Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today in support of Democratic Leader Daschle's request to bring before the Senate the Economic Recovery Act of 2003, S. 414, which includes legislation I introduced last month: the First Responders Partnership Grant Act of 2003. I thank the Democratic leader for authoring this important economic stimulus package. In seeking to improve homeland security, I am proud that he saw fit to include the First Responders Partnership Grant Act-- on which he, Democratic Whip Reid and Senator Breaux join me as cosponsors. This legislation will supply our Nation's first responders with the support they so desperately need to protect homeland security and prevent and respond to acts of terrorism. I want to begin by thanking each of our Nation's brave firefighters, emergency rescuers, law enforcement officers, and other first responder personnel for the jobs they do for the American public day in and day out. Our public safety officers are often the first to respond to any crime or emergency situation. On September 11, the Nation saw that the first on the scene at the World Trade Center were the heroic firefighters, police officers, and emergency personnel of New York City. These real-life heroes, many of whom gave the ultimate sacrifice, remind us of how important it is to support our State and local public safety partners. But while we ask our Nation's first responders to defend us as never before on the front lines against the dark menace of domestic terrorism, we have failed to supply them with the Federal support they need and deserve to protect us, as we expect and need them to protect us. Since February 7, 2003, the Federal Homeland Security Advisory System has kept State and local first responders on Orange Alert, a ``high'' condition indicating a high probability of a terrorist attack and when additional precautions by first responders are necessary at public events. Since then, counterterrorism officials have warned that the threat of terrorist attacks on U.S. soil is at a higher level than in previous months due to the possibility of impending military action against Iraq. This is the second time since September 11, 2001, that the national warning level has been at Orange Alert--from September 10 to September 24 last year, Attorney General Ashcroft declared our country at Orange Threat level. From March 12, 2002, until this month, we were at Yellow Alert, an ``elevated'' threat level declared when there is a significant risk of terrorist attacks, requiring increased surveillance of critical locations. Counties, cities, and towns in my home State of Vermont and across the United States find themselves overwhelmed by increasing homeland security costs required by the Federal Government. Indeed, the National Governors' Association estimates that States incurred around $7 billion in security costs over the past year alone. As a result, the national threat alerts and other Federal homeland security requirements have become unfunded Federal mandates on our State and local governments. Rutland County Sheriff R.J. Elrick, president of the Vermont Sheriffs' Association, recently wrote to me: We are in dire need of financial support to keep our personnel trained and equipped to meet the challenges here at home as we continue our vigilant commitment to fight terrorism. When terrorists strike, first responders are and will always be the first people we turn to for help. We place our lives and the lives of our families and friends in the hands of these officers, trusting that when called upon they will protect and save us. Just how, without supplying them with the necessary resources, do we expect our Nation's first responders to realistically carry out their duties? Our State and local law enforcement officers, firefighters and emergency personnel are full partners in preventing, investigating, and responding to terrorist acts. They need and deserve the full collaboration of the Federal Government to meet these new national responsibilities. Washington is buzzing about the literally hundreds of billions of additional dollars the President plans to ask Congress to provide for our military services to fight the war on terrorism abroad. The same cannot be said for helping security here at home, which is shamefully overlooked. For a year and a half I have been working hard to remedy that, with allies like our distinguished Democratic leader and assistant Democratic leader, and New York Senators Schumer and Clinton. As former chair and now ranking member of the Judiciary Committee, I have made it a high priority to evaluate and meet the needs of our first responders. For these reasons, I commend the Democratic leader for including in the homeland security section of his economic stimulus package the First Responders Partnership Grant Act, which will give our Nation's law enforcement officers, firefighters, and emergency personnel the resources they need to do their jobs. This legislation will establish a grant program at the Department of Homeland Security to provide $5 billion nationwide for current fiscal year to support State and local public safety officers in their efforts to protect homeland security and prevent and respond to acts of terrorism. Similar to the highly successful Department of Justice Community Oriented Policing Services--COPS--and the Bulletproof Vest Partnership Grant Programs, the First Responder Grants will be made directly to State and local government units for overtime, equipment, training, and facility expenses to support our law enforcement officers, firefighters, and emergency personnel. The First Responder Grants may be used to pay up to 90 percent of the cost of the overtime, equipment, training, or facility. In cases of fiscal leadership, the Department of Homeland Security may waive the local match requirement of 10 percent to provide Federal funds for communities that cannot afford the local match. In a world shaped by the violent events of September 11, day after day we call upon our public safety officers to remain vigilant. We not only ask them to put their lives at risk in the line of duty, but also, if need be, give their lives to protect us. If we take time to listen to our Nation's State and local public safety partners, they will tell us that they welcome the challenge to join in our national mission to protect our homeland security. But we cannot ask our firefighters, emergency personnel, and law enforcement officers to assume these new national responsibilities without also providing new Federal support. The First Responders Partnership Grant Act will provide the necessary Federal support for our State and public safety officers to serve as full partners in the fight to protect our homeland security. We need our first responders for the security and the life-saving help they bring to our communities. All they ask is for the tools they need to do their jobs for us. And for the sake of our own security, that is not too much to ask. I commend Senator Daschle for his leadership, and hope that the Senate will soon consider this desperately needed economic stimulus package.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today, joined by my good friends, Senators Grassley and Specter, to introduce the Domestic Surveillance Oversight Act of 2003. This bill does not change or diminish any power available to the government in the pursuit of homeland security, but it does create important mechanisms to allow the Congress and the public to assess how effectively and appropriately the government is using its domestic surveillance powers. I also rise to speak about an important bipartisan report being released today by myself, Senator Specter, and Senator Grassley entitled ``FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures,'' ``FIF Report''. The report summarizes our joint conclusions based upon our bipartisan oversight of the FBI and DOJ's performance in using the Foreign Intelligence Surveillance Act, ``FISA'', an important tool in conducting domestic surveillance. The report distills our mutual findings and conclusions from numerous bipartisan hearings, classified briefings and other oversight activities. It concludes that the FBI continues to be in need of serious reform. The report also sets forth our bipartisan disappointment with the DOJ and FBI's non-responsiveness to our oversight efforts and the resulting necessity for better oversight tools, such as the bill we introduce today. Our committee worked with the FBI and the Justice Department to achieve initial reforms both through administrative steps and also through legislation. Most notably, last fall we enacted a new Department of Justice charter that included some provisions of the FBI Reform Act. We need to enact the rest of that bipartisan bill. Taken together, this bill and report represent a bipartisan statement about the importance of oversight and, where possible, sunshine on the government's domestic surveillance efforts. Only by fulfilling our constitutional responsibility to conduct such oversight, can we in Congress help to protect both the security and the liberty of the American people. In times of national stress there is an understandable impulse for the government to ask for more power. Sometimes more power is needed, but many times it is not. After the September 11 attacks, we worked together in a bipartisan fashion and with unprecedented speed to craft and enact the USA PATRIOT Act which enhanced the government's powers. Now, as word continues to circulate about a possible sequel to the USA PATRIOT Act that the Department of Justice is considering in secret and that supposedly would give government even more power, it is constructive for us to first examine and understand how Federal agencies are using the power they already have. We must answer two questions. First, is that power being used effectively, so that our citizens not only feel safer, but are in fact safer? Second, is that power being used appropriately, so that our liberties are not sacrificed? In short, before we can craft and enact new laws, we must first make sure that the Department of Justice and FBI are properly using the laws that are already on the books. That is the purpose of enhanced Congressional oversight. Domestic Surveillance Oversight Act: Today, with the Senior Senator from Iowa and the Senior Senator from Pennsylvania, I am introducing the bipartisan Domestic Surveillance Oversight Act of 2003. This bill provides basic information to Congress and the American people about the FBI's use of FISA to conduct surveillance on Americans. Such domestic surveillance is certainly appropriate in some cases, and the bill does not intrude in any way upon law enforcement or diminish its ability to conduct FISA surveillance when necessary and appropriate. Nor does it require the Department of Justice to publicly release any sensitive or classified information. Rather, it seeks reporting only on the aggregate number of FISA wiretaps and other surveillance measures directed specifically against Americans each year. In this way, the public and Congress can assess over time whether the government has turned more of its powerful surveillance