Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Reserving the right to object, and I shall not, has there been reserved time already on this vote?

Mr. LEAHY. Madam President, I understood the Senator from Vermont had time reserved on the Leahy-Hatch amendment. Am I incorrect on that?

Mr. LEAHY. I thank the Chair.

Mr. LEAHY

Mr. LEAHY. Madam President, the Senator from Iowa has left the floor. I note he and the Senator from Virginia--we had attempted to move the Harkin-Allen amendment through the Judiciary Committee yesterday. There was an objection to moving it, on the Republican side; otherwise, I would think we could have had it on the floor as a freestanding matter. We are considering the Leahy-Hatch substitute for the Terrorist Bombing Convention. This bill brings the United States into immediate compliance with two international conventions signed by the United States. Both conventions were entered into after the terrorist bombings at the U.S. embassies in Kenya and Tanzania. If anybody wants to know why these treaties are important, look at the news today, the horrific car bombing outside the U.S. consulate in Karachi, Pakistan. We grieve for the victims; we mourn with the families of the dead; and we pray for the speedy recovery of the injured. And, Mr. President, we act. Not tomorrow--not next month--but today. We act to protect future victims. We act to punish future evil doers. We act to show that the United States will lead the international community in the fight to end such terrorist bombings. That is precisely what my bill, S. 1770, and the Leahy-Hatch substitute does. Although I introduced this bill over six months ago, today's events should serve as a jolt to us all. The time for delay and obstructionism and partisan bickering is over. It is time to pass this bill. I am pleased the Senate is considering the Leahy-Hatch substitute amendment to S. 1770, the ``Terrorist Bombing Convention and Suppression of the Financing of Terrorism Convention Implementation Acts of 2001.'' This bill will bring the United States into immediate compliance with two important international conventions, which were signed by the United States and transmitted to the United States Senate for ratification by President Clinton. Both Conventions were entered into after the terrorist bombings at the United States embassies in Kenya and Tanzania. Consideration of these important treaties was inexcusably delayed when the Senate was under Republican control, and passage of this implementation legislation has been likewise blocked by an anonymous Republican hold. As I urged in a statement on the floor of the Senate on June 7, Republican obstructionism on this anti-terrorism legislation should stop, the anonymous Republican hold on this bill should be lifted and this bill should pass. The International Convention for the Suppression of Terrorist Bombings--``Bombing Convention''--was adopted by the United Nations General Assembly in December 1997 and signed by the United States in January 1998. In September 1999, it was transmitted to the Senate by President Clinton for ratification, but no action was taken on this treaty while the Senate remained under Republican control. The International Convention for the Suppression of Financing Terrorism--``Financing Convention''--was adopted by the United Nations General Assembly in December 1999 and signed by the United States in January 2000. In October 2000, it was transmitted to the Senate by President Clinton for ratification, but, again, no action was taken on this treaty while the Senate remained under Republican control. When the Senate reorganized under a Democratic majority last summer, the Foreign Relations Committee under the leadership of Chairman Biden moved expeditiously to report these conventions to the full Senate. The antibombing treaty, in particular, sat in the Foreign Relations Committee for approximately 2 years without action during the Clinton administration when the Senate was under Republican control. Senator Biden deserves credit for acting quickly to report these treaties shortly after he assumed chairmanship of the Foreign Relations Committee. Under the leadership of Majority Leader Daschle, the two treaties were considered by the Senate, which gave its consent to ratification by unanimous consent on December 5, 2001. Yet even as Senator Biden and Majority Leader Daschle were pushing to move the treaties themselves through the Senate, the Bush administration did not transmit proposed implementing legislation to the Judiciary Committee before or during the time that we were working together day and night to write the USA PATRIOT Act, the bipartisan antiterrorism legislation responding to the events of September 11. I remain puzzled why the administration felt that this measure should be separated from that effort. Both treaties require the signatory nations to enact certain, precisely worded criminal provisions in their laws in order to be in compliance. That is what S. 1770, the Leahy bill, does. I introduced S. 1770, on December 5, 2001, shortly after passage of the USA Patriot Act, as a separate bill. This was the same day that the Senate agreed to ratify both treaties. I then tried to move the bill quickly through the Senate, but an anonymous Republican hold blocked passage. Again this year I tried to move the bill through the Senate, but again there was an anonymous hold from the Republican side of the aisle which blocked its passage. Had there not been a hold placed on the bill last year, I am quite sure that we could have resolved any remaining issues in conference, as the Republican-controlled House was simultaneously passing its own version of my bill. After the anonymous hold was placed on S. 1770 at the end of the last session, we received a letter from the Department of Justice on January 29, 2002, about the bill. The letter stated that the Department ``support[ed] the legislation but recommend[ed] several modifications.'' None of the modifications which the Department recommended dealt with issues that were necessary for compliance with the treaties, the basic purpose of the bill. The legislation I originally introduced would bring this country into full compliance with those important obligations and take away an excuse from nations that are hesitant to cooperate in the war against terrorism. The recent spate of horrible suicide bombings around the world and the fact that the convention prohibiting terrorist financing entered into force on April 10, 2002, demonstrate the pressing need for this legislation. As if that was not enough, only last month the FBI Director warned that he believes that suicide bombings in the United States are ``inevitable,'' bringing home the point that this legislation is required both to fight terrorism at home and abroad. Nevertheless, S. 1770 has been subjected to an anonymous Republican hold since December of last year. In the post-September 11 environment it is almost beyond my understanding why any Member of this body would secretly obstruct passage of an important piece of antiterrorism legislation--yet here we are in June, blocked from compliance with two international terrorism treaties by a secret Republican hold. As the Administration has made clear, both Conventions are: important to insure that all nations have in place laws to enable full and effective international cooperation against terrorism. By enacting this legislation, the United States will be in a position to lead the cooperative effort against terrorist bombings and terrorist finances. See Statement of Administration Policy, December 19, 2001. The legislation meets our obligations under the treaties in the following ways. Both conventions require signatory nations to adopt criminal laws prohibiting specified terrorist activities in order to create a