Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Madam President, will the Senator yield for a question?

Mr. LEAHY. Madam President, the suggestion has been made that the system is broken. Of course, I thought it would work far more smoothly with a Republican President, a Republican House, and a Republican Senate. We had actually passed a budget back last April, which by law we are required to do. Madam President, will the Senator from North Dakota agree that there is at least one glimmer of hope here on the system working? This was put in by the Republicans in the House, and at least the Democrats in the Senate discovered it. So to that extent, there is at least a glimmer of hope.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to applaud the fact that the Satellite Home Viewer Extension and Reauthorization Act of 2004 has been included in the Omnibus Appropriations conference report. The House is likely to pass the conference report later today. The fate of the conference report is less certain here in the Senate, and I still have not made up my mind how I will vote as I am still reviewing the text of the bill. I am pleased, however, that the Satellite Home Viewer Extension and Reauthorization Act of 2004 has been included. This new law marks important progress for rural Americans by providing greater access to more television options or these consumers, making more local TV channels available to them, encouraging more digital TV offerings, and providing head-to-head competition with cable TV. I was pleased to sponsor the original Senate bill with Chairman Hatch, and Senators DeWine and Kohl, which was introduced on January 21, 2004. At our Judiciary Committee hearing on the bill we heard from the President and CEO of Vermont Public Television, John King, who testified about the benefits of local-into-local television to Vermonters and the importance of getting both satellite carriers to offer it in Vermont. He also noted that all of the Vermont network stations should be offered statewide, including in Bennington and Windham counties. He testified that those counties receive local news from the Schenectady area and from the Boston TV market, respectively, not from Vermont stations. I can recall hearing from many Vermont families over the years about this issue. In fact, in a letter dated February 20, 2004, I heard from almost 20 Vermont State representatives and State senators about the importance of getting satellite-delivered Vermont stations into Bennington and Windham counties. Indeed, the Vermont General Assembly adopted in both houses a joint resolution urging that ``the Vermont Congressional delegation assist in assuring the availability of Vermont-based television stations on all home satellite delivery systems in the state.'' I am pleased to announce that this just got done with the passage of this new law. Once the President signs this bill, both satellite carriers, the Dish Network, also known as EchoStar, and DirecTV will be able to offer all Vermont TV stations in all Vermont counties. The Dish Network has been offering Vermont TV stations over satellite for over 2 years, except in those two counties, and DirecTV announced this month that they would begin offering local TV service in Vermont. Both of these national satellite companies will also be able to offer TV satellite service in analog--as they do now--and in digital after full implementation of this new satellite law. The Hatch-Leahy Satellite Home Viewer Extension Act of 2004 was approved by the Senate Judiciary Committee on June 17, 2004. All the members of the Judiciary Committee supported that bill. When the bill was reported out of committee, I noted that the bill does far more than just protect satellite dish owners from losing signals as had happened in 1997 and 1998. I pointed out that the new satellite bill protects subscribers in every state, expands viewing choices for most dish owners, promotes access to local programming, and increases direct, head-to-head, competition between cable and satellite providers. Easily, this bill will benefit 21 million satellite television dish owners throughout the nation, and I am happy to note that around 90,000 Vermonters receive satellite TV. I was pleased to work on this bill not only with the Vermont Congressional delegation but also with my colleagues from New Hampshire, Senator Sununu and Senator Gregg. We, along with Senator Jeffords, introduced legislation to ensure that satellite dish owners in every county in each of our States would be able to receive signals, via satellite, from our respective in-State television stations. While our two States represent a small television market as compared to some of the major population centers, this provision is nonetheless very important to residents in six of our collective counties--two in Vermont and four in New Hampshire. I also coordinated these efforts with Congressman Sanders and Congressman Bass of New Hampshire. Viewers in both States in those counties will simply choose whether they want to watch WMUR from Manchester, or watch WVNY or any of the other Vermont stations. For the first time, these residents in both States will be able to receive home State news and programming via satellite. For too long, Bennington and Windham counties have not been able to receive television news about what is happening in Vermont. Because of Vermont's alpine topography, with many towns in the saddles of our mountains, thousands of Vermonters did not receive Vermont television stations over the air. This new provision solves that problem. I have received input from all Vermont stations on this effort. I also had my staff meet with representatives from all the Vermont stations to go over the details. I appreciate the input of Peter Martin of WCAX; John King and Ann Curran of Vermont Public Television; Bill Sally of Fox, WFFF; Paul Sands of WPTZ and WNNE, NBC; Ted Teffner of WCAX; Eric Storck and Ken Kazabowski of WVNY, ABC. My staff also met with representatives of Adelphia Cable, Vermont's largest cable provider, and other providers. As I mentioned on the Senate floor in September, this effort will also allow additional programming via satellite through adoption of the so-called ``significantly viewed'' test now used for cable, but not for satellite subscribers. Generally applied that test means if a family were in an area in which most families in the past had received TV signals using a regular rooftop antenna, then those families could be offered that same signal TV via cable. By having similar rules, satellite carriers will be able to directly compete with cable providers who already operate under the significantly viewed test. This gives home dish owners more choices of programming. In 1997, we found a way to avoid cutoffs of satellite TV service to millions of homes and to protect the local affiliate broadcast system. The following year we forged an alliance behind a strong satellite bill to permit local stations to be offered by satellite, thus increasing competition between cable and satellite providers. I want to thank Chairman Hatch, along with Senators Kohl and DeWine, for providing such strong leadership in this effort. In 1998 and 1999 we developed a major satellite law which transformed the industry by allowing local television stations to be carried by satellite and beamed back down to the local communities served by those stations. This marked the first time that thousands of TV owners were able to get the full complement of local network stations. In 1997 we found a way to avoid cutoffs of satellite TV service to millions of homes and to protect the local affiliate broadcast system. The following year we forged an alliance behind a strong satellite bill to permit local stations to be offered by satellite, thus increasing competition between cable and satellite providers. We also worked with the Public Broadcasting System so they could offer a national feed as they transitioned to having their local programming beamed up to satellites and then beamed back down to much larger audiences. Because of those efforts, dish owners in Vermont and most other States can watch their local stations instead of receiving signals from distant stations. Such a service allows television watchers to be more easily connected to their communities as well as providing access to necessary emergency signals, news and broadcasts. The good news is that this bill is great for every state in the nation. Consumers in every county in every state will be offered, over time, more satellite TV choices. This effort is an example of how the Congress can work together on complex issues to benefit families all across America. Many Members had a hand in crafting this bill. Subcommittee Chairman DeWine, and his chief of staff, Pete Levitas, and David Bolling, and ranking member Senator Kohl and his staff, Jeff Miller and Jon Schwantes, were very helpful in crafting the Committee bill. In the other body, Chairman Sensenbrenner and subcommittee chairman Lamar Smith did a tremendous job on the Judiciary copyright issues. They worked with their Democratic colleagues including ranking member John Conyers and subcommittee ranking member Howard Berman to report out a strong bill. The leaders of the Committee on Energy and Commerce worked on issues related to their jurisdiction and together with the Judiciary Committee developed a combined bill for House floor action. That was a great idea and they proposed a seamless package. As I have stated several times before, H.R. 4518 represented a very careful balancing of interests and was good for consumers, good for the affected industries, good for copyright holders and good for rural America. Staff of Senate and House leadership helped facilitate the process of working out some of the differences between different versions of the bill. Many staff worked diligently on this effort, including David Jones with Senate Judiciary and David Whitney with House Judiciary, both of whom were instrumental in crafting good solutions to complex problems. Many House and Senate Commerce Committee staff pitched in and worked together to get this bill done. James Assey, Bill Bailey, Rachel Welch, Gregg Rothschild, Alec French, Peter Filon, Sampak Garg, Neil Fried, Mike Sullivan and Howard Waltzman are some of the House staff on both Committees who worked hard to get the job done. I know that my staff appreciated the helpful assistance provided by staff of Speaker Hastert, Bill Koetzle; Majority Leader Frist, Libby Jarvis; and Chairman Stevens, Christine Kurth and Lisa Sutherland, in this difficult process. I appreciate the efforts of my Judiciary counsel Ed Barron. As he did during the last reauthorization, Ed tried to work with everyone involved to help build a consensus on all the issues. Ed did an extraordinary job as he has done on all the other major projects I have asked him to do over the last 18 years. In the next Congress, I look forward to monitoring the implementation of this law and am ready to work with all involved in this process to address any concerns that may arise.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that the House has voted to pass the Cooperative Research and Technology Enhancement Act, the CREATE Act of 2004, sending this important and needed legislation to the White House for the President's signature. This past March, I joined with Senator Hatch, Senator Kohl, and Senator Feingold introducing the CREATE Act, which will provide a needed remedy to one aspect of our Nation's patent laws. In 1980, Congress passed the Bayh-Dole Act, which encouraged private entities and not-for-profits such as universities to form collaborative partnerships that aid innovation. Prior to the enactment of this law, universities were issued fewer than 250 patents each year. Thanks to the Bayh-Dole Act, the number of patents universities have been issued in more recent years has surpassed 2,000--adding billions of dollars annually to the U.S. economy. The CREATE Act corrects a provision in the Bayh-Dole Act which, when read literally, runs counter to the intent of that legislation. In 1997, the United States Court of Appeals for the Federal Circuit ruled, in Oddzon Products, Inc. v. Just Toys, Inc., that non-public information may in certain cases be considered ``prior art''--a standard which generally prevents an inventor from obtaining a patent. The Oddzon ruling was certainly sound law, but it was not sound public policy, and as a result some collaborative teams have been unable to receive patents for their work. As a consequence, there is a deterrent from forming this type of partnership, which has proved so beneficial to universities, the private sector, the American worker, and the U.S. economy. Recognizing Congress' intended purpose in passing the Bayh-Dole Act, the Federal Circuit invited Congress to better conform the language of the act to the intent of the legislation. The CREATE Act does exactly that by ensuring that non-public information is not considered ``prior art'' when the information is used in a collaborative partnership under the Bayh-Dole Act. The bill that the House passed today also includes strict evidentiary burdens to ensure that the legislation is tailored narrowly so as only to achieve this goal that--although narrow--is vitally important. I also wish to draw attention to Senator Hatch's statement of June 25, 2004, in which he explained some of the more complex issues surrounding the CREATE Act. I agree entirely with his comments, which I will prove useful for those seeking a background understanding of this legislation. Again, I thank the House for moving to pass this legislation as the 108th Congress drew to a close, and I would also like to thank in particular Senator Hatch, Senator Kohl, Senator Feingold, Senator Grassley, and Senator Schumer for their hard work in gaining this bill's passage.

Mr. LEAHY

Mr. LEAHY. Mr. President, the nomination of Keith Starrett of Mississippi is strongly supported by Senator Lott and Senator Cochran. Judge Starrett is nominated to a vacancy on the Southern District of Mississippi created when the President ignored the Senate's withholding of its consent and unilaterally appointed Judge Charles Pickering to the Fifth Circuit. With this nomination, President Bush forfeited another opportunity to be a uniter and to draw the country together. I understand the concerns of so many African-American organizations and lawyers who continue to ask the President to begin to achieve some diversity on that bench by the nomination and appointment of a qualified African American. The Magnolia Bar Association, a primarily African-American bar association in Mississippi, has written the Senate in connection with this nomination. The Magnolia Bar's president, Crystal Wise Martin, expresses the group's strong opposition to proceeding with Judge Starrett's nomination, not only because it is so late in the session but also because, as she writes: ``[I]t fails to remedy the egregious problem concerning the lack of diversity on Mississippi's federal bench.'' She points out that Mississippi has the highest percentage of African Americans of any State, but that Mississippi has had only one African-American Federal judge. She explains that the Magnolia Bar and the National Bar Association have both made direct requests to the President that he appoint an African American to fill this important vacancy. During the consideration of Charles Pickering's nomination, reports were that Republicans were indicating that they would advocate for an African-American nominee if some African Americans would support Judge Pickering's elevation to a higher court. The administration has chosen not to fulfill those hopes by proceeding with a qualified African- American nominee for this important judgeship. This President has shown where his priorities are by nominating more lawyers affiliated with the Federalist Society than qualified African Americans, Hispanics and Asian Americans combined. I ask unanimous consent that a copy of the letter from the Magnolia Bar Association be printed in the Record.