techniques on its own citizens, as opposed to non-U.S. persons. If necessary, we can ask it to explain its actions. The amendment also clarifies that the Foreign Intelligence Surveillance Court, FISC, and FISA Court of Review have the authority to adopt rules and procedures, and it requires that those rules be shared with the Intelligence and Judiciary Committees of the Senate and House of Representatives as well as the Supreme Court. In the last year, and only after requests from Senators Grassley, Specter and myself, the FISC shared its rules with Congress for the first time. One of those rules and one which was eventually rejected by the FISA Review Court embodied a controversial legal interpretation of a provision we crafted in the USA PATRIOT Act. The Congress ought to have been immediately informed of that court rule either by the FISC or the DOJ, but it was not. It is entirely appropriate that a court be enabled to promulgate its own rules. It is entirely inappropriate that those rules be kept secret from Congress. Consistent with national security, the bill directs the Attorney General to include in an annual public report the portions of applications to and opinions of the FISC and FISA Court of Review that contain significant legal interpretations of FISA or the Constitution. These disclosures will not include the facts of any particular case, which this provision requires to be redacted in order to preserve national security. This type of disclosure, however, will prevent secret case law from developing which interprets both FISA and the Constitution in ways unknown to the Congress and the public. The first annual report required under this provision is also to include the same type of legal information for the four years before the year of the first report. Finally, the bill would require a report to appropriate committees of Congress on the use of National Security Letters to request information from public libraries or libraries affiliated with high schools or universities. Such letters are functionally equivalent to an administrative subpoena and require no court approval. We have heard from members of the library community that the FBI may be returning to a discredited practice from the Hoover days of monitoring public and college libraries to ascertain what books people are reading. In fact, a media report from Vermont, which I ask consent to place in the Record, indicates that bookstore owners there are scared to keep records for just this reason. Again, this provision would not in any way limit the use of National Security Letters, but would merely require an annual report of such activities to Congress, so that we can ascertain whether or not these administrative subpoenas are being used for improper purposes. This section would also ensure that reports on the use of such letters are provided to all appropriate oversight committees. This enhanced reporting is exactly what was called for by the American Bar Association in a resolution adopted on February 10, and echoed in a Washington Post editorial on February 12, 2003. As the Post editorialized, the Department of Justice ``needs to disclose how it is using the [powers] it already has. Yet the Justice Department has balked at reasonable oversight and public information requests . . . Congress should insist on a full understanding of what the [D]epartment is doing.'' I ask unanimous consent to print a copy both of the ABA resolution as well as the Washington Post editorial in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today, joined by my good friends, Senators Grassley and Specter, to introduce the Domestic Surveillance Oversight Act of 2003. This bill does not change or diminish any power available to the government in the pursuit of homeland security, but it does create important mechanisms to allow the Congress and the public to assess how effectively and appropriately the government is using its domestic surveillance powers. I also rise to speak about an important bipartisan report being released today by myself, Senator Specter, and Senator Grassley entitled ``FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures,'' ``FIF Report''. The report summarizes our joint conclusions based upon our bipartisan oversight of the FBI and DOJ's performance in using the Foreign Intelligence Surveillance Act, ``FISA'', an important tool in conducting domestic surveillance. The report distills our mutual findings and conclusions from numerous bipartisan hearings, classified briefings and other oversight activities. It concludes that the FBI continues to be in need of serious reform. The report also sets forth our bipartisan disappointment with the DOJ and FBI's non-responsiveness to our oversight efforts and the resulting necessity for better oversight tools, such as the bill we introduce today. Our committee worked with the FBI and the Justice Department to achieve initial reforms both through administrative steps and also through legislation. Most notably, last fall we enacted a new Department of Justice charter that included some provisions of the FBI Reform Act. We need to enact the rest of that bipartisan bill. Taken together, this bill and report represent a bipartisan statement about the importance of oversight and, where possible, sunshine on the government's domestic surveillance efforts. Only by fulfilling our constitutional responsibility to conduct such oversight, can we in Congress help to protect both the security and the liberty of the American people. In times of national stress there is an understandable impulse for the government to ask for more power. Sometimes more power is needed, but many times it is not. After the September 11 attacks, we worked together in a bipartisan fashion and with unprecedented speed to craft and enact the USA PATRIOT Act which enhanced the government's powers. Now, as word continues to circulate about a possible sequel to the USA PATRIOT Act that the Department of Justice is considering in secret and that supposedly would give government even more power, it is constructive for us to first examine and understand how Federal agencies are using the power they already have. We must answer two questions. First, is that power being used effectively, so that our citizens not only feel safer, but are in fact safer? Second, is that power being used appropriately, so that our liberties are not sacrificed? In short, before we can craft and enact new laws, we must first make sure that the Department of Justice and FBI are properly using the laws that are already on the books. That is the purpose of enhanced Congressional oversight. Domestic Surveillance Oversight Act: Today, with the Senior Senator from Iowa and the Senior Senator from Pennsylvania, I am introducing the bipartisan Domestic Surveillance Oversight Act of 2003. This bill provides basic information to Congress and the American people about the FBI's use of FISA to conduct surveillance on Americans. Such domestic surveillance is certainly appropriate in some cases, and the bill does not intrude in any way upon law enforcement or diminish its ability to conduct FISA surveillance when necessary and appropriate. Nor does it require the Department of Justice to publicly release any sensitive or classified information. Rather, it seeks reporting only on the aggregate number of FISA wiretaps and other surveillance measures directed specifically against Americans each year. In this way, the public and Congress can assess over time whether the government has turned more of its powerful surveillance techniques on its own citizens, as opposed to non-U.S. persons. If necessary, we can ask it to explain its actions. The amendment also clarifies that the Foreign Intelligence Surveillance Court, FISC, and FISA Court of Review have the authority to adopt rules and procedures, and it requires that those rules be shared with the Intelligence and Judiciary Committees of the Senate and House of Representatives as well as the Supreme Court. In the last year, and only after requests from Senators Grassley, Specter and myself, the FISC shared its rules with Congress for the first time. One of those rules and one which was eventually rejected by the FISA Review Court embodied a controversial legal interpretation of a provision we crafted in the USA PATRIOT Act. The Congress ought to have been immediately informed of that court rule either by the FISC or the DOJ, but it was not. It is entirely appropriate that a court be enabled to promulgate its own rules. It is entirely inappropriate that those rules be kept secret from Congress. Consistent with national security, the bill directs the Attorney General to include in an annual public report the portions of applications to and opinions of the FISC and FISA Court of Review that contain significant legal interpretations of FISA or the Constitution. These disclosures will not include the facts of any particular case, which this provision requires to be redacted in order to preserve national security. This type of disclosure, however, will prevent secret case law from developing which interprets both FISA and the Constitution in ways unknown to the Congress and the public. The first annual report required under this provision is also to include the same type of legal information for the four years before the year of the first report. Finally, the bill would require a report to appropriate committees of Congress on the use of National Security Letters to request information from public libraries or libraries affiliated with high schools or universities. Such letters are functionally equivalent to an administrative subpoena and require no court approval. We have heard from members of the library community that the FBI may be returning to a discredited practice from the Hoover days of monitoring public and college libraries to ascertain what books people are reading. In fact, a media report from Vermont, which I ask consent to place in the Record, indicates that bookstore owners there are scared to keep records for just this reason. Again, this provision would not in any way limit the use of National Security Letters, but would merely require an annual report of such activities to Congress, so that we can ascertain whether or not these administrative subpoenas are being used for improper purposes. This section would also ensure that reports on the use of such letters are provided to all appropriate oversight committees. This enhanced reporting is exactly what was called for by the American Bar Association in a resolution adopted on February 10, and echoed in a Washington Post editorial on February 12, 2003. As the Post editorialized, the Department of Justice ``needs to disclose how it is using the [powers] it already has. Yet the Justice Department has balked at reasonable oversight and public information requests . . . Congress should insist on a full understanding of what the [D]epartment is doing.'' I ask unanimous consent to print a copy both of the ABA resolution as well as the Washington Post editorial in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask how much time is remaining to the Senator from Vermont and how much time to the Senator from Utah.

