Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, since 1994, the U.S. Government has provided tactical aerial intelligence assistance to the Government of Peru, to help it stop the shipment of illegal drugs across its borders. U.S. surveillance aircraft owned by the Defense Department and operated by contractors employed by the Central Intelligence Agency are tasked to locate potential drug flights, which Peruvian military jets then intercept. Occasionally, the Peruvian military has shot down those aircraft. Unfortunately, the mistaken shoot-down on April 20, 2001, of a civilian missionary aircraft resulting in the deaths of two innocent Americans, including a young child, and the wounding of the pilot, revealed serious deficiencies in the procedures governing this program. After a thorough investigation and revision of the procedures, the State Department has recommended that this program be reinstated in Columbia, and it is anticipated that it may also resume at some point in Peru. I understand the motivation for this program is to stop the shipment of illegal drugs. That is a goal we all share, and we are spending hundreds of millions of dollars each year in the Andes to do so. However, a policy of shooting down civilian aircraft in such circumstances would not be lawful in the United States, and I am concerned that the foreign pilots are performing the role of prosecutor, jury and executioner, even when there may be no cause for self-defense and no proof that the operators of the targeted aircraft have broken any law. This policy, in essence, presumed any civilian aircraft in drug- producing areas to be guilty unless proven innocent, and permitted the use of deadly force when there was only the suspicion of involvement of smuggling drugs. I have read a report issued by the Senate Select Committee on Intelligence in October of 2001, which describes the serious flaws in the aerial interdiction program in the Andean countries. I agree with many of the report's findings. The Intelligence Committee report I refer to was commissioned specifically to investigate the April 20, 2001 incident in Peru. Despite the appearance of legitimacy, the missionary plane was singled out by a U.S. surveillance jet as a possible drug smuggling flight. The U.S. surveillance aircraft was participating in the joint U.S.-Peru counter-drug aerial interdiction program. The surveillance jet tracked the path of the missionary flight and a Peruvian military jet responded. A confused and ultimately unsuccessful effort was made by Peruvian military and Peruvian civilian authorities to identify the missionary plane and to surmise the intentions of its crew, all of which are mandated by the standard operating procedures that govern operation of the aerial interdiction program. That information was available to the Peruvian authorities. But due to the lack of access to records of flight plans kept by Peruvian aviation authorities; the failure of a Peruvian officer to check a list of aircraft tail numbers that would have identified the missionary plane as a legitimately owned and operated aircraft; and inefficient communications between the aircraft involved and ground personnel, a presumption of guilt, without supporting evidence, led to this avoidable tragedy. This incident is a glaring example of the dire consequences resulting from attempts by law enforcement and military agencies to take the place of prosecutors and courts to mete out justice to suspected criminals. I am sympathetic to the motivations for this policy. But absent an imminent, serious threat to human health or safety, I do not believe that deadly force of this type should be used against civilian aircraft. While I hope I am proven wrong, I worry that the new procedures, while well-intentioned, may not be adequate to prevent another tragic mistake. I am also concerned that we risk providing other countries with an excuse to shoot down civilian aircraft over their territory, whether to stop illegal drugs or for some completely different reason which they may deem to be legitimate. I urge the administration to reconsider this policy. Yes, we want to stop drugs. Yes, we want to conduct aerial surveillance of suspected aircraft. But shooting civilian aircraft out of the sky, when there is no cause for self-defense, no imminent threat to innocent life, and not even proof of illegality, I believe goes too far. We have seen what can happen. Let us not repeat that mistake.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased today to join Senator Daschle and other Democratic Senators in introducing the Justice Enhancement and Domestic Security Act of 2003. This comprehensive crime bill builds on prior Democratic crime initiatives, including the landmark Violent Crime Control and Law Enforcement Act of 1994, that worked to bring the crime rate down. 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 a Democratic President 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 in all regions of the country except the Northeast, the first year-to-year increase since 1991. This upswing has been fueled by the faltering economy and high unemployment rates. The President's ill- conceived tax cut in 2001, along with the new cuts he proposes now, are likely to exacerbate these economic woes by plunging us deeper into deficit spending. 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. I believe that we must fight to maintain and extend the COPS program, which has proven its value in increasing the security of our cities, towns, and neighborhoods. The Justice Enhancement and Domestic Security Act is designed to get our Nation's crime rates moving downward, in the right direction, again. It also aims to bolster our security against terrorists, and to improve the administration of justice throughout the country. This bill shows the way to making Americans safer. That objective will not be achieved by partisan posturing, ``tough on crime'' rhetoric, and a few executions. It will be achieved by giving law enforcement the tools they need to do their job, focusing on both immediate and long-term threats we face, and protecting the most vulnerable in our society. Most importantly, we should not divert all our attention to fighting foreign terrorism and foreign wars only to discover that the safety of Americans at home is jeopardized by losing the fight on crime. Unfortunately, the rising crime rate shows the risk of not paying attention to the domestic crime issue. The safety of our schools, homes, streets, neighborhoods and communities cannot become a casualty of the economic downturn and our international engagements. Among other things, the bill does the following: Provides $12 billion over three years to support public safety officers in their efforts to protect homeland security and prevent and respond to acts of terrorism. Increases border security by authorizing funds for additional INS personnel and technology. Provides statutory authority for the President to use military tribunals to try suspected terrorists in appropriate circumstances. Targets crime against the most vulnerable members of our society: children and senior citizens. Combats the insidious crime of identity theft. Provides enhanced rights and protections for crime victims. Extends the COPS program and authorizes law enforcement improvement and training grants for rural communities. Increases funding to reduce the backlog of untested DNA evidence in the Nation's crime labs. Proposes important reforms to FBI policies on whistleblowers and other issues critical to our security. Cracks down on war criminals from other nations seeking sanctuary in the United States. Protects against the execution of innocent individuals. In sum, the bill represents an important next step in the continuing effort by Senate Democrats to enhance homeland security and to enact tough yet balanced reforms to our criminal justice system. I should note that the bill contains no new death penalties and no new or increased mandatory minimum sentences. We can be tough without imposing the death penalty, and we can ensure swift and certain punishment without removing all discretion from the judge at sentencing. 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. Subtitle A of title I of the Justice Enhancement and Domestic Security Act establishes a First Responders Partnership Grant program, which will provide $4 billion in annual grants for each of the next three 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 First Responders Partnership Grants will 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. Border Security Subtitle B of title I provides for additional increases in INS personnel and improvements in INS technology to guard our borders. Just in the last few weeks, we have seen reports suggesting that numerous aliens crossed our Northern border illegally with the intention of planning terrorist act. Through the USA PATRIOT Act and the Enhanced Border Security and Visa Reform Act, we have attempted to bolster our borders by creating additional positions. But our work is not done. This legislation would authorize such sums as may be necessary for the INS to hire an additional 250 inspectors and associated support staff, and an additional 250 investigative staff and associated support staff, during each fiscal year through FY2007. It would also authorize $250 million to the INS for the purposes of making improvements in technology for improving border security and facilitating the flow of commerce and persons at ports of entry, including improving and expanding programs for preenrollment and preclearance. Finally, this subtitle requires the Attorney General to report to Congress about the Department's implementation of the border improvements we have already legislated, and about his recommendations for any additional improvements. Military Tribunal Authorization Act On November 13, 2001, President Bush signed a military order authorizing the use of military commissions to try suspected terrorists. This order stimulated an important national debate and led to a series of Judiciary Committee hearings with the Attorney General and others to discuss the many legal, constitutional, and policy questions raised by the use of such tribunals. Our hearings, and the continued public discourse, helped to clarify the scope of the President's order and better define the terms of the debate. Administration officials have taken the position that the President does not need the sanction of Congress to convene military commissions, but I disagree. Military tribunals may be appropriate under certain circumstances, but only if they are backed by specific congressional authorization. At a minimum, as the distinguished senior senator from Pennsylvania stated on this floor on November 15, ``the executive will be immeasurably strengthened if the Congress backs the President.'' Clearly, our government is at its strongest when the executive and legislative branches of government act in concert. Subtitle C of title I, the Military Tribunal Authorization Act of 2003 would provide the executive branch with the specific authorization it now lacks to use extraordinary tribunals to try members of the al Qaeda terrorist network and those who cooperated with them. Specifically, this legislation authorizes the use of ``extraordinary tribunals'' for al Qaeda members and for persons aiding and abetting al Qaeda in terrorist activities against the United States who are apprehended in, or fleeing from, Afghanistan. It also authorizes the use of tribunals for those al Qaeda members and abettors who are captured in any other place where there is armed conflict involving the U.S. Armed Forces. The Military Tribunal Authorization Act defines the jurisdiction and procedure of tribunals in a way that ensures a ``full and fair'' trial for anyone detained. It incorporates basic due process guarantees, including the right to independent counsel. These procedures do not as some have claimed provide greater protections to suspected terrorists than we offer our own soldiers. These are rather, the very basic guarantees provided under various sources of international law. Finally, the bill comes down squarely on the side of transparency in government by providing that tribunal proceedings should be open and public, and include public availability of the transcripts of the trial and the pronouncement of judgment. Passage of authorizing legislation would ensure the constitutionality of military tribunals and protect any convictions they might yield, while at the same time showing the world that we will fight terrorists without sacrificing our principles. Title I of our bill would also provide a new tool for law enforcement to deal with the problem of serious hoaxes and malicious false reports relating to the use of biological, chemical, nuclear, or other weapons of mass destruction. These so-called ``hoaxes'' inflict both mental and economic damage on victims. They drain away scarce law enforcement resources from the investigation of real terrorist activity. They interrupt vital communication facilities. Finally, they feed a public fear that the vast majority of law abiding Americans are working hard to dispel. Federal, State, and local law enforcement already have statutes which they have been using aggressively to prosecute those who have taken advantage of these times to perpetrate hoaxes about anthrax contamination. Existing statutes create serious penalties for threats to use biological, chemical, or nuclear weapons, for sending any threatening communication through the mail, or for making a willful false statement of Federal authorities. Indeed, current Federal threat laws do not require that the defendant have either the intent or present ability to carry out a threat. However, while they carry high penalties, including a maximum of life imprisonment, these statutes can sometimes be awkward when applied in the hoax context. The Justice Enhancement and Domestic Security Act provides a well- tailored statute that deals specifically with the problem of biological, chemical, nuclear and other mass destruction hoaxes. For instance, it gives prosecutors a means to distinguish between a person who is actually threatening to use anthrax on a victim, and a person who never intends to use it, but wants the victim or the police to think they have done so. Another provision provides for mandatory restitution to any victim of these crimes, including the costs of any and all government response to the hoax. An earlier Administration proposal, offered during the debate over the terrorism bill, would have limited such restitution to the Federal government. As we know all too well from recent events, however, it is State and local authorities, along with private victims, who are often the first responders and primary victims when these incidents occur. Our bill provides a mechanism so that they, too, can be reimbursed for their expenses. The second title of the Justice Enhancement and Domestic Security Act contains a several proposals aimed at protecting the most vulnerable members of our society: children and seniors. First, part 1 of subtitle A would enhance the operation of the AMBER Alert communications network in order to aid the recovery of abducted children. It is disturbing to see on TV or in the newspapers photo after photo of missing children from every corner of the Nation. As the father of three Children, as well as a grandfather of two, I know that an abducted child is a parent's or grandparent's worst nightmare. Unfortunately, it appears this nightmare occurs all too often. Indeed, the Justice Department estimates that the number of children taken by strangers annually is between 3,000 and 4,000. These parents and grandparents, as well as the precious children, deserve the assistance of the American people and helping hand of the Congress. The AMBER Plan was created as a reaction to the kidnapping and brutal murder of 9-year-old Amber Hagerman of Arlington, Texas, By coordinating their efforts, law enforcement, emergency management and transportation agencies, radio and television stations, and cable systems have worked to develop an innovative early warning system to help find abducted children by broadcasting information including descriptions and pictures of the missing child, the suspected abductor, a suspected vehicle, and any other information available and valuable to identifying the child and suspect to the public as speedily as possible. The AMBER Alert system's popularity has raced across the United States: since the original AMBER Plan was established in 1996, 55 modified versions have been adopted at local, regional, and statewide levels. Eighteen States have already implemented statewide plans. It is also a proven success: to date, the AMBER Plan has been credited with recovering 30 children. The National AMBER Alert Network Act of 2003 directs the Attorney General, in cooperation with the Secretary of Transportation and the Chairman of the Federal Communications Commission, to appoint a Justice Department National AMBER Alert Coordinator to oversee the Alert's communication network for abducted children. The AMBER Alert Coordinator will work with States, broadcasters, and law enforcement agencies to set up AMBER plans, serve as a point of contact to supplement existing AMBER plans, and facilitate regional coordination of AMBER alerts. In addition, the AMBER Alert Coordinator will work with the FCC, local broadcasters, and local law enforcement agencies to establish minimum standards for the issuance of AMBER alerts and for the extent of their dissemination. In sum, our bill will help kidnap victims while preserving flexibility for the States in implementing the Alert system. Because developing and enhancing the AMBER Alert system is a costly endeavor for States to take on alone, our bill establishes two Federal grant programs to share the burden. First, the bill creates a Federal grant program, under the direction of the Secretary of Transportation, for statewide notification and communications systems, including electronic message boards and road signs, along highways for alerts and other information regarding abducted children. Second, the bill establishes a grant program managed by the Attorney General for the support of AMBER Alert communications plans with law enforcement agencies and others in the community. Similar legislation was proposed in the last Congress by Senators Feinstein and Hutchison and approved by both the Senate Judiciary Committee and the full Senate by unanimous consent only one week after introduction. When the bill passed, it had garnered 41 cosponsors from both sides of the aisle. Unfortunately, despite our great efforts to have the bill passed on its own merits, the House failed to pass it as a stand-alone bill. Instead, it was included in a larger package of bills dubbed the Child Abduction Prevention Act, introduced by Judiciary Committee Chairman Sensenbrenner. Most of the incorporated bills had passed the House but were stalled in the Senate due to controversial language. Our Nation's children, parents, and grandparents deserve our help to stop the disturbing trend of child abductions. The AMBER Alert National Network Act ensures that our communications systems help rescue abducted children from kidnappers and return them safely to their families. Subtitle A of title II also includes the Protecting Our Children Comes First Act of 2003, which would double funding for the National Center for Missing and Exploited Children, (NCMEC), reauthorize the Center through fiscal year 2006, and increase Federal support to help NCMEC programs find missing children. As the Nation's top resource center for child protection, the NCMEC spearheads national efforts to locate and recover missing children and raises public awareness about ways to prevent child abduction, molestation, and sexual exploitation, As a national voice and advocate for those too young to vote or speak up for their own rights, the NCMEC works to make our children safer. The Center operates under a Congressional mandate and works in cooperation with the Justice Department's Office of Juvenile Justice and Delinquency Prevention in coordinating the efforts of law enforcement officers, social service agencies, elected officials, judges, prosecutors, educators, and the public and private sectors to break the cycle of violence that historically has perpetuated such needless crimes against children. NCMEC professionals have disturbingly busy jobs, they have worked on more than 90,000 cases of missing and exploited children since its 1984 founding, helping to recover more than 66,000 children. The Center raised its recovery rate from 60 percent in the 1980s to 94 percent today. It set up a nationwide, toll free, 24-hour telephone hotline to take reports about missing children and clues that might lead to their recovery. It also manages a national Child Pornography Tipline to handle calls from individuals reporting the sexual exploitation of children through the production and distribution of pornography and a CyberTipline to process online leads from individuals reporting the sexual exploitation of children. It has taken the lead in circulating millions of photographs of missing children, and serves as a vital resource for the 17,000 law enforcement agencies located throughout the United States. Today, the NCMEC is truly a national organization, with its headquarters in Alexandria, Virginia and branch offices in five other locations throughout the country to provide hands-on assistance to families of missing children and conduct an array of prevention and awareness programs. It has also grown into an international organization, establishing the International Division of the National Center for Missing and Exploited Children, which works to fulfill the Hague Convention on the Civil Aspects of International Child Abduction. The International Division provides assistance to parents, law enforcement, attorneys, nonprofit organizations, and other concerned individuals who are seeking assistance in preventing or resolving international child abductions. The NCMEC manages to do all of this good work with only a $10 million annual grant, which expired at the end of fiscal year 2002. We should act now both to extend its authorization and increase the center's funding to $20 million each year through fiscal year 2006 so that it can continue to help keep children safe and families intact around the nation. There is so much more to be done to ensure the safety of our children, and this provision will help the Center in its efforts to prevent crimes that are committed against them. The Protecting Our Children Comes First Act also increases Federal support of NCMEC programs to find missing children by allowing the U.S. Secret Service to provide forensic and investigative support to the NCMEC. In addition, it facilitates information sharing by allowing Federal authorities to share the facts or circumstances of sexual exploitation crimes against children with State authorities without a court order, and by allowing the NCMEC to make reports directly to State and local law enforcement officials instead of only through Federal agencies. I applaud the ongoing work of the NCMEC and hope both the Senate and the House of Representatives will support this effort to provide more Federal support for the Center to continue to find missing children and protect exploited children across the country. Finally, subtitle A of title II addresses the problems caused by housing juveniles who are prosecuted in the criminal justice system in adult correctional facilities. It assists the States in providing safe conditions for their confinement and appropriate access to educational, vocational, and health programs. Improving conditions for juveniles today will improve the public safety in the future, as juveniles who are not exposed to adult inmates have a lower likelihood of committing future crimes. As a Nation, we increasingly rely on adult facilities to house juveniles. Nearly all of our States house juveniles in adult jails and prisons, and only half maintain designated youthful offender housing units. I believe that there is a will in the States to improve conditions for these juveniles, but resources are often lacking. The Federal Government can play a useful role by providing funding to States that want to take account of the differences between juveniles and adults. Although many juvenile offenders serving time in adult prisons have committed extraordinarily serious offenses, others are there because of relatively minor crimes and will be released at a young age. Certainly, many of these juveniles can be convinced not to commit further crimes. The social and moral cost of not making that attempt is simply incalculable. Many scholars have questioned whether housing juvenile offenders with adult inmates serves our long-term interest in public safety. Multiple studies have shown that youth transferred to the adult system recidivate at higher rates and with more serious offenses than youth who have committed similar offenses but are retained in the juvenile justice system. We must ensure that juveniles are treated humanely in the criminal justice system to reduce the risks that upon release they will commit additional and more serious crimes. One of the ways we can do that is by helping States improve confinement conditions. Our bill creates a new incentive grant program for State and local governments and Indian tribes. These grants can be used for the following purposes related to juveniles under the jurisdiction of an adult criminal court: 1. alter existing correctional facilities, or develop separate facilities, to provide segregated facilities for them; 2. provide orientation and ongoing training for correctional staff supervising them; 3. provide monitors who will report on their treatment; and 4. provide them with access to educational programs, vocational training, mental and physical health assessment and treatment, and drug treatment. Grants can also be used to seek alternatives to housing juveniles with adult inmates, including the expansion of juvenile facilities. It is important to note that States that choose not to house juveniles who are convicted as adults with adult inmates are still eligible for grants under this bill. For example, they could use the money to train staff, or to provide education or other program for juveniles, or to improve juvenile facilities. In addition to these grants, part 5 of subtitle II reauthorizes the Family Unity Demonstration Project, which provides funding for projects allowing eligible prisoners who are parents to live in structured, community-based centers with their young children. A study by the Bureau of Justice Statistics found that about two-third of incarcerated women were parents of children under 18 years old. According to the White House, on any given day, America is home to 1.5 million children of prisoners. And according to Prison Fellowship Industries, more than half of the juveniles in custody in the United States had an immediate family member behind bars. This is a serious problem that reauthorizing the Family Unity Demonstration Project will help to address. The remainder of title II includes a number of provisions designed to improve the safety and security of older Americans. During the 1990s, while overall crime rates dropped throughout the nation the rate of crime against seniors remained constant. In addition to the increased vulnerability of some seniors to violent crime, older Americans are increasingly targeted by swindlers looking to take advantage of them through telemarketing schemes, pension fraud, and health care fraud. We must strengthen the hand of law enforcement to combat those criminals who plunder the savings that older Americans have worked their lifetime to earn. Subtitle B of title II of our bill, the Seniors Safety Act of 2003, tries to do exactly that, through a comprehensive package of proposals to establish new protections and increase penalties for a wide variety of crimes against seniors. This legislation addresses the most prevalent crimes perpetrated against seniors, containing proposals to reduce health care fraud and abuse, combat nursing home fraud and abuse, prevent telemarketing fraud, and safeguard pension and employee benefit plans from fraud, bribery, and graft. In addition, this legislation would help seniors obtain restitution if their pension plans are defrauded. Many of the proposals in this legislation are just common sense. For example, we would authorize the Attorney General to block telephone service to people using it to commit telemarketing fraud. We would also establish a ``Better Business Bureau'' style clearinghouse at the Federal Trade Commission, so that senior citizens and their families could call and find out whether a telemarketer who was bothering them had a criminal record or had received past complaints. We would make it a new criminal offense to engage in multiple willful violations of the regulations or laws that protect nursing home residents. We would also protect employees at nursing homes who blow the whistle on the mistreatment of residents by giving them the power to bring a lawsuit for damages if they get fired as a result. And we would tell the Sentencing Commission that if you commit a crime against someone who is old and vulnerable, you should get a longer sentence. We want to fight health care fraud and pension fraud because these are benefits that older Americans have earned and that they count on everyday. We must do more to prevent crooks from robbing seniors of their security. That is why we want to create new criminal penalties for pension fraud and give law enforcement more tools to root out and stop health care fraud. The third title of the Justice Enhancement and Domestic Security Act contains important provisions to prevent and punish identify theft, a crime that victimizes thousands of Americans every year. Once a skilled scam artist gets his hands on a consumer's Social Security or bank account number, he can wreak unimaginable havoc on a family's finances. With society conducting more and more of its business electronically, the incidence of identity theft in America is on the rise. In 2001, the Federal Trade Commission consumer hotline received 86,000 complaints of identity theft. Through the first six months of 2002, it received 70,000 such complaints. These complaints are mainly from people who have been hurt by identify theft, but thousands of others come from consumers worried about becoming an identity thief's next victim. Our bill would help identity theft victims restore their credit ratings and reclaim their good names. It gives victims the tools they need, such as the right to obtain relevant business records and the ability to have fraudulent charges blocked from reporting in their consumer credit reports. It also includes provisions designed to thwart identity theft, for example by requiring credit card companies to notify consumers of any change of address request on an existing credit account, by ensuring that credit card receipts no longer bear the expiration date or more than the last five digits of the customer's credit card number, and by entitling every citizen to a free credit report once per year upon request. Finally, it includes important provisions to prevent Social Security numbers from being sold, or published without express consent. Title III also represents the next step in Senate Democrats' continuing efforts to afford dignity and recognition to victims of crime. It provides for comprehensive reform of the Federal law to establish enhanced rights and protections for victims of Federal crime. Among other things, it provides crime victims the right to consult with the prosecution prior to detention hearings and the entry of plea agreements, and generally requires the courts to give greater consideration to the views and interests of the victim at all stages of the criminal justice process. Responding to concerns raised by victims of the Oklahoma City bombing, the bill would provide standing for the prosecutor and the victim to assert the right of the victim to attend and observe the trial. Assuring that victims are provided their statutorily guaranteed rights is a critical concern for all those involved in the administration of justice. That is why the bill establishes an administrative authority in the Department of Justice to receive and investigate victims' claims of unlawful or inappropriate action on the part of criminal justice and victims' service providers. Department of Justice employees who fail to comply with the law pertaining to the treatment of crime victims could face disciplinary sanctions, including suspension or termination of employment. In addition to these improvements to the Federal system, the bill proposes several programs to help States provide better assistance for victims of State crimes. These programs would improve compliance with State victim's rights laws, promote the development of state-of-the-art notification systems to keep victims informed of case developments and important dates on a timely and efficient basis, and encourage further experimentation with the community-based restorative justice model in the juvenile court setting. The bill also provides assistance for shelters and transitional housing for victims of domestic violence. Of particular significance, title III would eliminate the cap on distributions from the Crime Victims Fund, which has prevented millions of dollars in Fund deposits from reaching victims and supporting essential services. With violent crime on the increase and State governments struggling to overcome growing budget deficits, crime victim compensation and assistance programs are facing dire threats to their fiscal stability. We should not be imposing artificial caps on spending from the Crime Victims Fund while substantial needs remain unmet. Our bill proposes replacing the cap with a self-regulating formula, which would ensure stability and protection of Fund assets, while allowing more money to go out to the States for victim compensation and assistance. While we have greatly