unsuspecting consumers, universities and businesses. And search indices are just one of the risks that designers of P2P software seem to impose upon their young users to avoid control. For example, the designers of most filesharing software choose to lack the ability to remove or block access to files known to contain viruses, child pornography or pornography mislabeled to be appealing to children. This ability could create ``control'' and trigger liability. Aiding distributors of viruses and pornography may be just an unfortunate side effect of avoiding control while inducing infringement. A secondary-liability rule that immunizes inducement also encourages attempts to conceal risks from consumers: It is easier to induce people to take risks if they are unsure whether they are incurring a risk or its severity. The interfaces of most P2P software provide no warnings about the severe consequences of succumbing to the constant temptation of infringement. Another risk to users of P2P software arises when pornography combines with the ``viral redistribution'' that thwarts removal of infringing copies of works. Most filesharing networks are awash in pornography, much of it mislabeled, obscene, illegal child pornography, or harmful to minors. Anyone risks criminal prosecution if they distribute pornography accessible to minors over these child-dominated networks. As a result, one P2P distributor who does distribute ``adult'' content demands that it be protected by access controls. But every adult who uses this distributor's software as intended to download one of millions of unprotected pornographic files automatically makes that pornography available for re-distribution to millions of children. This distributor has sat silently--knowing that its software exposes millions of its users to risks of criminal prosecution that the distributor cannot be paid to endure. Perhaps the worst effect of punishing control and rewarding inducement is that it achieves precisely what Sony sought to avoid: It leaves copyright holders with an enforcement remedy that is ``merely symbolic'': It seems real, but it is illusory. In theory, a rule that immunizes inducement still permits enforcement against those induced to infringe. At first, this remedy seems viable because copyrights have traditionally been enforced in lawsuits against direct infringers who actually make infringing copies of works. But a fallacy lurks here: The ``direct infringers'' at issue are not the traditional targets for copyright enforcement. In fact, they are children and consumers: They are the hundreds of millions of Americans--toddlers to seniors--who use and enjoy the creative works that copyrights have helped create. There is no precedent for shifting copyright enforcement toward the end- users of works. For nearly 200 years, copyright law has been nearly invisible to the millions who used and enjoyed creative works. Copyright law was invisible to consumers because the law gave creators and distributors mutual incentives to negotiate the agreements that ensured that works reached consumers in forms that were safe to use in foreseeable ways. Now, those incentives are collapsing. As a result, artists must now waive their rights or sue consumers--their fans. Worse yet, artists must sue their fans for the sin of misusing devices designed to be easy and tempting to misuse. That is unfair: When inducement is the disease, infringement can be seen as just a symptom. Yet artists must ignore inducers who profit by chanting, ``Hey, kids, infringement is cool, and we will help you get away with it.'' Instead, artists can only sue kids who succumb to this temptation. They must leave Fagin to his work--and sue Oliver Twist. This sue-Oliver ``remedy'' is a debacle. For example, immunizing inducement ensures that artists will have to sue their fans: Inducers will have both the incentive and the means to thwart less extreme measures, like educational campaigns. For example, RIAA tried to avoid lawsuits against filesharers by sending educational instant messages to infringers. Kazaa, for ``privacy'' reasons, disabled instant messaging by default in the next version of its software. Lawsuits then followed. And imagine the poor parent who tries to tell a teenager that free downloading of copyrighted music is illegal. The teenager, confused because ``everyone is doing it,'' consults a leading technology-news site promising a ``trusted source of information for millions of technology consumers.'' There, the teenager finds a P2P distributor promoting ``Morpheus 4.0, the only American filesharing software ruled legal by a U.S. federal court.'' This statement is false: Grokster did not rule Morpheus ``legal''; in fact, the case only confirmed that downloading copyrighted works is illegal. Below this misinformation, the teenager will find an independent editorial review rating Morpheus 4.0 as a ``Recommended'' download and ``an excellent choice'' for those seeking ``the latest and greatest.'' Who will the teenager believe? Worse yet, if artists must sue only the induced, they just feed the contempt for copyrights that inducers breed. Inducers know that people induced to break a law become that law's enemies: Once you break a law, you must either admit wrongdoing or rationalize your conduct. Rationalization is often so easy. You can blame the law: Copyright is a stupid law needlessly enshrined in the Constitution by naives like James Madison. You can blame the victim: Some rock stars still make money; I do not like the ``business model'' of the record labels. You can blame the randomness of enforcement: Everyone else was doing it, so why not me? Anyone who has talked to young people about filesharing has heard such rationalizations time and again. And forcing artists to ignore inducers and sue the induced locks artists into a war of attrition that they are unlikely to win. If you imagine inducement as a bush, this ``remedy'' forces artists to spend their money to sever each leaf--while the inducer makes money by watering the root. Artists may not be able to sustain this unending battle. This may let inducers attempt an extortionate form of ``outsourcing.'' Inducers can increase or decrease their devices propensity to encourage piracy. Inducers can thus tell American artists that if the artists pay the inducers to become licensed distributors of their works, perhaps fewer bad things will happen. Implicitly, if artists do not pay, perhaps more bad things will happen. Were artists to succumb to such tactics, jobs and revenues created by the demand for American creative works would go overseas to some unsavory locales. Worst of all, inducers will inevitably target children. Children would be easily induced to violate complex laws like the Copyright Act. Any child is a terrible enforcement target. And because most adults never induce children to break laws, children induced to infringe copyrights would not even be ``bad kids.'' Indeed, they would probably be smart, mostly law-abiding young people with bright futures. Innocent, mostly law-abiding children make the worst enforcement targets--and thus the best ``human shields'' to protect an inducer's business model. This threat to children is real. Today, artists are suing high-volume filesharers who cannot be identified until late in the process. One filesharer sued for violating federal law over 800 times turned out to be a 12-year-old female honor student. This otherwise law-abiding young girl and her family then faced ruin by the girl's favorite artists. The public