Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, will the Senator yield on that point for a couple of moments?

Mr. LEAHY

Mr. LEAHY. I ask and also the distinguished Senator from North Dakota, Mr. Dorgan.

Mr. LEAHY. Monday we rushed to hold a hearing before the Judiciary committee on this important issue, and what happens? The surrogate for the administration, former White House associate counsel Brad Berenson, who testified before us, defends the habeas corpus stripping provisions of this bill by arguing that the United States has been and still is suffering from an invasion that requires the suspension of habeas corpus. What are we doing? What is going on? That is outrageous. That is running scared. That is so wrong. Is he saying that for 5 years this administration has been allowing an ongoing invasion in the United States and we are not aware of it? Are we going to suspend the great writ on this basis? To quote Kenneth Starr: The United States is neither in a state of rebellion nor invasion. Consequently, it would [be] problematic for Congress to modify the constitutionally protected writ of habeas corpus under current events. I suppose the administration would say we are not modifying it. Heck, no, we are eliminating it. We are not modifying the writ of habeas corpus, we are knocking it out for all aliens. I agree with those from the right to the left, we should not modify, and we certainly should not eliminate, the great writ of habeas corpus. I agree with hundreds of law professors who described an earlier, less extreme version of the habeas provisions of this bill as ``unwise and contrary to the most fundamental precepts of American constitutional tradition.'' And I agree with the former ambassadors and other senior diplomats who wrote to us saying that eliminating habeas corpus for aliens does not help America, it does not make America safer, but rather it harms our interests abroad and makes us less safe. Maybe some of those who want to pretend how powerful they have been in military matters ought to talk to those who have been in the military and actually understand a time when we are reaping the mistakes of our folly in Iraq. Let us not expand it further. The United States, especially since World War II and the Marshall Plan, has been a beacon of hope and freedom for the world. How do we spread a message of freedom abroad if our message to those who come to America is that they may be detained indefinitely without any recourse to justice? In the wake of the attack of September 11, and in the fact of the continuing terrorist threat, now is not the time for the United States to abandon its principles. Admiral Hutson was right to point out that when we do, there would be little to distinguish America from a banana republic or the repressive regimes against which we are trying to rally the world and the human spirit. Now is not the time to abandon American values and to shiver and quake as though we are a weak country and we have to rely on secrecy and torture. We are too great a nation for that. Those are the ways of weakness. Those are the ways of repression and oppression. Those are not the ways of America. Those are not the ways of this Nation I love. The habeas provisions of this bill are wrongheaded. They are flagrantly unconstitutional. Tinkering with them would not make them less wrongheaded but might make them less flagrantly unconstitutional. I see no reason to save the administration from itself and from the inevitable defeat when the Supreme Court strikes them down. Why should those who take our oath to uphold the Constitution seriously, who understand the fundamental importance of habeas to freedom, find ourselves compromising with such an irresponsible provision? That is why at the appropriate point the chairman of the Senate Judiciary Committee and I will offer just one amendment, to remove the habeas provisions from the bill in their entirety. That is the right thing to do. I should also add, that is the American thing to do. We would still be left with the disgraceful but less extreme habeas stripping provisions that we enacted earlier this year in the Detainee Treatment Act. But we would at least not make one bad mistake even worse. By not totally eliminating habeas for all aliens, we can reduce the damage to America's credibility as a champion of freedom and show the American people and the courts that Congress is not entirely cavalier when it comes to its constitutional obligations. We can show the world that this great Nation is not so frightened and so shaky and so quaky that we are going to have to give up the principles that made us a great nation. Our amendment would reduce the grave harm that will be done if the bill before the Senate passes. It was not too late last night for the Republicans to make yet more revisions to this unconstitutional bill. It is not too late today for the Senate to make the bill a little less bad, a little less offensive to the values and freedom for which America stands. This is one American who is not going to run and hide. This is one American who is not willing to cut down the laws of our Nation. This is one American who thinks these laws and our protections have made us great not only here but abroad. This is one American who thinks that our freedoms, our laws, our protections, are what attracted people from other countries, people from other countries who have fled oppression in their own country and fled a lack of rule of law in their own country, to come to America, where we have a rule of law. I yield the floor.

Mr. LEAHY. Mr. President, how much time is there to the Democratic leader on this?

