Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to introduce today the Upper Connecticut River Partnership Act. This legislation will help bring recognition to New England's largest river ecosystem and one of our Nation's fourteen American Heritage Rivers. The purpose of this legislation is to help the communities along the river protect and enhance their rich cultural history, economic vitality, and the environmental integrity of the river. From its origin in the mountains of northern New Hampshire, the Connecticut River runs over 400 miles and eventually empties into Long Island Sound. The river forms a natural boundary between my home state of Vermont and New Hampshire, and travels through the States of Massachusetts and Connecticut. The river and surrounding valley have long shaped and influenced development in the New England region. This river is one of America's earliest developed rivers, with European settlements going back over 350 years. The industrial revolution blossomed in the Connecticut River Valley, supported by new technologies such as canals and mills run by hydropower. I am pleased that the entire Senate delegations from Vermont and New Hampshire have cosponsored this bill. For years, our offices and our States have worked together to help communities on both sides of the river develop local partnerships to protect the Connecticut River valley of Vermont and New Hampshire. And, while great improvements have been made to the river, its overall health remains threatened by water and air pollution, habitat loss, hydroelectric dams, and invasive species such as the zebra mussel. Historically, the people throughout the Upper Connecticut River Valley have functioned cooperatively and the river serves to unite Vermont and New Hampshire communities economically, culturally and environmentally. Citizens on both sides of the river know just how special this region is and have worked side by side for years to protect it. Efforts have been underway for some time to restore the Atlantic salmon fishery, protect threatened and endangered species, and support urban riverfront revitalization In 1993, Vermont and New Hampshire came together to create the Connecticut River Joint Commissions--a unique partnership between the states, local businesses, all levels of government within the two states and citizens from all walks of life. This partnership helps coordinate the efforts of towns, watershed managers and other local groups to implement the Connecticut River Corridor Management Plan. This Plan has become the blueprint for how communities along the river can work with one another with Vermont and New Hampshire and with the federal government to protect the river's resources. The Upper Connecticut River Partnership Act would help carry out the recommendations of the Connecticut River Corridor Management Plan, which was developed under New Hampshire law with the active participation of Vermont citizens and communities. This Act would also provide the Secretary of the Interior with the ability to assist the States of New Hampshire and Vermont with technical and financial aid for the Upper Connecticut River Valley through the Connecticut River Joint Commissions. The Act would also assist local communities with cultural heritage outreach and education programs while enriching the recreational activities already active in the Connecticut River Watershed of Vermont and New Hampshire. Lastly, the bill will require that the Secretary of the Interior establish a Connecticut River Grants and Technical Assistance Program to help local community groups develop new projects as well as build on existing ones to enhance the river basin. Over the next few years, I hope this bill will help bring renewed recognition and increased efforts to conserve the Connecticut River as one of our nation's great natural and economic resources. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. I know class action issues have been raised by Senators Kohl, Feinstein, Schumer, Dodd, Carper, Landrieu, and others. While I may disagree with them on some parts of this, I do so respectfully because I know how hard they have worked. In the last Congress, they were able to negotiate some procedural improvements. They reined in some of the worst aspects of previous class action bills. One improvement was to restrict the use of worthless coupon settlements. I strongly support this improvement, which is a targeted provision that goes after a real class action abuse, not one that is just made up by special interests. Unfortunately, there are other aspects that fail to achieve their intended goals. For example, two narrow exceptions have been negotiated to allow a few local controversies to remain in State court. But the exceptions to removal to Federal court touch on only a thin sliver of the class action cases this bill would affect--only when plaintiffs and primary defendants are from the same State--and even then it will do more harm than good with the complicated formula that will cause costly and time-consuming litigation. So this just increases the cost and increases the litigation. Another provision seeks to reduce the delay plaintiffs can experience when a case is removed to Federal court by setting a time limit for appeals of remand orders. But no measure is included in the bill to set a timeline for the district court to rule on the actual remand motion. What this means in layman's terms is a party can pluck one of these class actions out of State court and put it in Federal court, and if the Federal court rules against you on a remand, you have a right to appeal. But what do you do if they never rule? The case could sit there year after year and with no resolution. Litigants could die. People who have been harmed could die. People could move away, and nothing happens. Senator Feingold is going to offer an amendment to set a reasonable time limit for the district court to rule on remand orders. It does nothing to change the bill. It says you cannot pocket veto a case by sticking it away in a federal court docket somewhere. You have to rule one way or the other. We should all embrace that commonsense improvement. I am also concerned that this bill will deny justice to consumers and others in class actions that involve multiple State laws. The recent trend in Federal courts is not to certify class actions if multiple State laws are involved. This bill, therefore, could force nationwide class actions to Federal court. Once they are removed to Federal court, you have a Catch-22. They have to be dismissed because they involve too many State laws. If this legislation is really about transferring class actions to Federal court instead of being a pro-business vehicle for simply dismissing legitimate class actions, then the supporters of this legislation should want to solve this real Catch-22 problem. Senator Bingaman has an amendment to do just that. He is a former attorney general. He understands this. I look forward to debating this issue on the Senate floor. Of course, the legislation covers more than just class actions. Individual personal injury actions, consolidated by State courts for efficiency purposes, are not class actions. Despite the fact that a similar provision was unanimously struck from the bill during the markup of class actions legislation in the Judiciary Committee last Congress, despite the fact that every single Republican, every single Democrat voted to strike this provision, now mass torts are again included in the bill. Again, that makes no sense. Federalizing these individual cases will delay and possibly deny justice for victims suffering real physical injuries. It will be a boon to the makers of Vioxx, but certainly will not help those who took Vioxx. Mass tort cases are not class actions. They have not been analyzed under rule 23's standards or State law equivalents to rule 23. They are an important means by which groups of injured people have long been able to pursue remedies against those who have harmed them. Mass tort cases address injuries to citizens' health from dangerous medical products, injuries to their property and their health from environmental disasters, and injuries to their rights and liberties from widespread mistreatment in the workplace. There are entirely different procedural vehicles to reach justice in class actions. They should not be lumped in with class actions. Senator Durbin has an amendment that would leave mass tort actions in State courts where they belong. I am old enough to remember the civil rights battles of the 1950s and 1960s and the impact of class actions in vindicating basic rights through our courts. The landmark Supreme Court decision in Brown v. Board of Education was the culmination of appeals from four class action cases--three from Federal court decisions in Kansas, South Carolina, and Virginia, and one from a decision by the State supreme court of Delaware. Only the supreme court of Delaware--the State court, not the Federal court--got the case right by deciding for the African-American plaintiffs. The State court justices understood they were constrained by the existing Supreme Court law but, nonetheless, held that the segregated schools of Delaware violated the 14th amendment. Before any Federal court did so, a State court rejected separate and unequal schools. Today we take that for granted, but it was not because those cases went into Federal court that the civil rights of African Americans were determined; it was because they were in State court. Indeed, many civil rights advocates, including the Lawyers' Committee for Civil Rights Under Law, the Leadership Conference on Civil Rights, the Mexican American Legal Defense and Education Fund, and the National Asian Pacific Legal Consortium, have written to Senators in opposition to this legislation and in support of Senator Kennedy's amendment to exempt civil rights and wage and hour cases from the bill. I am proud to cosponsor his amendment, and I look forward to the debate on it. The legislation has also been criticized by nearly all the State Attorneys General in this country. I understand that at least 43 of the 50 State Attorneys General have expressed concern that S. 5 could limit their powers to investigate and bring actions in their State courts against defendants who cause harm to their citizens because in certain instances they file suit as the class representative for the consumers of their State. I expect Senator Pryor, a distinguished former State attorney general himself, to bring this issue to the floor with a clarifying amendment. Some special interest groups are distorting the state of class action litigation by relying on a few anecdotes in an ends-oriented attempt to impede plaintiffs from bringing class action cases. We should take steps to correct actual problems as they occur. Simply transferring most suits into Federal court will not correct the real problems faced by plaintiffs and defendants. In fact, this Congress and past Congresses have federalized so many criminal cases that used to be in State courts and dumped them into the Federal courts that it is increasingly difficult to even get a civil case heard in Federal court. So many things are handled by local prosecutors, such as Senator Specter and myself when we were prosecutors, by local law enforcement, but because they are interesting matters, we have succumbed to the temptation to federalize case after case that State authorities have always handled very well. These criminal cases are now in the Federal courts, and the Federal courts are overloaded with them. Now we are going to transfer a whole lot more cases into Federal courts. Defrauded investors, deceived consumers, victims of defective products and environmental torts, and thousands of other ordinary people have been able to rely on class action lawsuits in our State court system, and there they have sought and received justice. We all know that without consolidating procedures such as class actions, it might be impossible for victims to obtain effective legal representation. Companies tend to pay their defense lawyers by the hour. They are well paid. Plaintiffs' lawyers in class actions tend to work without pay for the possibility of obtaining a portion of the proceeds, if they are successful. It may well prove uneconomical for counsel to take on cases against governmental or corporate defendants if they must do so on an individual basis. It may be that individual claims are simply too small to be pursued. Sometimes that is what the cheaters count on; it is how they get away with their schemes. Cheating thousands of people just a little is still cheating, or millions of people just a little creates millions of dollars for one person with nothing to stop them from doing it. Class actions allow the little guys to band together to afford a competent lawyer to redress wrongdoing. Whether those regular citizens are getting together to force manufacturers to recall or correct dangerous products, or to clean up after devastating environmental harms that endanger their children or their neighborhoods, or to vindicate the basic civil rights to which they are entitled, they are using class actions. Why make it more difficult or costly for them to right those wrongs? As the New York Times noted in an editorial last week opposing this bill, the real objective of this legislation is ``to dilute the impact of strong State laws protecting