knew that something was wrong, and it was outraged. So the people who gave that girl an easily misused toy--and profited from her misuse of it--exploited public outrage with crocodile tears about the tactics of ``Big Music.'' And then, I imagine, they laughed all the way to the bank. The Supreme Court could not have intended to force artists to sue children in order to reduce the profits that adults can derive by encouraging children to break the law. No one would intend that. Yet it seems to be happening. These are the inevitable results of a secondary-liability rule that immunizes inducement. This ``rule'' has created the largest global piracy rings in history. These rings now create billions of infringing copies of works, and reap millions in profits for leaders who insulate themselves from direct involvement in crime by inducing children and students to ``do the dirty work'' of committing illegal or criminal acts. These rings then thwart deterrence and condemn attempts to enforce the law. These rings may now use profits derived from rampant criminality to extort their way into the legal Internet distribution market--a market critical to the future of our artists and children. This must stop--and stop now. Artists have tried: They targeted for- profit inducers. But artists were thwarted by a court ruling that held, in effect, that although artists can sue exploited children and families into bankruptcy, courts need ``additional legislative guidance'' to decide whether artists can, instead, sue the corporations that profit by inducing children to break the law. I find this assertion wholly inconsistent with the intent of both Congress and the Supreme Court. But until this fundamentally flawed ruling is overruled by legislation or higher courts, artists cannot hold inducers liable for their actions. Fortunately, Congress has charged the Department of Justice to enforce the Criminal Code. In the Criminal Code, Congress made it a Federal crime to willfully infringe copyrights or to distribute obscene pornography or child pornography. Congress also made it a crime to induce anyone--child or adult--to commit any Federal crime. Indeed, Congress codified many forms of criminal secondary liability in the Criminal Code. I have already quoted its first sentence. Here is its second: ``Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.'' One court has said that this ensures that ``[a] crime may be performed through an innocent dupe, with the essential element of criminal intent residing in another person.'' Not coincidentally, some Federal prosecutors worry that P2P software makes infringement so tempting, easy and automatic that many of its users will lack criminal intent. Perhaps--but their relative innocence will not protect their inducers. The Criminal Code also codifies other forms of secondary liability, like this one: If two or more persons conspire to injure, oppress, threaten any person in any State . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or the laws of the United States, . . . [t]hey shall be fined under this title or imprisoned not more than ten years, or both. . . . These examples of laws imposing secondary criminal liability have something in common: Congress codified no exceptions for ``substantial non-criminal uses.'' The message is clear: Those who induce others to commit crimes cannot avoid prison by showing that some of them resisted. I will work with my colleagues in Congress to ensure that the Department of Justice enforces the Federal laws that prevent anyone from inducing violations of any Federal law by our citizens, our students, or our children. Congress, too, must do its part by enacting the Inducing Infringement of Copyrights Act, S. 2560. This bill will protect American artists, children and taxpayers by restoring the privately funded civil remedy crippled by the Grokster ruling. Congress must act: A Federal court has held that artists can only enforce their rights by suing exploited children and students pending ``additional legislative guidance'' about whether artists can, instead, sue the corporations that profit by inducing children to break laws and commit crimes. Silence could be misinterpreted as support for those who profit by corrupting and endangering others. This bill will restore the tried, privately funded civil enforcement actions long used to enforce copyrights. This bill will also preserve the Sony ruling without reversing, abrogating or limiting it. The Inducement Act will simply import and adapt the Patent Act's concept of ``active inducement'' in order to cover cases of intentional inducement that were explicitly not at issue in Sony. The Inducement Act also preserves the Section 512 safe harbors for Internet service providers. The bill also contains a savings clause to ensure that it provides the ``guidance'' courts have requested--not an iron-clad rule of decision for all possible future cases. This flexibility is critical because just as infringement cases are fact specific, so should inducement cases center on the facts of a given case, with courts endowed with the flexibility to impose just results. This bill does not purport to resolve or affect existing disagreements about when copies made and used within an individual's home environment are permissible and when they are infringing. Rather, this bill is about the intentional inducement of global distribution of billions of infringing copies of works at the prodding and instigation of sophisticated corporations that appear to want to profit from piracy, know better than to break the law themselves, and try to shield themselves from secondary liability by inducing others to infringe and then disclaiming control over those individuals. I also want to thank everyone who has worked with us to craft a bill that addresses this serious threat to children and copyrights without unduly burdening companies that engage in lawful commerce in the wide range of devices and programs that can copy digital files. As Sony illustrates, clear knowledge that a copying device can be used to infringe does not provide evidence of intent to induce infringement. It was critical to find a way to narrowly identify the rare bad actors without implicating the vast majority of companies that serve both consumers and copyright-holders by providing digital copying devices-- even though these devices, like all devices, can be misused for unlawful purposes. In particular, I would like to thank the Business Software Alliance for its invaluable assistance in crafting a bill that protects existing legitimate technologies and future innovation in all technologies--including peer-to-peer networking. Senator Leahy and I look forward to working with all affected parties to enact this bill and restore the balance and private enforcement that Sony envisioned. But until Congress can enact the Inducing Infringement of Copyrights Act, the duty and authority to stop inducement that targets children and students resides in the Department of Justice that Congress has charged to protect artists, commerce, citizens and children. The Department must act now to clarify some simple facts: America has never legalized the ``business model'' of Fagin and Bill Sykes. Modern ChildCatchers cannot lawfully profit by luring children into crime with false promises of ``free music.'' Mr. President, I urge all of my colleagues to support S. 2560, the Inducing Infringement of Copyrights Act. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Then why do you not withdraw the amendment.

