Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that the Senate is taking up and passing both the Senate and House versions of legislation to authorize salary adjustments for Justices and judges of the United States for fiscal year 2003. Here in the Senate, Senator Hatch and I were joined by Senator DeWine and Senator Specter to cosponsor legislation to authorize an increase in the salaries of Justices and judges of the United States for the present fiscal year. House Judiciary Chairman Sensenbrenner was joined by that committee's ranking Democratic member, Congressman Conyers, and others to introduce identical legislation. As a member of both the Senate Judiciary Committee and the Appropriations Subcommittee on Commerce, Justice, State and the Judiciary, I have worked hard to help preserve a fair and independent judiciary. I am disappointed that the Continuing Resolutions approved by Congress failed to give the Federal judiciary a cost-of-living adjustment COLA for fiscal year 2003. In 1975, Congress enacted the Executive Salary Cost-of-Living Adjustment Act, intended to give judges, Members of Congress and other high-ranking Executive Branch officials automatic COLAs as accorded other Federal employees unless rejected by Congress. In 1981, Congress enacted Section 140 of Public Law 97-92, mandating specific congressional action to give COLAs to judges. During the 21 years of Section 140's existence, Congress has always accorded to the Federal judiciary co-equal respect by suspending Section 140 whenever Congress has granted to itself and other Federal employees a COLA. With the end of the last Congress, however, the continuing resolutions providing funding failed to suspend Section 140, thus ensuring that no COLA would be provided for Federal judges during the current fiscal year, unless other action is taken. The bipartisan and bicameral legislation before us provides for a COLA for Federal judges consistent with the law and with fairness. Over the past year and one half as Judiciary Committee Chairman, I have been honored to lead the Committee in holding hearings on 103 of President Bush's judicial nominees, some of whom proved to be quite controversial and divisive. Last year the Committee voted on 102 nominees and reported 100 out of Committee favorably. The full Democratic-led Senate took the final step of confirming 100 judges in just 17 months. This remarkable record compares most favorably to the 38 judicial confirmations averaged per year during the 6\1/2\ years when the Republicans previously controlled the Senate. In addition, the 21st Century Department of Justice Appropriations Authorization Act we passed last Congress created or extended 20 Federal judgeships, more than were created during the 6\1/2\ years that the Republican party controlled the Senate. In his end of the year report, the Chief Justice of the United States noted these accomplishments and thanked the Senate for its actions. I appreciate his kind words. I look forward to Senate passage of the House and Senate bills to authorize salary adjustments for Justices and judges of the United States for fiscal year 2003. I hope the President will promptly sign our legislation into law.

