Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Madam President, we are beginning our debate today on the Roberts nomination. We know the vote will not come today, but I urge Members for him and against him to come and speak. I say that because there are very few decisions we face here in the Senate that are as consequential or as enduring as the one we face today. Few in our Nation's history have served as Chief Justice of the United States. It is a unique and significant position. Once one assumes it, he or she holds it for life. To put that in perspective, we have had 43 Presidents. We have only had 16 Chief Justices of the United States. I explained last week why I was supporting John Roberts's nomination to be Chief Justice. It was neither an easy decision nor was it a hurried decision. But it was a decision that my conscience led me toward. I thank Senators Reid, Kennedy, Kerry, Bingaman, Boxer, Pryor, Obama, Nelson of Nebraska, and others for their thoughtful remarks these past few days. I commend to the Senate each of the statements on both sides made in the Judiciary Committee meeting on Thursday. I must say, as the Democratic leader of that committee, I believe the Democratic Senators distinguished themselves by the thoughtful manner in which they proceeded. The hearing record upon which the Senate can draw in making this decision is as full as it is largely through their diligence. Now each Senator has to carefully weigh this question and decide it for himself or herself. Regardless of how Senators decide to vote on this nomination, the Democratic members of the Judiciary Committee can all be proud that we have done our job, we have fulfilled our constitutional responsibility to fully, fairly, and openly review this nomination on its merits. For that I thank them all. I note that it is true that Democratic Senators are not all voting in lockstep. Each Senator individually gave this nomination serious consideration. They each honored their constitutional duty and their obligation to the American people in reviewing this nomination. Democratic Senators kept open minds throughout this process, unlike some partisan cheerleaders who rallied to endorse the White House decision long before the first day of hearings opened. I urged my colleagues on this side of the aisle to wait until we had the hearings before they made a decision either for or against the nominee. I thought that was the most responsible thing for any Senator to do. I have served in the Senate for more than 30 years, much of that time on the Judiciary Committee. This is the 11th Supreme Court Justice nomination on which I cast my vote. I am one vote out of 100, but I recognize that those 100 of us privileged to serve in the Senate are entrusted with protecting the rights of 280 million of our fellow citizens. Just think for a moment, the Chief Justice is there to protect the rights of all 280 million Americans. Only 101 Americans can have a say in who is going to be Chief Justice: The President, of course, with the nomination, and then the 100 Members of the U.S. Senate who have to stand in the shoes of 280 million Americans. There is no entitlement to confirmation for lifetime appointments on any court or any nomination by any President, Democratic or Republican. Americans deserve a Supreme Court that acts in its finest tradition as a source of justice. The Supreme Court must be an institution where the Bill of Rights and human dignity are honored, preserved, and protected. As I considered this nomination, I reflected on the hearings and my meetings with Judge Roberts. While I believe Judge Roberts should and could have been more forthcoming, I was encouraged by some of his answers to my questions both at the hearings and during our nearly 3 hours of face-to-face meetings. I took Judge Roberts at his word when he gave the committee assurances that he would respect congressional authority. His steadfast reliance on the Supreme Court's recent Raich decision as significant precedent, contravening further implications from Lopez and Morrison, was intended to reassure us that he would not join in what has been a continuing assault on congressional authority. I heard him and I rely on him to be true to the impression he created. To do otherwise would greatly undermine Congress's ability to serve the interest of Americans, to protect the environment, to ensure equal justice, and to provide health care and other basic resources that are so vitally important to some of our neediest citizens. I think he knows that now. I was also struck by Judge Roberts's admiration for Justice Robert Jackson and for Justice Jackson's protection of fundamental rights, including the right of unpopular speech under the first amendment. We all know we don't have to fight to protect popular speech. It protects itself. We have to fight to protect unpopular speech under the first amendment. Justice Jackson's protection of unpopular speech, and his willingness to serve as a check on Presidential authority, are among the finest actions by any Justice in our history. I expect Judge Roberts to act in the tradition of Justice Jackson and serve as an independent check on the President. When he joins the Supreme Court, he can no longer simply defer to Presidential authority. We know we are in a period in which the executive has had a complicit-- and I believe compliant--Republican Congress that has not served as an effective check or balance. Without the Court to fulfill its own constitutional role as check and balance, excess will continue; the balance will be further tilted. Justice Roberts said he went to law school because of his love of the law and the rule of law. I was struck by that comment. I was struck by it because it was the same thing that motivated me when I entered Georgetown Law School here in this city. The purpose of the law is to serve justice. A Justice on our highest Court needs to know in his core, in his entire being, that the words engraved in the Vermont marble on the Supreme Court building are not just ``Under Law'' but ``Equal Justice Under Law,'' and that under our great national charter it is not just the rule of law that a Justice must serve but the cause of justice. The rule is there so we can serve the cause of justice. As Chief Justice, John Roberts will be responsible for the way in which the judicial branch administers justice for all Americans. I was encouraged that he said he would provide a fifth vote in staying an execution when four other Justices voted to review a capital case. Effective judicial review is all the more important in an era in which so many innocent citizens have been sent to death row. I respect those who come to different conclusions about this nomination. Actually, when I listened to those who came to different conclusions, I readily acknowledge the unknowable at this moment. Perhaps they are right and I am wrong. Only time will tell. But in my judgment, in my experience, especially in my conscience, I find it better to vote ``yes'' than ``no.'' My Vermont roots, which are deep and cherished in my family, have always told me to go with my conscience and that is what I have done in this decision. Judge Roberts is a man of integrity. For me, a vote to confirm requires faith that the words he spoke to us had meaning. I take him at his word that he does not have an ideological agenda and that he will be his own man as Chief Justice. I take him at his word that he will steer the Court to serve as an appropriate check of potential abuses of Presidential power. I hope and trust he will. This nomination process we complete this week provides some important lessons for the President as he renews his efforts to select a successor to Justice O'Connor. Last week Chairman Specter--I might add, parenthetically, a chairman who ran a superb hearing in the best tradition of the Senate, making sure that both Republicans and Democrats were heard and that questions were asked--and I, along with the Republican and Democratic leaders of the Senate, met with President Bush. I urged him to follow through with meaningful consultation this time, to share with us his intentions, and to seek our advice before he chooses; to use both parts of the advice and consent clause of the Constitution. I remain concerned by the administration's lack of cooperation with the Senate on Judge Roberts's nomination. We did start off well with some early efforts at consultation. I praised the President for that. But then those early efforts didn't result in meaningful discussions. The President's naming of Judge Roberts, first to replace Justice O'Connor and then swapping that for the vacancy left by Justice Rehnquist, came as a surprise both to Republicans and Democrats, not as a result of meaningful consultation. I believe there could and should have been consultation with the Senate on the nomination of someone to serve as the 17th Chief Justice of the United States, and I am sorry there was not. Many other Senators, including many Republican Senators, have offered similar advice. Chairman Specter has appropriately counseled that the next nominee should be someone who promotes stability on the Court, much like Justice O'Connor. Senator Graham urged the President to listen to Democrats and what we have to say as he considers his next nominee. What we are saying could easily be summed up by quoting the President's campaign promise. We are asking him, in this case especially, to be a uniter, not a divider, for the sake of the country--not for the sake of the 100 Senators but for the sake of the country. I thought the White House did not help the Roberts nomination by withholding information that has traditionally been shared with the Senate. The Administration treated Senators' requests for information with very little respect for the constitutional role the Senate is expected to fulfill in this process. Actually, the Administration stonewalled entirely the very narrowly tailored request for a very small number of important work papers from John Roberts's time as the principal political deputy to Kenneth Starr at the Solicitor General's Office. This decision did not help the nominee. I suspect he could very easily have answered questions about those papers. But the choice was taken out of his hands, and the choice was made at the White House. That should not be allowed to establish a new standard because it would override the precedent from Chief Justice Rehnquist's hearings and others. Previous Presidents have had the appropriate respect for the constitutional process and worked with the Senate to provide such materials. I urge the Administration to go back to precedent, to work with us and cooperate on future nominations. Finally, some Republican Senators did not help the confirmation process by urging the nominee not to provide fuller answers during the course of the hearings. I say that because, again, I remind all Senators, it would be the same thing whether it was a Democratic President who made nominations. No matter who makes the nomination, Democratic President or Republican President, we are the only 100 people in this country out of 280 million Americans who get to vote on the nomination and we should not start off by asking a nominee or telling the nominee not to answer any questions. I can't imagine too many of our constituents would like that. I know thousands of questions were mailed in by Americans from all over who would have liked to ask questions, and they could not be asked. These hearings which we hold in the Senate are the best and only opportunity for the American people to hear from the nominee on important issues that affect all of us. The hearings we hold are the best and only opportunity to hear directly from the nominee about his or her judicial philosophy. The President asked for a dignified process and an up-or-down vote. That is what we accomplished in the Judiciary Committee. With the Senate vote this week, we will complete our action and grant the Senate's consent. The hearings were dignified and they were fair. Chairman Specter has every reason to be proud of what the committee accomplished under his leadership. And I must say, I was personally very humbled by what the Democratic leader, Senator Reid, said about the senior Senator from Vermont this afternoon on the Senate floor. I appreciate hearing that from my dear friend, Senator Reid. With the benefit of lessons learned from this nomination, the President is facing a new opportunity to unite this country around a nominee to succeed Justice O'Connor. I hope the President and those around him are listening this afternoon. Now more than ever--with Americans fighting and dying in Iraq every day, with hundreds of thousands of our fellow Americans being displaced by disasters here at home--now more than ever is the time to unite rather than divide this Nation. The Supreme Court belongs to each and every American, not to any political party or any faction. For our country's sake, for the sake of all Americans, no matter what their politics might be, I urge the President to make a choice that unites us and doesn't divide us. I will have more to say as the week goes on. I see the distinguished Senator from Maryland in the Chamber. I yield to her such time as she may need.