Mr. LEAHY. Mr. President, after months of stonewalling by this administration, we are still trying to uncover the truth about the abuse of prisoners in U.S. custody overseas. I have long said that somewhere in the upper reaches of the executive branch a process was set in motion that rolled forward until it produced this scandal. To date, senior administration officials have avoided any accountability for these atrocities. The Senate is today including the nomination of David Nahmias to serve as a U.S. Attorney in Georgia in a final package of confirmations for this Congress. Mr. Nahmias has held senior positions at the Department of Justice where he worked on the legal underpinnings of the President's war against terror. The overbroad assertions of executive power have been rejected by the Supreme Court and other Federal courts. In speeches, he has unequivocally supported the President's authority as Commander in Chief to designate and detain suspected terrorists, including American citizens, as enemy combatants without judicial review by an article III court. In the case of the American citizens detained as enemy combatants, argued that there was no reason for judicial review of their detentions because they, ``received the absolute ultimate executive branch process,'' because the ``President of the United States, operating as the Commander-in-Chief, personally reviewed their cases, and personally designated them as enemy combatants.'' The Supreme Court strongly rejected this position this year and held that the detainees in Guantanamo Bay and U.S. citizens being held as enemy combatants have the right to challenge their detentions in Federal courts. I asked Mr. Nahmias questions about his views on the rights of enemy combatants, his role in investigating, approving, or otherwise reviewing rules, procedures, or guidelines involving the interrogation of individuals held in the custody of the U.S. Government or an agent of the U.S. Government, and his role in the prosecution of domestic terrorism cases. His original answers were largely non-responsive. I sent him further questions to clarify his record and views. I remain troubled by Mr. Nahmias' answers and uncertain of the extent of his involvement in these matters. During Mr. Nahmias' tenure at the Department, it produced a legal memorandum redefining torture to allow all sorts of brutal treatment--such as mock burial alive, simulated drowning, electrocution, tearing off of fingernails, and other such barbaric treatment--so long as the pain caused is not akin to organ failure, and concluding that, as commander in chief in the war against terror, the President and federal agents are not constrained by anti- terror laws. Since they came to light, these positions have been abandoned by the White House counsel and the administration. The American people deserve public officials who are fair and will uphold the law. No one is entitled to a high-ranking presidential appointment entrusted with making decisions that affect the lives and futures of millions of Americans. Our freedoms are the fruit of too much sacrifice to give appointments to people who will not fairly interpret the Constitution, enforce Federal protections, and follow previous court rulings on which Americans rely in their daily lives. If there were a separate vote on this nomination, I would oppose it. nomination of christopher boyko Mr. President, today the Senate voted on the nomination of Judge Christopher Boyko for a lifetime seat on the U.S. District Court for the Northern District of Ohio. He is strongly supported by both of his home-State Senators. The Senate has already confirmed four of President Bush's district court nominees and two of his circuit court nominees from Ohio, including some who were problematic. Deborah Cook, now on the Sixth Circuit, is a staunch Republican and Federalist Society member who was one of the Ohio Supreme Court's most prolific and activist dissenters in favor of corporate interests. She was promoted by the Senators from Ohio and was confirmed last year. Another Sixth Circuit confirmation, Jeffrey Sutton, is an active Federalist Society member and one of the most controversial of President Bush's nominees confirmed. Prior to his confirmation to a lifetime appointment on the Nation's second highest court, Judge Sutton sought out opportunities to attack Federal civil rights laws and limit Congress' ability to protect individual rights. He received enough ``negative'' votes for a potential filibuster, but he was not blocked on the floor. The Senate also confirmed four Ohio district court nominees for President Bush, many of whom were active members of the Republican party in Ohio and whose records were somewhat troubling. We moved forward with those nominations even though two of President Clinton's nominees to Ohio, Kent Markus and Steve Bell, were blocked by Republicans. Neither received a hearing or a vote. Mr. Markus was nominated to the Sixth Circuit in February 2000, but was told it was just too late. Steven Bell was nominated in August 1999 to the district court in Ohio and waited for more than a year without receiving a hearing. The double standards that the Republican majority has adopted obviously depend upon the occupant of the White House. In 1996, when a Democratic President was seeking re-election, the Republican-controlled Senate held only one hearing to consider one district court nominee after the August recess, and then never allowed that nominee to have a Committee or Senate vote. Indeed, that nominee, Judge Ann Aiken of Oregon, was obstructed so severely by the Republican majority that she was not confirmed to her position until nearly a year and a half later. In September 2000, when the vacancy rate on the Federal courts was around 7 percent, Republicans refused to proceed with hearings on nominees so late in the presidential election year. After the August recess work on judicial nominations came to a halt. Although there were over 30 nominees pending, after July 25, 2000, no more judicial nominees were scheduled for hearings or considered by the committee. This year, with the vacancy rate at around 3 percent, less than half what it was in 2000, we expedited consideration of nominees by a Republican President. In both 1996 and 2000, not a single individual nominated after July 21 was confirmed to the Federal courts--even for seats that were already vacant. When Kent Markus of Ohio was nominated in February 2000 to the Sixth Circuit, he was told by Republicans that it was just too late. Judge Boyko was nominated on July 22, 2004 to fill a district court seat that will not even be vacant until December 31, 2004. That said, I note that since 1996, Judge Boyko has served on the Court of Common Pleas for Cuyahoga County. Unlike many of this President's nominees, Judge Boyko has a reputation for fairness. He is being confirmed today for a future vacancy. I congratulate him and his family on his confirmation. nomination of keith starrett

Mr. LEAHY. Mr. President, during the past 4 years, the Senate has confirmed more than 200 of President Bush's choices for the only lifetime jobs in our system of government. Including the judicial nominees scheduled to be confirmed today, Democrats and Republicans in the Senate have confirmed 204 circuit, district and trade court nominees in the past four years. That is more Federal judges than were confirmed for President Reagan during his first term, more than in President George H.W. Bush's presidency, and more than in either of President Clinton's terms. The first 100 were confirmed in the 17 months of Democratic Senate leadership. In the other 31 months, Republicans have led the Senate to confirm another 104. With this historic number of confirmations, we are at the lowest number of vacant seats on the Federal courts in 16 years. There are more Federal judges serving today than at any time in American history. With today's confirmations, there will be only 26 empty seats on the Federal courts. If retirements and confirmations were to continue at the current pace, President Bush would be poised to name more than 400 lifetime judges on the Federal bench, which contains 879 judges. That would mean he would have appointed more judges than any President in our history. Democrats in the Senate have taken as bipartisan approach as possible while still preserving the Senate's independence to act as a check against extreme or unfit appointments to these lifetime positions. Some of the nominees this President nominated to appellate courts have been among the most controversial ever proposed. A handful of them, those with records that do not demonstrate that they will be fair judges who will fully enforce our constitutional rights have been denied the consent of the Senate. The Federal courts should not become the arm of the Republican Party or the Democratic Party. To preserve the independence of the judiciary, the Senate has served its time honored roll as a check on the presidential appointment power. The Constitution says advice and consent, not rubber stamp. Ours has been a good record of both cooperation and independence by the Senate. Even with this historic level of bipartisan cooperation and despite the high number of divisive nominees this President has sent to the Senate, partisans continue to claim that nothing short of 100 percent approval is acceptable. No President has seen 100 percent of his judicial nominees approved. Not even George Washington got all of his appointments confirmed. Shortly after the Judiciary Committee was created, nominees of President James Madison were defeated in the Committee. More recently Republicans defeated the nominations of more than 60 of President Clinton's judicial nominees and more than 200 of his executive branch nominees in Senate committees. President Bush refused to address the unfair way President Clinton's nominees were treated by Senate Republicans through anonymous holds and other tactics. Objection from even one Republican Senator was allowed to defeat President Clinton's judicial nominees. Republicans worked to preserve vacancies in the Clinton years, especially vacancies on the circuit courts like the 6th Circuit and the D.C. Circuit. Two dozen circuit court nominees and more than 40 district court nominees were denied Senate votes of any kind. They are now exploiting their success. Unfortunately, President Bush decided in his first term to seek confrontation and politicization of the process rather than consensus. There were opportunities to find common ground that were squandered. During the Clinton administration, leading Republicans claimed that as many as 100 vacant seats in the Federal courts did not create any crisis. Some even boasted that they allowed too many judges to be confirmed. There was a dramatic shift when a Republican moved into the White House when suddenly any number of vacancies became a crisis to them. The rules and Senate procedures Republicans used to stall President Clinton's nominees were no longer acceptable to them and were jettisoned with a Republican in the White House. When I became chairman of the Judiciary Committee and the Committee was reorganized back in July 2001, we inherited 110 vacant seats in the federal courts. During my 17 months as chairman, we evaluated the President's nominees, and confirmed 100 judges. That represented a tremendous effort in that short time, especially amid the dramatic crises facing our nation in the wake of the September I 1 attacks and the anthrax attacks directed at Senate Democrats. Rather than adopt Republican methods by which they blocked scores of mainstream nominees by President Clinton, we made the process fairer and more open while preserving the longstanding rules and precedents of the Judiciary Committee and the Senate. Over 17 months, we proceeded to give hearings to 103 of President Bush's judicial nominees, some of whom proved to be quite controversial and divisive, even though the President had promised the American people that he was a ``uniter not a divider.'' The President's controversial nominations divided us by politicizing the federal courts. They included nominees with records of extremism and in an effort to stack the courts unfairly. In this the 108th Congress, Republicans assumed Senate leadership and proceeded to bend, break or reinterpret the rules and precedents in their efforts to ram through the Senate every nominee and turn the Senate into a rubber stamp for lifetime appointments. It was in the face of these partisan actions that the only option left to the Senate to protect the independence and fairness of the courts was extended debate. Democrats acted sparingly to withhold consent from the most extreme choices of this President and the most egregious partisan acts of Senate Republicans. I will not restate the specific concerns with each of those nominees. Those reasons are stated publicly in the Record during debate by many Senators. Unlike Republican obstruction which took place most often in secret and without open and honest debate, when we oppose a nominee we said so and explained why in public. Republicans have held hearings for 120 judicial nominees in the past 2 years, including hearings for 33 circuit court nominees. Republicans doubled the pace they were willing to maintain from 1997 through 2000 when it took them 4 years to hold hearings for 33 of President Clinton's circuit court nominees, despite the fact that President Bush's nominees have been much more controversial. Two weeks after the session began in January 2003, Republicans insisted on holding a hearing for three controversial circuit court nominees on a single panel. This hearing was noticed in less than the time required under the rules and in spite of a bipartisan written agreement that had been adhered to since 1987 that only one controversial judicial nominee would be scheduled at a time. Over the objections of several Members of the Judiciary Committee, that hearing proceeded on the nominations of Jeffrey Sutton, Deborah Cook, and John Roberts to three circuit courts that had been held hostage by Republicans during President Clinton's second term. The day after that unprecedented hearing in violation of the Thurmond-Biden guideline, Republicans forced a vote on the nomination of Miguel Estrada, even though he had failed to answer the questions of many members of the Committee and the White House had refused to honor past precedent for information sharing. Republican partisans then took to calling Senate Democrats anti-Hispanic. Such false claims marked a new low. Despite the efforts of some, like Senator Bennett of Utah, to reach a compromise to allow the Senate to review the work of the nominee, the White House refused. No reasonable employer would hire someone who refused to answer basic questions or provide needed documents. Republicans demanded the Senate proceed with regard to a lifetime appointment without such information. Republicans began to list judicial nominees for committee consideration even before they had answered the written questions of Senators, let alone answered them responsively. With President Clinton, Republicans refused to list a judicial nominee for a committee vote for weeks and often months and sometimes forever. Suddenly, with a Republican in the White House, Republicans decided that Senators did not really need their questions answered before scheduling a vote. Republican effort to limit the time and quality of the review of these lifetime appointees was disappointing and wrong. Editorial cartoons noted that the Committee was becoming nothing more than a rubber stamp at a conveyor belt factory for judges. This approach undermined advice and consent. In the final Judiciary Committee meeting in February, Republicans broke another longstanding rule of the Judiciary Committee, rule IV, which had been respected for nearly a quarter of a century. Rule IV requires a member of the minority of the Judiciary Committee to consent to end debate in order to force a vote on a nomination or any other matter. Without consent, Republicans called debate at an end. The claim that the Senate Parliamentarian approved this reading of the rule was undercut when the Parliamentarian advised that his position was that he had no authority to enforce committee rules. The committee that should respect the rule of law chose instead to do away with any rule or precedent Republicans found inconvenient. In March, Republicans began claiming that filibusters of nominees were ``unprecedented'' and argued that it was unconstitutional to deny a nominee a vote. These claims were another reversal from the party that had blocked votes on more than 60 of President Clinton's judicial nominees and more than 200 of his executive nominees through a variety of procedures. Republicans not only ignored their own recent history in which they unsuccessfully filibustered the nominations of Judge Rosemary Barkett and Judge H. Lee Sarokin, and successfully filibustered the nominations of Dr. Henry Foster and Sam Brown, they sought to rewrite the history of the filibuster of the nomination of Abe Fortas to be Chief Justice of the Supreme Court. The Senate's cloture rule is a departure not from majority rule but from the unanimous consent that has been essential to the character of the Senate. Now that they are in the majority, Republicans have no use for rules protecting the minority or for the historic role of the Senate. Republicans turned their practices upside down when the very people who insisted on recognition of their prerogatives as home State Senators with regard to judicial nominees chose with a Republican in the White House to disregard the lack of home State Senator support and proceed with hearings and Committee consideration of the nominations of Carolyn Kuhl, Janice Rogers Brown, Henry Saad, Richard Griffin, David McKeague, and Susan Nielson. Requiring home State Senator support can and often has led to consultation and cooperation between the Senate and the White House. This White House and Senate Republicans who insisted on it without exception during the Clinton years, dispensed with it when it became inconvenient to their goal of stacking the courts and moving them sharply in one direction. To do so, they proceeded in the face of opposition from both home State Senators. When Republicans were being asked to considering the, nominations of a Democratic President, one negative blue slip from just one home State Senator was enough to doom a nomination and prevent a hearing on that nomination. This included all nominations, including those to the circuit courts. How else to explain the failure to schedule hearings for such qualified and noncontroversial nominees such as James Beatty and James Wynn, African American nominees from North Carolina? What other reason could plausibly be found for what happened to the nominations of Enrique Moreno and Jorge Rangel--both Latino, both Harvard graduates, both highly rated by the ABA, both denied hearings in the Judiciary Committee? Republicans used to excuse their refusal to proceed on President Clinton's nominees because of the absence of home State Senator support. Indeed, in those days, so long as a Republican Senator had an objection, it appeared to be honored, whether that was Senator Helms objecting to an African American nominee from Virginia or Senator Gorton objecting to nominees from California. Republicans continued to hold hearings on controversial judicial nominees following the party nominating conventions and with the Presidential election just weeks away. Whether they acknowledge it as the Thurmond Rule, or something else, it is a well established practice that in Presidential election years there comes a point when judicial confirmation hearings are not continued without agreement. Republicans used to insist that absent the consent of the minority, we await the results of the election and the inauguration of a new President before moving additional nominees. Republicans lived by this precedent when they ran this Committee in 1996 and later, in 2000. In 1996, when a Democratic President was seeking re-election, the Republican-controlled committee held only one hearing to consider one district court nominee after the August recess, and then never allowed that nominee to have a committee vote. In 2000, the Republican-controlled committee followed the Thurmond Rule to the letter. After the August recess work on judicial nominations came to a halt. Although there were over 30 nominees pending, after July 25 2000, no more judicial nominees were scheduled for hearings or considered by the committee. Republicans have gone so far as to reverse their practice with President Clinton by holding hearings for nominees for positions in the courts that would not even become vacancies until after the Presidential election. As with everything else, there appears to be one rule for Democrats and no rules or precedents for Republicans. Little did we know that through most of the time, Republican staff had been stealing Democratic computer files and using them for partisan purposes. When The Wall Street Journal and The Washington Times wrote that they were furnished internal documents, the investigation began. The Capitol Police seized the Judiciary computer hard drives and servers and the Senate Sergeant at Arms began an internal investigation. Staff of the Republican leader and the chairman of the Judiciary Committee resigned and confirmed their involvement. This year, the Sergeant at Arms reported that thousands of files had been stolen over a period of years and found that this partisan spying and stealing may have violated numerous criminal laws. It is a shameful chapter in the history of the Judiciary Committee and the Senate. A Federal criminal investigation is ongoing into this matter, and I look forward to the Justice Department completing that inquiry in the coming year. The President took the unprecedented steps of renominating controversial nominees on whom the Judiciary Committee had withheld consent and then recess appointed controversial nominees on whom the Senate had withheld its consent. This President has utilized the constitutional recess appointment power as an end-run around the Constitution's advice and consent requirement. This undermines the Senate's institutional role as a check on unfit or unfair nominees to our independent court system. Just as Senate Republicans viewed longstanding rules and precedent as inconvenient, the President treated the Constitution's requirement of Senate consent as an inconvenience and an opportunity for partisan political gain. The President went so far as to try to steal a circuit seat from one State and over objection to award it to another by nominating a Virginian to fill a traditional Maryland vacancy on the Fourth Circuit. Most regrettably as well, the White House fanned the flames and refused to tamp down hateful and unfounded claims that amounted to religious McCarthyism. Senate Democrats refused to be cowed by Republican's false charges that they were anti-Hispanic, anti-African American, anti-Christian, antiwoman or antiman. We were none of these things. The fact of the matter is that Democrats were antijudicial zealot, period. Democrats stood up for the independence of the Federal courts and fair, nonpartisan judges for the American people. These past 2 years we have witnessed the Senate Judiciary Committee and the Senate break with longstanding precedent and Senate tradition. With the Senate and the White House under control of the same political party we have witnessed rule after rule broken or misinterpreted away. The Framer's of the Constitution warned against the dangers of such factionalism, undermining the structural separations of power. Republicans in the Senate have failed to defend the institutional role of this branch as a check on the President in the area of nominations. It weakens our Constitution to have such collusion and forfeits the strength and protections of our separation of powers that was designed to protect all Americans. From the way that home State Senators are treated to the way hearings are scheduled, to the way the Committee questionnaire was altered unilaterally, to the way our Committee's historic protection of the minority by Committee Rule IV has been violated, to the theft of computer files, Republicans destroyed virtually every rule, precedent, custom and courtesy that used to help create and enforce cooperation and civility in the confirmation process. Their approach to our rules and precedents follows their own partisan version of the golden rule, which is that ``he with the gold, rules.'' It is as if those currently in power believe that they are above our constitutional checks and balances and that they can reinterpret any treaty, law, rule, custom or practice they do not like or they find inconvenient. Some of these interpretations are so contrary to well-established understandings that it is like we have fallen down the rabbit hole in Alice in Wonderland. I am reminded that the imperious Queen of Hearts rebuked Alice for having insufficient imagination to believe contradictory things, saying that some days she had believed six impossible things before breakfast. I have seen things I thought impossible on the Judiciary Committee and in the Senate, things impossible to square with the past practices of Committee and the history of the Senate. Under our Constitution, the Senate has a vital role in the selection of our judiciary. The brilliant design of our Founders established that the first two branches of government would work together to equip the third branch to serve as an independent arbiter of justice. The structure of our Constitution and our own Senate rules of self- governance are designed to protect minority rights and to encourage consensus. Despite the razor-thin margin of recent elections, Republicans are not acting in a measured way but in complete disregard for the traditions of bipartisanship that are the hallmark of the Senate. Theirs is a practice of might makes right is wrong. One of the great strengths of the Senate is its role as a continuing body with continuing rules that have, until the 108th Congress, been respected and followed under either Democratic leadership or Republican control. Our rules must not change to give whoever is in the majority the power to jerry rig whatever result is desired. As the Rev. Martin Luther King wrote in his famous Letter from a Birmingham Jail, ``Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.'' Fair process is a fundamental component of the American system of law. If we cannot have a fair process in these halls or in our courts, how will the resulting decisions be viewed? If the rule of law is to mean anything it must mean that it applies to all equally. No man and no party should be above the law. That has been one of the strengths of our democracy. Our country was born in reaction to the autocracy and corruption of King George, and we must not forget our roots as a nation of both law and liberty. The best guarantee of liberty is the rule of law, meaning that the decisions of government are not arbitrary and that rules are not discretionary or enforced to help one side and then ignored to aid another. James Madison, one of the Framers of our Constitution, warned in Federalist No. 47 of the very danger that has threatened our great nation during the 108th Congress, a threat to our freedoms from within: ``[The] accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny.'' The American people deserve better governance than we have seen with the destruction of rule after rule by a majority willing to sacrifice the power and precedents of the Senate. Our freedoms as Americans are the fruit of too much sacrifice to have the rules ignored in the United States Senate by partisans colluding with the White House to try to appoint unfit loyalists to courts who have been chosen with the hope that they will re-interpret our great precedents and overturn the very laws that have protected our most fundamental rights as Americans.