consumers and the environment and to make it harder for Americans to win redress in court when harmed by bad corporate behavior.'' We have very strong environmental laws in Vermont, and we are very proud of them. Now we see this Congress about to say to the Vermont Legislature: We can apply much lesser standards; we will just take it away from any enforcement you already have. I ask unanimous consent that the New York Times editorial be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to introduce today the Upper Connecticut River Partnership Act. This legislation will help bring recognition to New England's largest river ecosystem and one of our Nation's fourteen American Heritage Rivers. The purpose of this legislation is to help the communities along the river protect and enhance their rich cultural history, economic vitality, and the environmental integrity of the river. From its origin in the mountains of northern New Hampshire, the Connecticut River runs over 400 miles and eventually empties into Long Island Sound. The river forms a natural boundary between my home state of Vermont and New Hampshire, and travels through the States of Massachusetts and Connecticut. The river and surrounding valley have long shaped and influenced development in the New England region. This river is one of America's earliest developed rivers, with European settlements going back over 350 years. The industrial revolution blossomed in the Connecticut River Valley, supported by new technologies such as canals and mills run by hydropower. I am pleased that the entire Senate delegations from Vermont and New Hampshire have cosponsored this bill. For years, our offices and our States have worked together to help communities on both sides of the river develop local partnerships to protect the Connecticut River valley of Vermont and New Hampshire. And, while great improvements have been made to the river, its overall health remains threatened by water and air pollution, habitat loss, hydroelectric dams, and invasive species such as the zebra mussel. Historically, the people throughout the Upper Connecticut River Valley have functioned cooperatively and the river serves to unite Vermont and New Hampshire communities economically, culturally and environmentally. Citizens on both sides of the river know just how special this region is and have worked side by side for years to protect it. Efforts have been underway for some time to restore the Atlantic salmon fishery, protect threatened and endangered species, and support urban riverfront revitalization In 1993, Vermont and New Hampshire came together to create the Connecticut River Joint Commissions--a unique partnership between the states, local businesses, all levels of government within the two states and citizens from all walks of life. This partnership helps coordinate the efforts of towns, watershed managers and other local groups to implement the Connecticut River Corridor Management Plan. This Plan has become the blueprint for how communities along the river can work with one another with Vermont and New Hampshire and with the federal government to protect the river's resources. The Upper Connecticut River Partnership Act would help carry out the recommendations of the Connecticut River Corridor Management Plan, which was developed under New Hampshire law with the active participation of Vermont citizens and communities. This Act would also provide the Secretary of the Interior with the ability to assist the States of New Hampshire and Vermont with technical and financial aid for the Upper Connecticut River Valley through the Connecticut River Joint Commissions. The Act would also assist local communities with cultural heritage outreach and education programs while enriching the recreational activities already active in the Connecticut River Watershed of Vermont and New Hampshire. Lastly, the bill will require that the Secretary of the Interior establish a Connecticut River Grants and Technical Assistance Program to help local community groups develop new projects as well as build on existing ones to enhance the river basin. Over the next few years, I hope this bill will help bring renewed recognition and increased efforts to conserve the Connecticut River as one of our nation's great natural and economic resources. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, for the most part, this has been a substantive debate. Actually, it has been a necessary debate. Now, partisans on the other side of the aisle at times have tried to smear anyone who has voiced concern about this nomination, notwithstanding that anyone who listened to the statements of those of us who oppose this nomination know that each of us has praised the journey Alberto Gonzales and his family have taken. I am a grandson of immigrants who came to this country not even speaking the language, so I have unbounded respect for all that he and his family have accomplished. In fact, I am the first Leahy to get a college degree; my sister is the second. So I applaud anybody who takes such a journey. On Tuesday, the Senate heard from Senators Feinstein, Schumer, Kennedy, Mikulski, Dayton, and Stabenow. Yesterday, the debate on this side of the aisle included eloquent and powerful statements by Senators Byrd, Durbin, Jack Reed, and Jeffords, all stating their reasons for opposing this nomination on the merits. No one should be accusing these Senators of doing anything except their constitutional duty. Today, we heard as well from Senators Dodd, Obama, Cantwell, Bingaman, Johnson, Levin, and Feingold. Each has spoken from conviction. They are voting their conscience. We have also made time to hear from one of our newer Democratic Senators, Mr. Salazar of Colorado, regarding the assurances and commitments he has obtained from the nominee and on which he is relying in his vote. I also note that today he returned to the Senate floor to make another important statement that rejected those who have tried to play a divisive ethnic card. He spoke about the true meaning of diversity and our national journey toward equal rights for all. Senator Salazar spoke to me before he spoke on the floor. I commend him for what he has done. I thank him for his remarks. It is what I would have expected from a man of his integrity and quality. Senator Biden observed during the confirmation hearing that none of us came to that hearing having determined to vote against the nomination. In fact, most of us, I would say, if not all of us on the Democratic side of the aisle in the Judiciary Committee came there assuming we were going to vote for him. We listened. We asked questions. We sought answers. We weighed the record. It was not an easy decision for any of us. Each of us would have liked to have supported the first Hispanic nominee to be Attorney General. We each made a decision on the merits of the nomination. We did not ignore his judgments that contributed to the scandals in the war against terror and the mistreatment of detainees around the world. Some have said that some of those positions were embarrassing. They were a lot more than embarrassing; they were a complete scandal. When this nomination was announced last year, many of us were inclined to support Judge Gonzales. But as the confirmation process unfolded, one by one, members of the Judiciary Committee began to have doubts. Many were troubled by the nominee's refusal to engage with us in an open discussion of his views on a wide range of issues. I was particularly concerned because I had actually sent to him and to the Republicans in the committee a number of the questions I was going to ask so he would have plenty of time to prepare to answer. Instead, he did not answer. For some, the key question was how Judge Gonzales interprets the scope of Executive power and his belief that the President possesses authority to ignore our laws when acting as Commander in Chief. No President of the United States can ignore our laws, no President of the United States is above the law any more than any of us are above the law. For others, the tipping point was the nominee's continued adherence to flawed legal reasoning regarding torture, a stubborn commitment betraying seriously poor judgment. Finally, and deeply troubling to many of us, is the nominee's lack of independence from the President. In the end, after serious consideration of the record, each of us arrived at the same conclusion: In good conscience, we could not vote for this nomination. Now, some have talked about the legal memos he was involved in as legal niceties. Well, Mr. President, torture is not a legal nicety, especially if you are the person being tortured. Those of us who have been in the military or who have had members of our family in the military have always hoped we would hold to the highest standards so we could demand that other countries do the same. It is wrong for partisans to castigate Senators for debating this nomination and for considering the critical role this nominee played in the development of legal policies that were kept hidden for a couple years, but when they were brought forward by the press, not in answer to questions by Members of Congress--the press did our work and brought them forward--those so-called legal niceties could not stand the light of day. Consistent with my oath of office, the commitment I have had to the people of Vermont for over 30 years, I will vote my conscience again today. I urge each and every Senator to do the same. Review the record, truly review the record and the actions of this nominee over the past 4 years and vote accordingly. I do not think I have ever been on the floor of this Senate and predicted vote totals. I am not going to today. But I will predict this: Democratic Senators will not vote as a block. Some will vote against this nomination; some will vote in favor of this nomination. They will do so not on the basis of some party caucus position but as individual Senators. I urge all Senators--Republicans and Democrats and Independent--to approach this vote in that way, on the merits, after you review the record in good conscience. This should not be a party- line vote on either side of the aisle but one where each Senator votes his or her best judgment. Many Senators here today no doubt believe that the President is owed a high degree of deference in his Cabinet choices. I feel that way. But that does not erase our constitutional obligations as Senators. We have a duty to advise and consent, not to listen and rubberstamp. I take that responsibility very seriously, especially in the case of the Attorney General. The Attorney General is unique among Cabinet officers. You can give a lot more flexibility to other Cabinet officials whose main purpose is simply to state the position of the President of the United States. Whether you agree with the position, that is their duty. So you give a lot more deference, and you say: Well, they are going to state the position of the President. We can vote for them. But the Attorney General is different. He or she is the top Federal law enforcement officer in the land. The power and discretion of the Attorney General is enormous. The Attorney General has to have sufficient independence to uphold the law and enforce the law, even if doing that serves to embarrass or disadvantage the President, even if it means taking a position contrary to what the President may want, because you have to enforce the law. Now, when Judge Gonzales was designated and appeared in the White House with the President, he offered a very significant insight into how he views the role of the Attorney General. He emphasized how much he looked forward ``to continuing to work with friends and colleagues in the White House in a different capacity on behalf of our President.'' During his confirmation hearing, he appeared to continue to serve as a spokesman for the administration and to be its chief defense lawyer on a wide variety of important matters. His defenders here on the Senate floor have excused his answers by characterizing them as the views of the administration. We are voting on the Attorney General of the United States, not the Attorney General of the President. The Attorney General must represent the interests of all Americans and is the nation's chief law enforcement officer. One of the key questions raised by this nomination is whether, if confirmed as Attorney General, the nominee will serve not just this President but all the American people, and whether he will show the independence necessary to enforce the law. We have to know that he is there to represent all of us. We have to know that he can enforce the law and not be worried about friends, colleagues, or benefactors at the White House. The Attorney General's duty is to uphold the Constitution and the rule of law, not try to find ways to circumvent it to fit the desires of any President. Actually, the President, when you come right down to it, as well as the Nation, are best served by an Attorney General who gives sound legal advice and takes responsible action without regard to political considerations. Others in the Cabinet are there to just voice the opinions of the President. The Attorney General has to be a lot more independent. I raised this matter of independence with Judge Gonzales when he testified, and I reiterated it in a letter I sent to him before his hearing. I ask unanimous consent that letter be printed in the Record.