Mr. LEAHY. No objection.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that Sam Schneider, Joshu Harris, Jennie Pasquarella, and Matt Oresman, all law clerks in my office, be granted the privilege of the floor during the Senate's debate and vote on the nomination of John G. Roberts, Jr., to be Chief Justice of the United States.

Mr. LEAHY

Mr. LEAHY. I am pleased to join Senator Specter as a cosponsor of this bill that would require the televising of Supreme Court proceedings. In the Senate Judiciary Committee, we recently conducted open hearings on the nomination of John G. Roberts to be Chief Justice of the United States. We raised this matter with Judge Roberts. I have long believed in sunshine in government. Our democracy works best when our citizens have access to their government. I have supported efforts to make all three branches of our Federal Government more accessible. Except for rare closed sessions, the proceedings Congress and its committees are open to the public and carried live on cable television and radio. In addition, Members and committees are using the Internet and Web sites to make their work available to their constituencies and the general public. The work of executive branch agencies is subject to public scrutiny through the Freedom of Information Act, among other mechanisms. Despite the current administration's dramatic shift toward excessive secrecy, the Freedom of Information Act remains a cornerstone of democracy. It establishes the right of Americans to know what their government is doing--or not doing. As President Johnson said in 1966, when he signed the Freedom of Information Act into law: This legislation springs from one of our most essential principles: A democracy works best when the people have all the information the security of the Nation permits. Although most judicial proceedings are open to those who can travel to the courthouse and wait in line, emerging technology allows the opportunity to invite the rest of the country into the courtroom. All 50 States have allowed some form of audio or video coverage of court proceedings, but Federal courts lag behind. Previously, I have cosponsored several bills with Senator Grassley to address this, including the Sunshine in the Courtroom Act of 2005. The legislation I am cosponsoring today extends the tradition of openness to the Nation's highest Court and can help Americans be better informed about the important decisions that are made there and how they are made. This bill requires the Supreme Court to permit television coverage of all open sessions of the Court. At the same time, it protects the parties from violation of their due process rights by permitting a majority of the Justices to suspend this coverage for a particular session if due process requires. In 1994, the Judicial Conference concluded that the time was not ripe to permit cameras in the Federal courts, and rejected a recommendation of the Court Administration and Case Management Committee to authorize the photographing, recording, and broadcasting of civil proceedings in Federal trial and appellate courts. The Supreme Court is often the final arbiter of constitutional questions and represents the ultimate protection of individual rights and liberties. Allowing the public greater access to its public proceedings will allow Americans to evaluate for themselves the quality of justice in this country, and deepen their understanding of the work that goes on in the Court.

Mr. LEAHY

Mr. LEAHY. Mr. President, General Peter Pace will soon become the next Chairman of the Joint Chiefs of Staff. There is no person more deserving of this honor and more ready to take on this awesome responsibility than General Pace, who has served the country with great distinction in the Marine Corps for almost four decades. I know the entire Senate joins me in congratulating him and in extending all best wishes as he assumes his new post as the primary military adviser to the Secretary of Defense and the President of the United States. General Pace assumes the position at a difficult and a delicate time in our Nation's security situation. We are trying to bring political stability to Iraq, carrying out an intense counterinsurgency in a country rife with sectarian tensions and outright violence. The war in Iraq and ongoing operations in Afghanistan are placing enormous stress on our military's equipment, long-range planning, and, most importantly, its people. Our defense forces are also heavily engaged in the relief effort in the aftermath of Hurricanes Katrina and Rita. Active-Duty military personnel from each service are working closely with the National Guard to help Louisiana, Mississippi, and Texas to recover from these catastrophes. Yet if there is any military officer who will help the Nation's leaders understand the possibilities and limitations of military power in this ever-shifting international landscape, and mobilize our capabilities to best effect, it is General Peter Pace. General Pace has an extraordinary background forged through his strength of character, sharpness of intellect, and generosity of heart. General Pace is also a straight-talker, always speaking clearly and thoughtfully. He is a consummate professional who will also serve as a true leader, adviser, and spokesperson for the Department of Defense. The depth and strength of General Pace's qualities and capabilities also come from his real-world experiences. Born in Brooklyn and raised in Teaneck, NJ, General Pace was commissioned in 1967. Soon after his graduation from the U.S. Naval Academy, he embarked on his stellar career and service in the Marine Corps. He served heroically in Vietnam, where he earned a Bronze Star in the line of fire. As he rose through the ranks, General Pace has commanded recruiting stations and infantry battalions. At each posting he has brought a strong sense of purpose, strength, and insight. He has also served as an executive officer and chief of staff to high level officers before becoming one himself. In the early 1990s, he was deputy commander of our Marines in Somalia. In every one of his postings, higher ranking officials have wisely recognized his talents and skills and sought to put them to use. General Pace will become the first marine to serve as the Chairman of the Joint Chiefs of Staff, just as he was the first marine to become the Vice Chairman. As Vice Chairman, he served the President, Secretary of Defense Rumsfeld, and Chairman Richard Myers superbly, overseeing the often complicated military requirements process and ensuring that the enormous staff of the Joint Chiefs runs smoothly. As a member of the Joint Chiefs, he contributed his wide-ranging insights and knowledge, as this important group tackled crises like the attacks of September 11 and the war in Iraq. General Pace is devoted to his family--his wife Lynne and two children, Peter and Tiffany Marie and my wife Marcelle and I have enjoyed the time we have spent with them. We know that part of the dignity and strength that the general will bring to this new position comes from that incredible and invaluable family support. I know that the entire Senate is proud of General Pete Pace and the Senate, like me, will want to wish him warm congratulations, deep appreciation and all best wishes in his new position.

Mr. LEAHY

Mr. LEAHY. I am pleased to join Senator Specter as a cosponsor of this bill that would require the televising of Supreme Court proceedings. In the Senate Judiciary Committee, we recently conducted open hearings on the nomination of John G. Roberts to be Chief Justice of the United States. We raised this matter with Judge Roberts. I have long believed in sunshine in government. Our democracy works best when our citizens have access to their government. I have supported efforts to make all three branches of our Federal Government more accessible. Except for rare closed sessions, the proceedings Congress and its committees are open to the public and carried live on cable television and radio. In addition, Members and committees are using the Internet and Web sites to make their work available to their constituencies and the general public. The work of executive branch agencies is subject to public scrutiny through the Freedom of Information Act, among other mechanisms. Despite the current administration's dramatic shift toward excessive secrecy, the Freedom of Information Act remains a cornerstone of democracy. It establishes the right of Americans to know what their government is doing--or not doing. As President Johnson said in 1966, when he signed the Freedom of Information Act into law: This legislation springs from one of our most essential principles: A democracy works best when the people have all the information the security of the Nation permits. Although most judicial proceedings are open to those who can travel to the courthouse and wait in line, emerging technology allows the opportunity to invite the rest of the country into the courtroom. All 50 States have allowed some form of audio or video coverage of court proceedings, but Federal courts lag behind. Previously, I have cosponsored several bills with Senator Grassley to address this, including the Sunshine in the Courtroom Act of 2005. The legislation I am cosponsoring today extends the tradition of openness to the Nation's highest Court and can help Americans be better informed about the important decisions that are made there and how they are made. This bill requires the Supreme Court to permit television coverage of all open sessions of the Court. At the same time, it protects the parties from violation of their due process rights by permitting a majority of the Justices to suspend this coverage for a particular session if due process requires. In 1994, the Judicial Conference concluded that the time was not ripe to permit cameras in the Federal courts, and rejected a recommendation of the Court Administration and Case Management Committee to authorize the photographing, recording, and broadcasting of civil proceedings in Federal trial and appellate courts. The Supreme Court is often the final arbiter of constitutional questions and represents the ultimate protection of individual rights and liberties. Allowing the public greater access to its public proceedings will allow Americans to evaluate for themselves the quality of justice in this country, and deepen their understanding of the work that goes on in the Court.