Mr. LEAHY

Mr. LEAHY. What is the parliamentary situation?

Mr. LEAHY. I thank the Chair.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that the House of Representatives passed today the Internet Tax Non-Discrimination, Act, S. 150, clearing this bipartisan bill for its signature into law by the President. This bipartisan legislation will continue to support electronic commerce by keeping it free from discriminatory and multiple State and local taxes and from Internet access taxes. I am proud to be a cosponsor and strong supporter of this compromise legislation to extend for the next 3 years the moratorium on taxes on Internet access and multiple and discriminatory taxes on electronic commerce. In addition, our bipartisan bill will safeguard fees for universal service and 911 or E-911 services and does not affect the emerging technology of Voice Over Internet Protocol, VOIP. I thank Senator Wyden, Senator Allen, Senator McCain, Representative Cox, Representative Sensenbrenner, Representative Conyers, and others for their leadership on this legislation. The Internet has changed the way we do business. Today businesses can sell their goods and services all over the world in the blink of an eye. E-commerce has created new markets, new efficiencies and new products. The growth of electronic commerce is everywhere, and it has been important to the businesses and the economy of my home State of Vermont. For example, the Vermont Teddy Bear Company, which employs more than 300 Vermonters, sells online 60 percent of its bears during its two busiest times of the year for Valentine's Day and Mother's Day. That is 60 percent of all Vermont Teddy Bears sold online during this busy time. Hundreds of Vermont businesses are selling online, ranging from Al's Snowmobile Parts Warehouse to Ben & Jerry's Homemade Ice Cream. These Vermont cybersellers are of all sizes and customer bases, from Main Street merchants to boutique entrepreneurs to a couple of famous ex- hippies who make great ice cream. What Vermont online sellers have in common is that Internet commerce allows them to erase the geographic barriers that historically limited our access to major markets. With the power of the Internet, Vermonters can sell their products and services anywhere and at any time. Although electronic commerce is beginning to blossom, it is still in its infancy. Stability is the key to reaching its full potential, and carving out new tax categories for the Internet is exactly the wrong thing to do. E-commerce should not be subject to new taxes that do not apply to other commerce. Indeed, without a moratorium, there are 30,000 different jurisdictions around the country that could levy discriminatory or multiple Internet taxes on E-commerce. Let's not allow the future of electronic commerce--with its great potential to expand the markets of Main Street businesses--to be crushed by the weight of discriminatory or multiple taxes. Extending the bar on Internet access taxes will help Vermonters end the digital divide and help Vermonters compete for better jobs. Earlier this year, the University of Vermont released a study that found only 39 percent of Vermonters who earn less than $20,000 a year have personal computers, while 67 percent of Vermonters who earn more than $35,000 a year own personal computers. And 92 percent of Vermonters who do own a computer are connected to the Internet. We have to close this digital divide for Vermonters to have the skills for the good-paying jobs of the 21st century. The Internet Tax Nondiscrimination Act will bar Internet access taxes and multiple or discriminatory taxes on goods and services sold over the Internet to provide the stability necessary for electronic commerce to flourish, and to help close the digital divide for all Americans.

Mr. LEAHY

Mr. LEAHY. Mr. President, over the last few weeks, we have all gotten a loud wake up call about the changes taking place around the world due to global warming. Unfortunately, the Bush administration is still turning a deaf ear to these alarms. It baffles me that anyone can still deride or ignore the signs of global warming. It's even more astonishing that some people are even touting the benefits of global warming. Better access to oil and gas resources does not make up for flooded coastlines and the loss of entire species. Yet the administration is still burying its head and hiding behind claims of insufficient research. Despite the overwhelming scientific evidence put forward in two reports released by the Arctic Council and the Pew Center, the President is still running away from his original campaign pledge to cut greenhouse gas emissions. In fact, the administration's top climate official reacted to these two new assessments of global warming by saying caps on greenhouse gases would not happen during this administration. Period. These two reports clearly show that we cannot wait any longer. We cannot spend another four years hiding from the truth and delaying solutions. According to the Arctic Council report, temperatures have risen by up to 7 degrees in the last 50 years and the snow cover has declined 10 percent over the last 30 years. These changes not only have a dramatic effect on Arctic communities, but they also threaten the economy and environment of the rest of the world. In my corner of the globe, climate models predict that New England's temperatures could rise by ten degrees over the next century. In its practical effects on us and on our daily lives, that is even greater than it sounds. That is greater than any climate change experienced in our region in the last 10,000 years. In New England, our economy and environment are directly linked. Tourism is one of the top economic drivers in Vermont. Global warming threatens the revenues generated by the leaf-peepers who visit our communities in the fall, the skiers who arrive in the winter, and the anglers and boaters who come in the summer. Climate models predict that New England forests will become populated mostly by oak and hickory. We will lose the brilliant red, orange and yellows of maple and birch trees. Ski areas will have shorter seasons and will have to invest much more of their revenues in snowmaking. As our lakes and streams become more acidic and polluted, the attraction for anglers will decline. Climate changes will also affect the heart of Vermont's working landscape--the thousands of family-run farms, maple sugar operations and small woodlots. Milder winter temperatures will bring more exotic pests that threaten our forests, worse air quality will degrade our soils, and more severe weather--such as flooding and ice storms--will damage farms and forests. The maple sugar industry supports a $100 million annual economy in our state and 4000 seasonal jobs. If climate models play out, this industry could be wiped out as sugar maples recede from all U.S. regions but the northern tip of Maine by 2100. But even before that, sugarmakers are going to see their operations affected by warming. As every Vermonter knows, you need cold nights and warm days to get the sap to run. Climate changes have already shortened the tapping season by almost a month. Although the changes predicted for New England are still several years--and, I dearly, dearly hope, decades away--we must act now if we are to prevent them. I applaud the actions taken by New England states to control greenhouse emissions, but our states cannot do it alone. We are all in this together. The Bush administration must act. Congress must act. I hope that the two recent reports from the Arctic Council and the Pew Center will prompt the White House and the Congress to recognize the responsibility we all have to future generations as well as to our own generation to start now. Passage of the Climate Stewardship Act is a first step, and it is one that I hope we can take next year.

Mr. LEAHY

Mr. LEAHY. Allowing senior officials to avoid accountability sets a dangerous precedent. It is time for Congress, even this Republican led Congress, to do its job and take action. We must send a message that no one in the chain of command--from an enlisted private stationed in Iraq to the commander-in-chief--is above the laws of our Nation. Soon, the Senate will consider the nomination of Alberto Gonzales for the position of Attorney General. The Judiciary Committee, which has jurisdiction over the Department of Justice, will consider this nomination first. As I have said many times, and as I deeply regret, the Committee has all but abdicated its oversight role with regard to the issue of foreign detainee abuse. Last June, on a party-line vote, Republicans defeated an effort to obtain documents regarding the development of interrogation policies that we believed to be in the possession of the Department of Justice. Some of us had also asked Judge Gonzales, in his role as White House counsel, to release documents that we believed relevant to our investigations. It is true that the White House and Department of Justice released a small number of documents last summer, but that self-serving subset of the memoranda offered a mere glimpse into the genesis of the scandal. All of those documents should have been provided earlier to Congress, and still much more remains hidden away from public view. Judge Gonzales's role in formulating the administration's policies on the detention and treatment of prisoners in U.S. custody overseas is an issue of significant concern. His January 25, 2002, memo to the President argues for a radical shift in our longstanding policy to apply the Geneva Conventions to foreign prisoners. He later defended this memo, stating that it only applied to al Qaeda and Taliban. As he stated in a June 22, 2004, news conference, ``in Iraq, it has always been U.S. position that Geneva applies . . . [B]oth the White House and Department of Defense have been very public and clear about that.'' Unfortunately, we have to ask Judge Gonzales if the Geneva Conventions are actually being applied in Iraq. An October 24, 2004, story in The Washington Post reveals yet another Justice Department memo that relied upon questionable legal reasoning in order to authorize actions that potentially violated the Geneva Conventions. The draft memo, dated March 19, 2004, was written at the request of Judge Gonzales, apparently in order to authorize the CIA to transfer detainees out of Iraq for interrogation--a practice expressly prohibited by the Geneva Conventions. I look forward to discussing these memoranda, as well as other policy decisions, in more detail with Judge Gonzales as we consider his nomination. With the consideration of this nomination, the Judiciary Committee has the opportunity to redeem itself. In my conversations with Judge Gonzales earlier this week, I have expressed to him the need for our questions to be answered. I believe that other members of the committee, on both sides of the aisle, are troubled by certain Administration policies and are disturbed by the evidence of prisoner abuse. I hope that the Committee will fulfill its oversight responsibility now. U.S. Senate, Washington, DC, October 29, 2004. Hon. Donald Rumsfeld, Secretary of Defense, Washington, DC. Dear Secretary Rumsfeld: As you know, I have closely monitored the numerous ongoing and completed prisoner abuse investigations instigated by the Pentagon, but remain skeptical that these investigations will uncover the full truth. Each of these probes is limited in scope or authority and, therefore, none will comprehensively investigate the abuse of detainees. I am particularly concerned about the status of the ongoing Pentagon investigations. In a Defense Department press briefing on August 25, 2004, General Paul J. Kern said the release of Admiral Albert T. Church's report was expected by September 20, and would ``fill the gaps and seams.'' That same day, in a separate Pentagon briefing, a senior Army official said the Church report should be complete by mid- September and the Formica report ``should be out soon.'' As of October 29, 2004, neither investigation has been released. In addition, Lt. Gen. David W. Barno stated in a Pentagon briefing on October 19, 2004, that the report by Brigadier General Charles Jacoby is complete, but it has not been released. The delay in the completion and public release of these investigations raises two significant concerns. The first is whether the investigations were extended due to the discovery of abuses that previous investigations failed to uncover, or the discovery of abuses that may have occurred since this scandal was revealed in April. I recently received a copy of a letter submitted to Vice Admiral Church suggesting that abuses by soldiers and/or contractors continued even after the abuses at Abu Ghraib were reported by the press in late April. That letter is attached. My second concern is whether the release of the reports is being delayed for political reasons. I would like to believe this is unlikely, but previous experience suggests otherwise. The Schlesinger and Fay-Jones reports were released in the middle of a month-long congressional recess, the Army Inspector General's report received little attention because it was released on the same day as the 9-11 Commission Report. Without any additional information, I am forced to wonder whether the remaining reports are being withheld until a politically expedient time. In order to better understand the current status of the ongoing Pentagon investigations, I ask that you provide the requested information and respond to the following questions by November 15, 2004. I have not received a response to the letter I sent you on October 1, 2004. 1 remain concerned about the issues raised in that letter, which still awaits your reply. 1. Please provide the current status and expected completion and release dates for all ongoing investigations into the abuse of detainees. 2. Please explain why the investigations conducted by Vice Admiral Church, Brigadier General Jacoby, and Brigadier General Formica are delayed beyond their expected completion and release dates. 3. Has any ongoing investigation discovered incidents of abuse that were not previously reported by the completed investigations? 4. Has any ongoing or completed investigation discovered incidents of abuse that have occurred since the Abu Ghraib prison abuse scandal was reported by the press on April 28, 2004? 5. Can you assure me that all interrogation techniques now being used in U.S. detention facilities comply with international treaty obligations and U.S. laws? As stated above, I request that you answer these questions by November 15, 2004. Thank you for your prompt attention to this matter. Sincerely, Patrick Leahy, U.S. Senator.