Mr. HATCH. Those are broad categories.

Mr. HATCH. I have been enjoying listening to the distinguished Senator. Let me ask this: Would the Senator be willing to resolve this problem by working with Senator Harkin and me to come up with a broad- based law that handles the adverse events reporting matter? Because my objection is that this is a helter-skelter approach to doing it, that will not solve the problems that the distinguished Senator thinks exist. I would be willing to work with the Senator rather than do this in this fashion on this particular bill, because I am not against adverse event reporting. I am against premarket approval, which is what the Senator seems to be arguing for, which would price vitamins, minerals, and other products off the charts so that the average person, the 150 million people who use them for their health benefit, including, I am sure, the distinguished Senator and myself, would not be able to afford them. I think it is going to take some very careful workmanship, working with the HELP Committee and with other Senators and Members of the House, to do an appropriate adverse events reporting enactment or statute that makes sense rather than do this on an ad hoc basis without defining how it is done, defining what adverse event reporting is, how they report, what they report on, and what is meaningful. I would be more than happy to work with my friend. I am sure I can speak for Senator Harkin as well. Our goal is not to allow companies that are not doing appropriate dietary supplements to be in business. If the Senator would withdraw his amendment, I am willing to work very carefully with him in good faith and work hard to try to resolve this problem, because I think the Senator also would--and I would ask him if he would know this as well--know that there are people in this world who do not like anybody and there could be a lot of phony adverse event reporting. The Senator uses the term ``serious.'' I am not against having serious adverse event reporting but what the Senator is asking for here is not definitive. It would not be accurate. It could be interpreted to place severe burdens on the whole dietary supplement industry, which has been a very health-promoting industry over the years and which is one of the great industries of our country. Those who are the top people in the industry want the industry to be totally honest in its approach toward everything that is manufactured as a dietary supplement. Certainly I do and certainly Senator Harkin does, and I acknowledge that the distinguished Senator from Illinois does. I would be happy to work with the Senator. I do not think this is the way to do it. In fact, I know it is not the way to do it. All we are going to do is get in big arguments without getting anything done.