improved our crime victims programs and made advances in recognizing crime victims rights, we still have more to do. The Justice Enhancement and Domestic Security Act would help make victims' rights a reality. Title IV of the bill includes proposals for supporting Federal, State and local law enforcement and promoting the effective administration of justice. An important element of this effort is the COPS program. As noted earlier, the Bush Administration has proposed to cut the COPS program by nearly 80 percent, despite the success of this program in putting 115,000 new police officers on the beat since 1994. Title IV extends the COPS program through fiscal year 2008, authorizing funding to deploy up to 50,000 additional police officers, 10,000 additional prosecutors, and 10,000 defense attorneys for indigents. It also authorizes $15 million per year for five years to help rural communities retain officers hired through the COPS program for an additional year. In addition, title IV includes the Hometown Heroes Survivors Benefits Act, which would effectively erase any distinction between traumatic and occupational injuries when surviving families apply to the U.S. Department of Justice Public Safety Officers Benefits, PSOB, Program. The PSOB fund currently pays just over $260,000 to families of firefighters, police officers and emergency medical technicians who die in the line of duty. The survivors of emergency responders who die of heart attacks while performing in the line of duty, however, are ineligible to collect benefits. The Hometown Heroes bill would fix the loophole in the PSOB Program to ensure that the survivors of public safety officers who die of heart attacks or strokes in the line of duty or within 24 hours of a triggering effect while on duty, regardless of whether a traumatic injury is present at the time of the heart attack or stroke, are eligible to receive financial assistance. The families of these brave public servants deserve to participate in the PSOB Program if their loved ones die of a heart attack or other cardiac-related ailments while selflessly protecting us from harm. It is time for Congress to show its support and appreciation for these extraordinarily brave and heroic public safety officers by passing the Hometown Heroes Survivors Benefit Act. Title IV would also correct a disparity in the law that denies Federal prosecutors the same retirement benefits as other Federal law enforcement officers. These lawyers, who are more and more often on the front lines in the war on terrorism, deserve the same benefits as the other men and women with whom they work. Also included in title IV of the bill is the FBI Reform Act of 2003, which stems from the lessons learned during a series of Judiciary Committee hearings on oversight of the FBI that I chaired beginning in June 2001. Even more recently, the important changes which are being made under the FBI's new leadership after the September 11 attacks and the new powers granted the FBI by the USA PATRIOT Act have resulted in FBI reform becoming a pressing matter of national importance. Since the attacks of September 11, 2001, and the anthrax attacks last fall, we have relied on the FBI to detect and prevent acts of catastrophic terrorism that endanger the lives of the American people and the institutions of our country. The men and women of the FBI are performing this task with great professionalism at home and abroad. I think that we have all felt safer as a result of the full mobilization of the FBI's dedicated Special Agents, its expert support personnel, and its exceptional technical capabilities. We owe the men and women of the FBI our thanks. For decades the FBI has been outstanding law enforcement agency and a vital member of the United States intelligence community. As our hearings and recent events have shown, however, there is room for improvement at the FBI. We must face the mistakes of the past, and make the changes needed to ensure that they are not repeated. In meeting the international terrorist challenge, the Congress has an opportunity and obligation to strengthen the institutional fiber of the FBI based on lessons learned from recent problems the Bureau has experienced. The view is not mine alone. When Director Bob Mueller testified at his confirmation hearings in July 2001, he forthrightly acknowledged ``that the Bureau's remarkable legacy of service and accomplishment has been tarnished by some serious and highly publicized problems in recent years. Waco, Ruby Ridge, the FBI lab, Wen Ho Lee, Robert Hanssen and the McVeigh documents--these familiar names and events remind us all that the FBI is far from perfect and that the next director faces significant management and administrative challenges.'' Since then, the Judiciary Committee has forged a constructive partnership with Director Mueller to get the FBI back on track. Congress sometimes has followed a hands-off approach about the FBI. But with the FBI's new increased power, with our increased reliance on them to stop terrorism, and with the increased funding requested in the President's budget will come increased scrutiny. Until the Bureau's problems are resolved and new challenges overcome, we have to take a hands-on approach. Indeed our hearing and other oversight activities have highlighted tangible steps the Congress should take in an FBI Reform bill as part of this hands-on approach. Among other things, these hearings demonstrated the need to extend whistleblower protection, end the double standard for discipline of senior FBI executives, and enhance the FBI's internal security program to protect against espionage as occurred in the Hanssen case. When Director Mueller announced the first stage of his FBI reorganization in December 2001, he stressed the importance of taking a comprehensive look at the FBI's missions for the future, and Deputy Attorney General Thompson's office has told us that the Attorney General's management review of the FBI is considering this matter. Director Mueller has stated that the second phase of FBI reorganizations will be part of a ``comprehensive plan to address not only the new challenges of terrorism, but to modernize and streamline the Bureau's more traditional functions.'' Thus, through our hearings, our oversight efforts, and the statements and efforts of the new management team at the FBI, a list of challenges facing the FBI has been developed. Our bill addresses each of these challenges. It strengthens whistleblower protection for FBI employees and protects them from retaliation for reporting wrongdoing. It addresses the issue of a double standard for discipline of senior executives by eliminating the disparity in authorized punishments between Senior Executive Service members and other federal employees. It establishes an FBI Counterintelligence Polygraph Program for screening personnel in exceptionally sensitive positions with specific safeguards, and an FBI Career Security Program, which would bring the FBI into line with other U.S. intelligence agencies that have strong career security professional cadres whose skills and leadership are dedicated to the protection of agency information, personnel, and facilities. It also requires a set of reports that would enable Congress to engage the Executive branch in a constructive dialogue building a more effective FBI for the future. The FBI Reform Act of 2003 is designed to strengthen the FBI as an institution that has a unique role as both a law enforcement agency and a member of the intelligence community. As the Judiciary Committee continues its oversight work and more is learned about recent FBI performance, additional legislation may prove necessary. Especially important will be the lessons from the attacks of September 11, 2001, the anthrax attacks, and implementation of the USA PATRIOT Act and other counterterrorism measures. Strengthening the FBI cannot be accomplished overnight, but with this legislation, we take an important step into the future. In addition to protecting, FBI whistleblowers, title IV of this bill provides new and important protections for other whistleblowers who provide information to Congress. The 107th Congress was one of rejuvenated bipartisan oversight. On the Judiciary Committee we convened the first series of comprehensive bipartisan FBI oversight hearings in decades after I assumed the Chairmanship. The Joint Intelligence Committee conducted bipartisan hearings to ascertain what shortcomings on the part of our intelligence community need to be corrected so as not the allow the 9-11 terrorist attacks to recur. The Senate Banking Committee conducted extensive oversight of the SEC and its relationship with the accounting industry, to ascertain whether a new regulatory scheme was required. Both the Senate and House Judiciary Committees are still attempting to ascertain how the new powers we provided in the USA PATRIOT Act are being used. These are only a few examples. A vital part of the increased oversight was the courage of the whistleblowers who provided information. Their revelations have led to important reforms. The Enron scandal and the subsequent hearing led to the most extensive corporate reform legislation in decades, including the criminal provisions and the first ever corporate whistleblower protections, which I authored. The testimony of the rank and file FBI agents that we heard on the Judiciary Committee helped us to craft bipartisan FBI reform legislation. The same day as Coleen Rowley's nationally televised testimony before the Judiciary Committee, President Bush not only reversed his previous opposition to establishing a new cabinet level Department of Homeland Security, but gave a national address calling for the largest government reorganization in 50 years. In the last year we have learned once again that the public as a whole can benefit from a lone voice. Indeed, Time Magazine recognized the courage of these whistleblowers by naming them the ``People of the Year'' for 2002. Unfortunately, the people who very rarely benefit from these revelations are the whistleblowers themselves. We have heard testimony in oversight hearings on the Judiciary Committee that there is quite often retaliation against those who raise public awareness about problems within large organizations even to Congress. Sometimes the retaliation is overt, sometimes it is more subtle and invidious, but it is almost always there. The law needs to protect the people who risk so much to protect us and create a culture that encourages employees to report waste, fraud, and mismanagement. For those who provide information to Congress, that protection is a hollow promise. On one hand, the law is very clear that it is illegal to interfere with or deny, ``the right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof . . .'' Amazingly, however, this simple provision is a right without a remedy. Employees who are retaliated against for providing information to Congress cannot pursue any avenue of redress to protect their statutory rights. The only exception to this applies to employees of publicly traded companies, who are now covered by the whistleblower provision included in the Sarbanes-Oxley Act that we passed last year. Thus, under current law, government whistleblowers reporting to Congress have less protection than private industry whistleblowers. Title IV would correct this anomaly by providing government employees that come to Congress with the right to bring an action in court when they suffer the type of retaliation already prohibited under the law. Thus, it does not create new statutory rights, but merely provides a statutory remedy for existing law. That way, we can promise future whistleblowers who come before Congress that their rights to access the legislative branch is not an illusion. We can also assure the public at large that our efforts at Congressional oversight and improving the functions of government will be effective. This legislation is strongly supported by leading whistleblower groups, including the National Whistleblower Center and the Government Accountability Project. Title IV of the bill also aims to improve the effective administration of justice by offering a two-pronged attack on sexual assault crime in America. First, it adds more Federal resources for States and for the first time, makes those resources directly available to local governments as well, so that they may eliminate the backlog of untested DNA samples, and in particular, the troubling backlog of untested rape kits. Second, because tapping the potential of DNA technology requires more than eliminating existing backlogs, the bill provides increased Federal support for sexual assault examiner programs, DNA training of law enforcement personnel and prosecutors, and updating the national DNA database. To ensure that these grants are effective, the bill heightens the standards for DNA collection and maintenance, and requires the Department of Justice to promulgate national privacy guidelines. The bill also authorizes the issuance of John Doe DNA indictments for Federal sexual assault crimes, which toll the applicable statute of limitations and permit prosecution whenever a DNA match is made. Congress began to attack the problem of the DNA backlog when it passed the DNA Analysis Backlog Elimination Act of 2000. That legislation authorized $170 million over four years for grants to States to increase the capacity of their forensic labs and to carry out DNA testing of backlogged evidence. Despite the new law and some Federal funding, the persistent backlogs nationwide make it plain that more must be done to help the States. Our bill takes the next step and provides more comprehensive assistance so that the criminal justice system can harness the full power of DNA. A significant problem that arose during Special Prosecutor Kenneth Starr's investigation of President Clinton was the loss of confidentiality that had previously attached to the important work of the U.S. Secret Service. The Department of Justice and Treasury and even a former Republican President advise that the safety of future Presidents may be jeopardized by forcing U.S. Secret Service agents to breach the confidentiality they need to do their job by testifying before a grand jury. I trust the Secret Service on this issue; they are the experts with the mission of protecting the lives of the President and other high-level elected official and visiting dignitaries. I also have confidence in the judgment of former President Bush, who has written, ``I feel very strongly that [Secret Service] agents should not be made to appear in court to discuss that which they might or might not have seen or heard.'' Section 4502 of the Justice Enhancement and Domestic Security Act provides a reasonable and limited protective function privilege so future Secret Service agents are able to maintain the confidentiality they say they need to protect the lives of the President, Vice President and visiting heads of state. Title V of this bill would create new treatment and prevention programs to reduce drug abuse, and reauthorize existing successful ones. Treatment and prevention efforts are often overshadowed by law enforcement needs. Indeed, a recent study by the Center on Addiction and Substance Abuse showed that of every dollar States spent on substance abuse and addiction, only four cents went to prevention and treatment. The States and the Federal government have undeniably important law enforcement obligations, but we must do more to balance those obligations with farsighted efforts to prevent drug crimes from happening in the first place. Heroin is an increasing problem in my State. In other States, methamphetamines or other drugs present a growing challenge. This legislation will help States address their most pressing drug problems, and places a particular emphasis on States that may not have been able to address their treatment and prevention needs in the past. Indeed, among other provisions, the bill offers funding for rural States like Vermont to establish or enhance treatment centers. It instructs the Director of the Center for Substance Abuse Treatment to make grants to public and nonprofit private entities that provide treatment and are approved by State experts. This will allow the Vermont agencies looking to provide heroin treatment--or to prevent heroin abuse in the first place, to acquire Federal funding to help in their efforts. The bill also authorizes funding for residential treatment centers that treat mothers who are addicted to heroin, methamphetamine, or other drugs. This will help mothers, and the children who depend on them to rebuild their lives, it will keep families together. And I hope it will help avoid further stories like one that appeared in the Burlington Free Press in February 2001, in which a young mother told a reporter how heroin ``made it easier for [her] to take care of [her] kids.'' The bill also would fund drug treatment programs for juveniles, who can see their lives quickly deteriorate under the influence of drugs. This is why I have worked to provide Vermont with funding to establish a long-term residential treatment facility for adolescents. I hope to continue that effort through this bill, in the hope that we may be able to prevent future tragedies. We also would reauthorize substance abuse treatment in Federal prisons. It is critical that our prisons be drug-free, both because lawbreaking within our correctional system is a national embarrassment, and because prisoners who are released while still addicted to drugs are far more likely to commit future crimes than prisoners who are released sober. At the same time we are extending the `carrot' of treatment opportunities, we also authorize grants to States and localities for programs supporting comprehensive drug testing of criminal justice populations, and to establish appropriate interventions to illegal drug use for offender populations. Among other additional provisions, we would extend the Safe and Drug- Free Schools and Communities Program, and authorize grants to establish methamphetamine prevention and treatment pilot programs in rural areas. I am particularly proud of title VI of the bill--the Innocence Protection Act, IPA, of 2003. For nearly three years, I have been working hard with members on both sides of the aisle, and in both houses of Congress, to address the horrendous problem of innocent people being condemned to death. The IPA represents the fruits of those efforts. This landmark legislation proposes a number of basic, commonsense reforms to our criminal justice system, aimed at reducing the risk that innocent people will be put to death. We have come many miles since I first introduced the IPA in February 2000, along with four Democratic co-sponsors. There is now a broad consensus across the country--among Democrats and Republicans, supporters and opponents of the death penalty, liberals and conservatives, that our death penalty machinery is broken. We know that the nightmare of innocent people on death row is not just a dream, but a frequently recurring reality. Since the early 1970s, more than 100 people who were sentenced to death have been released, not because of technicalities, but because they were innocent. Goodness only knows how many were not so lucky. These are not just numbers; these are real people whose lives were ruined. Anthony Porter came within two days of execution in 1998; he was exonerated and released from prison only because a class of journalism students investigated his case and identified the real killer. Ray Krone spent ten years in prison, including three on death row; he was released last year after DNA testing exculpated him and pointed to another man as the real killer. These are just two of the many tragedies we learn of every year. Today, Federal judges are voicing concern about the death penalty. Justice Sandra Day O'Connor has warned that ``the system may well be allowing some innocent defendants to be executed.'' Justice Ginsberg has supported a state moratorium on the death penalty. Another respected jurist, Sixth Circuit Judge Gilbert Merritt, has referred to the capital punishment system as ``broken.'' We can all agree that there is a grave problem. The good news is, there is also a broad consensus on one important step we must take, we can pass the Innocence Protection Act. At the close of the 107th Congress, the IPA was cosponsored by a substantial bipartisan majority of the House and by 32 Senators from both sides of the aisle. In addition, a version of the bill had been reported by a bipartisan majority of the Senate Judiciary Committee. It is that version of the bill that we introduce today as title VI of the Justice Enhancement and Domestic Security Act. What would the IPA do? In short, it proposes two minimum steps that we need to take, not to make the system perfect, but simply to reduce what is currently an unacceptably high risk of error. First, we need to make good on the promise of modern technology in the form of DNA testing. Second, we need to make good on the constitutional promise of competent counsel. DNA testing comes first because it is proven and effective. We all know that DNA testing is an extraordinary tool for uncovering the truth, whatever the truth may be. It is the fingerprint of the 21st Century. Prosecutors across the country rightly use it to prove guilt. By the same token, it should also be used to do what it is equally scientifically reliable to do, prove innocence. Where there is DNA evidence, it can show us conclusively, even years after a conviction, where mistakes have been made. And there is no good reason not to use it. Allowing testing does not deprive the state of its ability to present its case, and under a reasonable scheme for the preservation and testing of DNA evidence, the practical costs, burdens and delays involved are relatively small. The Innocence Protection Act would therefore provide improved access to DNA testing for people who claim that they have been wrongfully convicted. It would also prevent the premature destruction of biological evidence that could hold the key to clearing an innocent person and, as we recently saw in Ray Krone's case, identifying the real culprit. But DNA testing addresses only the tip of the iceberg of the problem of wrongful convictions. In most cases, there is no DNA evidence to be tested, just as in most cases, there are no fingerprints. In the vast majority of death row exonerations, no DNA testing has or could have been involved. So the broad and growing consensus on death penalty reform has another top priority. All the statistics and evidence show that the single most frequent cause of wrongful convictions is inadequate defense representation at trial. By far the most important reform we can undertake is to ensure minimum standards of competency and funding for capital defense. Under the IPA, States may choose to work with the federal government to improve the systems by which they appoint and compensate lawyers in death cases. These States would receive an infusion of new Federal grant money, but they would also open themselves up to a set of controls that are designed to ensure that their systems truly meet basic standards. In essence, the bill offers the States extra money for quality and accountability. A State may also decline to participate in the new grant program, In that case, the money that would otherwise be available to the state would be used to fund one or more organizations that provide capital representation in that state. One way or another, the bill would improve the quality of appointed counsel in capital cases. This is a reform that does not in any way hinder good, effective law enforcement. More money is good for the States. More openness and accountability is good for everyone. And better lawyering makes the trial process far less prone to error. We can never guarantee that no innocent person will be convicted. But surely when people in this country are put on trial for their lives, they should be defended by lawyers who meet reasonable standards of competence and who have sufficient funds to investigate the facts and prepare thoroughly for trial. That bare minimum is all that the counsel provisions in the IPA seek to achieve. The Innocence Protection Act addresses grave and urgent problems with moderate, fine-tuned practical solutions. It has passed out of Committee in the Senate and is supported by a majority of the House. Justice demands that we pass it before more lives are ruined. Title VII of the bill includes various proposals for strengthening the Federal criminal laws, including, in subtitle A, the Anti-Atrocity Alien Deportation Act of 2003. This bill would close loopholes in our immigration laws that have allowed war criminals and human rights abusers to enter and remain in this country. I am appalled that this country has become a safe haven for those who exercised power in foreign countries to terrorize, rape, murder and torture innocent civilians. A recent report by Amnesty International claims that nearly 150 alleged human rights abusers have been identified living here, and warns that this number may be as high as 1,000. The problem of human rights abusers seeking and obtaining refuge in this country is real, and requires an effective response with the legal and enforcement changes proposed in this legislation. We have unwittingly sheltered the oppressors along with the oppressed for too long. We should not let this situation continue. We need to focus the attention of our law enforcement investigators to prosecute and deport those who have committed atrocities abroad and who now enjoy safe harbor in the United States. The Anti-Atrocity Alien Deportation Act would provide a stronger bar to human rights abusers who seek to exploit loopholes in current law. The Immigration and Nationality Act currently provides that 1. Participants in Nazi persecutions during the time period from March 23, 1933 to May 8, 1945, 2. aliens who engaged in genocide, and 3. aliens who committed particularly severe violations of religious freedom, are inadmissible to the United States and deportable. This legislation would expand the grounds for inadmissibility and deportation to 1. Add new bars for aliens who have engaged in acts, outside the United States, of ``torture'' and ``extrajudicial killing'' and 2. remove limitations on the current bases for ``genocide'' and ``particularly severe violations of religious freedom.'' The bill would not only add the new grounds for inadmissibility and deportation, it would expand two of the current grounds. First, the current bar to aliens who have ``engaged in genocide'' defines that term by reference to the ``genocide'' definition in the Convention on the Prevention and Punishment of the Crime of Genocide. For clarity and consistency, the bill would substitute instead the definition in the Federal criminal code, which was adopted pursuant to the U.S. obligations under the Genocide Convention. The bill would also broaden the reach of the provision to apply not only to those who ``engaged in genocide,'' as in current law, but also to cover any alien who has ordered, incited, assisted or otherwise participated in genocide. This broader scope will ensure that the genocide provision addresses a more appropriate range of levels of complicity. Second, the current bar to aliens who have committed ``particularly severe violations of religious freedom,'' as defined in the International Religious Freedom Act of 1998, limits its application to foreign government officials who engaged in such conduct within the last 24 months. Our bill would delete reference to prohibited conduct occurring within a 24-month period since this limitation is not consistent with the strong stance of the United States to promote religious freedom throughout the world. Changing the law to address the problem of human rights abusers seeking entry and remaining in the United States is only part of the solution. We also need effective enforcement, which I believe we can obtain by updating the mission of the Justice Department's Office of Special Investigations, or OSI. Our county has long provided the template and moral leadership for dealing with Nazi war criminals. The OSI, which was created to hunt down, prosecute, and remove Nazi war criminals who had slipped into the United States among their victims under the Displaced Persons Act, is an example of effective enforcement. Since the OSI's inception in 1979, over 60 Nazi persecutors have been stripped of U.S. citizenship, almost 50 have been removed from the United States, and more than 150 have been denied entry. The OSI was created by the power of Attorney General Civiletti almost 35 years after the end of World War II and it is only authorized to track Nazi war criminals. As any prosecutor, or, in my case, former prosecutor, knows instinctively, delays make documentary and testimonial evidence more difficult to obtain. Stale cases are the hardest to make. We should not repeat the mistake of waiting decades before tracking down war criminals and human rights abusers who have settled in this country. War criminals should find no sanctuary in loopholes in our current immigration policies and enforcement. No war criminal should ever come to believe that he is going to find safe harbor in the United States. The Anti-Atrocity Alien Deportation Act would for the first time provide statutory authorization for the OSI within the Department of Justice, with authority to denaturalize any alien who has participated in Nazi persecution, torture, extrajudicial killing or genocide abroad. The bill would also expand the OSI's jurisdiction to deal with any alien who participated in torture, extrajudicial killing and genocide abroad, not just Nazis. Unquestionably, the need to bring Nazi war criminals to justice remains a matter of great importance. Funds would not be diverted from the OSI's current mission. Additional resources are authorized in the bill for OSI's expanded duties. Title VII of the Justice Enhancement and Domestic Security Act also includes a proposal to increase the maximum penalties for violations of three existing statutes that protect the cultural and archaeological history of the American people, particularly Native Americans. The United States Sentencing Commission recommended the statutory changes contained in this proposal, which would complement the Commission's strengthening of Federal sentencing guidelines to ensure more stringent penalties for criminals who steal from our public lands. Passage of this legislation would demonstrate Congress' commitment to preserving our nation's history and our cultural heritage. The Justice Enhancement and Domestic Security Act is a comprehensive and realistic set of proposals for assisting local enforcement, preventing crime, protecting our children and senior citizens, and assisting the victims of crime. I look forward to working on a bipartisan basis for passage of as much of this bill as possible during the 108th Congress. I ask unanimous consent that a section-by-section summary of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that the Senate is passing H.R. 5472, to extend family farmer bankruptcy protection until July 1, 2003. Unfortunately, too many family farmers have been left in legal limbo in bankruptcy courts across the country because Chapter 12 of the Bankruptcy Code is still a temporary measure. This is the fifth time that this Congress must act to restore or extend basic bankruptcy safeguards for family farmers because Chapter 12 is still a temporary provision despite its first passage into law in 1986. Our family farmers do not deserve these lapses in bankruptcy law that could mean the difference between foreclosure and farming. In 2000 and 2001, for example, the Senate, then controlled by the other party, failed to take up a House-passed bill to retroactively renew Chapter 12 and, as a result, family farmers lost Chapter 12 bankruptcy protection for 8 months. Another lapse of Chapter 12 lasted more than 6 months in this Congress. Enough is enough. It is time for Congress to make Chapter 12 a permanent part of the Bankruptcy Code to provide a stable safety net for our nation's family farmers. I strongly supported Senator Carnahan's bipartisan amendment to make Chapter 12 a permanent part of the Bankruptcy Code as part of the Senate-passed farm bill. The Senate unanimously approved the Carnahan amendment by a 93-0 vote. Unfortunately, the House majority objected to including the Carnahan amendment in the farm bill conference report and agreed to an extension of Chapter 12 only through the end of this year. In the bipartisan bankruptcy reform conference, we again tried to make Chapter 12 permanent and update and expand its coverage. During our conference negotiations, we adopted most of the Senate-passed provisions, including those authored by Senator Grassley to make Chapter 12 permanent and those authored by Senator Feingold to strengthen Chapter 12 to help our family farmers with the difficulties they face. Just last week, however, the House majority again scuttled our bipartisan efforts by failing to pass the rule to consider the bipartisan conference report on the Bankruptcy Abuse Prevention and Consumer Protection Act. This week, Senator Grassley and I introduced the family farmer provisions in the bipartisan bankruptcy conference report in S. 3174, the ``Protection of Family Farmers and Family Fisherman Act of 2002.'' Our bipartisan bill makes Chapter 12 a permanent part of the Bankruptcy Code so family farmer bankruptcy protection will no longer lapse and force farmers into a legal limbo. Family farmers deserve these enhanced and permanent protections to help them prevent foreclosures and forced auctions. I know Senator Grassley, Senator Carnahan, Senator Feingold and others on both sides of the aisle strongly support permanent and expanded bankruptcy protection for family farmers. I hope the Senate and the House will quickly pass our bipartisan bill in the next Congress. In the meantime, I look forward to the President signing into law this legislation to extend basic bankruptcy protection for our family farmers through the first six months of next year.