Mr. LEAHY

Mr. LEAHY. Mr. President, under the Federal material witness statute our government is authorized to arrest a witness in order to secure his testimony in a criminal proceeding. In order to obtain a material witness warrant, the government must establish that the witness has information that is material to a criminal proceeding, and that it may become impracticable to secure the witness's presence at the proceeding by a subpoena. Once arrested, a material witness may be detained for a reasonable period, until his testimony can be secured by deposition or appearance in court. The material witness law was intended to ensure the appearance of witnesses in those rare cases where they might otherwise flee to avoid testifying in a criminal proceeding. This authority is an important tool for our government's law enforcement duties, but it must be exercised responsibly. As the Court of Appeals for the Second Circuit noted in 2003, in the case of United States v. Awadallah, ``It would be improper for the government to use [the material witness statute] for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established.'' Since September 11, 2001, however, that is exactly what the government has been doing. Indeed, senior Administration officials, including our current Attorney General, have admitted that the government routinely uses material witness warrants to detain suspects in the so-called war on terror. A report released this summer by Human Rights Watch and the American Civil Liberties Union identifies 70 men, including more than a dozen citizens, whom the Department of Justice arrested as material witnesses in connection with its terrorism investigations. Many were never brought before a court or grand jury to testify for the simple reason that they were viewed not as witnesses, but as suspects. The evidence against these suspects was often flimsy at best, and would never have sufficed for criminal arrest and pre- trial detention. This twisting of a narrow law designed to secure testimony into a broad preventive detention authority has resulted in some notorious abuses. Just days after 9/11, the FBI arrested eight Egyptian-born men in Evansville, IN--one a naturalized American citizen--as material witnesses, based on a bogus tip that they planned to fly a plane into the Sears Tower in Chicago. The men were held for more than a week in solitary confinement before being released. Many months later, the FBI issued a rare public apology to these men. That apology, while necessary, could not repair the damage that had been done to them and their families in the form of lost business, tainted reputations, and the accusing stares of their friends and neighbors. The case of Abdallah Higazy further highlights the danger that can occur when this authority is abused. Shortly after 9/11, the 30-year- old Egyptian graduate student with a valid visa, was picked up after a security guard at a hotel located across the street from Ground Zero claimed to have found an aviation radio in the room where Higazy had stayed on 9/11. Higazy was held for more than a month in solitary confinement until he ultimately confessed that the radio was his. Higazy was then charged with lying to the FBI for initially denying possession of the radio. These charges were dropped after the true owner of the radio, an American pilot, went to the hotel to claim it. In another, higher profile case in May 2004, Portland attorney Brandon Mayfield was arrested as a material witness in connection with the Madrid train bombing. An email sent from the Portland FBI office to the Los Angeles FBI office the day before Mayfield's arrest refers to him as a ``Moslem convert'' and notes as a ``problem'' that there was not enough evidence to arrest him for a crime. After spending two weeks in prison, Mayfield was released and the FBI was expressing regret about the erroneous fingerprint match that led to his arrest. These and other examples of post-9/11 misuse of the material witness statute are documented in the HRW/ACLU report. As the report shows, such misuse does more than just circumvent the requirement of probable cause for a criminal arrest. Suspects arrested as material witnesses are denied the basic protections guaranteed to criminal defendants, including the right to view any exculpatory evidence and to be able to challenge the basis for their arrest and incarceration. The report concludes that the misuse of the material witness law ``threatens U.S. citizens and non-citizens alike because it reflects a lowering of the standards designed to protect everyone from arbitrary and unreasonable arrest and detention.'' The bill I introduce today will ensure that the material witness law is used only for the narrow purpose that Congress originally intended, to obtain testimony, and not to hold criminal suspects without charge when probable cause is lacking. First, the bill raises the standard that the government must meet to obtain a material witness warrant. Under current law, a judge may order the arrest of a material witness if there is probable cause to believe that securing his presence by subpoena may become ``impracticable.'' Under the bill, there must be probable cause to believe that the witness has been served with a subpoena and failed or refused to appear as required, or clear and convincing evidence that the service of a subpoena is likely to result in the person fleeing or cannot adequately secure the appearance of the person as required. Second, the bill imports several due process safeguards from the Federal Rules of Criminal Procedure relating to the arrest and arraignment of criminal defendants. Among other things, the bill requires that a material witness warrant specify that the testimony of the witness is sought in a criminal case or grand jury proceeding, and command that the witness be arrested and brought to court without unnecessary delay. The warrant must also inform the witness of his right to retain counselor or request that one be appointed. The right to counsel is already guaranteed to material witnesses under the Criminal Justice Act, 18 U.S.C. 3006A(a)(1)(g), and protects the witness from erroneous, unnecessary, and prolonged incarceration. The bill further provides that, upon arresting a material witness, the government must provide him with a copy of the warrant or inform him of the warrant's existence and purpose. A material witness must be brought before a judge ``without unnecessary delay''--a term that has been strictly interpreted when applied to the criminally accused. The initial appearance must be in the district of arrest or an adjacent district. At the initial appearance, the judge must inform the witness of the basis for his arrest and of his right to counsel. The judge must also allow the witness a reasonable opportunity to consult with counsel. The judge must then determine whether the witness should be released or detained pending the taking of his testimony. Third, the bill establishes clear procedures for material witness detention hearings. Current law provides that material witnesses shall be treated in accordance with 18 U.S.C. 3142, which governs the release or detention of defendants pending trial. Section 3142, however, contains many factors that are not applicable to material witnesses. For example, courts have held that a material witness may not be detained on the basis of dangerousness. (See Awadallah, 349 F.3d at 63 n.15.) The bill clarifies that in detention hearings for material witnesses, flight risk is the only relevant factor. A court shall order a material witness detained only if no condition or combination of conditions will reasonably assure the appearance of the witness as required. As under current law, no witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition. In determining whether a material witness should be released or detained, the court shall take into account the available information concerning the history and characteristics of the witness, and may also consider challenges to the basis of the warrant. Fourth, the bill establishes the ``clear and convincing evidence'' standard used in other civil detention contexts for material witness detentions. Few courts have directly examined what standard of proof should be required of the government to demonstrate that no conditions of release can reasonably assure a witness's appearance. While the lower ``preponderance of the evidence'' standard may suffice for pre- trial detention of defendants who pose a risk of flight, in the case of defendants there has also been a finding of probable cause to believe the person committed a crime. In the case of a witness, where there is no probable cause to believe the person committed a crime, the usual grounds for fearing flight--the defendant's aversion to risking a guilty verdict and attendant sentencing--are not present. Fifth, the bill imposes reasonable but firm time limits on the detention of material witnesses. Current law sets no firm limit on how long a witness may be incarcerated before being presented in a criminal proceeding or released. This has resulted, according to the recent report, in many witnesses enduring imprisonment for two or more months, and in one case for more than a year. Under my bill, a material witness may initially be held for not more than five days, or until his testimony can adequately be secured, whichever is earlier. That period may be extended for additional periods of up to five days, upon a showing of good cause for why the testimony could not adequately be secured during the previous five-day period. The total period of detention may not exceed 10 days for a grand jury witness, or 30 days for a trial witness, and in no case may a witness be held any longer than necessary to secure his testimony. Sixth, in recognition of the fact that material witnesses are not charged with any offense, the bill requires that they be held in a corrections facility that is separate, to the extent practicable, from persons charged with or convicted of a criminal offense, and under the least restrictive conditions possible. Finally, to facilitate congressional oversight, the bill requires the Justice Department to report annually on the use of the material witness law. Since 9/11, the Department has withheld information relating to material witnesses on the theory--in my view, a flawed theory--that such information is covered by the grand jury secrecy rule. It is hard to imagine how the release of generalized data, such as the aggregate number of people detained as material witnesses, could damage any reputational interest or any of the other interests protected by Rule 6(e). The recent, detailed report on post-9/11 uses of the material witness statute leaves no doubt that the law has been bent out of shape, with real consequences for citizens and non-citizens alike. My bill will restore the law to its original purpose and prevent future abuses. I urge its speedy passage. I ask unanimous consent that the text of the bill be included in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that I may speak for up to 20 minutes.

Mr. LEAHY. I thank the distinguished Presiding Officer.