Mr. HATCH. I thank my colleague for his statement about this matter. We worked very hard on the Dietary Supplement Health and Education Act back in 1994. It has served this country very well. There are now almost 150 million Americans who, daily, take dietary supplements much to the betterment of their health. Amendment No. 3225 offered by our colleague from Illinois, Mr. Durbin, is a solution in search of a problem. It is neither wise nor necessary. The Harkin-Hatch substitute should be approved in the alternative. The Durbin amendment is yet again another attack on dietary supplements and it should be rejected. Instead, I ask colleagues to vote in favor of the second-degree amendment Senator Harkin and I have drafted, an amendment which will put us firmly on record in favor of enforcing the law we passed--not once but twice--by unanimous consent. This law gives FDA all the enforcement tools it needs to act against problem supplements, a fact that has been confirmed by the FDA Commissioner in the Clinton administration, Dr. Jane Henney, by the first FDA Commissioner in the Bush administration, Dr. Mark McClellan, and by today's head of the FDA, Dr. Lester Crawford. The law I reference, the Dietary Supplement Health and Education Act, provides all the tools we need to ensure consumer access to safe dietary supplements and information about their benefits and potential problems. But for that consumer protection to be a reality, the law must be implemented through regulation and enforced in the courts, and Congress must provide the resources for the agency to do its job. There is no question that FDA has been slow to act on problem supplements. But it is coming around and is doing a much more vigorous job, taking many more enforcement actions against illegally marketed products in recent months. By the way, they did not have this power before the DSHEA. I believe this new emphasis on enforcement, albeit under our prodding, is due to both the leadership of Dr. McClellan, who has committed to me and Senator Harkin that he would compel the agency to implement DSHEA more vigorously, and to our colleagues, Chairman Bob Bennett, before him Chairman Cochran, and Ranking Minority Member Herb Kohl, who have acted to put more funding in the hands of the FDA to enforce the dietary supplement law. By and large, dietary supplements--vitamins, minerals, herbs and amino acids--are used safely by hundreds of millions of Americans each year in order to help them lead healthy lifestyles. Critics of the industry point to the very few supplements that raise safety or labeling concerns, concerns that I firmly believe the law is adequate to address. I hope it comes as no surprise to Senators that Senator Harkin and I have been as critical as Senator Durbin about the agency's lack of action in enforcing against problem supplements. We have pressed FDA to remove from the market products which are harming young athletes, products such as androstenedione or ``andro.'' Earlier this year, under the leadership of Dr. McClellan and HHS Secretary Tommy Thompson, andro was removed from the market. I was there. I was there at the announcement. I was one who backed that. It can no longer masquerade as a dietary supplement. We have also been concerned about ephedra. I have said for a number of years that if the agency believes this product is unsafe, it should remove it from the market under the abundant authority we provided in DSHEA, the Dietary Supplement Health and Education Act. This includes seizure, fines, and injunctive relief against misbranded or adulterated dietary supplements. Again, although belatedly, the agency has acted against ephedra products, although there is litigation over this because there is some body of evidence that indicates properly used ephedra can be beneficial in weight reduction and perhaps in other areas as well. But we backed whatever the FDA did, we, the authors of the dietary supplement act. As my colleagues are aware, I am one of the original authors of the Dietary Supplement Health and Education Act of 1994. I would like to take a few minutes to talk about the history of DSHEA, which will shed some light on why the Harkin-Hatch language is preferable to the Durbin amendment. This may be helpful for some of our colleagues who were not here when President Clinton signed DSHEA into law. It may also help reassure those who voted for the measure that it is working. At the outset, it is important for Senators to realize the Dietary Supplement Health and Education Act established a rational, regulatory framework that provides the Food and Drug Administration with the tools it needs to assure the safety of products consumed by the American public, and to provide consumers with access to safe products and information about those products. Indeed, the DSHEA law allows the more than 150 million Americans who regularly consume dietary supplements to have access to products in order to achieve the health benefits they desire. DSHEA enables Americans to buy relatively inexpensive dietary supplements, including vitamins and minerals, which may achieve a wide array of health improvements. The passage of the Dietary Supplement Health and Education Act followed decades of Food and Drug Administration antipathy toward dietary supplement products. This animosity, well documented by hearings in the Labor and Human Resources Committee and by the committee's 1993 report, and the lack of clear regulatory structure for supplements, was the basis for our Senate votes. That is also why a majority of the Senate--two-thirds of our membership--cosponsored the bill. That also helps explain why the bill passed without one dissenting vote in the Senate. As I believe Senator Harkin has noted, there is a great need to set the record straight. Dietary supplements are regulated by the Food and Drug Administration. In fact, the FDA has had this authority for a century. What we did in 1994 was to clarify and strengthen FDA's authority. Thus, media reports that supplements are ``unregulated'' are patently false. The basic structure of DSHEA allows all products marketed as dietary supplements at the time the bill was enacted to continue to be marketed as dietary supplements unless they are determined to be unsafe or otherwise violate prohibitions in the Federal Food, Drug, and Cosmetic Act with respect to labeling, purity, and manufacturing. This so-called grandfather provision was enacted into law. In addition, for new dietary ingredients, those not marketed in the United States before the law was enacted, manufacturers must provide evidence of safety to the FDA 75 days in advance of marketing. Again, new dietary ingredients must also comply with the Food, Drug, and Cosmetic Act requirements for safety, purity, and labeling. Responsible companies have followed the rules. Over 150 times they have notified the FDA, as the law requires. About half of those were rejected because there were safety concerns or because the products were not appropriately marketed as dietary supplements. The Dietary Supplement Health and Education Act works. The law specifically prohibits supplements that present ``significant or unreasonable risk of illness or injury under . . . conditions