Patrick Leahy

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 ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEAHY. Mr. President, I rise to encourage the Senate to pass today the Hometown Heroes Survivors Benefits Act of 2002, H.R. 5334. This multipartisan legislation is to improve the Department of Justice's Public Safety Officers' Benefit Program. This bill allows the families of public safety officers who suffer fatal heart attacks or strokes to qualify for Federal survivor benefits. I commend those in the other body, including Congressmen Etheridge, Weldon, Hoyer, and Oxley, for their leadership and, I might also say, their fortitude on this important legislation. On the last night the other body was in session, Congressman Etheridge stood as a sentry on the bridge and said nothing else is going forward until this goes through. And it did pass in the House. I am proud to be the original sponsor of the Senate version of the Hometown Heroes bill, S. 3114. I thank Senators Collins, Jeffords, Landrieu, and Durbin for joining me as cosponsors. This legislation should not be in any way controversial. It is supported by the Fraternal Order of Police; National Association of Police Organizations; Congressional Fire Services Institute; International Association of Arson Investigators; International Association of Fire Chiefs; International Association of Fire Fighters; National Fire Protection Association; National Volunteer Fire Council; North American Fire Training Directors; International Fire Buff Association; National Association of Emergency Medical Technicians; American Ambulance Association; American Federation of State, County Municipal Employees. Actually, I will not list them all, but there are 50 additional national organizations. Public safety officers act with an unwavering commitment to the safety and protection of their fellow citizens, and it is always the case that they are willing to selflessly sacrifice their lives to provide safe and reliable emergency services to their communities. Hundreds of public safety officers nationwide lose their lives, and thousands more are injured while performing duties that put them at great physical risk. Although we know that PSOB benefits can never be a substitute for the loss of a loved one, the families of all our fallen heroes should be eligible to collect these funds. The PSOB program authorizes a one-time financial payment to the eligible survivors of Federal, State, and local public safety officers for all line-of-duty deaths. A number of other things are in the bill. We have improved this PSOB program on numerous occasions--we did it in the Patriot Act--but, unfortunately, the inclusion of on-duty heart attack and stroke victims in the program has not been addressed. This bill fixes that loophole to ensure that the survivors of public safety officers who die of heart attacks and other cardiac-related deaths in the line of duty, or within 24 hours of a triggering effect while on duty--regardless of whether or not a traumatic injury occurs at the time of the heart attack or stroke--are eligible to receive financial assistance. Heart attack and cardiac-related deaths account for almost half of all firefighter fatalities and an average of 13 police officer deaths each year. It is time for the Senate to show its support and appreciation for these extraordinarily brave and heroic public safety officers by joining the House and passing the Hometown Heroes Survivors Benefits Act. Mr. President, I understand it has been cleared on this side of the aisle. I hope that my friends on the other side of the aisle will let this bill pass. We are willing on this side of the aisle to pass it, but there has been objection on the other side. I hope that objection will be withdrawn and this will pass so that we can join what has been already done in the other body. I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that the Senate has, at long last, taken up the Drug Competition Act of 1002, S. 754. Prescription drug prices are rapidly increasing, and are a source of considerable concern to many Americans, especially senior citizens and families. Generic drug prices can be as much as 80 percent lower than the comparable brand name version. While the Drug Competition Act is a small bill in terms of length, it is a large one in terms of impact. It will ensure that law enforcement agencies can take quick and decisive action against companies that are driven more by greed than by good sense. It gives the Federal Trade Commission and the Justice Department access to information about secret deals between drug companies that keep generic drugs off the market. This is a practice that hurts American families, particularly senior citizens, by denying them access to low-cost generic drugs, and further inflating medical costs. This has been a genuine bipartisan effort, and I must thank all my colleagues, including Senator Hatch who has a long-standing interest in these issues, subcommittee Chairman Kohl who has worked with me from the start on this effort, and particularly Senator Grassley, who has worked hard to reach consensus on this bill that will help protect consumers. The issue of drug companies paying generic companies not to compete was exposed in recent years by the FTC, and by articles in major newspapers, including an editorial in the July 26, 2000, the New York Times, titled ``Driving Up Drug Prices.'' This editorial concluded that the problem ``needs help from Congress to close loopholes in federal law.'' And while the FTC has sued pharmaceutical companies that have made such secret and anticompetitive deals, as the then-Director of the Bureau of Competition Molly Boast testified before the Judiciary Committee in May 2001, the antitrust enforcement agencies are only finding out about such deals by luck, or by accident. Most recently, the FTC has issued a comprehensive study of the generic pharmaceutical industry which explicitly supported passage of S. 754. Under current law, the first generic manufacturer that gets permission to sell a generic drug before the patent on the brand-name drug expires, enjoys protection from competition for 180 days--a headstart on other generic companies. That was a good idea--but the unfortunate loophole exploited by a few is that secret deals can be made that allow the manufacturer of the generic drug to claim the 180- day grace period--to block other generic drugs from entering the market--while, at the same time, getting paid by the brand-name manufacturer to not sell the generic drug. The bill closes this loophole for those who want to cheat the public, but keeps the system the same for companies engaged in true competition. The deals would be reviewed only by those agencies--the agreements would not be available to the public. I think it is important for Congress not to overact and throw out the good with the bad. Most generic companies want to take advantage of this 180-day provision and deliver quality generic drugs at much lower costs for consumers. We should not eliminate the incentive for them. Instead, we should let the FTC and Justice look at every deal that could lead to abuse, so that only the deals that are consistent with the intent of that law will be allowed to stand. This bill accomplishes precisely that goal, and helps ensure effective and timely access to generic pharmaceuticals that can lower the cost of prescription drugs for seniors, for families, and for all of us.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that Marit Delozier and Brian Greer, law clerks with the Judiciary Committee, be allowed floor privileges during the pendency of and vote on the Shedd nomination.

Mr. LEAHY

Mr. LEAHY. Mr. President, next year I intend to speak more about the Scholar Rescue Fund Alumni Research Program. I am aware of this through my friendship with Dr. Henry Jarecki. I believe that it is something more Senators should be aware of, and something that would appeal to Senators in both parties. Perhaps one of the best ways to describe it would be to include in the Record remarks, by Dr. Jarecki, and I so ask unanimous consent to have those remarks printed.