Mr. LEAHY

Mr. LEAHY. Mr. President, it gives me great pleasure today to congratulate Paul Bruhn and the Preservation Trust of Vermont on an anniversary that marks 25 successful years of protecting and celebrating Vermont's historical treasures. I am proud to be able to call Paul not only an accomplished Vermonter but also a very good friend. He was my first campaign manager and my first chief of staff, and the Preservation Trust of Vermont is only one of his significant gifts to the Green Mountain State. Paul became the founding executive director of the Preservation Trust of Vermont in 1980, after helping me find my way through the Senate during my first term. Since then he has helped the Preservation Trust save countless architectural treasures in every corner of the State, helped reinvent communities that had eroded through years of neglect, and helped our State capitalize on its unique identity. Thanks in large part to his leadership, the Preservation Trust of Vermont has been a respected, appreciated, and integral part of Vermont's culture for the past quarter century. My wife Marcelle and I consider ourselves highly fortunate to call Paul a close personal friend. Before my campaign in 1974, we saw in Paul attributes that we knew would bring Vermont wonderful things. As the consummate connector, Paul has been a humble servant of the public interest, forging and leading broad community coalitions to overcome some of the most difficult growing pains of development--retaining a community's character. He has used these talents to bring attention to and preserve the most unique and defining aspects of Vermont. From making sure Vermont music legend Sterling Weed had a band stand, to bringing attention to the wonderful architecture at the St. Johnsbury Athenaeum, he has helped Vermonters embrace their unique spirit and storied history. Paul has always understood that a community's future vitality is directly linked to its past. When the city of Burlington was preparing to level the historic firehouse on Church Street--one of the most beautiful and unique buildings in the city--it was Paul who convinced me to open my first Senate office there to save the building from the wrecking ball. Years later, as historic downtowns across the country were being shuttered and demolished because of urban sprawl, Paul helped me work with local and State officials to find millions of dollars in Federal investments to revolutionize Burlington's historic center of commerce, turning Church Street into an award-winning pedestrian marketplace. Today the historic facades that have hung over Church Street for a century or more remind shoppers of Burlington's rich history. There is hardly a nook or cranny, village or gore, throughout Vermont that has not felt the touch of Paul and the Preservation Trust of Vermont. Whether through a small Preservation Trust grant for the refinishing of a church tower, or through a multimillion dollar campaign led by Paul and the talented people he works with, every corner of the State from Burke to Bennington has benefited from Paul's community- and consensus-building. Just last year, this native Vermonter was at the heart of an effort to have the entire State of Vermont designated as one of the top 10 endangered places by the National Preservation Trust. It was the first time in the organization's history that an entire State was added to the list. He helped the city of Rutland persuade Wal-Mart to anchor in the community's historic downtown instead of outside of town in a vacant field, a victory that few other communities across the country have won. That was not enough though, and he has brought Rutland's story to other communities throughout the State, where no matter the outcome, he has helped empower community leaders to make decisions rather than bow to the whims of out-of-state developers. In my lifetime of public service, I have never met a person so adept at bringing people together and finding ways to make sure everyone has a voice. Years before he came to work for me, Paul was a key player in setting up the consumer fraud office within the Vermont attorney general's office, where he not only protected consumer rights, but also helped the office create a toll-free number that revolutionized the way Vermonters communicated with their government. When I entered the Senate, Paul and I brought this concept to the greatest deliberative body in the Senate by operating the first toll-free phone line in the Congress. Paul has always put the interests of all Vermonters ahead of himself or any organization he has ever steered. The Preservation Trust of Vermont has been no different. Through his involvement, Vermont is a better place and Vermonters have realized the wonderful things our past has to offer. Thank you Paul, and congratulations to you and everyone who has ever helped make the Preservation Trust of Vermont the success it is today.

Mr. LEAHY

Mr. LEAHY. Mr. President, under the Federal material witness statute our government is authorized to arrest a witness in order to secure his testimony in a criminal proceeding. In order to obtain a material witness warrant, the government must establish that the witness has information that is material to a criminal proceeding, and that it may become impracticable to secure the witness's presence at the proceeding by a subpoena. Once arrested, a material witness may be detained for a reasonable period, until his testimony can be secured by deposition or appearance in court. The material witness law was intended to ensure the appearance of witnesses in those rare cases where they might otherwise flee to avoid testifying in a criminal proceeding. This authority is an important tool for our government's law enforcement duties, but it must be exercised responsibly. As the Court of Appeals for the Second Circuit noted in 2003, in the case of United States v. Awadallah, ``It would be improper for the government to use [the material witness statute] for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established.'' Since September 11, 2001, however, that is exactly what the government has been doing. Indeed, senior Administration officials, including our current Attorney General, have admitted that the government routinely uses material witness warrants to detain suspects in the so-called war on terror. A report released this summer by Human Rights Watch and the American Civil Liberties Union identifies 70 men, including more than a dozen citizens, whom the Department of Justice arrested as material witnesses in connection with its terrorism investigations. Many were never brought before a court or grand jury to testify for the simple reason that they were viewed not as witnesses, but as suspects. The evidence against these suspects was often flimsy at best, and would never have sufficed for criminal arrest and pre- trial detention. This twisting of a narrow law designed to secure testimony into a broad preventive detention authority has resulted in some notorious abuses. Just days after 9/11, the FBI arrested eight Egyptian-born men in Evansville, IN--one a naturalized American citizen--as material witnesses, based on a bogus tip that they planned to fly a plane into the Sears Tower in Chicago. The men were held for more than a week in solitary confinement before being released. Many months later, the FBI issued a rare public apology to these men. That apology, while necessary, could not repair the damage that had been done to them and their families in the form of lost business, tainted reputations, and the accusing stares of their friends and neighbors. The case of Abdallah Higazy further highlights the danger that can occur when this authority is abused. Shortly after 9/11, the 30-year- old Egyptian graduate student with a valid visa, was picked up after a security guard at a hotel located across the street from Ground Zero claimed to have found an aviation radio in the room where Higazy had stayed on 9/11. Higazy was held for more than a month in solitary confinement until he ultimately confessed that the radio was his. Higazy was then charged with lying to the FBI for initially denying possession of the radio. These charges were dropped after the true owner of the radio, an American pilot, went to the hotel to claim it. In another, higher profile case in May 2004, Portland attorney Brandon Mayfield was arrested as a material witness in connection with the Madrid train bombing. An email sent from the Portland FBI office to the Los Angeles FBI office the day before Mayfield's arrest refers to him as a ``Moslem convert'' and notes as a ``problem'' that there was not enough evidence to arrest him for a crime. After spending two weeks in prison, Mayfield was released and the FBI was expressing regret about the erroneous fingerprint match that led to his arrest. These and other examples of post-9/11 misuse of the material witness statute are documented in the HRW/ACLU report. As the report shows, such misuse does more than just circumvent the requirement of probable cause for a criminal arrest. Suspects arrested as material witnesses are denied the basic protections guaranteed to criminal defendants, including the right to view any exculpatory evidence and to be able to challenge the basis for their arrest and incarceration. The report concludes that the misuse of the material witness law ``threatens U.S. citizens and non-citizens alike because it reflects a lowering of the standards designed to protect everyone from arbitrary and unreasonable arrest and detention.'' The bill I introduce today will ensure that the material witness law is used only for the narrow purpose that Congress originally intended, to obtain testimony, and not to hold criminal suspects without charge when probable cause is lacking. First, the bill raises the standard that the government must meet to obtain a material witness warrant. Under current law, a judge may order the arrest of a material witness if there is probable cause to believe that securing his presence by subpoena may become ``impracticable.'' Under the bill, there must be probable cause to believe that the witness has been served with a subpoena and failed or refused to appear as required, or clear and convincing evidence that the service of a subpoena is likely to result in the person fleeing or cannot adequately secure the appearance of the person as required. Second, the bill imports several due process safeguards from the Federal Rules of Criminal Procedure relating to the arrest and arraignment of criminal defendants. Among other things, the bill requires that a material witness warrant specify that the testimony of the witness is sought in a criminal case or grand jury proceeding, and command that the witness be arrested and brought to court without unnecessary delay. The warrant must also inform the witness of his right to retain counselor or request that one be appointed. The right to counsel is already guaranteed to material witnesses under the Criminal Justice Act, 18 U.S.C. 3006A(a)(1)(g), and protects the witness from erroneous, unnecessary, and prolonged incarceration. The bill further provides that, upon arresting a material witness, the government must provide him with a copy of the warrant or inform him of the warrant's existence and purpose. A material witness must be brought before a judge ``without unnecessary delay''--a term that has been strictly interpreted when applied to the criminally accused. The initial appearance must be in the district of arrest or an adjacent district. At the initial appearance, the judge must inform the witness of the basis for his arrest and of his right to counsel. The judge must also allow the witness a reasonable opportunity to consult with counsel. The judge must then determine whether the witness should be released or detained pending the taking of his testimony. Third, the bill establishes clear procedures for material witness detention hearings. Current law provides that material witnesses shall be treated in accordance with 18 U.S.C. 3142, which governs the release or detention of defendants pending trial. Section 3142, however, contains many factors that are not applicable to material witnesses. For example, courts have held that a material witness may not be detained on the basis of dangerousness. (See Awadallah, 349 F.3d at 63 n.15.) The bill clarifies that in detention hearings for material witnesses, flight risk is the only relevant factor. A court shall order a material witness detained only if no condition or combination of conditions will reasonably assure the appearance of the witness as required. As under current law, no witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition. In determining whether a material witness should be released or detained, the court shall take into account the available information concerning the history and characteristics of the witness, and may also consider challenges to the basis of the warrant. Fourth, the bill establishes the ``clear and convincing evidence'' standard used in other civil detention contexts for material witness detentions. Few courts have directly examined what standard of proof should be required of the government to demonstrate that no conditions of release can reasonably assure a witness's appearance. While the lower ``preponderance of the evidence'' standard may suffice for pre- trial detention of defendants who pose a risk of flight, in the case of defendants there has also been a finding of probable cause to believe the person committed a crime. In the case of a witness, where there is no probable cause to believe the person committed a crime, the usual grounds for fearing flight--the defendant's aversion to risking a guilty verdict and attendant sentencing--are not present. Fifth, the bill imposes reasonable but firm time limits on the detention of material witnesses. Current law sets no firm limit on how long a witness may be incarcerated before being presented in a criminal proceeding or released. This has resulted, according to the recent report, in many witnesses enduring imprisonment for two or more months, and in one case for more than a year. Under my bill, a material witness may initially be held for not more than five days, or until his testimony can adequately be secured, whichever is earlier. That period may be extended for additional periods of up to five days, upon a showing of good cause for why the testimony could not adequately be secured during the previous five-day period. The total period of detention may not exceed 10 days for a grand jury witness, or 30 days for a trial witness, and in no case may a witness be held any longer than necessary to secure his testimony. Sixth, in recognition of the fact that material witnesses are not charged with any offense, the bill requires that they be held in a corrections facility that is separate, to the extent practicable, from persons charged with or convicted of a criminal offense, and under the least restrictive conditions possible. Finally, to facilitate congressional oversight, the bill requires the Justice Department to report annually on the use of the material witness law. Since 9/11, the Department has withheld information relating to material witnesses on the theory--in my view, a flawed theory--that such information is covered by the grand jury secrecy rule. It is hard to imagine how the release of generalized data, such as the aggregate number of people detained as material witnesses, could damage any reputational interest or any of the other interests protected by Rule 6(e). The recent, detailed report on post-9/11 uses of the material witness statute leaves no doubt that the law has been bent out of shape, with real consequences for citizens and non-citizens alike. My bill will restore the law to its original purpose and prevent future abuses. I urge its speedy passage. I ask unanimous consent that the text of the bill be included in the Record.