of use recommended or suggested in labeling.'' A supplement not meeting that requirement is deemed adulterated, and, thus, illegal. This requirement does not require the agency to prove harm to anyone, rather, to make a determination that a significant or unreasonable risk of illness or injury is present. In addition, the law prohibits any poisonous or deleterious substances in dietary supplements. A supplement is illegal if it is ``unfit for food,'' a very broad authority which allows the agency to act against a product that is not fit for human consumption, and an authority that was not there before DSHEA. Under DSHEA, a dietary supplement cannot claim that it will diagnose, cure, mitigate, treat, or prevent a disease. Any labeling to that effect immediately makes the product subject to regulation as a drug and, thus, illegally marketed as a supplement. Under DSHEA, the labeling for a product must be truthful and informative. If the labeling is ``false or misleading'' in any way, the product is misbranded, and, thus, illegal. Senators should be aware there are substantial sanctions for violations of these requirements, sanctions that did not exist before. Violations subject the product to recall, seizure, condemnation, and destruction. Persons committing the violations could be subject to both injunction and criminal prosecution. So the Dietary Supplement Health and Education Act has teeth, teeth that were not there before. The hallmark of DSHEA is the balance between allowing for beneficial dietary supplements while at the same time maintaining regulatory authority for FDA to remove any supplements that are detrimental to health. Any objective analysis of the law must conclude that it has produced public health benefits of enormous dimensions. The growth in the dietary supplement market since enactment of DSHEA is astounding. Today, there are hundreds of thousands of safe, well- labeled products on the market offering consumers who want to maintain or improve their health a panoply of options. Many of these products are manufactured in my own home State of Utah. There also is much greater information available to consumers about these products as a result of DSHEA. Indeed, the provisions of the law clarifying what information could be provided with a supplement are nothing but consumer friendly. Before the law, it was FDA's official position that it was illegal for a store owner to distribute a Centers for Disease Control, or CDC, publication touting the benefits of folic acid use for pregnant mothers. That is interesting because CDC knew that if mothers would take 400 micrograms of folic acid--I think it is micrograms or milligrams of folic acid--that would help to prevent neurotube defects. Even though they knew that, FDA would not allow that claim to be made, and about 1,250 children a year were born with spina bifida as a result that could have been avoided. We have come a long way since then. Congress wisely recognized that had to change, and public health authorities believe hundreds of babies have been born without spina bifida because of the now wide use of folic acid--something we knew 11 years before DSHEA of which the FDA was aware but would not allow pregnant women to understand. Now, are there problems with DSHEA? If there are problems, I believe they lie largely in the fact it has not been enforced vigorously. We certainly have given FDA the power to enforce the law. Both Senator Harkin and I have complained that up until recently they had not been enforcing the law, almost sitting aside waiting for something to occur that was out of the ordinary. I have to say, since Dr. McClellan took over, and now Dr. Crawford, I believe the law is being enforced, and we have seen some very strong evidence of that. As many of our colleagues, I have been frustrated with the agency's slowness in implementing certain provisions. For example, the law authorized FDA to develop good manufacturing practice guidelines, or GMPs, specific to supplements. The agency failed to act on this provision until 1999--5 years later--only submitting a proposal to the Office of Management and Budget in the last month of the Clinton administration. Delays and rewrites occurred for 2 years. Finally, the proposal was published earlier this year--almost 10 years after we gave them the power to do this. Why are GMPs, good manufacturing practices, so important? They are the standards FDA inspects against to make sure the products are manufactured with purity and sanitation, to make sure they are properly labeled. So these are very important rules to have on the books, and this delay has been very troubling, especially to us as authors of the bill giving them the authority to do this. But that has changed, as I cited earlier, noting the FDA's actions against androstenedione and ephedra, among other products. We have a carefully crafted safety standard in the law, a standard that was agreed to by then-Chairmen Kennedy, Dingell, and Waxman. When the FDA took action against ephedra-containing products earlier this year, it was the first time in the 10-year history of the law that the safety standard was invoked, even though we have been pushing to have it invoked. It is hard to maintain a law is not working if its powers are not used. I am heartened that the FDA acted to remove andro from the market earlier this year, thus helping to protect young athletes from its numerous adverse health effects, but it should not have taken that long for the agency to act. We do have tools within the law that give the FDA the authority to act against problem supplements, as I have outlined. I might add that to assure Chairman Dingell, we also gave the FDA a very broad safety authority, a tool so broad that I was reluctant to provide it to the FDA given the agency's animosity against supplements. That authority, the ability of the Department of Health and Human Services to declare a product an ``imminent hazard'' and remove it from the market, no questions asked, has never been invoked either. Some have alleged it has not been invoked because it is ill-defined. On the contrary, it was deliberately crafted to be defined by HHS to meet any safety concerns the agency may raise. So here is another powerful tool the agency can use against a product if it has safety concerns. Finally, with regard to the safety profile of so-called stimulants, I am aware this is a special concern of Senator Durbin and Senator Kennedy. Under the law, as it currently exists, as we enacted it, a dietary supplement--be it what Senator Durbin considers to be a stimulant or any other product--must be safe. If it is not, the FDA can immediately act against it under the law. It is hard to segregate one type of product or define it, an inherent problem in trying to tailor the law to address stimulants only. Should we include caffeine? Everybody knows that is a stimulant. What about colas? What about chocolate? Why shouldn't they be included? What about over-the-counter stimulant products? Generally, there are no requirements for adverse events reporting for them either. Why the differentiation? In 2002, estimates are that 182 persons died from taking acetaminophen as directed. Yet this is a broadly sold