Mr. LEAHY

Mr. LEAHY. Mr. President, today, as we begin the last week of this legislative session, the Senate considers the nomination of Francisco Augusto Besosa for a lifetime appointment to the U.S. District Court for the District of Puerto Rico. Mr. Besosa's nomination was reported unanimously to the Judiciary Committee on Thursday of last week. Last week the Judiciary Committee held two business meetings dedicated to judicial nominations. I want to thank all Senators for working with us to expedite consideration of nominations like that of Mr. Besosa. I cooperated last Tuesday with the Chairman's request for a Special Executive Business Meeting. I came to the meeting and established the quorum. The Chairman had said that the meeting would be held to burn holds on two non-controversial circuit court nominees. I agreed to try to expedite consideration of the nomination of Kent Jordan, a nominee to the Third Circuit. Peter Keisler's nomination to the D.C. Circuit is, however, by no means non-controversial. Nonetheless, in an effort to work with the Chairman I stayed and the Republicans held over the Keisler nomination, as well. Then, although we had not discussed either in advance, in order to be accommodating, I did not object when, at the request of Senator Grassley and Senator DeWine, the nominations of John Alfred Jarvey and Sara Elizabeth Lioi were also held over. Those nominations will now be reviewed and available for consideration by the Committee later this week in accordance with the rules of the Committee. Mr. Besosa's nomination was unanimously reported at our regular Thursday business meeting. In addition, we reported a number of other judicial nominations, including one for a judicial emergency vacancy that was given expedited consideration. I thank the Chairman for his kind words in which he acknowledged our cooperation. The Democratic Senators on the Committee have worked hard to accommodating the Chairman's demanding schedule. The Chairman has already held three hearings during the last three weeks and has another scheduled for this week, in addition to another special business meeting. We have held 18 judicial nominations hearings this year, including a Supreme Court hearing, as well as two additional executive nominations hearings. I have been saying for some time that I feared we would sacrifice progress on nominations that can be moved for debate on controversial nominations. It appears that my fears will be realized this week. This Wednesday afternoon and evening, a hearing on the highly controversial nomination of Michael Wallace to the Fifth Circuit has been noticed and renoticed. As the times have changed, it has become even less likely that it will be helpful or productive during this extremely busy time of year. Of course, Mr. Wallace is the first appellate court nominee in 25 years to have been rated unanimously not qualified by the ABA peer review committee. After today, the Senate will have confirmed 31 judicial nominees this year. The Republican Senate confirmed only 17 of President Clinton's judicial nominees in the 1996 session. The Senate has confirmed seven circuit court nominees, which is seven more than the Republican Senate confirmed with a Democratic President during the 1996 session. That year, Republicans would not consider or confirm a single appellate court nomination for an entire year-long session of the Senate, not one. This is a far cry from the days when the Republican Congress pocket filibustered more than 60 of President Clinton's nominees, refusing even to bring them up for a vote in Committee. Of course, during the 17 months that I was Chairman, we were able to confirm 100 of President Bush's nominees. In 20 months of Republican control, with a Republican President, even counting Mr. Besosa's confirmation today, that number will stand at about half that--just 53. We could have accomplished more this year if the White House had sent over consensus nominees early in the year. The White House did not. Many of the nominees we are now trying to consider now were not even nominated until July. Regrettably, the administration concentrated on a few highly controversial nominees and delayed until recently sending nominations and thereby prevented us from having the time to do any meaningful review. We are now in the position of trying to rush through too many nominees too quickly for us to give them real consideration. The White House continues to undermine our process. Instead of working with us and focusing on consensus nominees, the President sent back to us five highly controversial nominees who had been returned to the White House. Sadly, the Senate Republican leadership, which has rubberstamped a number of very poor nominations, may force us to spend time and energy debating troublesome nominations, rather than reviewing and confirming good ones. We have been accommodating, and we will continue to be, but the Judiciary Committee and the Senate should not be a rubber stamp for the President's nominations. We should be taking our constitutional responsibility to advise and consent seriously. That means carefully reviewing the nominees' records and making sure that these are appropriate nominees for lifetime appointments to important Federal judgeships. A customary practice in the Senate would have been for the leaders, the Republican and Democratic leaders, to have sat down with the Chairman and the Ranking Member by now and have worked out a process to conclude the year with respect to judicial nominations. I would have urged that we concentrate on completing our work on those nominations most likely to be confirmed and to maximize the number of confirmations. Sadly, that meeting has not occurred and apparently will not. I congratulate Francisco Besosa and his family on his confirmation today. Mr. President, in the absence of any other Senator seeking recognition, I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Mr. President, today we consider a nominee for the new position of Assistant Attorney General for the National Security Division. All too often, in the Bush-Cheney administration, national security has been cited as a justification for overriding the rule of law and for imposing unprecedented secrecy. With the acquiescence of the Republican-controlled Congress, this administration may be the most unresponsive in history and the most unaccountable. Ken Wainstein is President Bush's selection to be the first Assistant Attorney General for National Security, a new position created by Congress. I will not oppose this nomination in the hope that Mr. Wainstein will work with us and be responsive to the Senate. I have concerns about this administration's unilateral approach to national security issues. Four years ago, the Office of Legal Counsel at the Justice Department issued a secret legal opinion concluding that the President of the United States had the power to override domestic and international laws outlawing torture. The memo sought to redefine torture and asserted that the President enjoys ``complete authority over the conduct of war'' and asserted that application of the criminal law passed by Congress prohibiting torture ``in a manner that interferes with the president's direction of such core war matters as the detention and interrogation of enemy combatants would be unconstitutional.'' It seemed to assert that the President could immunize people from prosecution for violations of U.S. criminal laws that prohibit torture. This memo was withdrawn only after it became public because it could not withstand public scrutiny. We have learned through the media of warrantless wiretapping and data-mining conducted by this administration. This, despite the Foreign Surveillance Intelligence Act and its express provisions, as well as the actions of the Senate in voting to curtail the data-mining programs by Admiral Poindexter at the Defense Department. We have yet to be provided with a convincing legal justification for these programs. We have yet to be able to investigate or hold the administration accountable. Instead, every effort at oversight and accountability has been obstructed or curtailed by the administration. The administration refuses to follow the law and submit matters to the FISA Court and claims state secrets to force court challenges to be dismissed. The administration tells the Senate when, what and how it may investigate. The Department of Justice's own internal Office of Professional Responsibility's probe of whether lawyers at the Department violated ethical rules in justifying these activities was shut down by the Attorney General and the White House. I was disappointed 2 weeks ago when the Judiciary Committee reported out a bill on party lines that would rubberstamp the administration's warrantless wiretapping. We were told that the administration would only follow the law if we passed the legislation endorsed by Vice President Cheney. This is a bill that would expand governmental power and reduce governmental accountability in an area in which we have been unable to engage in effective oversight. As I have said many times and as I continue to believe, we should not legislate in this area until we know more about the NSA's domestic spying activities and more about why the administration chose to flout the law and bypass both the FISA Court and the Congress. I support Senator Feinstein's bipartisan bill, which we also reported out of committee, and I commend her for her hard work to get it done. We should follow Senator Feinstein's thoughtful, cautious, and narrowly tailored approach. Her bill addresses the one concrete problem with FISA that the Attorney General identified, by making it easier for the Government to initiate electronic surveillance in emergency situations. It also clarifies that FISA does not require the Government to obtain a warrant in order to intercept foreign-to-foreign communications, regardless of where the interception occurs. At the same time, we should continue to press the administration for information. We should not take ``no'' for an answer. As this administration continues to expand its power, the Department of Justice should be advising the President to obey the law and respect the Congress and the courts, not just helping to rationalize actions and forestall oversight. In theory, the new position to which Mr. Wainstein has been nominated might help Department of Justice attorneys to act responsibly on national security issues, rather than just to do the White House's bidding. It should put national security issues into the hands of experts, not political cronies. In fact, the WMD Commission recommended in March of last year that the different components of the Department's dealings with national security, terrorism, counterintelligence, and foreign intelligence surveillance be combined to eliminate deficiencies and inefficiencies in the Department's national security efforts. Congress acted to create the post. This new Assistant Attorney General position can only serve a useful role if the person who occupies it is willing to think independently. This administration has consistently prized loyalty over independence and expertise. Mr. Wainstein has some experience as a prosecutor, but he has also been a loyal official of this administration for some time now. I hope that he will be able to look at the crucial national security issues to be handled by this new office with a critical eye and a view toward respecting law and the Congress. If he does, he will be a breath of fresh air in the Bush-Cheney administration. Recently, Judiciary Committee Chairman Specter and I received a letter from the Fraternal Order of Police. The FOP ``endorsed'' Mr. Wainstein ``in order to facilitate his departure from the U.S. Attorney's Office.'' They criticized him for being ``unwilling to perform'' the function of investigating and prosecuting an alleged attack on a police officer. That is not what I would term high praise for his judgment. I ask unanimous consent that a copy of the letter be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I tell my friends from Colorado and Alabama, I certainly would not consume more time than that.