regime of universal jurisdiction over certain crimes. Articles 2 and 4 of the Bombing Convention require signatory countries to criminalize the delivery, placement, discharge or detonation of explosives and other lethal devices ``in, into, or against'' various defined public places with the intent to kill, cause serious bodily injury, or extensively damage such public places. The Bombing Convention also requires that signatories criminalize aiding and abetting, attempting, or conspiring to commit such crimes. Articles 2 and 4 of the Financing Convention require signatory countries to criminalize willfully ``providing or collecting'' funds, directly or indirectly, with knowledge that they are to be used to carry out acts which either (1) violate nine enumerated existing treaties, or (2) are aimed at killing or injuring civilians with the purpose of intimidating a population or compelling a government to do any act. The Financing Convention also requires that signatories criminalize aiding and abetting, attempting, or conspiring to commit such crimes. Signatories must criminalize such acts under Article 2 whether or not ``the funds were actually used to carry out'' such an offense. Both conventions require that signatory nations exercise limited extraterritorial jurisdiction and extradite or prosecute those who commit such crimes when found inside their borders. The conventions also require that signatories ensure that, under their domestic laws, political, religious, ideological, racial or other similar considerations are not a justification for committing the enumerated crimes. Thus, signatory nations will not be able to assert such bases to deny an extradition request for a covered crime. Finally, Article 4 of each convention requires that signatory states make the covered offenses ``punishable by appropriate penalties which take into account the grave nature of [the] offenses.'' S. 1770 and the substitute amendment, consistent with the House version of this bill, H.R. 3275, create two new crimes (one for bombings and another for financing terrorist acts) that track precisely the language in the treaties, and bring the United States into compliance. The legislation also provides extraterritorial jurisdiction as required by the conventions. Furthermore the bill creates domestic jurisdiction for these crimes in limited situations where a national interest is implicated, while excluding jurisdiction over acts where the conventions do not require such jurisdiction and there is no distinct federal interest served. The bill, again consistent with the H.R. 3275, also contains ``ancillary provisions'' that would make the two new crimes predicates for money laundering and RICO charges, and for wiretaps. The two provisions would also be subject to an 8-year statute of limitations and included as a ``federal crime of terrorism.'' Finally, civil asset forfeiture would be available for the new terrorism financing crime. Existing anti-terrorism crimes are predicates for each of these tools, and providing law enforcement with these ancillary provisions is both consistent and appropriate. Neither international convention requires a death penalty provision for any covered crime. Indeed, the Department of Justice, in a memorandum dated November 14, 2001 to the Subcommittee on Crime of the House Judiciary Committee, made amply clear that ``the death penalty is not required by the Convention'' and would not be required to bring the United States into compliance. This should come as no surprise, given international sentiment opposing the United States' use of the death penalty in other contexts. The inclusion of a death penalty provision in the implementing legislation for these conventions could lead to complications in extraditing individuals to the United States from countries that do not employ the death penalty. Therefore, unlike the House version of the implementing legislation, the original Senate version of S. 1770 contained no new death penalty provision. The Administration's insistence on adding yet another death penalty to our federal criminal laws is especially inexplicable given the context of this implementing legislation. The chief purpose of the Terrorist Bombing Convention is to foster international cooperation and decrease hurdles to extradition in terrorism cases. The United States, understandably, wants those who victimize its citizens around the world to be subject to trial and punishment in our own courts. Beyond that purpose, the legislation is largely duplicative of existing state and federal laws. Even in the recent terrorism context, however, where the desire to assist the United States is at its peak, our closest allies have balked or obstructed our prosecution efforts when the death penalty has been implicated, wasting valuable time in our proactive efforts to prevent future attacks. For instance, according to press reports France offered legal assistance to Zacarrias Moussaoui, the so-called ``20th Hijacker,'' in part due to the decision to seek the death penalty in his case. Spain also refused to extradite a highly dangerous group of terrorists to the United States based upon concerns about the death penalty, and a European Union raises similar concerns. This week the Washington Post reported that Germany also is refusing to fully cooperate in the prosecution of Moussaoui because the United States is seeking the death penalty in that case. In short, the primary purpose of this implementing legislation, fostering international cooperation, may be defeated by the White House's insistence on the inclusion of a death penalty provision in this bill. Nevertheless, at the insistence of the White House, the substitute amendment would allow the government to seek the death penalty in bombing cases where death results, by reference to the existing death penalty provision found in 18 U.S.C. Sec. 2332a, prohibiting the use of weapons of mass destruction. Unlike H.R. 3275, the original Senate version of S. 1770 also did not contain a third new crime for ``concealment'' of material support for terrorists. The Department of Justice conceded in the November, 2001, memorandum that this provision was not necessary to bring the United States into compliance with the conventions, stating, ``the concealment offense set forth in proposed 18 U.S.C. Sec. 2339(c)(b) does not directly implement the Convention.'' Indeed, in the wake of the passage of new money laundering provisions in the USA PATRIOT Act, P.L. No. 107-56, and due to the existence of a concealment crime under 18 U.S.C. Sec. 2339A, with which the Department of Justice recently charged several people in New York, including a criminal defense attorney, such legislation is largely duplicative of existing law. More problematic, however, is the fact that the House bill provided a lower mens rea requirement than Sec. 2339A, an important change that was not highlighted or explained in the Administration's accompanying materials. The substitute amendment contains a new crime of concealment that tracks the existing mens rea requirements of Sec. 2339A, so that a large class of non terrorist related activity is not inadvertently covered. This new crime would be punishable by ten years imprisonment. Finally, the original Senate bill contained an important new tool for international cooperation between law enforcement which is not included in H.R. 3275 and has been deleted from the substitute amendment. Currently, there is no clear statutory authority allowing domestic law enforcement agents to share Title III wiretap information with foreign law enforcement counterparts. This may create problems when, for example, the DEA seeks to alert Colombian authorities that a cocaine shipment is about to leave a Colombian port but the information is derived from a Title III wiretap. The original