Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I rise today to comment on the USA PATRIOT Improvement and Reauthorization Act conference report. I support the conference report and, in particular, the conference report's amendments to section 215, the FISA business records provision, because those amendments confirm that investigators may use section 215 to obtain records and other tangible items that are relevant to any authorized national security investigation other than a threat assessment. The conference report appropriately balances privacy concerns and national security needs by amending the method by which investigators can obtain relevant records but not changing or otherwise limiting the scope of records that can be obtained through a section 215 order. For example, where appropriate, investigators may still obtain sensitive records such as library or bookstore, medical, or tax return records, but they must obtain very high-level sign-off internally before asking the court to order those records' production. Similarly, the conference report imposes an obligation on the Attorney General to develop minimization guidelines for the retention and dissemination of U.S. person information obtained through a section 215 order, but leaves the Department with flexibility in obtaining the information in the first instance and in structuring those minimization procedures. My support for the conference report turns on my understanding that it codifies our intent not to limit the scope of items and records that can be obtained through section 215. This stands in contrast to the so- called ``three-part test'' that passed the Senate last year, which really did run the risk of limiting our investigators' ability to obtain records relevant to authorized national security investigations. The conference report is clear: we are continuing to provide our investigators with the tools they need. Along with two of my fellow conferees, Senators Roberts and Sessions, I sent a letter to Chairman Specter on the eve of the conference vigorously objecting to the Senate's proposed three- part test. As the three of us expressed in that letter, we believed that requiring use of the three-part test to show relevance would have been a serious mistake. I am pleased to see that the final conference report does not mandate the use of that test. I will have that letter added to the Record following my remarks. I support the conference report, including its amendments to section 206 of the USA PATRIOT Act, which authorizes ``roving'' wiretap orders under FISA because I believe that the amendments to section 206 do not hamper investigators' ability to use this critical tool. In this day and age of sophisticated terrorists and spies who are trained to thwart surveillance, allowing investigators to seek a wiretap that follows a specified target--rather than a particular cell phone--is critical. The conference report explicitly preserves this ability, while clarifying the level of detail necessary for investigators to obtain this type of wiretap. Similarly, I support the conference report's amendments to section 206 because they recognize that there may be some situations where it will not be practicable for investigators to return to court within 10 days of directing surveillance at a new phone or place. The conference report wisely affords the FISA Court judges discretion to extend the period of time investigators will have to keep the court apprised of how roving wiretaps are being used. I support the conference report, and I support the amendments set out in S. 2271, because I think they set out the proper standard for judicial review of nondisclosure orders accompanying section 215 FISA business records orders and national security letters. We all recognize the need for secrecy in national security investigations--both to avoid tipping off targets in a particular case, and to avoid giving our enemies a better picture of how we conduct our investigations. Our enemies are sophisticated and devote enormous time and energy to understanding how we operate, all in service of allowing their agents to evade our investigations. The conference report recognizes the need for secrecy when the Government obtains a section 215 order from a court or serves an NSL on a business. But it also responds to concerns raised that recipients should have an explicit right to judicial review of nondisclosure orders. The standard in the conference report is the appropriate one, both constitutionally and practically, as it recognizes that sensitive national security and diplomatic relations judgments are particularly within the Executive's expertise. The Constitution has vested these determinations with the Executive, and courts have long recognized that judges are ill-suited to be second-guessing the Executive's national security and diplomatic affairs judgments. Disclosures that seem innocuous to a judge who quite naturally must view those disclosures without being fully aware of the many other data points known to our enemies--may nonetheless be quite damaging. The conference report's standard is therefore the correct one. It will be the exceedingly rare case in which a judge will find, contrary to a certification by an executive branch official, that there is no reason to believe that the nondisclosure order should remain in place. It will be even rarer for a judge to find that one of the Senate-confirmed officials designated in the conference report has acted in bad faith. I could not have supported the conference report or the explicit judicial review of nondisclosure orders if I thought that they would give judges the power to second-guess the informed national security and diplomatic relations judgments of our high-level executive branch officials. The conference report makes clear that judges will not have such discretion, which is why I am voting for this report. Another provision in particular that I support is the new public reporting obligations for the FBI's use of national security letters. That reporting will allow Congress to better perform our oversight obligations without endangering national security. The reporting requirement is focused on what is the most relevant number to Congress and the public--the aggregate number of different U.S., persons about whom information is requested. The reporting requirement does not require the FBI to break down the aggregate numbers in its report by the different authorities that allowed the national security letters, which is critical to preventing our enemies from gaining too much information about the way we investigate threats to the national security. And the reporting obligation is limited to information about U.S. persons. I support this limited public reporting because I think it will provide valuable information for our public debate--but without revealing too much information about the FBI's use of this valuable tool and thus compromising its use. I ask unanimous consent that the November 3 letter to Chairman Specter be printed in the Record.

Mr. KYL. Mr. President, the hour has almost arrived. I understand that in a little less than 3 hours, we will finally be voting for the final time on the reauthorization of the PATRIOT Act. This is critical for the defense of our country, the security of our Nation. I am pleased we have the opportunity now to approve it, and I predict it will be approved overwhelmingly. The question is, What took us so long? We could have done this at least 2 weeks ago. Indeed, we could have done it 2 months ago. Such is the process in the Senate that sometimes the wheels grind slowly. The problem is the war on terror. Our enemy does not treat the war necessarily the same way some people in this country do. They are very flexible. They are very agile. They do not tell us what they are going to do in advance. Sometimes they are very patient and wait a long time to strike, and when they do strike, it can be with great speed and lethalness, which means that our ability to fight the terrorists has to be equally agile. Good intelligence has a short shelf life. Yet that is basically our main weapon in the war on terror. This is not a war we fight with planes, tanks, and ships, but with good intelligence to find out where the terrorists are, who they are, what they are up to, and, if we can, find out whether we are able to stop their terrorist attacks before they occur. That takes good intelligence. It takes agility to be able to get that intelligence, cooperate among the various law enforcement and intelligence agencies. Before September 11, several of us had provisions of law we believed were important to amend in our statutes to provide tools to fight terrorists. Little did we know how important those would soon become. Senator Feinstein and I have been ranking member and chairman of the Subcommittee on Terrorism, Technology and Homeland Security for many years, since I came to the Senate. We held a lot of hearings on the subject. We had a lot of ideas about what we wanted to propose. Shortly after September 11, a lot of these things made their way into the PATRIOT Act which we were able to approve. Some Members said the PATRIOT Act was approved hastily. Actually, a lot of the ideas of the PATRIOT Act had been around for some time, had a lot of debate and hearings, but there did not seem to be a reason to get them passed; that is, until September 11, and then, indeed, we did act quickly. But I submit there is a difference between acting hastily and acting quickly. Nevertheless, some of the provisions were sunsetted. Regarding things we did then and some subsequent amendments to statute, we wanted to take another look down the road to make sure we did not act too hastily. Our action today will make it clear that by reauthorizing these provisions, we intended them to be in effect. We know the terrorists have not stopped their war on terror, and therefore we dare not stop the tools to fight terrorism, many of which are embodied in the PATRIOT Act. So it is important to reauthorize these provisions and not have them expire or sunset. There is a certain amount of pride of authorship I confess to since a lot of the provisions we are reauthorizing today are provisions which I wrote or helped to write in coauthorship with some of my colleagues. Let me mention some of these because these are important, one of which has been known as or has come to be known as the Moussaoui fix, which is named after Zacarias Moussaoui, sometimes referred to as the 20th hijacker. In the 108th Congress, Senator Schumer and I introduced the Moussaoui fix, which allows the FBI to obtain FISA warrants to monitor and search suspected lone wolf terrorists such as Zacarias Moussaoui. Now, lone wolf terrorists exist because in today's world, you do not get a little card that says: I am a proud member of al-Qaida. It is a very loose-knit organization. Some have likened it to a franchise where all over the world there are little bands of people--cells--who would do harm to the West generally and the United States in particular and who share the same goals and ideals of al-Qaida, frequently have communication with members of al-Qaida, train in the same way, and conduct the same kinds of terrorist activities, sometimes in consultation or concert with al-Qaida. But it is not like a club, it is not like you are a member of the KGB of the Soviet Union, which is what the threat was when we wrote the FISA act. Because the FISA act refers to foreign intelligence organizations or terrorist organizations, we found that with people such as Zacarias Moussaoui, who we could not prove was a card-carrying member of any particular terrorist group but we figured he was a terrorist and up to no good, we did not have an ability under FISA to seize and search his computers even though we had the ability to arrest him. This was 2 weeks before September 11. Had we been able to get into the computer, we might well have discovered the information we later found that could have pointed us in the direction of an attack on September 11. Well, that is what the object of the Zacarias Moussaoui fix was: to enable us to add the lone wolf terrorist to the other situations in which a FISA warrant could be obtained. And it filled a gap in our laws that, as I said, might well have uncovered the September 11 conspiracy had it been in place at the time. It was reported out of a unanimous Judiciary Committee and passed out of the Senate 90 to 4 in 2003. In 2004, it was added to the Intelligence Reform and Terrorism Prevention Act, with the general PATRIOT Act sunset applied to it. Like the other PATRIOT provisions, the Moussaoui fix was set to expire at the end of last year. Today, we will extend the sunset on that critical provision of law for another 4 years. Another was the material support enhancements. In 2004, I introduced a bill that, among other things, clarified and expanded the statute prohibiting the giving of material support to a designated foreign terrorist organization. These changes helped address perceived ambiguities in the law that had led the Ninth Circuit Court of Appeals to strike down parts of it as unconstitutionally vague. The changes also expanded the law to bar giving any type of material aid whatsoever--including providing one's self--to a terrorist group. This legislative proposal also was enacted into law later that year as part of the intelligence reform bill, and also was subjected to a sunset. Again, today, with the PATRIOT Act reauthorization conference report, we repeal that sunset. We make the 2004 material support enhancements permanent features of our law, as they should be. Another part of the original PATRIOT Act I helped author was the so- called pen registers and trap-and-trace authority. Now, the authority for pen registers and trap and trace is critical for antiterror investigations. It has been around for years in connection with other kinds of investigations, and it obviously was an important tool to fight terrorism. What these authorities do is allow investigators to discover what telephone numbers are being dialed into and out of a suspect's telephone. As I said, they already had this authority in connection with other kinds of crimes. It certainly made sense to have it track terrorists. An important feature here was to get one court order from a judge in one place and not have to hop all around the country wherever the telephone was used and get a separate court order in that State. That requirement made it totally useless. So this one court warrant for trap and trace and pen registers was enacted. I am very glad to see the conference report repeals the sunset on this authority--in other words, the automatic ending of the authority--and makes permanent for antiterror investigations this pen register and trap-and-trace authority, another critical tool to fight terrorism. For the past 2 years, I have also been a cosponsor of legislation that my colleague, Senator Feinstein, helped to coauthor on seaport security and mass transportation security. This is especially interesting in view of the debate and concern right now about seaport security with which we are all familiar. This particular legislation increases the penalties for and, by the way, also the scope of the criminal offenses for attacks on seaports and shipping. It also consolidates and updates the laws with regard to attacks on railroads and other mass transportation facilities. Now, these proposals also had been amended into the intelligence reform bill in 2004 by the House of Representatives but have been dropped in conference. Today these important provisions, which I helped to coauthor, are enacted into law through the conference report of the PATRIOT Act. There is another rather interesting, rather esoteric--one of the things lawyers debate about--but an interesting and important provision of the PATRIOT Act we are going to be dealing with today. When the final draft of the PATRIOT Act reauthorization was introduced in the Judiciary Committee the night before the committee acted on it, for the first time a proposed three-part test was inserted into the bill--a test for determining whether a section 215 order is relevant to a terrorism investigation. There has been a lot of debate about these section 215 orders, but these are critical to obtain records that might help in the investigation of a potential terrorist. Several of us expressed reservations about this three-part test and whether it would impede the use of these section 215 warrants and impede important investigations and thought it required further study. Well, during the next weeks and months, we became persuaded essentially that this three-part test would simply either make impossible or certainly delay needed investigations and, therefore, should not be enacted. It raised more questions than it answered, complicated this investigative tool that was being used, after all, at the very preliminary stages of an investigation--not the stage at which you ought to be proving probable cause to introduce evidence into the trial. Well, the test remains in the conference report, but with changed language. I think it is much better in its current form. The form of the test remains in the conference report, but investigators are no longer required to use that test. Instead, they are simply permitted to use that test to obtain a presumption that a 215 order is relevant to a terror investigation, which is fine. Usually, when we create a legal presumption that a standard has been met, it is easier to satisfy the presumption than it is to satisfy the underlying legal test. I do not believe that is the case here. Relevance is a simple and well established standard of law. Indeed, it is the standard for obtaining every other kind of subpoena, including administrative subpoenas, grand jury subpoenas, and civil discovery orders. So I cannot imagine that investigators will ever bother using the complicated three-part test in order to get a presumption when they can simply plead relevance and that will suffice for their investigation. I might be wrong, and they might find this test useful. It is there should they decide they can use it. But I am pleased to see the conference report is not impeding investigations by mandating the use of that test. We are not betting important antiterror investigations on the issue, I guess, is another way to say it. I think it would have been clearer just to eliminate the test, but it does not--other than, in my view, cluttering up section 215 of the PATRIOT Act because it is not mandatory, I do not think it is going to cause any harm. Investigators are not going to be impeded in their investigations because of it. I think that is an important change we made. The conference report also does something that is important for States, like my own State of Arizona, that have attempted to improve the ability to prosecute and defend against certain kinds of serious crimes. In the 1996 Antiterrorism and Effective Death Penalty Act, Congress made an offer to the States in effect saying: If you will provide qualified counsel, lawyers, in capital cases to the defendants in those cases during the stage of the case after conviction but during appeal--it is the so-called postconviction review stage of litigation-- then the Federal Government would apply a streamlined and expedited procedure to review the habeas corpus petitions that are normally filed during that period of time from the conviction in the State court. The Federal courts would be required to abide by timelines in ruling on these cases, and they would be barred from staying Federal petitions to allow further exhaustion or broadly exempting claims from procedural default requirements on the grounds of the perceived inadequacy or lack of independence of the State's procedural rules. The bottom line is that if the defendants are represented by good counsel, by good lawyers, then they should be able to comply with the provisions of the law and not plead, in effect, they have to delay the law as they are having their appeals reviewed. Arizona did its part to comply with this statute. It enacted a system to provide qualified counsel to capital defendants on State postconviction review. It spent a lot of money doing it. But to date, it has not received the benefits of the system. It is because the decision about whether a State is entitled to the benefits of this chapter 154 relief--including the time deadlines--is made by the same Ninth Circuit Court of Appeals that would be bound by those deadlines. And it has repeatedly refused to extend to Arizona the benefits of the 1996 law's special habeas chapter. By the way, it has also been very slow in many of these cases, and that has been a real problem. The good thing about today's conference report is that it includes a provision that would shift the decision of whether a State is eligible for this expedited review of capital cases away from the regional courts of appeals to the U.S. Attorney General, with a review of his decision in the U.S. Circuit Court for the District of Columbia. That court hears no habeas cases; therefore, it has no conflict of interest as the other circuit courts would. This will allow the Federal Government to keep its end of the bargain that it made with the States back in 1996 and will allow States like Arizona to finally take advantage of the streamlined and expedited procedures to which it is entitled. I will conclude in this fashion. I think that by what I have just said it is clear there are a variety of important provisions in this conference report, this PATRIOT law we are reauthorizing. In some cases we are saying this is now going to be permanent law. We do not need to come back and reauthorize it every 4 years. In other cases, we are saying there are important provisions of other laws that need to be put in the PATRIOT Act and made permanent law. And we have done that. In other cases, as I mentioned, we wrote particular provisions into the PATRIOT Act, and it is important that we reauthorize those provisions. And there were other provisions, in addition to pen registers and trap and trace that I mentioned before, as well as the material support, which were parts of the original act. We established several crimes as part of the PATRIOT Act that would serve as predicate crimes for further investigation, and these were very important because in the early stages of an investigation into a terrorist you may not have all of the scope of the activity of this individual well in mind. You may know he has been guilty of what you think of one particular crime, but you need to be able to use that as a predicate to expand your investigation into other things he may have done. So, for example, we establish that violations of the Federal terrorism statutes could serve as a predicate offense allowing the Department of Justice to apply to courts for authorization to intercept wire or oral communications pursuant to title III when investigating such offenses. We establish that the felony violations of the Federal computer crimes statutes, the so-called hacking statutes, might serve as a predicate offense, allowing the Department of Justice to apply to courts for authorization to intercept wire or oral communications pursuant to title III when investigating such offenses. We provide for the detention, for up to 7 days, of aliens the Attorney General has reasonable grounds to believe were engaged in conduct that threatened the security of the United States or aliens who are inadmissible; that is to say, they are not supposed to be coming into the United States or are deportable from the United States on the grounds of terrorism, espionage, sabotage, or sedition. There are a variety of other provisions that are included in the PATRIOT Act. The key thing to remember here is, as I said before, our law enforcement and intelligence officials need to have adequate tools to fight terrorism because we provide those tools when we send the military into harm's way. We have an obligation to do that. And they fight important fronts in the war on terror. But so much of this war on terror relates to intelligence gathering and law enforcement activity, investigating potential crimes of these individuals. We have to give them the tools they need to fight these terrorists. The PATRIOT Act does that. It is one of our tools. The FISA law is another one of those tools, the Surveillance Act. The Foreign Intelligence Surveillance Act is what FISA stands for. We have activities such as the NSA surveillance that is another important tool that deals with al-Qaida terrorists who are calling into or out of a foreign country. There are other mechanisms we are using to fight the terrorists. But one of the bedrock laws now that we use is the PATRIOT Act. That law passed not long after 9/11 because we understood this world had changed and that it was time to apply to terrorism many of the same kinds of techniques in law enforcement authorities that we already deemed very useful in investigating other kinds of crimes. Our idea was, if it is good enough to investigate money laundering or drug dealing, for example, we sure ought to use those same kinds of techniques to fight terrorists. We have done that. Today, actually, is a very important day because many of the provisions of the PATRIOT Act go into permanent law. Others are reauthorized for 4 more years. They provide critical support to the people we want to protect us in this war on terror. I am delighted we will be adopting the PATRIOT Act conference report today. My only regret, as I said, is we could not have done it before now. But we can at least celebrate the fact that the Senate has done its duty for the American people to help make them secure in the future.

Mr. KYL. Mr. President, I ask unanimous consent that I be allowed to speak until 12:30, with the time to be charged to the Republican side.

