Patrick Leahy

Mr. LEAHY

Mr. LEAHY. I move to reconsider the vote.

Mr. LEAHY. Mr. President, we are trying to put the law back to the way it was before this little amendment was slipped into the PATRIOT Act. We should oppose the amendment of the Senator from Alabama. It would not put it back the way it was. Actually, under this amendment, the Senator from Alabama could not have been appointed U.S. attorney, and former Attorney General Thornburg and former Deputy Attorney General Larry Thompson could not have been. The President should move quickly to appoint the U.S. attorney if there is a vacancy, but in the meantime, the judges are in the best position to appoint somebody. I hope a district court never has to make an appointment. But let's assume you have a case where there is widespread corruption. The judge has to be able to put in someone independent. It worked well for 100 years. It was changed by something slipped into the PATRIOT Act. Let's go back to the way we were, Mr. President. I oppose this amendment and ask for the yeas and nays.

Mr. LEAHY. Mr. President, I ask unanimous consent that the next two votes be 10 minutes in duration.

Mr. LEAHY. Mr. President, I move to reconsider the vote.

Mr. LEAHY. Mr. President, I ask unanimous consent that between the votes there be 2 minutes equally divided in the usual fashion.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

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

Mr. LEAHY. Mr. President, I have said many times on this floor that one of the greatest opportunities I have ever had in my public life was to serve for 8 years as a prosecutor. Prosecutors have to be independent. Prosecutors have to prosecute without fear of favor. Prosecutors can never not prosecute someone because they are a Republican or Democrat; they have to do it because they have to uphold the law. Let us restore the situation where our Federal prosecutors, whether we have a Democratic President or a Republican President, serve the law and not a political purpose. That is what prosecutors have to do. Many of us in this Chamber have served as prosecutors and know that is what we meant when we took our oath of office. Let's not have a system that at the outset subverts that oath of office. I wish to commend Senator Feinstein for leading this effort and Senator Specter, the ranking Republican on our committee, for joining her. We have all cosponsored the substitute to restore the statutory checks that existed. I commend the many Senators who contributed to this debate, including the majority leader, Senator Kennedy, Senator Durbin, both Senators from Arkansas, Senator Whitehouse, Senator McCaskill, Senator Schumer, Senator Murray, Senator Cardin, and Senator Klobuchar. Many speak from their own experiences as former prosecutors. Let's pass this bill without amendments. We have a piece of legislation to protect the integrity of prosecutors and law enforcement. Let's pass it without amendment, pass it as it is, and strike a blow for the integrity of our Federal prosecutors and strike a blow for law enforcement. Because if you politicize a prosecutor, you politicize everybody in the whole chain of law enforcement. We should never do that. Let's pass this bill and restore integrity to Federal law enforcement. Mr. President, I yield the floor. Exhibit 1 The Federal Prosecutor (By Robert H. Jackson, Attorney General of the United States, April 1, 1940) It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. These powers have been granted to our law enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere. This authority has been granted by people who really wanted the right thing done-- wanted crime eliminated--but also wanted the best in our American traditions preserved. Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the Senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor. Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized Department of Justice. It is an unusual and rare instance in which the local District Attorney should be superseded in the handling of litigation, except where he requests help of Washington. It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled. Experience, however, has demonstrated that some measure of centralized control is necessary. In the absence of it different district attorneys were striving for different interpretations or applications of an Act, or were pursuing different conceptions of policy. Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts. To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary. Our problem, of course, is to balance these opposing considerations. I desire to avoid any lessening of the prestige and influence of the district attorneys in their districts. At the same time we must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law. Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done. The lawyer in public office is justified in seeking to leave behind him a good record. But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance. Reputation has been called ``the shadow cast by one's daily life.'' Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just. The federal prosecutor has now been prohibited from engaging in political activities. I am convinced that a good- faith acceptance of the spirit and letter of that doctrine will relieve many district attorneys from the embarrassment of what have heretofore been regarded as legitimate expectations of political service. There can also be no doubt that to be closely identified with the intrigue, the money raising, and the machinery of a particular party or faction may present a prosecuting officer with embarrassing alignments and associations. I think the Hatch Act should be utilized by federal prosecutors as a protection against demands on their time and their prestige to participate in the operation of the machinery of practical politics. There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. What every prosecutor is practically required to do it to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain. If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm--in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself. In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly do we need to be dispassionate and courageous in those cases which deal with so-called ``subversive activities.'' They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a ``subversive activity,'' such as we have for murder or larceny. Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as ``subversive'' by those whose property interests might be burdened or affected thereby. Those who are in office are apt to regard as ``subversive'' the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term ``Republican'' and the term ``Democrat'' were epithets with sinister meaning to denote persons of radical tendencies that were ``subversive'' of the order of things then dominant. In the enforcement of laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of Congress, or dissemination of news or opinions. Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor. Another delicate task is to distinguish between the federal and the local in law enforcement activities. We must bear in mind that we are concerned only with the prosecution of acts which the Congress has made federal offenses. Those acts we should prosecute regardless of local sentiment, regardless of whether it exposes lax local enforcement, regardless of whether it makes or breaks local politicians. But outside of federal law each locality has the right under our system of government to fix its own standards of law enforcement and of morals. And the moral climate of the United States is as varied as its physical climate. For example, some states legalize and permit gambling, some states prohibit it legislatively and protect it administratively, and some try to prohibit it entirely. The same variation of attitudes towards other law- enforcement problems exists. The federal government could not enforce one kind of law in one place and another kind elsewhere. It could hardly adopt strict standards for loose states or loose standards for strict states without doing violence to local sentiment. In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may. Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly. The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