bill would have clarified the authority for sharing wiretap derived information, specifically in the Title III context. The bill provided a clear mechanism through which law enforcement could share wiretap information with foreign law enforcement, while at the same time ensuring that there are appropriate safeguards to protect this sensitive information against misuse. It added a subsection to 18 U.S.C. Sec. 2517, permitting disclosure of wiretap information to foreign officials (1) with judicial approval, (2) in such a manner and under such conditions as a court may direct, and (3) consistent with Attorney General guidelines on how the information may be used to protect confidentiality. Unfortunately, due to the White House's objection, the substitute removes it from the bill. I am pleased that obstructing has stopped on this important implementing legislation for two anti-terrorism treaties that are intended to increase protections for our national security by enhancing international cooperation in the fight against terrorism. I ask unanimous consent for the substitute to be printed in its entirety the record at the conclusion of my remarks along with the sectional analysis including a summary of the changes made by the substitute to the original bill. Anti-Terrorism Conventions Implementation--Section-by-Section Analysis TITLE I--Suppression of Terrorist Bombings Title I of this bill implements the International Convention for the Suppression of Terrorist Bombings, which was signed by the United States on January 12, 1998, and was transmitted to the Senate for its advice and consent to ratification on September 8, 1999. Twenty-eight States are currently party to the Convention, which entered into force internationally on May 23, 2001. The Convention requires State Parties to combat terrorism by criminalizing certain attacks on public places committed with explosives or other lethal devices, including biological, chemical and radiological devices. The Convention also requires that State Parties criminalize aiding and abetting, conspiring and attempting to undertake such terrorist attacks. Section 101. Short Title Section 101 provides that title I may be cited as ``The Terrorist Bombings Convention Implementation Act of 2001.'' Section 102. Bombing Statute Section 102 adds a new section to the Federal criminal code, to be codified at 18 U.S.C. Sec. 2332f and entitled ``Bombings of places of public use, government facilities, public transportation systems and infrastructure facilities,'' which makes terrorist acts covered by the Convention a crime. New section 2332f supplements and does not supplant existing Federal and State laws, and contains five subsections, which are described below. Subsection (a) makes it a crime to unlawfully place or detonate an explosive in certain public places and facilities with the intent to cause death or serious bodily injury, or with the intent to cause extensive destruction, where such destruction results in, or is likely to result in, major economic loss. Conspiracies and attempts to commit such crimes are also criminalized. This provision implements Article 2, paragraphs 1, 2 and 3 of the Convention. Inclusion of the term ``unlawfully'' in subsection (a), which is mirrored in Article 2 of the Convention defining the offenses, is intended to allow what would be considered under U.S. law as common law defenses. For purposes of subsection (a), whether a person acts ``unlawfully'' will depend on whether he is acting within the scope of authority recognized under and consistent with existing U.S. law, which reflects international law principles, such as self defense or lawful use of force by police authorities. This language is not to be construed as permitting the assertion, as a defense to prosecution under new section 2332f, that a person purportedly acted under authority conveyed by any particular foreign government or official. Such a construction, which would exempt State-sponsored terrorism, would be clearly at odds with the purpose of the Convention and this implementing legislation. With respect to the mens rea provision of subsection (a), it is sufficient if the intent is to significantly damage the targeted public place or facility. Further, for the purpose of subsection (a), when determining whether the act resulted in, or was likely to result in, major economic loss, the physical damage to the targeted place or facility may be considered, as well as other types of economic loss including, but not limited to, the monetary loss or other adverse effects resulting from the interruption of its activities. The adverse effects on non- targeted entities and individuals, the economy and the government may also be considered in this determination insofar as they are due to the destruction caused by the unlawful act. Subsection (b) establishes the jurisdictional bases for the covered offenses and includes jurisdiction over perpetrators of offenses abroad who are subsequently found within the United States. This provision implements a crucial element of the Convention (Article 8(1)), which requires all State Parties to either extradite or prosecute perpetrators of offenses covered by the Convention who are found within the jurisdiction of a State Party. While current Federal or State criminal laws encompass all the activity prohibited by the Convention that occurs within the United States, subsection (b)(1) ensures Federal jurisdiction where there is a unique Federal interest, e.g., a foreign government is the victim of the crime or the offense is committed in an attempt to compel the United States to do or abstain from doing any act. Subsection (c) establishes the penalties for committing the covered crimes at any term of years or life. This provision differs from the Administration proposal, which sought to add a new death penalty provision for this crime, despite the fact that such a provision is not required for compliance under the Convention and may create hurdles in seeking extradition to the United States under this statute. Subsection (d) sets forth certain exemptions to jurisdiction as provided by the Convention. Specifically, the subsection exempts from jurisdiction activities of armed forces during an armed conflict and activities undertaken by military forces of a State in the exercise of their official duties. Subsection (e) contains definitions of twelve terms that are used in the new law. Six of those definitions (``State or government facility,'' ``infrastructure facility,'' ``place of public use,'' ``public transportation system,'' ``other lethal device,'' and ``military forces of a State'') are the same definitions used in the Convention. Four additional definitions (``serious bodily injury,'' ``explosive,'' ``national of the United States,'' and ``intergovernmental organization'') are definitions that already exist in other U.S. statutes. One of those definitions (``armed conflict'') is defined consistent with an international instrument relating to the law of war, and a U.S. Understanding to the Convention that is recommended to be made at the time of U.S. ratification. The final term (``State'') has the same meaning as that term has under international law. Section 103. Effective Date Since the purpose of Title I is to implement the Convention, section 103 provides that the new criminal offense created in Section 102 will not become effective until the date that the Convention enters into force in the United States. This will ensure immediate compliance of the United States with its obligations under the Convention. Title II--Suppression of the Financing of Terrorism Title II implements the International Convention for the Suppression of the Financing of Terrorism, which was signed by the United States on January 10, 2000, and was transmitted to the Senate for its advice