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

Mr. KYL. Mr. President, I rise today to comment on section 507 of the USA PATRIOT Improvement and Reauthorization Act conference report. This section originates in a bill that I introduced earlier in this year, S. 1088, the Streamlined Procedures Act. Section 507 is based on subsections (b) through (e) of section 9 of S. 1088. My Arizona colleague, Representative Flake, took an interest in this matter and sought to offer this provision as an amendment to a court security and police-officer protection bill last November. Mr. Flake's version of the provision is printed in House Report 109-279; it made a number of improvements to the original version in section 9 of my bill. Section 507 of the present conference report reflects most of Mr. Flake's improvements, such as the simplification of the chapter 154 qualification standard, which obviates the need for separate standards for those States that make direct and collateral review into separate vehicles and those States with unitary procedures, and Mr. Flake's enhanced retroactivity provisions. Mr. Flake already has commented on section 507 in an extension of remarks, at 151 Cong. Rec. E2639-40, December 22, 2005. I will not repeat what he said there and will simply associate myself with his remarks. Instead, I would like to focus today on why section 507 is necessary. Section 507 expands and improves the special expedited habeas-corpus procedures authorized in chapter 154 of the U.S. Code. These procedures are available to States that establish a system for providing legal representation to capital defendants on State habeas review. Chapter 154 sets strict time limits on Federal court action, bars consideration of claims that were not adjudicated in State court, and sharply curtails amendments to petitions. The benefits that chapter 154 offers to States that opt in to its standards are substantial. Currently, however, the court that decides whether a State is eligible for chapter 154 is the same court that would be subject to its time limits. Unsurprisingly, these courts have proven resistant to chapter 154. Section 507 places the eligibility decision in the hands of a neutral party--the U.S. Attorney General, with review of his decision in the U.S. Court of Appeals for the District of Columbia Circuit, which does not hear habeas petitions. Section 507 also makes chapter 154's deadlines more practical by extending the time for a district court to review and rule on a chapter 154 petition from 6 months to 15 months. As I mentioned earlier, section 507 of the present conference report is based on section 9 of the Streamlined Procedures Act. The SPA and habeas reform have been the subject of multiple hearings in both the House and Senate during this Congress. In answers to written questions following their testimony at a July 13 hearing before the Senate Judiciary Committee, Arizona prosecutors John Todd and Kent Cattani provided detailed evidence of systematic delays in Federal habeas corpus review of State capital cases. Among the information that they provided was a comprehensive study undertaken by the Arizona Attorney General's Office of all capital cases in the State. This study examined the appeals of all prisoners currently on Arizona's death row--over 100 prisoners. Mr. Todd summarized the findings in his answers to written questions: [S]tatistical information based on Arizona's current capital cases in Federal court, and anecdotal information derived from Arizona's current and former capital cases substantiate the significant problem of delay and lack of finality for victims. The AEDPA has not solved this problem. There are 76 Arizona capital cases pending in Federal court. This represents over two thirds of Arizona's pending capital cases. Although some cases were filed within the last few months, over half of the cases have been pending in Federal court five years or more. Of those, thirteen cases have been pending for seven years. Ten cases have been pending for eight years. Five cases have been pending for more than fifteen years. The AEDPA was a major step in making Federal habeas review more reliable and speedy. However, the Supreme Court's reversals of the Ninth Circuit exemplify the unwillingness of some court cultures to obey this Congress' directives if there is any ambiguity in the law. Mr. Todd also gave a summary of the extreme delays experienced by the State of Arizona on Federal habeas review: Only one of the 63 [Arizona death-penalty] cases filed under the AEDPA has moved from the Federal District Court to the Ninth Circuit. That case has been in the Ninth Circuit for over 5 years. Twenty-eight of Arizona's capital cases have been pending in District Court for between six and eight years. [One Arizona death penalty case] has been on Federal habeas review for over 19 years. Two of those cases have been on Federal habeas review for over 18 years, one for over 16 years, another for over 14 years, still another for over 12 years. These cases alone establish a pattern of unreasonable delay. The [Arizona Attorney General's] report shows that these cases are not simply strange aberrations in an otherwise smooth functioning system of habeas review. Mr. Todd concluded: ``there is a serious problem of delay and lack of finality currently in Federal habeas review of state-court judgments, even after Congress' enactment of the AEDPA almost a decade ago. . . . Based on the attached review of the Arizona capital cases since enactment of the AEDPA, delay has not been eliminated or even reduced, rather it has been prolonged.'' Similarly, in his answers to written questions, Kent Cattani, the Chief Counsel of the Capital Litigation Section of the Arizona Attorney General's Office, reviewed the Arizona Attorney General's study of Arizona capital cases and concluded as follows: ``Federal habeas reform is necessary. After 9 years under the Anti-Terrorism and Effective Death Penalty Act of 1996 (``AEDPA''), it is clear that the Act did not eliminate or even reduce the problem of delay in the Federal habeas process.'' Interestingly, although the Judicial Conference of the United States has uniformly opposed all Federal habeas reform--it even objected in writing to SPA Section 8(a)'s requirement that circuit courts decide habeas cases within 300 days after briefing is completed--in its September 26, 2005 letter to Chairman Specter regarding the SPA, the Conference itself provides substantial evidence of a growing backlog and delays in resolution of capital habeas petitions. The September 26 letter notes the following facts: From 1998 to 2002, the number of State capital habeas cases pending in the Federal district courts increased from 446 to 721. During the same period, the percentage of State capital habeas cases pending in the Federal district courts for more than 3 years rose from 20.2 percent to 46.2 percent; in the Federal courts of appeals, the number of pending State capital habeas cases rose from 185 to 284; and the median time from filing of a notice of appeal to disposition for State capital habeas cases increased from 10 months to 15 months. It is noteworthy that all of these increases in backlog and delay have taken place after the enactment of the AEDPA in 1996--a law that some critics of habeas reform assert has solved all of the problems with Federal habeas. At the most recent hearing on the Streamlined Procedures Act, before the Senate Judiciary Committee on November 16, Ron Eisenberg, Deputy District Attorney for Philadelphia, summarized the problems and delays with Federal habeas review that he encounters in the course of his work. He stated: I have served as a prosecutor for 24 years. I am the supervisor of the Law Division of the Philadelphia District Attorney's Office, a group of 60 lawyers. Many of those lawyers handle regular appeals in the Pennsylvania appellate courts. But more and more of our attorneys must devote themselves full time to Federal habeas corpus litigation. In the last decade, the number of lawyers employed exclusively on habeas work has increased 400%. Despite the limits supposedly imposed by law, the only certain limit on the Federal habeas process as it is currently administered is the expiration of the defendant's sentence. But that leaves ample opportunity and motivation for litigation, because the cases that reach Federal habeas review involve the most dangerous criminals, who receive the most serious sentences--not just death penalties, but non- capital murders, rape, violent robberies and burglaries, brutal beatings, and shootings. Too often, discussion of the proper scope of Federal habeas corpus review is really just a debate about the value of the death penalty, and the justness of imprisonment and punishment generally. To be sure, many Federal courts seem flatly unwilling to affirm capital sentences. In Pennsylvania, for example, almost every single contested death sentence litigated on habeas--over 20 cases in the last decade--has been thrown out by Federal judges; only one has been upheld. But the primary problem is one of process, not results. The truth is that, whether or not they end up reversing a conviction, Federal habeas courts drag out litigation for years of utterly unjustifiable delay, creating exorbitant costs for the state and endless pain for the victims. This data and testimony confirm what many capital litigators and judges have told me is, in their view, an obvious and uncontestable fact: the problems with Federal habeas corpus are systematic, they are severe, and they and are growing worse. Yet even this information does not really tell us why this problem matters--why ordinary people, rather than just civil servants and judges, should be concerned about the functioning of the Federal habeas system. For that information, it is necessary to look at the impact of the current habeas system on the surviving victims of violent crimes. The current system and the delays that it engenders, particularly in capital cases, often are grossly cruel to these individuals. The perpetual litigation of Federal habeas cases denies the surviving family of a murder victim closure--it forces them to continually relive the crime, rather than be able to put the terrible events behind them. Two parents of murder victims testified at hearings in this Congress about how they have been treated by the Federal habeas system. Their testimony makes a compelling case that this system is broken and in need of reform. And it highlights why we should all be concerned. What these individuals and their families--people who had already suffered so much--have experienced at the hands of the Federal courts should offend every American. The first witness to testify was Carol Fornoff, who addressed the House Judiciary Committee's Crime Subcommittee on June 7 of last year. Mrs. Fornoff's 13-year-old daughter, Christy Ann, was murdered in 1984. Almost every Arizonan who lived in the State at the time knows the name Christy Ann Fornoff. Christy's murder was an event that shattered people's sense of security, that made them afraid to let their children play outside or go out of their sight. I remember the case vividly. And I was stunned when I learned last year that the man who killed Christy, although sentenced to death by the State of Arizona, still is litigating his conviction and sentence in Federal court. His Federal proceedings began in 1992--14 years ago. Just think about how long ago 1992 is. President Bush's father was the President at the time. Bill Clinton was the Governor of Arkansas. Saddam Hussein's invasion of Kuwait is closer in time to that date than the U.S. invasion of Iraq is to today. And yet the case of Christy's killer remains in Federal court. Mrs. Fornoff made a powerful case for why we should find this unacceptable. She described the suffering of her family, how this decades-long litigation has denied them closure. I do not think that anyone who heard Mrs. Fornoff's testimony would assert that there are no problems with the present system. Allow me to quote the main portion of Mrs. Fornoff's statement to the House Crime Subcommittee: My husband Roger and I are here today to tell you about our daughter, Christy Ann Fornoff. Christy was our youngest daughter. She was a loving child, very gentle. She often seemed to make friends with the kids at school who weren't so popular. She was very dear to us. In 1984, our family was living in Tempe, Arizona, and Christy was 13 years old. Christy and her brother Jason both held jobs as newscarriers for the Phoenix Gazette, a local newspaper. Roger and I believed that jobs like this would teach our children responsibility, while also helping them earn a little money. After dinner on Wednesday evening, May 9, 1984, both Christy and Jason had been invited to go jumping on trampolines. Jason went, but Christy had just had a cast removed from her ankle. Instead, she went to collect on newspaper subscriptions at an apartment complex near our house. Christy delivered papers at this complex every day, it was just two short blocks from our house. Nevertheless, it was getting dusk, so I went with Christy; she rode her brother's bike while I walked alongside with our little dog. At the first apartment that Christy visited, I was stopped by a neighbor who wanted to talk about our cute dog. Christy went on to the next apartment alone, and I followed a few minutes later. When I got there, the bike was outside, but there was no Christy. I started calling her name, but there was no answer. Our dog started to get nervous. After a few minutes, I ran home, and came back with my daughter's boyfriend. I asked the people at the apartment that Christy had gone to if they had seen her, and they said yes, ten minutes ago, and that she had left. I knew that Christy wouldn't just leave her brother's bike there. I ran home again. My husband had just arrived at home and I told him that Christy was missing. He immediately called the police, and then he went to the apartment complex and began knocking on doors. Outside of one apartment, people standing nearby told us don't bother knocking on that door, that is the maintenance man, and he is looking for Christy. Shortly after, the maintenance man joined Roger in the search for Christy. That night, police helicopters with searchlights examined every corner of our neighborhood. Our son drove up and down every alley in the area on his motorcycle. Christy's newspaper-collections book was found over a fence near the apartment complex. But no one found Christy. Two days later, a policeman knocked at our door. Christy's body had been discovered wrapped in a sheet, lying behind a trash dumpster in the apartment complex. We were absolutely devasted. We had been hoping against hope, and couldn't believe that our beautiful daughter was dead. Christy's body was taken to a morgue so that an autopsy could be performed. On Sunday, which was Mother's day, we were finally able to view Christy's body at the funeral home. Mother's Day has never been the same for me since. Ten days after Christy's body was found, the maintenance man at the apartment complex--the same man who supposedly had been looking for her the night that she disappeared--was arrested for her murder. Christy had been sexually assaulted and suffocated. There was blood, semen, and hair on Christy's body that was consistent with that of the maintenance man. Vomit on Christy's face matched vomit in the maintenance man's closet. Fibers on Christy's body matched the carpet and a blanket in the maintenance man's apartment. And police found Christy's hair inside of the apartment. We knew who had killed our daughter. In 1985, the maintenance man was convicted of Christy's murder and sentenced to death. The conviction was upheld in a lengthy opinion by the Arizona Supreme Court. The killer raised many more challenges, but his last state appeals were finally rejected in 1992. By that time, we already felt like the case had been going on a long time--it had been seven years. We couldn't imagine that the killer would have any more challenges to argue. But in 1992, the killer filed another challenge to his conviction in the United States District Court. That challenge then remained in that one court for another 7 years! Finally, in November of 1999, the district court dismissed the case. But then a few years later, the Federal Court of Appeals for the Ninth Circuit sent the case back to the district court for more hearings. Today, the case remains before that same Federal district court. It has now been over 21 years since Christy was murdered. By this fall, the case will have been in the Federal courts for longer than Christy was ever alive. I cannot describe to you how painful our experience with the court system has been. I cannot believe that just one court took over 7 years to decide our case. Some might ask why we can't just move on, and forget about the killer's appeals. But it doesn't work that way. She was our daughter, our beautiful little girl, and he took her away. We want to know if he was properly convicted. We want to know, will his conviction be thrown out? Will there be another trial? I cannot imagine testifying at a trial again. And would they even be able to convict this man again? It has been 21 years. How many witnesses are still here, is all of the evidence even still available? Could this man one day be released? Could I run into him on the street, a free man--the man who assaulted and killed our little daughter? The courts have turned this case into an open wound for our family--a wound that has not been allowed to heal for 21 years. I understand that the Federal government has the right to create such a system. It can let the Federal courts hear any challenge to a state conviction, at any time, with no limits. My question to you, Mr. Chairman, is why would we want such a system? Why would we want a system that forces someone like me to relive my daughter's murder, again and again and again? My daughter's killer already litigated all of the challenges to his case in the state courts. Why should we let him bring all of the same legal claims again, for another round of lawsuits, in the Federal courts? Why should this killer get a second chance? My daughter never had a second chance. I understand that people are concerned about innocent people being behind bars, but that is not what my daughter's killer is suing about. Right now, the issue that is being litigated in the Federal courts is whether the trial court made a mistake by allowing the jury to hear that he told a prison counselor that he ``didn't mean to kill the little Fornoff girl.'' He claims that the counselor was like his doctor, and that the statement is private, even though he said it in front of other prisoners. Earlier this year, a Federal court held a hearing on whether the killer had a right to prevent the jury from hearing about this statement. But the statement is irrelevant. Whether or not he said it, the evidence of his guilt--the hairs, the fibers, the bodily fluids--is overwhelming. The issue that the killer is suing about was already resolved before by the Arizona Supreme Court--over 17 years ago. Yet here we are, 21 years after my daughter died, arguing about the same legal technicalities. People might say that it is worth the cost to let the killer sue over every issue like this again and again. I don't think that it is worth the cost. When you and your colleagues are writing laws, Mr. Chairman, please think about people like me. Please think about the fact that every time that there is another appeal, another ruling, another hearing, I am forced to think about my daughter's death. Every time, I am forced to wonder, if only Christy hadn't had the cast on her ankle--if only she could have gone on the trampoline that evening, she would still be alive today. Every time that I hear a helicopter, I am terrified--I think of the police helicopters searching for Christy on the night that she disappeared. Every time that I hear a motorcycle, I think of my son, searching for Christy. Every time that the courts reopen this case, I am forced to wonder, why didn't I follow Christy to that second apartment--why did I let that neighbor stop me to talk? Every time, I am forced to think about how scared my little girl must have been when she died. I urge you, Mr. Chairman, to do what you can to fix this system. My family and I have forgiven our daughter's murderer. But we cannot forgive a justice system that would treat us this way. Another witness who testified before Congress last year on the need for Federal habeas reform is Mary Ann Hughes of Chino Hills, CA. Mrs. Hughes's son Christopher, then 11 years old, was murdered in 1983. As in the Fornoff case, the killer was captured, convicted, and sentenced to death--and is still litigating his case in Federal court today. Mrs. Hughes testified before the House Judiciary Committee's Crime Subcommittee on November 10, 2005. This is what she said: Christopher was a beautiful little boy. He had just completed the fifth grade at a local Catholic school. His classmates later planted a tree in his memory at the school. Chris swam on the swim team and dreamed of swimming for the University of Southern California and being in the Olympics. He loved his younger brother, and in typical brotherly fashion would tease him one minute and be his best friend the next. Chris' younger brother is now 28-years-old. He has missed Chris every day since he was murdered. Our younger son was not yet born when Chris was murdered. I was pregnant during part of Cooper's trial with our third son. When he was born we gave him the middle name Christopher after the brother he never knew. Both boys have only in the last few years been able to face what happened to their brother. As the years have passed, we are reminded that Chris never got to finish grammar school, go to a prom, marry, have children of his own, or pursue his dreams. On Saturday, June 4, 1983, Chris asked me for permission to spend the night at the home of his friend, Josh Ryen. We lived in what was then a very rural neighborhood. Josh was the only boy nearby who was really close to Chris' age and so they formed a bond. We were good friends with Josh's parents, Doug and Peggy Ryen. The Ryens lived just up the road from our home with their 10-year-old daughter Jessica and eight- year-old Josh. The last time I saw Chris alive he and Josh were riding off on their bicycles toward Josh's house. They were excitedly waving because they were so happy I had given Chris permission to spend that night with Josh. The only thing Chris had to remember was to be home Sunday in time for church. The next time I saw Chris was in a photograph on an autopsy table during Cooper's preliminary hearing. Unbeknownst to anyone, Cooper had been hiding in a house in Chino Hills just 126 yards from the Ryen's home. He had escaped two days earlier from a minimum security facility at a nearby prison. When Cooper was arrested for burglary in Los Angeles he used a false identity. His identity and criminal past should have caught up with him before he was wrongly assigned to the minimum security portion of the prison. The prison, however, mishandled the processing of an outstanding warrant for Cooper for escape from custody in Pennsylvania. He was being held pending trial for the kidnap and rape of a teenage girl who interrupted him while he was burglarizing a home. While staying at the hide-out house near the Ryens, Cooper had been calling former girlfriends, trying to get them to help him get out of the area. A manhunt was under way for Cooper, but the rural community surrounding the prison was never notified of the escape. The failure of the California prison-system to protect the surrounding community from a dangerous felon marked the beginning of our family and community's being let down by our government. Within a few hours of Cooper's escape, prison officials realized who Cooper was and how dangerous he was. Nevertheless, they still failed to alert the community that he was at large. Our frustration and disappointment with our government's failings has only grown since that time as Cooper's case continues to wind its way down a seemingly endless path through our judicial system. The morning following the murders, I remember being mad at Chris because he had not arrived home on time as promised so we could attend church. Then my anger turned to worry. I sent my husband Bill up to the Ryen home. He saw that the horses had not been fed, and that the Ryen station wagon was gone. Uncharacteristically, the kitchen door was locked, so my husband walked around the house. He looked inside the sliding glass door of the Ryen's master bedroom. He saw blood everywhere. Peggy and Chris were lying on the ground and Josh was lying next to them, showing signs of life but unable to move. My husband could not open the sliding glass door, so he ran and kicked open the kitchen door. As he went into the master bedroom, he found 10-year-old Jessica lying on the floor in fetal position in the doorway, dead. He saw Doug and Peggy nude, bloodied, and lifeless. When he went to our son Chris, he was cold to the touch. Bill then knew that Christopher was dead. My husband then forced himself to have enough presence of mind to get help for Josh, who miraculously survived despite having his throat slit from ear to ear. Josh, only eight years old, lay next to his dead, naked mother throughout the night, knowing from the silence and from the smell of blood that everyone else was dead. He placed his fingers into his throat, which kept him from bleeding to death during the 12 hours before my husband rescued him. Everyone inside the home had been repeatedly struck by a hatchet and attacked with a knife. Christopher had 25 identifiable wounds made by a hatchet and a knife. Many of them were on his hands, which he must have put against his head to protect himself from Kevin Cooper's blows. Some were made after he was already dead. No one should know this kind of horror. That it happened to a child makes it even worse. The killer had lifted Jessica's nightgown and carved on her chest after she died. The killer also helped himself to a beer from the Ryen's refrigerator. We wondered what kind of monster would attack a father, mother, and three children with a hatchet, and then go have a beer. That question has long since been answered, but 22 years later we are still waiting for justice. The escaped prisoner who committed this crime was caught 2 months later. He admitted that he had stayed in the house next door but denied any involvement in the murders. According to the California Supreme Court, however, the evidence of defendant's guilt was ``overwhelming.'' Not only had the defendant stayed at the vacant house right next door at the time of the murders; the hatchet used in the murders was taken from the vacant house; shoe prints in the Ryen house matched those in the vacant house and were from a type of shoe issued to prisoners; bloody items, including a prison-issue button, were found in the vacant house; prison-issue tobacco was found in the Ryen station wagon, which was recovered in Long Beach; and the defendant's blood type and hair matched that found in the Ryen house. The defendant was convicted of the murders and sentenced to death in 1985, and the California Supreme Court upheld the defendant's conviction and sentence in 1991. The defendant's Federal habeas proceedings began shortly thereafter, and they continue to this day--23 years after the murders. In 2000, the defendant asked the courts for DNA testing of a blood spot in the Ryen house, a t-shirt near the crime scene, and the tobacco found in the car. Despite the overwhelming evidence of his guilt, the courts allowed more testing. All three tests found that the blood and saliva matched the defendant, to a degree of certainty of 1 in 310 billion. Blood on the t-shirt matched both the defendant and one of the victims. Mrs. Hughes went on to describe, in her November 10 testimony, the impact of this crime and the attenuated legal proceedings on her family: ``While I know that Cooper is the one who murdered my son, I will always bear the guilt of having given Chris permission to spend the night at the Ryen's house. I will always feel responsible for sending my husband to find the bodies of our son and the Ryen family. It is a guilt similar to the guilt that Josh feels to this day because he had begged me to let Chris spend the night. He thinks that Chris would still be alive if he had not spent the night. Of course, Cooper is responsible for all the pain and suffering that he inflicted that night and the continued pain that has followed, but it does not help stop the pain and guilt. Kevin Cooper is still here over 22 years later--still proclaiming his innocence and complaining about our judicial system. As Josh explained when he finally got a chance to speak to the Judge about how he has been affected by Cooper's crimes: Cooper never shuts up. We continually get to hear more bogus claims and more comments from Cooper and his attorneys. Over the years I have learned to know when something has happened in Cooper's never-ending legal case: the calls from the media start up again, or, at times, the media trucks just park in front of our house. We have no opportunity to put this behind us--to heal or to try to find peace--because everything is about Cooper. Our system is so grotesquely skewed to Cooper's benefit and seemingly incapable of letting California carry out its judgment against him. [The] judicial system so out of balance in favor of the convicted that it literally enables them to victimize their victims and their families all over again through the Federal judicial system. We understood the rights of an accused and that Cooper's rights took precedence over ours as he stood trial. His trial was moved to another County because of the publicity surrounding the horrendous crimes. I had to drive a long distance to another County to watch the trial as it could not take place in our County. Cooper's defense attorney spent an entire year preparing to defend Cooper at trial. Everything was about Cooper's rights and none of our sensibilities or concerns could be dignified because Cooper had to have a fair trial. We understood and we waited for justice. In California, Cooper's appeal was automatic because he had received the death penalty for his crimes. The appeal took six years to conclude. We understood the need for a thorough appeal and we waited for justice. By 1991, Cooper had received a fair trial and his appeal had been concluded. The California Supreme Court aptly observed that the evidence against Cooper, both in volume and consistency, was ``overwhelming''. Since then, we have waited and watched as the United States Supreme Court has denied Cooper's eight petitions for writ of certiorari and two petitions for writ of habeas corpus, and the California Supreme Court has denied Cooper's seven habeas corpus petitions and three motions to reopen Cooper's appeal. The Ninth Circuit affirmed the denial of Cooper's first Federal habeas petition, and denied him permission to file a successive petition in 2001, and again in 2003. But then, on Friday night, February 6, 2004, Cooper's attorneys filed an application with the Ninth Circuit requesting permission to file a successive habeas petition. A three-judge panel of the Ninth Circuit denied Cooper's application to file a successive petition on Sunday, February 8, 2004. Cooper was scheduled to be executed at one minute after midnight on Tuesday, February 10, 2004. On Monday, February 9, 2004, my husband and I made the trip to Northern California from our home in Southern California. Relatives of the extended Ryen family flew in from all over the Country. Josh Ryen, now 30, left for dead at the age of eight, his entire immediate family murdered, drove hundreds of miles to reach the prison to witness the execution of Cooper. We all expected that finally, this case would be brought to a close. Mrs. Hughes went on to describe, however, how on the eve of the execution, the en banc Ninth Circuit Court of Appeals sua sponte reviewed the denial of the petitioner's successive petition application and reversed the three-judge panel. The en banc decision stayed the killer's execution and permitted him to pursue a second round of Federal habeas-corpus litigation. This second round still is going on today--15 years after the California Supreme Court affirmed the conviction and sentence, and 23 years after the murders. Section 2244(b)(3)(E) of title 28 states that ``[t]he grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.'' To us lesser lawyers, this provision might seem like it means that there shall be no en banc review of the three-judge panel's denial of the application. But the enlightened jurists of the Ninth Circuit have discovered that although subparagraph (E) bars the habeas petitioner from appealing the denial, the en banc court remains free to sua sponte grant review. Some might find it strange that Congress would have intended to bar the en banc courts of appeals from considering a case on the basis of a party's appeal and adversarial briefing, but intended to allow the same courts to hear the same case without a request for review and with no briefing. Typically, briefing is regarded as aiding a court's consideration of a case. Of course, the losing habeas petitioner typically does seek en banc review of the denial of the successive-petition application and file a brief in support of his request. I suppose that we are to trust that the en banc court of appeals does not read that brief, or that if it does so, it puts the brief out of its collective mind so that it might act ``sua sponte'' when it votes on whether to go en banc, lest its actions otherwise appear to violate subparagraph (E)'s clear command that the denial of the application is not ``appealable.'' In this case, I am prepared to believe that the judges did not read the briefs. Despite DNA evidence that linked the habeas petitioner to the murder scene to a degree of certainty of 1 in 310 billion, the en banc Ninth Circuit determined that the petitioner met section 2244's requirement that he present ``clear and convincing evidence that . . . no reasonable factfinder would have found [him] guilty of the underlying offense.'' The Ninth Circuit's theory was that the police might have planted the blood evidence. As Mrs. Hughes noted in her November 10 testimony, however: Of course, Cooper could not explain how or why police would plant a minute amount of blood on the t-shirt only to never use it as evidence against him at trial. Moreover, this evidence had been in police custody since 1984. Apparently, these supposed rogue police officers also anticipated the development of the Nobel Prize-winning science that would enable Cooper to have the blood tested for DNA. Cooper also could not explain how the police could have planted his blood at the crime scene within a few hours of discovering the bodies, while he was still at large. The Ninth Circuit first granted sua sponte en banc review of the denial of a successive-petition application in the case of Thompson v. Calderon, 120 F.3d 1045, 9th Cir. 1997, a decision with other procedural irregularities so glaring that the Supreme Court did not even notice this aspect of the decision when it took it up and reversed, Calderon v. Thompson, 523 U.S. 538, 1998. The Sixth Circuit subsequently copied Thompson, thus allowing the Ninth Circuit to attribute this practice to other circuits when it again applied it in the case of the killer of Mary Ann Hughes's son. Section 8(b) of the Streamlined Procedures Act would prevent the Ninth Circuit from doing this in the future. Unfortunately, I was unable to have that provision included in this conference report. I will try again in the future. This year, it will have been 23 years since Christopher Hughes and Doug, Peggy, and Jessica Ryen were murdered. In 2004, after the Ninth Circuit authorized another round of litigation, a local newspaper described the impact of this crime and the ensuing years of appeals on the surviving family of the victims: For nearly 20 years, since convicted murderer Kevin Cooper was sentenced to death for the 1983 slayings of a Chino Hills family and their young houseguest, families of the victims have waited silently for the day the hand of justice would grant them peace. For those families, the last two decades have seemed like an eternity. I lived through a nightmare,'' said Herbert Ryen, whose brother Douglas Ryen was among those killed, along with Douglas' wife Peggy, their 11-year-old daughter Jessica, and her 10-year-old friend Christopher Hughes. [O]n the morning of Feb. 9, [2004,] the day of Cooper's scheduled death by lethal injection, word came down that the 9th U.S. Circuit Court of Appeals had decided to block the execution. [T]o the Ryen and Hughes families, the stay just hours before Cooper's scheduled execution at San Quentin State Prison was nearly incomprehensible. The indefinite delay has left them in a sort of emotional limbo, questioning whether the legal system had abandoned them. The bottom line is that this whole issue is not about Kevin Cooper . . . it is about the death penalty,'' said Mary Ann Hughes, the mother of Christoper Hughes. ``We're so mad--mad because we feel as though the courts turned their back on my son.'' They (Court of Appeals) are holding us hostage,'' Hughes said. For Herbert Ryen and his wife Sue, waiting for justice has taken an equally destructive toll on their lives. The torment their family experienced following the murders, and the subsequent years lost to depression, could never be replaced, he said from his home in Arizona. Mary Ann Hughes said the pain her family suffers is only amplified by the seemingly continuous bombardment of celebrities campaigning against Cooper's execution. She wonders who will cry out in anger for the victims. One former television star and anti-death penalty activist, Mike Farrell of the popular series MASH, spoke of the case on a recent news program. ``He claimed that we must feel relieved since the stay of execution was granted,'' Hughes said. ``How can (Farrell) have the audacity to say he knows what we are feeling?'' Farrell could not be reached for comment. Since Christopher's death, the Hughes family has chosen to remain out of the media spotlight. And until recently, their efforts were successful, due largely to the support of their surviving children, family members and a strong network of close friends, Hughes said. The court's decision Feb. 9 has re-opened the case, forcing the families to re-live the nightmare they have fought so hard to leave behind, they say. Mary Ann Hughes is left wondering about other families who have had loved ones taken from them, about the legal battles they have had to endure in their own quests for justice. She thinks of the parents of Samantha Runion, the 5-year- old Orange County girl who was murdered in 2003, and of what her family could face in the next 20 years. For Bill Hughes, the anguish is intensified--he will forever know the pain of walking into the Ryens' home the morning after the murders, and finding his son, dead and covered in blood near the Ryens' bedroom door. He was also the first to discover Joshua Ryen, also drenched in blood, clinging to life. ``It is a memory he will always have to live with,'' Mary Ann Hughes said. Indeed, time has been no friend to the victims' families, as California's recent appellate court ruling has further denied them closure, she added. ``What this decision has done to our legal system in California is unthinkable,'' she said. ``Somewhere along the line, the courts have got to uphold the law, and we will wait it out until they do.'' (Sara Carter, ``Families of Murder Victims Wait for Justice in Cooper Case,'' Inland Valley Daily Bulletin, February 24, 2004.) The impact of this litigation on Mary and Bill Hughes and Herbert and Sue Ryen alone makes the handling of this case indefensible. No one, however, has borne the weight of our system of Federal collateral review more heavily in this case than has the one surviving victim of the June 4, 1983 attack. Josh Ryen was 8 years old when he was stabbed in his parents' bedroom and his parents and sister were murdered. He had been Christopher Hughes's neighbor and best friend. As of last year, however, Mary and Bill Hughes had not seen Josh since he was airlifted by helicopter from the scene of the murders to Loma Linda University hospital. Then on April 22, 2005, Josh Ryen appeared at the latest Federal habeas corpus hearing for the man who killed his family. He is now 30 years old. Pursuant to the recently enacted Crime Victims' Rights Act, he gave a brief statement before the court. I will quote Josh Ryen's statement in its entirety: The first time I met Kevin Cooper I was 8 years old and he slit my throat. He hit me with a hatchet and put a hole in my skull. He stabbed me twice, which broke my ribs and collapsed one lung. I lived only because I stuck four fingers in my neck to slow the bleeding, but I was too weak to move. I laid there 11 hours looking at my mother who was right beside me. I know now he came through the sliding glass door and attacked my dad first. He was lying on the bed and was struck in the dark without warning with the hatchet and knife. He was hit many times because there is a lot of blood on the wall on his side of the bed. My mother screamed and Cooper came around the bed and started hitting her. Somehow my dad was able to struggle between the bed and the closet but Cooper bludgeoned my father to death with the knife and hatchet, stabbing him 26 times and axing him 11. One of the blows severed his finger and it landed in the closet. My mother tried to get away but he caught her at the bottom of the bed and he stabbed her 25 times and axed her 7. All of us kids were drawn to the room by mom's screams. Jessica was killed in the doorway with 5 ax blows and 46 stabs. I