Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I also support the nomination of Jane J. Boyle. Mr. President, Ms. Boyle is currently the United States Attorney for this district. She comes to the Senate with extensive litigation and judicial experience. Before serving as the Northern District's U.S. Attorney, Ms. Boyle served for over a decade as a United States Magistrate and she served for years as a Federal and city prosecutor. I support Ms. Boyle's nomination. With the three judicial confirmation votes today, the Senate will now have confirmed 20 judicial nominees this year alone. Only 17 judges were confirmed under Republican leadership in the entire 1996 session and no circuit court nominees were confirmed that entire time. That was the last year in which a President was seeking reelection. The Senate has now exceeded the number of total judges confirmed and the number of circuit court judges confirmed. With these three confirmations today, the Senate will have confirmed a total of 89 judges this Congress and 189 of this President's judicial nominees overall. With 89 judicial confirmations in just a little more than 17 months, the Senate has confirmed more Federal judges than were confirmed during the two full years of 1995 and 1996, when Republicans first controlled the Senate and President Clinton was in the White House. It also exceeds the two-year total at the end of the Clinton administration, when Republicans held the Senate majority in 1999 and 2000. It is not quite as many as the 100 judges nominated by President Bush that a Democratic-led Senate confirmed in our 17 months in the majority in 2001 and 2002. With 189 total confirmations for President Bush, the Senate has confirmed more lifetime appointees for this President than were allowed to be confirmed in the most recent four-year presidential term that of President Clinton from 1997 through 2000. It is more than a Republican majority confirmed in President Reagan's entire term from 1981 through 1984. Of course, President Reagan is recognized as the all-time champ in terms of judicial appointments having appointed more than any other President in our history. I congratulate Ms. Boyle on her confirmation.

Mr. LEAHY. Mr. President, I ask for the yeas and nays on the nomination.

Mr. LEAHY

Mr. LEAHY. Mr. President, today the Senate considers the nomination of James Robart, to be a United States District Judge for the Western District of Washington. He is a graduate of Whitman College and the Georgetown University Law Center. Mr. Robart is currently managing partner at the law firm of Lane Powell Spears Lubersky, LLP, a firm he has worked at for over 30 years. He has handled complex commercial litigation matters including class actions, securities, and employment cases, and has also been involved in counseling clients in the areas of antitrust compliance, employment law, and intellectual property. Mr. Robart's nomination is the product of a bipartisan judicial nominating commission maintained with the White House by Senators Murray and Cantwell. The State of Washington is well-served by its bipartisan judicial nominating commission which recommends qualified, moderate nominees on whom members of both parties can agree. It is difficult to understand why President Bush has opposed similar bipartisan selections commissions and why this one was so hard to establish. They allow Republicans and Democrats to work together to staff an independent judiciary. I thank Senators Murray and Cantwell for their steadfast efforts in maintaining the commission. The Senate just recently confirmed another well-qualified nominee to the District Court for the Western District of Washington, Judge Martinez, and, with today's vote, the Senate will have confirmed four nominees--all the product of the bipartisan commission--to the district courts in Washington. With this confirmation, there will be no further vacancies in the district courts in Washington. I would note that, in proceeding to a vote on Mr. Robart, the Republican leadership has again decided to depart from the order of the Executive Calendar and to skip over the nomination of a non- controversial and well-qualified Hispanic nominee to the U.S. District Court for the Eastern District in Pennsylvania, Juan Ramon Sanchez. That is their choice. I do not want to see the Democrats blamed for any delay in confirmation votes for Hispanics when Republicans have controlled the agenda. With this confirmation we will have confirmed more judges this year than in all of the 1996 session, the last time a President was seeking reelection. With this confirmation and two more today, the Senate will have confirmed a total of 89 judges this Congress and 189 of this President's judicial nominees overall. With 89 judicial confirmations in just a little more than 17 months, the Senate has confirmed more Federal judges than were confirmed during the two full years of 1995 and 1996, when Republicans first controlled the Senate and President Clinton was in the White House. It also exceeds the 2-year total at the end of the Clinton administration, when Republicans held the Senate majority in 1999 and 2000. With 189 total confirmations for President Bush, the Senate has confirmed more lifetime appointees for this President than were allowed to be confirmed in President Clinton's entire second term, the most recent four-year presidential term and more than were confirmed in President Reagan's term from 1981 through 1984. Of course President Reagan is acknowledged as the all-time champ for having appointed more federal judges than any other President in history. I congratulate Mr. Robart and his family on his confirmation.

