Patrick Leahy

Mr. LEAHY

Mr. LEAHY. I thank the Chair. I commend the Chair for his interest in the proceedings here--something he always demonstrates when he is there. He has had the ability to serve in both bodies and we have what might be a little bit more of a leisurely technique over here. The Senator from Vermont is delighted to have the Senator from Florida as a Member of this body.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to speak about the nomination of Gen. James Jones to be Supreme Allied Commander in Europe. General Jones has served in the Marine Corps with tremendous skill and dedication, and I know he will make an equally effective U.S. and NATO commander in Europe. I first met General Jones when he served as a Corps liaison here in the U.S. Senate in the mid-1980s. Like other Marines, then Major Jones was quiet about his war record but I learned he served gallantly in Vietnam. In some of the worldwide travel that the Corps supported and he helped arrange, I quickly realized that the service had itself a man of exceptional intellect, skill, and determination. In other words, the Corps possessed a leader in every sense of the word. Despite his fluent French and obvious sense of diplomacy, General Jones is foremost a warrior and his career is dominated by such critical assignments as commanding the 24th Marine Expeditionary Unit. I visited this prestigious unit when it participated in Operation Provide Comfort after the Gulf War. One of the most impressive sights I have ever seen was then Colonel Jones giving crisp orders to his Marines only miles outside of the Iraqi town of Zaku while Air Force A- 10 Thunderbolts provided aerial cover. He brought his typical professionalism to other combat-related assignments. As the 32d Commandant of the Marine Corps, General Jones has served exceptionally. Under his leadership, the Marine Corps has developed new capabilities that will help America's 9-1-1 force to operate effectively at greater distances. In response to September 11 attacks, General Jones ordered the creation of a new unit to protect the country domestically, in addition to inspiring Marines to serve in truly outstanding action in Afghanistan and across the turbulent Middle East. It is a testament to his achievements and character that the President selected General Jones to become the Supreme Allied Commander, Europe. General Jones will be the first Marine to take on this most prestigious military command. He faces a number of challenges, including navigating the expansion of the Atlantic Alliance along with the prosecuting the war on terrorism. He will command an enormous Area of Responsibility, including much of Africa where the AIDS/HIV epidemic promises to create untold security instabilities. If anyone is up to leading allied forces to protect our interests and promote our values it is Jim Jones. Marcelle and I wish General Jones and his wife Diane all the best as they move to Mons, Belgium. Based on our friendship and contact over the years, I know he will make us proud. I congratulate him, and, as an American, I am thankful our country has his services.

Mr. LEAHY

Mr. LEAHY. Mr. President, last night the Senate passed, by unanimous consent, the Hatch-Leahy PROTECT Act providing important new tools to fight child pornography. I want to take a moment to speak about the passage of this important bill and the effort that it took to get to this point. Although they have recessed subject to the recall of the Speaker of the House, I also want to implore the Republican leadership in the House of Representatives not to miss this important opportunity to pass such important bipartisan legislation as this. In April, I came to the Senate floor and joined Senator Hatch in introducing S. 2520, the PROTECT Act, after the Supreme Court's decision in Ashcroft v. Free Speech Coalition (``Free Speech''). Although there were some others who raised constitutional concerns about specific provisions in that bill, I believed--and still believe-- that unlike the Administration proposal, it was a good faith effort to work within the First Amendment. Everyone in the Senate agrees that we should do all we can to protect our children from being victimized by child pornography. That would be an easy debate and vote. The more difficult thing is to write a law that will both do that and will stick. In 1996, when we passed the Child Pornography Prevention Act, ``CPPA'', many warned us that certain provisions of that Act violated the First Amendment. The Supreme Court's recent decision in Free Speech has proven them correct. We should not sit by and do nothing. It is important that we respond to the Supreme Court decision. It is just as important, however, that we avoid repeating our past mistakes. Unlike the 1996 CPPA, this time we should respond with a law that passes constitutional muster. Our children deserve more than a press conference on this issue. They deserve a law that will last. It is important that we do all we can to end the victimization of real children by child pornographers, but it is also important that we pass a law that will withstand First Amendment scrutiny. We need a law with real teeth, not one with false teeth. After joining Senator Hatch in introducing the PROTECT Act, I convened a Judiciary Committee hearing on the legislation. We heard from the Administration, from the National Center for Missing and Exploited Children, NCMEC, and from experts who came and told us that our bill, as introduced, would pass constitutional muster, but the House-passed bill would not. I then placed S. 2520 on the Judiciary Committee's calendar for the October 8, 2002, business meeting. I continued to work with Senator Hatch to improve the bill so that it could be quickly enacted. Senator Hatch circulated a Hatch-Leahy proposed Judiciary Committee substitute that improved the bill before our October 8 business meeting. Unfortunately the Judiciary Committee was unable to consider it because of procedural maneuvering by my colleagues that had nothing to do with this important legislation, including the refusal of Committee members on the other side of the aisle to consider any pending legislation on the Committee's agenda. I still wanted to get this bill done. That is why, for a full week in October, I worked to clear and have the full Senate pass a substitute to S. 2520 that tracked the Hatch-Leahy proposed committee substitute in nearly every area. Indeed, the substitute I offered even adopted parts of the House bill which would help the NCMEC work with local and state law enforcement on these cases. Twice, I spoke on the Senate floor imploring that we approve such legislation. As I stated then, every single Democratic Senator cleared that measure. I then urged Republicans to work on their side of the aisle to clear this measure-- so similar to the joint Hatch-Leahy substitute--so that we could swiftly enact a law that would pass constitutional muster. Unfortunately, instead of working to clear that bipartisan, constitutional measure, colleagues on the other side of the aisle opted to use this issue to play politics before the election. They redrafted the bill, changed crucial definitions, and offered a new version. Facing the recess before the mid-term elections, we were stymied again. Even after the election, however, during our lame duck session, I have continued to work with Senator Hatch to pass this legislation through the Senate. As I had stated I would do prior to the election, I called a meeting of the Judiciary Committee yesterday. In the last meeting of the Judiciary Committee under my Chairmanship in the 107th Congress, I placed S. 2520, the Hatch-Leahy PROTECT Act, on the agenda again. At that meeting the Judiciary Committee approved this legislation, as amended. We agreed on a substitute and to improvements in the victim shield provision that I authored. Although I did not agree with two of Senator Hatch's amendments because I thought that they risked having the bill declared unconstitutional, I nevertheless both called for the Committee to approve the bill and voted for the bill in its amended form. I then sought, that same day, to gain the unanimous consent of the full Senate to pass S. 2520 as reported by the Judiciary Committee, and I worked with Senator Hatch to clear the bill on both sides of the aisle. I am please that late last night that the Senate passed S. 2520 by unanimous consent. I want to thank Senator Hatch for his help clearing the bill for passage last night. I am glad to have been able to work hand in hand with Senator Hatch on S. 2520, the PROTECT Act, a bill that gives prosecutors and investigators the tools they need to combat child pornography. The Hatch-Leahy PROTECT Act strives to be a serious response to a serious problem. The provisions of the Hatch-Leahy bill, S. 2520, as we introduced it are bipartisan and good faith efforts to protect both our children and to honor the Constitution. At our hearing last month, Constitutional and criminal law scholars--one of whom was the same person who warned us last time that the CPPA would be struck down--stated that the PROTECT Act could withstand Constitutional scrutiny, although there were parts that were very close to the line. Unfortunately these experts could not say the same about the administration's bill, which seems to challenge the Supreme Court's decision, rather than accommodate the restraints spelled out by the Supreme Court. I have also received letters from other Constitutional scholars and practitioners expressing the same conclusion, which I will place in the Record with unanimous consent. The Administration's proposal and House bill simply ignore the Supreme Court's decision and reflect an ideological response instead of a carefully drawn bill that will stand up to scrutiny. The PROTECT Act is a good faith effort, but it is not perfect and I would have liked to have seen some additional changes to the bill. Unfortunately, I could not obtain agreement to make the following modifications: First, regarding the tip line, I would have liked to clarify that law enforcement agents cannot ``tickle the tip line'' to avoid the key protections of the Electronic Communications Privacy Act. Second, regarding the affirmative defense, I would have liked to ensure that there is an affirmative defense for the new category of child pornography and for all cases where a defendant can prove in court that a specific, non-obscene image was made using not any child but only actual, identifiable adults. Nevertheless, we were able to reach agreement in Committee on modifying the bill with my amendment to the victims' shield law by giving federal judges and prosecutors the discretion to override the new victim shield law when there is good cause, such as cases where the shield law is actually used as a sword by the defendant to help assert a defense. As a general matter, I would have thought it far simpler to take the approach of outlawing ``obscene'' child pornography of all types, which we do in one new provision that I suggested. That approach would produce a law beyond any possible challenge. This approach is also supported by the National Center for Missing and Exploited Children, which we all respect as the true expert in this field. Following is an excerpt from the Center's answer to written questions submitted after our hearing, which I will place in the Record in its entirety: Our view is that the vast majority (99-100%) of all child pornography would be found to be obscene by most judges and juries, even under a standard of beyond a reasonable doubt in criminal cases. Even within the reasonable person under community standards model, it is highly unlikely that any community would not find child pornography obscene. . . . In the post Free Speech decision legal climate the prosecution of child pornography under an obscenity approach is a reasonable strategy and sound policy. Thus, according to the National Center for Missing and Exploited Children, the approach that is least likely to raise constitutional questions--using established obscenity law--is also an effective one. Because that is not the approach we decided to use, I recognize that S. 2520 contains provisions about which some may have legitimate Constitutional questions. These provisions include: A new ``pandering'' provision with a very wide scope; a new definition of `obscenity' that contains some, but not all, of the elements of the Supreme Court's test; a new affirmative defense for pornography made not using any minors that does not apply to one new category of child pornography. These provisions raise legitimate concerns, but in the interest of making progress I am pleased, as Chairman of the Judiciary Committee, to have tried to balance all the competing interests to produce a bill with the best chance of withstanding a constitutional challenge. That is not everyone's view. Others evidently think it is more important to make an ideological statement than to write a law. A media report just this week on this legislation noted the wide consensus that S. 2520 is more likely than the House bill to withstand scrutiny, but quoted a Republican House member as stating: ``Even if it comes back to Congress three times we will have created better legislation.'' To me, that makes no sense. Why not create the ``better legislation'' right now for today's children, instead of inviting more years of litigation and putting at risk any convictions obtained in the interim period before the Supreme Court again reviews the constitutionality of Congress' effort to address this serious problem? That is what S. 2520 seeks to accomplish as drafted. I want to commend Senator Hatch for working with me to include many other important provisions in the Hatch-Leahy bill that we developed together and are not as controversial. These include: A tough new private right of action for victims of child pornography with punitive damages; a victims' shield law to keep child victim's identity out of court and prevent them from suffering a second time in the criminal process; a new notice provision designed to stop ``surprise defenses;'' sentencing enhancements for recidivists and a directive to correct the disparity in the current sentencing guidelines that provides a lighter sentence for offenders who cross state lines to actually molest a child than for offenders who possess child pornography that has crossed State lines. These provisions are important, practical tools to put child pornographers out of business for good and in jail where they belong. I support S. 2520 as a good faith effort to protect our children and honor the Constitution, and the Committee substitute, which improved upon the original bill. There were two amendments adopted in Committee to which I objected. I felt that they needlessly risked a serious constitutional challenge to a bill that already provided prosecutors the tools they needed to do their jobs. Let me discuss my opposition to two amendments offered by my good friend Senator Hatch that were adopted by voice vote by the Judiciary Committee. Although I worked with Senator Hatch to write the new pandering provision in S. 2520, I do not support Senator Hatch's amendment, which criminalizes speech even when there is no underlying material at all-- whether obscene or non-obscene, virtual or real, child or adult. The pandering provision is an important tool for prosecutors to punish true child pornographers who for some technical reason are beyond the reach of the normal child porn distribution or production statutes. It is not meant to federally criminalize talking dirty over the internet or the telephone when the person never possesses any material at all. That is speech, and that goes too far. The current pandering provision in S. 2520 is quite broad, and some have argued that it presents constitutional problems as written, but I thought that prosecutors needed a strong tool, so I supported Senator Hatch on the current provision. I was heartened that Professor Schauer of Harvard, a noted First Amendment expert, testified at our hearing that he thought that the provision was Constitutional, barely. Unfortunately, Professor Schauer has since written to me stating that this new amendment ``would push well over the constitutional edge a provision that is now up against the edge, but probably barely on the constitutional side of it.'' I will place that letter and other materials in the Record with unanimous consent of the Senate. Because this amendment endangers the entire pandering provision, because it is unwise, and because that section is already strong enough to prosecute those who peddle child pornography, I oppose this amendment. Nevertheless, in light of the broader support for this amendment on the Committee, it was adopted over my objection. Senator Hatch and I agree that legislation in this area is important. But regardless of our personal views, any law must be within constitutional limits or it does no good at all. Even though it is close to the line, I support S. 2520 as Senator Hatch and I introduced it in the Senate. Senator Hatch's amendment which would include all ``virtual child pornography'' in the definition of child pornography, in my view, crosses the constitutional line, however, and needlessly risks protracted litigation that could assist child pornographers in escaping punishment. Although I joined Senator Hatch in introducing S. 2520, even when it was introduced I expressed concern over certain provisions. One such provision was the new definition of ``identifiable minor.'' When the bill was introduced, I noted that this provision might ``both confuse the statute unnecessarily and endanger the already upheld `morphing' section of the CPPA.'' I said I was concerned that it ``could present both overbreadth and vagueness problems in a later constitutional challenge.'' The Supreme Court made it clear that we can only outlaw child pornography in two situations: No. 1, it is obscene, or No. 2, it involves real kids. That is the law as stated by the Supreme Court, whether or not we agree with it. The ``identifiable minor'' provision in S. 2520 may be used without any link to obscenity doctrine. Therefore, what saves it is that it applies to child porn made with real ``persons.'' The provision is designed to cover all sorts of images of real kids that are morphed or altered, but not something entirely made by computer, with no child involved. That is the provision as Senator Hatch and I introduced this bill. The Hatch amendment adopted in Committee that redefined ``identifiable minor'' by creating a new category of pornography for any ``computer generated image that is virtually indistinguishable from an actual minor'' dislodged, in my view, that sole constitutional anchor. The new provision could be read to include images that never involved real children at all but were 100 percent computer generated. That was never the goal of this provision and that was the reason it was constitutional. There are other provisions in the bill that deal with obscene virtual child pornography that I support. This provision was intended to ease the prosecutor's burden in cases where images of real children were cleverly altered to avoid prosecution. I support the definition of `identifiable minor' as we originally wrote and introduced it. Because Senator Hatch's amendment seriously weakened the constitutional argument supporting this entire provision, I opposed it. Nevertheless, given the broader support for this amendment on the Judiciary Committee it was been adopted, over my objection and I still sought passage of the bill, which we achieved last night. Even though S. 2520 is not perfect, I was glad that I was able to work with Senator Hatch to secure its approval last night. I had hoped that the House of Representatives would adopt the bill before they recessed for the end of the year. That way, we could have sent a bill to the President for his signature right now. Instead, the House of Representatives' Republican leadership decided to adjourn without either taking up the Hatch-Leahy bill or working with us to resolve any differences. I hope that the House leadership will reconsider this decision and consider this measure, rather than start all over again in the next Congress. It is certainly unfortunate that the House Republican leadership would rather adjourn for a recess than take the opportunity to pass a bipartisan bill which passed the Senate unanimously. As I have explained, I believe that this issue is so important that I have been willing to compromise and to support a measure even though I do not agree with each and every provision that it contains. That is how legislation is normally passed. Again, however, I fear that some in the Administration and the House have decided to play politics with this issue that is so important to our nation's children. I urge them to reconsider their ``take it or leave it approach'' and consider the Hatch-Leahy PROTECT Act--or at least come back to discuss our differences. I ask unanimous consent that the letters and materials to which I referred be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, yesterday the Senate confirmed the 98th judicial nominee of President George W. Bush. These past 16 months, since the reorganization of the Senate Judiciary Committee following the change in majority last year, have been an historic and impressive period in which we have fairly considered hundreds of the President's executive and judicial branch nominees. Despite partisan rhetoric to the contrary, the Senate has done a good job. If this Senate had a ``lousy'' record on judicial confirmations, then the Republican leadership, which controlled the pace on confirmations from 1995 through the first part of 2001, must have been far, far worse than ``lousy''. Under Republican control judicial vacancies on the Courts of Appeals more than doubled, from 16 to 33, and overall vacancies rose from 65 to 110. We have heard no criticism from the White House of that period, in which Senate Republicans blocked President Clinton's nominees. We have heard no apologies from the Republican leadership that engineered those efforts. Just last night, in one night, the Democratic-led Senate confirmed more judges, 18, including more circuit judges, than the Republican-led Senate allowed to be confirmed in the entire 1996 session more in one day than Republicans were willing to proceed on for an entire year. Seventeen of those judges were the nominations we were able to get reported from the Committee on October 8 with some significant effort and in spite of Republican efforts to divert the Committee into other matters. This week the Committee met, again, as I had said it would. We considered the nominations of Dennis Shedd and Michael McConnell and voted on them as the 101st and 102nd judicial nominations voted on by the Committee during the last 16 months and reported them to the Senate. One hundred judicial nominations have now been reported favorably to the Senate by the Judiciary Committee during the past 16 months; two were rejected. One indication of the fairness with which we have conducted ourselves is that as chairman I have proceeded to consider nominations that I do not support and the Committee has reported nominations that I do not support to the Senate. As I said during this week's Committee consideration of the Shedd nomination, for example, having examined his record as a District Court Judge, I intend to vote against his nomination to the Court of Appeals for the Fourth Circuit. With the Senate's actions last night, we have confirmed 98 of this President's judicial nominees in only 16 months. This compares most favorably to the 38 judicial confirmations averaged per year during the six and one-half years when the Republican majority was in control of the Senate. Last night, the Senate confirmed another 18 judicial nominees. In the entire 1996 session over the course of an entire year, the Republican majority allowed only 17 district court judges to be confirmed all year and would not confirm a single circuit court nominee--not one. Last night, the Democratic-led Senate confirmed all 17 district court nominees reported to the Senate by the Judiciary Committee after our October 8 business session as well as a 6th Circuit nominee from Kentucky. The Democratic-led Senate exceeded in one day what it took the Republican majority of the Senate an entire year to accomplish. That should put our historic demonstration of bipartisanship toward this President's judicial nominees in perspective. The 17 district court nominees confirmed last night were on the Senate calendar because, on October 8, the Senate Judiciary Committee was able to report those nominations despite unparalleled personal attacks by Republicans on me as chairman. The circuit court nominee confirmed last night, Professor John Rogers, is the second of this President's judicial nominees confirmed to the Sixth Circuit this year. They are the first confirmations to the 6th Circuit since 1997, when Republicans for four years shut down consideration of President Clinton's nominees to that circuit. Three of President Clinton's nominees to that court were never allowed a hearing by the Republican majority; the Democratic majority has, in contrast, proceeded to confirm two new judges to that same circuit court. The hard, thankless, but steady work of the Democratic members of the Judiciary Committee has reduced judicial vacancies substantially during these last 16 months. We inherited 110 vacancies and an additional 49 have arisen since July 10, 2002. Today, after 98 confirmations, district and circuit court vacancies combined number only 60--not the more than 150 vacancies that would exist had we shut down the process or the 111 vacancies that would exist if we had followed the Republican pace of confirmation during the Clinton administration. The President has failed to send nominations for almost half of the 60 current vacancies on the district and circuit courts and only 11 of his remaining nominees have both home-State consent and ABA ratings. Despite false attacks on our record, the Senate has acted with bipartisanship, fairness and expedition on this President's judicial nominees, confirming 98 in just 16 months. We have reduced judicial vacancies from the 110 we inherited to fewer than the 65 vacancies the Republicans began with when they took over the Senate in 1995. Unlike the Republican majority that allowed judicial vacancies grow, we have outpaced attrition and reduced the overall level of vacancies, including the vacancies on the circuit courts.