won't say how many times my best friend Chris was stabbed and axed, not because it isn't important, but because I don't want to hurt his family in any way, and they are here. After Cooper killed everyone, and thought he had killed me, he went over to my sister and lifted her shirt and drew things on her stomach with the knife. Then he walked down the hallway, opened the refrigerator, and had a beer. I guess killing so many people can make a man thirsty. I don't want to be here. I came because I owe it to my family, who can't speak for themselves. But by coming I am acknowledging and validating the existence of Kevin Cooper, who should have been blotted from the face of the earth a long time ago. By coming here it shows that he still controls me. I will be free, my life will start, the day Kevin Cooper dies. I want to be rid of him, but he won't go away. I've been trying to get away from him since I was 8 years and I can't escape. He haunts me and follows me. For over 20 years all I've heard is Kevin Cooper this and Kevin Cooper that. Kevin Cooper says he is innocent, Kevin Cooper says he was framed, Kevin Cooper says DNA will clear him, Kevin Cooper says blood was planted, Kevin Cooper says the tennis shoes aren't his, Kevin Cooper says three guys did it, Kevin Cooper says police planted evidence, Kevin Cooper gets another stay from another court and sends everyone off on another wild goose chase. The courts say there isn't any harm when Kevin Cooper gets another stay and another hearing. This just shows they don't care about me, because every time he gets another delay I am harmed and have to relive the murders all over again. Every time Kevin Cooper opens his mouth everyone wants to know what I think, what I have to say, how I'm feeling, and the whole nightmare floods all over me again: the barbecue, me begging to let Chris spend the night, me in my bed and him on the floor beside me, my mother's screams, Chris gone, dark house, hallway, bushy hair, everything black, mom cut to pieces saturated in blood, the nauseating smell of blood, eleven hours unable to move, light filtering in, Chris' father at the window, the horror of his face, sound of the front door splintering, my pajamas being cut off, people trying to save me, the whap whap of the helicopter blades, shouted questions, everything fading to black. Every time Cooper claims he's innocent and sends people scurrying off on another wild goose chase, I have to relive the murders all over again. It runs like a horror movie, over and over again and never stops because he never shuts up. He puts PR people on national television who say outrageous things and then the press wants to know what I think. What I think is that I would like to be rid of Kevin Cooper. I would like for him to go away. I would like to never hear from Kevin Cooper again. I would like Kevin Cooper to pay for what he did. I dread happy times like Christmas and Thanksgiving. If I go to a friend's house on holidays I look at all the mothers and fathers and children and grandchildren and get sad because I have no one. Kevin Cooper took them from me. I get terrified when I go into any place dark, like a house before the lights are on. I hear screams and see flashbacks and shadows. Even with lights on I see terrible things. After I was stabbed and axed I was too weak to move and stared at my mother all night. I smelled this overpowering smell of fresh blood and knew everyone had been slaughtered. Every day when I comb my hair I feel the hole where he buried the hatchet in my head, and when I look in the mirror I see the scar where he cut my throat from ear to ear and I put four fingers in it to stop the bleeding which, they say, saved my life. Every year I lose hearing in my left ear where he buried the knife. Helicopters give me flashbacks of life flight and my Incredible Hulks being cut off by paramedics. Bushy hair reminds me of the killer. Silence reminds me of the quiet before the screams. Cooper is everywhere. There is no escape from him. I feel very guilty and responsible to the Hughes family because I begged them to let Chris spend the night. If I hadn't done that he wouldn't have died. I apologize to them and especially to Mr. Hughes for having to find us and see his son cut and stabbed to death. I thank the judge who gave my grandma custody of me because she took good care of me and loves me very much. I'm grateful to the ocean for giving me peace because when I go there I know my mother and father and sister's ashes are sprinkled there. Kevin Cooper has movie stars and Jesse Jackson holding rallies for him, people carrying signs, lighting candles, saying prayers. To them and you I say: I was 8 when he slit my throat, It was dark and I couldn't see. Through the night and day I laid there, trying to get up and flee. He killed my mother, father, sister, friend, And started stalking me. I try to run and flee from him but cannot get away, While he demands petitions and claims, some fresh absurdity. Justice has no ear for me nor cares about my plight, while crowds pray for the killer and light candles in the night. To those who long for justice and love truth which sets men free, When you pray your prayers tonight, please remember me. Even those who oppose capital punishment--who would like to see it abolished--should not support a system that treats the victims of violent crimes in this way. Creating a fair, efficient, and expeditious system of Federal habeas review should be a bipartisan cause. Indeed, it was President Clinton who noted after the enactment of the 1996 AEDPA reforms that ``it should not take eight or nine years and three trips to the Supreme Court to finalize whether a person in fact was properly convicted or not.'' I believe that section 507 of the PATRIOT Reauthorization Act, by extending the benefits of chapter 154 to States that provide counsel to capital defendants on postconviction review, will help to achieve that goal. In Murray v. Giarratano, 492 U.S. 1, 1989, the Supreme Court held that States are not constitutionally required to provide counsel in State postconviction proceedings, even in capital cases. In AEDPA, Congress added chapter 154 to title 28 of the United States Code, offering the States an incentive to provide qualified counsel in such proceedings. Among the incentives was an expedited process, with time limits on both the district courts and the courts of appeals. AEDPA left the decision of whether a State qualified for the incentive to the same courts that were impacted by the time limits. This has proved to be a mistake. Chapter 154 has received an extremely cramped interpretation, denying the benefits of qualification to States that do provide qualified counsel and eliminating the incentive for other States to provide counsel. In Ashmus v. Woodford, 202 F.3d 1160, 2000, the Ninth Circuit held that California did not qualify because its competency standards were in the State's Standards of Judicial Administration rather than its Rules of Court, a hypertechnical reading of the statute. In Spears v. Stewart, 283 F.3d 992, 1018, 2001, the Ninth Circuit held that even though Arizona had established a qualifying system and even though the State court had appointed counsel under that system, the Federal court could still deny the State the benefit of qualification because of a delay in appointing counsel. Section 507 of this bill abrogates both of these holdings and removes the qualification decision to a neutral forum. Under new section 2265, the Attorney General of the United States will decide if a State has established a qualifying mechanism, and that decision will be reviewed by the D.C. Circuit, the only Federal circuit that does not handle State-prisoner habeas cases and therefore is not impacted by the qualification decision. The requirements for certification are removed from section 2261(b) and placed in the new section 2265(a). The ``statute or rule of court'' language construed so severely by Ashmus is removed, allowing the States flexibility on how to establish the mechanism within the State's judicial structure. There is no longer any requirement, express or implied, that any particular organ of government establish the mechanism for appointing and paying counsel or providing standards of competency--States may act through their legislatures, their courts, through agencies such as judicial councils, or even through local governments. Once a State is certified as having a qualifying mechanism, chapter 154 applies to all cases in which counsel was appointed pursuant to that mechanism, and to cases where counsel was not appointed because the defendant waived counsel, retained his own, or had the means to retain his own. ``Pursuant'' is intended to mean only that the State's qualifying mechanism was invoked to appoint counsel, not to empower the Federal courts to supervise the State courts' administration of their appointment systems. Paragraph (a)(3) of new section 2265 forbids creation of additional requirements not expressly stated in the chapter, as was done in the Spears case. When section 507 was being finalized, I and others were presented with arguments that some mechanism should be created for ``decertifying'' a State that has opted in to chapter 154 but that allegedly has fallen out of compliance with its standards. I ultimately concluded that such a mechanism was unnecessary, and that it would likely impose substantial litigation burdens on the opt-in States that would outweigh any justification for the further review. The States are entitled to a presumption that once they have been certified as chapter-154 compliant, they will substantially maintain their counsel mechanisms. After all, to this day, both California and Arizona have kept up their postconviction counsel mechanisms and standards since the late 1980s and the mid-1990s, respectively, even though neither State has ever received any benefits under chapter 154. This history alone suggests that it is unnecessary to provide a mechanism for ``decertification'' of States that have opted in. Moreover, if such a means of post-opt-in review were created, it inevitably would be overused and abused. In my home State of Arizona, defense attorneys in the past have boycotted the 154 system. The Ninth Circuit later used the delays in appointing chapter 154 counsel stemming from this boycott as grounds for denying Arizona the benefits of chapter 154 in the Spears case. In light of this history, I thought it best to create a system of one-time certification, with no avenues to challenge or attempt to repeal the State's continuing chapter-154 eligibility. The consequences of opting in to chapter 154 should not be perpetual litigation over the State's continuing eligibility. Even if defense lawyers in Arizona do boycott the State's system again, the resultant delays in appointing counsel are unlikely to prejudice their clients, who typically want delay in the resolution of their cases. And the occasional case where such delay might prejudice a petitioner simply is not worth the cost of creating opportunities to force the State to continually litigate its chapter 154 eligibility. Therefore, under section 507, once a State is certified for chapter 154, that certification is final. There is no provision for ``decertification'' or ``compliance review'' after the State has been made subject to chapter 154. The incentive for a State to try to satisfy chapter 154's counsel requirement is the array of procedural benefits that 154 provides to States defending capital convictions and sentences on Federal habeas. Section 2266 applies a series of deadlines for court action on chapter 154 applications: district courts will be required to rule on such applications 15 months after they are filed. Allow me as an aside to describe some of the back history of this particular deadline. Current pre-conference-report law gives district courts only 180 days to rule on a 154 petition. This probably is not enough time for district courts to rule on these cases, even with the streamlining provided by the rest of chapter 154. Nor was this reality obscure to Congress in 1996. I worked on developing this provision in my first year in the Senate, in cooperation with the Arizona Attorney General's Office and then-California Attorney General Dan Lungren, among others. The bill's managers initially adopted a 180-day deadline as a bargaining position, but had always intended to extend this limit to 1 year. Unfortunately, at a certain point in the legislative process, other participants decided that they would object to making any change whatsoever to the AEDPA, even to correct scrivener's or grammatical errors--or to liberalize this deadline. Thus we ended up with 180 days. In order to avoid imposing impossible burdens on the district courts, I proposed extending this deadline to 15 months in the SPA, and this extension has been included in section 507. I likely would receive a cool reception from Chief Judge McNamee upon my next visit to the Phoenix Federal courthouse had section 507 given Arizona access to chapter 154 without at least somewhat liberalizing this particular deadline. Other relevant deadlines imposed by section 2263 are that the court of appeals must rule on a case 120 days after briefing has been completed. That court also must rule on a petition for rehearing and suggestion for rehearing en banc within 30 days of the filing of the petition and any reply. And if the court grants rehearing or goes en banc, it must decide the case within 120 days of doing so. These deadlines are created by chapter 154 for a reason. In too many cases, Federal courts' resolution of capital habeas petitions has been unreasonably slow. In the Fornoff case, for example, the petition remained before the Federal district court from 1992 to 1999, and that court did not even hold an evidentiary hearing in the case during that time. And this is far from the most extreme example of habeas delay. At the end of her written testimony before the House Crime Subcommittee, Mrs. Fornoff included several examples of other cases involving habeas petitioners who had murdered children and whose Federal habeas proceedings have been unconscionably delayed. All of these examples involved delays in the district courts much longer than the 7-year delay in the case of the man who killed Christy Ann Fornoff: the several cases that Mrs. Fornoff described had remained before one Federal district court for periods of 10 years, 12 years, 13 years, and in one case, for 15 years. I quote the portion of Mrs. Fornoff's testimony describing these cases: Benjamin Brenneman [was] 12 years old [when he was killed in] 1981. This case is surprisingly similar to my daughter's case. Benjamin also was a newspaper carrier, and also was kidnaped, sexually assaulted, and killed while delivering newspapers at an apartment complex. Benjamin's killer tied him up in a way that strangled him when he moved. Police began by questioning a man in the building who was a prior sex offender. They found Benjamin's special orthopedic sandals in his apartment. When they interviewed him, he admitted that he kidnaped Benjamin, but claimed that ``he was alive when I left him.'' Police found Benjamin's body in a nearby rural area the next day. (More information about the case is available in the court opinion for the State appeal, People v. Thompson, 785 P.2d 857.) Benjamin's killer was convicted and sentenced to death. After the State courts finished their review of the case, the killer filed a habeas corpus petition in the Federal District Court in 1990. Today, 15 years later, the case is still before that same court. In 15 years, the district court still has not ruled on the case! To put the matter in perspective, so far, and with no end in sight, the litigation before that one district court has outlived Benjamin by three years. This is simply unconscionable. Michelle and Melissa Davis [were] ages 7 and 2 [when they were murdered in] 1982. An ex-boyfriend of the sister of Kathy Davis took revenge on the sister for breaking off their relationship by killing Kathy's husband and her two young daughters, Michelle and Melissa. The killer confessed to the crime. The State courts finished their review of the case in 1991. (People v. Deere, 808 P.2d 1181.) The next year, the defendant went to the Federal District Court. He remained there for the rest of the decade, until 2001. When he lost there, he appealed, and in 2003, the Federal Court of Appeals for the Ninth Circuit sent the case back to the district court for another hearing. Today, 14 years after State appeals were completed, and 23 years after Michelle and Melissa were taken from their mother, the case remains before the same district court. Vanessa Iberri [was] 12 years old [when she was killed in] 1981. Vanessa and her friend Kelly, also 12 years old, were both shot in the head while walking through a campground in 1981. Kelly survived, but Vanessa did not. The killer did not dispute that he shot the two girls. (The case is described in People v. Edwards, 819 P.2d 436.) The State courts finished their review of the case in 1991--already a long time. The killer then went to Federal court in 1993. The Federal District Court finally held an evidentiary hearing in December 2004, and dismissed the case in March of this year. Just now, 12 years after the case entered the Federal courts, and 24 years after the murders occurred, the appeal to the Federal Court of Appeals is just beginning. Michelle Melander [was] 5 months old [when she was murdered in] 1981. Michelle, who was just a five-month-old baby, and her brother Michael, then 5 years old, were kidnaped in Parker, Arizona, in July 1981. The killer dropped off Michael along the road. Michelle's body was discovered six days later at a garbage dump several miles down the same road. She had been severely beaten and sexually mutilated. The State court opinion describes the many injuries that this helpless baby suffered. The man who committed this horrific crime later attempted to kidnap and rape a 10-year-old girl. State courts finished their review of his case in 1991. (People v. Pensinger, 805 P.2d 899.) The case then went to Federal District Court in 1992. The defendant raised new claims that he had never argued in state court, so the Federal court sent the case back to state court. Five years later, the case returned to Federal court. Today, the case remains before the same Federal District Court where the Federal appeals began in 1992. Baby Michelle would be 24 years old now if she had lived, and there is no end in sight for her killer's appeals. Other examples of extreme delays on Federal habeas have been provided to me by State prosecutors. Clarence Ray Allen, who was executed by the State of California earlier this year, had begun his Federal habeas proceedings in 1988--they lasted for over 17 years. Lawrence Bittaker was convicted of four murders, four kidnappings, and nine rapes by the State of California in 1981. He filed a habeas petition in the Federal district court in 1991. That petition still is pending before the same Federal district court today. Alejandro Ruiz was convicted and sentenced to death for three murders in 1980. He initiated Federal habeas proceedings in 1989. Those proceedings still are pending before the same Federal district court today. I do not mean to single out the Federal district courts for criticism. Inexplicable delays in Federal habeas review of State convictions appear throughout the Federal system. Section 2263's deadlines for issuing court-of-appeals decisions and resolving appellate rehearing petitions also are manifestly necessary. In Morales v. Woodford, 336 F.3d 1136, 9th Cir. 2003, for example, the Ninth Circuit took 3 years to decide the case after briefing was completed. And after issuing its decision, the court took another 16 months to reject a petition for rehearing. Similarly, in Williams v. Woodford, 306 F.3d 665, 9th Cir. 2002, the court waited 25 months to decide the case after briefing was finished--and then waited another 27 months to reject a petition for rehearing, for a total delay of almost 4\1/2\ years after appellate briefing had been completed. Section 2263 would have sharply reduced these delays. Chapter 154 also creates uniform, clear rules for addressing defaulted and unexhausted claims. It bars all review of any claim that has not been addressed on the merits when the Federal petition is filed, unless the claim meets one of three narrow exceptions. Section 2264, by not extending the chapter 153 exhaustion requirement to chapter 154, allows Federal courts to treat defaulted and unexhausted claims the same way, rather than distinguishing between them and only dismissing the former unless they meet an exception, but returning the latter to State court for further exhaustion. Chapter 154 eliminates the need to ever send a claim to State court for further exhaustion. As those familiar with the history of chapter 154 are aware, the chapter has its origins in the 1989 Powell Committee Report. See Judicial Conference of the United States, Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report and Proposal, August 23, 1989. Then-Chief Justice Rehnquist had appointed former Justice Lewis Powell to chair this committee, which was charged with studying problems with Federal habeas corpus review of capital cases. The report identified a lack of finality and unnecessary delays in Federal collateral review of State capital cases, and recommended specific reforms. With a few significant changes, such as a more restrictive standard for holding evidentiary hearings and accommodation of the rule of Teague v. Lane, not to mention the changes that are about to be made by section 507, the Powell Committee Report's recommendations are what is now chapter 154. The Powell Report is thus a very useful guide to understanding chapter 154. The Powell Committee Report explains, for example, why section 2264 eliminates the exhaustion rule and treats unexhausted claims the same way as defaulted claims. As the Report notes: The Committee identified serious problems with the present system of collateral review. These may be broadly characterized under the heading of unnecessary delay and repetition. The lack of coordination between the Federal and state legal systems often results in inefficient and unnecessary steps in the course of litigation. Prisoners, for example, often spend significant time moving back and forth between the Federal and state systems in the process of exhausting state remedies. The Powell Committee Report then describes its proposed approach to unexhausted claims: Federal habeas proceedings under the proposal will encompass only claims that have been exhausted in state court. With the counsel provided by the statute, there should be no excuse for failure to raise claims in state court. The statute departs from current statutory exhaustion practice by allowing for immediate presentation of new claims in Federal court in extraordinary circumstances. The Powell Committee Report further elaborates on this change to the exhaustion requirement in its comment following the presentation of the language that became section 2264: If a petitioner asserts a claim not previously presented to the state courts, the district court can consider the claim only if one of three exceptions to the general rule listed in [section 2264(a)] is applicable. . . . As far as new or ``unexhausted'' claims are concerned, section [2264] represents a change in the exhaustion doctrine as articulated in Rose v. Lundy, 455 U.S. 509 (1982). Section [2264] bars such claims from consideration unless one of the [subsection (a)] exceptions is applicable. The prisoner cannot return to state court to exhaust even if he would like to do so. On the other hand, if a [subsection (a)] exception is applicable, the district court is directed to conduct an evidentiary hearing [note that this aspect of the Powell Committee recommendation is superseded by section 2254(e)] and to rule on the new claim without first exhausting state remedies as Rose v. Lundy now requires. Because of the existence of state procedural default rules, exhaustion is futile in the great majority of cases. It serves the state interest of comity in theory, but in practice it results in delay and undermines the state interest in the finality of its criminal convictions. The Committee believes that the States would prefer to see post-conviction litigation go forward in capital cases, even if that entails a minor subordination of their interest in comity as it is expressed in the exhaustion doctrine. Section 2264 implemented the Powell Committee's approach by limiting Federal habeas review under chapter 154 to ``claims that have been raised and decided on merits in the State courts,'' and, in subsection (b), by declining to extend the exhaustion principles of section 2254(b) and (c) to chapter 154. This system shifts the focus away from and eliminates the need to exhaust State remedies for every claim. Section 2264 does not require exhaustion, but, rather, adjudication on the merits in State court or satisfaction of one of subsection (a)'s exceptions. If an unexhausted or otherwise not-adjudicated-on-the- merits claim can meet one of those subsection (a) exceptions, then it can go forward, because the exhaustion requirement does not apply. And in any event, even if a chapter 154 prisoner, for whatever reason, still wanted to exhaust State remedies for a new claim after he has filed his Federal petition, he would not be able to do so and then return to Federal court: unlike chapter 153, chapter 154 sharply curtails amendments to petitions and thus would make it all but impossible to amend the newly exhausted claim back into the Federal petition. Under chapter 153's stay-and-abey regime, ``a district court may, in its discretion, allow a petitioner to amend a mixed petition by deleting the unexhausted claims, hold the exhausted petition claims in abeyance until the unexhausted claims are exhausted, and then allow the petitioner to amend the stayed petition to add the now-exhausted claims.'' James v. Pliler, 269 F.3d 1124, 9th Cir. 2001. As the courts have explained, chapter-153 habeas petitioners are permitted to ``stay and abey'' and then come back to Federal court because chapter 153 petitions are subject to the relatively liberal amendment standards of Federal Rule of Civil Procedure 15. See Anthony v. Cambra, 263 F.3d 568, 576-578 (9th Cir. 2000). This system would not be possible under chapter 154's section 2266(b)(3)(B), however. That subparagraph would bar the post-exhaustion amendment that restores the newly exhausted claims unless the amendment could meet the exacting standards of the successive-petition bar. Instead of staying and abeying and further exhausting, the chapter 154 petitioner will go forward: his claims in the Federal petition will have either been raised and adjudicated on the merits in State court, they will satisfy one of the section 2264(a) exceptions, or they will be dismissed, and Federal adjudication of the merits of the claims that remain before the court will commence immediately. This streamlined approach is what makes chapter 154's deadlines for district court adjudication possible. Obviously, if applicants were expected to use the stay-and-abeyance system, and proceedings were put on hold so that another round of State-court review could be completed, district courts would not be able to resolve chapter 154 petitions within 15-month limit, much less the 180 days required prior to 2006, that is imposed by section 2266. Section 2264's abolition of stay-and-abey would have made a real difference in some of the cases that I have described. For example, in the case of the man who killed Mary Ann Hughes's son, eliminating the need to return to State court to exhaust new claims would have reduced the delay in the Federal proceedings by nearly 3 years. And in the case of Michelle Melander, the baby girl who was killed in 1981 whose case is described in Carol Fornoff's testimony, the section 2264 system would have eliminated 5 years of delay from the ongoing Federal proceedings in that case. By requiring that chapter 154 courts only consider claims adjudicated on the merits in the State courts, and limiting the exceptions to that rule to those enumerated in section 2264(a), chapter 154 also effectively eliminates use of several other exceptions to the procedural-default doctrine that I believe have proven problematic. The chapter 153 procedural-default doctrine derives from the Supreme Court's own rules for allowing review of a State court judgment when respondent asserts the presence of an adequate and independent State bar to review of the Federal question. These exceptions are numerous, complex, and in some cases they are overly broad and simply do not provide an adequate justification for ignoring State procedural rules. It generally is not a significant burden on the States that the U.S. Supreme Court has granted itself such broad and amorphous authority to override State procedural requirements. The Supreme Court only decides a limited number of cases every year. But on Federal habeas, where every State criminal conviction effectively is subject to ``appeal of right'' in Federal court, application of the full panoply of the U.S. Supreme Court's exceptions to the adequate-and-independent State grounds rule has become burdensome and unwieldy. One exception to the adequate-and-independent State grounds doctrine that has proved particularly problematic in the habeas context is the rule that a State procedural bar is not adequate to preclude further Federal review if the procedural requirement is ``inconsistently applied'' by the State courts. Viewed literally and without regard to the policies underlying the procedural default doctrine, the ``inconsistently applied'' standard can have a disturbingly broad sweep. This standard can be understood to void any State procedural rule that has been altered in any way or that is not strictly enforced in absolutely every case. Unfortunately, some lower Federal courts have adopted this draconian interpretation. For example, the Ninth Circuit has held that if a State's highest court clarifies a State procedural rule or reconciles competing interpretations of that rule, then that rule was ``inconsistently applied'' prior to such clarification. As a result, the Ninth Circuit deems the State rule ``inadequate'' to be enforced on Federal habeas review prior to that point. Another problematic area of chapter-153 procedural-default jurisprudence is particular Federal courts' interpretation of the ``independence'' requirement. A State procedural decision cannot serve as a bar to further review on the merits if it is not truly procedural--i.e., if it is in reality a decision on the merits of the Federal claim. Many State courts have incorporated into their procedural rules--particularly their deadlines for filing claims--an ``ends of justice,'' ``plain error,'' or ``manifest injustice'' exception that allows State courts to hear the occasional egregious but untimely or otherwise improper claim. Presumably, in applying such an exception, these State courts perform at least a cursory review of the merits of every petition, even those that clearly are untimely. Technically, because these State courts conduct such review, their deadlines are not purely ``procedural''--they involve some review, however fleeting, of the merits--and therefore these deadlines are not ``adequate'' for habeas purposes. The Ninth Circuit has adopted this rather extreme interpretation of the adequacy requirement. It is difficult to understate the perverse consequences of the more extreme interpretations of the exceptions to the chapter-153 procedural default doctrine. By punishing State courts for ever departing from or even clarifying their procedural rules, or for exercising discretion to hear egregious cases, these interpretations deter State courts from making the kind of commonsense decisions that are essential to preventing a miscarriage of justice. No system of procedure will ever be perfect; every system will always require some exceptions in order to operate fairly and efficiently. Yet under some Federal courts' interpretations of procedural default, unless the State court adopts a zero-tolerance approach to all untimely claims, no matter how worthy of an exception, the State procedural rule is at risk of being voided for all Federal habeas cases. In Arizona, litigants have seen the inevitable consequences of the Ninth Circuit's no-good-deed-goes-unpunished rule: when liberality towards criminal defendants is held against the State on Federal habeas, the State will outlaw such liberality. In his August 19, 2005, answers to written questions submitted to him by Senator Leahy, Arizona prosecutor John Todd described the effect of the Ninth Circuit's application of an extreme ``independence'' requirement: as a result of Federal court rulings, the Arizona Legislature repealed the requirement that all criminal cases be reviewed by the state appellate courts for fundamental error. When an appellate court in Arizona reviewed the entire record for fundamental error, it did not matter that the defendant procedurally defaulted the issue. If the error were serious enough, even if it was only an error of state law, a defendant would receive relief in state court through this fundamental error review. Fearing that the Ninth Circuit's decision in Beam v. Paskett, 3 F.3d 1301, 1305 (9th Cir. 1993), would open Arizona criminal cases to endless litigation, the Arizona Legislature repealed Ariz. Rev. Stat. Ann. Sec. 13-4035 in 1995. This is not a result that anyone should want. States should not be discouraged from affording broad review to a prisoner's claims in State court or exercising flexibility in their application of procedural rules. Yet in the Ninth Circuit, State executives would be ill advised to adopt any procedural rule that affords courts any discretion or includes any plain-error type exceptions. The Ninth Circuit has accounted for a disproportionate share of all Federal court of appeals decisions identifying exceptions to the chapter-153 procedural default doctrine, and has issued several particularly extreme interpretations of the doctrine. The States in that circuit effectively are subject to a different habeas regime. The Ninth Circuit has now voided State procedural rules in six of the States under its jurisdiction. It has found State procedures either inadequate or insufficiently independent to limit Federal review in California, Oregon, Arizona, Washington, Idaho, and Nevada. Section 2264 eliminates these problems. Rather than incorporating the procedural-default doctrine and all of its baggage, it starts fresh; it bars all claims not raised and decided on the merits unless one of three narrow exceptions applies. It does not matter under chapter 154 that a Federal court thinks that the State's rules are not ``adequate'' or are not sufficiently ``independent,'' because the adequacy and independence of the State rule no longer are the basis for barring review of the claim in Federal court. Under chapter 154, that basis will be section 2264, which employs its own standard and exceptions. And under that section, no longer will the labyrinthine body of caselaw governing the Supreme Court's certiorari jurisdiction over cases decided on State-law grounds be applied to every State capital conviction on Federal collateral review. Section 2264 also eliminates the overused ``ineffective assistance gateway'' that is a frequent feature of chapter 153 litigation. Under chapter 153, litigants often seek to recast claims that they know are defaulted as claims of ineffective assistance of counsel. They argue that the default should be excused because State trial or appellate counsel was ineffective. Chapter 154 does not include this exception. If a claim of ineffective assistance of trial or appellate counsel itself was raised and decided on the merits in State court, that same claim can be raised in Federal court. But otherwise, chapter 154 charges petitioners with the acts of their attorneys. The whole point of chapter 154 is to persuade States to establish mechanisms for providing defendants with qualified postconviction counsel. If a State has opted in to chapter 154, the petitioner presumptively received qualified counsel at all stages of his State proceedings, and opportunities to litigate issues of counsel competency should be scaled back. If the factual predicate of a claim could have been discovered through the exercise of due diligence, then per paragraph (3) of section 2264(a), regardless of what the attorney did or did not do, that claim does not qualify for an exception to the main rule of 2264(a) and it cannot be raised in Federal court. It also bears mention that section 507 includes a retroactivity provision that my Arizona colleague, Congressman Flake, thought particularly important. New section 2265(a)(2) provides that the date that a State established the mechanism by which it qualifies for chapter 154 ``shall be the effective date of the certification under this subsection.'' This was intended to ensure that if a State established a mechanism for providing qualified counsel to capital defendants on postconviction review prior to the formal designation of a State as chapter-154 eligible--or even prior to the enactment of chapter 154--then all capital defendants who received counsel after the establishment of that mechanism shall be subject to chapter 154, even if they filed a Federal petition before the State is certified as chapter-154 eligible. I had originally thought this provision sufficient to ensure that a State would receive the full benefits of chapter 154 even for Federal petitions filed before the State is certified as chapter-154 compliant. But questions of retroactivity often prove more complicated than they first appear. Representative Flake raised with me the question of whether even if a Federal petition filed precertification is deemed subject to chapter 154, Federal courts could still find that the procedural benefits of chapter 154 only apply to that case on a going- forward basis. In other words, the effective-date provision guarantees that even a prefiling petition is now governed by chapter 154, but chapter 154's procedural restrictions might be construed to not apply to what is already in that petition. For States such as Arizona, this would mean--assuming, of course, that I am correct in predicting that the U.S. Attorney General will find Arizona 154-eligible--that section 507 does not completely undo the damage done by the Spears case. It is possible, for example, that in Spears itself or in subsequent cases that should have been subject to chapter 154, additional claims have been amended into the petition that would not satisfy 2266(b)(3)(B), or unexhausted claims already may have been returned to State court for further exhaustion and the Federal petition stayed. Given that stay-and-abey sometimes adds 5 years to the time that it takes to address a Federal petition, Mr. Flake and I decided that it should be made clear that the whole petition would be subject to chapter 154, not just new claims and amendments added after the State is certified as 154 eligible. To that end, subsection (d) was inserted into the middle of section 507 to ensure that the 154 changes-- including the effective-date provision--would operate against pending cases. In effect, this provision guarantees the even for a pending case, the effective date provision applies retroactively and the case is regarded as always having been subject to chapter 154. Thus once a State is certified as 154-eligible and a particular petition falls within that chapter's sweep, the courts should review the whole petition and treat it as if chapter 154 had been applicable since before the petition was filed. Claims added via post-answer amendments should be reviewed for consistency with section 2266(b)(3)(B). If they do not qualify, they should be struck, just as they would have been if the petition had been governed by chapter 154 at the time when the amendment was filed. And most importantly, no unexhausted claim in a chapter-154 petition may be permitted to serve as a basis for ``stay and abey.'' Either that claim will satisfy one of the 2264(a) exceptions, and review of that claim and ``raised and decided'' claims in the petition will go forward immediately, or the claim will not meet the exception, it will be dismissed, and review of the rest of the proper claims in that petition will go forward immediately. In either event, review of all Federal petitions made subject to chapter 154 will go forward immediately, though the petitioner may, of course, continue to simultaneously pursue State review of the unexhausted claim, and the chapter 154 time deadlines will start running. Per paragraph (d)(2), that deadline does not run until section 507 is enacted with regard to a particular State--meaning that it does not run until the State is certified as chapter-154 eligible pursuant to section 507. Under section 507, once a petition is made subject to chapter 154, it can no longer be held in abeyance so that the petitioner can pursue State exhaustion of unexhausted claims. Finally, I would like to thank those individuals who have been important to the enactment of section 507. This group includes Mike O'Neill and Brett Tolman of Chairman Specter's staff, Mike Volkov of Chairman Sensenbrenner's staff, and Brian Clifford of Congressman Flake's staff. I also thank Kent Scheidegger of the Criminal Justice Legal Foundation, who came up with the idea that became section 507. Finally, I also thank Chairman Specter, who was willing to accommodate me on a matter of importance to prosecutors and crime victims in the State of Arizona by including section 507 in this conference report. I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. I ask unanimous consent that reading of the amendment be dispensed with.

