Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I appreciate the concern of the distinguished senior Senator from Virginia in trying to find a way through this. I want to make it very clear about what we have. The war profiteering bills President Truman spoke of after World War II were civil bills. This is a criminal statute. Actually, the criminal statute is more protective of the contractors because it requires a higher level of proof. As a former prosecutor, I much prefer the idea that someone thinks they are not just going to pay a fine, they might face prison. Second, this passed in almost exactly this form in the supplemental appropriations bill. It was debated and passed as a separate measure in the committee. The amendment then became part of the Supplemental which passed the Senate by a wide margin. The amendment we are considering today is different only in two respects. This one applies to all countries; at that time, it applied only to Iraq. Second, the amendment the Senate passed earlier contained a sunset. The amendment here today does not. When we went to conference, the House did not have a similar piece of legislation. The distinguished chairman of the Appropriations Committee, Senator Stevens, proposed they accept ours. They had a rollcall vote and, by party line, refused it. Senator Stevens had modified it with, I believe, a 7-year sunset. That was not accepted. Several Republicans were very forthright in saying they were under pressure from the White House not to accept it. Some suggested they were under pressure from corporations that were major contributors. I suggested if there is a bad case of war profiteering, they may come back to regret it. Senator Stevens very correctly wanted to make it clear that all Republicans and all Democrats on the Appropriations Committee, in the committee of conference, had supported this. It had been part of a bill we passed overwhelmingly, if not unanimously, in this body early. Because the House would not accept it, it was dropped. Obviously, every Senator has to vote the way he or she wants, but as war profiteering goes on, it is something each Senator has to answer to his or her constituents.

Mr. LEAHY. Yes, without losing my right to the floor.

Mr. LEAHY. Mr. President, I am confused by the response. Is the Senator saying that section 1001 of title 18 was not amended by the Sarbanes-Oxley Act about a year and a half ago?

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

Mr. LEAHY. Mr. President, under the unanimous consent request, I suggest the absence of a quorum.

