Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Madam President, reserving the right to object, I would first ask unanimous consent that an editorial in today's Washington Post in favor of my amendment be printed in the Record.

Mr. LEAHY. Madam President, reserving the right to object, I ask unanimous consent that the agreement be modified to include the Leahy- Paul amendment with the same time for debate and a vote under the usual procedures.

Mr. LEAHY. Madam President, I suggest the absence of a quorum.

Mr. LEAHY. Madam President, further reserving the right to object, I find it extremely difficult--and I have great respect for Senator Paul as a cosponsor of my amendment--that one more time we have a case where we could have two amendments on the Republican side and we have one that is cosponsored by both Republicans and Democrats on this side, but we can't go forward with it. We have two amendments that have not gotten any committee hearings. We have one on this side that has been voted on by a bipartisan majority, Republicans and Democrats, twice out of committee, twice on the floor, and that can't go forward. It is my inclination to object further. I realize the difficulty that would put my friend from Nevada in, so I will not object. But I do feel this ruins the chances to make the PATRIOT Act one that could have had far greater bipartisan support, and we have lost a wonderful chance. But I understand we have to do what the Republicans want in this bill, so I will withdraw my objection.

Mr. LEAHY. Madam President, if the Senator would yield for a moment, he referred to that last line that this should be offered as a freestanding bill. I assure the leader it will be offered as a freestanding bill and I hope it is one that, because of bipartisan support, could be brought up at some point for a vote.

Mr. LEAHY

Mr. LEAHY. Mr. President, earlier this month, the President requested that Congress provide a limited exception to the statutory limit on the service of the FBI Director in order to allow Robert Mueller to continue his service for up to two additional years, until September 2013. I spoke with the President about his request, and understand his desire for continuity and stability in our national security leadership team at a time of great challenge and heightened threat concerns. On May 12, the President explained in a statement: ``Given the ongoing threats facing the United States, as well as the leadership transitions at other agencies like the Defense Department and Central Intelligence Agency, I believe continuity and stability at the FBI is critical at this time.'' It is for that reason, along with his confidence in Director Mueller, that the President has made this request of us. The President has asked us ``to join together in extending that leadership for the sake of our nation's safety and security.'' Since the attack on September 11, 2001, I have spoken often of the need for us all to join together. When I spoke to the Senate about the successful operation against Osama bin Laden, I urged all Americans to support our President in his continuing efforts to protect our Nation and keep Americans safe. I reiterated my hope that Americans would stand shoulder-to-shoulder, as we did in the weeks and months immediately following the September 11 attacks, unified in our resolve to keep our Nation secure. And I urged Congress to join together for the good of the country and all Americans. This is one of those times that we must join together. We face a time of heightened threats, particularly when experts are so concerned about possible reprisal attacks by al Qaeda. Indeed, most Americans share a concern that al Qaeda will try to strike back. So now is not a time for obstruction or delay in considering the President's request to maintain continuity and stability in his national security team. We have an opportunity now to set aside partisanship and come together to work with our President to keep America safe. While the threat from al Qaeda continues, and as the President makes necessary shifts in his national security team, I appreciate why President Obama has proposed that we continue the service of President Bush's appointee to the important leadership position of Director of the FBI. I appreciate Director Mueller's willingness to continue in service to the Nation. This was not Bob Mueller's idea or request. This is the President's request and, as a patriotic American, Director Mueller is willing to give another two years in service to a grateful Nation. The Bureau has seen significant transformation since September 11, 2001. Director Mueller has handled this evolution with professionalism and focus. The FBI plays a critical role in our efforts to protect national security. Attorney General Holder said recently: ``The United States faces ongoing threats from terrorist intent on attacking us both at home and abroad, and it is crucial that the FBI have sustained, strong leadership to confront that threat.'' He is right. I was encouraged to see the reports that Senator McConnell, the Senate Republican leader, supports the President's request. I appreciate the comments by Chairman Lamar Smith of the House Judiciary Committee, supporting the President's decision, and stating his agreement that ``it is important to maintain continuity for our intelligence community during this transition period.'' I am pleased that Senator Grassley, our ranking Republican on the Senate Judiciary Committee, has joined as a cosponsor of a bill to extend the service of Director Mueller, who Senator Grassley said has ``proven his ability to run the FBI'' in these ``extraordinary times.'' I am also pleased that Senators Feinstein and Chambliss, the Chairman and Vice Chairman of the Senate Intelligence Committee, are joining as cosponsors of the bill. We recognize the extraordinary circumstances confronting the President, and support his request for a short extension of Director Mueller's service. But we also all agree that this needs to be a one-time exception and this measure we join together to introduce today is intended to be a one-time exception and not a permanent extension. I chaired the Senate Judiciary Committee in the summer of 2001 when President Bush nominated Bob Mueller. The President nominated him on July 18; the Judiciary Committee received his paperwork on July 24; and we held two days of hearings on July 30 and July 31. The Judiciary Committee voted on his nomination on August 2 and the Senate confirmed him that same day. It is already as long from the day that President Obama made his request for the short extension of his term of service as it took us in 2001 to hold hearings and for the Senate to confirm Bob Mueller to a 10-year term as FBI Director. We must not delay action any longer. Bob Mueller served for three years in the United States Marine Corps; led a rifle platoon in Vietnam; and earned a Bronze Star, two Navy Commendation Medals, the Purple Heart, and the Vietnamese Cross of Gallantry. This is a man who served as the United States Attorney in both Massachusetts and Northern California, as the Assistant Attorney General for the Criminal Division at the Justice Department, and the acting Deputy Attorney General at the beginning of the George W. Bush administration. This is a man who left a lucrative position in private practice to return to law enforcement after he had served in higher positions, by joining the U.S. Attorney's office in the District of Columbia as a line prosecutor in the homicide section. The President could have nominated the next director of the FBI, someone who could serve for the next 10 years, until 2021. That is someone who would serve through the presidential elections in 2012, 2016 and 2020, and into the period long after his own presidency. Instead, he has chosen to ask Congress to extend the term of service of a proven leader for a brief period, given the extenuating circumstances facing our country. I emphasize that this is not Bob Mueller's request, it is the President's. Bob Mueller has served tirelessly and selflessly for 10 years, and is undoubtedly ready to begin the next phase of his life. But Bob has characteristically answered duty's call and indicated his willingness to continue his service. We should fulfill our duty, as well, and join together without delay to secure the continuity and stability that is demanded at this time, and that is needed to keep our country safe. It is time for us to join together and act on the President's request. Mr. President, I ask unanimous consent the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I commend the Senate for unanimously passing the Faster FOIA Act of 2011. This important bill will establish a bipartisan commission to examine the root causes of agency delays in processing Freedom of Information Act--FOIA--requests, and to recommend to the Congress and the President steps to help eliminate FOIA backlogs. Senator Cornyn and I first introduced this bill in 2005, because we were concerned about the growing problem of excessive FOIA delays within our Federal agencies. During the intervening years, the problem of excessive FOIA delays did not go away. That is why in 2010, we reintroduced this bill and the Senate unanimously passed it last year. After the Judiciary Committee's hearing in March on FOIA, we reintroduced this bill yet again--with the hope that the Congress will finally enact this good government legislation. Today, the Senate is doing its part to achieve that goal. While the Obama administration has made significant progress in improving the FOIA process, large backlogs remain a major roadblock to public access to information. A recent report released by the National Security Archive found that only about half of the Federal agencies surveyed have taken concrete steps to update their FOIA policies in light of these reforms. These delays are simply unacceptable. The bipartisan FOIA commission established by this bill will help to reverse this trend. The commission created by the Faster FOIA Act will make key recommendations to Congress and the President for reducing impediments to the efficient processing of FOIA requests. The commission will also study why Federal agencies are more and more relying on FOIA exemptions to withhold information from the public. In addition, the commission will examine whether the current system for charging fees and granting fee waivers under FOIA should be modified. The commission will also be made up of government and non-governmental representatives with a broad range of experience related to handling FOIA requests. I have said many times over the years that open government is neither a Democratic issue, nor a Republican issue--it is truly an American value and virtue that we all must uphold. I thank Senator Cornyn for his work on this bill and for his leadership on this issue. I also thank Senator Whitehouse who has cosponsored this bill. In addition, I thank the Judiciary Committee's ranking member, Senator Grassley, for working with me on this bill and his help in securing its passage in the Senate. I commend and thank the many open government and FOIA advocacy groups that have supported this bill, including OpenTheGovernment.org, the Project on Government Oversight and the Sunshine in Government Initiative. I hope that the House of Representatives will promptly pass this good government legislation, so that the Commission on Freedom of Information Act Processing Delays can begin its work.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am disappointed that we have not been able to work out an agreement that will allow consideration of my amendment to the pending USA PATRIOT Act sunset extension legislation. I think that a bipartisan majority of the Senate would have supported our improvements. We have missed an opportunity to move forward to help keep our Nation secure while also strengthening our commitment to our core constitutional principles of individual liberty and privacy. The amendment I sought to offer represented a commonsense and reasonable package of reforms that would have improved the law, expanded civil liberties and privacy protections, and better ensured proper oversight and accountability. This amendment earned the cosponsorship of Senator Paul and a dozen others since we began debate on Monday, including Senators Cardin, Bingaman, Coons, Shaheen, Wyden, Franken, Gillibrand, Harkin, Durbin, Merkley, Boxer, and Akaka. I thank these Senators for recognizing that the Senate should do better than merely extend the expiring provisions of the USA PATRIOT Act for another 4 to 6 years without a single improvement or reform. Over the past 2 years, the Senate Judiciary Committee has diligently considered how to make improvements to current law. The language in our amendment was the product of more than a year and a half of extensive negotiations with Republicans and Democrats, the intelligence community, and the Department of Justice. The committee reported a bipartisan bill last Congress and another similar bill in the current Congress. The bipartisan amendment that we sought to bring to the Senate preserved the ability of the government to use the PATRIOT Act surveillance tools, while promoting transparency, accountability, and oversight. It was not everything that everyone wanted but it was a commonsense package of improvements that should have been adopted. The Attorney General and others have repeatedly assured us that the measures to enhance oversight and accountability, such as audits and public reporting, would not sacrifice ``the operational effectiveness and flexibility needed to protect our citizens from terrorism'' or undermine ``the collection of vital foreign intelligence and counterintelligence information.'' In fact, the Attorney General has consistently said that the Senate Judiciary Committee-passed bill struck ``a good balance'' by extending PATRIOT Act authorities while adding accountability and civil liberties protections. One of the improvements we need to make is to repair a constitutional infirmity in the current law. The so- called Doe v. Mukasey fix is needed to address a first amendment problem with the national security letter statutes, and should not have been controversial in any way. Similarly, no one can seriously contend that periodic audits by an inspector general of past operations presented any operational concerns to law enforcement or intelligence gathering. These are vital oversight tools that everyone should have supported. As it stands now, the extension of the PATRIOT Act provisions does not include a single improvement or reform, and includes not even a word that recognizes the importance of protecting the civil liberties and constitutional privacy rights of Americans. We could have provided the necessary tools to law enforcement and the intelligence community, but could have done so while faithfully performing our duty to protect the constitutional principles and civil liberties upon which all American rely. Today's Washington Post included an editorial that urged the Senate to extend the PATRIOT Act authorities but also to include ``additional protections meant to ensure that these robust tools are used appropriately.'' The editorial observed that the bill ``would be that much stronger'' if it included the oversight and auditing requirements included in our amendment. That is why Senator Paul and a dozen other Senators had sponsored the amendment. That is why Senator Lee voted for them this year in the Judiciary Committee. And I would note that Senator Kyl and Senator Cornyn supported them in the last Congress. I ask unanimous consent to have printed in the Record a copy of today's editorial from the Washington Post entitled, ``A Chance to Put Protections in the PATRIOT Act.''

