Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that the Permanent Subcommittee on Investigations of the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on Thursday, January 24, 2008, at 10 a.m., in order to conduct a hearing entitled, ``United Nations Development Program in North Korea: A Case Study.''

Mr. LEAHY. Mr. President, I ask unanimous consent for the Committee on Veterans' Affairs to be authorized to meet during the session of the Senate on Thursday, January 24, in order to conduct an oversight hearing on the Report of the Veterans' Disability Benefits Commission. The Committee will meet in room 562 of the Dirksen Senate Office Building, at 9:30 a.m.

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet during the session of the Senate, in order to conduct a hearing entitled ``The Fair Pay Restoration Act: Ensuring Reasonable Rules in Pay Discrimination'' on Thursday, January 24, 2008. The hearing will commence at 10 a.m. in room 430 of the Dirksen Senate Office Building.

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, January 24, 2008, at 2:30 p.m. in order to conduct a hearing on climate change negotiations.

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on Thursday, January 24, 2008, at 10 a.m., in room 215 of the Dirksen Senate Office Building, in order to conduct a hearing entitled ``Strengthening America's Economy: Stimulus That Makes Sense.''

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to meet during the session of the Senate on Thursday, January 24, 2008, at 10 a.m. in room 406 of the Dirksen Senate Office Building in order to hold a hearing entitled, ``Oversight of EPA's Decision to Deny the California Waiver.''

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Thursday, January 24, 2008, at 9:30 a.m., in room SD366 of the Dirksen Senate Office Building in order to conduct a hearing. At this hearing, the Committee will hear testimony regarding Reform of the Mining Law of 1872.

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Agriculture, Nutrition, and Forestry be authorized to meet during the session of the Senate on Thursday, January 24, 2008, at 3:30 p.m. in room 328A of the Russell Senate Office Building in order to consider the nomination of Ed Schafer, of North Dakota, to be Secretary of Agriculture.

Mr. LEAHY

Mr. LEAHY. Mr. President, Senator Kennedy and I have offered an important amendment to ensure that there will be some measure of accountability for the unlawful actions of this administration in the years following 9/11. Regrettably, those opposing this commonsense review have so far succeeded in stopping the full Senate from even considering its merits. It is a sad day for the American public when its elected officials stonewall a measure designed to shed light on the Government's efforts to unlawfully spy on its own citizens. I urge Senators across the aisle to allow this amendment to be called up, debated, and given an up-or- down vote. As we all now know from press accounts, in the years after 9/11, the Government secretly conducted surveillance on its own citizens on a massive scale through what has become known as the Terrorist Surveillance Program, TSP. It was done completely outside of FISA, the law specifically drafted to regulate such conduct. And it was done without the consent or even the knowledge of the Congress. It is crucial that Congress and the American people understand why and how these decisions were made, both in the months after 9/11, and in the several years following that difficult time. This inspector general review amendment will provide that accountability. This review would be conducted jointly by the Offices of Inspectors General of each component of the intelligence community that may have played any role in the TSP, including the inspector general of the Department of Justice. It will examine the circumstances that led to the approval of the TSP, as well as any procedural irregularities that may have taken place within the Department of Justice Office of Legal Counsel--the part of the Justice Department that is supposed to give unvarnished legal advice to the President. It will result in a final report to be submitted to the Intelligence and Judiciary Committees in the House and Senate within 180 days, containing recommendations and a classified annex. There has been no such comprehensive review to date. This amendment is particularly important because the administration and some of its allies in Congress are relentlessly arguing for retroactive immunity for the 40 or so lawsuits against those telecommunications companies that may have assisted in conducting this secret surveillance. They are trying to shut down avenues for investigating and determining whether their actions were lawful. This amendment will ensure that there will be an objective assessment of the lawfulness of the secret spying program and the manner in which the Government approved and carried out the program. Critics of the amendment claim that Congress has already conducted sufficient oversight of the TSP, and that no further review is warranted. That is simply not true. Only a small number of Senators and Representatives have been granted access to classified documents related to the TSP. Those of us who have been granted access can provide a measure of oversight by reading through documents to try to piece together how the Government decided to spy on its own citizens, for years, and how the Justice Department came to bless this unlawful conduct. But the documents don't tell the full story. As we learned from Jack Goldsmith, the former head of the Office of Legal Counsel, the President's program was a ``legal mess'' when he took over. It is crucial to understand how this ``legal mess'' got approved in the first place. Who was responsible? Were the normal procedures followed at the Office of Legal Counsel? And, perhaps most importantly, how can we stop something like this from ever happening again? This amendment is one of the many improvements to the Senate Intelligence bill that were adopted by the Judiciary Committee and included in the Judiciary Committee's substitute amendment. Regrettably, that substitute was tabled by the Senate earlier today. I urge Senators to reconsider their votes with respect to this simple but critically important accountability measure. If the critics succeed in quashing not only the outstanding lawsuits seeking accountability, but also congressional efforts to arrive at the truth through a comprehensive review of the TSP, the American public will never forgive us. This administration is hoping it will end its time in office without any meaningful review of its more than 5 years of illegal surveillance. We must not let this happen. I urge all Senators to support this commonsense amendment to ensure accountability.