Mr. KYL. Mr. President, I have an amendment at the desk.

Mr. KYL

Mr. KYL. Madam President, I rise today to comment on S. 2271, which I anticipate that the Senate will overwhelmingly approve today. I support the USA PATRIOT Improvement and Reauthorization Act Conference Report, with the three amendments negotiated contained in S. 2271. It is long past time to reauthorize the USA PATRIOT Act, which has been critical to our efforts to protect Americans. I support the compromise that has allowed this up-or-down vote because I think that the agreement maintains the tools necessary to fight terrorism while further strengthening safeguards to protect Americans' civil liberties just as the conference report itself does. The conference report clarifies that the recipient of a section 215 FISA business records order or a National Security Letter, NSL, may disclose receipt to an attorney to seek legal advice or assistance and also to those necessary to comply with the request. During House-Senate negotiations, provisions were added allowing the government to request that the recipient tell the government to whom the recipient had disclosed the order or NSL. This provision makes sense because there will be times when the Government will need to know everyone who has been told about a section 215 order or NSL. For example, if there is a leak of the existence of the request, or the recipient's name, that leak may need to be investigated. And we know from the criminal conviction of Lynne Stewart that, unfortunately, sometimes it is the attorneys who are breaking the law. Some Senators expressed concern that these provisions required all recipients to identify their attorney in all instances. This was a misreading of the language, which would have allowed the government to request the names of individuals to whom subsequent disclosure was made but did not set out a blanket requirement. Other Senators were concerned that this provision could chill a recipient's right to counsel. It is clear under the law that the constitutional right to counsel would not be implicated or offended by the conference report provision. But in a spirit of compromise, the Administration agreed to modify the provisions such that they could not be used to request the identity of an attorney to whom receipt was disclosed. I support this amendment primarily because there is no way that the agreed-upon language would preclude the use of a grand jury subpoena or other investigative tool in the event of a subsequent leak investigation. So the government will still have tools available to investigate leaks as the need arises--even if the offending party is the recipient's attorney. The conference report also makes it clear that the recipient of a section 215 FISA business records order can go to court and challenge the order. Some Senators raised concerns that under the conference report a recipient would have explicit rights to consult an attorney about the order and to challenge the order to produce business records, but would not have an explicit right to challenge the nondisclosure order that accompanies such a production order. I think it is likely that a court would entertain a constitutional challenge to the nondisclosure requirement, and nothing we say in a statute is going to change that one way or another. Moreover, it is important to remember that these are court orders--they are reviewed and approved by judges before they are served. But notwithstanding my confidence that the conference report was fully consistent with Americans' civil liberties, the administration agreed to a compromise that explicitly authorizes judicial review of a section 215 nondisclosure order. I think the agreement is a good compromise--it explicitly allows challenges, but does so without risking national security. Pursuant to the agreed-upon language, a challenge could be brought any time after the first year after the judge issued the section 215 order; the challenge could only be brought in the FISA Court; and the standard of review would be the same as the standard the conference report provides for review of nondisclosure orders accompanying NSLs. The delay is perfectly appropriate and necessary to preserve valuable personnel resources--these orders are approved by judges before issuance, so it makes little sense to allow recipients to challenge the non-disclosure requirement only a week or even a day after the court issues them. Taking the standard of review from the NSL provisions also makes sense. Not only did that standard pass both the House and Senate, but it affords the appropriate level of deference to the Executive branch's judgments on national security and diplomatic relations. This standard provides that the FISA Court judge may set aside or modify the nondisclosure order if the judge finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal or counterterrorism investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person. If, upon the filing of a challenge to the nondisclosure order, the Attorney General, the Deputy Attorney General, an Assistant Attorney General, or the FBI Director certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, the certification is conclusive unless made in bad faith. Courts have long recognized that national security and diplomatic relations fall within the heartland of the executive branch's responsibility and expertise, and this standard simply recognizes that expertise. By requiring that the certification be made by a Senate- confirmed official before granting it bad-faith review, the conferees added political accountability--and I note that neither the House version nor the Senate version had this additional safeguard. Finally, some Senators also expressed concern about the applicability of national security letters to libraries. This concern has always seemed to me to be based on a misunderstanding of the NSL statutes. There are several NSL authorities, but each authority only allows the government to request a narrow category of records from a narrow set of institutions. The statue that is generally in the news allows the FBI to request things like customer subscription records from ``wire and electronic communication service providers.'' And we have already made clear in statute what institutions qualify as ``wire and electronic communication service providers.'' The way I read the statute, and the way that experts read the statute, the FBI cannot use an NSL to learn what books you and I are checking out from the library. But the compromise makes it crystal clear that the FBI may serve an NSL on a library only if that library is acting as a ``wire or electronic communication service provider.'' Just to be clear: we are not changing the set of entities that can be subject to NSLs; we are merely clarifying that libraries can be subject to NSLs only if they perform the functions that make an entity subject to NSLs. I can support this language because it does not create a safe haven for terrorists in libraries. If it did, I could not support the language. It is well past time to pass this report, which passed the House with strong bipartisan support. A majority of Americans supports reauthorizing the USA PATRIOT Act, as does a strong bipartisan majority of Senators. I support this compromise.

Mr. KYL

Mr. KYL. Mr. President, I rise today to announce to the Senate the arrival in this world of Laura Dale Duffield. Miss Duffield was born to her parents Cara and Steven this last Friday, and is reported to weigh over 7 pounds. Her father, Steven, is the Judiciary Policy Analyst and Counsel for the Republican Policy Committee, which I chair. I would like to take a moment to note for posterity some of the events taking place in the world at the time that young Laura joins us. Most important among the matters recently before the Senate, I think, is the confirmation several weeks ago of the nomination of Samuel Alito to be a Justice of the Supreme Court of the United States. In the fall of last year, the Senate also confirmed the nomination of John Roberts to be the Chief Justice of the United States. Steven played an important role in both confirmations, supplying Republican Senators with information and draft speeches about the nominees, and even staffing me on the Judiciary Committee during the nominees' hearings. This is the first time that there has been a change in the membership of the Supreme Court since 1994--before Laura's parents even began law school. Chief Justice Roberts replaces Chief Justice Rehnquist, who originally had been appointed to the Court in 1971, in between the time that Laura's parents were born. Justice Alito replaces Justice O'Connor, who had been appointed to the Court when Laura's parents still were in grade school. In the years to come, we of course will have many opportunities to evaluate these two new Justices and their impact on the law. At the present time, based on what I saw ofthese nominees at their hearings before the Judiciary Committee, I think that they give us reason to be hopeful about the future. I think that we can reasonably expect both nominees to usher in a new era of the rule of law in this country--to restore the Supreme Court to its intended role, of declaring what the Constitution means in light of how it was reasonably understood when it was enacted. For many years now, Americans often have felt powerless at the hands of a Court that has pursued its own political agenda--an agenda without a basis in the text, structure, or history of the Constitution. I am optimistic that in the years to come, the Supreme Court might play a less prominent role in American life, and might allow the American people and their elected representatives a more prominent role in making the laws that govern them. This year also marks the 5th year since the terrorist attacks on the Trade Center in New York and on the Pentagon. Those attacks still set much of the national agenda, from the wars in Afghanistan and Iraq to the legislation that we are considering in the Senate. On the day that Laura was born, last Friday, the headline in the Washington Post was, ``Patriot Act Compromise Clears Way for Senate Vote.'' I will include this news story in the Record following my remarks. Last December, the PATRIOT Act--an important antiterrorism law that enhances investigators ability to detect and disrupt terrorist plots--was held up in a legislative filibuster. Occasionally, the Senate takes to heart its intended role as a brake on legislative action and throws one of its periodic tantrums. But fortunately, just in advance of Laura's arrival, the impasse over this indispensable law has been cleared. Finally, this moment in time also is marked in this place by legislative action on a slew of reforms to our civil-justice and bankruptcy laws; an attempt to reform our immigration system and control our border; and an attempt to reverse the verdict of the Civil War by authorizing Native Hawaiians to secede from their State. Mention of these projects, however, serves only to highlight their insignificance relative to the arrival of a new child in the world. I doubt that Steven even will remember the laborious policy papers that he produced on all of these topics as he watches Laura grow older. I congratulate Steven and Cara on the arrival of their daughter--on the fact that there is now one more person in the world whom we will all call ``Duffield''--and I wish them good fortune in caring for and cultivating their new charge. I ask unanimous consent that the following Washington Post news story be printed in the Record.