Mr. LEAHY. Mr. President, I thank my friend from Colorado and my friend from Alabama for their usual courtesy. Over the last couple of weeks, the President, as Presidents do, used his pulpit to inform the Senate that his top priority was fixing the problem he created when he unilaterally proclaimed what laws govern military commissions. This newfound desire, this last-minute conversion to the idea of working with Congress, stands in stark contrast to his position in 2002, when a number of us, Republicans and Democrats alike, reached out to the administration and asked the President to work with us to establish the authority for fair and effective military commissions. Four years later, after saying flat out, no, now the administration's go-it-alone plan has succeeded in having no terrorist military commission trials completed and no convictions. They are ``tough on terror,'' but nobody has been convicted. Still, Congress set to work and the Armed Services Committee last week reported a bill that is supported by Republicans and Democrats to authorize military commissions. They worked with the professionals in the military, and listened to them. But this week the Senate Republican leadership has threatened to filibuster that bill, which came from a Republican-controlled committee and was voted for by both Republicans and Democrats. I am a little bit confused. I have been here for 32 years, and I don't always follow exactly what is going on. But as I understand it, last week, the leadership was demanding immediate action on military commissions, saying they were going to be the Senate's No. 1 priority. All of a sudden, they are going to filibuster that. Just last year, the same leadership could not be more critical of what it called leadership-led partisan filibusters on the Democratic side. But apparently they are a great idea when led on the Republican side, even on legislation they supported--or said they did--in the present conference. This week, the priority is a 700-mile fence along the southern border and a study to do the same thing along the northern border. It is getting hard to keep track of their real priorities. In the Spring, the majority leader praised and voted for comprehensive immigration reform. The President supported it. The majority leader stood with Senators on both sides of the aisle and supported that bill. Now, he seems ready to throw our work over the side and abandon our principles. If there is an opportunity for Senate floor time, why not use it instead to put an end to the ongoing war profiteering and contracting fraud in Iraq? Why not help those suffering from Hurricane Katrina? Why not pass a Federal budget? We are required by law to do that in April; it is now late September. Let's show the American people we will obey the law and pass one. Or we can consider the remaining appropriations bills; most have to be completed by next Saturday. Why not work on lowering health care costs? That would get a great cheer from everybody in my State. Or we can work on health insurance costs, fuel costs, or the rising costs of interest rates and mortgage rates. The bill before us was rushed through the House of Representatives; it is not ready for consideration on the Senate floor. It has had no committee hearings whatsoever in the Senate. It is completely different than what the Senate passed, with Republicans and Democrats voting for it just a few months ago. I don't know why we could not have worked in the normal way we have done for a couple hundred years here and worked out the bills we had. Actually, this is an issue on which the President could be of help and show some leadership. He stated privately that he preferred the bill we passed, and it would be nice to hear him support it publicly. Along with a bipartisan majority of Senators, I voted for a far more measured version of a physical barrier on the southern border. In doing so, we demonstrated our commitment to border security. The Senate bill has a provision calling for 370 miles of fencing in the most vulnerable high-traffic areas. That is what the White House requested and recommended. That is what we were told the Secretary of Homeland Security wanted. It also had a provision, which makes a lot of sense, for consultation with the Mexican Government regarding any building of new fences to help ease the tensions that come along with such a project. We don't have an awful lot of friends around the world and we should not work to lose any friendships from our neighbors. In the Judiciary Committee, we also took into account the differences along the northern border and the very close working relationship and personal relationship with the Canadian Government, and kept out a study for a barrier on the northern border. Look what we are debating today instead of all that. It is a hasty, ill-considered, mean-spirited measure that will cost taxpayers billions of dollars. America can do a lot better than this. A wall of this magnitude will be a scar on the landscape, a scar on a fragile desert ecosystem, and a scar on our legacy as a nation of immigrants. My grandparents were immigrants; my parents-in-law were immigrants. What does a 700-mile barrier wall say about us as a free country? Most troubling, this bill would give the Secretary of Homeland Security unfettered power to decide what laws to follow, but even more important, what laws to totally ignore. Read the bill. Remember, it is the same Department of Homeland Security that just last year was supposed to handle Katrina, one of the biggest governmental screw-ups in our lifetime. The Department of Homeland Security was supposed to have those people back a year later in their homes. Instead, we are spending billions of dollars, most of which have been wasted; it has disappeared. What we do see are homes intended for the victims of the Hurricane sitting in fields, empty and decaying. This is the same Department of Homeland Security that has not managed to secure our ports, chemical plants, and our borders. It is the same Department of Homeland Security that the House of Representatives would entrust with unlimited power to ``take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.'' Mr. President, we don't create czars in this country. We fought a revolution to get out of the dictatorial control of King George. We have a constitutional form of government. We don't give one person the power to set aside any law they want. I don't think any executive official, certainly not those who horribly mismanaged our preparation for Katrina and our response to it, should be given one more blank check. How many more blank checks should we give away? We have already given them to Halliburton in Iraq. We have given them to the Department of Homeland Security for Katrina. Remember how this administration misinterpreted the authorization for use of military force? We told them to get Osama bin Laden and they failed miserably, even when they had him cornered. Instead, they say: What we really meant was, not to get Osama bin Laden, but that the President can violate the FISA law and secretly wiretap Americans without a warrant. It is like ``Alice in Wonderland.'' This is the same President who signs a law with his fingers crossed behind his back and then issues a signing statement reserving to himself the power to decide what laws to follow, and how and when. Remember the law against torture? We all voted for that legislation. The President signs a signing statement saying: However, I will determine how best to follow it. This is the administration to which the Republican House wants to give a blank check, even after Justice O'Connor and the Supreme Court-- the Supreme Court made up of seven Republicans out of the nine members--have reminded us our Constitution provides for checks and balances, not a blank check for the administration. As I said, instead of doing the job we should do--sitting down, having a conference, working this out, and actually voting on this legislation--what do the Senate and House Republican leadership want to do? Just give all the power to a Republican appointee, and we can all go home and campaign for reelection. God bless America. The only thing the House left out of its bill is calling this a war on immigrants in which they view Secretary Chertoff as the commander in chief. Actually, I would like to see him take care of the problems in this country, starting with Katrina. Have the lives lost in Iraq and the billions of taxpayers' dollars unaccounted for, the tragedy of 9/11, and Katrina taught us nothing? Everything happened on this administration's watch: Iraq, 9/11, Katrina, and billions of tax dollars wasted trying to fix the messes they created. How many more disastrous mistakes must this administration make before even a Republican-controlled Congress recognizes that abdicating our constitutional role and concentrating power in the executive branch is the wrong strategy for protecting the security and rights of the American people? Do we need to create yet another environment for crony contractors of the Bush-Cheney administration to bilk taxpayers out of billions? Five years of this administration's incompetence has left America's borders unsecured and our immigration system broken. We joined to pass a bipartisan Senate bill with tough, practical, comprehensive immigration reforms to secure the borders, enforce our laws, and fix our immigration system. We want to bring undocumented immigrants out of the shadows. They are not just numbers; they are actual, real people-- mothers, fathers, husbands, wives, children. The President and his administration say that comprehensive immigration reform will make us safer. I agree with the President on this issue. President Bush told the American people he supports comprehensive immigration reform. I told the public I agreed with him. So now, if he wants comprehensive immigration reform, he has to tell the Republican leadership in Congress to stop obstructing it. They haven't even gone to a conference. Nor do we need a study to determine whether we should build a barrier along the 3,175 miles of the United States-Canada border. Heavens to Betsy, most of us who live up there go back and forth all the time. We are visiting our relatives, visiting our cousins. I have been visiting my wife's relatives for years. When they come down, they are not terrorists, they are our neighbors whom we welcome to the United States. As I said before, and I will say again, I have heard some cockamamie ideas in my time in the Senate, but this rises to the top. The northern border is different. It spans the continent. It is the world's longest and safest international boundary, and Canada is our most important trading partner. Have we gone blind? It is clear to me that those who want to build this barrier have no clue about the character, the history, and the day-to-day commercial importance of the northern border and the needs of the States and communities that would be affected. It is best to nip this foolishness in the bud before Congress wastes more tax dollars on another boneheaded stunt. America can do better than this. The Senate has already pointed the way with a bipartisan, comprehensive approach. We need comprehensive reform that reflects America's values and which will actually work. The House bill we debate today will cost the taxpayers dearly, but it will accomplish little.

Mr. LEAHY. I thank the Senator from Alabama.

Mr. LEAHY

Mr. LEAHY. Mr. President, this afternoon I would like to take a moment to mark the passing of a great American--Judge James DeAnda. Judge DeAnda died of cancer on September 7, 2006, at the age of 81. He was appointed to the Federal bench by President Jimmy Carter in 1979 and served as judge on the U.S. District Court for the Southern District of Texas until his retirement in 1992. Before his distinguished tenure as a Federal trial judge, James DeAnda was a tireless civil rights advocate with what has become known as a ``voracious appetite for justice.'' Born in Houston, TX, James DeAnda was the son of Mexican immigrants. He attended Texas A&M University and served in the U.S. Marines during World War II before graduating from the University of Texas Law School in 1950, when there were only a handful of Hispanic law students. James DeAnda returned to Houston after graduation, but he had difficulty finding work because White law firms refused to hire a Hispanic lawyer. Not one to be discouraged, James DeAnda joined another Hispanic lawyer to form a legal practice dedicated to representing Hispanic Americans. In one of his earliest cases, James DeAnda was a member of the four- person legal team behind Hernandez v. Texas, 1954, the first case tried by Mexican American attorneys before the U.S. Supreme Court. In Hernandez, the Supreme Court overturned the murder conviction of a Hispanic man by an all-White jury and for the first time gave Hispanics status as a distinct legal classification deserving of special protection under the Constitution. This case represented a watershed moment in our civil rights history because it opened the door to voting rights, education, and employment challenges by Hispanic Americans. James DeAnda himself used this newly attained classification to fight the segregation of Hispanic children within public schools. He was involved in a number of cases including Cisneros v. Corpus Christi Independent School District, 1970, in which the Supreme Court extended for the first time Brown v. the Board of Education to Hispanics. In 1968, James DeAnda helped found the Mexican American Legal Defense and Educational Fund, MALDEF. As one of our Nation's leading Latino advocacy organizations, MALDEF played a crucial role in Judiciary Committee hearings on reauthorization of the Voting Rights Act this year. Several MALDEF leaders testified before the Senate and House committees about the continued importance of the Voting Rights Act in ensuring equal access and fair representation for minority voters. MALDEF conducted extensive studies showing the unavailability of translated voting materials and language assistance to Spanish-speaking voters, despite the legal requirement that they be provided and clearly demonstrated the need for reauthorization of the Voting Rights Act. Judge James DeAnda inspired generations of civil rights advocates. The continuing work of the organization he helped to found, MALDEF, serves as an enduring legacy to this great American. Our thoughts and prayers go out to his family.