Mr. LEAHY

Mr. LEAHY. Mr. President, last week the Senate voted to confirm the nomination of John Rogers who is nominated to the U.S. Court of Appeals for the Sixth Circuit. By confirming this nomination, we are trying to move forward in providing help to the Sixth Circuit. Earlier this year, we held a hearing for Judge Julia Gibbons to a seat on the Sixth Circuit, who was confirmed by the Senate on July 29, 2002 by a vote of 95 to 0. With last night's vote, the Democratic-led Senate confirmed the 15th judge to our federal Courts of Appeal and our 98th judicial nominee since the change in Senate majority in July 2001. I have placed a separate statement in the Record on the occasion of confirming that many of this President's judicial nominees in just 16 months. Republicans often say that almost half of the seats on the Sixth Circuit are vacant but what they fail to acknowledge is that most of those vacancies arose during the Clinton administration and before the change in majority last summer. None, zero, not one of the Clinton nominees to those current vacancies on the Sixth Circuit received a hearing by the Judiciary Committee under Republican leadership. With the confirmation of Professor Rogers, we have reduced the number of vacancies on that court to six, but four of those remaining lack home- State consent due to the President's failure to address the legitimate concerns of Senators in that circuit whose nominees were blocked by Republicans during the period of Republican control of the Senate. The Sixth Circuit vacancies are a prime and unfortunate legacy of the past partisan obstructionist practices under Republican leadership. Vacancies on the Sixth Circuit were perpetuated during the last several years of the Clinton administration when the Republican majority refused to hold hearings on the nominations of Judge Helene White, Kathleen McCree Lewis and Professor Kent Markus to vacancies in the Sixth Circuit. One of those seats has been vacant since 1995, the first term of President Clinton. Judge Helene White of the Michigan Court of Appeals was nominated in January 1997 and did not receive a hearing on her nomination during the more than 1,500 days before her nomination was withdrawn by President Bush in March of last year. Judge White's nomination may have set an unfortunate record. Her nomination was pending without a hearing for over four years--51 months. She was first nominated in January 1997 and renominated and renominated through March of last year when President Bush chose to withdraw her nomination. Under Republican control, the Committee averaged hearings on only about eight Courts of Appeals nominees a year and, in 2000, held only five hearings on Courts of Appeals nominees all year. In contrast, Professor Rogers was the fifteenth Court of Appeals nominee of President Bush to receive a hearing by the Committee in less than a year since the reorganization of the Senate Judiciary Committee. In 16 months we held hearings on 20 circuit court nominations. Professor Rogers was being treated much better than Kathleen McCree Lewis, a distinguished African American lawyer from a prestigious Michigan law firm. She never had a hearing on her 1999 nomination to the Sixth Circuit during the years it was pending before it was withdrawn by President Bush in March 2001. Professor Kent Markus, another outstanding nominee to a vacancy on the Sixth Circuit that arose in 1999, never received a hearing on his nomination before his nomination was returned to President Clinton without action in December 2000. While Professor Markus' nomination was pending, his confirmation was supported by individuals of every political stripe, including 14 past presidents of the Ohio State Bar Association and more than 80 Ohio law school deans and professors. Others who supported Professor Markus include prominent Ohio Republicans, including Ohio Supreme Court Chief Justice Thomas Moyer, Ohio Supreme Court Justice Evelyn Stratton, Congresswoman Deborah Pryce, and Congressman David Hobson, the National District Attorneys Association, and virtually every major newspaper in the state. In his testimony to the Senate in May, Professor Markus summarized his experience as a Federal judicial nominee, demonstrating how the ``history regarding the current vacancy backlog is being obscured by some.'' Here are some of things he said: On February 9, 2000, I was the President's first judicial nominee in that calendar year. And then the waiting began. . . . At the time my nomination was pending, despite lower vacancy rates than the 6th Circuit, in calendar year 2000, the Senate confirmed circuit nominees to the 3rd, 9th and Federal Circuits. . . . No 6th circuit nominee had been afforded a hearing in the prior two years. Of the nominees awaiting a Judiciary Committee hearing, there was no circuit with more nominees than the 6th Circuit. With high vacancies already impacting the 6th Circuit's performance, and more vacancies on the way, why, then, did my nomination expire without even a hearing? To their credit, Senator DeWine and his staff and Senator Hatch's staff and others close to him were straight with me. Over and over again they told me two things: 1. There will be no more confirmations to the 6th Circuit during the Clinton administration[.] 2. This has nothing to do with you; don't take it personally--it doesn't matter who the nominee is, what credentials they may have or what support they may have--see item number 1. . . . The fact was, a decision had been made to hold the vacancies and see who won the presidential election. With a Bush win, all those seats could go to Bush rather than Clinton nominees. As Professor Markus identified, some on the other side of the aisle held these seats open for years for another President to fill, instead of proceeding fairly on the consensus nominees pending before the Senate. Some were unwilling to move forward, knowing that retirements and attrition would create four additional seats that would arise naturally for the next President. That is why there are now so many vacancies on the Sixth Circuit. Had Republicans not blocked President Clinton's nominees to this court, if the three Democratic nominees had been confirmed and President Bush appointed the judges to the other vacancies on the Sixth Circuit, that court would be almost evenly balanced between judges appointed by Republicans and Democrats. That is what Republican obstruction was designed to avoid, balance. The same is true of a number of other circuits, with Republicans benefitting from their obstructionist practices of the preceding six and a half years. This combined with President Bush's refusal to consult with Democratic Senators about these matters is particularly troubling. Long before some of the recent voices of concern were raised about the vacancies on that court, Democratic Senators in 1997, 1998, 1999, and 2000 implored the Republican majority to give the Sixth Circuit nominees hearings. Those requests, made not just for the sake of the nominees but for the sake of the public's business before the court, were ignored. Numerous articles and editorials urged the Republican leadership to act on those nominations. Fourteen former presidents of the Michigan State Bar pleaded for hearings on those nominations. The former Chief Judge of the Sixth Circuit, Judge Gilbert Merritt, wrote to the Judiciary Committee Chairman years ago to ask that the nominees get hearings and that the vacancies be filled. The Chief Judge noted that, with four vacancies, the four vacancies that arose in the Clinton Administration, the Sixth Circuit ``is hurting badly and will not be able to keep up with its work load due to the fact that the Senate Judiciary