Mr. LEAHY. Nor do I think there will be. I realize the second-degree amendment is designed--whether intentionally or otherwise--to protect a number of the major corporations now working in Iraq, some of which have been involved with overcharging our military and profiting on the war. It is unfortunate that we would try to protect those who are gouging the American taxpayers. After World War II and after the Korean War, we put in a war profiteering amendment similar to what I offered, and I would say to my distinguished friend from Virginia, we passed a similar war profiteering amendment on the Iraq supplemental appropriations bill last year. But when it came up in conference with the other body, even though they are independent Members of the House, several of them were very candid and told me they had been directed by the White House to remove it and had heavy pressure brought by Halliburton and others. So they had to remove the war profiteering amendment. I actually thought we were elected not by corporations, whether it is Halliburton or anybody else, and not appointed by the White House, but, rather, are here to do the American people's business. Now, be that as it may, I would hope that at some point we would get to the underlying amendment, and it would actually be the law today except that the White House and Halliburton and others told the Republican majority, the leadership in the other body, that they had to take it out, which they did. I commend the majority of Senators, both Republicans and Democrats, who supported it originally and have been willing to resist the pressure of the White House. Over the last few weeks, the news has been dominated by events in Iraq. We are still trying to figure out exactly what went wrong in Abu Ghraib prison as well as other detention centers around the world. There has been some disagreement on this issue, but I think we have already learned a couple of lessons. We need to improve transparency. We need to improve accountability. We need to put in place strong measures to prevent illegal and immoral acts. The reason for doing this is simple. Bad behavior by a few can lower morale among American soldiers. It can undermine support at home for the mission, and it could damage the work of the vast majority of brave men and women who are trying to do the right thing, trying to make life better, and are putting themselves in harm's way every day. By all means, we ought to take action in this body to make sure that no corporation or group can come in and make obscene profits or engage in war profiteering while our American men and women are putting their lives on the line for their country. We should not have anybody come in and say: Here is a great way to make some huge profit off their suffering and off the suffering of the Iraqi people. So my amendment does not have anything to do with the recent prison abuses in Iraq, but it does address the serious issues I mentioned. It addresses the serious and sinister problem of war profiteering that can harm our mission there and around the world. Senator Harry Truman served with distinction in this body and conducted Senate committee investigations into war profiteering during World War II. Then-Senator Truman, later President, said on this issue: No one objects to a fair profit . . . [I]t is our duty . . . to protect the patriotic majority of war contractors against a stigma of profiteering generated by the self seeking minority. We intend to see that no man or corporate group of men shall profit inordinately on the blood of the boys in the fox holes. Today we have both men and women on the frontlines. And we have a lot of companies over there who are putting their own people in harm's way. They are doing it with the best interests of our country and the best interests of the Iraqi people. They are doing it very bravely. They are not doing it to profit from the war. As Harry Truman said: We have to take care; we have ``to protect the patriotic majority of war contractors against the stigma of profiteering generated by the self seeking minority.'' All my amendment says is that while most of the people over there will be playing by the rules, for those who are not, we are going to hold you accountable. As a former prosecutor, I know nothing focuses the minds of those who are committing crimes more than knowing somebody can put them in prison for a long time. I will give you an easy example. If you have five warehouses lined up and four of them have heavy locks on the doors and one doesn't, that is the one that usually gets burgled. In this case, most people are going to be very honest. But without the locks on the doors, there are going to be some who try to get away with ripping off the American taxpayers. I would hope that everybody in this body, Republican and Democrat, would agree with what President Truman said. I am concerned because we have seen one bad headline after another--the Wall Street Journal, the Washington Post, the New York Times, and others--about Government contracts in Iraq. In addition, Time magazine recently reported on an e-mail sent by a Pentagon official that raises serious questions involving Vice President Cheney's office, the White House, and the Vice President's former employer, Halliburton. This is what the e-mail says: A multibillion-dollar Halliburton contract was approved ``contingent on informing White House tomorrow. We anticipate no issue since action has been coordinated with Vice President's office.'' And right on schedule, 3 days later, the Army Corps of Engineers gave Halliburton a multibillion-dollar contract, and they did it without seeking any other bids. This does not look like a typical heads-up memo, as the Vice President's office is now claiming. To this former prosecutor from Vermont, it looks like a coordinated scheme to enrich Halliburton at taxpayer expense with no-bid contracts. This latest revelation underscores the need to address this issue. Even if there is a reasonable explanation for this outrageous e-mail-- and I am still waiting to hear what it is--we have to put in place tough measures to address this issue. I think we have to send a clear message that lining one's pockets, especially while our troops are in harm's way, is simply unacceptable. I hope my amendment, if we are allowed to vote on it, will put a stop to these scandals. This amendment should pass unanimously. I am sorry that the Republican leadership has decided to put what I could only call ``a hold Halliburton harmless'' second-degree amendment in here. I hope that those majority of Senators, Republicans and Democrats alike, who voted for this amendment last year will vote against the second- degree amendment and vote for this amendment. Vote against the ``hold Halliburton harmless'' amendment and vote for the war profiteering prevention amendment. The war profiteering prevention amendment, if it becomes part of law, will send a very clear signal. I don't care what the corporation is, whether the corporation is from Vermont or anywhere else, it will send a very clear signal: Play by the rules. But if you don't play by the rules, just as Harry Truman said after World War II, we are going to hold you accountable. Mr. President, I ask unanimous consent, at the request of the distinguished chairman, that we be allowed to go into a quorum call until the hour of 2 p.m.; that then, by consent, the call of the quorum be rescinded and the Senator from Vermont be recognized again.