Mr. LEAHY. Mr. President, nearly 7 months after the world learned of the atrocities at Abu Ghraib, those of us in the Congress who strongly believe that oversight and accountability are paramount to restoring America's reputation as a human rights leader remain stymied in our efforts to learn the truth about how this administration's policies trickled down from offices in Washington to cellblocks in Abu Ghraib. The Bush administration circled the wagons long ago and has continually maintained that the abuses were the work of ``a few bad apples.'' I have long said that somewhere in the upper reaches of the Executive branch a process was set in motion that rolled forward until it produced this scandal. To put this matter behind us, first we need to understand what happened at all levels of government. It is the responsibility of the Senate to investigate the facts, from genesis to approval to implementation and abuse. However, this Senate, and in particular the Judiciary Committee, continues to fall short in its oversight responsibilities. Several of the investigations into U.S. detention policies are now complete. They provide additional insight into how the prison abuses occurred, but their narrow mandates prevented them from addressing critical issues. Overall, these investigations collectively suffered from a lack of scope and authority, leaving key inquiries into issues like contractor abuses and ``ghost detainees'' unexplored. Ultimately, what emerges from the reports is a striking contradiction. The reports state that there was no official policy of abuse and they do not recommend punishment for high-ranking officials. And yet, the reports show that decisions made by top officials, including the President himself, led to the abuses that occurred in the fields of battle. Recently, a Federal judge, recognizing the importance of government accountability, ordered the Bush administration to comply with a Freedom of Information Act--FOIA--request and release all documents related to the detentions at Abu Ghraib prison. Many of the documents released by the Administration are heavily redacted, yet reveal enough information to raise serious concerns. One of the released documents, an FBI report dated May 19, 2004, illustrates a troubling pattern in this scandal. The redacted version of this document states that FBI employees at Abu Ghraib reported witnessing incidents such as ``military personnel retraining a detainee who was `spread eagle' on a mattress on the floor yelling and flailing . . . a detainee, either naked or wearing boxer shorts, lying prone on the wet floor . . . [and] detainees who were ordered to strip and then placed in isolation with no clothes.'' These practices potentially violate the Geneva Conventions and clearly violate the FBI's own interrogation rules, yet the agents did not believe they ``rose to the level of misconduct or mistreatment.'' On May 20, 2004, I asked Director Mueller at a Judiciary Committee hearing whether any of his agents had encountered objectionable practices involving the treatment of prisoners in Iraq, Afghanistan or Guantanamo Bay. He limited his answer to Abu Ghraib, stating that none of his agents had witnessed abuses in that facility. I wrote to Director Mueller on October 29, 2004, asking him to clarify the discrepancy between his congressional testimony and the information contained in the FBI memo. I also requested unredacted versions of all of the FBI documents released in response to the FOIA request. I have not received a response. I remain concerned about reports of prisoner abuses that have occurred since the Abu Ghraib scandal was publicly disclosed. Attorneys working on behalf of a group of abused prisoners sent letters to members of the Senate Armed Services Committee on September 8, 2004, and to Vice Admiral Albert Church on October 13, 2004, notifying them that torture may have continued after the Abu Ghraib abuses were uncovered. I sent a letter to Secretary Rumsfeld on October 29, 2004, asking him for assurances that the abuse of detainees has not continued and that all interrogation techniques now being used in U.S. detention facilities comply with international treaty obligations and U.S. laws. Again, I have not received a response. I hope that we do not learn of continuing abuses, yet given all that we have seen and all that we have yet to learn, I am still not confident that the problems have been solved. I ask unanimous consent to have printed in the Record these three letters.

Mr. LEAHY

Mr. LEAHY. Mr. President, I would like to commend the work of Bob and Beth Kennett. The Kennett's own the Liberty Hill Farm in Rochester, VT, where Beth runs a bed and breakfast on the farm, and Bob oversees the dairy operation of 70 cows. The Kennett's demonstrate to their guests that dairy farming in Vermont is more than a job or an industry; it's a way of life. Vermont's landscape is defined by the green pastures and silos that dot the hills. Our agricultural economy depends on the hundreds of millions of dollars dairy farmers bring to the State every year. Through the Kennett's combination of agri-tourism and dairying they are helping to ensure farming is not only a part of Vermont's past, but a vital part of Vermont's future. I ask that a recent article about the Kennett's be printed in the Record. The article follows: [From the Burlington Free Press] Just Asking To Survive (By Erin Kelly) Twenty-five years after they bought their small dairy farm in Vermont's picturesque White River valley, Bob and Beth Kennett find themselves alone. ``When we moved here, there were 11 farms shipping milk,'' said Beth Kennett, who helps her husband run a farm of 70 milk cows in Rochester, VT. ``We are now the last dairy farm in our valley.'' Small dairy farms like the Kennetts' are disappearing throughout America. In the last half-century, the percentage of U.S. farms with milk cows has plunged from nearly 62 percent in 1954 to 4 percent in 2002, according to the Department of Agriculture. Farmers say that number will keep dropping if a federal dairy subsidy expires as scheduled in October 2005. At stake for the farmers is a way of life that in many cases dates back generations. Suburbanites and urban dwellers also have something to lose, farmers warn. If the farms go, their green pastures will be replaced with shopping malls and housing tracts. Fresh milk produced locally could be replaced by milk shipped by tanker truck thousands of miles from mega-dairy farms in the West. ``The consumer is not going to benefit if all the milk is produced in just a few places,'' Beth Kennett said. ``Why not have local milk for local markets?'' Small dairy farmers won a victory last month when the Senate Appropriations Committee approved a plan to extend the federal dairy subsidy to at least 2007, when it could be renewed again as part of a new farm bill. The plan, pushed by Sens. Patrick Leahy, D-Vt.; Herb Kohl, D-Wis.; and Arlen Specter, R-Pa., still must be approved by the full Congress. An effort to attach the subsidy to a Homeland Security bill failed this past weekend, but lawmakers vowed to try again this year. The subsidy, which has cost taxpayers about $2 billion since its passage in 2002, sends payments to dairy farmers whenever the price of milk drops below a certain level, basically guaranteeing farmers a minimum price. Small farmers, those with about 130 cows or fewer, benefit most. While some are pushing for the short-term extension of a tax subsidy for dairy farmers, other dairy state lawmakers want a different, long-term solution one that could raise the price of a gallon of milk for consumers. Instead of a taxpayer subsidy, the National Dairy Equity Act would require milk processors to pay farmers a minimum price for their milk. If the proposal becomes law, consumers could pay as much as 20 cents more per gallon of whole milk, warns the International Dairy Foods Association, which represents processors. Sen. Jim Jeffords, I-Vt., says the group is grossly exaggerating the cost as a scare tactic. Ken Bailey, associate professor of dairy markets at Pennsylvania State University, said even an increase of a few cents could hurt sales of milk, which has dropped in popularity. The percentage of raw milk being turned into milk to drink declined from 40 percent in 1980 to 28 percent in 2000, with the rest used to make cheese or other dairy products. When the retail price of milk went up in May and June, sales fell 3 percent, Bailey said. ``It doesn't make sense to design a whole federal policy around a small and declining segment of the dairy market,'' Bailey said. ``What the federal government should be doing is getting out the way and encouraging innovation and the creation of new dairy products. In Europe, liquid yogurt beverages are very popular. Our thinking is still stuck back in the 1950s when everybody had a glass of milk with dinner.'' Carl Greene, a sixth generation dairy farmer in Berlin, N.Y., said that with a little help from Washington, he is optimistic that the farm he works with his brother and father will survive for a long time to come. ``Any help we get will make us more competitive,'' he said. ``We'll reinvest it back into the farm.'' Beth Kennett, who runs a bed and breakfast out of her Rochester farmhouse to help make ends meet, said the city folks who visit seem willing to help once they see what's at stake. People need to realize that retail milk prices which have stayed fairly steady at $2.62 to $2.76 a gallon over the last eight years are a bargain and don't reflect the farmers' true cost, Kennett said. ``Our guests, once they see the hard work that goes into it, say they'd be more than happy to pay an extra nickel for milk to keep Farmer Bob going,'' Kennett said. ``We're not asking to make huge profits. We're just asking to survive.''