Committee has acted on none of the nominations to our Court.'' He predicted: ``By the time the next President in inaugurated, there will be six vacancies on the Court of Appeals. Almost half of the Court will be vacant and will remain so for most of 2001 due to the exigencies of the nomination process. Although the President has nominated candidates, the Senate has refused to take a vote on any of them.'' However, no Sixth Circuit hearings were held in the last three full years of the Clinton Administration (almost his entire second presidential term), despite these pleas. Not one. Since the shift in majority last summer, the situation has been exacerbated further as two additional vacancies have arisen. The Committee's April 25th hearing on the nomination of Judge Gibbons to the Sixth Circuit was the first hearing on a Sixth Circuit nomination in almost five years, even though three outstanding, fair- minded individuals were nominated to the Sixth Circuit by President Clinton and pending before the Committee for anywhere from one year to over four years. Judge Gibbons was confirmed by the Senate on July 29, 2002, by a vote of 95 to 0. We did not stop there, but proceeded to hold a hearing on a second Sixth Circuit nominee, Professor Rogers, just a few short months later in June. Just as we held the first hearing on a Sixth Circuit nominee in many years, the hearing we held on the nomination of Judge Edith Clement to the Fifth Circuit last year was the first on a Fifth Circuit nominee in seven years and she was the first new appellate judge confirmed to that Court in six years. When we held a hearing on the nomination of Judge Harris Hartz to the Tenth Circuit last year, it was the first hearing on a Tenth Circuit nominee in six years and he was the first new appellate judge confirmed to that Court in six years. When we held the hearing on the nomination of Judge Roger Gregory to the Fourth Circuit last year, it was the first hearing on a Fourth Circuit nominee in three years and he was the first appellate judge confirmed to that court in three years. A number of vacancies continue to exist on many Courts of Appeals, in large measure because the recent Republican majority was not willing to hold hearings or vote on half--56 percent--of President Clinton's Courts of Appeals nominees in 1999 and 2000 and was not willing to confirm a single judge to the Courts of Appeals during the entire 1996 session. From the time the Republicans took over the Senate in 1995 until the reorganization of the Committee last July, circuit vacancies increased from 16 to 33, more than doubling. Democrats have broken with that recent history of inaction. In the last 16 months, we have held 26 judicial nominations hearing, including 20 hearings for circuit court nominees. Professor Roger's nomination was also the fourth judicial nomination from Kentucky to be considered by the Committee in its first year, and the eighth nomination from Kentucky overall. There are no judicial vacancies left in the State. Professor Rogers of the University of Kentucky College of Law has experience as an appellate litigator and a teacher, and is a prolific author on a number of difficult legal topics. It is important to note that aspects of his record raise concerns. As a professor, he has been a strong proponent of judicial activism. No Clinton judicial nominee with such published views would ever have been confirmed during the period of Republican control. In his writings, Professor Rogers has called on lower court judges to reverse higher court precedents, if the lower court judge thinks the higher court will ultimate reverse its own precedent. Such an activist approach is inappropriate in the lower Federal courts. The Supreme Court itself has noted that lower courts should follow Supreme Court precedent and not anticipate future decisions in which the Supreme Court may exercise its prerogative to overrule itself. Prognostications about how the Supreme Court will rule often turns out to be wrong. For example, some predicted that the Supreme Court would overturned Miranda, but the Supreme Court, in an opinion by Chief Justice Rehnquist, declined to do so. Similarly, people like Professor Rogers have called on the Supreme Court to overturn Roe v. Wade, but thus far the Supreme Court has rejected calls to reverse itself in this important decision regarding the rights of women and has resisted calls to return this country to the awful period of dangerous back alley abortions. Professor Rogers also suggested in his academic writings that lower court judges should consider the political views of Justices in making the determination of when lower courts should overrule Supreme Court precedent. In his answers to the Committee, Professor Rogers acknowledged that he had taken that position but he now says that lower courts should not look to the views of Justices expressed in speeches or settings other than their opinions. Also, in his answers to the Committee, Professor Rogers said he would give great weight to Supreme Court dicta, or arguments that are not part of the holding of the case. I would like to take this opportunity to urge him to take seriously the obligation of a judge to follow precedent and the holdings of the Supreme Court, rather than to look to dicta for views that may support his own personal views. I would also urge him resist acting on his academic notion that a judge should diverge from precedent when he anticipates that the Supreme Court may eventually do so. Professor Rogers has assured us that he would follow precedent and not overrule higher courts, despite his clear advocacy of that position in his writings as a scholar. He has sworn under oath that he would not follow the approach that he long advocated. As with President Bush's Eighth Circuit nominee Lavenski Smith, who was confirmed earlier this summer, I am hopeful that Professor Rogers will be a person of his word: that he will follow the law and not seek out opportunities to overturn precedent or decide cases in accord with his private beliefs rather than his obligations as a judge. I would also note that during his tenure at the Justice Department, Professor Rogers appeared to support an expansive view of the power of the Executive Branch vis-a-vis Congress. I am hopeful, however, that Professor Rogers will recognize the important difference between being a zealous advocate for such positions and being a fair and impartial judge sworn to follow precedents and the law. When he was asked to describe any work he had handled which was not popular but was nevertheless important, he said that the case which came to mind was one in which he defended the CIA against a lawsuit seeking damages for the CIA's illegal opening of the private mail of tens of thousands of U.S. citizens during this 1970s or 1980s. Those were dark days of overreaching by the intelligence community against the rights of ordinary law-abiding American citizens. Although times have changed forever since the tragic events of September 11, I think it is important that the American people have access to judges who will uphold the Constitution against government excesses while also giving acts of Congress the presumption of constitutionality to which our laws are entitled by precedent. Professor Rogers has repeatedly assured the Committee, however, that he would follow precedent and not seek to overturn decisions affecting the privacy of women or any other decision of the Supreme Court. Senator McConnell has also personally assured me that Professor Rogers will not be an activist but is sincerely committed to following precedent if he is confirmed. I sincerely hope that his decisions on the Sixth Circuit do not prove us wrong.