Mr. LEAHY. Mr. President, this afternoon, while debating my amendment on war profiteering, we became mired in a debate about what is or what is not in the criminal code. I will not revisit that issue now. However, I will say to the senior Senator from Virginia, who asked from where the language in my amendment originated in the criminal code, that I have more information on that issue that should be to his satisfaction. First, the term ``material'' appears in terrorism laws prohibiting ``material'' support. In fact, all falsity in the criminal code must ``material''. Pursuant to a Supreme Court ruling, part of proving a false statement must be ``material.'' Second, the term ``overvaluation'' is in Title 15 prohibiting ``criminally overvaluation'' of securities. Third, with respect to ``intent to excessively profit,'' this is taken, in part, from ``significantly profit'' in 12 U.S.C. 1297 which criminalizes bank crimes. ``Significantly profit'' is, in fact, a lower standard that ``excessively profit.'' We erred on the side of caution and raised the standard. Although I made this point clear during the debate, this should leave no doubt that my amendment is carefully constructed legislation.

Mr. LEAHY. Madam President, I ask for the yeas and nays.

Mr. LEAHY. Madam President, my amendment very simply says to the Halliburtons all over the country that you can't profit on the backs of our men and women in Iraq or Afghanistan. We all know that is what it is.

Mr. LEAHY. Madam President, I voted, as did others, for the Warner amendment even though I see it as only the tiniest step toward addressing what we read about in the paper every single day, and that is war profiteering in Iraq. His amendment does not cover war profiteering; mine does. In fact, his, I believe, removes my prohibition against war profiteering. What I have in here is an amendment, very similar to what we passed in the appropriations bill earlier, about real war profiteering. This Monday I was at the funeral in Vermont of a young sergeant who was killed in Iraq, just as my wife and I have been at other funerals of Vermonters killed over there, and I suspect most Members of the Senate have. They are over there defending their country. They are over there doing what their country asked them to, being paid as corporals and sergeants, and dying. We have a lot of other people sitting in boardrooms back here in America, watching enormous profits, watching the American taxpayers pay for things that are never delivered, for trucks that are never there, for meals that are never there, and we can't stop them. My amendment would stop them. My amendment would put, if not patriotism in them, it will put the fear of going to jail in them. Let us stand up for our American men and women over there. Let us stop the war profiteers. Let us say no to them, and let us say, if you continue, you are going to go to jail because that is where you belong.

Mr. LEAHY. Madam President, I do not want to start until the Senate is in order.

Mr. LEAHY. Two minutes is fine with me.

Mr. LEAHY. I asked unanimous consent--I have discussed this with the senior Senator from Virginia--that we have 2 minutes equally divided on the next amendment.

Mr. LEAHY. Mr. President, if I might respond to that, it is not a brandnew dimension. It is basically what we had in the Appropriations bill last year. Secondly, it is completely appropriate to apply this new law to Iraq when we see these huge cost overruns on no-bid contracts, and nobody seems to be held accountable. Defense offered by lawyers for the contractor might be that there are no false statements and, therefore, no crime, even though one is ripping off the taxpayers. It is similar to the guy who comes in and says: I will sell you this hammer for $2,000. He is not claiming it is a $2,000 hammer. He is not claiming he paid more than $5 for it. He says: I will sell it for $2,000. Has he made excess profit? Of course, he has. But when it comes to the point when our men and women are putting their lives on the line while others sit back in the boardrooms in America, I think every single lawyer in these boardrooms is going to know exactly what this amendment does, and it will be a strong deterrent. Mr. President, as the White House proved last year when this amendment was debated during the Iraq supplemental conference, I am sure the Senator can pull up the votes to defeat me. I think it is a mistake. Frankly, I will keep on trying to bring up commonsense amendments to prevent war profiteering. Maybe sooner or later some of these people in the same boardrooms who are involved, who are getting no-bid contracts, may think: Maybe we better slow up because maybe one day the Senate will actually say we are going to hold you accountable if you engage in this sort of activity.

Mr. LEAHY. Mr. President, if I may respond, they realize there are not going to be bids on this contract. They realize it is going to be OK'd as soon as they send it in. They have not done any tricks at all. They just say: Here is our bill. There is nobody else bidding, and it gets passed. Some may say that may be fraud; that may not be. Mine does not say maybe. It just says to do it is a crime.

Mr. LEAHY. We are getting a lot of no-bid contracts with basically the company, as we found in these e-mails, saying: Here is what it is going to be. There are no bids. There is nothing else. The Government says: OK, go forward. But there is no question there has been war profiteering there. There has been no fraud, no artifice, nothing else. He just sent the bill, and the bill gets paid. It is profiteering, but I do not see where your statute covers that situation.