Mr. LEAHY. I was not surprised to hear him say that the responsibilities of the Attorney General are different than those as White House Counsel. But I did not see that during the hearings. He deferred to the official policies of this administration throughout the Judiciary Committee proceedings. When asked about the Bybee memo, he said: I don't have a disagreement with the conclusions then reached by the Department. And he stated a patently false reading of the torture convention that would allow for foreigners captured overseas to be subjected to cruel, inhuman, and degrading treatment at the hands of American captors or surrogates. He appeared to accept the notion that the President has the authority to immunize somebody to commit torture under his command. A letter signed by a number of high-ranking former military officers, including the former head of the Joint Chiefs, GEN John Shalikashvili, said the interrogation policies that Judge Gonzales helped to define ``have fostered greater animosity toward the United States, undermined our intelligence-gathering efforts, and added to the risks facing our troops serving around the world.'' The best evidence we have is that he rejected the advice of Secretary Powell and career military officers when he recommended to the President the Geneva Conventions should not apply to the conflict in Afghanistan. Admiral John D. Hutson, the former Judge Advocate General of the Navy, testified to the Judiciary Committee that the advice given by Judge Gonzales to the President on this point was ``shallow in its legal analysis, short-sighted in its implications, and altogether ill- advised. Frankly, it was just wrong.'' These military men are joined in opposition to this nomination by a large number of organizations, including the Leadership Conference on Civil Rights, the La Raza Centro Legal, and the Mexican-American Political Association. Three leading human rights organizations, Human Rights Watch, Human Rights First, and Physicians for Human Rights, none of which have ever opposed a nomination before, did so for the very first time. They acknowledge that the struggle to stamp out torture around the world ``has been made harder by the legal positions adopted by the Bush Administration, including Mr. Gonzales's refusal to state that a President could not lawfully order torture.'' The Congressional Hispanic Caucus and the Mexican American Legal Defense and Educational Fund both issued statements stating that they cannot support this nomination. I ask unanimous consent to include in the Record a list of organizations opposing or not supporting the nomination.

