Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am introducing the ``War Profiteering Prevention Act of 2006.'' This bill creates criminal penalties for war profiteers and cheats who, for ill-gotten gain, would exploit the United States Government's taxpayer-funded war and reconstruction efforts in Iraq and elsewhere around the world. I am pleased that Senator Dorgan has also included this legislation in the ``Honest Leadership and Accountability in Contracting Act of 2006'' that is also being introduced today. I previously introduced this legislation in 2003. It came to be cosponsored by 21 Senators, including Senators Clinton, Dodd, Feinstein, Johnson, Kerry, Landrieu, Bill Nelson, Wyden, Dayton, Durbin, Feingold, Harkin, Jeffords, Kennedy, Kohl, Lieberman and Reid. The Senate Appropriations Committee unanimously accepted these provisions during a Senate Appropriations Committee markup of the $87 billion appropriations bill for Iraq and Afghanistan for Fiscal Year 2004, and it passed the Senate. It was the right thing to do then, and it is the right thing to do now. Regrettably, the Republican leadership in the House stripped this legislation out of that appropriations bill, and we regrettably have been witnessing the results in the meantime. Billions appropriated for the continuing war efforts and for reconstruction are unaccounted for, and fraud has been rampant. The recent report of the special inspector general confirms that U.S. taxpayer funds appropriated for reconstruction have been lost and diverted. There are, of course, anti-fraud laws to protect against waste of tax dollars at home. But none expressly prohibits war profiteering, and none expressly confers jurisdiction for fraud overseas. This bill would criminalize ``war profiteering''--overcharging taxpayers in order to defraud and to profit excessively from a war, military action, or reconstruction efforts. It would prohibit any fraud against the United States involving a contract for the provision of goods or services in connection with a war, military action, or for relief or reconstruction activities. This new crime would be a felony, subject to criminal penalties of up to 20 years in prison and fines of up to $1 million or twice the illegal gross profits of the crime. The bill also prohibits false statements connected with the provision of goods or services in connection with a war or reconstruction effort. This crime would also be a felony, subject to criminal penalties of up to 10 years in prison and fines of up to $1 million or twice the illegal gross profits of the crime. These are strong and focused sanctions that are narrowly tailored to punish and deter fraud or excessive profiteering in contracts, here and abroad, related to the United States Government's war or reconstruction efforts. Congress has sent more than a quarter of a trillion dollars to Iraq with too little accountability and too few financial controls. Disturbingly, there are widespread reports of waste, fraud and war profiteering in Iraq, and the special inspector general examining the use of reconstruction funds in Iraq recently found that billions of taxpayer dollars remain unaccounted for. For example, a recent report on 60 Minutes revealed that more than $50 billion of U.S. taxpayer funds have gone to private contractors hired to guard bases, drive trucks, feed and shelter the troops and rebuild in Iraq. This is more than the entire annual budget of the Department of Homeland Security. In addition, just this week, the New York Times, reported that the Army has decided to reimburse a Halliburton subsidiary--Kellogg Brown & Root--for nearly all of its disputed costs on a $2.41 billion no-bid contract to deliver fuel and repair oil equipment in Iraq, even though the Pentagon's own auditors had identified more than $250 million in charges as potentially excessive or unjustified. That article further notes that the Army's decision to pay all but 3.8 percent of these questionable charges lies well outside the normal practice of the military. The recent revelations about contract fraud and abuse in Iraq make clear that the approach to reconstruction in Iraq has been a formula for mischief. We need strong disincentives for those who would take advantage of the chaos of war to defraud American taxpayers. We also need to strengthen the tools available to federal prosecutors to combat war profiteering. Despite well-publicized allegations of fraud and war profiteering in Iraq, so far the Government has brought only one case to recover these funds--a civil lawsuit brought under the False Claims Act. That case involves a contractor accused of overcharging the Government millions of dollars under a contract to help distribute new Iraqi currency during the first months after the collapse of the Hussein government. The Government's ability to recover funds in that case is being questioned by the defendant, however, who argues that legal technicalities may constrain current law from reaching all of the conduct of contractors working in Iraq or elsewhere overseas. This bill would address this problem by providing clear authority for the Government to seek criminal penalties and to recover excessive profits for war profiteering overseas. It should already be law, but three years ago the House Republican leadership rejected it. Every penny of our taxpayers' money must be expended carefully and purposefully and protected from waste. The message sent by this bill is that any act taken to financially exploit the crisis situation in Iraq or elsewhere overseas for exorbitant financial gain is unacceptable, reprehensible--and criminal. Such deceit demeans and exploits the sacrifices that our military personnel and National Guard are making in Iraq and Afghanistan. When U.S. taxpayers have been called upon to bear the burden of reconstruction contracts--where contracts are awarded in a system that offers little competition and even less accountability--concerns about wartime profiteering are a grave matter. Historical efforts to stem such profiteering have been successful: Congress implemented excessive- profits taxes and contract renegotiation laws after both World Wars, and again after the Korean War. Advocating exactly such an approach, President Roosevelt once declared it our duty to ensure that ``ar few do not gain from the sacrifices of the many.'' Then, as now, our Government cannot in good faith ask its people to sacrifice for reconstruction efforts that allow so many others to profit unfairly. There is urgency to this important measure because criminal statutes cannot be applied retroactively. These controls should have been put in place at least three years ago; they need to be in place now. I urge that the Senate make prompt passage of this legislation a high priority. I hope that this time the House Republican leadership will have learned the hard lessons of the last three years and that, this time, they will allow this bill's enactment, on behalf of the Nation's taxpayers. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. I thank my good friend. Today's vote marks another stage in reauthorizing the USA PATRIOT Act. Our goal has always been to mend the PATRIOT Act, not to end it. To that end we passed a bipartisan bill with better provisions last July after it was unanimously reported by the Judiciary Committee. I appreciate the kind words of the Senator from Utah. He voted for that bill. I voted for that bill. The distinguished chairman of the committee, Senator Specter, voted for the bill. We have all been chairman of that committee. The bill came here to the floor of the Senate, and the Senate voted it out unanimously. That was a good bill. Then the House-Senate conference was hijacked. Democratic conferees were excluded at the request of the Bush-Cheney administration, and congressional Republicans wrote the bill. I worked to get that process and the bill back on track and, working with Chairman Specter, we were able to make some progress and get some helpful additions and changes. But the conference report that was insisted upon by the Bush-Cheney administration and passed by Republican leaders through the House was still flawed. Last December, I worked with a bipartisan coalition of Senators to oppose final passage of that conference report and create some additional opportunities for improvements. That led to the Sununu bill which is in essence an amendment to the conference report. I supported Senator Sununu's efforts and praised him for it and those who worked with him. I voted for that bill. It contained some of the improvements I had pushed for. Our efforts to protect libraries from national security letters was very important to me. That is why I supported Senator Sununu's bill in spite of the worsening of the gag rule provisions insisted upon by the Bush-Cheney administration. Now we turn to the conference report. Even with the Sununu bill, which I support, the conference report has not been improved sufficiently for me to support it. Just as I opposed it last December, I continue to oppose it. The bill that the Senate will adopt today falls far too short and impinges too greatly on the liberties of Americans. The Founders made a profound choice when they framed the fourth amendment to our Constitution as a measure to ensure the right of the people to be secure. The word they used was ``secure.'' The fourth amendment is, of course, about guaranteeing our privacy rights and the requirement of the judicial check on the Government invading our homes, our papers, and our effects. The Founders saw that as the right to be secure. As the Constitution and the Bill of Rights were written so carefully, every single word holds meaning. They saw a right to be secure, and so do I. I believe that Americans' security includes our national security, our security from terrorism, and also our right to be secure as Americans. That means exercising the liberties and rights and freedoms that define us across the world uniquely as Americans. I do not believe this bill achieves the balance that we could have and should have achieved. The final product would have been better had the Bush- Cheney administration and congressional Republicans not insisted on locking Democrats out of the negotiations throughout the process. Still this bill, through our efforts, in some ways represents an improvement. It has better sunshine and reporting provisions. I worked hard to include these new provisions because sunshine, coupled with sunset provisions, adds up to more accountability in the use of these Government powers. But some key provisions remain significantly flawed. I respect those who conclude that on balance the bill's virtues outweigh its vices. And it has both. But I believe we can and should do better. I believe America can do better. I am one who worked diligently on the original PATRIOT Act in the days following the attacks of 9/11. I was chairman of the Judiciary Committee. We moved it through in record time. I also voted to reauthorize and improve a bipartisan version of the act back in July of 2005. I joined with Senator Sununu in leading the effort to ensure that the provisions did not expire when we reached an impasse last fall. In the PATRIOT Act, we provided important and valuable tools for the protection of Americans from terrorism, and I have worked and voted to preserve them. But I am disappointed that this conference report represents a missed opportunity to get it right, to recalibrate the balance better, to respect the liberties and rights of Americans while protecting us from those who threaten harm. I am concerned, as all Americans are, with our security. The Presiding Officer and I and thousands of others come to work every day in a building that was targeted for destruction by al-Qaida. I cannot think of anything I will do in my life that makes me more proud than to be in the Senate and come in this building every day. But I want this building secure for you, for me, and for everybody who works here. I know what it means to be targeted. I was a target of a letter laced with deadly anthrax. I was supposed to open it. A couple of innocent postal workers who touched the outside of the envelope died before it reached me, and it was stopped before it got to my desk. It doesn't hit much closer to home than that. Many of us recall Benjamin Franklin's wise counsel. He was a man involved in a revolution against King George III. Had that revolution failed, he and his compatriots would have been hanged. When he was working to form a government that would respect liberty and protect people, he cautioned that those who would give up essential liberties for temporary security deserve neither liberty or security. More than 200 years later, we should listen to Benjamin Franklin. We have to preserve our essential liberties or we do not preserve what makes us Americans. The seriously bad parts of this bill are made unacceptable because we currently have an administration that does not believe in checks and balances and prefers to do so many things in secret. We now see the Bush-Cheney administration seeking to twist the authorization for use of military force against al-Qaida into a justification for the secret, warrantless wiretapping of Americans' e-mails and telephone calls. We see them claiming that they need not fulfill their constitutional responsibility to faithfully execute the laws but can pick and choose among the laws they decide to recognize. Even the Attorney General writes to the Judiciary Committee saying their position on the law evolves. I did not realize there were such legislative Darwinists in this administration that they believe so strongly in evolution when it suits their purpose. Legislative action should be the clear and unambiguous legal footing for any Government powers. These matters should be governed by law, not by whim or some shifting conception of the President's inherent authority that is exercised in secret. Confronted with this administration's unique claims of inherent and unchecked powers, I do not believe the restraints we have been able to include in this reauthorization of the PATRIOT Act are sufficient. I will continue to work to provide the tools that we need to protect the American people. I trust that Vermonters will understand that while I have repeatedly voted to extend and reauthorize the PATRIOT Act, this permanent measure falls short of what they deserve. I will continue to work to provide the oversight and checks needed on the use of Government power. I know the Senate is going to adopt this measure now, but it is a pale shadow of what it could have been had the administration not stepped in and told the leadership in the House and the Senate that they had to get in line and do what the administration wanted, not what an independent Congress should do. It is not the best that the greatest democracy on Earth deserves. I will keep fighting for us to do better. I will continue to work to improve the PATRIOT Act, and I will work to provide better oversight over the use of national security letters and to remove the un-American restraints on meaningful judicial review. I will seek to monitor how sensitive personal information from medical files, gun stores, and libraries is obtained and used. I will join Senators Specter, Sununu, Craig, and others in introducing a bill to improve the PATRIOT Act and reauthorization legislation in several important respects. Much is left to be done. If Senators work together, much can be accomplished. We will be a more secure Nation if we do, and also our liberties will be more secure. Certainly, we owe that to the next generation, to protect the liberties so many other generations have fought to provide for us. I suggest the absence of a quorum.