and consent to ratification on October 12, 2000. The Convention is not yet in force internationally, but will enter into force 30 days after the deposit of the 22nd instrument of ratification with the U.N. Secretary-General. Once in force, the Convention requires State Parties to combat terrorism by criminalizing certain financial transactions made in furtherance of various terrorist activities. The Convention also requires that State Parties criminalize conspiracies and attempts to undertake such financing. Section 201. Short Title Section 201 provides that title II may be cited as ``The Suppression of Financing of Terrorism Convention Implementation Act of 2001.'' Section 202. Terrorism Financing Statute Section 202(a) adds a new section to the Federal criminal code, to be codified at 18 U.S.C. Sec. 2339C and entitled ``Prohibitions against the financing of terrorism,'' which makes financial acts covered by the Convention a crime. New section 2339C supplements and does not supplant existing Federal and State laws, and contains five subsections, which are described below. Subsection (a) makes it a crime to provide or collect funds with the intention or knowledge that such funds are to be used to carry out certain terrorist acts. Conspiracies and attempts to commit these crimes are also criminalized. This subsection implements Article 2, paragraphs 1, 3, 4 and 5 of the Convention. Subsection (b) establishes the jurisdictional bases for the covered offenses under section 2339C(a) and includes jurisdiction over perpetrators of offenses abroad who are subsequently found within the United States. This provision implements a crucial element of the Convention (Article 10), which requires all State Parties to either extradite or prosecute perpetrators of offenses covered by the Convention who are found within the territory of a State Party. The structure of this provision is designed to accommodate the structure of the Convention, which sets forth both mandatory and permissive bases of jurisdiction, and excludes certain offenses that lack an international nexus. Some portions of this provision go beyond the jurisdictional bases required or expressly permitted under the Convention, however, where expanded jurisdiction is desirable from a policy perspective because a unique Federal interest is implicated and is consistent with the Constitution. Subsection (c) establishes the penalties for committing the covered crimes at imprisonment for not more than 20 years, a fine under title 18, United States Code, or both. This penalty is consistent with the current penalties for money laundering offenses. See 18 U.S.C. Sec. 1956. Subsection (d) contains 13 definitions of terms that are used in the new law. Two of those definitions (``government facility,'' and ``proceeds'') are the same definitions used in the Convention. The definition for ``funds'' is identical to that contained in the Convention with the exception that coins and currency are expressly mentioned as money. The definitions for ``provides'' and ``collects'' reflect the broad scope of the Convention. The definition for ``predicate acts'' specifies the activity for which the funds were being provided or collected. These are the acts referred to in subparagraphs (A) and (B) of section 2339C(a)(1). The definition of ``treaty'' sets forth the nine international conventions dealing with counter-terrorism found in the Annex to the Convention. The term ``intergovernmental organization,'' which is used in the Convention, is specifically defined to make clear that it contains within its ambit existing international organizations. The definitions for ``international organization,'' ``serious bodily injury,'' and ``national of the United States'' incorporate definitions for those terms that already exist in other U.S. statutes. One of the definitions (``armed conflict'') is defined consistent with international instruments relating to the law of war. The final term (``State'') has the same meaning as that term has under international law. Subsection (e) creates a civil penalty of at least $10,000 payable to the United States, against any legal entity in the United States, if any person responsible for the management or control of that legal entity has, in that capacity, committed an offense set forth in subsection (a) of the new section 2339C. This civil penalty may be imposed regardless of whether there is a conviction of such person under subsection (a), and is in addition to any other criminal, civil, or administrative liability or penalty allowable under United States law. Subsection (e) fulfills Article 5 of the Convention. Section 203. Effective Date Section 203 provides that those provisions of the Act that may be implemented immediately shall become effective upon enactment. However, two jurisdictional provisions will not become effective until the Financing Convention enters into force for the United States. Those provisions are the new 18 U.S.C. Sec. Sec. 2339C(b)(1)(D) and (2)(B). In addition, new 18 U.S.C. Sec. 2339C(d)(7)(I), which is a definitional section specifically linked to the Bombing Convention, will not become effective until that Convention enters into effect. TITLE III--Ancillary Measures Title III, which is not required by the International Conventions but will assist in federal enforcement, adds the new 18 U.S.C. Sec. Sec. 2332f and 2339C to several existing provisions of law. Section 301. Ancillary Measures Sections 2332f and 2339C are made predicates under the wiretap statute (18 U.S.C. Sec. 2516(1)(q)) and under the statute relating to the provision of material support to terrorists (18 U.S.C. Sec. 2339A). Sections 2332f and 2339C are also added to those offenses defined as a ``Federal crime of terrorism'' under 18 U.S.C. Sec. 2332b(g)(5)(B), as amended by the USA PATRIOT Act. P.L. No. 107-56. In addition, a provision is added to the civil asset forfeiture statute that makes this tool available in the case of a violation of 18 U.S.C. Sec. 2339C. These provisions are consistent with the treatment of similar Federal crimes already in existence. TITLE IV--Foreign Disclosure of Wiretap Intercepts This provision, which is not required by the International Conventions, clarifies that Federal law enforcement authorities may disclose otherwise confidential wiretap information to their foreign counterparts with appropriate judicial approval. This provision is intended to ensure effective cooperation between domestic and foreign law enforcement in the investigation and prosecution of international criminal organizations. Section 401. Short Title Section 401 provides that title IV may be cited as ``The Foreign Law Enforcement Cooperation Act of 2001.'' Section 402. Amendment to Wiretap Statute Section 402 adds a new subsection to 18 U.S.C. Sec. 2517 that governs the disclosure of otherwise confidential information gathered pursuant to a Title III wiretap. This provision clarifies the authority of domestic law enforcement officers to disclose such information as may show a violation of either domestic or foreign criminal law to foreign law enforcement officials. The provision requires a court order prior to making such a disclosure and sets the standards for the issuance of such an order. It is intended to allow foreign disclosure only to enforce the criminal laws of either the United States or the foreign nation. It also requires that an attorney for the government certify that the foreign officials who are to receive the wiretap information have been informed of the Attorney General's guidelines protecting confidentiality. This provision is intended to enhance the ability of domestic law enforcement to work with their foreign counterparts to investigate international criminal activity at the same time as protecting against improper use of such wiretap information.