Mr. LEAHY. Mr. President, how much time remains for the Senator from Vermont or his designees?

Mr. LEAHY. Were I to yield back my time, we would still be in a situation where it would occur prior to 5:30, unless we were in a quorum call; is that correct?

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

Mr. LEAHY. Mr. President, I see the distinguished senior Senator from Utah, the chairman of our committee, in the Chamber. As I said earlier, I would certainly yield once he arrived. I commend him for his cosponsorship of this bill. I yield the floor, reserving the remainder of my time.

Mr. LEAHY. The distinguished senior Senator from Utah is on his way back from another engagement. I will begin. I join with Senator Hatch, the Chairman of the Judiciary Committee, in urging passage of S. 151, the Hatch-Leahy PROTECT Act, a bill providing important new tools to fight child pornography. I commend Senator Hatch for his leadership and his unflagging efforts to protect our nation's children from exploitation by child pornographers. When Senator Hatch and I introduced this bill last month, I supported passing a bill that was identical to the measure that we worked so hard on in the last Congress. That bill had passed the Judiciary Committee and the Senate unanimously in the 107th Congress. It did not become law last year because, even though the Senate was still meeting, considering and passing legislation, the House of Representatives had adjourned and would not return to take action on this measure that had passed the Senate unanimously or to work out our differences. As I said when we introduced the Hatch-Leahy PROTECT Act and again as the Judiciary Committee considered this measure, although this bill is not perfect, it is a good faith effort to provide powerful tools for prosecutors to deal with the problem of child pornography within constitutional limits. We failed to do that in the 1996 Child Pornography Prevention Act--``CPPA'', much of which the Supreme Court struck down last year. We must not make the same mistake again. The last thing we want to do is to create years of legal limbo for our nation's children, after which the courts strike down yet another law as unconstitutional. I also said at our Judiciary Committee meeting that I hoped we could pass the bill in the same form as it unanimously passed in the last Congress. That is still my position and I believe it would have been wiser to proceed in that manner. Since my colleagues on the other side of the aisle and the Administration have jointly decided not to follow this route, however, I have nevertheless continued to work with Senator Hatch to craft the strongest bill possible that will produce convictions that will stick under the constitution. I urge the Senate to pass this legislation, and I strongly urge the Republican leadership in the House of Representatives to take this second opportunity to pass this important legislation in the form that we send to them. I urge the Administration to support this bipartisan measure, instead of using this debate as an opportunity to add more changes that strive to make an ideological statement, but which may not withstand Constitutional scrutiny and may bog down the bill. If we act in a bipartisan manner, we can have a bill to the President that can begin working for America's children in short order. I want to take a moment to speak again about the history of this important bill and the joint effort that it took to get to this point. In May of 2002, I came to the Senate floor and joined Senator Hatch in introducing the PROTECT Act, after the Supreme Court's decision in Ashcroft v. Free Speech Coalition ``Free Speech''. Although there were some others who raised constitutional concerns about specific provisions in that bill, I believed that unlike legislative language proposed by the Administration in the last Congress, it was a good faith effort to work within the First Amendment. Everyone in the Senate agrees that we should do all we can to protect our children from being victimized by child pornography. That would be an easy debate and vote. The more difficult thing is to write a law that will both do that and will produce convictions that stick. In 1996, when we passed the CPPA many warned us that certain provisions of that Act violated the First Amendment. The Supreme Court's decision last year in Free Speech has proven them correct. We should not sit by and do nothing. It is important that we respond to the Supreme Court's decision. It is just as important, however, that we avoid repeating our past mistakes. Unlike the CPPA, this time we should respond with a law that passes constitutional muster. Our children deserve more than a press conference on this issue. They deserve a law that will last rather than be stricken from the law books. It is important that we do all we can to end the victimization of real children by child pornographers, but it is also important that we pass a law that will withstand First Amendment scrutiny. We need a law with real bite, not one with false teeth. After joining Senator Hatch in introducing the PROTECT Act in the 107th Congress, as chairman of the Judiciary Committee in the last Congress, I convened a hearing on October 2, 2002 on the legislation. We heard from the Administration, from the National Center for Missing and Exploited Children--``NCMEC'', and from experts who came and told us that our bill, as introduced, would pass constitutional muster, but the House-passed bill supported by the Administration would not. I then placed the Hatch-Leahy PROTECT Act on the Judiciary Committee's calendar for the October 8, 2002, business meeting. I continued to work with Senator Hatch to improve the bill so that it could be quickly enacted. Unfortunately the Judiciary Committee was unable to consider it because of procedural maneuvering by my colleagues that had nothing to do with this important legislation. I still wanted to get this bill done. That is why, for a full week in October, I worked to clear and have the full Senate pass a substitute to the bill that tracked the Hatch-Leahy proposed committee substitute in nearly every area. Indeed, the substitute I offered even adopted parts of the House bill which would help the NCMEC work with local and state law enforcement on these cases. Twice, I spoke on the Senate floor imploring that we approve such legislation. As I stated then, every single Democratic Senator cleared that measure. I then urged Republicans to work on their side of the aisle to clear this measure-- so similar to the joint Hatch-Leahy substitute--so that we could swiftly enact a law that would pass constitutional muster. Unfortunately, they did not. Facing the recess before the mid-term elections, we were stymied again. Even after the last election, however, during our lame duck session, I continued to work with Senator Hatch to pass this legislation through the Senate. As I had stated I would do prior to the election, I called a meeting of the Judiciary Committee on November 14, 2002. In the last meeting of the Judiciary Committee under my Chairmanship in the 107th Congress, I placed S. 2520, the Hatch-Leahy PROTECT Act, on the agenda yet again. At that meeting the Judiciary Committee amended and approved this legislation. We agreed on a substitute and to improvements in the victim shield provision that I authored. Although I did not agree with certain of Senator Hatch's amendments, because I thought that they risked having the bill declared unconstitutional, I nevertheless both called for the Committee to approve the bill and voted for the bill in its amended form. That is the legislative process. I compromised on some issues, and Senator Hatch compromised on others. Even though the bill was not exactly as either of us would have wished, we both worked fervently to seek its passage. I sought, the same day as the bill unanimously passed the Judiciary Committee, to gain the unanimous consent of the full Senate to pass the Hatch-Leahy PROTECT Act as reported, and I worked with Senator Hatch to clear the bill on both sides of the aisle. I am pleased that the Senate did pass the bill by unanimous consent. I want to thank Senator Hatch for all he did to help clear the bill for passage in the 107th Congress. Unfortunately, the House failed to act on this measure last year and the Administration decided not to push for passage. If they had, we could have passed a bill, sent it to the President, and already had a new law on the books. Instead, we were forced to repeat the entire process again, and I am here again with Senator Hatch asking yet again that this bill be enacted. I am glad to have been able to work hand-in-hand with Senator Hatch on the PROTECT Act because, it is a bill that gives prosecutors and investigators the tools they need to combat child pornography. The Hatch-Leahy PROTECT Act strives to be a serious response to a serious problem. Let me outline some of the bill's important provisions: Section 3 of the bill creates two new crimes aimed at people who distribute child pornography and those who use such material to entice children to do illegal acts. Each of these new crimes carries a 15 year maximum prison sentence for a first offense and double that term for repeat offenders. First, the bill criminalizes the pandering of child pornography, creating a new crime to respond to the Supreme Court's recent ruling striking down the CPPA's definition of pandering. This provision is narrower than the old ``pandering'' definition in at least one way that responds to a specific Court criticism. The new crime only applies to the people who actually pander the child pornography or solicit it, not to all those who possess the material ``downstream'' and it requires the government to demonstrate that the defendant acted with the specific intent that the material is believed to be child pornography. The bill also contains a directive to the Sentencing Commission which asks it to distinguish between those who pander or distribute such material and those who only ``solicit'' the material. As with narcotics cases, distributors and producers are more culpable than users and should be more harshly punished for maximum deterrent effect. I would have liked for the pandering provision to be crafted more narrowly so that ``purported'' material was not included and so that all pandering prosecutions would be linked to ``obscenity'' doctrine. That is the way that Senator Hatch and I originally wrote and introduced this provision in the last Congress. Unfortunately, the amendment process has resulted in some expansions to this once non- controversial provision that may subject it to a constitutional challenge. Thus, while it responds to some specific concerns raised by the Supreme Court there are constitutional issues that the courts will have to seriously consider with respect to this provision. I will discuss these issues later. Second, the bill creates a new crime that I proposed to take direct aim at one of the chief evils of child pornography: namely, its use by sexual predators to entice minors either to engage in sexual activity or the production of more child pornography. This was one of the compelling arguments made by the government before the Supreme Court in support of the CPPA, but the Court rejected that argument as an insufficient basis to ban the production, distribution or possession of ``virtual'' child pornography. This bill addresses that same harm in a more targeted and narrowly tailored manner. It creates a new felony, which applies to both actual and virtual child pornography, for people who use such material to entice minors to participate in illegal activity. This will provide prosecutors a potent new tool to put away those who prey upon children using such pornography B whether the child pornography is virtual or not. Next, this bill attempts to revamp the existing affirmative defense in child pornography cases both in response to criticisms of the Supreme Court and so that the defense does not erect unfair hurdles to the prosecution of cases involving real children. Responding directly to criticisms of the Court, the new affirmative defense applies equally to those who are charged with possessing child pornography and to those who actually produce it, a change from current law. It also allows, again responding to specific Supreme Court criticisms, for a defense that no actual children were used in the production of the child pornography--i.e. that it was made using computers. At the same time, this provision protects prosecutors from unfair surprise in the use of this affirmative defense by requiring that a defendant give advance notice of his intent to assert it, just as defendants are currently required to give if they plan to assert an alibi or insanity defense. As