Mr. LEAHY. Mr. President, obviously I disagree with the description of the Senate Judiciary Committee's amendment. I spoke on this yesterday, but I am going to take a few minutes to describe what is in the Judiciary Committee's bill. I support the Judiciary Committee amendment to the FISA Amendments Act of 2007. The Judiciary Committee amendment would make important improvements to the Intelligence Committee bill, at the same time maintaining its structure and its authority. The so-called Protect America Act was rushed through the Senate last summer in an atmosphere of fear and intimidation. We even saw a key member of the administration make commitments to numerous Senators, Republicans and Democrats, on that bill and then break his word, first to us and then on national television. It was a bad bill that has provided sweeping new powers to the Government. It imposes no checks on the Government and provides no oversight or protection for Americans' privacy. The Intelligence Committee did important work last fall in crafting a bill that begins to walk back from the excesses of the Protect America Act. I commend both Senator Rockefeller and Senator Bond for that. But two committees in the Senate have jurisdiction over FISA the Intelligence Committee and the Judiciary Committee. The Intelligence Committee acted first to establish a good structure for conducting critical overseas surveillance. The Judiciary Committee's amendment maintains that structure and the authority for surveillance. But in my view and in the view of many Senators, the Intelligence Committee bill does not do enough to protect the rights of Americans. Indeed, many members of the Intelligence Committee voted for that bill knowing that the Judiciary Committee would have an opportunity to improve it, and they expected us to do that. FISA is among the most important pieces of legislation this Congress has passed. It is there to provide a mechanism to conduct surveillance, it is critical to our security, but also protect the privacy and civil liberties of all Americans. Let's be clear, this new authority expands FISA to allow more flexibility to conduct surveillance. If we are going to expand surveillance, we have to take great care to protect American civil liberties, and that is what the Judiciary Committee adds. I praise the members who serve on both the Judiciary and Intelligence Committees--Senators Feinstein, Feingold, and Whitehouse, who contributed so much to the Judiciary Committee's efforts to improve this legislation. These Senators and others on the Judiciary Committee worked hard to craft amendments that preserve the basic structure and authority in the bill reported by the Select Committee on Intelligence, while adding crucial protections for Americans. The Judiciary Committee bill makes about 12 changes to the Intelligence Committee bill. Let me address a few of them. First, the Judiciary Committee bill contains a very strong exclusivity provision. This provision makes clear that the Government cannot claim authority to operate outside the law--outside of FISA-- from measures that were never intended to provide such exceptional authority. This administration argues that the Authorization for the Use of Military Force, passed after September 11, provided the justification for conducting warrantless surveillance of Americans for more than five years. No, what it did was authorize going into Afghanistan to get Osama bin Laden--the man who masterminded the attacks on 9/11. Not only did the administration fail to do that, it took our troops out of Afghanistan--when they had bin Laden cornered--to invade Iraq. When we authorized going after Osama bin Laden, we did not authorize explicitly or implicitly the warrantless wiretapping of Americans. Yet this administration still clings to this phony legal argument. The Judiciary Committee bill would prevent that dangerous contention with strong language reaffirming that FISA is the exclusive means for conducting electronic surveillance for foreign intelligence purposes. The Senate Intelligence Committee's bill would do nothing to preclude the AUMF argument in the future. We also provide a more meaningful role for the FISA Court in this new surveillance. This court is a critical independent check on Government excess in the sensitive area of electronic surveillance. The fundamental purpose of many of the Judiciary Committee changes is to ensure that this important independent check remains meaningful, while maintaining the flexibility of ``blanket'' orders, which we all agree are necessary. The Intelligence Committee bill would give the FISA Court only a very limited role in overseeing surveillance. The Judiciary Committee bill would give the FISA Court the authority it needs to assess the Government's compliance with minimization procedures. It would allow the Court to request additional information from the Government, and allow the Court to enforce compliance with its orders. The amendment would also give the court discretion to impose restrictions on the use and dissemination of Americans' information if it is collected unlawfully. The Judiciary bill would make other important changes. It reduces the sunset for this new law from 6 years to 4 years. This was Senator Cardin's amendment. There is too much here that is new and untested to allow the authorities go longer than even the next President's term before requiring a thorough review. It clarifies that the bill does not allow bulk collection that would simply sweep up all calls into and out of the United States. It also clarifies that the Government may not use this new authority to target Americans indirectly if they are not allowed to do it directly. The administration says it would never do this. They have no credibility. The Judiciary Committee's bill would make sure they keep their word. Finally, the Judiciary Committee bill includes a requirement that inspectors general, including the Department of Justice inspector general, conduct a thorough review of the so-called Terrorist Surveillance Program and report back to the Congress and, to the extent it can in an unclassified version, to the American people. The Department of Justice inspector general will have the responsibility to look at, among other things, the process at the Department of Justice that limited knowledge and review of important legal decisions to a tiny group of like-minded individuals, at great cost to the rule of law and American values. This is a key measure that would finally require accountability for this administration. We have not yet had anything close to a comprehensive examination of what happened and how it happened. We cannot expect to learn from mistakes if we refuse to allow them to be examined. I strongly oppose a provision in the Intelligence Committee bill that would grant blanket retroactive immunity to telecommunications carriers for their warrantless surveillance activities from 2001 through earlier this year. That provision goes even beyond the so-called Protect America Act. It would insulate this administration from accountability for its lawbreaking. The Judiciary Committee bill does not have that provision. I know that will be a separate debate on this floor. With the authority of a majority of the Judiciary Committee members, I made a few changes to the amendment as we reported it in November. There are no major additions or deletions. The original 12 changes are still there. The revised version makes some changes to address technical issues and concerns the administration raised about our substitute. We have considered the Statement of Administration Policy from last December and we have talked with the administration. We have listened and made changes that we think address some legitimate concerns. For example, we have revised the exclusivity provision. The provision in the earlier version of the Judiciary Committee amendment could have been read to extend the scope of FISA in a way that was not intended. We corrected that. Another concern we addressed was about the issue of staying FISA Court decisions pending appeal. The Intelligence Committee bill would automatically stay FISA Court decisions, thereby requiring possibly illegal surveillance to continue throughout a lengthy appeal process. The original Judiciary Committee amendment left the decision about a stay to the discretion of the FISA Court judges--which is how it is typically done in courts. The administration was concerned that this left too much power to stop surveillance in the hands of a lone judge. We listened and made a change that would permit the stay decision to be made--promptly--by a panel of the FISA Court of Review. Another change we made to address an administration concern was the important IG audit provision. That provision now makes it clear that no department inspector general has the authority to conduct a review of another department. These revisions make the Judiciary Committee's product stronger. I think overall the Judiciary Committee's bill dramatically improves the Intelligence Committee bill. As the distinguished chairman of the Intelligence Committee said, we included a number of items he supports. If this gets voted down, these are changes that Senators will have to offer piece by piece, and will. Most of it will be germane after cloture. If we really want to conclude this FISA debate quickly, adopting this amendment will save the Senate countless hours of debate. I urge my colleagues to support this amendment. Now, Mr. President, what is the parliamentary situation?

Mr. LEAHY. Mr. President, let me just talk about this a little bit. Incidentally, I ask for the yeas and nays on my amendment.