Mr. LEAHY

Mr. LEAHY. Madam President, last night, 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 more over 4 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 is 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 5 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 6 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 overturn 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. Madam President, I am pleased that the Senate is taking the important step of passing H.R. 5469, the ``Small Webcaster Amendments Act of 2002.'' This legislation reflects hard choices made in hard negotiations under hard circumstances. I commend House Judiciary Chairman Sensenbrenner and Representative Conyers for bringing this legislation to a successful conclusion and passage in the House of Representatives in a timely fashion to make a difference in the prospects of many small webcasters. The Internet is an American invention that has become the emblem of the Information Age and an engine for bringing American content into homes and businesses around the globe. I have long been an enthusiast and champion of the Internet and of the creative spirits who are the source of the music, films, books, news, and entertainment content that enrich our lives, energize our economy and influence our culture. As a citizen, I am impressed by the innovation of new online entrepreneurs, and as a Senator, I want to do everything possible to promote the full realization of the Internet's potential. A flourishing Internet with clear, fair and enforceable rules governing how content may be used will benefit all of us, including the entrepreneurs who want us to become new customers and the artists who create the content we value. The advent of webcasting--streaming music online rather than broadcasting it over the air as traditional radio stations do--has marked one of the more exciting and quickly growing of the new industries that have sprung up on the Web. Many of the new webcasters, unconstrained by the technological limitations of traditional radio transmission, can and do serve listeners across the country and around the world. They provide music in specialized niches not available over the air. They feature new and fringe artists who do not enjoy the few spots in the Top 40. And they can bring music of all types to listeners who, for whatever reason, are not being catered to by traditional broadcasters. We have been mindful on this Committee that as the Internet is a boon to consumers, we must not neglect the artists who create and the businesses which produce the digital works that make the online world so fascinating and worth visiting. With each legislative effort to provide clear, fair and enforceable intellectual property rules for the Internet, a fundamental principle to which we have adhered is that artists and producers of digital works merit compensation for the value derived from the use of their work. In 1995, we enacted the Digital Performance Right in Sound Recordings Act, which created an intellectual property right in digital sound recordings, giving copyright owners the right to receive royalties when their copyrighted sound recordings were digitally transmitted by others. Therefore when their copyrighted sound recordings are digitally transmitted, royalties are due. In the 1998 Digital Millennium Copyright Act, DMCA, we made clear that this law applied to webcasters and that they would have to pay these royalties. At the same time, we created a compulsory license so that webcasters could be sure of the use of these digital works. We directed that the appropriate royalty rate could be negotiated by the parties or determined by a Copyright Arbitration Royalty Panel--or CARP--at the Library of Congress. Despite some privately negotiated agreements, no industry-wide agreement on royalty rates was reached and therefore a CARP proceeding was instituted that concluded on February 20, 2002. The CARP decision set the royalty rate to be paid by commercial webcasters, no matter their size, at .14 cents per song per listener, with royalty payments retroactive to October 1998, when the DMCA was passed. At a Judiciary Committee hearing I convened on this issue on May 15, 2002, nobody seemed happy with the outcome of the arbitration and, in fact, all the parties appealed. The recording industry and artist representatives feel that the royalty rate--which was based on the number of performances and listeners, rather than on a percentage-of- revenue model--was too low to adequately compensate the creative efforts of the artists and the financial investments of the labels. Many webcasters declared that the per-performance approach, and the rate attached to it, would bankrupt small operations and drain the large ones. I said then that such an outcome would be highly unfortunate not only for the webcasters but also for the artists, the labels and the consumers, who all would lose important legitimate channels to connect music and music lovers online. On appeal, the Librarian in June, 2002, cut the rate in half, to .07 cents per song per listener for commercial webcasters. Nevertheless, many webcasters, who had been operating during the four-year period between 1998 and 2002, were taken by surprise at the amount of their royalty liability. The retroactive fees were to be paid in full by October 20th and would have resulted in many small webcasters in particular, going out of business. In order to avoid many webcasting streams going silent on October 20, when retroactive royalty payments are due, I urged all sides to avoid more expense and time and reach a negotiated outcome more satisfactory to all participants than the Librarian's decision. I also monitored closely the progress of negotiations between the RIAA and webcasters. On July 31, I sent a letter with Senator Hatch to Sound Exchange, which was created by the RIAA to act as the agent for copyright holders in negotiating the voluntary licenses with webcasters under the DMCA and to serve as the receiving agent for royalties under the CARP process. The letter posed questions on the status of the reported on-going negotiations between RIAA/Sound Exchange and the smaller webcasters, the terms being proposed and considered, and how likely the outcome of those negotiations would be to produce viable deals for smaller webcasters, while still satisfying the copyright community. Reports on the progress of these negotiations were disappointing, which makes this legislation all the more important. As a general principle, marketplace negotiations are the appropriate mechanism for determining the allocation of compensation among interested parties under copyright law. Yet, we have made exceptions to this general principle, as reflected in this legislation and the very compulsory license provisions it amends. The legislation reflects a compromise for all the parties directly affected by this legislation--small webcasters that could not survive with the rates set by the Librarian and copyright owners and performers who under this bill will give certain eligible webcasters an alternative royalty payment scheme. This legislation does not represent a complete victory for any of these stakeholders. Artists and music labels may believe that they are forgoing significant royalties under this legislation and I appreciate that they are those in the webcasting business, who are either not covered or not sufficiently helped by the bill, who believe that this legislation should do more. As one analyst at the Radio and Internet Newsletter stated, in the October 11, 2002 issue, ``Clearly, the `Small Webcaster Amendments Act of 2002' (a/k/a H.R. 5469) is an imperfect bill that doesn't fix everything for everybody . . . Still, overall, does it do more good than harm for more people? My belief is that many are helped one way or the other and virtually no one is assured of being hurt. Thus, the answer, on the whole, would be yes.'' I know that most webcasters share my belief that artists and labels should be fairly compensated for use of their creative works. This legislation provides both compensation to the copyright owners and helps to support the webcasting industry by offering more variable payment options to small webcasters than the one-size-fits all per performance rate set out in the original CARP and Librarian decisions. The rates, terms and record-keeping provisions are applicable only to the parties that qualify for and elect to be governed by this alternative royalty structure and no broad principles should be extrapolated from the rates, terms and record-keeping provisions contained in the bill. The Copyright Office is presently engaged in a rule-making on record-keeping and this bill does not supplant that ongoing process. This legislation does three things to help small webcasters pay royalties and stay in business. As one Vermont webcaster told me, ``Although the percentage of revenue is too high, at least we have the option. A percentage of revenue deal will enable [us] to stay in business moving forward, grow our audience, and compete.'' First, the Librarian royalty rate is based on a per performance formula, which has the unfortunate effect of requiring webcasters to pay high fees for their use of music, even before the audience of the webcaster has grown to a sufficient size to attract any appreciable advertising revenues. Without any percentage of revenue option (as provided by the legislation), the webcasting industry would be closed to all but those with the substantial resources necessary to subsidize the business until the advertising revenue caught up to the per performance royalty rate. The bill provides a percentage of revenue option for small businesses with less than $500,000 in gross revenue in 2003 and $1.25 million dollars in 2004. The bill also provides for minimum fees and a percentage of expenses floor on the royalties, to assure that copyright owners and artists receive some payment for performance of their music. Second, for noncommercial webcasters, such as college webcasters, the bill corrects an anomaly in the Librarian's decision. Under that decision, nonprofit entities held FCC licenses were given a lower per performance rate than were commercial entities. However, the decision made no such provision for noncommercial entities that were not FCC licenses. The bill extends the lower rate to all nonprofit entities. Finally, the bill reduces the retroactive burden on many of the small commercial webcasters by allowing them to make their payments based on a percentage of revenue or percentage of expense, but also allows both small commercial and noncommercial webcasters to pay these retroactive fees in three payments over the span of a year. To accommodate the concerns of artists and the RIAA, the bill provides for the reporting of information about which songs were played by the small commercial webcasters. This information will be used to account properly for the distribution of the royalties to the copyright holders and the artists. A number of concerns have been raised that the rate, terms and record-keeping provisions in the bill do not constitute evidence of any rates, rate structure fees, definitions, conditions or terms that would have been negotiated in the marketplace between a willing buyer and willing seller. This concern stems from the DMCA's statutory license fee standard directing the CARP to establish rates and terms ``that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller,'' rather than a determination of ``reasonable copyright royalty rates'' according to a set of balancing factors. This new webcasting standard may be having the unfortunate and unintended result that webcasters and copyright owners are concerned that the rates and terms of any voluntary licensing agreements will be applied industry-wide. The new webcasting standard appears to be making all sides cautious and reluctant to enter into, rather than facilitating, voluntary licensing agreements. Passage of this legislation does not mean that our work is done. As this webcasting issue has unfolded, I have heard complaints from all sides about the fairness and completeness of procedures employed in the arbitration. Indeed, the concerns of many small webcasters were never heard, since the cost of participating in the proceedings was prohibitively expensive and their ability to participate for free was barred by procedural rules. One thing is clear: Compulsory licenses are no panacea and their implementation may only invite more congressional intervention. To avoid repeated requests for the Congress or the courts to intercede, we must make sure the procedures and standards used to establish the royalty rates for the webcasting and other compulsory licenses produce fair, workable results. Next year, we should focus attention on reforming the CARP process.