Mr. LEAHY. Madam President, we must act. The United States must lead the international community in the fight to end such terrorist bombings. This is precisely what the Leahy-Hatch substitute does. We have been trying to pass this legislation for 6 months. We have been trying to clear it. We have been involved with the White House to reach a consensus. I thank Senator Hatch for his work, and the White House. We have worked out the whole matter with the White House and with Senators. I urge its passage. I urge its passage with as large a vote as possible. I yield the remainder of our time.

Mr. LEAHY

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

Mr. LEAHY

Mr. LEAHY. Madam President, I have come to the floor today to talk about an important piece of legislation, S. 407, the Madrid Protocol Implementation Act, which continues to be blocked from Senate consideration. As I said in an earlier statement on June 7, 2002, there are important bills that have cleared the Democratic side of the aisle and that have bipartisan support, but are being blocked by holds placed by anonymous Republican Senators. Last week, I spoke about legislation concerning national security and law enforcement, including S. 1770, implementing legislation for two anti-terrorism treaties. Fortunately, today, the Senate overwhelmingly passed the Leahy-Hatch substitute amendment to S. 1770 to help ensure that the United States continues to lead the world in the global fight against terrorism. I rise today to speak about protecting the intellectual property of American business. I introduced S. 407, the Madrid Protocol Implementation Act, with Senator Hatch last year to provide implementing legislation for an important treaty, the Madrid Protocol. This bill promises to help American businesses better protect their intellectual property in the international marketplace. The Clinton administration transmitted the Madrid Protocol to the Senate for ratification in 2000, but no action was taken while the Senate was under majority control by the Republicans. Under the leadership of Chairman Biden, the Senate Foreign Relations Committee, in November, 2001, reported the Madrid Protocol to the Senate with the recommendation that the Senate give its advice and consent to accession to the Madrid Protocol. S. 407 would implement this new treaty. The legislation would make no substantive change in American trademark law. The bill would set up new procedures for trademark applicants to file a single trademark application with the Patent and Trademark Office. This single filing would give the applicant ``one stop'' international trademark registration--a process only available to signatory countries to the Protocol. This would benefit American businesses and companies who need to protect their trademarks as they sell their goods and services in international markets, including over the Internet. The House version of this bill, H.R. 741, has already passed the Republican House of Representatives, as it has for the past three Congresses. The Senate Judiciary Committee unanimously reported this bill favorably to the full Senate in July, 2001, and we have been trying unsuccessfully to get it passed by unanimous consent ever since. This bill is critical in keeping our trademark laws up-to-date. It represents a significant step in our efforts to ensure that American trademark law adequately serves and promotes American interests. It is time for the anonymous, secret Republican holds on S. 407 to be lifted so that the Senate can pass this important legislation to protect the private intellectual property of Americans in the global economy.

Mr. LEAHY

Mr. LEAHY. Madam President, I ask unanimous consent that Steven Dettelbach, a detailee to the Judiciary Committee, be granted the privilege of the floor during consideration of the pending matter.

Mr. LEAHY

Mr. LEAHY. Mr. President, I call up my amendment at the desk.

Mr. LEAHY. Mr. President, I ask unanimous consent reading of the amendment be dispensed with.

Mr. LEAHY. I move to reconsider the vote.

Mr. LEAHY

Mr. LEAHY. I ask this with some trepidation because I know that every day I hear my good friend from Texas speaking, it is one less day I am going to have the opportunity to hear him. And I mean that sincerely. I really do enjoy his statements. I wonder if he has some idea how much time he needs?

Mr. LEAHY. Mr. President, will the Senator yield for a question?

Mr. LEAHY. I thank the distinguished Senator.

Mr. LEAHY. Will the Senator yield for a question?

Mr. LEAHY. Madam President, the Senator has the floor and of course can speak as long as he wishes. I do not mean to suggest otherwise.

Mr. LEAHY. We had an informal understanding that originally I was going to follow the Senator from Texas. If not, I will pass it on to the Chair. I just wondered how much longer he might be.