Mr. LEAHY

Mr. LEAHY. Mr. President, this Tuesday we heard the President of the United States in his State of the Union Address once again appeal to the American people to support sending United States troops into a preemptive war against Iraq. In support of his appeal, he did not tell us anything we have not heard before. A majority of the American people remain unconvinced that the United States, only 3 months after sponsoring a U.N. Security Council resolution calling on Iraq to disarm, should now, without the support of the Security Council, abandon the U.N. inspections process and launch a unilateral military invasion. On January 18, in my home State of Vermont, over 3,000 Vermonters gathered in front of the Vermont State House in Montpelier, in freezing weather--in fact, some of the coldest weather we have had in years--to express their opposition to a war with Iraq. It is a privilege to represent a State whose citizens have always been among the most thoughtful voices and sometimes the most outspoken voices. Those Vermonters were of all ages and from all walks of life. They were not alone. Hundreds of thousands of Americans, including many Vermonters, traveled to Washington to brave the subfreezing temperatures here. And there were protests in other cities and towns across the country. These demonstrations convey the growing recognition of many Americans that the administration is preparing to invade Iraq, despite the opposing views of many allies and irrespective of any decision by the U.N. Security Council. The situation in Iraq is not a simple black-and-white issue. I have said this over and over. We saw how the Reagan administration and the former Bush administration often facilitated and frequently ignored Saddam Hussein's development of weapons of mass destruction, until he extended his territorial claims to Kuwait's oil fields. We all know there is abundant evidence that Saddam Hussein is a deceitful, murderous villain. No one ignores that. Still, there are times in history when circumstances compel us to speak out, and this is one of those times. Several Senators have spoken eloquently--Senator Kerry, Senator Biden, Senator Kennedy, and others--and I associate myself with many of their remarks. Mr. President, the White House and Pentagon are fueling the belief that war with Iraq is inevitable. That was the President's message in the State of the Union Address, although no new evidence was offered. Many in the White House are eager, even impatient, for war to begin. They view Iraq as the first step in a fundamental reshaping of the geopolitical alignment of the Middle East. It reminds me of when I first started serving in the Senate, and the White House political thinkers at that time were obsessed with theories about falling dominos. I, like many here, and like many in the White House who are the most vocal advocates of a preemptive, unilateral invasion of Iraq, have been blessed with never having faced military combat. I take to heart the wise words of my friend, Senator Chuck Hagel: Many of those who want to rush this country into war and think it would be so quick and easy don't know anything about war. They come at it from an intellectual perspective versus having sat in jungles or foxholes and watched their friends get their heads blown off. These same administration officials have also studiously avoided talking about what is inevitable in any war--American lives will be lost and the lives of innocent civilians, overwhelmingly, will be lost. People will die on both sides. And they give short shrift to the risks war with Iraq poses to building broad support for peace in the Middle East and, most important, to our efforts to thwart international terrorism. The saber rattling in Washington--and the steady deployment of tens of thousands of U.S. troops, planes, and ships to the Persian Gulf--is causing alarm and fear both here and abroad. But world opinion, including so many of our allies, is squarely in favor of exhausting every effort to avoid war. The people of Vermont gave me, as a member of the Senate Armed Services Committee in the spring of 1975, the opportunity to cast a tie-breaking vote against continued funding of the Vietnam war. I recall so well how over 30 years ago, even before focus groups, mass polling, and the hyperbole of midterm elections, White House politics-- joined unfortunately by both parties--not the need to protect the American people, caused the deaths of tens of thousands of people in that unnecessary war in Vietnam. I am as proud of that vote as any I have cast since--and I have cast well over 10,000 votes in this body-- and I will bring Vermonters' voices to the Iraq debate today. It has been only 60 days since the U.N. weapons inspectors returned to Iraq. They are just reaching full capacity. I and others here urged President Bush to go to the United Nations and seek a resolution calling on Iraq to disarm, and I applauded the President when he did that. It was one of the finest speeches of his career, and he secured a unanimous vote in the Security Council for that resolution. Now, however, the White House is wrong to dismiss the inspections as having failed so soon when the chief U.N. inspector says he is expanding his team and plans to work at least into March. The British, French, and German governments have all said the U.N. should be given more time, especially as long as the Iraqis give the inspectors access throughout the country. This is the type of common sense that should be guiding our policy, not a knee-jerk, trigger-happy approach that alienates our friends and allies. We should work closely with the United Nations. We should remember that far more of Iraq's weapons were discovered and destroyed by the inspectors after the Gulf War than were destroyed by our troops during the Gulf War. I have no doubt Saddam Hussein is lying. He has lied countless times before. He is likely hiding weapons, including chemical and biological weapons. The U.N. inspectors' report leaves little doubt of that. The Iraqis have not explained what happened to thousands of tons of chemical weapons material, and other biological munitions they had in their possession 5 years ago. There have been discoveries of empty chemical weapons shells and documents they had not disclosed. These are serious discrepancies by a regime that is among the world's most dangerous, deceptive, and brutal. There may also be other evidence of Saddam Hussein's deception that the administration has not yet revealed. But the inspectors are continuing their work, and the results so far do not justify abandoning the inspections process and sending thousands of American men and women into a war costing hundreds of billions of dollars, that will cost American lives, and the lives of innocent civilians, and could trigger a wider conflict in the Middle East, while creating more enemies and terrorists over the long run. If Saddam Hussein is removed from power, we will all celebrate. He has terrorized the Iraqi people for decades. His security agents have sadistically tortured, even summarily executed, many thousands of people. But far more is at stake here than getting rid of Saddam Hussein. At stake is the justification for sending Americans into war absent an imminent threat to the security of the United States, the most powerful Nation on Earth. We have heard a lot of strong rhetoric, but we have not heard a compelling case that the use of military force is the only alternative to disarm Iraq. Last year, our President pointed to ``evidence'' that Iraq was developing nuclear weapons. Today, that evidence seems to be disappearing. Despite a rush to judgment by some White House officials, U.S. intelligence experts remain deeply divided on this question. The International Atomic Energy Agency says there is no evidence that Iraq has resumed its quest for nuclear weapons. In response, the White House claims there is proof Iraq is hiding chemical and biological weapons. That proof may well exist. If it does, the administration should immediately take it to the Security Council to help convince skeptical friends and allies and to assist the inspectors in their disarmament work. I remember when I was a student here in Washington at Georgetown University Law School at the time of the Cuban missile crisis. President Kennedy sent his Ambassador, Adlai Stevenson, to the chambers of the United Nations. He held up irrefutable proof of the missiles being put in Cuba by the then Soviet Union. With that proof, the world rallied around the United States. We have to remember how missteps can create more problems. The situation in North Korea today illustrates how a dangerous situation can quickly escalate unnecessarily. By taking options off the table, we are worse off today than we were a few months ago. After backing the United States into a corner, the White House is now discussing donations of food and fuel, an approach they ridiculed just a short time ago. We have to be more consistent. Today, there are no U.N. inspectors monitoring the North Korean nuclear facilities. Tensions have dramatically increased, and we have serious disagreements with our Japanese and South Korean allies. Let us not make the same mistake in Iraq that history, both decades ago and more recently, has tried to teach us. Saddam Hussein must be disarmed to the point that he is no longer a threat to his neighbors. U.N. resolutions must be respected and enforced. But these are matters of concern to the world, not just to the United States. We are part of the world, but we are not the whole world. The U.N. inspectors need time to complete their work. It is divisive and damaging for the United States, having secured a Security Council resolution, two months later to short-circuit the U.N. process in the name of enforcing that same U.N. resolution. To those officials in the White House and the Pentagon who would use the U.N. inspections as a mere excuse to justify unilateral military action, I say the same things as when I opposed the resolution authorizing the use of force that passed the Senate back in September: This Vermonter never has and never will give a blank check to this President or to any President to wage war. The next weeks and months will be decisive. Let's hope the Iraqi Government fulfills its obligations and the inspectors finish the job in a manner that gives credibility to their conclusions, whatever those conclusions may be. Let's work with the U.N. Security Council and our allies to find a way forward. Unlike his father a decade ago, this President has not built a broad coalition for military action. If diplomacy fails, I am confident we can win a military victory. After all, we have the most powerful military in the world. But acting unilaterally would be extremely costly. It would lead to a prolonged U.S. military occupation of Iraq, the expenditure of tens, even hundreds, of billions of dollars. It would damage our relations with key allies, and it would further inflame the anti-American extremism that is growing throughout the Muslim world, extremism that threatens us more than anything else today. It threatens us because even today terrorists plan their attacks within the United States, not in the Persian Gulf. We need the world to be with us. A broad-based coalition is indispensable for achieving long-term peace in the Persian Gulf and the Middle East, as well as our continuing efforts against international terrorism. This war is not inevitable. We should not talk or act as if it is. But if war does come, let the United States be able to say we did everything we could to try to solve this another way; that we worked in concert with the United Nations; and that the U.N. was strengthened in the process. We must be convinced that war is justified; that the sacrifice of American lives can be justified; that America taking this step of a preemptive war can be justified not only today but, in history's eyes, decades from now. I do not believe that threshold has yet been reached. So many of the American people do not. Our allies do not. I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am proud to join Senator Campbell to introduce the ``Law Enforcement Officers Safety Act of 2003,'' which permits current and retired law enforcement officers to carry a firearm and be prepared to assist in dangerous situations. During his time in the Senate, Senator Campbell has been a leader in the area of law enforcement. As a former deputy sheriff, he knows the difficulties law enforcement officers face due to the patchwork of conceal-carry laws in State and local jurisdictions. He and I have worked together on several pieces of law enforcement legislation, such as the Bulletproof Vests Partnership Grant Acts of 1998 and 2000. I look forward to working with him on our bipartisan bill. I am pleased that 30 Senators, including Judiciary Committee Chairman Hatch and Committee Members Schumer, Edwards, Feinstein, Grassley, Kyl, Sessions, DeWine, Craig, Graham, and Cornyn, as well as Assistant Democratic Leader Reid and Assistant Republican Leader McConnell--have joined Senator Campbell and me as original cosponsors of this bill in an effort to make our communities safer and better to protect law enforcement officers and their families. In the last Congress, Senator Hatch and I worked together to reach consensus and have the Judiciary Committee approve this legislation by an 18-1 vote. I thank Senator Hatch for his past support and look forward to working with him again on our bipartisan bill. We introduce this measure in the Senate at the request of the Fraternal Order of Police, which strongly supports this legislation to protect officers and their families from vindictive criminals and to permit officers to respond immediately to a crime when off duty. Last year, when I chaired the Judiciary Committee, I was honored to work closely with FOP's National President, Lt. Steve Young, whose death earlier this month was a sad loss for all of us. Steve was dedicated to this legislation because he understood the importance of having law enforcement officers across the nation armed and prepared whenever and wherever threats to our peace or to our public safety arise. I will continue my close work with the FOP and its new National President, Major Chuck Canterbury, to pass this legislation into law. There are approximately 740,000 sworn law enforcement officers currently serving in the United States. Since the first recorded police death in 1792, there have been more than 16,400 law enforcement officers killed in the line of duty. A total of 1,694 law enforcement officers died in the line of duty over the last decade, an average of 170 deaths per year. Roughly 5 percent of officers who die are killed taking law enforcement action while in an off-duty capacity. On average, more than 62,000 law enforcement officers are assaulted each year, resulting in some 21,000 injuries. Until 2001, violent crime in this country had declined each of the preceding 8 years. Indeed, it had declined by 40 percent since it peaked at 4 million violent crimes in 1993. Community policing and the outstanding work of so many law enforcement officers played a vital key in our crime control efforts. Unfortunately, during the past two years the downward trend in violent crime ended and violent crime turned upward. Last month, the FBI reported that crime rose slightly in the first half of 2002, including a 2.3 percent increase in murders. The preliminary numbers for 2002 follow an increase in crime in 2001 that was the first in a decade, coinciding with a struggling economy that many experts say could be a contributing factor. Crime rose in 2001 by 2.1 percent, compared with the year before. The Law Enforcement Officers Safety Act of 2003 is designed to protect officers and their families from vindictive criminals and to allow thousands of equipped, trained and certified law enforcement officers, whether on or off duty or retired, to carry concealed firearms in most situations, thus enabling them to respond immediately to a crime. Our bipartisan bill will allow thousands of equipped, trained and certified law enforcement officers continually to serve and protect our communities, regardless of jurisdiction, and at no cost to taxpayers. To qualify for the bill's uniform standards a law enforcement officer must be authorized to use a firearm by the law enforcement agency where he or she works, meet the standards of the agency to regularly use a firearm, not be prohibited by Federal law from receiving a firearm, and be carrying a photo identification issued by the agency. A qualified retired law enforcement officer under the bill must have retired in good standing, have been qualified by the agency to carry or use a firearm, have been employed at least 15 years as a law enforcement officer unless forced to retire due to a service-connected disability, have a nonforfeitable right to retirement plan benefits of the law enforcement agency, annually meet State firearms training and qualifications that are the same as active law enforcement officers, not be prohibited by Federal law from receiving a firearm, and be carrying a photo identification issued by the agency. I have heard from many representatives of the law enforcement community, including the Fraternal Order of Police, the National Association of Police Officers, the Federal Law Enforcement Officers Association, the International Brotherhood of Police Officers, and the California Correctional Peace Officers Association, CCPOA, that national legislation is necessary because of the current patchwork of state and local conceal-carry laws. I have also received letters of support for the Law Enforcement Officers Safety Act from a variety of Vermont law enforcement officials, including Chief Osburn Glidden of Williston, Officer Wade Johnson of Hinesburg, Chief Trevor Whipple of Barre, Officer Bonnie Hotchkiss of Barre, Sergeant Mike Manning and Sergeant David Yustin of the Vermont State Police, and nine Field Supervision Correctional Officers assigned to the Vermont Department of Corrections Barre Community Correctional Service Center. As a former State prosecutor, I know that law enforcement Officers are never ``off-duty.'' They are dedicated public servants trained to uphold the law and keep the peace. When there is a threat to our public safety, law enforcement officers are sown to answer that call. The Law Enforcement Officers Safety Act will enable law enforcement officers in Vermont and across the nation to be armed and prepared when they answer that call, no matter where, when, or in what form it comes. I urge my colleagues to support the Law Enforcement Officers Safety Act to make our communities safer and to protect law enforcement officers and their families.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise to note an important victory in the fight to protect whistleblowers and to praise my good friend Senator Chuck Grassley for his leadership in this fight. The Washington Post reported yesterday that the Department of Labor has reversed its view on how it will interpret an important provision of the Sarbanes-Oxley Act on corporate misconduct. The provision we enacted provides a Federal law protecting corporate whistleblowers from retaliation for the first time. The law was designed to protect people like Sherron Watkins from Enron, who was recently named one of Time magazine's ``People of the Year,'' from retaliation when they report fraud to Federal investigators, regulators, or to any Member of Congress. The law was intentionally written to sweep broadly, protecting any employee of a publicly traded company who took such reasonable action to try to protect investors and the market. The reason that Senator Grassley and I know so much about the legislative intent behind this provision is that we crafted it together last year in the Judiciary Committee and worked to make it part of the Sarbanes-Oxley Act on the Senate floor. We had both seen enough cases where corporate employees who possessed the courage to stand up and `do the right thing' found out the hard way that there is a severe penalty for breaking the `corporate code of silence.' Indeed, in the Enron case itself we discovered an e-mail from outside counsel that noted that the Texas Supreme Court had twice refused to find a legal protection for corporate whistleblowers and that implicitly gave Enron the go ahead to fire Ms. Watkins for reporting accounting irregularities. Senator Grassley has always been a leader in protecting the rights of whistleblowers, and I was proud to work with him in the area of corporate reform to craft such a groundbreaking law. Unfortunately, from the very day that President Bush signed the Sarbanes-Oxley Act into law, Senator Grassley and I had to fight the administration to make sure that the law would not be gutted. On the same night that the law was signed, the White House issued an interpretation that incorrectly and narrowly interpreted our provision. Specifically, the White House stated that corporate whistleblower's disclosure to Congress would not be protected unless the whistleblower made the report to a congressional committee already conducting an authorized investigation. This interpretation was at odds with the legislative intent and the clear statutory language of the Act, which protected reasonable reports of fraud to ``any Member of Congress.'' Senator Grassley and I had good reason to write the law with such broad coverage. Most corporate whistleblowers do not know the ins and outs of the jurisdiction of Congress's various committees, nor should they be expected to. Simply picking up the phone and calling your local Senator or Representative to report a case of securities fraud should be protected. In addition, by definition most ``whistleblowers'' are reporting fraud that is not widely known. They are blowing the whistle. Thus, their revelations do not come as part of already commenced investigations. They may lead to such investigations as well as contribute to them. The White House interpretation would have excluded among the most important revelations of corporate fraud made to Congress. The administration's interpretation was reinforced the next day when the White House spokesman repeated that there were limits on the types of disclosures to Congress that would be protected. Finally, in addition to these White House interpretations, former Solicitor of Labor Eugene Scalia filed a troubling brief that adopted this narrow interpretation not only in the context of the Sarbanes-Oxley Act, but regarding the environmental whistleblower provisions, as well. That is where Senator Grassley stepped in. As he has done so many times before, under both Republican and Democratic administrations, he went to bat for the rights of the lone whistleblower against the huge bureaucracy. Once again, through his perseverance, he has proven that you can fight not only city hall but the executive branch of the Federal Government. Working together, we wrote a series of letters to the administration protesting their narrow interpretations and making the legal case that they were at odds with the legislative intent and clear language of the provision that we wrote. Each and every time that the administration responded by stonewalling or giving half answers, Senator Grassley was there to protect the law we had worked so hard to write. Finally, on January 24, 2003, almost a half year after our first letter, the administration gave in. In a letter from the new Acting Solicitor of Labor to Senator Grassley and to me he stated, ``It is the Department's view that under Sarbanes-Oxley, complaints to individual Members of Congress are protected, even if such Member is not conducting an ongoing Committee investigation within the jurisdiction of a particular Congressional committee.. .'' The letter promised that new rules and regulations effectuating this policy change would follow. I am quite sure that when those regulations come out that Senator Grassley will once again be paying close attention, as will I. Where the integrity of our financial markets and our Government are concerned, we can do no less. I look forward to working with Senator Grassley to protect the rights of whistleblowers in the 108th Congress, as we did in the 107th Congress. It is an honor and a privilege to work with Senator Grassley on these important matters. I ask unanimous consent that the letters I have referenced above and the Washington Post story, be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise to discuss a provision that the Senate agreed to earlier today and that is of particular importance for my State of Vermont--my amendment to appropriate $10 million for the Crime-Free Rural States Program. I worked to authorize this program last year in the 21st Century Department of Justice Appropriations Authorization Act, which was signed into law last November. This program will provide crucial law enforcement assistance to rural States that are struggling with a variety of crime problems. It provides for grants to State criminal justice, Byrne, or other designated agencies to develop rural States' capacity to assist local communities in the prevention and reduction of crime, violence, and substance abuse. This program gives States the flexibility to use the funding where it is most needed. For example, Vermont is suffering terribly from a rapid increase in the abuse of heroin that has put an extraordinary burden on our communities and our law enforcement agencies. Vermont could use the money provided by this program to help local governments address this crisis. Rural States face unique problems in their efforts to reduce crime, with small numbers of law enforcement officers responsible for protecting widely-dispersed communities. As drugs and violent crime have become more prevalent in remote regions of our Nation, law enforcement officers in those areas have seen their jobs become increasingly difficult. This program, which States would administer with the assistance of the National Crime Prevention Council, would help State and local law enforcement by promoting innovation in the development of crime-fighting technology and by funding the development of statewide strategic plans, including performance targets to ensure the funding is well-spent. This program will provide crucial assistance to rural States. I thank Senators Stevens, Byrd, Gregg, and Hollings for accepting it as part of the managers' package. In addition, I urge the conference committee that will reconcile the House and Senate-passed bills to retain this provision, and give rural States assistance they so desperately need.