Mr. LEAHY

Mr. LEAHY. Madam President, I thank the Senate for voting to end debate and to pass the bipartisan 21st Century Department of Justice Authorization Act conference report. I commend the Majority Leader for bringing this important legislation the floor and filing cloture in order for the Senate to take final action on the conference report. I regret that consideration and a vote on final passage on this important measure was delayed, but I thank the overwhelming majority of my colleagues for supporting cloture and passage of the conference report. This measure was passed by the House, by a vote of 400 to 4, last Thursday. All Democrats were prepared to pass the conference report that same day last week and any day this week. Given the Republicans' objection to proceed to a vote and given the refusal to agree to a time agreement, the Majority Leader was required to file cloture. I am glad that the filibuster is over. This legislation is truly bipartisan. It passed the House 400 to 4. The conference report was signed by every conferee, Republican or Democrat, including Senator Hatch and Representatives Sensenbrenner, Hyde, and Lamar Smith. Senators from both sides of the aisle spoke in favor of the legislation. In particular, I thank Senator Hutchison for coming to the floor on Tuesday to support this conference report. Senator Hutchison has spoken to me many times about the need for more judgeships along the Texas border with Mexico to handle immigration and criminal cases. The conference report includes three new judgeships in the conference report for Texas, one more than was included in the bill reported to the Senate by the Senate Judiciary Committee and passed by the Senate last December. I thank Senator Sessions for his statements on Tuesday and today in support of this bipartisan conference report. Although he opposes Senator Hatch's legislation regarding automobile dealer arbitration, which enjoys more than 60 Senate cosponsors and 200 House cosponsors and was included in the conference report, Senator Sessions is supporting this conference report because it will improve the Department of Justice and support local law enforcement agencies across the nation. I appreciate Senator Sessions' work on the provisions in the conference report on the Paul Coverdell Forensic Sciences Improvement Grants and the Centers for Domestic Preparedness in Alabama and other States. Senator Brownback also spoke in favor of certain immigration provisions in this bill that he worked on with Senator Kennedy, the Chairman of the Immigration Subcommittee of the Judiciary Committee. In particular, the conference report includes language sought by Senators Conrad and Brownback to reauthorize the program allowing foreign doctors educated in the United States to remain here if they will practice in underserved communities. This is a crucial provision to ensure that residents in some of our most rural states receive adequate medical care. The conference report also contains another important immigration provision to permit H-1B aliens who have labor certification applications caught in lengthy agency backlogs to extend their status beyond the sixth year limitation or, if they have already exceeded such limitation, to have a new H-1B petition approved so they can apply for an H-1B visa to return from abroad or otherwise re-obtain H-1B status. Either a labor certification application or a petition must be filed at least 365 days prior to the end of the 6th year in order for the alien to be eligible under this section. The slight modification to existing law made by this section is necessary to avoid the disruption of important projects caused by the sudden loss of valued employees. At a time when our economy is weak, this provision is intended to help. I thank Senator Kennedy and Senator Brownback for their work on this provision and their contributions to the conference report. I thank Senator Feinstein for her excellent speech earlier this week in support of this conference report. Senator Feinstein has been a tireless advocate for the needs of California, including the needs of the federal judiciary along the southern border. She has led the effort to increase judicial and law enforcement resources along our southern border. I am proud to have served as the chair of the House-Senate conference committee that unanimously reported a bill that includes five judgeships for the Southern District of California. Long overdue relief for the Southern District of California could be on the way once this conference report is adopted. Senator Biden also contributed a great deal to this conference report. He has fought doggedly to authorize a new Violence Against Women Office at the Justice Department, and his efforts have borne fruit in this legislation. He has also been one of the Senate's best advocates for reauthorizing the Juvenile Justice and Delinquency Prevention Act, which we do here. In addition, he was a cosponsor of the Drug Abuse Education, Prevention, and Treatment Act, and we have included many provisions from that bill in this conference report. I also would like to thank Senator Durbin for statements on the Senate floor and his dedicated efforts to authorize a new Violence Against Women Office, to expand the number of Boys and Girls Clubs in our nation, and to create new judgeships in Illinois. Senator Kohl was a tremendous help in our efforts to reauthorize the Juvenile Justice and Delinquency Prevention Act, especially Title V of that Act, which provides for crucial prevention programs for our nation's youth. Senator Carnahan deserves the credit for the inclusion of the Law Enforcement Tribute Act in this conference report. That provision provides Federal assistance for local communities seeking to honor fallen law enforcement officers. Without her tireless work, we would not have been able to include that provision in this conference report. For his part, Senator Feingold was able to include his and Senator Hatch's Motor Vehicle Franchise Contract Arbitration Fairness Act in this conference report. That bill will ensure that auto dealers will have a level playing field in their disputes with the auto manufacturers. Finally, I also thank Senator Reid for his helpful comments and support throughout the debate on the legislation. Of course, our bipartisanship is evidenced by our including authorization for additional judgeships not only in California but also in Texas, Arizona, New Mexico, Ohio, North Carolina, Illinois and Florida. I have tried to improve on the record we inherited. In the six and one-half years that they controlled the Senate, the Republican majority was willing to add only eight judgeships to be appointed by a Democratic President, and most of those were in Texas and Arizona, States with two Republican Senators. We have, on the other hand, proceeded at our earliest opportunity to increase federal judgeships by 20, including in the border States where they are most needed, well aware these positions will be filled with appointments by a Republican President who has shown little interest in working with Democrats in the Senate. These include a number of jurisdictions with Republican Senators. I also commend the senior Senator from California for her leadership on the ``James Guelff and Chris McCurley Body Armor Act,'' the State Criminal Alien Assistance Program reauthorization, and the many anti- drug abuse provisions included in this conference report. She spoke eloquently on the floor of the Senate regarding many of the important provisions she has championed in this process. This conference report will strengthen our Justice Department and the FBI, increase our preparedness against terrorist attacks, prevent crime and drug abuse, improve our intellectual property and antitrust laws, strengthen and protect our judiciary, and offer our children a safe place to go after school. This conference report is the product of years of bipartisan work. By my count, the conference report includes significant portions of at least 25 legislative initiatives. This legislation is neither complicated nor controversial. It passed the House overwhelmingly and in short order with a strong bipartisan vote. I thank my colleagues again for supporting the cloture motion and final passage of this conference report so that all of this bipartisan work and all the good that this legislation will do, will reach the President's desk. I particularly want to thank Senator Hatch, who worked very hard to help construct a good, fair and balanced conference report as did all of the conferees. Likewise, I want to thank Chairman Sensenbrenner and Representative Conyers of the House Judiciary Committee for working with us to conclude this conference report successfully. The staffs of these Members must also be thanked for working through the summer and over the last month to bring all the pieces of the conference report together into a winning package. In particular, the House Judiciary Committee staff has been enormously helpful, including Phil Kiko, Will Moschella, Blaine Merritt, Perry Apelbaum, Ted Kalo, Sampak Garg, Bobby Vassar, and Alec French. I would also like to thank the staff of the House Education and Workforce Committee, including Bob Sweet and Denise Forte. The Senate Judiciary Committee staff has shown its outstanding professionalism and I want to thank Bruce Cohen, Beryl Howell, Ed Pagano, Tim Lynch, Jessica Berry, Robyn Schmidek and Phil Toomajian, Makan Delrahim, Leah Belaire, Michael Volkov, Melody Barnes, Esther Olavarria, Robert Toone, Neil MacBride, and Louisa Terrell. I appreciate that not all Members were or could be conferees and participate in the conference, but after a full opportunity to study the conference report passed last week in the House by a vote of 400 to 4, I hope that even those Members who raised objection will conclude that on the whole this is a good, solid piece of legislation. Although the debate is over, I want to address the objections raised by a few Members to this legislation. I thank these Members for coming to the floor to discuss their views and concerns, and want to show them the respect they deserve by responding to those objections. I should note that even in posing an objection to and delaying passage of the conference report--as is their rights as Senators--these Members acknowledged that there were parts of this bill they liked or may like upon review. Contrary to those who may argue that this legislation is not a priority, it is. Congress has not authorized the Department of Justice in more than two decades. While the Justice Department would certainly continue to exist if we were to fail to reauthorize it, that is not an excuse for shirking our responsibility now. I know that Senator Hatch and Representatives Sensenbrenner and Conyers share my view. It is long past time for the Judiciary Committees of the House and Senate--and the Congress as a whole--to restore their proper oversight role over the Department of Justice. Through Republican and Democratic administrations, we have allowed the Department of Justice to escape its accountability to the Senate and House of Representatives and through them to the American people. Congress, the people's representative, has a strong institutional interest in restoring that accountability. The House has recognized this, and has done its job. I am glad that we have done ours. I agree with those Members who say that we need to give anti- terrorism priority, but not lose sight of the other important missions of the Department of Justice. The conference report takes such a balanced approach. Those critics who say that there is nothing new in this legislation to fight terrorism, have missed some important provisions in the legislation as well as my floor statements over the past week outlining what the conference report contains to help in the anti-terrorism effort. Let me repeat the highlights of what the conference report does on this important problem. The conference report fortifies our border security by authorizing over $20 billion for the administration and enforcement of the laws relating to immigration, naturalization, and alien registration. It also authorizes funding for Centers for Domestic Preparedness in Alabama, Texas, New Mexico, Louisiana, Nevada, Vermont and Pennsylvania, and adds additional uses for grants from the Office of Domestic Preparedness to support State and local law enforcement agencies. These provisions have strong bipartisan support. I thank Senator Sessions, Senator Shelby and Senator Specter for supporting cloture on the conference report and for final passage. Another measure in the bill would correct a glitch in a law that helps prosecutors combat the international financing of terrorism. I worked closely with the White House to pass the original provision to bring the United States into compliance with a treaty that bans terrorist financing, but without this technical, non-controversial change, the provision may not be usable. This law is vital in stopping the flow of money to terrorists. Worse yet, at a time when the President is going before the U.N. emphasizing that our enemies are not complying with international law, by blocking this minor fix, we leave ourselves open to a charge that we are not complying with an anti- terrorism treaty. I agree with other Members that we should do more to help the FBI Director in transforming the FBI from a crime fighting to a terrorism prevention agency and to help the FBI overcome its information technology, management and other problems to be the best that it can be. The Judiciary Committee reported unanimously the Leahy-Grassley FBI Reform Act, S. 1974, over six months ago to reach those goals, but this legislation has been blocked by an anonymous hold from moving forward. This conference report contains parts of that bipartisan legislation, but not the whole bill, which continues to this day to be blocked to this day. Since the attacks of September 11 and the anthrax attacks last fall, we have relied on the FBI to detect and prevent acts of catastrophic terrorism that endanger the lives of the American people and the institutions of our country. Reform and improvement at the FBI was already important, but the terrorist attacks suffered by this country last year have imposed even greater urgency on improving the FBI. The Bureau is our front line of domestic defense against terrorists. It needs to be as great as it can. Even before those attacks, the Judiciary Committee's oversight hearings revealed serious problems at the FBI that needed strong congressional action to fix. We heard about a double standard in evaluations and discipline. We heard about record and information management problems and communications breakdowns between field offices and Headquarters that led to the belated production of documents in the Oklahoma City bombing case. Despite the fact that we have poured money into the FBI over the last five years, we heard that the FBI's computer systems were in dire need of modernization. We heard about how an FBI supervisor, Robert Hanssen, was able to sell critical secrets to the Russians undetected for years without ever getting a polygraph. We heard that there were no fewer than 15 different areas of security at the FBI that needed fixing. The FBI Reform Act tackles these problems with improved accountability, improved security both inside and outside the FBI, and required planning to ensure the FBI is prepared to deal with the multitude of challenges we are facing. We are all indebted to Senator Grassley for his leadership in the area. Working with Republicans and Democrats on the Senate Judiciary Committee we unanimously reported the FBI Reform Act more than six months ago only to be stymied in our bipartisan efforts by an anonymous Republican hold. The conference report does not contain all of the important provisions in the FBI Reform Act that Senator Grassley and I, and the other members of the Judiciary Committee, agreed were needed, but it does contain parts of that other bill. Among the items that are, unfortunately, not in the conference report and are being blocked from passing in the stand-alone FBI Reform bill by an anonymous Republican hold are the following: Title III of the FBI Reform bill that would institute a career security officer program, which senior FBI officials have testified before our Committee would be very helpful; Title IV of the FBI Reform bill outlining the requirements for a polygraph program along the lines of what the Webster Commission recommended; Title VII of the FBI Reform bill that takes important steps to fix some of the double standard problems and support the FBI's Office of Professional Responsibility, which FBI Ethics and OPR agents say is very important; and Title VIII to push along implementation of secure communications networks to help facilitate FISA processing between Main Justice and the FBI. These hard-working agents and prosecutors have to hand-carry top secret FISA documents between their offices because they still lack send secure e-mail systems. The FBI Reform bill would help fix may of these problems and I would hope we would be able to pass all of the FBI Reform Act before the end of this Congress. These should not be controversial provisions and are designed to help the FBI. During the debate on this conference report, some Members complained it included provisions that were not contained in either the Senate or House bills. Now, each of the proposals we have included are directly related to improving the administration of justice in the United States. We were asked to include many of them by Republican members of the House and Senate. Let me give you some examples. The conference report reauthorizes the State Criminal Alien Assistance Program, which President Bush has sought to eliminate. On March 4 of this year, Senator Kyl and Senator Feinstein sent me a letter asking me to include an authorization for SCAAP--which was not authorized in either the House- or Senate-passed bill--in the conference report. That proposal had been considered and reported by the Judiciary Committee but a Republican hold has stopped Senate consideration and passage. I agreed with Senator Kyl that we should authorize SCAAP. I still believe that it is the right thing to do. In addition to including the reauthorization of SCAAP, the conferees also authorized an additional judge for Arizona. Members have been arguing for years that their States need more judges. We took those arguments seriously, and added another new judge for Arizona on top of the two that were added in 1998 and the third that was added in 2000. As I said before, we have added 20 additional judicial positions in this conference report. Some have been critical of the conference report's authorization of funding for DEA police training in South and Central Asia, and for the United States-Thailand drug prosecutor exchange program. I believe that both of these are worthy programs that deserve the Senate's support. I have listened to President Bush and others in his Administration and in Congress argue that terrorist organizations in Asia, including Al Qaeda, have repeatedly used drug proceeds to fund their operations. The conferees wanted to do whatever we could to break the link between drug trafficking and terror, and we would all greatly appreciate the Senate's assistance in that effort. Beyond the relationship between drug trafficking and terrorism, the production of drugs in Asia has a tremendous impact on America. For example, more than a quarter of the heroin that is plaguing the northeastern United States, including my State of Vermont, comes from Southeast Asia. Many of the governments in that region want to work with the United States to reduce the production of drugs, and these programs will help. It is beyond me why any Senator would oppose them. Some have complained that the conference report demands too many reports from the Department of Justice and that this would interfere with the Department's ongoing counterterorism efforts. It is true that our legislation requires a number of reports, as part of our oversight obligations over the Department of Justice. I assure the Senate, however, that if the Department of Justice comes to the House and Senate Judiciary Committees and makes a convincing case that any reporting requirement in this legislation will hinder our national security, we will work out a reasonable accommodation. I think, however, that such a turn of events is exceedingly unlikely, as no one at the Department has mentioned any such concerns. Some Members have complained that the conference report includes pieces of legislation that had not received Committee consideration. Let me deal with some of the specific proposals that have been cited. The Law Enforcement Tribute Act was mentioned as a provision not considered by the Judiciary Committee, but this is incorrect. In reality, the Committee reported that bill favorably on May 16. Its passage has been blocked by an anonymous Republican hold. Complaints have been made about inclusion of the motor vehicle franchise dispute resolution provision in the conference report for bypassing the Committee. But, again, that is incorrect. The Judiciary Committee fully considered this proposal and reported Senator Hatch's Motor Vehicle Franchise Contract Arbitration Fairness Act last October 31. It has been stalled from the Senate floor by anonymous Republican holds. A section allowing FBI danger pay was cited as a proposal that bypassed Committee consideration, but, again, the Judiciary Committee did consider this proposal as part of the original DOJ Authorization bill, S. 1319. Some have complained that the Federal Judiciary Protection Act, which is included in the conference report, had not come before the Committee, but on the contrary, this legislation, S. 1099, was passed the Judiciary Committee and the Senate by unanimous consent last year and in the 106th Congress, as well. A complaint was raised on the floor about a provision on the U.S. Parole Commission being included in the conference report. That was included because the Bush Administration included it in its budget request. A complaint was also raised about the conference report's provision establishing the FBI police to provide protection for the FBI buildings and personnel in this time of heightened concerns about terrorist attacks. Contrary to the critics, this proposal was considered by the Judiciary Committee as part of the FBI Reform Act, S. 1974, which was reported unanimously on a bipartisan basis but has been blocked by an anonymous hold. Similarly, a complaint was made on the floor about bypassing the Committee with the provision in the conference report for the FBI to tell the Congress about how the FBI is updating its obsolete computer systems. Again, this is incorrect. This provision was included in the FBI Reform Act, S. 1974, which was considered by the Judiciary Committee and unanimously reported without objection. Some critics have complained that the conference report includes intellectual property provisions that have passed neither the House or the Senate. It is not for lack of trying to pass these provisions through the Senate, but anonymous Republican holds have held up for months passage of the Madrid Protocol Implementation Act, S. 407. This legislation has passed the House on three separate times in three consecutive Congresses. Let us get it passed now in the conference report. The conference report also contains another intellectual property matter, the Hatch-Leahy TEACH Act, to help distance learning. Contrary to the critics' statements, this passed the Senate in June, 2001. The Intellectual Property and High Technology Technical Amendments Act, S. 320, contained in this conference report, was passed by the Senate at the beginning of this Congress, in February, 2001. It is time to get this done. The criticism made on the floor that the juvenile justice provisions in the conference report never passed the House or Senate is simply wrong. The conference report contains juvenile justice provisions passed by the House in September and October of last year, in H.R. 863 and H.R. 1900. The criticism that the conference report contains criminal justice improvements that were passed by neither the House or the Senate glosses over two important points: First, that many of the provisions were indeed passed by the House, and, second, that others have been blocked from Senate consideration and passage by anonymous Republican holds. Let me give you some examples. The conference report contains the Judicial Improvements Act, S. 2713 and HR 3892, that passed the House in July, 2002, but consideration by the Senate was blocked after the Senate bill was reported by the Judiciary Committee. The Antitrust Technical Corrections bills, H.R. 809, had the same fate. After being passed by the House in March, 2001, and reported by the Senate Judiciary Committee, consideration was blocked in the Senate.