Mr. LEAHY

Mr. LEAHY. When Judge Roberts testified about his respect for Justice Jackson, I hoped it was a signal he was sending. I actually posed that question to him and asked him if he was sending us a signal. I accept his assurance that he will act as an independent check on the President in the mold of Justice Jackson and that when he joins the Supreme Court, he will no longer heavily defer to presidential authority. It is one of the crucial roles of the Court, and I take him at his word that he will do so. This is a fundamental question. We know that we are in a period in which the executive has a complicit and, some would say, compliant Republican Congress that refuses to serve as a check or balance. Without the courts to fulfill that constitutional role, excess will continue, and the balance will be tilted. The other dimension of the fundamental balance of constitutional powers involves appropriate deference to congressional action taken by the people's elected representatives. The manner and techniques Judge Roberts has used while in the executive, private practice, and while briefly on the DC Circuit, show him to require an unrealistic exactitude in drafting laws that no collective body could ever meet, especially one of 535 people. I wish he had served in Congress or worked for a time in Congress so he would have a deeper understanding of the legislative process. I hope that his experience during the hearing and the many questions from Senators of both sides of the aisle have helped to increase his appreciation for congressional authority and its importance. I believe the current activism of the Supreme Court must be curtailed. I hope that will not be a part of Chief Justice Rehnquist's legacy that John Roberts seeks to continue. Congress acts to protect the interests of Americans through the commerce clause, spending powers and the 14th amendment. That has to be respected. I am encouraged by his assurances that he will respect congressional authority. My reading of his dissent from the denial of rehearing en banc of the Rancho Viejo v. Norton case, in which he made the ``hapless toad'' reference, is that he urged rehearing to ``afford the opportunity to consider alternative grounds for sustaining application of the Act.'' Indeed, his steadfast reliance on the Supreme Court's recent Raich decision as significant precedent contravening further implications from Lopez and Morrison was intended to reassure us that he would not join the assault on congressional authority under the commerce clause. I heard him, and I rely on him to be true to the impression he created. As a lawyer, John Roberts has been significantly involved in the development of Supreme Court authority limiting the authority of Congress under its constitutional spending powers. He argued before the Supreme Court in the 1980s, 1990s, and in this decade in a series of cases--South Dakota v. Dole, Wilder v. Virginia Hospital Association, Suter v. Artist M., and Gonzaga University v. Doe--in which he talked about narrowing Congress's spending powers and limiting the ability of individuals to sue to compel the protections Congress required under Federal law. His briefs in Gonzaga adopted the extreme view that spending power enactment was a contract between the State and Federal Governments and that the intended beneficiaries of those programs had no rights to sue to enforce the commitments, even when states were violating the law and the Federal government was not effectively enforcing it. I questioned him extensively on that. At the hearing, he took pains to assure me and Senator Feinstein, among others, that as Chief Justice, he would not continue to urge additional restrictions and would respect congressional authority. To do otherwise would greatly undermine Congress's ability to serve the interests of all Americans and protect the environment, assure equal justice, provide health care and other basic benefits. I think he knows that now. From the initial questioning by Chairman Specter, throughout the testimony of the nominee, many Senators asked about the fundamental reproductive rights of women. He testified that he now recognizes Roe v. Wade and Planned Parenthood v. Casey as established precedents of the Supreme Court and entitled to respect. He testified that he interprets the liberty protected by the due process clause of the 14th amendment as the constitutional bedrock of the right of privacy, both substantive and procedural. Here, too, within the overly strict confines of his own self-imposed constraints on his answers, he consciously created the impression that he would not be a judicial activist on this essential point. He left me with the understanding that he would not seek to overrule or undercut the right of a woman to choose. I trust that he is a person of honor and integrity, that he will act accordingly. As Chief Justice, John Roberts would not be only an appointee of a Republican administration or a legal advocate for a narrow interest. As Chief Justice, he has to be able to check the abuse of presidential power. As Chief Justice, he must support congressional efforts to serve the interests of all Americans. As Chief Justice, he has to work to ensure that the Federal courts, and the Supreme Court in particular, are halls of justice where Americans such as Beverly Jones and Roderick Jackson and Christine Franklin can see and find redress for grievances, meaningful remedies for the violation of their rights, and protection of their fundamental interests. Justice White wrote in the Franklin case: From the earliest years of the Republic, the Court has recognized the power of the Judiciary to award appropriate remedies to redress injuries actionable in court. As Chief Justice, John Roberts has to ensure that the Supreme Court and all Federal courts never ``abdicate our historic judicial authority to award appropriate relief in cases brought in our court system.'' Supreme Court Justices decide what cases to decide. They consciously shape the direction of the law by choosing which cases to hear as well as how they are to be decided. We know he believes in the rule of law. I was impressed when he talked about why he went to law school--because he believes in the rule of law. That was the same reason that I went to Georgetown Law School. But court decisions--and especially Supreme Court decisions--are not mechanical applications of neutral principles. If they were, all judges would always reach the same results for the same reasons. But they don't. Legal decisions are not mechanical. They are matters of judgment and often matters of justice. As Chief Justice, John Roberts is responsible for the way in which the judicial branch administers justice for all Americans. He must know, in his core, in his heart, in his whole being, the words engraved in the Vermont marble on the Supreme Court building are not just ``under law'' but ``equal justice under law.'' It is not just the rule of law that he must serve but the cause of justice under our great charter. I heard days of testimony and held hours of meeting with Judge Roberts. I would have liked more information, of course. I always want more. Is a ``no'' vote the easier, more popular one? Of course. For me it would be. But in my judgment, in my experience, but especially my conscience, I find it is better on this nomination to vote yes than no. Ultimately, my Vermont roots have always told me to go with my conscience, and they do so today. Judge Roberts is a man of integrity. I can only take him at his word that he does not have an ideological agenda. For me, a vote to confirm requires faith that the words he spoke to us have meaning. I can only take him at his word that he will steer the Court to serve as an appropriate check of potential abuses of Presidential power. I respect those who have come to different conclusions, and I readily acknowledge the unknowable at this moment, that perhaps they are right and I am wrong. Only time will tell. All of us will vote this month, but only later will we know if Judge Roberts proves to be the kind of Chief Justice he says he will be, if he truly will be his own man. I hope and trust that he will be. I will vote for his confirmation. I will give my consent as a Senator. I yield the floor, and I suggest the absence of a quorum.

Mr. LEAHY. Mr. President, I ask unanimous consent for 10 additional minutes.