Mr. LEAHY

Mr. LEAHY. Mr. President, as the Senate prepares to adjourn for the Memorial Day recess, I had hoped that we would be allowed to proceed with the consensus judicial nominees ready for confirmation and who are so needed to fill vacancies on Federal courts around the country. Instead, the Republican leadership's filibuster of the nomination of Goodwin Liu is being supplemented with delays of even those judicial nominations supported by Republican home State Senators and approved by Republicans on the Senate Judiciary Committee. This is too bad. With judicial vacancies continuing at crisis levels, affecting the ability of courts to provide justice to Americans around the country, I have been urging the Senate to vote on the judicial nominations reported favorably by the Judiciary Committee and pending on the Senate's Executive Calendar. The Senate is recessing with 19 judicial nominations awaiting final action. Of those, 16 are by anyone's definition consensus nominees. All 16 were unanimously approved by all Republican and all Democratic Senators on the Judiciary Committee. Yet they remain stalled without final Senate action. We should have regular votes on President Obama's highly qualified nominees, instead of partisan filibusters and more delays. With vacancies still totaling 90 on Federal courts throughout the country with nearly two dozen future vacancies on the horizon, there is no time to delay taking up these nominations. Had we taken positive action on the consensus nominees, vacancies could have been reduced below 80 for the first time in years. All of the nominations reported by this committee and pending on the Senate's Executive Calendar have been through our Judiciary Committee's fair and thorough process. We review extensive background material on each nominee. All Senators on the Committee, Democratic and Republican, have the opportunity to ask the nominees questions at a live hearing. Senators also have the opportunity to ask questions in writing following the hearing and to meet with the nominees. All of these nominees which the Committee reported to the Senate have a strong commitment to the rule of law and a demonstrated faithfulness to the Constitution. All have the support of their home State Senators, both Republican and Democratic. They should not be delayed for weeks and months needlessly after being so thoroughly and fairly considered by the Judiciary Committee. They include several nominees to fill judicial emergency vacancies, including Paul Engelmayer and William Kuntz of New York, Michael Simon of Oregon, Richard Brooke Jackson of Colorado, Kathleen Williams of Florida, and Nelva Gonzales Ramos of Texas, as well as Henry Floyd of South Carolina to the Fourth Circuit. The nomination of Professor Liu being filibustered by Republican leadership is also to fill a judicial emergency vacancy. Those nominees who have the support of home State Republican Senators include Bernice Donald of Tennessee to the Sixth Circuit, Henry Floyd of South Carolina to the Fourth Circuit, Sara Lynn Darrow of Illinois, Kathleen Williams of Florida, Nelva Gonzales Ramos of Texas, John Andrew Ross of Missouri, Timothy Cain of South Carolina, Nannette Jolivette Brown of Louisiana, and Nancy Torresen of Maine. In spite of that support, we are unable to secure consent from the Republican leadership to consider and confirm them. Of the judicial nominations we have been able to get the Senate to consider this year almost 70 percent were delayed from last year. We have only been able to confirm eight judicial nominees that had hearings and were reported for the first time this year. So when some say we are taking ``positive action'' on large percentages of nominees, what this shows is how many unobjectionable nominees were stalled last year by objections from the minority. We could have made significant progress helping Americans seeking justice in our Federal courts before this recess. Sadly, it is a missed opportunity for Senators across the aisle to have joined together with us and worked with the President to provide needed judicial resources.