Mr. LEAHY

Mr. LEAHY. Mr. President, S. 2222 would privatize 12,000 acres of Tongass National Forest land in Berners Bay, a popular recreation area for residents of Juneau, Alaska. The two corporations--Sealaska and Cape Fox Corporations--that would receive title to the National Forest lands have a history of closing public access to their lands and heavily logging them. Most of the logs have been exported directly to Asia without any domestic processing. The provisions for old-growth reserves in the reported version of S. 2222 offer little protection. The vast majority of old-growth forest on the newly privatized National Forest lands could still be heavily logged and the logs shipped straight to Asia with no domestic manufacturing. Trading land to two Native corporations is not the only reason proponents so desperately wanted this bill to move this year though. The bill will also make it much easier for a mining corporation to open a gold mine adjacent to the national forest land being traded. The proposed Kensington mine is currently permitted to store its mine tailings on its own land. But the mine wants to reduce its operating costs by instead dumping its mine tailings in a pristine lake that conveniently is within the 12,000 acres being traded. EPA and the State of Alaska have written opinions suggesting that dumping tailings in this lake is likely illegal under the Clean Water Act. The potential environmental impact of the mine tailings dump and logging operation on the land will have long-term effects on an extremely rich salmon producing area. Berners Bay also contains abundant wildlife, such as wolves and brown and black bears that will be impacted by the increased activity in the area and water pollution generated by the mine and logging operations. By privatizing the land, the public will have little knowledge or say in how the mine and logging operations affect the recreational, hunting, fishing and ecological values of the bay. The fishing and tourism industries, both key to Southeast Alaska, will be largely shut out of any oversight of the operations even though it will likely have a direct impact on their financial well-being. The environmental and economic concerns about these land exchanges should raise enough red flags to demand much greater scrutiny from this body. On top of that, these bills also raise serious questions about the cost to taxpayers nationally of privatizing our public resources. In return for the 12,000 acres transferred to Cape Fox, taxpayers would get 3,000 acres of largely clearcut private lands and certain subsurface rights. There is no safeguard in the bill allowing the public to actually have a say in whether this is a good, or even fair, deal for taxpayers. The University of Alaska land exchange would turn over at least 250,000 acres of federal lands without a public process for approving or rejecting which lands actually get transferred. Instead, it is solely left to the Secretary of the Interior to decide. Again, these two bills are troubling enough on their own because of their environmental and economic impacts. However, the idea of trading away public lands with little or no public input and no economic or environmental analysis is even more troubling. Over the years, our federal agencies and this body have done an admirable job of protecting these lands for the public, not for private interests. We should not start reversing that record now.

Mr. LEAHY. Mr. President, every year we get to this point at the end of a Congress where many bills get packaged together and move through under unanimous consent. Usually this process works well and gives each of us an opportunity to work out concerns we might have about any particular bill. Unfortunately, last night two bills were approved that should have received much greater scrutiny by the full Senate. Instead, they squeaked through because the proponents cleverly bundled them with over 100 other uncontroversial, local-interest bills. Together, the Cape Fox Land Entitlement Adjustment Act and the University of Alaska lands bill will give away huge chunks of our federal lands in Alaska. Individually, they represent what I fear will be facing us in the near future--the quiet erosion of our federal lands for the benefit of private interests. These bills turn over more than 260,000 acres of federal lands in Alaska without addressing fundamental public concerns about public access, logging, roadless areas and the impact on fish and wildlife. Both of these bills are opposed by many Alaska and national environmental organizations. I ask unanimous consent to have printed in the Record two letters, dated July 16, 2002 and September 4, 2002, outlining some of their concerns that were not heard as these bills were being rushed to the floor and passed last night.

Mr. LEAHY

Mr. LEAHY. Mr. President. I am very pleased that H.R. 3180, legislation to consent to certain amendments to the New Hampshire- Vermont Interstate School Compact, has been adopted by the Senate. This legislation was passed out of the Senate Judiciary Committee last week and I am pleased my colleagues have joined me in supporting its passage today. There are a handful of Vermont communities that share a school district with their neighbors across the border in New Hampshire. Congress first approved of the New Hampshire-Vermont Interstate School Compact in 1969 to allow these interstate districts to be put in place. H.R. 3180 amends the original Compact by providing these interstate districts with local flexibility regarding how to conduct bond votes for their school construction projects. Last year, residents of the Dresden School District, one of two interstate school districts formed under this Compact, voted to change the way bond votes are conducted in their communities. The Vermont and New Hampshire Legislatures approved these changes, as did the U.S. House of Representatives when it passed H.R. 3180, sponsored by Representative Charlie Bass of New Hampshire and my colleague from Vermont, Representative Bernie Sanders, after a 425 to 0 vote to suspend the rules. This bill will allow local schools to make local choices about the best way to spend their dollars. While I regret that this simple piece of legislation was not agreed to sooner, I applaud its passage today.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that the Senate is taking the important step of passing the Helms-Leahy substitute amendment to H.R. 5469, the ``Small Webcaster Settlement Act of 2002.'' This legislation reflects hard choices made in hard negotiations under hard circumstances. I commend House Judiciary Chairman Sensen- brenner and Representative Conyers for bringing this legislation to a successful conclusion and passage in the House of Representatives in a timely fashion to make a difference in the prospects of many small webcasters. I also thank Senator Helms and his staff for working constructively in the lame duck session of this Congress to get the bill done. The Internet is an American invention that has become the emblem of the Information Age and an engine for bringing American content into homes and businesses around the globe. I have long been an enthusiast and champion of the Internet and of the creative spirits who are the source of the music, films, books, news, and entertainment content that enrich our lives, energize our economy and influence our culture. As a citizen, I am impressed by the innovation of new online entrepreneurs, and as a Senator, I want to do everything possible to promote the full realization of the Internet's potential. A flourishing Internet with clear, fair and enforceable rules governing how content may be used will benefit all of us, including the entrepreneurs who want us to become new customers and the artists who create the content we value. The advent of webcasting, streaming music online rather than broadcasting it over the air as traditional radio stations do, has marked one of the more exciting and quickly growing of the new industries that have sprung up on the Web. Many of the new webcasters, unconstrained by the technological limitations of traditional radio transmission, can and do serve listeners across the country and around the world. They provide music in specialized niches not available over the air. They feature new and fringe artists who do not enjoy the few spots in the Top 40. And they can bring music of all types to listeners who, for whatever reason, are not being catered to by traditional broadcasters. We have been mindful on the Judiciary Committee that as the Internet is a boon to customers, we must not neglect the artists who create and the businesses which produce the digital works that make the online world so fascinating and worth visiting. With each legislative effort to provide clear, fair and enforceable intellectual property rules for the Internet, a fundamental principle to which we have adhered is that artists and producers of digital works merit compensation for the value derived from the use of their work. In 1995, we enacted the Digital Performance Right in Sound Recordings Act, which created an intellectual property right in digital sound recordings, giving copyright owners the right to receive royalties when their copyrighted sound recordings were digitally transmitted by others. Therefore when their copyrighted sound recordings are digitally transmitted, royalties are due. In the 1998 Digital Millennium Copyright Act, DMCA, we made clear that this law applied to webcasters and that they would have to pay these royalties. At the same time, we created a compulsory license so that webcasters could be sure of the use of these digital works. We directed that the appropriate royalty rate could be negotiated by the parties or determined by a Copyright Arbitration Royalty Panel, or CARP, at the Library of Congress. Despite some privately negotiated agreements, no industry-wide agreement on royalty rates was reached and therefore a CARP proceeding was instituted that concluded on February 20, 2002. The CARP decision set the royalty rate to be paid by commercial webcasters, no matter their size, at .14 cents per song per listener, with royalty payments retroactive to October 1998, when the DMCA was passed. At a Judiciary Committee hearing I convened on this issue on May 15, 2002, nobody seemed happy with the outcome of the arbitration and, in fact, all the parties appealed. The recording industry and artist representatives feel that the royalty rate, which was based on the number of performances and listeners, rather than on a percentage-of- revenue model, was too low to adequately compensate the creative efforts of the artists and the financial investments of the labels. Many webcasters declared that the per-performance approach, and the rate attached to it, would bankrupt small operations and drain the large ones. I said then that such an outcome would be highly unfortunate not only for the webcasters but also for the artists, the labels and the consumers, who all would lose important legitimate channels to connect music and music lovers online. On appeal, the Librarian in June 2002, cut the rate in half, to .07 cents per song per listener for commercial webcasters. Nevertheless, many webcasters, who had been operating during the four year period between 1998 and 2002, were taken by surprise at the amount of their royalty liability. The retroactive fees were to be paid in full by October 20 and would have resulted in many small webcasters in particular, going out of business. In order to avoid many webcasting streams going silent on October 20, when retroactive royalty payments were due, I urged all sides to avoid more expense and time and reach a negotiated outcome more satisfactory to all participants than the Librarian's decision. I also monitored closely the progress of negotiations between the RIAA and webcasters. On July 31, I sent a letter with Senator Hatch to Sound Exchange, which was created by the RIAA to act as the agent for copyright holders in negotiating the voluntary licenses with webcasters under the DMCA and to serve as the receiving agent for royalties under the CARP process. The letter posed questions on the status of the reported on-going negotiations between RIAA/Sound Exchange and the smaller webcasters, the terms being proposed and considered, and how likely the outcome of those negotiations would be to produce viable deals for smaller webcasters, while still satisfying the copyright community. Reports on the progress of these negotiations were disappointing, which makes this legislation all the more important. As a general principle, marketplace negotiations are the appropriate mechanism for determining the allocation of compensation among interested parties under copyright law. Yet, we have made exceptions to this general principle, as reflected in this legislation and the very compulsory license provisions it amends. The legislation reflects a compromise for all the parties directly affected by this legislation--small webcasters, noncommercial webcasters, and hobbyists that could not survive with the rates set by the Librarian, and copyright owners and performers who under this bill will give certain eligible webcasters an alternative royalty payment scheme. this legislation does not represent a complete victory for any of these stakeholders. Artists and music labels may believe that they are foregoing significant royalties under this legislation and I appreciate that there are those in the webcasting business, who are either not covered or not sufficiently helped by the bill, who believe that this legislation should do more. As one analyst the Radio and Internet Newsletter stated, in the October 11, 2002 issue, ``Clearly, the `Small Webcaster Amendments Act of 2002' a/k/a H.R. 5469 is an imperfect bill that doesn't fix everything for everybody; Still, overall, does it do more good than harm for more people? My belief is that many are helped one way or the other and virtually no one is assured of being hurt. Thus, the answer, the whole, would be yes.'' I know that most webcasters share my belief that artists and labels should be fairly compensated for the use of their creative works. This legislation provides both compensation to the copyright owners and helps to support the webcasting industry by offering more variable payment options to small webcasters than the one-size-firts-all per performance rate set out in the original CARP and Librarian decisions. The rates, terms and record-keeping provisions are applicable only to the parties that qualify for and elect to be governed by this alternative royalty structure and no broad principles should be extrapolated from the rates, terms and record-keeping provisions contained in the bill. The Copyright Office is presently engaged in a rule-making on record-keeping and this bill does not supplant that ongoing process. After the House passed H.R. 5469 on October 7, 2002, I have worked with Senator Hatch to clear the bill for passage through the Senate and address concerns raised on both sides of the aisle. While the bill was finally cleared for passage by all the Democratic Senators on October 17, passage of the legislation was blocked before the lame-duck session. I am pleased to have worked with Senator Helms on a substitute that resolves some of the concerns raised about the original House- passed bill. The Helms-Leahy substitute makes the following changes in H.R. 5469: First, it authorizes SoundExchange to enter into agreements with groups representing small webcasters and noncommercial webcasters. Such agreements will be available generally to any party which qualifies under their terms as an option to the rates adopted by the Copyright Office. The rates and terms of such agreements will be binding on all copyright holders once the agreement has been published in the Federal Register by the Copyright Office. Such deals are authorized to cover the retroactive fees, as well as those going forward. Second, the substitute amendment imposes a 6 month moratorium on fee collections from noncommercial entities, to allow for negotiations with such entities. This provision is particularly important for noncommercial webcasters, such as those operating at colleges and universities. The Librarian's decision contained an anomaly under which nonprofit entities that held FCC licenses were given a lower per performance rate than were commercial entities, but no such provision was made for noncommercial entities that were not FCC licensees. The bill provides a moratorium on the collection of royalties in order for an alternative agreement to be reached. It also authorizes Sound Exchange to postpone retroactive royalty collections from small webcasters with whom it is negotiating deals. The original House-passed bill recognized the retroactive burden on many of the small commercial webcasters by allowing them to make their payments based on a percentage of revenue or percentage of expense, but also allows both small commercial and noncommercial webcasters to pay these retroactive fees in three payments over he span of a year. Third, the substitute amendment adopts language making clear that such deals are not precedent in any judicial proceeding or in future CARPs. Fourth, the substitute amendment provides for direct payment to artists and deductibility of expenses from the proceeds of the royalties. Finally, the substitute amendment authorizes a GAO/Copyright Office study on the impact of agreements between third parties and webcasters and the effect that such agreements should have on percentage of expense royalty rates. This authorization does not contain any preliminary findings or sense of the Congress language as to how such study should be resolved. The agreement to be negotiated between Sound Exchange and small webcasters will likely reflect the rates and terms set forth in the original House-passed bill. These terms provide an option of paying a percentage of revenue and stay in business. As one Vermont webcaster told me, ``Although the percentage of revenue is too high, at least we have the option. A percentage of revenue deal with enable [us] to stay in business moving forward, grow our audience, and compete.'' The Librarian of Congress royalty rate is based on a per performance formula, which has the unfortunate effect of requiring webcasters to pay high fees for their use of music, even before the audience of the webcaster has grown to a sufficient size to attract any appreciable advertising revenues. Without any percentage of revenue option (as the legislation allows), the webcasting industry would be closed to all but those with the substantial resources necessary to subsidize the business until the advertising revenues caught up to the per performance royalty rate. A number of concerns have been raised that the rate and terms of the agreements authorized under the substitute amendment do not constitute evidence of any rates, rate structure, fees, definitions, conditions or terms that would have been negotiated in the marketplace between a willing buyer and willing seller. The concern stems from the DMCA's statutory license fee standard directing the CARP to establish rates and terms ``that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller,'' rather than a determination of ``reasonable copyright royalty rates'' according to a set of balancing factors. This new webcasting standard may be having the unfortunate and unintended result that webcasters and copyright owners are concerned that the rates and terms of any voluntary licensing agreements will be applied industry- wide. The new webcasting standard appears to be making all sides cautious and reluctant to enter into, rather than facilitating, voluntary licensing agreements. Passage of this legislation does not mean that our work is done. As this webcasting issue has unfolded, I have heard complaints from all sides about the fairness and completeness of procedures employed in the arbitration. Indeed, the concerns of many small webcasters were never heard, since the cost of participating in the proceedings was prohibitively expensive and their ability to participate for free was barred by procedural rules. One thing is clear: Compulsory licenses are no panacea and their implementation may only invite more congressional intervention. To avoid repeated requests for the Congress or the courts to intercede, we must make sure the procedures and standards used to establish the royalty rates for the webcasting and other compulsory licenses produce fair, workable results. Next year, we should focus attention on reforming the CARP process.