Mr. LEAHY. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Senate today considers the nomination of Asa Hutchinson to become the first Undersecretary of Border and Transportation Security for the Department of Homeland Security. I will vote for this nomination, but not without reservations. In addition to his service as head of the Drug Enforcement Administration, most of us in the Senate also know Asa Hutchinson from the substantial amount of time he spent on the floor of the Senate a few years ago during the impeachment trial of President Clinton. He and I were both involved in the deposition phase of that trial, and although we reached opposite conclusions on the question of impeachment, I found him to be a skilled attorney and advocate for his position, and a very likable colleague. Because of my respect for him, I expedited his 2001 nomination to head the DEA. I noticed a hearing only days after becoming chairman of the Judiciary Committee, held the hearing the following week, and scheduled a committee vote for the earliest possible time. I then worked with Senator Daschle to have the full Senate consider his nomination as quickly as possible. In his role as administrator, I believe he has done many things well. I do, however, have two concerns I would like to express today. At his confirmation hearing to head the DEA, I asked Mr. Hutchinson whether the Federal Government should make it a priority to prosecute people who distribute marijuana to ill people in States that have legalized marijuana for medicinal use. He said he wanted to work with the Attorney General and develop an appropriate policy to reflect the Federal-State tensions involved in the issue. If such a policy was developed, I am unaware of it. In practice, the DEA under Administrator Hutchinson's leadership took a very tough line against the use of marijuana for medical purposes, launching a number of raids in California against individuals and groups that were operating in compliance with California law. In Vermont, we are experiencing severe and growing problems with heroin abuse and our law enforcement officers face extraordinary burdens, it is problems like that that should be a priority for the DEA. Administrator Hutchinson's decision to use substantial Federal resources to crack down on the use of marijuana by ill people strikes me as setting the wrong priority, and certainly a different priority than he identified at his hearing. I am also concerned by recent reports that Administrator Hutchinson made extensive use of Government planes at significant taxpayer expense for public appearances, while previous administrators flew commercially for similar events. If these reports are true, he would not be the first member of the Department of Justice to make questionable use of taxpayer dollars for travel. Similar questions were raised in 2001 about Attorney General Ashcroft's reliance on chartered planes. In addition, Hispanic agents have criticized Mr. Hutchinson for allowing the expiration of a committee that had been formed to brief the administrator on the concerns of Hispanic agents. I have not had the opportunity to discuss these accusations with him and his confirmation hearing for this post was not held before the Judiciary Committee. I would encourage Mr. Hutchinson to take affirmative steps to run an inclusive agency. In his new position, Mr. Hutchinson will be responsible for ensuring that our borders are safe. I have worked extensively to strengthen our northern border, particularly since the terrorist attacks of September 11, 2001. I know that the personnel who protect our border are excellent, and I also know that they need more help. That is why I included provisions in the USA PATRIOT Act to triple INS and Customs personnel at the northern border, and to invest in improved technology and equipment to monitor the border. I look forward to working closely with Mr. Hutchinson to ensure that these provisions are finally and fully implemented and our borders are secure.

Mr. LEAHY

Mr. LEAHY. Mr. President, while I appreciate the desire of my colleagues to complete the omnibus fiscal year 2003 appropriations bill early in the session of this Congress, this rush to complete the bill, unfortunately, allows for the addition of certain riders that should have greater scrutiny prior to being added under the cover of darkness. Of particular concern to me is section 329, which would eliminate consideration of the record of decision for the 2002 Supplemental Environmental Impact Statement for the 1997 Tongass Land Management Plan, forest plan, from the Forest Service's administrative appeal process and judicial review. The inherent values of the Tongass National Forest to the American public cannot be understated. As the Nation's largest national forest, 17 million acres, located in southeast Alaska, it contains large tracts of pristine lands that are presently unprotected from future management activities. This is the last vestige for species that once roamed the Lower 48 States uninterrupted by the designs of humans. The Tongass is home to the American eagle, grizzly bears, a variety of fish species, including the Chinook, Coho, and Sockeye salmon to name a few, that once flourished in the rivers throughout the United States and numerous plant and wildlife species both common and unique. Section 329 is opposed by many Alaska and national environmental organizations. Over 170,000 Americans commented on the agency's 2002 Draft EIS, which recommended no new wilderness on any of the 9.7 million acres of Tongass roadless areas. Over 95 percent of those commenting urged the agency to recommend more wilderness protection for the Tongass. While there is a time and place for the appropriate management of any national forest, making that determination of when and where needs to include the public in the decisionmaking process. Whereas, collaboration and public involvement play an integral role in the development of any forest plan, at times there is the need for an objective review to ensure that the public's concerns have been addressed. Removing these reviews, either through the agency's established appeals process or by the court, undermines the basic intent of allowing for public involvement in the management of the public's lands. It has taken numerous years to develop the Tongass Forest Plan; this should not be viewed negatively, but as a reflection of the public's passion for this national treasure. The court told the Forest Service in a previous order to go back to the drawing board. This determination was due to the lack of additional lands into the National Wilderness Preservation System. This court decision resulted in the 2002 Supplemental EIS, which now my colleague proposes to bypass both the agency's internal review process and the judicial system. It is as though he is saying ``trust us, we will get it right this time.'' It is not a matter of right or wrong, but a matter of due process that we need to ensure has been adhered to, to ensure that the American public's concerns have been heard on the management of their national lands. This amendment would set a dangerous precedent for the entire national forest system by essentially giving the Forest Service a free pass to write the record of decision however they like because it cannot be reviewed. I urge my colleagues to remove the language and instead let the review process work as it is intended to occur.

Mr. LEAHY. Let me add that the subcommittee would appreciate being informed of these discussions. There are millions of impoverished people in Latin America who lack access to clean, safe water, which is a cause of chronic disease and environmental pollution. The Senator from Rhode Island's initiative, the Clean Water for the Americas Partnership, could help address these problems, and I would hope that USAID would work with him and the Subcommittee to support it. sawtooth nat. recreation area

Mr. LEAHY. I thank the Senators for their assurances. In light of this, I will withdraw my amendments.