Mr. LEAHY. Mr. President, I thank the Senator from California for her statement and her leadership. She has been so forthright in her comments right from the beginning of this scandal, and I appreciate it. I will have more to say about her efforts at the end of my statement. In a few minutes, the Senate will have an opportunity to begin restoring accountability and checks and balances to what is our Government, the Government that belongs to all Americans. We should pass the Preserving U.S. Attorneys Independence Act. We have to close a loophole that has been exploited by the Department of Justice and the White House--a loophole that led to the mass firings of U.S. attorneys. When we roll back this excessive authority given the Attorney General by the PATRIOT Act reauthorization, we can restore--or at least take a step toward restoring--the independence of our Federal law enforcement system. We will be acting to reverse one more incident of overstepping by an earlier ``rubberstamp'' Congress, which was all too often willing to dance to the tune of a power-hungry White House. The Attorney General--and I will agree with the Attorney General on this--he is right that mistakes were made. Mistakes were made, all right. It was a mistake to conduct the mass firings to send the message to our U.S. attorneys that they had better act like ``loyal Bushies''-- their words, the Administration's words--rather than act as objective law enforcement officers. Mistakes were made, absolutely. It was a mistake to malign the reputations of these officials by contending that the firings were prompted by their badly performing their law enforcement responsibilities. It was a mistake to mislead the Senate Judiciary Committee in hearings and Senators during phone calls and in meetings about the firings. It was a mistake to give the Attorney General the unlimited authority to fill these critical posts with his selections or the selections of the White House without the advice and consent of the U.S. Senate. But most of all, it was a mistake to inject crassly partisan objectives into the selection, evaluation, firing, and replacement of the top Federal law enforcement officers in our country. I still have no sense that the administration or the Attorney General understand the seriousness of this matter. The apparent effort to corrupt the Federal law enforcement function for partisan political purposes has cast a cloud over all U.S. attorneys. Now every U.S. attorney is under a cloud. People are asking about those who were retained as ``loyal Bushies.'' People are wondering what prosecutorial judgments were affected. These mass firings have served to undermine the confidence of the American people in the Department of Justice and the local U.S. attorneys. In the same way that any employer has the power to hire, we understand that people cannot be fired because they are Catholic or because of their race or because they are a whistleblower. The power of employment is not without limit. It can be abused. When it is abused in connection with political influence over Federal law enforcement the American people and their representatives in Congress have a right to be concerned. We need to get to the bottom of this situation. We need the facts, not more spin, not another concocted cover story. The U.S. Department of Justice must be above politics. The Attorney General of the United States has to ensure the independence of Federal law enforcement from political influence. The Department of Justice should serve the American people by making sure the law is enforced without fear or favor. It should not be a political arm of the White House. The Attorney General is not the President's lawyer. The President has a lawyer. The Attorney General is the Attorney General for the people of the United States of America--all of us--Republicans, Democrats and Independents. The advice and consent check on the appointment power is a critical function of the Senate. That is what this administration insisted be eliminated by the provision it had inserted in the reauthorization of the PATRIOT Act. That measure struck the time limit on the ability of the Attorney General to name a so-called interim U.S. attorney. And that is what this bill, the Preserving United States Attorney Independence Act of 2007, is intended to restore. It is vital that those holding these critical positions be free from any inappropriate influence. We are finding out more and more abuses by this administration. We learned for the first time earlier this month in testimony by a Congressional Research Service attorney before the House Judiciary Committee about another loophole this administration has tried to create and exploit. In 2003, the Department's Office of Legal Counsel issued a secret legal opinion to try to create an end run around the Senate's role. This administration is the first I am aware that is employing the Vacancies Act in addition to the interim U.S. attorney appointment authority sequentially. The horror that Senator Kyl speaks about is one that this administration created and has apparently been employing. That is not what Congress intended. With the passage of S. 214 today we should put an end to that untoward practice, too. As one of the authors of S. 214 and chairman of the Judiciary Committee, I say it is not our intent to allow such an abuse by having the Vacancies Act provisions and those of S. 214 used in sequence. We do not intend for the Attorney General to use such a misguided approach and seek to install a choice for 330 days without the advice and consent of the Senate. Nor do we intend for the Attorney General to make Senator Kyl's other suggestion a reality by seeking to use the 120-day appointment authority more than once. It is not designed or intended to be used repeatedly for the same vacancy. These double dipping approaches run afoul of congressional intent, the law and our bill. Our bill should put a stop to that, too. Instead, the President should fulfill his responsibilities, work with home State Senators and nominate qualified people to serve as U.S. attorneys so that they can be considered by the Senate and confirmed. If he does not the district court will be restored the stopgap authority they previously had. I was pleased that Senator Feinstein worked so hard with Senator Specter to craft the consensus measure we consider today to reinstate vital limits on the Attorney General's authority and bring back incentives for the administration to fill vacancies with Senate- confirmed nominees. We reported out this measure with bipartisan support 13-6 after debating and voting down several amendments, including amendments similar to those offered today by Senators Kyl and Sessions. We should again vote down these amendments and pass the bipartisan bill without delay. Senator Sessions' amendment would attach certain conditions to a district court's authority to appoint an interim U.S. attorney after 120 days, but none to the Attorney General's interim appointment authority. Our bill is meant to roll back a change in law that allowed an abuse of power by the administration and the Department of Justice. There is no record of problems with the appointment of interim appointments by the district court. In fact, for almost a hundred years until the law was changed in 1986 during the Reagan administration, district courts were the sole means of appointing interim U.S. attorneys. There are many criteria that we want U.S. attorneys to possess--chief among them the ability to enforce the laws independently without fear or favor. But both the prerogatives of the administration in putting in place the people it wants and the home State Senators in ensuring fairness and independence in their States are protected when the President nominates and the Senate considers and confirms U.S. attorneys. Senator Kyl's amendment provides unjustified limitations on the Senate's role in confirming U.S. attorneys that could short-circuit the Senate's ability to undertake a thorough consideration of a nominee's qualifications and wholly disregards the role of the home State Senators. It is true that this President has been slow in nominating U.S. attorneys. There are currently 22 vacancies and only three nominees. Building incentives for this President to fulfill his responsibilities and work with home State Senators would be a good thing. That is not what Senator Kyl's amendment does. Instead, in the guise of setting a time limit on the Senate, what it actually does is override the traditional deference paid to home State Senators and the Judiciary Committee itself. In fact, no time limit is needed to require the committee or the Senate to act on qualified nominees. During this President's term, U.S. attorneys have been confirmed quickly, taking an average of 68 days from nomination to confirmation. Only three people nominated to be U.S. attorneys have not been confirmed and two of those withdrawn by the President. In fact, when I first chaired the Judiciary Committee during President Bush's first term, we confirmed 84 of President Bush's U.S. attorney nominations in a little more than a year. Some critics of the district court's role in filling vacancies beyond 120 days claim it to be inconsistent with sound separation of powers principles. That is contrary to the Constitution, our history, our practices, and recent court rulings. In 2000, in United States v. Hilario, the First Circuit upheld the constitutionality of the prior law on interim appointments, including the district court's role. In fact, the practice of judicial officers appointing officers of the court is well established in our history and from the earliest days. Morrison v. Olson should have laid to rest the so-called separation of powers concern now being trumpeted to justify these political maneuvers within the Justice Department. Certainly no Republicans now defending this administration voiced concern when a panel of judges appointed Ken Starr to spend millions in taxpayer dollars going after President Clinton as a court-appointed prosecutor. During committee consideration we heard from some who had not read what the Constitution says. The Constitution provides congressional power to direct the appointment power. In article II, the part of the Constitution that this administration reads as if it says that all power resides with the President, the President's appointment power is limited by the power of Congress. Indeed, between its provisions calling for appointments with the advice and consent of the Senate and for the President's limited power to make recess appointments, the Constitution provides: But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the Heads of Departments. Just last week, the Eastern District of Arkansas joined at least two other courts addressing the interim appointment of U.S. attorneys, the First Circuit in Hilario, and the Ninth Circuit in United States v. Gantt, in concluding that U.S attorneys are ``inferior officers.'' Thus, the Constitution contemplates exactly what our statutes and practices had previously provided and what our bill will restore. Congress is well within its authority when it vests in the courts a share of the appointment power for those who appear before them. One of the finest Attorneys General of the United States ever to serve was Robert H. Jackson. He also served as one of our most admired Justices on the U.S. Supreme Court. He was a principal prosecutor at the International Military Tribunal for German war criminals in Nuremberg after World War II. The day after I was born, on April 1, 1940, as a new Attorney General, he spoke to the U.S. attorneys from across the country. They were assembled in the Great Hall at the Department of Justice in Washington. He told them about the responsibilities of being a Federal prosecutor. I think it is appropriate today to recall his guidance. His words serve to show the Senate and the American people how wrong this Administration's practices are and how far off the mark. This is what then-Attorney General Jackson said and they are words that serve today. He said: The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. Because of this immense power to strike at citizens, not with mere individual strength, but with all of the force of government itself, the post of Federal District Attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the Senate of the United States. Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington. Robert H. Jackson continued: If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: That he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. It is in this realm in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself. In times of fear or hysteria political, racial, religious, social, and economic groups, often for the best of motives, cry for the scalps of individuals or groups because they do not like their views. Those who are in office or apt to regard as ``subversive'' the activities of any of those who would bring about a change of administration. Mr. President, I ask unanimous consent that a copy of Attorney General Jackson's full statement be printed in the Record at the conclusion of my remarks.