Mr. LEAHY

Mr. LEAHY. Mr. President, what is the pending question?

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

Mr. LEAHY. Mr. President, I will use part of that time. Today we are considering the nomination of Alice Fisher for the position of Assistant Attorney General of the Criminal Division of the U.S. Department of Justice. We have less than 2 weeks left in the legislative session before we recess for the elections. The Republican leadership has once again delayed doing the work of the American people so they can consider a nominee about whom many questions remain. We are being required to consider this nomination despite unanswered questions regarding her role in the administration's controversial, questionable detainee treatment policies. Of course, on these questions, as on so many other matters involving torture and detainees at Guantanamo, the administration has refused to provide Congress with the information it has sought. As I said 2 weeks ago when the President re-nominated five extremely controversial choices for lifetime positions on the Nation's highest courts, I continue to be disappointed in the misguided priorities of the Bush-Cheney administration and, in fact, the rubberstamp Senate Republican leadership. I really think all Americans--Republicans and Democrats--would be better served if we used the few remaining weeks of this legislative session to address vital, unfinished business, such as the war in Iraq. That might be something the American people would really like to see us debate, the war in Iraq. We haven't had a real debate on it since we saw that huge sign a few years ago behind the President that said: ``Mission Accomplished.'' He was dressed up like Tom Cruise in ``Top Gun'' and put up the sign that said: ``Mission Accomplished.'' I guess they decided it was all over; why debate it? It would be nice if we enacted a Federal budget. The law says--the law says, and I say this to my law-and-order friends who control the agenda, my Republican friends who control the agenda--the law says we have to have a budget passed by April. We didn't do it in April or May or June or July or August, now September. We are all law and order around here, but apparently we think we don't have to follow the law. Of course, we are supposed to pass the 11 remaining required appropriations bills by the end of this month. It doesn't look like that is going to happen. We talked about enacting lobbying reform and ethics legislation. I remember the Republican leadership having a wonderful press conference, just absolutely wonderful--just touched by it--especially knowing they would never bring up the legislation. It would be nice to address the skyrocketing cost of fuel. I don't think any one of us goes home where we don't hear about the cost of gas, but we don't do anything about that. People talk to me about health care. We don't do anything about that, either. How about a bipartisan, comprehensive immigration reform bill? I stood outside the White House and praised President Bush for his support of a comprehensive immigration reform bill. He told several of us in a long meeting--and I think he was passionate about it--that we needed to have one. When a 30-vehicle caravan of Vice President Cheney's with sirens wailing came up to the Hill today, I don't think they were saying: Let's pass a comprehensive immigration reform bill. But what we can do is controversial nominations--not the items the law requires us to do but the things the fund-raising letters require. In this case, we have an interesting nominee to be the head of the Criminal Division for the Justice Department. She has never prosecuted a case. She has minimal trial experience. But she is going to be the head of the Criminal Division of the Justice Department. Her career has been spent almost entirely in private practice. She is a longtime protegee of Homeland Security Secretary Michael Chertoff, who was in overall charge of cleaning up after Katrina, which I know will happen some day. So after being his protegee, she is rewarded with the post of heading the Criminal Division of the Justice Department. I did not block her from coming out of the Judiciary Committee. We had a voice vote on June 16 of last year. But then concerns arose about her role, while Mr. Chertoff's deputy, in meetings in which controversial interrogation techniques used on detainees at the Naval Facility in Guantanamo Bay, Cuba, were discussed and decided upon with the Department of Defense. There remain questions about whether Ms. Fisher attended those meetings and her role in determining how these detainees would be questioned and treated. What did she know? When did she know it? What did she do about it? They are simple questions: What did she know? When did she know it? And what did she do about it? None of that has been answered. This administration has yet to come clean to the Congress or to the American people in connection with the secret legal justifications it has generated and practices it employs. They can't dismiss these outrageous practices at Guantanamo as the actions of a few ``bad apples''. With the Senate adoption of the antitorture amendment last year, the recent adoption of the Army Field Manual, and 5 years of the Bush-Cheney administration's resistance to the rule of law and resistance to the U.S. military abiding by its Geneva obligations, that may be finally coming to a close. Of course, we can't even be sure of that, given that despite the great fanfare surrounding the law against torture, we had a Presidential Signing Statement that undermined enactment of the antitorture law and basically said the President and those he designates can work outside the law. Now, I remain troubled by the nominee's lack of prosecutorial trial experience. There have been people who have held this position--Mr. Chertoff, James Robinson, William Weld--who were seasoned Federal prosecutors. In her case, she would be supervising people who have to prosecute and make judgment calls on very complex cases. They would have to decide whether to go forward. She will be the one to finally sign off on that, but she has never prosecuted a case. It is sort of like saying you are going to be the head brain surgeon; however, you have never really been in an operating room, you have never seen a brain, but there you go. Even more troubling, perhaps, is the fact that there are so few senior officials at the Justice Department who do have experience in criminal prosecution. I agree with the chairman of the Judiciary Committee, Senator Specter, who has noted: The lack of criminal experience at the top of the Department ``does concern me.'' He said that while there were lots of ``first-class professionals'' throughout the ranks of prosecutors, ``there are tough judgment calls that have to be made at the top, and it's good to have some experience on what criminal intent means when you have to make those decisions.'' Both Senator Specter and I are former prosecutors. We understand that. I also share the concern of the distinguished senior Senator from Michigan, Senator Levin, with the uncertainty about Ms. Fisher's role as Mr. Chertoff's deputy in the development and use of controversial detainee interrogation techniques. Despite repeated requests from Senator Levin, who is, after all, the ranking member and a past chairman of the Senate Armed Services Committee, joined by others, the Justice Department refused to satisfy Senators on these points. As a result, concerns remain whether Ms. Fisher had knowledge of the abuse of detainees at Guantanamo and what, if any, action she took. The rubberstamp Republican leadership of this Congress has gone along with the administration and said: You can't have the information. Sometimes holding this stuff back creates far more of a problem than just telling the truth out front. If FBI Director Mueller had been more forthcoming with me at, or after, the May 2004 hearing in which I asked him what the FBI had observed at Guantanamo, we could have gotten to a detention and interrogation policy befitting the United States years sooner than we have. But rather than answer a simple, clear question, it is easier to stonewall. If the administration had been forthcoming with Congress in October of 2001 when it decided secretly to flout the FISA law and conduct warrantless wiretaps of Americans, we could have avoided 5 years of lawbreaking, and we could have had a more effective surveillance program targeted at terrorists, not Americans. In other words, every time they cover up, things get worse. Just tell the truth, be open, and things get better. If the administration had answered me when I asked over and over about the Convention Against Torture and about rendition, we could have come to grips with those matters before they degenerated, as they have, into what has become an international embarrassment for the United States. Former Secretary of State Colin Powell, a former Chairman of the Joint Chiefs of Staff, now acknowledges it threatens our moral authority on the war on terrorism. Again, if the administration had honestly answered years ago, we could have cleared it up, and we wouldn't be in a case where the rest of the world looks at us now and asks us what we are doing. Just today, a Canadian commission, having studied it, reports that a Canadian citizen, Maher Arar, who was returning from vacation--a Canadian citizen, a Canadian citizen--was arrested by American authorities at JFK Airport in New York. He was held for 12 days, not allowed to speak to a lawyer or a Canadian consular official, and he was then turned over not to Canada, which was 200 miles away, but to Syria where he was tortured, thousands of miles away. So here is what the United States is faced with. We seized a person from another country in New York, we don't allow him to speak to a lawyer, and we don't allow him to speak with his consular official from his own embassy. We don't send him back to his country, where if he is wanted for something they could arrest him--it is, after all, about a 5-hour drive to the Canadian border--instead we ship him thousands of miles away to be tortured in a Syrian prison, incidentally done without the knowledge of the Canadians. Now, I know how Senator Levin must feel because all of my efforts to get to the bottom of this case have also been brushed aside by the Bush-Cheney administration. Over the years, I have yet to get a satisfactory explanation. The Canadian commission, though, found he had no ties to terrorists. He was arrested on bad intelligence, and his forced confessions in Syria reflected torture, not the truth. We know if you torture somebody long enough, they will say anything you want. The United States should acknowledge what it did, but instead, it uses legal maneuvers to thwart every effort to get to the facts and be accountable for its mistakes. No matter how egregious the mistake, no matter how many international laws are broken, nobody ever admits a mistake around here. Now, I certainly understand, if somebody votes against this nomination, it may be a vote not so much against Ms. Fisher, but a vote against this administration's stonewalling and going it alone to the detriment of the interest of the United States and the safety, security, and rights of all Americans. Last month, our Nation commemorated the one-year anniversary of Hurricane Katrina and the devastation it wrought. We haven't done much to clean it up at Homeland Security, but it is the one-year anniversary. Last week, our Nation commemorated the fifth anniversary of the deadliest terrorist attack on American soil in our Nation's history. These twin tragedies--one caused by nature, one caused by terrorists--serve as somber, but ever present, reminders that our Nation is still not secure. One year after this administration's appalling foot-dragging, incompetent, and wasteful response to Hurricane Katrina, our Nation still has citizens on the Gulf Coast who do not have homes to return to or jobs waiting when they get there. Five years after 9/11, our country still lacks an effective international strategy to protect the American people from terrorism. We need to refocus our efforts and our resources where they belong: on providing real security for the American people. America can do better. The full agenda before us as we enter the final weeks of this legislative session reflects how, even though one party controls the White House, the House of Representatives, and the Senate--even though we have a one-party Government--these Republicans have failed, at our Nation's most pressing hour, to provide this country with leadership. Mr. President, I see the distinguished Senator from Texas on the Senate floor. I reserve the remainder of my time, and I yield the floor.