Mr. KYL

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

Mr. KYL. Mr. President, I wish to speak for a moment, first of all, about the process we are going through and then about the substance of a couple of amendments that our colleague from Wisconsin would have liked to have introduced and have a vote on it with respect to the PATRIOT Act. Our constituents might be wondering why we are on the floor of the Senate on this Thursday afternoon discussing the PATRIOT Act. After all, haven't we passed it? Of course, the answer is, in a sense, we have passed it now several times. But there are colleagues on the other side of the aisle who have decided that rather than let the will of the Senate be carried out with adoption of the PATRIOT Act so this bill can be sent to the President so he can then sign it, thus reauthorizing the act for another 4 years and giving the tools to fight terrorism to our intelligence and law enforcement officials that, rather, they are going to make us comply with all of the procedural technicalities which they can throw in our way which accomplishes absolutely nothing but requires us to take several more days to finish the process. What can be gained from this? Nothing at all except that we waste more time thus making it more likely that we will not have time to do other business of the Senate, especially as it gets toward adjournment later on in the year. What we are seeing is taking something very important for the protection of the American people--the PATRIOT Act--and using it for what I believe are improper purposes and simply delay action in the Senate so that we will have less time to act on other items. There is no basis for delaying the PATRIOT Act. The votes are there to go to the conference and have the House of Representatives approve it, again, as it already has, so it can be sent to the President. There are no amendments that are going to be brought up. We are going to have a final vote on Tuesday--and that is it. But rather than being able to accomplish that result today, we are having to waste all of this time. What kind of a message does this send to our allies who are, first of all, a little skittish about some of the news leaks about our surveillance programs in which they participate, to some extent. We get good information from our intelligence service, and I suspect they are worried about the lack of control over our intelligence process. They are not sure, I suspect, what to make of this debate about the PATRIOT Act. They thought we had it resolved so they could work with it on the basis of the laws they understood. They are not sure. I often wonder what Osama bin Laden is thinking. I suspect he is not getting live coverage, but he is probably getting reports somehow or other, and he must be shaking his head: I thought I was pretty clear, I am really making threats against these guys, and they are playing around. They are not taking my threats seriously. I, for one, am taking his threats very seriously--and so does the Director of the CIA and so does Ambassador Negroponte. Our intelligence officials and the people we have asked to do this job for us take this threat dead serious. They have asked the Congress to give them the tools they need to fight this terrorist threat. Part of the tool is this PATRIOT Act, which has now been revised and reformed and amended and gone over again, and, finally, there are now three more changes to it--and it is done. We have the ability now to simply pass it on to the President so he can sign it, and for 4 more years everybody knows exactly what we have to work with here. Remember the 9/11 Commission following the tragedy of September 11, when we asked this commission to analyze what we could have done better and what went wrong, part of what they said was wrong was that there was confusion in our law enforcement intelligence community about what they could and should do. In fact, legal interpretations differed so much they felt there was a wall that separated the intelligence agencies and the law enforcement agencies from even talking to each other. One of the things the PATRIOT Act does is makes clear that there is no such wall; that at least our law enforcement and intelligence folks can talk to each other about these terrorists. It is most distressing that we can't simply get this bill passed on to the President so that everybody knows we have it reauthorized again for another 4 years. As I said, if there were any rationale behind this, other than simply delaying so that we can't do other business, you might have something to bite your teeth into and debate on the floor. But in truth, this thing, when it passes, is going to be overwhelming. I doubt that we will have a handful of votes against it. In fact, we may have less than a handful, which would be 5 votes against this when we vote on it. But I thought at least it would be interesting to see what some of the objectives posed by some of the most vociferous critics of the PATRIOT Act are, what those criticisms are, to examine them so we can see exactly what the complaints are about, about what the President has called an essential tool in the war on terrorism. When you look at the suggested amendments--again, amendments which we are not going to be voting on because we have already been through that process three times and that has thankfully come to an end--I wanted to examine a couple of amendments our colleague from Wisconsin would have offered to illustrate it is not something we should be wasting our time on. One of them has to do with something that has been in existence for 40 years, called national security letters. It is essentially a subpoena for records that is just like a grand jury subpoena. The county attorney or the district attorney goes to the grand jury and says: I think we need the following documents in order to see whether we can make our case. They write up this piece of paper, it is delivered, say, to a hotel, and it asks for the business records: We want to know everyone who checked in and out of the hotel for the last 3 days because we think maybe this person we are after may have checked into this hotel--that would verify his presence on the night of the murder, or whatever the case--so the hotel gives them the records. There is no expectation of privacy in the records. When the hotel clerk says: Here, sign in--and he turns it over, you can see exactly everyone else who has signed into the hotel. There is nothing private about it. These national security letters have been used for many different government agencies. If you are investigated for Medicare fraud, for example, your doctor might get one of these security letters asking for information. Back when the security letters were authorized, we did not have terrorism. Now we have terrorism in a big way in the last decade or dozen years. Law enforcement authorities say: You know that process we have of getting business records through the security letters is a good process, and we ought to apply that to terrorism, too. Why not? If we can investigate drug dealers or bank fraud criminals or people like that with this kind of a subpoena for records, why shouldn't we be able to do it for terrorists? That is a much bigger deal. Now for the first time our colleagues are saying maybe we should have a court process to review this. That process exists in a totally different context. If we want a much more formal procedure, there is something called a Section 215 warrant. That is court supervised. This is the sort of light version. If it is contested, of course, you have to go to court. Most of the time the records are easily given because they are not private records. For the first time in the context of terrorism our colleagues are saying this is an invasion of privacy and we need a court to review this. My point is, it must be very confusing to law enforcement to have Congress debating something like this when there is no rationale for changing the law of 40 years that has been applied in everyday context throughout the country, and all of a sudden where we would want the most streamlined procedure, where we would care most about the cops, where we need speed because we do not know whether an attack is imminent, for example, in the situation that is much more serious, now we are saying we need to throw some roadblocks in the way of the law enforcement tool. It does not make sense. I thought I would take two of the amendments--we are not going to be debating the amendments, but this is the kind of thing raised as an objection to the PATRIOT Act--the kind of amendments that would be offered. It shows how unnecessary this approach is. Let me note one other thing. There have been a lot of unnecessary amendments attached to the PATRIOT Act. It is getting to the point where I wonder whether we can really do the job, our law enforcement community can really do the job that our constituents want it to do. For example, by my count, the final bill that we will send to the President requires 12 different reports or audits of our Nation's antiterror investigators. Obviously, oversight is important. Reports to the Congress are important. But it seems to me this is overkill. Our intelligence agencies should be devoting their resources primarily to investigating suspected terrorists, not to investigating each other. All of these reports simply add to the burden they already have. And we wonder sometimes after the fact, when a September 11 commission reports that they were too burdened to do their job, how that could possibly be. Congress sometimes can be part of the problem as well as part of the solution. All of the changes have been negotiated and renegotiated, as I said. At some point, we need to complete the bill. There are other amendments I would like to add, but I had my chance and this is not the time to be reopening the process for yet another round of amendments. It seems to me we ought to be moving on. I will mention this one amendment. It is actually an amendment numbered 2893 that would have been offered by the Senator from Wisconsin. This amendment would strip away the protections for classified information about suspected terrorists and terrorist organizations in the manner I discussed a moment ago. The amendment not only risks revealing our level of knowledge of our data collection methods to those who would do us harm, but it also threatens to undermine our relations with allies who supply us with a lot of information in this war or terror. They do not do that so it can be given out to the public. The purpose of classification is to see that the information remains secret. But this particular amendment would allow classified information to be compromised during the challenge to a nondisclosure order for national security letters or a FISA business records order. FISA is the Foreign Intelligence Surveillance Act. It serves no substantial interest but, as I said, can be very damaging to our national security. Let me put this in perspective. A section 215 order--which I discussed before, which is a FISA order and is always accompanied by a nondisclosure requirement--already is judicially reviewed, as I said. There has to be a court action on it before it can be issued. And under the amendment that was offered by the Senator from New Hampshire, a third party recipient of a section 215 order also would be able to have the courts review the section 215 order after its issue, which is a second round of review. We have added that in. To my mind this is redundant and unnecessary, but that has been added. That is one of those compromises to enable us to get to this point. Let me put this issue in perspective. A section 215 order, which provides that second round of review, is much different than a national security letter which, as I said earlier, has been around since the 1970s. They have always been accompanied by a nondisclosure requirement. In other words, when the third party is served with this subpoena that says: Would you please give us these records, you are not supposed to tell the person that a law enforcement entity is seeking the records. Obviously, you do not want to tip them off that you are investigating them. There is a nondisclosure requirement. You cannot tell the person that the Government has come asking for the records. That requirement has always been automatic, and there has never been any provision for any judicial review of that nondisclosure requirement. The national security letters, like virtually all other subpoenas, are also not judicially reviewed before they are issued. The conference report, for the first time in the history of these national security letters, authorizes judicial review of the need for the nondisclosure of the subpoenas. That was another compromise that was added. You not only have it in the formal section 215 requirement but also in the less formal security letter process. It allows the recipient to challenge the nondisclosure requirement, and it ensures the automatic nature of the nondisclosure requirement. Now the FBI will have to evaluate each national security letter. The nondisclosure of the NSL and the nondisclosure requirement can only apply if the FBI certifies that the public disclosure of the service of the NSL will harm national security. In other words, before it is issued, the FBI has got to have a certification that the recipient of the letter may not disclose it because to do so would be to harm national security. That certification is based upon a very solemn judgment exercised by the Attorney General. Critics condemn this provision as giving only the illusion of judicial review. When they say that, it bears mention that what they are condemning is language that is being added to a statute that never provided any kind of judicial review before that. For over a quarter of a century there has been none whatsoever, and yet there is a complaint this judicial review is not good enough. The sponsor of the amendment argues that the standard employed for the review of the security letter and the section 215 nondisclosure requirement is too high and can never be met. It is high, but it is very high for a reason. If a challenge is made, the FBI needs to reevaluate whether there is a continued need for the disclosure. But if the FBI certifies that disclosure of the NSL would harm national security, that reclassification is conclusive. Now, when you say ``conclusive,'' that is a very high standard. In this respect, the proponents of the amendment are correct; that is a high standard. But it is the only way the determination can work. Think about it for a moment. Only the FBI, the people who are investigating the matter, not individual district judges, are in a position to determine when the disclosure of classified information would harm national security. Obviously, that is not something that a Federal district judge has any expertise on. You have to have, literally, a trial to determine whether that proposition were true in each particular case. The reason nondisclosure might be necessary should be obvious. If a suspected terrorist or his associates, for example, are funneling money through a particular bank in a city, and if that bank were to make public the fact that it had received a security letter requesting records in a terrorism investigation, that disclosure would easily tip off the terrorists and their associates that they are under investigation. You do not want to do that. It is also important that the FBI make the final determination whether the disclosure would harm national security. And only the agents in charge of these counterterrorism investigations will be able to evaluate how the disclosure of a particular piece of information could potentially, for example, reveal sources and methods of intelligence and who, therefore, might be tipped off as a result of the disclosure. We are all aware of this current controversy regarding the briefing of select members of the Intelligence Committee over a particular surveillance activity involving international communications with members of al-Qaida or people suspected of being with al-Qaida. The reason not every member of the Intelligence Committee is briefed is because of what we would call ``sources'' in this case. Methods of surveillance are so secret, so classified, that it has been determined that even some members of the Intelligence Committee should not be fully briefed on exactly how this methodology works. So you can imagine when the FBI has sources of intelligence to protect or certain methods of intelligence gathering to protect, the last thing you want is for a judge to decide that those should simply be made public. That is why this conclusive presumption is in the law, why it is so important, and why we cannot have this section amended to open that to public disclosure of that sensitive information. Yet this amendment numbered 2893 would allow every one of the 800 Federal district judges in the country, in fact, to be their own director of national intelligence and decide for themselves whether exposing classified information would inappropriately reveal the sources and methods I discussed, whether that might tip off terrorists to what we already know about them, and whether it would harm relations with our allies who, perhaps, have provided us with the information. Obviously, that cannot be allowed. We cannot expect our allies in the war on terror to cooperate with us if we treat this sensitive information that they provide to us with anything other than the most careful consideration. And we cannot expect our agents to be successful in detecting terrorist plots if every step of the way, every time they gather information through either a security letter or the more formal section 215 process, they can be sued and forced to divulge classified information about whom and where they are looking and what methods they are using. This amendment would do serious harm to U.S. national security. And to what end? What powerful privacy interest or civil rights interest dictates a third party asked to produce business records in its possession must be allowed to disclose the existence of the investigation or must be given access to other classified information in order to plead that matter before the judge? When the FBI is investigating organized crime in the United States and grand juries compel testimony or require the production of records, we do not let those witnesses or the parties holding the records publicize the fact that they had been subpoenaed or publicize that there was an ongoing investigation. We recognize that secrecy is important in an organized crime investigation and it outweighs any interest that third parties might have in talking about the investigation. Why wouldn't we recognize the same realities in a terrorism investigation, an area where the safety and security of the American people are much higher? That is the kind of amendment that would be offered. Thankfully, as I said, we decided to go forward with the process and not have any more amendments and have the vote next week which will enable us to send this bill to the President. My point in discussing this is to demonstrate there is no reason to have further debate or amendments, and we could have gotten done this afternoon and known we had reauthorized the act for another 4 years. The only other amendment I want to discuss is amendment No. 2892, blocking these section 215 orders even where relevance is shown. This amendment is highly problematic because it would bar antiterrorism investigators from obtaining some third party business records even where they can persuade a court that those records are relevant to a legitimate antiterrorism investigation. We all know the term ``relevance.'' It is a term that every court uses. It is the term for these kinds of orders that are used in every other situation in the country. Yet the author of the amendment argues that relevance is too low a standard for allowing investigators to subpoena records. Consider the context. The relevance standard is exactly the standard employed for the issuance of discovery orders in civil litigation, grand jury subpoenas in a criminal investigation, and for each and every one of the 335 different administrative subpoenas currently authorized by the United States Code. These national security letters have existed since the 1970s, and they have always employed a relevance standard. Why now that we are faced with a terrorism threat, and we decide this same investigative tool should be available to investigate terrorists would we impose a higher standard to get the information? If anything, you would be talking about applying a lower standard because of the importance of the threat and the fact that sometimes speed is of the essence. As the Department of Justice Office of Legal Policy recently noted in a published report--I want to quote this--``Congress has granted some form of administrative subpoena authority to most Federal agencies, with many agencies holding several such authorities.'' The Justice Department ``identified approximately 335 existing administrative subpoena authorities held by various executive-branch entities under current law.'' As I said, 215 orders already are harder to get than regular subpoenas, even though the subject matter would suggest that perhaps they ought to be easier to get. In the case of these section 215 orders, the law requires that the FBI first seek a determination of relevance from a judge, which makes it harder to get a 215 order than it is to get any other grand jury subpoena or virtually any other kind of administrative subpoena because none of them require preapproval from a judge. Even a grand jury subpoena is not approved or reviewed by a judge or the grand jury before it is issued. It is issued directly by the prosecutor. It is interesting; there was a recent online article in National Review Online by Ramesh Ponnuru, a very good writer and student of this issue, who made the following comments. This is a quotation. He noted that critics say: that investigators shouldn't be able to get business records merely by convincing a judge that the records are ``relevant'' to an ongoing terrorism investigation. Yet that relevance standard, from Section 215 of the law, is the exact same standard employed for discovery orders in civil litigation, for grand-jury subpoenas in criminal investigation, and for each of the 335 different administrative subpoenas currently authorized by the U.S. Code. Getting a 215 order is harder than getting a grand-jury subpoena or almost any kind of administrative subpoena, since judges don't have to review the latter [before they are issued]. Again, this is the current law. So even without an amendment, which would make it even more difficult, the law we are talking about with regard to terrorism investigations makes it more difficult in a terrorism investigation to get a subpoena than in any other situation. Yet the proponents of this amendment would make it even more difficult than that. Now, let's imagine what this means. Here is a scenario: Let's imagine that intelligence agents have discovered that suspected Al Qaida agent Mohammed Atta is in the United States and that he has hired another individual to work for him. Under the Patriot Act legislation being considered now, it will be easier for the federal government to subpoena records in order to make sure that Atta is paying that individual the minimum wage than it will be to obtain records to find out if Atta is using him to engage in international terrorism. That is not right. I was going to say something else. I will just say that is not right. This is the existing law. This is before we would make it even more difficult with the amendment I discussed a minute ago. So without making further arguments on this point, I think you can see that we have girded this PATRIOT Act with levels of civil rights protection and privacy rights protection that we do not have in any other part of the code, even though the need for speed and the need for agility to get after these terrorists is, I would argue, a much more important matter than investigating Medicare fraud or bank fraud or money laundering of whatever it might be. We have not imposed all of those civil rights or privacy protections in those sections of the code, but here we are going to add them and make it even more difficult for the FBI and other law enforcement and our intelligence agencies to do the job we want them to do. Then, of course, if something happens, we will haul them before Congress and say: Why couldn't you get your job done? And when they say: Well, the statute was a little tough for us to comply with, we will say: That will be no excuse. So we need to be very careful what we do in considering further amendments to the law. Mr. President, let me conclude by saying that the other amendments that would have been offered are in the same vein, making it unnecessarily difficult for our intelligence agents and our law enforcement officers to do the job we have asked them to do. When my colleagues and I have had before us on the floor of the Senate amendments to add armor to humvees or to have better bulletproof vests or to have other kinds of equipment or tools for them to carry out the missions we ask them to perform when we send them into harm's way, we do not hesitate long to give our military everything they need because we want them to succeed in their mission. We do not want them to be left vulnerable in any way. Why? Because we want to be protected and we want them to be protected. Yet when it comes to giving our intelligence agencies the tools to fight terrorism, we shirk back and say: Well, we are going to do it, but first we are going to add several layers of additional requirements to make it more difficult for you to do your job. In the law and in this fight against terrorism, we are generally not fighting with airplanes and ships and the like. This is a different kind of war. This is a war against a very secretive enemy all over the globe. There is really only one way to get to this enemy, and that is with good intelligence to find out who they are, where they are, and what they are up to. So the equipment we are giving to them, the tools for them to fight terror are these provisions of the PATRIOT Act and FISA and the other activities that have been discussed. This is what enables them to perform their missions. We cannot load these tools up with so many restrictions and legal loopholes that it is impossible for them to do their job. If we expect them to be able to protect us, we have to write these laws in clear, understandable, fair, and effective ways, certainly protecting our civil rights. But I think I have demonstrated we have done that. If you do not need all these protections if you are investigating bank fraud, then I would say, as the lawyers say: A fortiori. They are less necessary in an investigation of terrorism, where speed may be required, where secrecy is absolutely critical, and therefore where the kind of protections that have been offered are very problematic to these folks doing their job. So the bottom line is this: We have a good act, the PATRIOT Act. It is going to be reauthorized for another 4 years. We have already added numerous protections of civil liberties to it. It is, therefore, quite appropriate that the time for amendments has come to an end, that we not have any more of these amendments brought before us--I think I have demonstrated the harm those amendments would do--that we get on to the job of getting this legislation reauthorized so we can say to our constituencies we were able to provide the tools to fight terrorism that will protect them and their families. That is our charge. There is only so much we as legislators can do, but this is something we can do, and we need to get about doing it.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet on Monday, February 13, 2006, at 10 a.m. for a hearing titled, ``Hurricane Katrina: Waste, Fraud, and Abuse Worsen the Disaster.''

Mr. KYL. Mr. President, I ask unanimous consent that the Permanent Subcommittee on Investigations be authorized to meet on Monday, February 13, 2006, at 8:30 a.m., for a field hearing at James J. Hill Reference Library in St. Paul, MN, entitled ``Volatility in the Natural Gas Market: The Impact of High Natural Gas Prices on American Consumers.''

Mr. KYL

Mr. KYL. The IRS statistics--and this comes specifically from table 3.6, 2003, of a report called ``Individual Income Tax Returns, Returns with Modified Taxable Income: Taxable Income and Tax Classified by Each Rate at which Tax Was Computed and by Marital Status.'' If you look under that table, what you will find is that based upon actual IRS data estimated from 2003, the people who had taxable income of less than $50,000 on a per return basis, saved about $171 each. In 2008, the tax rate is reduced from 5 percent to zero for these taxpayers. Based upon the same data, that allows the rate to expire, which would result in a $341 tax increase on each of the almost 10 million taxpayers in these two lowest income tax brackets if we do not extend this tax rate at its current level. What are we saying? If we do not take action and extend this current rate, what we are going to have for these lower income tax payers, those who make $50,000 or less, is they will see a $341 tax increase on each of those almost 10 million taxpayers. That is a far cry from this figure of $11, which is simply wrong. The bottom line is, not only will more taxpayers receive relief under the extension of the capital gains and dividends part of what we hope will be the conference report than those who receive AMT relief, it will be substantial relief. If we allow these rates to expire, there is going to be a substantial tax increase on these people in the lowest brackets, those making $50,000 and below. They will see a $341 tax increase. I would call that real money. I call that amount of people real people. I mentioned before the people making $100,000 or less. What about those making less than that? If you look at those with adjusted gross incomes of $30,000, for example, with regard to dividends, 19.2 percent of the people reporting dividends were in that income category. With respect to capital gains, likewise, at that lower adjusted gross income of $30,000, 18.5 percent of those reporting long-term capital gains were in that category. The bottom line is, whether you are talking about less than $100,000, less than $30,000--I mentioned the amount of money received from those making less than $50,000--whatever category you are looking at, you better extend the current rates or there will be millions and millions of these low-income taxpayers receiving a big hit on their taxes. Let me be very plain. We are not talking about additional cuts in taxes. What we are talking about is just keeping the existing tax rates. If we do not extend them, millions of low-income Americans are going to see a huge increase in their tax bill; one that is unanticipated, unappreciated. We cannot afford to allow that to happen. I hope we could agree, those who agree there should be relief from the alternative minimum tax, that we also need to continue to provide the relief from the dividends in capital gains taxes as well. In addition to talking about this in terms of American families, it is important to understand what this has done for our economy. The fact is, all taxpayers, all workers in this country, all people who have jobs, all benefit from the economic expansion that has occurred largely as a result of the tax policies the President has proposed and to which Congress has agreed. It would be folly to allow those tax policies to expire. What kind of impact have these tax policies had on the gross domestic product? Whether you embrace these lower rates or not, you have to acknowledge they have helped our economy, which grew at a 4.1-percent annual rate in the third quarter of last year, the 10th straight quarter in which gross domestic production grew at a rate above 3 percent. It is interesting to compare this with the European economies. For 2005, the Euro area gross domestic production grew at only 1.4 percent. Economists predict for 2006 it will be about 1.9 percent. The United States, by contrast, is expected to grow at 3.6 percent for 2006, according to the CBO. What does this mean, or how does the gross domestic production actually increase? You have to have business investment, primarily small businesses. Interestingly, business investment fell in the nine consecutive quarters before the 2003 tax rate bill was passed. For nine consecutive quarters, businesses were not investing. Investment was declining. So in 2003 we passed these additional tax rates. What happened was cutting taxes on capital helped reverse the decline. In the 11 consecutive quarters since these tax cuts, business investment measured by nonresidential fixed investment has increased each and every quarter. In fact, business investment has continued to increase even after the expiration of the temporary bonus depreciation for business investments expire. Interestingly, it has not just been businesses that have seen additional revenue as a result of the investment, but there has been job creation from these tax cuts. But, ironically, these tax cuts--or paradoxically, I could say--have also provided increased revenues to the Federal Treasury. According to a recent report by the CBO, capital gains revenue is 16 times greater than it was forecast to be. Government estimators predicted that the reduction in capital gains rates enacted in 2003 would cost the Federal Government $27 billion in lost revenues for 2004. CBO's most recent report shows that the lower rates actually brought in an additional $26 billion in revenue. Instead of costing $27 billion, the lower rates actually made $26 billion for the Treasury. Why does that happen? It is fairly obvious. You are holding assets, and if you sell them, it will cost you 20 percent in taxes, 20 percent of the gain. That is a pretty stiff tax. You do not want to do that. Congress comes along and says: We will reduce that down to 15 percent. Small businesses, in particular, say: Great; in that event, we will pay less in taxes, 25 percent less. We will go ahead and sell the asset and only pay 15 percent. So more people do that than were expected to sell assets so even at a lower rate, because of the increase in volume, the Government ends up making a lot more money. Think of it this way. You are a department store. When you go to the department store and there is a big sale over the week, how can the department store make any money? It is simple. They reduce the price they sell their product for, but there is so much more of the product sold that they more than make up for the reduced cost by the volume of sales. It is the same thing that occurs here. Lower the rate a little bit, but that attracts people to sell their assets, to take advantage of that lower rate. And that increased volume in sales more than makes up for the reduction in the rate. That is why you have to be a little careful with the CBO projections about the ``cost'' to the Federal Government of lower taxes. Frequently, the cost ends up not to be a cost at all but an increase in actual revenues. That is precisely what has been occurring here. It is interesting that according to the same CBO report, the Government took in $60 billion in capital gains taxes in fiscal year 2004, which is a 20-percent increase from 2003. And it is projected that capital gains taxes coming into the Treasury increased another 25 percent in 2005--up $75 billion. That is real money no matter how you calculate it. We cannot say for certain that the lower tax rates will always continue to make revenue for the Treasury in the future, but looking back we can sure conclude that these investment tax rates have thus far been nothing but good news for the Treasury. That means good news for all of us because instead of the Government going further into a deficit situation, this increased revenue is helping us to keep the deficit more under control. It is interesting that overall revenues are up in 2005. The Treasury collected $2.15 trillion in revenues, which is the highest level of Federal receipts in history, and it is $274 billion more than collected in the previous year. Remember, this is with lower tax rates. Yet we still took in $274 billion more than collected the year before. That is a 14.6-percent increase overall. CBO has projected individual revenues for 2006 will be up 8.2 percent, greater than they were from 2005, and that corporate receipts will be 8.6 percent higher. Revenues for December 2005, just to take that month, were 12 percent higher than they were for December 2004. Corporate receipts were up about 33 percent, and receipts from individual income tax payments were up about 5 percent. This is the biggest reason we should not in any sense be accepting arguments that somehow we need to have what some people around here call pay-go, where you take the CBO estimates of how much a tax reduction is going to cost the Treasury, and somehow you make that up in additional revenue. So that net, you are not reducing taxes on the taxpayers at all. What is the point of a tax reduction if it is not a real tax reduction; if you are just taking money out of one pocket but then you have to add it from the other pocket? It makes no sense. In fact, it is just reversed. We should not be talking about the cost to the Treasury; we should be talking about the cost to the taxpayers. They are the ones who have to pay. It is their hard-earned money. We cannot spend a dime in Congress that somebody did not work very hard to earn to send back to Washington in the form of taxes. When we talk about increasing taxes or decreasing taxes or keeping the level of the taxes where they are right now, and we calculate the cost to the Federal Treasury, I say forget that. I am worried about the cost on my constituents. They are the ones who will invest. They are the ones who will hire more people if we let them keep more money. And that means more people will have jobs. If people have jobs, they will pay more in taxes and the Government will continue to collect more revenue. The statistics I have quoted demonstrate that a sensible tax policy, one which doesn't set the rates too high, will actually end up bringing more revenue into the Federal Treasury than one which tries to set the rates too high. That is why since pay-go does nothing about the spending side of the equation, which is what is driving up the deficit--because our big entitlement programs: Medicare, Medicaid, and Social Security are not affected by that. It does nothing to affect them whatsoever. The only thing it does is require if we have a tax reduction we have to have a tax increase somewhere else so it comes out even. That does not do the economy any good at all. The bottom line is the provisions of the bill before the Senate, as well as those that are likely to come back to the Senate from conference, will be helpful to individual taxpayers in the lower income brackets and helpful to families who create small businesses, who have small businesses that create jobs. They will be helpful to the economy as a whole and even helpful to the Federal Treasury. I will refer a little bit to this argument made by some, including my good friend from Montana, that we cannot afford to do both the 1-year fix for AMT; that is to say, have most people not pay the unanticipated taxes under the alternative minimum tax, and also the relief we would provide by continuing the existing tax rates for capital gains and dividends. The fact of the matter is, we can, and we will, do both. Within the next 3 or 4 weeks, we will have done both, and the country will be better off for it. There is about $30 billion that is required to provide the so-called fix for the alternative minimum tax to make sure that at least most taxpayers are not going to be stunned by that tax this year. I support that. The AMT is a feature of our Tax Code that has gone awry. As I said, both Senator Baucus and I have sponsored legislation to do away with it. Its intended purpose was to make sure very wealthy people could not zero out their tax liability by claiming what are, in fact, legitimate deductions and exemptions and credits. But they were being used to the point that some people paid virtually no taxes or no taxes. Congress decided: Well, everybody has to pay something, everybody except people at the low income. But because it was not indexed for inflation, and, as it turns out, it is almost impossible to target just the ``rich,'' the AMT has gone awry. It has crept into the middle class. If we do not stop it, before long it is going to affect virtually all taxpayers. So what the bill provides is an increased exemption for 2006 so that the exemptions do not drop back to pre-2001 levels. It also prevents certain credits from being eroded by the AMT. The net result is that most people should not have to worry about the AMT tax bill for this year. But the bottom line is, we can do that and also provide the relief for capital gains and dividends, according to the calculation of the ``costs'' for that relief. In other words, extending for 2 more years the existing rates for capital gains and dividends, that is a little more than $20 billion. So when Congress passed the $70 billion in relief in the budget last April, and asked the committees to come back with their reconciliation in taxes for that amount, we wanted to make sure no one would pay higher taxes during this 5-year budget window. We can do that by extending the same rate for capital gains and dividends--that is about $20 billion--providing this year of relief from the alternative minimum tax--that is about $30 billion--and there is still something like $16 billion or $20 billion, about $20 billion left over for other provisions which we also want to take care of. I am also going to discuss some of these other provisions because I think it is very important for anybody who might think about voting against this bill to appreciate what they would be voting against. First, they would be voting against the savers' credit. The savers' credit is a nonrefundable tax credit that encourages low-income taxpayers to make contributions to an employer-provided retirement savings plan or an IRA. This tax reconciliation bill extends that credit through 2009. It is currently scheduled to expire at the end of this year. Nationwide, almost 5.5 million filers take advantage of this tax credit. By the way, almost 100,000 of those filers are in my State of Arizona. How about small business expensing? Under current law, small businesses can deduct the cost of qualified investments in the first year they are made, up to $100,000, indexed for inflation. After 2007, this amount will drop back to $25,000. What our bill does is to extend the increased amount through 2009. Keeping the increased amount enables small businesses to continue to invest and grow. Now, if you vote against this bill, here is something else you will be voting against: the above-the-line deduction for college tuition expenses. Under current law, the provision that allows a taxpayer to take an above-the-line deduction for college tuition costs expired at the end of 2005. It is done. The full deduction is available for joint filers with income under $130,000 and is phased down for higher income filers. The tax reconciliation bill, the bill that is before us, would extend it through 2009. We have to do that this year because it has expired. Above-the-line deductions are important in this case because they are available to nonitemizers, while most deductions, below the line, are only available to those filers who itemize. Nationwide, over 3.6 million filers claimed this deduction in 2004. About 74,000 of those filers, by the way, were in my State of Arizona. There are some other extenders. The President talked about some of these in his State of the Union speech. For example, the R&D tax credit that is so important to continued research and development in our country. And there is the 15-year depreciation recovery period for restaurant improvements, the 15-year depreciation recovery period for leasehold improvements. This bill also extends the deduction for teachers who pay for some expenses out of their own pocket. This is something I introduced some years ago. In fact, if my recollection serves, the average teacher spends about $500 a year out of her or his own pocket to bring supplies to school that are not paid for by the schools in order help teach the kids. We provide a deduction for that. Nationwide, there are 3.3 million filers who take advantage of that. And 62,000 of those are in my State of Arizona. Finally, to mention the sales tax deduction. This is very important. It is not important in my State in particular, but it sure is important in some other States. For 2004 and 2005, taxpayers living in States without income taxes could take an itemized deduction for State and local sales taxes in lieu of the existing deduction for State and local income taxes, from which they get no benefit. The reconciliation bill would extend this option for 2006. Nationwide, 12.3 million families and individuals will benefit from the sales tax deduction this year, 2006. So the bottom line of all of this is that this bill is not just about the AMT and capital gains and dividends; it is about a lot more. My colleagues who want to help average taxpayers, people who do not even itemize their deductions, teachers, small businesses--all of these taxpayers are benefited by the bill we have before us. It is important for us to support these taxpayers, by the millions, as I said. There is a final point; that is, a point that Senator Baucus has raised concerning the so-called Byrd rule. This is a very technical, rather arcane point about revenue loss beyond the budget window. The two tax-writing committee chairmen in the House and the Senate are well aware of this requirement and will make certain the conference agreement complies with all rules of the Senate by including any necessary offsets, as the Senate-passed reconciliation bill complies with all rules of the Senate. So I want to assure my colleagues that the problem that has been raised is not going to be a problem by the time we conclude voting on this legislation. They can rest assured of that. So, Mr. President, I urge my colleagues, as they consider any motions to instruct conferees this evening, that it is all well and good to tell our conferees what we think, but the bottom line is, we need to get this bill into conference so the conference committee can issue a conference report that we will then deal with and our House colleagues will then deal with, that will continue the tax rates that currently exist, that will continue the deductions and exemptions we currently have for all these taxpayers we talk about, that will not allow taxes to increase on our constituents. That is what this bill is all about-- nothing more, nothing less--no tax increases. Thank you, Mr. President. Exhibit 1