Mr. LEAHY. Mr. President, we all want to be able to collect intelligence on terrorists. When I came here, during the Cold War, we wanted to be sure we could collect on our adversaries. We still want to be sure we can do that. That is why I have voted for dozens of changes to FISA over the years, requested by both Republican and Democratic administrations. I voted for them because the administrations made a clear and convincing case each time that we needed a change to keep up with the technology or to keep up with a changing threat. But let's not be so frightened by terrorists that we go back to the situation we had during the Watergate era, when we found our Government was spying on people who disagreed with it. The government spied on people who had legitimate concerns about, for example, the war in Vietnam or the excesses of J. Edgar Hoover. The government could do that back then because there were no checks and there was no oversight. We do not want to go back to that time. We can do our intelligence gathering and protect Americans at the same time. Now, Mr. President, has my time expired?

Mr. LEAHY. Is that the only time anybody has?

Mr. LEAHY. I yield back all time.

Mr. LEAHY. Mr. President, I support Senator Feingold's amendment to provide Congress with additional materials from the FISA Court to enable Congress to conduct more effective oversight. This amendment is one of the many improvements to the Senate Intelligence bill adopted by the Judiciary Committee and included in the Judiciary Committee's substitute amendment. Regrettably, that substitute was tabled by the full Senate earlier today. But I urge Senators to reconsider their votes with respect to this simple but critically important reporting requirement. Under current law, semi-annual reporting requirements allow the government to wait up to a year before informing the Congress about important interpretations of law made by the FISA Court. The Senate Intelligence bill took a step in the right direction by requiring that Congress be provided with the orders, decisions and opinions of the FISA Court that include significant interpretation of law within 45 days after they are issued. Senator Feingold's amendment would go a step further to ensure sound oversight by Congress of the activities of the FISA Court. It would require that, when the FISA Court issues an opinion containing a significant legal interpretation, the government must provide Congress with the government's pleadings related to the case. This is critically important because, where the FISA Court simply adopts the government's reasoning in one of its decision, Congress will have no way of knowing the true basis for the court's ruling without access to the government's pleadings. The Feingold amendment would also require that Congress now be provided with any significant interpretations of law by the FISA Court that were not provided to Congress over the past 5 years. Access to past jurisprudence, as well as current decisions, is critical to Congress's understanding of how FISA is being interpreted and implemented. Opponents of this amendment say that it may create additional ``paperwork.'' But if Congress can be better informed about the workings of the FISA Court--a court Congress created--and can more effectively oversee the government's advocacy in that Court, then any incremental additional paperwork is clearly in the best interests of the American public. Opponents also say that the pleadings may reveal sources and methods, and therefore cannot be turned over to the Congress. This is a red herring. As Senator Feingold has stated repeatedly, this amendment is not intended to compel disclosure of this kind of information, and nothing in the amendment could be construed to change the time-tested practice of redacting information that could reveal sources and methods. I urge all Senators to support the Feingold amendment, and to reject any attempts to water down this important reporting requirement by way of second-degree amendments. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, our great Nation was founded on the fundamental principle that all persons are created equal. We have long committed, and recommitted, ourselves to ensuring that all persons have the right to prosper through hard work and ingenuity. However, for many Americans, those rights still remain illusory. Today, we introduce a comprehensive bill to vindicate our founding principles and make the promise of equal opportunity in the workplace a reality for all Americans. I am proud to cosponsor the Civil Rights Act of 2008, and I thank Senator Ted Kennedy for his leadership in the Senate on this issue, and Representative John Lewis for his leadership in the House. I have been a long-time supporter of efforts to rid the workplace of unlawful discrimination, and I believe the Civil Rights Act of 2008 is critical to achieving that important goal. We must continue to fight to end all workplace discrimination, including discrimination based on sexual orientation. This legislation we are introducing today responds to several disappointing decisions by conservative courts. These court rulings have misconstrued congressional intent, and have had the effect of limiting important civil rights protections provided by Congress. A 2000 decision from the Supreme Court of the United States greatly restricted the capacity of workers who suffer age discrimination to sue for full relief. In Kimel v. Florida Board of Regents, the Supreme Court ruled that, contrary to Congress's original intent, State employers do not have to provide back pay or other monetary damages when workers are discriminated against based on age. As a result, millions of State workers who are 40 or over lost the right to back pay. This bill would restore Congress's original intent that State employers give workers full relief for age discrimination, including back pay. The bill would clarify the standard for challenging employment practices that have an unjustified discriminatory impact on older workers. It would make clear that the standard of proof in cases alleging a disparate impact based on age is the same as in cases alleging a disparate impact based on race, color, gender, national origin, or religion. The bill would also restore the rights of victims of discrimination-- in the workplace or otherwise--to challenge practices that have a disparate impact on certain communities based on race, national origin, sex, age, or disability. Since the Supreme Court's decision 7 years ago in Alexander v. Sandoval, individuals can no longer challenge discrimination by entities that receive Federal funding without facing the high burden of proving purposeful discrimination. Currently, only the Federal Government has the right to challenge sophisticated forms of discrimination--by federally funded entities-- that fall disproportionately on certain minority groups. So if a State decided to administer a driver's license exam only in English, rather than administering the exam in multiple languages, a non-English speaker would be denied his or her right to have their day in court. This measure returns the Federal law to our original intentions by allowing individuals a right to challenge such practices: These added protections provide a significant step forward in the fulfillment of our goal to eliminate the footprint of unlawful discrimination from the workplace and broader society. Civil rights legislation over the last 44 years--including antidiscrimination in the workplace laws--represents some of Congress's greatest achievements. With the passage of the Civil Rights Acts of 1964 and 1991, the Age Discrimination Act of 1975, and the Rehabilitation Act of 1973, Congress gave victims of discrimination a way to address the wrongs that they have suffered and put teeth into the sanctions faced by those who unlawfully discriminate against their victims. Despite these gains, efforts to eliminate bias from the workplace and larger society have been largely eroded by decisions from conservative jurists on the Supreme Court and other Federal courts. Year after year, conservative courts have rolled back rights by denying certain types of relief and taking certain tools--designed to fight intentional and sophisticated forms of workplace discrimination--from individual workers. This bill would reverse that rollback, and restore the rights of victims to have their day in court and to have meaningful remedies when those rights are violated. Discrimination on the basis of certain personal characteristics has no place in any workplace or in any State in America. It is long overdue for Congress to reinforce Americans' protections against bias in the workplace and eradicate barriers to full and equal participation in our society. The time for this bill is now. It is particularly important that, on the week our Nation observes and honors the legacy of Dr. Martin Luther King, Jr., Congress has introduced this bill. We must remain vigilant in ensuring our precious civil rights, which generations of Americans fought and bled to protect, remain available for our children and grandchildren.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent to continue for what will be a relatively short while as in morning business.