Mr. LEAHY. While I have heard partisan attacks from the other side of the aisle, I have not heard Republicans offer a strong defense of Judge Gonzales's actions and judgment. What they come back to again and again is his inspirational life story. Having an Hispanic American serve as Attorney General is overdue and something to which I look forward. Having an African American serve as Attorney General is, likewise, overdue. In his letter to the Judiciary Committee, retired Major General Melvyn Montano may have said it best: ``Judge Gonzales should be evaluated on his record, not his ethnicity.'' At particular moments in our history, the Senate at its best can be the conscience of the Nation. The history books and our children and grandchildren will look back on these times and make their own judgments about how worthily the Senate has served that role as we confront any number of difficult issues in these challenging times. But I do believe that, whatever the outcome of this confirmation proceeding, it is worthy of the Senate that we at least held this debate. It is worthy of the Senate that these issues were deemed important enough to discuss for several days on the floor of the United States Senate. To have wished them away or to have just glossed over them would have been a disservice not only to today's generations of Americans, in and out of uniform, but also to tomorrow's generations of Americans. And it would have been a disservice to the Senate that we all so deeply respect. I have deeply believed that it should concern the Senate that we have seen departures from our country's honorable traditions, practices, and established law in the use of torture, originating at the top ranks of authority and emerging at the bottom. At the bottom of the chain of command, we have seen a few courts-martial, but at the top we have seen medal ceremonies, pats on the back, and promotions. At his recent inaugural address, I praised President Bush for his eloquent words about our country's historic support for freedom. But to be true to that vision, we need a government that leads the way in upholding human rights, not one secretly developing legalistic rationalizations for circumventing them. We need to climb our way back to the high moral ground that has distinguished our great country and that has been an inspiration to the whole world. Members of the Senate have a solemn obligation to uphold the law and the Constitution. Each of us has to decide whether the nominee has the sound judgment and the independence required to be Attorney General. I would have been willing to vote for Judge Gonzales in a number of different positions of Government, but not in this one. I wish we could vote for his life story and not for the actual record. Unfortunately, we are voting on the record. I ask each Senator to consider it. I know that each will consult his or her conscience in reaching a decision, and that is in keeping with the best traditions of the Senate. If I have time remaining, I yield it back.