Mr. LEAHY

Mr. LEAHY. Mr. President, last Friday, the Senate approved the nomination of Michael McConnell to the United States Court of Appeals for the Tenth Circuit. As a professor, first at the University of Chicago, and then at the University of Utah, Mr. McConnell has been a strong voice for reexamining First Amendment jurisprudence of Free Exercise Clause and the Establishment Clause. He has expressed strong personal opposition to abortion to Roe v. Wade, to the clinic access law. He has testified before the Congress against the Violence Against Women Act on the grounds that it was unconstitutional. Each of these issues was explored to some degree at his hearing before the Judiciary Committee and in follow up written questions. No one doubts that Professor McConnell is personable and intelligent. No one doubts that he is an outstanding and provocative professor. I see why so many of his law professor colleagues like him and have endorsed his nomination. But the Judiciary Committee also received letters from hundreds of law professors reminding us that the burden of persuasion on lifetime judicial appointments should be on the nominee, as well as a recent letter signed by hundreds of law professors opposing confirmation of Professor McConnell. The question I was left with after his nomination hearing was whether we had witnessed another confirmation conversion. Stated another way, I remain very concerned that Professor McConnell may turn out to be an activist on the 10th Circuit. For instance, I still have a hard time reading his writing on the actions of Federal District Court Judge John Sprizzo in acquitting abortion protesters as anything other than praise for the extra-legal behavior of both the defendants and the judge. Even though Professor McConnell has now been confirmed, I continue to be concerned that he appeared to commend a judge and regard him as a hero for not following the law. I find his responses regarding the Violence Against Women Act convenient. I see his refusal to take responsibility for his harsh criticism of the Supreme Court's decision in the Bob Jones case as an attempt to distance himself from his prior approval of the ability of religious institutions to discriminate on the basis of race, even if they are receiving benefits from the Government. At his hearing, and in follow-up written questions, Professor McConnell sought to assure us that he understands the difference between his role as a teacher and advocate and his future role as a judge. He assured us that he respects the doctrine of stare decisis, and that as a Federal appeals court judge, he will be bound to follow Supreme Court precedent. Although many of President Clinton's nominees who assured the Senate of these same things when they were nominated were discredited and not considered, this nomination has moved forward and been approved. I reluctantly supported this nomination to the 10th Circuit based on Professor McConnell's assurances. I trust that he will not seek to undermine women's reproductive rights derived from the Constitution and articulated in Roe v. Wade. I trust that as an appeals court judge he will divorce his personal views on abortion and on racial discrimination in religious institutions from his decisions as a judge, and that he will act to uphold existing law. I trust that he will not seek to circumvent the doctrine of stare decisis and that he will not work to change the law through activism on the bench. There are already admirers who predict that Professor McConnell is destined for a short stop at the 10th Circuit on the way to a Supreme Court nomination. I do not speculate about such things. Professor McConnell has yet to create a record on the 10th Circuit. I mention it only to note that no one should confuse my support of Professor McConnell's nomination to the 10th Circuit as an endorsement or approval for any other position.

Mr. LEAHY

Mr. LEAHY. I yield the floor, and I thank the Senator from West Virginia.

Mr. LEAHY. I thank the Senator. Tribute to Emmylou Harris Madam President, last week, at the Birchmere Music Hall in Alexandria, VA, there was a concert that honored one of the most distinguished songwriters and singers I know, Emmylou Harris. Emmylou Harris was honored because of the work she has done to aid victims of landmines and to help stop the scourge of landmines throughout the world. In honoring her, some of the best artists of this country came and sang for her. They honored both her work and, of course, they honored her amazing talent. My wife Marcelle and I, and our daughter Alicia, and Emmylou's daughter, mother, and friends were there to hear this. She received the award from the Vietnam Veterans of America Foundation, the Patrick Leahy Humanitarian Award. I can't think of anything that gave me more pleasure than to give it to her. I ask unanimous consent that an article from Rolling Stone magazine of November 13, 2002, speaking of Emmylou being honored in Washington, DC, be printed in the Record.

Mr. LEAHY. Madam President, I thank the distinguished senior Senator from West Virginia. He has been my friend for nearly 30 years, and his constant courtesy is one of the reasons for it.

Mr. LEAHY. Before yielding the remainder of my time, I first say to my friend from Utah, he has been very patient but then he has told us before he is a patient man. I yield the floor.

Mr. LEAHY. Mr. President, I mentioned that Judge Shedd tends to go even beyond where an activist U.S. Supreme Court has gone. In a 1997 case challenging the constitutionality of the Driver's Privacy Protection Act, Judge Shedd made a federalism ruling that went way beyond even the extreme federalism rulings of the U.S. Supreme Court, and it was so bad that the U.S. Supreme Court in a 9-to-0 opinion reversed Judge Shedd's ruling. In Condon v. Reno, Judge Shedd ruled on the constitutionality of the Driver's Privacy Act, which essentially prohibited States from selling and sharing personal information gleaned as they were picking up driver's license information. He said that the Act violated the 10th Amendment as interpreted by the courts in New York v. United States and Printz v. United States. Three years later, Chief Justice Rehnquist wrote for the Court explaining that, to the contrary, neither of the cases applied. He did not get just one of them wrong, he got them both wrong. The Chief Justice wrote that because the Act did not require the States in their sovereign capacity to regulate their own citizens, but instead regulates the States as the owners of the databases. Therefore, the Act was consistent with the constitutional principles enunciated in New York v. Printz. In Crosby v. South Carolina, he found the Family and Medical Leave Act unconstitutional on the grounds that it was not properly enacted under Congress's power. I mention this case because it is the second time Judge Shedd ruled in such a way in an important federalism case. He also ruled this way because he just took a magistrate judge's very brief report and did not put in any significant analysis of his own. In this case, it is almost impossible to figure out his reasoning for why this important law with bipartisan support would be unconstitutional, especially when acts of Congress are entitled to a presumption of constitutionality. One would think if somebody really cared about the courts of appeal and the Supreme Court, they would have at least given us rigorous analysis instead of making what appears to be a somewhat arbitrary ruling. In addition, he issued several opinions relating to a murder case where a privileged conversation between the defendant and his attorney was monitored and recorded on videotape by the county sheriff's department. Present in the room where the conversation was being monitored were several of the sheriff's deputies and the county prosecutor who subsequently handled the case. The defendant was convicted and sentenced to death but the Supreme Court of South Carolina reversed because of the nature of the videotaping. In its opinion, the Supreme Court of South Carolina--not one considered the most liberal of courts--used very strong language that condemned the failure to disqualify the local prosecutor's office. They cited the prosecutor's special responsibilities to do justice. And the South Carolina Supreme Court said it would not tolerate deliberate prosecutorial misconduct which threatens rights fundamental to liberty and justice. That is about as strong a condemnation by any state Supreme Court of a prosecutor's actions as I have ever heard. So the federal prosecutions relating to the videotaping were then brought to Judge Shedd's courtroom. Both the prosecutor, Fran Humphries, and the defense attorney, Jack Duncan, were brought before a federal grand jury investigating these constitutional violations. Mr. Duncan testified that he had not given a copy of the tape to a television reporter, while Mr. Humphries testified he had not immediately known the taping was taking place. Now each of them was charged with perjury based on these statements. As I mentioned, the prosecutor and several of the sheriffs, were there watching the taping. So it was obvious he was not telling the truth. Mr. Duncan, the defense attorney, was found guilty and sentenced to 4 months in prison. Even though the information seemed overwhelming against the prosecutor, Judge Shedd dismissed those charges. This is enlightening because if anybody was hurt by the improper taping, it was the defendant and the defense attorney. If anybody truly committed a wrongdoing, as the South Carolina Supreme Court said in the strongest language against a prosecutor I can remember, it was the prosecutor. But having them both before his court, Judge Shedd in effect exonerated the prosecutor and sentenced the defense attorney to 4 months. Think of yourself as the litigant before his court. Look at all of these cases I have talked about, and so many others. I do not fall in the category of the sides he tends to rule with. I am on the other side. It would be an awful sinking feeling to go in there knowing how good your case is but you are probably going to lose. This particular decision shows disregard for the rights of Americans who, no matter what they have been accused of, should be able to expect privacy and not to be videotaped by the government when they are talking to their attorneys. The law is settled in this country that with attorney-client privilege you can sit down and talk with your attorney without the prosecutor videotaping what you are saying, without them listening to or eavesdropping on you. There are a couple of people you are able to talk to with a reasonable expectation of privacy. You are able to talk to your spouse. You are able to talk to your attorney. You are able to talk to your priest in a penitent relationship. Here, the prosecutor violated that-- something that every prosecutor's handbook in America says is wrong, something that hornbook law says is wrong, every ethics course says is wrong, and every bar association says is wrong. The Supreme Court of South Carolina unanimously said it was wrong but Judge Shedd said to the prosecutor: It is okay; we will get the other guy. Well, that calls into question his ability to be fair in criminal cases. So I am concerned when I see his record as a Federal district judge, and I ask myself: If this is his record as a Federal district judge, how is he going to be as a circuit judge on the court of appeals? So I share some of the same concerns about his fairness that we have heard expressed from South Carolina and from throughout the Fourth Circuit. I know arguments will be made on the other side, and this will be disposed of however the Senate decides to vote, but for me, I could not in good conscience vote aye on this nomination. I will vote no. I ask unanimous consent that letters from the Leadership Conference on Civil Rights, Alliance for Justice, and others be printed in the Record.