Mr. LEAHY

Mr. LEAHY. I am pleased that the Senate late last night passed S. 2598, the Enhanced Protection of Our Cultural Heritage, EPOCH, Act of 2002, which I introduced earlier this year with Senators Inouye, Clinton, Bingaman, and Boxer. This legislation increases the maximum penalties for violations of three existing statutes that protect the cultural and archaeological history of the American people, particularly Native Americans. The U.S. Sentencing Commission recommended the statutory changes contained in this bill, which would complement the Commission's strengthening of Federal sentencing guidelines to ensure more stringent penalties for criminals who steal from our public lands. This bill increases the maximum penalities for the Archaeological Resources Protection Act, ARPA, 16 U.S.C. Sec. 470ee, the Native American Graves Protection and Repatriation Act, NAGPRA, 18 U.S.C. Sec. 1170, and for 18 U.S.C. Sec. 1163, which prohibits theft from Indian tribal organizations. All three statutes currently impose a 5- year maximum sentence, and each includes a lower maximum for a first offense of the statute and/or a violation of the statute involving property of less than a specified value. The bill would create a 10- year maximum sentence for each statute, while eliminating the lower maximums under ARPA and NAGPRA for first offenses. Such maximum sentences would be consistent with similar Federal statutes. For example, the 1994 law proscribing museum theft carriers a 10-year maximum sentence, as do the general statutes punishing theft and the destruction of Government property. Moreover, increasing the maximum sentences will give judges and the Sentencing Commission greater discretion to impose punishments appropriate to the amount of destruction a defendant has done. Making these changes will also enable the Sentencing Commission's recent sentencing guidelines to be fully implemented. The Commission has increased sentencing guidelines for cultural heritage crimes, but the statutory maximum penalties contained in current law will prevent judges from issuing sentences in the upper range of the new guidelines. Those new guidelines have the enthusiastic support of the Justice and Interior Departments, the Society for American Archaeology, the National Trust for Historic Preservation, numerous Native American nations, and many others. Two of the three laws this legislation amends protect Native American lands and property. The third, ARPA, protects both public and Indian lands, and provides significant protection to my State of Vermont. For example, ARPA can be used to prosecute those who would steal artifacts from the wrecked military vessels at the bottom of Lake Champlain that date to the Revolutionary War and the War of 1812. U.S. attorneys can also use ARPA to prosecute criminals who take items that are at least 100 years old from a protected site on Vermont State property without a permit, and then transport those goods into another State. In addition, ARPA protects artifacts found on the approximately 5 percent of Vermont land that is Federal property, land that includes many ``ghost towns'' that have long been abandoned but are an important part of our history. Those who would pillage the rich cultural heritage of this Nation and its people are committing serious crimes. These artifacts are the legacy of all Americans and should not be degraded as garage sale commodities or as fodder for private enrichment.

Mr. LEAHY

Mr. LEAHY. Mr. President, as the 107th Congress concludes, it is time to reflect on the important work we have performed for the American people. In the past few days, the full Senate voted on 20 of the nominees reported favorably by the Judiciary Committee in addition to the 80 judicial nominations previously confirmed. Since the change in majority 16 months ago, the Senate Judiciary Committee has voted on 102 of President George W. Bush's judicial nominees and has held hearings on 103 judicial nominations, some of whom have proven to be quite controversial and divisive. We voted on 102 of them, reported 100 of them favorably and this week the full Senate took the final step of confirming the last of these 100 nominees. This remarkable record compares most favorably to the 38 judicial confirmations averaged per year during the 6\1/2\ years when the Republican majority was in control of the Senate. Last week, on the Senate floor, the Democratic-led Senate confirmed more judges in just 1 day than the Republican majority allowed to be confirmed in the entire 1996 session. In that year, the Republican majority allowed only 17 district court judges to be confirmed all year and would not confirm any circuit court nominees, not one. In contrast, last Thursday the Senate acted to confirm 17 district court nominations and, in addition, another circuit court nominee. In all, the Senate has confirmed 17 circuit court nominees and 83 district court nominees in just 16 months. That should put our historic demonstration of bipartisanship toward this President's judicial nominees in perspective. The hard, thankless, but steady work of the Democratic members of the Judiciary Committee have served to reduce judicial vacancies substantially during these last 16 months. We inherited 110 vacancies. Today, after 100 district and circuit court confirmations, those vacancies number only 58 and that takes into account the additional 47 vacancies that have arisen since the shift in majority. Without those additional vacancies, we would have reduced our inherited judicial vacancies to 10. When Senator Hatch was chairman of the committee and a Democratic President occupied the White House, Senator Hatch denied that even 100 vacancies was a vacancies crisis, according to a column he wrote for the September 5, 1997, edition of USA Today. When a Democrat was in the White House, Senator Hatch repeatedly stated that 67 vacancies was the equivalent of ``full employment'' in the Federal judiciary. As of today, there are only 58 district and circuit vacancies total. By Senator Hatch's standards, we have reached well beyond ``full employment'' on the Federal bench in just 16 months. Since the summer of 2001, when they allowed the Judiciary Committee to reorganize following the change in majority, we have moved more quickly and more fairly. Democrats have worked hard to confirm on average six district and circuit court nominees per month. The Republican rate of confirmation was half that during their prior years of control of the Senate, 3.2 confirmed per month in the 104th Congress, 4.25 in the 105th, and 3.04 per month in the 106th Congress. We have moved nearly twice as fast as they did. Partisans on the other side of aisle interested in trying to create campaign issues have proclaimed their disappointment that a few nominees have not yet received votes in committee, despite our votes on 102 judicial nominees and our having attained results in 16 months that they did not come close to in twice the time during their last 30 months in the majority. I am concerned that the tone and language of hurtful remarks against the Democrats have been destructive. In truth, only 11 of the remaining nominees who have not yet had hearings have home State consent and peer review ratings, and some of those peer review ratings have come in only in the last few weeks. We have thus given hearings to 90 percent of the nominees eligible for a hearing. The vitriolic rhetoric regarding committee consideration of the most controversial and ideologically chosen judicial nominees is troubling to me as a Senator and as chairman of the Judiciary Committee. I have worked diligently to hold a record number of 26 hearings for 103 of this President's circuit and district court nominees in the past 16 months and to bring as many as we could to a vote, given all of the competing responsibilities of the committee and the Senate in these times of great challenges to our Nation. We have transcended the inaction of the prior 6\1/2\ years of Republican control. For example, during the 6\1/2\ years the Republicans chaired the Judiciary Committee, in 34 of those months there were no confirmation hearings for judicial nominations at all. In the past 16 months, the Senate Judiciary Committee has held 26 hearings for 103 judicial nominees, in addition to a second hearing for one of the more controversial nominees. I think Democrats deserve some credit for our diligence, fairness, and bipartisanship especially in contrast to the prior period of Republican control of the Senate. In particular, we have held hearings for 20 circuit court nominees, confirmed 17 of them in this period, and reduced the circuit court vacancies from those we inherited. By contrast, circuit court vacancies more than doubled during Republican control, from 16 in January 1995 to 33 by the summer of 2001 when they allowed the Judiciary Committee to reorganize following the change in majority. While the opposition party continues to inflame the public with skewed statistics, the reality is that we have approved far more judicial nominees for this President than past Senates did for other Presidents. This Democratic-led Senate has confirmed 100 district court and circuit court judges, including 17 circuit court nominees. In President George H.W. Bush's first 2 years in office, 71 judicial nominees were confirmed by the Democratic-led Senate. When a Republican majority was considering Senator Clinton's nominees in their first 2 years working together, 75 judicial nominees were confirmed. Even when a Republican majority was considering President Reagan's judicial nominations in his first 2 years, only 89 judicial nominees were confirmed. Thus, we have not only exceeded the confirmation achieved when the Senate and White House were divided by political party but the number of confirmations when Republicans controlled both branches. In less than 2 years, just 16 months, we have evaluated, held hearings for, reported out, and confirmed 100 judicial nominees of President George W. bush. While Republicans continue to play base politics and inflame certain quarters of the public with their skewed statistics, the reality is that the Democratic-led Senate has acted far more fairly toward this President's judicial nominees than Republicans acted toward President Clinton's. The raw numbers, not percentages, reveal the true workload of the Senate on nominations and everyone knows that. Anyone who pays attention to the Federal judiciary and who does not have a partisan agenda must know that. Democrats have moved more quickly in voting on judicial nominees of a President of a different party than in any time in recent history. This should be beyond dispute, but I believe that partisan advisers told this President and the Republicans that it is a great election issue for them to complain that not every nominee has been confirmed. We have given hearings to 103 of the 114 judicial nominees now eligible for a hearing 90 percent, as of today, for those focused on percentages. The remaining 16 without a hearing either lack home State consent or peer reviews or both. Many of those were nominated only recently and are being used by Republicans to skew the percentages further because they know that the ABA is taking about 60 days to submit ratings from the date of nomination and some would not receive ratings in time for hearings this session. The committee has voted on 102 of the 103 judicial nominees eligible for a vote, 99 percent. And with the vote on Judge Dennis Sheed, we have cleared the Senate calendar of all judicial nominations rather than adopt the recent Republican practice of holding nominees over without a final vote and forcing them to be renominated and have second hearings in a succeeding Congress. I ask fair-minded people to contrast what we have achieved in the past 16 months with the most recent period of Republican control of the committee. In all of 2000 and the first several months of 2001 before the change in Senate majority, the Senate confirmed only 39 judicial nominees, including eight to the circuits. Even if you look at the last 30 months of Republican control, they confirmed only 72 judges. In much less time, we have confirmed 100. If you consider the first 24-months of Republican control instead of their last 30 months we have accomplished far more: more hearings, 26 versus 18, far more judicial nominees, 103 versus 87, and had more confirmations, 100, including 17 to the circuit courts, versus 73 with 11 to the circuit courts. We have reached the 100 mark for committee votes in less than half the time it took Republicans to vote on 100 of President Clinton's judicial nominees. It took them 33 months to reach that mark, while we reached that mark in just 15 months. With these confirmations, the Democratic-led Senate has addressed a number of long standing vacancies. For example, we held the first hearing for a nominee to the Fifth Circuit in 7 years and confirmed her, even though Republicans refused to allow hearings for 3 of President Clinton's nominees to this court. We held the first hearing for a nominee to the Tenth Circuit in 6 years, and confirmed 3 nominees to that circuit in less than 1 year, even though two of President Clinton's nominees to that circuit were never allowed hearings by Republicans. We confirmed the first nominee to the Sixth Circuit in almost 5 years and have now confirmed two judges to that court, even though three of President Clinton's nominees to that court were never allowed hearings or votes. We held the first hearing for a nominee to the fourth Circuit in 3 years, and confirmed the first African American appointed to that court in American history, even though that nominee and 6 other nominees of President Clinton to the Fourth Circuit, for a total of 7 in that circuit alone, never received hearings during Republican control of the Senate. Today, another of President Bush's nominees was confirmed to that circuit. These are just a few of the firsts we have achieved in just 16 months. There were many other firsts in courts across the Nation. For example, we held hearings for and confirmed the first judges appointed to the Federal courts in the Western District of Pennsylvania in almost 7 years, even though several of President Clinton's nominees to the courts in that district were blocked by Republicans. They allowed none of President Clinton's nominees to be confirmed to that court during the entire period of Republican control. They also blocked the confirmation of a Pennsylvania nominee to the Third Circuit, among others. Democrats confirmed the first nominees to the Third Circuit and Ninth Circuit in 2 years, even though the last nominees to those seats never received hearings during Republican control of the Senate. We have had hearings for a number of controversial judicial nominees and brought many of them to votes this year just as I said we would when I spoke to the Senate at the beginning of the year. Of course, it would have been irresponsible to ignore the number of vacancies we inherited and concentrate solely on the most controversial, time consuming nominees to the detriment of our Federal courts. The President has made a number of divisive choices for lifetime seats on the courts and they take time to bring to a hearing and a vote. None of his nominees, however, have waited as long for a hearing or a vote as some of President Clinton's judicial nominees, such as Judge Richard Paez who waited 1,500 days to be confirmed and 1,237 days to get a final vote by the Republican-controlled Senate Judiciary Committee or Judge Helene White whose nomination languished for more than 1,500 without ever getting a hearing or a committee vote. As frustrated as Democrats were with the lengthy delays and obstruction of scores of judicial nominees in the prior 6\1/2\ years of Republican control, we never attacked the chairman of the committee in the manner as was done in recent weeks. Similarly, as disappointed as Democrats were with the refusal of Chairman Hatch to include Allen Snyder, Bonnie Campbell, Clarence Sundram, Fred Woocher, and other nominees on an agenda for a vote by the committee following their hearings, we never resorted to the tactics and tone used by Republican members of this committee in committee statements, in hallway discussions, in press conferences, or in Senate floor statements. As frustrated and disappointed as we were that the Republican majority refused to proceed with hearings or votes on scores of judicial nominees, we never sought to override Senator Hatch's judgments and authority as chairman of the committee. The President and partisan Republicans have spared no efforts in making judicial nominations a political issue, without acknowledging the progress made in these past months when 102 of this President's judicial choices have been given committee votes. One indication of the fairness with which we have proceeded is my willingness to proceed on nominations that I do not support. We have perhaps moved too quickly on some, relaxing the standards for personal behavior and lifestyle for Republican nominees, being more expeditious and generous than Republicans were to our nominees, and trying to take some of them at their word that they will follow the law and the ethical rules for judges. For example, as I noted on October 2, 2002, we confirmed a personal friend of the President's, Ron Clark, to an emergency vacancy in the United States District Court for the Eastern District of Texas. Clark's commission was not signed and issued promptly. We learned later that Clark was quoted as saying that he asked the White House, and the White House agreed, to delay signing his commission while he ran as a Republican for reelection to a seat in the Texas legislature so that he could help Republicans keep a majority in the Texas State House until the end of the session in mid-2003. The White House was apparently complicit in these unethical partisan actions by a person confirmed to a lifetime appointment to the Federal bench. Clark, who was confirmed to a seat on the Federal district court in Texas, was actively campaigning for election despite his confirmation. These actions bring discredit to the court to which Judge Clark was nominated by the President and confirmed by the Senate, and calls into question Judge Clark's ability to put aside his partisan roots and be an impartial adjudicator of cases. Even in his answers under oath to this committee, he swore that if he were ``confirmed'' he would follow the ethnical rules. Canon 1 of the Code of Conduct for United States Judges explicitly provides that the code applies to ``judges and nominees for judicial office'' and Canon 7 provides quite clearly that partisan political activity is contrary to ethical rules. In his answers to me, the chairman of this committee, Clark promised ``[s]hould I be confirmed as a judge, my role will be different than that of a legislator.'' As the Commentary to the Code of Conduct for United States Judges, (which applies to judges and nominees), states, ``Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges [which] depend in turn upon their acting without fear or favor. Although judges should be independent, they should comply with the law as well as the provisions of this Code.'' The code sets standards intended to help ensure that the public has access to Federal courts staffed with judges who not only appear to be fair but are actually so. Yet he was flouting the standards set by the code and the promises he made to me personally and to the Senate Judiciary Committee and, by proxy, to the Senate as a whole. That the White House was prepared to go along with these shenanigans reveals quite clearly the political way they approach judicial nominations. Only after the New York Times reported these unseemly actions, did the President sign Judge Clark's appointment papers. As Judge Clark hoped, he ``won'' the election and so the Republican Governor of Texas may be able to name a Republican to replace him in the state legislature. With a White House that is politicizing the Federal courts and making so many divisive nominations, especially to the circuit courts, to appease the far-right wing of the Republican party, it would be irresponsible for us to turn a blind eye to this and simply rubber- stamp such appointees to lifetime seats. Advice and consent does not mean giving the President carte blanche to pack the courts with ideologues from the right or left. The system of checks and balances in our Constitution does not give the power to make lifetime appointments to one person alone to pack the courts with judges whose views are outside of the mainstream and whose decisions would further divide our nation. I have worked hard to bring to a vote the overwhelming majority of this President's judicial nominees, but we cannot afford to make errors in these lifetime appointments out of haste or sentimental considerations, however well intentioned. To help smooth the confirmation process, I have gone out of my way to encourage the White House to work in a bipartisan way with the Senate, like past Presidents, but, in all too many instances, they have chosen to bypass bipartisanship cooperation in favor of partisanship and a campaign issue. Arbitrary deadlines will not ensure that nominees will be fairminded judges who are not activists or ideologues. The American people have a right to expect the Federal courts to be fair forums and not bastions of favoritism on the right or the left. These are the only lifetime appointments in our whole government, and they matter a great deal to our future. I will continue to work hard to ensure the independence of our Federal judiciary.