Mr. LEAHY. Mr. President, the Senator from North Dakota is absolutely right. Having managed a number of bills, I know that sometimes it is hard to get people with amendments to come forth. I hope they do. Once this bill is finished, we will go to the Foreign Intelligence Surveillance Act or, as we know it here, FISA. It is intended to protect both our national security and also the privacy and civil liberties of all Americans. We are considering amendments to that important act that will provide new flexibility to our intelligence community. We all support surveillance authority. With terrorists plotting against us and talking about it, we want to be able to use all the various electronic and other means to find out what they are saying. Unlike some in the administration who say we are dealing with an antiquated law, we have updated this act many times, probably 30 or more times since its historic passage after intelligence abuses of earlier decades. I came here 34 years ago. I well remember that this Nation was still reeling from the excesses of the COINTELPRO when people were being spied on by their Government simply because they disagreed with what the Government was doing; in this case, the war in Vietnam. We enacted FISA so we could do the legitimate thing of actually spying on people who wanted to do harm to the United States at the time of the Cold War, when we had adversaries all over the world. We also wanted to make sure that Americans who were minding their own business, not doing anything illegal, wouldn't be spied upon. We rushed the so-called Protect America Act through the Senate just before the August recess and with it were a number of excesses. They came about because the administration broke agreements it had reached with congressional leaders. The bill was hurriedly passed under intense partisan pressure from the administration. In fact, the pressure was so strong, they made it very clear why they were willing to break agreements with those Republicans and Democrats who had been working together to try to craft a bill that would protect America's interests but also protect the privacy of individual Americans. So we passed a bill that provides sweeping new powers to the Government to engage in surveillance, without a warrant, of international calls to and from the United States involving Americans, and it provided no meaningful protection for the privacy and civil liberties of the Americans who were on those calls. It could be an American calling a member of their family studying overseas. It could be a business person who, as they travel around to various companies they represent, ends up having their telephone calls intercepted. But before that flawed bill passed--the one that came about because of the broken agreements by the administration--Senator Rockefeller and I and several others in the House and Senate worked hard, in good faith with the administration, to craft legislation that solved an identified problem but, as I said, protected America's privacy and liberties. Just before the August recess the administration decided instead to ram through its version of the Protect America Act with excessive grants of Government authority and without any accountability or checks and balances. They did this after 6 years of breaking the law through secret warrantless wiretapping programs. It was one of the most egregious things I have seen in my 34 years in the Senate. First they violate the law, and then instead of being held accountable, they ram through a law designed to allow them to continue those actions. Some of us saw it for what it was and voted against it. Both Senators from Vermont voted against it. We are from a State that borders a foreign country. We are concerned about our security, but we are also concerned about our liberties and our privacy. We did manage to include 6-month sunset in the Protect America Act so we would have a chance to revisit this matter and do it right. The Senate Judiciary Committee and the Intelligence Committee, as well as our House counterparts, have spent the past month considering changes. In the Senate Judiciary Committee we held open hearings. We had more briefings than I can even count and meetings with the administration, with people in the intelligence service, with people at the CIA, NSA, and others. We considered legislative language in a number of open business meetings where Senators from across the political spectrum could be heard. Then we reported a good bill to the Senate before Thanksgiving. The bill we are now considering will permit the Government, while targeting overseas, to review more Americans' communications with less court supervision than ever before. I support surveillance of those who might do us harm, but we also have to protect Americans' liberties. Attorney General Mukasey said at his nomination hearing that ``protecting civil liberties, and people's confidence that those liberties are protected, is a part of protecting national security.'' Let me repeat what the new Attorney General said: Protecting civil liberties, and people's confidence that those liberties are protected, is a part of protecting national security. I agree with him. That is what the Judiciary Committee bill does. I commend the House of Representatives for passing a bill, the RESTORE Act, that takes a balanced approach to these issues and allows the intelligence community great flexibility to conduct surveillance of overseas targets but also provides oversight and protection for Americans' civil liberties. The Senate Select Committee on Intelligence has also worked hard. I know Chairman Rockefeller was as disappointed as I at the administration's partisan maneuvering just before the August recess. After being here through six administrations, it has always been my experience, with Republican or Democratic administrations at certain points, when you are negotiating a key piece of legislation with the administration, you have to rely on them to keep their word and be honest with you, as they have to rely on you to keep your word and be honest with them. Through six administrations, 34 years, I can never remember a time where an administration was less truthful or flatly broke their word in the way this one did. I commended the efforts of Senator Rockefeller and those working with him. I do so again now. I believe both he and I want surveillance but we want surveillance with oversight and accountability within the law. I also want to praise our joint members. In the Judiciary Committee we have, by practice, a certain number of members who serve on both Judiciary and Intelligence for obvious reasons. The ranking member of Judiciary and I, of course, have access to a great deal of intelligence whenever we have requested it, but that is on an ongoing basis. Senators Feinstein, Feingold, and Whitehouse contributed so much to the work of the Judiciary Committee. They worked with me to author many of the additional protections we adopted and reported. They had worked on the bill in the Intelligence Committee and then worked with us. These Senators and others on the Judiciary Committee worked hard to craft amendments that will preserve the basic structure and authority proposed in the bill reported by the Select Committee on Intelligence, but then they added those crucial protections for Americans, the part the Judiciary Committee, because of our oversight of courts, worries about. I believe we need to do more than the bill initially reported by the Senate Select Committee on Intelligence does to protect the rights of Americans. I know the chairman of that committee joins with me to support many of the Judiciary Committee's improvements. Let me cite briefly what they are. The Judiciary bill, for example, makes clear that the Government cannot claim authority to operate outside the law outside of FISA--by alluding to other legislative measures never intended to provide that authority. I will give you an example of what happened. The House and the Senate passed an authorization for the use of military force. We did this right after September 11. It was authorization to go in and capture Osama bin Laden--the man who engineered 9/11, is still loose, and taunts us periodically. But what happened? The administration was so hellbent on getting into Iraq that when they had Osama bin Laden cornered, they withdrew their forces and let him get away so they could invade Iraq--a country that had absolutely nothing to do with 9/11. Now they say that authorization allowed them to wiretap Americans without a warrant. I have heard some strange, convoluted, cockamamie arguments before in my life. This one takes the cake. I introduced a resolution on this in the last Congress when we first heard this canard. We authorized going after Osama bin Laden, but the Senate did not authorize--explicitly or implicitly--the warrantless wiretapping of Americans. By their logic, they could also say we authorized the warrantless search of the distinguished Presiding Officer's home or my home. This body did no such thing, but the administration still is clinging to their phony legal argument. The Judiciary bill would prevent that dangerous contention with strong language that reaffirms that the Foreign Intelligence Surveillance Act is the exclusive means for conducting electronic surveillance for foreign intelligence purposes. The Judiciary Committee's amendment would also provide a more meaningful role for the FISA court to oversee this new surveillance authority. The FISA court is a critical independent check on Government excess in the sensitive area of electronic surveillance. The administration claims that of course the Foreign Intelligence Surveillance court can look at what they are doing, they just don't want the court to be able to do anything about it. No. The Judiciary Committee says the court should be able to look at what they are doing and should be able to stop them if they are breaking the law. In this Nation we fought a revolution over 200 years ago to have that right. With the authority of a majority of the Judiciary Committee members, I am going to offer a revised version of the Committee's amendment that makes some changes to address technical issues and also to address some of the claims the administration has made about our substitute. For example, in response to