Mr. LEAHY. Madam President, I must oppose this amendment by my good friend from Kentucky, Senator McConnell, to add controversial so-called ``tort reform'' measures to the terrorism insurance bill. This amendment would limit the legal rights of future terrorism victims and their families. That is not fair or just. I have worked with the distinguished majority leader, Senator Dodd, Senator Sarbanes and others to craft a balanced compromise in the substitute amendment on legal procedures for civil actions involving future acts of terrorism. The underlying Dodd bill protects the rights of future terrorism victims and their families while providing Federal court jurisdiction of civil disputes involving acts of terrorism and excluding punitive damages from Government-backed insurance coverage under the bill. These provisions do not limit the accountability of a private party for its actions in any way. Further, the underlying Dodd bill fully protects Federal taxpayers from paying for punitive damages awards. Under the Dodd bill only corporate wrongdoers pay punitive damages, not U.S. taxpayers as some have incorrectly claimed on the Senate floor. But the McConnell amendment would prohibit punitive damages in almost all civil actions covered by the bill. This latest offer excuses wanton, reckless, and even malicious conduct by a corporate wrongdoer. The amendment provides that a corporate wrongdoer must have engaged in criminal conduct and must have already been convicted under State or Federal law before it can held liable for punitive damages. This is a ridiculously high standard that excuses and immunizes all sorts of bad acts that should be punished and deterred. The McConnell amendment, for all practical purposes, eliminates punitive damages, which in turn, completely undermines the civil justice system. There is no effective punishment, and consequently no real deterrent, for misconduct. Right now, the threat of punitive damages makes would-be wrongdoers think twice. Without the threat of punitive damages, callous corporations can decide it is more cost-effective to continue cutting corners despite the risk to American lives. This would let private parties avoid accountability in cases of wanton, willful, reckless or malicious conduct. That is outrageous and irresponsible. Punitive damages are monetary damages awarded to plaintiffs in civil actions when a defendant's conduct has been found to flagrantly violate a plaintiff's rights. Under this amendment, those plaintiffs will be victims of terrorism and their families. The standard for awarding punitive damages is set at the State level, but is generally allowed only in cases of wanton, willful, reckless or malicious conduct. These damages are used to deter and punish particularly egregious conduct. Eliminating punitive damages totally undermines the deterrent and punishment function of the tort law. The threat of punitive damages is a major deterrent to wrongdoing. Eliminating punitive damages would severely undercut this deterrent and permit reckless or malicious defendants to find it more cost effective to continue their callous behavior without the risk of paying punitive damage awards. For example, this amendment would permit a security firm to be protected from punitive damages if the private firm hired incompetent employees or deliberately failed to check for weapons and a terrorist act resulted. This amendment fails to protect the interests of victims of terrorism and their families. I helped author the September 11th Victims Compensation Fund to take care of any terrorism victim suffering physical injury or death. As a result, I was open to public interest retroactive liability limits up to insurance coverage for the September 11th attacks, such as limits for the airlines industry to keep them out of bankruptcy and limits for the owners of the World Trade Center to rebuild. But liability limits for future terrorist attacks are irresponsible because they may restrict the legal rights of victims and their families and discourage private industry from taking appropriate precautions. Restricting damages against the wrongdoer in civil actions involving personal injury or death, for example, could discourage corporations from taking the necessary precautions to prevent loss of life or limb in a future terrorist attack. There is no need to enact these special legal protections and take away the rights of victims of terrorism and their families. At a time when the American people are looking for Congress to take measured actions to protect them from acts of terror, these ``tort reform'' proposals are unprecedented, inappropriate and irresponsible. At the very moment that the President is calling on all Americans to be especially vigilant, this amendment is calling on all American businesses to avoid their responsibility for vigilance under existing law. I am disappointed that some may be taking advantage of the situation to push ``tort reform'' proposals that have been rejected by Congress for years. This smacks of political opportunism. I cannot support rewriting the tort law of each of the 50 states for the benefit of private industry and at the expense of future terrorist victims and their families. I urge my colleagues to defeat this amendment. Madam President, the distinguished Presiding Officer has been as involved in getting compensation to victims of terrorism as anybody here. I raise these points on the floor that we all want to help victims of terror, and we will, but we don't want to give a wish list to anyone. Medical laboratories specializing in nuclear medicine might know that their security system is broken. They say: Well, you know, it will take a few hundred dollars to fix it, and we are not going to bother. So it stays broken for months. At the same time, even though they might put high-security locks on the room that houses its vault, they don't put security locks on the storage room that houses nuclear materials. Say during this period when it is operated without a functioning security system a lab discovers various containers of nuclear matter, including dozens of vials containing radioactive iodine, are missing, and it fails to report that fact to local, State, or Federal authorities and doesn't take any action to repair its security system. This is not a far-fetched example. Let us say that nuclear material is traced back to the laboratory and it is later used to fuel a ``dirty'' bomb that exposes American cities. Under this amendment, you can't go back and prosecute that corporation. They have no criminal prosecution. You can't go back. Come on. What is going to be the incentive for that corporation that failed to fix their security system and to fix the locks on their doors? It is just another example. I see the distinguished acting majority leader. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Madam President, I rise to introduce legislation today with Senator Biden to clarify that an airplane is a vehicle for purposes of terrorist and other violent acts against mass transportation systems. A significant question about this point has been raised in an important criminal case and deserves our prompt attention. Earlier this week, on June 11, 2002, a U.S. District Judge in Boston dismissed one of the nine charges against Richard Reid stemming from his alleged attempt to detonate an explosive device in his shoe while onboard an international flight from Paris to Miami on December 22, 2001. The dismissed count charged defendant Reid with violating section 1993 of title 18, United States Code, by attempting to ``wreck, set fire to, and disable a mass transportation vehicle.'' Section 1993 is a new criminal law that was added, as section 801, to the USA PATRIOT Act to punish terrorist attacks and other acts of violence against, inter alia, a ``mass transportation'' vehicle or ferry, or against a passenger or employee of a mass transportation provider. I had urged that this provision be included in the final anti-terrorism law considered by the Congress. A similar provision was originally part of S. 2783, the ``21st Century Law Enforcement and Public Safety Act,'' that I introduced in the last Congress in June, 2000 on the request of the Clinton Administration. The district court rejected defendant Reid's arguments