Mr. LEAHY

Mr. LEAHY. Mr. President, earlier this month, the President requested that Congress provide a limited exception to the statutory limit on the service of the FBI Director in order to allow Robert Mueller to continue his service for up to two additional years, until September 2013. I spoke with the President about his request, and understand his desire for continuity and stability in our national security leadership team at a time of great challenge and heightened threat concerns. On May 12, the President explained in a statement: ``Given the ongoing threats facing the United States, as well as the leadership transitions at other agencies like the Defense Department and Central Intelligence Agency, I believe continuity and stability at the FBI is critical at this time.'' It is for that reason, along with his confidence in Director Mueller, that the President has made this request of us. The President has asked us ``to join together in extending that leadership for the sake of our nation's safety and security.'' Since the attack on September 11, 2001, I have spoken often of the need for us all to join together. When I spoke to the Senate about the successful operation against Osama bin Laden, I urged all Americans to support our President in his continuing efforts to protect our Nation and keep Americans safe. I reiterated my hope that Americans would stand shoulder-to-shoulder, as we did in the weeks and months immediately following the September 11 attacks, unified in our resolve to keep our Nation secure. And I urged Congress to join together for the good of the country and all Americans. This is one of those times that we must join together. We face a time of heightened threats, particularly when experts are so concerned about possible reprisal attacks by al Qaeda. Indeed, most Americans share a concern that al Qaeda will try to strike back. So now is not a time for obstruction or delay in considering the President's request to maintain continuity and stability in his national security team. We have an opportunity now to set aside partisanship and come together to work with our President to keep America safe. While the threat from al Qaeda continues, and as the President makes necessary shifts in his national security team, I appreciate why President Obama has proposed that we continue the service of President Bush's appointee to the important leadership position of Director of the FBI. I appreciate Director Mueller's willingness to continue in service to the Nation. This was not Bob Mueller's idea or request. This is the President's request and, as a patriotic American, Director Mueller is willing to give another two years in service to a grateful Nation. The Bureau has seen significant transformation since September 11, 2001. Director Mueller has handled this evolution with professionalism and focus. The FBI plays a critical role in our efforts to protect national security. Attorney General Holder said recently: ``The United States faces ongoing threats from terrorist intent on attacking us both at home and abroad, and it is crucial that the FBI have sustained, strong leadership to confront that threat.'' He is right. I was encouraged to see the reports that Senator McConnell, the Senate Republican leader, supports the President's request. I appreciate the comments by Chairman Lamar Smith of the House Judiciary Committee, supporting the President's decision, and stating his agreement that ``it is important to maintain continuity for our intelligence community during this transition period.'' I am pleased that Senator Grassley, our ranking Republican on the Senate Judiciary Committee, has joined as a cosponsor of a bill to extend the service of Director Mueller, who Senator Grassley said has ``proven his ability to run the FBI'' in these ``extraordinary times.'' I am also pleased that Senators Feinstein and Chambliss, the Chairman and Vice Chairman of the Senate Intelligence Committee, are joining as cosponsors of the bill. We recognize the extraordinary circumstances confronting the President, and support his request for a short extension of Director Mueller's service. But we also all agree that this needs to be a one-time exception and this measure we join together to introduce today is intended to be a one-time exception and not a permanent extension. I chaired the Senate Judiciary Committee in the summer of 2001 when President Bush nominated Bob Mueller. The President nominated him on July 18; the Judiciary Committee received his paperwork on July 24; and we held two days of hearings on July 30 and July 31. The Judiciary Committee voted on his nomination on August 2 and the Senate confirmed him that same day. It is already as long from the day that President Obama made his request for the short extension of his term of service as it took us in 2001 to hold hearings and for the Senate to confirm Bob Mueller to a 10-year term as FBI Director. We must not delay action any longer. Bob Mueller served for three years in the United States Marine Corps; led a rifle platoon in Vietnam; and earned a Bronze Star, two Navy Commendation Medals, the Purple Heart, and the Vietnamese Cross of Gallantry. This is a man who served as the United States Attorney in both Massachusetts and Northern California, as the Assistant Attorney General for the Criminal Division at the Justice Department, and the acting Deputy Attorney General at the beginning of the George W. Bush administration. This is a man who left a lucrative position in private practice to return to law enforcement after he had served in higher positions, by joining the U.S. Attorney's office in the District of Columbia as a line prosecutor in the homicide section. The President could have nominated the next director of the FBI, someone who could serve for the next 10 years, until 2021. That is someone who would serve through the presidential elections in 2012, 2016 and 2020, and into the period long after his own presidency. Instead, he has chosen to ask Congress to extend the term of service of a proven leader for a brief period, given the extenuating circumstances facing our country. I emphasize that this is not Bob Mueller's request, it is the President's. Bob Mueller has served tirelessly and selflessly for 10 years, and is undoubtedly ready to begin the next phase of his life. But Bob has characteristically answered duty's call and indicated his willingness to continue his service. We should fulfill our duty, as well, and join together without delay to secure the continuity and stability that is demanded at this time, and that is needed to keep our country safe. It is time for us to join together and act on the President's request. Mr. President, I ask unanimous consent the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am pleased to introduce the Fighting Fraud in Bankruptcy Act of 2011. I thank Senator Whitehouse and Senator Blumenthal for joining me as cosponsors of this legislation. This bill will give the Department of Justice and the United States bankruptcy trustee important new tools to combat creditor abuses in the bankruptcy process. The Fighting Fraud in Bankruptcy Act is another step forward in the Judiciary Committee's important efforts to protect American citizens from fraud. Since the onset of the housing market's collapse, the bankruptcy courts and the United States trustee have encountered serious problems related to foreclosure documentation submitted by mortgage lenders and servicers in the bankruptcy process. As scrutiny has been brought to bear on foreclosure-related filings by bankruptcy judges, attorneys, and the United States trustee, a pattern of negligent, reckless, or fraudulent conduct on the part of mortgage lenders and servicers has been revealed with a consistency that indicates systemic problems. Under Attorney General Holder's leadership, the Department of Justice is making a considerable effort to ensure that mortgage lenders and servicers are playing by the rules and treating homeowners fairly and honestly. As part of its efforts to more closely scrutinize foreclosure documentation in bankruptcy cases, the United States trustee's office reviewed 10,000 proofs of claim filed by mortgage servicers. What was found was far more serious than what mortgage servicing industry officials have been asserting. For example, in testimony before the Senate Judiciary Committee in 2008, an industry executive stated that the rate of loan servicing errors in bankruptcy cases adverse to a homeowner was ``less than one percent.'' In its review, however, the trustee found an error rate based upon blatant, obvious errors more than ten times greater than what was testified to before the Judiciary Committee. And these errors are not harmless. In some cases, they were wildly inaccurate statements of what a homeowner owed to the lender, in others, the claims contained unsupported junk fees that servicers had piled on, yet for which they provided no documentation. If left unchallenged, the result would be that a homeowner not only loses a home, but is cheated on what he or she owes on that home. Americans in foreclosure, and the trustee as guardian of the system are right to demand accuracy and truthfulness from creditors' representations in court. Unfortunately, the major players in the mortgage industry are showing little interest in addressing these problems head-on. Instead, when faced with the trustee's scrutiny of their claims, some major mortgage servicers have resorted to engaging in litigation challenging the authority of the United States trustee to look behind their claims and provide sanctions where warranted. The United States trustees in districts around the country are now facing hundreds of challenges to their authority to effectively police the system. It is a great disappointment to see some of the very same banking entities that have benefited so much from congressional action and taxpayer funded assistance put up so much resistance to simple demands for accuracy and truthfulness in their representations to the court and those whose homes they are seeking to repossess. The unfortunate reality is that lenders in many cases will continue to exercise their legal right to foreclose, rather than work with the homeowner to modify a loan. What is entirely unacceptable is for homeowners on the precipice of losing their homes to be mistreated by their lenders--whether through unsupported fees, willfully inaccurate or negligent accounting, or a lack of supporting documentation. This conduct only adds to the pain and hardship so many are experiencing. In 2010, over one million Americans lost their homes to foreclosure. This year, housing industry analysts expect the problem to get worse. The magnitude of this problem, and its effect on American families, is difficult to comprehend. As this crisis continues to deepen, the incentives for lenders and servicers to cut corners, inflate profits, rush foreclosures, and hide from their misconduct will only increase. The legislation I introduce today is about ensuring fair treatment for homeowners, preventing a fraud on the bankruptcy courts, and holding wrongdoers accountable. When Congress created the United States trustee program in 1978, it described the trustee's role as the ``watchdog'' of the bankruptcy system, and vested the trustee's office with the power to investigate fraud in the process. This legislation will support and strengthen this important role so that all participants in the bankruptcy system conduct themselves in accordance with the law. My legislation will do four things. First, it clarifies the United States trustee's inherent power and duty to police all corners of the bankruptcy system. Second, it provides the trustee and the courts with remedies to correct and sanction misconduct and fraud committed by creditors in the bankruptcy process. Third, the legislation empowers the trustee to establish a system of audits to ensure that creditors are complying with the law. These provisions taken together will help make certain that debtors and creditors are held to the same standard in the bankruptcy process. Finally, the legislation addresses a particularly offensive form of mortgage servicer misconduct against men and women serving in our military. The Servicemembers Civil Relief Act (SCRA) protects active duty military personnel by requiring a stable, manageable interest rate for military homeowners on active duty, and by staying foreclosure actions during their deployment. A Government Accountability Office report released this month found that among just two of 14 major mortgage servicing organizations that provided data to Federal regulators, 50 foreclosure actions were carried out in violation of the SCRA. In response to this finding, and to bolster the SCRA's protections for the men and women serving in the military, this legislation would require a mortgage lender seeking relief from the automatic stay to certify under penalty of perjury that the foreclosure was in compliance with the SCRA. As Congress looks at ways to mitigate the foreclosure crisis to reduce its impact on homeowners and the economy, I hope all Senators can agree that the foreclosure process for Americans should be a fair one and one in which there is accountability for fraud or other misconduct. And I hope we can all agree that the integrity of our judicial system is something worth protecting. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. I suggest the absence of a quorum.