Mr. LEAHY. Mr. President, this week, as we celebrate our Constitution's 218th anniversary, we are nearing the exercise of one of the Senate's most solemn constitutional requirements and responsibilities. Few decisions the Senate faces are as consequential and enduring as when the Senate decides whether to confirm, by giving its consent, the nomination of a justice--of course, even more so when the nomination is for Chief Justice of the United States. The Supreme Court is different from the lower courts. The Supreme Court is the only Federal court required by the Constitution itself. Actually, the Chief Justice is the only member of the Court expressly named in the Constitution. All other courts are bound by the decisions of the Supreme Court. Its decisions are final. They are unappealable. Only the Supreme Court can modify or overrule its precedents. Its power is enormous. The role of the Chief Justice is to lead not only that all-powerful Court but the entire third branch of Government. We have had 43 Presidents in this country, but we have had only 16 Chief Justices--all appointed for life. The distinguished senior Senator from West Virginia, Mr. Byrd, whose passionate advocacy established our Constitution Day commemoration, describes the Constitution very accurately as the soul of our Nation. The Senate's advice and consent responsibilities are at the core of this body's vital role in our Republic. This week, we commemorate our Constitution in a time of great challenges, and we are reminded again how resilient our Constitution is in empowering our Nation to meet each era's challenges. The carefully calibrated checks and balances within our Constitution are essential to that. No branch of Government is intended to be the rubberstamp of another branch. Each day, Americans are fighting and dying in Iraq. Hundreds of thousands of Americans have been displaced by disasters here at home. Four years after 9/11, with public confidence shattered, we have to embark on a review of why we are still not prepared to respond to a terrorist attack or foreseen natural disasters. The cost of energy--gas and home heating fuels--continues to climb to all-time highs, adding to the cost of other goods. The administration is suspending environmental and worker protections. Poverty and the disparities of opportunity between races and classes continue their insidious rise each year. After having seen recent years of budget surpluses, now the country's budget deficits are at previously unheard of levels--between $300 billion and $400 billion a year. Our national debt is at $8 trillion--8,000 billion dollars--that is a profligate amount. It can only be paid off by our children and our grandchildren. So Americans need to know their constitutional rights will be protected, that their Government is on their side, and that the courts will be a place of refuge, stability, independence, and justice. The nomination of Judge John Roberts to be Chief Justice of the United States presents a close question and one that each Senator must carefully weigh and decide. This is a question that holds serious consequences for all Americans today and for generations to come. I have approached this nomination with an open mind, as I do all judicial nominations. There is no entitlement to confirmation for lifetime appointments on any court for any nomination by any President, Democratic or Republican. I have served in the Senate for slightly over three decades, and on the Judiciary Committee for most of that time. I take my constitutional responsibility with respect to advice and consent seriously. I am 1 vote out of 100, but I recognize those 100 of us privileged to serve in the Senate are entrusted with protecting the rights of 280 million of our fellow citizens. We stand in their shoes. We and the President are the ones with a vote in the choice of the Chief Justice of the United States. With this vote, I do not intend to lend my support to an effort by this President to move the Supreme Court and the law dramatically to the right. Above all, balance and moderation on the Court are crucial. I want all Americans to know the Supreme Court will protect their rights and respect the authority of Congress to act in their interests. I want a Supreme Court that acts in its finest tradition as a source of justice. The Supreme Court must be an institution where the Bill of Rights and human dignity are honored. I have voted for the vast majority of President Ford's, President Carter's, President Reagan's, President George H.W. Bush's, President Clinton's, and President George W. Bush's judicial nominees. I have drawn the line only at those nominees who were among the most ideologically extreme who came to us in the mode of activists. That is what they were intended to be. That is the way they were described. That is the way they came to us. In those cases, the President opted not to seek moderate candidates. I think some of these extreme choices were sent here to politicize the process and did so to a greater extent than I had previously seen in my 31 years in the Senate. I have not reflexively opposed Republican nominees or conservative judicial nominees nominated by Republican Presidents. In fact, I recommended a Republican to President Clinton to fill Vermont's seat on the Second Circuit, Judge Fred Parker. I recommended another Republican, Judge Peter Hall, to President Bush to fill that seat after Judge Parker's death. I voted for President Reagan's nominations of Justice Sandra Day O'Connor and Justice Anthony Kennedy, and for President Bush's nomination of Justice Souter. Unfortunately, this President has said he approached this matter as if fulfilling a campaign pledge to appoint someone in the mold of Justice Thomas and Justice Scalia. I voted against confirmation of Justice Thomas. I voted for Justice Scalia, and I now question that vote, as many of those who voted for him do today. If I thought Judge Roberts would easily reject precedent in the manner of Justice Thomas or would use his position on the Supreme Court as a bulwark for activism in the manner of Justice Scalia, then I would not hesitate to vote no. If I were convinced he would undercut fundamental rights of privacy or equal protection, this would not even be a close question. I want to vote for a Chief Justice of the United States who I am confident has a judicial philosophy that appreciates the vital role of the judiciary in protecting the rights and liberties of all Americans. Chief Justice Marshall understood the essential function of the judiciary as a check on Presidential power. Under his leadership, the Constitution's guarantee of an independent judiciary and the bedrock principle of judicial review became realities. But Chief Justice Roger Taney, who everybody said was a brilliant lawyer, led the Court in a different and destructive direction. He authored the Dred Scott decision which propelled the States toward Civil War by relying only on technical reasoning and an unjust holding that denied all African Americans the status of citizens. Contrast that with Chief Justice Earl Warren. He led the Supreme Court and the Nation in a crowning achievement when he forged the unanimous decision in Brown v. Board of Education and breathed life into the equal protection guarantee of the 14th amendment and put a stop to segregation in this country, which will always be a blot on our national conscience. The President has asked that this nomination be handled with fairness and dignity. No matter how we vote, the Judiciary Committee has met those standards. Our committee held a hearing on the merits. I worked with the chairman to expedite the committee's consideration of the nomination of John Roberts to the Supreme Court out of respect to Justice O'Connor and the work of the Court. Fewer than 36 hours after the announcement of the passing of Chief Justice Rehnquist and during the horrific aftermath in the week following Hurricane Katrina, the President withdrew that nomination to be Associate Justice. Thereafter, we were sent this alternative nomination for Judge John Roberts to become the Chief Justice of the United States. Again, I cooperated with Chairman Specter in an accelerated consideration of this nomination. I wish we had had as much cooperation coming from the administration. Although we started off well with some early efforts at consultation after Justice O'Connor's retirement announcement in early July, that consultation never blossomed into meaningful discussions. It was truncated after a bipartisan meeting with Senate leaders at the White House. The President did not share his thinking with us or his plans, although that would be the nature of true consultation. His naming of Judge Roberts as his choice to replace Justice O'Connor came as a surprise, not as something that came resulted from meaningful consultation. He then preemptively announced that he decided to withdraw that nomination and, instead, nominated Judge Roberts to succeed Chief Justice Rehnquist. He did so at 8 a.m. on the Monday morning following the announcement on the previous Saturday night of the Chief's passing. There could and should have been consultation with the Senate on the nomination of somebody to succeed Chief Justice Rehnquist and to serve as the 17th Chief Justice of the United States. For that position as Chief Justice there was no consultation. In fact, I learned about the President's decision shortly before his televised announcement Monday morning. I think the administration committed another disservice to this nomination and, especially to this nominee, by withholding information that has traditionally been shared with the Senate. The administration treated Senators' requests for information with little respect. Instead, for the first time in my memory, they grafted exceptions from the Freedom of Information Act to limit their response to legitimate requests from Senators for information. In fact, they stonewalled entirely the narrowly tailored request for work papers from 16 of the cases John Roberts handled when he was the principal deputy to Kenneth Starr at the Solicitor General's office during the President's father's administration. The precedent from Chief Justice Rehnquist's hearing and others, of course, goes the other way. Previous Presidents have paid the appropriate respect and acknowledgment to the Senate and to the constitutional process by working with the committee to provide such materials. Accordingly, it is understandable if a Senator were to vote against the President's nomination on this basis alone. I must also say that some of my friends on the other side of the aisle disserved the confirmation process by urging the nominee not to answer questions or reveal his judicial philosophy during the course of the hearing. One notable exception was the chairman of the committee. I appreciate Senator Specter's commitment to the role of the Senate and his taking our duty to advise and consent as seriously as it deserves to be taken. Regrettably, many of the answers of the nominee seemed to take to heart the bad advice that he had heard from the other side. Finally, I believe the nominee disserved himself by following the script that he developed while serving in the Reagan administration. He and this administration rejected the spirit of Attorney General Jackson's opinion that with respect to Senate consideration of nominations, no person shall be submitted ``whose entire history will not stand light.'' The nominee took a narrow judicial ethics rule correctly limiting what a judge or judicial nominee should say about a particular case--I agree with him on that--and turned it into a broad excuse from comments on any issue that might arise at any time, in any case. He apparently rejected the Supreme Court's holding in 2002, in Republican Party of Minnesota v. White, in which Justice Scalia held that a State canon limiting judicial candidates from announcing their views on legal and political issues was unconstitutional. By contrast, however, the public witnesses who appeared last Thursday were extraordinarily helpful in underscoring what is at stake for all Americans with this decision. No one who heard Congressman John Lewis, Wade Henderson, and Judge Nathaniel Jones can doubt the fundamental importance of our refusal to retreat from our Nation's commitment to civil rights. This Nation can never retreat from that commitment to civil rights or we fail as a nation. The testimony of Coach Roderick Jackson and Beverly Jones reminded us how courageous Americans are still opening doors and going to our courts to right wrongs. The testimony of Anne Marie Talman of MALDEF reflected what is at stake when alien children are denied education and benefits that should be available to every child in America. We had a dignified and fair process. Again, I commend Chairman Specter and those members of the committee on both sides of the aisle who did not prejudge the matter and who did not seek to politicize the process. The hearings did provide the committee with some information. I was encouraged by Judge Roberts' answer to my question about providing the fifth vote needed to stay an execution when four other justices vote to review a capital case. That has not always been the practice of late. He was right to recognize the illogic--if not the injustice--of having the necessary votes to review the case but lacking the necessary vote to allow that review to take place, especially a review that takes place when someone's life is in the balance. I hope the nominee will take up our suggestion to allow greater access to the Supreme Court's proceedings by authorizing their being televised. I will work with him and Chairman Specter and Senator Grassley to increase transparency in the work of the increasingly important FISA court. This is the foreign intelligence surveillance court that acts in secret, with very little oversight--certainly precious little oversight in the past few years--from the Senate. Only recently have we begun to ask the questions we should have been asking. I also urge him to consider ways to decentralize the power accumulated to the Chief Justice so that the Judicial Conference, the circuit courts, and others can do more. I encourage him to reform the recusal procedures and conflict-of-interest protections at all levels of the judiciary but in particular with regard to the Supreme Court itself. Perhaps what many have said were his own missteps in connection with his interviewing for this nomination during its consideration of the Hamdan case will inspire him to greater efforts in this important regard. As a young man, Judge Roberts clerked for Judge Henry Friendly of the U.S. Court of Appeals for the Second Circuit. That is my circuit, a circuit I have been proud to argue before. The Second Circuit has been home to a number of leading judicial lights; certainly, Henry Friendly was among them. I hope he is going to be faithful to Judge Friendly's fairness and thoughtfulness, something all of us in that circuit respected. I made no secret of my concerns about this nomination. In advance of the hearing, I met twice with Judge Roberts, and for nearly 3 hours in all I raised my concerns. I provided him additional opportunities to respond during the hearing. This is not a case of ``gotcha.'' This is a case of finding out how he thinks and who he is. I told him I was concerned that he would not act as an effective check on the abuse of presidential power. Judge Roberts' work in the Reagan and Bush Justice Departments, as well as his former period in the Reagan White House, seems to have led him to a philosophy of significant deference to presidential authority. It is exhibited in his recent decisions in the Hamdan, Acree, and Chao cases, among others. Maybe this deference was a principal basis on which the President chose him. None of us know. But I did learn other things. I learned, throughout the process, that Judge Roberts and I share admiration for Justice Robert Jackson. Justice Jackson's protection of fundamental rights, including unpopular speech under the first amendment--of course, popular speech never needs protection; it is the unpopular speech that needs protection--and his willingness to serve as a check on presidential authority are among the finest actions by any Justice in our history.