to dismiss the section 1993 charge on grounds that 1. the penalty provision does not apply to an ``attempt'' and 2. an airplane is not engaged in ``mass transportation.'' ``Mass transportation'' is defined in section 1993 by reference to the ``the meaning given to that term in section 5302(a)(7) of title 49, U.S.C., except that the term shall include schoolbus, charter and sightseeing transportation.'' Section 5302(a)(7), in turn, provides the following definition: ``mass transportation'' means transportation by a conveyance that provides regular and continuing general or special transportation to the public, but does not include school bus, charter or sightseeing transportation.'' The court explained that ``commercial aircraft transport large numbers of people every day'' and that the definition of ``mass transportation'' ``when read in an ordinary or natural way, encompasses aircraft of the kind at issue here.'' U.S. v. Reid, CR No. 02-10013, at p. 10, 12 (D. MA, June 11, 2002). Defendant Reid also argued that the section 1993 charge should be dismissed because an airplane is not a ``vehicle.'' The court agreed, citing the fact that the term ``vehicle'' is not defined in section 1993 and that the Dictionary Act, 1 U.S.C. Sec. 4, narrowly defines ``vehicle'' to include ``every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land.'' Emphasis in original opinion. Notwithstanding common parlance and other court decisions that have interpreted this Dictionary Act definition to encompass aircraft, the district court relied on the narrow definition to conclude that an aircraft is not a ``vehicle'' within the meaning of section 1993. The new section 1993 was intended to provide broad federal criminal jurisdiction over terrorist and violent acts against all mass transportation systems, not only bus services but also commercial airplanes, cruise ships, railroads and other forms of transportation available for public carriage. The bill I introduce today would add a definition of ``vehicle'' to section 1993 and clarify that an airplane is a ``vehicle'' both in common parlance and under this new criminal law to protect mass transportation systems. Specifically, the bill would define this term to mean ``any carriage or other contrivance used, or capable of being used, as a means of transportation on land, water or through the air.'' I urge the Senate to act promptly and pass this legislation. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President if I might add, I saw the same picture. Actually, Henry Thomas Daschle is better looking than our distinguished majority leader. We have so often rancorous debate, we are always so busy, it seems our dear friend, the senior Senator from West Virginia, knows best when to come to the floor and bring us back to the human side of the Senate. He, knowing the Senate better than all of us, brings us back to the human side with poetry. My late mother used to read the Congressional Record every day looking for poems by Robert Carlyle Byrd. And today to have those who are grandparents, as Senator Reid, the distinguished senior Senator from Nevada said, to pass on this wisdom to our majority leader. He is going to get this wisdom from us about being grandparents whether he wants it or not, but we will pass it on. It is the most wonderful time of your life. This will be the first of two this year, and that makes it even better. I might say to my dear friend, the majority leader, this is a very fortunate grandchild to have him as the grandfather, just as the parents are very fortunate to have Tom and Linda Daschle to love and help this child. The Leader will find there will come a time as the child gets a little bit older and is able to come to you with unreserved love, wanting to be with grandfather, as busy and as peripatetic a life as have the busiest people, with the greatest responsibilities of anyone in this country, all of that will come to a screeching halt when that child--my dear friend from West Virginia and dear friend from Nevada know--climbs on to your lap and says, grandpa, can you read me this book or read me this story. It has probably been read a dozen times before. I don't care whether your hotline is ringing, I don't care whether 99 Senators are calling, I don't care whether the President of the United States is calling, I don't care who it is, you will find, of course, that book that you read 10 times already naturally, to get it right, you have to read it again. Your whole universe will go around that. I congratulate you. Those who have been there know it truly is the best part of life. It goes beyond all the things you have accomplished, which are so great. And it was your children who did the accomplishment for you. It is the best of all possible worlds. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Madam President, as we approach Flag Day tomorrow, I thought it worthwhile to reflect on the innate patriotism of so many Americans. Justice Brennan wrote, ``We can imagine no more appropriate response to burning a flag than waving one's own.'' That is exactly how the American people respond. Immediately following September 11, Americans all around the country began to fly flags outside their homes and businesses, to wear flag pins on their lapels, and to place flag stickers on their automobiles. This surge in patriotism over the past 9 months has made American flags such a hot commodity that several major flag manufacturers cannot keep flags stocked on store shelves. Within one week of the attacks, demand for American flags was 20 times higher than is typical for that time of year, according to the National Flag Foundation in Pittsburgh, Pennsylvania. During that same week, Wal-Mart sold 450,000 flags. Within days of the bombing, K-mart sold 200,000 flags. This expression of national pride was spontaneous, and consisted of individual Americans taking conscious acts of patriotism. No one in the government decreed that Americans must purchase and fly flags. There was no official direction stating that Americans should wear clothing and accessories with flag designs, but these have been wildly popular as well. Supporters of S.J. Res. 7, a constitutional amendment to prohibit flag desecration, believe that Americans need a lesson in how to respect the flag. I disagree, and I believe that the American people have proven these Senators wrong. At the height of World War II, in the case of West Virginia State Board of Education v. Barnette, Justice Jackson wrote, ``To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.'' Patriotism is flourishing in ways that no one could have predicted. Americans are rallying around the flag in a voluntary show of strength that demonstrates America's commitment to freedom and liberty. Respect cannot be coerced or compelled. It can only be given voluntarily. Some may find it more comfortable to silence dissenting voices, but coerced silence can only create resentment, disrespect, and disunity. You don't stamp out a bad idea by repressing it; you stamp it out with a better idea. My better idea is to fly the flag, not because the law tells me to; not because there is something that says this is what I have to do to show respect; I do it because, as an American, I want to. That is why the American flag has always flown at the Leahy home. The extraordinary display of patriotism we have witnessed over the past 9 months is evidence that the American public agrees.