Mr. LEAHY

Mr. LEAHY. Mr. President, today the Senate considers the nomination of Roger Benitez to the Southern District of California. Judge Benitez is being considered for the last of 5 new seats in the Southern District of California that were created by statute on November 2, 2002, as part of a package of judgeships created for border districts that have a massive caseload and that needed more Federal judges. I worked hard with Senator Feinstein to help create these new positions under Democratic Senate leadership. By doing so, we did what the Republican majority refused to do in the years 1995 through 2000 when there was a Democratic President. We did so under Senate Democratic leadership knowing that the appointments would be made by a Republican. Unlike many other nominees who have come before this Committee, Roger Benitez comes before us with judicial qualifications, having had experience serving as a judge both in State and Federal courts. He served for 4 years as a California Superior Court Judge for Imperial County and 3 years as a U.S. Magistrate Judge for the Southern District for California. However, like many nominees of this President, concerns have been raised about this nominee's fitness to serve. Judge Benitez is one of 28 of President Bush's nominees who have received a partial or majority rating of ``Not Qualified'' from the ABA Committee that conducts a peer evaluation of judicial nominees. Of those, 18 have already been confirmed and another has been recess appointed. Before President Bush ejected the ABA from the process of providing an informal rating prior to a nomination, temperament or ethics concerns would have been raised at the early stage of a nominee's consideration and in time for the White House to make a decision whether to proceed with that nominee, with knowledge of such determinations and the opportunity to conduct follow-up inquiry. The change in the role of the ABA has led to ABA ratings being less helpful. In Judge Benitez's case, based on interviews with 23 judges and 44 attorneys, more than 10 members of the ABA committee concluded that, based on his temperament, he is not qualified to serve a lifetime appointment on the Federal bench. Despite these concerns, Judge Benitez is supported by both of his home-State Senators and is the product of the bipartisan commission that Senators Feinstein and Boxer have worked so hard to maintain. I will honor their support of this nominee and support him, as well. With this confirmation, the Senate will have confirmed 14 nominees to the district courts in California. Judge Benitez is the 17th Latino confirmed to the Federal courts in the past three years. With the exception of Mr. Estrada, who failed to answer many questions and provide the Senate with his writings and views, we have pressed forward to confirm all of the other Latinos whose nominations have been reported to the floor. Democrats will now have supported the swift confirmation of 17 of President Bush's 21 Latino nominees. Unfortunately, Republicans have been delaying Senate consideration of a number of Hispanic nominees and passed over several of the numbers would be even better. While President Clinton nominated 11 Latino nominees to Circuit Court positions, 3 of those 11 were blocked by the Republican Senate and never given a vote. President Bush has only nominated 4 Latino nominees to Circuit Court positions, three of whom have been confirmed with Democratic support. President Bush's 21 Latino nominees constitute less than 10 percent of his nominees, even though Latinos make up a larger percentage of the U.S. population. It is revealing that this President has nominated more people associated with the Federalist Society than Hispanics, African Americans and Asian Pacific Americans, combined. While President Clinton cared deeply about diversity on the Federal bench, this President is more interested in narrow and slanted judicial ideology. I congratulate Judge Benitez and his family on his confirmation.