a former prosecutor I suggested this provision because it effects the real way that these important trials are conducted. With the provision, the government will have sufficient notice to marshal the expert testimony that may be needed to rebut this ``virtual porn'' defense in cases where real children were victimized. This improved affirmative defense measure also provides important support for the constitutionality of much of this bill after the Free Speech decision. Even Justice Thomas specifically wrote that it would be a key factor for him. This is one reason for making the defense applicable to all non-obscene, child pornography, as defined in 18 U.S.C. Sec. 2256. In the bill's current form, however, the affirmative defense is not available in one of the new proposed classes of virtual child pornography, which would be found at 18 U.S.C. Sec. 2252B(b)(2). This omission may render that provision unconstitutional under the First Amendment, and I hope that, as the legislative process continues, we can work to improve the bill in this and other ways. I do not want to be here again in five years, after yet another Supreme Court decision striking this law down. The bill also provides needed assistance to prosecutors in rebutting the virtual porn defense by removing a restriction on the use of records of performers portrayed in certain sexually explicit conduct that are required to be maintained under 18 U.S.C. Sec. 2257, and expanding such records to cover computer images. These records, which will be helpful in proving that the material in question is not ``virtual'' child pornography, may be used in federal child pornography and obscenity prosecutions under this Act. The purpose of this provision is to protect real children from exploitation. It is important that prosecutors have access to this information in both child pornography and obscenity prosecutions, since the Supreme Court's recent decision has had the effect of narrowing the child pornography laws, making more likely that the general obscenity statutes will be important tools in protecting children from exploitation. In addition, the Act raises the penalties for not keeping accurate records, further deterring the exploitation of minors and enhancing the reliability of the records. Next, the Hatch-Leahy bill contains several provisions altering the definition of ``child pornography'' in response to the Free Speech case. One approach would have been simply to add an ``obscenity'' requirement to the child pornography definitions. Outlawing all obscene child pornography--real and virtual; minor and `youthful-adult;' simulated and real--would clearly pass a constitutional challenge because obscene speech enjoys no protection at all. Under the Miller obscenity test, such material (1) ``appeals to the prurient interest,'' (2) is utterly ``offensive'' in any ``community,'' and (3) has absolutely no serious ``literary, artistic or scientific value.'' Some new provisions of this bill do take this ``obscenity'' approach, like the new Sec. 2252B(b)(1) and, to a lesser extent the new Sec. 2252B(b)(2), which I crafted with Senator Hatch. Other provisions, however, take a different approach. Specifically, the CPPA's definition of ``identifiable minor'' has been modified in the bill to include a prong for persons who are ``virtually indistinguishable from an actual minor.'' This adopts language from Justice O'Connor's concurrence in the Free Speech case. Thus, while this language is defensible, I predict that this provision will be the center of much constitutional debate. Although I will explain in more detail later, these new definitional provisions risk crossing the constitutional line. I am not alone in this view and ask to have supporting letters from constitutional experts printed in the record. This bill also contains a variety of other measures designed to increase jail sentences in cases where children are victimized by sexual predators. First, it enhances penalties for repeat offenders of child sex offenses by expanding the predicate crimes which trigger tough, mandatory minimum sentences. Second, the bill requires the U.S. Sentencing Commission to address a disturbing disparity in the current Sentencing Guidelines. The current sentences for a person who actually travels across state lines to have sex with a child are not as high as for child pornography. The Commission needs to correct this oversight immediately, so that prosecutors can take these dangerous sexual predators off the street. These are all strong measures designed to protect children and increase prison sentences for child molesters and those who otherwise exploit children. The Hatch-Leahy PROTECT Act also has several provisions designed to protect the children who are victims in these horrible cases. Privacy of the children must be paramount. It is important that they not be victimized yet again in the criminal process. This bill provides for the first time ever an explicit shield law that prohibits the name or other non physical identifying information of the child victim (other than the age or approximate age) from being admitted at any child pornography trial. It is also intended that judges can and will take appropriate steps to ensure that such information as the child's name, address or other identifying information not be publicly disclosed during the pretrial phase of the case or at sentencing as well. The bill also contains a provision requiring the judge to instruct the jury, upon request of the government, that no inference should be drawn against the United States because of information inadmissible under the new shield law. The Hatch-Leahy PROTECT Act also amends certain reporting provisions governing child pornography. Specifically, it allows federal authorities to report information they receive from the Center from Missing and Exploited Children, (``CMEC''), to state and local police without a court order. In addition, the bill removes the restrictions under the Electronic Communications Privacy Act, (ECPA) for reporting the contents of, and information pertaining to, a subscriber of stored electronic communications to the CMEC when a mandatory child porn report is filed with the CMEC pursuant to 42 U.S.C. Sec. 13032. While this change may invite rogue federal, state or local agents to try to circumvent all subpoena and court order requirements under ECPA and allow them to obtain subscriber emails and information by triggering the initial report to the CMEC themselves, it should be well understood that this is not the intention behind this provision. These important safeguards are not being altered in any way, and a deliberate use of the tip line by a government agent to circumvent the well established statutory requirements of these provisions would be a serious violation of the law. Nevertheless, we should still consider further clarification to guard against subverting the safeguards in ECPA from government officials going on fishing expeditions for stored electronic communications under the rubric of child porn investigations. As I made clear when this bill was introduced, I continue to express my disappointment in the Department of Justice information sharing regulations related to the CMEC tip line. According to a recent Government Accounting Office, (GAO) report, due to outdated turf mentalities, the Attorney General's regulations exclude both the United States Secret Service and the U.S. Postal Inspection Service from direct access to important tip line information. That is totally unacceptable, especially in the post 9-11 world where the importance of information sharing is greater than ever. How can the Administration justify support of this Hatch-Leahy bill, which allows state and local law enforcement officers such access, when they are simultaneously refusing to allow other federal law enforcement agencies access to the same information? I made this request in my statement when we introduced this bill, but once more I urge the Attorney General to end this unseemly turf battle and to issue regulations allowing both the Secret Service and the Postal Inspection Service, who both perform valuable work in investigating these cases, to have access to this important information so that they can better protect our nation's children. The Hatch-Leahy bill also provides for extraterritorial jurisdiction where a defendant induces a child to engage in sexually explicit conduct outside the United States for the purposes of producing child pornography which they intend to transport to the United States. The provision is crafted to require the intent of actual transport of the material into the United States, unlike the House bill from the last Congress, which criminalized even an intent to make such material ``accessible.'' Under that overly broad wording, any material posted on a web site internationally could be covered, whether or not it was ever intended that the material be downloaded in the United States. Under the bill we consider today, however, proof of a specific intent to send such material to the United States is required. Finally, the bill provides a new private right of action for the victims of child pornography. This provision has teeth, including injunctive relief and punitive damages that will help to put those who produce child pornography out of business for good. I commend Senator Hatch for his leadership on this provision and his recognition that such punitive damages provisions are important means of deterring misconduct. These provisions are important, practical tools to put child pornographers out of business for good and in jail where they belong. As I mentioned previously, the PROTECT Act is a good faith effort to tackle the child pornography problem, and I have supported its passage from the outset. I am also glad that because of our bipartisan cooperation, Senator Hatch and I were able to offer a joint amendment in Committee that strengthened the bill further against constitutional attack. Here are some of the improvements that we jointly made to the bill as introduced. The Hatch-Leahy amendment created a new specific intent requirement in the pandering crime. The provision is now better focused on the true wrongdoers and requires that the government prove beyond a reasonable doubt that the defendant actually intended others to believe that the material in question is obscene child pornography. This is a positive step. The Hatch-Leahy amendment narrowed the definition of ``sexually explicit conduct'' for prosecutions of computer created child pornography. Although I continue to have serious reservations about the constitutionality of prosecuting cases involving such ``virtual child pornography'' after the Supreme Court's decision in Free Speech Coalition v. Ashcroft, narrowing the definition of the conduct covered provides another argument that the provision is not as overbroad as the one in the CPPA. I had also proposed a change that contained an even better definition, in order to focus the provision to true ``hard core'' child pornography, and I hope we will consider such a change as the process continues. The Hatch-Leahy amendment the saved the existing ``anti-morphing'' provision from a fresh constitutional attack by excluding 100% virtual child pornography from its scope. That morphing provision was one of the few measures from the CPPA that the Supreme Court did not strike down last year. I am pleased that we are avoiding placing this measure in constitutional peril in this bill. The Hatch-Leahy amendment refined the definition of virtual child pornography in the provision that Senator Hatch and I worked together to craft last year, which will be new 18 U.S.C. Sec. 2252B. These provisions rely to a large extent on obscenity doctrine, and thus are more rooted in the constitution than other parts of the bill. I was pleased that the Hatch-Leahy amendments includes in new 2252B(2) a definition that the image be ``graphic''--that is one where the genitalia are actually shown during the sex act for two reasons. First, because the old law would have required proof of ``actual'' minors in cases with ``virtual'' pictures, I believe that this clarification will remove a potential contradiction from the new law which pornographers could have used to mount a defense. Second, it will provide another argument supporting the law's constitutionality because the new provision is narrowly tailored to cover only the most ``hard core'' child pornography. I am disappointed that we could not include a similar definition in the S. 151's other virtual child pornography provision, which was included at the request of the Administration. I hope that will be considered as this bill moves forward. The Hatch-Leahy amendment also clarifies that digital pictures are covered by the PROTECT Act, an important