Mr. LEAHY. Mr. President, I have two amendments at the desk that are intended to address a critical shortage in nutrition funding for schools, food banks and soup kitchens brought about by the Bush administration's decision to pay for Federal farm disaster assistance using funds available to the Secretary of Agriculture under Section 32 of the Act of August 24, 1935. Since 1935, the so-called Section 32 program has provided the means for the Secretary of Agriculture to assist farmers and ranchers by purchasing surplus commodities, which are then used to help poor Americans by providing emergency food assistance to those in need. It creates a ``win-win'' situation allowing us to help our farmers while feeding the hungry. Section 32 is the primary source of federal funding for purchases of food distributed to the needy through schools, state and tribal governments, food banks, soup kitchens, and other charitable institutions. Last year, USDA surplus food donations to the needy through Section 32 totaled more than $250 million. And the President's budget for 2003 called for $215 million in Section 32 surplus food donations this fiscal year. On October 10 of last year, Senator Tom Harkin and I wrote to Secretary of Agriculture Ann Veneman seeking assurances that federal funding for these programs would not be diminished this fiscal year due to the Bush Administration's use of Section 32 to pay for the Livestock Compensation Program. We were concerned that this maneuver--taking some $752 million out of Section 32--would constrain the Secretary's ability to provide the needed and historic levels of funding for federal emergency food assistance programs. The Secretary never responded to our letter, but White House and USDA officials met with hunger program advocates and assured them there would not be cuts in federal emergency food assistance. Senator Harkin and I found this quite remarkable, because it appeared evident from the beginning that the Bush Administration had over- committed its Section 32 funds. According to the President's own budget figures, it was clear that Section 32 funds would be depleted once the Livestock Compensation Program (LCP) was implemented and that was before a $185 million cost over-run was reported by USDA in early December, bringing the cost of the LCP program to $937 million. According to the President's budget submissions and information provided by USDA, an estimated $5.9 billion in funding will be available for Section 32 during fiscal year 2003. This includes approximately $5.8 billion in new appropriations and approximately $92 million in carryover funds. Taking the original estimate of $752 million out of Section 32 to fund the Livestock Compensation Program leaves only $5.148 billion to meet the Department's other obligations under Section 32. That amount is not enough to fully-fund the child nutrition programs and meet the Department's other obligations under Section 32. In fiscal year 2003, to meet requirements of the Richard B. Russell School Lunch Act $4.746 billion was scheduled to be transferred from Section 32 directly into the child nutrition programs' cash account and $400 million was budgeted to purchase commodities for the child nutrition programs. In addition, $75 million was budgeted to be transferred to the Commerce Department for fisheries activities; and $25 million is needed for Agriculture Marketing Service administrative expenses. These expenditures alone exceed the level of funding available in Section 32 after the LCP program is implemented, leaving no funding food banks, soup kitchens and the like. I understand that the Administration has since shifted monies among various accounts, and was able to alleviate some of the pressure on Section 32 by tapping the Commodity Credit Corporation to pay for a portion of the commodity purchases for the School Lunch Program. This allowed USDA to come closer to balancing its books and freed up some money for emergency food assistance, but a gap still remains. In a December 3 letter to the Chairman and Ranking Member of the Senate Appropriations Subcommittee on Agriculture, Nutrition, and Forestry, Secretary Veneman acknowledged that even after shifting funds among various accounts, USDA would be able to donate no more than $125 million worth of surplus commodities to food banks, soup kitchens, etc. this year. That is half of last year's level and roughly $90 million less than budgeted for by the President. It is a sad fact that this food is sorely needed. According to USDA, in 2002 more than 33.6 million Americans were food insecure--at risk of hunger. Nearly 25 million of them turned to charities that operate food banks or soup kitchens for food. Sixty-two percent of the people requesting emergency food assistance were members of families--children and their parents. Thirty-two percent of the adults requesting food assistance were employed. Of those people seeking emergency food relief, more than one-third (36 percent) had to choose between buying food or paying for housing. Many seniors have to choose between purchasing food or purchasing prescription drugs. For many Americans, wages and pensions have simply not risen enough in the last years to cover the increased cost of living, and food has become unaffordable. These cuts couldn't have come at a worse time. With the weak economy and increased joblessness, demand for emergency food assistance is rising. A recent survey by U.S. Conference of Mayors found that during the past year requests for emergency food assistance in our nation's cities increased by an average of 17 percent-the sharpest increase in 10 years--with 83 percent of the cities registering an increase. Now is not the time to reduce federal emergency food assistance funding. Now is the time to increase federal emergency food donations, not decrease them. In his amendment, Senator Cochran provided an additional $250 million for surplus commodity purchases, largely addressing this year's shortfall. If these funds are fully utilized to provide emergency food assistance this fiscal year, then I would agree that at least this year's problem has been adequately addressed. However, I am concerned that the Administration might elect not to use these funds this year. And so I ask Senator Cochran and Senator Kohl whether they will entertain a question regarding the intended use of these funds. Is it the Senators' intention and understanding that the $250 million made available in the Cochran amendment for the Section 32 program be used to provide emergency food assistance to those in need this fiscal year?

Mr. LEAHY

Mr. LEAHY. Mr. President, I strongly support this amendment. It addresses a problem that has been a concern of mine for years, which is the involvement of the Indonesian military in deliberate attacks against American citizens. I fully appreciate that Indonesia is an important country with an elected president. We want to support Indonesia in every way we can, and we are doing so. The foreign operations portion of this omnibus appropriations bill provides $150,000,000 in economic assistance for Indonesia, a significant increase above the amount requested by the President. We are also supporting the Indonesian military. Our armed forces are engaging with the Indonesian military at all levels, including providing them millions of dollars in antiterrorism training assistance. So no one should be under any illusion that we are not engaging with the Indonesian military or that we are not working with them to thwart international terrorism. We are training them and we are working with them. We are doing that despite the fact--and this is widely known--that the Indonesian military was responsible for creating and arming some of the most radical Muslim terrorist groups in that country. But that is not what this amendment is about. This amendment focuses on a separate, $400,000 military training program, which was suspended in 1999 after senior Indonesian military officers orchestrated the massacre of some 1,000 people in East Timor, and then lied about it. It was criminal, it was shameful, and it was universally condemned. At that time, we, the Congress, said that we would resume that IMET training program when the Indonesian military took steps to bring to justice those responsible. Was that too much to ask? No one thought so at the time. Not here, not in the Pentagon. There has been no justice. In fact, the Indonesian military has flagrantly obstructed justice, intimidating, judges and threatening witnesses. But even worse, there is credible evidence that 5 months ago--last August--the Indonesian military purposefully singled out American citizens for assassination. That they planned an attack which left two American teachers dead and several others wounded. Since the, they have actively tried to obstruct the police investigation of the crime. We all agree that Indonesia is an important country, and that we need to work with the Indonesian government to combat international terrorism, and on other issues. We are doing that. But should we not at least expect the Indonesian military to cooperate with the investigation of the murders of American citizens. Is that too much to ask? It is not about the money. The amount of money is insignificant. It is about the message it sends. This amendment says that before we resume this tiny military training program, the deaths of Americans need to be investigated and the people involved brought to justice. If the military had not actively obstructed the investigation, this amendment would not be necessary. There is even evidence that an army officer shot at a police investigator, and that a police vehicle was attacked. Only after months of refusals and obfuscation, have they finally agreed to let the FBI assist in the investigation, and we do not yet know what access to witnesses or other evidence the FBI will have. This amendment does not cut off anti-terrorism training and it does not cut off the IMET program. In fact, it reinstates the IMET program. There should be no confusion about that. The Feingold amendment reinstates the IMET program. But not for combat training--not until they meet the conditions in the amendment. It is a timely and reasonable amendment. It is a simple amendment. It is a victims rights amendment.

Mr. LEAHY. Mr. President, I support this amendment and I congratulate my friend from Illinois, Senator Durbin. He has been a passionate, relentless advocate for increased funding to fight the horrific scourge of AIDS. The foreign operations portion of this omnibus appropriations bill contains $791 million for international programs to fight AIDS. That is a lot of money, and I applaud Senator McConnell, the chairman of the Foreign Operations Subcommittee, for including those funds, which is similar to the amount that was reported by the Appropriations Committee last July. It is a lot more than we were spending to combat AIDS just 2 or 3 years ago. But think about it another way. The amount we expect to provide in 2003 on AIDS, which threatens the lives of each of the world's 6 billion people--is less than what my own State of Vermont, with a population of only 600,000 people, will spend on health care during that same period. So while the United States is doing more than ever, and we can point to successes in several countries such as Uganda, Thailand, and Brazil, the reality is that the AIDS pandemic is out of control. It is spreading faster, not slower. Forty million people are infected. Almost nobody is receiving treatment. Twenty five million people have died from AIDS-related causes, and at the current rate that number is expected to exceed 65 million by the year 2020. The reality is that despite everything we have done and are doing, we are failing miserably to control this pandemic. Until we develop a strategy that matches the challenge, and until we start thinking in terms of billions, not millions, of dollars, we will continue to fail. The alternative is unthinkable, but it is by no means far-fetched. 100 million deaths, 200 million, 400 million, this virus spreads exponentially and so does the cost of controlling it. Imagine waking up tomorrow morning and learning that every single man, woman, and child--every single person--in Miami, Minneapolis, Atlanta, Denver, Boston, Seattle, Washington, DC, New York City, Los Angeles, Chicago, Houston, Philadelphia, San Diego, Detroit, and Dallas combined had a virus for which there was no cure. That is the reality in Africa today. Every hour--hour, not day, not week not month, every hour--AIDS buries another 250 Africans. Within the next decade, at the current rate, more than 40 million children in Africa will lose one or both parents to AIDS. Many of these children will end up on the streets, turning to crime, drugs or prostitution, driving the rates of HIV even higher, perpetuating this vicious cycle. This is an enormous challenge for Africa, but it is an even greater challenge for the world. Every day, another 12,000 people are infected and millions more continue to suffer needlessly. In India,the infection rate is skyrocketing. In China, only 4 percent of the Chinese population even knows how AIDS is spread. It is a grim picture, but there is a great deal we can do. We do not have a cure for AIDS and there is no vaccine in sight, but we know how to protect ourselves from the HIV virus. We can provide basic care to the sick, and mobilize communities to support the growing number of AIDS orphans. We know how, for pennies a day, to treat the half of all AIDS patients who will otherwise die from the pneumonia, tuberculosis, or meningitis that prey upon weak immune systems. We have to get these drugs, as well as antiretroviral drugs which have been available in wealthy countries for years, to people in poor countries that need them. We know how to reduce the transmission of AIDS from mothers to children. We must also care for the mothers who are sick, because a young child without a mother in these countries cannot survive. We know all these things but, even so, we are failing. The disease is spreading out of control. What we lack, even after all these years, is a global plan. This administration, as the one before it and the one before that, has no plan for how to mount a global campaign to combat the most deadly virus in history. There is no strategy for dealing with 40 million AIDS orphans, no strategy for getting treatment to the 40 million people infected today, or the 50 million who will be infected in another 3 years, no strategy for expanding education and prevention programs on the scale that is called for. It is not enough to point to a few success stories, as important as they are. You have to look at the big picture. Despite everything we have done and are doing, we have failed miserably. This deadly pandemic is out of control, and the amount of money being spent is a pittance of what is needed. If we are going to conquer--or at least control--this disease, we need to think differently about it. It sounds cliche and it has probably been said many times before, but we need the health equivalent of the Manhattan Project or putting a man on the moon. We need to increase our investment not linearly but exponentially. Where we are spending millions we need to spend billions. Unless we start treating AIDS as a global health catastrophe, not just someone else's problem, we will face a far worse, and far more costly, crisis in the future. The world faces immense challenges--from global warming to the threat of nuclear, chemical and biological weapons, to poverty on a vast scale. We cannot ignore any of challenges because they all affect the security of future generations of Americans. But when those same future generations look back at this time and place, I believe they will judge us, more than anything, on how we responded to AIDS. It is the most urgent, the most compelling, moral issue of our time. This amendment is a step, and an important one. I urge President Bush, who has shown real leadership in focusing our country and the world on combating terrorism, to think differently about AIDS. As serious a threat as international terrorism is, and we are spending many billions of dollars to protect ourselves from terrorists, measured by the number of victims it pales compared to AIDS. Last year, the White House opposed an earlier amendment by Senator Durbin, to provide $500 million in emergency funding to combat AIDS. Because of the White House's objection, that amendment was defeated. I hope we do not repeat that mistake today because if AIDS is not an emergency, nothing is. To those who would say we cannot afford the additional $180 million provided in this amendment, I say look at the past decade. Look at the past two decades. If we had only acted then. We could have saved tens of millions of lives and billions of dollars. Instead, there was monumental failure of leadership, and today we are facing costs that were unthinkable then. Have we learned nothing? I hope we have. Let us pass this amendment.