Mr. LEAHY

Mr. LEAHY. I thank the Chair.

Mr. LEAHY. Mr. President, I ask unanimous consent that I be allowed to speak for up to 12 minutes as in morning business.

Mr. LEAHY. Mr. President, what is the parliamentary situation?

Mr. LEAHY

Mr. LEAHY. Mr. President, it is disheartening to be back on the floor of the Senate again to talk about the looming humanitarian catastrophe in the Darfur region of Sudan. Despite the partial peace agreement signed in May between the Sudanese Government and one rebel faction, the 3-year civil war in Darfur has intensified in recent months. By any account, the situation is rapidly deteriorating. Today, Darfur faces a more complex and brutal environment where rebel groups have splintered, and one has joined forces with the Sudanese Army, strengthening jingaweit militias that have long used rape, murder and mayhem to gain control of the region. On August 28, Sudanese Government forces launched a major offensive in Darfur to finish off any opposing rebels, in direct violation of the Darfur Peace Agreement and cease-fire accord. As a result, tens of thousands more civilians have been forcibly displaced, bringing the total to more than 2 million people. And, of course, for those who have been displaced, disease and dysentery are rampant, causing the death rate to increase. Relief organizations that have not already left the region face near impossible hurdles to reach hundreds of thousands of desperate people in need of food, water, and medical attention who are also vulnerable to the intensifying and indiscriminate aerial bombings. It is a scene straight out of Hell. The well-intentioned, 7,000-member African Union peacekeeping force is understaffed, under-equipped, and has been unable to stop the violence in Darfur. The fact is they don't even have the communications, airlift, mobility, or support that most military would have. Estimates of the number of people who have died from war and disease in Darfur range as high as 450,000. That is 75 percent of the population of my own State of Vermont. The United Nations Security Council adopted Resolution 1706 that would replace the African Union force with a much larger U.N. force empowered to protect civilians. The Sudanese Government not only rejected the resolution but demanded that the African Union withdraw from the country after its mandate expires at the end of this month. While the United Nations, the African Union, and most of the international community are united in support of a larger U.N. peacekeeping force, the government in Khartoum has repeatedly refused. I think they probably fear that the U.N. can pose a challenge to its own ability to act with impunity and its own ability to carry out murder and mass extinction of people. It is ludicrous that a lone despot, Sudan's President Omar Hassan al- Bashir, can obstruct the deployment of a U.N. peacekeeping force to stop genocide from continuing in his country. He has even gone so far as to threaten to attack any U.N. force that enters Sudan. This is a man who has made it very clear he supports the genocide and will try to stop anybody who wants to bring a halt to it. Despite the Bush administration's diplomatic efforts in pressing for urgent international intervention to ease the Darfur crisis, China and Russia managed to thwart passage of a stronger U.N. Security Council resolution. And on August 20, the Arab League Committee on Sudan backed the Sudanese President's refusal of a U.N. peacekeeping force. They further distanced themselves from any responsibility for the situation in Darfur. It is amazing. People are dying. People are being killed. They are being raped. They are being murdered. They are being starved and they are dying of all kinds of diseases. Nobody takes responsibility. All the forces that can do something about it--Russia, China, the Arab League, Sudan itself, that could stop this--wash their hands of it. The diplomatic inertia on Darfur is illustrative of just how much America's credibility and influence has eroded in the eyes of the world, largely because of our misguided policy in Iraq. We can't threaten anybody. We can't cajole anybody. We have lost our credibility. We have squandered the trust and confidence of our allies, particularly those in the Arab world, and now the administration's leverage with which to solve other regional and global crises has weakened. Darfur is one example. The impasse over Iran's nuclear program is another. It is tragic how much damage this administration's policies have caused to America's leadership on so many issues that require the cooperation and support of other nations. The price in Darfur is an emboldened Sudanese regime that has managed to defy U.S. diplomatic pressure and the deaths of thousands of innocent people. Urgent and immediate action is essential to save Darfur from further catastrophe. First, the President will today finally appoint a Presidential Special Envoy to Sudan. Many of us here, myself included, called for the designation of a Special Envoy for Sudan for months, so this long overdue decision is welcome. Secondly, although the African Union troops are too few and lightly equipped to stop the violence, they are serving as witnesses for the rest of the world at a time when the government in Khartoum commits atrocities and makes it more difficult for humanitarian organizations and journalists to operate. The United States and other nations must continue to support the African Union until a U.N. peacekeeping force is deployed, knowing that could take 4 to 6 months. There should be no doubt that our first priority is to get U.N. peacekeepers on the ground as soon as possible. But in the interim, if African Union troops are forced to leave at the end of September, the last line of protection will be lost and an even worse period of lawlessness and slaughter will begin. Third, the administration should call upon the European Union and United Nations Security Council to impose financial, travel, and diplomatic sanctions against the Sudanese leadership, rebel forces, and others responsible for the atrocities in Darfur. Fourth, we must increase diplomatic pressure on countries friendly to Khartoum--particularly Russia, China, members of the Arab League--to use their influence to convince Sudan to support a United Nations peacekeeping force. If they don't, Russia, China, and members of the Arab League also have to bear complicity for genocide. Unfortunately, these are the same countries where our own influence has weakened dramatically over the past 5 years. Fifth, the administration should urge all United Nations member states to accelerate implementation of Security Council Resolution 1706 for the deployment of U.N. peacekeepers to Darfur. The White House should be working vigorously to persuade other countries to commit troops and funds for the U.N. force. Finally, in circumstances such as these, the United Nations should be empowered to deploy troops to prevent the mass murder of civilians, irrespective of stubborn, self-serving opposition of the government of the country. When a country's corrupt, abusive leader, lacking any legitimate mandate from the people, flagrantly violates U.N. resolutions and a cease-fire agreement and embarks on a scorched Earth campaign which threatens the lives of countless innocent people, the U.N. should be able to go in. If Darfur was not in Africa but it was in Europe, we would have responded differently. Although belated, our response, as the leader of NATO, to the ethnic cleansing in the former Yugoslavia put a quick end to that ethnic cleansing. Darfur is on a different continent, but the forcefulness of our response to genocide should not depend on where genocide occurs or the race or ethnicity or nationality of the victims. Human beings are dying, irrespective of their color or their ethnicity or their nationality. The United States should stand up and do all we can to stop genocide. I have no illusions about the difficulties of ending this conflict, nor do I question the sincerity of those who tried. But the efforts so far have been woefully inadequate. The situation calls for more intensive, sustained, high-level attention than our country and other countries have provided so far. It is genocide whether it is White people or Black people, whether it is Europeans or Africans. Genocide is genocide. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, in my 32 years as a U.S. Senator, I have met many extraordinary people. They have included Presidents, Kings and Nobel laureates, artists, soldiers, nurses, activists, and ordinary Americans who are doing any number of wonderful, selfless, and courageous things for their families, their communities, and their country. Some of these people chose careers in public service. Others were leading normal, uneventful lives when they were unexpectedly confronted with circumstances that caused them to become leaders. Many have simply lived inconspicuous lives caring for others. And then there are those who have struggled to overcome unfair and seemingly impossible hurdles and in doing so have shown a force of character and spirit that breaks barriers and inspires awe among everyone they meet. Ben Chater, a Vermonter who interned in my office several years ago during the summer after his sophomore year at the University of California at Berkeley, is in the latter category. Born with cerebral palsy, Ben has faced obstacles from birth that the rest of us could not even imagine, much less overcome. He has done so with amazing grace, courage, and good humor, and his accomplishments are nothing short of awe inspiring. Ben's refusal to let his disability prevent him from taking on practically any challenge has been an example for me and my wife Marcelle, for my staff, and for virtually everyone who has come into contact with him. I have little doubt that Ben will continue to set ambitious goals and in reaching them he will demonstrate even further the incredible capacity of the human spirit to overcome adversity. He will also continue to erase the stereotypes and misconceptions about the potential of people with disabilities. Ben was recently the subject of an article in the Vermont Sunday Magazine by Tom Slayton, who is also the editor of Vermont Life, and I ask unanimous consent that it be printed in the Record so others can be inspired by Ben's life and accomplishments.