Mr. LEAHY. Mr. President, I know some time has been specifically retained to the Senator from Vermont. Would the Chair be good enough to tell me how much time that is?

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am introducing the ``War Profiteering Prevention Act of 2006.'' This bill creates criminal penalties for war profiteers and cheats who, for ill-gotten gain, would exploit the United States Government's taxpayer-funded war and reconstruction efforts in Iraq and elsewhere around the world. I am pleased that Senator Dorgan has also included this legislation in the ``Honest Leadership and Accountability in Contracting Act of 2006'' that is also being introduced today. I previously introduced this legislation in 2003. It came to be cosponsored by 21 Senators, including Senators Clinton, Dodd, Feinstein, Johnson, Kerry, Landrieu, Bill Nelson, Wyden, Dayton, Durbin, Feingold, Harkin, Jeffords, Kennedy, Kohl, Lieberman and Reid. The Senate Appropriations Committee unanimously accepted these provisions during a Senate Appropriations Committee markup of the $87 billion appropriations bill for Iraq and Afghanistan for Fiscal Year 2004, and it passed the Senate. It was the right thing to do then, and it is the right thing to do now. Regrettably, the Republican leadership in the House stripped this legislation out of that appropriations bill, and we regrettably have been witnessing the results in the meantime. Billions appropriated for the continuing war efforts and for reconstruction are unaccounted for, and fraud has been rampant. The recent report of the special inspector general confirms that U.S. taxpayer funds appropriated for reconstruction have been lost and diverted. There are, of course, anti-fraud laws to protect against waste of tax dollars at home. But none expressly prohibits war profiteering, and none expressly confers jurisdiction for fraud overseas. This bill would criminalize ``war profiteering''--overcharging taxpayers in order to defraud and to profit excessively from a war, military action, or reconstruction efforts. It would prohibit any fraud against the United States involving a contract for the provision of goods or services in connection with a war, military action, or for relief or reconstruction activities. This new crime would be a felony, subject to criminal penalties of up to 20 years in prison and fines of up to $1 million or twice the illegal gross profits of the crime. The bill also prohibits false statements connected with the provision of goods or services in connection with a war or reconstruction effort. This crime would also be a felony, subject to criminal penalties of up to 10 years in prison and fines of up to $1 million or twice the illegal gross profits of the crime. These are strong and focused sanctions that are narrowly tailored to punish and deter fraud or excessive profiteering in contracts, here and abroad, related to the United States Government's war or reconstruction efforts. Congress has sent more than a quarter of a trillion dollars to Iraq with too little accountability and too few financial controls. Disturbingly, there are widespread reports of waste, fraud and war profiteering in Iraq, and the special inspector general examining the use of reconstruction funds in Iraq recently found that billions of taxpayer dollars remain unaccounted for. For example, a recent report on 60 Minutes revealed that more than $50 billion of U.S. taxpayer funds have gone to private contractors hired to guard bases, drive trucks, feed and shelter the troops and rebuild in Iraq. This is more than the entire annual budget of the Department of Homeland Security. In addition, just this week, the New York Times, reported that the Army has decided to reimburse a Halliburton subsidiary--Kellogg Brown & Root--for nearly all of its disputed costs on a $2.41 billion no-bid contract to deliver fuel and repair oil equipment in Iraq, even though the Pentagon's own auditors had identified more than $250 million in charges as potentially excessive or unjustified. That article further notes that the Army's decision to pay all but 3.8 percent of these questionable charges lies well outside the normal practice of the military. The recent revelations about contract fraud and abuse in Iraq make clear that the approach to reconstruction in Iraq has been a formula for mischief. We need strong disincentives for those who would take advantage of the chaos of war to defraud American taxpayers. We also need to strengthen the tools available to federal prosecutors to combat war profiteering. Despite well-publicized allegations of fraud and war profiteering in Iraq, so far the Government has brought only one case to recover these funds--a civil lawsuit brought under the False Claims Act. That case involves a contractor accused of overcharging the Government millions of dollars under a contract to help distribute new Iraqi currency during the first months after the collapse of the Hussein government. The Government's ability to recover funds in that case is being questioned by the defendant, however, who argues that legal technicalities may constrain current law from reaching all of the conduct of contractors working in Iraq or elsewhere overseas. This bill would address this problem by providing clear authority for the Government to seek criminal penalties and to recover excessive profits for war profiteering overseas. It should already be law, but three years ago the House Republican leadership rejected it. Every penny of our taxpayers' money must be expended carefully and purposefully and protected from waste. The message sent by this bill is that any act taken to financially exploit the crisis situation in Iraq or elsewhere overseas for exorbitant financial gain is unacceptable, reprehensible--and criminal. Such deceit demeans and exploits the sacrifices that our military personnel and National Guard are making in Iraq and Afghanistan. When U.S. taxpayers have been called upon to bear the burden of reconstruction contracts--where contracts are awarded in a system that offers little competition and even less accountability--concerns about wartime profiteering are a grave matter. Historical efforts to stem such profiteering have been successful: Congress implemented excessive- profits taxes and contract renegotiation laws after both World Wars, and again after the Korean War. Advocating exactly such an approach, President Roosevelt once declared it our duty to ensure that ``ar few do not gain from the sacrifices of the many.'' Then, as now, our Government cannot in good faith ask its people to sacrifice for reconstruction efforts that allow so many others to profit unfairly. There is urgency to this important measure because criminal statutes cannot be applied retroactively. These controls should have been put in place at least three years ago; they need to be in place now. I urge that the Senate make prompt passage of this legislation a high priority. I hope that this time the House Republican leadership will have learned the hard lessons of the last three years and that, this time, they will allow this bill's enactment, on behalf of the Nation's taxpayers. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. I thank the Chair, my good friend. I yield all but 15 minutes of that time to the distinguished Senator from Wisconsin.