addition in today's world of digital cameras and camcorders. These were important changes, and I was glad to work with Senator Hatch to craft them. This law is not perfect, however, and I would have liked to see some additional improvements to the bill. Let me outline some of them. First, regarding the tip line, I would have liked to further clarify that law enforcement agents may not and should not ``tickle the tip line'' to avoid the key protections of the Electronic Communications Privacy Act (ECPA). This might have included clarifying 42 U.S.C. Sec. 13032 that the initial tip triggering the report may not be generated by the government's investigative agents themselves. A tip line to the CMEC is just that--a way for outsiders to report wrongdoing to the CMEC and the government, not for the government to generate a report to itself without following otherwise required lawful process. It was not the intent of any part of this bill to alter that purpose. Second, regarding the affirmative defense, I would have liked to ensure that there is an affirmative defense for each new category of child pornography and for all cases where a defendant can prove in court that a specific, non-obscene image was made using not any child but only actual, identifiable adults. That will no doubt be a basis for attacking the constitutionality of this law. As a general matter, it is worth repeating that we could be avoiding all these problems were we to take the simple approach of outlawing ``obscene'' child pornography of all types, which we do in one new provision that I suggested. That approach would produce a law beyond any possible challenge. This approach is also supported by the National Center for Missing and Exploited Children, which we all respect as the true expert in this field. Following is an excerpt from the Center's answer to written questions submitted after our hearing, which I will place in the record in its entirety and I quote: Our view is that the vast majority (99-100%) of all child pornography would be found to be obscene by most judges and juries, even under a standard of beyond a reasonable doubt in criminal cases. Even within the reasonable person under community standards model, it is highly unlikely that any community would not find child pornography obscene. . . . In the post Free Speech decision legal climate, the prosecution of child pornography under an obscenity approach is a reasonable strategy and sound policy. Based on this letter, according to the National Center for Missing and Exploited Children, the approach that is least likely to raise constitutional questions--using established obscenity law--is also an effective one. In short, the obscenity approach is the most narrowly tailored to prevent child pornography. New section 2252B adopts this obscenity approach, but because that is not the approach that other parts of the PROTECT Act uses, I recognize that it contains provisions about which some may have legitimate Constitutional questions. Specifically, in addition to the provisions that I have already discussed, there were two amendments adopted in the Judiciary Committee in the last Congress and one on this Congress to which I objected that are included in the bill as we consider it today. I felt and still feel that these alterations from the original way that Senator Hatch and I introduced the bill needlessly risk a serious constitutional challenge to a bill that provided prosecutors the tools they needed to do their jobs, and that the bill would be even stronger than it is now were they changed. Let me discuss my opposition to these changes adopted by the Judiciary Committee in this Congress and the last. Although I worked with Senator Hatch to write the new pandering provision in the PROTECT Act, I did not support two of Senator Hatch's amendments extending the provision to cover (1) ``purported'' material, and (2) material not linked to obscenity. First, in the last Congress during our markup I objected to an amendment from Senator Hatch to include in the pandering provision ``purported'' material, which criminalizes speech even when there is no underlying material at all--whether obscene or non-obscene, virtual or real, child or adult. The pandering provision is an important tool for prosecutors to punish true child pornographers who for some technical reason are beyond the reach of the normal child porn distribution or production statutes. It is not meant to federally criminalize talking dirty over the internet or the telephone when the person never possesses any material at all. That is speech, and that goes too far. The original pandering provision in S. 2520 as introduced last Congress was quite broad, and some argued that it presented constitutional problems as written, but I thought that prosecutors needed a strong tool, so I supported Senator Hatch on that provision. I was heartened that Professor Schauer of Harvard, a noted First Amendment expert, testified at our hearing last year that he thought that the original provision was Constitutional, barely. Unfortunately, Professor Schauer has since written to me stating that this new amendment to include ``purported'' material ``would push well over the constitutional edge a provision that is now up against the edge, but probably barely on the constitutional side of it'' I placed his letter in the record upon introduction of the bill in this Congress on January 13, 2003. The second amendment to the pandering provision to which I objected expanded it to cover cases not linked in any way to obscenity. It would allow prosecution of anyone who ``presented'' a movie that was intended to cause another person to believe that it included a minor engaging in sexually explicit conduct, whether or not it was obscene and whether or not any real child was involved. Any person or movie theater that presented films like Traffic, Romeo and Juliet, and American Beauty would be guilty of a felony. The very point of these dramatic works is to cause a person to believe that something is true when in fact it is not. These were precisely the overbreadth concerns that led 7 justices of the Supreme Court to strike down parts of the 1996 Act. We do not want to put child porn convictions on hold while we wait another 6 years to see if the law will survive constitutional scrutiny. Because these two changes endanger the entire pandering provision, because they are unwise, and because that section is already strong enough to prosecute those who peddle child pornography, I oppose those expansions of the provision and still hope that we can reconsider them. Although I joined Senator Hatch in introducing this bill, even when it was introduced last year I expressed concern over certain provisions. One such provision was the new definition of ``identifiable minor.'' When the bill was introduced, I noted that this provision might ``both confuse the statute unnecessarily and endanger the already upheld ``morphing'' section of the CPPA.'' I said I was concerned that it ``could present both overbreadth and vagueness problems in a later constitutional challenge.'' Unfortunately, this provision remains problematic and susceptible to constitutional challenge. As the bill developed, a change to the definition of ``identifiable minor'' expanded it to cover ``virtual'' child pornography--that is, 100% computer generated pictures not involving any real children. For that reason, it presented additional constitutional problems similar to the Administration supported House bill. I objected to this amendment when it was added to the bill in the last Congress in Committee, and I continue to have serious concerns with it now. The ``identifiable minor'' provision in the PROTECT Act may be used without any link to obscenity doctrine. Therefore, what potentially saved the original version we introduced in the 107th Congress was that it applied to child porn made with real ``persons.'' The provision was designed to cover all sorts of images of real kids that are morphed or altered, but not something entirely made by computer, with no child involved. The change adopted in the Judiciary Committee last year and supported by the Administration, however, redefined ``identifiable minor'' by creating a new category of pornography for any ``computer generated image that is virtually indistinguishable from an actual minor'' dislodged, in my view, that sole constitutional anchor. The new provision could be read to include images that never involved real children at all but were 100 percent computer generated. That was not the original goal of this provision, and that was the reason it was constitutional. There are other provisions in this bill that deal with obscene virtual child pornography that I support, such as those in new section 2252B, which are linked to obscenity doctrine. This provision, however, was intended to ease the prosecutor's burden in cases where images of real children were cleverly altered to avoid prosecution. By changing the identifiable minor provision into a virtual porn provision, the Administration has needlessly endangered its constitutionality. For these reasons, I was glad to work alongside Senator Hatch to narrow this provision before the Judiciary Committee. Unfortunately, despite our best efforts, I fear we did not do everything possible to strengthen it against constitutional attack. Let me explain. Although the Hatch-Leahy amendment adopted in Committee included a slightly narrower definition of sexually explicit conduct and excluded cartoons, sculptures, paintings, anatomical models and the like, the virtual porn provision still sweeps quite broadly and is potentially vague. New section 2252A(2)(B)(i) lumps in such truly ``hard core'' sexual activities such as intercourse, bestiality, and s&m in with simple lascivious exhibition of the genitals and simulated intercourse where any part of a breast is shown. Equating such disparate types of conduct, however, does not mesh with community standards and is precisely the type of ``one size fits all'' approach that the Supreme Court rejected in the area of virtual pornography in the Free Speech case. The contrast between this broad definition and the tighter definition in new Section 2252B(b)(2), crafted by Senator Hatch and myself, is striking. In fact, I suggested that we include the same definition of ``graphic'' conduct found in new section 2252B in the new Section 2252A virtual child porn provision to better focus it on hard core conduct. Unfortunately, the Administration rejected that proposal and the provision may be open to overbreadth attacks. I also believe that there is a vagueness concern in the new statute 2252A because, while it is clearly aimed at ``virtual'' child pornography (where no real children are involved), it still requires ``actual'' conduct. In the realm of computer generated images, however, the distinction between actual and simulated conduct makes no sense. It is so vague and confusing that I fear that clever defendants might seek to argue that this new provision still requires proof ``actual'' sexual acts involving real children. I hope that this language is further clarified in order to address these concerns. The Supreme Court made it clear that we can only outlaw child pornography in two situations: No. 1, it is obscene, or No. 2, it involves real kids. That is the law as stated by the Supreme Court, whether or not we agree with it. Senator Hatch and I agree that legislation in this area is important. But regardless of our personal views, any law must be within constitutional limits or it does no good at all. The amended identifiable minor provision, which would include most ``virtual child pornography'' in the definition of child pornography, in my view, crosses the constitutional line, however, and needlessly risks protracted litigation that could assist child pornographers in escaping punishment. Another new provision in the bill includes a mandatory directive to the United States Sentencing Commission to establish penalties for these new crimes at certain levels. In my experience, however, the non- partisan Sentencing Commission operates best when it is allowed to study an issue carefully and come up with a particular sentencing guideline based upon its expertise in these matters. In fact, in child pornography cases the Sentencing Commission has established appropriately high penalties in the past, and there is no reason to believe that it would not do so again with respect to these new laws. While most all of the provisions of the Hatch-Leahy PROTECT Act are designed to withstand constitutional scrutiny, unfortunately legal experts could not vouch for the constitutionality of the bill supported by the Administration in the last Congress, which seemed to challenge the Supreme Court's decision, rather than