concerns raised by the administration in its Statement of Administration Policy, we have revised the exclusivity provision to ensure that we are not overextending the scope of FISA. We have also revised the provision concerning stay of decisions of the FISA Court pending appeal, the provision clarifying that the bill does not permit bulk collection of communications into or out of the United States, and a few other provisions. I believe these revisions make the Judiciary Committee's product even stronger, and I urge my colleagues to support it. Now, in the bill we have a title I, a title II. Title II in the Intelligence bill talks about retroactive immunity. We do not address that in the Judiciary Committee's bill, but I do strongly oppose the bill reported by the Senate Select Committee on Intelligence in that area. Their bill would grant blanket retroactive immunity to telecommunications carriers for their warrantless surveillance activities from 2001 through earlier this year. This surveillance was contrary to FISA and violated the privacy rights of Americans. The administration violated FISA for more than 5 years. They got caught. If they had not gotten caught, they probably would still be doing it. But when the public found out about the President's illegal surveillance of Americans, the administration and the telephone companies were sued by citizens who believe their privacy and their rights were violated. Now the administration is trying to get this Congress to terminate those lawsuits. It is not that they are worried about the telephone companies. They are not as concerned about the telephone companies as they are about insulating themselves from accountability. This is an administration that does not want us to ask them anything, and they do not want to tell us anything. Interesting policy. If you do ask them, they are not going to tell you. If they do tell you, it appears oftentimes they do not tell you the truth. Now, the rule of law is fundamental to our system. It has helped us maintain the greatest democracy we have ever seen in our lifetimes. But in conducting warrantless surveillance, the administration showed flagrant disrespect for the rule of law. It is like the King of France, who once said: ``L'Etat, c'est moi.'' ``The state is me.'' They are saying: What we want to do is what we will do. And if we want to do it, the law is irrelevant. I cannot accept that. The administration relied on legal opinions that were prepared in secret and shown only to a tiny group of like-minded officials who made sure they got the advice they wanted--advice that, when it saw the light of day, people said: How could anybody possibly write a legal memorandum like that? Jack Goldsmith, who came in briefly to head the Justice Department's Office of Legal Counsel, described the program as a ``legal mess.'' He is a conservative Republican. He looked at this and said: It is a legal mess. Now, the administration does not want a court to get a chance to look at this legal mess. Retroactive immunity would assure that they get their wish and that nobody could ask how and why they broke the law. Frankly, I do not believe anybody is above the law. I do not believe a President is, I do not believe a Senator is, I do not believe anybody is. I do not believe that Congress can or should seek to take rights and legal claims from those already harmed. I support the efforts of Senators Specter and Whitehouse to use the legal concept of substitution to place the Government in the shoes of the private defendants who acted at its behest and to let it assume full responsibility for the illegal conduct. Although my preference, of course, is to allow the lawsuits to go forward as they are, I believe the substitution alternative is effective. It is far preferable to retroactive immunity, and it allows this country to find out what happened. Keep in mind why we have FISA. Congress passed that law only after we discovered the abuses of J. Edgar Hoover's FBI. Through the COINTEL Program, Hoover spied on Americans who objected and spoke out against the war in Vietnam--which pretty well involved 100 percent of the Vermont delegation in Congress. It is like the Department of Defense today that is going around videotaping Quakers protesting the war. Quakers always protest the war. But this administration seems to think, if you disagree with them, somehow you are an enemy of the country and they can justify spying on you. That is why we put these laws in place. Is memory so short around here? Is memory so short or are we so frightened by 9/11 that we are willing to throw away everything this country fought for and everything that has made this country survive as long as it has? We were told this building was targeted by terrorists. I proudly come into this building every day to go to work. It is the highlight of my life, other than my wife and my family. But I come in here because I believe 100 Members of the Senate can be the conscience of the Nation. We can protect Americans' rights, we can protect those things that our forefathers fought a revolution for, that we fought a civil war to protect, that we fought two World Wars to protect. Now we are going to throw it away because of a group of terrorists? This is ``Alice in Wonderland.'' So as we debate these issues, let's keep in mind the reason we have FISA in the first place. As I said, back in the 1970s we learned the painful lesson that powerful surveillance tools, without adequate oversight or the checks and balances of judicial review, lead to abuses of the rights of the American people. So I hope this debate will provide us with an opportunity to show the American people what we stand for. We can show them that we will do all we can to secure their future, but at the same time protect their cherished rights and freedoms. Those are the rights and freedoms that protected past generations and allowed us to have a future. If we do not protect them, what will our children and grandchildren have? It is incumbent upon us to stand up for this country. When you stand up for this country, it does not mean jingoism, it does not mean sloganeering. It means protecting what is best for this country. If we do that, the terrorists will not win. The United States of America wins. The people who rely on us around the world will win. Our example will be one they will want to follow. Mr. President, I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Mr. President, as we start a new year--and the Senate starts a new session--the American people have a new law that honors and protects their right to know. I am pleased that during the waning hours of 2007, the President signed the Leahy-Cornyn Openness Promotes Effectiveness in our National Government Act, the ``OPEN Government Act,'' S. 2488, into law--enacting the first major reforms to the Freedom of Information Act, ``FOIA'' in more than a decade. Today, our Government is more open and accountable to the American people than it was just a year ago. With the enactment of FOIA reform legislation, the Congress has demanded and won more openness and accountability regarding the activities of the executive branch. I call on the President to vigorously and faithfully execute the OPEN Government Act, and I hope that he will fully enforce this legislation. Sadly, the early signs from the administration are troubling. Just this week, the administration signaled that it will move the much- needed funding for the Office of Government Information Services created under the OPEN Government Act from the National Archives and Records Administration to the Department of Justice. Such a move is not only contrary to the express intent of the Congress, but it is also contrary to the very purpose of this legislation--to ensure the timely and fair resolution of American's FOIA requests. Given its abysmal record on FOIA compliance during the last 7 years, I hope that the administration will reconsider this unsound decision and enforce this law as the Congress intended. In addition, for the first time ever under the new law implementing the recommendations of the 9/11 Commission, Federal agencies will be required to fully disclose to Congress their use of data mining technology to monitor the activities of ordinary American citizens. I am pleased that this law contains the reforms that I cosponsored last year to require data mining reporting and to strengthen the Privacy and Civil Liberties Oversight Board. Surely all of these OPEN Government reforms are cause to celebrate. But there is much more work to be done. During the second session of the 110th Congress, I intend to work hard to build upon these OPEN Government successes, so that we have a government that is more open and accountable to all Americans. As chairman of the Judiciary Committee, I have made oversight of the FOIA reforms contained in the OPEN Government Act one of my top priorities. I will also continue to work closely with Members on both sides of the aisle and in both Chambers to address the growing and troubling use of FOIA (b)(3) exemptions to withhold information from the American people. As the son of a Vermont printer, I understand the great value of documenting and preserving our Nation's rich history for future generations, so that our democracy remains open and free. Next month, I will convene an important hearing of the Judiciary Committee on the Founding Fathers Project and the effort to make the historical writings of our Nation's Founders more accessible and open to the public. I will also work to ensure Senate passage of the Presidential Records Act Amendments of 2007, S. 886 to reverse a troubling Bush administration policy to curtail the disclosure of Presidential records. And I will continue my fight to ensure the public's right to know by urging the prompt consideration and passage of meaningful press shield legislation in the Senate. More that two centuries ago, Patrick Henry proclaimed that ``[t]he liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.'' I could not agree more. Open government is not a Democratic value, nor a Republican value. It is an American value and an American virtue. In this new year, at this new and historic time for our Nation, I urge all Members to join me in supporting an agenda of an open and transparent Government on behalf of all Americans.