Mr. LEAHY. Mr. President, I will speak for a while. It is my intent to then yield the remainder of my time to the distinguished Senator from Wisconsin. The Senate is going to soon vote to reauthorize the USA PATRIOT Act. I am one of the authors of the original 2001 PATRIOT Act. I voted to reauthorize an improved version of the act back in July of 2005. Obviously, I am concerned, as all Americans are, with our security. I am concerned, as is the distinguished Presiding Officer and the distinguished Senator from Wisconsin, as one who goes to work every day, along with thousands of others, in a building that was targeted for destruction by al-Qaida. So I am glad we are making progress. However, I have to admit to being disappointed at the missed opportunity to get it right. The PATRIOT Act provides important and valuable tools for the protection of Americans from terrorism. These matters should be governed by law, not by whim. Legislative action should be the clear and unambiguous legal footing for any Government powers. Former Congressman Armey, Dick Armey, the Republican leader of the House, and I insisted that sunset provisions be included in the 2001 act. Because we did that, we ended up with reconsideration and some refinement of the powers authorized in that measure. Now the challenge of Congress is to provide the effective oversight needed in the days ahead and to ensure that there is court review of the actions that affect the rights of Americans. The bill contains several sunshine provisions that I proposed. I did that to ensure we would have oversight and to ensure some measure of public accountability for how our Government uses its powers. For the first time ever, the Justice Department is going to be required to report publicly on its use of two secret surveillance tools that have come under fire from civil libertarians but also from the business community. These are the FISA business record authority and the so-called national security letters, or NSLs. The Justice Department has been declassifying this information sporadically, when politically convenient. It could offer no plausible justification for keeping the information classified, especially when comparable data regarding more sensitive surveillance techniques such as wiretapping and physical searches is routinely disclosed. The conference between the two bodies accepted my proposal that these powers be subject to detailed, comprehensive, and unclassified audits by the Justice Department's Office of the Inspector General. Specifically, the OIG will audit the effectiveness and use, including any improper or illegal use, of the FISA business record and NSL authorities during the last several years and going forward. In performing these audits, the OIG will examine the categories of records obtained, the importance of the information required, the manner in which it is retained and disseminated, and whether the information is used for data mining purposes. The NSL audit will be followed by a report on the feasibility of applying minimization procedures in the context of NSLs to ensure the protection of the constitutional rights of United States persons. I have tried to describe it accurately. I realize that sounds like a bureaucratic computer wrote it. I want to be very specific because this administration sometimes does not pay attention to specific items. What we do not want is any agency of our Government feeling they can simply go and use these demands for records to go on a fishing expedition or find somebody they do not like and say: Let's just grab all their records. Let's go through all their records. Let's follow up on these records and see if there is something else we want--and just do that on and on with somebody who has no recourse, no ability to speak out. Their businesses might be ruined, their lives might be ruined, and it turns out: Whoops, sorry, we made a mistake. We are going on to somebody else. We saw after 9/11 when that happened. We saw businesses ruined, ranging from restaurants to other kinds of businesses, where: Whoops, sorry, we got the wrong person. Too bad you had no real ability to question what we were doing. I proposed another sunshine provision. I am glad the conference accepted it. It comes from a bill I introduced in the last Congress with Senators Specter and Grassley. It requires the FISA Court to publish its procedures and share their rules in an unclassified report. Also, it requires annual reporting of the use of so-called sneak-and- peek search warrants and FISA's emergency surveillance authorities. Again, we give very special powers to our Government, recognizing the fact that, as long as the distinguished Presiding Officer lives, as long as I live, we will face these kinds of threats. But we want to make sure the powers we give do not become powers just unto themselves where none of us know where the check or the balance is. The bill includes a scaled-back version of a data-mining provision that was added by a floor amendment in the House. Most of us use e-mails. We often send medical information on ourselves, our children, our families. Maybe if you are in a business you send information you want held so you can have a competitive advantage over your competitor. A lot of that can be picked up in data- mining operations. As contained in the current bill, the provision calls for a one-time report on pattern-based data mining by the Department of Justice. What is that expression, pattern-based data mining? They develop models based on expected behavior or profiles of criminal or terrorist activity, then they mine databases of personal information to try to identify those patterns. It is sort of the Kevin Bacon ``six degrees of separation,'' except we assume they are not going after Kevin Bacon. It does raise concerns about profiling and individual privacy. There is a concern that if you happen to be in a restaurant somebody frequented, you are now going to be under surveillance. Now, in addition to the sunshine provisions, I proposed we retain the sunset mechanism that worked so well in the original PATRIOT Act. Sometimes both sunshine and sunset work well together. As I said, Republican House Majority Leader Dick Armey and I insisted, in 2001, on a 4-year sunset for certain PATRIOT Act powers. If we had not done that, we would not even be having this debate today. We would not have even looked at what happened, especially with a Congress reluctant to do oversight, a Congress unwilling to question anything this administration does. They were forced, actually, to ask questions about what is happening under the PATRIOT Act because a conservative Member of the House--Dick Armey--and a liberal Senator--myself--put in the sunset provisions so we would be forced to look at it no matter who was President, no matter who controlled the House, no matter who controlled the Senate. And thank goodness we did because if we had not done that, I guarantee you, this Congress never would have asked a question of anybody. If we had not had that, the Bush administration would have stonewalled our request for information, just as they have on so many other things. The sunsets are the reasons we have been going through a review and renewal process over the last few months. And the improvements were hard won. The Bush administration pursued its usual strategy of demanding sweeping Executive powers, resisting checks and balances. They were long on partisan rhetoric and awfully short on bipartisan dialog. As usual, the Republican majorities in the House and the Senate did their utmost to follow the White House's directives to prevent any sudden breakout of bipartisanship. But a ray of bipartisanship slipped through the cracks, and the bill is the better for it. It contains 4-year sunsets, not 7- or 10-year sunsets like the administration wanted. The bill no longer contains a provision that would have made it a crime merely to disclose the receipt of a national security letter. Somebody hands you a national security letter and demands documents and it's a crime if you tell anybody about it. ``Wait a minute, you just closed down my business. I can't comply with this.'' ``Tough. You can't tell anybody. You can't tell your wife. You can't tell the people who work for you.'' This is America. We finally did away with that, even though the administration strongly wanted that kind of control. They even wanted Americans, if they were served with a national security letter and dared to seek legal advice, they had to go humbly to the FBI first and tell them they were actually going to get a lawyer--in America--to find out why they were being subpoenaed. Now, I know they like control in this administration. That went too far. So we no longer require American citizens to tell the FBI before they exercise their right as Americans to seek the advice of counsel. Sunlight is the best disinfectant. When the sunlight came in on this bill, some of these things fell. Chairman Specter and I worked together on these improvements, and our efforts have produced a better bill for the protection of all Americans. In this regard, I also compliment the Senate Democratic conferees, whose efforts were extraordinary. Whether they vote for or against the final product, Senators Rockefeller, Levin, and Kennedy all deserve the thanks of the Senate and the American people for their hard work and steadfastness. Late changes were achieved by Republican Senators who had joined us in resisting the conference report in December. When terrorists strike, they do not ask whether you are Democrats or Republicans or Independents. If they want to strike Americans, they strike Americans. They do not ask what your politics are. And all Americans--Democrats, Republicans, Independents--want to stop terrorists. All Americans oppose what they have done. So, therefore, it was regrettable that this administration--with a President who was elected on a solemn campaign pledge to be a uniter and not a divider--refused to engage both Democrats and Republicans on ways to improve the bill. They spoke to only one party, as though only one party cared about America being safe. The White House Counsel spoke to only Republican Senators. So they, in turn, negotiated to achieve what they view as improvements and what they could. It is, of course, less than what we would have liked, but I appreciate the fact they did what they could insofar as they were dealing with an administration that did not want to treat the safety of Americans in a bipartisan way. But, therefore, the bill still falls short in several critical regards. Let's talk about section 215 of the PATRIOT Act, the business records provision that has been so important to the libraries. Under section 215, the Government can obtain a secret order that compels access to sensitive records of American citizens. It also imposes a permanent gag on the recipient. In other words, I grabbed your records. Don't you dare tell anyone. This is America. This is America. We have had Presidents condemn other countries--and rightly so--for doing this sort of thing to their citizens, and we want to do it to our own? Before passage of the PATRIOT Act, there were two significant limitations on the FBI's power to seize business records. First, it could be used only for a few discrete categories of travel records, such as records held by hotels, motels, vehicle rental facilities. Second, the legal standard for obtaining the order was demanding. The Government had to present specific and articulable facts giving reason to believe that the subject of the investigation was a foreign power or an agent of a foreign power. Passed in the weeks following 9/11, the PATRIOT Act did away with these limitations. It both expanded what the FBI may obtain with a Section 215 order and it lowered the standard for obtaining it. Under current law, the Government need only assert that something--anything-- is sought for an authorized investigation to protect against terrorism or espionage, and the judge will order its production. What counts as an authorized investigation is within the discretion of the Executive branch. Now, the Senate--and I compliment those Republicans and Democrats on the Senate Judiciary Committee who got together on the reauthorization bill that we passed last July--the Senate reestablished a significant check on this power. Under the Senate bill, relevance to an authorized investigation is not enough. The Government must also show some connection between the records sought and a suspected terrorist or spy. This is a fundamental protection that would not hamstring the Government, but would do much to prevent overreaching in Government surveillance. I fought for it in the Senate. Chairman Specter and every Republican Senator voted for it. Then the Bush administration found out about that. It ordered the Republican Members of Congress to strip it out in conference, and these independent bodies--this check and balance--said: Aye, aye, sir, and stripped it out. The current bill also falls short on its treatment of national security letters. These are, in effect, a form of secret administrative subpoena. Again, my God, they love doing things in secret. They love doing things in secret, and they tell us afterwards: Trust us. I seem to have read something recently in the press about an agreement to have another country run the operations of our ports. They said, after failing to consult Congress, trust us. We secretly looked at Dubai. We secretly looked at this, and we understand that money for the hijackers went through that country, but we have secretly looked at it and it is a good idea. Don't ask us any questions. Well, now they have this form of secret administrative subpoena. They are issued by FBI agents without the approval of a judge or a grand jury or a prosecutor. They allow agents to obtain certain types of sensitive information about innocent Americans simply by certifying its relevance to a terrorism or espionage investigation. If the FBI agent does not like your looks, they can just come in with this secret subpoena and seize your records. Your business can be shut down on the whim of one agent--no judge, no grand jury, no prosecutor, no check and balance. And oh, by the way, we will do it secretly. Like section 215 orders, NSLs come with a permanent gag. Recipients are prohibited from telling anyone anything about it. The bill does not allow meaningful judicial review of this gag order. It requires the court to accept as conclusive the Government's assertion that a gag order should not be lifted, unless the court determines the Government is acting in bad faith. This raises serious First Amendment and due process concerns. Fixing this provision was one of my top priorities in the conference and during my subsequent discussions with Senator Specter. The Bush administration's refusal to agree to this change was a significant factor in my consistent opposition to the conference report in December. And there is strong opposition to this provision from both Democrats and Republicans from the right to the left. But the administration refused to correct it. They also refused, as an alternative, to sunset the national security letter authority. I continued to seek remediation of this provision in January and February through discussions with Senator Sununu and Senator Specter, but they were unable to achieve that result. This creates, in my view, a sham judicial proceeding within the complete control of the Government that smacks too much of a police state. It is wrong. It needs to be fixed. I wish Americans would think: What are we giving up with the idea we might be a little more secure? Wouldn't it be a lot better to fix the mistakes that were made by the administration that allowed 9/11 to happen in the first place, to go back and find out where those mistakes were made and fix them? Wouldn't it be better to finally, years later, start actually being able to translate all the information we have picked up--something we did not do before 9/11 and today we still do not do it anywhere near enough? Wouldn't it have been better to have done that than to say to Americans, most of whom would be law-abiding: We are going to give you this letter--which just one person decides on--and we will seize your records. You can't talk to anybody about it, and there's really nothing you can do about that. You have no real judicial way of overturning the gag order. If we heard of other countries doing this, we would be critical and rightly so. If the Chinese did this, we would criticize them and rightly so. If the old Soviet Union did this, we would have criticized them and rightly so. Please, do not let our country go down that road. We are too good a people. We are too honest a people. The bill's treatment of the PATRIOT Act's so-called sneak-and-peek provisions is another area of concern. Section 213 of the PATRIOT Act authorized the Government to carry out secret searches in ordinary criminal investigations. Armed with a Section 213 search warrant, FBI agents may enter and search a home or office and not tell anyone about it until weeks or months later. It is interesting to recall that four years ago, the House Judiciary Committee took one look at the Bush administration's original proposal for sneak and peak authority and dropped it entirely from its version of the legislation. As chairman of the Senate Judiciary Committee, I was able to make some improvements in the administration's proposal, but problems remained. In particular, Section 213 says that notice may be delayed only for ``a reasonable period.'' The Bush administration has abused that flexible standard and used it to justify delays in notice of a year or more. Pre-PATRIOT Act case law stated that the appropriate period of delay was no more than seven days. The Senate voted to replace the ``reasonable period'' standard, which the Bush administration has been abusing, with a basic 7-day rule, while permitting the Government to obtain additional 90-day extensions of the delay from the court. The current bill sets a 30-day rule for the initial delay, more than three times what the Senate, and pre-PATRIOT Act courts, deemed appropriate. The shorter period would better protect Fourth Amendment rights without in any way impeding legitimate government investigations. The availability of additional 90-day extensions means that a shorter initial time frame should not be a hardship on the Government. But our improvement has been rejected in favor of too much Government power. The current bill is also loaded with extraneous provisions that have nothing to do with the expiring PATRIOT Act authorities or even with terrorism. The bill modifies habeas corpus law--the great writ--a highly controversial provision that is wholly improper to consider in this context. I doubt it would ever pass, if it were put to a straight up-or-down vote. But slip it in the bill and say: It is for national security. Give up your rights, Americans. It is for national security. Many times people in this Chamber talk about Benjamin Franklin, and we think back to that time. Here is a man involved in the revolution against King George. Had he failed, he would have been hanged. Most of those around him would have been hanged. But when he has now become the Government and his friends have become the Government, replacing King George, he wanted to make sure to protect the people from the Government. As he said, those who would give up essential liberties for temporary security deserve neither liberty or security. Habeas corpus, the one thing that every one of us can count on, the great writ, the thing that sets us apart from virtually every other country and the thing that protects us so much, was changed because a small number of Republican conferees wanted to change it. They did not want to bring it on the floor of the Senate or the House and vote on it up or down. It has nothing do to do with terrorism or even the more general tools of Federal law enforcement. It was almost a whim, let's take away these rights. These changes were not included in the PATRIOT Act reauthorization bill of either the House or the Senate, but mysteriously, here it is, slipped in. I recall that part in ``A Man for All Seasons'' where Sir Thomas More's protege William Roper is basically saying, the end justifies the means, and Sir Thomas More spoke of the law as something there to protect us. He said, and I am paraphrasing: All of England is planted thick with laws. And his protege said, in effect, he would cut down all those laws, if need be, to get at the devil. And Thomas More said: And what will protect you then, with all the laws cut down? Yes, I'd give the devil benefit of the law, for my own safety's sake. I wonder if we are not doing that, especially with the sneaky way this was done. That is the only way I can describe it, sneaky. The administration said: Kick the Democratic conferees out. And the independent bodies, the House and the Senate, said: Aye-aye, sir. It violates our rules, but, yes, sir, if you want that for the White House. And then they slipped it in. Neither body's Judiciary Committee approved it. Incidentally, the U.S. Judicial Conference, at that time headed by Chief Justice Rehnquist, made up of some of the most conservative judges in the country, strongly opposed doing this. Another extraneous provision of the bill will revive a small group of pending death penalty prosecutions for aircraft hijacking murders committed in the 1970s and 1980s. It is designed to overrule the district court decision in United States v. Safarini, which struck the death penalty for a 1986 hijacking offense on the grounds that the Federal Death Penalty Procedures Act of 1994 could not be retroactively applied to a pre-1994 crime, absent clear congressional intent to do so. To my knowledge, Congress has never enacted death penalty legislation intended to allow the execution of a tiny number of known offenders for crimes they are alleged to have committed from one to three decades previously. Whether the Government can ultimately persuade the courts that this does not violate the letter of the ex post facto and bill of attainder clauses of the Constitution, it certainly violates their spirit. It is telling that the Department of Justice, in its testimony before the House Judiciary Committee, strongly recommended adding in a severability clause, in case this provision was ultimately held invalid by a court of law. I share the Department's skepticism regarding the constitutionality of this wrongheaded provision, and deeply regret its inclusion in the conference report. To sum up, the bill presents a complex mixture of valuable provisions which I support and would vote for if they were individually here, significant improvements on the one hand but so many serious flaws and missed opportunities on the other. I think the final product would have been better if Members of Congress, Republicans and Democrats, both bodies had been allowed to work as Members of Congress, as representatives of the people instead of as puppets of the most secretive administration of the six administrations with which I have served. The Bush administration insisted on locking Democrats out of the negotiations. They did that, first, in connection with the conference and, again, after the Senate would not proceed to pass the conference report last December. When I and others tried to have conversations with the White House to improve the bill, our efforts were dismissed. Basically, they took the attitude, as long as they can get the votes they needed on the Republican side of the aisle, there is no purpose in any bipartisan effort. What a mistake. This is a bill that has both virtues and vices. I respect those who conclude that on balance the bill's virtues outweigh its vices. And if they conclude that, then vote for it. But I believe we can and should do better. I believe America can do better. I will continue to work to improve the PATRIOT Act. I will work to provide better oversight of the use of national security letters. I will work to remove what is a gross, un-American restraint on meaningful judicial review, the sort of thing that Presidents of both parties have strongly condemned when done by other countries. I hate to see our country do it. I will seek to monitor how sensitive personal information that they are now allowed to seize from medical files, gun stores, and libraries is obtained and used. Today, I will join Senators Specter, Sununu, Craig, and others in introducing a bill to improve the PATRIOT Act and reauthorization legislation in several important respects. While we have made some progress, much is left to be done. Let me be very clear about this. There are good parts of this bill, but there are also serious bad parts. The serious bad parts are worse if you have an administration that does not believe in checks and balances and prefers to do everything in secret. We now see the administration seeking to twist the Authorization for Use of Military Force against al-Qaida into a justification for its secret, illegal wiretapping of Americans' emails and telephone calls. We see the administration claiming that it need not fulfill its constitutional responsibility to faithfully execute the laws and that it can pick and choose among the laws it will recognize. And we see an administration that continues to attack anyone that gets in their way and insists on the rule of law. Confronted with the administration's claims of unchecked power, I do not believe that the restraints we have been able to include in this reauthorization of the PATRIOT Act are sufficient. I will continue to work to provide the tools that we need to protect the American people. I trust that Vermonters will understand that while I have repeatedly voted to extend and reauthorize the PATRIOT Act, this measure, this time, falls short of what they deserve. So I won't support it in its current form. I will continue to work to provide the oversight of checks needed on the use of Government power and seek to improve this reauthorization legislation. I know the Senate will adopt it, but it is a pale shadow of what it could be. It is not the best that the greatest democracy on Earth deserves. I will fight for the best, but I will not vote for second best. How much time do I have remaining, Mr. President?