Mr. LEAHY. Mr. President, the Senator from Vermont has 8 minutes; the Senator from California has 5?

Mr. LEAHY. Mr. President, I ask unanimous consent that the use of calculators be permitted on the floor of the Senate during consideration of the budget resolution.

Mr. LEAHY. Mr. President, I see the Senator from California on the floor, and I am about to yield to her. Could I ask, Mr. President, how much time is available to the Senator from Vermont or his designees?

Mr. LEAHY. Mr. President, I believe there are 2 minutes equally divided. I simply ask all Senators, send a very strong signal. We want to correct the mistake made in the PATRIOT Act, a mistake that has been utilized the wrong way. We want to go back to the appointment of U.S. attorneys the way they should be appointed. We want to have the advice and consent of the Senate. I urge all Senators to vote for the legislation Senator Feinstein and I and Senator Specter and others have introduced.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that during consideration of the budget resolution and any votes thereon that Susan Reeves, a congressional fellow with the Budget Committee, and Seema Mittal, a Budget Committee intern, be granted floor privileges.

Mr. LEAHY. Mr. President, on behalf of Senator Grassley, I ask unanimous consent that Anne Freeman and Lynda Simmons of the Finance Committee staff be given privileges of the floor from March 19 through March 25.

Mr. LEAHY

Mr. LEAHY. Mr. President, I thank my friend from Pennsylvania. First, I thank the Senators who began this debate. I have been told a number of family matters changed the ability of some to be here. Over the last several months, the Judiciary Committee has used hearings, investigation, and oversight to uncover an abuse of power that threatens the independence of U.S. Attorney's Offices around the country and the trust of all Americans in the independence of our Federal law enforcement officials. We have probed the mass firings of U.S. attorneys. We are trying to get to the truth in order to prevent these kinds of abuses from happening again. So today, the Senate finally begins debate on S. 214; that is, the Preserving United States Attorney Independence Act of 2007. The bill was initially introduced by Senator Feinstein and me on January 9. On January 18 during a hearing on oversight of the Department of Justice, we asked the Attorney General about these firings. We then followed up with two hearings devoted to the matter on February 6 and March 6. I placed the bill on the agenda for the Judiciary Committee's first business meeting on January 25 but action on the measure was delayed until our meeting on February 8. At the time we debated the bill, considered and rejected amendments, and the committee on a bipartisan basis voted 13 to 6 to report favorably the Feinstein-Specter-Leahy substitute. We have sought Senate consideration of this bill for more than a month now, but Republican objections have prevented that debate and vote. But through the majority leader's persistence, he was ultimately able to obtain consent to proceed to this measure today. I thank all Senators for finally allowing it to go forward. My friend from California, Senator Feinstein, gave our bill a straightforward title: ``The Preserving United States Attorney Independence Act of 2007.'' We need to close the loophole exploited by the Department of Justice and the White House that facilitated this abuse. The bill we have before us was initially fought by the Department of Justice when it was in committee. It appears that even after these scandals, there are people there who want to continue to have this loophole that has been so badly misused. But likely because of the public outcry against the administration's attempt to maintain that loophole and the ability to do what no one intended them to do, we had a meeting in my office on March 8 in which the Attorney General finally said the administration would no longer oppose this bill. So I trust that tomorrow when the Senate votes on this legislation, we will pass it and take a step toward restoring the independence of Federal law enforcement in this country. Even if we pass the bill, the Judiciary Committee will continue to investigate the firings. We will summon whoever is needed to learn the truth. What we have already learned from the few documents we have seen from the Department of Justice appear to confirm the Attorney General, officials at the Department of Justice, and officials at the White House had previously misled Congress and the American people about the mass firings and the reasons behind them. The most fundamental problem is that this administration has apparently insisted on corrupting Federal law enforcement by injecting crassly partisan objectives into the selection and evaluation and firing and replacement of top Federal law enforcement officers around our country--our U.S. attorneys. When you corrupt it at that level, at the prosecutor level, you affect everybody--all the police, all the investigators, all the agents who report to the U.S. Attorney's Office--because if they think the investigations they carry out have to reflect certain partisan politics, then they cannot do their job. Ultimately, it hurts not just the people in law enforcement, it hurts every man and woman in the United States of America. We have heard the Attorney General and even the President use what William Schneider has called the ``past exonerative'' tense in conceding ``mistakes were made.'' The ``past exonerative'' tense. I remember conjugating my verbs in grade school. We learned about verbs, adjectives, adverbs, everything else. I guess it took this administration to bring up the ``past exonerative'' tense. Sister Mary Gonzaga probably would have wondered what I was saying had I come up with that when I was in school. Now let's take a look at their use of this ``past exonerative'' tense. Attorney General Gonzales has yet to specify what mistakes he made. So what mistakes were made? Was it a mistake to allow the White House, through the President's top political operative and his White House counsel, to force the firing of a number of high-performing, Bush-appointed U.S. attorneys? Or when he says ``mistakes were made,'' did he mean it was a mistake for the President and his top political operatives to tell the Attorney General and others in the Department about concerns that U.S. attorneys are not pushing fast enough or hard enough to indict Democrats but were pushing too hard and too fast in indicting corrupt Republicans? Was that the past mistake the President and the Attorney General meant? Or when the Attorney General and the President say ``past mistakes were made,'' did they mean it was a mistake to generate, with White House political operatives, a hit list for firing hard-working U.S. attorneys and to ensure that what they call--and these were their words--``loyal Bushies'' are retained? Or when they say ``mistakes were made,'' did they mean it was a mistake to name more ``loyal Bushies'' to replace those U.S. attorneys who have shown the kind of independence they are supposed to show in exercising their law enforcement authority and who have acted without fear or favor based on political party? Because when a crime is committed, you do not ask whether the victim was a Republican or a Democrat. You ask if a crime was committed. If a crime was committed, you expect the prosecutor to prosecute. You do not expect them to be fired if they step on the toes of either political party. This is an administration that seeks to justify its unilateralism by an expansive application of what it calls a ``unitary executive theory''--everything comes from the President on down. But do you know what. With all that authority and all that control, when they get caught with their hand in the cookie jar all of a sudden no one knows anything, no one can remember anything, no one did anything, and no one told the President. ``Oh, my goodness gracious, we didn't know this happened until we picked up the papers.'' Obviously, they did not know it happened when they were testifying up here under oath the first time around to tell us what happened. Instead, ``mistakes were made.'' Is the only ``mistake'' they are now willing to concede their failure to cover up the White House influence over the Justice Department? Is the only ``mistake'' they will admit that they got caught in a series of misleading statements to Congress, the media, and the American people? I still wonder if those in the administration or the Attorney General understand the seriousness of this problem. Of course, mistakes were made. That is why we are here. It is our oversight duty to discover who made those mistakes and how and why they made them. I have said many times, the Members of the Senate