Mr. LEAHY

Mr. LEAHY. Madam President, the idea of coordinating homeland security functions in a cabinet-level department is a constructive one and a sounds one. In large part it originated in this body with legislation offered by Senator Lieberman and Senator Specter, who deserve great credit for their work. President Bush, after initially opposing this idea, also deserves credit for coming to understand its value and for reversing his administration's resistance to it. In the several months that the Congress has spent in writing and debating this complex bill, the issue has not been whether such a department should be created, but how it should be created. The Judiciary Committee, which I chair, has played a constructive role in examining these issues in our hearings and in providing guidance in the writing of this bill, and I have supported and helped to advance the key objectives envisioned for this new department. The fact that we are on the verge of enacting a charter for the new department is good for the Nation and our efforts to defend the American people against the threats of terrorism. Many of the ``hows'' that have found their way into this bill, and the process by which that has happened, are a needless blot on this charter. As we act to approve this charter, we should also feel obligated to remedy many of these ill-advised and ill- considered provisions in succeeding congressional sessions, through corrective steps and through close oversight. As they come to understand some of the imprudent extraneous additions to this bill, many Americans will feel that their trust and goodwill have been abused, and I share their disappointment about several elements of this version of the bill that has been placed, without due consideration, before the Senate. This deal, negotiated behind closed doors by a few Republican leaders in the House and Senate and the White House, has been presented to us as a done deal. It includes several blatant flaws that should at the very least be debated. That is why I could not vote for cloture to end debate on a bill almost 500-pages long that was presented to us for the first time only five days ago, on November 14. The bill undertakes a significant restructuring of the Federal Government by relocating in the new Department of Homeland Security several agencies, including the Immigration and Naturalization Service, the U.S. Secret Service, the Federal Emergency Management Agency, the Office of Domestic Preparedness, the Transportation Security Administration, the U.S. Customs Service, and the Coast Guard. In addition, many functions of the Bureau of Alcohol, Tobacco, Firearms and Explosives would be transferred to the Department of Justice. Overall I support the President's conclusion that several government functions should be reorganized to improve our effectiveness in combating terrorism and preserving our national security, although he has been responsible for leading all of these agencies and fulfilling their responsibilities since assuming the Presidency in January 2001, and the President himself opposed significant reorganization until recently. Homeland security functions are now dispersed among more than 100 different governmental organizations. Testimony at a June 26, 2002, Judiciary Committee hearing illuminated the problem of such a confusing patchwork of agencies with none having homeland security as its sole or even primary mission. I had thought that the Department of Justice and FBI were the lead agencies responsible for the country's security in 2001 and 2002, but I understand why the President has come to realize that the lack of a single agency responsible for homeland security increases both the potential for mistakes and opportunities for terrorists to exploit our vulnerabilities. The bill will bring under one cabinet level officer agencies and departments that share overlapping missions for protecting our border, our financial and transportation infrastructure and responding to crises. Having these agencies under a single cabinet level officer will help coordinate their efforts and focus their mission with a single line of authority to get the job done. This is something that I support. The bill also encourages information sharing. 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. The recent sniper rampage in the Washington, DC area demonstrated the dire need for such coordination among Federal, State and local law enforcement agencies. Fortunately, we were able to see the productive results of effective information sharing and coordination with the arrests of the two alleged snipers on October 31. While we all support increased sharing of relevant information with the new Department of Homeland Security by and among other Federal, State and local agencies, we must be careful that information sharing does not turn into information dumping. We want our law enforcement officials to have the information they need to do their jobs effectively and efficiently, with communications equipment that allows different agencies to talk to each other and with the appropriate training and tools so that multiple agencies are able to coordinate their responses during emergencies. We know that large amounts of information were collected, but never read or analyzed, before September 11, and we know that translators and resources are what we need to help make the already-gathered information useful. There is no dispute that information sharing is critical, but we have to make sure we do not go overboard. Information dumping is harmful to our national security if the information is not accurate, complete, or relevant, or if it is dumped in such a bulk fashion that end-users are unable to determine its reliability. The legislation before us provides very broad authority for information collection from and sharing with not just Federal, State and local law enforcement authorities, but also other government agencies, foreign government agencies and the private sector. Highly sensitive grand jury information, criminal justice, and electronic, wire, and oral interception information is authorized to be shared to not just across this country but also around the world. Without clear guidance, this sweeping new authority can be a recipe for mischief. The Congress now will have an imperative to monitor vigilantly and responsibly the implementation of this new authority to ensure that the risks to the privacy of the American people and the potential for abuse do not become a reality. This bill contains several constructive provisions, including establishment in the new Department of a Privacy Office and an Office for Civil Rights and Civil Liberties. The bill also includes the Sessions-Leahy bill, S. 3073, and whistleblower protections that the administration's original proposal rejected. In addition, as I will discuss in more detail in these remarks, the bill includes a prohibition on both the TIPS Program and a national identification system or card. I am pleased the bill, in section 880, forbids the creation of Operation TIPS, a proposed citizen reporting program theoretically designed to prevent terrorism. The ill-designed program threatened to turn neighbors into spies and to discredit valuable neighborhood watch programs. When I questioned the Attorney General about the program earlier this year, I found his answers to be incomplete and far from reassuring. As such, I was prepared to offer an amendment in the Senate to bar Operation TIPS, and I welcome the House's strong opposition to the program that has made my amendment unnecessary. Under the plan originally announced by the Justice Department, Operation TIPS would have enlisted millions of Americans as volunteers who would report their suspicions about their neighbors and customers to the government. This plan was criticized by Republicans and Democrats alike, and Justice Department officials then said they planned to make the program smaller than originally anticipated. But the Department never made clear how the program would work, what it would cost, or how the privacy interests of American citizens would be protected. Indeed, the administration offered a constantly shifting set of explanations to Congress and the public about how Operation TIPS would work, leaving Congress unable even to evaluate a program that could easily lead to the invasion of the privacy of our fellow Americans. Even the Operations TIPS website offered differing explanations of how the program would work, depending on what day a concerned user accessed it. For example, before July 25, the web site said that Operation TIPS ``involving 1 million workers in the pilot stage, will be a national reporting system that allows these workers, whose routines make them well-positioned to recognize unusual events, to report suspicious activity.'' By contrast, the July 25 version declared that ``the program will involve the millions of American workers who, in the daily course of their work, are in a unique position to see potentially unusual or suspicious activity in public places.'' It was unclear whether these changes reflected actual changes in the Justice Department's plans, or whether they were simply cosmetic differences designed to blunt opposition to the program raised by concerned citizens, newspaper editorials, and Members of Congress. The administration originally proposed Operation TIPS as ``a nationwide program giving millions of American truckers, letter carriers, train conductors, ship captains, utility employees, and others a formal way to report suspicious terrorist activity.'' In other words, the administration would recruit people whose jobs gave them access to private homes to report on any ``suspicious'' activities they discovered. Nor would this program start small; the Administration planned a pilot program that alone would have enlisted 1 million Americans. We also never received a full understanding of how the Administration planned to train Operation TIPS volunteers. The average citizen has little knowledge of law enforcement methods, or of the sort of information that is useful to those working to prevent terrorism. Such a setup could have allowed unscrupulous participants to abuse their new status to place innocent neighbors under undue scrutiny. The number of people who would have abused this opportunity is undoubtedly small, but the damage these relatively few could do would be very real and potentially devastating. In addition, it was crucial that citizen volunteers receive training about the permissible use of race and ethnicity in their evaluation of whether a particular individual's behavior is suspicious, but the Justice Department seemed not to have considered the issue. Even participants acting in good faith may have been prone to report activity that would not be suspicious to a well-trained professional. One law enforcement agencies are already operating under heavy burdens, and I questioned the usefulness of bombarding them with countless tips from millions of volunteers. As the Washington Post put it in a July editorial: ``It is easy to imagine how such a program might produce little or no useful information but would flood law enforcement with endless suspicions that would divert authorities from more promising investigative avenues.'' The administration's plan also raised important questions about how and whether information submitted by TIPS volunteers would be retained. Many of us were deeply concerned about the creation of a TIPS database that would retain TIPS reports indefinitely. When he testified before the Judiciary Committee in July, the Attorney General said that he, too, was concerned about this. He told us that he had been given assurances that there would be no database, but he could not tell us who had given him those assurances. Many months later, the administration's plans on this issue still are unclear. We simply cannot allow a program that will use databases to store unsubstantiated allegations against American citizens to move forward. Opposition to Operation TIPS has been widespread. Representative Armey, the House Majority Leader, has led the fight against it in the House. The Postal Service refused to participate. The Boston Globe called it a scheme Joseph Stalin would have loved. In an editorial, The New York Times said: ``If TIPS is ever put into effect, the first people who should be turned in as a threat to our way of life are the Justice Department officials who thought up this most un-American of programs.'' The Las Vegas Sun said that ``Operation TIPS has the potential of becoming a monster.'' The Washington Post said that the Administration ``owes a fuller explanation before launch day.'' In evaluating TIPS, we need to remember our past experience with enlisting citizen informants on such a grand scale. During World War I, the Department of Justice established the American Protective League, APL, which enrolled 250,000 citizens in at least 600 cities and towns to report suspicious conduct and investigate fellow citizens. For example, the League spied on workers and unions in thousands of industrial plants with defense contracts and organized raids on German- language newspapers. Members wore badges and carried ID cards that showed their connection to the Justice Department and were even used to make arrests. Members of the League used such methods as tar and feathers, beatings, and forcing those who were suspected of disloyalty to kiss the flag. The New York Bar Association issued a report after the war stating of the APL: ``No other one cause contributed so much to the oppression of innocent men as the systematic and indiscriminate agitation against what was claimed to be an all-pervasive system of German espionage.'' No one wants to relive those dark episodes or anything close to them. I am pleased that we have achieved bicameral and bipartisan agreement that Operation TIPS goes too far, infringing on the liberties of the American people while promising little benefit for law enforcement efforts. If the administration comes to Congress with a limited, common-sense proposal that respects liberties, Congress will likely support it. But Congress cannot simply write a blank check for such a troubled program. I am also pleased that the bill, in section 1514, states clearly that nothing in the legislation shall be construed to authorize the development of a national identification system or card. Given the other provisions in the bill that pose a risk to our privacy, this at least is a line in the sand which I fully support. The House-passed bill also includes, in section 601, a provision that Senator Sessions and I introduced last month as S.3073. This provision will facilitate private charitable giving for servicemen and other Federal employees who are killed in the line of duty while engaged in the fight against international terrorism. Under current law, beneficiaries of members of the U.S. Armed Forces get paid only $6,000 in death benefits from the government, over any insurance that they may have purchased. Moreover, these individuals may not be eligible for payments from any existing victims' compensation program or charitable organization. The Session-Leahy provision will provide much-needed support for the families of those who have made the ultimate sacrifice for their country. It encourages the establishment of charitable trusts for the benefit of surviving spouses and dependents of military, CIA, FBI, and other Federal Government employees who are killed in operations or activities to curb international terrorism. This provision also authorizes Federal officials to contact qualifying trusts on behalf of surviving spouses and dependents, pursuant to regulations to be prescribed by the Secretary of Defense. This will help to inform survivors about benefits and to ensure that those who are eligible have the opportunity to access the money. It will also spare grieving widows the embarrassment of having to go to a charity and ask for money. Finally, for the avoidance of doubt, this provision makes clear that Federal officeholders and candidates may help raise funds for qualifying trusts without running afoul of federal campaign finance laws. I am also pleased that, unlike the President's original, the current bill would ensure that employees of the new Department of Homeland Security will have all the same whistleblower protections as employees in the rest of the Federal Government. As we saw during the many FBI oversight hearings that the Judiciary Committee has held over the last 15 months, strong whistleblower protection is an important homeland security measure in itself. Indeed, it was whistleblower revelations that helped lead to the creation of this Department. The President was vehemently opposed to creating the new Department of Homeland Security for 9 months after the September 11 attacks. Then, just minutes before FBI whistleblower Coleen Rowley came before the Judiciary Committee in a nationally televised appearance to expose potential shortcomings in the FBI's handling of the Zacarias Moussaoui case before 9/11, the White House announced that it had changed its position and that the creation of a new cabinet-level Department of Homeland Security was vital. Of course, that made it all the more ironic that the President's original proposal did not assure whistleblower protections in the new Department. In any event, although the new Department has the same legal protections as those that apply in the rest of the government, the protections will mean nothing without the 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. While I am glad that the many employees of the new Department will have the same substantive and procedural whistleblower protections as other government employees, I wish that we could have done more. Unfortunately, a Federal court with a monopoly on whistleblower cases that is hostile to such claims has improperly and narrowly interpreted the provisions of the Whistleblower Protection Act. Senators Grassley, Levin, Akaka and I had proposed a bipartisan amendment to this measure that would have strengthened whistleblower protections in order to protect national security. The amendment was similar to S. 995, of which I am a cosponsor, and our amendment would have corrected some of the anomalies in the current law. It is unfortunate for the success of the Department and for the security of the American people that the amendment was not part of the final measure, and I hope that we can work to pass S. 995 in the 108th Congress. The administration was slow to accept the idea for a cabinet-level department to coordinate homeland security, but experience in the months after the September 11 attacks helped in the evolution of the Administration's position. Soon after the President invited Governor Ridge to serve as the Director of an Office of Homeland Security within the White House, I invited Governor Ridge in October, 2001, to testify before the Judiciary Committee about how he would improve the coordination of law enforcement and intelligence efforts and about his views on the role of the National Guard in carrying out the homeland security mission, but he declined our invitation at that time. The administration would not allow Director Ridge to testify before Congress. Without Governor Ridge's input, the Judiciary Committee continued oversight work that had begun in the summer of 2001, before the terrorist attacks, on improving the effectiveness of the U.S. Department of Justice, the lead Federal agency with responsibility for domestic security. This task has involved oversight hearings with the Attorney General and with officials of the Federal Bureau of Investigation and the Immigration and Naturalization Service. In the weeks immediately after the attacks, the committee turned its attention to hearings on legislative proposals to enhance the legal tools available to detect, investigate and prosecute those who threaten Americans both here and abroad. Committee members worked in partnership with the White House and the House to craft the new anti-terrorism law, the USA PATRIOT Act, which was enacted on October 26, 2001. We were prepared to include in the new anti-terrorism law provisions creating a new cabinet-level officer heading a new Department of Homeland Security, but we did not do so at the request of the White House. Indeed, from September, 2001, until June, 2002, the administration was steadfastly opposed to the creation of a cabinet- level department to protect homeland security. Governor Ridge said in an interview with National Journal reporters in May, 2001, that if Congress put a bill on the President's desk to make his position statutory, he would, ``probably recommend that he veto it.'' That same month, White House spokesman Ari Fleischer also objected to a new department, commenting that, ``You still will have agencies within the Federal government that have to be coordinated. So the answer is: Creating a Cabinet post doesn't solve anything.'' In one respect, the White House was correct: Simply moving agencies around among departments does not address the problems inside agencies like the FBI or the INS--problems like outdated computers, hostility to employees who report problems, lapses in intelligence sharing, and lack of translation and analytical capabilities, along with what many have termed ``cultural problems.'' The Judiciary Committee and its subcommittees have been focusing on identifying those problems and finding constructive solutions to fix them. We have worked hard to be bipartisan and even nonpartisan in this regard. To that end, the Committee unanimously reported the Leahy-Grassley FBI Reform Act, S. 1974, to improve the FBI, especially at this time when the country needs the FBI to be as effective as it can be in the war against terrorism. Unfortunately, that bill has been blocked on the Senate floor since it was reported by the Judiciary Committee in April, 2002, by an anonymous Republican hold. The White House's about-face on June 6, 2002, announced just minutes before the Judiciary Committee's oversight hearing with FBI Special Agent Coleen Rowley, telegraphed the President's new support for the formation of a new homeland Security Department along the lines that Senator Lieberman and Senator Specter had long suggested. Two weeks later, on June 18, 2002, Governor Ridge transmitted a legislative proposal to create a new homeland security department. It should be apparent that knitting together a new agency will not by itself fix existing problems. In writing the charter for this new department, we must be careful not to generate new management problems and accountability issues. Yet the administration's early proposal would have exempted the new department from many legal requirements that apply to other agencies. The Freedom of Information Act would not apply, nor would the conflicts of interest and accountability rules for agency advisors. The new department head would have the power to suspend the Whistleblower Protection Act and the normal procurement rules and to intervene in Inspector General investigations. In these respects, the administration asked us to put this new department above the law and outside the checks and balances these laws are there to ensure. Exempting the new department from laws that ensure accountability to the Congress and to the American people makes for soggy ground and a tenuous start--not the sure footing we all want for the success and endurance of this endeavor. We all wanted to work with the President to meet his ambitious timetable for setting up the new department. Senate Democrats worked diligently to craft responsible legislation that would establish a new department but would also make sure that it was not outside the laws. We all knew that one sure way to slow up the legislation would be to use the new department as the excuse to undermine or repeal laws not liked by partisan interests, or to stick unrelated political items in the bill under the heading of ``management flexibility.'' Unfortunately, the Republican leadership and the White House have been unable to resist that temptation, even as they urge prompt passage of a bill unveiled for the first time only 5 days ago. This bill has its problems. As I will discuss in more detail in the balance of my remarks, this legislation has five significant problems. It would: (1) undermine Federal and State sunshine laws permitting the American people to know what their government is doing, (2) threaten privacy rights, (3) provide sweeping liability protections for companies at the expense of consumers, (4) weaken rather than fix our immigration enforcement problems, and (5) under the guise of ``management flexibility,'' it would authorize political cronyism rather than professionalism within the new department. These problems are unfortunate and entirely unnecessary to the overall objective of establishing a new department of homeland security. Republican leaders and the White House have forced on the Senate a process under which these problem areas cannot be substantively and meaningfully addressed, and that is highly regrettable and a needless blot on this charter. Though I will support passage of this legislation in order to get the new department up and running, the flaws in this legislation will require our attention next year, when I hope to work with the administration and my colleagues on both sides of the aisle to monitor implementation of the new law and to craft corrective legislation. First, the bill guts the FOIA at the expense of our national security and public health and safety. This bill eliminates a bipartisan Senate provision that I crafted with Senator Levin and Senator Bennett to protect the public's right to use the Freedom of Information Act, FOIA, in order to find out what our Government is doing, while simultaneously providing security to those in the private sector that records voluntarily submitted to help protect our critical infrastructures will not be publicly disclosed. Encouraging cooperation between the private sector and the government to keep our critical infrastructure systems safe from terrorist attacks is a goal we all support. But the appropriate way to meet this goal is a source of great debate--a debate that has been all but ignored by the Republicans who crafted this legislation. The administration itself has flip-flopped on how to best approach this issue. The administration's original June 18, 2002, legislative proposal establishing a new department carved out of FOIA exemption, in section 204, and required non-disclosure of any ``information'' ``voluntarily'' provided to the new Department of Homeland Security by ``non-Federal entities or individuals'' pertaining to ``infrastructure vulnerabilities or other vulnerabilities to terrorism'' in the possession of, or that passed through, the new department. Critical terms, such as ``voluntarily provided,'' were undefined. The Judiciary Committee had an opportunity to query Governor Ridge about the administration's proposal on June 26, 2002, when the administration reversed its long-standing position and allowed him to testify in his capacity as the Director of the Transition Planning Office. Governor Ridge's testimony at that hearing is instructive. He seemed to appreciate the concerns expressed by Members about the President's June 18th proposal and to be willing to work with us in the legislative process to find common ground. On the FOIA issue, he described the Administration's goal to craft ``a limited statutory exemption to the Freedom of Information Act'' to help ``the Department's most important missions [which] will be to protect our Nation's critical infrastructure.'' (June 26, 2002 Hearing, Tr., p. 24). Governor Ridge explained that to accomplish this, the Department must be able to ``collect information, identifying key assets and components of that infrastructure, evaluate vulnerabilities, and match threat assessments against those vulnerabilities.'' (Id., at p. 23). I do not understand why some have insisted that FOIA and our national security are inconsistent. The FOIA already exempts from disclosure matters that are classified; trade secret, commercial and financial information, which is privileged and confidential; various law enforcement records and information, including confidential source and informant information; and FBI records pertaining to foreign intelligence or counterintelligence, or international terrorism. These already broad exemptions in the FOIA are designed to protect national security and public safety and to ensure that the private sector can provide needed information to the government. Current law already exempts from disclosure any financial or commercial information provided voluntarily to the government, if it is of a kind that the provider would not customarily make available to the public. Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc). Such information enjoys even stronger nondisclosure protections than does material that the government requests. Applying this exception, Federal regulatory agencies are today safeguarding the confidentiality of all kinds of critical infrastructure information, like nuclear power plant safety reports (Critical Mass, 975 F.2d at 874), information about product manufacturing processes land internal security measures (Bowen v. Food & Drug Admin., 925 F.2d 1225 (9th Cir. 1991), design drawings of airplane parts (United Technologies Corp. by Pratt & Whitney v. F.A.A., 102 F.3d 6878 (2d Cir. 1996)), and technical data for video conferencing software (Gilmore v. Dept. of Energy, 4 F. Supp.2d 912 (N.D. Cal. 1998)). The head of the FBI National Infrastructure Protection Center, NIPC, testified more than 5 years ago, in September, 1998, that the ``FOIA excuse'' used by some in the private sector for failing to share information with the government was, in essence, baseless. He explained the broad application of FOIA exemptions to protect from disclosure information received in the context of a criminal investigation or a ``national security intelligence'' investigation, including information submitted confidentially or even anonymously. [Sen. Judiciary Subcommittee On Technology, Terrorism, and Government Information, Hearing on Critical Infrastructure Protection: Toward a New Policy Directive, S. HRG. 105-763, March 17 and June 10, 1998, at p. 107] The FBI also used the confidential business record exemption under (b)(4) ``to protect sensitive corporate information, and has, on specific occasions, entered into agreements indicating that it would do so prospectively with reference to information yet to be received.'' NIPC was developing policies ``to grant owners of information certain opportunities to assist in the protection of the information (e.g., `sanitizing the information themselves') and to be involved in decisions regarding further dissemination by the NIPC.'' Id. In short, the former administration witness stated: ``Sharing between the private sector and the government occasionally is hampered by a perception in the private sector that the government cannot adequately protect private sector information from disclosure under the Freedom of Information Act (FOIA). The NIPC believes that this perception is flawed in that both investigative and infrastructure protection information submitted to NIPC are protected from FOIA disclosure under current law.'' (Id.) Nevertheless, for more than 5 years, businesses have continued to seek a broad FOIA exemption that also comes with special legal protections to limit their civil and criminal liability, and special immunity from the antitrust laws. The Republicans are largely granting this business wish-list in the legislation for the new Department of Homeland Security. At the Senate Judiciary Committee hearing with Governor Ridge, I expressed my concern that an overly broad FOIA exemption would encourage government complicity with private firms to keep secret information about critical infrastructure vulnerabilities, reduce the incentive to fix the problems and end up hurting rather than helping our national security. In the end, more secrecy may undermine rather than foster security. Governor Ridge seemed to appreciate these risks, and said he was ``anxious to work with the Chairman and other members of the committee to assure that the concerns that [had been] raised are properly addressed.'' Id. at p. 24. 