Mr. LEAHY. Mr. President, there is a reason, when you look at Judge Shedd's record, that many believe he has a reputation for assisting the defense in civil cases and for ruling for the defense in employment civil rights cases, for example. His holding in Condon v. Reno shows that his view of the constitutional allocation of powers between the States and the, Federal Government goes even beyond what we have seen from a very conservative activist Supreme Court across the street. They are busily rewriting the law in this fundamental area. And Judge Shedd goes beyond the U.S. Supreme Court. His actions in a case involving serious prosecutorial and police misconduct also raise serious questions about his fairness in criminal cases. His record as a whole raises serious concerns about whether he should be elevated to a court that is only one step below the U.S. Supreme Court and whether he should be entrusted with deciding appeals there. Every litigant, every defendant, every person, every plaintiff who comes before a judge in the Federal courts must be assured that the judge will give a fair and unbiased hearing to the case at hand. The test of a judge, especially a lifetime appointment, goes beyond just the question of competence. When we are talking about our Federal courts--remember, our Federal courts are admired around the world for their independence and their fairness, but that means that whether you or I, or anybody else walks into a Federal court, no matter what our case is, whether we are plaintiff or a defendant, whether we are the Government or one responding to the Government, whether we are rich or poor, no matter what our political background is, when we walk into the courtroom door, we have to be able to have confidence that this judge, this Federal judge, will hear our case--he or she will hear it fairly. Litigants in our federal courts should be able to have confidence to say and believe that it makes no difference what my political background is, what the color of my skin is, where I am from, or anything else. I will win or I will lose based on the merits of the case, not based on the individual prejudices of the judge. Unfortunately, when one looks at Judge Shedd's record, one has to say that somebody coming in to his court could not have that assurance. One has to say unless they fit into a narrow category that Judge Shedd has routinely favored in his cases, you are probably pretty unlucky to be before his court. Let me go through these concerns in a little more detail. First, Judge Shedd has a reputation for assisting in the defense in civil cases, raising issues sua sponte (on his own motion, without a motion from the lawyers for the litigants), in essence making himself the third litigator and not leaving it up to the parties--the plaintiff or defendant--to litigate the case, but actually stepping in and taking sides and making it very clear to the people in the courtroom that he is taking sides. He has ordered defendants to make motions for summary judgment whether they wanted or planned to or not. He has resolved issues before they are even raised and fully briefed, having made up his mind before the case is even heard, having made up his mind on behalf of one of the litigants. This shows a pattern of a judge injecting himself into litigation, particularly in the shoes of corporations and others if they are being sued, if they are defendants in civil litigation. Here are some specific cases that illustrate these interventions by Judge Shedd to the benefit of one of the parties. In McCarter v. RHNB, a case alleging gender discrimination, Judge Shedd granted summary judgment. He did not even wait for the company to raise these grounds. He raised it for them and summarily ruled in their behalf on an issue they had not even raised. In Shults v. Denny's Restaurant, a case involving a claims of employment discrimination under the Americans with Disabilties Act, Judge Shedd raised an issue on his own, saying he was doing it ``for possible resolution by summary judgment.'' In other words, putting himself on the side of Denny's and in essence advocating for their interests. Again, deciding how best the defense should execute their litigation strategy, he noted that three of the defenses asserted are potentially dispositive of certain claims--in other words, three of the defenses could settle the case right there--and said ``these issues do not appear to necessitate much, if any, discovery on the part of the plaintiff.'' He mentioned, almost as an afterthought at the close of his order, that defendants ``may also file a memorandum'' if they want. It does not help when you are litigating a case if you know the judge has already made up his mind for the other side. It helps even less if, having made it clear he has made up his mind for the other side, he actually steps in and helps the other side. What kind of an image does that give to people who are expecting fairness and impartiality in our Federal courts? What does that say to people who are being told by all of us, as we always are, that our Federal courts are impartial? What does it say when they watch cases being tried by a judge who takes sides openly and clearly and continuously in his courtroom? In Lowery v. Seamless Sensations, a case where an African American woman brought claims under Title VII for employment discrimination on the basis of race, Judge Shedd turned to the person she was suing and said: Make a motion to dismiss. Then he quickly granted it. I bet you that woman walked out of there wondering why she ever even bothered coming into court when it was so obvious the judge made up his mind. Take Coker v. Wal-Mart, in which it appears the judge wanted to get rid of this case. He wanted to make a motion on his own to send it back to the State court, but he did ask Wal-Mart: Give me a memo to show me I can really do that which, of course, is what Wal-Mart wanted. In Gilmore v. Ford Motor Company, a product liability case, Judge Shedd outlined four factors he must consider before dismissing an action for failure to prosecute. He found that the defendants had not set forth evidence addressing these four factors, but nevertheless went on to ``glean certain pertinent information from the record.'' In other words, he said: Here is what you need to win this case. You have not raised these issues yourself. I have gleaned them from somewhere in the record. So do not worry, buddies, I have taken care of you; I am on your side. I will argue your case for you and, in doing this, I can dismiss the case against you. You almost wonder if the winning side feels they should pay their attorneys when the judge has stepped in to help them win the case. In Simmons v. Coastal Contractors, both parties were appearing without a lawyer, or pro se. Judge Shedd noted that ``this civil action . . . is before the court sua sponte.'' While he must have meant the motion itself was before him sua sponte, or on his own motion, he brought up deficiencies in the plaintiff's complaint and ordered that an amended complaint be filed or the action would be dismissed on the judge's own motion. In other words, he essentially indicated I am going to decide the case. You litigants go have coffee if you want, but I am going to make up my mind, make your arguments for you, and settle the case for you. In another substitution for his strategic litigation judgment for that of the defendants, Tessman v. Island Ford-Lincoln-Mercury, Judge Shedd threatened to dismiss the plaintiff's Title VII action on his own unless the plaintiff could show cause why he should not. He said the plaintiff had not alleged that she had presented her claim to, or received a right-to-sue letter from the EEOC and decided that rather than letting the defense move for dismissal, he would do so on his own. In other words: I am going to make the arguments on the other side and get rid of the case. Additionally, of the 11 cases relating to employment discrimination available in the public record, Judge Shedd held for the employer in every single one, including one case where he sat by designation on the Fourth Circuit. Judge Shedd granted summary judgment after summary judgment and found for the employer and against the employee in a wide range of employment discrimination claims. Of the 54 fair employment cases included in the unpublished opinions he provided to the Committee, more than 80 percent of them grant summary judgment to the defendants. That does not appear to be a fair record. It strongly indicates plaintiffs are not receiving fair hearings. Employment cases are often fact-specific disputes that would not seem likely to result in an overwhelming majority of summary judgment decisions for defendants because under the summary judgment standard, the evidence must be viewed in the light most favorable to the non-movant--the plaintiff under these circumstances--and the judge must find that there are no disputes about material facts and that judgment as a matter of law is warranted for the moving party the defendants. Certainly when I look at the mail I get from South Carolina and from litigants and others there, there is a pervasive feeling that unless you fit the right category when you come before that court, you are not going to get a hearing favorable to you--actually, an overwhelming feeling that the hearings will not be fair. They will be slanted to one side. That is not how we maintain the integrity and independence of the Federal bench. For example, the National Employment Lawyers Association reviewed Judge Shedd's public record. They sent a letter opposing his confirmation. I ask unanimous consent that the letter be printed in the Record.