and the Members of the other body should never be rubberstamps. We are elected independently. We respond to the American people. We are supposed to ask questions when something happens. What we have seen so far corrupts the Federal law enforcement function. It has cast a cloud over all U.S. attorneys. Now every U.S. attorney is under that cloud. People are asking: If they were not fired, if they were kept on, is that because they are ``loyal Bushies''? Does that mean they will only go after crime if it hurts Democrats but not if it hurts Republicans? What an awful signal to send to law enforcement. This is a crippling signal to send to law enforcement. Those fired have had their reputations rehabilitated to some degree by coming forward as we have publicly examined the facts of their firings. But those circumstances raise questions with respect to those retained and what they had to do to please the White House political operatives in order to keep their jobs. The mass firings have thus served to undermine the confidence of the American people in the Department of Justice and their local U.S. attorneys. A recent study of Federal investigations of elected officials and candidates shows a political slant in the Bush Justice Department in public corruption cases. The study found that between 2001 and 2006, 79 percent of the elected officials and candidates who have faced a Federal investigation were Democrats and only 18 percent Republicans. It seems their track record is wanting, and they have been caught again with their hand in the cookie jar. Of course the President has the power to appoint U.S. attorneys. Nobody questions that. What is raising concerns is the apparent abuse of that authority by removing U.S. attorneys for improper reasons. In the same way any employer has the power to hire, we know people cannot be fired because they are Catholic or because of their race or because they are whistleblowers. The power of employment is not without limit. It can be abused. When it is abused in connection with political influence over Federal law enforcement, the American people and those of us who are entrusted with the power to represent them have a right to be concerned. We need the facts. We do not need more spin. We do not need another cover story. We do not need another ``We will come up to the Hill. We will brief you on this. Let's have a quiet little briefing. We will tell you what is going on.'' And then we pick up the paper 2 days later and find out what they left out. Oh, I want a briefing, all right. I want a briefing where they stand before us and raise their right hand and swear to tell the truth, the whole truth, and nothing but the truth, so help them God. Then we will ask them questions; both Democrats and Republicans will. And the American people will be able to determine who is telling the truth. I made no secret during our confirmation proceedings of my concern whether Mr. Gonzales could serve as an independent Attorney General on behalf of the American people and leave behind his role as counselor to President Bush. As the Nation's chief Federal law enforcement officer, he must carry out his responsibilities and exercise his awesome authority on behalf of the American people. He has to enforce the law. He has to honor the rule of law. He must act with the independence necessary to investigate and prosecute wrongdoing without fear or favor. The political interests of the President cannot be his guiding light. When he said as recently as January 18 at our hearing that the President is his ``principal,'' when he says in an interview he wears two hats--as a member of the President's staff and as head of the Justice Department--then he has forgotten what the Attorney General is. The President has a lawyer. The President has counsel. It is not the Attorney General. This is not the Attorney General of the President. This is the Attorney General of the United States of America. His clients are the American people and his principles must be devoid of partisan politics. He is not there as the President's loyal counsel. He is there as the Attorney General of the United States of America, for every single one of us. His mission is not to provide legalistic excuses or defenses for unlawful actions of the administration, such as the warrantless wiretapping of Americans or the use of torture and the issuing of signing statements to excuse following the law. He is not the one who should be excusing this kind of outrageous conduct. He should enforce the law. He should ensure that Federal law enforcement is above politics. What kind of signal do we send to our Federal law enforcement agencies if we suggest to them they cannot do their job without checking the political credentials of the people they are investigating? The President can pick anybody he wants to serve on his White House staff--and he does. But when it comes to the U.S. Department of Justice and to the U.S. attorneys in our home States, Senators have a say and a stake in ensuring fairness and independence to prevent the Federal law enforcement function from untoward political influence. That is why the law and the practice has always been these appointments require Senate confirmation. The advice and consent check on the appointment power is a critical function of the Senate. That is what this administration insisted be eliminated. They wanted to do away with that check and balance. They wanted to do away with the confirmation process. So they had inserted in the reauthorization of the PATRIOT Act a provision to remove limits on the ability of the Attorney General to name an interim U.S. attorney. That is what our bill intends to restore. We have seen again the effects of letting politics infiltrate the Department and undermine its independence and the independence of its law enforcement function. As we have learned more about these events over the last few months, I was reminded of a dark time some 30 years ago when President Nixon forced the firing of the Watergate prosecutor Archibald Cox. Not since what came to be known as the ``Saturday Night Massacre'' have we witnessed anything of that magnitude. The calls to the U.S. attorneys across the country last December, by which they were forced to resign, were extraordinary. Unlike during the Watergate scandal, there is no Elliott Richardson or William Ruckelshaus seeking to defend the independence of the Federal prosecutors. Instead, we have a cabal of the Attorney General, the Deputy Attorney General, the Executive Office of U.S. Attorneys in the White House, all apparently collaborating in efforts to sack a number of outstanding U.S. attorneys. Then when it becomes public and when the first time in 6 years the House and Senate actually dare ask questions about what is going on, the administration, amazed they have been questioned about their actions, starts a series of shifting explanations and excuses. Lack of accountability or acknowledgment of the seriousness of this matter makes it all the more troubling. The Attorney General's initial response at our January 18 hearing when we asked about these matters was to brush aside any suggestion that politics and the appearance of ongoing corruption investigations were factors in the mass firings. But now we know that contrary to what he told us then, these factors did play a role in this troubling project. Today and tomorrow we can take a step forward by fixing the statutory excess that opened the door to these untoward actions. I commend Senator Feinstein for leading this effort. I commend Senator Specter for joining her. We have all cosponsored the substitute to restore the statutory checks that have existed for the last 20 years. It is time to take that first step toward restoring independence by rolling back a change in law that has contributed to this abuse. There have been no good answers to our questions about why the administration removed U.S. attorneys without having anybody lined up to replace them or why home State Democratic Senators were not consulted in advance. There is no explanation for why there are now 22 out of the 93 districts with acting or interim U.S. attorneys instead of Senate-confirmed U.S. attorneys. I look at this in light of my own experience. I am very proud of the fact I was a prosecutor. The only thing in my personal office that has my name on it is a plaque from my prosecutor's office presented to me by the police when I left office, and it also has my shield, my badge as a prosecutor. I used to instill in the police and those prosecutors who worked for me: You don't take sides. Nobody is a Democrat or a Republican when crimes are committed. We don't take sides. If you keep emphasizing this and proving it by the way you carry out your office, then police work better, investigators work better, courts work