Patrick Leahy

Mr. LEAHY

Mr. LEAHY. I thank the distinguished Presiding Officer. As he knows, being a member of the Judiciary Committee, while the debate time was scheduled by the committee, at the same time they scheduled hearings on various judicial nominees, including a very controversial nominee to another circuit court. As have others, including the distinguished Chair, I have tried to balance my time from place to place and attend to both matters ongoing simultaneously. I am sorry that I could not be here to open the debate but was at the hearing helping to open those proceedings. Today we consider Mr. Tymkovich as the fourth of President Bush's nominees to this circuit to be considered by the Senate. Three of the nominees to the Tenth Circuit were given hearings and confirmed during the time I was chairman of the Judiciary Committee. President Bush sent up Harris Hartz of New Mexico to the Tenth Circuit. I arranged to get him a hearing and vote on the floor. In fact, I voted for him. President Bush sent up Terrence O'Brien of Wyoming. I arranged to get him a hearing and a vote on the floor. I voted for him. President Bush sent up Michael McConnell of Utah, a highly controversial, extraordinarily conservative nominee, heavily backed by the Federalist Society and others. I arranged to get a hearing for him, and I voted for him. I mention that because it is in stark contrast to the treatment of President Clinton's nominees to vacancies on the Tenth Circuit. We were fair and took action on three of President Bush's nominees to the Tenth Circuit last year. Today the Senate is debating and voting on his last remaining nominee to that circuit. Let us recall what happened when Republicans were in charge and there was a Democratic President. President Clinton nominated two outstanding lawyers to this vacancy, the one about which we talk today. James Lyons, whom I have known it seems forever, is a brilliant lawyer. He would have been an outstanding federal judge, one who in that position would be totally impartial, would fit the qualifications necessary for a judge--that is, when you walked in the court, you would know, whether you are Republican or Democrat, rich, poor, plaintiff, defendant, black, white or anything else, that you would be treated fairly. Mr. Lyons was not treated fairly. He was not even allowed to have a hearing let alone consideration by the Judiciary Committee or a vote by the Senate. Then President Clinton nominated Christine Arguello, an outstanding Hispanic woman. She was not allowed to have a hearing either. It was not that she was not qualified. In fact, speaking of these two, Mr. Lyons was among the many Clinton nominees given the highest qualification by the American Bar Association. Like so many others who fit in that category, he was never allowed even to have a hearing. It was not a question of voting up or down. Republicans were in the majority. They could have voted him down. But both these well qualified nominees were not even allowed to have a hearing. Ms. Arguello is a talented Hispanic attorney. Her nomination had widespread support from her community and State. Both Republicans and Democrats called and wrote to me on her behalf. But as with so many circuit court vacancies on the Tenth Circuit, the Fourth Circuit, the Fifth Circuit, the Sixth Circuit, the Eighth Circuit, the Ninth Circuit, the District of Columbia Circuit, and around the country, these qualified nominees, whose only sin was that they were nominated by a Democratic President, were not allowed to have hearings or votes. The Republican-controlled Senate made it very clear: We will not hold hearings or vote on them. Someday there will be a Republican President, and then we will fill these seats in a campaign to stack the courts. This was very clear. This happened during President Clinton's first term in the Senate--the Republican Senate blocking his nominations from even having a hearing because Republicans thought he would never get reelected and then they could put in Republicans to fill those judicial vacancies. It is very clear. Everybody here heard the comments in the cloakroom and in the Senators' dining room. Look at the record, in the 1996 session, the Republican Senate majority would not consider or confirm a single nominee to a circuit court anywhere in the country, not one. During that entire year only 17 judges were confirmed and all were to the district courts. President Clinton then had a landslide reelection victory. We naively assumed that the Senate Republicans would work with us to help fill the many judicial vacancies that had been perpetuated. Not so. They thought maybe 4 years later they might have another chance and there might be a Republican administration and they could get the courts to do what we wanted. Despite vacancies that reached over 100, Republicans denied there was a vacancies crisis and insisted on slow and searching inquiries on those lucky nominees who were considered at all. Of course, more than 50 of President Clinton's judicial nominees were never given a hearing and a vote. Others, the lucky ones, were delayed for years and years before Senate Republicans would allow a vote. Then in the most recent presidential election, as we know, Al Gore got half a million more votes but did not become President. I respect the electoral system. President Bush won the electoral vote, and there was a 1-vote margin in the Supreme Court determining that. All of a sudden, all these seats that have been kept open year after year because Republicans would not allow anybody to come forward, were valuable opportunities. When Democrats were the Senate majority, we tried to help, to work with the administration and with Senate Republicans. Take, the Tenth Circuit. Even though President Clinton's nominees had been unfairly held up, we did not do the same thing to President Bush's nominees. We proceeded to confirm 100 of his judicial nominees in 17 months. We proceeded on three of his nominees to the Tenth Circuit and filled three of the four vacancies on that circuit by adjournment last year. With respect to this remaining nomination, that of Timothy Tymkovich, I must say--not just because of the shameful, inexcusable way James Lyons and Christine Arguello were treated by the Republicans--I have serious misgivings about this nomination. Mr. Tymkovich has worked to undermine environmental protections and other Federal programs in the name of States rights. He has a particular view of States rights, one that I believe will color his decision making and result in hostility to Federal legislation designed to protect all Americans' civil rights and all Americans' environmental rights. In 1996, Mr. Tymkovich testified before the Senate Governmental Affairs Committee, where he made strident comments about his perceptions of States' rights. His testimony indicated that his support for ``States' rights'' was conveniently focused on rolling back Federal regulation in areas where he had substantive disagreements with Federal policy. He testified in favor of the so-called Tenth Amendment Enforcement Act, which called on Congress to eliminate implied preemption, a form of preemption that has been consistently recognized by the United States Supreme Court. He claimed that the Federal Government had interfered in Colorado's State's rights. Mr. Tymkovich complained that the Federal Government had been ``especially intrusive into State affairs in the area of the environment.'' He cited as examples of such interference and ``overreaching'' the EPA's opposition to a State ``self-audit'' program. That State program would have granted enforcement immunity to polluters that voluntarily came forward and agreed to address problems in the future. Immunity would have applied no matter how damaging the polluters' actions had been. The State legislation was opposed by the EPA because it violated State obligations under several Federal statutes--the Clean Air Act and Clean Water Act, among others. Mr. Tymkovich chided the EPA for refusing to give the same immunity to polluters. In addition to his statements about the self-audit program, Mr. Tymkovich protested the EPA's rejection of State programs in water and air quality programs that did not meet Federal standards. Mr. Tymkovich also complained in his hearing testimony that the Federal Government violated States' rights by requiring Colorado to follow Federal Medicaid law if the State chose to accept Federal Medicaid funding. He argued that States should be allowed to accept Federal Medicaid funding and then refuse to use those funds as prescribed by Federal law; that is, to deny the termination of pregnancies in the limited situation where a Medicaid-qualified woman has been the victim of rape or incest. He argued that States should be allowed to accept Federal Medicaid funding, but absolutely refuse to use these funds--funds that come from all of us from the State of Vermont, the State of Alabama, and every place else as prescribed by Federal law. He argued: We will use your money, but you have no say in how we use it. Finally, Mr. Tymkovich claimed that the Federal ``motor voter'' law was an ``intrusion'' that ``impose[d] special burdens.'' He called the law an ``unfunded mandate'' that ``unquestionably interferes with the States' internal affairs.'' In summary, he argued that ``Congress has long ignored State interests.'' I am also concerned about Mr. Tymkovich's involvement in attempts to weaken Title IX. As State solicitor general, Mr. Tymkovich appealed a decision by a Federal District Court finding that Colorado State University had violated Title IX of the Education Amendments of 1972. The suit, Roberts v. Colorado State Board of Agriculture, was originally brought by members of the women's fast-pitch softball team, which had been cut by the university. The plaintiffs argued that the termination of support for the team was a violation of Title IX. The District Court issued a permanent injunction that required the university to reinstate funding for the program and to provide the team with equal benefits to other sports programs at the college. Mr. Tymkovich appealed the case to the Tenth Circuit, arguing that additional evidentiary requirements should be placed upon Title IX plaintiffs. The Tenth Circuit affirmed the lower court's ruling, finding that the university had not shown that it had fully and effectively accommodated the interests and abilities of women athletes. Title IX has been vital to the inclusion of women and girls in all facets of education, especially athletics. You do not have to be a parent or grandparent to know that now, if you go into any schoolyard and you look at those playing sports at the grade school and high school level, you see boys and girls playing. At the college level, you see both young men and young women playing sports. This has been important to all of us. I am also concerned about the personal hostility Mr. Tymkovich has shown to Americans based on their sexual orientation, and about his failure to accept the importance of civil rights laws. As Colorado solicitor general, he argued a case before the Colorado and U.S. Supreme Courts, in which he unsuccessfully defended Colorado's 1992 ballot initiative that added a broadly-worded provision in the Colorado Constitution prohibiting any legal protections based upon sexual orientation. Ultimately, the Supreme Court of the United States found that the Colorado law was motivated by prejudice, not rationality, and thus ran afoul to the most basic premise of the equal protection clause. So after he litigated the Romer case, and after a conservative Supreme Court ruled against him, he authored a bitter law review article both defending his position and chastising the decisions of the Supreme Court of the United States and of the Supreme Court of Colorado. He criticized Justice Kennedy's decision in Romer as ``an important case study of the Supreme Court's willingness to block a disfavored political result--even to the point of ignoring or disfiguring established precedent.'' He also referred to the U.S. Supreme Court's oral argument process as ``judicial histrionics.'' He concluded by saying this was ``another example of ad hoc, activist jurisprudence, without constitutional mooring.'' Mr. President, I say this because this is a man who claims he would be perfectly willing to follow the decisions of the Supreme Court. In fact, the most revealing aspect of his law review is his failure to acknowledge and respect the decision of the Supreme Court and the views and integrity of those on the other side of the argument from him. I have voted for hundreds of judges nominated by both Republican and Democratic Presidents. My personal belief is that it is not whether they are Democrats or Republicans, liberal or conservative, pro-life or pro-choice, or whatever they might be; that is not the issue. The issue is whether, when somebody comes before that court, that they know that they are going to be treated with fairness, treated with respect, with courtesy, no matter which side they are on or what legal position they support in that litigation. A Federal judge has an enormous amount of power. If somebody comes into court and they know the case is already decided, that the judge has already determined, based on who you are, how the case is going to be decided, then I think you have a real problem that goes to the integrity of the courts and certainly to the independence of the courts, and it determines which way those courts are going to be seen. Why is that important in Mr. Tymkovich's case? Because he shows what type of a judicial temperament he would have. A most revealing aspect of his law review article is his failure to acknowledge and respect the views or integrity of those on the other side of the legal debate. His article made me ask myself why he felt compelled to continue to advocate for the positions he was taking once the case had been concluded, once the Supreme Court had determined what the law was. He obviously feels very strongly personally about these matters. That is fine and that is his right. But that does not mean that he should be confirmed to a lifetime appointment on a Federal circuit court. Had he merely served as the attorney advocating a position in court, he could have chalked his involvement in the Romer case up to professional advocacy in support of a provision adopted in Colorado. Instead, he went well beyond professional legal advocacy. His advocacy went to the point of raising the question whether this man will be able to be fair to all litigants. He wrote that ``our society prohibits, and all human societies have prohibited, certain activity not because they harm others, but because they are considered, in the traditional phrase `contra bonos mores', i.e. immoral.'' In short, the article seems replete with heavy anti-homosexual rhetoric. The hallmark of a good judge is his or her ability to be fair to all who come before the court. I have very grave doubts that Mr. Tymkovich can or will act in an unbiased or fair manner involving civil rights. His expressions seem otherwise. Equally disturbing about this incident is Mr. Tymkovich's apparent unwillingness candidly to admit error either to the courts or the Judiciary Committee. You have to wonder if he would be fair and impartial as a judge in a court. In a case in which Mr. Tymkovich was involved in private practice, he represented the Republican and Libertarian parties, along with several State legislators, in their challenge to the constitutionality of Colorado's Fair Campaign Act. In the course of his representation, which saw him before both the trial court and the Tenth Circuit, Mr. Tymkovich erroneously agreed to consensual dismissal of one of his client's claims before the district court. While each court differed about the merits of the alleged claims, both agreed that Mr. Tymkovich voluntarily dismissed a claim that (1) there was no other means of challenging and (2) which he evidently still desired to litigate. In a case of such high importance, and for a person being nominated to a court of such significance, his actions in this case appear to include a rather serious mistake that reflects upon his competency. Equally disturbing about this incident is Mr. Tymkovich's apparent unwillingness to candidly admit his error either to the courts or the Judiciary Committee. Mr. Tymkovich continued to argue the matter and assert that the District Court behaved improperly and without reason in dismissing his client's first amendment claim. So, too, did he fail to reveal his error in his Senate Questionnaire. Although he truthfully stated that he won some of the claims he pursued, his careful wording on his Senate Questionnaire seems particularly crafted to avoid this aspect of the case. I note for those who have recently trumpeted the ABA ratings as an important indicator of professional competence--especially when a close friend of President Bush is in charge of those ratings--Mr. Tymkovich received a rating that was partially ``not qualified,'' indicating that a number of evaluators did not consider him suited to the position on the Tenth Circuit in which he was nominated. I am concerned that Mr. Tymkovich is yet another of President Bush's nominees to the circuit court who is going to work to undermine Federal laws and programs designed to guarantee protection of civil rights and the environment. I will vote against him. I will vote against him because I do not believe that people can walk into his court and believe they are going to be treated fairly. I fear that people who come into his court and see that the person on the other side fits into the judge's narrow view of who is acceptable and what is acceptable will think that other person is going to win and I am going to lose no matter what the merits are. This is the last remaining vacancy on the Tenth Circuit. We had 7 years without a new judge of that circuit. Even though President Clinton tried, Republicans refused to allow his nominees to go forward to be considered. When I became chairman, we moved three judges who were nominated by President Bush through to confirmation. None of them were people I would have ever nominated. I voted for all of them. I thought even though we were opposed and apart philosophically that they could be fair. I did it notwithstanding my own deep concern about the unreasonable unfairness of the Republicans in not allowing a vote, not even a hearing, on President Clinton's nominees. I was determined not to do that to President Bush. I thought it was absolutely wrong when it was done to President Clinton. So three of those four nominees went forward and they all sit on that court today as President Bush's lifetime appointments to the Tenth Circuit. We have worked hard to reverse the growing number of vacancies on the Federal courts and on the circuit courts, vacancies that were maintained under the Republican Senate majority when President Clinton was in the White House. Even though President Clinton nominated qualified, moderate people, they were not allowed to have hearings. We tried to change that. Perhaps it is a case where no good deed goes unpunished. We tried to demonstrate to this new White House that we could be different. In January 1995, when the Republican majority took control of the confirmation process, there were only 16 vacancies on the circuit courts. When I became chairman in the summer of 2001, there were 33 circuit court vacancies. At the end of last year, these vacancies had been cut by almost 25 percent, even though 9 new circuit vacancies arose during that time. We held the first hearing for a nominee to the Fourth Circuit in 3 years, and confirmed him and another most controversial nominee, even though seven of President Clinton's nominees to that circuit never received a hearing. We proceeded with the first hearing for a nominee to the Fifth Circuit in 7 years and confirmed her, even though three of President Clinton's nominees to that circuit were never given a hearing. We proceeded with the first hearing on a nominee to the Sixth Circuit in almost 5 years, confirmed her, and another controversial nominee to that circuit, even though three of President Clinton's nominees to that circuit never received a hearing. We proceeded with the first hearings on a nominee to the Tenth Circuit in 6 years. We confirmed three, even though two of President Clinton's nominees to that circuit were never allowed hearings. There is today no current vacancy on the First Circuit to which we confirmed a conservative nominee last year. There are no current vacancies on the Eighth Circuit to which we confirmed 3 of President Bush's nominees in spite of the irresponsible treatment the Republican Senate majority had afforded Bonnie Campbell of Iowa. I have been in the Senate with six Presidents, President Ford, President Carter, President Reagan, former President Bush, President Clinton, and the current President Bush. On judicial nominees, each of the five previous Presidents had their own views of who they wanted on the courts, and that is their prerogative whom they nominate. Each one of those Presidents sought to unite rather than divide when it came to the Federal judiciary. I think each understood that the integrity and independence of the Federal courts has to be protected. Each one of those five Presidents actually worked with Members of both parties in the Senate for nominees to go forward. I remember sitting in many meetings with Presidents of both parties. This President is the first one in my experience in 29 years, who seems to have no interest whatsoever in working with the Senate. He seems perfectly happy with what was done in the past by members of his party, and now with members of his party willing to change the rules-- ignore the rules and go forward and do things that have never been done before--so long as they win. In the short run, you win. In the long run, you hurt badly the integrity and the independence of the Federal court. That is one thing we should think of. These are lifetime appointments. They are not the terms of Senators or Presidents. Presidents have 4-year terms. Senators have 6-year terms. The Federal bench has a lifetime term. Finally, even though his term is approximately halfway over, I urge the President to try for a few months to be a uniter, not a divider and work with the Senate on nominating judges. We showed we were willing to move judges much faster for him when the Democrats were in control than the Republicans did when they were in control and there was a Democratic President. Work with us. You are going to have better courts; all Americans will have better courts. You can still appoint a lot of Republicans--that is fine. But you could have an independent court, not courts that are going to be seen by a growing--and it is growing--number around this country as an arm of the Republican Party. Professor Sheldon Goldman was recently quoted in an article by Stephanie B. Goldberg in MS. Magazine as saying: ``If courts are perceived as being governed by political ideology, they lose public support and are no longer seen as an independent branch of government. They're just an arm of the regime.'' Courts should not be an arm of the Democratic Party or the Republican Party. It is one branch of Government that should be independent. This White House seems to want to change that. Over more than 200 years of history, Presidents occasionally have been unable to resist the temptation of court-packing schemes, such as in the case of John Adams or Franklin Roosevelt. Those were wisely rejected. If the White House is unwilling to have an independent judiciary, I hope the Senate will show enough courage to reject that. Before observing the absence of a quorum I ask unanimous consent that the time run equally against both sides.