Mr. LEAHY. The Senator from Vermont, under the parliamentary situation, is entitled to time?

Mr. LEAHY

Mr. LEAHY. Madam President, earlier this month, I joined with a majority of Senators in voting to proceed to consideration of S. 2271. I said then that the bill made modest improvements over both the original PATRIOT Act and the reauthorization proposal produced by the House-Senate conference. I said, too, that the bill included one set of changes that I strongly opposed, and that I hoped there would be an opportunity to make further improvements to the bill, the conference report, and the PATRIOT Act. Regrettably, no sooner had the Senate voted to proceed to S. 2271 than the majority leader filled the amendment ``tree'' with sham amendments, locking out real amendments that sought to improve the law further. An amendment that I filed but was denied the opportunity to offer would have corrected one of the most egregious ``police state'' provisions regarding gag orders. Senator Feingold also filed but could not offer amendments aimed at bringing the conference report more in line with the bipartisan reauthorization bill that every Member of the Senate approved last year. In light of the abuse perpetrated by the Republican leadership, I felt compelled yesterday to oppose cloture on the bill and the stifling of meaningful debate. Today's vote is a different and more difficult matter. Because the Republican leadership obstructed efforts to improve the bill, the ``police state'' provisions regarding gag orders remain uncorrected. This is a big step backward, in my view, from both the conference report and existing law. At the same time, the bill takes two steps forward. It modifies a provision I objected to in the conference report that would have required American citizens to tell the FBI before they exercise their right as Americans to seek the advice of counsel. Chairman Specter and I worked together to correct this provision; Senator Sununu was able to improve it further in this bill and I commend his efforts. Another significant change provided by the Sununu bill builds upon another objection I had and an idea I shared with him to ensure that libraries engaged in their customary and traditional activities are not subject to national security letters. This is a matter I first raised and feel very strongly about. I commend Senator Sununu for the progress he was able to make in this regard. The bill is intended to clarify that libraries as they traditionally and currently function are not electronic service providers, and may not be served with NSLs for business records simply because they provide Internet access to their patrons. Under this clarification, a library may be served with an NSL only if it functions as a true internet service provider, as by providing services to persons located outside the premises of the library. I expect that this will occur rarely or never and that in most if not all cases, the Government will need a court order to seize library records for foreign intelligence purposes. The language I proposed to Senator Sununu in this regard was less ambiguous than that to which the Bush-Cheney administration would agree. Still, my intent, Senator Sununu's intent and the intent of Congress in this regard should be clear. It is to strengthen the meaning and ensure proper implementation of this provision that I will support this bill. As a supporter I trust my intent will inform those charged with implementing the bill and reviewing its proper implementation. I will continue to work to improve the PATRIOT Act. I will work to provide better oversight of the use of national security letters and to remove the un-American restraints on meaningful judicial review. I will seek to monitor how sensitive personal information from medical files, gun stores and libraries are obtained, used, and retained. Today, I will join Senators Specter, Sununu, Craig, and others in introducing a bill to improve the PATRIOT Act and reauthorization legislation in several important respects. While we have made some progress, much is left to be done.