better, the grand juries work better, because they know you are not playing politics. The American public, whoever is within the area the prosecutor represents, feels safer because they know you are not playing favorites. I lived my life that way as a prosecutor and I know many Republicans and Democratic Senators in this Chamber who are former prosecutors did the same. I am worried that even successfully restoring the law is not going to undo the damage done to the American people's confidence in Federal law enforcement. For that, we need to get to the truth and real accountability. But then I think all of us in both parties now, and no matter who holds the White House 2 years from now, must renew a commitment to insulate Federal law enforcement officers from the corrupting influence of partisan politics and the corrosive influence of White House intrusion into law enforcement activities. Mr. President, I will have more to say on this later. I see my friend from Arizona who has been waiting patiently, and I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Senator from Pennsylvania said we are considering the nomination of Thomas Hardiman to a seat on the U.S. Court of Appeals for the Third Circuit that has been designated a judicial emergency by the Administrative Office of the U.S. Courts. In 2003, the Senate confirmed Judge Hardiman to the District Court for the Western District of Pennsylvania at the age of 37. Four years later, and now 41 years old, Judge Hardiman is before the Senate for confirmation to lifetime tenure on the United States Court of Appeals for the Third Circuit. Out of deference to the home state Senators, Senator Specter and Senator Casey, I support this nomination. I only wish President Clinton's nominees, many of whom had a long record of accomplishment, had received the treatment we are according this nominee. Instead, highly qualified nominees, such as Elena Kagan, now Dean of the Harvard Law School, and Allen Snyder, who served as a clerk to Justice Rehnquist and was an experienced and respected litigator, were left without consideration for years. No questions were raised about their qualifications, as there have been for so many of President Bush's nominations. The fact is that during President Clinton's last two years, Senate Republicans refused to consider more than half of his appellate court nominees. They were just blocked, pocket filibustered with impunity. Last Congress, we wasted enormous time and energy with controversial nominees. Now, a Democratic Congress has taken a better path and the high road. Judge Hardiman has been nominated to a seat on the Third Circuit after serving as a Federal district court judge for four years. Before arriving on the bench, Judge Hardiman was a lawyer in private practice, where he worked for 13 years. In 1990, Judge Hardiman began his legal career as an Associate at the law firm of Skadden, Arps, Slate, Meagher & Flom in Washington, DC. From 1992 to 2003, he engaged in the private practice of law in Pittsburgh, PA, first as a partner at the law firm of Titus & Cindrich--now Titus & McConomy, LLP--and later as a partner at Reed Smith, where he specialized in real estate, contracts, securities, and constitutional law. Judge Hardiman graduated from the University of Notre Dame in 1987, and received his law degree from my alma mater the Georgetown University Law Center, in 1990, where he served on the Georgetown Law Journal as a Notes and Comments Editor. I thank both home State Senators for their support of this nominee. I know Senator Specter, who has been a strong advocate for Judge Hardiman on the Committee, will welcome his confirmation. I also thank Senator Casey for his support, and for considering and approving this nominee so quickly after taking office. With this confirmation, the Senate continues to make significant progress in this Congress on nominations for lifetime appointments to the Federal bench. We continue to put the lie to the alarmist rhetoric of some on the other side of the aisle by proceeding promptly and efficiently. This session of Congress, the Senate has already confirmed 10 judicial nominations, including the nomination of Norman Randy Smith to the Court of Appeals for the Ninth Circuit. And now the Senate stands poised to confirm a Second Circuit court nomination and will likely have confirmed 13 judges by the end of the day. The treatment of President Bush's judicial nominees in a Democratic Congress stands in stark contrast to the fate of many of President Clinton's nominees, who were blocked and delayed by the Republican majority. In the 1996 session, a Republican-controlled Senate confirmed only 17 of President Clinton's nominees--this year, we have already reported 15 nominees out of committee in just 3 months. In 1996, not a single judge was confirmed to the circuit courts--not one. This nomination is already the second confirmed this year. In all, more than 60 of President Clinton's judicial nominees were defeated in Senate committees through pocket filibusters and practices that Republicans then abandoned as soon as there was a Republican in the White House. Regrettably, the Administrative Office of the U.S. Courts lists 50 judicial vacancies, yet the President has sent us only 20 nominations for these vacancies. Thirty of these vacancies-more than half-have no nominee. Of the 22 vacancies deemed by the Administrative Office to be judicial emergencies, the President has yet to send us nominees for 16 of them. That means more than two-thirds of the judicial emergency vacancies are without a nominee. I would rather see us work together in the selection of nominees so that we can confirm judges rather than spend time fighting about them. I congratulate Judge Hardiman, and his family, on his confirmation today.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased the Judiciary Committee approved and the Senate is considering S. 655, the American National Red Cross Governance Modernization Act of 2007. I thank my colleagues, Senator Grassley and Senator Kennedy, for their hard work on this issue and for introducing this important bill. Since its founding by Clara Barton in 1881, the American Red Cross has provided crucial relief services to those affected by famine, floods, and natural and manmade disasters. Last year alone, the American Red Cross responded to approximately 75,000 disasters with the help of more than 1 million volunteers and 35,000 employees. As a key participant in the U.S. disaster relief plan, the American Red Cross is charged with helping the United States prevent, prepare and respond to national emergencies. Over the past several years, however, the American Red Cross has been strained by disasters of an unparalleled scope: the terrorist attacks of September 11, 2001, the December 2004 Asian tsunami, and the 2005 hurricane season that included the enormously destructive Hurricanes Katrina, Rita, and Wilma. These events all challenged the Red Cross's ability to respond to disasters quickly and effectively. In order to improve its disaster relief services, the American Red Cross's Board of Governors unanimously voted to accept recommendations given by an independent advisory board, which examined the American Red Cross's governance structure and practices. S. 655 reflects these recommendations and would improve the American Red Cross's governance structure by centralizing and reorganizing its infrastructure. Some notable enhancements include reducing its board size from 50 members to 20 in order to facilitate emergency action, giving the board all the powers in governing and managing the American Red Cross, and establishing a Presidential Advisory Council composed of 8 to 10 principal officers of the executive departments and senior officers of the Armed Forces to provide governmental input and support. Additionally, the modernized charter would enhance congressional oversight and transparency by creating an ombudsman who would provide an annual report to Congress articulating any concerns of volunteers, employees, donors, clients and the public. According to the American Red Cross's end of the year report, Hurricane Katrina created a record of 1.4 million families, or around 4 million people, who needed emergency assistance such as food, clothing, and other necessities. My wife Marcelle was one of hundreds of thousands of volunteers dedicated to providing these essential relief services to victims of Katrina. No one knows when the next disaster will strike. Congress must do everything in our power to ensure that the American Red Cross can continue and improve upon the essential humanitarian work on which the United States and the world relies. I commend the Red Cross for taking important action to reform itself, and I urge my colleagues to support this important legislation.