Mr. LEAHY. Mr. President, I rise today to speak in favor of the amendment offered by Senator Nelson that would provide $600 million in emergency food aid to sub-Saharan Africa. I know other Senators are waiting to speak so I will make three short points. First, there is an enormous humanitarian crisis in sub-Saharan Africa. The World Food Program estimates that there are 38 million now at risk of starvation. The situation has gone from bad to worse. Second, humanitarian organizations with field operations in Africa, such as Catholic Relief Services and Save the Children, report that at least $600 million is needed to address these immediate needs. What are the reasons for this shortfall? We are debating a budget request that is almost a year old. When the request was submitted last year, this crisis in Africa had not reached this magnitude. On top of that, commodity prices have increased 30 percent. Third, the Nelson amendment is carefully tailored to give the President the flexibility he needs to deal with the crisis. If the President does not want to spend this money, he does not have to declare an emergency. However, if he feels, as many of us do, that this money is needed now to address this growing crisis, he can declare it an emergency and provide this assistance to sub-Saharan Africa. This is a bipartisan issue. I know Secretary Powell and Administrator Natsios care deeply about Africa. Representative Wolf just came back from Ethiopia and Eritrea and issued a compelling report on the dire situation there. The administration does not currently have the resources to deal with this crisis. It is up to Congress to provide the resources to prevent mass starvation in Africa. We may not get another chance for months.

Mr. LEAHY. Mr. President, I rise today to urge my colleagues to support the Daschle amendment providing emergency assistance to our Nation's family farmers suffering weather-related natural disaster losses in 2001 and 2002 and to oppose the Republican alternative. The Daschle amendment offers several distinct advantages over the Republican alternative offered by Senator Cochran. Unlike the Daschle amendment, the Republican alternative requires deep cuts in discretionary programs. And the cuts will have a dramatic impact on many Americans. This across-the-board cut would eliminate: 1,175 FBI Agents; 490 Food Safety Inspectors; 1,600 Customs inspectors, (fewer inspectors than pre 9/11); kick 2,722 children off early childhood education, (added to original cuts totals 5,522 children); kick 224,689 women, infants and children off WIC; and leave 230,000 Veterans without medical services. Never before has Congress insisted that emergency assistance be offset by cuts in other programs. We don't do this for hurricane relief. We shouldn't do it for drought relief. Unlike the Daschle amendment, the Republican alternative doesn't target assistance to those who suffered from a disaster. In fact, it pays producers who did not suffer a disaster. Historically, producers must show that they personally suffered a qualifying loss before receiving federal disaster assistance. But the Republican amendment does away with this important requirement. So, under their proposal, if a single producer in a county suffers a qualifying loss, every producer in the county and every contiguous county will be eligible to receive a payment. It's wasteful and fails to ensure that those producers who really need the help get it. Unlike the Daschle amendment, the Republican alternative fails to fully restore food assistance funds to the Section 32 account. Back in September, the administration raided money set aside to buy food commodities for school lunches and our Nation's food banks to pay for the Livestock Compensation Program. The payments to drought-stricken farmers were desperately needed, but the administration never should have taken these funds, which were specifically targeted for the hungry. In his amendment, Senator Cochran recognizes the blatant unfairness of the administration's move and restored about half of the funds needed. But with our weak economy and growing food lines, now is not the time for half measures. The Daschle amendment will put the food assistance program back on a sound financial footing, allowing soup kitchens and food banks to keep helping hungry families. For these reasons, I urge my colleagues to support the Daschle amendment and to oppose the Republican alternative.

Mr. LEAHY

Mr. LEAHY. Mr. President, today the Senate considers President Bush's nomination of Director Tom Ridge to be the first Secretary of the new Department of Homeland Security. The real question, however, is not whether the Senate will support the new Department or Director Ridge. I have no doubt that we will. Indeed, the proposal for establishing this Department was born in the Senate, and both that proposal and Director Ridge have enjoyed widespread bipartisan support even during the many months that President Bush was threatening to veto any new cabinet level Department of Homeland Security. Rather, the real question today is whether the President will continue to support the new Department with more than words, or whether having used the Senate proposal for political purposes in the last election, he will now simply disengage or move on to other matters. The initial signs are not good. Even as we debate the confirmation of Director Ridge, the administration is trying to push through Congress a massive tax cut that will benefit most the wealthiest Americans at the same time as massive spending cuts in vital homeland security measures. These reductions include slashing grants to state and local first responders as well as cutting FBI agents and FBI computer upgrades. These are key homeland security measures. When we voted to establish the new Department of Homeland Security, I warned that it would not be enough to just shift agencies from one building to another or to rewrite some boxes on an organizational flow chart. While reorganization was a good first step, I warned that reform was what was needed, and it still is. Reform is a much more difficult task than reorganization. It takes persistence and hard work, and reform cannot be accomplished by one branch of government or one party working unilaterally. True and successful reform will require us to work together. It will require Republicans to work with Democrats in the Congress, and it will require the President and the new Secretary of Homeland Security to work with the Congress. Unfortunately, the track record of the administration in working in a bipartisan manner with the Congress on the homeland security is not a good one. When Director Ridge first assumed his current position, we in the Senate were anxious to hear from him how the Administration was working to protect the homeland. In fact, the Judiciary Committee was the first Committee to invite him to testify after the 9/11 attacks. Unfortunately, for months, the administration refused to allow Director Ridge to testify and tell Congress what he was doing. The President opposed establishing a new cabinet level department in part to avoid such Congressional oversight. That position changed only after congressional oversight highlighted the problems at our agencies charged with protecting our domestic security from international terrorists. I remember well the day when the President reversed his position and decided to support a new Department of Homeland Security. It was on the morning of June 6, 2002, when the Judiciary Committee was holding nationally televised hearings highlighting the testimony of FBI whistleblower Coleen Rowley, who was selected as one of Time Magazine's ``People of the Year'' for 2002. Moments before we began our hearing, the White House announced that it would support a new department, but the President's proposal was long on rhetoric and short on details. Indeed, there was not even a written legislative proposal when the President went on television that night to talk about his welcome change of heart. Eventually, we got a very brief legislative proposal, but the administration candidly admitted that it was a work in progress. Along with that first draft came a promise from Director Ridge, who ran the Administration's legislative effort, that ``We will work together on this.'' Director Ridge repeated that promise when he testified before the Senate Judiciary Committee on June 26, 2002, stating that he was ``anxious to work with the Chairman and other members of the committee to assure that the concerns that [I had] raised are properly addressed.'' He assured us that ``[t]his Administration is ready to work together with you in partnership to get the job done. This is our priority, and I believe it is yours as well.'' That is precisely what we in the Senate tried to do. We negotiated in a bipartisan manner to work out our many differences on the bill. The work was not easy. For example, I worked with my friends Senator Levin, Senator Lieberman and Senator Bennett to reach a responsible compromise on the administration's proposal to gut the Freedom of Information Act with an overly broad exemption that would have given more protection to certain information handed over by private companies and businesses than we give to classified government information. We reached a bipartisan agreement that satisfied both sides and the White House agreed to the compromise language. I also worked with Senator Grassley to address the omission of whistleblower protections from the bill, and we crafted a bipartisan amendment to actually improve existing whistleblower protections as a homeland security measure. We also sought to include the bipartisan FBI Reform bill in the measure so that we could do more than simply move the deck chairs around in the homeland security measure. There were many examples of such bipartisan efforts to address real problems in our Nation's domestic security and improve on the administration's bill. Unfortunately, in the end, the administration did not keep the promise to ``work together'' on the homeland security bill. Instead, the final bill was written by a small group of Republicans, working in secret with the administration. The bill was quickly rammed through the House, which promptly adjourned so that no compromise or debate could occur between the two chambers. Our bipartisan FOIA agreement was jettisoned and the overly broad administration proposal was inserted. The administration's new FOIA-gutting law also for the first time makes it a crime for any Federal Government employee, including Members of Congress and their staffs, to leak or disclose any private business information that the business wants to keep secret. Is this an effort to crimp congressional oversight and control the flow of information to the American people? We will see how this administration wields this new power. The bipartisan FBI Reform Act was omitted from the administration's Homeland Security bill entirely. The bipartisan amendment strengthening whistleblower protections was also left out so that current whistleblower protection, with all of its flaws, simply applies to the new Department. These protections will mean nothing without vigorous enforcement of these laws by the administration. The leadership of the new Department and the Office of Special Counsel must work to encourage a culture that does not punish whistleblowers, and the Congress, including the Judiciary Committee, must continue to vigorously oversee the new and other administrative departments to make sure that this happens. I appreciate Director Ridge's comments at last Friday's hearing before the Governmental Affairs Committee when he stated, ``there's specific language in the statute that reminds the secretary and reminds everyone associated with the new Department that there shall be no reprisals for legitimate whistleblower activity.'' Gone too were other protections for the federal employees who have spent the last year and a half of their lives protecting our country against terrorist attack. Inserted, instead of these important security measures, were pet provisions benefitting Eli Lilly and Texas A&M, to name a few. And now we hear a familiar promise. ``Don't worry. We will work together to reform.'' We will work to ``clarify'' the protections for vital whistleblowers; work to ensure that the best federal workers don't leave the Department; work to make sure that the INS operates better and that the FBI reforms itself. I only hope that, once he is confirmed, Secretary Ridge will work with us in a bipartisan manner. Our best defense against terrorism is improved communication and coordination among local, State, and Federal authorities; and between the U.S. and its allies. Through these efforts, led by the Federal Government and with the active assistance of many others in other levels of government and in the private sector, we can enhance our prevention efforts, improve our response mechanisms, and at the same time ensure that funds allotted for protection against terrorism are being used most effectively. Indeed, Governor Ridge stated at the hearing before the Governmental Affairs Committee last Friday that ``all 50 states and territories have appointed homeland security advisers that participate regularly in meetings at the White House and in bimonthly conference calls with the Office of Homeland Security.'' I appreciate that the local officials of Vermont will have a ``single entry point to address many of the homeland security concerns.'' At the same time that the Department of Homeland Security works to protect the safety of Americans, it is essential that Secretary Ridge makes sure to protect the freedoms of Americans. Recent press reports have warned that the Department will turn into a ``supersnoop's dream'' because it will allow creation of a huge centralized grand database containing a dossier or profile of private transactions and communications that each American has had within the private sector and with the government. Indeed, in section 201, the bill authorizes a new Directorate for Information Analysis and Infrastructure Protection to collect and integrate information from government and private sector entities and to ``establish and utilize . . . data-mining and other advanced analytical tools.'' In addition, in section 307, the bill authorizes $500,000,000 next year to be spent by a new Homeland Security Advanced Research Projects Agency, HSARPA, to make grants to develop new surveillance and other technologies for use in detecting, preventing and responding to homeland security threats. We do not want the Federal Government to become the proverbial ``big brother'' while every local police and sheriff's office or foreign law enforcement agency to become ``little brothers.'' How much information should be collected, on what activities and on whom, and then shared under what circumstances, are all important questions that should be answered with clear guidelines understandable by all Americans and monitored by Congress, in its oversight role, and by court review to curb abuses. I appreciate Director Ridge's promise at last Friday's Governmental Affairs' Committee hearing that ``[a]ny new data-mining techniques or programs to enhance information sharing and collecting must and will respect the civil rights and civil liberties guaranteed to the American people under our Constitution.'' The reorganization is done, but the hard work of reform lies ahead. The FBI, the INS, and other important government agencies must improve their performance, and they need the support of both the Congress and the Administration to do so. The new Department of Homeland Security cannot ``go it alone.'' The Congress now will have an imperative to monitor vigilantly and responsibly the implementation of the new Department. It is essential that Governor Ridge work with Congress as the Director of Homeland Security. Governor Ridge stated before the Governmental Affairs Committee last Friday that he is ``going to do [his] very, very best to respond to whatever requests [he] get[s] from Congress of the United States, because we need to not only build this Department together, but we need to sustain and make sure that we work together to make it as effective as possible.'' We will hold him to this promise. We must work together to effect reform. It is time to match the rhetoric and make that promise come true. I offer my assistance and wish Director Ridge all the best in his new job. Too much depends on it for Director Ridge to fail.