Mr. LEAHY

Mr. LEAHY. Mr. President, 2006 marks the 75th anniversary of a true Vermont treasure. Locally owned and operated, WDEV of Waterbury, VT, first came to the airwaves on July 16, 1931. Its continuing and expanded presence in Central Vermont and the Champlain Valley ever since then is a rare and stellar example these days of the invaluable resources that independent, community-based media can offer. WDEV station owner and President Ken Squier took the reins of WDEV from his parents, Guila and Lloyd, who first operated the station at the same time my own parents were operating a small Waterbury newspaper nearby, and his parents and mine were friends. If things had gone differently Ken and I might have had a media conglomerate in the making. Growing up in the station's studios, Ken's life was steeped in the culture and the craft of community radio. He understood WDEV's role in community life, and when he assumed operation of the station, his approach to community-based programming became the foundation of the station's lineup. Today the residents of Waterbury and its surrounding communities turn the dial to WDEV to find everything from a trading post to buy and sell their goods and treasures, to such off-beat program offerings as ``Music to Go to the Dump By.'' WDEV is the place to go for everything from local news to high school sports to school closings. It has become a vital source of news, information and entertainment to its devoted audience. WDEV is an authentic piece of the Vermont that we cherish. Under Ken's guidance and initiative, WDEV has broadened its scope, becoming the anchor for the Radio Vermont Group, which now operates stations devoted to classical and country music, as well as news, sports and community events. It has taken to the web, where WDEV now streams two of its most popular morning news programs, ``The Morning News Service'' and ``The Mark Johnson Show.'' Ken has shepherded WDEV through the years with his acute sensitivity to the local perspective. I have always enjoyed stopping in to the station for a quick chat, or greeting Ken and the station's longtime personalities at local events, from parades to political rallies. I look forward to chatting with Eric Michaels, Radio Vermont's general manager and vice-president, every month during his daily morning show. The connection that WDEV and the voices it carries have to the community is as distinctive and unique as Vermont is to our country. Vermont Life recently published a well-crafted piece, ``Community Radio Speaks,'' featuring the history and highlights of WDEV's 75 years on the air. I join my fellow Vermonters in congratulating Ken, Eric, and all the people who, in 75 successful years, have made WDEV a station with a true touch for its Vermont audience. I ask unanimous consent the article be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, it is hard to put in words what I feel as I listen to my good friends, Harry Reid and Arlen Specter, Bill Frist and Mitch McConnell, saying such nice things. They are friends. We work together. Harry--I should say, following Senate protocol, the distinguished Senator from Nevada, Senator Reid--was kind enough to first and foremost mention my wife Marcelle. There is no conceivable way I could have accomplished any of this without Marcelle. She has been my guiding light for well over 40 years. Nothing I have done could I have accomplished without her. Senator Specter was kind enough to hold up the picture of the latest member of our clan, Patrick Lucas Jackson. I think of that because I came here holding the actual pictures in my mind of my three children, Kevin, Alicia, and Mark, and their spouses, Carolyn, Lawrence, and Kristine, but also the pictures of four wonderful grandchildren: Roan, Francesca, Sophia, and now Patrick. To have them mentioned I realize there is another generation, and I hope their children will be proud of what their father does, but I especially hope the grandchildren, who will be the hope of our future, will feel the same way. Bill Frist, the distinguished Republican leader, and Senator Mitch McConnell, the distinguished deputy Republican leader, were kind to speak of the landmine issue and things we worked out together--both of them being Senators who have done so much in that same area. Sometimes we deal in issues people look at as just local issues or issues that affect only a few. What we have done in this case--Senator McConnell, who was so good to move to name the war victims fund the Leahy War Victims Fund--is something I will never forget; Senator Frist, who voluntarily goes into parts of Africa and elsewhere to use his medical skills. We talk of these kinds of things--the landmine issue; things Senator McConnell and I have done to bring medicine to parts of the world that never see it; efforts to eradicate polio, childhood diseases, to bring to people the ability to actually feed themselves. The people we help don't contribute to campaigns. When Senator McConnell and I pass a bill here on the floor, they don't know who we are. They do not know whether it is Republicans or Democrats. None of them know that. We will never meet most of them, but we like to think--I like to think--we have made their lives better. We speak of what we bring to this body. We all come from different backgrounds. It is not just our political background; it is how we are raised, it is what our faith is. And if we believe in the best of what we learned when we were being raised or the best of what it is we believe in, then we have to help these people who will never be helped otherwise, and I have been proud to do that. I like to think what was instilled in me by my parents, Howard and Alba Leahy or in Marcelle by her parents, Phil and Cecile Pomerleau, brought about some of this, or just the upbringing in the special little State of Vermont. I will close with this. I didn't expect to say anything, but I was kind of overwhelmed by what was said by a dear friend like Arlen Specter, whom I have known since we were both prosecutors, a job that some days we think was the best job we ever had. It made me reflect on what a great honor it is for all of us, Republicans and Democrats and Independents, to serve in this body. Only 100 of us get a chance to do it at any one time, and someday we will be replaced by others. What an honor it is to be here and what a responsibility it is. I have seen the Senate go through many changes, but I have also seen the personal relationships the press doesn't see, the public doesn't see, the personal relationships we have built across the aisle and with each other. When we do, the country is better, the Senate is better, and people's lives are better. I must say that I was awed and humbled the first day I walked on the floor as a 34-year-old to be sworn in, where 30 minutes before I was the State's attorney sitting in a county in Vermont and 30 minutes later was then the junior Senator from Vermont. I still feel that same awe every time I walk on this floor. The day I stop feeling that awe, I will stop walking here. With that, I have said more than Vermonters usually do. I yield the floor. I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Republican leadership has made a mistake and is abusing its power by choking off debate on this important bill. Regrettably the majority leader has chosen to prevent any effort to offer amendments to the bill and has effectively stifled open debate. While I voted to proceed to consideration of the bill, I do not condone the Republican leadership's current abuse. I have filed an amendment that would improve the bill by correcting one of the most egregious ``police state'' provisions regarding gag orders. The Bush-Cheney administration used the last round of discussions with Republican Senators to make the gag order provisions worse, in my view, by forbidding any court challenge for 1 year. The conference report places no similar restriction on recipients of national security letters, and there is no justification for its inclusion here. In addition, the bill continues and cements into law procedures that, in my view, unfairly determine legitimate challenges to gag orders. It allows the Government to ensure itself of victory by certifying that, in its view, disclosure ``may'' endanger national security or ``may'' interfere with diplomatic relations. Unless the Government is acting in bad faith, the court must accept the certification as conclusive and must rule in favor of the Government. This is the type of provision to which I have never agreed. The conference report uses identical language in connection with NSL gag orders, and I resisted it in that context. I agreed with Senator Sununu, who said in December that it would prevent meaningful judicial review because NSL recipients would never be able to show bad faith on the part of the Federal Government. Senator Specter has also been critical of this provision. My amendment would have corrected these unnecessary excesses. It struck both the 1-year waiting period for challenging a gag order and the ``conclusive presumption'' in favor of the Government. These changes are simple but they are essential if we are to avoid creating rigged procedures where the Government always wins, regardless of the merits. By its abuse of the rules, the Republican leadership is preventing any opportunity to correct these matters. That is wrong. The Senate may have accepted or rejected my effort to remove this un-American restraint on meaningful judicial review of gag orders, but I should have had the opportunity to offer it. In the weeks following 9/11, some of us worked hard in cooperation with the Bush-Cheney administration on what came to be the USA PATRIOT Act. I remind the current Republican leadership that even then, in those extraordinary times, we allowed Senators to offer amendments. We took difficult votes. I would have liked to have supported some of those amendments but, in my role as the chair of the Judiciary Committee, I felt that I could not at that time. But I did not and the majority leader, Senator Daschle, did not fill the amendment ``tree'' with sham amendments. Instead, we worked out an agreement to proceed with amendments and votes on those amendments. In 2001, I fought for time to provide some balance to Attorney General Ashcroft's demands that the Bush-Cheney administration's antiterrorism bill be enacted in a week. We worked hard for 6 weeks to make that bill better and were able to include the sunset provisions that contributed to reconsideration of several provisions over the last several months. Last year I worked with Chairman Specter and all the members of the Judiciary Committee and the Senate to pass a reauthorization bill in July. As we proceeded in House-Senate conference on the measure, the Bush-Cheney administration and congressional Republicans locked Democratic conferees out of their deliberations and wrote the final bill. That was wrong. Last December, working with a bipartisan group of Senators, we were able to urge reconsideration of that final bill. Senators Sununu and Craig were able to use that opportunity to make some improvements. I commend them for what they were able to achieve and hope that my support for their efforts has been helpful. I wish that along the way the Bush-Cheney administration had shown interest in working together to get to the best law we could for the American people. Since the House-Senate conference was hijacked, I have tried to get this measure back on the right track. We have been able to achieve some improvements. I regret that this bill is not better and that the intransigence of the Bush-Cheney administration has prevented a better balance and better protections for the American people. Just as I worked for an opportunity for Senator Sununu to seek improvements to the conference report, I will now vote against these unfair efforts to forestall any amendments to this measure. I remain committed to working to provide the tools that we need to protect the American people. That includes working to provide the oversight and checks needed on the uses of Government power and to improve the reauthorization of the PATRIOT Act. In light of the abuse being perpetrated by the Republican leadership, I will vote against their stifling of meaningful debate and their obstruction of efforts to improve the bill, the conference report and the PATRIOT Act. I will vote against cloture on the bill without any opportunity to offer amendments. I urge the Republican leadership to reconsider its actions and allow a few amendments to be offered to the bill so that we can seek to improve it before final passage by the Senate. Mr. President, I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Mr. President, yesterday Chairman Specter introduced a bill I cosponsored to provide relief for the Federal judiciary from excessive rent charges assessed by the General Services Administration, GSA, for the use of courthouses and other spaces occupied by the courts across the Nation. Since 1986, the Federal courts' rental payments to GSA have increased dramatically, with the percentage of the judiciary's operating budget devoted to rent payments escalating from 15.7 percent in 1986 to approximately 22 percent in 2004. If no changes are made, this percentage is expected to continue to rise sharply. This legislation brings these rent charges under control by capping the rent charges at GSA's actual costs of operating and maintaining accommodations provided to the judicial branch, by specifying that certain capital costs, taxes, and administrative fees shall not be included in GSA's rent charges, and by establishing a means for repayment over time for the future costs of repair and alteration projects performed by GSA. As the ranking member of the Senate Judiciary Committee, I have been concerned about the adverse effect of these rent payments on the administration of justice. On May 13, 2005, a bipartisan group of 11 members of the Judiciary Committee, including Chairman Specter and myself, sent a letter to GSA asking it to exercise its authority to exempt the judicial branch from all rental payments except those required to operate and maintain Federal court buildings and related costs. GSA's response has not been adequate. As set forth in that letter, the excessive rent paid by the judiciary will exacerbate severe personnel shortages by forcing more cuts and could also have impacts on courthouse security. The rent relief provided in this bill will help ensure that the judiciary continues to have the tools it needs to carry out its unique and vital function.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to join with Senator Cornyn in another of our bipartisan efforts to improve the lives of Americans through effective and efficient Government. The Protecting American Goods and Services Act of 2005, which was passed unanimously out of the Senate last November as S. 1095, is now part of a package that includes the Stop Counterfeiting in Manufactured Goods Act, which I co-sponsored with Senator Specter as S. 1699. The Protecting American Goods and Services Act strengthens our ability to combat the escalating problem of counterfeiting worldwide. In order to effectively fight intellectual property theft, we need stiff penalties for counterfeiters and those who are caught with counterfeit goods with the intent to traffic their false wares. Ours is a short bill--indeed, it is only two pages long-- but it will have global implications in the fight against piracy. Counterfeiting is a growing problem that costs our economy hundreds of billions of dollars every year and has been linked to organized crime, including terrorist organizations. According to the International Anti-Counterfeiting Coalition, counterfeit parts have been discovered in helicopters sold to NATO, in jet engines, bridge joints, brake pads, and fasteners in equipment designed to prevent nuclear reactor meltdowns. The World Health Organization estimates that the market for counterfeit drugs is about $32 billion each year. Several years ago, Senator Hatch joined me in sponsoring the Anti- Counterfeiting Consumer Protection Act of 1996, which addressed counterfeiting by amending several sections of our criminal and tariff codes. That law made important changes, particularly by expanding RICO, the Federal antiracketeering law, to cover crimes involving counterfeiting and copyright and trademark infringement: Then, as now, trafficking in counterfeit goods hurts purchasers, State and Federal Governments, and economies at every level. Perhaps most disturbingly, the U.S. Customs Service reports that terrorists have used transnational counterfeiting operations to fund their activities: The sale of counterfeit and pirated music, movies, software, T-shirts, clothing, and fake drugs ``accounts for much of the money the international terrorist network depends on to feed its operations.'' Last year, as in years past, I worked with Senator Allen on an amendment to the Foreign Operations bill that provides the State Department with vital resources to combat piracy of U.S. goods abroad. The bill we ultimately passed included $3 million for this important purpose. Yet more work both at home and abroad remains. When you consider that the economic impact of tangible piracy in counterfeit goods is estimated to be roughly $350 billion a year and to constitute between 5 percent and 7 percent of worldwide trade, a few million dollars is a worthwhile investment. We have certainly seen how this form of theft touches the lives of hard-working Vermonters. Burton Snowboards is a small company, whose innovation has made it an industry leader in snowboarding equipment and apparel. Unfortunately, knock-off products carrying Burton's name have been found across the globe. Vanessa Price, a representative of Burton, testified about counterfeiting at the Judiciary Committee's March 23, 2004, hearing on this topic. In addition to learning about the economic costs of counterfeiting, I asked her after the hearing about the risks posed to consumers by these goods. Her answer was chilling: In the weeks since my Senate testimony, I discovered a shipment of counterfeit Burton boots for sale through a discount sports outfit . . . After examining the poor quality of the counterfeit boots, we determined that anyone using the boots for snowboarding risks injury due to a lack of reinforcement and support in the product's construction. Customers and businesses lose out to counterfeiters in other ways, too. SB Electronics in Barre, VT, has seen its capacitors reverse engineered and its customers lost to inferior copycat models. Vermont Tubbs, a furniture manufacturer in Rutland, has seen its designs copied, produced offshore with inferior craftsmanship and materials, and then reimported, so that the company is competing against cheaper versions of its own products. And Hubbardton Forge in Castleton, VT, has seen its beautiful and original lamps counterfeited and then sold within the United States at prices--and quality--far below their own. This is wrong. It is unfair to consumers who deserve the high quality goods they think they are paying for, and it is unfair to innovators who play by the rules and deserve to profit from their labor. This bill helps to combat this growing scourge. S. 1095 criminalizes the possession of counterfeit goods with the intent to sell or traffic in those goods, and it expands the definition of ``traffic'' to include any distribution of counterfeits with the expectation of gaining something of value--criminals should not be able to skirt the law simply because they barter illegal goods and services in exchange for their illicit wares. Finally, the bill will criminalize the importation and exportation of counterfeit goods, as well as of bootleg copies of copyrighted works into and out of the United States. By tying off these loopholes and improving U.S. laws on counterfeiting, we are sending a powerful message to the criminals who belong in jail, and to our innovators.