Mr. LEAHY

Mr. LEAHY. Mr. President, today we remember the life and work of Munir Said Thalib, Indonesia's foremost human rights defender, who on September 7, 2004, was fatally poisoned while on an airplane flight to the Netherlands where he planned to continue his legal studies. This despicable crime, in which the Indonesian Intelligence Service has been implicated, had repercussions throughout Asia and around the world and has particularly serious implications for Indonesia. Munir was an outstanding human rights advocate best known as a founder and director of the highly respected Commission for ``Disappeared'' Persons and Victims of Violence. He was working as the director of the Jakarta-based human rights group Imparsial before his murder. In 2000, Munir received the Right Livelihood Award ``for his courage and dedication in fighting for human rights and the civilian control of the military in Indonesia.'' Two years after his untimely and tragic death, the Indonesian Government has failed to properly investigate and prosecute those responsible. Despite the conviction of an airline pilot for his role in the murder, the police and Attorney General's office continue to ignore the evidence and recommendations of a Presidential fact-finding team that has implicated senior Indonesian intelligence officers and airline officials in the crime. President Yudhoyono has rightly described this matter as a test case for whether Indonesia has changed from its authoritarian past. At this point, it appears that a culture of impunity remains deeply embedded in Indonesian society. The fiscal year 2007 State, Foreign Operations appropriations bill that was reported by the Appropriations Committee on July 10, 2006, includes my amendment which requires a report on progress on human rights in Indonesia, including the investigation of the murder of Munir Said Thaib. If the Indonesia Government aspires to be seen as one that respects human rights and the rule of law, which is fundamental to any democracy, it is essential that whoever was responsible for ordering and carrying out this heinous crime be identified and brought to justice.

Mr. LEAHY

Mr. LEAHY. Mr. President, I wish to take a moment to discuss the situation in Sri Lanka, which not long ago was one of promise after a cease-fire agreement was signed in 2002 between the former government and the LTTE ``Tamil Tigers.'' The cease-fire was never perfect, but for several years negotiations on a political settlement offered a ray of hope for an end to the conflict. After April 2006, however, there was escalating violence and an increasing pattern of violations of the cease-fire agreement by both sides. On July 20, the LTTE closed a reservoir sluice gate in an LTTE- controlled area near the eastern town of Trincomalee, cutting the water supply to about 60,000 people in Government-controlled territory. In response, Sri Lankan Government forces conducted airstrikes over several days against LTTE positions in the area and on July 30 began a ground offensive to capture the reservoir's control point. This increase in violence contributed to the more than 800 deaths reported between January and August, including some in which large numbers of civilians were killed in flagrant violations of international law by both sides, and hundreds more combatants and civilians have died since then. Politically motivated killings, the recruitment of child soldiers, indiscriminate raids on civilians, targeting of international aid workers, and torture in police custody are only some of the human rights abuses that have been recently committed as reported by Amnesty International and Human Rights Watch. Additionally, a looming humanitarian crisis exists as the number of Sri Lankans displaced within the country by fighting this year has passed the 200,000 mark, and an estimated 8,700 citizens have fled to India. Road, air, and sea links to the Tamil population in the north have been cut, and food, water, and fuel shortages are severe. We should be deeply concerned with the collapse of the peace process and escalating violence in Sri Lanka. Although it is apparent that neither the Government nor the LTTE can defeat the other militarily, nor have they demonstrated the political will to stop the fighting and resolve this conflict peacefully. A report on September 13 that the Government and the LTTE have proposed new peace talks is welcome. But the Sri Lankan people have been disappointed countless times before. Several steps should be taken immediately, most importantly to prevent further harm to civilians who have suffered disproportionately. It is critical that humanitarian aid be allowed to reach those who have been displaced, whether as a result of the conflict or the lingering effects of the December 2004 tsunami. Relief agencies need unimpeded access to the affected populations, and civilians should be allowed to leave contested areas. The LTTE has been designated a terrorist organization by the U.S. Government on account of its wanton attacks against civilians and forced recruitment of children. These abusive tactics, which flagrantly violate international law, should be universally condemned. There is also the issue of U.S. support to Sri Lankan Government security forces, who have been responsible for violations of human rights. The Department of State needs to be doubly sure that the Leahy amendment, which prohibits U.S. assistance to units of foreign security forces who violate human rights, is being strictly complied with. In addition, we should reaffirm our support for the Sri Lanka Monitoring Mission, which reports on violations of the cease-fire by both sides. A stronger monitoring presence would deter abuses, provide systematic documentation of violations, and help to address the problem of impunity that has contributed to the recurrent cycles of violence and reprisal in Sri Lanka. Sri Lanka is a divided country, but its people, whether Sinhalese, Tamil, or Muslim, are as gentle, industrious, and peace loving as any in the world. The Tamils have legitimate demands, but the LTTE's tactics are deplorable. The Government has been divided, and it has not been able to provide the sustained leadership necessary to reconcile the interests of the conflicting parties. The chairs of the Tokyo Donors' Conference--Japan, the European Union, Norway, and the United States--need to find more effective ways to convince both sides to return to the bargaining table. There is no other way to end this conflict. The longer it takes to resume a process of good faith negotiations, the more responsibility the LTTE and the Government will bear for the needless deaths of innocent civilians.