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Senator from Illinois raises the exact right point. You read these accounts in the press. I referred to the e- mail traffic which has just come out about a multibillion-dollar noncompetitive contract given to Halliburton after they had sent e- mails saying it was being cleared by the Vice President's office or it was OK with the Vice President's office, and there are the things you have talked about, the obvious things about war profiteering. Now, had the other body left the amendment in, the amendment that was part of the appropriations bill that we passed overwhelmingly--I think 87 to 12 here in the Senate--had they left that in the final bill, had they stood up to the White House and not allowed them to convince them to strip it out, then the kinds of actions the Senator from Illinois is talking about would be prosecutable. I would suggest they probably never would have happened. The taxpayers would have saved those millions upon millions of dollars because somebody would have told them back at corporate headquarters: Hey, guys, you can go to jail if you do this. It is not just the case that if you get caught, you might have to pay the money back, but you can go to jail if you do this. And that would stop it. Now, if we pass this today, it still has to be signed into law, and it would be prospective. Unfortunately, because the other body basically gave in to the importunings of the White House and took out the amendment, the war profiteering amendment which had been part of the bill that every one of us on this floor voted for, we cannot do anything about that. Had that been put into law, as it should have been, I suspect the activities that the Senator from Illinois has talked about would not have occurred because whoever is on the ground is going to call back and say: Hey, guys, it might sound good to you back home there, but I am not going to go to jail. I am not going to go to jail just to raise a little more money. I am not going to go to jail just because you say if you get caught you may have to pay it back, and it wouldn't happen. What I am saying is this: When companies, especially some companies that have been accused of this, will spend more money in a few days here in Washington running ads to convince 535 Members of Congress how wonderful they are than they could possibly pay in fines, they do not care. You could leave whatever laws are on the books now. You could leave the possibility of paying it back. Because what happens? If you are a company and you go ahead and profiteer, you do war profiteering, you overcharge, you do whatever these other things are, and you do it 10 times, and you get caught 3 times, and they say: You are going to pay back those millions you overcharged--you say: Gosh, almighty, you got me. Gee, I'm sorry. Gee whiz. Here it is. And you tell your bookkeepers: They didn't find the other 7. We are ahead of the game. On the other hand, if you do it 10 times, and you get caught on 3 of them, and suddenly people start going to jail, these other companies are going to say: Wait a minute, no-bid contracts or not, I am not going to take the chance. If we want to stand up for the American taxpayers, if we want to say we are tough on crime, let's say criminals go to jail. That is all there is. Let's try this law. Let's see. Maybe if this is on the books people will stop profiteering. What drives me up the wall is we have 140,000 very brave men and women--American men and women--over there under arms who are trying to do their best and getting shot at every day. I was at a funeral in Vermont this week for one of them, as I have been on several other occasions. They are putting their lives on the line. They are getting paid what a corporal or a sergeant gets paid, and they should not have to be putting up with companies back here making obscene profits on what they do. They put their lives on the line. What I am saying is, some of the people who are making these obscene profits, they ought to at least go to jail. They ought to at least go to jail. I was thinking of that this week when I was at that funeral in Vermont. These are brave American men and women. I know every one of us here applauds their bravery. But I do not want to see companies, whether they are American companies or any other companies, making money on our sons and daughters who are over there putting their lives on the line. That is why I want this amendment. That is why we should have kept it in the bill before. Frankly, we ought to keep it in now. Now, I fully understand that the White House comes out here and says: We don't want to tamper with these people. We don't want to put the brakes on them. They can get the votes to knock down this amendment, but it is wrong. It is wrong. And I suggest that some of those who lobby against this kind of amendment go to some of these funerals--go to some of these funerals--and tell them we will protect the people who are profiteering. It is wrong. It is wrong. We ought to be protecting them.