Mr. LEAHY

Mr. LEAHY. Mr. President, earlier this week, for the second time in less than 3 years, King Gyanendra of Nepal dismissed the multiparty government and declared a state of emergency suspending fundamental constitutional rights. Apparently, he will assume the duties of the deposed Prime Minister and appoint a new cabinet. Throughout its troubled past, Nepal has suffered from the neglect and often violent and corrupt misrule of many monarchs. For that reason, those familiar with its history may not be completely surprised by this unfortunate development. Yet one would have thought that in the 21st century, this type of thing would, by now, be a distant memory. At a time when a vicious Maoist insurgency is gaining ground in Nepal, it would be hard to conceive of a worse time for the King to repeat his past mistake. There is no military solution to this conflict. Nepal is a place where, not unlike Afghanistan, a handful of extremists with rifles and explosives can wreak havoc and easily disappear into the rugged countryside. By terrorizing rural villagers and exploiting the Government's neglect of them, the Maoists have steadily extended their reach to large areas of the country. The Nepalese army, while somewhat more effective than a few years ago when it performed little more than ceremonial duties, has likewise alienated much of the rural population by arbitrarily arresting, disappearing and killing civilians suspected of sympathizing with the Maoists. Today, the army, rather than defending democracy, is defending the King. It is clear that the King and the army concocted this together, despite having assured the UN High Commissioner for Human Rights last week that concerns about violations of human rights would be addressed. This year, the United States plans to provide some $40 million in economic aid to Nepal. Much of this is channeled by USAID through nongovernmental organizations. But we are also providing support to the Nepalese government, as well as training and equipment to the Army. In fact, several months ago we approved the transfer of $1 million in fiscal year 2004 military equipment that had not initially been appropriated for Nepal. The Indian government, to its credit, issued a strong statement critical of the King's actions. The State Department has also called for the immediate restoration of multiparty democracy. King Gyanendra is on notice that he will be held responsible for infringement of the rights of free speech and assembly, or abuses of citizens who have defended human rights and democracy. The State Department should also make clear that unless democratic government and fundamental rights are promptly restored, the United States will cut off aid to the government and the army under Section 508 of the Foreign Operations Act which was designed to deter and punish this type of act. Regardless of whether or not the King may have acted within his authority under Nepal's constitution, and I do not know if he did or not, that is not the issue. The intent of our law to safeguard democracy is clear. The price is losing U.S. aid. Furthermore, if the $1 million in military equipment previously transferred has not yet been delivered, it should be withheld. Everyone who has followed Nepal's recent history would agree that its 10 year ``experiment'' with democracy has not been easy. Democracy is never easy, and no one should minimize the threat the Maoists pose. But the answer is not to undermine democracy. The answer, as President Bush expressed in his Inaugural Address, is to work, with help from the international community, to strengthen democracy. The United States Congress would welcome that opportunity. King Gyanendra has made a tragic blunder. He still has time to prevent a momentary crisis from becoming a disaster for his country and perhaps for the monarchy itself.

Mr. LEAHY

Mr. LEAHY. Mr. President, this morning we have heard many excellent speeches. I commend my colleague from Vermont, Mr. Jeffords, for his statement. Yesterday I listened to Senators Feinstein, Schumer, Kennedy, Mikulski, Dayton and Stabenow on our side, and I thought their statements were very good. Both Senator Durbin of Illinois and I were at a hearing this morning and left to come over here. I think his statement was straightforward and comprehensive and compelling. I appreciate what has been said. I have also listened to the statements of those who support this nominee, most from the other side. I would say one thing, I am glad that none of them are defending torture. I never expected they would. None of them defend what happened at Abu Ghraib. I didn't expect they would. None of them are defending the Bybee memorandum, with its narrow legalistic interpretation of the torture statute. I never thought any of them would. None of them defend the outrageous claim that the President of the United States is above the law. I don't know how anybody could defend that position. One of the things we have learned, from the first George W., George Washington, to the current President, is that no President is above the law, not even this one. None of us are. Senators are not. Judges are not. Nobody is. In fact, some of the people who have spoken have been explicitly critical of the Bybee memo. Unfortunately, the nominee has not joined in that criticism. Instead, he told me at his hearing that he agreed with its conclusions. We know that for at least 2 years he did not disagree with the secret policy of this administration. Water flows downhill and so does Government policy in this administration. Somewhere in the upper reaches of this administration a process was set in motion that rolled forward until it produced scandalous results. We may never know the full story. The administration circled the wagons. They stonewalled requests for information from both Republicans and Democrats. What little we do know, we know because the press has done a far, far, far better job of oversight than the Congress itself. We know it from international human rights organizations because they have done a far better job of oversight than Congress has. We owe it to a few internal Defense Department investigations, and of course the Freedom of Information Act litigation. Thank goodness we have the Freedom of Information Act, because Congress, this Congress especially, both bodies, has fallen down for years on their oversight responsibility. It failed, actually refused, to do oversight of an administration of their own party. It is fortunate the Freedom of Information Act is there. Every administration, Democrat and Republican, will tell you all the things they believe they have done right. None will tell you the things they believe they have done wrong. Normally it is the job of the Congress to root that out. We have not been doing our job. Fortunately the press and others, through the Freedom of Information Act, have. Despite repeated requests both before and during and after judge Gonzales's confirmation hearing, there is much we still do not know. We gave this nominee every possibility before, during, and after his hearing to clarify this. I even sent to him and to the Republicans on the committee, well in advance of the hearing, a description of the types of questions I would ask on this particular matter so there would be no surprises and so that he would have a chance to answer them. He didn't. We do know that he was chairing meetings and requesting memos and checking up on those memos as various Government agencies were being tasked with eroding long-established U.S. policy on torture. Just this week, the New York Times reported the Justice Department produced a second torture memo to address the legality of specific interrogation techniques proposed by the CIA. So much for the proponents' argument that these memoranda were research memos with little real-world impact. That second torture memo, which the administration refused to provide to the Judiciary Committee, reportedly used the very narrow and thus permissive interpretation of the torture statute outlined in the first memorandum. The administration will not come clean from behind the stone wall it has constructed to deter accountability for its actions. Does anyone believe this memo was generated without knowledge of the White House, without its approval? The President said he chose Judge Gonzales because of his sound judgment in shaping the administration's terrorism policies. But the glimpses we have seen of secret policy formulations and legal rationales that have come to light show that his judgements have not been sound. Look at his role with respect to the Bybee memo. This is the memo that noted legal scholar Dean Koh of the Yale Law School called, ``perhaps the most clearly erroneous legal opinion I have ever read.'' He went on to say it is ``a stain upon our law and our national reputation.'' In remarks yesterday, Republican Senators, quite correctly in my view and the view of many others who studied it, said the Bybee memo was ``erroneous in its legal conclusions. . . .'' They call the memo's interpretation of what constitutes torture ``very, very extreme . . . certainly not a realistic or adequate definition of torture which would withstand legal analysis or legal scrutiny.'' I commend them for doing that. I commend them for saying the memorandum was ``extreme and excessive in its statement and articulation of executive power.'' I would feel far better if the man who they are supporting for Attorney General had taken the same position, as have many of my colleagues in the Senate, on both sides of the aisle. Even supporters of Judge Gonzales distance themselves from the Bybee memo's conclusion that the President has authority to immunize those who violate the law knowing that ``certainly is not lawful.'' These are the statements of Republican Senators, but they should not be confused with the statements of Judge Gonzales, who has refused to criticize its legalistic excuses for recalibrations of decades of law and practice. I ask unanimous consent to have printed in the Record a number of newspaper articles and editorials that bear on this nomination, including one that appears in today's Rutledge Herald, a prize-winning newspaper in Vermont.