Mr. LEAHY

Mr. LEAHY. Mr. President, I wish to share with the Senate an important analysis of the current crisis of democracy in the Middle East by one of Egypt's wisest and most courageous voices for democracy. We all have an interest in supporting democracy. We also recognize that countries in the Middle East, including Muslim countries with which we have close relations, are confronting difficult and divisive social, religious, and political challenges. These challenges have no simple solutions. But we should be concerned with the support that the Bush administration, like many of its predecessors, gives to autocratic and corrupt regimes in this volatile part of the world. It has contributed to anger and disillusionment, particularly among Muslims, toward their own governments and toward the United States, and growing support for those who promote extremist political and religious agendas. Saad Eddin Ibrahim is a respected Egyptian prodemocracy activist and sociologist. He founded the Ibn Khaldun Center for Development Studies at the American University of Cairo, one of the few independent research institutions in the Arab world. He has been wrongly imprisoned, and then acquitted, for his criticism of the Egyptian Government and for his relations with international organizations. Saad Ibrahim is a respected and principled advocate for human rights and democratic values, and he represents a voice of reason and tolerance in an increasingly polarized and antagonistic Muslim society. His recent op-ed in the Washington Post should serve as a wake-up call for proponents of our current policies in support of repressive regimes around the world. He has had the courage to speak out against Muslim dictatorships, and he not only represents those who oppose authoritarianism but also those who oppose radical Islam and extremism. All Senators should take the time to consider Saad Ibrahim's perspective, and I ask unanimous consent that his op-ed be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I want to offer a comment on an aspect of the port security bill, included in the managers' package. The IP- enabled voice communications and public safety provisions will encourage the use of E-911 by Voice over Internet Protocol providers. I want to thank Senator Stevens for removing language from the initial amendment that would have delayed implementation of this public safety program. The provisions that were removed would have needlessly endangered lives. Accordingly, the modification was essential. As Americans increasingly use IP-enabled voice communications, there is an increasing necessity to ensure these callers have access to their local 911 public safety answering points in case of emergency. The language of the initial amendment would have provided gaping loopholes for VoIP providers to avoid 911 obligations. It would have delayed the Federal Communications Commission's rules regarding implementation of 911 requirements on VoIP providers; grandfathered subscribers who signed up prior to December 31, 2005--meaning those subscribers would not be assured that when they called 911 they would reach their local first responders; and would have authorized other broad ``waivers'' from the rules. I want to thank the firefighters--specifically the International Association of Fire Chiefs and the International Association of Fire Fighters--for bringing these important public safety concerns with the initial amendment to our attention. Through their diligence, we have an amendment that will promote the deployment of critical 911 services, rather than delay it. This is crucial to assist America's first responders, including local fire, EMS and police officials, in their efforts to save lives. As the port security bill moves forward, it is critical that the compromise reflected in this important public safety amendment be maintained. I appreciate the assurances made by the managers to protect this important compromise. All Americans deserve the very best emergency response system. This amendment now helps accomplish that goal.

Mr. LEAHY

Mr. LEAHY. Mr. President, earlier today the President visited Capitol Hill for a closed-door meeting with House Republicans. It is not often the President takes time out of his busy schedule to come to Congress. But to meet only with Republicans is wrong and divisive. After his closed door meeting, the President talked about working together, in a bipartisan way. His walk does not match his talk. I wish he would act as a uniter and work with all of us on behalf of all Americans. Regrettably, it appears that, once again, this President has chosen to act in a partisan way in his role as Republican-in-Chief. That is wrong. I hope that all Senators will recognize their responsibility to all Americans and exercise their best independent judgment, rather than taking orders from the head of their political party. In the Judiciary Committee yesterday, Senators did exercise that kind of independent judgment when we joined together in a bipartisan way to report a bipartisan bill that would amend the Foreign Intelligence Surveillance Act and reign in the Administration's warrantless domestic wiretapping program. That bill, S. 3001, the bill cosponsored by Senator Specter and Senator Feinstein, was the only proposal that drew bipartisan support. I urge the Majority Leader to recognize the merits of that bill and our bipartisan efforts by moving to proceed to that bill when the Senate turns its attention to these matters. This bipartisan bill was authored by Senator Feinstein, one of the few Senators being briefed on the Presidents program of domestic surveillance without warrants. It is intended to ensure our intelligence community can protect our nation with the necessary court oversight. It will bring the President's program within the law. It stands in stark contrast to the White House-endorsed bill that grants sweeping authority to the Executive Branch for a program about which we know very little. The Bush-Cheney Administration has refused Congress's requests for information. Since when did Congress become an arm of the Executive Branch? Since when was the Senate reduced to a rubberstamp? Oversight means accountability. Oversight makes Government work better. It prevents abuses and corruption. We need Government to be as competent and accountable as it can be in fighting terrorism. I have been attempting to clarify the facts and the law relating to the Administration's warrantless wiretapping program since it was first disclosed in December 2005. During the ensuing eight months, we have made numerous efforts to get straight answers from the Administration regarding the nature, scope and purported legal basis of this program. Our efforts were rebuffed by the most flagrant and disrespectful stonewalling of any Administration that I have seen in my 32 years in Congress. While refusing to answer even our most basic questions about its secret spying program, the Administration claimed that Congress approved the program when it authorized the use of military force in Afghanistan--although Attorney General Gonzales had to admit that this was an ``evolving'' rationale not present at the time Congress considered its action. The Administration claimed that even if they violated the Foreign Intelligence Surveillance Act, the President's powers and their view of the ``unitary executive'' must trump the law and the authority of Congress. Not since the rationalization of Richard Nixon for actions during the White House horrors and Watergate scandal have we heard such a claim. And, of course, the Administration claimed it had all the authority it needed and no new legislation was needed. The bill the Chairman negotiated with the White House, in my view, contains several fundamental flaws: The bill makes compliance with FISA entirely optional, and explicitly validates the President's claim that he has unfettered authority to wiretap Americans in the name of national security. In other words, it suggests that FISA is unconstitutional--a claim for which there is no judicial precedent and very little academic support--and invites the President to ignore it. The bill abandons the traditional, case-by-case review contemplated by FISA and introduces the concept of ``program warrants.'' If that novel concept is constitutional--which I doubt--a single FISA court judge could approve whole programs of electronic surveillance that go far beyond the President's program. The bill immunizes from prosecution anyone who breaks into a home or office in the United States to search for foreign intelligence information, if he is acting at the behest of the President. I would have thought that electronic surveillance is a large enough area to address in one bill. But apparently, the Administration was unwilling to address electronic surveillance without also reaching for new powers to break into Americans' homes. We should not grant that kind of blank check to the Executive for a secret program we know little about. Instead, we should consider the bipartisan alternative the Judiciary Committee has endorsed. The Specter-Feinstein bill is an approach that seeks accountability while ensuring tools to mount a strong fight against terrorism. The Majority Leader has an opportunity to unite the Senate and Americans around this smarter, stronger proposal that will help protect Americans as well as the values that we hold dear as a Nation. I hope that he seizes that opportunity. On a related note, I was a little surprised to hear the Chairman say earlier today that the Judiciary Committee was forwarding proposed language changes to the War Crimes Act to the Armed Services Committee. I agree with the Chairman that amending the War Crimes Act is a matter in the jurisdiction of the Judiciary Committee, but I am very concerned about the way in which this important issue has come up. The Chairman announced yesterday in the middle of a special business meeting that the Committee would be discussing a proposal. That was news to me and the other Democratic members of the Committee, who had not seen nor heard of the proposal. The Chairman said that a bill had been distributed Tuesday afternoon, but Democrats were not included in any such distribution. This is a very serious issue. It certainly requires meaningful review and input from Senators of both parties. It is a subject about which I care a great deal about. This issue is being considered by the Armed Services Committee. Senator Warner is working with Senator Levin, and all members of that Committee. I understand that they are also consulting with the top military lawyer, who have been ignored by this Administration. I have seen the letters from GEN Powell and GEN Vessey on the importance of upholding our treaty obligation and acting in the best interests of protecting Americans throughout the world. GEN Powell wrote: The world is beginning to doubt the moral basis of our fight against terrorism. To refine Common Article 3 would add to those doubts. Furthermore, it would put our own troops at risk. He speaks from the perspective of a former chairman of the Joint Chiefs of Staff and a former Secretary of State. GEN Vessey signaled what relaxing our adherence to Common Article 3 of the Geneva Convention would do: ``First, it would undermine the moral basis which has generally guided or conduct in war throughout our history. Second, it could give opponents a legal argument for the mistreatment of Americans being held prisoners in time of war.'' I worked hard, along with many others of both parties, to pass the current version of the War Crimes Act. I think the current law is a good law, and the concerns that have been raised about it could best be addressed with minor adjustments, rather than with the sweeping changes suggested here. In 1996, working with the Department of Defense, Congress passed the War Crimes Act to provide criminal penalties for certain war crimes committed by and against Americans. The next year, again with the Pentagon's support, Congress extended the War Crimes Act to violations of the baseline humanitarian protections afforded by Common Article 3 of the Geneva Conventions. Both measures were supported by a broad bipartisan consensus, and I was proud to sponsor the 1997 amendments. The legislation was uncontroversial for a good reason. The purpose and effect of the War Crimes Act as amended was to provide for the implementation of America's commitment to the basic international standards we subscribed to when we ratified the Geneva Conventions in 1955. Those standards are truly universal: They condemn war criminals whoever and wherever they are. That is a critically important aspect of the Geneva Conventions and our own War Crimes Act. When we are dealing with fundamental norms that define the commitments of the civilized world, we cannot have one rule for us and one for them, however we define ``us'' and ``them.'' I am disturbed by the draft legislation, which seems to narrow the scope of the War Crimes Act to exclude certain violations of the Geneva Conventions and which could have the effect of retroactively immunizing past violations that may have been committed by U.S. personnel. The narrowing of these definitions have the potential effect of immunizing past war crimes. It also could well prevent us from prosecuting rogues who we all agree were out of line like the soldiers who mistreated prisoners at Abu Ghraib. Many of the despicable tactics used in Abu Ghraib--the use of dogs, forced nudity, humiliation of various kinds--do not appear to be covered by the narrow definitions this draft would incorporate into the War Crimes Act. If this were the law, and the Abu Ghraib abuses had come to light after the perpetrators left the military, they might not have been brought to justice. The President and the Republican leader have conceded that the conduct at Abu Ghraib was abhorrent, and the perpetrators did need to be brought to justice. I hope the President and Congressional Republicans will not now pass legislation that prevents us from bringing people who commit these same despicable acts to justice. I recognize the concerns about American servicemen and women or government employees being subjected to prosecutions for conduct that could be seen as ambiguous. I believe the War Crimes Act, as is, would not support prosecutions for conduct that was less than abhorrent. Indeed, to date, the Bush Administration has not brought a single charge pursuant to the War Crimes Act. I would support amending the War Crimes Act so that only ``serious'' violations of Common Article 3 of the Geneva Conventions were prosecutable under the War Crimes Act. This fix would address any legitimate fears without creating a list of covered conduct that excludes much of the conduct that is most troubling. Let me be clear. There is no problem facing us about overzealous use of the War Crimes Act by prosecutors. In fact, as far as I can tell, the Ashcroft Justice Department and the Gonzales Justice Department have yet to file a single charge against anyone for violation of the War Crimes Act. Not only have they never charged American personnel under the Act, they have never used it to charge terrorists either. The President and the Congress should not be in the business of immunizing people who have broken the law, made us less safe, turning world opinion against us, and undercutting our treaty obligations in ways that encourage others to ignore the protections those treaties provide to Americans. We should be very careful about any changes we make. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, I would like to congratulate The Hospitality and Information Service, THIS, of Washington, DC, on its 45th anniversary. Since 1961 THIS volunteers have welcomed diplomats and their families to Washington, providing friendship, assistance and an understanding of Washington and the United States. THIS is a nonprofit organization that was established in 1961 at the suggestion of Angie Biddle, then Chief of Protocol, to help the hundreds of newly arrived diplomats and their families adjust to Washington. In 1961 there were 101 Embassies with 1,200 diplomatic families. Today embassies total more than 170 with 4,000 diplomats and families in Washington. THIS' 400 volunteers provide a variety of services and programs to help diplomats and their families learn about Washington through English and seven foreign language conversation groups and a book club. Programs include forums for discussion of issues that are world-wide in scope, such as health, human rights and education. They also conduct programs on government affairs, performing arts, architecture and American history. THIS plays an important role in welcoming foreign diplomats to Washington and has made a difference in the lives of diplomats from many countries. As just a few have said: ``I would like to thank THIS for the wonderful work that you do and for your warm and friendly attention.'' Miriam Barak--Israel ``I express both my pleasure and my gratitude to the THIS organization as a whole. THIS is a wonderful vehicle by which the best of America is portrayed. Such an organization can only be an influential force for good.'' Ann Robinson--Great Britain ``THIS is a fantastic organization. It makes me feel very welcomed and comfortable . . . THIS has given me better understanding of the U.S. life and society and also given me some new good American friends.'' Ingela Beiming--Sweden ``THIS is a window that opens Washington for us and lets us experience and know it. It opens opportunities to meet different people.'' Marilia Bulhoes--Brazil Congratulations to THIS and its volunteers on 45 years of service to the diplomatic community.