drug, over-the- counter drug. Why should there not be AER requirements for such over- the-counter products as well, or maybe that is where we are headed with this type of an amendment. Perhaps we should look at the very notion that an AER system would prevent death or injury. AERs tell us that 55 men died in the first few months Viagra was marketed. What was the response? The FDA did not move to pull the product from the market. Instead it moved to include warnings for those men who may have been at risk due to cardiac disease, which is what you would expect. Believe it or not, Congress didn't have to take any action. It is the same situation here. It is important for our colleagues to understand this background about the law as it is useful for evaluating the Durbin amendment, which I hope our colleagues on the Senate floor will vote down. I hope it will help my colleagues understand why voting in favor of the Durbin amendment at this time is very premature. This amendment would amend the DOD reauthorization bill to prohibit military installations from selling stimulant-containing dietary supplements unless the manufacturer agrees to mandatory reporting of any serious adverse events to the FDA related to the use of the product. It may surprise some to know that I am not opposed to better reporting of adverse events connected with supplements; nor, for that matter, am I opposed to better reporting of adverse events for over- the-counter drugs which many erroneously believe are generally subject to adverse event reporting or AERs, as this debate calls them. Indeed, Senator Harkin and I have been working to improve adverse event reporting for dietary supplements and over-the-counter drugs. Funding has been included in a number of appropriations laws to give FDA resources for adverse event reporting for supplements. If there is a serious problem with an aspirin, a vitamin, an herb, or a cold remedy, should not our policy be the same, that authorities are alerted to that serious problem? But the Durbin amendment is not the way to go about this. First, it is an extraneous amendment to the Department of Defense bill, especially at a time when our Nation is at war. This is the wrong time and the wrong place for this discussion. I wonder if the families of our service members are bewildered watching us spend so much time talking about what products they can buy at the commissary, especially when the DOD already has the authority to limit any sales. If there is an issue with a dietary supplement or supplements--and in this case, I do not believe there is--it should not be considered only in the context of military installations but, rather, as a matter of overall food and drug policy. Indeed, it is inconsistent with standing food and drug law to establish a policy governing a regulated product sold throughout the Nation and apply that policy only to certain facilities such as military installations. Surveys have shown that 70 to 90 percent of soldiers are users of dietary supplements. Military personnel and their families, as all other Americans, benefit from the protective effects of supplements and from their positive health benefits. What is the rationale for singling them out for different treatment? I find this particularly peculiar given that the Department of Defense has the ability to decide what is marketed on military bases. In fact, DOD removed ephedra from commissaries long before the FDA banned the product for general use. If the Department of Defense perceives a problem with these supplements, it can preclude their sale to the military, as the DOD has already done with regard to ephedra. But beyond that, I am not aware of any reported problem relating to the sale of ``stimulant'' dietary supplements on military bases and, thus, see no reason to place the restrictions contained in the Durbin amendment. Second, in a similar vein, in view of the FDA's too-long, ridiculously long lag time in coming to grips with the regulation of ephedra, which I can only assume gave rise to this amendment, I recognize that the Durbin amendment has a certain curbside appeal. I urge my colleagues to look beyond that. As a matter of food and drug law, there is no basis for separating one type of dietary supplement from another. I maintain that if there are serious adverse events associated with any legally sold dietary supplement, then there should be a better reporting system so FDA can take appropriate action. I remain ready and willing to work with any or all of my colleagues to create such an adverse event reporting system. Third, as a matter of food and drug law, it does not make sense to have what amount to interparty agreements between a manufacturer and a defense installation for an FDA-regulated product to be marketed. We have a long history of tradition in this country, grounded in the Federal Food, Drug, and Cosmetic Act, that policies governing FDA- regulated products are national in nature, applying across points of sale, across manufacturers, and across the various States. Let us say for the sake of argument that a certain dietary supplement is found to cause respiratory problems. Should the FDA only become aware of the problems when the product has been sold in a commissary? As a matter of public health, wouldn't we want to know if that is the case wherever the product is sold and in whatever store and in whatever State so appropriate public health safety measures can be considered? Fourth, the timing of this amendment is premature. It has not been studied by the committee of jurisdiction, nor has the Food and Drug Administration, the administering agency, taken a position. Surely they should have a hand in the development of any such policy, as I believe should Senator Harkin and I as the prime Senate authors of the 1994 law governing regulation of supplements. I am deeply troubled that the Senate HELP Committee, which has jurisdiction over the Federal Food, Drug, and Cosmetic Act, has not even been able to consider this proposal. Since this is such an important matter, I believe it must be considered by the committee of jurisdiction before it is considered by the full Senate. That is the way we usually operate in these very serious Food, Drug, and Cosmetic Act and food supplement areas. I have learned after many years in the Senate that the most successful legislative proposals are those that are properly considered and debated by and within the committees of jurisdiction. I would like to see consultation with the HELP Committee, with the Food and Drug Administration, and other scientific organizations, with appropriate input from the dietary supplement industry before any proposal is voted upon by the full Senate. That would be the fair and reasonable way to go about this, not just some off-the-cuff amendment that specializes in a particular area--in this case the military commissaries--that has no real backing to it other than that some people think it might be helpful. The final reason this amendment is unnecessary is the FDA is already investigating products the Senator from Illinois terms ``stimulants.'' The FDA is well aware of issues associated with products Senator Durbin refers to as stimulants, although there is no such category