Mr. KYL. Mr. President, let me respond to the kind invitation of the ranking member of the Finance Committee, on which I sit, to speak to the matter that is before us. I appreciate listening to his remarks about various aspects of the reconciliation tax bill and features thereof. Let me speak to some of those items as well. There will be a lot of debate, I suspect, over the next several hours--much of which has very little to do with the Senate bill--but I think in anticipation of what is likely to occur in the conference committee when the Senate bill joins up with the House bill and we decide what provisions to take from each of those bills and bring back to our respective bodies. Clearly, discussion about the capital gains and dividends extension will be part of that discussion. Let me start with that. I want to begin by noting that the budget resolution which the conference reached in April provides reconciliation protection for $70 billion in tax reductions over 5 years with the direction that the allocations be used to prevent tax-rate increases during the budget window, which is 2006 to 2010. Let me repeat that. The instruction that we gave for this budget was to prevent tax-rate increases during this budget window. If we do not take action, there will be tax-rate increases during this budget period. This, as the President said in his State of the Union speech, would be both unanticipated and very unwelcomed by the American people. What exactly do we mean by that? Talking about capital gains and dividends, what we did back in April was send a signal to investors that capital gains and dividend tax rates would be extended through 2010. Investment advisers have been alerting their clients that in their planning they must consider that the tax rates have not yet been extended and may, in fact, expire in 2008. The conference agreement that comes back to our respective bodies needs to extend these investment tax rates to give these investors certainty and to give businesses certainty about how they raise funds to expand their operations. When Secretary Snow testified before the Finance Committee a week ago, he said it was his opinion that the investors in the country, those people who helped create jobs by investing in our businesses, had already determined that it was likely these tax rates would be extended. He said, if we do extend them, which we anticipate doing, that is built into the market right now. But he said if we should fail to do so, we could anticipate that the market would react very negatively to our failure to do so. The reason, of course, is obvious. Investors want to know what the return on their investment will be 3 or 4 years out. That is when they will likely turn the asset that will provide the profit or a deficit for them. They want to know what that return is likely to be, which means they want to know what the tax rate is. The tax rates that will expire in 2008 do not tell them what they need to know. We have the opportunity to extend those tax rates through 2010 and prevent an increase from occurring, and that is precisely what we ought to do. It is interesting that these particular taxes are very important to the majority of taxpayers in the country. These are not the so-called tax cuts for the rich. These are a continuation of existing tax rates for a majority of tax filers. More than half of all Americans own stocks, either directly or through mutual funds. The 2003 marginal rate cut on investment income worked by giving investors an incentive to put more of their money to work in the markets. At the lower rates, the tax penalty imposed on the additional investment earnings, the reward for taking on additional risk, is smaller than before, and it makes the risk more attractive. When investors get to keep more of their reward, they are encouraged to invest more. With more investment, businesses have an easier time attracting the capital they need to expand, create new goods and services, and also create new jobs. It is all part of this additional economic activity that creates this economic growth. Americans support the extension of these tax rates. A recent poll by the Pew Research Center, released on January 24, found that ``half of Americans support extending reductions in taxes on investment income such as capital gains and profits from stock dividends, while 35 percent believe these tax cuts should not be extended.'' I intend, by the way, to support extending the tax cuts by 34 percent, 35 percent. The reason is very apparent-- because it benefits millions of taxpayers. These lower rates have helped millions more taxpayers than other popular tax provisions; for example, the alternative minimum tax relief that we want to enact as well. Let me do a comparison between the AMT, which both Senator Baucus and I would like to see repealed, how many people would benefit from our relief from the alternative minimum tax versus how many would gain relief from an extension of current rates on capital gains and dividends. It turns out, of all taxpayers that pay the AMT--these are figures from the 2003 tax year, which is the last year--9.7 percent had adjusted gross incomes under $100,000. Meanwhile, of all taxpayers reporting capital gains in 2003, 67.5 percent had adjusted gross incomes under $100,000. Of those reporting dividend income in that year, more than 70 percent had adjusted gross incomes under $100,000. Nationwide, fewer than 8 million filers would be helped by the AMT hold-harmless provisions, while nearly 20 million filers would be helped by the dividend relief that we would extend, and just over 7 million filers would be helped by the relief from capital gains. Here is the bottom line: A lot of Americans--over half--are now invested in the stock market. A lot of people will receive benefits if we continue the current tax rates for dividends and capital gains. Over 20 million of these filers under $100,000 will have dividend income and over 7 million will have capital gains income. That is compared to those taxpayers whom we will help under the AMT relief that we provide of about 8 million filers. The bottom line is, other than the wealthy in our country, we are talking about helping people with both kinds of relief, but far more will benefit from the capital gains relief, and especially the dividend relief, than will benefit from the AMT relief. Some of our colleagues understand that and say: We understand in terms of pure numbers there are a lot more taxpayers, especially in the lower income categories, who will benefit from dividends and capital gains relief than AMT relief. What about the fact that maybe they do not get as much relief, that the dollar amount is not as much? There is a myth floating around that it is actually very low. In fact, there is something being quoted as IRS statistics--and they are not IRS statistics. They are from a report of a group called the Center on Budget and Policy Priorities and also the Brookings Institute Tax Policy Center, which claims IRS data shows the taxpayers with income of $50,000 or less only receive a benefit of $11 per return from the lower rates on dividends and capital gains, and the benefit for taxpayers with income under $75,000 would only be $77 per return. That is just plain wrong. First of all, the data is not from IRS. What is the data from IRS showing? Mr. President, I ask unanimous consent a couple of charts be printed in the Record after these remarks to show what I am talking about.

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

Mr. KYL

Mr. KYL. I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. KYL. I send an amendment to the desk.

Mr. KYL. Mr. President, I will be brief. For those who have been involved in this issue, it has been discussed actually since last August and deals with the small companies or businesses that would be paying into the fund that is the subject of this bill. The amendment is designed to reduce the impact of the trust fund on the small- and medium-sized companies and to ensure that the fund does not drive them into bankruptcy. It does principally two things. First, it provides across-the-board relief to small- or midsized companies, those with annual gross revenues of less than $1 billion, by limiting their trust fund contributions to 1.67 percent of their gross revenues. This per se relief should resolve most ability-to-pay problems that are created by the fund with certainty and without administrative burdens. For those who do not qualify for this across-the-board relief or for whom it is not enough, the amendment provides a second form of hardship relief. It authorizes the administrator to reduce the company's fund assessments if the company otherwise would go out of business and would be unable to pay its bills. To be exact, under the amendment, a company can qualify for an adjustment if it can show that its fund payments ``would materially and adversely affect the defendant participant's ability to continue its business and to pay or satisfy its debts generally as and when they come due.'' Under this amendment, access to this form of relief would be unlimited. This amendment does not solve all of the problems with the trust fund allocation of payments. I anticipate there will be other amendments to address some of those issues, and I support some of those amendments, as well. I believe this amendment does go a long way toward solving the problem I identified. What this amendment does do is shave off some of the roughest edges of this bill. This amendment makes the hardship adjustment a real and predictable guarantee. The way that the bill currently is written, some small- and medium-sized companies will be hit with trust fund payments that will constitute a major portion of their gross revenues. These companies obviously will not be able to make these payments. While the bill currently authorizes an insolvency hardship adjustment, that hardship adjustment is vaguely stated and includes limitations that undercut its usefulness for many companies on the margins. Literally, companies faced with crushing payments under the bill would be forced to tell potential creditors or capital markets, ``yes, we will be required to pay 25 percent of our gross revenues into the trust fund under the FAIR Act, but we might be able to get a hardship adjustment.'' You can see why these companies might have trouble getting a loan. Under my amendment, these same small- and medium-sized companies will be able to tell the banks and potential investors that they will not be forced to pay more than one and two-thirds of a percent of their gross revenues into the fund. By providing guaranteed reasonable limits on assessments, this amendment will make it possible for these companies to continue to engage in normal business transactions. This amendment does not directly affect the availability of inequity adjustments under the trust fund. The amendment does, however, indirectly expand the availability of inequity adjustments by making hardship adjustments into a separate category that is not drawn from the $300 million that is currently set aside for both kinds of adjustments. That $300 million will now be set aside solely for equity adjustments. Also, the amendment does not in any way affect the fund's guarantee of producing $3 billion a year for compensating victims. Under the bill as it is currently written, in the event of any shortfall in reaching that $3 billion, a guaranteed payment surcharge is imposed on all defendant participants in order to make up the difference. Thus, to the extent that relief received by any defendant pursuant to this amendment prevents the fund from reaching the $3 billion target, that gap will be filled by the payment surcharge. This amendment, therefore, in no way adversely affects the FAIR Act's funding guarantee. Allow me to describe in greater detail exactly how this amendment works. Under the amendment, no defendant participant, other than a Tier I participant, with 2002 revenues of less than $1 billion is required to contribute more than the greater of 1.67 percent of its revenues as of December 31, 2002, or 1.67 percent of its revenues for the most recent 12-month fiscal year. The revenue cap employed by this amendment matches the 1.67 percent of gross revenues that is the measure of Tier I contributions. Also, only companies that elect to report on a consolidated basis may take advantage of this revenue cap. This amendment's revenue cap is only a rough measure of ability to pay. It is, however, easy to administer, and it is less subject to manipulation than other measures, such as net income. As for the amendment's changes to the hardship adjustment, first, there currently are two hardship provisions in the bill--section 204(d)(2), which provides relief generally for severe financial hardship and which is subject to the $300 million hardship and inequity cap, and section 204(d)(5), which allows the cap to be exceeded if otherwise a company would be forced into insolvency. My amendment would rewrite (d)(2) to provide clearer standards, eliminate (d)(5), and make clear that there is no cap on hardship relief. The result is a simpler proposal more attuned to the needs of potential hardship-adjustment applicants. Under the amendment, any defendant participant can apply for hardship relief, whether it is in Tier I or not, and whether or not it reports on a consolidated basis. However, in the case of defendant participants that do not file on a consolidated basis, the administrator must examine the real financial situation of the defendant participant by taking into consideration the financial position of the affiliated group. Again, under the revised hardship adjustment in this amendment, the Administrator may grant an adjustment if he concludes that the amount of a defendant participant's payment obligation would materially and adversely affect the defendant participant's ability to continue its business and to pay or satisfy its debts generally as and when they come due. The amount of relief would be limited to the amount necessary to avoid the problem. In determining whether to grant an adjustment under this revised provision, the administrator will required to consider, among other things: the historical audited financial statements for the defendant participant or affiliated group for the three years immediately prior to the application for relief; projected financial statements for the 3 fiscal years following that application; an analysis of capital spending and fixed charge coverage on a historical basis for the 3 fiscal years preceding and the 3 fiscal years immediately following the application; any payments or transfers of property made, or obligations incurred, by the defendant participant during the 6 fiscal years prior to the application to or for the benefit of any insider; any extraordinary transactions of the defendant participant, including payments of extraordinary salaries, bonuses, or dividends, within the 6 fiscal years prior to the application; the defendant participant's ability to satisfy its payment obligations to the fund by borrowing or financing with equity capital, or through issuance of securities to the fund; and the defendant participant's ability to postpone discretionary capital spending for a reasonable period. The term of any adjustment under the amendment shall be 5 years, unless the administrator determines that a shorter or longer period is appropriate in light of the financial condition of the defendant participant. Any adjustment under the amendment may be renewed upon a showing that it continues to be justified--and it is automatically terminated if the defendant participant files for bankruptcy protection. The amendment also eliminates provisions for recapture of hardship adjustments, except in cases of fraud. The current bill's provisions for frequent review of hardship adjustments and potential for giving adjustments back have significantly reduced the usefulness of these adjustments in addressing the concerns of companies on the margins. If these adjustments aren't reasonably predictable, they are not useful either. Finally, under the amendment, companies that have received discounts off their tier/subtier allocation because of the cap or hardship adjustments would only get the benefit of cumulative step downs to the extent that the step downs exceeded the amount of the discounts the company already had. The same rule applies for hardship adjustments.