Mr. LEAHY

Mr. LEAHY. We yield back all of our time.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to join Senator Kohl, the chairman of the Subcommittee on Antitrust and Competition Policy, by cosponsoring once again the No Oil Producing and Exporting Cartels, NOPEC, Act. I thank Senator Kohl for his leadership on this important issue, and Senators Specter, Grassley, Feingold, Snowe, Schumer, Durbin, Boxer and Coburn the other cosponsors, for their continued support of this critically important effort. The collusive behavior of certain oil producing nations has artificially--and drastically reduced the supply and inflated the price of fuel. Put simply, the behavior of these oil cartels, which would be illegal under antitrust laws, grievously harms American consumers and businesses. We have introduced this measure in each of the last four Congresses. We introduce it again today, in our never-ending effort to make OPEC accountable for its anticompetitive behavior by allowing the Justice Department to crack down on illegal price manipulation by oil cartels. This bill will allow the Federal Government to take legal action against any foreign state, including members of OPEC, for price fixing and artificially limiting the amount of available oil. While OPEC actions remain protected from antitrust enforcement, the ability of the governments involved to wreak havoc on the American economy will remain unchecked. When the President took office, Americans could fill their cars, heat their homes, and run their businesses on gasoline that cost $1.45 a gallon. Fuel prices have skyrocketed since then. Prices will at times fall, but because fuel prices are not properly subject to competition oversight and enforcement, the American consumer will only benefit from lower prices when it serves some other purpose of the cartel and foreign governments. President Bush has said he is concerned about gasoline costs and has pledged that the government would keep a close watch on unacceptable profiteering. It is time for the President to join us in supporting this legislation. Our antitrust laws have been called the ``Magna Carta of free enterprise.'' If OPEC were simply a foreign business engaged in this type of behavior, it would already be subject to them. It is wrong to let OPEC producers off the hook just because their anticompetitive practices come with the seal of approval of national governments. I urge my colleagues to support this bill and to say ``No'' to OPEC.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to join Senator Kohl, the chairman of the Subcommittee on Antitrust and Competition Policy, by cosponsoring once again the No Oil Producing and Exporting Cartels, NOPEC, Act. I thank Senator Kohl for his leadership on this important issue, and Senators Specter, Grassley, Feingold, Snowe, Schumer, Durbin, Boxer and Coburn the other cosponsors, for their continued support of this critically important effort. The collusive behavior of certain oil producing nations has artificially--and drastically reduced the supply and inflated the price of fuel. Put simply, the behavior of these oil cartels, which would be illegal under antitrust laws, grievously harms American consumers and businesses. We have introduced this measure in each of the last four Congresses. We introduce it again today, in our never-ending effort to make OPEC accountable for its anticompetitive behavior by allowing the Justice Department to crack down on illegal price manipulation by oil cartels. This bill will allow the Federal Government to take legal action against any foreign state, including members of OPEC, for price fixing and artificially limiting the amount of available oil. While OPEC actions remain protected from antitrust enforcement, the ability of the governments involved to wreak havoc on the American economy will remain unchecked. When the President took office, Americans could fill their cars, heat their homes, and run their businesses on gasoline that cost $1.45 a gallon. Fuel prices have skyrocketed since then. Prices will at times fall, but because fuel prices are not properly subject to competition oversight and enforcement, the American consumer will only benefit from lower prices when it serves some other purpose of the cartel and foreign governments. President Bush has said he is concerned about gasoline costs and has pledged that the government would keep a close watch on unacceptable profiteering. It is time for the President to join us in supporting this legislation. Our antitrust laws have been called the ``Magna Carta of free enterprise.'' If OPEC were simply a foreign business engaged in this type of behavior, it would already be subject to them. It is wrong to let OPEC producers off the hook just because their anticompetitive practices come with the seal of approval of national governments. I urge my colleagues to support this bill and to say ``No'' to OPEC.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to join Senator Cornyn in reintroducing the Openness Promotes Effectiveness in our National Government Act'', the ``OPEN Government Act''. This bill contains commonsense reforms to update and strengthen the Freedom of Information Act (FOIA) for all Americans. Last year, the Senate Judiciary Committee favorably reported an essentially identical bill. Sadly, the full Senate did not consider this legislation before it adjourned last year. But, I hope that the Senate will do its part to reinvigorate FOIA this year, by promptly passing this bill. During my three decades in the Senate, I have devoted a considerable portion of my work to improving government openness, to make our government work better for the American people. At times, this has been a lonely effort. But, for the past 4 years, I have been delighted to have Senator Cornyn as a partner on this important issue. I thank him for his leadership on preserving and strengthening FOIA. Now in its fourth decade, the Freedom of Information Act remains an indispensable tool in shedding light on bad policies and government abuses. But, today, FOIA also faces challenges like never before. During the past 6 years, the Bush administration has allowed lax FOIA enforcement and a near obsession with secrecy to undercut the public's right to know. As we celebrate Sunshine Week this week, there is urgent need to update and strengthen our FOIA law. Chief among the problems with FOIA is the major delays encountered by FOIA requestors. According to a report by the National Security Archive, an independent nongovernmental research institute, the oldest outstanding FOIA requests date back to 1989--before the collapse of the Soviet Union. And, while the number of FOIA requests submitted each year continues to rise, our Federal agencies remain unable--or unwilling--to keep up with the demand. Just recently, the Government Accountability Office found that Federal agencies had 43 percent more FOIA requests pending and outstanding in 2006, than they had in 2002. Although the Bush administration has taken modest steps to address the growing problem with FOIA delays, that effort has not done nearly enough to correct lax FOIA enforcement by Federal agencies. More than a year after the President's directive to Government agencies to improve their FOIA services, Americans who seek information under FOIA remain less likely to obtain it. For example, a recent study by the Coalition of Journalists for Open Government found that the percentage of FOIA requestors who obtained at least some of the information that they requested from the Government fell by 31 percent last year. These and other shortcomings with the President's FOIA policy demonstrate that the Congress must play an important role in preserving and strengthening FOIA. The legislation that Senator Cornyn and I introduce today takes several important steps to help Americans obtain timely responses to their FOIA requests and to provide government officials with the tools that they need to ensure that our government remains open and accessible. First, our bill restores meaningful deadlines for agency action by ensuring that the 20-day statutory clock runs immediately upon the receipt of the request and the bill impose real consequences on Federal agencies for missing statutory deadlines. Our bill also clarifies that FOIA applies to agency records that are held by outside private contractors, no matter where these records are located. In addition, our bill establishes a FOIA hotline service for all Federal agencies, either by telephone or on the Internet, to enable requestors to track the status of their FOIA requests. Finally, our bill enhances the agency reporting requirements under FOIA and improves personnel policies for FOIA officials to enhance agency FOIA performance. This legislation was drafted after a long and thoughtful process of consultation with individuals and organizations that rely on FOIA to obtain information and share it with the public, including the news media, librarians, and public interest organizations representing all facets of the political spectrum. This legislation also reaffirms the fundamental premise of FOIA--that government information belongs to all Americans. Again, I thank Senator Cornyn for the time and effort that he has devoted to reinvigorating FOIA, and I urge all Senators to join us in supporting this important open government legislation.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to join Senator Cornyn in reintroducing the Openness Promotes Effectiveness in our National Government Act'', the ``OPEN Government Act''. This bill contains commonsense reforms to update and strengthen the Freedom of Information Act (FOIA) for all Americans. Last year, the Senate Judiciary Committee favorably reported an essentially identical bill. Sadly, the full Senate did not consider this legislation before it adjourned last year. But, I hope that the Senate will do its part to reinvigorate FOIA this year, by promptly passing this bill. During my three decades in the Senate, I have devoted a considerable portion of my work to improving government openness, to make our government work better for the American people. At times, this has been a lonely effort. But, for the past 4 years, I have been delighted to have Senator Cornyn as a partner on this important issue. I thank him for his leadership on preserving and strengthening FOIA. Now in its fourth decade, the Freedom of Information Act remains an indispensable tool in shedding light on bad policies and government abuses. But, today, FOIA also faces challenges like never before. During the past 6 years, the Bush administration has allowed lax FOIA enforcement and a near obsession with secrecy to undercut the public's right to know. As we celebrate Sunshine Week this week, there is urgent need to update and strengthen our FOIA law. Chief among the problems with FOIA is the major delays encountered by FOIA requestors. According to a report by the National Security Archive, an independent nongovernmental research institute, the oldest outstanding FOIA requests date back to 1989--before the collapse of the Soviet Union. And, while the number of FOIA requests submitted each year continues to rise, our Federal agencies remain unable--or unwilling--to keep up with the demand. Just recently, the Government Accountability Office found that Federal agencies had 43 percent more FOIA requests pending and outstanding in 2006, than they had in 2002. Although the Bush administration has taken modest steps to address the growing problem with FOIA delays, that effort has not done nearly enough to correct lax FOIA enforcement by Federal agencies. More than a year after the President's directive to Government agencies to improve their FOIA services, Americans who seek information under FOIA remain less likely to obtain it. For example, a recent study by the Coalition of Journalists for Open Government found that the percentage of FOIA requestors who obtained at least some of the information that they requested from the Government fell by 31 percent last year. These and other shortcomings with the President's FOIA policy demonstrate that the Congress must play an important role in preserving and strengthening FOIA. The legislation that Senator Cornyn and I introduce today takes several important steps to help Americans obtain timely responses to their FOIA requests and to provide government officials with the tools that they need to ensure that our government remains open and accessible. First, our bill restores meaningful deadlines for agency action by ensuring that the 20-day statutory clock runs immediately upon the receipt of the request and the bill impose real consequences on Federal agencies for missing statutory deadlines. Our bill also clarifies that FOIA applies to agency records that are held by outside private contractors, no matter where these records are located. In addition, our bill establishes a FOIA hotline service for all Federal agencies, either by telephone or on the Internet, to enable requestors to track the status of their FOIA requests. Finally, our bill enhances the agency reporting requirements under FOIA and improves personnel policies for FOIA officials to enhance agency FOIA performance. This legislation was drafted after a long and thoughtful process of consultation with individuals and organizations that rely on FOIA to obtain information and share it with the public, including the news media, librarians, and public interest organizations representing all facets of the political spectrum. This legislation also reaffirms the fundamental premise of FOIA--that government information belongs to all Americans. Again, I thank Senator Cornyn for the time and effort that he has devoted to reinvigorating FOIA, and I urge all Senators to join us in supporting this important open government legislation.