Mr. LEAHY

Mr. LEAHY. Mr. President, I came to the Senate floor and joined Senator Hatch in introducing S. 2520, the PROTECT Act in April, after the Supreme Court's decision in Ashcroft v. Free Speech Coalition, Free Speech. Although there were some others who raised constitutional concerns about specific provisions in that bill, I believed--and still believe--that unlike the Administration proposal it was a good faith effort to work within the First Amendment. It is important that we respond to the Supreme Court decision but it is just as important that we avoid repeating our past mistakes. Unlike the 1996 Child Pornography Prevention Act, CPPA, this time we should respond with a law that passes constitutional muster. Our children deserve more than a press conference in on this issue. They deserve a law that will stick. After joining Senator Hatch in introducing the PROTECT Act, I convened a Judiciary Committee hearing on the legislation. We heard from the Administration, from the Center for Missing and Exploited Children, CMEC, and from experts who came and told us that our bill, as introduced, would pass constitutional muster, but the House-passed bill would not. I also placed S. 2520 on the Judiciary Committee's calendar for the October 8, 2002 business meeting. I continued to work with Senator Hatch to improve the bill so that it could be quickly enacted. Senator Hatch circulated a Hatch-Leahy proposed Judiciary Committee substitute that improved the bill before our October 8 business meeting. Unfortunately, the committee was unable to consider it because of procedural maneuvering that had nothing to do with this important legislation, including the refusal of committee members on the other side of the aisle to consider any pending legislation on the committee's agenda. I still wanted to get this bill done. That is why for a week I have been working to clear and have the Senate pass a substitute to S. 2520 that tracks the Hatch-Leahy proposed committee substitute in every area but also made one improvement to the affirmative defense. That one improvement related to the ability of defendants to assert an affirmative defense to a charge of child pornography if they could actually prove that only adults, and no children--virtual or not--were used in making the material in question. Other than that, it was identical to the Hatch-Leahy proposed committee substitute in every way. It did not change the definition of child pornography from the PROTECT Act and it also did not change the tools provided to prosecutors. All these provisions remained unchanged. Indeed, the substitute I offered even adopted parts of the House bill which would help the CMEC to work with local and state law enforcement on these cases. As I stated many days ago on the Senate floor, every single Democratic Senator cleared that measure. I then urged Republicans to work on their side of the aisle to clear this measure--so similar to the joint Hatch-Leahy substitute--so that we could swiftly enact a law that would pass constitutional muster. Instead of working to clear that bipartisan, constitutional measure, however, my colleagues on the other side of the aisle have opted to use this issue to play politics. They have redrafted the bill, changed crucial definitions, and are now offering a totally new version. Worse yet, the new version is not likely to pass Constitutional muster. Instead, if passed, it will lead to six more years of appellate litigation and yet another law struck down by the Supreme Court. That will help no one and certainly not help the children that these laws are intended to help. Senator Hatch is offering a new version of the bill that experts have told us is plainly unconstitutional and does not respect or heed the parameters laid down by the Supreme Court as does the original Hatch-Leahy bill and the Hatch-Leahy substitute circulated to the Judiciary Committee. First, the new Hatch proposal outlaws precisely the thing that Justice Kennedy and at least 5 other members of the Supreme Court said could not be banned--wholly computer generated child pornography where no real children are involved in the making of the material. The Hatch proposal, in section 5, adds a totally new definition of ``child pornography'' that covers non-obscene ``computer generated images'' not at all related to any real person, if they are ``virtually indistinguishable'' from an actual minor. That is the same approach as the House bill, that we heard so roundly criticized both at our Committee hearing and by other experts. At best, it addresses the concerns of only Justice O'Connor--but she was not the deciding vote in the Free Speech case. Second, this new definition is particularly problematic because the bill does not allow any affirmative defense for defendants who can show that no children at all were used in the making of the non-obscene image. Thus, even a defendant who can produce an actual 25-year-old in court to prove that the material is not child pornography can be sent to jail under this new provision. So too can the person who can prove in court that the image did not involve real people at all, but only totally computer generated images. Again, that is precisely the problem that Justice Kennedy and even Justice Thomas expressed concern about in the Free Speech case in considering the affirmative defense in the CPPA. Third, the new Hatch proposal significantly changes the definition of the new crime of ``pandering'' from the original version of S. 2520 that Senator Hatch and I introduced. First, it removes the link to the long-standing obscenity test despite the fact that constitutional experts tell us that this link is necessary for the pandering crime to be constitutional. This changed definition does not address Justice Kennedy's concern that child pornography should be linked to obscenity. We do not want a situation where people who present such movies as Traffic, American Beauty, and Romeo and Juliet could be subjected to criminal prosecution, and this new pandering crime does that. Second, the new provision compounds the constitutional problems by extending the provision to ``purported material'' in addition to actual material. Thus, not only need the pandering not relate to ``obscene'' material, it need not relate to any material at all. From a provision that criminalized primarily commercial speech relating to obscene material, the new proposal has changed to criminalize pure ``chat,'' including over the Internet, about non- obscene child pornography. That is protected speech. I have a letter from Professor Fred Schauer, a nationally recognized First Amendment scholar who testified at our hearing, that I will place in the record that confirms that this change would render the provision pandering unconstitutional. These are only some of the problems with the new Hatch language. I am disappointed that we could not work together to clear the prior substitute that I have been trying to clear through the Senate for almost a week. That proposal was virtually identical to the proposed Hatch-Leahy committee substitute, and was approved by every single Democratic Senator. If my colleagues would have been willing to do that, we would have had quick action on a law that would stick. Instead, we are being asked to consider a brand new version of S. 2520 with considerable constitutional problems. That is not the way to pass legislation quickly in the Senate. Unlike Senator Hatch's prior proposals that I cosponsored, this provision will only offer the illusion of action. We need a law with teeth, not one with false teeth. In the end, this provision will be struck down just as was the 1996 CPPA and we will have wasted 6 more years without providing prosecutors the tools they need to fight child pornography and put in jeopardy any convictions obtained under a law that in the end is struck down as unconstitutional. I had hoped that we could work together to get a law that will clearly pass constitutional muster. This issue is too important for politics. I ask that a letter from Frederick Schauer, Frank Stanton Professor of the First Amendment, be printed in the Record. The material follows:

Mr. LEAHY

Mr. LEAHY. Mr. President, I thank the Senator from Minnesota and the Senator from California for their words. I know and respect both the Senator from Minnesota, Senator Dayton, and the Senator from California, Senator Boxer. I know them well enough to know this was a very painful moment for both of them--just as it is for the distinguished Presiding Officer and as it is for the Senator from Vermont. Mr. President, you and I have been here a long time in the Senate. With the Senator from Minnesota, who is now--not at his choice--the senior Senator from Minnesota, and the Senator from California, I think we can all say that there is no sadder sight than coming on the floor and seeing a black drape on a Senator's desk. The distinguished Presiding Officer and I have unfortunately seen that many times in our careers, for Senators on both sides of the aisle. In every instance when we have entered the chamber and seen the black drape we know that there has been a death in the family. We are privileged in this body, 100 men and women--now 99 men and women--to represent the greatest nation on Earth, a nation of a quarter of a billion people. But because there are only 100 of us, no matter our political differences, when one is lost we all feel it. When I heard the news in Vermont, I was at a restaurant in Burlington with my son, Kevin. It was a small restaurant. There was a TV going but with no sound. My back was to it. I saw the look of shock on Kevin's face. He spun me around and I saw the news. We both left that restaurant in tears. The news spread quickly and as I walked down the street people-- many of them I never met before--just came up and hugged me, because they, too, lost somebody. Paul Wellstone had come to Vermont and was greeted with great warmth. I vividly remember the evening he came to speak. Everybody came up to him. They didn't want him to leave. Paul Wellstone, like one of his predecessors, my dear friend, Hubert Humphrey, was a happy warrior. If people wanted to talk with him he did not mind and would stay, the same way Hubert would have. There is an affinity, I believe, between our State of Vermont and Minnesota. That is why there was a bond Vermonters felt with Paul Wellstone. Paul could sense it. And, we worked on many important issues as a team. During the recent farm bill debate he met with Vermont farmers and together we drafted a dairy provision that was beneficial to both of our States. I remember when he and Jim Jeffords and Bernie Sanders and I joined together to have a milk toast. We were joking around. Paul was not a tall man. I playfully stood blocking him from the cameras. And he said: ``Hey, remember, I'm a wrestler,'' at which point I quickly moved aside. Of course Paul was far more than a wrestler--but it is easy to make the correlation to the way he wrestled with issues here on the floor. He wrestled them down. I thought to myself: What a man to have on your side. What a man to be a friend. Paul Wellstone served with powerful people but he was not intimidated by that. And, he never took on the airs of one who was powerful. He would introduce himself to people: Hi, I'm Paul Wellstone. And someone else would have to say: That's a U.S. Senator. I never went on an elevator with Paul without him calling the elevator operator by name. He would talk with the pages and give them tutorials. He knew everybody in the Senate and they knew and loved him. It is impossible to talk about our colleague Paul Wellstone without mentioning Sheila Wellstone. They were inseparable. Whenever the Senate would have a late night session Sheila would be in the galleries, waiting for Paul to leave. Of all my memories of Paul Wellstone, the one I may remember the most is the last time I saw the two of them. It was a late night session. You know these gorgeous halls we have, with the chandeliers and everything else, and here is this couple walking hand in hand down one of the halls about midnight--Paul and Sheila Wellstone. I came around the corner and I said: ``Hey, you teenagers,'' and they laughed and hugged each other. I saw them go out, down the steps into the night, hand in hand. Let us hope that they have gone hand and hand into the light and that they are now together. Marcella and I also extend our thoughts and prayers to Marcia, Paul and Sheila's daughter, and her family. And, as the Senate noted in the resolution that was just passed a few moments ago, we all grieve for the Wellstone staff who were on board the plane: Tom Lapic, Mary McEvoy and Will McLaughlin. Our thoughts and prayer are with their families in these trying times. Our condolences also go out to the families of the pilots on the plane, Richard Conry and Michael Guess.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise to introduce the Congressional Oversight Protection Act of 2002. The 107th Congress has truly been the Congress of the whistleblower. From Sherron Watkins who helped expose many of the misdeeds at Enron, to FBI Special Agent Coleen Rowley and others who brought needed public attention to some of the shortcomings of the FBI prior to 9-11, we have been eyewitness to the value of getting the inside story. The 107th Congress has also been one of rejuvenated bipartisan oversight. On the Judiciary Committee we convened the first series of comprehensive bipartisan FBI oversight hearings in decades after I assumed the Chairmanship. The Joint Intelligence Committee is now conducting bipartisan hearings to ascertain what shortcomings on the part of our intelligence community need to be corrected so as not to allow the 9-11 terrorist attacks to recur. The Senate Banking Committee conducted extensive oversight of the SEC and its relationship with the accounting industry, to ascertain whether a new regulatory scheme was required. Both the Senate and House Judiciary Committees are attempting to ascertain how the new powers we provided in the USA PATRIOT Act are being used. These are only a few examples. We have all been the beneficiaries of such increased oversight and the courage of the whistleblowers who provided information as part of that effort, because their revelations have led to important reforms. The Enron scandal and the subsequent hearings led to the most extensive corporate reform legislation in decades, including the criminal provisions and the first ever corporate whistleblower protections from S. 2010, the Corporate Fraud and Criminal Accountability Act, that I authored. The testimony of the rank and file FBI agents that we heard on the Judiciary Committee helped us to craft the bipartisan FBI Reform Act, S. 1974. This legislation, which included enhanced whistleblower protections, was reported unanimously to the full Senate in April but is being blocked by an anonymous Republican hold. The same day as Coleen Rowley's nationally televised testimony before the Judiciary Committee, President Bush not only reversed his previous opposition to establishing a new cabinet level Department of Homeland Security, but gave a national address calling for the largest government reorganization in 50 years. In the last year we have learned once again that the public as a whole benefits from a lone voice in the government. Unfortunately, the people who very rarely benefit from these revelations are the whistleblowers themselves. We have heard testimony in oversight hearings on the Judiciary Committee that there is quite often retaliation against those who raise public awareness about problems within large organizations even to Congress. Sometimes the retaliation is overt, sometimes it is more subtle and invidious, but it is almost always there. The law needs to protect the people who risk so much to protect us and create a culture that encourages employees to report waste, fraud, and mismanagement. For those who provide information to Congress, that protection is a hollow promise. On one hand, the law is very clear that it is illegal to interfere with or deny, ``the right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof . . .'' See 18 U.S.C. Sec. 7211. Amazingly, however, this simple provision is a right without a remedy. Employees who are retaliated against for providing information to Congress cannot pursue any avenue of redress to protect their statutory rights. The only exception to this applies to employees of publicly traded companies, who are now covered by the whistleblower provision included in the Sarbanes-Oxley Act that we passed this year. Thus, under current law, government whistleblowers reporting to Congress have less protection than private industry whistleblowers. This bill would merely correct this anomaly by providing government employees that come to Congress with the right to bring an action in court when they suffer the type of retaliation already prohibited under the law. Thus, it does not create new statutory rights, but merely provides a statutory remedy for existing law. That way, we can promise future whistleblowers who come before Congress that their right to access the legislative branch is not an illusion. We can also assure the public at large that our future efforts at Congressional oversight and improving the functions of government will be effective. This legislation is strongly supported by leading whistleblower groups, including the National Whistleblower Center and the Government Accountability Project, and I ask unanimous consent that their letters of support be printed in the Record. For all these reasons, I urge swift passage of this legislation. I ask unanimous consent that the text of this bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I have joined today with Senators DeWine, Cantwell, Brownback, and Grassley to introduce legislation that will help State and local governments reduce crime by providing more effective treatment for the mentally ill. All too often, people with mental illness rotate repeatedly between the criminal justice system and the streets of our communities, committing a series of minor offenses. Their crimes occupy the ever scarcer time of law enforcement officers, diverting them from their more urgent responsibilities, and leave the offenders themselves in prisons or jails where little or no medical care is available for them. With this legislation, we are trying to give State and local governments the tools they need to break this cycle, for the good of law enforcement, corrections officers, our public safety, and mentally ill offenders. I held a Judiciary Committee hearing in June on the criminal justice system and mentally ill offenders. At that hearing, we heard from State mental health officials, law enforcement officers, corrections officials, and the representative of counties around our Nation. All agreed that people with untreated mental illness are more likely to commit crimes, and that our State mental health systems, prisons and jails do not have the resources they need to treat the mentally ill, and prevent crime and recidivism. As this legislation's findings detail, 16 percent of adults incarcerated in U.S. jails and prisons have a mental illness, more than 20 percent of youth in the juvenile justice system have serious mental health problems, and up to 40 percent of adults who suffer from a serious mental illness will come into contact with the American criminal justice system at some point in their lives. This is a serious problem that has not received the legislative or public attention it deserves. Under this bill, State and local governments can apply for funding to: a. create or expand mental health courts, which divert qualified offenders from prison to receive treatment; b. create or expand programs to provide specialized training for criminal justice and mental health system personnel; c. create or expand local treatment programs that serve individuals with mental illness or co-occurring mental illness and substance abuse disorders; and d. promote and provide mental health treatment for those incarcerated in or released from and penal or correctional institution. This new program authorizes $100 million for each of the next two fiscal years, and such sums as necessary through fiscal year 2007. I would like to thank a number of people for their advice and involvement in this legislation. First, we would not be here today without the hard work of the Bazelon Center for Mental Health Law. I know that the Bazelon Center has additional ideas to improve this legislation, and I look forward to working with the Center as this bill moves through the legislative process. For example, I think we need to do more to ensure close coordination between the Department of Justice and the Department of Health and Human Services in designing and making these grants. Through this legislation, we are forcing States to bring together their health and law enforcement officials to make grant requests it only makes sense to have the joint perspectives of DOJ and HHS fully involved in evaluating those requests. This is an issue that we will continue to work on, and I hope we will continue to receive the input of the Bazelon Center as we do so. Second, we have received great advice and support from officials in my State of Vermont. Susan Besio, the commissioner of Vermont's Department of Developmental and Mental Health Services, and John Gorczyk, the commissioner of Vermont's Department of Corrections, reviewed this legislation and offered their comments, which have been adopted in the version that we introduce today. Gary Margolis, the Chief of Police Services at the University of Vermont, testified at our June hearing and helped me understand the importance of this issue for law enforcement officers in Vermont and around the nation. Third, the Council of State Governments has also provided invaluable assistance and advice on this issue. Indeed, their report on mentally ill offenders and the criminal justice system was instrumental in focusing the attention of the Judiciary Committee on this important topic. Although I am pleased that we have introduced this bill before the end of this Congress, I think we all understand that the passage of meaningful mental health legislation may have to wait until the next Congress. I want to work with all of the officials and groups I have mentioned, the other sponsors of this legislation, and any other interested parties, to continue to make improvements to this bill. This is a topic that should be a priority for the Judiciary Committee next year, and I will work to make it so.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise to introduce the Congressional Oversight Protection Act of 2002. The 107th Congress has truly been the Congress of the whistleblower. From Sherron Watkins who helped expose many of the misdeeds at Enron, to FBI Special Agent Coleen Rowley and others who brought needed public attention to some of the shortcomings of the FBI prior to 9-11, we have been eyewitness to the value of getting the inside story. The 107th Congress has also been one of rejuvenated bipartisan oversight. On the Judiciary Committee we convened the first series of comprehensive bipartisan FBI oversight hearings in decades after I assumed the Chairmanship. The Joint Intelligence Committee is now conducting bipartisan hearings to ascertain what shortcomings on the part of our intelligence community need to be corrected so as not to allow the 9-11 terrorist attacks to recur. The Senate Banking Committee conducted extensive oversight of the SEC and its relationship with the accounting industry, to ascertain whether a new regulatory scheme was required. Both the Senate and House Judiciary Committees are attempting to ascertain how the new powers we provided in the USA PATRIOT Act are being used. These are only a few examples. We have all been the beneficiaries of such increased oversight and the courage of the whistleblowers who provided information as part of that effort, because their revelations have led to important reforms. The Enron scandal and the subsequent hearings led to the most extensive corporate reform legislation in decades, including the criminal provisions and the first ever corporate whistleblower protections from S. 2010, the Corporate Fraud and Criminal Accountability Act, that I authored. The testimony of the rank and file FBI agents that we heard on the Judiciary Committee helped us to craft the bipartisan FBI Reform Act, S. 1974. This legislation, which included enhanced whistleblower protections, was reported unanimously to the full Senate in April but is being blocked by an anonymous Republican hold. The same day as Coleen Rowley's nationally televised testimony before the Judiciary Committee, President Bush not only reversed his previous opposition to establishing a new cabinet level Department of Homeland Security, but gave a national address calling for the largest government reorganization in 50 years. In the last year we have learned once again that the public as a whole benefits from a lone voice in the government. Unfortunately, the people who very rarely benefit from these revelations are the whistleblowers themselves. We have heard testimony in oversight hearings on the Judiciary Committee that there is quite often retaliation against those who raise public awareness about problems within large organizations even to Congress. Sometimes the retaliation is overt, sometimes it is more subtle and invidious, but it is almost always there. The law needs to protect the people who risk so much to protect us and create a culture that encourages employees to report waste, fraud, and mismanagement. For those who provide information to Congress, that protection is a hollow promise. On one hand, the law is very clear that it is illegal to interfere with or deny, ``the right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof . . .'' See 18 U.S.C. Sec. 7211. Amazingly, however, this simple provision is a right without a remedy. Employees who are retaliated against for providing information to Congress cannot pursue any avenue of redress to protect their statutory rights. The only exception to this applies to employees of publicly traded companies, who are now covered by the whistleblower provision included in the Sarbanes-Oxley Act that we passed this year. Thus, under current law, government whistleblowers reporting to Congress have less protection than private industry whistleblowers. This bill would merely correct this anomaly by providing government employees that come to Congress with the right to bring an action in court when they suffer the type of retaliation already prohibited under the law. Thus, it does not create new statutory rights, but merely provides a statutory remedy for existing law. That way, we can promise future whistleblowers who come before Congress that their right to access the legislative branch is not an illusion. We can also assure the public at large that our future efforts at Congressional oversight and improving the functions of government will be effective. This legislation is strongly supported by leading whistleblower groups, including the National Whistleblower Center and the Government Accountability Project, and I ask unanimous consent that their letters of support be printed in the Record. For all these reasons, I urge swift passage of this legislation. I ask unanimous consent that the text of this bill be printed in the Record.