Mr. LEAHY. Mr. President, I understand we are on the nomination of Timothy Tymkovich to the U.S. Circuit Court of Appeals for the Tenth Circuit.

Mr. LEAHY

Mr. LEAHY. Mr. President, today we again demonstrate how cooperative the Senate and, in particular, Democratic Senators are being to an administration that continues to refuse to work with us to select consensus court judges who could be confirmed relatively quickly by the Senate and fill the remaining Federal court vacancies. In the prior 17 months I chaired the Judiciary Committee, we were able to confirm 100 judges and vastly reduce the judicial vacancies that Republicans had stored up by refusing to allow nominees of President Clinton to be considered. We were able to do so despite the hostility of the White House. The judicial nominees of this President are conservatives, many of them quite to the right of the mainstream. Many of these nominees have been active in conservative political causes or groups. Democrats moved fairly and expeditiously on as many as we could consistent with our obligations to evaluate carefully and thoroughly these nominees to lifetime seats in the federal courts. Last year alone, in an election year, the Democratic-led Senate confirmed 72 judicial nominees, more than in any of the prior six years of Republican control. Not once did the Republican-controlled Committee consider that many of President Clinton's district and circuit court nominees. While Republicans point to the 377 judges confirmed under President Clinton, but they fail to mention that only 245 of them were confirmed during the 6\1/2\ years Republicans controlled the Senate. That amounts to only 38 confirmations per year when the Republicans last held a majority and there was a Democrat in the White House. In 1999, the Republican majority did not hold a hearing on any judicial nominee until June. Tomorrow, the Republican majority will hold its seventh hearing including a 32nd judicial nominee in the last 2 months. The Senate Judiciary Committee is acting like a runaway train, operating at breakneck speed and breaking longstanding rules and practices of the committee. This year we have had a rocky beginning with a hearing for three controversial circuit court nominees that has caused a great many problems we might have avoided. The chairman's insistence on terminating debate on the Cook and Roberts nominations is another serious problem. Of course, the administration's unwillingness to work with the Senate so that we may be provided the documents and information needed to proceed with a final vote on the Estrada nomination has already proved to be a significant problem. The opposition to the Sutton nomination is also extensive. The concerns about the Tymkovich nomination are significant. The unprecedented nature of a President renominating someone for the same judicial position after a defeat in committee has led to the Owen nomination is pending on the floor with the assent of only the Republicans on the committee. Nonetheless, the Senate has proceeded to confirm 114 of President Bush's judicial nominees, including 14 this year alone. The Senate confirmed the controversial nomination of Jay Bybee to the Ninth Circuit, another pro-life judicial nominee. With this one circuit court confirmation, the Senate has confirmed more circuit court judges than Republicans allowed to be confirmed in the entire 1996 session. In addition, I note that it was not until September 1999, 9 months into the year, that 14 of President Clinton's judicial nominees were confirmed in the first session of the last Congress in which Republicans controlled the Senate majority. At the pace set by Republicans now, we are a full six months ahead of that schedule. The Indiana nominee, Theresa Lazar Springmann, is currently a U.S. Magistrate Judge for the U.S. District Court for the Northern District of Indiana. She has the bipartisan support of her home State Senators. The fact that she is being confirmed to the district court months in advance of the vacancy arising demonstrates how cooperative the Senate is being. Only rarely has a nominee been confirmed in advance of a vacancy arising. The nominee is well regarded and supported by her home State Senators. I congratulate Judge Springmann and her family on her confirmation.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am proud to be a cosponsor of this measure and commend Senator Campbell for his leadership on this matter. This is a measure the Senate passed last year as S. 1644. The Senate's action in May, 2002, unfortunately met with resistance in the House of Representatives and our bill was not enacted into law last year as it should have been. Senator Campbell correctly proceeded to reintroduce the bill as S. 330, earlier this year. The bill provides for two things: highway signs to guide visitors to veterans cemeteries and a criminal provision for the willful destruction of memorials and cemeteries for our Armed Forces veterans. I have urged all Senators, Republicans and Democrats, to support this modest legislative effort to help honor our Armed Forces veterans. In addition, of course, I will continue to support efforts to improve medical services, veterans hospitals, and other benefits for the women and men who risk and have risked their lives and livelihoods to protect all of us. I asked the chairman of the Judiciary Committee to include this matter on the agenda for Judiciary Committee action last week I thank him for accommodating our request and am happy that this bill was reported unanimously by the Judiciary Committee to the full Senate. I am confident that the Senate will again pass it. I trust that this year the House of Representatives will act favorably on this good legislation to honor our veterans.

Mr. LEAHY

Mr. LEAHY. Mr. President, while there are continuing problems caused by the administration's refusal to work with Democratic Senators to select consensus judicial nominees who could be confirmed relatively quickly by the Senate, today we again demonstrate what can happen when the administration works with us. In spite of the President's lack of cooperation, the Senate in the 17 months I chaired the Judiciary Committee was able to confirm 100 judges and vastly reduce the judicial vacancies that had built up and were prevented by the Republican Senate majority from being filled by President Clinton. Last year alone the Democratic-led Senate confirmed 72 judicial nominees, more than in any of the prior 6 years of Republican control. Not once did the Republican-controlled committee consider that many of President Clinton's district and circuit court nominees. In our efforts to turn the other cheek and treat this President's nominees better than his predecessor's had fared, we confirmed 100 judges in 17 months. Yet not a single elected Republican has acknowledged this tremendous bipartisanship and fairness. When Chief Justice Rehnquist thanked the committee for confirming 100 judicial nominees, this was the first time this accomplishment had been acknowledged by anyone from a Republican background. I thanked him last week when I appeared before the Judicial Conference. Almost all of the judges confirmed are conservatives, many of them quite to the right of the mainstream, and many are pro-life. Many of these nominees have been active in conservative political causes or groups, but we moved fairly and expeditiously on as many as we could. We cut the number of vacancies on the courts from 110 to 50, despite an additional 60 new vacancies that had arisen. I recall that the chairman said in September of 1997 that 103 vacancies, during the Clinton Administration, did not constitute a ``vacancy crisis.'' He also repeatedly stated that 67 vacancies meant ``full employment'' on the Federal courts. Even with the vacancies that have arisen since we adjourned last year, we remain below the ``full employment'' level that Senator Hatch used to draw for the Federal courts with only 50 vacancies remaining on the district courts and courts of appeals, according to the Judiciary Committee website. Unfortunately, the President has not made nominations to a number of those seats, and on more than half of the current vacancies he has missed his self-imposed deadline of a nomination within 180 days. Of course, several of the nominations he has made are controversial. This year the President has taken the truly unprecedented action of renominating candidates voted down in committee in spite of the serious concerns expressed by fair-minded members of this committee. That is a significant problem. This year we have had a rocky beginning with a hearing that has caused a great many problems we might have avoided. The chairman's insistence on terminating debate on the Cook and Roberts nominations is another serious problem. Of course, the administration's unwillingness to work with the Senate so that we may be provided the documents and information needed to proceed with a final vote on the Estrada nomination has already proved to be a significant problem. The opposition to the Sutton nomination is also extensive. Nonetheless, the Senate has proceeded to confirm 113 of President Bush's judicial nominees, including 13 this year alone. The Senate confirmed the controversial nomination of Jay Bybee to the Ninth Circuit, another pro-life judicial nominee. Already this year the Senate has confirmed more circuit court judges than Republicans allowed to be confirmed in the entire 1996 session. In addition, I note that it was not until September, 1999, that 13 of President Clinton's judicial nominees were confirmed in the first session of the last Congress in which Republicans controlled the Senate majority. This year we are 6 months ahead of that schedule. The California nominee comes from the bipartisan selection commissions Senator Feinstein and Senator Boxer have established in California and the Indiana nominee has the bipartisan support of his home State Senators. I congratulate the nominees and their families.