Mr. LEAHY. Mr. President, hundreds, probably thousands, of letters from South Carolina citizens arrived in my office urging a closer look at Judge Shedd's nomination to serve in the Fourth Circuit. So we don't have a Congressional Record tomorrow morning that will be several hundred pages long, I will not include all of them with my remarks today. However, I ask unanimous consent that a list of the letters of opposition to the nomination of Dennis Shedd to the Fourth Circuit Court of Appeals be printed in the Record.

Mr. LEAHY. We received a letter from the Mexican American Legal Defense and Educational Fund, in the interest of many Latinos in the Fourth Circuit, expressing opposition to Judge Shedd as well as correspondence from others expressing concern. I ask unanimous consent that these be printed in the Record.

Mr. LEAHY. We received a letter from the Black Leadership Forum, signed by many well-respected African Americans, including Joseph Lowery, and more than a dozen more internationally known figures, as well as letters from other African American leaders. I ask unanimous consent that these letters be printed in the Record.

Mr. LEAHY. Mr. President, we have before us the nomination of United States District Court Judge Dennis Shedd of South Carolina to the Court of Appeals for the Fourth Circuit. Judge Shedd's nomination was reported out of the Judiciary Committee last Thursday on a voice vote. Nine Democratic Senators, including myself, voted against him. As I noted before, I told Senator Thurmond I intended to bring this matter to a vote by the committee this year. My concern at the penultimate meeting, the meeting before last week, a meeting we held in October, was that we had very little time to debate this controversial nominee and that threatened to prevent a committee vote on 17 other of the President's judicial nominees before the committee. Incidentally, those 17 district court nominees and 2 circuit court nominees were confirmed by the Senate last week. Those 17 district court nominees were on the Senate Calendar because the Senate Judiciary Committee was able to report those nominees despite unparalleled personal attacks by Republicans on me as chairman. Those attacks have included everything from saying I am not bringing up nominees--although I am and we are at a record rate that far outpaces the Republican rate during their six and one-half years of control--to even attacks in these recent months on my religious beliefs as well as the religion of several of the members of the Democratic majority on the Senate Judiciary Committee. Notwithstanding these unprecedented attacks on both our religious beliefs and our actions, the confirmations last week bring to 99 the number of President Bush's judicial nominees confirmed by the Democratic-led Senate in the past 16 months. I mention this because before that, during the 6\1/2\ years when the Republican majority controlled the Senate, they averaged 38 judicial confirmations per year. In fact, in the year 1996, over the whole year, they allowed only 17 district court judges to be confirmed all year and did not confirm a single circuit court nominee--not a single one. We had 17 district court judges in 1 meeting and those 17 nominees of President Bush were confirmed on one day last week by the Democratic- led Senate. I put this in the record so the people understand the historic demonstration of my bipartisanship toward the President's judicial nominees in perspective with the recent history of judicial confirmations. The fact is that in addition to the 83 district court nominees confirmed, the Senate has also already confirmed 16 of his circuit court nominees. That is in sharp contrast to the fact that the Republicans allowed only 7 circuit court nominees to be confirmed per year, on average, during their control of the Senate. For example, more than half of President Clinton's circuit court nominees in the 106th Congress were defeated through such obstruction--more than half. In fact, the Fourth Circuit--to take one at random--is one of many circuits affected by the other party's obstruction of President Clinton's judicial nominees. In the Fourth Circuit, seven of President Clinton's nominees to that circuit were never given a hearing or a vote in committee or on the floor--seven out of that one circuit alone. James Beaty, one of the Fourth Circuit nominees of President Clinton, did not get a hearing or a vote in 1995, or 1996, or 1997, or 1998. Another Fourth Circuit nominee, Judge Richard Leonard, did not get a hearing or vote in 1995 or 1996. Another Fourth Circuit nominee, James Wynn, did not get a hearing or a vote in 1999, 2000, or 2001. Other Fourth Circuit nominees--Elizabeth Gibson, Judge Andre Davis, or Judge Roger Gregory--also did not get hearings or votes during the period of Republican control of the Senate. Indeed, the first hearing the Judiciary Committee held last year on a judicial nominee was for an earlier Fourth Circuit nominee, Judge Roger Gregory. He had been nominated initially by President Clinton when the Republicans were in control. They did not act on him. He was brought back by President Bush, and he became the first judge confirmed to the Fourth Circuit in several years. He was also the first African American confirmed to the Fourth Circuit in American history. That is because our committee in the Senate acted in the summer of 2001. Judge Gregory was the first of 20 circuit court nominees on whom we proceeded to hold hearings in our 16 months in the majority. So the partisan rhetoric about the Judiciary Committee having blockaded President Bush's judicial nominees and having treated nominees unfairly might be a good stump speech on the circuit, but it is belied by the facts. Frankly, I think the staff at the White House who have put those kinds of misstatements in the President's speeches have done the President a disservice, as they have the Senate. Turning to the nomination of Judge Dennis Shedd to the United States Court of Appeals for the Fourth Circuit, I cannot fail to note that it is not without controversy. In fact, it is quite controversial. Issues in his judicial record raised cause for concern among many Senators on the Judiciary Committee as well as with many citizens who live in the jurisdiction of the Fourth Circuit and elsewhere in the country who have written to the Senate in opposition to his elevation and confirmation. While considering the information gathered in the hearing process, I placed Judge Shedd's nomination on the committee agenda in September. That was my effort to show Senator Thurmond courtesy as a former chairman and to signal that I expected this committee to proceed to consider the nomination before the year was out. Several Senators asked to hold the nomination over, and under the rules any Senator can. On October 7, when I hoped to be able to list his name for consideration again, I was told there would be a debate so lengthy that we would not even be able to consider the 17 other judicial nominations of President Bush that were on the agenda or, for that matter, the legislative matters we were trying to take up before the election. So I told Senator Thurmond, and other Senators before that markup, it was for this reason that I would not list Judge Shedd's nomination on the agenda for the October 8 markup, but I explained to Senator Thurmond and others that I hoped we would be able to consider it at our next opportunity, as we knew at that point we would have a lame duck session. So now, having the lame duck session, I scheduled as soon as we came back and Senators would be here a markup on Judge Shedd and one other judicial nominee. The committee has received more than 1,200 letters from individuals and organizations, both in and out of South Carolina, expressing concerns about elevating Judge Shedd. In fact, right here, it stands about 2 feet high--the stack of letters we got against it. These letters raise serious issues. What I heard about the nominee from the citizens of South Carolina and from others around the country was and is troubling. I ask unanimous consent to have printed samples of letters such as those from citizens of South Carolina in the Record.