Mr. LEAHY

Mr. LEAHY. Mr. President, we have a number of Members who are supposed to go to the Davos economic summit tomorrow night, and I would note I have talked with Senator Bennett of Utah, who is the senior Republican on that trip, and the trip that is set to leave tomorrow night will not. We will put it on hold until Thursday, to determine whether we can leave on Thursday. If I could have the attention of the majority leader for a moment. I appreciate the majority leader has been very clear. I happen to concur with him that this is important and we should finish it. All we want to do is to know how it will go. There is a Judiciary Committee amendment to the bill. I would not anticipate taking a great deal of time on that, but I think the distinguished majority leader is doing the absolute right thing. He has the worst job in America, trying to accommodate the schedules of 99 other people, plus his own, which usually comes in number 100 out of the 100. I am not in any way suggesting we change for the Davos summit. I will keep in touch with him, Senator Rockefeller, and others as we go forward. If it is possible for us to leave Thursday night, we will be able to leave Thursday night. But I would not suggest the bipartisan delegation go to Davos if this matter is pending. I appreciate the distinguished leader spending a lot of time on the phone over the weekend and again today and I appreciate his consideration.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am proud to cosponsor the Domestic Partnership Benefits and Obligations Act of 2007, being introduced today by Senators Lieberman and Smith. I cosponsored this legislation in the last Congress and I am pleased to do so again. This important legislation would provide domestic partners of Federal employees the same protections and benefits afforded to spouses of Federal employees. These benefits, available for both same and opposite-sex domestic partners of Federal employees, would include participation in applicable retirement programs, compensation for work injuries and insurance benefits, including life, Family and Medical Leave and health insurance. Equal pay for equal work is a cornerstone of our country's bedrock principles, and so too should equal access to important benefits. Insurance benefits, work incentives and retirement options comprise a significant portion of all employee compensation. By not offering domestic partnership benefits to its employees, the Federal government is unfairly withholding these valuable options from dedicated employees across the country. The idea that benefits should be extended to same sex couples has become increasingly prevalent in America's largest and most successful companies, state and local governments, and in educational institutions. Over half of all Fortune 500 companies provide domestic partner benefits to their employees, up from just 25 percent in 2000. Offering domestic partnership benefits to Federal employees would improve the quality of its workforce, demonstrate its commitment to fairness and equality for all Americans, and bring the Government in line with some of the Nation's largest employers. Providing benefits to domestic partners of Federal employees is long overdue. It is the right thing to do, it is the sensible step to take in the interest of having a fair and consistent policy, and I hope that the Senate will act quickly on this important legislation.