Mr. LEAHY. Mr. President, I want to set the record straight on something that the senior Senator from Utah said yesterday regarding the President's February 2002 directive on the treatment of al-Qaida and Taliban detainees. According to Senator Hatch, ``the President [said] unequivocally that detainees are to be treated humanely.'' In fact, the President's directive said only that ``the U.S. Armed Forces'' should treat detainees humanely. The President's directive pointedly did not apply to the CIA and other nonmilitary personnel. I asked Judge Gonzales: Does the President's February 7, 2002, directive regarding humane treatment of detainees apply to the CIA or any other non-military personnel? He replied: No. By its terms, the February 7, 2002, directive ``reaffirm[s] the order previously issued by the Secretary of Defense to the United States Armed Forces.'' In other words, contrary to what he have heard, and continue to hear, from Judge Gonzales's supporters, the President's oft-quoted directive regarding the humane treatment of detainees is carefully worded to permit the occasional inhumane treatment of detainees. Indeed, that is one of the legal loopholes that concerns so many of us. Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. LEAHY. Mr. President, I am disturbed that even though there are some Democrats who support Judge Gonzales, and some who oppose, I have heard some Senators on the other side of the aisle imply that those who oppose this nomination are biased against him based on his ethnic background. I resent that charge. For somebody to say that those opposed are biased against Judge Gonzales because of his ethnicity is preposterous and deeply offensive. We have stood here for 2 days explaining our positions. Many of us have said if we were voting on the story and on the achievements of Judge Gonzales, which are commendable, we would be voting for him. If we were voting on what he has overcome in his life and career, we would be voting for him. What we have said clearly, however, is that we are voting against him based upon his conduct as Counsel to the President. We have come to this decision based upon his record. Let us talk about that record. Judge Gonzales has argued that the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment does not prohibit cruel, inhuman, or degrading treatment or punishment with ``respect to aliens overseas.'' Reaching this conclusion requires such twisted reasoning that even those who support Judge Gonzales must part company with him on this point. I am also disturbed by his interpretation of the Geneva Conventions. Judge Gonzales did not follow the advice he received from Secretary of State Powell, the former Chairman of the Joint Chiefs of Staff, or of the State Department lawyers. He did not stand up for the military and interpret our obligations consistent with the Army Field Manual and the decades of sound practice and counsel from the Judge Advocate General's Corps. That is why I object to this nominee. I ask unanimous consent to have printed in the Record an article describing Judge Gonzales's interrogation policies, written by Jeffrey Smith and Dan Eggen.

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

Mr. LEAHY. Madam President, I am only going to take a few moments. I have colleagues on this side of the aisle who wish to speak during the hour. I hear so many of the statements on the other side speak of Judge Gonzales's personality, his upbringing, and his inspirational life story. If we were just voting on his personality, his upbringing, and his life story, I would vote for him with wholehearted support. However, we are not voting on the life, we are voting on the record. It is an enormous difference. Equally important, we are not voting on an Attorney General to serve only the President, we are voting on the Attorney General for the United States. So many of the supporters of Judge Gonzales have said that they abhor the idea of torture. They say that they believe the Bybee memo was wrong. They say that these policies are wrong. Of course they are wrong, but these are the policies that were held in place by the administration for as long as they remained secret. The Bybee memo was sought by Judge Gonzales. It was agreed to by him. He apparently still takes the position that there are circumstances where the President of the United States is above the law. I don't want someone to serve as Attorney General who will be a good soldier for the President. I would have said the same thing, whether it was a Democratic President or Republican President. I want someone for Attorney General who will be independent, who will give the best possible advice and protect the rights of all of Americans. I am the parent of a former Marine. My son has now fulfilled his duty for the Marines, but if he were serving, I would worry for him as I worry for all the thousands of men and women serving overseas. The torture policies of this administration did nothing to enhance the security of our Americans fighting bravely. In fact, the policies put soldiers and civilians in greater danger. The truth is that the Bybee memo was disavowed only when the press found out about it. Unfortunately, the people at the center of the development of these policies, who could have disavowed the memo upon its publication, who could have stopped it, including Judge Gonzales, did nothing. I see the distinguished Senator from Louisiana and the distinguished Senator from Rhode Island. I don't know which one seeks recognition, but I yield the floor.

Mr. LEAHY

Mr. LEAHY. Yes, at 2:15. We don't have to break at 12:30. We could continue on. I was off the floor. What was the request?

Mr. LEAHY. I ask unanimous consent that we lock in 10 minutes at 2:15 p.m. for the Senator from Maryland, Ms. Mikulski.

Mr. LEAHY. Mr. President, I understand we are coming back at 2:15 p.m. after the caucuses?

Mr. LEAHY. Then, Mr. President, I ask unanimous consent that following Senator Hatch, Senator Schumer be recognized.