Mr. LEAHY

Mr. LEAHY. Madam President, I yield back whatever time remains on this side.

Mr. LEAHY. Madam President, I am very pleased the Senate is again taking up and passing the AMBER Alert Network Act. I remember last year when Senator Hutchison would meet me coming in one door of the Senate and she would say: This bill is extremely important. Can we get it up and pass it. And before I would get to the other door, Senator Feinstein would grab me saying the same thing. I went to the Judiciary Committee with it. I must say with the strong help and support of the then-ranking member, now chairman of the committee, Senator Hatch. In the course of just 1 week after we introduced this, we held a hearing on the AMBER Alert bill. We passed it in the Judiciary Committee, and we passed it in the full Senate. That is almost unheard of. This is a case of what can happen in the Senate when people set aside political or partisan labels, work together and make sure something can pass. It was unfortunate that the House did not pass it but now we will give them a chance. I am proud to join Senator Hutchison and Senator Feinstein as an original cosponsor of the legislation. Senator Hutchison said it very well, the reasons for the legislation, as did Senator Hatch. I commend those Senators for their leadership. Senator Hutchison and Senator Feinstein have been absolutely dynamic in this case. Because of their support, they made it possible for Senator Hatch and I to get the unanimous support of the Judiciary Committee to move this bill. It has been credited with recovering 43 children nationwide; 84 modified versions have been adopted in local, regional and Statewide locations. And 33 States have a Statewide plan. My home State of Vermont is not yet one of them, but this bill would help towns and counties in States such as mine to build and maintain the AMBER Alert. We spoke about how parents feel. I can imagine, when my children were growing up, the terrible fear that my wife and I would have had at the disappearance of any one of them. I don't know how a parent or grandparent gets through that. I don't know how members of the family get through it. The most vulnerable and most trusting part of our society is our children. Because they are the most vulnerable and the most trusting, we, not only as legislators but as parents, as family members, owe a particular duty to them. I know President Bush is ready to sign this bill as soon as it is passed by both bodies and goes to his desk. I urge all Senators to vote for it to send a very clear message to the other body that we support it. It is a bipartisan bill. They would then pass it. The President will sign it.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to pay tribute to Ms. Jennifer Chartrand, who is leaving the Republican staff of the Foreign Operations Subcommittee. Jennifer hails from Brooklyn and graduated from Fordham University. She began her career in the Senate with the Ethics Committee and went on to become a legislative assistant for Senator Conrad Burns. Jennifer's next move was to join the Foreign Operations Subcommittee, where my staff members got to know her well. She served both in the majority and the minority and was a valuable source of institutional knowledge on a range of issues. While she was a tenacious fighter for Republican priorities, she always worked for good ideas, irrespective of which Senator came up with it. Perhaps most importantly, she always fought for the institutional prerogatives of both the Appropriations Committee and the Senate as a whole. Jennifer also recently staffed a congressional delegation to Europe which I was a part of. I truly appreciate all of her hard work in putting together that trip. While I hate to see Jennifer leave, the good news is that she is only moving across the hall to the Defense Subcommittee. I hope that Senators Stevens and Inouye will not mind if we borrow her from time to time.

Mr. LEAHY

Mr. LEAHY. My friend from Kentucky and I agreed to include this section in the report, but we regret that it was not included before the report hit the printing presses. It is our hope and expectation that it be considered as if included in the fiscal year 2003 Foreign Operations report, as originally printed in the Record last week. Exhibit 1 Democracy Oversight and Coordination The Committee strongly supports programs and activities that advance democracy and freedom abroad, and has included funding in this Act for specific democracy programs it believes are important to United States security interests. The Committee believes that democracy promotion abroad can be an effective bulwark against terrorism, if properly established and implemented. However, the Committee remains concerned with the inconsistent application of democracy programs by State and USAID, and the apparent lack of coordination of these programs within, and between, the agencies. For example, while the Committee applauds State's comprehensive review of Middle East democracy programs, it is perplexed by its lack of leadership and support for the advancement of democracy in Burma. In order to address these concerns, the Committee recommends that State and USAID jointly conduct a comprehensive review of democracy programs, and consider centralizing oversight and coordination within the Bureau of Democracy, Human Rights, and Labor. The Committee will review the progress made in this endeavor as it considers action on the fiscal year 2004 foreign operations appropriations bill.

Mr. LEAHY

Mr. LEAHY. I agree with my friend from Kentucky, the chairman of the Foreign Operations Subcommittee. The additional $5,000,000 in section 524(b) will ensure that these programs are expanded, including through the establishment of civic education programs in countries with a significant Muslim population, and where such programs and activities would be important to United States efforts to respond to, deter, or prevent acts of international terrorism. Is it the understanding of my friend from Kentucky that funds made available under Section 524(b) for civic education are intended to be awarded as a grant or grants to--among other eligible applicants-- educational organizations with experience working in other countries, including organizations in the fields of democracy education, civic education, community service, global education and learning through interactive Internet-based technologies and experience in the field of civic and international elementary and secondary education?