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

Mr. LEAHY. Mr. President, nearly 10 years after the attacks of September 11, 2001, every one of us in the Senate knows America continues to face threats of terrorism. Our allies know this, as well. The President's dogged pursuit and success earlier this month against Osama bin Laden does not mean we can become complacent or less vigilant. We must remain vigilant and ensure the men and women of our law enforcement and intelligence agencies have all the appropriate tools necessary to protect our Nation and the American people. But as every Vermonter knows, tools are only useful if they are regularly checked and maintained. Otherwise they become blunt instruments that can do harm, rather than accomplish the job. Congress recognized this basic notion in 2001, when we first wrote the USA PATRIOT Act. I worked with the then-Republican House majority leader, Dick Armey to include sunsets on certain surveillance authorities in the bill. Even though we had vastly different political philosophies, we both agreed we had to have sunset provisions. In 2006, when Congress reauthorized the USA PATRIOT Act, I worked to ensure that certain sunsets were renewed, and added audits on the use of powers with the potential to unnecessarily intrude on the privacy of Americans. We should not give a blank check to anybody--whether it is a Republican or Democratic administration. We are, after all, Americans who believe in our individual liberties. Having granted the Government broad authority to gather vast amounts of information about the daily lives of Americans, I wanted to do what we could to ensure that unfettered information gathering did not occur at the expense of Americans' basic constitutional rights and civil liberties. The sunsets and audits provide Congress an opportunity to examine whether the PATRIOT Act tools are being used appropriately, and if not, to sharpen, refine, or restrain those tools accordingly. The audits we added in 2005 or 2006 proved to be very helpful because they identified that there were abuses in the way the PATRIOT Act was being used, specifically with respect to national security letters and the use of ``exigent letters.'' Without this oversight, we probably never would have found out about those abuses. But we found out about them and we worked with the FBI to correct those matters. That brings us to today. The Senate has the opportunity to reexamine and redefine key PATRIOT Act provisions, and I think we should take that opportunity to make improvements to our current law. That is why I have led the Senate Judiciary Committee to diligently consider these matters through a series of hearings and meetings. The committee responded by reporting improvements, both last year and again this year, through bipartisan legislation. They are good measures, and we have worked to ensure that they would not compromise the effectiveness of our law enforcement and intelligence capabilities. In fact, much of the language was derived after consultation with the administration, including the intelligence community. The Attorney General and others have repeatedly assured us that the measures to enhance oversight and accountability--such as audits and public reporting--would not sacrifice ``the operational effectiveness and flexibility needed to protect our citizens from terrorism'' or undermine ``the collection of vital foreign intelligence and counterintelligence information.'' In fact, the Attorney General has consistently said the bill passed out by the Senate Judiciary Committee struck ``a good balance'' by extending the PATRIOT Act authorities while adding accountability and civil liberties protections. For additional detail and legislative history, I refer Senators to the Senate report on the bill reported by the Senate Judiciary Committee this year, Senate Report No. 112-13. I ask unanimous consent that a December 9, 2010, letter from the Attorney General to me making these points be printed in the Record, along with a February 19, 2010, letter from the Director of National Intelligence to House leaders.

Mr. LEAHY. Unfortunately, the bill now before the Senate merely extends the expiring authorities to June 1, 2015. Regrettably, these authorities have not been refined since 2006. If that remains the case through the extensions that are contemplated by this bill, it will amount to 9 years of this law without any legislative improvement. I think most of us understand that we can do better. The amendment I have filed seeks to change that by improving the PATRIOT Act. I appreciate the efforts made by the majority leader to craft a compromise. I am sorry that the Republican leadership in Congress has insisted on an extension of authorities without any improvements. The amendment I have filed and wish to offer along with Senators Paul, Cardin, Bingaman, Coons, Shaheen, Wyden, Franken, Gillibrand, Harkin, Durbin, Merkley, Boxer, and Akaka, makes significant improvements to current law, promotes transparency, and expands privacy and civil liberties safeguards. I ask unanimous consent to have a sectional analysis of the amendment printed in the Record.