Mr. LEAHY

Mr. LEAHY. Mr. President, when the Senate concludes its business in the coming days, the congressional career of a remarkable man will come to an end. After 26 years of representing South Dakotans as their voice in Washington, Senator Daschle will be leaving the Senate. His story is a classic one. As a young man from Aberdeen, SD, Tom Daschle graduated from South Dakota State University and immediately began 3 years of service in the Air Force of the United States. After his service, he got an early introduction to Washington as he went to work for Senator Abourezk, eventually returning to South Dakota to work out of the Senator's state offices. Tom was elected to Congress in 1978 and went on to serve four terms in the House of Representatives before being elected in 1986 to the Senate. After the resignation of George Mitchell in 1994, Senator Daschle won a very tight race for minority leader. I was proud to have supported him at that time. 1994 was a difficult year for our party and we had some serious soul searching to do. Tom displayed the strong leadership that was necessary to take Democrats in the Senate forward. That is why, after that first tight election for leader, he was reelected unanimously as leader each time thereafter. He has always been a man who radiates optimism and hope, making him an excellent face for our party. I have known Tom since he first came to this body in 1986. I closely followed his Senate race against James Abdnor, and I was impressed by him. A few days after Tom won that race, he and his wife Linda joined my family in Vermont for Thanksgiving dinner. When they came to the farm, my mother said to me, ``That is the nicest young man I ever met.'' Well, she was right. Tom is a man of deep resolve and strong character. The Nation saw that character exhibited in the days following September 11. Senator Daschle showed the country the importance of setting labels aside when he publicly embraced President Bush. In the face of that terrible tragedy, America united behind our leadership. Only a few short weeks later, Senator Daschle and I were both targets of anthrax attacks--some of which killed several people--in letters addressed to the two of us. I know that the attacks brought home the reality of terrorism to both of us, but also to the Senate community as a whole. In the ensuing years, Senator Daschle continued to show resolute leadership in the Senate, routinely reaching across the aisle even when those on the other side of the aisle were at their most partisan. On more than a few occasions, Senator Daschle and I have joined together to work on a variety of national legislative efforts. Together, we advocated for expanded benefits for members of the National Guard and Reserve. Senator Daschle has shown courage and resolve in holding the line against the President's most objectionable judicial nominations. We worked together on tort reform, combating corporate crime, and efforts to help off-duty police protect Americans. Those are just a few of the initiatives on which we collaborated. But during that time, he has also been a strong voice for South Dakota on those issues important to his constituents. He has fought for improved health and education for Indians. He has led efforts to expand health services in rural areas and to prevent companies from canceling retiree benefits without notice. He is well known as a champion for ranchers and farmers in South Dakota. In fact, he made sure their voices were always heard. He worked to ensure they had drought aid, but also he worked to do what a true South Dakotan would do: He wanted to make sure they could compete on a level playing field. Despite a well-run campaign and putting forth his best effort, Senator Daschle was not reelected to the Senate this fall. The morning after election day, he gave a speech before his supporters in Sioux Falls. He finished that speech by recalling two memories. The first was of a magnificent Washington skyline sunset he witnessed one fall afternoon leaving his office in the Capitol. The second was watching the Sun rise at Mount Rushmore with his family, and the warm, sweet optimistic feeling inspired by that sunrise. Tom said that, seeing both, he likes sunrises better. I agree. For the past 18 years with each daily sunrise, he sought to bring hope and optimism to this body. He has worked to better his State and his country, to ensure our children and grandchildren have a brighter world in which to live. He is a remarkable friend and colleague, and I thank him for his service to this institution. If I can be very personal, in my 30 years in the Senate, I have not known a more honest and more decent Senator than Tom Daschle. I believe that part of our Senate fabric and our Senate conscience leaves with this special person. Mr. President, I see others seeking recognition. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, last month, the House and Senate overwhelmingly approved H.R. 5107, the Justice for All Act of 2004. This important criminal justice package includes the Innocence Protection Act, a modest and practical set of reforms aimed at reducing the risk of error in capital cases. I first introduced the IPA in February 2000, and as time passed, the bipartisan coalition in support of this pioneering bill grew. Capping these years of effort, the President has now signed the bill into law. As enacted, the Innocence Protection Act contains several key reforms. First, it ensures access to post-conviction DNA testing for those serving time in prison or on death row for crimes they did not commit. Second, it establishes a grant program to help defray the costs of post-conviction DNA testing. This program is named in honor of Kirk Bloodsworth, the first death row inmate exonerated as a result of DNA testing. Third, the IPA establishes rules for preserving biological evidence secured in the investigation or prosecution of a Federal offense. Fourth, it authorizes grants to States to improve the quality of legal representation in capital cases. Finally, it substantially increases the maximum compensation that may be awarded in Federal cases of wrongful conviction. Three weeks before the Senate approved H.R. 5107, the Senate Judiciary Committee wrapped up weeks of work on the Senate version of the bill, S. 1700, the Advancing Justice Through DNA Technology Act of 2003. The Committee voted to approve S. 1700 by a bipartisan vote of 11 to 7, but given time constraints and continuing negotiations, the Committee did not issue a report. Nor was there a conference report on the final legislation, as the Senate's acceptance of H.R. 5107 in substantially the form that it passed the House made a House-Senate conference unnecessary. The upshot of all of this is that there is a substantial gap in the legislative history of this landmark legislation. As the principal author of the Innocence Protection Act, I offer the following remarks to fill that gap and guide those who will be implementing and enforcing these important provisions in the future. I introduced S. 1700 on October 1, 2003, together with the Chairman of the Judiciary Committee, Senator Orrin Hatch, and 16 additional co- sponsors. On the same day, the Chairman of the House Judiciary Committee, Representative James Sensenbrenner, and 99 cosponsors introduced an identical measure, H.R. 3214. The bill moved swiftly through the House. On October 16, 2003, the House Judiciary Committee reported an amended version of the bill by a vote of 28 to 1. The few changes to the bill were largely technical, clarifying, or stylistic in nature, and are described in the report accompanying the bill to the full House. None of these changes affected title III of the bill, which contained the Innocence Protection Act. On November 5, 2003, the House passed a further amended version of the bill by a vote of 357 to 67. This version did include a significant change to the counsel provisions in title III, which I will address shortly. In the Senate, the bill progressed more slowly. The Senate Judiciary Committee met in executive session on three occasions to consider S. 1700. At the first of these meetings, on July 22, 2004, the committee adopted an amendment in the nature of a substitute which replaced the text of S. 1700 with a modified version of H.R. 3214, as passed by the House. The committee continued its mark-up of S. 1700 on September 9, 2004. The only amendment offered during this session sought to expand on a title I provision regarding the national DNA database, and did not affect any provision of the Innocence Protection Act. The committee rejected this amendment after lengthy debate and then adjourned. The committee completed its consideration of S. 1700 on September 21, 2004. During this session, the committee rejected a total 21 amendments, 17 of which pertained to the Innocence Protection Act. Senator Cornyn offered two of the IPA-related amendments. The first proposed to replace the text of S. 1700 with that of S. 1828--a pared down version of S. 1700 that stripped out the Innocence Protection Act in its entirety. The second Cornyn amendment proposed to strike an entire subtitle of S. 1700 dealing with competent counsel and substituting a different program that failed to require any accountability on the part of States accepting Federal money. The committee rejected both of these amendments by votes of 7 to 11. Senator Kyl offered nine amendments to the IPA provisions regarding post-conviction DNA testing. Six of the amendments sought to restrict access to post-conviction DNA testing in the Federal system, as by requiring that any motions for such testing be filed within 5 years of the bill's enactment. One amendment proposed to raise the standard for obtaining a new Federal trial based on exculpatory DNA evidence-- instead of proving that a new trial would probably result in an acquittal, a defendant would be put to the virtually impossible burden of proving that he did not commit the offense. Two of the amendments would have reduced the incentive for States to adopt post-conviction DNA testing procedures comparable to the Federal procedures. The committee rejected all nine amendments by a vote of 7 to 10 or 7 to 11. The other six IPA amendments, also offered by Senator Kyl, pertained to the IPA's requirement that Federal authorities preserve any biological evidence secured in the investigation or prosecution of a Federal offense for as long as a defendant remained incarcerated for that offense, subject to a number of practical and straightforward exceptions. All six amendments would have relaxed this requirement to some degree, allowing for the premature destruction of biological evidence that could clear the innocent and identify the guilty. The committee rejected all six amendments, most by a vote of 7 to 11. Having voted down all amendments to the substitute amendment, the committee approved the bill by a final vote of 11 to 7. Those voting in the affirmative were myself, Chairman Hatch, and Senators Specter, DeWine, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin. Those voting in the negative were Senators Grassley, Kyl, Sessions, Graham, Craig, Chambliss, and Cornyn. The committee vote on September 21, 2004, was the last action taken on S. 1700. As I discussed in a floor statement on October 7, 2004, no sooner had the bill been reported favorably to the full Senate than it was blocked by the same Senators who had held it up in Committee, buttressed by opposition from President Bush and Attorney General John Ashcroft. As a result, the full Senate was never afforded an opportunity to consider S. 1700 as a free-standing bill. With time running out before the congressional adjournment, the House acted again. On September 22, 2004, the House Judiciary Committee approved the text of S. 1700 as part of H.R. 5107, a larger criminal justice package known as the Justice For All Act of 2004. There followed several weeks of intense negotiations involving House and Senate sponsors of the legislation, the handful of hold-out Senators, and the Department of Justice. While no agreement was reached, and the Department continued to oppose the bill, the House made a number of changes to the legislation to address concerns that had been raised. On October 6, 2004, the House passed a modified version of H.R. 5107 by a vote of 393 to 14 and sent it to the Senate. The Senate passed the bill three days later by voice vote, the House made a number of enrollment corrections the same day, and on October 30, 2004, President Bush signed the bill into law. The Justice For All Act of 2004 enhances protections for victims of Federal crimes, increases Federal resources available to State and local governments to combat crimes with DNA technology, and provides safeguards to prevent wrongful convictions and executions. Title I of the bill is the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act. The provisions of this title establish enhanced and enforceable rights for crime victims in the Federal criminal justice system, and authorize grants to help States implement and enforce their own victims' rights laws. Titles II and III of the bill establish the Debbie Smith DNA Backlog Grant Program, which authorizes $755 million over five years to address the DNA backlog crisis in the nation's crime labs, and also creates other new grant programs to reduce forensic science backlogs, train criminal justice and medical personnel in the use of DNA evidence, and promote the use of DNA technology to identify missing persons. Title IV of the bill, the Innocence Protection Act, increases access to post-conviction DNA testing that may prove innocence; establishes the Kirk Bloodsworth program to help defray the cost of post-conviction DNA testing; sets rules for preserving biological evidence secured in Federal criminal cases; authorizes grants to improve the quality of legal representation in State capital cases; and increases compensation in Federal cases of wrongful conviction. The Innocence Protection Act reflects years of work and intense negotiation. I will now discuss its key provisions in greater detail. Subtitle A of title IV enacts a new chapter in the Federal Criminal Code dealing with DNA testing. In little over a decade, some 153 people across the country have been exonerated by this remarkable technology. That number includes more than a dozen individuals who had been sentenced to death, some of whom came within days of being executed. Post-conviction DNA testing does not merely exonerate the innocent it can also solve crimes and lead to the incarceration of very dangerous criminals. In case after case, DNA testing that exculpates a wrongfully convicted individual also inculpates the real criminal. Just this year, for example, the exoneration of Arthur Lee Whitfield in Virginia led to the identification of another inmate, already serving a life sentence, as the true perpetrator of two rapes for which Whitfield had served 22 years in prison. Last year, DNA evidence in the case of Kirk Bloodsworth was matched to another man, a convicted sex offender who has now pleaded guilty to the horrendous rape-murder that sent Mr. Bloodsworth to Maryland's death row. There are still numerous prisoners throughout the country whose trials preceded modern DNA testing, or who did not receive pretrial testing for other reasons. If history is any guide, some of these individuals are innocent of any crime. The new chapter 228A of title 18 is designed to ensure that Federal prisoners with real claims of innocence can get DNA testing of evidence that could support such claims. It does this by establishing rules for when a court shall order post-conviction DNA testing--to be codified at 18 U.S.C. Sec. 3600--and rules for when the government may dispose of biological evidence--to be codified at 18 U.S.C. Sec. 3600A. Under section 3600, a court shall order DNA testing if it may produce new material evidence that would raise a reasonable probability that the applicant did not commit the offense. This standard was the subject of intense negotiations, as members recognized that setting the standard too low could invite frivolous applications, while setting it too high could defeat the purpose of the legislation and result in grave injustice. I argued that in balancing these concerns, Congress should be guided by the principle that the criminal justice system should err on the side of permitting testing, in light of the low cost of DNA testing and the high cost of keeping the wrong person locked up. I am pleased that this view ultimately prevailed. During the final round of negotiations on H.R. 5107--after the House Judiciary Committee reported the bill, and before final passage by the full House--the standard for ordering a DNA test was modified in two respects. First, as introduced in both the House and the Senate, section 3600(a)(8) appeared to impose on applicants the virtually impossible burden of showing that a DNA test ``would'' produce new material evidence of innocence. Under section 3600(a)(8) as enacted, applicants need only show that a test ``may'' produce such evidence. Second, the same provision was stripped of unnecessary language to the effect that courts must ``assume the DNA test result excludes the applicant'' when considering whether DNA testing would raise a reasonable probability that the applicant did not commit the offense. Such an assumption is already implicit, since a court could not reasonably assess the probability that a convicted offender was wrongly convicted without weighing some new evidence of innocence, such as a DNA exclusion. With or without the assumption language, the question for a court boils down to this: Would a DNA exclusion make it more likely than not that the applicant was innocent? If so, the court should order DNA testing, provided that the various technical requirements set forth in section 3600(a) are met. These requirements are simply stated. First, the applicant must assert his or her innocence under penalty of perjury. Second, the evidence to be tested must have been secured in relation to the investigation or prosecution of the offense. Third, the evidence must not have been previously subjected to DNA testing or, if it was, the applicant must be requesting DNA testing using a new method or technology that is substantially more probative than the prior DNA testing. If the evidence was not previously tested, the applicant must also show that he did not waive the right to request DNA testing of that evidence in a court proceeding after the date of enactment of the IPA, or knowingly fail to request DNA testing of that evidence in a prior motion for post-conviction DNA testing. A waiver of the right to request DNA testing must be knowing and voluntary, and will ideally be made on the record and inquired into by the court before it is accepted. Fourth, the evidence to be tested must be in the possession of the Government, subject to a chain of custody, and retained under conditions sufficient to ensure that it was not substituted, contaminated, tampered with, replaced, or altered in any material respect. Fifth, the proposed DNA testing must be reasonable in scope, use scientifically sound methods, and be consistent with accepted forensic practices. Sixth, the applicant must identify a theory of defense that is not inconsistent with an affirmative defense presented at trial, and that would establish the applicant's innocence. Seventh, the applicant must certify that he will provide a DNA sample for purposes of comparison. Eighth, if the applicant was convicted following a trial, the identity of the perpetrator must have been at issue in the trial. If the applicant was convicted following a guilty plea, this requirement does not apply. Congress rightly rejected the Justice Department's position that inmates who pleaded guilty should be ineligible for DNA testing in light of the many documented cases in which defendants pleaded guilty to crimes they did not commit. Indeed, the Senate Judiciary Committee report in the 107th Congress on the Innocence Protection Act of 2002 describes four cases in which defendants pleaded guilty to crimes they did not commit and were later exonerated by DNA tests. The final requirement established by section 3600 is that motions for post-conviction DNA testing be made ``in a timely fashion.'' Motions are entitled to a rebuttable presumption of timeliness if filed within five years of enactment of the IPA, or three years after the applicant's conviction, whichever is later. Thereafter, it is presumed that a motion is untimely, except upon good cause shown. As I explained in an earlier floor statement, the Justice Department has complained that the ``good cause'' exception is so broad you could drive a truck through it, and its stubborn opposition to the IPA turned in large part on the inclusion of this language. But while I agree that the language is broad, it is intentionally so; I would not agree to a presumption of untimeliness that could not be rebutted in most cases. At the same time, this provision should allow courts to deal summarily with the Department's hypothetical bogeyman--the guilty prisoner who ``games the system'' by waiting until the witnesses against him are dead and retrial is no longer possible, and only then seeking DNA testing. As may be apparent from the awkwardness of the legislative language, the rebuttable presumption language in section 3600 was a late and hastily-drafted addition to the legislation. It replaced a relatively generic requirement that motions be filed for the purpose of demonstrating innocence, and not to delay the execution of the sentence of the administration of justice. The intention was to provide courts with more specific guidance on how to weed out frivolous motions. Significantly, this provision is far from the rigid three-year time limit urged by the Justice Department. In rejecting a time limit, Congress recognized that the need for a DNA testing law is not temporary. That need will likely diminish over time as pre-trial DNA testing becomes more prevalent, but there will always be cases that fall through the cracks due to a defense lawyer's incompetence, a defendant's mental illness or mental retardation, or other reasons that we in Congress cannot and should not attempt to anticipate. Many of the individuals who have been exonerated by post-conviction DNA testing did not win freedom until many years after they were convicted and could still be in prison, or executed, if an arbitrary limitations period had been applied to their requests for DNA testing. In addition to the requirements I have just described, section 3600 provides additional disincentives to filing false claims or trying to ``game the system''. Test results must be disclosed simultaneously to the applicant and the government. DNA submitted by the applicant will be run through the national DNA database, which could conceivably produce a match linking the applicant to an unsolved crime. Penalties are established in the event that testing inculpates the applicant. Further, because an applicant's assertion of innocence must be made under penalty of perjury, an applicant may be subject to prosecution for perjury, as well as for making a false statement, if his assertion is later disproved. If convicted, the applicant is subject to a 3-year prison sentence, which shall run consecutively to any other term of imprisonment he is serving. Section 3600 also establishes procedures to be followed when DNA testing exculpates the applicant. A court shall grant relief if the test results, when considered with all the other evidence in the case, establish by compelling evidence that a new trial would result in an acquittal. The ``compelling evidence'' standard was another late addition; earlier versions of the IPA set the applicant's burden at ``a preponderance of the evidence.'' The point of the change, which I proposed, was to require courts to focus on the quality of the evidence supporting an applicant's new trial motion rather than trying to calculate the odds of a different verdict. In setting the new trial standard in section 3600, Congress rejected the Justice Department's proposal, under which an applicant would have to prove, by clear and convincing evidence, that he did not commit the crime. That standard is substantially more demanding than the standard established for second or successive motions filed under 28 U.S.C. Sec. 2255 based on newly