Mr. LEAHY

Mr. LEAHY. I am pleased today to introduce the Anti-Atrocity Alien Deportation Act of 2003, a bill intended to close loopholes in our immigration laws that have allowed war criminals and human rights abusers to enter and remain in this country. Senator Hatch has joined me in offering this bill, along with Senators Lieberman and Levin. In the other body, Representatives Mark Foley and Gary Ackerman today introduce identical legislation. Our bill would update the charter of the Justice Department's Office of Special Investigations, OSI, which for years has investigated and has sought justice in the cases of Nazi war criminals who have sought refuge on our shores. It is time to renew the OSI charter to take into account the new generations of war criminals who try to escape justice by living among us. This bill closely mirrors legislation I had offered that was reported unanimously by the Senate Judiciary Committee last year, and which passed the Senate during the 106th Congress. I hope and expect that, with the help of Senator Hatch and others, this bill will become law during this Congress. As we introduce this bill, our armed forces are fighting to replace an Iraqi regime that has been marked by its utter disregard for the human rights of its people. We must not fight this war on the one hand, and let human rights abusers from around the world enter our Nation with impunity on the other. When they learn it is so, the American people are appalled to learn that our country has become a safe haven for those who exercised power in foreign countries to terrorize, rape, murder and torture innocent civilians. A report issued last year by Amnesty International claims that nearly 150 alleged human rights abusers have been identified living here and warns that this number may be as high as 1,000. Meanwhile, an article in the New York Review of Books stated that ``hundreds, if not thousands, of foreign nationals who have been plausibly accused of the most heinous human rights crimes, including torture and assassination, either have lived or still live freely in the U.S.'' [William Schulz, ``The Torturers Among Us,'' New York Review, p. 22, April 25, 2002.] I introduced a similar version of this bill on May 10, 2001, and the Judiciary Committee reported the bill with a Leahy-Hatch managers' amendment on April 18, 2002. Unfortunately, the bill was subject to an anonymous hold on the Senate floor. I introduced similar legislation in the 106th Congress and was pleased when the proposal garnered bipartisan support in both the House and the Senate. The legislation passed the Senate on November 5, 1999, as part of S. 1754, the Hatch-Leahy ``Denying Safe Havens to International and War Criminals Act,'' but unfortunately it was not acted on by the House before the end of the 106th Congress. Nevertheless, Representatives Foley and Ackerman have provided consistent leadership in moving this legislation in the House, by introducing the measure in the l06th Congress as H.R. 2642 and H.R. 3058, in the 107th Congress, as H.R. 1449, and again today. The problem of human rights abusers seeking and obtaining refuge in this country is real, and requires an effective response with the legal and enforcement changes proposed in this legislation. For example, three Ethiopian refugees proved in an American court that Kelbessa Negewo, a former senior government official in the military dictatorship that ruled Ethiopia in the 1970s, engaged in numerous acts of torture and human rights abuses against them when they lived in that country. Negewo oversaw and participated in the torture of opposition political figures in Ethiopia, and then moved to the United States only to work at the same Atlanta hotel as one of his own victims. The court's descriptions of the abuse are chilling, and included whipping a naked woman with a wire for hours and threatening her with death in the presence of several men. The court's award of compensatory and punitive damages in the amount of $1.5 million to the plaintiffs was subsequently affirmed by an appellate court. [See Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996).] Yet during the pendency of his appeal of the civil verdict, the Immigration and Naturalization Service granted Negewo citizenship. This situation is an affront both to the foreign victims of torture who fled here to escape their persecutors, and to the American victims of such torture and their families. As Professor William Aceves of California Western School of Law has noted, this case reveals ``a glaring and troubling limitation in current immigration law and practice. This case is not unique. Other aliens who have committed gross human rights violations have also gained entry into the United States and been granted immigration relief.'' [20 Mich. J. Int'l.L. at 657.] Indeed, another case actually involves American victims. In 1980, four American churchwomen were raped and murdered by the Salvadoran National Guard. Two former Salvadoran government officials who allegedly covered up the murders currently reside in Florida. Unfortunately, criminals who wielded machetes and guns against innocent civilians in countries like Haiti, Chile, Yugoslavia and Rwanda have been able to gain entry to the United States through the same doors that we have opened to deserving refugees. We need to lock that door to human rights abusers who seek a safe haven in the United States. To those human rights abusers who are already here, we should promptly show them the door out. We have unwittingly sheltered the oppressors along with the oppressed for too long. We should not let this situation continue. We waited too long after World War II to focus prosecutorial resources and attention on Nazi war criminals who entered this country on false pretenses, or worse, with the collusion of American intelligence agencies. Thousands of declassified CIA documents were made public last year, as a result of the Nazi War Crimes Disclosure Act that I was proud to help enact in 1998. These documents made clear the extent to which the United States relied upon and helped Nazi war criminals. As Eli M. Rosenbaum, the head of the Justice Department's Office of Special Investigations, noted at the time, ``These files demonstrate that the real winners of the Cold War were Nazi criminals.'' We should not repeat that mistake for other aliens who engaged in human rights abuses before coming to the United States. We need to focus the attention of our law enforcement investigators to prosecute and deport those who have committed atrocities abroad and who now enjoy safe harbor in the United States. When I first introduced this bill, the Rutland Daily Herald in Vermont editorialized that: For the U.S. commitment to human rights to mean anything, U.S. policies must be strong and consistent. It is not enough to denounce war crimes in Bosnia and Kosovo or elsewhere and then wink as the perpetrators of torture and mass murder slip across the border to find a home in America. (October 31, 1999) The Clinton Administration recognized the deficiencies in our laws. One Clinton Administration witness testified in February 2000 that: The Department of Justice supports efforts to enhance our ability to remove individuals who have committed acts of torture abroad. The department also recognizes, however, that our current immigration laws do not provide strong enough bars for human rights abusers. . . . Right now, only three types of human rights abuse could prevent someone from entering or remaining in the United States. The types of prohibited conduct include: (1) genocide; (2) particularly severe violations of religious freedom; and (3) Nazi persecutions. Even these types of conduct are narrowly defined. [Hearing on H.R. 3058, ``Anti-Atrocity Alien Deportation Act,'' before the Subcomm. on Immigration and Claims of the House Comm. On the Judiciary, 106th Cong., 2d Sess., Feb. 17, 2000 (Statement of James E. Costello, Associate Deputy Attorney General).] The Anti-Atrocity Alien Deportation Act would provide a stronger bar to human rights abusers and close loopholes in our current laws. The Immigration and Nationality Act (INA) currently provides that (i) participants in Nazi persecutions during the time period from March 23, 1933 to May 8, 1945, (ii) aliens who engaged in genocide, and (iii) aliens who committed particularly severe violations of religious freedom, are both inadmissable to the United States and removable. [See 8 U.S.C. Sec. 1182(a)(2)(G) & (3)(E) and Sec. 1227(a)(4)(D).] This bill would expand the grounds for inadmissibility and deportation to: (1) add new bars for aliens who have engaged in acts, outside the United States, of ``torture'' and ``extrajudicial killing,'' and (2) remove limitations on the current bases for ``genocide'' and ``particularly severe violations of religious freedom.'' The definitions for the new bases of ``torture'' and ``extrajudicial killing'' are derived from the Torture Victim Protection Act, which implemented the United Nations' ``Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.'' These definitions are therefore already sanctioned by the Congress. The bill incorporates the definition of ``torture'' codified in the federal criminal code, 18 U.S.C. Sec. 2340, which prohibits: an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.'' [18 U.S.C. Sec. 2340(1).] ``Severe mental pain or suffering'' is further defined to mean: prolonged mental harm caused by or resulting from (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality. [18 U.S.C. Sec. 2340(2).] The Torture Victim Protection Act also included a definition for ``extrajudicial killing.'' Specifically, this law establishes civil liability for wrongful death against any person ``who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to extrajudicial killing,'' which is defined to mean ``a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. This term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.'' The bill would not only add the new grounds for inadmissibility and deportation, it would expand two of the current grounds. First, the current bar to aliens who have ``engaged in genocide'' defines that term by reference to the ``genocide'' definition in the Convention on the Prevention and Punishment of the Crime of Genocide. [8 U.S.C. 1182(a)(3)(E)(ii).] For clarity and consistency, the bill would substitute instead the definition in the federal criminal code, 18 U.S.C. Sec. 1091(a), which was adopted pursuant to the U.S. obligations under the Genocide Convention. The bill would also broaden the reach of the provision to apply not only to those who ``engaged in genocide,'' as in current law, but also to cover any alien who has ordered, incited, assisted or otherwise participated in genocide. This broader scope will ensure that the genocide provision addresses a more appropriate range of levels of complicity. Second, the current bar to aliens who have committed ``particularly severe violations of religious freedom,'' as defined in the International Religious Freedom Act of 1998 (IRFA), limits its application to foreign government officials who engaged in such conduct within the last 24 months, and also bars from admission the individual's spouse and children, if any. This bill would delete the reference to prohibited conduct occurring within a 24-month period since this limitation is not consistent with the strong stance of the United States to promote religious freedom throughout the world. As Professor Aceves has written: This provision is unduly restrictive . . . The 24-month time limitation for this prohibition is also unnecessary. A perpetrator of human rights atrocities should not be able to seek absolution by merely waiting two years after the commission of these acts. [William J. Aceves, supra, 20 Mich. J. Int'l L., at 683.] In addition, the bill would remove the current bar to admission for the spouse or children of a violator of religious freedom. This is a serious sanction that should not apply to individuals because of familial relationships that are beyond their control. The purpose of these amendments is to make those who have participated in atrocities accountable for their actions. That purpose is not served by holding the family members of such individuals accountable for the offensive conduct over which they had no control. Under current law, most aliens who are inadmissible may receive a waiver under section 212(d)(3) of the INA to enter the nation as a nonimmigrant, where the Secretary of State recommends it and the Attorney General approves. Participants in Nazi persecutions or genocide, however, are not eligible for such a waiver. Our bill retains that provision. It does not, however, ban waivers for those who commit acts of torture or extrajudicial killings. I would hope that such waivers are used sparingly and only under the most compelling of circumstances. Of course, changing the law to address the problem of human rights abusers seeking entry and remaining in the United States is only part of the solution. We also need effective enforcement. As one expert noted: [s]trong institutional mechanisms must be established to implement this proposed legislation. At present, there does not appear to be any agency within the Department of Justice with the specific mandate of identifying, investigating and prosecuting modern day perpetrators of human rights atrocities. The importance of establishing a separate agency for this function can be seen in the experiences of the Office of Special Investigations. 20 Mich. J. Int'l L., at 689. Our country has long provided the template and moral leadership for dealing with Nazi war criminals. The Justice Department's specialized unit, OSI, which was created to hunt down, prosecute and remove Nazi war criminals who had slipped into the United States among their victims under the Displaced Persons Act, is an example of effective enforcement. Since OSI was created in 1979, more than 60 Nazi persecutors have been stripped of U.S. citizenship, almost 50 such individuals have been removed from the United States, and more than 150 have been denied entry. OSI was created almost 35 years after the end of World War II and it remains authorized only to track Nazi war criminals. Specifically, when Attorney General Civiletti, by a 1979 Attorney General order, established OSI within the Criminal Division of the Department of Justice, that office was directed to conduct all ``investigative and litigation activities involving individuals, who prior to and during World War II, under the supervision of or in association with the Nazi government of Germany, its allies, and other affiliated governments, are alleged to have ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion.'' (Attorney Gen. Order No. 851-79). The OSI's mission continues to be limited by that Attorney General Order. I believe it is time to reward the tremendous work that OSI has done by expanding its mission to ensure effective enforcement against war criminals of all stripes. Little is being done about the new generation of international human rights abusers and war criminals living among us, and these delays are costly. As any prosecutor knows instinctively, such delays make documentary and testimonial evidence more difficult to obtain. Stale cases are the hardest to make. We should not repeat the mistake of waiting decades before tracking down war criminals and human rights abusers who have settled in this country. War criminals should find no sanctuary in loopholes in our current immigration policies and enforcement, and should never come to believe that they will find safe harbor in the United States. The Anti-Atrocity Alien Deportation Act would amend the INA, 8 U.S.C. Sec. 1103, by directing the Attorney General to establish an Office of Special Investigations (OSI) within the Department of Justice with authorization to denaturalize any alien who has participated in Nazi persecution, torture, extrajudicial killing or genocide abroad. Not only would the bill provide statutory authorization for OSI, it would also expand its jurisdiction to deal with any alien who participated in torture, extrajudicial killing and genocide abroad not just Nazis. The success of OSI in hunting Nazi war criminals demonstrates the effectiveness of centralized resources and expertise in these cases. The knowledge of the people, politics and pathologies of particular regimes engaged in genocide and human rights abuses is often necessary for effective prosecutions of these cases and would best be accomplished by the concentrated efforts of a single office, rather than in piecemeal litigation around the country or in offices that have more diverse missions. These are the sound policy and practical reasons that experts in this area recommend that the United States ``establish an office in the Justice Department similar to the one that has tracked Nazi war criminals, with an exclusive mandate to carry out the task of investigation [of suspected human rights abusers].'' [William Schulz, supra, at p. 24.] I appreciate that this part of the legislation has in the past proven controversial within the Department of Justice, but others have concurred in my judgment that the OSI is an appropriate component of the Department to address the new responsibilities proposed in this bill. Professor Aceves, who has studied these matters extensively, has concluded that the OSI's ``methodology for pursuing Nazi war criminals can be applied with equal rigor to other perpetrators of human rights violations. As the number of Nazi war criminals inevitably declines, the OSI can begin to enforce U.S. immigration laws against perpetrators of genocide and other gross violations of human rights.'' 20 Mich. J. Int'l. 657. Unquestionably, the need to bring Nazi war criminals to justice remains a matter of great importance. Funds would not be diverted from the OSI's current mission instead, additional resources are authorized in the bill to cover the costs of the Office's expanded duties. Significantly, the bill further directs the Attorney General, in determining what action to take against a human rights abuser seeking entry into or found within the United States, to consider whether a prosecution should be brought under U.S. law or whether the alien should be deported to a country willing to undertake such a prosecution. Despite ratifying the Convention Against Torture in 1994 and adopting a new law making torture anywhere in the world a crime, federal law enforcement has not used this authority. In fact, one recent observer noted that ``the U.S. has never prosecuted a suspected torturer; nor has it ever extradited one under the Convention Against Torture, although it has surrendered one person to the International Criminal Tribunal for Rwanda.'' [William Schulz, supra, at p. 23 - 24.] As one human rights expert has noted: ``The justifiable outrage felt by many when it is discovered that serious human rights abusers have found their way into the United States may lead well-meaning people to call for their immediate expulsion. Such individuals certainly should not be enjoying the good life America has to offer. But when we ask the question `where should they be?' the answer is clear: they should be in the dock. That is the essence of accountability, and it should be the central goal of any scheme to penalize human rights abusers.'' [Hearing on H.R. 5238, ``Serious Human Rights Abusers Accountability Act,'' before the Subcomm. on Immigration and Claims of the House Comm. On the Judiciary, 106th Cong., 2d Sess., Sept. 28, 2000 (Statement of Elisa Massimino, Director, Washington Office, Lawyers Committee For Human Rights).] Finally, the bill directs the Attorney General to report to the Judiciary Committees of the Senate and House on implementation of the new requirements in the bill, including procedures for referral of matters to the OSI, any revisions made to immigration forms to reflect amendments made by the bill, and the procedures developed, with adequate due process protection, to obtain sufficient evidence and determine whether an alien is deemed inadmissible under the bill. I urge my colleagues in the Senate again to give their approval to this bill, and for the House to help us finally make it law. I ask unanimous consent that the text of the legislation be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to join Ms. Stabenow and my other colleagues today in offering this amendment to express the sense of the Senate that the final conference agreement on the budget resolution should not reduce funding for domestic nutrition programs below the current baseline levels. The reconciliation instructions included in the House Budget Resolution to cut mandatory funding in the areas of domestic nutrition assistance would be devastating to the children and families who count on these programs to meet their daily food needs. In these difficult economic times, we must not put the basic needs of low-income Americans--particularly children--on the chopping block in order to make room for an ill-advised tax cut package this country cannot afford. I strongly urge my colleagues to vote in support of the amendment.