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.'' Id. at p. 25. This turned out to be an empty promise. Almost before the ink was dry on the administration's earlier June proposal, on July 10, 2002, the administration proposed to substitute a much broader FOIA exemption that would (1) exempt from disclosure under the FOIA critical infrastructure information voluntarily submitted to the new department that was designated as confidential by the submitter unless the submitter gave prior written consent, (2) provide limited civil immunity for use of the information in civil actions against the company, with the likely result that regulatory actions would be preceded by litigation by companies that submitted designated information to the department over whether the regulatory action was prompted by a confidential disclosure, (3) preempt State sunshine laws if the designated information is shared with State or local government agencies, (4) impose criminal penalties of up to one year imprisonment on Government employees who disclosed the designated information, and (5) antitrust immunity for companies that joined together with agency components designated by the President to promote critical infrastructure security. Despite the administration's promulgation of two separate proposals for a new FOIA exemption in as many weeks, in July, Director Ridge's Office of Homeland Security released The National Strategy for Homeland Security, which appeared to call for more study of the issue before legislating. Specifically, this report called upon the Attorney General to ``convene a panel to propose any legal changes necessary to enable sharing of essential homeland security information between the government and the private sector.'' (p. 33) The need for more study of the administration's proposed new FOIA exemption was made amply clear by its possible adverse environmental, public health and safety affects. Keeping secret problems in a variety of critical infrastructures would simply remove public pressure to fix the problems. Moreover, several environmental groups pointed out that, under the administration's proposal, companies could avoid enforcement action by ``voluntarily'' providing information about environmental violations to the EPA, which would then be unable to use the information to hold the company accountable and also would be required to keep the information confidential. It would bar the government from disclosing information about spills or other violations without the written consent of the company that caused the pollution. I worked on a bipartisan basis with many interested stakeholders from environmental, civil liberties, human rights, business and government watchdog groups to craft a compromise FOIA exemption that did not grant the business sector's wish-list but did provide additional nondisclosure protections for certain records without jeopardizing the public health and safety. At the request of Chairman Lieberman for the Judiciary Committee's views on the new department, I shared my concerns about the administration's proposed FOIA exemption and then worked with Members of the Governmental Affairs Committee, in particular Senator Levin and Senator Bennett, to craft a more narrow and responsible exemption that accomplishes the Administration's goal of encouraging private companies to share records of critical infrastructure vulnerabilities with the new Department of Homeland Security without providing incentives to ``game'' the system of enforcement of environmental and other laws designed to protect our nation's public health and safety. We refined the FOIA exemption in a manner that satisfied the Administration's stated goal, while limiting the risks of abuse by private companies or government agencies. This compromise solution was supported by the administration and other members of the Committee on Governmental Affairs and was unanimously adopted by that Committee at the markup of the Homeland Security Department bill on July 24, 2002. The provision would exempt from the FOIA certain records pertaining to critical infrastructure threats and vulnerabilities that are furnished voluntarily to the new Department and designated by the provider as confidential and not customarily made available to the public. Notably, the compromise FOIA exemption made clear that the exemption only covered ``records'' from the private sector, not all `'information'' provided by the private sector and thereby avoided the adverse result of government agency- created and generated documents and databases being put off-limits to the FOIA simply if private sector ``information'' is incorporated. Moreover, the compromise FOIA exemption clearly defined what records may be considered ``furnished voluntarily,'' which did not cover records used ``to satisfy any legal requirement or obligation to obtain any grant, permit, benefit (such as agency forbearances, loans, or reduction or modifications of agency penalties or rulings), or other approval from the Government.'' The FOIA compromise exemption further ensured that portions of records that are not covered by the exemption would be released pursuant to FOIA requests. This compromise did not provide any civil liability or antitrust immunity that could be used to immunize bad actors or frustrate regulatory enforcement enforcement action, nor did the compromise preempt state or local sunshine laws. Unfortunately, the new Republican version of this legislation that we are voting on today jettisoned the bipartisan compromise on the FOIA exemption, worked out in the Senate with the administration's support, and replaced it with a big-business wish-list gussied up in security garb. The Republican FOIA exemption would make off-limits to the FOIA much broader categories of ``information'' and grant businesses the legal immunities and liability protections they have sought so vigorously for over 5 years. This bill goes far beyond what is needed to achieve the laudable goal of encouraging private sector companies to help protect our critical infrastructure. Instead, it will tie the hands of the federal regulators and law enforcement agencies working to protect the public from imminent threats. It will give a windfall to companies who fail to follow Federal health and safety standards. Most disappointingly, it will undermine the goals of openness in government that the FOIA was designed to achieve. In short, the FOIA exemption in this bill represents the most severe weakening of the Freedom of Information Act in its 36-year history. In the end, the broad secrecy protections provided to critical infrastructure information in this bill will promote more secrecy which may undermine rather than foster national security. In addition, the immunity provisions in the bill will frustrate enforcement of the laws that protect the public's health and safety. Let me explain. The Republican FOIA exemption would allow companies to stamp or designate certain information as ``Critical Infrastructure Information'' or ``CII'' and then submit this information about their operations to the government either in writing or orally, and thereby obtain a blanket shield from FOIA's disclosure mandates as well as other protections. A Federal agency may not disclose or use voluntarily-submitted and CII-marked information, except for a limited ``informational purpose,'' such as ``analysis, warning, interdependency, study, recovery, reconstitution,'' without the company's consent. Even when using the information to warn the public about potential threats to critical infrastructure, the bill requires agencies to take steps to protect from disclosure the source of the CII information and other ``business sensitive'' information. The bill contains an unprecedented provision that threatens jail time and job loss to any Government employee who happens to disclose any critical infrastructure information that a company has submitted and wants to keep secret. These penalties for using the CII information in an unauthorized fashion or for failing to take steps to protect disclosure of the source of the information are severe and will chill any release of CII information not just when a FOIA request comes in, but in all situations, no matter the circumstance. Criminalizing disclosures--not of classified information or national security related information, but of information that a company decides it does not want public--is an effective way to quash discussion and debate over many aspects of the Government's work. In fact, under this bill, CII information would be granted more comprehensive protection under Federal criminal laws than classified information. This provision has potentially disastrous consequences. If an agency is given information from an ISP about cyberattack vulnerabilities, agency employees will have to think twice about sharing that information with other ISPs for fear that, without the consent of the ISP to use the information, even a warning might cost their jobs or risk criminal prosecution. This provision means that if a Federal regulatory agency needs to issue a regulation to protect the public from threats of harm, it cannot rely on any voluntarily submitted information--bringing the normal regulatory process to a grinding halt. Public health and law enforcement officials need the flexibility to decide how and when to warn or prepare the public in the safest, most effective manner. They should not have to get ``sign off'' from a Fortune 500 company to do so. While this legislation risks making it harder for the Government to protect American families, it will make it much easier for companies to escape responsibility when they violate the law by giving them unprecedented immunity from civil and regulatory enforcement actions. Once a business declares that information about its practices relates to critical infrastructure and is ``voluntarily'' provided, it can then prevent the Federal Government from disclosing it not just to the public, but also to a court in a civil action. This means that an agency receiving CII-marked submissions showing invasions of employee or customer privacy, environmental pollution, or government contracting fraud will be unable to use that information in a civil action to hold that company accountable. Even if the regulatory agency obtains the information necessary to bring an enforcement action from an alternative source, the company will be able to tie the government up in protracted litigation over the source of the information. For example, if a company submits information that its factory is leaching arsenic in ground water, that information may not be turned over to local health authorities to use in any enforcement proceeding nor turned over to neighbors who were harmed by drinking the water for use in a civil tort action. Moreover, even if EPA tries to bring an action to stop the company's wrongdoing, the ``use immunity'' provided in the Republican bill will tie the agency up in litigation making it prove where it got the information and whether it is tainted as ``fruit of the poisonous tree''--i.e., obtained from the company under the ``critical infrastructure program.'' Similarly, if the new Department of Homeland Security receives information from a bio-medical laboratory about its security vulnerabilities, and anthrax is released from the lab three weeks later, the Department will not be able to warn the public promptly about how to protect itself without consulting with and trying to get consent of the laboratory in order to avoid the risk of job loss or criminal prosecution for a non-consensual disclosure. Moreover, if the laboratory is violating any State, local or Federal regulation in its handling of the anthrax, the Department will not be able to turn over to another Federal agency, such as the EPA or the Department of Health and Human Services, or to any State or local health officials, information or documents relating to the laboratory's mishandling of the anthrax for use in any enforcement proceedings against the laboratory, or in any wrongful death action, should the laboratory's mishandling of the anthrax result in the death of any person. The bill specifically states that such CII-marked information ``shall not, without the written consent of the person or entity submitting such information, be used directly by such agency, any other Federal, State, or local authority, or any third party, in any civil action arising under Federal or State law if such information is submitted in good faith.'' [H.R. 5710, section 214(a)(1)(C)] Most businesses are good citizens and take seriously their obligations to the government and the public, but this ``disclose-and- immunize'' provision is subject to abuse by those businesses that want to exploit legal techniques to avoid regulatory guidelines. This bill lays out the perfect blueprint to avoid legal liability: funnel damaging information into this voluntary disclosure system and pre-empt the Government or others harmed by the company's actions from being able to use it against the company. This is not the kind of two-way public-private cooperation that our country needs. The scope of the information that would be covered by the new Republican FOIA exemption is overly broad and would undermine the openness in government that FOIA was intended to guarantee. Under this legislation, information about virtually every important sector of our economy that today the public has a right to see can shut off from public view simply by labeling it ``critical infrastructure information.'' Today, for example, under current FOIA standards, courts have required Federal agencies to disclose (1) pricing information in contract bids so citizens can make sure the government is wisely spending their taxpayer dollars; (2) compliance reports that allow constituents to insist that government contractors comply with federal equal opportunity mandates; and (3) banks' financial data so the public can ensure that federal agencies properly approve bank mergers. Without access to this kind of information, it will be harder for the public to hold its Government accountable. Under this bill, all of this information may be marked CII information and kept out of public view. The Republican FOIA exemption goes so far in exempting such large amount of material from FOIA's disclosure requirements that it undermines Government openness without making any real gains in safety for families in Vermont and across America. We do not keep America safer by chilling Federal officials from warning the public about threats to their health and safety. We do not ensure our nation's security by refusing to tell the American people whether or not their federal agencies are doing their jobs or their Government is spending their hard earned tax dollars wisely. We do not encourage real two-way cooperation by giving companies protection from civil liability when they break the law. We do not respect the spirit of our democracy when we cloak in secrecy the workings of our Government from the public we are elected to serve. Notably, another part of the bill, section 892, would further undermine Government sunshine laws by authorizing the President to prescribe and implement procedures requiring Federal agencies to ``identify and safeguard homeland security information that is sensitive but unclassified'' The precise type of information that would be covered by this new category of ``sensitive'' information that is not classified but subject to carte blanche executive authority to keep secret is not defined and no guidance is provided in the Republican bill as to how far the President may go. As the Rutland Herald so aptly put it in an editorial on November 16, the Republicans ``are moving to cloak the Federal Government in an unprecedented regime of secrecy.'' The argument over the scope of the FOIA and unilateral executive power to shield matters from public scrutiny goes to the heart of our fundamental right to be an educated electorate aware of what our government is doing. The Rutland Herald got it right in explaining. ``The battle was not over the right of the government to hold sensitive, classified information secret. The government has that right. Rather, the battle was over whether the government would be required to release anything it sought to withhold.'' Second, extraneous provisions added by the House also pose significant privacy risks. As I noted before, increased information sharing is necessary but also poses privacy risks if the government is not properly focused on the information necessary to collect, the people appropriate to target for surveillance and the necessary controls to ensure that dissemination is confined to those with a need to know. Recent press reports have warned that this bill will turn it 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. Other provisions added in haste to the Republican House-passed bill raise serious concerns about privacy protections for the sensitive electronic communications of law-abiding Americans. In particular, the so-called ``emergency disclosure'' amendment in section 225(d) would greatly expand the ability of Internet service providers to reveal private communications to Government agencies without any judicial authority or any evidence of wrongdoing. As Americans move their lives online, the privacy of their sensitive e-mails, instant messages, and web traffic is of growing concern. Current law protects the privacy of electronic communications by prohibiting service providers from revealing the contents of those communications to anyone without proper lawful orders. Emergency disclosure provisions exist in the current law based on the reasonable premise that ISPs who encounter an imminent threat of death or serious injury should be able to reveal communications to law enforcement agencies on an emergency basis, even without judicial oversight. We just recently expanded that emergency exception a year ago in the USA PATRIOT Act to provide even more flexibility for service providers. In practice, however, the emergency disclosure authority is being used in a different way. Reports in the press and from the field indicate that ISP's university and libraries are approached by Government agents and asked to disclose communications ``voluntarily'' for ongoing investigations. Providers are then faced with a terrible choice--turn over the private communications of their customers without any court order, or say ``no'' to a government request. Of course, many comply with the requests. Small providers have few legal resources to challenge such requests. The agents who are making the requests may be the same agents to whom the providers will have to turn for help in the event of hacking attacks on other problems. So without proper restrictions, such ``voluntary disclosure'' provisions risk becoming a major exception to the law. Section 225(d) takes this exception even further and turns it into a loophole big enough to drive a truck through. It would allow literally thousands of local, State and Federal employees to seek private e-mails, instant messages, and other sensitive communications without any judicial orders ad even a subpoena. ISPs could turn over those communications based on vague concerns of future injury to someone, even if those concerns are totally unreasonable. Section 225(d) makes three important changes to the already very generous authorities for these extraordinary disclosures, which Congress gave to law enforcement in the USA PATRIOT Act just one year ago. First, it would remove the requirement that there be ``imminent'' danger of injury or death. Instead it would allow these extraordinary disclosures when there is some danger, which might be far in the future and far more hypothetical. As the Attorney General and the President have warned us consistently over the last year, the entire country faces some risk of future attack. Under this new language, there will always be a rationale for using the so-called ``emergency'' disclosure provision. Second, section 225(d) would remove even the low hurdle that there be a ``reasonable belief'' in danger on the part of the ISP. Instead, this new provision would allow these sensitive disclosures if there is any good faith belief--even if totally unreasonable--of danger. Vague, incoherent, or even obviously fictitious threats of future danger could all form the basis for disclosing our most private electronic communications under this new provision of law. Finally, section 225(d) would allow disclosure of sensitive communications to any local, State or Federal Government entity, not just law enforcement agents. That could include literally hundreds of thousands of Government employees. The potential for abuse is enormous. More importantly, in cases of real threats of death or serious injury, it is law enforcement agencies--trained to deal with such situations and cognizant of legal strictures--who should be the first contact point for concerned citizens. As a result of Section 225(d), many more disclosures of sensitive communications would be permitted without any court oversight. Moreover, these disclosures would happen without any notice to people-- even after the fact--that their communications have been revealed. It would allow these disclosures to be requested by potentially thousands of government employees, ranging from cotton inspectors to dogcatchers to housing department administrators. The public's most sensitive e-mails, web transactions, and instant messages sent to love ones, business associates, doctors and lawyers, and friends deserve the highest level of privacy we can provide. The provisions of section 225(d) make a mockery of our privacy laws, and the carefully crafted exceptions we have created in them, by allowing disclosure of our most private communications to thousands of Government officials based on the flimsiest of excuses. These provisions were never approved by any committee in the Senate, are not in the interests of the American people, and should not now be finding there way into the law of the land. Third, the bill provides liability protections for companies at the expense of consumers. I am disappointed that the measure also contains sweeping liability protection for corporate makers of vaccines and any other products deemed to be ``anti-terrorism technology'' by the Secretary of Homeland Security. This unprecedented executive authority to unilaterally immunize corporations from accountability for their products is irresponsible and endangers the consumers and our military service men and women. These provisions, for example, would apply to negligence, gross negligence and even willful misconduct in producing vaccines, gas masks, airport screening machines and any other ``anti-terrorism technology'' used by the general public and our service men and women. In addition, the bill would completely eliminate punitive damages against the maker of such a defective product. Without the threat of punitive damages, callous corporations can decide it is more cost- effective to continue cutting corners despite the risk to American lives. This would let private parties avoid accountability in cases of wanton, willful, reckless, or malicious conduct. There is no need to enact these special legal protections and take away the rights of victims of defective products. At a time when the American people are looking for Congress to take measured actions to protect them from acts of terror, these ``tort reform'' proposals are unprecedented, inappropriate, and irresponsible. At the very moment that the President is calling on all Americans to be especially vigilant, this legislation lets special interests avoid their responsibility of vigilance under existing law. I am disappointed that some may be taking advantage of the situation to push ``tort reform'' proposals that have been rejected by Congress for years. This smacks of political opportunism. I strongly oppose rewriting the tort law of each of the 50 States for the benefit of private industry and at the expense of consumers and our service men and women, and their families. Further, I am saddened that this so-called compromise provides retroactive liability protection for some private airport security firms involved in the September 11th terrorist attacks. Last year, Congress explicitly excluded private airport security firms from the liability limits for airlines in the Aviation and Transportation Security Act because we did not know if any airport screening firm may have contributed to the September 11th attacks through willful misconduct or negligence. Unfortunately, we still do now know all the facts regarding the 9/11 attacks because the Bush Administration has opposed Congressional oversight and an independent commission to investigate the attacks. This special-interest provision in the so-called compromise is a travesty to the families of the victims of September 11th. Indeed, I have already been contacted by a family member of a 9/11 victim outraged by this retroactive liability protection. I share their outrage. I also find it particularly galling, that just because ``the White House wants it,'' this bill includes a provision that balantly puts the interests of a few corporate pharmaceutical manufacturers before the interests of thousands of consumers, parents, and children. Sections 714 through 716 give a ``get out of court free card'' to Eli Lilly and other manufacturers of thimerasol. Let's be clear, this provision has nothing to do with homeland security. Smallpox and anthrax vaccines do not use thimerosal. Thimerasol is a mercury-based vaccine preservative that was used until recently in children's vaccines for everything from hepatitis B to diphtheria. By making changes to the Vaccine Injury Compensation Program sought by the pharmaceutical industry, this provision cuts the legs out from under thousands of parents currently in court seeking compensation for the alleged harm caused by thimerosal. For years, I have been working to remove sources of mercury from our environment because of the neurological effect of mercury on infants and children. Although Eli Libby's own documents show that they knew of the potential risks from mercury-based preservatives in the 1940s, its use was not stopped until 1999 when pediatricians and the Public Health Service acted. Instead of looking into why pharmaceutical companies and the Federal Government failed to act for so long or improving the current compensation system, the Homeland Security bill takes away the legal options of parents and gives pharmaceutical companies new protections from large penalties. Fourth, the bill weakens immigration enforcement just when we need it the most. The Republican House-passed bill fails to take important steps to help fix and restructure our immigration agencies. This Republican package abandons the close coordination between immigration enforcement and immigration services that was included in the Lieberman amendment to the Homeland Security bill. Instead, immigration enforcement falls under the Undersecretary for Border and Transportation Policy, while immigration services are relegated to a bureau that lacks its own undersecretary. Apparently, the Undersecretary for Border and Transportation Security is expected to be an expert in immigration enforcement, FEMA, agriculture, and other issues. Meanwhile, there is no one figure within the Homeland Security Department who is responsible for immigration policy. Testimony before the Judiciary Committee showed clearly the numerous links between the enforcement of our immigration laws and provision of immigration benefits--it is unfortunate that this bill fails to acknowledge those links. Unfortunately, this legislation fails to codify the Executive Office of Immigration Review appropriately. Instead of defining the functions, shape, and jurisdiction of the EOIR as the Lieberman amendment did, it simply says there shall be an EOIR and the Attorney General shall have complete discretion over it. It is critical that both immigrants and the Government have a meaningful opportunity to appeal adverse decisions, and we should have done more through this legislation to guarantee it. In addition, I am disappointed that provisions designed to guarantee decent treatment for unaccompanied minors were not included in the Republican amendment. Through Senator Feinstein's leadership, the Lieberman substitute assured that unaccompanied alien minors received counsel. The Judiciary Committee heard earlier this year from children who had been mistreated by the immigration system, and we had a real opportunity to solve that problem through this bill. We have failed to take advantage of that opportunity. I will continue to work to ensure that the reorganization of our immigration service proceeds in as orderly and appropriate a fashion as possible. I have spoken often about the valuable service provided by employees of the Immigration and Naturalization Service in Vermont, and the need to retain their expertise in any reshuffling of the agency's functions. We will not make our nation safer by alienating, underutilizing, or discarding knowledgeable employees, and I will do what I can to prevent that outcome. Finally, the bill undermines the professionalism in favor of the ``management flexibility'' to engage in political cronyism at the new Department. Although it has already received substantial comment, I want to add my voice to those who have criticized the administration for its heavy-handed and wrong-headed approach to the rights of employees who will come under the new Department. At the same time we are seeking to motivate the Government workers who will be moved to the new Department with an enhanced security mission, the administration is insisting on provisions that threaten the job security for these hardworking Government employees. The administration should not use this transition as an excuse to cut the wages and current workplace security and rights of the brave employees who have been defending the Nation. That is not the way to encourage retention or recruitment of the vital human resources on which we will need to rely. I represent some of those employees and have firsthand knowledge of their dedication to our nation and their jobs. Contrary to the administration's pre-election rhetoric, where disputes over employment conditions have had potential effects on the public safety, they have been resolved quickly. I am disappointed that the bill we consider today contains so few protections for these vital employees, and that the White House chose to use these valuable public servants in an election year tactic. So our vote today will help answer the question of whether a new Department of Homeland Security will be created--a question that has never really been at issue or in doubt. Perhaps there are members of the Senate who oppose creation of this Department, though I am not aware of such opposition. But many troubling questions remain about the ``hows'' as we move forward to charter this massive new agency. A process has been imposed on the Senate that prevents addressing them adequately in the remaining hours of this session. But answering and resolving these questions, in the interest of the security and privacy and well-being of the American people, will be an imperative that the administration and the next Congress must not shirk.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to support this conference report to provide a federal backstop for terrorism insurance. I believe this bipartisan bill will boost our economy by providing extra protection against terrorist attacks for buildings and construction projects with resulting new jobs in Vermont and across the nation. I agree with President Bush that this legislation is essential for our future economic growth. I worked with the distinguished Majority Leader, Senator Dodd, Senator Sarbanes, Senator Schumer and others to craft a balanced compromise in the conference report on legal procedures for civil actions involving acts of terrorism covered by the legislation. The conference report protects the rights of future terrorism victims and their families while providing federal court jurisdiction of civil actions related to acts of terrorism, consolidating of such cases on a pre-trial and trial basis, and excluding punitive damages from government-backed insurance coverage under the bill. These provisions do not limit the accountability of a private party for its actions in any way. Further, the conference report, identical to the Senate-passed bill, fully protects federal taxpayers from paying for punitive damage awards. Under the conference report only corporate wrongdoers pay punitive damages, not U.S. taxpayers as some incorrectly claimed on the Senate floor during consideration of the Senate-passed bill. The U.S. Chamber of Commerce has declared that the conference report ``will improve the legal rights of plaintiffs and defendants and, importantly, will help American workers and the economy.'' I agree. I thank the conferees for rejecting the special legal protections in the House-passed bill. The liability limits for future terrorist attacks in the House-passed bill were irresponsible because they restricted the legal rights of victims and their families and discouraged private industry from taking appropriate precautions to promote public safety. Restricting damages against a wrongdoer in terrorism-related civil actions involving personal injury or death, for example, could discourage corporations from taking the necessary precautions to prevent loss of life or limb in a future terrorist attack. There is no need to enact these special legal protections and take away the legal rights of victims of terrorism and their families. For example, the House-passed bill would have permitted a security firm to be protected from punitive damages if the private firm hired incompetent employees or deliberately failed to check for weapons and a terrorist act resulted. The threat of punitive damages is a major deterrent to wrongdoing. Eliminating punitive damages under the House-passed bill would have severely undercut this deterrent and permitted reckless or malicious defendants to find it more cost effective to continue their wanton conduct without the risk of paying punitive damages. Without the threat of punitive damages, callous corporations could have decided it is more cost-effective to cut corners that put American lives at risk. This approach failed to protect public safety, and the conferees rightly rejected it. In addition, I thank the managers for including language in the conference report to help captive insurance companies participate in the federal backstop program. Many captives deal in property and casualty lines, but some do not. Senator Jeffords and I strongly support language in the conference report to allow those captives in property and casualty the option of participating in the program while not requiring other captives to start offering terrorism risk insurance. The state of Vermont is the premier U.S. domicile for captive insurance companies. Vermont's captive owners represent a wide range of industries including multinational corporations, associations, banks, municipalities, transportation and airline companies, power producers, public housing authorities, higher education institutions, telecommunications suppliers, shipping companies, insurance companies and manufacturers, among others. Since 1981, Vermont has averaged approximately 25 captives licensed annually, and those numbers are on the rise. Vermont closed 2001 with 38 new captives, 37 pure and I sponsored, for a total of 527 at year-end. The first half of 2002 saw 26 new captives licensed in Vermont setting a record pace, according to the Vermont Department of Banking, Insurance and Health Care Administration. At a time when the American people are looking for Congress to take measured actions to protect them from acts of terror and jump-start our economy, this conference report is a shining example of bipartisan progress. I applaud Senator Daschle, Senator Dodd, Senator Sarbanes, Senator Schumer and the other Senate and House conferees on their good work on this bipartisan conference report.