Mr. LEAHY

Mr. LEAHY. Madam President, I will vote today in favor of final passage of the Improving America's Security by Implementing Unfinished Recommendations of the 9/11 Commission Act of 2007, S. 4, but I do so with a heavy heart. I am truly disappointed that the chairman and ranking member of the Committee on Homeland Security and Governmental Affairs, Senators Lieberman and Collins, decided to arbitrarily lower the minimum allocation for States under the State Homeland Security Grant Program and the Law Enforcement Terrorism Prevention Program from the 0.75 percent that has existed for the past 5 years to 0.45 percent. Not only would this change to the formula result in the loss of millions in homeland security funding for the fire, police, and rescue departments in small- and medium-sized States, like Vermont, Connecticut, and Maine, it also would deal a crippling blow to their efforts to launch federally mandated multiyear plans to build and sustain their terrorism preparedness. During the Senate floor debate on S. 4, I offered with Senators Thomas, Stevens, Roberts, Pryor, Sanders, Enzi, Hatch, Whitehouse, and Lincoln an amendment to restore the minimum allocation for States under the State Homeland Security Grant Program from 0.45 percent, which is proposed by the underlying bill, to 0.75 percent, which is current law. As with current law, the State minimum under our amendment would have continued to apply only to 40 percent of the overall funding under this program. The majority of the funds would continue to be allocated based on risk assessment criteria, as are the funds under the several separate discretionary programs that Congress has established for solely urban and high-risk areas, which also are governed by risk assessment calculations. Unfortunately, this amendment lost by a vote of 49 yeas to 50 nays. This is a marked change from just last year, when the 0.75 percent minimum allocation was overwhelmingly defended when 64 Senators voted against an amendment that would have lowered the minimum to 0.25 percent. Fifteen Senators changed their votes from last year, including HSGAC Chairman Lieberman and Ranking Member Collins, whose States stand to lose the most from the decreased minimum. The bill that passed the Senate today would reduce the all-State minimum for SHSGP and the Law Enforcement Terrorism Prevention Program to 0.45 percent. The House bill reduces it even further to 0.25 percent. Due to the formula differences, there is no guarantee that the minimum will not be even further reduced during conference negotiations. Small- and medium-sized States face the loss of millions of dollars for our first responders if the minimum is lowered. By reducing the all-State minimum to 0.45 percent, the underlying bill would reduce the guaranteed dollar amount for each State by 40 percent. With appropriations for formula grants having been cut by 60 percent since 2003--from $2.3 billion in 2003, to $900 million in fiscal year 2007--further reductions in first responder funding would hamper even more each State's efforts to prevent and deal with potential terrorist attacks. In fiscal year 2007, State Homeland Security and Law Enforcement Terrorism grants were funded at $525 million and $375 million, respectively, for a total of $900 million. Under the current all-State minimum of 0.75 percent, the base amount States receive is $6.75 million. Based on fiscal year 2007 levels, each State would face a loss of an estimated $2.7 million, or 40 percent, under the new 0.45 percent formula, which would be a real blow to our first responders. And the cuts will be even deeper should the President's budget request for next year be approved. The President has requested only $250 million for these two important first responder grant programs. My colleagues from our largest States--and apparently some small- and medium-sized States--seem to forget that the terrorist attacks of 9/11 added to the responsibilities and risks of first responders nationwide. I wrote the current all-State minimum formula as part of the USA PATRIOT Act of 2001 to guarantee that each State receives at least 0.75 percent of the national allotment to help meet their national domestic security needs. Every State--rural or urban, small or large--has basic domestic security needs and deserves to receive Federal funds under this partnership to meet both those needs and the new homeland security responsibilities the Federal Government demands. Of course, high- density urban areas and high-risk centers have even greater needs, which is why this year alone we provided $1.3 billion for homeland security programs for which only a small number of urban areas are eligible to apply. All of these needs deserve and need to be met. I have worked hard over the years to help address the needs of larger States and high-density areas, and I have opposed the Bush Administration's efforts to pit our States against each other, as they have tried to mask their efforts to cut overall funding for first responders. Smaller States, especially, would never be able to fulfill those essential duties on top of their daily responsibilities without Federal support, especially given that DHS is currently suggesting that States will pay for REAL ID implementation, an estimated $16 billion, with first responder grants. My colleagues should be warned that if the minimum drops further--compounded by substantial drops in overall first responder funding--then small- and medium-sized States will not be able to meet those Federal mandates for terrorism prevention, preparedness, and response. Some from urban States argue that Federal money to fight terrorism is being sent to areas that do not need it and is ``wasted'' in small towns. They claim the formula is highly politicized and insists on the redirection of funds to urban areas that they believe face heightened threat of terrorist attacks. What critics of the all-State minimum seem to forget since the September 11 terrorist attacks, the Federal Government has asked all State and local first responders to defend us as never before on the front lines in the war against terrorism. Emergency responders in one State have been given the same obligation as those in any other State to provide enhanced protection, preparedness, and response against terrorists. The attacks of 9/11 added to the responsibilities and risks of first responders across the country. In recent years, due to the 0.75 percent all-State minimum allocation for formula grants that has existed in law, first responders have received resources to help them meet their new responsibilities and have made our neighborhoods safer and our communities better prepared. There is much left undone in securing our Nation. I hope that the Senate's conferees will resist calls for further needless reductions to the all-State minimum base and risk the preparedness efforts in small States like their own. I trust they will do all they can during conference negotiations to ensure continued support and resources for our police, fire, and EMS services in every State if we expect them to continue protecting us from terrorist or responding to terrorist attacks, as well as carrying out their ongoing responsibilities in helping to keep our communities safe and prepared.