Mr. LEAHY. Mr. President, the administration's budget was wrong for the Nation when the President proposed it in February. It is even worse for the Nation now that we are at war. I will oppose it, and I hope that reason and common sense will prevail in the remaining steps of the budget process to prevent this package from doing lasting damage to the economy and to our communities. As incredible as it might seem, this budget plan would worsen the fiscal and economic harm done by the administration's 2001 economic package, which, in one fell swoop squandered the hard-won budget surpluses and converted them to ever-deepening deficits and debt. Making matters all the worse, this budget would compound this squandering while the Nation is at war. Can anyone seriously argue, just for instance, that it makes fiscal or economic sense to borrow money to pay for a tax cut package which itself is steeply tilted to the wealthiest individuals? This budget plan is misguided in its priorities. It severely underfunds essential health, education and employment training programs; it contains an enormous government giveaway to wealthy corporations and the wealthiest individuals that will skyrocket our Nation's debt; and it is wholly inadequate to meet the domestic security needs of the first-responder agencies that are our first line of defense against terrorism. Even before the war, when the President unveiled his budget proposal in February, his priorities were sharply out of kilter with the Nation's needs. By severely underfunding education and other domestic needs, and by making a nearly $700 billion tax package the focus of his budget, the President compounds the irresponsible polices of the last 2 years that have traded record surpluses for record deficits. Let me cite just a few examples of how bad the President's budget is for Vermont: The $6.7 million cut in afterschool programs that will leave 9,566 children in my State without afterschool activities; the $2,405,259 cut in Clean Water Act funding, at a time when Vermont has nine toxic waste sites on the National Priorities List; the $524,673 cut in the Low Income Home Energy Assistance Program (LIHEAP) that helps Vermonters who need assistance with the electricity and heating bills; the $793,220 cut in the Community Services Block Grant that provides local organizations in Vermont with funds to help reduce poverty, revitalize low-income communities, and offer families the help they need to become fully self-sufficient; and the elimination of the COPS police-hiring program that has put 245 officers on our streets. And I could go on and on. In 2001, I voted against the Bush tax package because it was too skewed toward the wealthiest Americans and it was fiscally irresponsible. Since then, we have gone from record surpluses to red ink, and the economy is still floundering. Leading economists have repeatedly made clear that the elimination of taxes on dividends paid to investors, the centerpiece of the President's tax-cut proposal, will do little if anything to spur economic growth or to reduce the Nation's jobless rate. As Congress shapes an economic package, fiscal responsibility needs to be a priority. We need to be smart about how we proceed, and we need to be fair about it. The tax cuts the President has proposed not only will worsen our Federal deficit, but it will also eliminate $16 million in revenue from the State of Vermont. Congress now has the responsibility to bring stability and sensible fiscal policies back into the budget process. We must work to reestablish a balanced budget and to restore our country's economic health. Our Nation is at war. We have nearly a quarter of a million troops in the Middle East. We have five carrier battle groups in the region. And we have National Guard units being called up all across the country. Yet the President has only recently submitted an estimate to Congress about the cost of this war. The $75 billion he requested on Monday does not adequately address our country's homeland security needs and is likely just a start in funding all of the United States operations in Iraq. I was disappointed that the Senate did not adopt my amendment to boost funding for first responders. We are in a two-front war, overseas and here at home, and we need to fund both. First responders are on the front lines in defending against and preparing for terrorist attacks. The White House has refused to adequately fund homeland security, and these added responsibilities have become unfunded Federal mandates that are severely straining our police, fire and rescue agencies. Every time the alert level is raised, it costs our communities and states millions more. Everyone recognizes the vital role of first responders, but the White House is overdue in acting accordingly. The sooner we help first responders help us in the war on terrorism, the better. In his State of the Union Message, the President was right when he said we should not pass on our problems to other Congresses, other Presidents and future generations. Unfortunately, that is exactly what this budget plan would do. The White House's own documents predict the deficit will hit highs of $304 billion this year and $307 billion in 2004. Over the next 5 years, deficits would total $1.08 trillion. Even these staggering numbers are short of the real mark because the administration will surely need hundreds of billions of dollars more in Iraq-related spending that is not counted here. This administration has been in a rush to war, but it has been in no hurry to substantively deal with the poor economy that millions of Americans are coping with today. This budget was a bad plan for the Nation before the war began. It is an even worse plan now. I ask unanimous consent that an editorial by Emerson Lynn that appeared in the March 21 edition of the St. Albans Messenger be printed in the Record.

Mr. LEAHY

Mr. LEAHY. I am pleased today to introduce the Anti-Atrocity Alien Deportation Act of 2003, a bill intended to close loopholes in our immigration laws that have allowed war criminals and human rights abusers to enter and remain in this country. Senator Hatch has joined me in offering this bill, along with Senators Lieberman and Levin. In the other body, Representatives Mark Foley and Gary Ackerman today introduce identical legislation. Our bill would update the charter of the Justice Department's Office of Special Investigations, OSI, which for years has investigated and has sought justice in the cases of Nazi war criminals who have sought refuge on our shores. It is time to renew the OSI charter to take into account the new generations of war criminals who try to escape justice by living among us. This bill closely mirrors legislation I had offered that was reported unanimously by the Senate Judiciary Committee last year, and which passed the Senate during the 106th Congress. I hope and expect that, with the help of Senator Hatch and others, this bill will become law during this Congress. As we introduce this bill, our armed forces are fighting to replace an Iraqi regime that has been marked by its utter disregard for the human rights of its people. We must not fight this war on the one hand, and let human rights abusers from around the world enter our Nation with impunity on the other. When they learn it is so, the American people are appalled to learn that our country has become a safe haven for those who exercised power in foreign countries to terrorize, rape, murder and torture innocent civilians. A report issued last year by Amnesty International claims that nearly 150 alleged human rights abusers have been identified living here and warns that this number may be as high as 1,000. Meanwhile, an article in the New York Review of Books stated that ``hundreds, if not thousands, of foreign nationals who have been plausibly accused of the most heinous human rights crimes, including torture and assassination, either have lived or still live freely in the U.S.'' [William Schulz, ``The Torturers Among Us,'' New York Review, p. 22, April 25, 2002.] I introduced a similar version of this bill on May 10, 2001, and the Judiciary Committee reported the bill with a Leahy-Hatch managers' amendment on April 18, 2002. Unfortunately, the bill was subject to an anonymous hold on the Senate floor. I introduced similar legislation in the 106th Congress and was pleased when the proposal garnered bipartisan support in both the House and the Senate. The legislation passed the Senate on November 5, 1999, as part of S. 1754, the Hatch-Leahy ``Denying Safe Havens to International and War Criminals Act,'' but unfortunately it was not acted on by the House before the end of the 106th Congress. Nevertheless, Representatives Foley and Ackerman have provided consistent leadership in moving this legislation in the House, by introducing the measure in the l06th Congress as H.R. 2642 and H.R. 3058, in the 107th Congress, as H.R. 1449, and again today. The problem of human rights abusers seeking and obtaining refuge in this country is real, and requires an effective response with the legal and enforcement changes proposed in this legislation. For example, three Ethiopian refugees proved in an American court that Kelbessa Negewo, a former senior government official in the military dictatorship that ruled Ethiopia in the 1970s, engaged in numerous acts of torture and human rights abuses against them when they lived in that country. Negewo oversaw and participated in the torture of opposition political figures in Ethiopia, and then moved to the United States only to work at the same Atlanta hotel as one of his own victims. The court's descriptions of the abuse are chilling, and included whipping a naked woman with a wire for hours and threatening her with death in the presence of several men. The court's award of compensatory and punitive damages in the amount of $1.5 million to the plaintiffs was subsequently affirmed by an appellate court. [See Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996).] Yet during the pendency of his appeal of the civil verdict, the Immigration and Naturalization Service granted Negewo citizenship. This situation is an affront both to the foreign victims of torture who fled here to escape their persecutors, and to the American victims of such torture and their families. As Professor William Aceves of California Western School of Law has noted, this case reveals ``a glaring and troubling limitation in current immigration law and practice. This case is not unique. Other aliens who have committed gross human rights violations have also gained entry into the United States and been granted immigration relief.'' [20 Mich. J. Int'l.L. at 657.] Indeed, another case actually involves American victims. In 1980, four American churchwomen were raped and murdered by the Salvadoran National Guard. Two former Salvadoran government officials who allegedly covered up the murders currently reside in Florida. Unfortunately, criminals who wielded machetes and guns against innocent civilians in countries like Haiti, Chile, Yugoslavia and Rwanda have been able to gain entry to the United States through the same doors that we have opened to deserving refugees. We need to lock that door to human rights abusers who seek a safe haven in the United States. To those human rights abusers who are already here, we should promptly show them the door out. We have unwittingly sheltered the oppressors along with the oppressed for too long. We should not let this situation continue. We waited too long after World War II to focus prosecutorial resources and attention on Nazi war criminals who entered this country on false pretenses, or worse, with the collusion of American intelligence agencies. Thousands of declassified CIA documents were made public last year, as a result of the Nazi War Crimes Disclosure Act that I was proud to help enact in 1998. These documents made clear the extent to which the United States relied upon and helped Nazi war criminals. As Eli M. Rosenbaum, the head of the Justice Department's Office of Special Investigations, noted at the time, ``These files demonstrate that the real winners of the Cold War were Nazi criminals.'' We should not repeat that mistake for other aliens who engaged in human rights abuses before coming to the United States. We need to focus the attention of our law enforcement investigators to prosecute and deport those who have committed atrocities abroad and who now enjoy safe harbor in the United States. When I first introduced this bill, the Rutland Daily Herald in Vermont editorialized that: For the U.S. commitment to human rights to mean anything, U.S. policies must be strong and consistent. It is not enough to denounce war crimes in Bosnia and Kosovo or elsewhere and then wink as the perpetrators of torture and mass murder slip across the border to find a home in America. (October 31, 1999) The Clinton Administration recognized the deficiencies in our laws. One Clinton Administration witness testified in February 2000 that: The Department of Justice supports efforts to enhance our ability to remove individuals who have committed acts of torture abroad. The department also recognizes, however, that our current immigration laws do not provide strong enough bars for human rights abusers. . . . Right now, only three types of human rights abuse could prevent someone from entering or remaining in the United States. The types of prohibited conduct include: (1) genocide; (2) particularly severe violations of religious freedom; and (3) Nazi persecutions. Even these types of conduct are narrowly defined. [Hearing on H.R. 3058, ``Anti-Atrocity Alien Deportation Act,'' before the Subcomm. on Immigration and Claims of the House Comm. On the Judiciary, 106th Cong., 2d Sess., Feb. 17, 2000 (Statement of James E. Costello, Associate Deputy Attorney General).] The Anti-Atrocity Alien Deportation Act would provide a stronger bar to human rights abusers and close loopholes in our current laws. The Immigration and Nationality Act (INA) currently provides that (i) participants in Nazi persecutions during the time period from March 23, 1933 to May 8, 1945, (ii) aliens who engaged in genocide, and (iii) aliens who committed particularly severe violations of religious freedom, are both inadmissable to the United States and removable. [See 8 U.S.C. Sec. 1182(a)(2)(G) & (3)(E) and Sec. 1227(a)(4)(D).] This bill would expand the grounds for inadmissibility and deportation to: (1) add new bars for aliens who have engaged in acts, outside the United States, of ``torture'' and ``extrajudicial killing,'' and (2) remove limitations on the current bases for ``genocide'' and ``particularly severe violations of religious freedom.'' The definitions for the new bases of ``torture'' and ``extrajudicial killing'' are derived from the Torture Victim Protection Act, which implemented the United Nations' ``Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.'' These definitions are therefore already sanctioned by the Congress. The bill incorporates the definition of ``torture'' codified in the federal criminal code, 18 U.S.C. Sec. 2340, which prohibits: an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.'' [18 U.S.C. Sec. 2340(1).] ``Severe mental pain or suffering'' is further defined to mean: prolonged mental harm caused by or resulting from (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality. [18 U.S.C. Sec. 2340(2).] The Torture Victim Protection Act also included a definition for ``extrajudicial killing.'' Specifically, this law establishes civil liability for wrongful death against any person ``who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to extrajudicial killing,'' which is defined to mean ``a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. This term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.'' The bill would not only add the new grounds for inadmissibility and deportation, it would expand two of the current grounds. First, the current bar to aliens who have ``engaged in genocide'' defines that term by reference to the ``genocide'' definition in the Convention on the Prevention and Punishment of the Crime of Genocide. [8 U.S.C. 1182(a)(3)(E)(ii).] For clarity and consistency, the bill would substitute instead the definition in the federal criminal code, 18 U.S.C. Sec. 1091(a), which was adopted pursuant to the U.S. obligations under the Genocide Convention. The bill would also broaden the reach of the provision to apply not only to those who ``engaged in genocide,'' as in current law, but also to cover any alien who has ordered, incited, assisted or otherwise participated in genocide. This broader scope will ensure that the genocide provision addresses a more appropriate range of levels of complicity. Second, the current bar to aliens who have committed ``particularly severe violations of religious freedom,'' as defined in the International Religious Freedom Act of 1998 (IRFA), limits its application to foreign government officials who engaged in such conduct within the last 24 months, and also bars from admission the individual's spouse and children, if any. This bill would delete the reference to prohibited conduct occurring within a 24-month period since this limitation is not consistent with the strong stance of the United States to promote religious freedom throughout the world. As Professor Aceves has written: This provision is unduly restrictive . . . The 24-month time limitation for this prohibition is also unnecessary. A perpetrator of human rights atrocities should not be able to seek absolution by merely waiting two years after the commission of these acts. [William J. Aceves, supra, 20 Mich. J. Int'l L., at 683.] In addition, the bill would remove the current bar to admission for the spouse or children of a violator of religious freedom. This is a serious sanction that should not apply to individuals because of familial relationships that are beyond their control. The purpose of these amendments is to make those who have participated in atrocities accountable for their actions. That purpose is not served by holding the family members of such individuals accountable for the offensive conduct over which they had no control. Under current law, most aliens who are inadmissible may receive a waiver under section 212(d)(3) of the INA to enter the nation as a nonimmigrant, where the Secretary of State recommends it and the Attorney General approves. Participants in Nazi persecutions or genocide, however, are not eligible for such a waiver. Our bill retains that provision. It does not, however, ban waivers for those who commit acts of torture or extrajudicial killings. I would hope that such waivers are used sparingly and only under the most compelling of circumstances. Of course, changing the law to address the problem of human rights abusers seeking entry and remaining in the United States is only part of the solution. We also need effective enforcement. As one expert noted: [s]trong institutional mechanisms must be established to implement this proposed legislation. At present, there does not appear to be any agency within the Department of Justice with the specific mandate of identifying, investigating and prosecuting modern day perpetrators of human rights atrocities. The importance of establishing a separate agency for this function can be seen in the experiences of the Office of Special Investigations. 20 Mich. J. Int'l L., at 689. Our country has long provided the template and moral leadership for dealing with Nazi war criminals. The Justice Department's specialized unit, OSI, which was created to hunt down, prosecute and remove Nazi war criminals who had slipped into the United States among their victims under the Displaced Persons Act, is an example of effective enforcement. Since OSI was created in 1979, more than 60 Nazi persecutors have been stripped of U.S. citizenship, almost 50 such individuals have been removed from the United States, and more than 150 have been denied entry. OSI was created almost 35 years after the end of World War II and it remains authorized only to track Nazi war criminals. Specifically, when Attorney General Civiletti, by a 1979 Attorney General order, established OSI within the Criminal Division of the Department of Justice, that office was directed to conduct all ``investigative and litigation activities involving individuals, who prior to and during World War II, under the supervision of or in association with the Nazi government of Germany, its allies, and other affiliated governments, are alleged to have ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion.'' (Attorney Gen. Order No. 851-79). The OSI's mission continues to be limited by that Attorney General Order. I believe it is time to reward the tremendous work that OSI has done by expanding its mission to ensure effective enforcement against war criminals of all stripes. Little is being done about the new generation of international human rights abusers and war criminals living among us, and these delays are costly. As any prosecutor knows instinctively, such delays make documentary and testimonial evidence more difficult to obtain. Stale cases are the hardest to make. We should not repeat the mistake of waiting decades before tracking down war criminals and human rights abusers who have settled in this country. War criminals should find no sanctuary in loopholes in our current immigration policies and enforcement, and should never come to believe that they will find safe harbor in the United States. The Anti-Atrocity Alien Deportation Act would amend the INA, 8 U.S.C. Sec. 1103, by directing the Attorney General to establish an Office of Special Investigations (OSI) within the Department of Justice with authorization to denaturalize any alien who has participated in Nazi persecution, torture, extrajudicial killing or genocide abroad. Not only would the bill provide statutory authorization for OSI, it would also expand its jurisdiction to deal with any alien who participated in torture, extrajudicial killing and genocide abroad not just Nazis. The success of OSI in hunting Nazi war criminals demonstrates the effectiveness of centralized resources and expertise in these cases. The knowledge of the people, politics and pathologies of particular regimes engaged in genocide and human rights abuses is often necessary for effective prosecutions of these cases and would best be accomplished by the concentrated efforts of a single office, rather than in piecemeal litigation around the country or in offices that have more diverse missions. These are the sound policy and practical reasons that experts in this area recommend that the United States ``establish an office in the Justice Department similar to the one that has tracked Nazi war criminals, with an exclusive mandate to carry out the task of investigation [of suspected human rights abusers].'' [William Schulz, supra, at p. 24.] I appreciate that this part of the legislation has in the past proven controversial within the Department of Justice, but others have concurred in my judgment that the OSI is an appropriate component of the Department to address the new responsibilities proposed in this bill. Professor Aceves, who has studied these matters extensively, has concluded that the OSI's ``methodology for pursuing Nazi war criminals can be applied with equal rigor to other perpetrators of human rights violations. As the number of Nazi war criminals inevitably declines, the OSI can begin to enforce U.S. immigration laws against perpetrators of genocide and other gross violations of human rights.'' 20 Mich. J. Int'l. 657. Unquestionably, the need to bring Nazi war criminals to justice remains a matter of great importance. Funds would not be diverted from the OSI's current mission instead, additional resources are authorized in the bill to cover the costs of the Office's expanded duties. Significantly, the bill further directs the Attorney General, in determining what action to take against a human rights abuser seeking entry into or found within the United States, to consider whether a prosecution should be brought under U.S. law or whether the alien should be deported to a country willing to undertake such a prosecution. Despite ratifying the Convention Against Torture in 1994 and adopting a new law making torture anywhere in the world a crime, federal law enforcement has not used this authority. In fact, one recent observer noted that ``the U.S. has never prosecuted a suspected torturer; nor has it ever extradited one under the Convention Against Torture, although it has surrendered one person to the International Criminal Tribunal for Rwanda.'' [William Schulz, supra, at p. 23 - 24.] As one human rights expert has noted: ``The justifiable outrage felt by many when it is discovered that serious human rights abusers have found their way into the United States may lead well-meaning people to call for their immediate expulsion. Such individuals certainly should not be enjoying the good life America has to offer. But when we ask the question `where should they be?' the answer is clear: they should be in the dock. That is the essence of accountability, and it should be the central goal of any scheme to penalize human rights abusers.'' [Hearing on H.R. 5238, ``Serious Human Rights Abusers Accountability Act,'' before the Subcomm. on Immigration and Claims of the House Comm. On the Judiciary, 106th Cong., 2d Sess., Sept. 28, 2000 (Statement of Elisa Massimino, Director, Washington Office, Lawyers Committee For Human Rights).] Finally, the bill directs the Attorney General to report to the Judiciary Committees of the Senate and House on implementation of the new requirements in the bill, including procedures for referral of matters to the OSI, any revisions made to immigration forms to reflect amendments made by the bill, and the procedures developed, with adequate due process protection, to obtain sufficient evidence and determine whether an alien is deemed inadmissible under the bill. I urge my colleagues in the Senate again to give their approval to this bill, and for the House to help us finally make it law. I ask unanimous consent that the text of the legislation be printed in the Record.