Mr. LEAHY

Mr. LEAHY. Mr. President, as the first session of the 110th Congress concludes, we should note that the Senate has worked hard on executive nominations. In addition to confirming 40 lifetime appointments to the Federal bench, we confirmed 21 of this President's nominations for high-ranking executive branch positions, including the confirmations of nine U.S. attorneys, four U.S. marshals, and eight other important positions. We achieved these numbers in a year when our investigation into the mass firing of U.S. attorneys, which triggered a host of resignations by senior White House and Justice Department officials, led the Judiciary Committee to devote significant time to rebuilding the integrity and independence of the Justice Department. We held hearings on nine executive nominations, including 2-day hearing on the nomination of Michael B. Mukasey to be Attorney General of the United States and another hearing on the nomination of Judge Mark Filip to be Deputy Attorney General of the United States, the top two positions at the Justice Department. We also held hearings on the nominations of Michael J. Sullivan to be Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives; Ronald Jay Tenpas to be Assistant Attorney General, Environment and Natural Resources Division, Department of Justice; Ondray T. Harris to be Director, Community Relations Service, Department of Justice; David W. Hagy, to be Director of the National Institute of Justice, Department of Justice; Scott M. Burns, to be Deputy Director of National Drug Control Policy, Executive Office of the President; Cynthia Dyer, to be Director of the Violence Against Women Office, Department of Justice; and Nathan J. Hochman, to be an Assistant Attorney General, Tax Division, Department of Justice. We favorably reported 20 executive nominations, and the full Senate has proceeded to confirm 21 executive nominations, including 4 additional nominations discharged from the Judiciary Committee and confirmed today, those of Joseph P. Russoniello to be U.S. attorney for the Northern District of California, Cynthia Dyer to be Director of the Violence Against Women Office, Julie L. Myers to be Assistant Secretary of Homeland Security, and Nathan J. Hochman, to be Assistant Attorney General of the Tax Division at the Justice Department. I understand that Republican holds have prevented the confirmation of Michael J. Sullivan to be Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. I thank the members of the Judiciary Committee for their hard work all year in considering these important nominations. I especially thank those Senators who have given generously of their time to chair confirmation hearings throughout the year. These nominations come at a critical time for the Nation. Over the course of this year, during which the Judiciary Committee investigated the firing of U.S. attorneys, we faced the most serious threat to the effectiveness and professionalism of the Justice Department since Watergate and the Saturday Night Massacre. Under this President, the Justice Department suffered a severe crisis of leadership that allowed our justice system to be corrupted by political int1uence. The crisis of leadership that led to numerous resignations and has taken a heavy toll on the tradition of independence that has long guided the Department and protected it from political influence. This crisis has also taken a heavy toll on morale at the Department and in confidence among the American people. Our work to restore the Justice Department also including reporting nine U.S. attorney nominations: James Russell Dedrick to be U.S. attorney for the Eastern District of Tennessee, Thomas P. O'Brien to be U.S. attorney for the Central District of California, Edward Meacham Yarbrough to be U.S. attorney for the Middle District of Tennessee, Rosa Emilia Rodriguez-Velez to be U.S. attorney for the District of Puerto Rico, Joe W. Stecher to be U.S. attorney for the District of Nebraska, John Wood to be U.S. attorney for the Western District of Missouri, Diane J. Humetewa to be U.S. attorney for the District of Arizona, Gregory A. Brower to be U.S. attorney for the District of Nevada, and Edmund A. Booth, Jr. to be U.S. attorney for the Southern District of Georgia. Some replace outstanding U.S. attorneys who were fired almost a year ago as part of the ill-advised, partisan plan to fire well-performing U.S. attorneys. We also reported the nominations of four U.S. marshals: Michael David Credo for the Eastern District of Louisiana, Esteban Soto III for the District of Puerto Rico, John Roberts Hackman for the Eastern District of Virginia, and Robert Gideon Howard, Jr., for the Eastern District of Arkansas. We also reported the nominations of Julie L. Myers to be Assistant Secretary of Homeland Security, Dabney Langhorne Friedrich to be a member of the U.S. Sentencing Commission, and Beryl A. Howell to be a member of the U.S. Sentencing Commission. Just this week, with only a few legislative days left to us before the Christmas holidays and the end of this session, our committee held two hearings for executive nominations. Our track record shows that the Judiciary Committee has been working hard to make progress. Of course, when the White House fails to timely send us nominations to fill vacancies, it makes it that much harder. The White House has made an abysmal effort to send nominees to the Senate to replace the fired U.S. attorneys and to fill vacancies in those districts and many others. There are now 19 districts with acting or interim U.S. attorneys instead of Senate-confirmed U.S. attorneys. That is nearly a quarter of all districts. Yet the White House has nominated only 3 people for these 19 spots. Of course, some of these could have been filled a year ago had the White House worked with the Senate. I have urged the President to fill the remaining executive vacancies with nominees who will restore the independence of Federal law enforcement. Last month, the White House announced with great fanfare its intent to make nominations for key positions at the Department of Justice. It was only weeks later that several of these nominations were sent to the Senate. The delays in sending U.S. attorney nominees and others to the Senate follow the many months of delay where the White House failed to send nominees to fill vacancies that have been open since the summer, or before. In the course of the committee's investigation into the unprecedented mass firing of U.S. attorneys by the President who appointed them, we uncovered an effort by officials at the White House and the Justice Department to exploit an obscure provision enacted during the PATRIOT Act reauthorization to do an end-run around the Senate's constitutional to confirm U.S. attorneys. The result was the firing of well-performing U.S. attorneys for not bending to the political will of political operatives at the White House. I have repeatedly emphasized that when it comes to the Justice Department and to the U.S. attorneys in our home States, Senators have a say and a stake in ensuring fairness and independence in order to insulate Federal law enforcement function from untoward political influence. That is why the law and the practice has always been that these appointments require Senate confirmation. The advice and consent check on the appointment power for U.S attorneys is a critical function of the Senate. I had hoped when the Senate voted overwhelmingly to close the loophole created by the PATRIOT Act when we passed S.214, the Preserving United States Attorneys Independence Act of 2007, by a vote of 97 to 0, it would send a clear message to the administration to make nominations that could receive Senate support and begin to restore an important check on the partisan influence in law enforcement. Yet, even as we closed one loophole, the administration has been exploiting others to continue to avoid coming to the Senate. Under the guidance of an erroneous opinion of the Justice Department's Office of Legal Counsel, the administration has been, employing the Vacancies Act authority to use acting U.S. attorneys and the power to appoint interim U.S. attorneys sequentially. They have used this misguided approach to put somebody in place for 330 days without the advice and consent of the Senate. This approach runs afoul of congressional intent and the law. By not providing us with the nominations to the highest ranking vacancies within the Justice Department and not providing the basic background materials needed to review such nominations before the Thanksgiving recess, the administration has once again foreclosed the opportunity to have these nominees considered by the Senate and in place this year. Those nominations will now necessarily carryover into the next session. That is unfortunate and was unnecessary. We will continue to make progress when we can, and I will urge the White House to work with the Senate to fill these vacancies.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I would like to take a moment to recognize Dr. Anthony Facui, Director of the National Institutes of Allergy and Infectious Diseases, NIAID, for his numerous contributions in medical research and specifically his work on HIV/AIDS, avian flu and anthrax. Even in a city such as Washington, which is filled with driven and motivated people, Dr. Fauci is a cut above. As Director of NIAID, he has worked tirelessly to lead the fight against AIDS and has been instrumental in shaping our understanding of how this disease works. I am proud to have worked with Dr. Fauci and would like to take this opportunity to submit the following article recounting the remarkable work and career of Dr. Fauci for the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, earlier this week, the Senate passed a compromise version of the Court Security Improvement Act of 2007. It took several months to negotiate the minor differences between the House and the Senate bills, simply because we were not allowed to go to conference. Then we had to work for over a month to remove a hold placed on the legislation. When it finally passed the Senate on Monday night, we expected that the House of Representatives would pass it without delay. Unfortunately, one of the compromise provisions triggered a problem that would have prevented passage in the House. We corrected that problem late last night with an enrolling resolution that strikes the provision of section 502 that caused a budgetary problem. Fortunately, we were able to maintain the important provision of life insurance benefits for our dedicated magistrate judges. I appreciate the work of Senators Specter and Kyl to make sure that we were able to pass this resolution late last night and I look forward to the House of Representatives passing both the resolution and the Court Security Improvement Act without further delay. I urge the President to sign this vital legislation, introduced 11 months ago, without delay so that we can protect the dedicated judges, and other personnel who serve as part of our Nation's justice system. The security of our Federal judges and our courthouses around the Nation is at stake.