Mr. LEAHY. I say to Senator Specter, thank you for that clarification. As you are aware, there has been overwhelming support for this legislation. It has been very heartening to see such overwhelming support for this important bill. Counterfeiting is a threat to America. It wreaks real harm on our economy, our workers, and our consumers. This bill is a tough bill that will give law enforcement improved tools to fight this form of theft. The bill is short and straightforward, but its impact should be profound and far reaching.

Mr. LEAHY. Mr. President, Section 2(b)(1)(B) authorizes U.S. Attorneys to pursue civil in rem forfeiture proceedings against ``any property used, in any manner or part, to commit or to facilitate the commission of a violation of subsection (a).'' The intent of this language is to provide attorneys and prosecutors with the authority to bring a civil forfeiture action against the property of bad actors who are facilitating trafficking or attempts to traffic in counterfeit marks. The forfeiture authority in Section 2(b)(1)(B) cannot be used to pursue forfeiture and seizure proceedings against the computer equipment, website or network of responsible Internet marketplace companies, who serve solely as a third party to transactions and do not tailor their services or their facilities to the furtherance of trafficking or attempts to traffic in counterfeit marks. However, these Internet marketplace companies must make demonstrable good-faith efforts to combat the use of their systems and services to traffic in counterfeit marks. Companies must establish and implement procedures to take down postings that contain or offer to sell goods, services, labels, and the like in violation of this act upon being made aware of the illegal nature of these items or services. It is the irresponsible culprits that must be held accountable. Those who profit from another's innovation have proved their creativity only at escaping responsibility for their actions. As legislators it is important that we provide law enforcement with the tools needed to capture these thieves. I say to Senator Specter, it is also my understanding that the U.S. Sentencing Commission recently promulgated new Federal sentencing guidelines to account for the changes in how intellectual property crimes are committed. Could the Senator clarify for the record why we have authorized the U.S. Sentencing Commission to further amend the Federal sentencing guidelines and policy statements for crimes committed in violation of title 18, section 2318 or 2320, of the United States Code?

Mr. LEAHY. Some of our most important legislation is produced not only when we reach across the aisle in the name of bipartisanship, but when we work across Chambers and reach true consensus. I would also like to thank Senators Alexander, Bayh, Brownback, Coburn, Cornyn, DeWine, Durbin, Feingold, Feinstein, Hatch, Kyl, Levin, Reed, Stabenow, and Voinovich for their cosponsorship of the Senate companion legislation. Counterfeiting is a serious problem that does not lend itself to a quick and easy solution. This legislation is an important step towards fighting counterfeiting. I hope we can build on the success of this law.

Mr. LEAHY

Mr. LEAHY. Mr. President, I don't want to interfere with the Senator. I see quite a few pages of remarks there. I don't want to interfere with that, but I understood the Senator from Virginia and the Senator from Arkansas were going to introduce legislation, to be followed by remarks of mine on the bill before us in my capacity as the ranking member of the Senate Judiciary Committee, which has jurisdiction over this piece of legislation. My remarks will only be 5 or 6 minutes, but I wish to make them now or as soon as the Senators from Virginia and Arkansas have finished.