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am delighted that the House of Representatives yesterday passed unanimously the Mychal Judge Police and Fire Chaplains Public Safety Officers' Benefit Act of 2002, S. 2431. Last month, the Senate passed unanimously my legislation to provide death benefits to the families of 10 fallen heroes of September 11. I again thank Senators Campbell, Schumer, Clinton, Biden and Feingold for cosponsoring our bipartisan measure. I commend Representatives Manzullo and Nadler for their bipartisan leadership on the House companion bill, H.R. 3297, and I thank House Judiciary Committee Chairman Sensenbrenner and Ranking Member Conyers for their strong support as well. Named for Chaplain Mychal Judge, who was killed while responding with the New York City Fire Department to the September 11 terrorist attacks on the World Trade Center, this legislation recognizes the invaluable service of police and fire chaplains in crisis situations by allowing for their eligibility in the Public Safety Officers' Benefit Program. Father Judge, who was gay, was survived by his two sisters who, under current law, are ineligible to receive payments through the PSOB Program. This is simply wrong and must be remedied. Indeed, Father Judge is among 10 public safety officers who were killed on September 11, but who are ineligible for Federal death benefits because they died without a surviving spouse, child, or parent. This bill would retroactively correct this injustice by expanding the list of those who may receive public safety officer benefits to the beneficiaries named on the most recently executed life insurance policy of the deceased officer. This change would go into effect on September 11 of last year to make sure the families of Father Judge and the nine other fallen heroes receive their public safety officer benefits. In addition, this bill would retroactively restructure the Public Safety Officers' Benefit Program to specifically include chaplains as members of the law enforcement and fire units they serve, and would make these chaplains eligible for the one-time $250,000 benefit available to public safety officers who have been permanently disabled as a result of injuries sustained in the line of duty, or to the survivors of officers who have died. Finally, I applaud the National Association of Police Organization, the Fraternal Order of Police, and the American Federation of State, County and Municipal Employees for their strong support for this bill to honor public safety officers and their families. This legislation provides much-needed relief for the survivors of the brave public servants who selflessly risk and sacrifice their own lives everyday so that others might live. I look forward to President Bush signing the Mychal Judge Police and Fire Chaplains Public Safety Officers' Benefit Act of 2002 into law.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Contact Lens Prescription Release Act of 2002 will rectify a troubling anomaly in competition and health care law: Eye doctors have long been required to provide patients with the prescriptions for their eyeglasses, but not for contact lenses. This bill will require ophthalmologists and optometrists to release contact lens prescriptions to their patients, just as they have long been required to do for eyeglass wearers. Since 1973, when the Federal Trade Commission issued a regulation requiring the automatic release of eyeglass prescriptions, the millions of citizens who wear glasses have had access to, and the use of, their own prescriptions. They have long been able to ``shop around'' for the best provider of eyeglasses for themselves, but contact lens wearers are often forced to purchase their contacts from their eye doctors, because they have been denied possession of their own prescriptions. The contact lens industry was in its infancy in 1973, and thus was excluded from the FTC's regulation. Now that 35 million Americans wear contact lenses, the industry is profoundly different. Thirty years ago, it made sense that the FTC did not extend its rule to cover contact lenses, but now that so many patients wear contacts, it seems the time is ripe for the law to reflect this growing health care trend. In addition, because patients' prescriptions can be exclusively held by their doctors, anticompetitive behavior among some eye doctors has escalated, to the detriment of consumers and competition. In some instances, doctors can effectively force their patients to buy contact lenses from their doctors who can also require them to come in for eye exams before they receive replacement lenses, even if there is no change to the prescription. Patients must then pay for medical services they do not want, and cannot shop around for the best price or most convenient delivery service for their contact lens, like on-line ordering, or discount dealers. In fact, thirty-two State Attorneys General have recently settled an antitrust suit against the American Optometric Association and Johnson & Johnson, maker of ACUVUE disposable contact lenses, in which the attorneys general alleged that defendants conspired to force patients to buy their lenses only from eye doctors, and to eliminate competition from alternative distributors of contact lenses. The Contact Lens Prescription Release Act would require the FTC to amend its trade regulation rule on ophthalmic practice to require a contact lens prescriber to release to the patient, or her agent, a copy of the prescription, and it would make it an unfair practice for any contact lens supplier to represent that the lenses could be obtained without a valid prescription. This bill would put contact lens wearers in the same position as their bespectacled brethren: They could have control of their own medical information, and be able to choose the right supplier, from a more competitive marketplace of suppliers, for themselves.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Contact Lens Prescription Release Act of 2002 will rectify a troubling anomaly in competition and health care law: Eye doctors have long been required to provide patients with the prescriptions for their eyeglasses, but not for contact lenses. This bill will require ophthalmologists and optometrists to release contact lens prescriptions to their patients, just as they have long been required to do for eyeglass wearers. Since 1973, when the Federal Trade Commission issued a regulation requiring the automatic release of eyeglass prescriptions, the millions of citizens who wear glasses have had access to, and the use of, their own prescriptions. They have long been able to ``shop around'' for the best provider of eyeglasses for themselves, but contact lens wearers are often forced to purchase their contacts from their eye doctors, because they have been denied possession of their own prescriptions. The contact lens industry was in its infancy in 1973, and thus was excluded from the FTC's regulation. Now that 35 million Americans wear contact lenses, the industry is profoundly different. Thirty years ago, it made sense that the FTC did not extend its rule to cover contact lenses, but now that so many patients wear contacts, it seems the time is ripe for the law to reflect this growing health care trend. In addition, because patients' prescriptions can be exclusively held by their doctors, anticompetitive behavior among some eye doctors has escalated, to the detriment of consumers and competition. In some instances, doctors can effectively force their patients to buy contact lenses from their doctors who can also require them to come in for eye exams before they receive replacement lenses, even if there is no change to the prescription. Patients must then pay for medical services they do not want, and cannot shop around for the best price or most convenient delivery service for their contact lens, like on-line ordering, or discount dealers. In fact, thirty-two State Attorneys General have recently settled an antitrust suit against the American Optometric Association and Johnson & Johnson, maker of ACUVUE disposable contact lenses, in which the attorneys general alleged that defendants conspired to force patients to buy their lenses only from eye doctors, and to eliminate competition from alternative distributors of contact lenses. The Contact Lens Prescription Release Act would require the FTC to amend its trade regulation rule on ophthalmic practice to require a contact lens prescriber to release to the patient, or her agent, a copy of the prescription, and it would make it an unfair practice for any contact lens supplier to represent that the lenses could be obtained without a valid prescription. This bill would put contact lens wearers in the same position as their bespectacled brethren: They could have control of their own medical information, and be able to choose the right supplier, from a more competitive marketplace of suppliers, for themselves.

Mr. LEAHY

Mr. LEAHY. Right. How time flies when you are having fun. Amendment No. 3807 (Purpose: To provide reliable officers, technology, education, community prosecutors, and training in our neighborhoods)