Mr. LEAHY

Mr. LEAHY. Madam President, today, the Senate took an important step forward to improve the National Instant Criminal Background Check System, NICS, the Nation's background check system for gun purchases. Along with Senator Schumer, I have worked hard to craft this compromise legislation that respects the rights of gun owners and, at the same time, makes sure that the NICS system will work more effectively. This compromise has not been easy, as many have strong views on issues surrounding this bill, but working with Senators on both sides of the aisle, we have forged strong, fair legislation to address serious shortcomings in the Federal program. Throughout the process, we have taken great care to make sure Federal law governing who can own or possess a firearm remains unchanged. The Senate language makes clear that the correct records will go into the NICS system, that any records improperly in NICS will be removed promptly, that legal notice and due process considerations will be required in Federal proceedings, and that the States have sufficient support to meet the goals of the bill. We have been responsive to the legitimate concerns of veterans and advocates on both sides of the issue, and at the same time, we have worked hard to correct weaknesses that have been exposed by the tragic events of the last year. The senseless loss of life at Virginia Tech this spring revealed serious flaws in the NICS system, particularly in the transfer of mental health information relevant to gun purchases between the States and the Federal Government. Deficiencies in the current NICS system, including a significant lack of funding, permitted the perpetrator of this terrible crime to obtain firearms and ammunition despite having a mental health history that made him ineligible to buy or possess a firearm under Federal law. He was able to pass a background check and purchase the weapons he used in his attacks because data was missing from the NICS system. In response to this devastating tragedy, the Judiciary Committee worked hard to produce a comprehensive legislative proposal related to issues of school safety, and in August unanimously reported the School Safety and Law Enforcement Improvement Act of 2007, SSLEIA, to the full Senate. As part of this legislative package, we drafted title II of SSLEIA to include an amended version of the NICS Amendment Improvement Act of 2007, H.R. 2640, that passed the House in July. Today, the Senate passed a revision of title II from SSLEIA, as the Leahy-Schumer amendment to H.R. 2640, which closes the gaps in the NICS system that allowed the purchase of the firearms that were used in the Virginia Tech killings. I hope the House of Representatives will take up and pass H.R. 2640, as amended, as soon as possible. The Leahy-Schumer amendment largely mirrors the language of H.R. 2640 as passed by the House. But it also makes modest but important changes to that bill in order to ensure this new law works effectively and fairly for all Americans. It creates a legal regime where the reporting of disqualifying mental health records, both at the State and Federal levels, will be improved. This bill will also require Federal agencies to report mental health and other disqualifying records into NICS and would create significant new incentives for States to report this same information. These basic features of the amendment are the same as in the House bill. Additionally, the bill contains provisions directing Federal agencies to establish relief from disabilities programs through which individuals who have overcome a disqualifying mental illness or disability may reclaim their rights, and urges the States to do the same. As I reviewed this issue, however, I determined that additional changes were necessary both to improve the NICS system further and to better enable States like Vermont to implement these improvements. By tempering the penalties for insufficient participation by the States in meeting the bill's goals, and increasing incentives for full participation, I am hopeful that the bill will strengthen the partnership between Federal and State authorities in search of a common goal. The NICS system is only as good as the information that is reported into it, and to achieve success in improving NICS, we must recognize and adequately support the States in this challenging undertaking. I want to thank Paco Aumond, director of Criminal Justice Services at the Vermont Department of Public Safety, for working with me to identify those changes in the legislation to ensure that Vermont and the many similarly situated States will be more easily able to make the comprehensive improvements necessary for a more effective NICS system. Nothing can bring back the lives tragically lost at Virginia Tech, and no legislation can be a panacea, but the bill we pass today will begin to repair and restore our faith in the NICS system and may help prevent similar tragedies in the future.