accommodate the restraints spelled out by the Supreme Court. That proposal and the associated House bill from the 107th Congress simply ignored the Supreme Court's decision, reflecting an ideological response rather than a carefully drawn bill that would stand up to scrutiny. I supported passage of the PROTECT Act as Senator Hatch and I introduced it and as it passed the Senate unanimously in the last Senate. Even so, I was willing to work with him to further amend the bill in the Judiciary Committee. Some amendments that we considered in committee I supported because they improved the bill. Others went too far. These provisions raise legitimate concerns, but in the interest of making progress I support consideration and passage of the measure in its current form. I hope that we can work to further improve this bill so that it has the best possible chance of withstanding a constitutional challenge. That is not everyone's view. Others evidently think it is more important to make an ideological statement than to write a law. A media report on this legislation at the end of the last Congress reported the wide consensus that the Hatch-Leahy bill was more likely than the House bill to withstand scrutiny, but quoted a Republican House member as stating: ``Even if it comes back to Congress three times we will have created better legislation.'' To me, that makes no sense. Why not create the ``better legislation'' right now for today's children, instead of inviting more years of litigation and putting at risk any convictions obtained in the interim period before the Supreme Court again reviews the constitutionality of Congress' effort to address this serious problem? That is what the PROTECT Act seeks to accomplish. Even though this bill is not perfect, I am glad to stand with Senator Hatch to secure its approval by the Senate as I did in the last Congress. The floor statements, including my statement today and the statement and material I placed in the Congressional Record on introduction of this bill on January 13, 2003, will be important to the legislative history of this matter, and so I seek consent to place letters from experts in the record commenting upon aspects of the bill. Creating a comprehensive record is especially important for statutes that face constitutional challenges, as this law nearly certainly will. As I have explained, I believe that this issue is so important that I have been willing to compromise and to support a measure even though I do not agree with each and every provision that it contains. That is how legislation is normally passed. I hope that the administration and the House do not decide to play politics with this issue and seek further changes that could bog the bill down. I urge swift consideration and passage of this important bill as it is currently written. It is aimed at protecting our Nation's children. Just to further explain my support for this measure and to reiterate, let me continue. As I said when we introduced the Hatch-Leahy PROTECT Act, again, as the Judiciary Committee considered this measure, although the bill is not perfect, and on this subject it is difficult to get a perfect bill, it is a good-faith effort to provide powerful tools for prosecutors to deal with the problem of child pornography within constitutional limits. We failed to do that in 1996 with the Child Pornography Prevention Act, much of which the Supreme Court struck down last year. I hope we would not make the same mistake again. The last thing we want to do is to create years of legal limbo for our Nation's children, after which the courts strike down yet another law as unconstitutional. I also said at our Judiciary Committee meeting that I hoped we could pass the bill in the same form as unanimously passed in the last Congress. That is still my position. I believe it would have been wiser to have proceeded in that manner. Since my colleagues on the other side of the aisle, at the request of the administration, have decided not to follow this route, I have nevertheless continued to work with Senator Hatch to craft the strongest bill possible to produce convictions that will stick under the Constitution. In my years as a prosecutor, I learned that it was important to make sure that any cases we brought were based on legislation that was constitutional in the first place so the prosecution would stick. I urge the Senate to pass the Hatch-Leahy bill, and I urge the Republican leadership in the House of Representatives to take the second opportunity to pass this important legislation. As I said earlier, the Senate did pass it last year. The other body did not take up our bill. I also urge the administration to support this bipartisan measure. It is not a partisan issue to be against child pornographers. We are all against child pornographers, Republican or Democrats. Those who are parents or grandparents feel very strongly the desire to pass this legislation. If we act in a bipartisan manner we can have a bill to the President that begins working to protect America's children, and we can do it in very short order. Our children deserve more than a press conference on this issue. It is easy enough for people to stand up and say they are against child pornographers, as though anyone here would be for them. But it is one thing to have a press conference and another thing to give to prosecutors tools they can use. Our children deserve a law that will last rather than one that is passed to make political points but will be struck down as unconstitutional. Let me describe a few of the provisions in the Hatch-Leahy bill. Section 3 of the bill creates two new crimes aimed at people who distribute child pornography and those who use such material to entice children to do illegal acts. The bill creates a new crime that I propose to take direct aim at one of the chief evils of child pornography; namely, its use by sexual predators to entice minors to either engage in sexual activity or other crimes. This 15-year felony will provide prosecutors a potent new tool to put away those who actually prey upon children in using such pornography. Next, this bill revamps existing affirmative defense of child pornography cases, both in response to criticisms of the Supreme Court. As a former prosecutor, I made sure that the provision is drafted to protect prosecutors from unfair surprise in the use of affirmative defense by requiring a defendant give advance notice of his intent to assert. Frankly, what I did was put myself in the position of what prosecutors would have to do to get convictions. I tried to make sure by the provisions I put into this bill, that prosecutors would have the tools to give them the best chance to get such convictions. Next, the Hatch-Leahy bill contains several provisions altering the definition of child pornography in response to the free speech case in allowing prosecution of virtual or computer-created child porn. Some such provisions take the traditional obscenity approach, like the new section 2252(b) which I crafted with Senator Hatch. Other provisions, however, take a broader approach as advocated by the administration last year. I predict this provision will be the center of much constitutional debate. I am afraid that some in the administration were more eager to have a debating point than they were to have something on which prosecutors could rely. The bill also contains a variety of other measures designed to increase jail sentences in cases where victims are actually sexually victimized by sexual predators. The bill requires the U.S. Sentencing Commission to address what I believe is a disturbing disparity in the current sentencing guidelines. What is disturbing to me is that the current sentences for a person who actually travels across State lines to have sex with a child are not as high as they are for child pornography. The Commission needs to correct this oversight immediately so prosecutors can take such dangerous sexual predators off the streets. The Hatch-Leahy PROTECT Act also has several provisions designed to protect the children who are victims in these horrible cases. Privacy of the children must be paramount. Unfortunately, sometimes, if you drag the name of a child who has been the victim of a sexual predator out into the public, then they are victimized yet again, even as you go after the predator. The bill provides for the first time ever an explicit shield law that prohibits a name or other nonphysical identifying information of the child victim from being admitted at child pornography trials. Finally, the bill provides a new private right of action for the victims of child pornography. This is something we have not done before in this arena. This provision has real teeth. It includes injunctive relief and punitive damages to help put those who produce child pornography out of business for good. I commend Senator Hatch for his recognition that punitive damage provisions are an important means for deterring misconduct. Some of these people think if they just move from place to place and nothing happens to them, they are free. If they know that whatever profits they make are gone and they are going to have punitive damages assessed and still may face, on top of that, criminal action, then they will think twice. These are important, practical tools not only to put child pornographers out of business but to put them in jail. The law is not perfect. As I said, I wish we had adopted the version that had unanimously passed the Senate last Congress, that all Republicans and Democrats supported. That was the decision made by the majority not to do that. As a general matter, it is worth repeating that we could be avoiding all problems if we were to take the simple approach of outlawing obscene child pornography of all types. The reason I say that is because of the experts in this area, and it is a very difficult area, agree. This approach is supported by the National Center for Missing and Exploited Children. I think we all respect them as true experts on protecting the children. I wish we had followed their approach. Following, again, is an excerpt from the answer to the Senator's written questions submitted after a hearing and I quote: Our view is that the vast majority (99-100 percent) of all child pornography would be found to be obscene by most judges and juries, even under a standard of beyond a reasonable doubt in criminal cases. . . . In the post Free Speech decision legal climate, the prosecution of child pornography under an obscenity approach is a reasonable strategy and sound policy. Thus, according to the National Center for Missing and Exploited children, the approach least likely to raise constitutional questions-- using established obscenity law--is also an effective one. Because certain provisions do not follow this approach, I recognize that some may have legitimate constitutional questions about provisions in this act. These provisions raise legitimate concerns, but in the interests of making progress, I support consideration and passage of the measure in its current form, and I hope we can work to improve the bill so it has the best possible chance of withstanding a constitutional challenge. The bill is not perfect but I am glad to stand with Senator Hatch to secure its approval by the Senate, as I did in the last Congress. I know I speak for the Senator from Utah that the thing both of us want is that we have a bill that can be used by those attacking pornographers, prosecutors attacking pornographers, that will stand up in court. It is not a case of there are people for or against child pornographers. We are all against them. But we want to make sure for the prosecutor, if you sue them, if you seek injunctive relief if you prosecute, that you win. I believe this issue is so important that I have been willing to compromise and to support a measure, even though I do not agree with each and every provision it contains. I hope the administration, and the other body, do not decide to play politics with this issue and seek further changes that could bog down the bill. Had they allowed the bill to go forward last year, the one Senator Hatch and I brought to the floor of the Senate and passed unanimously, we would have a bill in law--a law on the books today. But I urge swift consideration and passage of this important bill as it is currently written. It is aimed at protecting our Nation's children. It is important we do all we can to end the victimization of real children by child pornographers, but it is also important that we pass a law that will withstand first amendment scrutiny. We need a law with real bite, not one with false teeth. I ask unanimous consent to have expert views on this legislation printed in the Record, in addition to the supporting letters and materials to which I referred.