Mr. LEAHY

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

Mr. LEAHY. Mr. President, have the yeas and nays been ordered?

Mr. LEAHY. I ask for the yeas and nays.

Mr. LEAHY. Mr. President, I yield back the remainder of the time.

Mr. LEAHY

Mr. LEAHY. Mr. President, have the yeas and nays been ordered?

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

Mr. LEAHY. I ask for the yeas and nays.

Mr. LEAHY. Mr. President, I yield back the remainder of the time.

Mr. LEAHY

Mr. LEAHY. Mr. President, several months ago the Appropriations Committee reported out the fiscal year 2003 Foreign Operations Appropriations bill, and the Senate passed the Homeland Security Supplemental Conference Report. Those two bills contain a total of $950 million for international programs to combat AIDS, including $300 million for the Global Fund to Fight AIDS, TB and Malaria. We provided $250 million for the Global Fund last year, although $50 million has not yet been disbursed. That sounds like a lot of money. It is far more than what we were spending on international AIDS programs just two or three years ago. But think about it another way. The amount we expect to provide in 2002 and 2003 to combat 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 to combat AIDS, and we can point to successes in several countries--Uganda, Thailand and Brazil, for example, the reality is that the AIDS pandemic is out of control. It is spreading faster, not slower. 40 million people are infected. Almost nobody is receiving treatment. 25 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. By any measure, AIDS is a plague of biblical proportions. Over 6 centuries ago, the Bubonic Plague started at a small trading post in the Crimea and quickly spread from port to port. By the time it ran its course, a third of Europe was dead. It is still remembered as the worst epidemic in the history of the world. No longer. AIDS is making the Bubonic Plague look like a mild case of the flu. 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 impossible--100 million deaths. 200 million. 400 million. This virus spreads exponentially, and so does the cost of controlling it. When I think about AIDS, I think back to 1990, when Ryan White was alive, and Magic Johnson didn't know he was HIV positive. Even though hundreds of thousands of Americans had already died of the disease, we had gone a decade with two Presidents who refused even to speak the word ``AIDS'' in public. In the spring of 1990, we learned that in some African villages, one of every 10 people was infected. That year, my wife Marcelle and I traveled to Kenya, Uganda and South Africa to see the impact of AIDS first hand. During one visit to Kampala, we met people infected with HIV who were teaching others to protect themselves from the virus. Those brave people were HIV-positive and knew their time was short. Yet they devoted the time they had left to helping others to live. When I came home, I gave a speech and said that if we failed to act, by the year 2000 ten million people would die of AIDS. I was wrong. The number of people who died from this disease during the next 10 years was not 10 million, it was 22 million, and now it is 25 million. 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, D.C., 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, 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. Progress that has taken decades to achieve is being wiped out. In many African communities, AIDS is doubling infant mortality, tripling child mortality, and slashing life expectancy by as much as a third or a half. We have always known that improving public health makes it easier to meet other needs--whether it is better education, stronger economies, or more stable societies. The converse is also true. AIDS will defeat these efforts for social and economic development in Africa unless we defeat AIDS first. 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 the Caribbean, AIDS is now the leading cause of death among people between the ages of 15 and 44. In Eastern Europe and Central Asia, the number of new infections has risen faster than anywhere. In India, the infection rate is skyrocketing. In China, only 4 percent of the Chinese population knows how AIDS is transmitted, and according to public health experts it is spreading far faster than the government has acknowledged. 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 retro-viral drugs which have been available in wealthy countries for years, to people in poor countries who need them. We know how to reduce the transmission of AIDS from mothers to children. 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, like the one before it and the one before that, has no plan for how to mount a global campaign to effectively combat the most deadly virus the world has ever faced. 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. We 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. According to public health experts, the world must increase funding on AIDS by at least a factor of five to at least $10 billion per year. And $10 billion is a lot of money, but put it in perspective: It is about the same amount as the U.S. Government spends each year on office supplies. It is less than 1 percent of our Federal budget. 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. How do we begin? The Global Fund to Fight AIDS, TB and Malaria is the funding mechanism the world has created, with strong support from the United States. It is not a substitute for other effective international health programs, like those run by USAID, but we know that USAID cannot do this alone. We need a multilateral approach, and the Global Fund is that approach. Congress has appropriated $250 million for the Fund so far. Some have argued that we should wait to see how the Fund performs, before we do more. I understand that caution. We have seen how other global funds failed to meet expectations. It would make sense to wait, if we were not talking about the worst health crisis in human history. We simply cannot wait to see if the Global Fund is going to succeed, because we cannot afford to let it fail. We must do whatever is necessary to make sure it does not fail. That means spending a lot more than $250 million. The Administration needs to approach the Global Fund as it has al-Qaida failure is not an option. That said, money is not the only issue. The Fund must not allow itself to be turned into a tool controlled by the governments of AIDS- affected countries. Unless there are reasonable checks and balances on the proposed and actual uses of these funds, there will be a high risk that the fund will turn into a major source of patronage and income- supplementation for the elites. To assure this, nongovernmental organizations and other civil society groups must have a strong and clear voice in the global governance, national oversight, and local implementation of Fund-sponsored activities. To date, this has been respected more in rhetoric than in reality, and many local groups have been deeply disappointed with the nearly total government control of access to Fund resources and even the proposal process in many countries. The Fund would probably respond that this is being addressed, but the message I am hearing from the field is that this is a closed and tightly controlled resource pool in most places. To its credit, the Bush administration has been one of the strongest supporters of a larger role and voice for NGOs, and some of the developing country governments represented on the fund's Board have been the most resistant. The fund is one important vehicle for getting critical programs going in highly affected countries, but we should not confuse this with a comprehensive global approach. There are still critical needs for direct bilateral assistance, particularly when that assistance is often channeled, as it is with USAID funds, to service NGOs, as well as an overall coordination and policy role for UNAIDS, and a technical role for the World Health Organization. Responding to AIDS and the Global Fund are not fully synonymous. 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 these challenges, because they all bear on 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. I urge the President, who has shown real leadership in focusing our country and the world on combating terrorism, to think differently about AIDS. It cannot be just another problem we deal with in the normal course of business. 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. The administration needs to get serious. Earlier this year, the White House opposed efforts by the Congress, including by some Republicans, to provide $500 million in emergency funding to combat AIDS. Because of the White House's objection, Senator Durbin's amendment was defeated. Subsequently, the President refused to designate $200 million for HIV/AIDS, in the Homeland Security Supplemental, including $100 million for the Global Fund, as an emergency. As a result, those funds are not available. If AIDS is not an emergency, nothing is. Over two decades have passed since AIDS was first identified, yet we still do not have a plan. A hundred million dollars here or there isn't a strategy. Even $10 billion isn't a strategy. The Administration needs to spell out in clear terms a plan for dealing with each component of the AIDS crisis care for orphans, treatment for the infected, and prevention. It needs to do this on a country scale and a global scale, and it needs to commit our share of the funds to implement it. It won't be cheap. The Manhattan Project wasn't cheap either, but that is what we need. It will cost far, far more if we waste another ten years. The Congress has showed over and over that it is ready. The administration needs to lead.

Mr. LEAHY

Mr. LEAHY. Mr. President, as the 107th Congress concludes, it is time to reflect on the important work we have performed for the American people. In the past few days, the full Senate voted on 20 of the nominees reported favorably by the Judiciary Committee in addition to the 80 judicial nominations previously confirmed. Since the change in majority 16 months ago, the Senate Judiciary Committee has voted on 102 of President George W. Bush's judicial nominees and has held hearings on 103 judicial nominations, some of whom have proven to be quite controversial and divisive. We voted on 102 of them, reported 100 of them favorably and this week the full Senate took the final step of confirming the last of these 100 nominees. This remarkable record compares most favorably to the 38 judicial confirmations averaged per year during the 6\1/2\ years when the Republican majority was in control of the Senate. Last week, on the Senate floor, the Democratic-led Senate confirmed more judges in just 1 day than the Republican majority allowed to be confirmed in the entire 1996 session. In that year, the Republican majority allowed only 17 district court judges to be confirmed all year and would not confirm any circuit court nominees, not one. In contrast, last Thursday the Senate acted to confirm 17 district court nominations and, in addition, another circuit court nominee. In all, the Senate has confirmed 17 circuit court nominees and 83 district court nominees in just 16 months. That should put our historic demonstration of bipartisanship toward this President's judicial nominees in perspective. The hard, thankless, but steady work of the Democratic members of the Judiciary Committee have served to reduce judicial vacancies substantially during these last 16 months. We inherited 110 vacancies. Today, after 100 district and circuit court confirmations, those vacancies number only 58 and that takes into account the additional 47 vacancies that have arisen since the shift in majority. Without those additional vacancies, we would have reduced our inherited judicial vacancies to 10. When Senator Hatch was chairman of the committee and a Democratic President occupied the White House, Senator Hatch denied that even 100 vacancies was a vacancies crisis, according to a column he wrote for the September 5, 1997, edition of USA Today. When a Democrat was in the White House, Senator Hatch repeatedly stated that 67 vacancies was the equivalent of ``full employment'' in the Federal judiciary. As of today, there are only 58 district and circuit vacancies total. By Senator Hatch's standards, we have reached well beyond ``full employment'' on the Federal bench in just 16 months. Since the summer of 2001, when they allowed the Judiciary Committee to reorganize following the change in majority, we have moved more quickly and more fairly. Democrats have worked hard to confirm on average six district and circuit court nominees per month. The Republican rate of confirmation was half that during their prior years of control of the Senate, 3.2 confirmed per month in the 104th Congress, 4.25 in the 105th, and 3.04 per month in the 106th Congress. We have moved nearly twice as fast as they did. Partisans on the other side of aisle interested in trying to create campaign issues have proclaimed their disappointment that a few nominees have not yet received votes in committee, despite our votes on 102 judicial nominees and our having attained results in 16 months that they did not come close to in twice the time during their last 30 months in the majority. I am concerned that the tone and language of hurtful remarks against the Democrats have been destructive. In truth, only 11 of the remaining nominees who have not yet had hearings have home State consent and peer review ratings, and some of those peer review ratings have come in only in the last few weeks. We have thus given hearings to 90 percent of the nominees eligible for a hearing. The vitriolic rhetoric regarding committee consideration of the most controversial and ideologically chosen judicial nominees is troubling to me as a Senator and as chairman of the Judiciary Committee. I have worked diligently to hold a record number of 26 hearings for 103 of this President's circuit and district court nominees in the past 16 months and to bring as many as we could to a vote, given all of the competing responsibilities of the committee and the Senate in these times of great challenges to our Nation. We have transcended the inaction of the prior 6\1/2\ years of Republican control. For example, during the 6\1/2\ years the Republicans chaired the Judiciary Committee, in 34 of those months there were no confirmation hearings for judicial nominations at all. In the past 16 months, the Senate Judiciary Committee has held 26 hearings for 103 judicial nominees, in addition to a second hearing for one of the more controversial nominees. I think Democrats deserve some credit for our diligence, fairness, and bipartisanship especially in contrast to the prior period of Republican control of the Senate. In particular, we have held hearings for 20 circuit court nominees, confirmed 17 of them in this period, and reduced the circuit court vacancies from those we inherited. By contrast, circuit court vacancies more than doubled during Republican control, from 16 in January 1995 to 33 by the summer of 2001 when they allowed the Judiciary Committee to reorganize following the change in majority. While the opposition party continues to inflame the public with skewed statistics, the reality is that we have approved far more judicial nominees for this President than past Senates did for other Presidents. This Democratic-led Senate has confirmed 100 district court and circuit court judges, including 17 circuit court nominees. In President George H.W. Bush's first 2 years in office, 71 judicial nominees were confirmed by the Democratic-led Senate. When a Republican majority was considering Senator Clinton's nominees in their first 2 years working together, 75 judicial nominees were confirmed. Even when a Republican majority was considering President Reagan's judicial nominations in his first 2 years, only 89 judicial nominees were confirmed. Thus, we have not only exceeded the confirmation achieved when the Senate and White House were divided by political party but the number of confirmations when Republicans controlled both branches. In less than 2 years, just 16 months, we have evaluated, held hearings for, reported out, and confirmed 100 judicial nominees of President George W. bush. While Republicans continue to play base politics and inflame certain quarters of the public with their skewed statistics, the reality is that the Democratic-led Senate has acted far more fairly toward this President's judicial nominees than Republicans acted toward President Clinton's. The raw numbers, not percentages, reveal the true workload of the Senate on nominations and everyone knows that. Anyone who pays attention to the Federal judiciary and who does not have a partisan agenda must know that. Democrats have moved more quickly in voting on judicial nominees of a President of a different party than in any time in recent history. This should be beyond dispute, but I believe that partisan advisers told this President and the Republicans that it is a great election issue for them to complain that not every nominee has been confirmed. We have given hearings to 103 of the 114 judicial nominees now eligible for a hearing 90 percent, as of today, for those focused on percentages. The remaining 16 without a hearing either lack home State consent or peer reviews or both. Many of those were nominated only recently and are being used by Republicans to skew the percentages further because they know that the ABA is taking about 60 days to submit ratings from the date of nomination and some would not receive ratings in time for hearings this session. The committee has voted on 102 of the 103 judicial nominees eligible for a vote, 99 percent. And with the vote on Judge Dennis Sheed, we have cleared the Senate calendar of all judicial nominations rather than adopt the recent Republican practice of holding nominees over without a final vote and forcing them to be renominated and have second hearings in a succeeding Congress. I ask fair-minded people to contrast what we have achieved in the past 16 months with the most recent period of Republican control of the committee. In all of 2000 and the first several months of 2001 before the change in Senate majority, the Senate confirmed only 39 judicial nominees, including eight to the circuits. Even if you look at the last 30 months of Republican control, they confirmed only 72 judges. In much less time, we have confirmed 100. If you consider the first 24-months of Republican control instead of their last 30 months we have accomplished far more: more hearings, 26 versus 18, far more judicial nominees, 103 versus 87, and had more confirmations, 100, including 17 to the circuit courts, versus 73 with 11 to the circuit courts. We have reached the 100 mark for committee votes in less than half the time it took Republicans to vote on 100 of President Clinton's judicial nominees. It took them 33 months to reach that mark, while we reached that mark in just 15 months. With these confirmations, the Democratic-led Senate has addressed a number of long standing vacancies. For example, we held the first hearing for a nominee to the Fifth Circuit in 7 years and confirmed her, even though Republicans refused to allow hearings for 3 of President Clinton's nominees to this court. We held the first hearing for a nominee to the Tenth Circuit in 6 years, and confirmed 3 nominees to that circuit in less than 1 year, even though two of President Clinton's nominees to that circuit were never allowed hearings by Republicans. We confirmed the first nominee to the Sixth Circuit in almost 5 years and have now confirmed two judges to that court, even though three of President Clinton's nominees to that court were never allowed hearings or votes. We held the first hearing for a nominee to the fourth Circuit in 3 years, and confirmed the first African American appointed to that court in American history, even though that nominee and 6 other nominees of President Clinton to the Fourth Circuit, for a total of 7 in that circuit alone, never received hearings during Republican control of the Senate. Today, another of President Bush's nominees was confirmed to that circuit. These are just a few of the firsts we have achieved in just 16 months. There were many other firsts in courts across the Nation. For example, we held hearings for and confirmed the first judges appointed to the Federal courts in the Western District of Pennsylvania in almost 7 years, even though several of President Clinton's nominees to the courts in that district were blocked by Republicans. They allowed none of President Clinton's nominees to be confirmed to that court during the entire period of Republican control. They also blocked the confirmation of a Pennsylvania nominee to the Third Circuit, among others. Democrats confirmed the first nominees to the Third Circuit and Ninth Circuit in 2 years, even though the last nominees to those seats never received hearings during Republican control of the Senate. We have had hearings for a number of controversial judicial nominees and brought many of them to votes this year just as I said we would when I spoke to the Senate at the beginning of the year. Of course, it would have been irresponsible to ignore the number of vacancies we inherited and concentrate solely on the most controversial, time consuming nominees to the detriment of our Federal courts. The President has made a number of divisive choices for lifetime seats on the courts and they take time to bring to a hearing and a vote. None of his nominees, however, have waited as long for a hearing or a vote as some of President Clinton's judicial nominees, such as Judge Richard Paez who waited 1,500 days to be confirmed and 1,237 days to get a final vote by the Republican-controlled Senate Judiciary Committee or Judge Helene White whose nomination languished for more than 1,500 without ever getting a hearing or a committee vote. As frustrated as Democrats were with the lengthy delays and obstruction of scores of judicial nominees in the prior 6\1/2\ years of Republican control, we never attacked the chairman of the committee in the manner as was done in recent weeks. Similarly, as disappointed as Democrats were with the refusal of Chairman Hatch to include Allen Snyder, Bonnie Campbell, Clarence Sundram, Fred Woocher, and other nominees on an agenda for a vote by the committee following their hearings, we never resorted to the tactics and tone used by Republican members of this committee in committee statements, in hallway discussions, in press conferences, or in Senate floor statements. As frustrated and disappointed as we were that the Republican majority refused to proceed with hearings or votes on scores of judicial nominees, we never sought to override Senator Hatch's judgments and authority as chairman of the committee. The President and partisan Republicans have spared no efforts in making judicial nominations a political issue, without acknowledging the progress made in these past months when 102 of this President's judicial choices have been given committee votes. One indication of the fairness with which we have proceeded is my willingness to proceed on nominations that I do not support. We have perhaps moved too quickly on some, relaxing the standards for personal behavior and lifestyle for Republican nominees, being more expeditious and generous than Republicans were to our nominees, and trying to take some of them at their word that they will follow the law and the ethical rules for judges. For example, as I noted on October 2, 2002, we confirmed a personal friend of the President's, Ron Clark, to an emergency vacancy in the United States District Court for the Eastern District of Texas. Clark's commission was not signed and issued promptly. We learned later that Clark was quoted as saying that he asked the White House, and the White House agreed, to delay signing his commission while he ran as a Republican for reelection to a seat in the Texas legislature so that he could help Republicans keep a majority in the Texas State House until the end of the session in mid-2003. The White House was apparently complicit in these unethical partisan actions by a person confirmed to a lifetime appointment to the Federal bench. Clark, who was confirmed to a seat on the Federal district court in Texas, was actively campaigning for election despite his confirmation. These actions bring discredit to the court to which Judge Clark was nominated by the President and confirmed by the Senate, and calls into question Judge Clark's ability to put aside his partisan roots and be an impartial adjudicator of cases. Even in his answers under oath to this committee, he swore that if he were ``confirmed'' he would follow the ethnical rules. Canon 1 of the Code of Conduct for United States Judges explicitly provides that the code applies to ``judges and nominees for judicial office'' and Canon 7 provides quite clearly that partisan political activity is contrary to ethical rules. In his answers to me, the chairman of this committee, Clark promised ``[s]hould I be confirmed as a judge, my role will be different than that of a legislator.'' As the Commentary to the Code of Conduct for United States Judges, (which applies to judges and nominees), states, ``Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges [which] depend in turn upon their acting without fear or favor. Although judges should be independent, they should comply with the law as well as the provisions of this Code.'' The code sets standards intended to help ensure that the public has access to Federal courts staffed with judges who not only appear to be fair but are actually so. Yet he was flouting the standards set by the code and the promises he made to me personally and to the Senate Judiciary Committee and, by proxy, to the Senate as a whole. That the White House was prepared to go along with these shenanigans reveals quite clearly the political way they approach judicial nominations. Only after the New York Times reported these unseemly actions, did the President sign Judge Clark's appointment papers. As Judge Clark hoped, he ``won'' the election and so the Republican Governor of Texas may be able to name a Republican to replace him in the state legislature. With a White House that is politicizing the Federal courts and making so many divisive nominations, especially to the circuit courts, to appease the far-right wing of the Republican party, it would be irresponsible for us to turn a blind eye to this and simply rubber- stamp such appointees to lifetime seats. Advice and consent does not mean giving the President carte blanche to pack the courts with ideologues from the right or left. The system of checks and balances in our Constitution does not give the power to make lifetime appointments to one person alone to pack the courts with judges whose views are outside of the mainstream and whose decisions would further divide our nation. I have worked hard to bring to a vote the overwhelming majority of this President's judicial nominees, but we cannot afford to make errors in these lifetime appointments out of haste or sentimental considerations, however well intentioned. To help smooth the confirmation process, I have gone out of my way to encourage the White House to work in a bipartisan way with the Senate, like past Presidents, but, in all too many instances, they have chosen to bypass bipartisanship cooperation in favor of partisanship and a campaign issue. Arbitrary deadlines will not ensure that nominees will be fairminded judges who are not activists or ideologues. The American people have a right to expect the Federal courts to be fair forums and not bastions of favoritism on the right or the left. These are the only lifetime appointments in our whole government, and they matter a great deal to our future. I will continue to work hard to ensure the independence of our Federal judiciary.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to support this conference report to provide a federal backstop for terrorism insurance. I believe this bipartisan bill will boost our economy by providing extra protection against terrorist attacks for buildings and construction projects with resulting new jobs in Vermont and across the nation. I agree with President Bush that this legislation is essential for our future economic growth. I worked with the distinguished Majority Leader, Senator Dodd, Senator Sarbanes, Senator Schumer and others to craft a balanced compromise in the conference report on legal procedures for civil actions involving acts of terrorism covered by the legislation. The conference report protects the rights of future terrorism victims and their families while providing federal court jurisdiction of civil actions related to acts of terrorism, consolidating of such cases on a pre-trial and trial basis, and excluding punitive damages from government-backed insurance coverage under the bill. These provisions do not limit the accountability of a private party for its actions in any way. Further, the conference report, identical to the Senate-passed bill, fully protects federal taxpayers from paying for punitive damage awards. Under the conference report only corporate wrongdoers pay punitive damages, not U.S. taxpayers as some incorrectly claimed on the Senate floor during consideration of the Senate-passed bill. The U.S. Chamber of Commerce has declared that the conference report ``will improve the legal rights of plaintiffs and defendants and, importantly, will help American workers and the economy.'' I agree. I thank the conferees for rejecting the special legal protections in the House-passed bill. The liability limits for future terrorist attacks in the House-passed bill were irresponsible because they restricted the legal rights of victims and their families and discouraged private industry from taking appropriate precautions to promote public safety. Restricting damages against a wrongdoer in terrorism-related civil actions involving personal injury or death, for example, could discourage corporations from taking the necessary precautions to prevent loss of life or limb in a future terrorist attack. There is no need to enact these special legal protections and take away the legal rights of victims of terrorism and their families. For example, the House-passed bill would have permitted a security firm to be protected from punitive damages if the private firm hired incompetent employees or deliberately failed to check for weapons and a terrorist act resulted. The threat of punitive damages is a major deterrent to wrongdoing. Eliminating punitive damages under the House-passed bill would have severely undercut this deterrent and permitted reckless or malicious defendants to find it more cost effective to continue their wanton conduct without the risk of paying punitive damages. Without the threat of punitive damages, callous corporations could have decided it is more cost-effective to cut corners that put American lives at risk. This approach failed to protect public safety, and the conferees rightly rejected it. In addition, I thank the managers for including language in the conference report to help captive insurance companies participate in the federal backstop program. Many captives deal in property and casualty lines, but some do not. Senator Jeffords and I strongly support language in the conference report to allow those captives in property and casualty the option of participating in the program while not requiring other captives to start offering terrorism risk insurance. The state of Vermont is the premier U.S. domicile for captive insurance companies. Vermont's captive owners represent a wide range of industries including multinational corporations, associations, banks, municipalities, transportation and airline companies, power producers, public housing authorities, higher education institutions, telecommunications suppliers, shipping companies, insurance companies and manufacturers, among others. Since 1981, Vermont has averaged approximately 25 captives licensed annually, and those numbers are on the rise. Vermont closed 2001 with 38 new captives, 37 pure and I sponsored, for a total of 527 at year-end. The first half of 2002 saw 26 new captives licensed in Vermont setting a record pace, according to the Vermont Department of Banking, Insurance and Health Care Administration. At a time when the American people are looking for Congress to take measured actions to protect them from acts of terror and jump-start our economy, this conference report is a shining example of bipartisan progress. I applaud Senator Daschle, Senator Dodd, Senator Sarbanes, Senator Schumer and the other Senate and House conferees on their good work on this bipartisan conference report.