Mr. LEAHY

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

Mr. LEAHY. Mr. President, the budget resolution now provides less funding to our Nation's first responders in the next fiscal year than it does in the current one. My amendment, which is cosponsored by Senators Daschle, Reid, Biden, Schumer, Clinton, and Dayton, will increase the level of direct funding for fiscal year 2004 for first responders by $3 billion to support their efforts to protect homeland security and respond to acts of terrorism. This will bring the total funding for our State and local first responders to at least $6.5 billion for the first fiscal year. When one calls 9-1-1, they get the State and local; they do not get Washington. They need the money. We offset this by reducing tax reductions by $3 billion for taxpayers with annual incomes greater than $300,000, and we provide an additional $3 billion for deficit reduction. I hope we can support our Nation's police officers, firefighters, and emergency personnel by passing this amendment.

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

Mr. LEAHY. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. LEAHY. I thank the distinguished senior Senator from West Virginia.

Mr. LEAHY

Mr. LEAHY. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I salute a key member of the first University of Vermont men's basketball team ever to participate in the NCAA Tournament. Taylor Coppenrath is the Vermont version of Larry Bird, a smalltown boy who found huge success on the basketball court. Taylor's basketball excellence has transformed his hometown, tiny West Barnet, VT, into perhaps, on a per capita basis, our State's most basketball-crazy town, and with good reason. During his career at St. Johnsbury Academy, Taylor did not make the varsity squad until his junior year, but when he finally arrived, his presence was felt. Taylor was named Vermont's 2000 Player of the Year by USA Today and Gatorade, and Mr. Basketball by the Burlington Free Press. When Taylor joined Coach Tom Brennan's University of Vermont Catamounts, he had an immediate impact, and was named the 2002 America East Rookie of the Year, and earned All-America East, second team honors. During this season, he was named the Kevin Roberson America East Player of the Year, an honor appropriately named for one of UVM's all time greatest players. Taylor has attracted national attention, including a mention on ESPN.com's The Radar Screen. An opposing coach, Tim Welsh of Providence College said of Taylor, ``I'm glad we only have to play him once this year.'' Taylor Coppenrath's story is perhaps best told by award-winning writer Sam Hemingway of the Burlington Free Press in his column of Wednesday, March 19. I ask that the column ``Basketball Star Makes West Barnet Proud'' be printed into the Record. The article follows: Basketball star Coppenrath makes W. Barnet proud [From the Burlington Free Press] (By Sam Hemingway) Shortly after 3 p.m. Thursday, the quiet hamlet of West Barnet will grow even quieter. Sharon Roy will put her small, seldom-used black-and-white television on the counter at the West Barnet General Store and see whether she can capture WCAX-TV Channel 3 on the screen. Meg Clayton has a better plan. Her good friends, the Coppenraths, have a satellite dish, and because they''ll be away in Utah, she intends to stop by and ``check on their cat'' for a couple of hours. Over at the Barnet School, the afternoon in-service session for teachers should end in time for the staff to check out the cable television hook-up installed at the school this week. The focus of all this television attention: hometown hero Taylor Coppenrath. The 6-foot, 8-inch forward will be on network television, leading the University of Vermont men's basketball team in its first-ever NCAA appearance, against the University of Arizona. The funny thing is, no one in these parts really saw this day coming five years ago. The funnier thing is that, now that it's happening, no one's that surprised about it. ``He's such a sweetie,'' said Karen Stewart, the principal of Barnet School. ``He was always very mellow, very easy going.'' He still is. Neighbor Liddy Roberts recalled how, last year, Coppenrath and her son, Jimmy, were home on spring break and spent a whole day making an igloo for a youngster in town albeit one big enough for Coppenrath to stand up inside. ``And, of course, he and Jimmy had to go out and cook up some hot dogs inside the igloo afterward,'' she said. Under that unassuming exterior lurks the heart of a lion, however. As a kid, Coppenrath played so hard at recess, some teachers said, the school created the Taylor Coppenrath Rule: If you come in from recess soaked in sweat like he did, make sure you have a set of dry clothes to put on afterward. Name a game, and Coppenrath was ready to play it. Games filled the idle hours for kids in the village, none more so than basketball. The sound of a bouncing basketball often echoed through town from dawn to dusk. Sometimes the games involved Coppenrath and his two best friends, Clayton's son Chris and Roberts' son Jimmy. Other times, it drew in entire families, passers-by, anyone who wanted to play. ``We even had family tournaments,'' said George Coppenrath, Taylor's father. ``You had mothers, fathers, sons, daughters, all bumping and shoving each other out there. It was fun.'' Basketball became such a fixture in West Barnet that six years ago a paved, full-sized basketball court with two backboards and hoops was built smack dab in the middle of the village. Still, the chances of a small-town kid from Vermont making a big splash in Division 1 college basketball are as remote as West Barnet itself, tucked into the hills 15 miles southwest of St. Johnsbury. Coppenrath, who kept growing taller throughout high school, was a late-blooming star. He didn't make the varsity at St. Johnsbury Academy until his junior year, a year after his two West Barnet buddies had made the team. Only as a senior did he finally receive the recognition he deserved: Vermont's Gatorade Player of the Year, The Burlington Free Press' Mr. Basketball and a full scholarship from UVM. This winter he led the Catamounts in scoring and was named the player of the year in the America East basketball conference. How crazy is this town for basketball now? George Coppenrath has taken to making video tapes of UVM games and leaving them at the two stores in town for people to borrow and watch. Tuesday, all of the West Barnet General Store's copies were out on loan.

Mr. LEAHY

Mr. LEAHY. I applaud the Senate for passing S. 205, the Iraqi Scientists Immigration Act. I am a cosponsor of this legislation, along with Senators Biden, Hatch, Lugar, and Specter. When Senator Biden introduced this last year, I worked closely with him, discharging the bill from the Judiciary Committee and encouraging the Senate to pass it. I was pleased when the Senate did so, and disappointed that the House failed to act. This bill could not be more timely. As the United States and United Nations seek to obtain information about Iraq's development of weapons of mass destruction, the scientists who have worked on biological, chemical, and nuclear weapons for Iraq hold critical information. Thus far, however, those scientists have refused to speak privately with U.N. inspectors, instead insisting that Iraqi government representatives be included in interviews. Many have suggested that these scientists fear they will be executed if they provide material assistance to the inspectors. The Iraqi Scientists Immigration Act offers a potential way around this quandary by offering a benefit to those scientists who would like to share what they know about Iraq's weapons development. It provides for the admission to the United States of scientists who want to provide useful information about Iraq's efforts to develop weapons of mass destruction, along with those scientists' families. Eventually, these scientists could become legal permanent residents of the United States. This bill has taken on increased importance since the Homeland Security Act--which has caused severe disruption in the processing of asylum and refugee applications--has taken effect. Many Iraqi scientists would surely be eligible for asylum and/or refugee status. Section 457 of the Homeland Security Act, however, eliminated the surcharges on applicants for immigration benefits, which had been used to fund the processing of asylum and refugee applications, which are generally made by destitute people. This was apparently an oversight in the hasty and secret process by which the Homeland Security Act was written by Congressional Republicans and the administration. This provision has left the asylum and refugee programs in limbo. The Senate-passed omnibus appropriations bill includes language to strike section 457 and restore the status quo, but the prospects for that change will remain unclear until the conference committee has completed its work. This gives us an added incentive to pass the Iraqi Scientists Immigration Act as quickly as possible. I urge the House to take the bill up and pass it without further delay.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I pay tribute to a young Vermonter whose priorities are in the right place. Matt Sheftic is the center for the University of Vermont basketball team, the first Catamounts team to reach the NCAA tournament. Before choosing to play basketball for Coach Tom Brennan, Matt was a standout for the Essex Junction Hornets, leading them to the 1998 Vermont State Championship. He was a first team all-state selection twice, and in 1999 was named Vermont's Mr. Basketball by the Burlington Free Press, and was Vermont's Gatorade Player of the Year. At UVM, he also serves his country as a member of the U.S. Army ROTC program. Aside from his successes on the basketball court, in the classroom, and in the ROTC program, Matt is first and foremost dedicated to his family. When his sister Lauren battled an unexpected serious illness, Matt left the basketball team to help care for her. His priorities speak volumes about him as an outstanding young man, about the closeness of the Sheftic family, and about the wonderful job his parents have done raising him. Matt Sheftic's story is told in an article by Joe Burris in the March 20 edition of the Boston Globe. Today, in honor of Matt Sheftic and his family, and in memory of Lauren Sheftic, I ask that the article ``For Vermont's Sheftic, family came first'' be printed into the Record. The article follows:

Mr. LEAHY

Mr. LEAHY. Mr. President, the cold-blooded assassination of Serbian Prime Minister Zoran Djindjic is a tragedy not only for Serbia, but for the other former Yugoslav republics whose futures are so closely linked. I knew and admired Prime Minister Djindjic from our meetings in Washington, and I want to express my deepest sympathy to his family and to the Serbian people. Zoran Djindjic was a charismatic and courageous leader who recognized that Serbia's best hope, after years of nationalist-inspired ethnic hatred and war destroyed Yugoslavia and caused the deaths of hundreds of thousands of innocent people, was to follow the path of democracy and the rule of law. This was not an easy choice, as it required confronting the forces of corruption and evil which, despite the overthrow of Slobodan Milosevic, have sought to preserve the status quo. It was Prime Minister Djindjic who, at considerable personal risk, obtained Milosevic's arrest, after President Kostunica refused to cooperate with the Hague tribunal. Turning over Milosevic was a key step, but Mr. Djindjic understood that it was only the first step toward a formal break with the failed policies of the past. For the past 3 years, the Congress has provided substantial aid to support economic and political reform in Serbia. However, we have also made clear in legislation and in discussions with Serb officials, that continued cooperation with the Hague prosecutor is essential for continued United States aid to Serbia. There were times in our discussions when Serb officials complained bitterly that the United States and the Hague prosecutor were pressuring them too hard to apprehend and transfer suspected war criminals. In fact, they did so even before the arrest of Milosevic. We responded that while we did not expect them to apprehend all the indictees in Serbia overnight, the United States cannot provide millions of dollars in aid unconditionally to a government that harbors indicted war criminals. Since the arrest of Milosevic, the Serb Government's cooperation with the Hague tribunal has been sporadic. Mr. Djindjic wanted to move faster, while Mr. Kostunica stood in the way. While some indictees have been turned over, 18 remain at liberty and access to witnesses and documents necessary to the prosecution of these cases has been unsatisfactory. Moreover, there has often been no cooperation until just weeks or days before the deadline in U.S. law for the cutoff of aid. I mention this because immediately after Prime Minister Djindjic was gunned down some Serb officials blamed his assassination on the pressure exerted on Serbia by the United States and the war crimes prosecutor. I understand that reaction. It is convenient to blame others rather than to acknowledge the difficult but essential task at hand--to remove from the security forces those Milosevic loyalists involved with and protecting organized crime figures and war crimes suspects. But I believe that had the Serb Government moved faster, and more aggressively--as Prime Minister Djindjic urged for the benefit of the Serbian people and the survival of democracy--to arrest those who made no secret of their efforts to thwart reform, this tragedy might have been avoided. Zoran Djindjic's death has kindled an outpouring of sympathy. Millions of Serbs have taken to the streets to express their support for the policies he fought for. Let us hope that just as millions of Serbs joined together three years ago to oust Milosevic from power, Zoran Djindjic's death will be the catalyst for a renewed and unrelenting effort to destroy the remaining vestiges of the Milosevic era. The United States stands ready to strongly support that effort. There is no alternative, if Serbia is to take its place in today's democratic Europe.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Senate soon will have the opportunity to support an amendment to remove the proposal to increase oil and gas exploration in the Arctic National Wildlife Refuge from the budget reconciliation bill. By tucking away this proposal into the energy section of the reconciliation bill, proponents of this provision would smother the open debate the American public deserves on such a significant and contentious national issue. Just last Friday, on March 14, we celebrated the 100th anniversary of the creation of the Nation's first Federal bird reserve on Pelican Island, the predecessor of today's refuge system. Today we are debating whether to allow further drilling in the fragile arctic environment, for reasons that do not add up to justify such a step. Consider how far we have come since President Theodore Roosevelt had the vision to set aside the 5-acre Pelican Island--a small thicket of mangroves off the east coast of Florida--to a system that today totals more than 95 million acres consisting of 540 national wildlife refuges, thousands of small wetlands, and other special management areas. The National Wildlife Refuge System hosts 35,000,000 visitors annually, with the help of 30,000 volunteers. It is home to wildlife of almost every variety in every State of the Union, and some part or parts of the system are within an hour's drive of almost every major city. It would be unwise to sanction the degradation of one of the crown jewels of our refuge system--the Arctic National Wildlife Refuge. The administration argues that allowing an increase in drilling in the Arctic National Wildlife Refuge would be an integral part of alleviating the Nation's dependence on foreign oil. In reality, drilling in the Arctic Refuge would only provide the equivalent of what the United States consumes in 6 months. Nor would this provision amount to any increase in oil production for at least a decade, or truly enhance our energy security, or lower prices for consumers, or create a significant number of new long-term jobs. Furthermore, 95 percent of the potential oil reserves of Alaska's North Slope are already designated for potential leasing or open to exploration and drilling. The last 5 percent--the Coastal Plain of the Arctic Refuge--is the only wild stretch of the coast of Alaska's North Slope that remains off limits. What are the tradeoffs? According to a recent National Academy of Sciences, NAS, report issued just last month, the impacts of current activity already adversely impacted numerous wildlife species in the Arctic Refuge. The NAS documented displacement to the fall migration patterns of bowhead whales due to noise associated from seismic exploration and cited an increased number of predators which adversely affects the reproduction rates in migratory and resident birds, as well as the migration pattern and reproduction rates of one of the greatest caribou herds in North America. The NAS study concluded that expanding oil and gas exploration into the surrounding refuge lands would result in further degradation of soils, vegetation, and aquatic systems in this fragile environment. Protecting this refuge is our obligation as stewards of this land. As President Theodore Roosevelt, the creator of the refuge system, said: ``wild beasts and birds are by right not the property merely of the people who are alive today, but the property of unknown generations, whose belongings we have no right to squander.'' Sanctioning these incursions not only would damage the environment today, but it would take away those tangible and inherent values the refuge will provide to future generations--our children and grandchildren. Last Thursday, March 13, the Senate unanimously approved a resolution marking the Centennial Anniversary of the National Wildlife Refuge System. This week, we have the opportunity to follow that symbolism with a more tangible step in defense of our refuge system, by voting to remove the rider on ANWR oil and gas exploration from the budget reconciliation bill.

Mr. LEAHY

Mr. LEAHY. Mr. President, today marks the 40th anniversary of the Supreme Court's Gideon v. Wainwright decision, which held that all people facing serious criminal charges are entitled to a lawyer, whether they can afford one or not. The anniversary of this watershed moment in American law should be a cause for celebration. Sadly it is not. Forty years after the Supreme Court ruled that a fair trial requires the right to counsel, people in courtrooms across the country are represented by attorneys who do not have the time, training, or tools to do their jobs. The unfortunate fact is that in some parts of the country, it is better to be rich and guilty than poor and innocent, because the rich will get their competent counsel, but those who are not rich often find their lives placed in the hands of underpaid court- appointed lawyers who are inexperienced, inept, uninterested, or worse. Just 2 years ago, the Department of Justice declared that public defense in the United States is in a ``chronic state of crisis.'' Around the country there are alarming statistics about the many flaws that continue to plague the criminal justice system. For example, according to the National Legal Aid and Defender Association: In Wisconsin, more than 11,000 people go unrepresented annually because anyone with an annual income of more than $3,000 is deemed able to afford a lawyer. In Bucks County, PA, the public defender office handled 4,173 cases in 1980. In 2000, with the same number of attorneys, the office handled an estimated 8,000 cases. In Lake Charles, LA, the public defender office has only two investigators for the 2,550 new felony cases and 4,000 new misdemeanor cases assigned to the office each year. Indigent clients in Lake Charles typically meet their public defender for the first time an average of 281 days--more than 9 months--after their arrest. In Virginia, a juvenile charged with a felony who cannot afford a lawyer gets an attorney who is paid for the equivalent of only 90 minutes of work because of the $112 per-case fee cap. The crisis in public defense is not limited to misdemeanor and minor felony cases. I have spoken many times over the past 3 years about the shameful but all too common spectacle of underpaid, underfunded, and incompetent counsel in capital cases. When people in this country are put on trial for their lives, they deserve to be defended by lawyers who meet reasonable standards of competence, and who have sufficient resources to investigate the facts and prepare thoroughly for trial. As citizens, we expect that of our prosecutors. We ought to expect the same thing of our defense attorneys. Yet in these most important cases, where life or death hangs in the balance, defendants have been represented by sleeping lawyers, drunk lawyers, lawyers under the influence of drugs, lawyers who do not meet or even speak with their client until the eve of trial, and lawyers who refer to their own client with racial slurs. Part of the problem, I think, lies with some State court judges who do not appear to expect much of anything from criminal defense attorneys, even when they are representing people who are on trial for their lives. Good judges, like good prosecutors, want competent lawyering for both sides. But some judges run for reelection touting the number and speed of death sentences they have handed down. For them, the adversarial system is a hindrance. The problem of low standards is not confined to elected state judges. Last year, the U.S. Supreme Court held that it was OK for the defendant in a capital murder trial to be represented by the same lawyer who represented the murder victim. Two years ago, a Federal appeals court struggled with the question whether a defense lawyer who slept through most of his client's capital murder trial provided effective assistance of counsel. Fortunately, a majority of the court eventually came to the sensible conclusion that ``unconscious counsel equates to no counsel at all.'' If Gideon is to have any meaning in the 21st century, the courts must start demanding more of defense lawyers than that they simply show up for the trial and remain awake. At the same time, the people's representatives in the State legislatures and here in Congress must also do their part. For 3 years, I have been working with colleagues on both sides of the aisle to pass the Innocence Protection Act, a basic, commonsense package of criminal justice reforms. This bill would help make good on Gideon's promise of equal justice in the small but consequential set of cases in which the accused faces a possible death sentence. More specifically, the bill would help States create the systems and pay the price for qualified attorneys in capital cases. Last year, the Innocence Protection Act won the support of a bipartisan majority of the Senate Judiciary Committee, and more than half the entire House of Representatives. This year, my cosponsors and I are committed to getting the bill signed into law. The anniversary of Gideon is a time to reflect on how far we have come, and how far we have to go, in ensuring equal justice for all Americans. The United States must do better to protect the rights of its citizens and provide qualified defense counsel to the poor and disadvantaged. It should not take another 40 years to deliver on this basic constitutional guarantee.