Mr. LEAHY. One of the improvements Congress should make is to repair a constitutional infirmity in the current law. Three years ago, in Doe v. Mukasey, the U.S. Court of Appeals for the Second Circuit found that the nondisclosure provision of the statute authorizing issuance of national security letters was constitutionally defective. If we do not make a change, that constitutionally defective part of the national security letter provision would remain. As part of the comprehensive set of reforms in the bill reported favorably by the Judiciary Committee, I proposed a simple statutory fix that would enable the FBI to obtain the information it needs, while addressing the constitutional concerns. In fact, this proposal has never been controversial. In fact, during the last Congress, Senator Sessions and Senator Bond, the ranking Republicans on the Senate Judiciary and Intelligence Committees, cosponsored a bill incorporating the very legislative remedy I proposed. This is a straightforward matter that needs to be fixed. The underlying bill does not fix the problem; our amendment would. I trust Senators would not want to proceed to vote on an unconstitutional law, one that violates our fundamental charter as a nation and, of course, the liberty of all Americans. No one who claims to honor the Constitution should proceed in so cavalier a manner. If we are to restore the constitutional underpinning of the NSL authority, the Senate should adopt this needed improvement. I am also troubled by the refusal of the Republican leadership to agree on periodic audits on the use by the government of PATRIOT Act surveillance authorities. When I speak of the Republican position, I want to mention that this is not uniform within the Republican Party, as there are many Republicans who believe we should have these audits. Basic transparency and accountability are vital to ensuring that the government does not overstep its legal authority. We grant many authorities to our government, but we should do so with the confidence that if the Government oversteps its authority, Congress has the power to bring it back in line. In fact, it is only because of the audits that were mandated by the 2006 PATRIOT Act reauthorization bill that the American public became aware of some of the abuses and misuses of the national security letters, which were significant. Without that public accountability and congressional oversight, the FBI would not have made improvements to its system of tracking NSL issuance. Because of those audits, we are more confident today that FBI agents are following proper procedures for obtaining private information about Americans--rather than improperly using ``exigent letters'' to circumvent the rules, or using Post-it Notes to keep track of records. Yet the underlying bill omits audits and public reporting; our amendment includes important audit requirements and public reporting to provide accountability and protect Americans' rights. No one can seriously contend that audits by the inspector general of past operations present any operational concerns to law enforcement or intelligence gathering. Audits do not interfere; they provide accountability and ensure that government follows the rules. Mr. President, you and I and 98 other Members of this body have to follow the rules. Certainly, those in law enforcement should have to follow the rules, as well. These audits have been demonstrated to be vital oversight tools, and they should be incorporated into the law. The language in our amendment is the product of more than a year and a half of extensive negotiations with Republicans and Democrats, the intelligence community, the Department of Justice. This year, the Senate Judiciary Committee bill won the support of Senator Lee. Last Congress, a virtually identical bill received the votes of Senators Kyl and Cornyn and was reported favorably by the Senate Judiciary Committee to the Senate. The bipartisan amendment we seek to offer is a reasonable package of reforms that preserves the ability of the government to use the PATRIOT Act surveillance tools, while promoting transparency, accountability, and oversight. I have often said that the Senate should not shirk its duty to reexamine carefully and critically the provisions of the PATRIOT Act. We should consider ways to improve the law consistent with our core constitutional principles. That is what I have tried to do. That is what Vermonters expect. I intend to vigilantly guard Americans' privacy and civil liberties, while doing all I can to keep all Americans secure. That is what we expect in Vermont, and I must assume that is what we expect in the other 49 States. Without a single improvement or reform, without even a word that recognizes the importance of protecting the civil liberties and constitutional privacy rights of Americans, the underlying bill represents a missed opportunity. Let us provide our law enforcement and intelligence professionals with the tools they need and give these professionals the security and certainty they need to protect our Nation. But let us also at the same time faithfully perform our duty to protect the constitutional principles and civil liberties upon which this Nation was founded and on which the American people depend. The vast majority of the 300 million Americans in this great country are law-abiding, honest men and women. We should protect against arbitrarily lumping them all into the category of potential lawbreakers, or enabling the government to search homes or businesses without proper reason. We fought a revolution in this country to stop that from happening, and it is no different today. One of the things that has kept us so strong as a nation is our ability to protect the individual rights of all Americans. We can go after the lawbreakers, just as we got Osama bin Laden, while at the same time protecting the principles of our country. We must not let the terrorists win by compromising our own rights and liberties in this country. The terrorists who seek to harm us would certainly take away from all of us--women and men alike--the constitutional rights we hold dear. We must not allow that. The American people expect us both to protect our rights and to keep us safe, and I believe our amendment does just that. That is why I hope all Senators will support the Leahy-Paul amendment. Exhibit 1 Washington, DC, December 9, 2010. Hon. Patrick J. Leahy, Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC. Dear Chairman Leahy: This responds to your letter of March 17, 2010, which asked the Department of Justice to consider implementing administratively certain enhanced civil liberties protections that were included in S. 1692, the USA PATRIOT Act Sunset Extension Act, as reported by the Senate Judiciary Committee. In my letter of November 9, 2009, I expressed strong support on behalf of the Department for the bill as reported, which would reauthorize several important Foreign Intelligence Surveillance Act (FISA) authorities while enhancing protections for civil liberties and privacy in the exercise of these essential national security tools. The bill would reauthorize section 206 of the USA PATRIOT Act, which provides authority for roving surveillance of targets who take steps that thwart FISA surveillance; section 215 of the USA PATRIOT Act, which provides authority to compel production of business records and other tangible things with the approval of the Foreign Intelligence Surveillance Court (the FISA Court); and section 6001 of the Intelligence Reform and Terrorism Prevention Act, which provides authority to target with FISA searches or surveillance non-United States persons who engage in international terrorist activities but are not necessarily associated with an identified terrorist group. Earlier this year, Congress acted to extend the expiring authorities until February 28, 2011. As that date approaches, I strongly urge that Congress again take action to ensure that these provisions remain in force. Assuming these authorities are reauthorized, the Department has determined that many of the privacy and civil liberties provisions of S. 1692 can be implemented without legislation. Indeed, in a number of instances, we have already taken steps to do so. I am confident that these measures will enhance standards, oversight, and accountability, especially with respect to how information about U.S. persons is retained and disseminated, without sacrificing the operational effectiveness and flexibility needed to protect our citizens from terrorism and facilitate the collection of vital foreign intelligence and counterintelligence information. National Security Letters Your letter seeks our response regarding several matters related to National Security Letters (NSLs): notification to recipients of NSLs of their opportunity to contest the nondisclosure requirement; issuance of procedures related to the collection, use and storage of information obtained in response to NSLs; retention of a statement of specific facts that the information sought is relevant to an authorized investigation; and increased public reporting on the use of NSLs. You will be pleased to know that as of February 2009, all NSLs are required to include a notice that informs recipients of the opportunity to contest the nondisclosure requirement through the government initiated judicial review. In most cases, this notice is automatically generated by the NSL subsystem. Domestic Investigations and Operations Guide (DIOG) 11.9.3.E. The FBI also will ensure that in any case in which a recipient challenges a nondisclosure order, the recipient is notified when compliance with the order is no longer required. Thus far, there have been only four challenges to the non-disclosure requirement, and in two of the challenges, the FBI permitted the recipient to disclose the fact that an NSL was received. If and when the volume of such requests becomes sufficiently large that solutions beyond ``one-off' notifications are required, the FBI will develop appropriate policies and procedures to notify the recipient when non-disclosure is no longer required. I also am pleased to report that I approved Procedures for the Collection, Use and Storage of Information Derived from. National Security Letters on October 1, 2010, and these procedures have been provided to the Judiciary and Intelligence Committees. The FBI's current practice is consistent with the procedures and the FBI is working on formal policy to implement them. In addition, DOJ and ODNI will shortly complete work on a joint report to Congress on NSL ``minimization'' as required by the PATRIOT Reauthorization Act of 2005. As to the information retained internally in connection with the issuance of NSLs, it is current policy for the FBI to retain a statement of specific facts showing that the information sought through NSLs is relevant to an authorized investigation. DIOG Sec. 11.9.3.C. The Department appreciates the desire of the Committee for enhanced public reporting on the use of NSLs. Accordingly, although the FBI cannot provide information regarding subcategories of NSLs in a public setting, it will continue to report publicly the aggregate numbers of NSLs on an annual basis and will evaluate whether any additional information can be publicly reported. Section 215 Orders Your letter also raises a number of matters related to section 215 orders. You seek assurances that the government will not rely on the conclusive presumption in section 215 and will present the FISA Court with a complete statement of facts sufficient to show relevance of the tangible things requested to an authorized investigation. It is current FBI practice to provide the Foreign Intelligence Surveillance Court with a complete statement of facts to support issuance of an order. The FBI is reviewing the DIOG to determine whether changes need to be made to reflect this practice. With respect to section 215 records that contain bookseller records, or are from a library and contain personally identifiable information about a patron of the library, we are prepared to require a statement of specific and articulable facts as would have been required under S. 1692, and to notify Congress should it become necessary to change that practice. You ask the Department to issue policy guidance providing that certifications accompanying applications for section 215 nondisclosure orders must include an appropriately thorough statement of facts that sets forth the need for nondisclosure. I am pleased to report that this is current FBI practice, and the FBI is reviewing the DIOG to determine whether revisions should be made to reflect this practice. You also ask the Department to institute guidelines to require court-approved minimization procedures for section 215 orders and pen register and trap and trace (PR/TT) devices. Minimization procedures are already required by statute in relation to section 215 orders. 50 USC 1861(b)(2)(B). The proposal to extend this requirement to PR/ TT orders is intended to apply only to certain intelligence collection activities. Procedures governing these operations are currently in effect, having been proposed by the government and approved by the FISA Court. Finally, you ask the Department to consider providing an annual unclassified report on the use of FISA authorities and the impact on privacy of United States persons. I believe that providing greater transparency regarding the U.S. government's exercise of FISA authorities is an important objective, and will show the care taken by officials to implement and comply with constitutional and statutory requirements to protect the privacy of United States persons. Although the Department has concerns that there may be little additional information that can be provided in an unclassified format and that such unclassified information could be unintentionally misleading, we are prepared to work with the committee and our partners in the Intelligence Community to determine whether there is a way to overcome these difficulties and make additional information publicly available regarding the use of these authorities. Taken together, I believe these measures will advance the goals of S. 1692 by enhancing the privacy and civil liberties our citizens enjoy without compromising our ability to keep our nation safe and secure. I hope this information is helpful. The Department stands ready to work with Congress to ensure that the expiring FISA authorities are reauthorized in a timely way. Sincerely, Eric H. Holder, Jr., Attorney General.