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased today to strongly support the amendment by the Senior Senator from West Virginia to restore funds approved by the Senate Appropriations Committee last year to enhance our homeland security. The Byrd amendment would be giving law enforcement the tools they need to do their job, focusing on both immediate and long-term threats we face at home and abroad. It aims to bolster our security against terrorists, and to improve the administration of justice throughout the country. This Federal support is desperately needed by our States, counties, cities and towns, which are now facing fiscal crisis. Since September 11, 2001, States, counties, cities and towns have become overwhelmed by increasing homeland security costs. The National Governors' Association estimated that States incurred about $7 billion in security costs in the past year alone. The National Association of Counties believes at least $5.2 billion is needed to better equip public health systems to cope with attacks and fight terrorism. The President's ill-conceived tax cut in 2001, along with the new cuts he proposes now, are likely to exacerbate these economic woes. The Byrd amendment would provide the Federal support that our States need by restoring $1 billion in homeland security cuts, restoring $2.5 billion of emergency homeland security funds, and funding the Airport Security Act, all critical needs. The Byrd amendment would also provide needed funding to protect our borders. Through the USA Patriot Act and the Enhanced Border Security and Visa Reform Act, a Democratic Senate led the fight to dramatically increase authorizations for personnel and technology to guard our northern border. Unfortunately, the appropriations package before us would shortchange that pressing need. Senator Byrd's amendment includes an additional and much-needed $83 million to enforce our immigration laws and safeguard our borders, including funding to provide pay upgrades for Border Patrol agents and Immigration inspectors. We are asking more and more of our border personnel, and we must reward them for their hard work or risk losing them altogether. In addition, the Byrd amendment expands the COPS program by providing $150 million for grants to law enforcement and first responder agencies for improved communications systems. I know that Senator Gregg and Senator Hollings, the new chairman and ranking member of the Commerce, Justice, State Appropriations Subcommittee, understand that communication is key to coordinated and effective law enforcement efforts. I thank them for their past bipartisan support in my home state for upgraded communications systems for better law enforcement. This year marked an unfortunate turn after a decade of remarkable declines in the Nation's crime rate. The decade of progress we made under the leadership of President Clinton and Attorney General Reno helped revitalize our cities and restore a sense of security for millions of Americans. According to the latest FBI report, however, the number of murders, rapes, robberies, assaults, and property crimes is up across the United States, the first year-to-year increase since 1991. It is troubling that, at this crucial moment, the Bush Administration is proposing to reduce by nearly 80 percent the Community Oriented Policing Services, COPS, program that has helped to put 115,000 new police officers on the beat since 1994 and Byrne grants to State and local law enforcement. I believe that we must fight to maintain and extend the COPS program and Byrne grants, which has proven its value in increasing the security of our cities, towns, and neighborhoods. I am a strong supporter of Senator Biden and Senator Specter's bipartisan bill to reauthorize the COPS program, which the Senate Judiciary Committee approved unanimously last year only to have an anonymous Republican hold put on it to prevent final passage. I hope we can finally reauthorize the COPS program this year since it has proven to be such a crime-fighting success. As we provide the necessary tools for federal law enforcement officials to protect our homeland security, we must remember that State and local law enforcement officers, firefighters and emergency personnel are our full partners in preventing, investigating and responding to criminal and terrorist acts. As a former State prosecutor, I know that public safety officers are often the first responders to a crime. On September 11, the Nation saw that the first on the scene were the heroic firefighters, police officers and emergency personnel in 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. In addition, the ``Comprehensive Homeland Security Act of 2003'', S. 6, and the ``Justice Enhancement and Domestic Security Act,'' S. 22, which Senator Daschle introduced on behalf of the Democratic Caucus and which I am proud to cosponsor, establish the First Responders Partnership Grant program, which will provide $4 billion in annual grants for each of the next 3 years to support our State and local law enforcement officers in the war against terrorism. First Responder Grants will be made directly to State and local governments and Indian tribes for equipment, training and facilities to support public safety officers in their efforts to protect homeland security and prevent and respond to acts of terrorism. Grants may be used to pay up to 90 percent of the cost of the equipment, training or facility, and each State will be guaranteed a fair minimum amount. This is essential Federal support that our State and local public safety officers need and deserve. Our State and local public safety law enforcement partners welcome the challenge to join in our national mission to protect our homeland security. But we cannot ask State and local law enforcement officers, firefighters and emergency personnel to assume these new national responsibilities without also providing new Federal support. The Byrd Amendment is an essential down payment and with the First Responders Partnership Grant Program, which I hope the Senate will turn to and enact without delay, we can provide the necessary federal support for our State and public safety officers to serve as full partners in our fight to protect homeland security and respond to acts of terrorism.