discovered evidence--a remedy that is already open to Federal inmates with new evidence of a DNA exclusion. It would have made no sense for Congress to establish a more demanding new trial standard for cases involving a new DNA test result than for other cases involving newly discovered evidence. To the contrary, because DNA testing conducted years and even decades after a conviction can provide a more reliable basis for establishing a correct verdict than any evidence proffered at the original trial, the standard should be and has appropriately been set a notch lower. This is consistent with Congress' decision, in section 204 of the Justice For All Act, to toll the statute of limitations in cases involving DNA evidence; both provisions recognize the unique ability of DNA testing to produce scientifically precise and highly probative evidence long after a crime has been committed. Let me turn now to the new evidence-retention rules enacted by the IPA. As a general matter, section 3600A requires the preservation of all biological evidence secured in relation to a Federal criminal case for as long as any person remains incarcerated in connection with that case. But biological evidence may be destroyed--assuming that no other law requires its preservation--under certain limited circumstances, including, first, if a previous motion by the defendant for testing pursuant to section 3600 was denied and no appeal is pending; second, if the defendant knowingly and voluntarily waived the right to request DNA testing of the evidence in a court proceeding conducted after the date of enactment of the IPA; and third, if the evidence has already been tested pursuant to section 3600 and the results included the defendant as the source. If the evidence is unusually large or bulky, or if it must be returned to its rightful owner, the government may remove and retain representative portions of the evidence sufficient to preserve the defendant's rights under section 3600. Biological evidence may also be destroyed if the government notifies everyone who remains incarcerated in the case that the evidence may be destroyed and no one requests DNA testing within 180 days of receiving such notice. It bears emphasis that this is a limited exception to the general rule favoring preservation of biological evidence. It is not anticipated, nor is it anyone's intention, that prosecutors simply hand out standardized notices pursuant to section 3600A every time a defendant is convicted. Indeed, one of the final changes made to H.R. 5107 clarified that the defendant's conviction must be final, and the defendant must have exhausted all opportunities for direct review of the conviction, before a section 3600A notice may be served. Even then, the better practice would be for the government to wait a number of years, until the destruction of the evidence is truly imminent, before providing notice. In this regard, it should be noted that section 3600A does not preempt or supersede any law that may require evidence, including biological evidence, to be preserved. Thus, if another law requires evidence to be retained for 10 years after conviction, the government should wait at least that long before notifying the defendant that the evidence may be destroyed. If the notice exception becomes the rule--if notices are routinely served as soon as convictions become final, and evidence is routinely destroyed six months later--Congress will need to revisit section 3600A. Having rejected any time limit on motions for post-conviction DNA testing, Congress should not allow the government to impose a de facto time limit of six months by rushing to destroy any evidence that could be the subject of a motion for post-conviction DNA testing. In implementing section 3600A, the government should never lose sight of its intended purpose, which is to ensure that biological evidence is available to permit future DNA testing that may help clear the innocent and catch the guilty. The provisions I have discussed to this point will be codified in the Federal Criminal Code and will have direct application to Federal cases and Federal defendants only. Earlier versions of the IPA recognized a constitutional right of State prisoners to access biological evidence held by the State for the purpose of DNA testing; as enacted, however, the IPA contains no such provision. This is regrettable. As Fourth Circuit Judge Michael Luttig concluded in a 2002 opinion, ``A right of access to evidence for tests which could prove beyond any doubt that the individual in fact did not commit the crime, is constitutionally required as a matter of basic fairness.'' An inmate's interest in pursuing his freedom--and possibly saving his life--is surely sufficient to outweigh any governmental interest in withholding access to potentially exculpatory evidence. While taking no position on the constitutional question addressed by Judge Luttig, the IPA does encourage States that have not already done so to enact provisions similar to sections 3600 and 3600A. It does this in section 413 of subtitle A of title IV, by reserving the total amount of funds appropriated to carry out certain grant programs authorized in the Act for States that have adopted reasonable procedures for providing post-conviction DNA testing and preserving biological evidence. It is never easy to attach strings to money that our States so desperately need, but it is necessary in this instance. Ten years after New York passed the nation's first post-conviction DNA testing statute, many States have yet to establish a right to post-conviction DNA testing, and others have erected unjustifiably high procedural hurdles to testing. For example, some States provide for post-conviction DNA testing only if the inmate is under sentence of death, and some rely on arbitrary and unnecessary time limits. To quote New York Attorney General Eliot Spitzer, who testified in support of the Innocence Protection Act in June 2000, ``DNA testing is too important to allow some States to offer no remedy to those incarcerated who may be innocent of the crimes for which they were convicted.'' The IPA affords States that accept the conditioned Federal funding some flexibility in crafting their DNA laws. State procedures for providing post-conviction DNA testing and preserving biological evidence need only be ``comparable,'' not identical, to the Federal procedures in sections 3600 and 3600A. This means that the procedures adopted by a State must, at a minimum, incorporate the core elements of the Federal procedures. For example, a State post-conviction DNA statute that covers only death row inmates and not inmates serving terms of incarceration would not be comparable to the Federal procedures. Similarly, a State statute that included a time limit or any other provision that would systematically deny testing to whole categories of prisoners who would receive testing under the Federal procedures would not be comparable to those procedures and, so, would not satisfy the Act. When I first introduced the Innocence Protection Act in February 2000, only a handful of States had enacted post-conviction DNA testing laws. Today, a sizeable majority of States have enacted such laws, although as I already noted, the scope of these laws varies considerably. States that have already established a meaningful right to post-conviction DNA testing and reasonable rules for preserving biological evidence should not be required to change their laws as a condition of receiving Federal funds, and the IPA does not require this. Section 413 includes a ``grandfather clause'' that should cover many of the States that enacted DNA laws before enactment of the IPA, making them immediately eligible for the conditioned grant money. Not every State DNA law meets the terms of the grandfather clause, however, and the Justice Department should take great care in scrutinizing the laws of any State claiming its protection. Post-conviction DNA testing is an essential safeguard that can save innocent lives when the trial process has failed to uncover the truth. But it would be neither just nor sensible to enact a law that merely expanded access to DNA testing. It would not be just because innocent people should not have to wait for years after trial to be exonerated and freed. It would not be sensible because society should not have to wait for years to know the truth. When innocent people are convicted and the guilty are permitted to walk free, any meaningful reform effort must consider the root causes of these wrongful convictions and take steps to address them. That is why subtitle B of title IV addresses what all the statistics and evidence show is the single most frequent cause of wrongful convictions inadequate defense representation at trial. Subtitle B was enacted against the backdrop of a shameful record of failure by many States to provide competent lawyers to indigent defendants facing the death penalty. Testimony in both the Senate and House Judiciary Committees revealed that of the 38 States that authorize capital punishment, very few have established effective statewide systems for identifying, appointing and compensating competent lawyers in capital cases. Too often individuals facing the ultimate punishment are represented by lawyers who are drunk, sleeping, soon-to-be disbarred or just plain ineffective. Even the best lawyers in these systems are hampered by inadequate compensation and insufficient resources to investigate and develop a meaningful defense. The Congress acted to remedy several major problems with the capital counsel appointment process. First, in many States the appointment of indigent counsel in criminal cases is a county-by-county responsibility. Unless a State legislature or court system adopts standards, each county is left to decide who is competent to represent criminal defendants and how much they should be paid. In smaller and less affluent counties where there is not a professional public defender system, the compensation rate for this service can be shockingly low and the quality of lawyers abysmal. This problem afflicts the indigent defense system in general, but is more acute in capital cases which are more complex and time consuming, and where the stakes are higher. Second, in addition to the fiscal constraints on individual counties there are political pressures that make it difficult for well-meaning administrators to pay appointed lawyers a reasonable rate for their services. Criminal defendants are highly unpopular recipients of government largess, and accused murderers even less so. The Sixth Amendment to the U.S. Constitution requires that defendants be afforded effective representation at State expense, but efforts to invoke the Sixth Amendment to generate systemic change in State indigent defense systems have been largely unavailing. A third major problem is that in almost all States, the appointment of capital defense lawyers is made by the trial judge rather than by an independent appointing authority. State trial judges, who are often elected officeholders, find themselves under political and administrative pressure to appoint lawyers unlikely to mount a vigorous, time-consuming or expensive defense. Several States--including North Carolina and New York have--acted in recent years to establish statewide systems to deliver effective representation. North Carolina, for example, has established a centralized, independent appointing authority known as the Indigent Defense Services Commission. The Commission appoints a statewide Capital Defender who is accountable to the Commission but not accountable to the judiciary or to the political branches of government. The Capital Defender compiles and maintains a roster of private lawyers and public defenders who are qualified to try capital cases. The Capital Defender appoints two defense lawyers for each capital defendant. He may appoint himself and his staff, or he may appoint lawyers from the roster. The trial judge has no role whatsoever in the appointment of counsel. Congress viewed the North Carolina system as a national model for establishing an effective capital counsel system. Section 421 of the new law authorizes a grant program, to be administered by the Attorney General, to improve the quality of legal representation provided to indigent defendants in State capital cases. Grants shall be used to establish, implement, or improve an effective system for providing competent legal representation in capital cases, but may not be used to fund representation in specific cases. In earlier versions of the Innocence Protection Act, I had proposed to condition certain State defenses in habeas corpus actions on the State's establishment of an effective system for appointing capital counsel. In this manner, all capital States would have a strong incentive to improve their appointment systems, not merely those States that choose to apply for Federal funds. While this more ambitious proposal was not adopted, it is my intention that the grant program be administered in a manner that ensures meaningful improvements in this vital State function. Congress did not create this program to support existing death penalty systems in the States but rather to leverage needed improvements. Under the new law, an effective system is one in which a public defender program or other entity establishes qualifications for attorneys who may be appointed to represent indigents in capital cases; establishes and maintains a roster of qualified attorneys and assigns attorneys from the roster; trains and monitors the performance of such attorneys; and ensures funding for the full cost of competent legal representation by the defense team and any outside experts. The Act's definition of an effective system evolved from standards developed by the American Bar Association and adopted by other standard-setting bodies and commissions, such as the Constitution Project's blue-ribbon commission on capital punishment. Ideally, the entity that identifies and appoints defense lawyers will be independent of the political branches of State government, as are the authorities in North Carolina and New York. For example, the Act explicitly states that sitting prosecutors may not serve on the appointing entity. The underlying purpose of the scheme is to help insulate the appointment process from the political pressures that make it difficult for individual trial judges to appoint competent lawyers in individual cases. In the course of negotiations to pass the bill in the House last year, I and other sponsors of the bill reluctantly agreed to accept an amendment, now section 421(e)(1)(C) of the Act, that has come to be described as ``the Texas carve-out.'' Under this provision, a State may qualify for a capital representation improvement grant if it has adopted and substantially complies with a State statutory procedure enacted before this Act under which the trial judge is required to appoint qualified attorneys from a roster maintained by a State or regional selection committee or similar entity. In fact, the ``Texas carve-out'' is not a carve-out at all. It simply acknowledges that Texas is in the process of implementing a recent statewide reform law, the Fair Defense Act of 2001, and should be permitted to continue that process. If Texas is awarded a Federal grant it will still be required to improve its capital counsel appointment system, but Federal authorities will measure those improvements against standards in the 2001 Texas law. Texas is not yet living up to the promise of the Fair Defense Act. A November 2003 report by the Equal Justice Center and the Texas Defender Service demonstrates that many Texas counties have failed to establish effective roster systems for identifying qualified lawyers and fail to provide reasonable compensation to capital counsel. If Texas accepts Federal funds under this new program, it will be required to live up to its own State standards, including the all-important requirement of reasonable compensation. The TDS report should be a guidepost for needed improvements. It is conceivable that other States will qualify for consideration under section 421(e)(1)(C) but the provision should be strictly interpreted by grant administrators. The State law must have been enacted prior to enactment of the Innocence Protection Act, the trial judge must be required to make appointments from a roster of qualified lawyers, and the roster must be maintained by the State, a regional selection committee or a similar agency that is independent of the trial court. Congress was aware that the trial courts in many States maintain rosters from which lawyers may be chosen, but that is not the sort of rigorous quality control mechanism that section 421(e)(1)(C) requires. States that establish an effective system under section 421(e)(1)(A) or (B) must compensate lawyers in accordance with section 421(e)(2)(F)(ii). That provision requires, among other things, that public defenders be compensated according to a salary scale commensurate with the salary scale of the prosecutor's office in the jurisdiction. This requirement parallels the requirement that capital representation improvement grants are to be divided evenly between the defense and prosecution functions. In enacting the IPA, Congress generally approved of the concept of resource parity between the defense and the prosecution, a concept that is essential to ensuring fair trials in our adversarial system of justice. Another important requirement concerning attorney compensation appears in section 421(e)(2)(F)(ii)(II) which states that appointed attorneys be compensated ``for actual time and service, computed on an hourly basis and at a reasonable hourly rate in light of the qualifications and experience of the attorney and the local market for legal representation in cases reflecting the complexity and responsibility of capital cases.'' Again, this concept is drawn from the American Bar Association standards, which should be consulted by grant administrators in implementing the program. This new statutory requirement would clearly preclude a participating State from compensating attorneys under a flat fee or capped fee system, because such a system would not compensate the attorney for ``actual time and services, computed on an hourly basis.'' Moreover, the term ``reasonable hourly rate'' must be taken seriously by those who administer the new program. For example, there is general agreement among experts that the Federal compensation rate of $125 per hour is reasonable in most parts of the country. In my view, a State rate comparable to the Federal rate should be considered ``reasonable,'' taking into account differences in the cost of living in various parts of the country. Capital cases are among the most complex, high stakes cases tried in any courthouse, and the lawyers who represent defendants in such cases should be paid at a rate comparable to that earned by other lawyers engaged in similarly important litigation. One recent modification of section 421 would make clear that sitting prosecutors may not be members of the appointing authority established under section 421(e)(1)(B), although others with expertise in capital cases may participate. I agree that under this new language members of the judiciary may be members of the authority. On the other hand it would be impermissible for the appointing authority to delegate its authority to trial judges or to a group of trial judges. Such a delegation would defeat one of the central goals of the Act, which was to insulate the appointment power from the political and administrative pressures on trial judges. As part of the same program established in section 421, section 422 authorizes grants to improve the representation of the public in State capital cases. Grants shall be used to design and implement training programs for capital prosecutors; develop, implement, and enforce appropriate standards and qualifications for such prosecutors and assess their performance; establish programs under which prosecutors conduct a systematic review of cases in which a defendant is sentenced to death in order to identify cases in which post-conviction DNA testing is appropriate; and assist the families of murder victims. A key limitation on these prosecution grants is that they may not be used ``to fund, directly or indirectly, the prosecution of specific capital cases.'' Consistent with the IPA's overarching goal of ensuring that capital punishment is carried out in a fair and reliable manner, these grants should be used to establish and improve systems within prosecutor offices to minimize errors and abuses that may lead to wrongful convictions. They may not be used to hire additional capital prosecutors. Section 423 establishes requirements for States applying for grants under this subtitle, including a long-term strategy and detailed implementation plan that reflects consultation with the judiciary, the organized bar, and State and local prosecutor and defender organizations, and establishes as a priority improvement in the quality of trial-level representation of indigents charged with capital crimes and trial-level prosecution of capital crimes in order to enhance the reliability of capital trial verdicts. In the case of a State that relies on a statutory procedure described in section 421(e)(1)(C), the Texas-related provision I have previously discussed, a State officer must certify that the State is in compliance with State law. But such a certification should not be considered dispositive--Federal grant administrators must still assess the State's compliance with State law. Thus, the certification does not obviate the need for the Inspector General to carry out an independent assessment of the State's compliance under section 425(a)(3). Section 424 requires States receiving funds under this subtitle to submit an annual report to the Attorney General identifying the activities carried out with the funds and explaining how each activity complies with the terms and conditions of the grant. Section 425 directs the Inspector General of the Department of Justice to submit periodic reports to the Attorney General evaluating the compliance of each State receiving funds under this subtitle with the terms and conditions of the grant. In conducting such evaluations, the Inspector General shall give priority to States at the highest risk of noncompliance. If, after receiving a report from the Inspector General, the Attorney General finds that a State is not in compliance, the Attorney General shall take a series of steps to bring the State into compliance and report to Congress on the results. Section 425(a)(4) provides an opportunity for public comment during the Inspector General's review. This provision is not intended to preclude a member of the public from seeking any other available legal remedy after the Attorney General has made a final determination of whether a State is in compliance with the requirements of the statute. A special rule is provided in section 425(f) to ensure that any State relying on the Texas-related provision in section 421 is, in fact, complying with its own State law. Under the special rule, if the Inspector General determines that the State is not in compliance, Federal funds that would have otherwise been available to the prosecution function shall be used solely for the defense function. A separate determination by the Attorney General is not required to trigger this special rule. Section 426 authorizes $75 million a year for 5years to carry out this subtitle. States receiving grants under this subtitle shall allocate the funds equally between the programs established in sections 421 and 422, subject to the special rule in section 425(f) that I just described. The Justice For All Act is the most significant step we have taken in many years to improve the quality of justice in this country. The reforms it enacts will create a fairer system of justice, where the problems that have sent innocent people to death row are less likely to occur, where the American people can be more certain that violent criminals are caught and convicted instead of the innocent people who have been wrongly put behind bars for their crimes, and where victims and their families can be more certain of the accuracy, and finality, of the results. Once again, I thank my colleagues in both bodies who worked hard to resolve conflicts and congratulate them on this legislative achievement.