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am pleased to introduce the Fighting Fraud in Bankruptcy Act of 2011. I thank Senator Whitehouse and Senator Blumenthal for joining me as cosponsors of this legislation. This bill will give the Department of Justice and the United States bankruptcy trustee important new tools to combat creditor abuses in the bankruptcy process. The Fighting Fraud in Bankruptcy Act is another step forward in the Judiciary Committee's important efforts to protect American citizens from fraud. Since the onset of the housing market's collapse, the bankruptcy courts and the United States trustee have encountered serious problems related to foreclosure documentation submitted by mortgage lenders and servicers in the bankruptcy process. As scrutiny has been brought to bear on foreclosure-related filings by bankruptcy judges, attorneys, and the United States trustee, a pattern of negligent, reckless, or fraudulent conduct on the part of mortgage lenders and servicers has been revealed with a consistency that indicates systemic problems. Under Attorney General Holder's leadership, the Department of Justice is making a considerable effort to ensure that mortgage lenders and servicers are playing by the rules and treating homeowners fairly and honestly. As part of its efforts to more closely scrutinize foreclosure documentation in bankruptcy cases, the United States trustee's office reviewed 10,000 proofs of claim filed by mortgage servicers. What was found was far more serious than what mortgage servicing industry officials have been asserting. For example, in testimony before the Senate Judiciary Committee in 2008, an industry executive stated that the rate of loan servicing errors in bankruptcy cases adverse to a homeowner was ``less than one percent.'' In its review, however, the trustee found an error rate based upon blatant, obvious errors more than ten times greater than what was testified to before the Judiciary Committee. And these errors are not harmless. In some cases, they were wildly inaccurate statements of what a homeowner owed to the lender, in others, the claims contained unsupported junk fees that servicers had piled on, yet for which they provided no documentation. If left unchallenged, the result would be that a homeowner not only loses a home, but is cheated on what he or she owes on that home. Americans in foreclosure, and the trustee as guardian of the system are right to demand accuracy and truthfulness from creditors' representations in court. Unfortunately, the major players in the mortgage industry are showing little interest in addressing these problems head-on. Instead, when faced with the trustee's scrutiny of their claims, some major mortgage servicers have resorted to engaging in litigation challenging the authority of the United States trustee to look behind their claims and provide sanctions where warranted. The United States trustees in districts around the country are now facing hundreds of challenges to their authority to effectively police the system. It is a great disappointment to see some of the very same banking entities that have benefited so much from congressional action and taxpayer funded assistance put up so much resistance to simple demands for accuracy and truthfulness in their representations to the court and those whose homes they are seeking to repossess. The unfortunate reality is that lenders in many cases will continue to exercise their legal right to foreclose, rather than work with the homeowner to modify a loan. What is entirely unacceptable is for homeowners on the precipice of losing their homes to be mistreated by their lenders--whether through unsupported fees, willfully inaccurate or negligent accounting, or a lack of supporting documentation. This conduct only adds to the pain and hardship so many are experiencing. In 2010, over one million Americans lost their homes to foreclosure. This year, housing industry analysts expect the problem to get worse. The magnitude of this problem, and its effect on American families, is difficult to comprehend. As this crisis continues to deepen, the incentives for lenders and servicers to cut corners, inflate profits, rush foreclosures, and hide from their misconduct will only increase. The legislation I introduce today is about ensuring fair treatment for homeowners, preventing a fraud on the bankruptcy courts, and holding wrongdoers accountable. When Congress created the United States trustee program in 1978, it described the trustee's role as the ``watchdog'' of the bankruptcy system, and vested the trustee's office with the power to investigate fraud in the process. This legislation will support and strengthen this important role so that all participants in the bankruptcy system conduct themselves in accordance with the law. My legislation will do four things. First, it clarifies the United States trustee's inherent power and duty to police all corners of the bankruptcy system. Second, it provides the trustee and the courts with remedies to correct and sanction misconduct and fraud committed by creditors in the bankruptcy process. Third, the legislation empowers the trustee to establish a system of audits to ensure that creditors are complying with the law. These provisions taken together will help make certain that debtors and creditors are held to the same standard in the bankruptcy process. Finally, the legislation addresses a particularly offensive form of mortgage servicer misconduct against men and women serving in our military. The Servicemembers Civil Relief Act (SCRA) protects active duty military personnel by requiring a stable, manageable interest rate for military homeowners on active duty, and by staying foreclosure actions during their deployment. A Government Accountability Office report released this month found that among just two of 14 major mortgage servicing organizations that provided data to Federal regulators, 50 foreclosure actions were carried out in violation of the SCRA. In response to this finding, and to bolster the SCRA's protections for the men and women serving in the military, this legislation would require a mortgage lender seeking relief from the automatic stay to certify under penalty of perjury that the foreclosure was in compliance with the SCRA. As Congress looks at ways to mitigate the foreclosure crisis to reduce its impact on homeowners and the economy, I hope all Senators can agree that the foreclosure process for Americans should be a fair one and one in which there is accountability for fraud or other misconduct. And I hope we can all agree that the integrity of our judicial system is something worth protecting. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I would like to take a moment to congratulate Hal David on his upcoming 90th birthday. Hal is a pioneer in the music industry and a world class lyricist, having composed some of the most enduring songs in American popular music. Marcelle and I spend many wonderful evenings with him and so enjoy hearing his stories of not only his song writing, but others. Hal was born on May 25, 1921, in Brooklyn, NY, and was the son of two immigrants. He served in the U.S. Army Entertainment Section in the Central Pacific during World War II with Carl Reiner and Werner Klemperer. The dedication to his country and the entertainment he provided for the men serving will never be forgotten. Hal's musical writing career took off with his first hit record ``The Four Winds and the Seven Seas.'' His legendary collaboration with composer Burt Bacharach began in 1957 with the Marty Robbins hit ``The Story of My Life'' and included other hits such as ``Magic Moments'' and ``What the World Needs Now is Love.'' Through this successful partnership, Hal and Burt Bacharach were nominated for four Academy Awards and won the Oscar for best song in the 1969 film ``Butch Cassidy and the Sundance Kid'' with ``Raindrops.'' Hal David also works on legislative efforts as a board member on the American Society of Composers, Authors, and Publishers, ASCAP, and led the battle against source licensing. During Hal's time as chairman and CEO of the Songwriters Hall of Fame, he helped launch the Songwriters Hall of Fame Gallery at the Grammy Museum in Los Angeles. Hal's achievements have earned recognition on a local and international stage. He has been inducted into the Nashville Songwriters Hall of Fame and the Songwriter Hall of Fame, which honors the most popular songs from around the world. He was also the first non-British award recipient to receive the Recording Academy and Ivor Novello Award bestowed by the British Performing Rights Society. I commend him on his impressive lyricist career that has entertained countless Americans and citizens around the world. Hal David is a dedicated and talented lyricist and friend, and I am pleased to join in wishing him a happy 90th birthday and all the best in his future endeavors.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am proud to introduce the National Guard Empowerment and State-National Defense Integration Act of 2011 along with my National Guard Caucus Co-Chair, Senator Lindsey Graham. Our bill builds upon earlier reforms proposed and enacted through the work of the Guard Caucus to give the Guard and Reserve a seat at the Pentagon's budget and policymaking tables and to update jurisdictional and operational lines of authority in Guard matters, recognizing that the Guard has evolved to become a front-line, 21st Century force that is still trapped in a 20th Century Pentagon bureaucracy. This bill represents a bipartisan effort to do the right thing by the men and women of our National Guard, and Senator Graham and I hope that it will receive speedy consideration and passage. Ten years ago, the National Guard of the United States was very different than the Guard protecting our country today. A young private joining the National Guard on September 10, 2001, was joining a force designed to participate in an all-out, no-holds-barred war with the Soviet Union, even though the Soviet Union had ceased to exist a decade before. When that private showed up for drill, he or she found facilities in disrepair, a Guard demoralized by inattention from Pentagon leaders, and equipment that seemed to predate the Cold War. Of course, the life of that private, and of our entire nation, would change dramatically in the days to come. September 11, 2001, woke us up to new realities. Yes, the United States still faced threats from overseas, and like the rest of us, the National Guard wanted to do its part. But as we began to call on the Guard to deploy, those of us who pay special attention to the Guard started to ask questions. Was the Pentagon actually going to send our Guard overseas to fight with its ancient and decrepit fleet of vehicles? What about training? Who would help get these units ready for the battlefield? Senator Graham and I wish we could say that every necessary measure was taken to correct these problems before our National Guard deployed. But we are still correcting them, and that's what this piece of legislation is all about. Ever since 9/11, I worked with my friend Senator Bond to make sure that these equipment, staffing, training, and other issues that our National Guard faced would be fixed. Our efforts culminated just a few years ago in the first National Guard Empowerment Act, which accomplished things like getting the Chief of the National Guard Bureau a fourth star--and a louder voice in the Pentagon bureaucracy. Now Senator Graham and I are continuing that work. We will not rest until every soldier and airman in the Guard has the training, equipment, and leadership he or she needs to accomplish the mission. I would like to highlight a few things the bill will do. It will make the Chief of the National Guard Bureau a statutory member of the Joint Chiefs of Staff, a change we have needed for a full decade to make sure Pentagon decision makers consider the unique nature of the Guard when making decisions. The bill authorizes appropriations for Guard domestic operations. It authorizes the State Partnership Program, which has had such great success in my home state of Vermont. The bill will also help our emergency response operations. During Hurricane Katrina, we saw military forces so confused by state and federal distinctions. This bill includes a section focused on a new unity of effort plan that the Pentagon and the Department of Homeland Security have been working on with the Council of Governors and others. The bill will also clarify the relationship between the National Guard Bureau and the U.S. Northern and Pacific Commands and increase the Guard representation in U.S. Northern Command. Overall, this bill moves our Guard and our country forward. It makes our Guard more effective in accomplishing the missions assigned to it. We ask so much of our men and women in the Guard. Senator Graham and I are proud today to continue looking out for them and empowering them to get the job done when we call them away from civilian life to put on the uniform. We look forward to many of our colleagues joining us in this effort. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am pleased to introduce the Electronic Communications Privacy Act Amendments Act of 2011, a bill to bring our Federal electronic privacy laws into the digital age. Since the Electronic Communications Privacy Act, ECPA, was first enacted in 1986, the ECPA has been one of our Nation's premiere privacy laws. But, today, this law is significantly outdated and out-paced by rapid changes in technology and the changing mission of our law enforcement agencies after September 11. In the digital age, American consumers and businesses face threats to privacy like no time in history. With the explosion of new technologies, including social networking sites, smartphones and other mobile applications, there are many new benefits to consumers. But, there are also many new risks to their privacy. Just in the past few weeks, we have witnessed significant data breaches involving Sony and Epsilon that impact the privacy of millions of American consumers. We are also learning that smartphones and other new mobile technologies may be using and storing our location and other sensitive information posing other new risks to privacy. When I led the effort to write the ECPA 25 years ago, no one could have contemplated these and other emerging threats to our digital privacy. Updating this law to reflect the realities of our time is essential to ensuring that our Federal privacy laws keep pace with new technologies and the new threats to our security. This bill takes several steps to protect Americans' privacy in the digital age. First, the bill makes common sense changes to the law regarding the privacy protections afforded to consumers' electronic communications. Under the current law, a single e-mail could be subject to as many a four different levels of privacy protections, depending upon where it is stored and when it was sent. The bill gets rid of the so-called ``180-day rule'' and replaces this confusing mosaic with one clear legal standard for the protection of the content of e-mails and other electronic communications. Under my bill, service providers are expressly prohibited from disclosing customer content and the government must obtain a search warrant, based on probable cause, to compel a service provider to disclose the content of a customer's electronic communications to the government. This bill also provides important new consumer privacy protections for location information that is collected, used, or stored by service providers, smartphones, or other mobile technologies. To protect consumer privacy, my bill requires that the government obtain either a search warrant, or a court order under the Foreign Intelligence Surveillance Act, in order to access or use an individual's smartphone or other electronic communications device to obtain geolocation information. There are well-balanced exceptions to the warrant requirement if the government needs to obtain location information to address an immediate threat to safety or national security, or when there is user consent or a call for emergency services. The bill also requires that the government obtain a search warrant in order to obtain contemporaneous, real-time, location information from a provider. There is an exception to the warrant requirement for emergency calls for service. To address the role of new technologies in the changing mission of law enforcement, the bill also provides important new tools to law enforcement to fight crime and keep us safe. The bill clarifies the authority under the ECPA for the government to temporarily delay notifying an individual of that fact that the government has accessed the contents of their electronic communications, to protect the integrity of a government investigation. The bill also gives new authority to the government to delay notification in order to protect national security. Lastly, the ECPA Amendments Act strengthens the tools available in ECPA to protect our national security and the security of our computer networks. The legislation creates a new limited exception to the nondisclosure requirements under the ECPA, so that a service provider can voluntarily disclose content to the government that is pertinent to addressing a cyberattack. To protect privacy and civil liberties, the bill also requires that, among other things, the Attorney General and the Secretary of Homeland Security submit an annual report to Congress detailing the number of accounts from which their departments received voluntary disclosures under this new cybersecurity exception. In addition, the bill clarifies the kinds of subscriber records that the Federal Bureau of Investigations may obtain from a provider in connection with a counterintelligence investigation. This reform will help to make the process for obtaining this information more certain and efficient for both the government and providers. I drafted this bill with one key principle in mind, that updates to the Electronic Communication Privacy Act must carefully balance the interests and needs of consumers, law enforcement, and our Nation's thriving technology sector. I also drafted this bill in careful consultation with many government and private sector stakeholders, including the Departments of Justice and Commerce, State and local law enforcement, and members of the technology and privacy communities. I thank the Digital Due Process Coalition and the many other stakeholders who support this bill. I also thank the Departments of Commerce and Justice for their guidance on how the ECPA impacts the needs of our law enforcement community and our national economy. I look forward to continuing to work with all of these stakeholders as this bill moves forward. Two decades before Congress first enacted the Electronic Communications Privacy Act, Chief Justice Earl Warren wisely opined that ``the fantastic advances in the field of electronic communications constitute a greater danger to the privacy of the individual.'' This aptly describes the state of our digital privacy rights today. The balanced reforms in this bill will help ensure that our Federal privacy laws address the many dangers to personal privacy posed by the rapid advances in electronic communications technologies. Accomplishing this challenging task will not be easy. But, with the introduction of the Electronic Communications Privacy Act Amendments Act of 2011, we take a significant step towards this very important goal. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