Mr. LEAHY. While sorely tempted only as a chance to demonstrate an earlier point, I will refrain from that and suggest the absence of a quorum.

Mr. LEAHY. Mr. President, we are near 5:30. Even though I have more time remaining, in a couple of minutes I am going to yield back that time. I understand from both the Republican side and the Democratic side that Members prefer to vote at 5:30. Let me first ask for the yeas and nays on the pending legislation.

Mr. LEAHY. I thank the Chair. Mr. President, as I said earlier in my speech, I would much prefer that we pass exactly the bill Senator Hatch and I wrote last year and which passed the Senate unanimously. It was then for some reason that leadership in the other body decided not to bring it up. Now we have written one that is very much like the original Hatch-Leahy bill with some modification. I am worried about some of the modifications because of the constitutional problem that may arise, but I am willing to support this bill and will vote for this bill. I would hope the other body would take this bill as it is and not add further to it. I think what happened last year was the case where we passed a good piece of legislation. Republicans and Democrats came together across the political spectrum and passed a good bill on child pornography. And some, I guess, were more concerned about making speeches and all than to actually pass a piece of legislation that would protect children. I have looked at this with the eyes of a former prosecutor. I want to be able to go after child pornographers. There is nobody in this body-- Republican or Democrat--who is on the side of child pornographers. This is not a free speech question; this a child abuse question. Nobody supports those who abuse children for this purpose. So let us understand that and know we can pass this piece of legislation. Let's hope nobody tries to change it to make a political football of it. Let it go forward. Mr. President, I ask unanimous consent that Senator Blanche Lincoln of Arkansas be added as a cosponsor of the bill.

Mr. LEAHY. With that, Mr. President, I yield the floor and yield back the remainder of my time.

Mr. LEAHY. I understand, Mr. President, having started the debate at 3:30, the time would run out at 5:30; is that correct?