Mr. LEAHY

Mr. LEAHY. Counterfeiting is a threat to America. It wreaks real harm on our economy, our workers, and our consumers. Today, Senator Specter and I introduce the ``Stop Counterfeiting in Manufactured Goods Act,'' 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. It is all too easy to think of counterfeiting as a victimless crime, a means of buying sunglasses or a purse that would otherwise strain a monthly budget. The reality, however, is far different. According to the Federal Bureau of Investigation, counterfeiting costs the U.S. between $200 billion and $250 billion annually. In Vermont, companies like Burton Snowboards, Vermont Tubbs, SB Electronics, and Hubbardton Forge--all of which have cultivated their good names through pure hard work and creativity--have felt keenly the damage of intellectual property theft on their businesses. This is wrong. It is simply not fair to the businesses who innovate and to the people whose economic livelihoods depend on these companies. The threat posed by counterfeiting is more than a matter of economics. Inferior products can threaten the safety of those who use them. When a driver taps a car's brake pedals there should be no uncertainty about whether the brake linings are made of compressed grass, sawdust, or cardboard. Sick patients should not have to worry that they will ingest counterfeit prescription drugs and, at best, have no effect. The World Health Organization estimates that the market for counterfeit drugs is about $32 billion each year. Knock-off parts have even been found in NATO helicopters. What's more, according to Interpol, there is an identifiable link between counterfeit goods and the financing of terrorist operations. This is a global problem, and it demands global solutions. Earlier this year at a Judiciary Committee hearing on international piracy, the General Counsel for the United States Trade Representative reported that China continues to see piracy rates of about ninety percent in nearly all industries. Russia is a growing concern too, even as that country seeks membership in the World Trade Organization. Both countries were added to USTR's Priority Watch List this year. Such lists are useful, but they are meaningless without concrete steps by the countries singled out by USTR. We know that counterfeiting can be fought when a country treats it as a priority. China, for example, flexed its intellectual property enforcement muscle recently in protecting logos related to Beijing's 2008 Summer Olympic Games. In a Newsweek International article last January, one vendor who was fined for selling Olympic t-shirts noted that the crackdown was concerted: `` `They are,' she says, `very serious.' '' I am very serious as well. Even as we work toward better international enforcement, there is much we can do, and much that we have done, to improve domestic law. In 1996, I worked with Senator Hatch to pass the Anticounterfeiting Consumer Protection Act, which strengthened our criminal and tariff codes and applied federal racketeering laws to counterfeiting. And earlier this year, Senator Cornyn and I introduced S. 1095, the Protecting American Goods and Services Act. That bill would criminalize possession of counterfeit goods with intent to traffic, expand the definition of ``traffic,'' and criminalize the importing and exporting of counterfeit goods. The bill that Senator Specter and I are introducing today also makes several improvements to the U.S. Code. The bill strengthens 18 U.S.C. 2318, the part of the criminal code that deals with counterfeit goods and services, to make it a crime to traffic in counterfeit labels or packaging, even when counterfeit labels or packaging are shipped separately from the goods to which they will ultimately be attached. Savvy counterfeiters have exploited this loophole to escape liability. This bill closes that loophole. The bill will also make counterfeit labels and goods, and any equipment used in facilitating a crime under this part of the code, subject to forfeiture upon conviction. Any forfeited goods or machinery would then be destroyed, and the convicted infringer would have to pay restitution to the lawful owner of the trademark. Finally, although the bill is tough, it is also fair. It states that nothing ``shall entitle the United States to bring a cause of action under this section for the repackaging of genuine goods or services not intended to deceive or confuse.'' It is truly just the bad actors we want to punish. 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. It is a task to which Senator Specter and I are both committed. I would like to thank Senator Bayh, Senator Brownback, Senator Cornyn, Senator DeWine, Senator Feingold, Senator Hatch, Senator Levin, Senator Reed, and Senator Stabenow for cosponsoring this important legislation.