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

Mr. LEAHY. Mr. President, today, the Senate finally considers the nomination of Susan Carney of Connecticut to fill a judicial emergency vacancy on the Court of Appeals for the Second Circuit. Ms. Carney has twice been considered by the Judiciary Committee and has twice been reported with strong bipartisan support, first last year and again in February. The majority of the Republicans on the Judiciary Committee have twice joined in supporting this nomination. I expect that she will be confirmed with significant bipartisan support. This is one of several judicial nominations that the minority refused to consider, despite being favorably reported by the Judiciary Committee last year. Hers will be the 16th nomination confirmed this year that could and, in my view, should have been considered last year. That is right: Of the 24 judicial nominations the Senate will have considered and confirmed this year, including Ms. Carney, almost 70 percent were delayed from last year. We have only been able to confirm eight judicial nominees who had hearings and were reported for the first time this year. So when some say we are taking ``positive action'' on large percentages of nominees, what this shows is how many unobjectionable nominees were stalled last year by objections from the minority. This is only the third circuit court nomination the Senate has been allowed to consider all year. There are several others awaiting final Senate action. Caitlin Halligan is an outstanding nominee to the DC Circuit. Bernice Donald of Tennessee has the support of her home State Republican Senators, and should be confirmed promptly to the Sixth Circuit. Henry Floyd of South Carolina has the support of his home State Republican Senators and should not be delayed from serving on the Fourth Circuit. The circuit nominee stalled the longest is Professor Goodwin Liu of California. He is nominated to the Ninth Circuit and is strongly supported by his home State Senators. He is qualified and will make an outstanding judge. He is brilliant and understands the role of a judge. He has been reported three times by the Senate Judiciary Committee. The stalling on his nomination should end. The Senate should vote and confirm Goodwin Liu. Susan Carney, currently the deputy general counsel of Yale University, has a career of distinguished service. After graduating with honors from Harvard College and Harvard Law School, Ms. Carney clerked for Judge Levin H. Campbell of the Court of Appeals for the First Circuit. She then spent 17 years in private practice, obtaining significant appellate litigation experience, before becoming the associate general counsel of the Peace Corps. Ms. Carney has spent the last 13 years in the Office of the General Counsel at Yale University, and is now Yale's second highest ranking legal officer. Ms. Carney's nomination has the strong support of both of her home State Senators, Senator Lieberman and Senator Blumenthal, along with the Federal Judiciary Committee of the Connecticut Bar Association and the New York City Bar Association's Committee on the Judiciary. Ms. Carney's nomination also had the strong support of Mr. Dodd, the distinguished former Senator from Connecticut. Before he retired from the Senate, Senator Dodd introduced Ms. Carney to the Judiciary Committee at her nomination hearing. He said of Ms. Carney: Throughout her career, Susan Carney has developed a professional versatility and breadth of legal knowledge well suited to serve on the Second Circuit Court of Appeals. And perhaps even more important, I believe she has exhibited the kind of temperament and unflinching respect for the rule of law that are absolutely critical components, in my view, of serving on the Federal courts. It is no surprise that Ms. Carney's nomination has received such strong bipartisan support on the Judiciary Committee. The Senate should have been able to debate and vote on her nomination before Senator Dodd left the Senate. I am pleased we are finally going to vote on it today. I am sorry that another outstanding nominee from Connecticut, Judge Robert Chatigny, was also prevented by the minority from receiving consideration and a vote by the Senate. After he was favorably reported last year, Senate Republicans refused to agree to a debate and vote on his nomination, and insisted on returning it to the President without Senate consideration. He is a fine judge whose record was distorted in their opposition to him. That was a shame. I thank the majority and Republican leaders for agreeing to schedule the vote on Ms. Carney's nomination today. The Senate's agreement to debate and vote on long-delayed nominations like that of Ms. Carney and of Judge Edward Chen of the Northern District of California last week show that the delays that have slowed our progress on nominations are unnecessary. With the breakthrough earlier this month when 11 Republicans joined in ending the filibuster against another long- stalled nomination, that of Judge Jack McConnell of Rhode Island, we have begun to make progress and, in fact, take ``positive action'' or judicial nominations held up for months by the minority. With vacancies still totaling almost 90 on Federal courts throughout the country, with another dozen future vacancies on the horizon, we need to do more to ensure that the Federal judiciary has the resources it needs to fulfill its constitutional role. Including Ms. Carney's nomination, there are 15 judicial nominations on the Senate Executive Calendar, more than half of which have been ready for final Senate action for weeks and, in some cases, many months. I thank the Judiciary Committee's ranking member, Senator Grassley, for working with me to consider nominations in the Judiciary Committee. We have a fair but thorough process, including reviewing extensive background material on each nominee, and giving all Senators on the committee, Democratic and Republican, the opportunity to ask the nominees questions at a live hearing and following the hearing in writing. All of these nominees which the committee reported to the Senate have a strong commitment to the rule of law and a demonstrated faithfulness to the Constitution. All have the support of their home State Senators, both Republican and Democratic. They should not be delayed for weeks and months needlessly after being so thoroughly and fairly considered by the Judiciary Committee. Our ability to make progress regarding nominations has been hampered by the creation of what I consider to be misplaced controversies about many nominees' records. I hope no Senator cites one such invented controversy as a basis for opposing Ms. Carney's nomination. In the time that the Senate has been prevented from voting on Ms. Carney's nomination, some on the far right have made baseless allegations about Ms. Carney. Their false claim is that Ms. Carney engaged in a coverup after another Yale administrator had erroneously confirmed to a Korean institution that a prospective hire earned a Ph.D. from Yale. In fact, the opposite is true. It was Ms. Carney who informed the Korean institution that Yale had erred. I hope no Senator is taken in by this smear campaign against a good nominee. Concerns that Ms. Carney lacks sufficient experience to be an appellate judge are also misplaced. She has been a lawyer for 30 years and has a wealth of experience, including, as I mentioned, 17 years in private practice with experience in appellate litigation. I have, nonetheless, heard this purported concern raised by the handful of Republican Senators who oppose Ms. Carney's confirmation. I believe that Ms. Carney's wide range of experience as a lawyer in private practice and as deputy general counsel of one of the world's leading educational and research institutions--one with an annual budget that exceeds $2 billion--have prepared her well to serve on the Second Circuit. Along with Connecticut and New York, it is Vermont that is served by the circuit court to which Ms. Carney has been nominated. All Senators from States within the Second Circuit support her confirmation. I also note that I did not hear Republican Senators raise any concerns about lack of judicial experience when President Bush nominated, and the Senate confirmed, 24 nominees to circuit courts with no prior judicial experience, and a number with little trial litigation experience. Even as some Republicans have opposed this nominee by saying that she does not have sufficient litigation experience, Republican Senators have recently tried to twist nominees' litigation experience against them. Their partisan attacks are not consistent. When a nominee has extensive experience and is a successful trial lawyer, they complain that the nominee has too much experience and will be biased by it. Republicans opposed Judge McConnell of Rhode Island because he was an excellent trial lawyer. They opposed Judge Chen of California despite his 10 years as a fair and impartial Federal judge magistrate and disregarded his judicial record. The Republican opposition to President Obama's judicial nominees has been anything but consistent. Now some will turn around and oppose Ms. Carney, a nominee with more than 30 years of legal experience, by saying she has not had sufficient experience as a trial advocate. This reminds me of the story of the mother who sent her son two neckties as gifts. When she visited, the son picked her up at the airport dutifully wearing one of the ties, only to hear his mother complain: ``What's the matter? Don't you like the other tie?'' Let us turn away from such double standards and return to the longstanding Senate practice of judging nominees on their merits, not based on caricatures. Our ability to finally reach a time agreement and have a vote on the nomination of Susan Carney is a welcome sign of progress. We still have a long way to go to do as well as we did during President Bush's first term, when we confirmed 205 of his judicial nominations. We confirmed 100 of those judicial nominations during the 17 months I was chairman during President Bush's first 2 years in office. So far, well into President Obama's third year in office, the Senate has only been allowed to consider 84 of President Obama's Federal circuit and district court nominees, well short of 205. We need to work together to ensure that the Federal judiciary has the judges it needs to provide justice to Americans in courts throughout the country. I congratulate Ms. Carney and her family on her confirmation today. Mr. President, I yield the floor and suggest the absence of a quorum, and ask unanimous consent that the time be charged equally to both sides.