Mr. LEAHY. Mr. President, I rise today to introduce the ``Protecting Our Children Comes First Act of 2002,'' which will double funding for the National Center for Missing and Exploited Children, NCMEC, reauthorize the Center through fiscal year 2006, and increase Federal support to help NCMEC programs to find missing children across the Nation. I am pleased that Senator Carnahan joins me as the original cosponsor of this legislation. It is painful to see on TV or in the newspapers photo after photo of missing children from every corner of the Nation. As a father and grandfather, I know that an abducted child is the worst nightmare. Unfortunately, it is a nightmare that happens all too often. Indeed, the Justice Department estimates that 2,200 children are reported missing each day of the year. There are approximately 114,600 attempted stranger abductions every year, with 3,000-5,000 of those attempts succeeding. These families deserve the assistance of the American people and helping hand of the Congress. As the Nation's top resource center for child protection, the National Center for Missing & Exploited Children spearheads national efforts to locate and recover missing children and raises public awareness about ways to prevent child abduction, molestation, and sexual exploitation. As a national voice and advocate for those too young to vote or speak up for their own rights, the NCMEC works to make our children safer. The Center operates under a Congressional mandate and works in cooperation with the U.S. Department of Justice's, DOJ, Office of Juvenile Justice and Delinquency Prevention in coordinating the efforts of law enforcement officers, social service agencies, elected officials, judges, prosecutors, educators, and the public and private sectors to break the cycle of violence that historically has perpetuated these needless crimes against children. NCMEC professionals have disturbingly busy jobs, they have worked on more than 90,000 cases of missing and exploited children since its 1984 founding, helping to recover more than 66,000 children, and raised its recovery rate from 60 percent in the 1980s to 94 percent today. The Center has set up a nationwide, toll free, 24-hour telephone hotline to take reports about missing children and clues that might lead to their recovery, a National Child Pornography Tipline to handle calls from individuals reporting the sexual exploitation of children through the production and distribution of pornography, and a CyberTipline to process online leads from individuals reporting the sexual exploitation of children. It has taken the lead in circulating millions of photographs of missing children, and serves as a vital resource for the 17,000 law enforcement agencies located throughout the U.S. in the search for missing children and the quest for child protection. Today, NCMEC is truly a national organization, having established its headquarters in Alexandria, VA; and operating branch offices in five other locations throughout the country to provide hands-on assistance to families of missing children, advocating legislative changes to better protect children, conducting an array of prevention and awareness programs, and motivating individuals to become personally involved in child-protection issues. It has also grown into an international organization, establishing the International Division of the National Center for Missing and Exploited Children, which has been working to fulfill the Hague Convention on the Civil Aspects of International Child Abduction. The International Division provides assistance to parents, law enforcement, attorneys, nonprofit organizations, and other concerned individuals who are seeking assistance in preventing or resolving international child abductions. NCMEC manages to do all of this good work with only a $10 million annual DOJ grant, which will expire after fiscal year 2003. We should act now both to extend its authorization and increase the Center' s funding to $20 million each year through fiscal year 2006 so that it can continue to help keep children safe and families intact around the nation. There is so much more to be done to ensure the safety of our children, and the legislation we introduce today will help the Center in its efforts to prevent crimes that are committed against them. The ``Protecting Our Children Comes First Act'' also increases Federal support of NCMEC programs to find missing children by allowing the U.S. Secret Service to provide forensic and investigative support to the NCMEC. The bill also amends of the Missing Children's Assistance Act to coordinate the operation of the Center's CyberTipline to provide all online users an effective means of reporting Internet-related child sexual exploitation, such as child pornography, child enticement, and child prostitution. Since its creation in 1998, the NCMEC CyberTipline has fielded almost 100,000 reports, which has allowed Internet users to quickly and easily report suspicious activities linked to the Internet. Our legislation gives Federal authorities the authority to share the facts or circumstances of sexual exploitation crimes against children with state authorities without a court order. The bill also gives the NCMEC the power to make reports directly to state and local law enforcement officials instead of only through the FBI and other agencies. Finally, it provides that reports to NCMEC by Internet Service Providers may include additional information, such as the identity of a subscriber who sent a message containing child pornography, in addition to the required reporting of the contents of such a communication. I applaud the ongoing work of the Center and hope both the Senate and the House of Representatives will promptly pass this bill to provide more Federal support for the NCMEC to continue to find missing children and protect exploited children across the country.

Mr. LEAHY. Mr. President, I have joined today with Senators DeWine, Cantwell, Brownback, and Grassley to introduce legislation that will help State and local governments reduce crime by providing more effective treatment for the mentally ill. All too often, people with mental illness rotate repeatedly between the criminal justice system and the streets of our communities, committing a series of minor offenses. Their crimes occupy the ever scarcer time of law enforcement officers, diverting them from their more urgent responsibilities, and leave the offenders themselves in prisons or jails where little or no medical care is available for them. With this legislation, we are trying to give State and local governments the tools they need to break this cycle, for the good of law enforcement, corrections officers, our public safety, and mentally ill offenders. I held a Judiciary Committee hearing in June on the criminal justice system and mentally ill offenders. At that hearing, we heard from State mental health officials, law enforcement officers, corrections officials, and the representative of counties around our Nation. All agreed that people with untreated mental illness are more likely to commit crimes, and that our State mental health systems, prisons and jails do not have the resources they need to treat the mentally ill, and prevent crime and recidivism. As this legislation's findings detail, 16 percent of adults incarcerated in U.S. jails and prisons have a mental illness, more than 20 percent of youth in the juvenile justice system have serious mental health problems, and up to 40 percent of adults who suffer from a serious mental illness will come into contact with the American criminal justice system at some point in their lives. This is a serious problem that has not received the legislative or public attention it deserves. Under this bill, State and local governments can apply for funding to: a. create or expand mental health courts, which divert qualified offenders from prison to receive treatment; b. create or expand programs to provide specialized training for criminal justice and mental health system personnel; c. create or expand local treatment programs that serve individuals with mental illness or co-occurring mental illness and substance abuse disorders; and d. promote and provide mental health treatment for those incarcerated in or released from and penal or correctional institution. This new program authorizes $100 million for each of the next two fiscal years, and such sums as necessary through fiscal year 2007. I would like to thank a number of people for their advice and involvement in this legislation. First, we would not be here today without the hard work of the Bazelon Center for Mental Health Law. I know that the Bazelon Center has additional ideas to improve this legislation, and I look forward to working with the Center as this bill moves through the legislative process. For example, I think we need to do more to ensure close coordination between the Department of Justice and the Department of Health and Human Services in designing and making these grants. Through this legislation, we are forcing States to bring together their health and law enforcement officials to make grant requests it only makes sense to have the joint perspectives of DOJ and HHS fully involved in evaluating those requests. This is an issue that we will continue to work on, and I hope we will continue to receive the input of the Bazelon Center as we do so. Second, we have received great advice and support from officials in my State of Vermont. Susan Besio, the commissioner of Vermont's Department of Developmental and Mental Health Services, and John Gorczyk, the commissioner of Vermont's Department of Corrections, reviewed this legislation and offered their comments, which have been adopted in the version that we introduce today. Gary Margolis, the Chief of Police Services at the University of Vermont, testified at our June hearing and helped me understand the importance of this issue for law enforcement officers in Vermont and around the nation. Third, the Council of State Governments has also provided invaluable assistance and advice on this issue. Indeed, their report on mentally ill offenders and the criminal justice system was instrumental in focusing the attention of the Judiciary Committee on this important topic. Although I am pleased that we have introduced this bill before the end of this Congress, I think we all understand that the passage of meaningful mental health legislation may have to wait until the next Congress. I want to work with all of the officials and groups I have mentioned, the other sponsors of this legislation, and any other interested parties, to continue to make improvements to this bill. This is a topic that should be a priority for the Judiciary Committee next year, and I will work to make it so.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to introduce the ``Protecting Our Children Comes First Act of 2002,'' which will double funding for the National Center for Missing and Exploited Children, NCMEC, reauthorize the Center through fiscal year 2006, and increase Federal support to help NCMEC programs to find missing children across the Nation. I am pleased that Senator Carnahan joins me as the original cosponsor of this legislation. It is painful to see on TV or in the newspapers photo after photo of missing children from every corner of the Nation. As a father and grandfather, I know that an abducted child is the worst nightmare. Unfortunately, it is a nightmare that happens all too often. Indeed, the Justice Department estimates that 2,200 children are reported missing each day of the year. There are approximately 114,600 attempted stranger abductions every year, with 3,000-5,000 of those attempts succeeding. These families deserve the assistance of the American people and helping hand of the Congress. As the Nation's top resource center for child protection, the National Center for Missing & Exploited Children spearheads national efforts to locate and recover missing children and raises public awareness about ways to prevent child abduction, molestation, and sexual exploitation. As a national voice and advocate for those too young to vote or speak up for their own rights, the NCMEC works to make our children safer. The Center operates under a Congressional mandate and works in cooperation with the U.S. Department of Justice's, DOJ, Office of Juvenile Justice and Delinquency Prevention in coordinating the efforts of law enforcement officers, social service agencies, elected officials, judges, prosecutors, educators, and the public and private sectors to break the cycle of violence that historically has perpetuated these needless crimes against children. NCMEC professionals have disturbingly busy jobs, they have worked on more than 90,000 cases of missing and exploited children since its 1984 founding, helping to recover more than 66,000 children, and raised its recovery rate from 60 percent in the 1980s to 94 percent today. The Center has set up a nationwide, toll free, 24-hour telephone hotline to take reports about missing children and clues that might lead to their recovery, a National Child Pornography Tipline to handle calls from individuals reporting the sexual exploitation of children through the production and distribution of pornography, and a CyberTipline to process online leads from individuals reporting the sexual exploitation of children. It has taken the lead in circulating millions of photographs of missing children, and serves as a vital resource for the 17,000 law enforcement agencies located throughout the U.S. in the search for missing children and the quest for child protection. Today, NCMEC is truly a national organization, having established its headquarters in Alexandria, VA; and operating branch offices in five other locations throughout the country to provide hands-on assistance to families of missing children, advocating legislative changes to better protect children, conducting an array of prevention and awareness programs, and motivating individuals to become personally involved in child-protection issues. It has also grown into an international organization, establishing the International Division of the National Center for Missing and Exploited Children, which has been working to fulfill the Hague Convention on the Civil Aspects of International Child Abduction. The International Division provides assistance to parents, law enforcement, attorneys, nonprofit organizations, and other concerned individuals who are seeking assistance in preventing or resolving international child abductions. NCMEC manages to do all of this good work with only a $10 million annual DOJ grant, which will expire after fiscal year 2003. We should act now both to extend its authorization and increase the Center' s funding to $20 million each year through fiscal year 2006 so that it can continue to help keep children safe and families intact around the nation. There is so much more to be done to ensure the safety of our children, and the legislation we introduce today will help the Center in its efforts to prevent crimes that are committed against them. The ``Protecting Our Children Comes First Act'' also increases Federal support of NCMEC programs to find missing children by allowing the U.S. Secret Service to provide forensic and investigative support to the NCMEC. The bill also amends of the Missing Children's Assistance Act to coordinate the operation of the Center's CyberTipline to provide all online users an effective means of reporting Internet-related child sexual exploitation, such as child pornography, child enticement, and child prostitution. Since its creation in 1998, the NCMEC CyberTipline has fielded almost 100,000 reports, which has allowed Internet users to quickly and easily report suspicious activities linked to the Internet. Our legislation gives Federal authorities the authority to share the facts or circumstances of sexual exploitation crimes against children with state authorities without a court order. The bill also gives the NCMEC the power to make reports directly to state and local law enforcement officials instead of only through the FBI and other agencies. Finally, it provides that reports to NCMEC by Internet Service Providers may include additional information, such as the identity of a subscriber who sent a message containing child pornography, in addition to the required reporting of the contents of such a communication. I applaud the ongoing work of the Center and hope both the Senate and the House of Representatives will promptly pass this bill to provide more Federal support for the NCMEC to continue to find missing children and protect exploited children across the country.