Mr. LEAHY

Mr. LEAHY. Counterfeiting is a threat to America. It wreaks real harm on our economy, our workers, and our consumers. Today, Senator Specter and I introduce the ``Stop Counterfeiting in Manufactured Goods Act,'' 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. It is all too easy to think of counterfeiting as a victimless crime, a means of buying sunglasses or a purse that would otherwise strain a monthly budget. The reality, however, is far different. According to the Federal Bureau of Investigation, counterfeiting costs the U.S. between $200 billion and $250 billion annually. In Vermont, companies like Burton Snowboards, Vermont Tubbs, SB Electronics, and Hubbardton Forge--all of which have cultivated their good names through pure hard work and creativity--have felt keenly the damage of intellectual property theft on their businesses. This is wrong. It is simply not fair to the businesses who innovate and to the people whose economic livelihoods depend on these companies. The threat posed by counterfeiting is more than a matter of economics. Inferior products can threaten the safety of those who use them. When a driver taps a car's brake pedals there should be no uncertainty about whether the brake linings are made of compressed grass, sawdust, or cardboard. Sick patients should not have to worry that they will ingest counterfeit prescription drugs and, at best, have no effect. The World Health Organization estimates that the market for counterfeit drugs is about $32 billion each year. Knock-off parts have even been found in NATO helicopters. What's more, according to Interpol, there is an identifiable link between counterfeit goods and the financing of terrorist operations. This is a global problem, and it demands global solutions. Earlier this year at a Judiciary Committee hearing on international piracy, the General Counsel for the United States Trade Representative reported that China continues to see piracy rates of about ninety percent in nearly all industries. Russia is a growing concern too, even as that country seeks membership in the World Trade Organization. Both countries were added to USTR's Priority Watch List this year. Such lists are useful, but they are meaningless without concrete steps by the countries singled out by USTR. We know that counterfeiting can be fought when a country treats it as a priority. China, for example, flexed its intellectual property enforcement muscle recently in protecting logos related to Beijing's 2008 Summer Olympic Games. In a Newsweek International article last January, one vendor who was fined for selling Olympic t-shirts noted that the crackdown was concerted: `` `They are,' she says, `very serious.' '' I am very serious as well. Even as we work toward better international enforcement, there is much we can do, and much that we have done, to improve domestic law. In 1996, I worked with Senator Hatch to pass the Anticounterfeiting Consumer Protection Act, which strengthened our criminal and tariff codes and applied federal racketeering laws to counterfeiting. And earlier this year, Senator Cornyn and I introduced S. 1095, the Protecting American Goods and Services Act. That bill would criminalize possession of counterfeit goods with intent to traffic, expand the definition of ``traffic,'' and criminalize the importing and exporting of counterfeit goods. The bill that Senator Specter and I are introducing today also makes several improvements to the U.S. Code. The bill strengthens 18 U.S.C. 2318, the part of the criminal code that deals with counterfeit goods and services, to make it a crime to traffic in counterfeit labels or packaging, even when counterfeit labels or packaging are shipped separately from the goods to which they will ultimately be attached. Savvy counterfeiters have exploited this loophole to escape liability. This bill closes that loophole. The bill will also make counterfeit labels and goods, and any equipment used in facilitating a crime under this part of the code, subject to forfeiture upon conviction. Any forfeited goods or machinery would then be destroyed, and the convicted infringer would have to pay restitution to the lawful owner of the trademark. Finally, although the bill is tough, it is also fair. It states that nothing ``shall entitle the United States to bring a cause of action under this section for the repackaging of genuine goods or services not intended to deceive or confuse.'' It is truly just the bad actors we want to punish. 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. It is a task to which Senator Specter and I are both committed. I would like to thank Senator Bayh, Senator Brownback, Senator Cornyn, Senator DeWine, Senator Feingold, Senator Hatch, Senator Levin, Senator Reed, and Senator Stabenow for cosponsoring this important legislation.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that the Senate has agreed by unanimous consent to include in the Commerce-Justice-Science appropriations Act, H.R. 2862, an amendment proposed by myself, Senator Shelby and Senator Specter to waive the match required under the Bulletproof Vest Partnership Grant Act of 1998 for law enforcement agencies that received funds under that act, used them to purchase Zylon-based body armor, which has recently been shown by the Department of Justice to be defective, and now want to replace those faulty vests with funds awarded by that act. This waiver would be granted only if those agencies can present documentation to prove that they purchased Zylon-based body armor with funds awarded to them under the Bulletproof Vest Partnership Grant Act. I thank my friends Senator Shelby, the chairman of the CJS Appropriations Subcommittee, and Senator Specter, the chairman of the Judiciary Committee, for cosponsoring this amendment and for their leadership on this issue. I was proud to partner with our former colleague Senator Campbell to author and shepherd into law the Bulletproof Vest Partnership Grant Act of 1998, which was reauthorized by the Bulletproof Vest Partnership Act of 2000 and most recently as part of the State Justice Institute Reauthorization Act of 2004, to create the Bulletproof Vest Partnership grant program as a means of helping law enforcement agencies purchase body armor for their rank-and-file officers. We wrote that act, in part, in response to a situation that became apparent in the tragic Carl Drega shootout in 1997 on the Vermont-New Hampshire border, in which two State troopers who did not have bulletproof vests were killed. The Federal officers who responded to the scenes of the shooting spree were equipped with life-saving body armor, but the State and local law enforcement officers lacked protective vests because of the cost. Bulletproof vests remain one of the foremost defenses for our uniformed officers. Since their introduction more than 30 years ago, body armor has saved more than 2,700 lives. From 1999 through 2005, over 11,500 jurisdictions have participated in the Bulletproof Vest Partnership Program, with $118 million in Federal funds committed to support the purchase of an estimated 450,000 vests. The Bulletproof Vest Partnership Program funds up to 50 percent of the cost of each vest purchased or replaced by law enforcement agency applicants. Under law, the program is required to fully fund the 50 percent of requested vest needs for jurisdictions under 100,000 in population. Remaining funds are distributed to jurisdictions of over 100,000 in population. Concerns from the law enforcement community over the effectiveness of body armor surfaced nearly 2 years ago when a Pennsylvania police officer was shot and critically wounded through his relatively new Zylon-based body armor vest. Responding to requests that Senator Campbell and I made, as well as from law enforcement officials, Attorney General Ashcroft launched the Body Armor Safety Initiative. The National Institute of Justice, NIJ, was directed to initiate an examination of Zylon-based bullet-resistant armor--both new and used--to analyze upgrade kits provided by manufacturers to retrofit Zylon-based bullet-resistant armors, and to review the existing program by which bullet-resistant armor is tested to determine if the process needs modification. On August 24, 2005, the Justice Department announced that test results indicate that used Zylon containing body armor vests may not provide the intended level of ballistic resistance. Unfortunately, an estimated 200,000 Zylon-based vests have been purchased, many with Bulletproof Vest Partnership Program funds, and now need to be replaced. The Justice Department has adopted new interim requirements for its body armor compliance testing program. It has also added an additional $10 million to the $23.6 million already available for the current fiscal year to law enforcement through the Bulletproof Vest Partnership program to assist agencies in their replacement of Zylon- based body armor vests. Before concerns on Zylon-based vest safety arose, DOJ and NIJ had set voluntary compliance testing protocols to assess whether models of ballistic-resistant body armor comply with a certain minimum standard of protection and resistance. All models of ballistic-resistant body armor that complied with those standards were eligible for funding under the Bulletproof Vest Partnership Grant Act. As it turns out, those standards were not rigorous enough and the certification process was not onerous enough, thereby subjecting our Nation's law enforcement officers to severe safety risks. Across our Nation, law enforcement agencies are struggling over how to find the funds necessary to replace defective vests that are less than 5 years old with ones that will actually stop bullets and save lives. Vests cost between $500 and $1,000 each, depending on the style. The extra $10 million released by the Justice Department is only a drop in the bucket and these officers are being forced to dip into their own pockets to pay for new vests unless the Federal Government offers more help. The amendment by Senator Shelby, Senator Specter and me that has been included in the CJS Appropriations Act will help ease the burden faced by officers and their families and further our mission to provide every police officer who needs a safe vest with the means to purchase one.

Mr. LEAHY

Mr. LEAHY. I yield 2 minutes to the distinguished Senator from Delaware.

Mr. LEAHY. Mr. President, I yield 2 minutes to the distinguished Senator from Vermont.

Mr. LEAHY. Mr. President, how much time is remaining?

Mr. LEAHY

Mr. LEAHY. Mr. President, we make a mistake when we say this is a matter of cap and trade. It is not. We are talking about a toxic waste, one that causes birth defects, IQ loss, mental retardation, and continues to poison children and pregnant women. One-sixth of pregnant women are affected. That is not cap and trade. This idea that we are only talking about 1 percent, of course, is not the case. Forty percent of the mercury comes from the United States. We are talking about the 40 percent that is affecting our rivers, our streams, our children. Do we simply ignore the proliferation of warnings all over the country that fish caught in our streams and lakes and rivers are unsafe to eat? Do we allow this rule to move forward when it has been harshly criticized by the Bush administration's own EPA inspector general? When the Government Accountability Office has said there are major shortcomings in the analysis? Or do we uphold the bipartisan work that produced the Clean Air Act that protects the health of pregnant women and children and try and clean this up now? Every one of us will give speeches about how family friendly we are. We are talking about children. We are talking about pregnant women. I can't think of anything more family friendly than to remove this threat of mercury from them. If we vote this down, we are telling a whole generation of women and children their health is less important than energy company profits. We are going to tell them, rather than go to the scientists, rather than go with what the Bush administration's own inspector general said, instead we will take the regulations that were written, in many parts, verbatim by the industry. What are we going to say to the families who live in the hotspots of today or tomorrow? This rule is a danger to America's women and children. It is time to do it over and do it right. I hope my colleagues will support the resolution. This is not a moot point. If we pass this resolution, maybe it will be enough of a signal to have people go back and do what the inspector general of the EPA said, what the Government Accountability Office has said, and actually do it right, actually follow their own procedures. I thank the Chair.

Mr. LEAHY

Mr. LEAHY. Twenty after.

Mr. LEAHY. Could we start ours later?

Mr. LEAHY. Mr. President, why don't we begin debate on mercury, and I ask unanimous consent we begin it at 12:17. That gives us time for the Senator from Maryland. I know we are going to break in the Judiciary Committee, and that would give plenty of time.

Mr. LEAHY. Mr. President, we have 20 minutes.