Mr. LEAHY

Mr. LEAHY. Mr. President, I thank the distinguished Senator from California. I have had a chance to work with the Senator on this amendment. It is an extremely important amendment. I have spent decades on the question of landmines. We use the Leahy War Victims Fund in parts of the world to aid landmine victims. I have visited these field hospitals. I have seen the damage, usually to children, overwhelmingly to civilians. My wife is a registered nurse. She has gone into the surgeries and watched the amputations. The problem of cluster bombs which maim and kill the innocent has been known for many years. Probably one of the most egregious examples was in Laos, where millions of the explosives were dropped by U.S. planes during the Vietnam war. Unfortunately, what happens with landmines, the war ends, the landmines stay. The peace treaties are signed and civilians continue to die; 30 years after those were dropped there are horrific casualties of civilians. I have urged the Pentagon both in Democratic and Republican administrations to address this problem for nearly a decade. While they have acknowledged the problem, and they do acknowledge it, they have not taken effective steps to solve it. We have used massive numbers of cluster munitions in the invasion of Iraq, including in densely inhabited areas. Civilians paid the price and continue to pay the price. Israel used these weapons in Lebanon. Again, it has been innocent civilians who have suffered disproportionately. Now, cluster munitions, like any weapon, of course, have military utility. They can be effective against armor or military infrastructure, but they are in effect indiscriminate because they scatter thousands of lethal bomblets over wide areas. There are many weapons that can be effective. Used right, I suppose, poison gas is effective, but we have banned it since World War I. We have urged other countries to ban it. On these cluster munitions, between 1 and 40 percent, depending on the type or the condition of the terrain, fail to explode on contact. Remember, there are thousands of these coming down. So if anywhere from even 1 percent fail, and as high as 40 percent fail, they remain as hazardous duds indefinitely, no different than scattering landmines, something we do not do. And those who come in contact with them activate them. That could very well be a child out walking to school. It can be someone playing. It can be someone going to tend their animals, their crops, and they end up with lifelong disfigurement or disability, often death. No one argues it is possible to completely avoid civilian casualties in a war. Such casualties are inevitable. They have been tragic consequences in all wars. But this amendment should not be necessary. Weapons that are so disproportionately hazardous to civilians should be subject to strict rules of engagement. The Feinstein-Leahy amendment is fully consistent with the laws of war and international humanitarian law. It uses the same standard as for incendiary weapons, which are also notoriously hazardous to civilians. Rather than prohibit cluster munitions, the amendment says only that they should not be used where there are concentrations of civilians. This is a moral issue and it is an issue of our own self interest. Using or selling weapons that are so indiscriminate, without strict rules of engagement, is immoral. It is immoral. Anyone who has seen the horrific consequences of children with an arm or a leg blown off, or a part of their face, or their lifeless body cut to pieces by the shrapnel, knows that. But it is also contrary to our own interest to be using or selling weapons which, without strict controls on their use, cause such appalling casualties of innocent people who are not the enemy. It fuels anger and resentment we can ill afford among the very people whose support we need. So again I commend the Senator from California and strongly support the amendment. Mr. President, I ask unanimous consent that an article from USA Today, dated December 11, 2003, about cluster bombs be printed in the Record.