Mr. LEAHY

Mr. LEAHY. I am pleased that in the waning days of the 108th Congress we can send H.R. 1417, the Copyright Royalty and Distribution Reform Act of 2004, to the White House for the President's signature. I wish to thank Senator Hatch, as his chairmanship of the Judiciary Committee comes to a close, for the important work we have done over the years to strengthen our Nation's intellectual property laws. When two Senators from different parties can collaborate as productively as we have on these issues, the legislative process is working the way it should. This bill has been a massive, bicameral undertaking. Many of the provisions were technically complex, and extensive negotiations were necessary in order to iron out some of the more difficult provisions. In all of these details, recognition is owed to our colleagues in the House for ensuring that obstacles to this bill's passage did not become roadblocks. Chairman Sensenbrenner, in particular, played a crucial role in the development of this bill and in helping to pilot it through the other Chamber. Likewise, I wish to express my gratitude for the time, energy, and thoughtful contributions of Congressman Conyers, Congressman Smith, and Congressman Berman, without whom the result we have achieved today would simply not have been possible. The Copyright Royalty and Distribution Reform Act will modernize and improve the process by which certain royalty rates, such as those for small webcasters, are determined. As early as 2002, I noted in a Judiciary Committee hearing that there was widespread dissatisfaction with the current CARP procedures. Among some of the complaints, the Committee heard that many small webcasters could not afford to take part in CARP proceedings, despite their livelihoods hinging on the outcome. We also heard of many of the structural problems that plagued the process. In addition, I have been concerned that the current procedures are often hindered by unreasonable delays, and the outcomes subject to manipulation. The Copyright Royalty and Distribution Reform Act responds to these concerns. It replaces arbitrators with full-time administrative judges, alleviating the massive financial burden of taking part in a CARP proceeding, and providing the process with continuity and stability. This bill also resolves long-standing disputes over the availability of discovery. Because discovery is available where it is needed, the Copyright Royalty Judges will have the information necessary to render a correct determination, but the costs of discovery will be kept to a minimum. Finally, this bill preserves the traditional role of the Register of Copyrights. Again, I wish to thank my colleagues in the Senate and in the House for their hard work in guiding into law this important, complex piece of legislation. We work best when we work together, and I hope that in the final product of the CARP bill we will see reason to develop legislation across party lines, and between chambers, in the next Congress.

Mr. LEAHY

Mr. LEAHY. Mr. President, we live in a nation of the most creative and inventive people in the world, but apparently some of my Republican colleagues do not appreciate them or their efforts. Thanks to the ingenuity, the inspiration, and the hard work of thousands of our fellow citizens, the United States enjoys the best in artistic expression and technological advancement, but that seems to mean little to those Senators. We enjoy the fruits of the labors of all the inventors and authors and artists--and of all the people who work in connection with them--not only as individuals but as a nation, but not everyone here recognizes the debt we owe them. In the twenty-first century, it is intellectual property that keeps this country at the forefront of the world economy, and what preserves our force as a global power, and I would think that those across the aisle would value the importance of that power. Affording that intellectual property the most straightforward and reasonable protections, and giving law enforcement officials the resources to give those protections genuine power, would seem to be a sensible goal. Indeed, failing to do so would be unconscionable. In the United States, copyright industries alone account for 12 percent of the gross domestic product, and employ more than 11 million people. Those copyright industries have been adding workers at an annual rate that exceeds that of the economy as a whole by 27 percent, and those industries have achieved annual foreign sales and exports of almost $90 billion. But some Republicans are preventing the Senate from passing the most important intellectual property legislation before the Congress this year, and they are hiding behind anonymous holds. This is wrong. Senator Hatch and I, and many of our colleagues on the Judiciary Committee, have been working on this legislation for some time now-- most recently doing so late at night and through the weekends. We have done so because of the crushing need to ensure that the intellectual property laws are adequate to the legitimate and pressing concerns raised by many about the effectiveness of those laws. We have a package of strong and significant measures that would bolster protection of the intellectual property that drives our nation's economy and that would ensure law enforcement has the tools it needs to offer that protection. There was no reason not to send this package to the House immediately, and work with our colleagues there to ensure it became enacted into law, as soon as humanly possible. In blocking this legislation, these Republicans are failing to practice what they have so often preached during this Congress. For all of their talk about jobs, about allowing the American worker to succeed, they are now placing our economy at greater risk through their inaction. It is a failure that will inevitably continue a disturbing trend: our economy loses literally hundreds of billions of dollars every year to various forms of piracy. Instead of making inroads in this fight, we have the Republican intellectual property roadblock. It is a barrier that stands in the way of the CREATE Act, a noncontroversial bill the text of which has already passed both the Senate and House. The CREATE Act clarifies an important component of the Bayh-Dole Act that, when read literally by the courts, runs counter to Congress's intent. By failing to make this clarification Congress is creating a deterrent to forming the very same public-private research partnerships meant to be encouraged by that Act. These partnerships have proved incredibly beneficial to universities, the private sector, the American worker, and the U.S. economy. All are placed in jeopardy by Congressional inaction. The roadblock has also scuttled the ART Act, a bill that passed the Judiciary Committee and then the full Senate by unanimous consent. This legislation would have provided new tools in the fight against bootleg copies of movies snatched from the big screen by camcorders smuggled into theaters. And it would have adopted a creative solution developed by the Copyright Office to address the growing problem of piracy of pre-release works. Our anonymous Republican friends have ensured that these problems are left unaddressed by the 108th Congress. The PIRATE Act, too, passed the Senate by unanimous consent. That bill would have given to the Attorney General new tools in the fight against piracy of books, music, movies and other creative works. Senator Biden's Anticounterfeiting Act, which would have marked a step forward in the fight against software piracy, was also included in the intellectual property package. We can tell our software companies that they will have to wait at least another year for the remedies promised by this legislation. And it is important to note that the Business Software Alliance tell us that $29 billion in software was stolen in 2003 alone. There are other noncontroversial provisions in this legislation as well, such as language that would help ensure that the Library of Congress is able to continue its important work in archiving our nation's fading film heritage. Some of America's oldest films--works that document who we were as a people in the beginning of the 20th century--are literally disintegrating faster than they can be saved. None of these were partisan provisions. And when Senator Hatch and I put our names on the same piece of legislation, you can bet that the result is never a bill that veers very far to the right or the left. He and I have worked together to produce a great deal of good intellectual property policy over the years, and I am sorry to see that some on his side of the aisle have blocked our efforts at similar progress this year. We can foresee the disappointing result of this roadblock: our copyright holders will suffer, our patent holders will suffer, and so too will the American worker. In yet another important area, the Republicans that control the House of Representatives, the Senate, and the White House, have failed to respond to the needs of the American people. That is a shame.

Mr. LEAHY

Mr. LEAHY. Mr. President, I would like to focus the attention of the Senate on the recent devastation to many nations in the Caribbean as a result of a half a dozen hurricanes and tropical storms in the autumn of this year, 2004. More than a thousand people have perished; many are still missing. Thousands of families are homeless and jobless. Non-governmental organizations such as the International Red Cross, the United Nations, and religious organizations, rushed to the scene with relief aid and volunteers to help the survivors. The United States Government has sent U.S. AID teams to assess the damage. Early estimates reveal hundreds of millions of dollars of physical damage to homes and businesses. On the Island of Grenada industries have been completely wiped out. There are riots in the streets of cities in Haiti where stockpiles of nonperishable food and potable water are diminishing fast. In April, 2001 President Bush instituted the ``Third Border Initiative'' that anticipated a quick response by our government that would, in his words, ``. . . fund disaster preparedness and mitigation efforts to shield critical commercial and environmental infrastructure from natural disasters, such as hurricanes.'' This is important because it signals a focus not only on emergency assistance, but on trying to reduce the amount of damage caused by future hurricanes. In other words, the President was also signaling a welcome focus on rebuilding homes and businesses in a manner that is resistant to potential damage by hurricanes. These types of buildings would also reduce the dreadful death toll of future hurricanes. We have an opportunity to aid our friends and partners in the Caribbean. The administration has attached a $50 million request for the Caribbean to a larger package of help for Florida and other States in the South hit by the rolling series of storms this summer and fall. Our colleagues in the U.S. House of Representatives have requested an additional $50 million, so the total is $100 million for the Caribbean. Secretary Colin Powell recently visited Grenada and stated that the first aid will come in phases, starting with an emergency shipment of food, medicine, construction materials and other supplies, about a quarter of which will go to Grenada. It is at this time that we have an opportunity to thoughtfully help the region. As Secretary Powell said, ``. . . that help was needed not simply to repair homes and schools, but also to restore the economic infrastructure of the country.'' He went on to say that, ``experts had begun discussing `creative suggestions' for how Grenada could diversify its agricultural output. . . .'' I agree with Secretary Powell that the time has come to try to better spend our assistance dollars. As is the case with weather disasters, economic disasters also ruin the hopes of families. As long as we are helping in the rebuilding efforts, we should try to make more permanent improvements in infrastructure. The region needs many ``creative suggestions'' for its redevelopment. At the University of Vermont, the students and faculty have made many suggestions, from agriculture and food processing to sustainable permanent modular housing solutions utilizing recycled materials. One appropriate solution has been devised by world acclaimed architect Adam Kalkin. It is the Quikbuild Modular System. An example of this unique, sustainable housing solution is on display in the permanent collection of the Shelburne Museum, in Shelburne, Vermont. This type of dwelling utilizes recycled cargo containers, many of which are being shipped down to the region with a full load; they will remain there empty without the cargo to fill them; and with no place to ship them. Each is an ecological disaster waiting to happen. They also present a great opportunity if we take advantage of using them. Recycled containers may be converted into durable, sustainable, water-tight, hurricane-proof dwellings that can be used as permanent housing as well as field kitchens, medical triage units, schools, dormitories, as well as structures for commercial businesses and meeting places. Ten percent of the funds we provide should be for these more permanent housing solutions. It is imperative that the community planners consider mid-range and long-term solutions today as they manage the ``first response'' mission. We have seen in many regions around the globe that well-intentioned temporary and transitional housing ultimately becomes permanent housing. Priorities shift, money runs out and a new disaster knocks the old disaster off the front page. The inherent nature of shanty towns, full of permanent refugees, takes away the dignity and hope of their inhabitants. I have received pleas from the family members residing in the United States to help their loved ones. I have received a strong request from the Ambassador of the Republic of Trinidad and Tobago, Ambassador Marina Valere, on behalf of the affected nations imploring us to also think about permanent housing solutions, that also respects their unique and fragile ecosystem. This request made clear that some portion of the aid package should be set aside for this purpose. Our friends in the Caribbean need permanent, safe, secure dwellings otherwise this crisis will repeat itself, year after year. In addition to urgent emergency aid, America should help the survivors in the Caribbean to rebuild their communities with permanent housing solutions as well as rebuild their respective economies.

Mr. LEAHY

Mr. LEAHY. Mr. President, the tax bill conference report that will overwhelmingly pass the Senate today is an opportunity lost. This bill is a fiscally irresponsible giveaway full of hundreds of special interest provisions that will ultimately cost the taxpayers billions of dollars. I voted in favor of the Senate version of this important legislation when it passed by an overwhelming vote of 92-5 back in May. What began as a legislative fix to bring our Tax Code into compliance with international trade laws has turned into a deficit busting give away to special interests. This conference report lacks the balance and restraint that was critical to passage of the Senate bill. The math on how this bill adds to the deficit is simple. Repeal of the so-called FSC ETI tax breaks for U.S. multinational companies will increase revenue by $50 billion. Incredibly, the conferees could not help themselves but take the opportunity to not only spend that $50 billion but also spend another $100 billion with almost no comparable spending offsets--adding straight to the ballooning Federal budget deficit. The conference report is being sold as a godsend for American manufacturing workers, yet Senate provisions to tie corporate tax breaks to actual job creation have been stripped. I have to chuckle when I hear the White House referring to this as the ``JOBS'' conference report. I am also disappointed that the conferees chose to drop the Senate provision sponsored by Senator Landrieu to provide tax credits to employers who make up the pay that employees lose when they are called up for National Guard or Reserve duty. Senator Landrieu has eloquently and forcefully highlighted to the Senate over the past couple of days why this provision should not have been dropped from the final conference report. I agree with her outrage that the conferees included many special interest tax provisions--one even for ceiling fan manufacturers--but could not include a provision that helps the men and women who are serving their country.