Mr. LEAHY. Mr. President, because we are starting late, I ask unanimous consent--and obviously I would not object to a change should the majority leader or his designee ask otherwise--I ask unanimous consent the vote be at 5:30, and the time be equally divided between Senator Hatch and myself.

Mr. LEAHY. Am I correct, at the request of the majority leader, there will be no vote prior to 5:30?

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

Mr. LEAHY. I see your staff running around making suggestions to the Presiding Officer. I wanted to remind them that while Senators are merely constitutional impediments to the staff, in the minds of some, we could still have the vote at 5:30. I am trying to keep this schedule to what the distinguished majority leader wanted and do what was told others. Frankly, I don't care when the vote is, but I do thank the staff for trying to keep us on other schedules. If we go the full time, then the vote would be, am I correct, unless some time is yielded back, it would be around 20 minutes to 6 and not 5:30?

Mr. LEAHY

Mr. LEAHY. Mr. President, I will speak for a few minutes regarding the debate on Mr. Estrada. The reason I say this, when I came on the floor I heard a great deal of discussion about the Hispanic National Bar Association. I heard from my friends on the other side of the aisle the current president of the Hispanic National Bar Association has led the support of this organization for Mr. Estrada's nomination, which is so. However, it jogged my memory that this morning I received a letter from 15 former presidents of the Hispanic National Bar Association. These 15 take an entirely different position than the current president: 15 well-respected former national leaders of this important bar association. They date back to the founding of it in 1972. They have written to the Senate to oppose this nomination. They wrote to Senator Hatch and they wrote to Senator Frist, as well as to Senator Daschle and myself. I am sure the speakers earlier this morning, when they spoke of the importance of the position of the president of the Hispanic National Bar Association, were probably not aware that but one is in favor of Mr. Estrada and 15 were opposed. It is very weighty opposition for 15 prior presidents of the Hispanic National Bar Association, based on the criteria to evaluate judicial nominees that this association has formally used since 1991, which has been the practical standard for the past 30 years, to make this assessment. In addition to the candidate's professional experience and temperament, the criteria for endorsement includes the extent to which a candidate has been involved, supportive of, and responsive to the issues, needs, and concerns of Hispanic Americans and, secondly, the candidate's demonstrated commitment to the concept of equal opportunity and equal justice under the law. In the view of the overwhelming majority of the living past presidents of the Hispanic National Bar Association, Mr. Estrada's record does not provide evidence that meets those criteria. But they say his candidacy ``falls short in these respects.'' They conclude: We believe that for many reasons including: his virtually non-existent written record, his verbally expressed and unrebutted extreme views, his lack of judicial or academic teaching experience (against which his fairness, reasoning skills and judicial philosophy could be properly tested), his poor judicial temperament, his total lack of any connection whatsoever to, or lack of demonstrated interest in the Hispanic community, his refusals to answer even the most basic questions about civil rights and constitutional law, his less than candid responses to other straightforward questions of Senate Judiciary Committee members, and because of the Administration's refusal to provide the Judiciary Committee the additional information and cooperation it needs to address these concerns, the United States Senate cannot and must not conclude that Mr. Estrada can be a fair and impartial appellate court judge. This is a significant letter because during the tenure of these past presidents, the Hispanic National Bar Association has had a fair nonpartisan record of following its criteria, and endorsing or not endorsing or rejecting nominees, regardless of whether the nominee is Republican or Democrat. They follow the same criteria for Republicans and Democrats. The HNBA has been at the forefront of the effort to increase diversity on the Federal bench and improve the public confidence among Hispanics and others in the fairness of the Federal courts. They have supported Republican nominees as well as Democratic nominees. But these 15 individuals, who devoted a great deal of time in their legal careers to advancing the careers of Hispanics in the legal community, have felt compelled publicly to oppose the Estrada nomination, although they publicly supported both Democrats and Republicans before. This one they opposed. I ask unanimous consent the letter that was sent to me, to Senator Hatch, to Senator Frist, and to Senator Daschle be printed in the Record.

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

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that Steven Dettelbach, a detailee to the Committee on the Judiciary, be granted the privilege of the floor during the rest of today and during any votes.

Mr. LEAHY

Mr. LEAHY. USAID could provide additional funding to USTTI, if it is justified. Moreover, members of the House and Senate subcommittee give great weight to the views of the senior Senator from Hawaii, and I have little doubt that additional accommodation could have been made at the conference if this misunderstanding had not occurred.

Mr. LEAHY. Madam President, I want to alert you and my fellow Senators to a particularly egregious rider that was included in the omnibus appropriations conference report. After the conference committee met and behind closed doors, this special interest rider will gut the organic standards just recently enacted by U.S. Department of Agriculture. I understand this special interest provision was inserted into the bill on behalf of a single producer who essentially wants to hijack the ``organic'' certification label for his own purposes. He wants to get a market premium for his products, without actually being an organic product. This provision will allow producers to label their meat and dairy products ``organic'' even though they do not meet the strict criteria set forth by USDA, including the requirement that the animals be fed organically grown feed. This approach was considered and outright rejected by USDA last June. The entire organic industry opposed this weakening of the organic standards. If beef, poultry, pork and dairy producers are able to label their products as ``organic'' without using organic feed, which is one of the primary inputs, then what exactly is organic about the product? This provision is particularly galling because so many producers have already made the commitment to organic production. For most, this is a huge financial commitment on their part. I have already heard from some large producers General Mills, Tyson Foods--around the country who are enraged by this special loophole included for one company that does not want to play by the rules. I am also very disappointed that just because one company could not create this loophole to the organic rule in public during the USDA process, the Republican leadership decided to bury it within the 2-foot tall spending bill. It was done behind closed doors after the conference committee met in public. I will be introducing legislation today to strike this rider from the Omnibus Appropriations Act and I hope to move it through Congress quickly before it does gut the organic meat and dairy industry. We need to send a message to all producers that if you want to benefit from the organic standards economically, you must actually meet them. When I included the ``The Organic Foods Production Act'' in the 1990 farm bill, it was because farmers recognized the growing consumer demand for organically produced products, but needed a tool to help consumers know which products were truly organic and which were not. The act directed USDA to set minimum national standards for products labeled ``organic'' so that consumers could make informed buying decisions. The national standard also reassured farmers selling organically produced products that they would not have to follow separate rules in each state, and that their products could be labeled ``organic'' overseas. The new standards have been enthusiastically welcomed by consumers, because through organic labeling they now can know what they are choosing and paying for when they shop. This proposal to weaken the organic standards would undermine public confidence in organic labeling, which is less than a year old. Getting the organic standards that are behind the ``USDA Organic'' label right was a long and difficult process, but critically important to the future of the industry. Along the way, some tried to allow products treated with sewer sludge, irradiation, and antibiotics to be labeled ``organic.'' The public outcry against this was overwhelming. More than 325,000 people weighed in during the comment period, as did I. The groundswell of support for strong standards clearly showed that the public wants ``organic'' to really mean something. Those efforts to hijack the term were defeated and this one should be too. Consumers and producers rely on the standard. I hope members will cosponsor my bill and send a message to special interests that they cannot hijack the organic industry through a rider on the spending bill. This provision is an insult to organic producers and to consumers around the country.

Mr. LEAHY. I would support additional funding, and would encourage USTTI to discuss their specific needs with USAID. I have a short note from Chairman McConnell, also indicating his support for this project, and I ask unanimous consent that it be printed in the Record.

Mr. LEAHY. Madam President, I want to speak about the United States Telecommunications Training Institute (USTTI). The statement of the managers accompanying the fiscal year 2003 Omnibus Appropriations Act, H.J. Res. 2, recommends $500,000 for USTTI compared to $1,000,000 that was included in the Senate bill. However, this funding level is the result of a misunderstanding between my office, Senator McConnell's office, and Senator Inouye's office. The Foreign Operations Subcommittee was under the impression that Senator Inouye wanted $500,000 for USTTI, as had been the case in prior years. However, Senator Inouye is sure that he had informed the Subcommittee that he wanted $1,000,000 for this organization. Does the senior Senator from Hawaii agree with my recollection?