Mr. LEAHY. Mr. President, today we are beginning the debate on the nomination of Alberto Gonzales to be Attorney General of the United States. When I first heard of this nomination last November, I was hopeful. I saw this nomination as a chance for some long missing accountability on some of the most pressing issues facing our Nation. I noted at the time that I like and respect Judge Gonzales. I met with him soon after his designation and wrote to him, following up on that meeting, to inform him in advance of his confirmation hearing about issues that would be raised about several key issues. I listened carefully to him during our confirmation hearing. The road he has traveled from being a 12-year-old boy selling soft drinks at football games, all the way to the State House in Texas and to the White House, is a tribute to him and to his family. In spite of our disagreements on issues, I have sought to maintain a cordial personal working relationship with Judge Gonzales during his years as President Bush's counsel. As Senator Kennedy has said, I dearly wish that we could vote for that compelling story, and not for the nominee whose record is before us. In my case, I will vote based on the record. It saddened me to call Judge Gonzales last week and tell him that I could not in good conscience vote to confirm his nomination to be Attorney General, the chief law enforcement officer of the Nation. He is not the person for this job. My reasons for voting against Judge Gonzales arise from the need for accountability and derive from the nominee's involvement in the formulation of a number of policies that have tarnished our country's moral leadership in the world and put American soldiers and American citizens at greater risk. When President Bush announced this nomination he said that he chose Judge Gonzales because of his ``sound judgment'' and role in shaping the Administration's policies in the war on terrorism. Based on the glimpses of secret policy formulations and legal rationales that have come to light, I believe his judgments not to have been sound. On the contrary, several of this Administration's legal policies have been exceedingly harmful to our national interests. As Attorney General, the nominee's judgment about our laws would be of enormous consequence. This is a different type of Cabinet position than many others. In many Cabinet positions, such as the Secretary of State, the Secretary of Treasury, and others, the Cabinet member states the President's position. They state the President's position and carry out the President's policies. The Attorney General is different. The Attorney General is not the Attorney General of the President; he is the Attorney General of the United States. This is a position where the cabinet member has enormous flexibility to carry out decisions--to bring prosecution or withhold it, to begin an investigation or to withhold an investigation, to determine to go into a place where he believes there may have been a voting rights violation or to say there is none. This individual must be independent of the President. Judge Gonzales has championed policies that are in fundamental conflict with decades of laws, sound military practice, international law, and human rights. He remained silent for almost 2 years about a deeply flawed and legalistic interpretation of our Nation's torture statute. He also accepted a patently erroneous interpretation of the torture convention and apparently believes that the President, when acting as Commander in Chief, is above the law. When I asked Judge Gonzales if he agreed with the Bybee memo's very narrow reading of the law, he replied: ``I don't recall today whether or not I was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the Department.'' This is the memo which concludes that ``physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.'' Even the Justice Department repudiated this legal memorandum, once it became public. Under his restrictive redefinition such practices as threatening a prisoner with a firearm in a mock execution, ``waterboarding'' a person to make him experience the suffocating effects of drowning, and, as Senator Kennedy noted, perhaps even cutting off a person's fingers one joint at a time would not amount to ``torture.'' But surely we consider these practices torture when done to a member of the U.S. military or to an American citizen. How can we, the greatest Nation on Earth, stand up and say such acts are not torture if committed against foreign detainees? Perhaps most disturbing of all as a legal matter is the nominee's positing of the President as above the law. Nothing is more fundamental about our constitutional democracy than our basic notion that no one is above the law. Yet at his June 2004 news conference and again in his testimony before the Judiciary Committee he indicated that he views the President to have the power to override our law and, apparently, to immunize others to perform what would otherwise be unlawful acts. This is about as extreme a view of executive power as I have ever heard. I believe it is not only dead wrong as a constitutional matter but extremely dangerous. The rule of law applies to the President, even this President. From the time of George Washington to George W. Bush, we have always maintained that in our Nation no one is above the law--not the President, not a Senator, not a judge, not anyone in our country. Ironically, it was the administration of this President's father that urged the Senate to ratify the torture convention. It did so to make clear that the United States condemns torture and to protect Americans from this barbaric practice. But if the U.S. President does not feel bound by the torture convention, then neither will other foreign leaders. Ultimately, the Attorney General's duty is to uphold the Constitution and the rule of law--not to work to circumvent it. Both the President and the nation are best served by an Attorney General who gives sound legal advice and takes responsible action, without regard to political considerations--not one who develops legalistic loopholes to serve the ends of a particular administration. The Attorney General appointed by the President's father remarked: ``Nothing would be so destructive to the rule of law as to permit purely political considerations to overrun sound legal judgment.'' Judge Gonzales demonstrates a lack of independence from the President, something that we cannot have in the chief law enforcement officer in the nation. He cannot interpret our laws to mean whatever the President wants them to mean. To do so would deny us the constitutional protections upon which this nation was founded. The Attorney General is supposed to represent all of the American people, not just one of them. We have seen what happens when the rule of law plays second fiddle to the President's political agenda. This Administration has taken one untenable legal position after another regarding the rule of law in the war against terror. It will not admit to making mistakes. It takes action only after mistakes are made public and become politically indefensible. Given the Republican Party's leadership in Congress, the Federal courts have provided what little check there has been on this President's claim of unfettered Executive power. The Congress has failed to do any real oversight of that use of power. Judge Gonzales's nomination initially seemed like a breath of fresh air. I have noted how much I personally like him. I think most people do. But as I told the nominee when we met within days of the announcement of his nomination, these confirmation proceedings matter. The proceedings matter because it is the responsibility of this Senate to explore Judge Gonzales's judgment and actions in connection with the tragic legal and policy changes formulated in secret by this administration and still cloaked from congressional oversight and public scrutiny. Part of it is the fault of the Congress which has not conducted vigorous oversight, but a large part of this problem is due to an administration that has not answered the questions asked by both Republicans and Democrats. America's troops and citizens are at greater risk because of those actions and their terrible repercussions throughout so much of the world. America's moral standing and leadership have been undercut. The searing photographs of Abu Ghraib have made it harder to create and maintain the alliances we need to prevail against the vicious terrorists who threaten us, including those who struck America 9 months into this President's first term. Those abuses at Abu Ghraib have served as recruiting posters for the terrorists. That is why this process matters. The confirmation process shows that on the question of judgment, Judge Gonzales is the wrong man for this job. After his recent inaugural address, I praised President Bush for the eloquent words he said about the United States' historic support for freedom. But to be true to that vision, we need a government that leads the way in upholding human rights, not one that secretly develops legalistic rationalizations for circumventing human rights. To reclaim our moral leadership in the world, and to become a true messenger of hope instead of a source of resentment, we need to acknowledge wrongdoing and show accountability for mistakes that have been made. We have seen departures from our country's honorable traditions, practices, and established law in the use of torture, originating at the top ranks of authority and emerging at the bottom. At the bottom of the chain of command, we have seen a few courts martial. But at the top, we have seen medal ceremonies, pats on the backs, and promotions. Between these two dissonant images, there is a growing accountability gap. The administration's handling of this confirmation process, which could have helped to narrow the gap, has served to widen it. I believe in redemption in public life, as in spiritual life, but to get to redemption, first there has to be accountability. This administration has a large and growing accountability deficit. Judge Gonzales, who could have become a part of the solution, remains a part of the problem. Now more than ever we need an Attorney General to serve all Americans. There is much that has gone wrong that this administration has stubbornly refused to admit or correct. For this democratic Republic to work, we need greater openness and accountability. It is with those critical considerations in mind that I must vote against this nomination. I believe under the earlier order, the Senator from California is now going to be recognized.