Mr. LEAHY

Mr. LEAHY. Mr. President, the front page of The Washington Post Friday delivered the remarkable news that the family of David Rosenbaum has entered into an agreement with Washington's city leaders under which the family will withdraw a $20 million lawsuit--a lawsuit in which they were said to have an excellent chance of prevailing--if the city lives up to a promise to fix the city's troubled emergency response system. David Rosenbaum, the retired New York Times reporter, was fatally beaten last year near his home in Washington. He was a good husband and father, a kind friend and neighbor, and a talented and respected journalist. He had a passion for making government more effective in doing its job. He was a good and a kind man. Those who knew or knew of the Rosenbaums were further saddened last year when David's widow, Virginia Rosenbaum, succumbed to cancer. How fitting, how constructive, and how typical of David Rosenbaum and his life and his work that his family has taken this selfless step. Our best wishes--and our admiration and gratitude--go out to them. The material follows. [From the Washington Post, March 9, 2007] Journalist's Family Wants Reform, Not Money (By David Nakamura) The family of a slain New York Times journalist yesterday agreed to forgo the potential of millions of dollars in damages in exchange for something that might be harder for the D.C. government to deliver: an overhaul of the emergency medical response system that bungled his care at nearly every step. David E. Rosenbaum's family said it will give up a $20 million lawsuit against the city--but only if changes are made within one year. Under a novel legal settlement, the city agreed to set up a task force to improve the troubled emergency response system and look at issues such as training, communication and supervision. A member of the family will be on the panel. Although legal experts said the family could have won millions had it pursued the case, Rosenbaum's brother Marcus said he and other relatives were more interested in making sure that the city enacted measurable changes. ``As details of the case started to come out, we decided among ourselves to do something for all the citizens so that things would be improved,'' Marcus Rosenbaum said, standing next to a dogwood sapling planted near where his brother was mugged in January 2006. David Rosenbaum was pounded on the head with a metal pipe by robbers who accosted him during an evening walk. He then was mistakenly treated as a drunk by D.C. firefighters and other emergency workers, who failed to notice his severe head wound. Rosenbaum, 63, died of a brain injury two days after the attack on Gramercy Street NW. He had recently retired after nearly four decades at the New York Times, where he covered economic policy and other issues, but continued to work in the Washington bureau on special assignments. The D.C. inspector general's office issued a blistering report in June that faulted firefighters, emergency workers, police and hospital personnel for an ``unacceptable chain of failure'' and warned of broader problems with emergency care. The report called for stronger supervision and training, clearer communication and more internal controls for emergency workers and hospital personnel. D.C. Mayor Adrian M. Fenty (D), who joined the Rosenbaum family at the announcement, said that he was pleased with the settlement but that it was just the start of a long process of reform. He did not identify potential changes. ``This was a failure of the government, the most tragic kind of failure the government can have,'' said Fenty, flanked by Acting D.C. Attorney General Linda Singer. ``A settlement does not let anyone off the hook, especially the District government.'' Fenty, who took office in January, pledged last year to oust the chief of the D.C. Fire and Emergency Medical Services Department, Adrian H. Thompson, who many officials felt did not act quickly or aggressively enough to address the failures. Among other things, Thompson issued a statement three days after Rosenbaum's death that said ``everything possible'' had been done to provide care. He later changed course, saying he had been misled, and dismissed or took disciplinary action against at least 10 employees. This week, Fenty nominated Atlanta Fire Chief Dennis L. Rubin to head the department. Rubin said he is familiar with the Rosenbaum case and intends to make changes after studying the D.C. response system more closely. Among issues likely to be on the table: the creation of a separate city department for emergency medical response. Marcus Rosenbaum said he is hoping for the best. ``We are really happy with the way things have gone with the District,'' he said. ``It's like we are adversaries on the same side. We hope this settlement will lead to something good.'' The lawsuit was filed in November on behalf of Rosenbaum's adult children, Daniel and Dottie. Family attorney Patrick Regan praised Fenty for reaching out to the family even before he was sworn in and then instructing his staff to work closely with the Rosenbaums to forge a settlement. But Regan had harsh words for Howard University Hospital--which remains a defendant in the lawsuit in D.C. Superior Court. The city's ambulance bypassed the closest hospital and took Rosenbaum to Howard because one of the emergency medical technicians had personal business to attend to near there. Rosenbaum was not seen by a hospital physician for more than 90 minutes and did not get a neurological evaluation until he had been there almost four hours, the family's lawsuit alleges. ``Howard University's performance was unacceptable, atrocious. It was Third World service in the nation's capital,'' Regan said. ``While the District has stepped up and said, `Work with us,' Howard has refused to step up. They've covered up what they did. . . . At every turn, Howard has offered excuse after excuse.'' A spokeswoman for Howard did not respond to a request for comment. D.C. police also were faulted in the case for failing to thoroughly investigate an earlier robbery that could have led to the suspects. Two men have been convicted in the killing: Percey Jordan, who was sentenced to a 65-year term, and his cousin Michael C. Hamlin, who cooperated with prosecutors and received a 26-year term. The city's new task force will have six months to develop a report. Toby Halliday, Rosenbaum's son-in-law, will serve as the family's representative. The panel will include city officials and emergency care experts who have yet to be identified. ``Our goal is to look beyond the individual errors in this case to bigger issues of emergency medical services,'' Halliday said, as his wife, brother-in-law and other family members looked on. ``The results must be meaningful and measurable,'' Halliday added, ``with changes and results that can be tracked over time to see if they are effective.''