in food and drug law. FDA is looking closely at products such as ephedra, which it recently banned, and ephedra substitutes such as citrus aurantium or bitter orange. FDA and the National Institutes of Health are studying the safety of citrus aurantium. The proposed amendment singles out supplements that contain stimulants, including those that contain caffeine. As a point of fact, some military personnel are encouraged to use stimulants. Pilots use them on long flights. I submit that many service members use more caffeine through coffee, tea, and soft drinks such as Coca-Cola, Pepsi, Mountain Dew, and Dr. Pepper than they do in dietary supplements. For all of the concerns of the distinguished Senator from Illinois, I am not aware of many adverse reports that would come from their use, nor am I aware of real serious adverse reports that would come through the use of basic dietary supplements. But if they do, then the FDA should consider those. And they would be important. At least we would have a system that works. I could see groups in this society ginning up adverse event reports for no other reason than to damage some manufacturer. We want to prevent that. That is another reason why we want to look this over. I got an e-mail from a service member's father this morning about his son who is currently serving in Baghdad. His division commanders have now banned the consumption of Red Bull, the highly-caffeinated energy drink, after reports of several soldiers collapsing and perhaps dying while patrolling in 120-degree heat after consuming this drink. This shows the defects in the Durbin amendment--since it would not even address high levels of caffeine use--and the fact the system works, since military leaders are taking action to preclude unwise use of this product or any other product, for that matter. As many in this body are aware, Senator Durbin has a companion bill, S. 722, which proposes one way to set up an AER system for supplements. The Durbin bill, as with the present Durbin amendment, is very troubling. One huge concern I have with this bill is it could lead to premarket approval of so-called ``stimulants.'' For this body to impose a premarket approval system on dietary supplements would be a blunder of vast proportions. If my colleagues contemplate the matter, they will quickly realize it would not be practical for manufacturers to seek marketing approval of dietary supplements, most of which cannot be patented. How would a company underwrite the high costs of FDA approval, costs which can run into hundreds of millions of dollars in the case of pharmaceutical products? The answer is simple: Companies cannot sustain this cost and consumers will lose their ability to choose the dietary supplement products they will purchase. If the Members of the Senate and Congress want hundreds of thousands of letters and phone calls to come from the users of dietary supplements, if that is what it takes, we will accommodate them because the people out there know these products are helpful to them. They know they are more healthy because of them. They do not want the Senate telling them what to do. They would, I think, prefer the FDA to determine what is and what is not efficacious, only after there has been serious compliance with the Dietary Supplement Health and Education Act which gives FDA the authority to do some of the things that can be done to protect the public. A premarket approval requirement would be the death knell for the dietary supplement industry. That is one reason why we fought through the Dietary Supplement Health and Education Act. We fought it through because we knew it would kill this very important industry that 150 million people benefit from every day. Beyond that, there is no need for preapproval of dietary supplement products. Indeed, the grandfather provision in the law was suggested by House Democrats, who no doubt recognized the majority of supplement products on the market pose no safety concerns. That, coupled with strong enforcement authority for the FDA, gives consumers assurance that they are taking safe products. Back to the amendment at hand. It is obvious to me the target of this amendment is FDA regulation of certain stimulant-containing dietary supplements, not the health and readiness of our Armed Forces. Let me emphasize that the DOD reauthorization bill is the wrong vehicle to amend the Dietary Supplement Health and Education Act. This amendment will not--I repeat, will not--ensure the health and readiness of the members of the Armed Forces. For these reasons, I urge my colleagues to vote against the Durbin amendment. The Hatch-Harkin amendment is a much better alternative. It states the sense of the Congress that the FDA should make it a top priority to fully and effectively implement the Dietary Supplement Health and Education Act, including taking appropriate enforcement action against unsafe supplements. Our amendment urges the Department of Health and Human Services to work with outside scientific organizations and the industry, as appropriate, to develop a proposal for better adverse event reporting both for dietary supplements and for OTC products for the Congress to consider. Finally, our amendment restates the obvious: that adequate resources must be made available for the effective oversight of dietary supplements and sound, scientific research about their benefits and/or problems. On April 19, just 2 short months ago, Dr. Crawford, currently running FDA, outlined a science-based plan for dietary supplement enforcement. He said: FDA is absolutely committed to protecting consumers from misleading claims and unsafe products. He noted that in the past 6 months, the agency had inspected 180 domestic supplement manufacturers, sent 119 warning letters to distributors, refused entry to 1,171 foreign shipments of supplements, and seized or supervised voluntary destruction of almost $18 million worth of mislabeled or adulterated products. ``We will continue to aggressively enforce the DSHEA against unsafe and mislabeled products,'' the Acting FDA Commissioner said. Congress should support him in that effort, and this amendment does not constitute that type of support. That is the aim of the Hatch-Harkin amendment, and I ask our colleagues to join with us in supporting this measure. Millions of Americans enjoy the daily benefits of dietary supplements. Among them are military families. Let's not act precipitously. Let's not upset an agency that is finally starting to do its job and enforce the law we gave them 8 years ago giving them the powers to do the job. Let us adopt the Hatch-Harkin amendment and guarantee American consumers have continued access to the safe, beneficial products they want. I am proud of DSHEA. DSHEA has given FDA the authority it never had before. There is no excuse for FDA not to do the job. Since Dr. McClellan took over at FDA and now Dr. Crawford, they are doing the job. It took us almost 10 years to push them to do that, and now all of a sudden, they are doing a great job in this regard, and I do not want to undermine what they are doing. There is plenty of authority within the DSHEA law for them to do the job and do it right. Mr. President, I yield the floor.