Mr. LEAHY. Mr. President, as one of the authors of the original USA PATRIOT Act, as someone who voted to reauthorize an improved version of the act back in July 2005, and as an American concerned with our security, I am glad that we are making progress, but I have some misgivings about the bill being considered today. I will vote to proceed and hope there is an opportunity to improve the bill and the PATRIOT Act reauthorization even further. I believe that the PATRIOT Act provides important and valuable tools for the protection of Americans from terrorism. These matters should be governed by law and not by whim. Legislative action should be the clear and unambiguous legal footing for Government powers. I am glad that the sunsets that Congressman Armey and I insisted be included in the 2001 act brought about reconsideration and some refinement of the powers authorized in that measure. Those sunsets contributed to congressional oversight. Without them I expect the Bush administration would have stonewalled our requests for information and for review of the way they were implementing the statute. The sunsets were the reason we have been going through a review and renewal process over the last few months. Now the challenge to Congress is to provide the effective oversight that will be needed in the days ahead and to ensure that there is effective court review of actions that affect the rights of Americans. Several specific provisions of this bill reflect modest improvement over both the original PATRIOT Act and the reauthorization proposal initially produced by the House-Senate conference. It is with these improvements in mind that I will support Senator Sununu's bill. These improvements, like those contained in the conference report, were hard won. The Bush administration pursued its usual strategy of demanding sweeping Executive powers and resisting checks and balances. As usual, it was short on bipartisan dialogue and long on partisan rhetoric. And as usual, the Republican majorities in the House and Senate did their utmost to follow the White House's directives and prevent any breakout of bipartisanship. But a ray of bipartisanship did break out, and this reauthorization package is the better for it. Senator Sununu's bill modifies a provision I objected to that would have required American citizens to tell the FBI before they exercise their right as Americans to seek the advice of counsel. Chairman Specter and I worked together to correct this provision and Senator Sununu has improved it further. I commend his efforts in this regard. Another important change provided by the Sununu bill builds upon another objection I had and an idea I shared with him to ensure that libraries engaged in their customary and traditional activities not be subject to national security letters as Internet service providers. This is a matter I first raised and feel very strongly about. I commend Senator Sununu for the progress he has been able to make in this regard. The bill is intended to clarify that libraries as they traditionally and currently function are not electronic service providers, and may not be served with NSLs for business records simply because they provide Internet access to their patrons. Under this clarification, a library may be served with an NSL only if it functions as a true Internet service provider, as by providing services to persons located outside the premises of the library, but this is an unlikely scenario. In most if not all cases, if the Government wants to review library records for foreign intelligence purposes, it will need a court order to do so. The language I proposed to Senator Sununu in this regard was less ambiguous than that to which the Bush administration would agree. Still, my intent, Senator Sununu's intent, and the intent of Congress in this regard should be clear. It is to strengthen the meaning and ensure proper implementation of this provision that I will support this bill. As a supporter, I trust my intent will inform those charged with implementing the bill and reviewing its proper implementation. It is regrettable that the Bush administration would not engage all of us in a bipartisan conversation on ways we could improve the bill. The White House Counsel only spoke to the Republican Senators. In that setting, they negotiated to achieve what they viewed as improvements. It is less than we would have liked. I know that the Republican Senators who worked on this bill were well intentioned and I commend their efforts. Regrettably, I note that one set of changes included in this bill I strongly oppose. The Bush administration has used the last round of discussions with Republican Senators to make the gag order provisions worse, in my view, by forbidding any challenge for one year. The Bush administration has simply refused to listen to reason on this and insists on this thumb on the scale of justice. In addition, the bill continues and cements into law procedures that, in my view, unfairly determine challenges to gag orders. The bill allows the Government to ensure itself of victory by declaring that, in its view, disclosure ``may'' endanger national security or ``may'' interfere with diplomatic relations. This is the type of provision to which I have never agreed in connection with national security letters or section 215 orders. It will serve to prevent meaningful judicial review of gag orders and, in my view, is wrong. I will continue to work to improve the PATRIOT Act. I will work to provide better oversight of the use of national security letters and to remove the un-American restraints on meaningful judicial review. I will seek to monitor how sensitive personal information from medical files, gun stores, and libraries are obtained, used, and retained. While we have made some progress, much is left to be done. In 2001, I fought for time to provide some balance to Attorney General Ashcroft's demands that the Bush administration's antiterrorism bill be enacted in a week. We worked hard for 6 weeks to make that bill better and were able to include the sunset provisions that contributed to reconsideration of several provisions over the last several months. Last year I worked with Chairman Specter and all the members of the Judiciary Committee and the Senate to pass a reauthorization bill in July. As we proceeded into the House-Senate conference on the measure, the Bush administration and congressional Republicans locked Democratic conferees out of their deliberations and wrote the final bill. That was wrong. In December, working with a bipartisan group of Senators, we were able to urge reconsideration of that final bill. Senators Sununu and Craig were able to use that opportunity to make some improvements. I commend them for what they were able to achieve and hope that my support for their efforts has been helpful. I wish that along the way the Bush administration had shown a similar interest in working together to get to the best law we could for the American people. When the public's security and liberty interests are at stake, it seems especially prudent and compelling to me that every effort should be made to proceed on a bipartisan basis toward constructive solutions. Instead, the White House has chosen once again to try to politicize the situation. Since the conference was hijacked, I have tried to get this measure back on the right track. We have been able to achieve some improvements, and that is no small feat given the resistance by this White House to bipartisan suggestions. I regret that this bill is not better and that the intransigence of the Bush administration has prevented a better balance and better protections for the American people. I will continue to work to provide the tools that we need to protect the American people. I will continue to work to provide the oversight and checks needed on the use of Government power and will seek to improve this reauthorization of the PATRIOT Act.

Mr. LEAHY. Mr. President, last week, the Judiciary Committee held an important hearing. That hearing should be the beginning of the process of congressional oversight into what has been called ``the President's program.'' This is a domestic spying program into emails and telephone calls of Americans without a judge's approval, apparently conducted by the National Security Agency. Having participated in the hearing and reviewed the transcript of the Attorney General's testimony, I understand the fear that this administration is engaged in an elaborate cover-up of illegality. I urge them to come clean with us and the American people. Perhaps their recent change of course and briefings with the full Intelligence Committees of the Senate and House will be a start. We need the whole truth not self-serving rationalizations. Since our hearing the Bush administration has had to adjust its course. That is good. They have had to acknowledge that they cannot simply ignore Congress and keep us in the dark about this illegal spying program. The classified briefings of the Intelligence Committees are a first step but cannot be used to cover up the facts through secrecy and arbitrary limitations. That is unacceptable. This domestic spying program has raised serious concern, not only among Democrats and Republicans here in Congress, but also among the Federal judges providing oversight over terrorist surveillance and even high-ranking Justice Department officials. I commend Chairman Specter for beginning this investigation. He and I have a long history of conducting vigorous bipartisan oversight investigations. If the Senate is to serve its constitutional role as a real check on the Executive, thoroughgoing oversight is essential. Today, Chairman Specter has announced a second Judiciary Committee hearing will be held on February 28. We expect by then to have received answers to the written questions that have already been sent to the Attorney General. The question facing us is not whether the Government should have all the tools it needs to protect the American people. Of course it should. The terrorist threat to America's security remains very real, and it is vital that we be armed with the tools needed to protect Americans' security. That is why I coauthored the PATRIOT Act 5 years ago. That is why we have amended the Foreign Intelligence Surveillance Act five times since 9/11 to provide more flexibility. And that is why within days of the despicable attacks we passed the Authorization for the Use of Military Force on September 14, 2001, to send the United States Armed Forces into Afghanistan to get those who planned and carried out the vicious attacks on September 11. We all agree that we should be wiretapping al-Qaida terrorists. Congress has given the President authority to wiretap legally, with checks to guard against abuses when Americans' conversations and email are being monitored. But instead, the President has chosen to proceed outside the law, without those safeguards. He has done so in a way that is illegal and illogical. It remains confusing that the Attorney General testified last week that the Bush administration has limited ``the President's program'' of illegal wire taps to calls with an international component. The administration's rationale is not limited to calls and emails with an international component or to know al-Qaida operatives. It sounded at our hearing as if what the Bush Attorney General and former White House counsel was saying is that this particular ``program'' is limited because they were afraid of public outrage. The Attorney General said as much to Senator Kohl and confirmed to Senator Biden that the Bush administration does not suggest that the President's powers are limited by the Constitution to foreign calls. Their descriptions of the President's program seem to have more to do with public relations than anything else. It was even branded with a new name in the last few days after it has been known for years as simply ``the President's program.'' Senator Feinstein was right to observe after the Attorney General dodged and weaved and would not directly answer her questions: ``I can only believe--and this is my honest view--that this program is much bigger and much broader than you want anyone to know.'' The Attorney General's strenuous efforts to limit the hearing to ``those facts the President has publicly confirmed'' and ``the program that I am here testifying about today'' suggest that all of us must be skeptical about the secret games the Attorney General was playing through controlling the definition of ``the program'' to include only what he understood to exist at the beginning of last week. Senator Feinstein was not fooled. None of us should be. Such limiting definitions are what the Bush Administration used to redefine ``torture'' in order to say that we do not engage in ``torture'' as they redefined it. These are the word games of coverup and deception. It is not al-Qaida surprised that our Government eavesdrops on its telephone calls and emails. Al-Qaida knows that we eavesdrop and wiretap. It is the American people who are surprised and deceived by the President's program of secret surveillance on them without a judge's approval for the last 5 years-- especially, after the Attorney General, the Justice Department, the head of the NSA and the President have all reassured the American people over and over that their rights are being respected--when they are not. I wish the President had effectively utilized the authority Congress did grant in the Authorization for the Use of Military Force in September 2001 to get Osama bin Laden and those responsible for the terrible attacks on September 11. That resolution was what it said it was, authorization to send troops to Afghanistan to get those responsible for 9/11. President Bush should have gotten Osama bin Laden when Congress authorized him to use our military might against al-Qaida in 2001 in Afghanistan. Instead of pursuing him to the end, he pulled our best forces out of the fight and diverted them to preparing for his invasion of Iraq. Last week the Attorney General left key questions unanswered and left impressions that are chilling. Under his approach, there is no limit to the power the President could claim for so long as we face a threat of terrorism. That is a real threat, which we have long faced and will continue to face for years if not decades toe. The Attorney General's testimony only hinted at the full dimensions of the Bush administration's illegality. He would not reassure us that Americans' domestic calls, emails, or first class mail have not been illegally spied upon. He sought to choose his words carefully to say that he was only willing to speak about the President's ``program'' as it existed that day. That means we do not yet know the full dimensions of the program as it has evolved over time from 2001 to today. That means we do not know what other illegal activities the Bush administration is still endeavoring to hide from us. Along with other Senators I asked about the lack of any limit to the legal rationale the Bush administration has embraced. Their rationalization for their actions is rationalization for any action. Under their view of the President's power, he can order houses and businesses searched without a warrant. Americans can be detained indefinitely. Detainees can be tortured. Property could be seized. Their rational is a prescription for lawlessness and the opposite of the rule of law. Regrettably, the Attorney General's testimony last week left much to be desired. He did not provide convincing answers to basic questions, relevant information or the relevant underlying documents. Facts are a dangerous thing in a coverup. They are seeking to rewrite history and the law and control the facts that Congress can know. The Bush administration refusal to provide the contemporaneous evidence of what the Congress and the Bush administration were indicating to each other regarding what the Authorization for the Use of Military Force was intended to mean, speaks volumes. Does anyone think that if they had any evidence in support of their after-the-fact rationalization they would hesitate to provide it, to trumpet it from the highest media mountain? Of course not. Their failure to provide the information we asked for is not based on any claim of privilege, nor could it be. It is just a deafening, damning silence. So what is so secret about precisely when they came to this legal view, this rationalization of their conduct? Could it have come after the illegal conduct had been initiated? Could it have come after the President sought to immunize and sanitize the illegal conduct? Could it have come months or years later than the impression Attorney General Gonzales is attempting to create? Is that why the Bush administration is also refusing to provide to us the formal legal opinions of our Government, the binding opinions of the Office of Legal Counsel from 2001 and 2004 that we have also requested? Would review of those opinions show that the after-the-fact legal rationalizations changed over time and in 2001 were not those that the Attorney General has repackaged for public consumption in their current public relations campaign? Now that we know of the existence of the years-old secret domestic spying program that included the warrantless wiretapping of thousands of Americans, the Bush administration says that we should just trust them. That is a blind trust this administration has not earned. We have seen this administration's infamous and short-lived ``Total Information Awareness'' program and know how disastrous the FBI's Carnivore and Trilogy computer programs have been. I have read recent reports of a secret Pentagon database containing information on a wide cross-section of ordinary Americans, including Quakers meeting in Florida and Vermont, and have gotten no satisfactory explanation of the Defense Department's Counterintelligence Field Activities that spy on law-abiding Americans. I read about a secret Homeland Security database and datamining activities, as well. Today we read about another database with the names of more than 325,000 terrorists but we do not know how many are Americans, how many are listed incorrectly or how the mistakes will be corrected. There are new and disturbing reports that the Defense Department and the FBI have been monitoring U.S. advocacy groups working on behalf of civil rights or against the continuing occupation of Iraq. This is all too reminiscent of the dark days when a Republican President compiled enemies lists and eavesdropped on political opponents and broke into doctors offices and used the vast power of the executive branch to violate the constitutional rights of Americans. That President resigned in disgrace after articles of impeachment were reported in the House of Representatives. I was first elected to the Senate in the aftermath of Watergate and the White House ``plumbers'' and the illegality that led to the impeachment inquiry of President Nixon. The Foreign Intelligence Surveillance Act was passed in 1978 as part of the reform and reaction to those abuses. It was enacted after decades of abuses by the Executive, including the wiretapping of Dr. Martin Luther King, Jr., and other political opponents of earlier Government officials. It was enacted after the White House ``horrors'' of the Nixon years, during which another President asserted that whatever he did was legal because he was the President. The law has been extensively updated in accordance with the Bush administration's requests in the aftermath of 9/11 and has been modified further in the last 4 years. It is the governing law. The rule of law and freedoms we enjoy as Americans are principles upon which this Nation was founded and what we are defending and fighting for abroad. This type of covert spying on American citizens and targeted groups on American soil betrays those principles and it is unacceptable. What happens to the rule of law if those in power abuse it and only adhere to it selectively? What happens to our liberties when the government decides it would rather not follow the rules designed to protect our rights? What happens is that the terrorists are allowed to achieve a victory they could never achieve on the battlefield. We must not be intimidated into abandoning our fundamental values and treasured freedoms. We cannot let them scare us into giving up what defines us as Americans. There can be no accountability unless the Republican Congress begins to do its job and joins with us to demand real oversight and real answers. Senators take an oath of office, too. We swear to support and defend the Constitution of the United States, to bear true faith and allegiance to it, and to faithfully discharge our duties so help us God. Let each Senator fulfill that pledge and the Senate can resume its intended place in our democracy. Let us protect our national security and the national heritage of liberty for which so many have given so much.