Mr. KYL

Mr. KYL. Mr. President, I rise today to put into the Record a letter that Senator Graham and I recently sent to the Attorney General, and to respond to misrepresentations that have been made in the press and by others regarding the circumstances of the enactment of the Graham amendment to last year's Defense Authorization bill. The letter responds to similar misleading attacks that were made against the Justice Department at the beginning of this year. My office has received several inquiries about this letter, which was sent to the Attorney General on January 18. So that anyone interested in this matter might review the letter, I will ask to have it printed in the Record. I ordinarily would not comment on the meaning of legislation that already has been enacted into law. In this case, however, there has been a considerable amount of post-enactment commentary by others on the meaning of the Graham amendment. Much of this commentary insinuates that the Administration and the backers of the amendment are violating an agreement with members of the minority by characterizing the amendment as governing pending litigation. Since the enactment of the Graham amendment last December, some critics have begun to paint a revisionist history of this legislation. In this new account, the Graham amendment supposedly was intentionally modified by the Senate so as not to affect pending litigation. Also in this version of events, Senators relied on representations that the amendment was modified to carve out pending litigation when they voted in favor of its final passage. This conspiracy theory is without foundation. For those unfamiliar with the Graham amendment, the disputed provision in the legislation changes the Federal habeas code by adding a subsection providing as follows: ``Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.'' The amendment also provides that ``[t]his section shall take effect on the date of the enactment of this Act.'' In addition, the amendment establishes substantive standards for limited judicial review of CSRT determinations and military-commission decisions, and provides that the paragraphs creating those review standards ``shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.'' Some critics now assert that nothing in the amendment prevents pre- enactment habeas actions from going forward in their previous form. For reasons explained in the letter to the Attorney General, I believe that such an interpretation is untenable. In addition to the points made in the letter, I would also add the following: the amendment states that the changes that it makes to the habeas code ``shall take effect on the date of the enactment of this Act.'' If the current pack habeas cases are allowed to go forward in their current form, the law's provision that ``no court, justice, or judge shall have jurisdiction'' to hear those cases in that form will not be effective on the date of the law's enactment. Rather, the courts still would have jurisdiction over these cases after the date of enactment, and the law's all-encompassing jurisdictional bar would become effective only when the current litigation would exhaust itself--a date that likely would come only years in the future. Such a result would not be consistent with the requirement that the law's total jurisdictional prohibition ``take effect of the date of the enactment of this Act.'' Of those critics who argue that the amendment carves out pre- enactment habeas cases, I would simply ask, what part of ``no court, justice or judge'' do you not understand? How could this language possibly be more comprehensive? And how could any Senator possibly have been misled as to its effect? Some of the recent criticism of the amendment in the press has taken a new tack. A few critics have begun to suggest that even if the legislative text of the Graham amendment does wipe out the pending habeas cases, Senators were affirmatively misled about this aspect of the final amendment. The allegation is that Senators were led to understand that the amendment that they were voting on would not affect pending cases. I have reviewed the legislative record from the days leading up to the vote on final passage of the Graham amendment, and find this suggestion wanting. Allow me to describe what was actually said about the original version of the amendment--the Graham/Kyl amendment--as well as the final version, the Graham/Levin/Kyl amendment, prior to their passage. On November 10, Senator Levin stated with regard to the original Graham/Kyl amendment, ``I read the language as to how broad it is. It eliminates explicitly any appeal: No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus, and that is the way an appeal goes to a court from one of these people. It is eliminated.'' (151 Cong. Rec. S12665.) Similarly, later that day, Senator Bingaman characterized the original Graham amendment as follows: ``It essentially denies all courts anywhere the right to consider any petition from any prisoner being held at Guantanamo Bay.'' (151 Cong. Rec. S12667.) And later, on November 15, Senator Durbin said the following about the original Graham/Kyl amendment: ``the amendment would eliminate habeas for detainees at Guantanamo Bay. . . . It would strip Federal courts, including the U.S. Supreme Court, of the right to hear any challenge to any practice at Guantanamo Bay, other than a one-time appeal to the D.C. Circuit. . . . It applies retroactively, and therefore also likely would prevent the Supreme Court from ruling on the merits of the Hamdan case, a pending challenge to the legality of the administration's military commissions.'' (151 Cong. Rec. S12799.) Thus from the beginning, Senators recognized and emphasized to their colleagues that the original Graham amendment language was comprehensive. They also recognized and emphasized that the amendment barred pending cases from going forward, including the Hamdan case in the Supreme Court. These aspects of the original amendment not only were generally acknowledged, but were a point of controversy during the Senate debate. Had the subsequent Graham/Levin/Kyl amendment departed from the original amendment by carving out pending cases, this would have been a momentous change. Aside from the fact that such a change would have gutted the amendment, it also would addressed one of the issues about which opposing Senators had expressed sharp concern. Surely, had such a change been made or even intended to be made, the fact would have been noted. Instead, it is the dog that did not bark. First, neither Senator Graham nor I ever said anything in the days leading up to the final vote on the amendment that could possibly suggest to anyone that the modified amendment exempted pending cases. Senator Graham is the lead sponsor and I am an original cosponsor of the amendment that passed the Senate on November 10. We controlled the amendment. No one was in a better position than we were to describe what the amendment does and does not do. Had such a major change to the amendment been made, it is inconceivable that one of us would not at least have commented on it. No such comment or even the suggestion of such a change was made by either one of us. Indeed, the few statements that Senator Graham did make prior to passage of Graham/Levin/Kyl that describe the amendment's reach tend to confirm that the amendment does not treat detainees differently based on when they filed their claims. For example, on the evening of November 14, when the final amendment was introduced, Senator Graham noted that ``[i]nstead of having unlimited habeas corpus opportunities under the Constitution, we give every enemy combatant, all 500, a chance to go to Federal court, the Circuit Court of Appeals for the District of Columbia.'' (151 Cong. Rec. S12754.) ``What we have done, working with Senators Levin, Kyl, and others, we have created that same type of appeals process for all military commission decisions.'' Ibid. During that same evening, Senator Levin also commented on the new amendment. Although he said that the amendment did not ``strip jurisdiction'' from the courts, he made clear that he meant that jurisdiction remained in place because the pending cases--including challenges to military-commission decisions--could go forward as claims invoking the substantive review standards of the new amendment. Senator Levin stated: ``What we have done in this amendment, we have said that the standards in the amendment will be applied in pending cases, but the amendment will not trip the courts of jurisdiction over those cases. For instance, the Supreme Court jurisdiction in Hamdan is not affected.'' (151 Cong. Rec. S12755.) Again, later: ``what our amendment does, as soon as it is enacted and the enactment is effective, it provides that the standards we set forth in our amendment will be the substantive standards which we would expect would be applied in all cases, including cases which are pending as of the effective date of this amendment.'' Ibid. And again: ``because it would not strip courts of jurisdiction over these matters where they have taken jurisdiction, it does, again, apply the substantive law and assume that the courts would apply the substantive law if this amendment is agreed to.'' Ibid. Whether the amendment, by barring one type of claim and authorizing another type to take its place, strips the courts of jurisdiction, is, to some extent, a matter of perspective. It is a question of whether the glass is half empty or half full. On the operative issue, however, Senator Levin's remarks on November 14 are consistent not only with my own and Senator Graham's characterization of the amendment (see, e.g. 151 Cong. Rec. S14263), but also with the interpretation now advanced by the Justice Department: that the current claims can go forward, but only as claims for review under the substantive standards created by the new act. It bears mention that the revised amendment's authorization of judicial review of military-commission decisions, though narrow and venue-restricted, was a substantial departure from the original amendment. As Senator Levin had emphasized on November 10, the original amendment ``eliminates court review of the sentences of enemy combatants before these commissions.'' (151 Cong. Rec. S12664.) He stated that the amendment even ``eliminates the appeal of a conviction that led to a capital offense.'' (151 Cong. Rec. S12665.) Under the original Graham amendment, no appeal of any kind would have been permitted from the military-commission verdict in the Hamdan case. The revised amendment does allow limited appeals of final military- commission decisions. In fact, this change was described to Senators as the principal difference between the original and revised Graham amendments. Senator Levin noted on the morning of November 15, before the vote on Graham/Levin/Kyl: The amendment which was approved last Thursday, which is the one now awaiting this amendment, would have provided for review only for status determinations and not of convictions by military commissions. . . . One of the reasons I voted against the amendment last Thursday is that it did not provide for that direct judicial review of convictions by military commissions. That is the major change in the amendment before the Senate, the so-called Graham-Levin-Kyl amendment which is before the Senate. There are a number of other changes as well, but of all the changes, what this amendment does is add . . . a direct appeal for convictions by military commissions. (151 Cong. Rec. S12754.) Other Senators speaking about the amendment prior to the final vote did not even view the detainee's glass as half full. On the morning of November 15, Senator Specter exhorted his colleagues to oppose the amendment, stating: ``On the face of the Graham amendment, it . . . even takes away jurisdiction from the Supreme Court of the United States.'' (151 Cong. Rec. S12799.) He later stated that the amendment would ``strip Federal courts of the authority to consider a habeas petition from detainees being held in U.S. custody as enemy combatants,'' (151 Cong. Rec. 12801), and reiterated that the Graham/ Levin/Kyl amendment was an amendment ``which on the face takes away jurisdiction of the Supreme Court of the United States.'' Ibid. Senator Specter's remarks should at least have placed any Senator on inquiry notice that the final amendment might affect pending cases. Finally, Senator Durbin also spoke about the final Graham amendment prior to the vote. As I mentioned earlier, on the morning of November 15, Senator Durbin expressed concern that the original Graham/Kyl amendment's jurisdictional bar would apply ``retroactively,'' and that it ``likely would prevent the Supreme Court from ruling on the merits of the Hamdan case.'' (151 Cong. Rec. S12799.) Almost immediately after these words, Senator Durbin also commented on the revised Graham amendment. He stated: The Graham-Levin substitute amendment would somewhat improve the underlying amendment by expanding the scope of review in the D.C. Circuit Court to include whether CSRT's are legal, but not whether a particular detainee's detention is legal. It would also allow for post-conviction review of military commission convictions. However, the amendment would still eliminate habeas review and overrule Rasul. (151 Cong. Rec. S12799.) Again, no suggestion was made that the new amendment might carve out pending cases, despite the Senator's expressed concern about retroactivity. The Senator gave no hint that he expected the new amendment to treat pending cases any differently than did the old amendment. Senator Durbin does not appear to have been misled about the effect of the final Graham amendment, nor did he mislead anyone else. To be sure, two statements that do appear in the Record prior to the final vote on the Graham amendment both assert that the amendment would not ``strip jurisdiction''--and both of these statements are unleavened by Senator Levin's accompanying clarification that pending cases would proceed under the substantive review standards of the new law. Both of these statements, however, appear to have been introduced into the record following the final vote--both refer to that vote in the past tense. Neither Senator thus could have misled other Members about the effect of the amendment prior to the vote. Senator Kerry made clear in his statement that his remarks were made only after the November 15 vote: ``Today, I voted in favor of Senator Bingaman's amendment No. 2523, because it would have preserved judicial review . . . When the Bingaman amendment failed, I voted for a second-degree amendment.'' (151 Cong. Rec. S12799.) Similarly, Senator Reid also emphasized that his statement did not precede the actual vote: ``the Senate has voted to deny the availability of habeas corpus to individuals held by the United States at Guantanamo Bay, Cuba. I rise to explain . . . my votes in favor of the Bingaman amendment and the Graham-Levin amendment earlier today.'' (151 Cong. Rec. S12802.) Neither of these statements was part of the information that was presented to Senators prior to the final vote on the Graham amendment. To summarize, the legislative record is utterly devoid of any evidence that Senators were led to believe that the Graham/Levin/Kyl amendment would carve out pending cases. Prior to the vote, several Senators spoke of the original amendment's breadth and the fact that it would terminate pending cases. Senator Graham, drawing no distinction between pre- and post-enactment filers, stated that the revised amendment would apply a uniform standard to all 500 Guantanamo detainees. Senator Levin made clear that ``the standards we set forth in our amendment will be the substantive standards which we would expect would be applied in all cases, including cases which are pending as of the effective date of this amendment.'' Senator Specter pointedly warned that the final amendment would ``strip Federal courts of the authority to consider a habeas petition from detainees'' and ``even take[] away jurisdiction from the Supreme Court of the United States.'' Other Members who condemned the original amendment for terminating pending cases gave no hint that they viewed the new amendment any differently. Quite simply, there is no evidence that anyone misled anyone else about the fact that the Graham amendment would only allow pending cases to go forward under the limited review standards of the new law. On November 15, the Graham/Levin/Kyl amendment passed the Senate by a vote of 84-14. That same day, the entire Defense Authorization bill passed the Senate by unanimous consent and the Senate appointed conferees. One month later, on December 16, the House and Senate conferees agreed to file a conference report. In the days that followed, a new slew of statements were made in the Senate and even in the House commenting on the meaning of the Graham amendment. Many of these statements are simply the usual effort by the losers of legislative battles to rewrite legislative history. The majority of the Senators, for example, who announced in these statements that the Graham amendment was not intended to affect pending cases also were among the 14 Senators who voted against the final Graham/Levin/Kyl compromise. No one can seriously suggest that these members relied on any representations made by the backers of the amendment. And more importantly, given the marked disagreement between the statements that were made at this late stage about the effect of the amendment on pending cases, no one could justifiably have relied upon one view rather than another to learn what the amendment does. Rather, it is up to members to examine the actual language of the amendment. I hope that this review of the circumstances of the enactment of the Graham amendment will put to rest any accusation that members of Congress were misled about the amendment's impact on pending cases. Whether the amendment does in fact govern pending cases is another matter. For the reasons expressed here and in the January 18 letter to the Attorney General, I believe that it does so, but that, of course, is a matter for the courts to decide. In the event that the courts concur with my and Senator Graham's interpretation of the amendment, however, no Member should be heard to complain that they were led to believe that the amendment would operate differently. I ask unanimous consent that the letter be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, when the Judiciary committee reported an asbestos-trust fund bill in 2003, I proposed three criteria for evaluating such a bill: the trust fund must be fair to people with asbestos injuries; its cost must be reasonable; and it must provide a permanent solution to the asbestos-litigation crisis. Last year, I voted to report this bill out of committee because I believe that the bill does meet or has the potential to meet each of these criteria. I also voted for the bill in no small part out of appreciation for the chairman's extensive efforts to address my concerns about the bill. I particularly appreciate his assistance in adding to the bill a gatekeeper mechanism for certifying exigent claims seeking an early settlement. Any startup provision that threatens to prematurely return the trust fund to court is bad for victims, bad for participant businesses, and bad for the U.S. Government. Once this fund is started, it need to work--we cannot shift victims back and forth between the tort system and the fund, especially those victims with malignant conditions, who likely do not have long to live. The need for this bill is obvious. Current asbestos litigation practices have been accurately described by Professor Lester Brickman as a ``massively fraudulent enterprise fit to take its place among the pantheon of American scandals.'' Typically, trial lawyers consolidate thousands of claims and file them against a series of defendants. These claims are generated by mass-screening recruitment companies that ignore all scientific standards for identifying asbestos disease and employ corrupt physicians who will say that anyone has asbestosis if the fee is right. In the perverse rules, plaintiffs' lawyers have a de facto veto over confirming the bankruptcy trust and can thus dictate its terms. The results are predictable: even for asbestos bankruptcy trusts amounting to billions of dollars, the plaintiffs' lawyers take 40 percent off the top. These recoveries inevitably compensate lawyers in an amount several orders of magnitude greater than anything resembling a reasonable hourly rate. And all for bringing claims that no honest doctor would ever describe as legitimate cases of asbestos injury. It is easy to see where a well-crafted trust fund could improve on this system--how it could cut our the trial lawyer middle man and preserve recoveries for actual victims of asbestos disease. Nevertheless, when I voted for this bill in the committee, I expressed reservations about the final product. One concern about this bill looms above all others, and it directly threatens all three of the above-stated criteria for evaluating the bill: solvency. I remain deeply concerned that this fund will run out of money and prove unable to pay all qualifying claimants. Allow me to explain why I am concerned about the fund's finances. Here are a couple of reasons why. First, look to the bankruptcy trust funds previously existing and that have existed in the past. What has our experience been? Not very good. In written questions to Dr. Francine Rabinovitz, who has been retained by trust fund bankers to estimate future claims under the fund, I asked her about the experience under the asbestos bankruptcy funds. Those funds are about the closest analog to what we are doing here--no-fault funds that compensate all claimants who meet particular exposure and medical criteria. Indeed, the criteria for this fund explicitly are borrowed from the latest version of the Johns Manville bankruptcy fund, which is part of her study. I appreciate her candor. Here is what she had to say: To my knowledge, none of the bankruptcy trusts created prior to 2002 have been able to pay over the life anywhere close to 50 percent of the liquidated value of qualifying claims. Of the current generation of bankruptcy trusts, the expected payout of those trusts, to my knowledge, ranges from a low of 5 percent (Manville) to a high of 31.7 percent (Western McArthur). The only current operating Trust to pay 100 percent of its scheduled values in the Mid-Valley Trust. These percentages are sensitive, of course, to the eligibility criteria the trusts apply. Under its original eligibility criteria, Manville was forced to drop its initial 100 percent payout first to 10 percent and then 5 percent of liquidated value. There will be a reevaluation of Manville's ability to pay a higher percentage in the near future by virtue of the impact of its recently imposed more stringent eligibility criteria. These figures should disturb us all. We are legislating a $140 billion trust--one that must work, because the costs of failure would be catastrophic. And yet the model for this fund is one that has failed every time that it has been tried. The miserable performance of the bankruptcy trusts should, at the very least, make us very cautious in proceeding down the same no-fault trust-fund path. While I recognize that this Fund is not exactly like the bankruptcy trusts--that it is designed better in some ways--in other ways the compensation criteria employed by this Fund are a change for the worse. Another example that ought to give us some pause is the black lung fund, which is designed to compensate miners with CWP, a coal-mining- induced lung disease. That fund is now $8.7 billion in debt. It is now finally bringing in enough revenue to pay current claimants, but it is unable to service its debt. Each year's interest is simply added to the total debt. This is no way to run a trust fund. It is telling to read the story of the black lung fund and hear why it has become so overburdened. The narrative should sound familiar to anyone who has closely followed the committee proceedings for the asbestos fund. There is a June 12, 2002 report from the Congressional Research Service. I wanted to quote from part of it, but the bottom line is that the crafters of the black lung fund ignored medical science when they set up the fund's compensation criteria. As is predictable for Congress, criteria were developed in the spirit of political compromise rather than under the guidance of hard science. The results have been very unfavorable. The report basically said: Virtually all of the expectations for the Black Lung Benefits Act when it was enacted in 1969, e.g., the numbers of claims submitted or approved, were contradicted by subsequent experience. Corrective legislation was adopted in 1972, 1977, and 1981, including the establishment of trust fund financing in 1977, but results have continued to be at variance with expectations. As a consequence, the trust fund has perennially been in a position of growing deficit. In other words, even at a time when the black lung fund's liberal compensation criteria were generating a surplus of claims, political pressures nevertheless pushed Congress to further liberalize those criteria and further bankrupt the fund. In the asbestos arena, I fear that we already have repeated the first part of the black lung fund story. Our concern is that as we continue down this path, we risk repeating the rest of the story as well. But this fund is different from black lung in one key respect: it is much, much more expensive. This fund has the potential to burn through scores of billions of dollars, rack up $30 billion in debt, and throw us back into the tort system--all within one decade. Such a result truly would make the black lung fiasco seem insignificant. It would be an utter disaster. We cannot let it happen. I wish that the Judiciary Committee had learned more from the black lung experience--that we could at least recognize that a no-fault trust fund must be run as a tight ship, with rigorous compensation criteria and no leakage of claims. Unfortunately, that does not describe the bill that has been produced by the Judiciary Committee. In his recent testimony before this committee, Dr. James Crapo described how we are repeating the same mistake made in the black lung fund: we are compensating diseases that are not caused by occupational exposure to asbestos. Dr. Crapo criticized the fund's compensation of persons with pleural reactions, which are not regarded as a disease and are not even a predictor of future disease. He also criticized the fund's claim level for persons with colorectal, stomach, and other cancers, noting that it would ``result in large compensation to large numbers of individuals who develop a cancer for which there is no established causal relationship to asbestos exposure.'' And just as was the case with black lung, despite the asbestos fund's use of criteria that are far more liberal than what can be justified by medical science, we already are hearing arguments that the fund should go further, that its compensation criteria should be even more liberal. For example, the medical literature strongly demonstrates that the only marker for asbestos-related lung cancer is clinically significant asbestosis. The cohort studies overwhelmingly show that unless a person has at least some asbestosis, asbestos exposure played no role in his lung cancer. But in this bill, we go further than compensating lung cancer in the presence of asbestosis. We also compensate lung cancer with pleural plaques. Pleural plaques are evidence of asbestos exposure but are not a valid marker for asbestos-related lung cancer. And yet, even this has not satisfied some fund critics. This committee was even forced to vote several times on an amendment that would have obligated the fund to pay compensation for lung cancer when the claimant did not even have pleural plaques. The committee did defeat that amendment by a vote of more than 2 to 1, showing some respect for medical science. Nevertheless, the amendment is a harbinger of the political pressures that this Fund ultimately will face over its life. Several other aspects of this bill also cause me concern. Let me summarize some of those. For example, the sunset: The bill still contains a provision that would prematurely terminate the fund and return all claims to State and Federal court, with no mechanism for fixing problems even if the reason that the fund is running out of money is because it is paying non- meritorious claims. Once the fund is started, it must work. Going back to court is not a realistic option. As the bill now stands, the fund would borrow $30 billion prior to any sunset. Once companies are back in court defending against asbestos claims, they would also be paying down this debt. This would require full trust fund assessments for at least a decade. These payments, combined with renewed litigation and no, or heavily eroded, insurance policies, would be unaffordable for many companies. The effects of such a sunset likely would be so devastating that companies would demand that the Federal Government begin directly subsidizing the fund. This is a prospect that we should do all that we can to avoid. The fund should have a self-correction mechanism that makes sure that a sunset will never happen. Another problem is allocation. This is an emerging problem, the scope of which we are only gradually becoming aware of, and, frankly, one to which I will devote my primary attention. The bill requires companies to pay into the fund based on their past asbestos expenditures, judgments, settlements, and litigation costs, even if those payments in the past were all absorbed by insurance. Companies' insurance will not cover their trust fund payments; insurers pay into the fund separately. The fact that the bill effectively invalidates the company's insurance contracts creates colorable takings claims against the fund. It also creates some serious inequities. Companies that found their asbestos liabilities to be manageable will find themselves facing unaffordable fund assessments. I am going to insist we have language in this bill that will address these inequities. Another problem is startup. Much progress was made during the last days of markup toward fixing the so-called startup provisions. Nevertheless, the fund still ultimately allows claims to return to court if there are delays in startup, with no limits on award and no offsets in future fund payments for participants. Other, much simpler trust funds, such as those for radiation workers, have taken 18 months to start functioning. We cannot dismiss the possibility that this fund will require more than 2 years to begin paying all claims. Without an offset in limits, such a startup reversion would be disastrous for many companies. Another issue relates to pending claims. The fund allows claims that already have advanced to trial to remain in the tort system with no offsets and no limits on damages. Already, some trial lawyers have begun seeking acceleration of their trial dates in order to take advantage of this provision. For the same reasons as applied to the startup provisions, such continued litigation could be very damaging. A final problem is the problem of medical criteria which I alluded to earlier. Although improved over the 2003 committee bill, especially with regard to removal of level VII smokers, the fund still pays people with very common diseases that were not caused by exposure to asbestos. Credible medical experts had expressed the view to the committee that these problems will bankrupt the fund. These flaws in the bill would be less severe if the fund contains some self-correction mechanism that allowed tightening the million-dollar criteria in the event of insolvency caused by nonmeritorious claims, but it currently contains no such mechanism. In summary, the bottom line is this is a bill which remains very much a work in progress. I am committed to addressing its problems as the bill advances through the Congress. I want to see it advance through the Congress. The bill is so important to so many people: the asbestos victims seeking compensation--at least it might help take care of their families, the businesses with only marginal connections to asbestos that nevertheless face bankruptcy through litigation, and workers and pensioners who see their jobs and retirement accounts destroyed by the litigation juggernaut. This bill is important. I look forward to working on the legislation with the chairman of the committee, the ranking member, and others who are supporting it. I will support the cloture motion and motion to proceed to the consideration of the bill.

Mr. KYL

Mr. KYL. Mr. President, I wish to respond directly to my friend from North Dakota on a couple of points which he made in the context of the discussion of the legislation before us. I wish to begin by quoting what the President said last night in his State of the Union Speech, and then I think we will see how it fits into comments just made. Last night, the President reported in his State of the Union Speech in terms of our economy. He said: Our economy is healthy, and vigorous, and growing faster than other major industrialized nations. In the last two-and- a-half years, America has created 4.6 million new jobs--more than Japan and the Europeans Union combined. Even in the face of higher energy prices and natural disasters, the American people have turned in an economic performance that is the envy of the world. Then he went on to say: Keeping America competitive begins with keeping our economy growing. And our economy grows when Americans have more of their own money to spend, save, and invest. In the last five years, the tax relief you passed has left 880 billion dollars in the hands of American workers, investors, small businesses, and families--and they have used it to help produce more than four years of uninterrupted economic growth. Yet the tax relief is set to expire in the next few years. If we do nothing, American families will face a massive tax increase they do not expect and will not welcome. Because America needs more than a temporary expansion, we need more than temporary tax relief. Part of what is in the bill before us is designed to continue that same tax policy. There are, for example, funds to do what the President talked about last night to stimulate research and development. There are tax provisions that encourage people to do that. This legislation would continue those tax policies. The President last night talked about educating our young people. When you pay college tuition, if you are not an itemizer, we believe you should still have a tax deduction for that. As a result, this bill would continue that tax policy. Those are the kinds of provisions that are embodied in the bill that is before us. I ask my colleagues, almost two-thirds of us who voted for this very same bill before, has something changed where we would not want to continue those kinds of tax policies, the kind of things that have helped us to stimulate and continue this economic growth? It seems to me we want to continue those policies. One of the things that has been discussed is not in the bill; that is, the tax on capital gains and dividends my friend from North Dakota talked about. That is not in the bill before us. Nevertheless, it is a good discussion to have because, as the President noted last night, this is part of that tax package that has provided this great economic growth, and it is part of what the House of Representatives has passed. When the bill goes to conference with the House of Representatives, it is very likely, and I think very desirable, that the continuation of the tax rates on capital gains and dividends be included in the final conference report we will approve. Those rates expire in 2008. When people are making investments today, they want to know what the tax rate is going to be when they invest. Is there a return on the investment, let us say in 4 years--4 years from now is 2010. What we want to do is extend those rates from 2008 to 2010. If we don't, what we are going to find, as the President said, is tax increases the American people do not expect, do not appreciate, and it certainly won't be good for the economy. My friend from North Dakota said people who work hard and have a tax on their wages get one set of taxes, but presumably people who do not work hard and receive dividends or capital gains should not have a lower tax rate. This is a fundamental misunderstanding of the Tax Code and the way our economy works. Take the person who put on his boots every day and went to work and for 40 or 50 years paid income taxes, tried to save some money along the way, and when he could invested that money because upon retirement he does not want to be dependent upon Social Security benefits. He has a small pension or he has invested in the stock market. He retires and he is now faced with a situation where he is not receiving a wage anymore that he is paying taxes on. Instead, his income now is coming through the deferred gratification of the investment he made throughout the years when instead of spending money he saved it and invested it. Now there are rewards coming to him in the form of dividends or capital gains--in other words, a return on his investment. That, plus Social Security, is now all he has to live on. He paid income tax on that money. Make this point very clear: All his working life he paid his income tax and his aftertax dollars went into these investments. Now he is being taxed a second time on that money when he begins to get the return, when he gets dividends from his investment or capital gains. Yes, the tax rate is a little lower depending upon what his taxable bracket is. It could be the same, but the tax currently is 15 percent. Thank goodness, because the reduction a few years ago from 20 percent down to 15 percent means we have had a tremendous stimulation for the economy. So this person has paid his income tax and now he is paying another tax on capital gains or on dividends. Actually, this is not just the second time this money is taxed; this money was also taxed when the corporation or the entity that earned the money earned it and had to pay its taxes. So the corporation pays its taxes and then what is left over it either takes as profit or returns part of that profit in the form of dividends to the shareholders--our friend now, the senior citizen we are talking about. This money has been taxed at least three times now: When the income was earned by the individual, when the corporation paid the tax on the investment, and when it provided the dividend to our senior citizen, the retired fellow living in Sun City, AZ. And he now has to pay 15 percent on that again. You can only tax this so many times. Yet we have found that by having a Tax Code that tries to keep these taxes as low as possible, we are able not only to continue to stimulate investment, create jobs, and provide a living for people, and then a retirement income, but also to provide enough money for our Government to grow. We are spending a lot of money in this Government now. We are not standing still. We are spending far too much money, according to some--and I put myself in that category. Revenues are not the problem with respect to our deficit; we are spending too much. Our revenues exceeded the projections last year by something like $270 billion or more. It was $100 billion more than we assumed at the beginning of last year. So we have gotten far more in revenues than we ever expected. Why? Because our economy is growing so rapidly. What is one of the reasons it is growing? Because of the tax structure we have. That tax structure is part of what the legislation before the Senate intends to continue so we cannot only leave more money in the hands of the people who provide the growth for our country and provide for our families and small businesses but also provide the revenue for the Government to provide what they need, as well. There was something else my friend from North Dakota said that is quite wrong. That is the comment that we provided tax relief for rich people, that these dividends and capital gains are not for the average working person, and that the tax policy we are promoting in this legislation, therefore, does not help most Americans, that somehow it only helps the wealthy. I noted before the legislation before the Senate does not even mention the words ``capital gains'' or ``dividends,'' but we are assuming when the bill comes back from conference it will have those taxes in it. One of the taxes we are seeking to ameliorate the effect of in this bill is the AMT. Almost everyone believes we either ought to eliminate the AMT, the alternative minimum tax, or significantly reduce its impact on taxpayers. Let's take a look at what the AMT does to the people in the country versus capital gain and dividends since, according to my colleague, the latter two are good ways to raise revenue and the AMT is a bad way. Of all of the taxpayers in the AMT in 2003, the last year we have statistics, 9.7 percent had an adjusted gross income of under $100,000. We are talking about relief in the bill before the Senate that presumably most of my friends on the other side of the aisle are very much for, relief here for 9.7 percent of the filers having income of less than $100,000. The other people we are providing relief for were above that, obviously. Let's compare that with the people who are paying capital gains or dividends. Of all the taxpayers reporting capital gains income in the year 2003, 67.5 percent had adjusted gross income under $100,000. Of all the taxpayers reporting dividends income in 2003, more than 70 percent had an adjusted gross income under $100,000. If we are talking about trying to provide relief for the average American family--maybe a two-worker family; their income, in any event, is less than $100,000--the AMT relief we are providing, 9.7 percent of the folks we are providing relief for are in that under $100,000 category, whereas the relief we would be providing if we included the capital gain and dividends would apply to 67.5 percent with respect to capital gains and 70 percent with respect to dividend income. These are the people, 70 percent, who report incomes of $100,000. The fact is we have become a nation of investors. Over half of the American people now are invested in the stock market. When we talk about providing tax relief, we are providing tax relief for average families, for small businesses and investors in America who rely on these kinds of investments in their retirement years. More than half of all Americans own stock either directly or through mutual funds. In the 2003 marginal rate on investment, marginal rate cut on investment income worked by giving these investors an incentive to put more of their money at work in the markets. That is what stimulated the great economic recovery we are enjoying now. At the lower rates, the tax penalty imposed on the additional investment earnings--the reward for taking the additional risk--the penalty is smaller and thus the risk is more attractive. That is why we have had this great economic recovery because people have been willing to invest more of their money getting a greater return for that investment. It is interesting that all of the guesses about what kind of income our economy would derive from capital gains, to take one of these taxes, turned out to be incorrect. What we find is instead of the capital gains rate cut cutting revenues, the capital gains rate cut from 20 percent to 15 percent in 2003 has actually increased revenues to the Treasury. In other words, this tax cut has more than paid for itself. This is not just me saying it; this is according to the Congressional Budget Office, the CBO. Its annual Budget and Economic Outlook, just released, shows the 2003 tax cut on capital gains has more than paid for itself. What the CBO did was compare the estimated revenues from capital gains with the actual revenues from capital gains. The actual liabilities from capital gains were $71 billion in 2004, $80 billion in 2005 for a 2-year total of $151 billion. What was originally estimated to be the return from this tax? The sum of $125 billion. So there was an actual increase in revenue to the Federal Treasury of $26 billion. Instead of costing the Government $27 billion, which was originally estimated, the tax cuts actually earned the Government an extra $26 billion. The bottom line is that sometimes raising tax rates does not raise tax revenue. If you want to think of this in simple terms, say we want to bring in the maximum amount of revenue. Say we will put a tax on of 100 percent. One cannot get any higher than that. How many of us would work if 100 percent of our earnings would be taxed? I daresay not very many. How about 90 percent? How about 80 percent? We still will not get many takers. The point is, people will not work or invest, put their capital at greater risk, if the tax penalty is so great it is not worth it. The object is for Government to find that level which produces the most revenue to the Treasury with the least amount of damage to the economy. In other words, it encourages people to work or encourages people to invest to the maximum extent and that extent, then, produces the maximum amount of revenue. Basically, one thing we found from the tax rate reduction from 20 percent to 15 percent with capital gains is 20 percent was still too high. With 15 percent people were far more willing to invest. It put their money at risk. And because so much of that activity occurred, the revenues, even with lower rates, far exceeded the revenues at the higher rates. That is why the House of Representatives has included in its legislation a 2-year continuation of this same 15-percent rate for capital gain and dividends because it will actually produce more revenues to the Treasury because more Americans will invest and will save, because this will provide more job creation and provide continued economic growth in our country. Since over half of Americans are investors in our stock market, since more than 70 percent of those earning $100,000 or less receive this benefit with respect to capital gains and with respect to dividends, 67.5 percent, clearly this is designed to help most Americans. I find it ironic my colleagues who are so insistent on doing something to fix the problem of the AMT are talking about only 9.7 percent of the people with adjusted gross incomes under $100,000. When sometimes people loosely say, your tax cuts are only for the rich, I guess I would say to my friends, your tax cuts are for the rich, if you are focusing mostly on the alternative minimum tax. Now, I happen to think we should provide relief in all of those areas. That is why I think what we are doing in this legislation--to provide relief from the alternative minimum tax; and then, assuming the House of Representatives includes it in the conference, for dividends and capital gains, when the bill comes back to us--we will ensure that not only will we be able to continue to help our families and our small businesses but also to ensure that we will continue to have economic growth in this country. That is why I encourage my colleagues to support the legislation before us.