Mr. LEAHY

Mr. LEAHY. Mr. President, tomorrow, as we recognize the 30th anniversary of the amendments to the Federal Water Pollution Control Act, the Clean Water Act, I want to take a moment to reflect on the importance of this cornerstone of environmental legislation and to frankly address the significant amount of work that remains to be done. Vermont is a shining example to the Nation in terms of its environmental ethics and in its commitment to environmental action. I am proud to hail from and to represent a State whose people share a passionate and abiding concern for the environment. We Vermonters are especially proud that much of the environmental progress and improvements to water the Nation has achieved in the last three decades can be directly attributed to the legacy of Vermont's own Robert Stafford. Bob Stafford's leadership in Congress helped shape national environmental policy from the time that the environmental movement was in its infancy and continued well into its maturity. During his 30 years in the House of Representatives and in the Senate, Bob Stafford courageously and successfully stood up to those who sought to diminish and roll back our environmental standards. His efforts were heightened during his tenure as Chairman of the Committee on Environment and Public Works, a post he assumed in 1981 during the 97th Congress and maintained through the 99th. One of his crowning achievements during this time was working with Senator John Chafee to pass the Clean Water Act. Although we should be proud of the great strides we have made to reduce and prevent the levels of pollutants and contaminants in our water, we are far from the visionary goals and ambitious standards set by those who conceived this vital legislation 30 years ago. When Senator Stafford testified before the Environment and Public Works Committee last week, he clearly challenged us to do more. We cannot halt the progress we have made and merely rest on our environmental laurels. I call upon my colleagues, the administration and the American public to look back at the debate that took place at the time and the essence of this remarkable piece of legislation. The 1972 legislation declared as its objective the restoration and maintenance of the chemical, physical, and biological integrity of the Nation's waters. Two goals also were established: zero discharge of pollutants by 1985 and, as an interim goal and where possible, water quality that is both ``fishable'' and ``swimmable'' by 1983. Although we have had more than twice that amount of time to meet these goals, we have only managed to get half-way there. According to EPA's 2000 National Water Quality Report released earlier this year, 39 percent of assessed river and stream miles and 45 percent of assessed lake acres do not meet applicable water quality standards and were found to be impaired for one or more desired uses. In Vermont, too many of our waters still fall into this category. Over the last 30 years, we have addressed many of the point-sources of water pollution in Lake Champlain, the Connecticut River and other water bodies around the State. Unfortunately, we learn about new pollution concerns all the time. Years of unchecked pollution from coal-fired power plants outside of Vermont's borders have overburdened Lake Champlain and many of our rivers with mercury. Vermont now has fish advisories for walleye, lake trout and bass due to mercury. There are solutions to this environmental challenge and others that threaten the health of Vermont's waters. We just need to act on them. Instead, I worry that we are ignoring the warning signs, such as climate change, new health problems in our children, loss of our natural resources to pests and disease. By its actions I fear that the current administration seems to be interested in protecting special interests and ignoring public support for strong environmental protections and conservation measures. Just in the last few months, the administration has announced plans to rewrite Clean Water Act regulations that would allow dirt displaced by mountain top mining to be dumped in waterways. Army Corps of Engineers' regulations protecting wetlands have been relaxed, backing away from the decade-old commitment of no net loss of wetlands. Instead of looking at ways to undercut the Clean Water Act, we need to get back on track and strengthen it.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise to discuss the situation of the Roma people in Serbia and Montenegro, which together make up the Federal Republic of Yugoslavia, FRY. I am among those who believe that the United States should continue to strongly support the development of democratic institutions and reconciliation among ethnic groups throughout the FRY and Senator McConnell and I have tried to do that in the fiscal year 2003 Foreign Operations spending bill. As in the past, we have provided funds to support democratic reformers in the FRY, as they continue to work to overcome the hatred and destruction caused by Slobodan Milosevic. The United States is dedicated to ensuring that Serbia develops a solid commitment to peace, the rule of law, and to protecting the rights and well-being of its minority communities. That is why the funding level for Serbia--and indeed throughout the Balkans-- recommended by the Committee on Appropriations is above what the President requested in his Fiscal Year 2003 budget. Our law requires that the President certify to the Committee on Appropriations that the FRY is continuing to cooperate with the War Crimes Tribunal. He must also certify that the FRY is implementing policies which reflect a commitment to the rule of law, a commitment to end support for separate Republika Srpska institutions, and a commitment to ensure and protect the rights of minority groups. Progress toward those goals has been made. But it has been slow, and the FRY has an inconsistent record of compliance with our law. I recognize that the process of reform is difficult. Breaking down old hatreds can take generations. I have been very disappointed that even the reformers in positions of authority have not done more to support the Tribunal, and to expose the truth about Milosevic's crimes. However, even their inconsistent efforts are resisted at every turn by powerful nationalists who are far less committed to justice. That political dynamic is the cause of much friction within the FRY, and is the cause of continuing difficulties between Serbia and the international community. It is my hope, and I think I speak for everyone here, that the Balkans will eventually become a stable, peaceful, and tolerant region in which Serbia is the leading force for trade and democracy. Such a hope will become a reality only if our commitment to it remains strong. As the world's attention has shifted toward Afghanistan and a possible war with Iraq, it is important that our concerns for the FRY are not drowned out by events elsewhere. In addition to ensuring FRY compliance with the Tribunal, there is still serious work to be done on behalf of minority groups there. In particular, a higher level of attention must be focused on the plight of the Roma people, whose history is one of discrimination and suffering. The Roma are an ethnic group that traces their heritage back about one thousand years to the north of India. They first settled in Eastern Europe in the 14th Century. Today, Roma reside in all parts of Europe. Over the centuries, the Roma have been the victims of murderous violence and debilitating discrimination that has poisoned their relations with their host nations, stunted their growth as a community, and perpetuated a vicious cycle of poverty, unemployment, sickness, and every form of social ostracism. It is a cycle that has sentenced the Roma to shorter lives, lower literacy rates, and often horrid living conditions--living conditions that are far below those of the general populations of their host nations. I read in a recent publication that in England, during the time of Elizabeth I, there was a law which made it illegal to be a Roma person, and under that law one could be put to death simply for being born to Roma parents. Also during that time, in Switzerland, it was legal to hunt Roma for sport. During the Second World War, the Roma were among the first ethnic groups targeted for eradication by Hitler. Until the 1970s, in other parts of Europe, policies have resulted in separating Romani children from their parents so they could be raised by non-Roma families. The last decade has been no kinder to the Roma. During the Balkan wars of the 1990s, the Roma were severely victimized. And the abuse of the Roma continues now during peacetime. The FRY has officially registered the Roma as a minority group, and has mandated that more Romani language programs appear on state television. These are important steps and are to be commended. Much progress toward equitable and lawful treatment of the Roma, however, is yet to be made by the FRY, where the Roma are reportedly subject to frequent police brutality. They often live in illegal settlements on the outskirts of towns, without electricity, running water, or sanitation. International nongovernmental organizations willing to assist the Roma in constructing more permanent housing have been forced to cancel their projects, because the FRY and local authorities denied them the necessary land. Roma in the FRY are also the targets of humiliating social discrimination. They are frequently denied access to privately owned restaurants and sports facilities. Roma do not receive adequate education, health care, or equitable access to public goods and services. In many FRY communities they are treated as a public nuisance. Very little effort is made by state prosecutors to pursue cases of discrimination against Roma in the courts, partially due to widespread apathy for the Roma and partially because of weak legislation protecting the rights of minorities. The Roma experience is one of suffering. Their's is a life of waiting, and one of hope lost as the tide of history threatens to sweep them aside. As with its cooperation with the Hague Tribunal, the FRY's respect for the rights of the Roma must be closely monitored and verified. The President's certification to the Committee on Appropriations concerning funds appropriated for the FY should address both issues. Continuing progress by the FRY in ensuring the safety and dignity of all its citizens, including the Roma, is the intent of our law and essential to the future stability of the former Yugoslavia.

Mr. LEAHY

Mr. LEAHY. Mr. President, I want to add my voice to the growing chorus in Washington condemning the State Peace and Development Council's brutal and inhumane treatment of the people of Burma-- including refugees and internally displaced persons. We recently heard from the senior Senator from Kentucky, Senator McConnell, who has been a consistent, strong voice for human rights and democracy in Burma. He spoke of the many abuses committed by the SPDC and his concerns that the SPDC's proclaimed interest for reconciliation with the legitimate leaders of Burma--led by Daw Aung San Suu Kyi and the National League for Democracy--ring hollow. I am in complete agreement with his assessment. It is past time for the SPDC and its armed forces to respect the human rights and dignity of the people of Burma and to punish those in the military who are responsible for killing and injuring innocent men, women and children. I was appalled to learn this week that Burma Army Column Commander Khin Mau Kyi, who is reportedly responsible for burning churches and villages and torturing pastors and Buddhist monks, said. ``I don't respect any religion, my religion is the trigger of my gun.'' Mr. President, Khin Mau Kyi's so-called ``religion'' is, according to information I have received, responsible for the murder of the following people at Htee Law Belh on April 28, 2002: Saw Hto Paw, Naw Hsar Kay, Naw Kri Htoo, Naw Ble Po, 5 years old, Daw Htwe Ye, Naw Mu Tha, Mu Pwat Pwat, 7 year old, Saw Ka Pru Moo, Naw Plah, 5 years old, Naw Dah Baw 2 years old, and Naw Pi Lay and her infant. The State Department should publicly condemn the SPDC for these atrocities, and call on the SPDC to investigate these crimes and bring those responsible to justice. Unfortunately, there is no reason to believe the SPDC will act against its own officers. We and the international community should do our utmost to provide assistance to the SPDC's victims. In the days to come, I will confer with my friend from Kentucky on appropriate actions we can take to help refugees and internally displaced persons in Burma, including engagement with Thailand to ensure that Burmese fleeing SPDC abuses can enter into Thailand, that international journalists are given free and unfettered access to refugee camps and ethnic minorities, and the UN High Commissioner For Refugees is allowed to provide a safe haven for those fleeing SPDC oppression.