Mr. LEAHY. Mr. President, if I might, obviously the statutes on the books have not stopped them from overcharging, have not stopped them from the kinds of things we have seen. Nobody wants to use the word ``Halliburton'' around here, but we constantly pick up the paper and read about a number of these companies. They are obviously overcharging, and nothing is happening to them. I am just one frustrated American who wants them to stop.

Mr. LEAHY. Mr. President, is it the position of my friend from Virginia that the kinds of things we have heard about--and he sees it more than I do as chairman of the Armed Services Committee--about the hundreds of millions of dollars being overcharged in meals, and hundreds of millions of dollars being overcharged on vehicles, housing, and construction. Any of those would be covered by his statute.

Mr. LEAHY. It was debated, of course, in committee. It was well noted here before all Senators. Nobody, either Republican or Democrat, made the normal motion to strike that was done when you have a part to which you object. The Senator from Virginia is right that this is slightly different. That one was just for Iraq. This includes Afghanistan and elsewhere and does not contain a sunset provision. I must admit that we are somewhat inclined to do that, especially after hearing of these e-mails that have just been made public. We are not talking about somebody who shows up and provides five dozen baseball caps to one of our military groups somewhere around the world. We are talking about people getting a billion dollars, with no-bid, no- competition contracts. I think we ought to at least be able to look at them and make sure they are spending our money correctly.

Mr. LEAHY. Mr. President, if I may respond without the Senator losing his right to the floor, he is relying on a statute--if I recall, without hearings; there was an amendment to the Sarbanes-Oxley bill a couple years ago on the floor. If we are talking about criminal statutes and changing them by whim, that is one that said no more debate on this. I am bringing up something that was debated rather thoroughly in the Appropriations Committee, including a bill the Senator from Virginia and I voted for last year.

Mr. LEAHY. My question to the distinguished senior Senator from Virginia probably reflects my confusion. He was concerned about the 20- year penalty to which this might subject some of these contractors. Obviously, thousands of contractors are not going to be subjected to that. It is only going to be the most grievous ones. He is proposing, if I am correct, a statute that would subject overseas contractors to a 30-year penalty. I thought I was a tough prosecutor. The Senator from Virginia complains about my 20-year penalty; he is proposing 30 years. I don't mean to get into a bidding war on penalties, but if my 20 years is too Draconian, 30 years sounds even more so.

Mr. LEAHY. Will the Senator yield for a question?

Mr. LEAHY. It has to be beyond a reasonable doubt. And I have prosecuted thousands of cases, tried hundreds of them as a prosecutor. I know that is one high hurdle.

Mr. LEAHY. It was not increased back in--if the Senator tells me the Sarbanes-Oxley Act was not amended on section 1001 at all, I will accept that.

Mr. LEAHY. If I might respond to that, they have. The Senator from Virginia asked whether they have done it in a criminal prosecution. No, this is not a criminal statute. They have done it in a civil case, and there is a huge amount of case law on this in civil cases. The only difference is, if the Senator is worried about the rights of contractors and others, in a criminal case, of course, you have to prove specific intent. In civil cases, you have to prove it with a preponderance of the evidence. Here you have to prove it beyond a reasonable doubt. But these are words of art: ``overvalues a good or service with specific intent to excessively profit from the war, military action. . . .'' Those are words of art. They have been interpreted by the courts. The difference, again, as I said, if you are doing it in a criminal case, as the Senator from Virginia well knows, you have to prove it beyond a reasonable doubt. ``Excessively profit'' is taken from the renegotiation act, which is, as I said, a civil act. The constitutionality of that was upheld; I believe it was in the Lichter case.

Mr. LEAHY. Mr. President, certainly, if the distinguished Senator from Virginia wishes to speak, I am not going to withhold the floor from him. He has accommodated me when I have wanted to speak. I yield the floor.

Mr. LEAHY. Mr. President, regaining my right to the floor, of course I am willing to offer the appropriate courtesy, very soon, to the Senator from Virginia. He is one of the most distinguished Members of this body, and, more importantly, he and I have been close friends for over a quarter of a century. I say to the Senator, I wonder if you might consider this: have a vote on your amendment, and have a vote on my amendment separately, and let the Senate work its will. The distinguished senior Senator from Virginia is going to be the Senate chairman in the committee of conference. It gives him that much more control. But why not let the U.S. Senate vote on each amendment separately and then see where it goes from there? I will say this very frankly. I think the reason nobody moved to strike my amendment out of the appropriations bill was that--I heard this from both sides--they said: OK, we understand this is not a bad amendment, and we don't want to be on record as saying we are against it. I think the reason both Republicans and Democrats in the Senate urged it upon the other body was for them. I think the obvious embarrassment by some, not all, but the obvious embarrassment by some who had to vote against it on the other side was they wished they had not. They wished they could have kept it in. So I would ask my dear friend from Virginia--and he is truly my dear friend--what do you think of that idea? Let's vote on both of them?

Mr. LEAHY. Whatever it was----

Mr. LEAHY. Mr. President, I yield without losing my right to the floor, of course.