Mr. LEAHY. Mr. President, I ask unanimous consent that the distinguished Senator from Florida be recognized for 10 minutes, with the time divided equally. I make that request, that that 10 minutes of time be taken equally out of both sides.

Mr. LEAHY. Mr. President, just so all Senators understand where we are, I have been told that the cloture vote that was scheduled for this afternoon has been vitiated. But we will be voting on the Shedd nomination sometime tomorrow morning. I see the distinguished Senator from Florida on the floor. Could he indicate how long he wishes to speak? I was about to begin the debate on the nomination.

Mr. LEAHY. Mr. President, for more than 2 years, I have been working hard with Members on both sides of the aisle, in both Houses of Congress, to address the horrendous problem of innocent people being condemned to death within our judicial system. This is not a question of whether you are for or against the death penalty. Many of the House Members and Senate Members who have joined this effort are in favor of the death penalty. I suspect the majority of them are in favor of it. It goes to the question of what happens if you have an innocent person who is condemned to death. Our bill, the Innocence Protection Act, proposes a number of basic commonsense reforms to our criminal justice system; reforms that are aimed at reducing the risk that innocent people will be put to death. We have come a long way since I first introduced the IPA in February 2000. At that time, we had four Democratic cosponsors. Now there is a broad consensus across the country among Democrats and Republicans, supporters and opponents of the death penalty, liberals, conservatives, and moderates, that our death penalty machinery is broken. We know that putting an innocent person on death row is not just a nightmare, it is not just a dream, it is a frequently recurring reality. Since the 1970s, more than 100 people who were sentenced to death have been released, not because of some technicality, but because they were innocent, because they had been sentenced to death by mistake. One wonders how many others were not discovered and how many innocent people were executed. These are not just numbers, these are real people. Their lives are ruined. Let me give an example: Anthony Porter. Anthony Porter was 2 days from execution in 1998 when he was exonerated and released from prison. Why? Not because the criminal justice system worked. He was exonerated and released because a class of journalism students, who had taken on an investigation of his case, found that did he not commit the crime. They also found the real killer. A group of students from a journalism class did what should have been done by the criminal justice system in the first place. Ray Krone spent 10 years in prison. Three of those ten years were on death row waiting for the news that he was about to be executed. Then, earlier this year, through DNA testing, he was exculpated and the real killer was identified. These are two of the many tragedies we learn about each year. These situations result not only in the tragedy of putting an innocent person on death row, but they also leave the person who committed the crime free. Everything fails. We have the wrong person in prison. But we have not protected society or the criminal justice system because the real criminal is still out running free. Often times, the actual perpetrator is a serial criminal. Today, Federal judges are voicing concerns 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 Ginsburg has supported a State moratorium on the death penalty. Another respected jurist, Sixth Circuit Judge Gilbert Merritt, referred to the capital punishment system as ``broken,'' and two district court judges have found constitutional problems with the Federal death penalty. We can agree there is a grave problem. The good news is that there is also a broad consensus on one important step we have to take--we must pass the Innocence Protection Act. That is why I wanted to let my colleagues know what is happening. As the 107th Congress draws to a close, the IPA is cosponsored by a substantial bipartisan majority of the House and by 32 Senators from both sides of the aisle, including, most recently, Senator Bob Smith of New Hampshire. A version of the bill has been reported by a bipartisan majority of the Senate Judiciary Committee. And the bill enjoys the support of ordinary Americans across the political spectrum. What would the Innocence Protection Act do? As reported by the committee, the bill 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: to establish innocence. Just like fingerprints, in many crimes there are no fingerprints; in many crimes there is no DNA evidence. 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, it should be possible to preserve the evidence. The Innocence Protection Act would therefore provide improved access to DNA testing for people who claim that they have been wrongfully convicted. Just last week, prosecutors in St. Paul, MN, vacated a 1985 rape conviction after a review of old cases led to DNA testing that showed they had the wrong man--and also identified the actual rapist. Think how much better society would have been had they caught the real rapist 17 years ago. The district attorney wanted to conduct DNA testing in two other cases, but the evidence in those cases had already been destroyed. She has called on law enforcement agencies to adopt policies requiring retention of such evidence, and that is what our bill would call for. Many cases have 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. The biggest thing we can do is to guarantee at least minimum competency for the defense in a capital case. This bill offers States extra money for quality and accountability. They can decline the money but then the money will be spent on one or more organizations that provide capital representation in that State. One way or another, the system is improved. 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. When I was a State's Attorney in Vermont, I wanted those I prosecuted to have competent defense counsel. I wanted to reach the right result in my trails, whatever that was, and I wanted a clean record, not a record riddled with error. Any prosecutor worth his or her salt will tell you the same; any prosecutor who is afraid of trying his cases against competent defense counsel ought to try a new line of work, because the whole system works better if both prosecutor and defense counsel are competent. That is what I wanted when I was prosecuting cases because I wanted to make sure justice was done. The Constitution requires the Government to provide an attorney for any defendant who cannot afford one. The unfortunate fact is that in some parts of the country, it is better to be rich and guilty than poor and innocent, because the rich will get their competent counsel, but those who are not rich often find their lives placed in the hands of underpaid court-appointed lawyers who are inexperienced, inept, uninterested, or worse. We have seen case after case of sleeping lawyers, drunk lawyers, lawyers who meet with their clients for the first time on the eve of trial, and lawyers who refer