Mr. LEAHY. Mr. President, I ask unanimous consent to have printed in the Record a number of recent editorials regarding the nomination of Alberto Gonzales.

Mr. LEAHY. I don't have the floor.

Mr. LEAHY. Mr. President, I will not at this point speak quite as long. Because I will not use the same amount of time now, I ask unanimous consent that the Senator from California, Mrs. Feinstein, be allowed to follow my remarks.

Mr. LEAHY. If the Senator will withhold, how much longer does the Senator from Utah have?

Mr. LEAHY. Reserving the right to object, it would be Senators Schumer, Hatch, Cornyn, and Kennedy?

Mr. LEAHY. I have no objection.

Mr. LEAHY

Mr. LEAHY. Mr. President, last week I listened to the comments of my friend, the senior Senator from Missouri, regarding the devastating impact of the tsunami in Aceh, Indonesia, which caused so much loss of life and destruction of property. Senator Bond paid tribute to the contributions of American relief agencies that have done so much to alleviate the suffering there, and I want to echo those comments. He also expressed concern about what he called ``unintended consequences'' of restrictions on our assistance to the Indonesian military, otherwise known as the TNI. Specifically, he referred to the International Military Education and Training Program, and spare parts for C-130 aircraft. I want to respond to that portion of Senator Bond's remarks, to be sure there is no misunderstanding about what our law says. To begin with, I want to disabuse those who might be misled by some Indonesian officials who often mistakenly refer to a U.S. military ``embargo'' against Indonesia. I ask unanimous consent that a Defense Department document from our Embassy in Jakarta, which describes the many programs and other contacts we currently have with the TNI, be printed in the Record at the end of my remarks.

Mr. LEAHY. The fact is that the TNI participates in training programs under both the expanded International Military Education and Training, E-IMET, program and the Counterterrorism Fellowship Program, CTFP. This is the largest CTFP program currently underway anywhere in the world. Millions of dollars have been appropriated for these programs in recent years, including for the types of defense management, military justice, civil military relations, and other courses that the Senator from Missouri and I support. The TNI is participating in the E-IMET program which Congress has funded at the level requested by the Bush administration. Our law also does not prevent military exercises and other contacts with the U.S. military through officer visits, educational exchanges, and port visits. Perhaps the most visible evidence of this is the U.S. military working side by side with the TNI during the ongoing humanitarian relief operations in Aceh. With respect to training, U.S. law restricts only the full restoration of regular IMET assistance until the Indonesian Government and the TNI ``are cooperating'' with the FBI's investigation into the August 31, 2002, murders of two American citizens and one Indonesian citizen. By ``cooperating,'' we obviously mean not simply cooperating in limited ways, but fully cooperating. I am concerned with reports that the TNI may have conspired with the shooters in that case, and that the one Papuan individual who has been indicted, who is not a member of the TNI, remains at large even though his whereabouts are reportedly known to the TNI. With respect to equipment, our law does not restrict the sale of non- lethal equipment to the TNI. Specifically, with regard to spare parts for the C-130's, there has been no change in U.S. law, although I am told that there may have been a relaxation of this administration's policy. Our law does not and never has prevented the sale of spare parts for these aircraft for humanitarian purposes. Over 4 years ago, when the TNI first requested to purchase C-130 spare parts for ``search and rescue'' missions, the U.S. Ambassador and I, as well as, I am told, the Secretary of Defense, informed the Indonesians that this was not prohibited by either U.S. law or policy and that they could purchase these parts from us. For reasons the Pentagon is aware of, the TNI decided to obtain them elsewhere. The only conditions on the sale of lethal equipment are that the Indonesian Government is prosecuting and punishing members of the TNI for gross violations of human rights, and that the TNI is (1) taking steps to counter international terrorism consistent with democratic principles and the rule of law; (2) cooperating with civilian judicial authorities and with international efforts to resolve cases of gross violations of human rights; and (3) implementing financial reforms to deter corruption. There are good reasons for these limited conditions. The United States has provided hundreds of millions of dollars in training and equipment to the Indonesian military since the 1950s. Despite the close relationship that developed between the U.S. military and the TNI over four decades, the TNI acquired a reputation for being notoriously abusive and corrupt. After the TNI murdered some 200 civilians in a cemetery in Dili, East Timor in 1992, our IMET assistance was cut off. Our relations with the TNI were further curtailed in 1999, after the independence referendum in East Timor when the TNI orchestrated widespread killings and the destruction of property. Although senior TNI officers have repeatedly vowed to support reform, they have done next to nothing to hold their members accountable for these heinous crimes. Instead, the TNI has consistently obstructed justice. I should note that these conditions do not apply to the Indonesian navy. Congress specifically exempted the navy because enhancing maritime security is a critical priority. There are also credible reports that after 9/11, the TNI provided support to radical Indonesian groups that have been involved in terrorism. Since 1999, restrictions on our relations with the TNI have been narrowed, and today, as I mentioned, we have a wide range of military- to-military activities. I am disappointed that some Pentagon officials and my friend from Missouri, rather than acknowledging the extent of the United States- Indonesia military relationship and urging the TNI to demonstrate that it is serious about reform by meeting these reasonable conditions, have expressed support for weakening our law. Indonesia's new President Yudhoyono is a career military officer. He has a reputation as a reformer, and I wish him well. I have always supported substantial economic assistance to Indonesia. In fact, Senator McConnell, the Chairman of the Foreign Operations Subcommittee, and I have worked to increase this assistance. Prior to President Yudhoyono's election, there were some important reforms which reduced the TNI's influence in politics. But a key gap remains regarding justice for the victims of atrocities, including crimes against humanity. This is the focus of our law, and it is as important to Indonesia and the TNI as it is for the United States. I believe that President Yudhoyono should agree and want the TNI to make these necessary reforms. I applaud the U.S. military and the TNI for working together to bring aid to tsunami victims in Aceh. But just as our policy should promote cooperation in humanitarian operations and in counterterrorism, so should it promote respect for human rights, accountability, and the rule of law. These are fundamental to the freedom and democracy that President Bush spoke of in his inaugural address. Our law, which was narrowly written to provide an incentive for reform while allowing military contacts to continue, strikes the right balance. Exhibit 1