Mr. LEAHY. Mr. President, is the Senator from Virginia saying, then, it would require fraud?

Mr. LEAHY. That is not a scheme. He said: I just delivered this widget. Here is your bill for $2,000. And there are so many other things going on, the Government says: Here is your 2,000 bucks. It is not a scheme. It is not an artifice. He is not hiding the fact at all. He said: Here is your bill for $2,000 and somewhere gets paid in the bureaucracy. He has obviously gouged. He has not lied about it. He is up front about it. Does the Senator's statute cover that because that happens a lot?

Mr. LEAHY. Let me ask the Senator from Virginia this: Suppose we have an item, and one of these contractors about which we are talking charges $2,000 for an item. It cost him $5. We remember back to the days of the $500 hammer. He charges the Government $2,000 for an item that costs $5, but he does not lie about this. He does not conceal the cost. He simply says: Here is my bill. He says: OK, it is $2,000. He paid $5. He does not conceal that cost. He does not lie. He just says: Here is the bill for $2,000. He has not lied. He did not conceal--the bill is not hidden somewhere else. It is a straight-out bill, but he is obviously gouging the Government, charging $2,000 for a $5 item. Does the Senator's statute cover that situation?

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

Mr. LEAHY

Mr. LEAHY. Mr. President, today the Senate considers the nomination of Paul Diamond to be a United States District Judge for the Eastern District of Pennsylvania. Mr. Diamond has a unanimous rating of ``well- qualified'' from the American Bar Association and significant experience serving as an assistant district attorney in Philadelphia for 6 years and serving as a litigator in private practice for over 20 years. He is supported by the senior Senator from Pennsylvania, for whom I have great respect. With the three confirmation votes today, the Senate will now have confirmed 17 judicial nominees this year alone. Seventeen is the total number of judges who were confirmed under Republican leadership in all of 1996. However, in 1996, the first confirmation did not even occur until July. With these three confirmations today, the Senate will have confirmed a total of 86 judges this Congress and 186 of this President's judicial nominees overall. With 86 judicial confirmations in just a little more than 17 months, the Senate has confirmed more Federal judges than were confirmed during the 2 full years of 1995 and 1996, when Republicans first controlled the Senate and President Clinton was in the White House. It also exceeds the 2-year total at the end of the Clinton administration, when Republicans held the Senate. With 186 total confirmations for President Bush, the Senate has confirmed more lifetime appointees for this President than were allowed to be confirmed in President Clinton's entire second term, the most recent 4- year presidential term. We have already surpassed the number of judicial appointments won by President Reagan in his entire first term in office. A look at the Federal judiciary in Pennsylvania demonstrates yet again that President Bush's nominees have been treated far better than President Clinton's and shows dramatically how Democrats have worked in a bipartisan way to fill vacancies, despite the fact that Republicans blocked more than 60 of President Clinton's judicial nominees. With this confirmation, 19 of President Bush's nominees to the Federal courts in Pennsylvania will have been confirmed, more than for any other State. With this confirmation, President Bush's nominees will make up 19 of the 43 active Federal circuit and district court judges for Pennsylvania. That is more than 40 percent of the Pennsylvania Federal bench. On the Pennsylvania district courts alone, President Bush's influence is even stronger, as his nominees will now hold 16 of the 35 active seats. In other words, nearly half of the district court seats in Pennsylvania will be held by President Bush's appointees. Republican appointees will outnumber Democratic appointees by nearly two to one. This is in sharp contrast to the way vacancies in Pennsylvania were left unfilled during Republican control of the Senate when President Clinton was in the White House. Republicans denied votes to ten judicial nominees, nine district and one circuit court nominees of President Clinton in Pennsylvania alone. Despite the efforts and diligence of the senior Senator from Pennsylvania, Mr. Specter, to secure the confirmation of all of the judicial nominees from every part of his home State there were 10 nominees by President Clinton to Pennsylvania vacancies who never got a vote. Despite records that showed these to be well-qualified nominees, many of their nominations sat pending before the Senate for more than a year without being considered. Such obstruction provided President Bush with a significant opportunity to shape the bench according to his partisan and ideological goals. New articles in Pennsylvania have highlighted the way that President Bush has been able to reshape the Federal bench in Pennsylvania. For example, The Philadelphia Inquirer, observed that the significant number of vacancies on the Pennsylvania courts ``present Republicans with an opportunity to shape the judicial makeup of the court for years to come.'' I would note that the Republican leadership has decided to depart from the order of the executive calendar to confirm Mr. Diamond today rather than Juan Ramon Sanchez, a well-qualified Hispanic nominee to the U.S. District Court for the Eastern District in Pennsylvania. That is their choice. I do not want to see the Democrats blamed for any delay in confirmation of Mr. Sanchez. I support that nomination and believe it will be supported by all Democratic Senators. I congratulate Mr. Diamond and his family today on his confirmation. I yield back my time. I ask for the yeas and nays.