Mr. LEAHY. Mr. President, as I understand it, there is no time agreement on the second-degree amendment; is that correct?

Mr. LEAHY. If the Senator would let me finish. The Harry Truman amendment was civil. This is criminal. Thus, this is more protective of a defendant because, as the distinguished Senators know, and certainly those who have been prosecutors know all too well, in a criminal case you have to prove beyond a reasonable doubt. A civil case can often be the preponderance of the evidence. This is more protective of both sides. But it holds the hammer of a criminal proposal. This has tough criminal penalties for individuals who defraud the American taxpayer. It provides a maximum criminal penalty of 20 years in prison and fines of up to $1 million. The reason we did criminal rather than civil, there was a time when if you proposed a $10 million fine back at the time of Harry Truman, that was a lot of money. We have had at least one company that has already had to pay back money on overcharging and profiteering. They spend more than that $10 million on a weekend running ads saying how good they are at feeding the troops. But if you are facing a criminal penalty and might go to the slammer, then you think about it. I will state why this is necessary. For example, if we wanted to use current law, which is basically what the second-degree amendment is, current law does not specifically outlaw war profiteering. My amendment, which the Senator from Illinois has spoken about, does specifically outlaw war profiteering. We wanted to go as a second- degree amendment. Current statute does not say that U.S. courts have explicit and uncategorical jurisdiction over fraud and profiteering in Iraq. My amendment does. If we tried to just take current law, where are we? My amendment eliminates unnecessary thresholds, for example, to prove mail and wire fraud, and the current statutes do not. And, of course, a 20-year felony. There really are no laws on the books that address war profiteering. There are laws on the books for murder, laws on the books for rape, laws on the books for armed robbery, but there is nothing that goes specifically into war profiteering. Frankly, what I want to do is not just to throw people in the slammer; I want to stop them from doing it in the first place. This is a real deterrent. If you have a prosecution that says you can go to jail, not just pay a fine, which is small change for some of these companies, but you might actually go to jail, somebody is going to say: Wait a minute. We can't triple charge for this. We can't triple charge for these hotels. We can't triple charge for these cars--and so on.

Mr. LEAHY. Mr. President, if I might, the Harry Truman proposal, course, was civil. This is a criminal law.

Mr. LEAHY. Mr. President, if I might retain my right to the floor, the senior Senator from Illinois is absolutely correct; I did. I offered it. We had a debate within the Appropriations Committee to accept it within the Appropriations Committee and it became part of the bill. My earlier statement may have left confusion, and I apologize. There was no intention of doing that. It was part of the appropriations bill and thus not voted on by the Senate although there was not a single amendment to strike that provision. There were various amendments, as the Senator may recall, that were proposed during the appropriations bill on the Senate floor, but no one moved to strike this. It passed 93-0. About the only difference in that bill, as I recall, was the amendment spoke only to Iraq. This includes other countries besides Iraq. Yes, we voted on it, we passed it, and then the Senate offered it as their position. Both Republicans and Democrats offered it as our position to the other body, which rejected it on a party-line vote at the request of the White House.