Mr. LEAHY

Mr. LEAHY. Mr. President, several months ago the Appropriations Committee reported out the fiscal year 2003 Foreign Operations Appropriations bill, and the Senate passed the Homeland Security Supplemental Conference Report. Those two bills contain a total of $950 million for international programs to combat AIDS, including $300 million for the Global Fund to Fight AIDS, TB and Malaria. We provided $250 million for the Global Fund last year, although $50 million has not yet been disbursed. That sounds like a lot of money. It is far more than what we were spending on international AIDS programs just two or three years ago. But think about it another way. The amount we expect to provide in 2002 and 2003 to combat 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 to combat AIDS, and we can point to successes in several countries--Uganda, Thailand and Brazil, for example, the reality is that the AIDS pandemic is out of control. It is spreading faster, not slower. 40 million people are infected. Almost nobody is receiving treatment. 25 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. By any measure, AIDS is a plague of biblical proportions. Over 6 centuries ago, the Bubonic Plague started at a small trading post in the Crimea and quickly spread from port to port. By the time it ran its course, a third of Europe was dead. It is still remembered as the worst epidemic in the history of the world. No longer. AIDS is making the Bubonic Plague look like a mild case of the flu. 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 impossible--100 million deaths. 200 million. 400 million. This virus spreads exponentially, and so does the cost of controlling it. When I think about AIDS, I think back to 1990, when Ryan White was alive, and Magic Johnson didn't know he was HIV positive. Even though hundreds of thousands of Americans had already died of the disease, we had gone a decade with two Presidents who refused even to speak the word ``AIDS'' in public. In the spring of 1990, we learned that in some African villages, one of every 10 people was infected. That year, my wife Marcelle and I traveled to Kenya, Uganda and South Africa to see the impact of AIDS first hand. During one visit to Kampala, we met people infected with HIV who were teaching others to protect themselves from the virus. Those brave people were HIV-positive and knew their time was short. Yet they devoted the time they had left to helping others to live. When I came home, I gave a speech and said that if we failed to act, by the year 2000 ten million people would die of AIDS. I was wrong. The number of people who died from this disease during the next 10 years was not 10 million, it was 22 million, and now it is 25 million. 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, D.C., 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, 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. Progress that has taken decades to achieve is being wiped out. In many African communities, AIDS is doubling infant mortality, tripling child mortality, and slashing life expectancy by as much as a third or a half. We have always known that improving public health makes it easier to meet other needs--whether it is better education, stronger economies, or more stable societies. The converse is also true. AIDS will defeat these efforts for social and economic development in Africa unless we defeat AIDS first. 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 the Caribbean, AIDS is now the leading cause of death among people between the ages of 15 and 44. In Eastern Europe and Central Asia, the number of new infections has risen faster than anywhere. In India, the infection rate is skyrocketing. In China, only 4 percent of the Chinese population knows how AIDS is transmitted, and according to public health experts it is spreading far faster than the government has acknowledged. 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 retro-viral drugs which have been available in wealthy countries for years, to people in poor countries who need them. We know how to reduce the transmission of AIDS from mothers to children. 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, like the one before it and the one before that, has no plan for how to mount a global campaign to effectively combat the most deadly virus the world has ever faced. 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. We 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. According to public health experts, the world must increase funding on AIDS by at least a factor of five to at least $10 billion per year. And $10 billion is a lot of money, but put it in perspective: It is about the same amount as the U.S. Government spends each year on office supplies. It is less than 1 percent of our Federal budget. 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. How do we begin? The Global Fund to Fight AIDS, TB and Malaria is the funding mechanism the world has created, with strong support from the United States. It is not a substitute for other effective international health programs, like those run by USAID, but we know that USAID cannot do this alone. We need a multilateral approach, and the Global Fund is that approach. Congress has appropriated $250 million for the Fund so far. Some have argued that we should wait to see how the Fund performs, before we do more. I understand that caution. We have seen how other global funds failed to meet expectations. It would make sense to wait, if we were not talking about the worst health crisis in human history. We simply cannot wait to see if the Global Fund is going to succeed, because we cannot afford to let it fail. We must do whatever is necessary to make sure it does not fail. That means spending a lot more than $250 million. The Administration needs to approach the Global Fund as it has al-Qaida failure is not an option. That said, money is not the only issue. The Fund must not allow itself to be turned into a tool controlled by the governments of AIDS- affected countries. Unless there are reasonable checks and balances on the proposed and actual uses of these funds, there will be a high risk that the fund will turn into a major source of patronage and income- supplementation for the elites. To assure this, nongovernmental organizations and other civil society groups must have a strong and clear voice in the global governance, national oversight, and local implementation of Fund-sponsored activities. To date, this has been respected more in rhetoric than in reality, and many local groups have been deeply disappointed with the nearly total government control of access to Fund resources and even the proposal process in many countries. The Fund would probably respond that this is being addressed, but the message I am hearing from the field is that this is a closed and tightly controlled resource pool in most places. To its credit, the Bush administration has been one of the strongest supporters of a larger role and voice for NGOs, and some of the developing country governments represented on the fund's Board have been the most resistant. The fund is one important vehicle for getting critical programs going in highly affected countries, but we should not confuse this with a comprehensive global approach. There are still critical needs for direct bilateral assistance, particularly when that assistance is often channeled, as it is with USAID funds, to service NGOs, as well as an overall coordination and policy role for UNAIDS, and a technical role for the World Health Organization. Responding to AIDS and the Global Fund are not fully synonymous. 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 these challenges, because they all bear on 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. I urge the President, who has shown real leadership in focusing our country and the world on combating terrorism, to think differently about AIDS. It cannot be just another problem we deal with in the normal course of business. 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. The administration needs to get serious. Earlier this year, the White House opposed efforts by the Congress, including by some Republicans, to provide $500 million in emergency funding to combat AIDS. Because of the White House's objection, Senator Durbin's amendment was defeated. Subsequently, the President refused to designate $200 million for HIV/AIDS, in the Homeland Security Supplemental, including $100 million for the Global Fund, as an emergency. As a result, those funds are not available. If AIDS is not an emergency, nothing is. Over two decades have passed since AIDS was first identified, yet we still do not have a plan. A hundred million dollars here or there isn't a strategy. Even $10 billion isn't a strategy. The Administration needs to spell out in clear terms a plan for dealing with each component of the AIDS crisis care for orphans, treatment for the infected, and prevention. It needs to do this on a country scale and a global scale, and it needs to commit our share of the funds to implement it. It won't be cheap. The Manhattan Project wasn't cheap either, but that is what we need. It will cost far, far more if we waste another ten years. The Congress has showed over and over that it is ready. The administration needs to lead.

Mr. LEAHY

Mr. LEAHY. Mr. President, the United States Court of Federal Claims is the only federal court where the President may appoint and dismiss the chief judge. Although this power has been available since the Court of Federal Claims was established in 1982, President George W. Bush is the first President to use this power to remove a sitting judge. That is a regrettable decision because of the integrity and outstanding judicial record of the former incumbent, Chief Judge Lawrence Baskir. His absence is already being felt in the slower pace of important procedural reforms that Chief Judge Baskir had launched to improve the fairness and efficiency of the Court of Federal Claims. Former Chief Judge Baskir was appointed in July, 2000 by President Clinton after the retirement of the previous incumbent chief judge, who had been appointed by President Regan. In his short, two-year tenure, Chief Judge Baskir had accomplished much in boosting public awareness of and respect for the work of this important, but little-known federal court. The Court hears cases brought against the federal government by American citizens. It is especially important that litigants can rely on its objectivity and integrity. Some may say that because its original complement of judges was appointed by President Reagan and George Bush, Sr., its work had more of a political cast to it. Chief Judge Baskir worked hard to correct that impression, and he was scrupulous in every way in seeking to avoid even the appearance of any political involvement. Among the ways he sought to reinforce the integrity of the Court was to ensure that incoming cases, some of which were highly charged with politics, were assigned automatically, ``off the wheel,'' and not directed to any particular, pre-determined judge. Just prior to his removal from the bench, the Court's new procedural rules took effect, rules for which he had pressed for two years. The rules, which are critical for the administration of justice and are the procedures for litigating cases in the Court, had not been revised in 10 years. Because Court rules define the parties' rights and obligations, they can give unfair advantage to one side or another. Their content is always contentious, and previous efforts to revise them had collapsed in deadlock. Chief Judge Baskir guided the revisions through with great success. He reorganized the Clerk's Office, putting an end to delays in document handling, and instituted a ``same day'' rule for recording court filings. He brought the Court's electronic data systems into the 21st Century and created both internal and external web pages. He converted the main courtroom into a state of the art electronic courtroom, where attorneys can connect their own computers to the Court system, and have access to their own records and data and exhibits. He also helped modernize the Court's alternative dispute settlement resolution, or ADR procedures. Resolving legal disputes through ADR can be a useful alternative to long litigation in certain circumstances. ADR is an important procedural option at the Court of Federal Claims, where citizens, often with very limited resources, are suing the federal government with its unlimited resources. ADR can serve in such instances to help level the playing field. For example, he instituted a pilot ADR process in which incoming cases are assigned to an ADR judge at the same time they are assigned to a trial judge. This program is unique in the federal system, and has been chosen by the Federal Judicial Center as a model to examine and analyze for possible application in other federal courts. Chief Judge Baskir made sure that ordinary citizens got fair treatment when they sued the federal government. Knowing of the large number of pro se plaintiffs, or people representing themselves, going up against the Justice Department, including parents with heartbreaking cases involving young children, he revised the system of handling these cases, and in the process referred more than 700 pro se plaintiffs to attorneys participating in the Court's vaccine program. Believing in the duty of members of the legal profession to contribute a portion of their time without charge for the good of the public, he also helped launch a pro bono program within the Court for both judges and legal clerks, and among the attorneys who are members of the Court's bar. Many of these accomplishments would be impressive for a chief judicial administrative official whose tenure lasted a full term. This record is all the more impressive for having been achieved by a Chief Judge whose term lasted a mere 22 months. He achieved much because he brought an extensive legal and administrative background to the position, including service as Acting General Counsel of the U.S. Army, as staff director and chief counsel of a major U.S. Senate subcommittee, and as director and chief administrative officer of a major Presidential program under President Ford. I commend Chief Judge Baskir on all that he accomplished as Chief Judge of the U.S. Court of Federal Claims. I thank him for his service to our Nation.

Mr. LEAHY

Mr. LEAHY. Mr. President, the United States Court of Federal Claims is the only federal court where the President may appoint and dismiss the chief judge. Although this power has been available since the Court of Federal Claims was established in 1982, President George W. Bush is the first President to use this power to remove a sitting judge. That is a regrettable decision because of the integrity and outstanding judicial record of the former incumbent, Chief Judge Lawrence Baskir. His absence is already being felt in the slower pace of important procedural reforms that Chief Judge Baskir had launched to improve the fairness and efficiency of the Court of Federal Claims. Former Chief Judge Baskir was appointed in July, 2000 by President Clinton after the retirement of the previous incumbent chief judge, who had been appointed by President Regan. In his short, two-year tenure, Chief Judge Baskir had accomplished much in boosting public awareness of and respect for the work of this important, but little-known federal court. The Court hears cases brought against the federal government by American citizens. It is especially important that litigants can rely on its objectivity and integrity. Some may say that because its original complement of judges was appointed by President Reagan and George Bush, Sr., its work had more of a political cast to it. Chief Judge Baskir worked hard to correct that impression, and he was scrupulous in every way in seeking to avoid even the appearance of any political involvement. Among the ways he sought to reinforce the integrity of the Court was to ensure that incoming cases, some of which were highly charged with politics, were assigned automatically, ``off the wheel,'' and not directed to any particular, pre-determined judge. Just prior to his removal from the bench, the Court's new procedural rules took effect, rules for which he had pressed for two years. The rules, which are critical for the administration of justice and are the procedures for litigating cases in the Court, had not been revised in 10 years. Because Court rules define the parties' rights and obligations, they can give unfair advantage to one side or another. Their content is always contentious, and previous efforts to revise them had collapsed in deadlock. Chief Judge Baskir guided the revisions through with great success. He reorganized the Clerk's Office, putting an end to delays in document handling, and instituted a ``same day'' rule for recording court filings. He brought the Court's electronic data systems into the 21st Century and created both internal and external web pages. He converted the main courtroom into a state of the art electronic courtroom, where attorneys can connect their own computers to the Court system, and have access to their own records and data and exhibits. He also helped modernize the Court's alternative dispute settlement resolution, or ADR procedures. Resolving legal disputes through ADR can be a useful alternative to long litigation in certain circumstances. ADR is an important procedural option at the Court of Federal Claims, where citizens, often with very limited resources, are suing the federal government with its unlimited resources. ADR can serve in such instances to help level the playing field. For example, he instituted a pilot ADR process in which incoming cases are assigned to an ADR judge at the same time they are assigned to a trial judge. This program is unique in the federal system, and has been chosen by the Federal Judicial Center as a model to examine and analyze for possible application in other federal courts. Chief Judge Baskir made sure that ordinary citizens got fair treatment when they sued the federal government. Knowing of the large number of pro se plaintiffs, or people representing themselves, going up against the Justice Department, including parents with heartbreaking cases involving young children, he revised the system of handling these cases, and in the process referred more than 700 pro se plaintiffs to attorneys participating in the Court's vaccine program. Believing in the duty of members of the legal profession to contribute a portion of their time without charge for the good of the public, he also helped launch a pro bono program within the Court for both judges and legal clerks, and among the attorneys who are members of the Court's bar. Many of these accomplishments would be impressive for a chief judicial administrative official whose tenure lasted a full term. This record is all the more impressive for having been achieved by a Chief Judge whose term lasted a mere 22 months. He achieved much because he brought an extensive legal and administrative background to the position, including service as Acting General Counsel of the U.S. Army, as staff director and chief counsel of a major U.S. Senate subcommittee, and as director and chief administrative officer of a major Presidential program under President Ford. I commend Chief Judge Baskir on all that he accomplished as Chief Judge of the U.S. Court of Federal Claims. I thank him for his service to our Nation.