Mr. LEAHY

Mr. LEAHY. Mr. President, recently, the Prosecutor for the Special Court for Sierra Leone briefed the staff of the Foreign Operations Subcommittee. He spoke about his efforts to prosecute those responsible for the horrific crimes that were committed there and to help this nation emerge from a tragic episode in its history. Whenever something like this occurs, the question that first comes to mind is why did it happen? Was it a political struggle? Was it because of religious extremism or ethnic hatred? Unlike Yugoslavia or Rwanda, most experts believe that the driving force behind this brutal conflict was control of resources, especially diamonds. The problems associated with conflict diamonds in Sierra Leone are not confined to West Africa. They also have an impact in the United States. According to the Washington Post, al Qaeda reaped millions of dollars from the illicit sale of diamonds, and law enforcement officials have said that in order to cut off al Qaeda funds, you have to cut off the diamond pipeline. With all that is happening in the world, it may be understandable that the issue of conflict diamonds is not front page news. However, we are starting to make some progress on this important issue. The Administration has been working to help create an international regime aimed at stopping the trade in conflict diamonds. Initiated by a group of African nations, the Kimberly process has the support of a diverse group of non-governmental organizations and the diamond industry. In March 2002, the last full session of the Kimberly process was completed and has now reached a point where the individual countries involved need to pass implementing legislation. In the United States, some modest legislation may be enacted before the end of this year. While I am glad that Congress may pass something on conflict diamonds this year, there must be a serious effort next year to get stronger legislation signed into law. Senator Durbin has introduced important implementing legislation, and he is working with the administration, a bipartisan group of Senators, including Senators DeWine and Bingaman, and a range of non-governmental organizations such as Oxfam and Catholic Relief Services to come up with effective legislation that we can all support. I am encouraged that the administration is consulting with Congress and has named Ambassador Bindenagle, a career diplomat with experience in complex negotiations, to lead this effort. But, there must be more than an exchange of views on this issue. The administration must also seriously consider Congressional proposals to move beyond the Kimberly process. For example, a major flaw in the Kimberly process is that it does not cover polished diamonds. This is important for two reasons. Polished diamonds contribute significantly to the problems associated with the illicit trade in diamonds, and the United States is far and away the world's largest market for these types of diamonds. Clearly, this is an area where the United States needs to show leadership. As chairman of the Foreign Operations Subcommittee, I will do what I can to ensure that resources are available for developing countries that want to enhance their capacity to implement Kimberly. I look forward to working with the administration to make substantial progress on this issue next year. It will not be easy, but it can be done.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to urge the Senate to pass S. 2520, the Prosecutorial Remedies and Tools Against the Exploitation of Children Today, PROTECT, Act of 2002. This bill and the substitute I offer will protect our Nation's children from exploitation by those who produce and distribute child pornography, within the parameters of the First Amendment. I was an original cosponsor of S. 2520 and joined Senator Hatch, the ranking Republican member of the Judiciary Committee, on the Senate floor when the bill was introduced. Since that time, I have been working with Senator Hatch both to improve the bill that we introduced together and to build consensus for it. Unlike the Administration's bill, which has been widely criticized by constitutional and criminal law scholars and practitioners, we have been largely successful in that effort. The substitute I offer today is virtually identical to the version circulated by Senator Hatch before the October 8, 2002 meeting of the Judiciary Committee. I am glad to report that this substitute has been approved by every single Democratic Senator. Moreover, every Democratic Senator has agreed to discharge S. 2520 from the Judiciary Committee for consideration and passage by the Senate, with a refining amendment. I am now asking my colleagues on the Republican side of the aisle to lift any holds and to allow this important legislation to pass the Senate. That way, the House may take up the bill and the PROTECT Act may become law before we adjourn. I know that there are some who would rather play politics with this issue, but I hope that they reconsider. It is more important that we unite to pass a bill that will both protect our Nation's children and produce convictions rather than tying up prosecutorial resources litigating the constitutionality of the tools we give the Justice Department to use. This legislation will accomplish those goals. Two weeks ago I convened a hearing on this issue to hear from the Justice Department, the National Center for Missing and Exploited Children, CMEC, and constitutional scholars. The constitutional scholars testified that the provisions of S. 2520 were likely to withstand the inevitable court challenges ahead. Unfortunately, they could not say the same of the Administration's proposal and H.R. 4623. Professor Frederick Schauer from Harvard, who served on the Meese Commission on pornography and authored its findings, as well as Professor Anne Coughlin from the University of Virginia both agreed that the Administration's bill and H.R. 4623 crossed over the First Amendment line after the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389. Even the ACLU has passed along views from its First Amendment expert that S. 2520 is ``well crafted and should survive constitutional scrutiny.'' That point is crucially important, because it does no one any good to pass a ``quick fix'' law that will land us right back where we started in five years, with no valid law on the books to protect our Nation's children from exploitation. We owe our children more than a press conference on this issue, we owe them a law that lasts. I am not alone in that view. Testimony at the Judiciary Committee hearing made this point clearly. Professor Schauer testified in support of the basic provisions of the PROTECT Act, but warned us about the Administration's proposal. Incidently, this same constitutional law scholar testified in favor of the Child Pornography Prevention Act, CPPA, in 1996, but he also correctly warned us then about the precise parts of that law that would be struck down. Here is what he said this time around: [W]hether it is open to academic or congressional criticism, Justice Kennedy's opinion for a 7-2 Court still represents the definitive and authoritative interpretation of the First Amendment in the child pornography context, and thus represents the law. Legislation inconsistent with Free Speech Coalition would not only be inconsistent with current constitutional law, therefore, but would also represent a tactical mistake in an attempt to combat the horror of child pornography. As the six year course of litigation under the previous Act so well demonstrates, constitutionally suspect legislation under existing Supreme Court interpretations of the First Amendment, whatever we may think of the wisdom and accuracy of those interpretations, puts the process of prosecuting the creators of child pornography on hold while the appellate courts proceed at their own slow pace. There is room in our legislative world for legislation that is largely symbolic, but for Congress to enact symbolic but likely unconstitutional legislation would have the principal effect of postponing for conceivably six more years the ability to prosecute those creators of child pornography whose prosecution is consistent with the Supreme Court's view of the First Amendment. After our Judiciary Committee hearing, Senator Hatch and I continued to work to improve our bill to address concerns that had been raised. We worked to come up with a Hatch-Leahy substitute amendment for consideration by the Judiciary Committee that included technical corrections and improvements to the original text of S. 2520 that we could both agree upon. These included addressing some issues raised by the National Center for Missing and Exploited Children, CMEC, concerning the scope of the victim shield provision to limit that provision to ``non-physical'' information. The changes in the proposed Hatch-Leahy substitute also included adopting the House bill's measures allowing the CMEC to share information from its tip line directly with State and local law enforcement officers, instead of always passing the information through the FBI. Although the Administration did not originally ask for this change, the CMEC has reported that the FBI is either unwilling or unable to share information from the child exploitation tip line in a timely manner with state and local law enforcement. As the Chairman of the Committee charged with overseeing the FBI, I was disappointed to hear this appraisal of the FBI. To remedy this situation, and in the spirit of compromise and reconciling this legislation with the House passed bill, the substitute to S. 2520 incorporates this change. I note that Senator Hatch would not agree to accept my proposal that we also include a provision that would ensure that tips to the child exploitation tip lines come from ``non governmental sources'' so that government agents could not ``tickle'' the tip line to try to avoid the legal requirements of the Electronic Communications Privacy Act. I did not insist on this important provision because, with time running out in this Congress, we must all compromise if we want to pass a bill, and I want to pass this bill. In any event, I placed S. 2520 on the Judiciary Committee agenda for its meeting on October 8, 2002. Unfortunately, due to procedural issues, including the two hour rule that was invoked because of the debate on Iraq, and procedural maneuvering that centered around judicial nominations, members from the other side of the aisle objected to the consideration of this and all other legislative proposals before the Judiciary Committee. The Judiciary Committee was, consequently, unable to consider the bipartisan substitute circulated by Senator Hatch, and to which I agreed. The substitute for which I now seek unanimous consent is identical to the proposed Committee substitute that Senator Hatch circulated with two exceptions. First, the substitute removes three lines that were not in the original language of S. 2520 as introduced by Senator Hatch and that were inadvertently included in the version of the substitute circulated by Senator Hatch. Indeed, I am advised that Senator Hatch was prepared to strike these 3 lines had the Judiciary Committee considered the substitute. The Leahy amendment simply corrects this inadvertent error, which was totally understandable in the rush of business. The second change the substitute makes in order to assure swift passage of this measure is to render the new affirmative defense created in S. 2520 available to defendants who can prove that actual adults, and no children, were used to create the visual images involved. This change would provide no help to defendants seeking to assert a ``virtual porn'' defense, which would still be blocked both for the new category of material created by the statute and any obscene child pornography. But in the case of a defendant who can, for instance, actually produce in court the 25-year old that is shown in the allegedly obscene material and prove that it is not, in fact, child pornography, or even virtual child pornography, the defense would be available. Indeed, Justice O'Connor in her concurring opinion in the Free Speech case specifically concluded that the prior law's prohibition on such ``youthful adult'' pornography was overbroad. As the testimony at our Committee hearing made clear, we should be careful not to repeat this mistake. Other than that, this substitute is the exactly same as the substitute circulated by Senator Hatch before the Judiciary Committee's meeting on October 8, 2002. The definitions of child pornography are the same; the new tools for prosecutors to catch and punish those who exploit children are the same; the new tools given to the Center for Missing and Exploited Children are the same. This is, for all intent and purposes, the same as the Hatch-Leahy substitute. This is a bipartisan compromise that will protect our children and honor the Constitution. I urge members from the other side of the aisle to join us. Do not hold this bill hostage as part of some effort at political payback or a ``tit for tat'' strategy. Let this bill pass the Senate and give law enforcement the tools they need to protect our children in the internet age.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today with Senators Jeffords and Collins to introduce the Hometown Heroes Survivors Benefits Act of 2002. Our bipartisan legislation will improve the Department of Justice's Public Safety Officers' Benefits, PSOB, Program by allowing families of public safety officers who suffer fatal heart attacks or strokes to qualify for Federal survivor benefits. Public safety officers are among our most brave and dedicated public servants. I applaud the efforts of all members of fire, law enforcement, and rescue organizations nationwide who are the first to respond to more than 1.6 million emergency calls annually, whether those calls involve a crime, fire, medical emergency, spill of hazardous materials, natural disaster, act of terrorism, or transportation accident, without reservation. They act with an unwavering commitment to the safety and protection of their fellow citizens, and are forever willing to selflessly sacrifice their own lives to provide safe and reliable emergency services to their communities. Sadly, this dedication to service can result in tragedy, as was evident by the bravery displayed on September 11th. In the days and months since September 11th, I have been particularly touched by the stories of unselfish sacrifices made by scores of New York City first responders who bravely entered the World Trade Center that day with the singular goal of saving lives. More than one hundred firefighters in America lose their lives every year and thousands are injured in the line of duty. While PSOB benefits can never be a substitute for the loss of a loved one, the families of all our fallen heroes deserve to collect these funds. The PSOB Program provides a one-time financial benefit to the eligible survivors of federal, state, and local public safety officers whose deaths are the direct and proximate result of a traumatic injury sustained in the line of duty. Last year, Congress improved the PSOB Program by streamlining the process for families of public safety officers killed or injured in connection with prevention, investigation, rescue or recovery efforts related to a terrorist attack. We also retroactively increased the total benefits available by $100,000 as part of the USA PATRIOT Act. The PSOB Program now provides approximately $250,000 in benefits to the families of law enforcement officers, firemen, emergency response squad members, and ambulance crew members who are killed in the line of duty. Unfortunately, the issue of including heart attack and stroke victims in the PSOB Program was not addressed at that time. The PSOB Program does not cover deaths resulting from occupational illness or pulmonary or heart disease unless a traumatic injury is a substantial factor to the death. However, if toxicology reports demonstrate a carbon monoxide level of 10 percent or greater, 15 percent or greater for the smoker, at the onset of a heart attack benefits are paid. The PSOB Program has developed a formula that addresses oxygen therapy provided to the victim prior to the death. Heart attack and cardiac related deaths account for almost half of all firefighter fatalities, between 45-50 deaths, and an average of 13 police officer deaths each year. Yet the families of these fallen heroes are rarely eligible to receive PSOB benefits. In January 1978, special Deputy Sheriff Bernard Demag of the Chittenden County Sheriff's Office suffered a fatal heart attack within two hours of his chase and apprehension of an escaped juvenile whom he had been transporting. Mr. Demag's family spent nearly two decades fighting in court for workers' compensation death benefits all to no avail. Clearly, we should be treating surviving family members with more decency and respect. Public safety is dangerous, exhausting, and stressful work. A first responder's chances of suffering a heart attack or stroke greatly increase when he or she puts on heavy equipment and rushes into a burning building to fight a fire and save lives. The families of these brave public servants deserve to participate in the PSOB Program if their loved ones die of a heart attack or other cardiac related ailments while selflessly protecting us from harm. First responders across the country now face a new series of challenges as they respond to over 1.6 million emergency calls this year, from responding to fires and hazardous material spills to providing emergency medical services to reacting to weapons of mass destruction. They do this with an unwavering commitment to the safety of their fellow citizens, and are forever willing to selflessly sacrifice their own lives to protect the lives and property of their fellow citizens. It is time for Congress to show its support and appreciation for these extraordinarily brave and heroic public safety officers. We should quickly work to pass the Hometown Heroes Survivors Benefit Act.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today with Senators Jeffords and Collins to introduce the Hometown Heroes Survivors Benefits Act of 2002. Our bipartisan legislation will improve the Department of Justice's Public Safety Officers' Benefits, PSOB, Program by allowing families of public safety officers who suffer fatal heart attacks or strokes to qualify for Federal survivor benefits. Public safety officers are among our most brave and dedicated public servants. I applaud the efforts of all members of fire, law enforcement, and rescue organizations nationwide who are the first to respond to more than 1.6 million emergency calls annually, whether those calls involve a crime, fire, medical emergency, spill of hazardous materials, natural disaster, act of terrorism, or transportation accident, without reservation. They act with an unwavering commitment to the safety and protection of their fellow citizens, and are forever willing to selflessly sacrifice their own lives to provide safe and reliable emergency services to their communities. Sadly, this dedication to service can result in tragedy, as was evident by the bravery displayed on September 11th. In the days and months since September 11th, I have been particularly touched by the stories of unselfish sacrifices made by scores of New York City first responders who bravely entered the World Trade Center that day with the singular goal of saving lives. More than one hundred firefighters in America lose their lives every year and thousands are injured in the line of duty. While PSOB benefits can never be a substitute for the loss of a loved one, the families of all our fallen heroes deserve to collect these funds. The PSOB Program provides a one-time financial benefit to the eligible survivors of federal, state, and local public safety officers whose deaths are the direct and proximate result of a traumatic injury sustained in the line of duty. Last year, Congress improved the PSOB Program by streamlining the process for families of public safety officers killed or injured in connection with prevention, investigation, rescue or recovery efforts related to a terrorist attack. We also retroactively increased the total benefits available by $100,000 as part of the USA PATRIOT Act. The PSOB Program now provides approximately $250,000 in benefits to the families of law enforcement officers, firemen, emergency response squad members, and ambulance crew members who are killed in the line of duty. Unfortunately, the issue of including heart attack and stroke victims in the PSOB Program was not addressed at that time. The PSOB Program does not cover deaths resulting from occupational illness or pulmonary or heart disease unless a traumatic injury is a substantial factor to the death. However, if toxicology reports demonstrate a carbon monoxide level of 10 percent or greater, 15 percent or greater for the smoker, at the onset of a heart attack benefits are paid. The PSOB Program has developed a formula that addresses oxygen therapy provided to the victim prior to the death. Heart attack and cardiac related deaths account for almost half of all firefighter fatalities, between 45-50 deaths, and an average of 13 police officer deaths each year. Yet the families of these fallen heroes are rarely eligible to receive PSOB benefits. In January 1978, special Deputy Sheriff Bernard Demag of the Chittenden County Sheriff's Office suffered a fatal heart attack within two hours of his chase and apprehension of an escaped juvenile whom he had been transporting. Mr. Demag's family spent nearly two decades fighting in court for workers' compensation death benefits all to no avail. Clearly, we should be treating surviving family members with more decency and respect. Public safety is dangerous, exhausting, and stressful work. A first responder's chances of suffering a heart attack or stroke greatly increase when he or she puts on heavy equipment and rushes into a burning building to fight a fire and save lives. The families of these brave public servants deserve to participate in the PSOB Program if their loved ones die of a heart attack or other cardiac related ailments while selflessly protecting us from harm. First responders across the country now face a new series of challenges as they respond to over 1.6 million emergency calls this year, from responding to fires and hazardous material spills to providing emergency medical services to reacting to weapons of mass destruction. They do this with an unwavering commitment to the safety of their fellow citizens, and are forever willing to selflessly sacrifice their own lives to protect the lives and property of their fellow citizens. It is time for Congress to show its support and appreciation for these extraordinarily brave and heroic public safety officers. We should quickly work to pass the Hometown Heroes Survivors Benefit Act.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to introduce the Missing Children's Assistance Act of 2002, which doubles the funding for the National Center for Missing and Exploited Children and reauthorizes the Center through fiscal year 2006. I am pleased to have Senators Hatch and Biden as cosponsors. Due to tragic circumstances, the importance of the National Center for Missing and Exploited Children, ``NCMEC'', has become even more pronounced over the past year. We have seen repeated media coverage of missing children from every corner of our nation, and parents and children alike have slept less easily. As a father and grandfather, I know that an abducted child is every parent's or grandparent's worst nightmare. The Justice Department estimates that between 3,000 and 4,000 children are taken by strangers every year. This legislation will strengthen our efforts to return those children to their homes, and relieve their parents of unimaginable grief. The Center for Missing and Exploited Children assists parents, children, law enforcement, schools, and the community in their efforts to recover missing children. The professionals at NCMEC have disturbingly busy jobs, they have worked on more than 73,000 cases of missing and exploited children since NCMEC's founding in 1984, helping to recover more than 48,000 of them. They also raise awareness about preventing child abduction, molestation, and sexual exploitation. As part of its mission, NCMEC runs: 1. a 24-hour telephone hotline to take reports about missing children and clues that might lead to their recovery, 2. a national child pornography tipline, and 3. a program that assists families in the reunification process. NCMEC also helps runaway children, including through attempts to reduce child prostitution. NCMEC manages to do all of this good work with only a $10 million authorization, which expires after fiscal year 2003. We should act now both to extend its authorization and provide additional funds so that it can continue to help keep children safe and families intact around the nation.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to introduce the Missing Children's Assistance Act of 2002, which doubles the funding for the National Center for Missing and Exploited Children and reauthorizes the Center through fiscal year 2006. I am pleased to have Senators Hatch and Biden as cosponsors. Due to tragic circumstances, the importance of the National Center for Missing and Exploited Children, ``NCMEC'', has become even more pronounced over the past year. We have seen repeated media coverage of missing children from every corner of our nation, and parents and children alike have slept less easily. As a father and grandfather, I know that an abducted child is every parent's or grandparent's worst nightmare. The Justice Department estimates that between 3,000 and 4,000 children are taken by strangers every year. This legislation will strengthen our efforts to return those children to their homes, and relieve their parents of unimaginable grief. The Center for Missing and Exploited Children assists parents, children, law enforcement, schools, and the community in their efforts to recover missing children. The professionals at NCMEC have disturbingly busy jobs, they have worked on more than 73,000 cases of missing and exploited children since NCMEC's founding in 1984, helping to recover more than 48,000 of them. They also raise awareness about preventing child abduction, molestation, and sexual exploitation. As part of its mission, NCMEC runs: 1. a 24-hour telephone hotline to take reports about missing children and clues that might lead to their recovery, 2. a national child pornography tipline, and 3. a program that assists families in the reunification process. NCMEC also helps runaway children, including through attempts to reduce child prostitution. NCMEC manages to do all of this good work with only a $10 million authorization, which expires after fiscal year 2003. We should act now both to extend its authorization and provide additional funds so that it can continue to help keep children safe and families intact around the nation.

Mr. LEAHY

Mr. LEAHY. I strongly agree with the Majority Leader and thank him for this colloquy.