Mr. LEAHY. I yield, without losing my right to the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, 4 years ago, I worked with Senators Sessions and DeWine to pass the Military Extraterritorial Jurisdiction Act, MEJA, which established Federal jurisdiction over crimes committed by civilians employed by, or accompanying, our military overseas. The Sessions-Schumer amendment further extends the jurisdictional authority we created in MEJA by closing a possible jurisdictional gap that could allow persons who commit crimes while accompanying our military overseas to escape justice. I support this amendment, and am pleased that the Senate has adopted it today. In addition, I thank the sponsors for accepting my addition to their amendment, which closes a similar jurisdictional loophole in Federal law. Attorney General Ashcroft referred to this loophole last week, during his annual appearance before the Senate Judiciary Committee, while attempting to defend the Administration's position on torture. Interestingly, this loophole was created by legislative language that was proposed by the Department of Justice as a means of broadening, not shrinking, Federal criminal jurisdiction. This language, enacted as part of the USA PATRIOT Act, redefined the ``special maritime and territorial jurisdiction of the United States'' to include U.S. military bases and other U.S. Government properties in foreign States. The administration's summary of its proposal explained that it would ``extend'' Federal jurisdiction to ensure that crimes committed by or against U.S. nationals abroad on U.S. Government property did not go unpunished. Unfortunately, the administration drafters of this proposal neglected to mention to Congress how it would impact on the Federal anti-torture statute. That statute prohibits torture committed ``outside the United States'' by persons acting under color of law, and defines the term ``United States'' to include the ``special maritime and territorial jurisdiction of the United States.'' By extending the special maritime and territorial jurisdiction of the United States, the PATRIOT Act effectively narrowed the reach of the anti-torture statute. Post- PATRIOT Act, the anti-torture statute may not allow for the prosecution of an individual who commits torture on a U.S. military base outside the United States. My addition to the Sessions-Schumer amendment corrects this problem in a simple and straightforward way. It extends the anti-torture statute to apply, without exception, to acts committed outside the 50 States, the District of Columbia, and the commonwealths, territories, and possessions of the United States. It may be that we should go further. Arguably, the anti-torture statute should be extended to apply anywhere in the world--both inside and outside the United States. I would welcome the views of the Department of Justice on this question. In the meantime, there are other Federal statutes that prohibit violence or excessive force by those acting under color of law within our borders. Torture is one of the most serious crimes imaginable. I can think of no reason why the Federal Government should create safe havens for torturers anywhere in the world. To the contrary, we should use every means available to track them down and bring them to justice. The language that I have proposed, and that the Senate has accepted, will assist the Justice Department in doing just that.

Mr. LEAHY

Mr. LEAHY. Madam President, it is interesting, I think I heard one of the Republican campaign committees talking about Democrats treating the South unfairly on judges. Southern States comprise about 25 percent of the States, but 60 of the nominees, about one-third of the nominees, have come from the South. With my colleagues, I have moved to get virtually all of them through. Today we are asked to consider the nomination of William S. Duffey, Jr., to the Northern District of Georgia. The ABA found Mr. Duffey to be well-qualified to be a district court judge. He also has the support of both of his home State Senators. Mr. Duffey is currently serving as the United States Attorney for the Northern District of Georgia. Prior to this Presidential appointment, he was in private practice and served for a number of years under the Office of the Independent Counsel during the 1990s. In this capacity, Mr. Duffey had administrative and general oversight responsibility for investigative activities and staffing in Arkansas. I questioned Mr. Duffey about two speeches he gave about his involvement in the Whitewater investigation. For example, while serving as the United States Attorney in northern Georgia and using the seal of that office, Mr. Duffey recently gave a speech entitled ``Whitewater, White Powder and White Paper'' at a local university. Despite his use of pejorative editorial cartoons, Mr. Duffey claimed that this speech was really about the value of public service. I am somewhat reassured by Mr. Duffey's answers to my questions and hope that if he is confirmed, he will avoid appearances of impropriety and conduct himself in a manner beyond reproach. I would also note that some have falsely alleged that Democratic Senators have treated Southern nominees unfairly. That is simply untrue. The truth is that Democrats have treated judicial nominees from the South very fairly: Southern States comprise about 25 percent of the States in the Nation, yet out of the 184 judicial nominees of President Bush that we have confirmed as of this vote, 60 nominees, or about one- third, have been appointed to judicial seats in the South. With this vote there will be no vacancies in the entire State of Georgia. Senators on this side of the aisle worked to fill the last vacancy in Georgia. Judge C. Ashley Royal was confirmed December 20, 2001, under Democratic leadership to be United States District Judge for the Middle District of Georgia. It is very unfortunate that some extreme partisans have tried to divide the American people for political gain with their false accusations that Democratic Senators are anti this group or that group. Democrats have been fair to judicial nominees from all parts of the Nation. We have been far more fair to this President's judicial nominees than Republicans were to the last Democratic President's. Republican Senators blocked more than 60 of President Clinton's judicial nominees, including several southerners. I congratulate Mr. Duffey and his family on his confirmation today. Madam President, I ask for the yeas and nays.