to their own clients with racial slurs. Part of the problem, I think, lies with some state court judges who do not appear to expect much of anything from criminal defense attorneys, even when they are representing people who are on trial for their lives. Good judges, like good prosecutors, want competent lawyering for both sides. But some judges run for reelection touting the number and speed of death sentences they have handed down. For them, the adversary system is a hindrance. The problem of low standards is not confined to elected State judges. Earlier this year, a bare majority of the Supreme Court held that it was okay for the defendant in a capital murder trial to be represented by the same lawyer who represented the murder victim. Most law students would automatically say that is a conflict of interest, but our Supreme Court said that was all right. And last year, a Federal appeals court struggled with the question whether a defense lawyer who slept through most of his client's capital murder trial provided effective assistance of counsel. Fortunately, a majority of the court eventually came to the sensible conclusion that ``unconscious counsel equates to no counsel at all,'' basically reversing what a State court said when it said the Constitution guarantees a person counsel. It does not guarantee they will stay awake. No law can guarantee that no innocent person will be convicted. But surely we can do better than this. Surely we can demand more of defense counsel than that they simply show up for the trial and remain awake. 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. As citizens, we expect that of our prosecutors. We ought to expect the same thing of our defense attorneys. That is all we ask for in the IPA. I have heard four arguments against the bill. One wonders, with all these people from the right to the left, all these editorial writers and Members of Congress from both parties supporting the IPA, what that tells us. First, critics claim that the bill is an affront to States' rights. As a Vermonter, and as a former State prosecutor, I agree that States' rights are very important. States should have the right to set their own laws, free of Federal preemption at the behest of special interests. They should have the right to set their own budgets, free of unfunded mandates. And their reasonable expectations of Federal funding for criminal justice and other essential programs should be met, rather than bankrupting State governments because of Federal tax policy. The IPA is entirely consistent with these principles of State sovereignty. It leaves State laws, including the death penalty laws, in place. It offers States new funding for their criminal justice systems. And there was a provision added during the committee process establishing a student loan forgiveness program for prosecutors and public defenders, something that a lot of State governments say would help recruit and retain competent young lawyers. This is one of those cases, like in the civil rights era, where the rhetoric of States rights is being abused as a code for the denial of basic justice and accountability. Some States have made meaningful reforms, but many have not. They have had more than a quarter of a century and 100 death row exonerations to get their act together, but they have failed. As many in this body argued in 1996, when promoting legislation to speed up executions, justice delayed is justice denied. I agree with that. We cannot wait forever while innocent lives are in peril. I have heard a second argument against the IPA, which is that society cannot afford to pay for these reforms. The truth, however, is that we cannot afford to do otherwise if we want to maintain confidence in our criminal justice system. The costs of providing DNA testing and competent counsel are relatively small, especially when you compare them to the costs of retrials that are necessitated by the lack of adequate counsel at trial, or the cost of locking up innocent people for years or even decades. I am all for efficiency, but the greatest nation on Earth should not be skimping on justice in matters of life or death. I have heard a third argument from a vocal minority of State prosecutors. They claim the bill would make it unduly difficult, if not impossible, to seek the death penalty. That is a shocking claim. When I prosecuted cases, I felt very comfortable prosecuting those cases under the laws of our State because of two things: I knew that all the evidence we had, including potentially exonerating evidence, had been given to the defendant. And I knew I was working in a well-functioning adversarial system with effective representation on the other side. That is the way it is supposed to work. When I hear a prosecutor say that the IPA reforms--enabling DNA testing and securing adequate defense representation--would make it almost impossible for him to do his job, it makes me wonder what he thinks that job is. Finally, there is one more argument against the bill which is rarely stated out loud. I call it the ``innocence denial'' argument. We saw this in the Earl Washington case in Virginia where, despite conclusive DNA evidence to the contrary, the Commonwealth for years clung to the hopelessly unreliable and implausible confession of a mentally retarded man. We see it in claims that ``the system is working'' when an innocent man is released after years on death row due to the work of journalism students. And we see it in the often-repeated insistence that, no matter how many people have been exonerated, no one can prove that an innocent person has actually been executed. The innocence deniers will never concede there is a problem. But with 100 known instances of the system failing--and those are only the ones we know about--it would be surprising if there were not more unknown cases of innocent people being sentenced to death. The IPA was passed out of committee in the Senate and is supported by a majority of the House. We ought to pass it before more lives are ruined. As a prosecutor, I never had any hesitation to seek the severest penalties our State could provide for people who committed serious crimes. When I look at some of the cases I have reviewed over recent years, when I see shoddy evidence, or when I see evidence that was not looked at because it might have pointed to someone else, I wonder, why wouldn't society want a better system? Passing the IPA will help fix these problems and give greater credibility to our criminal justice system. I yield the floor. I suggest the absence of a quorum and ask that the time be equally divided.

Mr. LEAHY

Mr. LEAHY. Mr. President, I have discussed this with the distinguished senior Senator from Utah. I am going to speak on another matter prior to going to the Shedd nomination, although I have no objection to the time coming out of the 3 hours.

Mr. LEAHY. Mr. President, how much time is under the control of the Senator from Vermont?

Mr. LEAHY

Mr. LEAHY. Mr. President, what is the parliamentary situation?

Mr. LEAHY. Mr. President, I will be speaking on a number of things at appropriate times this afternoon. I ask the distinguished Presiding Officer, at what time do we turn to the Shedd nomination?