Mr. LEAHY

Mr. LEAHY. Madam President, the Mentally Ill Offender Treatment and Crime Reduction Act is a good bipartisan bill that will help State and local governments deal effectively with a serious law enforcement and mental health problem--the extent to which mentally ill individuals commit crimes and recidivate without ever receiving appropriate attention from the mental health, law enforcement, or corrections systems. The bill passed the Senate unanimously last year, and passed the House of Representatives in slightly revised form earlier today, by voice vote. I have enjoyed working on this bill with Senator DeWine, who has shown commitment and leadership on this issue. I am also pleased that Senators Cantwell, Domenici, Durbin, Grassley and Hatch have joined Senator DeWine and I as cosponsors of this bill. And I very much appreciate the support of House Judiciary Committee Chairman Sensenbrenner and Ranking Member Conyers, as well as Crime Subcommittee Chairman Howard Coble and Ranking Member Bobby Scott, and Congressman William Delahunt. Human Rights Watch released a report last year discussing the fact ``that jails and prisons have become the Nation's default mental health system.'' The first recommendation in the report was for Congress to enact this bill. Tonight we will follow that recommendation and send this bill to the President. All too often, people with mental illness rotate repeatedly between the criminal justice system and the streets of our communities, committing a serious of minor offenses. The ever scarcer time of our law enforcement officers is being occupied by these offenders, who divert them from more urgent responsibilities. Meanwhile, offenders find themselves in prisons or jails, where little or no appropriate medical care is available for them. This bill will give State and local governments the tools to break this cycle, for the good of law enforcement, corrections officers, the public safety, and mentally ill offenders themselves. When I was chairman of the Judiciary Committee, I held a hearing on the criminal justice system and mentally ill offenders. At that hearing, we heard from State mental health officials, law enforcement officers, corrections officials, and the representative of counties around our Nation. All of our witnesses agreed that people with untreated mental illness are more likely to commit crimes, and that our state mental health systems, prisons and jails do not have the resources they need to treat the mentally ill, and prevent crime and recidivism. We know that more than 16 percent of adults incarcerated in U.S. jails and prisons have a mental illness, that about 20 percent of youth in the juvenile justice system have serious mental health problems, and that up to 40 percent of adults who suffer from a serious mental illness will come into contact with the American criminal justice system at some point in their lives. We know these things, but we have not done enough about them at the Federal level, and our State and local officials need our help. The bill does not mandate a ``one size fits all'' approach to addressing this issue. Rather, it allows grantees to use the funding authorized under the bill for mental health courts or other court-based programs, for training for criminal justice and mental health system personnel, and for better mental health treatment in our communities and within the corrective system. Although the House did reduce the funding authorized by the bill from $100 million to $50 million, that amount will still be enough to make a real start at addressing this problem. This is an area where government spending can not only do good but can also save money in the long run--a dollar spent today to get mentally ill offenders effective medical care can save many dollars in law enforcement costs in the long run. This bill has brought law enforcement officers and mental health professionals together, as we have seen at both of the hearings the Judiciary Committee held on this issue. I hope that it will provide much-needed support to our communities and make a difference for both law enforcement officers and the mentally ill.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to support the passage of S. 2856, legislation that will restore the conservation funding commitment Congress and the administration made to farmers and ranchers in the 2002 farm bill. I applaud the leadership of Agriculture Committee Chairman Cochran and Ranking Member Harkin for their leadership to correct the shortfall in conservation technical assistance funding. For the last 2 years I have worked to correct this problem and am pleased to join my colleagues in this effort. Despite historic funding conservation levels in the 2002 farm bill, family farmers and ranchers offering to restore wetlands, or offering to change the way they farm to improve air and water quality continue to be rejected when they seek USDA conservation assistance. Producers are being turned away due to the Department of Agriculture's decision to divert over $200 million from working lands conservation programs to pay for the cost of administering the Conservation Reserve Program, CRP, and the Wetlands Reserve Program, WRP, over the last 2 years. In particular, USDA diverted significant funds from the Environmental Quality Incentives Program, EQIP, the Farmland and Ranchland Protection Program, FRPP, the Grasslands Reserve Program, and the Wildlife Habitat Incentives Program, WHIP, to pay for CRP and WRP technical assistance. The 2002 farm bill clearly intended USDA to use mandatory funds from the Commodity Credit Corporation, CCC, to pay for conservation technical assistance. The plain language of the statute, the General Accounting Office, and every Member of Congress who had a hand in writing the farm bill support this interpretation of the farm bill. Our legislation would override USDA's decision and prevent funds from working lands incentive programs like EQIP and WHIP from being used to pay for the technical assistance costs of CRP. The House Agriculture Subcommittee on Conservation has already approved similar legislation, H.R. 1907, requiring each program to pay for its own technical assistance needs. Our legislation parallels that effort. Simply put our amendment would require the administration to honor the 2002 farm bill and mandate that technical assistance for each program is derived from funds provided for that program. By providing more than $6.5 billion for working lands programs like EQIP and WHIP in the 2002 farm bill, Congress dramatically increased funds to help farmers manage working lands to produce food and fiber and simultaneously enhance water quality and wildlife habitat. For example, EQIP helps share the cost of a broad range of land management practices that help the environment, include more efficient use of fertilizers and pesticides, and innovative technologies to store and reuse animal waste. In combination, these working lands programs will provide farmers the tools and incentives they need to help meet our major environmental challenges. Full funding for working lands incentive programs like EQIP and WHIP is vital not only in helping farmers and ranchers improve their farm management, but also in meeting America's most pressing environmental challenges. Because 70 percent of the American landscape is private land, farming dramatically affects the health of America's rivers, lakes and bays and the fate of America's rare species. Most rare species depend upon private lands for the survival, and many will become extinct without help from private landowners. When farmers and ranchers take steps to help improve air and water quality or assist rare species, they can face new costs, new risks, or loss of income. Conservation programs help share these costs, underwrite these risks, or offset these losses of income. Unless Congress provides adequate resources for these programs, there is little reason to hope that our farmers and ranchers will be able to help to meet these environmental challenges. In addition, USDA conservation programs promote regional equity in farm spending. More than 90 percent of USDA spending flows to a handful of large farmers in 15 mid-western and southern States. As a result, many farmers and ranchers who are not eligible for traditional subsidies, including dairy farmers, ranchers, and fruit and vegetable farmers, rely upon conservation programs to boost farm and ranch income and to ease the cost of environmental compliance. Unlike commodity subsidies, conservation payments flow to all farmers and all regions. But, the farmers and ranchers who depend upon these programs, farmers, and ranchers who already receive a disproportionately small share of USDA funds, have faced a disproportionately large cut in spending. By passing this legislation Congress and the administration will correct the shortfall in conservation technical assistance funding by directing USDA to use CCC funds to provide technical assistance to USDA conservation program. This legislation restores the clear intent of the authors of the 2002 farm bill relating to the payment of conservation technical assistance.

Mr. LEAHY

Mr. LEAHY. Mr. President, the conference report before the Senate today includes an important provision that will put a stop to the ill-advised attempt by the Department of Homeland Security to privatize jobs that are vital to keeping Americans safe. The conference report prohibits DHS from spending money to process or approve the privatization of Immigration Information Officer, Contact Representative, or Investigative Assistant positions. The House voted for this exact amendment earlier this year by a vote of 242-163, with 49 Republicans supporting it. The Senate voted 49-47 for this language. During the meeting of the conferees, both the Senate and House delegations voted in favor of this language. Immigration Information Officers, IIOs, are responsible for screening applications for immigration benefits for fraud, and for performing criminal background checks on applicants. There are more than 1,200 IIOs and Contact Representatives around the nation, working for the Citizenship and Immigration Services, CIS, branch of DHS. The work they do in attempting to discover and prevent immigration fraud--and prevent dangerous people from abusing the immigration system--is clearly ``inherently governmental,'' making them an inappropriate target of a privatization effort. As our Nation continues to face the threat of terrorism, CIS carries a heavy burden in its attempt to process immigration and naturalization applications while ensuring that terrorists--along with other fraudulent actors--do not abuse our immigration system. Information Officers have played a vital role in meeting this burden. Indeed, the agency's own job description requires that IIOs have the ``[s]kill to identify fraudulent documents in order to prevent persons from appealing for benefits for which they are not eligible,'' a skill that is obviously all the more important in this era. They are also required by DHS to have ``[k]nowledge and skill in interviewing techniques and observation of applicants in order to determine if an applicant is misrepresenting the facts in order to appear eligible for a benefit.'' Weeding out potential fraud in our immigration system must remain a responsibility of government employees, especially when the perpetrator of the fraud may be a dangerous criminal or terrorist. This conference report will ensure that is the case. I have a personal interest in this issue because about 100 fine Vermonters currently work as IIOs. I know the fine work they do, and I know that my staff and indeed all of our staffs rely on them and their counterparts throughout the country when we are seeking to help our constituents. I know that our Nation will be better off because these fine men and women will remain in their current positions.

Mr. LEAHY

Mr. LEAHY. Mr. President, as we near the end of this session, I am disappointed to report that Congress seems content to let the issue of foreign prisoner abuse linger without effective congressional oversight. Some have argued that continuing to investigate this matter will drag it out, and have the effect of preventing us from putting the scandal behind us. I disagree. We have to uncover the full truth in order to ensure that such abuses are not repeated. I am sorry to report that each week brings new allegations that reveal how much we still do not know. Last week, I spoke on this floor about a recent Los Angeles Times article that raised troubling new allegations about the abuse of Afghan detainees in Gardez, including the death of one detainee that was never reported up the chain of command. The article revealed what appears to be a complete disregard for established Army procedure among certain units in Afghanistan. I sent a letter to Defense Secretary Donald Rumsfeld on October 1, 2004, asking him several questions about the allegations raised in the news article. I asked Secretary Rumsfeld to explain how the special forces base at Gardez was allegedly allowed to operate with no recordkeeping requirements or standing operating procedures--an allegation that was corroborated by a U.S. Army investigator in Afghanistan. I asked whether any official policy allowed special forces units to suspend normal recordkeeping requirements while operating in Afghanistan or Iraq. I asked if there is an official policy to allow special forces units to detain prisoners in local Afghan jails or other undisclosed facilities. I asked Secretary Rumsfeld for a prompt response and hope that he delivers one soon. Even without the answers to these questions, we now know that senior officials in the White House, the Justice Department, and the Pentagon set in motion a systematic effort to minimize, distort, and even ignore our international agreements on torture and the treatment of prisoners. I am dismayed to report that some Members of Congress are now attempting to make it much easier for the administration to circumvent our treaty obligations. The 9/11 Recommendations Implementation Act, H.R. 10, was recently introduced by the House Republican leadership. Sections 3032 and 3033 of that bill would make it official U.S. policy to exclude certain non-citizens from the protection of the Convention Against Torture, a treaty to which the United States is a party. To enact such language after the abuses that took place at Abu Ghraib and other locations would further undermine the once distinguished reputation of the United States as a world leader on human rights. Reports of the administration's support of these provisions are conflicting. Last week, Speaker Hastert's office claimed that the Justice Department ``wants and supports'' the provisions. The Justice Department declined to offer an official endorsement of sections 3032 and 3033, but claimed that it favored any ``provisions that will better secure our borders and protect the American people from terrorists.'' In an attempt to reconcile these statements, Senator Kennedy and I sent Attorney General Ashcroft a letter on October 1 urging him to repudiate the Department's support for these sections. We were pleased to learn this week that the White House went on record in opposition to the provisions, but we still await a reply from the Attorney General definitively stating the position of the Department of Justice. Next Friday, October 15, is the deadline imposed by a Federal judge for the administration to turn over or identify all documents relating to the treatment of prisoners held by the United States at military bases and other detention facilities overseas. In his order, Judge Hellerstein stated: ``No one is above the law: not the executive, not the Congress, not the judiciary.'' I could not agree more. Unfortunately, this administration has continually ignored my requests for these documents--I will not be surprised if it refuses to comply with this court order. I would note that the original Freedom of Information Act request for these documents was submitted in October 2003, a year ago. Any embarrassment their release may cause now--less than 3 weeks before the Presidential election--is due to the administration's own stonewalling. As the 108th Congress comes to a close, many questions about the prison abuse scandal will undoubtedly remain unanswered. Several Pentagon investigations are now complete, but none of them paint a complete and unbiased assessment of the prisoner abuse scandal. This Senate, and in particular the Judiciary Committee and Governmental Affairs Committee, failed to fulfill its oversight responsibilities. I have said many times there needs to be a thorough, independent investigation of the actions of those involved, from the people who committed abuses, to the officials who set these policies in motion. Perhaps in the new year, with a new Congress, the administration in power will be ready to seek the full truth about this scandal and begin the process of restoring honor to our nation. I ask unanimous consent that the letters to Secretary Rumsfeld and Attorney General Ashcroft, both dated October 1, 2004, be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that late last night the House of Representatives passed H.R. 2714 with the Leahy-Hatch amendment to reauthorize the highly successful Department of Justice Bulletproof Vest Partnership Grant Program. I thank the Chairman of the Senate Judiciary Committee, Senator Hatch, for joining me on this amendment. This bipartisan legislation now goes to the president for his signature into law. Our amendment contains the same legislative language as the Campbell- Leahy-Hatch Bulletproof Vest Partnership Grant Act of 2003, S. 764. The Bulletproof Vest Partnership Grant Act passed the Senate by unanimous consent on July 15, 2003, and has been awaiting consideration by the House of Representatives since then. This measure marks the third time that I have had the privilege of teaming with my friend and colleague Senator Campbell to work on the Bulletproof Vest Partnership Grant Program. We authored the Bulletproof Vest Grant Partnership Act of 1998, which responded to the tragic Carl Drega shootout in 1997 on the Vermont-New Hampshire border, in which two State troopers who did not have bulletproof vests were killed. The federal officers who responded to the scenes of the shooting spree were equipped with life-saving body armor, but the state and local law enforcement officers lacked protective vests because of the cost. Two years later, we successfully passed the Bulletproof Vest Partnership Grant Act of 2000, and now we will go 3-for-3 this time around. Senator Campbell brings to our effort invaluable experience in this area and during his time in the Senate he has been a leader in the area of law enforcement. As a former deputy sheriff, he knows the dangers law enforcement officers face when out on patrol. I am pleased that we have been joined in this effort by 12 other Senate cosponsors, including Senator Hatch. Our bipartisan legislation will save the lives of law enforcement officers across the country by providing more help to state and local law enforcement agencies to purchase body armor. Since its inception in 1999, this highly successful Department of Justice program has provided law enforcement officers in 16,000 jurisdictions nationwide with nearly 350,000 new bulletproof vests. In Vermont, 60 municipalities have been fortunate to receive funding for the purchase of 1,905 vests. The Bulletproof Vest Partnership Grant Act of 2003 will further the success of the Bulletproof Vest Partnership Grant Program by re- authorizing the program through fiscal year 2007. Our legislation would continue the Federal-State partnership by authorizing up to $50 million per year for matching grants to state and local law enforcement agencies and Indian tribes at the Department of Justice to buy body armor. We know that body armor saves lives, but the cost has put these vests out of the reach of many of the officers who need them. This program makes it more affordable for police departments of all sizes. Few things mean more to me than when I meet Vermont police officers and they tell me that the protective vests they wear were made possible because of this program. This is the least we should do for the officers on the front lines who put themselves in danger for us every day. I want to make sure that every police officer who needs a bulletproof vest gets one.