Mr. KYL

Mr. KYL. Mr. President, today I rise to pay tribute to the life of Mrs. Coretta Scott King. She was a steady force in the civil rights movement who ably supported the work of her late husband, the Reverend Dr. Martin Luther King Jr. Her legacy, like that of Dr. King, is steeped in the American principles we all hold dear: those of equality and justice, patriotism, faith, and family values. As a young woman, Coretta Scott, a native of Marion, AL, experienced the racism and prejudice that characterized the South at that time. She had a desire to exceed expectations in the most challenging of environments. Coretta was valedictorian of Lincoln High School in 1945 and pursued the serious study of music at Antioch College in Ohio, and then at the New England Conservatory of Music. It was in Boston that Coretta first met the young Martin King, a divinity student earning his doctorate in theology. Both of them knew the value of education and study, but both were also determined to serve others. Coretta had been involved in the civil rights movement before she met Dr. King; but when they joined forces as husband and wife in 1953, the movement was strengthened. Each place they lived in was roiled by the controversies of the movement to end racial segregation. In every place, bigots threatened the King family's safety. Amidst the violence, the arrests of peaceful protesters, the bombings, and assassination attempts against her husband, Mrs. King remained a bedrock for her husband and the protector of her children. Yolanda, Martin III, Dexter, and Bernice found remarkable role models in both of their parents, but it was Mrs. King's steady hand that directed their upbringing. As the world took notice of Dr. King's philosophy of nonviolent social change, Mrs. King spread it effectively, especially among women. She lent her time and talents to numerous educational causes and civil rights groups. She exhibited poise, dignity, and grace in everything she did. Mrs. King's commitment to civil rights did not diminish in 1968 when her husband's life was ended by an assassin's bullet. She instead made a commitment to the nonviolent achievement of social justice as her life's work. The Martin Luther King Jr. Center for Nonviolent Social Change in Atlanta, GA, stands today as a testament to Dr. King's work and to that of his wife, for it was she who made the institution what it is. Mrs. King's strong will and courageous strength allowed her to stay the course and further the movement. She was also a strong force behind the national holiday to commemorate Dr. King's life. Coretta Scott King and the late Rosa Parks were often regarded as ``Mothers of the Civil Rights Movement.'' We are sad to have lost both of them in so short a time. But as we enter Black History Month in February and then Women's History Month in March, the message and example of these American heroines will be before us. They demonstrate that ordinary people can achieve extraordinary things. Their selflessness will not be forgotten. May Mrs. Coretta Scott King find the peace for which she and Martin strived so hard to achieve. God speed...

Mr. KYL

Mr. KYL. Mr. President, I explained last Wednesday that I would support the nomination of Judge Alito. Since then, I have been somewhat frustrated at how this Senate debate has progressed. Time and time again, some Senators have mischaracterized the cases and record of Judge Alito. I would like to take a few minutes and walk through just a few of those misstatements. First, let me address the case of Sheridan v. DuPont. On January 26, the junior Senator from Colorado indicated that Judge Alito was unlikely to support principles of diversity because he ruled against a female plaintiff in a gender discrimination case. The Senator said, ``In Sheridan, Judge Alito registered the lone dissent among thirteen judges voting to prevent a woman who had presented evidence of employment gender discrimination from going to trial.'' The Senator's summary of the case requires additional elaboration, though. According to the record of that case, the plaintiff, Barbara Sheridan, was employed as head captain of the Green Room restaurant in the Hotel DuPont. Initially, she received good performance reviews, but DuPont claimed that her performance began to deteriorate in 1991. At that point, her manager met with her to ask her to stop using the restaurant bar for smoking and grooming. Apparently Sheridan was frequently late to work, and other employees had complained about food and drinks she gave away. In February 1991, the hotel decided to reassign Sheridan to a nonsupervisory position that did not involve the handling of cash. She would not suffer any reduction in pay because of this job transfer. Rather than accept reassignment, Sheridan resigned in April 1992 and sued for gender discrimination. When the case came before him on appeal, Judge Alito joined a unanimous three-judge panel that ruled for Ms. Sheridan. He held that her case should go to trial because it was plausible that a jury could agree with her. Judge Alito explained, ``a rational trier of fact could have found that duPont's proffered reasons for the constructive termination were pretextual.'' Later, however, the case was heard by the full Third Circuit. At that time, Judge Alito expressed doubt about the applicable Third Circuit precedent. Hesitant about the court's broad rule that affected all cases with varying factual situations, he explained that when the employee makes out a case like this, she should usually, but not always, be accorded a trial. He reached this conclusion after parsing the Supreme Court's 1993 decision in St. Mary's Honor Center v. Hicks. And most importantly for present purposes, the Supreme Court later agreed with Judge Alito's view in a unanimous opinion authored by Justice O'Connor. That case, Reeves v. Sanderson Plumbing Products, can be found at 533 U.S. 133, and was decided by the Supreme Court in 2000. The job of an appellate court judge is to faithfully interpret the Constitution and the Supreme Court's interpretations of statutes. The history of this case demonstrates that Judge Alito got it right when he examined pleading standards in title VII cases. Let's move on to another case, the 1996 case of U.S. v. Rybar, in which Judge Alito dissented. On January 25, the Senior Senator from Rhode Island said that Judge Alito ``advocated striking down Congress's ban on the transfer and possession of machine guns.'' He further said that Judge Alito had argued that he was ``not convinced by Congress' findings on the impact of machine guns on interstate commerce. He substituted his own policy preferences in a way that the Third Circuit majority found was, in their words, counter to the difference that the owes to its two coordinate branches of government.'' I discussed this case with Judge Alito during his confirmation hearings. The description we have just heard does not tell the whole story. Judge Alito's dissent in that case had nothing to do with being ``convinced'' by Congress's findings. Rather, Judge Alito based his dissent, in part, on the fact that Congress made no explicit findings regarding the link between the intrastate activity regulated by these laws, the mere possession of a machine gun, and interstate commerce. Note that this case was about possession, not transfer or commercial activity. Second, the dissent had nothing to do with Judge Alito's own policy preferences regarding the possession of machine guns. Rather, it was a careful application of the then-recent decision in United States v. Lopez, which reminded courts to take seriously the limits of Congress's powers under the commerce clause. In Lopez, the Supreme Court had held that Congress's power to regulate commerce among the several States did not include the power to regulate possession of a gun near a school where the gun never crossed State lines. It was for the Third Circuit to decide whether Congress's power to regulate interstate commerce included the power to regulate possession of a machine gun where the machine gun never crossed State lines. In Judge Alito's view, the Supreme Court's decision ``require[d] [the court] to invalidate the statutory provision at issue.'' He relied on and cited Lopez at least 22 times in his 9-page dissenting opinion. Again, this is the job of an appeals court judge: to interpret Supreme Court precedent and apply it to new cases. I should also point out that Judge Alito's dissenting opinion provided a virtual roadmap for how Congress could regulate the possession of guns in a way consistent with the Constitution and Supreme Court case law. This is hardly the behavior of someone bent on imposing a ``policy preference'' against regulating machine guns. According to Judge Alito, all Congress had to do was make findings as to the link between the possession of firearms and interstate commerce or add a requirement that the government prove that the firearm moved across State lines. Let me add one last word on the Rybar case. It is often said that Judge Alito always sides with the government. Well, this case was called ``United States versus Rybar,'' and Judge Alito was on the side of Mr. Rybar. Of course, he did not think of himself being on anyone's side. He was just doing as he believed the Constitution and Supreme Court required. And he would have felt the same way if the law required the opposite conclusion. Let us now move on to another case, that of Riley v. Taylor. Speaking at the executive business meeting for the nomination of Judge Alito, the senior Senator from Illinois left a misimpression of the facts of this case, so I would like to clear up any confusion. In that case, Judge Alito found there was insufficient evidence to support a criminal defendant's claim that the prosecutor had violated his constitutional rights by striking three minorities from the jury pool. The Senator said that the prosecutor had ``in three previous murder cases, used every challenge they had to make certain that only white jurors would stand in judgment of black defendants.'' That is not accurate. While it is true that the criminal defendant relied heavily on the anemic evidence that in three previous trials no African Americans ended up on the jury, it is also the case that the prosecutor had struck both Blacks and Whites from those juries. Indeed, Judge Alito pointed out in his decision that, of the excluded jurors in the previous trials, only 24 percent were African Americans. He suggested that this might not even be disproportionately high in a county where the most recent census indicated that 18 percent of the population was Black. Most importantly, Judge Alito's opinion rejected the selective use of statistics based upon the sample size of three trials. In so ruling, Judge Alito was in agreement with multiple State and Federal judges who had heard the case before him. On the full Third Circuit, four other judges, half of them Democratic appointees, joined in his opinion on this point. Not a single judge thought the statistical argument settled the case. As a postscript, when Riley was given a new trial by the Third Circuit, he was again convicted of all charges. When he again appealed, the Delaware Supreme Court found that his petition was ``wholly without merit.'' Let me turn to another case, one also discussed by the senior Senator from Illinois, but during his January 25 floor speech, that of Pirolli v. World Flavors. The Senator from Illinois stated: ``Another case involved an individual who was the subject of harassment in the work place. This person had been assaulted by fellow employees. He was a mentally retarded individual.'' The Senator continued, ``His case was dismissed by a trial court, and it came before Judge Alito to decide whether or not to give him a chance to take his case to a jury. And Judge Alito said no. The man should not have a day in court.'' Several corrections are needed here. First, the plaintiff in this case did have his day in court; he just did not reach a jury. During the course of the proceedings, the plaintiff presented his argument to not one, but four judges--one district court judge and three appellate court judges. The rules of the Third Circuit require that a plaintiff present his case in a minimally adequate fashion in order to be considered. The plaintiff must, at a minimum, state what happened to him and provide the basis for his claim. But the plaintiff in this case, a man who had a lawyer, never did that. The Third Circuit judges in this case were not provided with enough facts to make an adequate and informed decision. Judge Alito emphasized, ``I would overlook many technical violations of the Federal Rules of Appellate Procedure and our local rules, but I do not think it is too much to insist that Pirolli's brief at least state the ground on which reversal is sought.'' Second, with regard to the plaintiff's sexual harassment claim, Judge Alito refused to accept the arguably demeaning stereotype which the plaintiff's lawyer advanced, which was ``that retarded persons are any more (or less) sensitive to harassment than anyone else.'' Judge Alito required evidence on which to base his ruling and refused to rely on the proposed stereotype. Let's move on to another case, that of Doe v. Groody. This case was mentioned by several Senators but in particular by the Junior Senator from Massachusetts on January 25. The Senator said that Judge Alito did not support individual rights because he dissented in Doe v. Groody. He said, ``Judge Alito's hostility to individual rights isn't limited to civil rights. He consistently excuses government intrusions into personal privacy, regardless of how egregious or excessive they are. In Doe v. Groody,'' the Senator from Massachusetts argued, ``dissented from an opinion written by then-Judge Michael Chertoff because he believed that the strip search of a ten year-old was reasonable.'' First, let's get the legal question straight. The issue in Doe v. Groody was whether police officers should be able to be personally sued for money damages when they misunderstand the scope of the search warrant they were given. Second, let's look at what happened during the event in question. On March 6, 1998, as a result of a long-term investigation of a John Doe for suspected narcotics dealing, officers of the Schuylkill County Drug Task Force sought a search warrant for Doe and his residence. The typed affidavit in support of the warrant stated, among other things, that a reliable confidential informant had purchased methamphetamine on several occasions from John Doe at his residence. The affidavit sought permission to ``search all occupants of the residence and their belongings.'' However, the printed sheet entitled ``Search Warrant and Affidavit'' contained an entry naming only John Doe under the question, ``specific description of premises and/or persons to be searched.'' When the officers entered the house to commence the search, they decided to search Jane Doe and her daughter, Mary, age 10, for contraband. A female officer removed both Jane and Mary Doe to an upstairs bathroom where she searched them for drugs. No contraband was found. Once the search was completed, both mother and daughter returned to the ground floor to await the end of the search. As a matter of policy, the sad reality is that drug dealers often hide weapons and drugs on children in the home. Judge Alito acknowledged in his opinion that he found the fact that the search occurred to be unfortunate. Accordingly, police officers sometimes request warrants that allow them to search all persons found during a drug bust. The Does sued the police officers personally for money damages. The issue was how to read the warrant in light of the affidavit. And the legal question question was whether a reasonable officer could have believed that the search warrant allowed the officers to search everyone in the house. Two judges on the panel said no, while Judge Alito said yes. Why did Judge Alito believe that the police officers should not be liable personally? He concluded that a reasonable police officer could think that the warrant should be read in conjunction with the attached affidavit. Judge Alito reasoned that a ``commonsense and realistic'' reading of the warrant authorized a search of all occupants of the premises. Judge Alito found that the officers in this case ``did not exhibit incompetence or a willingness to flout the law. Instead, they reasonably concluded that the magistrate had authorized a search of all occupants of the premises.'' So, on the law, Judge Alito did not, as he has been accused repeatedly over the past few days, authorize the strip-search of a 10- year-old girl. He just tried to sort out a practical, on-the-ground problem for law enforcement. It is sad but predictable that this case, with its inflammatory facts, would come up repeatedly, but repetition is not going to change the record of what happened. Mr. President, let's move on. I want to address a claim by the junior Senator from Illinois in a January 26 speech that, whenever Judge Alito has discretion, he will rule against an employee or a criminal defendant. To quote, the Senator said, ``If there's a case involving an employer and employee and the Supreme Court has not given clear direction, Judge Alito will rule in favor of the employer. If there's a claim between prosecutors and defendants if the Supreme Court has not provided a clear role of decision, then he'll rule in favor of the state.'' This just is not the case. There are 4,800 cases that could be reviewed to demonstrate the inaccuracy of that claim, but let's just look at a few. In Zubi v. AT&T, an employee claimed that AT&T had fired him based on his race, but the record was far from clear. Judge Alito clearly had room to rule against the employee. After all, the other two judges deciding the case on appeal did so and threw out the employee's claim. They held that the employee had waited too long to bring his claim. In contrast, Judge Alito issued a lone dissent arguing that the employee was entitled to bring his discrimination claim. Later, the Supreme Court unanimously vindicated Judge Alito's view. As another example to counter the Senator from Illinois's claim, consider the case of United States v. Igbonwa. There, a criminal defendant argued that the prosecutor had failed to honor his plea agreement. The majority of the court voted against the defendant and in favor of the prosecutor. Clearly, Judge Alito had legal grounds to do the same. Instead, Judge Alito issued a lone dissent arguing that the prosecutor was required to fulfill this promise to the defendant. In yet another example, in Crews v. Horn, Judge Alito ruled that a prisoner was entitled to more time to bring his habeas petition. Again, the Supreme Court and Third Circuit had never decided the question, and the statute was unclear. Judge Alito could have ruled either way, yet he ruled in favor of the prisoner's claim. This is a good time to remind the Senate what Third Circuit Judge Edward Becker, who served with Judge Alito for 15 years, had to say on this point. He testified, ``The Sam Alito that I have sat with for 15 years is not an ideologue. He's not a movement person. He's a real judge deciding each case on the facts and the law, not on his personal views, whatever they may be. He scrupulously adheres to precedent. I have never seen him exhibit a bias against any class of litigation or litigants.'' As Judge Becker summarized Judge Alito's career, ``His credo has always been fairness.'' Mr. President, I want to turn to some of the mischaracterizations of Judge Alito's past record as a government official. In her January 25 speech, the junior Senator from New York said that Judge Alito had written that ``in his estimation it is not the role of the federal government to protect the health, safety, and welfare of the American people.'' As best I can tell, the Senator is referring to a 1986 document addressing the Truth in Mileage Act, a bill to require States to change their automobile registration forms to include the mileage of the car every time it was sold. That document did not, as the Senator said, offer Alito's ``estimation'' on anything. Judge Alito was drafting a veto message for President Reagan. Accordingly, he drafted that message in President Reagan's voice and restated President Reagan's policy on federalism. The first-person pronoun in that message is President Reagan, not Alito. It is also worth nothing that Judge Alito did not challenge Congress's powers. His cover memo acknowledged that ``Congress may have the authority to pass such legislation.'' He did point out that the legislation was ``in large part unnecessary since only five states and the District of Columbia do not already have'' title forms that meet this requirement. Let's move to another statement from the Senator from New York. She stated that Judge Alito's ``time on the bench shows an unapologetic effort to undermine the right to privacy and a woman's right to choose.'' In fact, Judge Alito's record confirms that he is not an ideologue on a crusade to curtail Roe v. Wade. In his 15 years on the bench, he has confronted seven restrictions on abortion, and he struck down all but one. Judge Alito has upheld a woman's right to choose even when he had the discretion to limit abortion rights. For example, in the 1995 case of Elizabeth Blackwell Health Center for Women v. Knoll, Judge Alito struck down two abortion restrictions by the State of Pennsylvania. The first provided that a woman who became pregnant due to rape or incest could not obtain Medicaid funding for her abortion unless she reported the crime to the police. The second provided that if a woman needed an abortion to save her life, she had to obtain a second opinion from a doctor who had no financial interest in the abortion. The question was whether these laws conflicted with a Federal regulation issued by the Secretary of Health and Human Services. There was no binding Supreme Court precedent on point, and Judge Alito easily could have upheld the abortion restrictions if he had such a preset agenda. But Judge Alito voted to strike down both laws in favor of a woman's right to choose. This is not the behavior of someone bent on chipping away at Roe v. Wade. This is the behavior of a jurist who understands the importance of precedent. The junior Senator from New Jersey came to the floor earlier today and criticized the work Judge Alito had done on behalf of the Reagan Justice Department on abortion cases. He suggested that those efforts showed a bias against Roe v. Wade that would matter in the future. But the record shows just the opposite, as discussed above. How else to explain the Knoll case? Moreover, the Senator said that Judge Alito would not describe Roe v. Wade as, quote, ``settled law.'' Judge Alito addressed this question repeatedly during the hearing. A judge cannot call an area of law ``settled'' when it is likely that cases dealing with that area will come before him. This demand to say that Roe is settled is little more than a desire to prejudge all those cases, including cases pending before the Supreme Court today. Judge Alito simply cannot do that without violating his judicial ethics and depriving those litigants of their fair day in court. I will move on. Earlier today, the junior Senator from Michigan said that Judge Alito had ``been criticized by his colleagues for trying to legislate from the bench in order to reach the result that he desires.'' I am not aware of a single example of any member of the Third Circuit, or of any other court in the Nation, claiming that Judge Alito had any tendency toward quote, ``legislating from the bench.'' In fact, just the opposite is true. It is especially surprising to hear such a claim given the testimony of Judge Alito's colleagues on the Third Circuit. Would seven current and former Third Circuit judges testify for Judge Alito if they believed he was a judicial activist or otherwise unqualified for the bench? Those listening now or reading the Congressional Record in future years should go to the Judiciary Committee records on the Internet and read what those judges had to say when they testified on January 12. When I spoke last week, I entered in the Record a series of excerpts from that testimony that the Senate Republican Policy Committee, which I chair, had compiled. The complete testimony is worth reviewing, too. Again, I am not aware of a single time that any judge has accused Judge Alito of legislating from the bench. As one last point, I must address this unitary executive issue. The senior Senator from New Jersey and others have said that Judge Alito somehow believes in making the executive more powerful than the legislative and judicial branches. One wonders how many times this misstatement has to be corrected. Judge Alito made clear during his testimony that his past comments regarding the unitary executive theory only--only, Mr. President--dealt with who has the power to control executive agencies. As he said repeatedly, insofar as this theory deals with the scope of Presidential power, he does not--repeat, does not-- subscribe to it. What else can he say? He has made this extremely clear. He has said it repeatedly. Mr. President, there have been other misstatements and mischaracter- izations of Judge Alito's record. I can only respond to so many. I will simply encourage future students of this debate to look at the cases in question, and to carefully review the Committee record, before reaching conclusions based on floor debate. I look forward to Samuel Alito serving on the Supreme Court for many years to come.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent to have an item printed in the Record.