Mr. LEAHY

Mr. LEAHY. Mr. President, Steve Young was a dear friend, an exceptional leader and a tireless advocate for law enforcement officers across the Nation. There are so many who will truly miss him, and I am one of them. With 26 years of law enforcement experience, in 2001 Steve was elected National President of the Fraternal Order of Police, FOP, the world's largest organization of sworn law enforcement officers with more than 300,000 members in over 2,000 local lodges across the United States. An active police officer, serving as a Lieutenant in the Marion City Police Department of Marion, OH and an FOP member for 26 years, Steve was an innovative leader in law enforcement issues. Before he became FOP's National President, Steve was the organization's National Vice President for 4 years and served as Ohio's State FOP President from 1988 to 1999. For the past 15 years he devoted much of his time to the Ohio State Lodge's Legislative Committee. He graduated from the 185th Session of the FBI National Academy. I was honored to work with Steve and the Fraternal Order of Police on many issues affecting rank-and-file law enforcement officers. Most recently we worked closely together in the last Congress on the top legislative priority of the FOP, the Law Enforcement Officers Safety Act. His powerful testimony before the Senate Judiciary Committee helped enormously as we worked to move this bill forward. He told how law enforcement officers are never ``off-duty,'' and described their commitment as dedicated public servants who are trained to uphold the law and keep the peace. He observed that whenever there is a threat to the peace or to our public safety, law enforcement officers are sworn to answer that call. Steve was dedicated to this legislation because he understood the importance of having law enforcement officers across the nation armed and prepared when they answer that call, no matter where, when, or in what form it comes. Steve Young inspired me and so many others with his enduring dedication to making our communities safer and protecting the officers who are sworn to guard and serve the American public. Law enforcement officers everywhere, and everyone who had the chance to know him or work with him, lost a great friend and champion last night. Our hearts and thoughts and prayers are with his family and friends and associates at this time of sadness over this loss and remembrance of Steve Young's life.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to join my good friend, the senior Senator from Utah, in introducing the PROTECT Act, a bill providing important new tools to fight child pornography. This bill is identical to the measure that Senator Hatch and I worked so hard on in the last Congress. The bill passed the Senate by unanimous consent in the 107th Congress and I am proud to be the lead cosponsor of this legislation for the 108th Congress as well, but unfortunately, 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. The House would not return to take action on this measure that had passed the Senate unanimously or to work out our differences. I hope that the full Senate will quickly pass this bill again, and I strongly urge the Republican leadership in the House of Representatives to take this second opportunity to pass this important legislation. I also urge the Administration to support this bipartisan measure, instead of using this debate as an opportunity to push for legislation that strives to make an ideological statement, but which may not withstand Constitutional scrutiny. I want to take a moment to speak about the history of this important bill and the 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 S. 2520, 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 stick. In 1996, when we passed the Child Pornography Prevention Act, (``CPPA''), many warned us that certain provisions of that Act violated the First Amendment. The Supreme Court's recent decision 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 decision. It is just as important, however, that we avoid repeating our past mistakes. Unlike the 1996 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. 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 teeth, not one with false teeth. After joining Senator Hatch in introducing the PROTECT Act in the 107th Congress, as Chairman of the Judiciary Committee 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 S. 2520 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. Senator Hatch circulated a Hatch-Leahy proposed Judiciary Committee substitute that improved the bill before our October 8 business meeting. 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, including the refusal of Committee members on the other side of the aisle to consider any pending legislation on the Committee's agenda. 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 S. 2520 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 two of Senator Hatch's amendments, because I thought that they risked having the bill declared unconstitutional, I nevertheless called both for the Committee to approve the bill and voted for the bill in its amended form. I will discuss these provisions later. I then sought, that same day, to gain the unanimous consent of the full Senate to pass S. 2520 as reported by the Judiciary Committee, and I worked with Senator Hatch to clear the bill on both sides of the aisle. I am pleased that the Senate did pass S. 2520 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, 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. The provisions of the Hatch-Leahy bill, as we introduce it, are bipartisan and good faith efforts to protect both our children and to honor the Constitution. At our hearing last October, Constitutional and criminal law scholars--one of whom was the same person who warned us last time that the CPPA would be struck down--stated that the PROTECT Act as introduced in the last Congress could withstand Constitutional scrutiny, although there were parts that were very close to the line. Let me outline some of the bill's important provisions: I would like to emphasize some key provisions of the PROTECT Act. 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 carry 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 for two reasons, both of which respond to specific Court criticisms: First, 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.'' The bill also contains a directive to the Sentencing Commission which asks them to distinguish between those who pander or distribute such material who are more culpable than those who solicit the material. Second, the pandering in this provision must be linked to ``obscene'' material, which is totally unprotected speech under Miller. Thus, while I would have liked for the provision to be crafted more narrowly so that ``purported'' material was not included, and I acknowledge that this provision may well be challenged on some of the same grounds as the prior CPPA provision, it responds to some specific concerns raised by the Supreme Court and is significantly narrower than the CPPA's definition of pandering. Second, the bill creates a new crime 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 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--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 can 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 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. 2256(8)(D). This omission may render that provision unconstitutional under the First Amendment, and I hope that, as the legislative process continues, we can work with constitutional experts 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, this 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 ``literary, artistic or scientific value.'' Some new provisions of this bill do take this ``obscenity'' approach, like the new Sec. 2256(8)(B). 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. It does not do America's children any good to write a law that might get struck down by our courts in order to prove an ideological point. These provisions should be fully debated and examined during the legislative process, and I will speak about them in more detail later. The 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 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 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. 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. This change may invite federal, state or local authorities 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. To the extent that these changes in ECPA may have that unintended effect, as this bill is considered in the Judiciary Committee and on the floor, we should consider mechanisms 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. I also must express my disappointment in a recent Government Accounting Office, GAO, report that criticizes the Department of Justice information sharing regulations related to the CMEC tip line. Evidently, 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 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 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. This 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. Finally, the bill provides also 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. These provisions are important, practical tools to put child pornographers out of business for good and in jail where they belong. As to the administration proposal, unfortunately legal experts could not also 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. Last year, I received letters from other Constitutional scholars and practitioners expressing the same conclusion, which I will place in the record with unanimous consent. With regard to the potential constitutional issues and suggested improvements, as I mentioned previously, the PROTECT Act is a good faith effort to tackle this problem, but it is not perfect and I would like to see some additional changes to the bill. I hope that we can consider these as the process moves forward. First, regarding the tip line, I would like to clarify that law enforcement agents cannot ``tickle the tip line'' to avoid the key protections of the Electronic Communications Privacy Act. This may include 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. Second, regarding the affirmative defense, I would like to ensure that there is an affirmative defense for the 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. 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: 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. Thus, 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. Because that is not the approach we have decided to use, I recognize that the PROTECT Act 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 to which I objected that are included in the bill as we introduce it today. I felt and still feel that these provisions needlessly risked a serious constitutional challenge to a bill that provided prosecutors the tools they needed to do their jobs. Let me discuss my opposition to these two amendments offered by my good friend Senator Hatch last Congress. As to the expansion of the pandering provision, although I worked with Senator Hatch to write the new pandering provision in the PROTECT Act, I did not support Senator Hatch's amendment extending the provision to cover ``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 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 current provision. I was heartened that Professor Schauer of Harvard, a noted First Amendment expert, testified at our hearing 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 will place that letter and other materials in the record with unanimous consent of the Senate. Because this change endangers the entire pandering provision, because it is unwise, and because that section is already strong enough to prosecute those who peddle child pornography, I hope that we can debate the merits of that provision as the legislative process continues. And as to the inclusion of 100 percent virtual child pornography in ``Identifiable Minor'' provision, a change to the definition of ``identifiable minor'' would expand the bill to cover ``virtual'' child pornography that is, 100 percent computer generated pictures not involving any real children. For that reason, it also presents constitutional problems. 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. 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. This change which would include all ``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. I hope we can work to narrow this provision. 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.'' 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. The original ``identifiable minor'' provision in the PROTECT Act may be used without any link to obscenity doctrine. Therefore, what saved the original version as 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. That is the provision as Senator Hatch and I introduced this bill last year. The change adopted in the Judiciary Committee last year, 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 never the goal of this provision and that was the reason it was constitutional. There are other provisions in the bill that deal with obscene virtual child pornography that I support. This provision was intended to ease the prosecutor's burden in cases where images of real children were cleverly altered to avoid prosecution. I support the definition of ``identifiable minor'' as we originally wrote and introduced it last Congress. Because this new change seriously weakens the constitutional argument supporting this entire provision, I oppose it and I hope that we can work to further narrow this provision. These provisions raise legitimate concerns, but in the interest of making progress I support consideration of the measure as introduced. I hope that we can work to debate these issues and improve it and produce a bill with the best 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. 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 this year as I fear they did at the close of the last Congress. I urge swift consideration and passage of this important bill aimed at protecting our nation's children. Mr. President, I ask unanimous consent that the letters and materials to which I referred be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to join my good friend, the senior Senator from Utah, in introducing the PROTECT Act, a bill providing important new tools to fight child pornography. This bill is identical to the measure that Senator Hatch and I worked so hard on in the last Congress. The bill passed the Senate by unanimous consent in the 107th Congress and I am proud to be the lead cosponsor of this legislation for the 108th Congress as well, but unfortunately, 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. The House would not return to take action on this measure that had passed the Senate unanimously or to work out our differences. I hope that the full Senate will quickly pass this bill again, and I strongly urge the Republican leadership in the House of Representatives to take this second opportunity to pass this important legislation. I also urge the Administration to support this bipartisan measure, instead of using this debate as an opportunity to push for legislation that strives to make an ideological statement, but which may not withstand Constitutional scrutiny. I want to take a moment to speak about the history of this important bill and the 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 S. 2520, 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 stick. In 1996, when we passed the Child Pornography Prevention Act, (``CPPA''), many warned us that certain provisions of that Act violated the First Amendment. The Supreme Court's recent decision 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 decision. It is just as important, however, that we avoid repeating our past mistakes. Unlike the 1996 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. 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 teeth, not one with false teeth. After joining Senator Hatch in introducing the PROTECT Act in the 107th Congress, as Chairman of the Judiciary Committee 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 S. 2520 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. Senator Hatch circulated a Hatch-Leahy proposed Judiciary Committee substitute that improved the bill before our October 8 business meeting. 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, including the refusal of Committee members on the other side of the aisle to consider any pending legislation on the Committee's agenda. 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 S. 2520 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 two of Senator Hatch's amendments, because I thought that they risked having the bill declared unconstitutional, I nevertheless called both for the Committee to approve the bill and voted for the bill in its amended form. I will discuss these provisions later. I then sought, that same day, to gain the unanimous consent of the full Senate to pass S. 2520 as reported by the Judiciary Committee, and I worked with Senator Hatch to clear the bill on both sides of the aisle. I am pleased that the Senate did pass S. 2520 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, 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. The provisions of the Hatch-Leahy bill, as we introduce it, are bipartisan and good faith efforts to protect both our children and to honor the Constitution. At our hearing last October, Constitutional and criminal law scholars--one of whom was the same person who warned us last time that the CPPA would be struck down--stated that the PROTECT Act as introduced in the last Congress could withstand Constitutional scrutiny, although there were parts that were very close to the line. Let me outline some of the bill's important provisions: I would like to emphasize some key provisions of the PROTECT Act. 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 carry 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 for two reasons, both of which respond to specific Court criticisms: First, 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.'' The bill also contains a directive to the Sentencing Commission which asks them to distinguish between those who pander or distribute such material who are more culpable than those who solicit the material. Second, the pandering in this provision must be linked to ``obscene'' material, which is totally unprotected speech under Miller. Thus, while I would have liked for the provision to be crafted more narrowly so that ``purported'' material was not included, and I acknowledge that this provision may well be challenged on some of the same grounds as the prior CPPA provision, it responds to some specific concerns raised by the Supreme Court and is significantly narrower than the CPPA's definition of pandering. Second, the bill creates a new crime 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 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--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 can 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 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. 2256(8)(D). This omission may render that provision unconstitutional under the First Amendment, and I hope that, as the legislative process continues, we can work with constitutional experts 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, this 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 ``literary, artistic or scientific value.'' Some new provisions of this bill do take this ``obscenity'' approach, like the new Sec. 2256(8)(B). 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. It does not do America's children any good to write a law that might get struck down by our courts in order to prove an ideological point. These provisions should be fully debated and examined during the legislative process, and I will speak about them in more detail later. The 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 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 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. 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. This change may invite federal, state or local authorities 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. To the extent that these changes in ECPA may have that unintended effect, as this bill is considered in the Judiciary Committee and on the floor, we should consider mechanisms 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. I also must express my disappointment in a recent Government Accounting Office, GAO, report that criticizes the Department of Justice information sharing regulations related to the CMEC tip line. Evidently, 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 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 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. This 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. Finally, the bill provides also 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. These provisions are important, practical tools to put child pornographers out of business for good and in jail where they belong. As to the administration proposal, unfortunately legal experts could not also 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. Last year, I received letters from other Constitutional scholars and practitioners expressing the same conclusion, which I will place in the record with unanimous consent. With regard to the potential constitutional issues and suggested improvements, as I mentioned previously, the PROTECT Act is a good faith effort to tackle this problem, but it is not perfect and I would like to see some additional changes to the bill. I hope that we can consider these as the process moves forward. First, regarding the tip line, I would like to clarify that law enforcement agents cannot ``tickle the tip line'' to avoid the key protections of the Electronic Communications Privacy Act. This may include 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. Second, regarding the affirmative defense, I would like to ensure that there is an affirmative defense for the 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. 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: 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. Thus, 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. Because that is not the approach we have decided to use, I recognize that the PROTECT Act 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 to which I objected that are included in the bill as we introduce it today. I felt and still feel that these provisions needlessly risked a serious constitutional challenge to a bill that provided prosecutors the tools they needed to do their jobs. Let me discuss my opposition to these two amendments offered by my good friend Senator Hatch last Congress. As to the expansion of the pandering provision, although I worked with Senator Hatch to write the new pandering provision in the PROTECT Act, I did not support Senator Hatch's amendment extending the provision to cover ``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 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 current provision. I was heartened that Professor Schauer of Harvard, a noted First Amendment expert, testified at our hearing 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 will place that letter and other materials in the record with unanimous consent of the Senate. Because this change endangers the entire pandering provision, because it is unwise, and because that section is already strong enough to prosecute those who peddle child pornography, I hope that we can debate the merits of that provision as the legislative process continues. And as to the inclusion of 100 percent virtual child pornography in ``Identifiable Minor'' provision, a change to the definition of ``identifiable minor'' would expand the bill to cover ``virtual'' child pornography that is, 100 percent computer generated pictures not involving any real children. For that reason, it also presents constitutional problems. 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. 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. This change which would include all ``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. I hope we can work to narrow this provision. 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.'' 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. The original ``identifiable minor'' provision in the PROTECT Act may be used without any link to obscenity doctrine. Therefore, what saved the original version as 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. That is the provision as Senator Hatch and I introduced this bill last year. The change adopted in the Judiciary Committee last year, 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 never the goal of this provision and that was the reason it was constitutional. There are other provisions in the bill that deal with obscene virtual child pornography that I support. This provision was intended to ease the prosecutor's burden in cases where images of real children were cleverly altered to avoid prosecution. I support the definition of ``identifiable minor'' as we originally wrote and introduced it last Congress. Because this new change seriously weakens the constitutional argument supporting this entire provision, I oppose it and I hope that we can work to further narrow this provision. These provisions raise legitimate concerns, but in the interest of making progress I support consideration of the measure as introduced. I hope that we can work to debate these issues and improve it and produce a bill with the best 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. 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 this year as I fear they did at the close of the last Congress. I urge swift consideration and passage of this important bill aimed at protecting our nation's children. Mr. President, I ask unanimous consent that the letters and materials to which I referred be printed in the Record.