Mr. LEAHY

Mr. LEAHY. Mr. President, I would like to join the Vermont Commission on National and Community Service in paying tribute to the outstanding Americorps men and women who have volunteered countless hours this past year supporting Vermont's communities, and communities around the country. The Vermont Commission on National and Community Service, first established by Governor Howard Dean in 1993, works with AmeriCorps volunteers, community volunteers and other organizations throughout Vermont to grow Vermont's dynamic communities. The service to others and civic engagement that the volunteer programs organized by the Commission promote are the cornerstone of Vermont's most treasured values. Being a dedicated volunteer is often not an easy task. The Vermont Commission on National and Community Services allows servicemembers to shine through their vast opportunities and resources for our Vermont- based volunteers. Within the scope of their work, the Commission provides various opportunities to work in our communities through the AmeriCorps, Senior Corps and Learn and Serve America programs. The experiences of these volunteers will allow them to share their community values with the rest of Vermont and our great country. I continue to be impressed with the achievements our dedicated professionals and young volunteers reach during their inspiring careers. I am pleased that the staff of the Vermont Commission on National and Community Service, along with their Americorps members, are being recognized for all that they have done day in and day out throughout Vermont. The skills and experiences of these volunteers are instrumental in helping our communities tackle tough and complex problems. I am fortunate to call Vermont my home, and we are more than lucky to have so many local role models that continue to inspire our young citizens to get involved. Whether volunteering as an Americorps member, or helping a next door neighbor in need, Vermonters carry forward our longstanding tradition of community service and involvement. This is why Vermont continues to be the great State that it is today. To the staff and volunteers of the Vermont Commission on National and Community Service, again I say thank you for all that you do for Vermont.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am pleased to introduce the Electronic Communications Privacy Act Amendments Act of 2011, a bill to bring our Federal electronic privacy laws into the digital age. Since the Electronic Communications Privacy Act, ECPA, was first enacted in 1986, the ECPA has been one of our Nation's premiere privacy laws. But, today, this law is significantly outdated and out-paced by rapid changes in technology and the changing mission of our law enforcement agencies after September 11. In the digital age, American consumers and businesses face threats to privacy like no time in history. With the explosion of new technologies, including social networking sites, smartphones and other mobile applications, there are many new benefits to consumers. But, there are also many new risks to their privacy. Just in the past few weeks, we have witnessed significant data breaches involving Sony and Epsilon that impact the privacy of millions of American consumers. We are also learning that smartphones and other new mobile technologies may be using and storing our location and other sensitive information posing other new risks to privacy. When I led the effort to write the ECPA 25 years ago, no one could have contemplated these and other emerging threats to our digital privacy. Updating this law to reflect the realities of our time is essential to ensuring that our Federal privacy laws keep pace with new technologies and the new threats to our security. This bill takes several steps to protect Americans' privacy in the digital age. First, the bill makes common sense changes to the law regarding the privacy protections afforded to consumers' electronic communications. Under the current law, a single e-mail could be subject to as many a four different levels of privacy protections, depending upon where it is stored and when it was sent. The bill gets rid of the so-called ``180-day rule'' and replaces this confusing mosaic with one clear legal standard for the protection of the content of e-mails and other electronic communications. Under my bill, service providers are expressly prohibited from disclosing customer content and the government must obtain a search warrant, based on probable cause, to compel a service provider to disclose the content of a customer's electronic communications to the government. This bill also provides important new consumer privacy protections for location information that is collected, used, or stored by service providers, smartphones, or other mobile technologies. To protect consumer privacy, my bill requires that the government obtain either a search warrant, or a court order under the Foreign Intelligence Surveillance Act, in order to access or use an individual's smartphone or other electronic communications device to obtain geolocation information. There are well-balanced exceptions to the warrant requirement if the government needs to obtain location information to address an immediate threat to safety or national security, or when there is user consent or a call for emergency services. The bill also requires that the government obtain a search warrant in order to obtain contemporaneous, real-time, location information from a provider. There is an exception to the warrant requirement for emergency calls for service. To address the role of new technologies in the changing mission of law enforcement, the bill also provides important new tools to law enforcement to fight crime and keep us safe. The bill clarifies the authority under the ECPA for the government to temporarily delay notifying an individual of that fact that the government has accessed the contents of their electronic communications, to protect the integrity of a government investigation. The bill also gives new authority to the government to delay notification in order to protect national security. Lastly, the ECPA Amendments Act strengthens the tools available in ECPA to protect our national security and the security of our computer networks. The legislation creates a new limited exception to the nondisclosure requirements under the ECPA, so that a service provider can voluntarily disclose content to the government that is pertinent to addressing a cyberattack. To protect privacy and civil liberties, the bill also requires that, among other things, the Attorney General and the Secretary of Homeland Security submit an annual report to Congress detailing the number of accounts from which their departments received voluntary disclosures under this new cybersecurity exception. In addition, the bill clarifies the kinds of subscriber records that the Federal Bureau of Investigations may obtain from a provider in connection with a counterintelligence investigation. This reform will help to make the process for obtaining this information more certain and efficient for both the government and providers. I drafted this bill with one key principle in mind, that updates to the Electronic Communication Privacy Act must carefully balance the interests and needs of consumers, law enforcement, and our Nation's thriving technology sector. I also drafted this bill in careful consultation with many government and private sector stakeholders, including the Departments of Justice and Commerce, State and local law enforcement, and members of the technology and privacy communities. I thank the Digital Due Process Coalition and the many other stakeholders who support this bill. I also thank the Departments of Commerce and Justice for their guidance on how the ECPA impacts the needs of our law enforcement community and our national economy. I look forward to continuing to work with all of these stakeholders as this bill moves forward. Two decades before Congress first enacted the Electronic Communications Privacy Act, Chief Justice Earl Warren wisely opined that ``the fantastic advances in the field of electronic communications constitute a greater danger to the privacy of the individual.'' This aptly describes the state of our digital privacy rights today. The balanced reforms in this bill will help ensure that our Federal privacy laws address the many dangers to personal privacy posed by the rapid advances in electronic communications technologies. Accomplishing this challenging task will not be easy. But, with the introduction of the Electronic Communications Privacy Act Amendments Act of 2011, we take a significant step towards this very important goal. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I wish to bring the attention of the Senate to a small business in Vermont, the Outdoor Gear Exchange, which is moving to a new location near and dear to my heart--the Church Street Marketplace in Burlington. A large, national retailer recently chose to depart the Marketplace. This left a big hole on one of our nation's most successful pedestrian malls. The local owners of the Outdoor Gear Exchange, Marc Sherman and Mike Donahue, quickly took the opportunity to move their successful venture from a nearby side street onto Church Street. As a longtime supporter of the Church Street Marketplace, I was pleased to see this locally owned and much-beloved fixture in the Vermont business scene fill one of the most high-profile store fronts on Church Street. I hope Americans interested in good news during this difficult economy might take a moment to read about this great business, and I ask unanimous consent to have the May 16, 2011, Burlington Free Press article written by Dan D'Ambrosio entitled ``Outdoor Gear Exchange takes its store, and philosophy, into a bigger space'' printed in the Record.