Mr. LEAHY. The understanding is that I will be done by 4:15 to accommodate the Senator from West Virginia.

Mr. LEAHY. I would need about 6 minutes. And that is cutting down a half-hour speech to accommodate the Senator from West Virginia, but I have been here for a couple hours ready to give this speech.

Mr. LEAHY. I have 5 or 6 pages of large type.

Mr. LEAHY

Mr. LEAHY. Mr. President, first, I thank the distinguished Senator from California. She has talked about the daunting hours the senior Senator from Pennsylvania has put in on this legislation, as well as those of us who have been concerned with it. I note the Senator from California has spent those hours with us. She has been there, her staff has been there--I don't know how many times I have received calls that start with: Patrick, I have been thinking about this--and off we go. Usually, that is about points to which I should be paying more attention. All of that has gone toward a better bill. The senior Senator from Pennsylvania is not on the floor looking for praise, but I am going to take a moment to praise him from this side of the aisle. I do not know a single Senator, Republican or Democrat, who came to him and said: I want to talk to you about this, who was not given a fair, thorough hearing. If they had a better way of doing it, the Senator from Pennsylvania would say: Let's consider it. He and I would talk about it, and if we were convinced it was a better way, it became part of the bill. I have been here 31 years, as I am sometimes wont to say. My children remind me they had forgotten I was that old. But I have been here 31 years, and I very rarely have seen a chairman of either party take that much time and effort to accommodate every single Senator. I applaud my friend from Pennsylvania for doing that. But the proof comes in the pudding. Because he did do that, we have an even better bill than when we started. We spent several years on this. I recall conducting one of the first hearings on this several years ago. We have done this through two different Congresses. We have had numerous markups, and we have come out with a better bill. It is on the floor now because it is the aggregate of great ideas. This is why the point of order is so frustrating, the point of order that the nonpartisan Congressional Budget Office said they would not expect this legislation to add to the Federal debt. Yet we still have to face this point of order because the point of order has become for many a backdoor way of killing this bill. If it is done to kill the bill, Senators should ask themselves what they are then faced with? I will tell you what they are faced with. They are faced with thousands upon thousands of victims--and we are all for the victims. Lord knows everybody said that. But if you vote to sustain this point of order what you are telling thousands upon thousands of victims is: You are on your own. You probably have no chance of getting the recovery you would have here. Certainly, you tell all those veterans who have no place of recovery that they are gone. That is why every single veterans group I can think of has endorsed the legislation, the Specter-Leahy legislation. They have endorsed it. That is why all those veterans organizations said: Don't vote to sustain this point of order. I have a great deal of respect for the Senate Budget Committee. Certainly, I do for my friend, the ranking member, and my friend the chairman. But I disagree with any position that says this legislation would add to our deficit. If you fully read the text of our legislation and the testimony of the Congressional Budget Office and the recent analysis of the fiscal impact of this legislation, it does not support the point of order. We have heard people who are opposed to this say that somehow a privately funded trust will add to the Federal debt. This week, the Congressional Budget Office made it very clear that the trust fund set up under this bill does not add to the Federal debt. CBO stated in its letter that ``the legislation would be deficit neutral over the life of the fund.'' I ask unanimous consent that that letter from CBO be printed in the Record.

Mr. LEAHY. Mr. President, at the heart of most arguments against the funding structure provided under the FAIR Act are allegations that predictions about the number of claims expected to come to the fund have been underestimated. Over the past 5 years, the Judiciary Committee received extensive testimony from a variety of auditing companies, economic analysts and existing asbestos trusts about claims projections. Three years ago, a leading actuary with Tillinghast-Towers Perrin testified that ``$108 billion appears to be more than adequate'' while other firms estimated that $130 billion would be sufficient to cover the trust fund expenses. It is not surprising that projections about future behavior vary from firm to firm because the assumptions are different. Some professional analysts have estimated that we will experience significantly less than $140 billion in claims and others have estimated that we will experience more. Last week's document produced by some staff on the Budget Committee assumes that $160 billion will be paid out in claims based on a worst case scenario of one projection of claims activity. The minority staff document circulated last week adopted claims projections plainly at odds with the experience of the Manville trust and without consideration for the medical criteria in S. 852. The overwhelming majority of nonmalignant claims paid by the Manville trust go to unimpaired claimants. The fund created by the FAIR Act would not compensate these claims, so this significant disparity must be taken into account. The minority staff document also fails to account for the different medical criteria for malignant claims paid by the Manville trust. Thankfully, the CBO's estimate takes the FAIR Act's specific medical criteria into account when it considered its claims projections. The CBO considered all relevant estimates and met with scores of stake-holders, financial experts, economists and auditors in determining whether the compensation provided for victims under S. 852 would be adequate. After years of analysis, they found that while victim compensation could range from $120 to $150 billion, its middle range estimate using its chosen claims projections would yield approximately $130 billion in claimant compensation, and that $140 billion, plus investment income, would be sufficient to cover all claims payments, administrative costs, and borrowing costs. Of course opponents can seize upon worst case scenarios in an 11th hour attempt to scuttle this bipartisan legislation, but $130 billion in expected claims is the CBO's middle range and is provided for under our legislation. Finally, opponents of this legislation contend that the fund will not actually receive $140 billion from the private companies obligated to contribute based on their previous asbestos expenditures. In his testimony before the Senate Judiciary Committee last Fall, then-CBO Director Douglas Holtz-Eakin clearly stated that: ``CBO projects that total receipts to the fund over its lifetime would amount to about $140 billion, including a small amount of interest earnings on its balances.'' The FAIR Act contains several provisions to ensure that the contributions will be collected through numerous enforcement provisions which provide the administrator with subpoena power and the ability to pursue punitive damages for nonpayment. In addition, our legislation contains a funding guarantee so that other companies will make up the difference if some companies are unable to pay their own contribution. Even if the fund sunsets and victims are allowed to return to the tort system, the private companies are nonetheless required to continue to pay into the fund until all of the fund's obligations from borrowing costs and resolving victim claims are satisfied. I understand that some of my colleagues have raised this budget point of order to sink the FAIR Act, but I urge them to consider the purpose of such budgetary mechanisms in light of the simple fact that we have created a privately financed structure that the Congressional Budget Office has estimated will not add to the Federal debt. This point of order is a procedural mechanism intended to promote fiscal discipline. In light of CBO's explicit statement that ``CBO concludes that the legislation would be deficit-neutral over the life of the fund,'' no point of order should prevent such important, completely privately funded legislation as the FAIR Act. This latest analysis from CBO reinforces the fact that the asbestos trust fund legislation would not add to the Government's Federal debt. The bottom line from CBO is that this bill is ``deficit-neutral.'' There is no reason to sustain the budget point of order. The FAIR Act is the right solution for victims and businesses. This bipartisan bill offers fair and efficient relief to long-suffering victims of asbestos exposure while providing business with financial certainty and an alternative to bankruptcy. I recently received a letter from the International Association of Heat and Frost Insulators and Asbestos Workers. The workers represented by this union know first hand the devastation caused by asbestos, and I know they would hate to see the unique opportunity we have before us be destroyed by a technicality. They wrote: We believe S. 852 offers the best hope of providing fair and equitable compensation on a national basis for those who have suffered or will suffer from the devastating effects of asbestos exposure in decades to come. For these reasons, we urge you to reject the budget point of order, which holds the potential to kill this legislation that is so important to our members. Let us not let down the very people we are seeking to help. I ask unanimous consent that the letter from the International Association of Heat and Frost Insulators and Asbestos Workers of February 13, 2006 be printed in the Record.

Mr. LEAHY. Mr. President, I urge my colleagues to consider all the work that has gone into the crafting of this legislation including the specific provisions I have highlighted in this statement making it absolutely clear that the Federal Government is simply not liable under this legislation. The Judiciary Committee received extensive testimony from economists and experts in claims projections. All of this process and expertise was considered as part of the Congressional Budget Office official estimate. The CBO has testified that the FAIR Act is not predicted to add to the Federal debt; therefore, it should not suffer from the budget point of order raised against it. I urge my colleagues to waive the point of order. The victims of asbestos exposure will not benefit from this latest tactic to stop this legislation.