Mr. LEAHY

Mr. LEAHY. Mr. President, for the past few days my friends and fellow Senators have repeatedly been asking me one question: What in the world is a catamount? Today I am delighted to answer that question by explaining what a catamount is, what it takes to be a catamount and why it is so fitting that the University of Vermont chose the catamount as its mascot. On Saturday, March 15, the 2003 University of Vermont men's basketball team defined ``catamount'' for college basketball fans throughout the great State of Vermont and the Nation. These determined young men, from four different countries and nine states, including Vermont, took victory Saturday afternoon against No. 1-seeded Boston University in a close 56-to-55 game, becoming the 2003 American East Conference Men's Basketball Champions and earning themselves a chance to play in the national championship tournament--the ``big dance,'' March Madness--the 2003 NCAA Division I Men's Basketball Championship Tournament. This is the first time the UVM men's basketball team has taken the title and made it to the national tournament in the program's 103-year history. It is only appropriate that the catamount, a type of cougar known for its athletic ability, including its speed and its ability to jump, is the emblem of these hard-working and talented young men. The catamount was once thought to be extinct from the Green Mountains of Vermont. Like the division title for men's basketball, it had not been seen in Vermont for more than 100 years. But within the last decade, the people of Vermont have started seeing the mountain cat in our beautiful mountains. And it was only a little over a decade ago that the fans of UVM basketball saw the UVM Catamounts come within one game of the division title. One of my former staffers, Bill Bright, played on the team from 1987 to 1991 and was at that game on March 10, 1990. But the title eluded Vermont and Bill Bright. Last Saturday, the UVM squad proved that catamounts do exist. Their dramatic victory came on a last-second shot by sophomore David Hehn at Boston University's Case Gymnasium. The Burlington Free Press quoted David Hehn after the game as saying: ``For all the guys in this room, this is our dream.'' Vermont was the only team in the Nation this year to win a conference title on their opponent's home court. Members of my staff, including a senior counsel on the Senate Judiciary Committee and a member of the Catamount's 1981 through 1985 squads, Ed Pagano, gathered last weekend to watch the game on ESPN, and you can be sure we will be watching again Thursday as they play their first game in the NCAA tournament. Many Vermonters, including my good friend Mary Anne Gucciardi--known by many on the UVM squad as Momma Gucc--will be clearing their schedules Thursday to watch history in the making in the first round of the tournament. Coach Tom Brennan, who is in his 17th season with UVM, led these young men to victory. I have had many conversations with Coach Brennan, both personal and professional. He is the co-host of a popular radio show in Vermont. In a Burlington Free Press interview he said, ``I just kept believing this day would come, I have been treated so wonderfully at Vermont. . . . To be able to give that back and say `Here, this is for you' it's the most incredible feeling that I've had in a long, long time.'' I find it fitting that the two Vermonters on this year's team were so instrumental in the team's championship run. Sophomore Taylor Coppenrath of West Barnet was given the Reggie Lewis Award for being the America East Player of the Year, and junior Matt Sheftic of Essex Junction won the Kevin Roberson Most Valuable Player Award for his exceptional performance in the America East Tournament. The conference title means the University of Vermont has secured its first-ever berth in the NCAA Tournament in the competition's 64-year history or, as the Free Press called it, UVM's ``First Dance.'' On Thursday, March 20, they will travel to the University of Utah in Salt Lake City to face the University of Arizona Wildcats. The Wildcats are this year's Pac-10 regular-season champion, and this will be their 19th consecutive NCAA Tournament appearance. Like Ethan Allen and the Green Mountain Boys fighting for our freedom, the Catamounts know the Wildcats are well-groomed for the match, but they are determined to play their best against the goliath Wildcats. I called Coach Brennan and the team to wish them luck before Saturday's game and again Sunday as they found out who they would be facing in the tournament. The team is excited and energized for their trip to Utah and to face one of the Nation''s top-ranked teams. Coach Brennan says, ``We're going to do the very best we can, we're going to enjoy it.'' I would like to add that the entire State of Vermont is going to enjoy it. And I would like to thank Coach Brennan, the Athletic Department at UVM, our student-athletes and their families for giving so much to the State and to the fans of Catamount Basketball.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise to introduce, with my good friends Senator Hatch, Senator Mikulski and Senator Durbin, the Federal Prosecutors' Retirement Benefit Equity Act of 2003. This bill would correct an inequity that exists under current law, whereby Federal prosecutors receive substantially less favorable retirement benefits than other nearly all other people involved in the Federal criminal justice system. The bill would increase the retirement benefits given to Assistant United States Attorneys by including them as ``law enforcement officers'', LEOs, under the Federal Employees' Retirement System and the Civil Service Retirement System. The bill would also allow the Attorney General to designate other attorneys employed by the Department of Justice who act primarily as criminal prosecutors as LEO's for purposes of receiving these retirement benefits. The primary reason for granting enhanced retirement benefits to LEOs is the often dangerous work of law enforcement. Currently, Assistant United States Attorneys, AUSAs, and other Federal prosecutors are not eligible for these enhanced benefits, which are enjoyed by the vast majority of other employees in the criminal justice system. This exclusion is unjustified. The relevant provisions of the United States Code dealing with retirement benefits define an LEO as an employee whose duties are, ``primarily the investigation, apprehension, or detention'' of individuals suspected or convicted of violating federal law. See 5 U.S.C. Sec. Sec. 8331(20) & 8401(17). AUSAs and other federal prosecutors participate in planning investigations, interviewing witnesses both inside and outside of the office setting, debriefing defendants, obtaining warrants, negotiating plea agreements and representing the government at trials and sentencings, all of which fall within the definition of the duties performed by law enforcement officers. Indeed, once a defendant is brought to into the criminal justice system, the person with whom they have the most face-to-face contact, and often in an extremely confrontational environment, is the Federal prosecutor. Although prosecutors do not personally execute arrests, searches and other physically dangerous activities, LEO status is accorded to many criminal justice employees who do not perform such tasks, such as pretrial services officers and probation officers and accountants, cooks and secretaries of the Bureau of Prisons. Moreover, because they are often the most conspicuous representatives of the government in the criminal justice system, Federal prosecutors are natural targets for threats of reprisals by vengeful criminals. Indeed, there are numerous incidents in which assaults and serious death threats have been made against federal prosecutors, sometimes resulting in significant disruption of their personal and family lives. Only recently a veteran Federal prosecutor in the Western District of Washington was murdered in his home, and, although the crime remains unsolved, based upon the facts of the case the authorities have referred to the crime as a hit. In addition, I have received many other accounts from Federal prosecutors regarding specific threats to which they and their families have been subjected because of the performance of their duties. Federal prosecutors have written to me that they have been forced to relocate themselves and their families due to death threats; that they have been assaulted; that they and their families have been followed by members of criminal organizations; that have been forced to install security systems at their homes and to change their routes to and from the office to protect their safety and the safety of their families. As our fight against terrorism continues, Federal prosecutors arel on the front lines once again as the symbols of our criminal justice system, and unfortunately therefore the targets of those who seek its downfall. Among other tasks, the Attorney General has designated AUSA's to play a major role working with police and Federal agents in each judicial district's Anti-Terrorism Task Force. One Federal prosecutor wrote to me stating that shortly after his name was in the local news as heading his district's Anti-Terrorism Task Force and he had spoken to his family about taking suitable precautions, that his young son came into his bedroom one night holding a hockey stick for protection asking about their safety. Thus, Federal prosecutors and their families will deal more than ever with a level of stress and danger that justifies their being treated as LEOs. Another example of the danger facing Federal prosecutors appeared in the USA Today earlier this month. That article, which I ask unanimous consent to make part of the Congressional Record, reports that United States Attorney's will also be asked to play an advisory role in potential hostilities with Iraq. If there was ever an illustration of the importance of granting Federal prosecutors equal retirement status as their other law enforcement partners, this is it. Enhanced retirement benefits are also justified by the Federal Government's need for experienced prosecutors to bring ever more sophisticated cases under increasingly complex Federal criminal laws. In recent years, we have seen the growth of complex Federal prosecutions to combat the threats posed by organized crime, drug cartels, terrorist groups and other sophisticated criminals. The prosecution of such difficult cases is best handled by experienced prosecutors. It is therefore in the public interest to provide reasonable financial incentives for talented, experienced prosecutors to remain in government service. This bill would make Assistant United States Attorneys and other Federal prosecutors designated by the Attorney General eligible for immediate, unreduced retirement benefits at age 50 with 20 years of service. For example, prosecutors who are covered by the Civil Service Retirement System would receive 50 percent of the average of their three highest years' salary. At the same time, it would exempt prosecutors from the mandatory retirement provisions that require other law enforcement officers to retire at age 57. Because the loss of physical strength and agility does not adversely affect a person's ability to function as a prosecutor, there is no reason to mandate early retirement. Two important features of this bill will contain its costs. First, the bill provides that incumbent Federal prosecutors are themselves responsible for making up the difference in individual contributions owed to the Civil Service Retirement and Disability Fund for their prior service. An incumbent has the choice of making up this difference either by making a payment up front or by accepting a reduction in retirement benefits. Second, government contributions for the prior service of incumbents are made ratably over a ten-year period under this bill. Thus, payments for prior government contributions are spread out to lessen the financial impact. These two provisions will insure that the cost of the bill is kept well within reason. This bill enjoys broad, grass roots support. When Senator Hatch and I introduced this same bill in the last Congress, I received literally hundreds of letters supporting this bill, sent from over 40 states, District of Columbia and Puerto Rico. The bill also enjoys support in the law enforcement community. The National Association of Assistant United States Attorneys, the Federal Criminal Investigators Association, and the Southern States Police Benevolent Association have all wrote me to voice support for the inclusion of AUSAs in the definition of an LEO. I tried, with Senator Hatch, to include this measure in our Department of Justice Authorization legislation in the last Congress, but the House would not agree to its inclusion in the conference report. I hope that we can work together in both houses to enact the bill in this Congress. In addition, I know that other Senators, including Senator Mikulski, are considering additional measures to expand these same retirement benefits to other Federal employees who perform law enforcement functions, including IRS employees whose primary duty is to collect delinquent taxes. I cosponsored such a measure in the last Congress, and I continue to support and commend her leadership in bringing these matters to the forefront. For all of these reasons, I am pleased to introduce this legislation with Senators Hatch, Mikulski and Durbin, and I urge its swift enactment into law. I ask unanimous consent that the text of the bill be printed in the Record along with the sectional analysis and the newspaper article to which I referred.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise to introduce, with my good friends Senator Hatch, Senator Mikulski and Senator Durbin, the Federal Prosecutors' Retirement Benefit Equity Act of 2003. This bill would correct an inequity that exists under current law, whereby Federal prosecutors receive substantially less favorable retirement benefits than other nearly all other people involved in the Federal criminal justice system. The bill would increase the retirement benefits given to Assistant United States Attorneys by including them as ``law enforcement officers'', LEOs, under the Federal Employees' Retirement System and the Civil Service Retirement System. The bill would also allow the Attorney General to designate other attorneys employed by the Department of Justice who act primarily as criminal prosecutors as LEO's for purposes of receiving these retirement benefits. The primary reason for granting enhanced retirement benefits to LEOs is the often dangerous work of law enforcement. Currently, Assistant United States Attorneys, AUSAs, and other Federal prosecutors are not eligible for these enhanced benefits, which are enjoyed by the vast majority of other employees in the criminal justice system. This exclusion is unjustified. The relevant provisions of the United States Code dealing with retirement benefits define an LEO as an employee whose duties are, ``primarily the investigation, apprehension, or detention'' of individuals suspected or convicted of violating federal law. See 5 U.S.C. Sec. Sec. 8331(20) & 8401(17). AUSAs and other federal prosecutors participate in planning investigations, interviewing witnesses both inside and outside of the office setting, debriefing defendants, obtaining warrants, negotiating plea agreements and representing the government at trials and sentencings, all of which fall within the definition of the duties performed by law enforcement officers. Indeed, once a defendant is brought to into the criminal justice system, the person with whom they have the most face-to-face contact, and often in an extremely confrontational environment, is the Federal prosecutor. Although prosecutors do not personally execute arrests, searches and other physically dangerous activities, LEO status is accorded to many criminal justice employees who do not perform such tasks, such as pretrial services officers and probation officers and accountants, cooks and secretaries of the Bureau of Prisons. Moreover, because they are often the most conspicuous representatives of the government in the criminal justice system, Federal prosecutors are natural targets for threats of reprisals by vengeful criminals. Indeed, there are numerous incidents in which assaults and serious death threats have been made against federal prosecutors, sometimes resulting in significant disruption of their personal and family lives. Only recently a veteran Federal prosecutor in the Western District of Washington was murdered in his home, and, although the crime remains unsolved, based upon the facts of the case the authorities have referred to the crime as a hit. In addition, I have received many other accounts from Federal prosecutors regarding specific threats to which they and their families have been subjected because of the performance of their duties. Federal prosecutors have written to me that they have been forced to relocate themselves and their families due to death threats; that they have been assaulted; that they and their families have been followed by members of criminal organizations; that have been forced to install security systems at their homes and to change their routes to and from the office to protect their safety and the safety of their families. As our fight against terrorism continues, Federal prosecutors arel on the front lines once again as the symbols of our criminal justice system, and unfortunately therefore the targets of those who seek its downfall. Among other tasks, the Attorney General has designated AUSA's to play a major role working with police and Federal agents in each judicial district's Anti-Terrorism Task Force. One Federal prosecutor wrote to me stating that shortly after his name was in the local news as heading his district's Anti-Terrorism Task Force and he had spoken to his family about taking suitable precautions, that his young son came into his bedroom one night holding a hockey stick for protection asking about their safety. Thus, Federal prosecutors and their families will deal more than ever with a level of stress and danger that justifies their being treated as LEOs. Another example of the danger facing Federal prosecutors appeared in the USA Today earlier this month. That article, which I ask unanimous consent to make part of the Congressional Record, reports that United States Attorney's will also be asked to play an advisory role in potential hostilities with Iraq. If there was ever an illustration of the importance of granting Federal prosecutors equal retirement status as their other law enforcement partners, this is it. Enhanced retirement benefits are also justified by the Federal Government's need for experienced prosecutors to bring ever more sophisticated cases under increasingly complex Federal criminal laws. In recent years, we have seen the growth of complex Federal prosecutions to combat the threats posed by organized crime, drug cartels, terrorist groups and other sophisticated criminals. The prosecution of such difficult cases is best handled by experienced prosecutors. It is therefore in the public interest to provide reasonable financial incentives for talented, experienced prosecutors to remain in government service. This bill would make Assistant United States Attorneys and other Federal prosecutors designated by the Attorney General eligible for immediate, unreduced retirement benefits at age 50 with 20 years of service. For example, prosecutors who are covered by the Civil Service Retirement System would receive 50 percent of the average of their three highest years' salary. At the same time, it would exempt prosecutors from the mandatory retirement provisions that require other law enforcement officers to retire at age 57. Because the loss of physical strength and agility does not adversely affect a person's ability to function as a prosecutor, there is no reason to mandate early retirement. Two important features of this bill will contain its costs. First, the bill provides that incumbent Federal prosecutors are themselves responsible for making up the difference in individual contributions owed to the Civil Service Retirement and Disability Fund for their prior service. An incumbent has the choice of making up this difference either by making a payment up front or by accepting a reduction in retirement benefits. Second, government contributions for the prior service of incumbents are made ratably over a ten-year period under this bill. Thus, payments for prior government contributions are spread out to lessen the financial impact. These two provisions will insure that the cost of the bill is kept well within reason. This bill enjoys broad, grass roots support. When Senator Hatch and I introduced this same bill in the last Congress, I received literally hundreds of letters supporting this bill, sent from over 40 states, District of Columbia and Puerto Rico. The bill also enjoys support in the law enforcement community. The National Association of Assistant United States Attorneys, the Federal Criminal Investigators Association, and the Southern States Police Benevolent Association have all wrote me to voice support for the inclusion of AUSAs in the definition of an LEO. I tried, with Senator Hatch, to include this measure in our Department of Justice Authorization legislation in the last Congress, but the House would not agree to its inclusion in the conference report. I hope that we can work together in both houses to enact the bill in this Congress. In addition, I know that other Senators, including Senator Mikulski, are considering additional measures to expand these same retirement benefits to other Federal employees who perform law enforcement functions, including IRS employees whose primary duty is to collect delinquent taxes. I cosponsored such a measure in the last Congress, and I continue to support and commend her leadership in bringing these matters to the forefront. For all of these reasons, I am pleased to introduce this legislation with Senators Hatch, Mikulski and Durbin, and I urge its swift enactment into law. I ask unanimous consent that the text of the bill be printed in the Record along with the sectional analysis and the newspaper article to which I referred.