Mr. HATCH. Will the Senator yield for a question?

Mr. HATCH. Is the Senator aware the pharmaceutical industry is willing to keep going because of the hoped-for benefits in the dietary supplement industry? There are 100,000 people a year who die from toxicity. Even in the cases the distinguished Senator has quoted, there is a real question whether the deaths occurred from dietary supplements or from other factors. I think it is very difficult. Naturally people want to blame it on dietary supplements, but we have had 100 years or more--actually centuries of dietary supplements without deaths. All of a sudden, every time somebody dies they blame it on a dietary supplement. We are a far cry from defining what it means to report adverse events. I would be willing to work with the Senator. I believe we could come up with something that really would work, that would be accepted by the industry and accepted by the FDA, and would give the FDA even more teeth than it has perhaps now, although we gave them plenty in DSHEA. I went over that in my remarks on the Senate floor, but I would be happy to do that.

Mr. HATCH. I do.

Mr. HATCH. If the Senator will withdraw his amendment, I will commit to do exactly that. What I do not want is a Dietary Supplement Health and Education Act adulterated with helter-skelter amendments that do not apply across the board. Frankly, I think the amendment of the distinguished Senator is in that nature, even though I know it is well meaning and sincere. But I am saying if you work together, we will do that.

Mr. HATCH. You will withdraw the amendment if I am willing to do that?

Mr. HATCH. As long as the industry is being consulted and is not just being pushed around. If the industry is consulted.

Mr. HATCH. I believe responsible people in the industry--and most all of them are--if they are consulted, I believe they can help us in this area. I believe we can do the consuming public a great service in coming up with an efficient, workable, well-thought-out adverse event reporting system that FDA would appreciate as well. Yes, I am willing to work with the distinguished Senator, and I am willing to work--I can't speak for Senator Biden, but I believe he would be willing to work to add that to the ban on steroid use.

Mr. HATCH. If we could get our leadership to do that on both sides, I would like nothing better than to pass that Hatch-Biden bill. I would like nothing better than for us to come up with an appropriate way of handling adverse event reporting that really makes sense, that helps the industry and yet makes sense for the consuming public as well, and to FDA. But it would have to have consultation with the industry as well.

Mr. HATCH. No problem.

Mr. HATCH. We will withdraw ours if the Senator withdraws his. Amendments Nos. 3463, 3462, and 3225 Withdrawn

Mr. HATCH. Under these circumstances I ask unanimous consent to withdraw my substitute amendment as part of that unanimous consent agreement, and you will withdraw the underlying amendment?

Mr. HATCH. All three amendments.

Mr. HATCH. Will the Senator yield for just a minute?

Mr. HATCH. I would like to thank my colleague from Illinois for his willingness to withdraw his amendments. I want to work very closely with him in resolving these problems we have been discussing on the Senate floor. I am grateful to do that, and I think it is important.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased today to speak in support of James Robart, who has been nominated to the U.S. District Court for the Western District of Washington. Mr. Robart has exceptional qualifications for the Federal bench. After graduating from Georgetown University Law Center in 1973 where he was the administrative editor of the Georgetown University Law Review, he joined the law firm of Lane, Powell, Moss & Miller, which is now known as Lane Powell Spears Lubersky LLP. Mr. Robart became a partner in that firm in 1980, and subsequently became the comanaging partner and later the sole managing partner--a position that he holds today. During his time at the firm, Mr. Robart has specialized in complex commercial litigation with an emphasis on class actions, securities, and employment law. He brings a wealth of trial experience to the Federal bench after trying in excess of 50 cases to verdict or judgment as sole or lead counsel, and he has been active in the representation of the disadvantaged through his work with Evergreen Legal Services and the independent representation of Southeast Asian refugees. Mr. Robart's impressive credentials are reflected in his unanimous American Bar Association rating of Well Qualified. I am confident that he will be a fine addition to the bench and urge my colleagues to join me in supporting his confirmation.

Mr. HATCH. Mr. President, this side is willing to yield all remaining time on all three judges.

Mr. HATCH. Mr. President, I ask for the yeas and nays.