Mr. LEAHY

Mr. LEAHY. Madam President, today, I vote to support Lawrence Stengel to be a United States District Court Judge for the Eastern District of Pennsylvania. Judge Stengel has served for more than 13 years as a Judge on the Lancaster County Court of Common Pleas, where he has presided over hundreds of civil and criminal cases. In light of his significant judicial experience, it is not surprising that a substantial majority of the American Bar Association found him ``Well- Qualified'' for a lifetime position on the Federal court. A look at the Federal judiciary in Pennsylvania demonstrates yet again that President Bush's nominees have been treated far better than President Clinton's and shows dramatically how Democrats have worked in a bipartisan way to fill vacancies, despite the fact that Republicans blocked more than 60 of President Clinton's judicial nominees. With today's confirmation, 18 of President Bush's nominees to the Federal courts in Pennsylvania will have been confirmed, more than for any other State. With this confirmation, President Bush's nominees will make up 18 of the 43 active Federal circuit and district court judges for Pennsylvania--that is more than 40 percent of the Pennsylvania Federal bench. On the Pennsylvania district courts alone, President Bush's influence is even stronger, as his nominees will hold 15 of the 34 active seats--or more than 44 percent of the current active seats. With the additional Pennsylvania district court nominees pending on the floor and likely to be confirmed soon, nearly half of the district court seats in Pennsylvania will be held by President Bush's appointees. Republican appointees will outnumber Democratic appointees by nearly two to one. This is in sharp contrast to the way vacancies in Pennsylvania were left unfilled during Republican control of the Senate when President Clinton was in the White House. Although Republicans now decry Democratic filibusters of a mere handful of the most extreme nominees, Republicans denied votes to 10 judicial nominees, 9 district and 1 circuit court nominees of President Clinton in Pennsylvania alone. Despite the efforts and diligence of the senior Senator from Pennsylvania, Senator Specter, to secure the confirmation of all of the judicial nominees from every part of his home State, there were 10 nominees by President Clinton to Pennsylvania vacancies who never got a vote. Despite how well-qualified these nominees were, many of their nominations sat pending before the Senate for more than a year without being considered. Such obstruction provided President Bush with a significant opportunity to reshape the Federal bench and the law. News articles in Pennsylvania have highlighted the way that President Bush has been able to reshape the Federal bench in Pennsylvania. For example, The Philadelphia Inquirer noted that the significant number of vacancies on the Pennsylvania courts ``present Republicans with an opportunity to shape the judicial makeup of the court for years to come.'' Despite this, I do hope Judge Stengel will be fair to all who come before him. Madam President, I yield back my time and ask for the yeas and nays.

Mr. LEAHY

Mr. LEAHY. Good enough for me.

Mr. LEAHY. Mr. President, if I might ask the distinguished senior Senator from Virginia, as I understand it, my amendment is actually pending. There are a number pending, but my understanding is the distinguished Senator from Virginia will protect me for a block of time.

Mr. LEAHY. So we can debate and vote.