Mr. LEAHY

Mr. LEAHY. Mr. President, this is not a day, in my view, when the Senate majority should be pressing forward on this divisive matter. Nor has anything changed since last Thursday or since March 6 when the Republican majority scheduled two earlier cloture votes on this nomination. The administration's obstinacy continues to impede progress to resolve this standoff. The administration remains intent on packing the federal circuit courts and on insisting that the Senate rubber stamp its nominees without fulfilling the Senate's constitutional advise and consent role in this most important process. The White House could have long ago helped solve the impasse on the Estrada nomination by honoring the Senate's role in the appointment process and providing the Senate with access to Mr. Estrada's legal work. Past administrations have provided such legal memoranda in connection with the nominations of Robert Bork, William Rehnquist, Brad Reynolds, Stephen Trott and Ben Civiletti, and even this Administration did so with a nominee to the Environmental Protection Agency. We have the statement of Attorney General Robert H. Jackson, who later became one of our finest Supreme Court Justices, when he wrote an Attorney General Opinion in 1941 acknowledging that among the occasions when exceptions should be made and executive Department files would be produced to the Congress would be confirmations. As Attorney General Jackson noted: Of course, where the public interest has seemed to justify it, information as to particular situations has been supplied to congressional committees by me and by former Attorneys General. For example, I have taken the position that committees called upon to pass on the confirmation of persons recommended for appointment by the Attorney General would be afforded confidential access to any information that we have--because no candidate's name is submitted without his knowledge and the Department does not intend to submit the name of any person whose entire history will not stand light. Senator Durbin noted last week that the administration has poorly served this nominee and given Mr. Estrada very bad advice. I agree. The Bush administration claimed that no administration had ever provided materials like Mr. Estrada's work papers in connection with a nomination. We have now demonstrated over and over that precedents exist going back over the last 20 years. Today, I would like to mention additional examples of similar materials that were provided to Congress. On February 1, 1982, the Senate Finance Committee held a hearing to consider legislation to deny Federal tax-exempt status to private schools practicing racial discrimination, after the Reagan administration decided to reverse a long-standing policy and grant exemptions to segregationist schools. A number of Justice Department memoranda, as well as communications between high-level officials, were turned over by the Reagan administration to the Senate Finance Committee in connection with the hearing, just months after the documents were first written. The issues at that hearing reveal that some of the documents turned over were much more sensitive than those requested of Mr. Estrada, but they were still provided to Congress by the Reagan administration. After a long and intense debate in the Reagan Justice Department and among high-level Justice and Treasury Department officials and White House counsel, on January 8, 1982, the Reagan Justice Department announced that it would discontinue the IRS's long-standing policy of denying tax-exempt status to racially discriminatory private schools. The Justice Department also changed its position in the Bob Jones case before the Supreme Court, abandoning its defense of the policy that prohibited tax exemptions for discriminatory schools. One of President Bush's current circuit court nominees, Carolyn Kuhl, was an aide to Attorney General William French Smith at the time and participated in urging reversal of the policy. After the Justice Department decision was announced, more than 200 lawyers and others in the Justice Department's civil rights division sent a letter to William Bradford Reynolds, who then headed the civil rights division, expressing ``serious concerns'' about the Reagan administration's decision that racially discriminatory private schools are entitled to tax exemptions. And they questioned the division's commitment to vigorously enforce the Nation's civil rights laws. In response to such protests, President Reagan proposed legislation to make it illegal to grant tax exemptions to schools that discriminate on racial grounds. The Senate Committee on Finance, and the House Committee on Ways and Means, scheduled public hearings on the Federal Government's policy regarding the effect of racial discrimination on the tax-exempt status of private schools. The Senate Finance Committee held its hearing on February 1, 1982. In connection with this hearing, the committee requested high-level Justice Department memoranda, correspondence, deliberations, and other documents related to the reversal of the administration's position. The documents turned over to the Senate Finance Committee included: Letters from Representative Trent Lott to Secretary Regan, IRS Commissioner Egger, and Solicitor General Lee, urging change in the administration's position on Bob Jones; memorandum from Associate Deputy Attorney General Bruce Fein to Deputy Attorney General Edward Schmults, advising Schmults on private schools; memorandum from Carolyn Kuhl, Special Assistant to the Attorney General, to Ken Starr, noting Reagan/Bush campaign statements on private schools; memorandum from Peter Wallison, Treasury General Counsel, to Secretary Regan briefing him on meeting with Representative Lott; memorandum from Treasury General Counsel Wallison to Deputy Secretary McNamar and Secretary Regan on Government's position in Bob Jones case; memorandum from Civil Rights Division Head, William Bradford Reynolds, to Attorney General Smith justifying changes in Administration's position on Bob Jones; memorandum from Treasury Assistant Secretary for Public Affairs, Ann McLaughlin, to Deputy Secretary McNamar on ``press strategy'' for releasing Bob Jones decision; memorandum from IRS Chief Counsel Gideon to Treasury Deputy General Counsel Government's statement in Bob Jones; letter from IRS Chief Counsel Gideon to Civil Rights Division Head Reynolds on formulation of Government's statement in Bob Jones; and memorandum from Assistant Attorney General Theodore Olson from the Office of Legal Counsel to Attorney General Smith and Deputy Attorney General Schmults responding to the analysis in Reynolds' memo on Bob Jones. Clearly, in 1982, the Republican administration at that time released to the Senate documents that included internal memoranda among high- level Justice Department officials, inter-agency communications, and documents relating to the government's position in an important Supreme Court case. They also included letters to the Solicitor General. Moreover, the Reagan administration turned over these documents within months after being written, and no harm was done to the workings of the Justice Department or the administration. The Bush administration is claiming that it is unprecedented to turn over such documents--and that the release of documents written by Mr. Estrada 6 to 10 years earlier would irreparably harm the government. I urge the administration and Republican Senators to consider this additional precedent. Certainly legislation is different from a nomination. While both are matters for the Senate, legislation is different in that it can be amended or revised. A nomination is a lifetime appointment. In 2001, this White House agreed to give access to memoranda written by Jeffrey Holmstead, nominated to be an Assistant Administrator of the Environmental Protection Agency. The Senate Committee on Environment and Public Works requested memoranda from Holmstead's years of service in the White House counsel's office under former President Bush. In particular, the committee was interested in materials related to Holmstead's handling of an amendment to the Clean Air Act and other environmental issues. In the summer of 2001, the Bush administration resolved an impasse with the committee over the nomination by permitting committee staffers to review memoranda that Holmstead wrote while in the White House counsel's office. In sum, the administration allowed access to documents from the White House counsel's office--a more sensitive post than the one Mr. Estrada held when he was in the Department of Justice. In another situation, in 2001, this White House allowed Senator Lieberman and the Senate Government Affairs Committee access to documents regarding environmental rulemaking, although I would note that such access was allowed only after Senator Lieberman threatened to subpoena the information. Faced with this threat, the Bush Administration worked to reach an accommodation, and allowed access to documents, including documents that the administration characterized as ``high-level deliberative documents,'' as part of an oversight investigation of the Bush administration's regulatory rollbacks. So, despite this administration's continued insistence on confidentiality, it has turned over, allowed access or worked to reach an accommodation on access to documents similar to those requested in connection with the Estrada nomination in other cases and for other committees. And, again, in the instance of the Estrada nomination, the matter before the Senate concerns a lifetime appointment to the second- highest court in the land. Last Thursday, the former Republican leader accepted ``part of the blame'' for how the Senate has come to consider judicial nominations. I appreciate that because it is one of the few times a Republican Senator has accepted responsibility for what happened during the years in which the Republican majority in the Senate blocked and delayed so many of President Clinton's judicial nominees. The Senator from Mississippi also acknowledged that ``you filibuster a lot of different ways.'' I thank the Senator from Mississippi for trying to be constructive and for suggesting that ``something can be worked out'' on the request for Mr. Estrada's work papers from the Department of Justice. In yesterday's edition of The Weekly Standard, a report suggests that other Senate Republicans, ``several veteran GOP Senate staffers'' and ``a top GOP leadership aide'' asked the White House to show some flexibility and to share the legal memoranda with the Senate to resolve this matter, but they were rebuffed. It is regrettable that the White House will not listen to reason from Senate Democrats or Senate Republicans. If they had, there would be no need for this cloture vote. The White House is less interested in making progress on the Estrada nomination than in trying to score political points and to divide the Hispanic community. The real ``double standard'' here is that the President selected Mr. Estrada based in large part on his work for 4\1/2\ years in the Solicitor General's Office as well as for his ideological views, but the administration says that the Senate may not examine his written work from the office that would shed the most light on his views. The White House says that the Senate should not consider the very ideology the White House took into account in selecting a 41-year-old for a lifetime seat on the country's second-highest court. Another double standard at work here is that this is a nominee who is well known for having very passionate views about judicial decisions and legal policy and is well known for being outspoken, and yet he has refused to share his views with the very people charged with evaluating his nomination. It seems to be a perversion of the constitutional process to require the Senate to stumble in the dark about his views, when he shares his views quite freely with others and when this Administration has selected him for the privilege of this high office, and for life, based on those views. One of the most disconcerting aspects of the manner in which the Senate is approaching these divisive judicial nominations is what appears to be the Republican majority's willingness to sacrifice the constitutional authority of the Senate as a check on the power of the President in the area of lifetime appointments to our federal courts. It should concern all of us and the American people that the Republican majority's efforts to re-write Senate history in order to rubber stamp this White House's Federal judicial nominees will cause long-term damage to this institution, to our courts, to our constitutional form of government, to the rights and protections of the American people and to generations to come. The White House is using ideology to select its judicial nominees but is trying to prevent the Senate from knowing the ideology of these nominees when it evaluates them. It was not so long ago when then- Senator Ashcroft was chairing a series of Judiciary Committee hearings at which Edwin Meese III testified: I think that very extensive investigations of each nominee--and I don't worry about the delay that this might cause because, remember, those judges are going to be on the bench for their professional lifetime, so they have got plenty of time ahead once they are confirmed, and there is very little opportunity to pull them out of those benches once they have been confirmed--I think a careful investigation of the background of each judge, including their writings, if they have previously been judges or in public positions, the actions that they have taken, the decisions that they have written, so that we can to the extent possible eliminate people eliminate persons who would turn out to be activist judges from being confirmed. Timothy E. Flanigan, an official from the administration of the President's father, and who more recently served as Deputy White House Counsel, helping the current President select his judicial nominees, testified strongly in favor of ``the need for the Judiciary Committee and the full Senate to be extraordinarily diligent in examining the judicial philosophy of potential nominees.'' He continued: In evaluating judicial nominees, the Senate has often been stymied by its inability to obtain evidence of a nominee's judicial philosophy. In the absence of such evidence, the Senate has often confirmed a nominee on the theory that it could find no fault with the nominee. I would reverse the presumption and place the burden squarely on the shoulders of the judicial nominee to prove that he or she has a well-thought-out judicial philosophy, one that recognizes the limited role for Federal judges. Such a burden is appropriately borne by one seeking life tenure to wield the awesome judicial power of the United States. Now that the occupant of the White House no longer is a popularly elected Democrat but a Republican, these principles seem no longer to have any support within the White House or the Senate Republican majority. Fortunately, our constitutional principles and our Senate traditions, practices and governing rules do not change with the political party that occupies the White House or with a shift in majority in the Senate. The White House, in conjunction with the new Republican majority in the Senate, is purposeful in choosing these battles over judicial nominations. Dividing rather than uniting has become their modus operandi. The decision by the Republican Senate majority to focus on controversial nominations says much about their mistaken priorities. The Republican majority sets the agenda and they schedule the debate, just as they have again here today. I have served in the Senate for 29 years, and until recently I have never seen such stridency on the part of an administration or such willingness on the part of a Senate majority to cast aside tradition and upset the balances embedded in our Constitution, in order to expand presidential power. What I find unprecedented are the excesses that the Republican majority and this White House are willing to indulge to override the constitutional division of power over appointments and longstanding Senate practices and history. It strikes me that some Republicans seem to think that they are writing on a blank slate and that they have been given a blank check to pack the courts. They show a disturbing penchant for reading the Constitution to suit their purposes of the moment rather than as it has functioned for more than 200 years to protect all Americans through its checks and balances. The Democratic leader pointed the way out of this impasse again in his letter to the President on February 11. It is regrettable that the President did not respond to that reasonable effort to resolve this matter. Indeed, the letter he sent last week to Senator Frist was not a response to Senator Daschle's reasonable and realistic approach, but a further effort to minimize the Senate's role in this process by proposing radical changes in Senate rules and practices to the great benefit of this administration. A distinguished senior Republican Senator saw the reasonableness of the suggestions that the Democratic leader and assistant leader have consistently made during this debate when he agreed on February 14 that they pointed the way out of the impasse. Regrettably, his efforts and judgment were also rejected by the administration. The Supreme Court, in an opinion authored last year by none other than Justice Scalia, one of this President's judicial role models, instructs that judicial ethics do not prevent candidates for judicial office or judicial nominees from sharing their judicial philosophy and views. With respect to ``precedent,'' Republicans not only joined in the filibuster of the nomination of Abe Fortas to be Chief Justice of the United States Supreme Court, they joined in the filibuster of Stephen Breyer to the First Circuit, Judge Rosemary Barkett to the Eleventh Circuit, Judge H. Lee Sarokin to the Third Circuit, and Judge Richard Paez and Judge Marsha Berzon to the Ninth Circuit. The truth is that filibusters on nominations and legislative matters and extended debate on judicial nominations, including circuit court nominations, have become more and more common through Republicans' own actions. Of course, when they are in the majority Republicans have more successfully defeated nominees by refusing to proceed on them and have not publicly explained their actions, preferring to act in secret under the cloak of anonymity. From 1995 through 2001, when Republicans previously controlled the Senate majority, Republican efforts to defeat President Clinton's judicial nominees most often took place through inaction and anonymous holds for which no Republican Senator could be held accountable. In effect, these were anonymous filibusters. Republicans held up almost 80 judicial nominees who were not acted upon during the Congress in which President Clinton first nominated them, and they eventually defeated more than 50 judicial nominees without a recorded Senate vote of any kind, just by refusing to proceed with hearings and committee votes. Beyond judicial nominees, Republicans also filibustered the nomination of executive branch nominees. They successfully filibustered the nomination of Dr. Henry Foster to become Surgeon General of the United States in spite of two cloture votes in 1995. Dr. David Satcher's subsequent nomination to be Surgeon General also required cloture but he was successfully confirmed. Other executive branch nominees who were filibustered by Republicans include Walter Dellinger's nomination to be Assistant Attorney General, and two cloture motions were required to be filed and both were rejected by Republicans. In this case we were able finally to obtain a confirmation vote after elaborate effort, and Mr. Dellinger was confirmed to that position with 34 votes against him. He was never confirmed to his position as Solicitor General because Republicans had made clear their opposition to him. In addition, in 1993, Republicans objected to a number of State Department nominations and even the nomination of Janet Napolitano to serve as the U.S. Attorney for Arizona, resulting in cloture motions. In 1994, Republicans successfully filibustered the nomination of Sam Brown to be an Ambassador. After three cloture motions were filed, his nomination was returned to President Clinton without Senate action. Also in 1994, two cloture petitions were required to get a vote on the nomination of Derek Shearer to be an Ambassador. And it likewise took two cloture motions to get a vote on the nomination of Ricki Tigert to chair the FDIC. So when Republican Senators now talk about the Senate Executive Calendar and Presidential nominees, they must be reminded that they recently filibustered many, many qualified nominees. Nonetheless, in spite of all the intransigence of the White House and all of the doublespeak by some of our colleagues on the other side of the aisle, I can report that the Senate has moved forward to confirm 111 of President Bush's judicial nominations since July 2001. That total includes 11 judges confirmed so far this year, and of those, seven were confirmed last week. The Senate last Thursday moved forward on the controversial nomination of Jay S. Bybee to the United States Court of Appeals for the Ninth Circuit. Those observing these matters might contrast this progress with the start of the last Congress in which the Republican majority in the Senate was delaying consideration of President Clinton's judicial nominees. In 1999, the first hearing on a judicial nominee was not until mid-June. The Senate did not reach 11 confirmations until the end of July of that year. Accordingly, the facts show that Democratic Senators are being extraordinarily cooperative with a Senate majority and a White House that refuses to cooperate with us. We have made progress in spite of that lack of comity and cooperation. We worked hard to reduce Federal judicial vacancies to under 55, which includes the 20 judgeships the Democratic-led Senate authorized in the 21st Century Department of Justice Appropriations Authorization Act last year. That is an extremely low vacancy number based on recent history and well below the 67 vacancies that Senator Hatch termed ``full employment'' on the Federal bench during the Clinton Administration. It is unfortunate that the White House and some Republicans have insisted on this confrontation rather than working with us to provide the needed information so that we could proceed to an up-or-down vote. Some on the Republican side seem to prefer political game playing, seeking to pack our courts with ideologues and leveling baseless charges of bigotry, rather than to work with us to resolve the impasse over this nomination by providing information and proceeding to a fair vote. I was disappointed that Senator Bennett's straightforward colloquy with Senator Reid and me on February 14, which pointed to a solution, was never allowed by hard-liners on the other side to yield results. I am disappointed that all my efforts and those of Senator Daschle and Senator Reid have been rejected by the White House. The letter that Senator Daschle sent to the President on February 11 pointed the way to resolving this matter reasonably and fairly. Republicans would apparently rather engage in politics. I urge the White House and Senate Republicans to end the political warfare and join with us in good faith to make sure the information that is needed to review this nomination is provided so that the Senate may conclude its consideration of this nomination. I urge the White House, as I have for more than 2 years, to work with us and, quoting from a recent column by Thomas Mann of The Brookings Institute, to submit ``a more balanced ticket of judicial nominees and engag[e] in genuine negotiations and compromise with both parties in Congress.'' The President promised to be a uniter not a divider, but he has continued to send us judicial nominees that divide our nation and, in this case, he has even managed to divide Hispanics across the country. The nomination and confirmation process begins with the President, and I urge him to work with us to find a way forward to unite the Nation on these issues, instead of to divide the Nation. cloture motion